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Articles 1 - 26 of 26
Full-Text Articles in Law
Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks
Narrowing From Below: How Lower Courts Can Limit Castro-Huerta, Michaela B. Parks
Arkansas Law Review
This Note will offer a plan for how Indian country can move forward in the wake of what anti-tribal sovereignty entities want to be a devasting decision. This Note advocates for a judicial remedy plan. Specifically, it calls upon lower courts to narrow Castro-Huerta from below to limit the effects of the decision. Part II provides a brief introduction to federal Indian law, a general overview of criminal jurisdiction in Indian country, and concludes with a summary of Castro-Huerta. Part III outlines two approaches to limiting that lower courts can use to narrow Castro-Huerta from below: textual limiting and fact-to-fact …
Sentenced To Prison, Not To Death: Home Confinement During The Pandemic And Moving Beyond Covid-19, Sydney Mcconnell
Sentenced To Prison, Not To Death: Home Confinement During The Pandemic And Moving Beyond Covid-19, Sydney Mcconnell
Arkansas Law Review
A prison sentence should “not include incurring a great and unforeseen risk of severe illness or death.” But for the 2.3 million people housed in our nation’s prisons and jails during the COVID-19 (“COVID”) pandemic, their sentences have included just that. Since the beginning of the pandemic, the Bureau of Prisons has transferred approximately 49,068 inmates to home confinement. The decision to expand home confinement is an important one. It is a step in the right direction to address another broader, and distinctly American, issue: mass incarceration. Lawmakers on both sides of the political aisle have reached the consensus “that …
Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol
Crying Wolves, Paper Tigers, And Busy Beavers—Oh My!: A New Approach To Pro Se Prisoner Litigation, Justin C. Van Orsdol
Arkansas Law Review
To say that the United States is infatuated with incarceration would be a gross understatement. As a result of “tough on-crime” laws, the United States has “the largest prison population in the world, with more than 2.3 million persons behind bars on any given day” and it “also has the world’s highest per capita rate of incarceration” with a rate that is “five to ten times higher than those of other industrialized democracies like England and Wales . . . . Canada . . . , and Sweden.” Due in part to prison population increases, the conditions of U.S. prisons …
The Future Of The Allen Charge In The New Millennium, Caleb Epperson
The Future Of The Allen Charge In The New Millennium, Caleb Epperson
Arkansas Law Review
"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same." Following the death of George Floyd on May 25, 2020, social and political movements grew rapidly nationwide to combat the prevalence of police brutality against African-American communities. The impact of the ongoing Black Lives Matter movement has been observed in both cities across the United States and in related movements internationally. This movement highlights the necessity for police reform and catalyzes the public’s growing call for greater criminal justice reform. To achieve the goals …
Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman
Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman
Arkansas Law Review
“[T]he quest for better justice is a ceaseless quest, that the single constant for our profession is the need for continuous examination and reexamination of our premises as to what law should do to achieve better justice.” From time to time, it is important that we take stock of our legal surroundings and ask ourselves if our procedures are still properly serving us, or if there is need for change and improvement. In this Article, I argue that the time has come for Arkansas to provide the criminal defense bar with the affirmative power to conduct discovery depositions. Arkansas criminal …
The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller
The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller
Arkansas Law Review
The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …
The Post-Conviction Claim That Unites Death Row, Emily Levy
The Post-Conviction Claim That Unites Death Row, Emily Levy
Arkansas Law Review
“. . . [D]eath-penalty cases are different from other criminal cases, due to the obvious finality of the punishment.” Thirty-one executions have taken place in Arkansas since 1990. In February of 2017, Arkansas, uniquely, sought to execute eight inmates in eleven days—the so-called “Arkansas Eight.” All of those death row inmates shared a common postconviction claim: Strickland. Prior to Strickland v. Washington, no Supreme Court jurisprudence made clear what constituted objectively sufficient defense representation pursuant to the Sixth Amendment. But that changed in 1984 when Strickland made clear that the Sixth Amendment included the right of effective assistance of counsel.
