Constitutional Law Commons^™

Civil Liberty Or National Security: The Battle Over Iphone Encryption, Karen Lowell

Georgia State University Law Review

On June 5, 2013, Edward Snowden released what would be the first of many documents exposing the vast breadth of electronic surveillance the Federal Bureau of Investigation (FBI) and the National Security Agency (NSA) had been conducting on millions of United States citizens. Although the federal agencies had legal authority under the Foreign Intelligence Surveillance Act (FISA) to collect metadata from companies such as Verizon, many Americans considered this data collection to be a massive invasion of privacy.

Equipped with the knowledge of sweeping domestic surveillance programs, citizens and technology firms fighting for strong privacy and security protection, have started …

Pursuing Gault, David S. Tanenhaus, Eric C. Nystrom

Nevada Law Journal

No abstract provided.

Hard Bargaining In Plea Bargaining: When Do Prosecutors Cross The Line?, Cynthia Alkon

Nevada Law Journal

No abstract provided.

My Life In Crime: An Intellectual History Of The Juvenile Court, Barry C. Feld

Nevada Law Journal

No abstract provided.

Championing Children's Rights In Nevada, 2000-2015: The Thomas & Mack Juvenile Justice Clinic As Change Agent, Mary C. Berkheiser

Nevada Law Journal

No abstract provided.

Random If Not "Rare"? The Eighth Amendment Weaknesses Of Post-Miller Legislation, Kimberly Thomas

Articles

First, this Article surveys the U.S. Supreme Court's decision to analogize life without parole for juveniles to the death penalty for adults, and discusses the Eighth Amendment law regarding the parameters around death penalty statutory schemes. Second, this Article examines the state legislative response to Miller, and scrutinizes it with the Court's Eighth Amendment death penalty law-and the states' responses to this case law-in mind. This Article highlights the failure of juvenile homicide sentencing provisions to: 1) narrow offenses that are eligible for life without parole sentences; 2) further limit, once a guilty finding is made, the categories of …

Unprecedented Infringement: Debunking The Constitutionality Of Dna Collection From Mere Arrestees In Light Of Maryland V. King, Christen Giannaros

Journal of Civil Rights and Economic Development

No abstract provided.

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an important safeguard that …

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark A. Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the …

Riley And Abandonment: Expanding Fourth Amendment Protection Of Cell Phones, Abigail Hoverman

Northwestern University Law Review

In light of the privacy concerns inherent to personal technological devices, the Supreme Court handed down a unanimous decision in 2014 recognizing the need for categorical heightened protection of cell phones during searches incident to arrest in Riley v. California. This Note argues for expansion of heightened protections for cell phones in the context of abandoned evidence because the same privacy concerns apply. This argument matters because state and federal courts have not provided the needed protection to abandoned cell phones pre- or post-Riley.

What Lurks Below Beckles, Leah M. Litman, Shakeer Rahman

Northwestern University Law Review

This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …

To Kill Or Not To Kill: (When) That Is The Question? A Legislative Treatise On Battered Israeli Women Facing A Dead End Road, Hava Dayan

William & Mary Journal of Race, Gender, and Social Justice

This Paper seeks to examine the legal framework in which the self-defense exception is applied in Israel in circumstances of domestic violence. The Paper scrutinizes the issue with reference to recent amendments to the Israeli Penal Code pertaining to the ‘castledefense’ which grants a person defending his home and property-wide protection from criminal liability. In light of these amendments, the lack of legislative harmony between the exception to criminal liability applied when defending property and the deficient protection afforded to victims of ongoing, severe domestic violence, is striking. Aside from a critical review of Israeli legislation on the issue, this …

Subconstitutional Checks, Shima Baradaran Baughman

Utah Law Faculty Scholarship

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Notre Dame Law Review

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Subconstitutional Checks, Shima Baradaran Baughman

Notre Dame Law Review

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

Cruel And Unusual Punishment: Denying Ex-Felons The Right To Vote, Amy Heath

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Is Miranda Good News Or Bad News For The Police: The Usefulness Of Empirical Evidence, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. Supreme Court’s landmark case of Miranda v. Arizona created a culture in which police officers regularly warn arrestees that they have a right to remain silent, that anything they say can and will be used against them in a court of law, that they have the right to an attorney, and that if they cannot afford one, an attorney will be appointed to them. These Miranda warnings have a number of possible effects. The warnings are meant to inform suspects about negative consequences associated with speaking to the police without the assistance of counsel. In this sense they …

The Criminal Justice Black Box, Samuel R. Wiseman

Scholarly Publications

"Big data "-- the collection and statistical analysis of numerous digital data points -- has transformed the commercial and policy realms, changing firms' understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct. But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, …

What Impact Is Felony Disenfranchisement Having On Hispanics In Florida?, Angel E. Sanchez

Honors Undergraduate Theses

This research produces original empirical estimates of Hispanics in Florida’s Dept. of Corrections (FDOC) and uses those estimates to measure the impact felony disenfranchisement is having on Hispanics in Florida. Research institutions find that data on Hispanics in the criminal justice system, particularly in Florida, is either lacking or inaccurate. This research addresses this problem by applying an optimal surname list method using Census Bureau data and Bayes Theorem to produce an empirical estimate of Hispanics in FDOC’s data. Using the Hispanic rate derived from the empirical FDOC analysis, the rate of Hispanics in the disenfranchised population is estimated. The …

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Constitutional Law—Fourth Amendment Search And Seizure—We've Got Ourselves In A Pickle: The Supreme Court Of Arkansas's Recent Expansion Of Fourht Amendment Rights May Have Unintended Consequences. Pickle V. State, 2015 Ark. 286, 466 S.W. 3d 410, Ben Honaker

University of Arkansas at Little Rock Law Review

No abstract provided.

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Faculty Publications By Year

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Mass Monitoring, Avlana Eisenberg

Scholarly Publications

Business is booming for criminal justice monitoring technology: these days “ankle bracelet” refers as often to an electronic monitor as to jewelry. Indeed, the explosive growth of electronic monitoring (“EM”) for criminal justice purposes—a phenomenon which this Article terms “mass monitoring”—is among the most overlooked features of the otherwise well-known phenomenon of mass incarceration.

This Article addresses the fundamental question of whether EM is punishment. It finds that the origins and history of EM as a progressive alternative to incarceration—a punitive sanction—support characterization of EM as punitive, and that EM comports with the goals of dominant punishment theories. Yet new …

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

Hotline Ping: Harmonizing Contemporary Cell Phone Technology With Traditional Fourth Amendment Protections, Brianne M. Chevalier

Roger Williams University Law Review

No abstract provided.

Trans-Lating The Eighth Amendment Standard: The First Circuit's Denial Of A Transgender Prisoner's Constitutional Right To Medical Treatment, Bethany L. Edmondson

Georgia Law Review

In December of 2014, the First Circuit Court of Appeals
held, en banc, that the Massachusetts Department of
Corrections was not constitutionally obligated to provide
Michelle Kosilek, a transgender prisoner, with sexual
reassignment surgery. Kosilek sued the prison, arguing
that her Eighth Amendment rights against cruel and
unusual punishment were violated. The First Circuit held
that Kosilek did not have a serious medical need, due to
the prison's alternative treatment, and that the prison was
not deliberately indifferent to that need. This Note argues
that the First Circuit erred in applying the "serious
medical need" prong of the cruel and …