Criminal Law Commons^™

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Faculty Scholarship

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President — the “highest” and most powerful of all government officers — is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article …

Defining Civil Rico's "Injury To Business Or Property" Requirement: The Supreme Court Takes A Few Steps, Says It Punts, But Actually Fumbles, Randy D. Gordon

Faculty Scholarship

Throughout its history, the RICO statute has presented lawyers with something of an interpretive parlor game. It is indefinite along multiple dimensions and thereby given multiple interpretations, even down to the word level. In Medical Marijuana v. Horn, the Supreme Court set out to define one of RICO's civil-standing provisions: Namely, whether the statute's "injury to business or property" requirement can be satisfied when a plaintiff suffers both economic and personal injuries. In a 5-4 decision, members of the Court engaged in an interpretive battle over the meaning of the phrase and succeeded only in holding that civil RICO does …

Excavating Miranda, Samuel J. Levine

Scholarly Works

Sixty years after it was decided, Miranda v. Arizona remains one of the most significant and renowned cases—as well as, arguably, one of the most controversial cases—in the history of the United States. Chief Justice Earl Warren’s majority opinion, establishing the eponymous Miranda warnings for custodial interrogation of criminal suspects, has prompted voluminous and continuing commentary, among both critics and supporters. This Article is part of an ongoing project exploring a particular aspect of Chief Justice Warren’s majority opinion: a footnote referencing Jewish legal sources, documenting an important passage at the start of a pivotal section of the opinion.

Building …

Modern Challenges To Mandatory Immigration Detention: Building Constitutional Walls Around Statutory Expansions, Timothy Zurcher

St. John's Law Review

(Excerpt)

Pierre Michel arrived in the United States from Haiti at three years old as a Lawful Permanent Resident (“LPR”). After developing substance abuse issues in his adolescence, Michel received several nonviolent criminal convictions and was detained in contemplation of his deportation. Nearly two years later, Michel was finally released after successfully petitioning for Cancellation of Removal. Michel had no opportunity to obtain his freedom sooner, despite his clear eligibility for relief. Like Michel, in 2003, student Sylvester Owino pled guilty to second-degree robbery without understanding the immigration consequences of his conviction. After serving over two years in prison, Owino …

On Becoming And Being A Criminal Defense Attorney, Steven B. Duke

Touro Law Review

Steven B. Duke grew up in a tiny farming community in Arizona. In college, he experienced injustice during an encounter with the police and decided to attend law school. As a result of his success at the University of Arizona Law School, Duke was offered a clerkship with Justice William O. Douglas for the 1959-60 Supreme Court term. As Duke describes in this article, working for Justice Douglas was a rewarding and demanding experience. Douglas, probably the most liberal Justice ever to serve on the Supreme Court, had a dazzling intellect and wrote many books on all manner of subjects. …

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

How Does The Modern Supreme Court Treat The Idea Of Retribution In The Context Of Capital Punishment?, Paige Forsberg

Honors Undergraduate Theses

This thesis explores the modern U.S. Supreme Court's treatment of retribution in the context of capital punishment, analyzing how justices have framed and justified the death penalty as a form of justice. Through the examination of key Supreme Court rulings and legal arguments, this study evaluates the evolving role of retribution in the Court’s decisions on death penalty cases, highlighting how judicial reasoning has shifted over time in response to legal, philosophical, and societal developments.

Retribution, long considered one of the primary justifications for capital punishment, is examined through a nuanced lens in this study. While historically viewed as a …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered …

Arrests: Legal And Illegal, Daniel Yeager

Georgia State University Law Review

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot.

Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

Pyrrhic Victories: The Mirage Of Winning At The Supreme Court, Tonja Jacobi, Clare G. Willis

Faculty Articles

We conduct in-depth archival research of landmark constitutional criminal procedure cases and find two ways in which the declarations of the vindication of rights they contain are misleading. First, most defendants who successfully establish police violations of their constitutional rights before the highest court in the land nonetheless remain in prison for years or decades subsequently. The multitude of ways in which the state can convict the individual defendant even in the face of one or more constitutional violations means that the Supreme Court precedents that bear their names seldom translate to genuine wins for the defendants. Second, there are …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Case Law On American Indians: October 2022 - August 2023, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Texas Juvenile Justice: The Need For A “Second Look” At Juvenile Prison Sentences, Kyle Jenkins

St. Mary's Law Journal

No abstract provided.

Sebuah Kerangka Teoretis Hubungan Institusional Berbasis Konstitusionalisme, Titon Slamet Kurnia

Jurnal Hukum & Pembangunan

This article discusses legal issue pertaining to institutional relationship between the Constitutional Court and the Supreme Court in case of constitutional interpretation, particularly the bindingness of the Constitutional Court’s opinion over the Supreme Court. Responding the issue, this article conveys departmentalist view, and rejects judicial supremacist view within the Constitutional Court in prescribing the constitutional interpretation authority. In line with departmentalism, this article argues that the Supreme Court should be given authority in constitutional interpretation, concurrent with the Constitutional Court. It is further argued that constitutional interpretation should be viewed as constitutional discourse in which the Supreme Court should be …

Enticing The Supreme Court To Hold That Physical Contact Is Not Required To Violate The Child Enticement Statute, Cassidy Eckrote

Dickinson Law Review (2017-Present)

