Criminal Procedure Commons^™

Substantive Habeas, Kimberly A. Thomas

Articles

Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …

Attorney Competence In An Age Of Plea Bargaining And Econometrics, Jeffrey Bellin

Faculty Publications

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case. The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of …

Human Rights Infringements In Brazil’S Penitentiary System Understood Through Access To Healthcare, Sara Morris

Independent Study Project (ISP) Collection

Brazil has a reputation of being home to some of the worst penitentiary conditions worldwide, eventually leading the United Nations to make an appeal to the Brazilian government in 2003 to analyze their systems and make necessary improvements. The poor conditions and lack of access to legal counsel, living space, and specifically healthcare, cause riots and uprisings within prisons that in the past have lead to death of prisoners and guards. Prisons serve a very specific purpose in society, and according to most social theorists that is to reform, not to torture. In Brazil there is no capital punishment, so …

Rethinking The Timing Of Capital Clemency, Adam M. Gershowitz

Faculty Publications

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons

Faculty Publications

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.

This Article argues that while …

An Ntsb For Capital Punishment, Adam M. Gershowitz

Faculty Publications

When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When afatal airplane crash occurs, however, we turn instead to the National Transportation Safety Board (NTSB). The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and …

Rethinking The Timing Of Capital Clemency , Adam M. Gershowitz

Michigan Law Review

This Article reviews every capital clemency over the last four decades. It demonstrates that in the majority of cases, the reason for commutation was known at the conclusion of direct appeals—years or even decades before the habeas process ended. Yet when governors or pardon boards actually commuted the death sentences, they typically waited until the eve of execution, with only days or hours to spare. Leaving clemency until the last minute sometimes leads to many years of unnecessary state and federal habeas corpus litigation, and this Article documents nearly 300 years of wasted habeas corpus review. Additionally, last-minute commutations harm …

A Comprehensive Administrative Solution To The Armed Career Criminal Act Debacle , Avi M. Kupfer

Michigan Law Review

For thirty years, the Armed Career Criminal Act (“ACCA”) has imposed a fifteen-year mandatory minimum sentence on those people convicted as felons in possession of a firearm or ammunition who have three prior convictions for a violent felony or serious drug offense. Debate about the law has existed mainly within a larger discussion on the normative value of mandatory minimums. Assuming that the ACCA endures, however, administering it will continue to be a challenge. The approach that courts use to determine whether past convictions qualify as ACCA predicate offenses creates ex ante uncertainty and the potential for intercourt disparities. Furthermore, …

Blystone V. Horn: The Third Circuit Guards Against Inadvertent Waiver Of The Right To Present Mitigating Evidence During A Capital Case, Dylan J. Scher

Villanova Law Review (1956 - )

No abstract provided.

The Application Of Gladue To Bail: Problems, Challenges, And Potential, Jillian Anne Rogin

LLM Theses

This paper argues that the principles articulated by the Supreme Court of Canada in R. v. Gladue and re-iterated in R. v. Ipeelee are being interpreted and implemented at the bail phase in a manner that exacerbates, rather than ameliorates the systemic failures of the criminal justice system in its dealings with Aboriginal people. Aboriginal people are grossly over-represented in Canadian prisons including those being detained in remand custody. It is now settled that the principles expressed in Gladue are applicable outside of the context of sentencing and in many jurisdictions have been found to be applicable to judicial interim …

The Use Of Mediation To Settle Prisoner Grievances In Federal Court, Michelle Burns

Pepperdine Dispute Resolution Law Journal

This article discusses the importance of mediation and mediation-like alternative dispute resolution (ADR) methods used by the U.S. federal district courts to settle prisoner litigation claims. Topics discussed include laws made for the prisoners for filing their claims in the Federal District Courts under Section 1983, the role of ADR in resolving prisoner grievances and the role of ADR in settling the disputes related to prisoner civil rights.

"Defensive Territoriality": A New Paradigm For The Prosecution Of Extraterritorial Business Crimes, Ellen S. Podgor

Georgia Journal of International & Comparative Law

No abstract provided.

Democracy In Disguise: Assessing The Reforms To The Fundamental Rights Provisions In Guyana, Arif Bulkan

Georgia Journal of International & Comparative Law

No abstract provided.

Vladimir Putin And The Rule Of Law In Russia, Jeffrey Kahn

Georgia Journal of International & Comparative Law

No abstract provided.

Must Treaty Violations Be Remedied?: A Critique Of Sanchez-Llamas V. Oregon, John Quigley

Georgia Journal of International & Comparative Law

No abstract provided.

Forced Decryption As Equilibrium—Why It’S Constitutional And How Riley Matters, Dan Terzian

NULR Online

No abstract provided.

