Law Commons^™

The Emerging Neoliberal Penality: Rethinking Foucauldian Punishment In A Profit-Driven Carceral System, Kevin Crow

Kevin Crow

Mandatory Immigration Detention For U.S. Crimes: The Noncitizen Presumption Of Dangerousness, Mark Noferi

Mark L Noferi

Nsa And Dea Intelligence Sharing: Why It's Legal And Why Reuters Got It Wrong, Melanie M. Reid

Melanie M. Reid

No abstract provided.

The Effect Of Hawaii’S Ban The Box Law On Repeat Offending, Stewart D'Alessio, Lisa Stolzenberg, Jamie Flexon

Lisa Stolzenberg

The social stigma accompanying an official criminal record hinders the ability of an individual to acquire quality and stable employment, which is problematic because of the often reported nexus between unemployment and criminal behavior. Ban the box laws that limit an employer’s use of criminal background checks during the hiring process are being established across the country to help integrate ex-offenders into the labor force. The current study investigates whether Hawaii’s 1998 ban the box law reduced repeat offending in Honolulu County. Logistic regression results show that a criminal defendant prosecuted in Honolulu for a felony crime was 57% less …

“Them Feds Don’T Play Fair” : The Fourth Amendment And Cloud-Based Data, Laurie B. Serafino

Laurie B. Serafino

Scholars have frequently suggested that the Fourth Amendment ought to be applied with varying degrees of rigor depending on the seriousness of the crime investigated. Courts have largely rejected such an offense-specific approach to constitutional protections, but have demonstrated deference to the Executive Branch in matters of national security in other contexts. The particularly heightened concern raised by the threat of terrorism suggests that, at least in the context of these most serious of cases, courts ought to engage in some form of balance that recognizes the uniquely strong government interest. Such an approach, however, has to recognize that the …

Maryland Repeals The Death Penalty, But Leaves Five On Death Row: Should The State That Condemned An Innocent Man To Die Commute All Five Death Sentences?, Meredith Pendergrass

Meredith Pendergrass

No abstract provided.

Fifteen Years And Death: Double Jeopardy, Multiple Punishments, And Extended Stays On Death Row, Michael J. Johnson

Michael P. Johnson

Fifteen Years and Death is a Note that considers a completely novel application of the Double Jeopardy Clause to excessive time on death row. Traditionally, death penalty opponents have attacked the now fifteen-year average wait time on death row as a violation of the Eighth Amendment’s prohibition on cruel and unusual punishments, but this argument has fallen flat time and time again as courts have been reluctant to find merely living in prison to be “cruel” or “unusual.” Most courts do admit, however, that such time on death row does constitute some sort of punishment. As originally imagined, the Double …

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism as a means of collaborating with Muslim communities and local police to combat “Islamist” homegrown terrorism. Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among law enforcement and …

Criminal Law: Cases, Materials, And Problems, 3d Ed., David Rudstein

David S Rudstein

No abstract provided.

United States V. Jones: Big Brother And The "Common Good" Versus The Fourth Amendment And Your Right To Privacy, Melanie M. Reid

Melanie M. Reid

No abstract provided.

United States V. Jones: Big Brother And The “Common Good” Versus The Fourth Amendment And Your Right To Privacy, Melanie M. Reid

Melanie M. Reid

This Article traces the evolution of Fourth Amendment law and what constitutes a “search” from English property law and trespass to the reasonable expectation of privacy under United States v. Katz to the latest Supreme Court decision in United States v. Jones. The Supreme Court’s recent reliance upon historical property law in Jones impacts law enforcement’s ability to use tracking devices, especially when exigent circumstances exist. The Jones decision may also subsequently impact law enforcement’s use of other investigatory tools, such as trash pulls, stationary cameras, open fields, and undercover agent or informant non-consensual recordings. The decision in Jones brings …

Reforming Surveillance Law: The Swiss Model, Susan Freiwald, Sylvain Metille

Susan Freiwald

Reforming Surveillance Law: The Swiss Model

Susan Freiwald & Sylvain Métille

As implemented over the past twenty-six years, the Electronic Communications Privacy Act (ECPA), which regulates electronic surveillance by law enforcement agents, has become incomplete, confusing, and ineffective. In contrast, a new Swiss law (CrimPC) regulates law enforcement surveillance in a more comprehensive, uniform, and effective manner. This article compares the two approaches and argues that recent proposals to reform EPCA in a piecemeal fashion will not suffice. Instead, the Swiss CrimPC law presents a model for more fundamental reform of U.S. law.

