Constitutional Law Commons^™

The Commercial Sexual Exploiutation Of Minors, The First Amendment, And Freedom: Why Backpage.Com Should Be Prevented From Selling America's Children For Sex, Anna Makatche

Fordham Urban Law Journal

No abstract provided.

A Fair Trial: When The Constitution Requires Attorneys To Investigate Their Clients' Brains, Ellen G. Koenig

Fordham Urban Law Journal

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in …

Shakin' And Bakin': The Supreme Court's Remarkable Criminal Law Rulings Of The 1999 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Fixing Bail, Samuel R. Wiseman

Scholarly Publications

A large portion of the jail population consists of criminal defendants whose guilt has yet to be established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford the bond set by a …

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman

Fordham Urban Law Journal

No abstract provided.

Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez

Fordham Urban Law Journal

No abstract provided.

Keynote Address, Justice John Paul Stevens (Ret.)

University of Miami Law Review

No abstract provided.

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

"I Plead The Fifth": New York's Integrated Domestic Violence Courts And The Defendant's Fifth Amendment Dilemma, Rhona Mae Amorado

Touro Law Review

No abstract provided.

The Antidemocratic Sixth Amendment, Janet Moore

Faculty Articles and Other Publications

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new …

Kelley V. State, 132 Nev. Adv. Op. 32 (Apr. 28, 2016), Mackenzie Warren

Nevada Supreme Court Summaries

The Court determined (1) the charge of misdemeanor reckless driving, NRS § 484B.653(1)(a) is a lesser included offense of felony eluding a police officer, NRS 484B.550(3)(b) and thus, (2) the appellant may not be punished for both crimes because the Double Jeopardy Clause prohibits such conviction.

The Firing Squad As "A Known And Available Alternative Method Of Execution" Post-Glossip, Deborah W. Denno

University of Michigan Journal of Law Reform

This Article does not address the medical debate surrounding the role of midazolam in executions; the problems associated with using the drug have been persuasively argued elsewhere. Nor does it question the soundness of the Glossip Court’s “alternative method of execution” requirement. Rather, this Article’s proposed reform is a constitutionally acceptable alternative that meets the Glossip Court’s standard, rendering moot—at least for the purposes of the following discussion—very real concerns regarding the validity of that dictate. Part I of this Article pinpoints several areas where the Glossip Court goes wrong in glaringly inaccurate or misleading ways, given the vast history …

The Second Amendment In The 21st Century: An In-Depth Examination Of Firearm Freedoms And Their Relationship With Public Safety And Interests, Mathew E. Klein

Honors Undergraduate Theses

One of the most hotly contested topics in the world today revolves around an object. An object that has caused debate among all members of society both in the United States, and all across the globe. But how could an object, something that on its own does nothing, spur such heated argument? This object is the evolution of invention and the product of fighting amongst each other. This object changes the way people think and how they act. This object can be used for both good and bad. This object is a gun.

This research project will explore the Second …

The Inequality Of America's Death Penalty: A Crossroads For Capital Punishment At The Intersection Of The Eighth And Fourteenth Amendments, John Bessler

All Faculty Scholarship

We live in a divided society, from gated communities to cell blocks congested with disproportionate numbers of young African-American men. There are rich and poor, privileged and homeless, Democrats and Republicans, wealthy zip codes and stubbornly impoverished ones. There are committed "Black Lives Matter" protesters, and there are those who—invoking "Blue Lives Matter" demonstrate in support of America‘s hardworking police officers. In her new article, "Matters of Strata: Race, Gender, and Class Structures in Capital Cases," George Washington University law professor Phyllis Goldfarb highlights the stratification of our society and offers a compelling critique of America‘s death penalty regime—one, she …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Faculty Scholarship

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant …

Taking Dignity Seriously: Excavating The Backdrop Of The Eighth Amendment, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The U.S. punishment system is in turmoil. We have a historically unprecedented number of offenders in prison, and our prisoners are serving longer sentences than in any other country. States are surreptitiously experimenting with formulas for lethal injection cocktails, and some prisoners are suffering from botched executions. Despite this tumult, the Eighth Amendment of our Constitution does place limits on the punishments that may be imposed and how they may be implemented. The difficulty, though, is that the Supreme Court’s Eighth Amendment jurisprudence is a bit of a mess. The Court has been consistent in stating that a focus on …

When Society Becomes The Criminal: An Exploration Of Society’S Responsibilities To The Wrongfully Convicted, Amelia A. Haselkorn

Pitzer Senior Theses

This thesis explores how society can and should compensate those who have been wrongfully convicted after they are exonerated and how we can prevent these mistakes from happening to others in the future. It begins by presenting research on the scope of the problem. Then it suggests possible reforms to the U.S. justice system that would minimize the rate of innocent convictions. Lastly, it takes both a philosophical and political look at what just compensation would entail as well as a variety of state compensation laws.

For The Protection Of Society's Most Vulnerable, The Ada Should Apply To Arrests, Thomas J. Auner

Loyola of Los Angeles Law Review

No abstract provided.

Ignorance Of The Law Is No Excuse—Unless You’Re A Cop, Hannah Dunn

Loyola of Los Angeles Law Review

No abstract provided.

A Defendant's Fifth Amendment Right And Double Jeopardy In Contempt Cases, Saba Khan

Touro Law Review

No abstract provided.

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Prosecutorial Ventriloquism: People V. Tom And The Substantive Use Of Post-Arrest, Pre-Miranda Silence To Infer Consciousness Of Guilt, Joshua Bornstein

Loyola of Los Angeles Law Review

No abstract provided.

Model Or Anti-Model? U.S. Regulatory Takings Doctrine In Foreign Jurisdictions, Melanie Benesh

Cardozo Journal of International and Comparative Law

Canada and Australia have taken a different approach to regulatory takings than Peru, despite some similarities among the countries. Like Peru, Canada and Australia both have IIAs with the United States. Like Peru, both have also addressed regulatory takings issues in their domestic jurisprudence since signing those IIAs. And like Peru, both Canada and Australia have looked to U.S. regulatory takings doctrine while developing their own domestic jurisprudence. However, unlike Peru, Canada and Australia have both ultimately decided that the U.S. regulatory takings doctrine would not be viable in their constitutional and political systems. They view U.S. regulatory takings doctrine …

Unintended Lawlessness Of Stand Your Ground: Justitia Fiat Coelum Ruat, Ann Marie Cavazos

Journal Publications

This paper will examine Florida's Stand Your Ground law by analyzing the origins and purpose of the law, vis-a-vis comparative analysis, and by discussing the application of this law. It will compare the stories of victims and further dissect the necessity and benefits of the Stand Your Ground laws, and examine in particular how it has affected the citizens of Florida and the nation. This Article will examine unforeseen outcomes derived from the enactment of a law meant for the common good and will further discuss how the Castle Doctrine evolved into the current Stand Your Ground laws. It will …

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …

The Ninth Circuit's Decision In Von Saher V. Norton Simon Museum Of Art At Pasadena: The Invocation Of The Act Of State Doctrine And Its Implications For Future Nazi-Stolen Art Claims, Erica Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …