Constitutional Law Commons^™

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 …

Digital Technology And Analog Law: Cellular Location Data, The Third-Party Doctrine, And The Law‘S Need To Evolve, Justin Hill

Law Student Publications

This comment explores how broader shifts in Fourth Amendment doctrine may affect the government's collection of Cell Site Location Information (CSLI) moving forward. It consists of three parts. Part I examines the technological underpinnings of cellular networks. The issue is frequently litigated, but few in the legal community have a real grasp on the technology. A nuanced understanding of the technology is crucial when examining the accuracy of CSLI or how the third-party doctrine ought to apply. This comment consolidates and simplifies the technical workings of cellular networks to enable better and more informed answers. Last, drawing on this understanding, …

Stingrays, Triggerfish, And Hailstroms, Oh My: The Fourth Amendment Implications Of The Increasing Government Use Of Cell-Site Simulators, Jenna Jonassen

Touro Law Review

No abstract provided.

That's What She Said: An Evaluation Of Whether Hearsay Exceptions Should Be Permitted In Accusatory Instruments, Andrea Laterza

Touro Law Review

No abstract provided.

The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams

Law Student Publications

George Orwell's dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents- under a single warrant- to "remotely access," and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device's location is obscured through "technological means," or if agents are investigating computer crimes in five or more districts- regardless of whether …

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

Roger Williams University Law Review

No abstract provided.

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

The Downstream Consequences Of Misdemeanor Pretrial Detention, Paul Heaton, Sandra G. Mayson, Megan Stevenson

Scholarly Works

In misdemeanor cases, pretrial detention poses a particular problem because it may induce innocent defendants to plead guilty in order to exit jail, potentially creating widespread error in case adjudication. While practitioners have long recognized this possibility, empirical evidence on the downstream impacts of pretrial detention on misdemeanor defendants and their cases remains limited. This Article uses detailed data on hundreds of thousands of misdemeanor cases resolved in Harris County, Texas—the thirdlargest county in the United States—to measure the effects of pretrial detention on case outcomes and future crime. We find that detained defendants are 25% more likely than similarly …

Firearms In The Family, Carolyn B. Ramsey

Publications

This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of …

An Expressive Theory Of Privacy Intrusions, Craig Konnoth

Publications

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms "expressive."

Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by …

Federal Review Of State Criminal Convictions: A Structural Approach To Adequacy Doctrine, Eve Brensike Primus

Michigan Law Review

Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights—like the right to effective counsel—persist without judicial correction.

But the law contains a tool that, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore …

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

First They Came For The Child Pornographers: The Fbi's International Search Warrant To Hack The Dark Web, Zoe Russell

St. Mary's Law Journal

Abstract forthcoming.

Our Criminal Laws, Our Constitution, Sarah Seo

Faculty Scholarship

This essay reviews three recently published books that further explore this insight in the twentieth century. At first glance, vagrancy laws, the free will problem, and criminal records may seem to share little in common. But each study illuminates how criminal laws have defined our nation by creating what historian Barbara Welke has termed "borders of belonging," a boundary that laws create between people who enjoy full citizenship and those who do not. After all, a conviction and imprisonment are acts of social and political exclusion. Even the policing of suspected offenders often reveals who does not completely belong.

The …

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

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 to …

Waiver Of Immunity - Public Officials, Robert E. Parella

The Catholic Lawyer

No abstract provided.

The Insular Citizens: America's Lost Electorate V. Stare Decisis, Nathan Muchnick

Cardozo Law Review

The note examines the historical and ongoing implications of the Insular Cases, which established a form of colonial governance over U.S. territories like Puerto Rico, denying residents full citizenship rights. It argues that these cases, rooted in outdated political and racial biases, contradict modern democratic principles and urges the Supreme Court to overturn this precedent to enfranchise Puerto Rican citizens.

Brief Of Appellant, Abdullah Malik Joppy A/K/A Richard Joppy V. State Of Maryland, No. 533, Paul Dewolfe, Renée M. Hutchins, Peter Honnef

Court Briefs

No abstract provided.

Brief Of Appellant, Davon Jones V. State Of Maryland, No. 547, Paul Dewolfe, Renée M. Hutchins, Matthew T. Healy

Court Briefs

No abstract provided.

Brief Of Appellant, John Hill V. State Of Maryland, No. 2740, Paul Dewolfe, Renée M. Hutchins, Silva Georgian

Court Briefs

No abstract provided.

Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch

Florida State University Law Review

No abstract provided.

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein

Fordham Law Review

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen Henderson

Other Faculty Publications

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.My topic is not an easy one. The constitutional law is …

New Approaches To Data-Driven Civilian Oversight Of Law Enforcement: An Introduction To The Second Nacole/Cjpr Special Issue, Daniel L. Stageman, Nicole M. Napolitano, Brian Buchner

Publications and Research

In April of 2016, National Association for Civilian Oversight of Law Enforcement (NACOLE) and John Jay College partnered to sponsor the Academic Symposium “Building Public Trust: Generating Evidence to Enhance Police Accountability and Legitimacy.” This essay introduces the Criminal Justice Policy Review Special Issue featuring peer-reviewed, empirical research papers first presented at the Symposium. We provide context for the Symposium in relation to contemporary national discourse on police accountability and legitimacy. In addition, we review each of the papers presented at the Symposium, and provide in-depth reviews of each of the manuscripts included in the Special Issue.

A Legal Obituary For Ramiro, Sheri Lynn Johnson

University of Michigan Journal of Law Reform

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter …

Fast-Track To Injustice: Rapidly Deporting The Mentally Ill, Aimee L. Mayer-Salins

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Moving Beyond Miranda: Concessions For Confessions, Scott W. Howe

Northwestern University Law Review

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, …

“Criminal Records” - A Comparative Approach, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.