A Quiet War: The Judiciary's Steady And Unspoken Effort To Limit Felony-Murder, Maggie Davis
A Quiet War: The Judiciary's Steady And Unspoken Effort To Limit Felony-Murder, Maggie Davis
Arkansas Law Review
On a Wednesday afternoon a sixteen-year-old boy is hanging out after school with four of his friends. He is your average sixteen-year-old; he has a girlfriend who works at Wendy’s, and his current worry is about passing his driving test. He smokes some weed from time to time with his friends, but he has a clean criminal record. After complaining about being broke and deciding they have nothing better to do, the five friends elect to break into a seemingly vacant home in order to steal some items for resale. He is already thinking about what he will buy with …
Same Grid, Different Results: Criminal Sentencing Disparities Between Arkansas Counties, Alexis Stevens
Same Grid, Different Results: Criminal Sentencing Disparities Between Arkansas Counties, Alexis Stevens
Arkansas Law Review
Abraham Davis is a resident of Fort Smith, Arkansas—and a convicted felon. In May of 2017, the Sebastian County Circuit Court, Fort Smith District, charged Davis with criminal mischief in the first degree, as a Class D felony, for purposely destroying the property of another. Davis’s charge resulted in a criminal sentence ranging from as little as probation to as much as 6 years jail time and/or up to $10,000.00 in fines. This sentencing determination is generally allocated to the judge and prosecutor. However, victim intervention persuaded the court to release Davis on probation, sparing him from a much harsher …
Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty
Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty
Arkansas Law Review
The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …
Recent Developments, Peyton Hildebrand
Recent Developments, Peyton Hildebrand
Arkansas Law Review
In a 5-4 opinion, the United States Supreme Court once again denied a Bivens action. This case involved a tragic crossborder shooting by a border patrol agent standing on United States soil, who shot and killed a young boy standing on Mexican soil. Petitioners, the boy’s parents, sought relief under Biven2, arguing the agent’s action violated the Constitution. However, the Court determined the cross-border shooting was a new Bivens context, which required an analysis of whether any special factors “counseled hesitation” for the cause of action to be extended. The Court concluded Bivens was inappropriate because several factors “counseled hesitation”—namely, …
"Against The Defendant": Plea Rule's Purpose V. Plain Meaning, Nick Bell
"Against The Defendant": Plea Rule's Purpose V. Plain Meaning, Nick Bell
Arkansas Law Review
Rarely is there a proverbial “smoking gun” in criminal prosecutions. Instead, prosecutors and defense attorneys must tell juries competing stories—largely from circumstantial evidence—and allow jurors to determine what happened based on inferences gleaned from argument and testimony. Naturally, this creates substantial uncertainty for both prosecutors and defendants. Instead of rolling the dice at trial, the vast majority of criminal matters are resolved through plea bargaining. Plea bargaining provides both sides with a certainty otherwise unobtainable through a traditional trial. The prosecution guarantees itself a conviction, and the defendant will often receive a lighter sentence than if he or she had …
Recent Developments, Raelynn J. Hillhouse
Recent Developments, Raelynn J. Hillhouse
Marijuana Business Attorneys And The Professional Deference Standard, Andrew Dixon
Marijuana Business Attorneys And The Professional Deference Standard, Andrew Dixon
Arkansas Law Review
Imagine that you practice as an attorney in the State of Arkansas. A client solicits your advice about opening a marijuana dispensary or cultivation center. The client might want you to assist him in filing a dispensary application with the State. On the other hand, she might want you to negotiate a commercial lease or to provide services to ensure compliance with municipal zoning laws. Although Arkansas voters approved a constitutional amendment permitting medical marijuana sales, you provide a clear warning to your client: possessing, manufacturing, selling, and distributing marijuana remains a federal crime. After these precautions, however, you proceed …
Protecting Due Process During Terrorism Adjudications: Redefining "Crimes Against Humanity" And Eliminating The Doctrine Of Complimentary Jurisdiction In Favor Of The International Criminal Court, Daniel N. Clay
Arkansas Law Review
“When we sit in judgment we are holding ourselves out as people—as the kind of a community—that are worthy of this task. It is the seriousness, the gravity, of the act of judgment which gives rise to our legitimate and laudable emphasis on procedural fairness and substantive accuracy in criminal procedure. But these things focus on the defendant—the one judged. I am concerned about us who would presume to sit in judgment. Who are we that we should do this? Whether we intend to do so or not, we answer this question in part through the way we conduct our …
Improving The Indigent Defense Crisis Through Decriminalization, Bryan Altman
Improving The Indigent Defense Crisis Through Decriminalization, Bryan Altman
Arkansas Law Review
“The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, justice will not still be done.” The constitutional right to the assistance of counsel in criminal prosecutions is one of the many safeguards contained within the Sixth Amendment designed to protect the fundamental human rights of life and liberty. Unfortunately, for indigent defendants that safeguard of life and liberty operates as a mere platitude today. Stephen Bright, founder of the Southern Center for Human Rights, has bleakly summarized the crisis of indigent defense, noting that while the right to counsel is widely celebrated, …
How To Combat Prenatal Substance Abuse While Also Protecting Pregnant Women: A Legislative Proposal To Create An Appropriate Balance, Kyle Kennedy
Arkansas Law Review
“Substance abuse in pregnancy is associated with a number of adverse outcomes for the woman, fetus, and neonate.” A recent study indicated that approximately 5.9% of pregnant women between the ages of fifteen and forty-four use illicit drugs. Prenatal illicit drug use has escalated over the past decade, causing an increase in “maternal and neonatal complications, neonatal abstinence syndrome, and health care costs.” Following alcohol and marijuana, methamphetamine is the most commonly abused drug.4 By 2006, admissions for treatment of methamphetamine abuse among pregnant women had increased to twenty-four percent of federally-funded treatment admissions, up from eight percent in 1994.
