Law Commons^™

Seizing Family Homes From The Innocent: Can The Eighth Amendment Protect Minorities And The Poor From Excessive Punishment In Civil Forfeiture?, Louis S. Rulli

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Civil forfeiture laws permit the government to seize and forfeit private property that has allegedly facilitated a crime without ever charging the owner with any criminal offense. The government extracts payment in kind—property—and gives nothing to the owner in return, based upon a legal fiction that the property has done wrong. As such, the government’s taking of property through civil forfeiture is punitive in nature and constrained by the Eighth Amendment’s Excessive Fines Clause, which is intended to curb abusive punishments.

The Supreme Court’s failure to announce a definitive test for determining the constitutional excessiveness of civil forfeiture takings under …

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

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Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …

A Good Enough Reason: Addiction, Agency And Criminal Responsibility, Stephen J. Morse

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The article begins by contrasting medical and moral views of addiction and how such views influence responsibility and policy analysis. It suggests that since addiction always involves action and action can always be morally evaluated, we must independently decide whether addicts do not meet responsibility criteria rather than begging the question and deciding by the label of ‘disease’ or ‘moral weakness’. It then turns to the criteria for criminal responsibility and shows that the criteria for criminal responsibility, like the criteria for addiction, are all folk psychological. Therefore, any scientific information about addiction must be ‘translated’ into the law’s folk …

The Anomaly Of Executions: The Cruel And Unusual Punishments Clause In The 21st Century, John Bessler

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This Article describes the anomaly of executions in the context of the U.S. Supreme Court’s Eighth Amendment jurisprudence. While the Supreme Court routinely reads the Cruel and Unusual Punishments Clause to protect prisoners from harm, the Court simultaneously interprets the Eighth Amendment to allow inmates to be executed. Corporal punishments short of death have long been abandoned in America’s penal system, yet executions — at least in a few locales, heavily concentrated in the South — persist. This Article, which seeks a principled and much more consistent interpretation of the Eighth Amendment, argues that executions should be declared unconstitutional as …

Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman

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(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is …

Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven P. Grossman

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This Article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. …

Commentary: Rummel V. Estelle: Mockingbirds Among The Brethren, Kenneth Lasson

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In this commentary Professor Lasson discusses the Supreme Court's decision in Rummel v. Estelle and reveals a poignant personal memorandum that reflects the analysis of human values necessarily performed by whichever Justice cast the deciding vote.