Law Enforcement and Corrections Commons^™

Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, Victoria J. Palacios

Vanderbilt Law Review

Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy …

Bribery Among The Korean Elite: Putting An End To A Cultural Ritual And Restoring Honor, Daniel Y. Jun

Vanderbilt Journal of Transnational Law

On August 26, 1996, the criminal bribery convictions of two former South Korean Presidents sent shockwaves throughout the nation of South Korea. The court found former Presidents Chun Doo Hwan and Rof Tae Woo guilty of amassing hundreds of millions of dollars in bribes during their respective presidential terms. The court also found corporate executives of major Korean conglomerates guilty of bribing the former Presidents in exchange for government contracts or political favors. Such events invite a look into South Korea's difficult past, revealing a history of remarkable industrial progress tarnished by pervasive government corruption. This Note first explores South …

New York's Loyalty To The Spirit Of "Miranda": Simply The Best For Twenty-Five Years, Lorraine J. Adler

Vanderbilt Law Review

The landmark Supreme Court decision Miranda v. Arizona, recognized a defendant's right to be informed of the rights guaranteed by the Fifth Amendment's self-incrimination clause, including the right to counsel. The Miranda Court realized that a suspect may feel compelled to waive his Fifth Amendment privilege while in official detention. The Court held that the police must read the now-familiar warnings to a subject in custodial interrogation before he can waive his rights. Therefore, the Court in Miranda chose to strike the balance between effective law enforcement and protecting a subject's constitutional rights at the point of informing the subject …

The Changing Game: The United States Evolving Supply-Side Approach To Narcotics Trafficking, Gregory Wilson

Vanderbilt Journal of Transnational Law

Despite over two decades of focused government efforts, drug use and related problems persist in the United States. Moreover, combatting narcotics trafficking now may be more difficult than ever as the sophisticated Cali Cartel has replaced the Medellin Cartel as the world's preeminent supplier of cocaine. Cali's advanced methods of operation have rendered traditional approaches to battling drugs even less effective than they were previously. Clearly, the United States must establish a new direction in drug law enforcement. This Note traces the development of Colombia's drug cartels from the rise of the Medellin Cartel to the emergence of Cali as …

Capital Punishment Of Kids: When Courts Permit Parents To Act On Their Religious Beliefs At The Expense Of Their Children's Lives, Janet J. Anderson

Vanderbilt Law Review

Criminal liability of parents who treat their children's illnesses through spiritual means or prayer alone is the subject of increasing debate. When children die as a result of their parents' religious practices, prosecutions for crimes such as felony child endangerment, manslaughter, and murder may follow. Most states have codified some type of religious accommodation statute which provides a criminal liability exemption for parents who engage in spiritual healing or prayer treatment for their sick children instead of seeking traditional medical assistance. The scope, purpose, and language of these statutes, however, vary." Even when statutes appear to be similar in content, …

The Need For An International Criminal Court In The New International World Order, M. Cherif Bassiouni, Christopher L. Blakesley

Vanderbilt Journal of Transnational Law

In this Article, Professors Bassiouni and Blakesley argue that the institution of an international criminal court would provide an effective means of dealing with international problems that are created by or unaddressed in a unilateral or bilateral international system. Rather than deflecting domestic concentration on law enforcement, the proposed tribunal will be a complementary and incremental effort, which will enhance criminal justice enforcement. The authors address several questions concerning the implementation of the tribunal, including questions related to sovereignty and bases for jurisdiction, which crimes will be within the court's jurisdiction, which law will apply to the cases, and practical …

Rico Reform: How Much Is Needed?, William J. Hughes

Vanderbilt Law Review

RICO reform has been one of the most time-consuming and difficult issues in the 101st Congress. The House Subcommittee on Crime has held three full-day hearings on RICO reform, listening to testimony from a vast array of witnesses on both sides of the reform issue, and several in the middle. From a personal perspective, hardly a day has passed in the last nine months that I have not had a meeting, a discussion with a House colleague, or a staff session on the subject of RICO reform.At the outset I should mention that I do not have a magic "silver …

Meaningful Access For Indigents On Death Row: Giarratano V. Murray And The Right To Counsel In Post-Conviction Proceedings, William H. Brooks

Vanderbilt Law Review

In 1932 the United States Supreme Court held that the states must provide free legal counsel to indigent defendants in capital cases.' Since then the Court has continued to define the scope of an indigent death row defendant's right to counsel at various critical stages of the defendant's trial and appeal. Following a direct appeal to the state court of appeals and state supreme court, an inmate on death row may seek a writ of certiorari from the United States Supreme Court. A prisoner is not entitled to state appointed counsel for that action.