This article is the first to analyze …

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Lauren Sudeall Lucas

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

Sexual Abuse Of Male Juveniles In Detention Centers By Female Correction Officers And Their Peers – An Empirical Study, Paul Cook

Paul Cook

This Comment both reveals the nature and dynamic of sexual abuse in the male juvenile detention centers and dispels common misconceptions we had of it. By comparing and contrasting the BJS male and juvenile incarceration data with previously projected statistics, This Comment subjected these sets of data through statistical formulas. From that, it has made several findings.1) Male juveniles appear to be more frequently abused when detained. 2) Staff are the primary perpetrators. 3) There are both overt and non-overt traits that correlate to higher rates of sexual abuse. 4) White male juveniles have a higher correlation to sexual abuse …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

Mexico's Crisis: When There's A Will, There's A Way, Melanie M. Reid

Melanie M. Reid

The United States under the Obama administration is committed to many of the tools being advocated in Mexican President Felipe Calderón’s holistic approach to combat drug trafficking. This Article explores the United States’ Merida Initiative policy and critiques its effectiveness. The Beyond Merida Initiative announced in 2010 revamped the prior 2007 initiatives, and provided more emphasis on additional training rather than equipment or direct financial aid to Mexico. Neither initiative corrects problems endemic to Mexico which limits the possibility of success. Corruption, anti-American resentment, and a drastically different legal system in Mexico hinder our efforts to become an effective ally …

A Constitutional Theory Of Habeas Power, Lee B. Kovarsky

Lee Kovarsky

Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as “lawful” custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. “A Constitutional Theory of Habeas Power” is an inquiry into the newly-minted principle that the federal Constitution guarantees some quantum …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

Vulnerability And Desert: A Theory Of Sentencing The Mentally Ill, Lea Johnston

E. Lea Johnston

This Article analyzes risks of harm posed to prisoners with serious mental illnesses and asks whether, and how, sentencing theory should take these risks into account. Drawing upon social science research, the Article first establishes that offenders with major mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience exacerbation of mental illness during their terms of confinement. This Article represents the first major effort in the legal literature to collect and analyze psychological studies bearing on the increased risk of harm faced by this population. After offering a …

Suspicionless Searches Of Public School Students: An Empirical Legal Analysis, Jason P. Nance

Jason P. Nance

This Article presents an original empirical legal analysis of recent data from the U.S. Department of Education’s School Survey on Crime and Safety. The results of the analysis suggest that many public schools are violating students’ civil rights by conducting suspicionless, intrusive searches without valid justifications, such as having particularized evidence of a drug or weapons problem. Furthermore, the data indicate that many school officials may be using illegitimate criteria – most notably race – to determine whether to conduct those searches. For example, in schools that did not report any student violations relating to weapons, alcohol or drugs during …

Criminal Procedure: The Investigative Process, 2d Ed., David Rudstein

David S Rudstein

No abstract provided.

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David Rudstein

David S Rudstein

No abstract provided.

Reclaiming The Promise Of The Indian Child Welfare Act: A Study Of State Incorporation And Adoption Of Legal Protections For Indian Status Offenders, Thalia Gonzalez

Thalia Gonzalez

No abstract provided.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Theorizing Mental Health Courts, Lea Johnston

E. Lea Johnston

To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This Article examines the two utilitarian justifications proposed by mental health court advocates—therapeutic jurisprudence and therapeutic rehabilitation—and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the sufficiency of rehabilitation, as this concept appears to be defined by mental health court advocates, depends on the validity of …