Constitutional Law Commons^™

Casting New Light On An Old Subject: Death Penalty Abolitionism For A New Millennium, Wayne A. Logan

Michigan Law Review

For opponents of capital punishment, these would appear promising times. Not since 1972, when the Supreme Court invalidated the death penalty as then administered, has there been such palpable concern over its use, reflected in the lowest levels of public opinion support evidenced in some time. This concern is mirrored in the American Bar Association's recently recommended moratorium on use of the death penalty, the consideration of or actual imposition of moratoria in several states, and even increasing doubts voiced by high-profile political conservatives. An array of troubling empirical realities has accompanied this shift: persistent evidence of racial bias in …

The Concept Of Equality In Civil Procedure, William B. Rubenstein

Cardozo Law Review

No abstract provided.

Do Attorneys Really Matter? The Empirical And Legal Case For The Right Of Counsel At Bail, Douglas L. Colbert, Ray Paternoster, Shawn Bushway

Cardozo Law Review

No abstract provided.

Constitutional And Criminal Law—Eighth Amendment—Now You Can't Do That: Disproportionate Prison Sentences As Cruel And Unusual Punishment. Henderson V. Norris, 258 F.3d 706 (8th Cir. 2001)., Ray S. Pierce

University of Arkansas at Little Rock Law Review

No abstract provided.

We Can Do This The Easy Way Or The Hard Way: The Use Of Deceit To Induce Consent Searches, Rebecca Strauss

Michigan Law Review

In October of 1995, Aaron Salvo was studying and living at Ashland College. College officials informed local FBI agents that they suspected Salvo of possible child molestation and related conduct based on incriminating electronic mail. FBI agents approached Salvo at his dormitory, asked to speak with him in private about the suspicious mail, and suggested they speak in Salvo's dorm room. Salvo agreed to speak with the officers, but declined to do so in his room because his roommate was there, and he did not want to get anyone else involved in the embarrassing nature of the upcoming conversation. Salvo …

Miranda's Final Frontier - The International Arena: A Critical Analysis Of U.S. V. Bin Laden, And A Proposal For A New Miranda Exception Abroad, Mark A. Godsey

Faculty Articles and Other Publications

In recent years, the FBI and other federal law agencies have greatly expanded their presence abroad, investigating everything from narcotics trade and internet fraud schemes to terrorism. This trend will undoubtedly continue in the aftermath of September 11th. A constitutional question that will be of increasing importance in this context is whether, or to what extent, U.S. law enforcement officials (hereinafter "FBI") must provide Miranda warnings to non-U.S. citizens interrogated abroad who will later be tried in the United States.

The article first addresses whether future modifications to the Miranda doctrine are permissible after Dickerson. The article concludes that despite …

Justice By The Numbers: The Supreme Court And The Rule Of Four-Or Is It Five?, Ira Robbins

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In the early hours of April 14, 2000, Robert Lee Tarver died in Alabama's electric chair, even though four Justices of the United States Supreme Court had voted to review the merits of his case. This situation is not unique. Each year, practitioners and pro se litigants alike petition the Supreme Court without fully knowing the rules pursuant to which the Court will decide their client's, or their own, fate. The reason is that the Supreme Court operates under two sets of rules-those that are published and those that are not. The former specify This Article is based on …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman

Publications

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

See Part II at http://scholar.law.colorado.edu/articles/551/.

Do Jury Trials Encourage Harsh Punishment In The United States?, William T. Pizzi

Publications

No abstract provided.

The Conundrum Of Children, Confrontation, And Hearsay, Richard D. Friedman

Articles

The adjudication of child abuse claims poses an excruciatingly difficult conundrum. The crime is a terrible one, but false convictions are abhorrent. Often the evidence does not support a finding of guilt or innocence with sufficient clarity to allow a decision free of gnawing doubt. In many cases, a large part of the problem is that the prosecution's case depends critically on the statement or testimony of a young child. Even with respect to adult witnesses, the law of hearsay and confrontation is very perplexing, as anyone who has studied American evidentiary law and read Supreme Court opinions on the …

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.

Dial-In Testimony, Richard D. Friedman, Bridget Mary Mccormack

Articles

For several hundred years, one of the great glories of the common law system of criminal justice has been the requirement that prosecution witnesses give their testimony in the presence of the accused" face to face," in the time-honored phrase-under oath, subject to cross-examination, and, unless unfeasible, in open court. In the United States, this principle is enshrined in the Confrontation Clause of the Sixth Amendment, which provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." But now a new way is developing for witnesses for the prosecution …

Proposed Amendments To Fed. R. Crim. P. 26: An Exchange: Remote Testimony, Richard D. Friedman

Articles

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in …

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Akron Law Faculty Publications

