Criminal Procedure Commons^™

An Empirical Assessment Of Georgia’S Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Georgia State University Law Review

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

A Comparative Approach To Counter-Terrorism Legislation And Legal Policy, Paul David Hill Jr

Senior Honors Theses

Since the 9/11 attacks, American legislation and legal policy in regards to classifying and processing captured terrorists has fallen short of being fully effective and lawful. Trial and error by the Bush and Obama administrations has uncovered two key lessons: (1) captured terrorists are not typical prisoners of war and thus their detainment must involve more legal scrutiny than the latter; and (2) captured terrorists are not ordinary criminals and thus the civilian criminal court system, due to constitutional constraints, is not capable of adequately trying every count of terrorism. Other nations, including France and Israel, approach this problem with …

Proportionality Skepticism In A Red State, Lauren Sudeall Lucas

Faculty Publications By Year

Commentary on Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (2016).

Justice Scalia, Implied Rights Of Action, And Historical Practice, Anthony J. Bellia Jr.

Journal Articles

In the realm of Federal Courts, the question of “implied rights of action” asks when, if ever, may a plaintiff bring a federal right of action for the violation of a federal statute that does not expressly create one. Justice Scalia argued that a court should not entertain an action for damages for the violation of a federal statute unless the text of the statute demonstrates that Congress meant to create a right of action. The Supreme Court adopted this approach in 2001 in Alexander v. Sandoval, with Justice Scalia writing for the majority. Certain judges and scholars have argued …

Disentangling Miranda And Massiah: How To Revive The Sixth Amendment Right To Counsel As A Tool For Regulating Confession Law, Eve Brensike Primus

Articles

Fifty years after Miranda v. Arizona, many have lamented the ways in which the Burger, Rehnquist, and Roberts Courts have cut back on Miranda's protections. One underappreciated a spect of Miranda's demise is the way it has affected the development of the pretrial Sixth Amendment right to counsel guaranteed by Massiah v. United States. Much of the case law diluting suspects' Fifth Amendment Miranda rights has bled over into the Sixth Amendment right to counsel cases without consideration of whether the animating purposes of the Massiah pretrial right to counsel would support such an importation. This development is unfortunate …

The Miranda Case Fifty Years Later, Yale Kamisar

Articles

A decade after the Supreme Court decided Miranda v. Arizona, Geoffrey Stone took a close look at the eleven decisions the Court had handed down “concerning the scope and application of Miranda.” As Stone observed, “[i]n ten of these cases, the Court interpreted Miranda so as not to exclude the challenged evidence.” In the eleventh case, the Court excluded the evidence on other grounds. Thus, Stone noted, ten years after the Court decided the case, “the Court ha[d] not held a single item of evidence inadmissible on the authority of Miranda.” Not a single item. To use …

Find My Criminals: Fourth Amendment Implications Of The Universal Cell Phone "App" That Every Cell Phone User Has But No Criminal Wants, Christopher Joseph

Barry Law Review

No abstract provided.

Quantifying The Contours Of Power: Chief Justice Roberts & Justice Kennedy In Criminal Justice Cases, Michael A. Mccall, Madhavi M. Mccall

Pace Law Review

This Article seeks to contribute to the debate with an empirical analysis of voting behavior in criminal justice cases decided during the first ten Terms of the Roberts Court era. The following section presents the study’s case selection and introduces the types of measures used to illuminate influence on the High Court (Part II). Court- and individual-level tendencies (Part III) identify potential spheres of influence occupied by Chief Justice Roberts and Justice Kennedy. These bases of judicial power are examined separately in Part IV (Chief Justice Roberts) and Part V (Justice Kennedy). Some possible implications of Justice Scalia’s death on …

What Lurks Below Beckles, Leah M. Litman, Shakeer Rahman

Northwestern University Law Review

This Essay argues that if the Supreme Court grants habeas relief in Beckles v. United States, then it should spell out certain details about where a Beckles claim comes from and who such a claim benefits. Those details are not essential to the main question raised in the case, but the federal habeas statute takes away the Supreme Court’s jurisdiction to hear just about any case that would raise those questions. For that reason, this Essay concludes that failing to address those questions now could arbitrarily condemn hundreds of prisoners to illegal sentences and lead to a situation where the …

