Criminal Law Commons^™

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

Najar V. State Of Israel, Elyakim Rubinstein, Miriam Naor, Yonatan Adiel

Translated Opinions

Facts: The appellant, a Bedouin, stabbed his sister to death. Initially, he said that the reason why he did this was that his sister, who was unmarried, intended to travel alone to Egypt, and this would dishonour the family. At his trial, the appellant testified that in addition his sister had made a statement questioning his paternity of his children. The appellant claimed that the killing of his sister was the result of provocation, and therefore he should be convicted of manslaughter rather than murder. Inter alia he argued that the court should take into account the fact that in …

Miranda And Reasonableness, Peter B. Rutledge

Scholarly Works

Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

Pursuing Justice For The Mentally Disabled, Grant H. Morris

University of San Diego Public Law and Legal Theory Research Paper Series

This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …

Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar

University of San Diego Public Law and Legal Theory Research Paper Series

It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.

In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

Apprendi's Limits, R. Craig Green

University of Richmond Law Review

No abstract provided.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

Constitutional Law—The Fourth Amendment Challenge To Dna Sampling Of Arrestees Pursuant To The Justice For All Act Of 2004: A Proposed Modification To The Traditional Fourth Amendment Test Of Reasonableness, Kimberly A. Polanco

University of Arkansas at Little Rock Law Review

No abstract provided.

Cleaning Up The Eighth Amendment Mess, Tom Stacy

ExpressO

This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.

In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …

Book Review: Forensic Linguistics, Dru Stevenson

ExpressO

Review of John Gibbons' text "Forensic Linguistics"

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

The Unconstitutionality Of "Hold Until Cleared": Reexamining Material Witness Detentions In The Wake Of The September 11th Dragnet, Ricardo J. Bascuas

Articles

No abstract provided.

Revoke First, Ask Questions Later: Challenging Minnesota’S Unconstitutional Pre-Hearing Revocation Scheme, Jeffrey S. Sheridan, Erika Burkhart Booth

William Mitchell Law Review

This analysis of the constitutionality of Minnesota’s prehearing revocation scheme begins by explaining the mechanics of Minnesota’s implied consent statute. Because the United States Supreme Court has established minimum procedural due process protections that must be afforded drivers, this backdrop is examined. After considering the federal standards for procedural due process, the numerous changes to Minnesota’s implied consent statute will be addressed. Next, the current challenge will be discussed, including the factual basis for the challenge, the arguments for the statute’s unconstitutionality, and the district court’s decision. Finally, this note will conclude that, given the dramatic increase in the private …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Maryland Law Review

No abstract provided.

Surviving Racism And Sexual Assault: American Indian Women Left Unprotected, Talib Ellison

The Modern American

No abstract provided.

Balancing A Burning Cross: The Court And Virginia V. Black, 38 J. Marshall L. Rev. 1205 (2005), Jason A. Abel

UIC Law Review

No abstract provided.

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

Lawrence Beyond Gay Rights: Taking The Rationality Requirement For Justifying Criminal Statutes Seriously, 53 Drake L. Rev. 231 (2005), Donald L. Beschle

UIC Law Open Access Faculty Scholarship

No abstract provided.

Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina

University of Michigan Journal of Law Reform

This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created …

Survey Of Washington Search And Seizure Law: 2005 Update, Justice Charles W. Johnson

Seattle University Law Review

This article serves as a source to which the Washington lawyer, judge, law enforcement officer, and others can turn to as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, revisions to the law and new cases interpreting the Washington Constitution and the United States Constitution require periodic updates to this Survey to reflect the current state of the law. Many of these cases involve the Washington Supreme Court's interpretation of the Washington Constitution. Also, as the United States Supreme Court has continued to examine Fourth Amendment search and …

Violating The Inviolable: Firearm Industry Retroactive Exemptions And The Need For A New Test For Overreaching Federal Prohibitions, 38 J. Marshall L. Rev. 955 (2005), James L. Daniels

UIC Law Review

No abstract provided.

Constitutional Law—Fourth Amendment—Knock And Announce: The Ninth Circuit Knocks And The Supreme Court Announces A Re-Emphasis On The Case-By-Case Analysis.United States V. Banks, 540 U.S. 31 (2003), Erin Elizabeth Cassinelli

University of Arkansas at Little Rock Law Review

No abstract provided.

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

Note: The Earthquake That Will Move Sentencing Discretion Back To The Judiciary? Blakely V. Washington And Sentencing Guidelines In Minnesota, Matthew R. Kuhn

William Mitchell Law Review

This Note begins by briefly laying out the evolution of criminal sentencing over the past century. It then surveys judicial interpretation of defendants’ Constitutional rights as they relate to sentencing procedure, focusing on the Court’s recent invalidation of Washington state’s sentencing guidelines in Blakely v. Washington. The note will then examine possible reforms to Minnesota’s sentencing guidelines pursuant to the Court’s decision. It will conclude by advocating that, despite the recent spotlight on Kansas’s sentencing guidelines, Minnesota’s best response to Blakely is to return some sentencing discretion to the judiciary by implementing a system of voluntary guidelines.

Chained To The Past: An Overview Of Criminal Expungement Law In Minnesota —State V. Schultz , Jon Geffen, Stefanie Letze

William Mitchell Law Review

This article explains Minnesota’s expungement law and analyzes a recent Minnesota Court of Appeals decision that limits the expungement remedy. Specifically, this article begins by examining the effects of a criminal record and the purposes of expungement.8 An expungement’s main purpose is to seal an individual’s criminal record from public view, thereby allowing the individual to fully reintegrate into society. This article then provides an overview of current expungement law and its history. This article also explains different types of criminal records and the different mechanisms used to seal each type of record. The focus of this article is on …