Next, the defendant may seek post-conviction …

Life-Without-Parole: An Alternative To Death Or Not Much Of A Life At All?, Julian H. Wright, Jr.

Vanderbilt Law Review

This Note will discuss the relatively recent development and current prevalence of one alternative: the life sentence without benefit of parole, commonly called life-without-parole (LWOP). Life-without-parole is the penultimate penalty, meaning in theory the incarceration of convicts for their natural lives without the possibility of release on parole. In practice, LWOP generally means what it says, although various states do retain some release mechanisms for LWOP inmates, like executive commutation or a set term of years. The idea of jailing individuals for the rest of their lives is at least as old in the Western legal tradition as the Tower …

Can We End The Shame?--Recent Multilateral Efforts To Address The World Child Pornography Market, Julia Foreman

Vanderbilt Journal of Transnational Law

In this Note, the author describes the United States and international child pornography markets. The author demonstrates how the United States Congress, judiciary, and law enforcement agencies have addressed the child pornography problem at the national and international level. In addition to the United States efforts to address this problem, the Netherlands, Denmark, and Thailand--who have all exported child pornography to the United States--have taken steps to curb the flow of child pornography. National and international child pornography markets continue to flourish, however, and the author concludes that more steps to eradicate child pornography are necessary. Finally, the author describes …

The Ker-Frisbie Doctrine: A Jurisdictional Weapon In The War On Drugs, Andrew B. Campbell

Vanderbilt Journal of Transnational Law

This Note addresses the ongoing use of extra legal apprehension, as applied under "Ker v. Illinois" and "Frisbie v. Collins," as a viable alternative to extradition in obtaining custody over those accused of exporting drugs to the United States. The author outlines the cultural and political reasons for the production of illicit drugs, examines the purposes and structures of formal extradition treaties and their effectiveness in bringing drug traffickers to trial, and considers the alternatives to formal extradition. The author concludes that extralegal apprehension, in both of its two forms--abduction and irregular rendition--should remain an alternative means of securing custody …

Privatization Of Corrections: Is The State Out On A Limb When The Company Goes Bankrupt?, Cathy E. Holley

Vanderbilt Law Review

The incarceration of convicted criminals is an important matter to law enforcement officials and the public at large. Institutional correctional services consume significant governmental energy and resources. In 1983 corrections, including jails, prisons, probation, and parole, cost over 10.4 billion dollars. In 1985 approximately 503,000 people were imprisoned in federal and state correctional facilities.' The provision of prison services must occur on a continuous basis, and space must be available for every convicted criminal. As certain commentators have noted, "[o]ne cannot simply let offenders wait in line for an opening."'Historically, local, state, and federal government has overseen and operated our …

Liability Of State Officials And Prison Corporations For Excessive Use Of Force Against Inmates Of Private Prisons, Donna S. Spurlock

Vanderbilt Law Review

Privatization of correctional institutions has emerged in response to the growing problem of prison overcrowding and the increasing cost of providing correctional services. Although it offers solutions to pressing social and financial problems, privatization raises two significant legal questions. First, how much force may a prison guard, hired by a private corrections corporation, use against a prisoner; and second, who will be liable when that guard uses excessive force?

This Note analyzes the issues surrounding the liability of both state and private corrections corporations for the excessive use of force by private prison guards. Part II examines the imposition of …

Privatization Of Corrections: Defining The Issues, Ira P. Robbins

Vanderbilt Law Review

Even as the public is demanding that more criminals be incarcerated and that their sentences be lengthened, the problems of America's prisons and jails continue to plague, if not overwhelm,us. More than two-thirds of the states are currently under court order to correct conditions that violate the United States Constitution's prohibition against cruel and unusual punishment. There are many important questions, but there are still no clear, satisfactory answers.

The last few years have thus witnessed diverse, controversial developments. Some, like the voluntary accreditation of correctional facilities by the Commission on Accreditation for Corrections, have begun to take root. Others, …

Privatization And Prisons, E. S. Savas

Vanderbilt Law Review

"Privatization" means increased governmental reliance on the private sector, rather than on government agencies, to satisfy the needs of society. Since the word was first used in 1969,' privatization has gained broad recognition and widespread acceptance, and,in recent years, a major trend toward privatization has developed in the United States and abroad. The reasons for this trend are both pragmatic and ideological. Pragmatists advocate privatization because it offers a more efficient way to provide goods and services. Ideological opponents of big government support privatization be-cause it reduces the role of government. Privatization is therefore an important movement in East and …

The Implications Of Prison Privatization On The Conduct Of Prisoner Litigation Under 42 U.S.C. Section 1983, Susan L. Kay

Vanderbilt Law Review

Prisoners often seek redress in federal courts through causes of action brought under 42 U.S.C. Section 19831 for violations of their constitutional rights caused by the overall condition of their confinement or by one specific condition or incident. Although commentators disagree over the extent to which these cases burden federal district courts, they agree that prisoner litigation constitutes a large percentage of the civil rights litigation in district courts. One of the attractions of prison privatization for state and local governments is the belief that contracting prison management to private firms will relieve the government of the burden of defending …

The Privatization Of Correctional Institutions: The Tennessee Experience, W.J. Michael Cody Attorney General And Reporter, Andy D. Bennett -- Deputy Attorney General For Legislative Affairs

Vanderbilt Law Review

Recently, the privatization of correctional institutions has been a topic of intense interest both in Tennessee and other parts of the Nation. In the hope that we might learn from the past, we undertook to examine Tennessee's convict leasing practices of the nineteenth century. This Article summarizes that research and provides a narrative and analysis of the recent events regarding privatization of correctional institutions in Tennessee.

Implications Of Prison Privatization For The Conduct Of Prisoner Litigation Under 42 U.S.C., Susan L. Kay

Vanderbilt Law School Faculty Publications

Prisoners often seek redress in federal courts through causes of action brought under 42 U.S.C. Section 19831 for violations of their constitutional rights caused by the overall condition of their confinement or by one specific condition or incident. Although commentators disagree over the extent to which these cases burden federal district courts, they agree that prisoner litigation constitutes a large percentage of the civil rights litigation in district courts. One of the attractions of prison privatization for state and local governments is the belief that contracting prison management to private firms will relieve the government of the burden of defending …

Tennessee's Private Prison Act Of 1986: An Historical Perspective With Special Attention To California's Experience, Ward M. Mcafee

Vanderbilt Law Review

In 1918 James H. Wilkins proudly proclaimed that crime was on the wane. Speaking at the end of a long career in California's state prison system, Wilkins had seen the presumed eradication of the opium habit among State prisoners, the reduction and sup-posed elimination of corporal punishment in the State's prisons,and the introduction of the parole system. He wrote:

"All this tends to material betterment in the present condition and future out-look of prison populations .... It is a long cry before our prisons, jails and other like institutes of detention will bear upon their rusty gates the legend" closed …

The Right To Counsel During Custodial Interrogation: Equivocal References To An Attorney-Determining What Statements Or Conduct Should Constitute An Accused's Invocation Of The Right To Counsel, Matthew W.D. Bowman

Vanderbilt Law Review

The fifth amendment to the United States Constitution guarantees to all persons the privilege against compelled self-incrimination. In Miranda v. Arizona, the United States Supreme Court interpreted the fifth amendment to require a specified set of procedural safeguards that law enforcement officers must follow to protect adequately each individual's fifth amendment rights. The Miranda safeguards require that prior to an accused's custodial interrogation, government officials must inform the accused that he has the right to remain silent; that any of his statements maybe used against him in a subsequent criminal action; that he has the right to confer with counsel; …

The Decline Of The Rehabilitative Ideal: Penal Policy And Social Idea, Louis A. Jacobs

Vanderbilt Law Review

In his most recent contribution Professor Francis Allen suggests that the rehabilitative ideal can flourish only in a particular kind of society. He observes that today's American society lacks the nourishing characteristics that once fed that ideal; consequently, the ideal has withered. This argument is concisely and precisely constructed in The Decline of the Rehabilitative Ideal, a book derived from the 1979 Starrs Lectures on Jurisprudence at Yale Law School. Rather than describe the extent of the decline, Professor Allen focuses on the nexus raised in the book's subtitle--penal policy and social purpose. As social purpose evolved (perhaps "devolved"is more …

Execution Without Trial: Police Homicide And The Constitution, Lawrence W. Sherman

Vanderbilt Law Review

This analysis of police homicide and the Constitution leads to the conclusion that the present state laws are unconstitutional, not just in the common-law states, but in the Model Penal Code and"forcible felony" states as well.' The present laws of every state in the union deny police homicide victims fifth and fourteenth amendment rights to due process, allow the punishment of death to be imposed in a cruel and unusual fashion, and appear to deny equal protection to blacks. The only constitutional alternative apparent is to remove police homicide from the realm of punishment and confine justification for it to …

Law And Disorder In Nineteenth-Century Kentucky, Robert M. Ireland

Vanderbilt Law Review

Nineteenth-century Kentuckians responded paradoxically to their criminal justice system. Although they complained constantly about the inadequacies of their constabulary, they refused to appropriate funds necessary to establish more efficient police forces. And while they carped continually about the ineffectiveness and ineptitude of prosecutors, the slowness and timidity of judges, the permissiveness of juries, and the leniency of governors, they also expressed equal concern about the rights of the accused and the convicted. By their ambivalence, nineteenth-century Kentuckians reflected an internal conflict that historically has characterized the response of Americans to the problem of crime. A free and dynamic society inevitably …

The Interstate Agreement On Detainers: Defining The Federal Role, Janet R. Necessary

Vanderbilt Law Review

In 1970, Congress enacted into law the Interstate Agreement on Detainers Act, making the United States and the District of Columbia parties to the interstate compact already adopted by 37 states.' The purpose of the Agreement is to "encourage the expeditious and orderly disposition" of charges underlying detainers by providing procedures by which prisoners may request disposition of such charges and prosecuting jurisdictions may obtain the presence of prisoners for trial. Recently problems of interpretation have surfaced as the federal courts have endeavored to define the role of the United States under the Agreement. The courts of appeals presently disagree …

Eighth Amendment Challenges To The Death Penalty: The Relevance Of Informed Public Opinion, Charles W. Thomas

Vanderbilt Law Review

In light of the Court's recent holding in Gregg v. Georgia, future death penalty challenges almost certainly will focus upon the type and quality of evidence available to serve as "objective indicia that reflect the public attitude toward a given sanction."'" Unfortunately, the "objective indicia" that can be relied upon and the manner in which they are to be weighted is not altogether clear. In Gregg, for example, the Court emphasized such traditional considerations as legislative enactments, decisions rendered by juries, and the single post-Furman referendum on the death penalty.'" Additionally, evidence pertaining to the determinants of public support for …

Book Review, James W. Ely, Jr.

Vanderbilt Law Review

The hypothesis of continuity has now been ably tested and challenged by William E. Nelson's fine book, Americanization of the Common Law. Relying upon years of painstaking research in courthouse files throughout Massachusetts, Nelson utilizes unpublished opinions, court records, and attorneys' notes to fashion a striking interpretation of the significant changes that occurred in Massachusetts law following the Revolution. The author undertakes an analysis of the doctrines of substantive law and techniques of law-making and enforcement in order "to trace the emergence of modern American law... Nelson's stress upon nineteenth century majoritarianism and governmental coercion must be qualified by consideration …

Citation In Lieu Of Arrest: The New California Law, Floyd F. Feeney

Vanderbilt Law Review

Sixty years ago, before the traffic infraction became a common occurrence, police departments found it necessary to make physical arrests in the case of each traffic violation. As the number of violations mounted, however, the arrest procedure proved to be too cumbersome and demanding. This led to the invention of a new procedure, the citation of promise to appear. The new system proved to be both convenient and practical and in short order it virtually replaced the old arrest procedure. Surprisingly, however, the invention of the new procedure did not lead to a rethinking of the need to arrest and …

The Collateral Consequences Of A Criminal Conviction, Thomas R. Mccoy, Walter Matthews Grant, John Lecornu, John Andrew Pickens, Dean Hill Rivkin, C. Roger Vinson

Vanderbilt Law Review

As a general matter [civil disability law] has simply not been rationally designed to accommodate the varied interests of society and the individual convicted person. There has been little effort to evaluate the whole system of disabilities and disqualifications that has grown up. ...As a result, convicted persons are generally subjected to numerous disabilities and disqualifications which have little relation to the crime committed, the person committing it or,consequently, the protection of society. They are often harsh out of all proportion to the crime committed.

Book Notes, Law Review Staff

Vanderbilt Law Review

The Child Savers: The Invention of Delinquency By Anthony M. Platt Chicago: University of Chicago Press, 1969. Pp. ix, 202.$8.50.

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Juvenile Delinquency and Urban Areas (rev. ed.) By Clifford R.Shaw & Henry D. McKay Chicago: University of Chicago Press,1969. Pp. 394.

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The Positive School of Criminology Edited by Stanley E. Grupp Pittsburgh: University of Pittsburgh Press, 1968. Pp. vi, 114. $5.95.

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State and Local Tax Problems Edited by Harry L. Johnson Knoxville: University of Tennessee Press, 1969. Pp. xiii, 190. $7.50.

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Tension in the Cities By James A. Bayton Philadelphia: Chilton Book Co., 1969. Pp. x, …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Criminal Law--Habeas Corpus-State Prison Regulation Prohibiting Prisoner from Preparing Petition for Fellow Inmates Held Invalid in Absence of Alternative Means of Assistance

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Securities Regulation--Corporation as a Director for the Purposes of Section 16(b) of the 1934 Securities Exchange Act