The Fourth Amendment Categorical Imperative, David Gray

Michigan Law Review Online

The vast majority of current Fourth Amendment doctrine is unfounded, incoherent, and dangerous. The culprit is the Supreme Court’s 1967 decision in Katz v. United States, which defines “search” as government conduct that violates subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’ ” This is pure applesauce. Nowhere will you find a standard dictionary that defines “search” in these terms. Neither will you hear a native speaker of the English language use “search” in this sense unless her mind has been polluted by a semester of studying criminal procedure. The Court created this definition …

Measuring A Civil-Discovery Sanction For Failure To Turn Over Requested Material: Goodyear Tire V. Haeger (15-1406), Doug Rendleman

Scholarly Articles

A sanction that is unrelated to misconduct is criminal and requires criminal instead of civil procedure. In a product liability lawsuit, the respondent, Goodyear, failed to turn over important tests before the parties settled. The petitioners, the Haegers—a couple who alleged Goodyear’s tires caused injuries—sought approval of a sanction based on their attorney fees. Complex and technical civil procedural rules and statutes, contempt, and the court’s inherent power will govern the Supreme Court’s decision. The issue before the Court is the specificity of the causal link between Goodyear’s misconduct and the amount of the civil sanction.

The Institutional Case For Partisan Gerrymandering Claims, G. Michael Parsons

Cardozo Law Review de•novo

For voters hoping the Supreme Court’s 2017 Term brings relief from partisan gerrymandering, the end of the 2016 Term was inauspicious. In Cooper v. Harris, the majority assumed the legitimacy of “partisan advantage” arguments while the dissent—including Justice Kennedy—warned about the “serious institutional and federalism implications” of judicial intervention in the redistricting process. If past is prologue, this concern for institutional and structural interests does not bode well.

Finally, A True Elements Test: Mathis V. United States And The Categorical Approach, Rebecca Sharpless

Brooklyn Law Review

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of mass incarceration, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses …

An Empirical Assessment Of Georgia's Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Faculty Publications By Year

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

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 …

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily J. Sack

Roger Williams University Law Review

No abstract provided.

Illegal Stops And The Exclusionary Rule: The Consequences Of Utah V. Strieff, Emily Sack

Law Faculty Scholarship

No abstract provided.

"Make Him An Offer He Can't Refuse"-- Mezzanatto Waivers As Lynchpin Of Prosecutorial Overreach, Christopher B. Mueller

Publications

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say …

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 …

Incomplete Sentences: Hobby Lobby’S Corporate Religious Rights, The Criminally Culpable Corporate Soul, And The Case For Greater Alignment Of Organizational And Individual Sentencing, Kenya J.H. Smith

Louisiana Law Review

The article explores the history and policies that explain the disparate sentencing treatment of organizations and individuals under the Sentencing Reform Act of 1984 and attendant sentencing guidelines. It reports the Supreme Court's recognition of a business corporation's religious rights in the case "Burwell v. Hobby Lobby Stores, Inc."

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

Georgia Journal of International & Comparative Law

No abstract provided.

The United States Supreme Court (Mostly) Gives Up Its Review Role With Ineffective Assistance Of Counsel Cases, Paul Marcus

Faculty Publications

No abstract provided.

Rescued From The Grave And Then Covered With Mud: Justice Scalia And The Unfinished Restoration Of The Confrontation Right, Richard D. Friedman

Articles

Some years before his death, when asked which was his favorite among his opinions, Antonin Scalia named Crawford v. Washington. It was a good choice. Justice Scalia's opinion in Crawford reclaimed the Confrontation Clause of the Sixth Amendment to the Constitution and restored it to its rightful place as one of the central protections of our criminal justice system. He must have found it particularly satisfying that the opinion achieved this result by focusing on the historical meaning of the text, and that it gained the concurrence of all but two members of the Court, from all ideological positions.

Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower …

Judicial Recusation In The Federal Republic Of Germany, Sigmund A. Cohn

Georgia Journal of International & Comparative Law

No abstract provided.

Community Control Over Camera Surveillance: A Response To Bennett Capers’S Crime, Surveillance, And Communities, Christopher Slobogin

Fordham Urban Law Journal

No abstract provided.

Interrogation First, Miranda Warnings Afterward: A Critical Analysis Of The Supreme Court's Approach To Delayed Miranda Warnings, Joshua I. Rodriguez

Fordham Urban Law Journal

No abstract provided.

A Gauntlet Thrown: The Transformative Potential Of Padilla V. Kentucky, Malia Brink

Fordham Urban Law Journal

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 …

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 …