Maryland V. King And The Road Already Traveled: How The United Kingdome Tried--And Failed--To Balance State Interests With Privacy Rights, Courtney Coons Poole

Georgia Journal of International & Comparative Law

No abstract provided.

An End To Silence: Inmate's Handbook On Identifying And Addressing Sexual Abuse, 3rd Edition, Brenda V. Smith

Research Reports & White Papers

"Though many correctional agencies have taken steps to comply with PREA standards and create safer environments for individuals in their care, inmates in custody still face sexual abuse and harassment by staff or other inmates. Staff and inmates still report problems identifying those at risk of sexual abuse, reporting sexual abuse, and holding those responsible for sexual abuse accountable. This publication is a tool for educating inmates about legal and other mechanisms, including the Prison Rape Elimination Act (PREA), that can provide protection and redress from sexual abuse in custodial settings" (p. 5). Sections of this handbook are: introduction; what …

The Speedy Trial Right And National Security Detentions: Critical Comments On United States V. Ghailani, Anthony O'Rourke

Journal Articles

This article reviews the decision of the United States Court of Appeals for the Second Circuit to uphold the conviction and sentence of Ahmed Khalfan Ghailani, the sole Guantánamo detainee to have been transferred to the United States for trial. Ghailani was captured nearly five years before his arraignment and argued that his constitutional right to a speedy trial was violated by the delay. The article contends that, in rejecting Ghailani’s argument, the Second Circuit distorted the doctrinal framework governing speedy trial claims and mischaracterized the interests that the speedy trial right is intended to protect. The article also explores …

The Framers' Fourth Amendment Exclusionary Rule: The Mounting Evidence, Roger Roots

Nevada Law Journal

No abstract provided.

Probing Into Salinas's Silence: Back To The "Accused Speaks" Model?, Rinat Kitai-Sangero, Yuval Merin

Nevada Law Journal

No abstract provided.

Teaching The Wire: Integrating Capstone Policy Content Into The Criminal Law Curriculum, Roger Fairfax

Scholarly Articles in Law Reviews & Journals

When I first proposed teaching a seminar on The Wire at the George Washington University Law School in 2010, I encountered very disparate reactions. Those unfamiliar with the show generally wondered whether the law school curriculum was any place for a course with the name of a popular television drama in the title. Those who had heard glowing things about, but had not seen, The Wire typically professed their intention to watch the show but shared the skepticism of the former group on its suitability as the focus of a law school course. Finally, those who had viewed the series …

Targeted Killing, Procedure, And False Legitimation, Matthew Craig

Cardozo Law Review

No abstract provided.

The Wire As A Gap-Filling Class On Criminal Law And Procedure, Adam M. Gershowitz

Faculty Publications

No abstract provided.

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

The Corrections System Must Make More Accommodations For The Needs Of Motherhood During Incarceration And The Parole Period, Susan Bloom

Theses & Dissertations

While the overall prison population has experienced an unprecedented growth period over the past thirty years, no segment has grown at a faster rate than the female population. Since the majority of female inmates in this country are mothers, it is imperative that the corrections system addresses the unique needs of this subset. This thesis investigates problems women face during the pregnancy period, while in labor and delivery, while their progenies are infants, children and adolescents and reunification issues during the parole period.

The Way The Court Gauges Consensus (And How To Do It Better), Robert J. Smith, Bidish J. Sarma, Sophie Cull

Cardozo Law Review

The Supreme Court gauges whether a national consensus against a punishment exists by reference to a number of objective indicators. Despite its reliance on these external indicators, scholars have characterized the Court's consensus analysis as little more than a crude charade performed by outcome-oriented Justices. The consensus analysis does lack both transparency and a stable infrastructure, but as this Article demonstrates, commentators are too quick to overlook the possibility that a stable and tightly theorized framework could equip the Court to gauge societal consensus and reduce the perception that the analysis is outcome-driven.

When it comes to consensus analysis, the …

Summary Of Jones V. Eighth Jud. Dist. Ct., 130 Nev. Adv. Op. 53, Kylee Gloekner

Nevada Supreme Court Summaries

The Court determined (1) whether a criminal defendant’s access to the courts can be restricted by the district court when he or she is challenging a judgment of conviction and sentence or the computation of time served under a judgment of conviction; and (2) whether there is an established approach courts should take when restricting the access.

In The Heat Of The Moment: The Implications Of State V. Ness On Criminal Defendants' Rights In Minnesota Danco Proceedings, Aisha N. Servaty

Hamline Law Review

abstract

The Trouble With Protecting The Vulnerable: Proposals To Prevent Developmentally Disabled Individuals From Giving Involuntary Waivers And False Confessions, Patricia Devoy

Hamline Law Review

abstract