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished …

The Pathological Politics Of Criminal Law, William J. Stuntz

Michigan Law Review

Substantive criminal law defines the conduct that the state punishes. Or does it? If the answer is yes, it should be possible, by reading criminal codes (perhaps with a few case annotations thrown in), to tell what conduct will land you in prison. Most discussions of criminal law, whether in law reviews, law school classrooms, or the popular press, proceed on the premise that the answer is yes. Law reform movements regularly seek to broaden or narrow the scope of some set of criminal liability rules, always on the assumption that by doing so they will broaden or narrow the …

Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer

Cornell Law Faculty Publications

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs …

The Limits Of Localism, Richard C. Schragger

Michigan Law Review

In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang …

When Constitutional Worlds Colide: Resurrecting The Framers' Bill Of Rights And Criminal Procedure, George C. Thomas Iii

Michigan Law Review

For two hundred years, the Supreme Court has been interpreting the Bill of Rights. Imagine Chief Justice John Marshall sitting in the dim, narrow Supreme Court chambers, pondering the interpretation of the Sixth Amendment right to compulsory process in United States v. Burr. Aaron Burr was charged with treason for planning to invade the Louisiana Territory and create a separate government there. To help prepare his defense, Burr wanted to see a letter written by General James Wilkinson to President Jefferson. In ruling on Burr's motion to compel disclosure, Marshall departed from the literal language of the Sixth Amendment - …

Constitutional Criminal Procedure, James P. Fleissner, Sarah B. Mabery, Jeanne L. Wiggins

Mercer Law Review

This Article surveys noteworthy 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly known as Constitutional Criminal Procedure. As in past years, the survey focuses on significant decisions concerning the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's privilege against self-incrimination, prohibition against double jeopardy, and guarantees of due process and grand jury screening; and the Sixth Amendment's procedural protections, including the right to counsel and the right of confrontation. Of course, most of these rights, with few exceptions, such as the right to have charges approved by a …

True Threats: Evolving Mens Rea Requirements For Violations Of 18 U.S.C. § 875(C), Justin Myer Lichterman

Cardozo Law Review

No abstract provided.

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

The Death Penalty, Mandatory Prison Sentences, And The Eighth Amendment's Rule Against Cruel And Unusual Punishments, Jamie Cameron

Osgoode Hall Law Journal

The text of section 12 of the Canadian Charter of Rights and Freedoms and the Eighth Amendment to the United States Constitution prohibit cruel and unusual punishment in language that is similar but not identical. Still, in considering constitutional restrictions on punishment, the deviations of the Supreme Court both focus on the concept of gross disproportionality between the offence committed and the state’s response. Despite the appearance of similarity, this article maintains that differences in the American law of sentencing explain why Canada ought not follow or adopt the United States approach to minimum sentences.

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt of …

Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Disarming Canadians, And Arming Them With Tolerance: Banning Firearms And Minimum Sentences To Control Violent Crime--An Essay On An Apparent Contradiction, Helene Dumont

Osgoode Hall Law Journal

In an article published in French in 1997, the author offered reflections on feminism and criminal law that would allow for a better control of violent crime, without Parliament having to resort to excessively severe sentences. In this respect, she argued that there was no contradiction in supporting the radical ban of firearms in Canada, while opposing a minimum sentence of four years under the Firearms Act, which currently affects approximately ten serious Criminal Code offences. After setting out her position in favour of the "disarmament" of Canadians, the author argued that minimum sentences of four years were unconstitutional. Such …

Searching For Smith: The Constitutionality Of Mandatory Sentences, Kent Roach

Osgoode Hall Law Journal

The jurisprudence of the Supreme Court of Canada on the constitutionality of mandatory minimum sentences, from R. v. Smith to R. v. Latimer, is reviewed and assessed in light of relevant developments in constitutional law and sentencing. These include the Supreme Courts increasing interest in constitutional minimalism and corresponding reluctance to rely on hypothetical offenders and facial declarations of invalidity. The manner in which the Court's increasing concern for crime victims and fault levels has been used to justify upholding mandatory sentences is examined. The author also relates this jurisprudence to trends in sentencing, including an increasing acceptance of mandatory …

Identifying And (Re)Formulating Prophylactic Rules, Safe Harbors, And Incidental Rights In Constitutional Criminal Procedure, Susan R. Klein

Michigan Law Review

The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall. If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part …

The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell

Michigan Law Review

Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.

Miranda, Dickerson, And The Puzzling Persistence Of Fifth Amendment Exceptionalism, Stephen J. Schulhofer

Michigan Law Review

Dickerson v. United States preserves the status quo regime for judicial oversight of police interrogation. That result could be seen, in the present climate, as a victory for due process values, but there remain many reasons for concern that existing safeguards are flawed - that they are either too restrictive or not restrictive enough. Such concerns are partly empirical, of course. They depend on factual assessments of how much the Miranda rules do restrict the police. But such concerns also reflect a crucial, though often unstated, normative premise; they presuppose a certain view of how much the police should be …