The sexual exploitation of children is a growing problem in the United States. Fifty years ago, parents feared their child getting kidnapped or approached by a predator in the park. Parents today fear their child being preyed upon through the internet. As technology continues to advance, child predators satisfy their depraved desires without ever stepping foot near their victim. In response to the danger of the sexual exploitation of children, the federal government enacted the child enticement statute, codified at 18 U.S.C. § 2422(b). The statute criminalizes the enticement of a minor to engage in sexual activity. Because the federal …

Activist Extremist Terrorist Traitor, J. Richard Broughton

St. John's Law Review

(Excerpt)

Abraham Lincoln had a way of capturing, rhetorically, the national ethos. The “house divided.” “Right makes might” at Cooper Union. Gettysburg’s “last full measure of devotion” and the “new birth of freedom.” The “mystic chords of memory” and the “better angels of our nature.” “[M]alice toward none,” “charity for all,” and “firmness in the right.” But Lincoln not only evaluated America’s character; he also understood the fragility of those things upon which the success of the American constitutional experiment depended, and the consequences when the national ethos was in crisis. Perhaps no Lincoln speech better examines the threats to …

No Sense Of Decency, Kathryn E. Miller

Washington Law Review

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

Navigating Between "Politics As Usual" And Sacks Of Cash, Daniel C. Richman

Faculty Scholarship

Like other recent corruption reversals, Percoco was less about statutory text than what the Court deems “normal” politics. As prosecutors take the Court’s suggestions of alternative theories and use a statute it has largely ignored, the Court will have to reconcile its fears of partisan targeting and its textualist commitments

Rewriting Whren V. United States, Devon W. Carbado, Jonathan Feingold

Faculty Scholarship

In 1996, the U.S. Supreme Court decided Whren v. United States—a unanimous opinion in which the Court effectively constitutionalized racial profiling. Despite its enduring consequences, Whren remains good law today. This Article rewrites the opinion. We do so, in part, to demonstrate how one might incorporate racial justice concerns into Fourth Amendment jurisprudence, a body of law that has long elided and marginalized the racialized dimensions of policing. A separate aim is to reveal the “false necessity” of the Whren outcome. The fact that Whren was unanimous, and that even progressive Justices signed on, might lead one to conclude that …

The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon

Helm's School of Government Conference - 2021-2024

Paper presentation on the Supreme Court's outdated case law on obscenity and how it needs to be modernized to in order to combat the dissemination of inappropriate materials in the age of decentralized digital media.

The Insidious Effect Of Soundbites: Why Fences Aren't Punishment, Theresa Gabaldon

American University Law Review

This Article was inspired by two recent Supreme Court decisions dealing with the ability of the Securities and Exchange Commission to seek disgorgement of unlawfully obtained profits. The topic, however, is not disgorgement. That is a different article, published by the author in the Cornell Lazu Reviezu in 2020, on which this one builds. This Article focuses instead on jurisprudential methodology. The Court has begun to exhibit an unfortunate penchant for jurisprudence by soundbite—the functional equivalent of Googling its ozun precedents for pithy quotes taken out of context from inapt cases. The results are, to put it politely, mischievous.

This …

This Is Your Captain Speaking, Please Remain Physically Restrained While The Robbery Is In Progress, Conner J. Purcell

Touro Law Review

This note analyzes the current circuit split over the application of the “Physical Restraint” sentence enhancement as applied to the crime of robbery. In the first camp, the circuit courts apply a broad or constructive meaning of physical restraint: allowing words or demands with the use of a firearm to trigger the enhancement. In many cases, the courts focus on the victim’s reaction to the perpetrator rather than the perpetrator’s actual conduct, suggesting psychological restraint rather than physical restraint. In the second camp, the circuit courts apply a plain meaning interpretation of physical restraint. These cases routinely find that the …

“I Was Just A Kid”: Addressing The Collateral Consequences Of A Juvenile Record On Employment, Lauren Wray

Touro Law Review

There is a common myth that juvenile records are confidential, when in fact only nine states fully prohibit public access to juvenile records. Landlords, employers, and educators in a majority of states may ask questions about a juvenile’s record. Studies have shown that employers are less likely to hire an applicant who has a juvenile delinquency, and that many employers may not be able to differentiate between a juvenile and adult record. This Note reviews the intersectional flaws of the New York juvenile justice system and the New York labor laws. Specifically, it evaluates policies New York has implemented with …

Requiring What’S Not Required: Circuit Courts Are Disregarding Supreme Court Precedent And Revisiting Officer Inadvertence In Cyberlaw Cases, Michelle Zakarin

Scholarly Works

As the age of technology has taken this country by surprise and left us with an inability to formally prepare our legal system to incorporate these advances, many courts are forced to adapt by applying pre-technology rules to new technological scenarios. One illustration is the plain view exception to the Fourth Amendment. Recently, the issue of officer inadvertence at the time of the search, a rule that the United States Supreme Court has specifically stated is not required in plain view inquiries, has been revisited in cyber law cases. It could be said that the courts interested in the existence …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Seeing Color: America's Judicial System, Elizabeth Poulin

Senior Honors Projects

In many eyes, it often seems as though being white in America is easy, or a privilege. Being white in America is considered a safety blanket, with an abundance of opportunities beneath it. Yet, how does a physical difference such as skin color manifest itself as privilege? Noticing color is not wrong, hateful, or oppressive. Even children notice color, and we define them as the ultimate innocence. But in fact, skin color is often a trigger. When the world has preconceived notions about people of color, an oppressive system designed to harm people who have never done anything to deserve …