Eleven Years Of Lethal Injection Challenges In Arkansas, Julie Vandiver
Eleven Years Of Lethal Injection Challenges In Arkansas, Julie Vandiver
Arkansas Law Review
In 2015, the Supreme Court decided Glossip v. Gross, which upheld the denial of a challenge to the lethal injection protocol in Oklahoma. Justice Breyer dissented, writing that he believed the death penalty was unconstitutional because, among other reasons, it had become “unusual.” He pointed out that Arkansas, along with 10 other states, had not conducted an execution in more than 8 years. This Article provides a look into how Arkansas made it onto this list. The drought was not from a lack of effort by the state. In the ten years preceding Glossip, twenty-one execution dates were set and …
Capital Punishment: The Great American Paradox, A. M. Stroud Iii
Capital Punishment: The Great American Paradox, A. M. Stroud Iii
Arkansas Law Review
On June 6, 1944, American forces landed on Omaha and Utah beaches as part of the Normandy invasion that had as its objective the liberation of occupied Europe from the tyranny of the Nazi Occupation. This was America at its finest hour. This was not a professional army, but an army consisting of young men who had been drafted or had enlisted after Pearl Harbor. The young men came from all walks of life: farmers, teachers, family members, mechanics, truck drivers and the rest, with the sole objective to make the world safe again from the atrocities of the Axis …
Keep Tinkering: The Optimist And The Death Penalty, Susan D. Rozelle
Keep Tinkering: The Optimist And The Death Penalty, Susan D. Rozelle
Arkansas Law Review
When it comes to capital punishment, it may make sense to be a little bit defeatist. Like abortion, the death penalty is a topic about which you have to presume that you are never going to change anyone else’s mind. Whether the other person views it as a necessary part of the justice system or as a moral outrage, odds of changing the other person’s mind through reasoned discourse are slim.
The Coming Federalism Battle In The War Over The Death Penalty, Michael J. Zydney Mannheimer
The Coming Federalism Battle In The War Over The Death Penalty, Michael J. Zydney Mannheimer
Arkansas Law Review
From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a state that did not authorize the death penalty for the same conduct. However, in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty states. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. And since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in …
Death Beyond A Reasonable Doubt, Janet C. Hoeffel
Death Beyond A Reasonable Doubt, Janet C. Hoeffel
Arkansas Law Review
In the forty-four years since the Court employed the Eighth Amendment to temporarily suspend the death penalty in the United States in Furman v. Georgia in 1972, the Court has spilled an enormous amount of ink attempting to instruct the states on how to properly guide jurors’ discretion in imposing the death penalty. Yet, in its voluminous Eighth Amendment jurisprudence, the Justices spilled not one drop suggesting the familiar and unifying standard of beyond a reasonable doubt as a guide.
Chasing Justice: The Monumental Task Of Undoing A Capital Conviction And Death Sentence, Jennifer L. Givens
Chasing Justice: The Monumental Task Of Undoing A Capital Conviction And Death Sentence, Jennifer L. Givens
Arkansas Law Review
After the botched 2014 execution of Clayton Lockett in Oklahoma, John Oliver tackled the issue of the death penalty on the second episode of his HBO show, Last Week Tonight with John Oliver. Oliver opens the discussion with a sound bite from former U.S. Attorney General Alberto Gonzales, who says, “I [] do believe in the death penalty, but [] only with respect to those [that] are guilty of committing the crime.” Oliver responds, “Okay, bold idea. We shouldn’t execute innocent people. I think most people would probably agree with that. You, sir, are a regular Atticus Finch. But [] …
Should Death Be So Different?: Sentencing Purposes And Capital Jury Decisions In An Era Of Smart On Crime Sentencing Reform, Jelani Jefferson Exum
Should Death Be So Different?: Sentencing Purposes And Capital Jury Decisions In An Era Of Smart On Crime Sentencing Reform, Jelani Jefferson Exum
Arkansas Law Review
We are in an era of “Smart on Crime” sentencing reform. Several states and the federal government have made major changes to their sentencing policies—from reducing the incarceration of low-level, nonviolent drug offenders to the use of evidence-based sentencing to focus the most severe punishments on those who are at the greatest risk of recidivism. Often, today’s reform efforts are spoken about in terms of being fiscally responsible while still controlling crime. Though such reform efforts do not explicitly acknowledge purposes of punishment—such as retribution, incapacitation, rehabilitation, or deterrence—an undercurrent running through all of these reforms is an effort for …
Death Row Conditions Through An Environmental Justice Lens, Andrea C. Armstrong
Death Row Conditions Through An Environmental Justice Lens, Andrea C. Armstrong
Arkansas Law Review
Glenn Ford lived on death row at Louisiana State Penitentiary for twenty-nine years, three months and five days. Typically, he was confined in his cell for at least twenty-three hours of a given day, seven days a week. Glenn was convicted of the armed robbery and murder of Isadore Rozeman. After prosecutors Martin Stroud and Carey Schimpf used six of their eight peremptory challenges to exclude African-Americans from the jury venire, Glenn was sentenced to death in 1984 by an allwhite jury. He was a devoted friend to many and, to the extent possible given his incarceration, a committed father …