State and Local Government Law Commons^™

Retributive Medication: A Discussion Of A Maine Law Allowing Involuntary, Forcible Medication Of A Pretrial Defendant For The Purpose Of Rendering The Defendant Competent To Stand Trial, Ashley T. Perry

Maine Law Review

Innocent until proven guilty—it’s a phrase we have all heard, know, and accept. But there are circumstances where this simple concept is strained in its application, such as when a legally incompetent defendant is facing trial. After all, how can a defendant be proven guilty if he cannot stand trial? The Supreme Court of the United States has determined that forcibly medicating an incompetent defendant solely to render the defendant competent to stand trial is permissible under the Federal Constitution. However, the Federal Constitution provides only the floor-level of civil rights; states are free to set their own ceilings. The …

Does "Precrime" Mesh With The Ideals Of U.S. Justice?: Implications For The Future Of Predictive Policing, Jackson Polansky, Henry F. Fradella

Cardozo Public Law, Policy & Ethics Journal

Both the short story and film Minority Report are premised on a Precrime unit that relies on the psychic abilities of human mutants who can predict the commission of crimes before they occur. Advances in technology suggest that the science fiction depicted in Minority Report may one day become a reality. This paper summarizes the ways in which the criminal justice system currently derives crime predictions and extrapolates from these methods how technology might one day allow police to intervene before crimes are committed with great regularity and accuracy. The paper contemplates how an actual precrime system would struggle to …

Updating The Social Network: How Outdated And Unclear State Legislation Violates Sex Offenders’ First Amendment Rights, Elizabeth Tolon

Fordham Law Review

Readily available on computers, phones, tablets, or television, social media has become a necessary platform of expression for many. But, for others, social media is an inaccessible tool whose very use has criminal repercussions. To protect innocent children, many states have enacted legislation restricting sex offenders’ access to social media. Unfortunately, this legislation is often outdated, overly restrictive, and unconstitutional under the First Amendment. North Carolina has recently attracted national attention, as its statute highlights the potential constitutional issues states face in drafting such legislation. To avoid the constitutional concerns that North Carolina faces, state legislators must draft statutes narrowly …

The Nypd And The Mentally Ill, Randolph M. Mclaughlin, Debra S. Cohen

Elisabeth Haub School of Law Faculty Publications

Recently, a federal court judge cleared the way for a trial in the case of Mohamed Bah, a 28-year-old student killed in his home by NYPD officers after his mother, Hawa Bah, called 911 for assistance to take him to a hospital. Southern District Judge P. Kevin Castel's ruling denied New York City's motion seeking to dismiss claims of unlawful entry and excessive force against the police officers who responded to Mr. Bah's apartment, breached his door and then shot and killed him. Mr. Bah's family alleges that the final and fatal shot to Mr. Bah's head was inflicted at …

Recent Development: Colvin V. State: Not Polling The Jury Foreperson Individually After Announcing The Jury's Verdict Is A Procedural Error, Which Does Not Rise To The Level Of A Cognizable Claim Under Maryland Rule 4-345(A), Kayla M. Dinuccio

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a motion to correct an illegal sentence can only be granted if the error is based on substantive law. Colvin v. State, 450 Md. 718, 728, 150 A.3d 850, 856 (2016). Not polling the jury foreperson after she announced the jury's verdicts was a procedural error, and thus not one of the limited exceptions to correct an illegal sentence under Maryland Rule 4-345(a). Id. at 726-27, 150 A.3d at 855-56. In 1989, Roderick Colvin ("Colvin") was tried before a jury in the Circuit Court for Baltimore City on numerous charges, including murder …

The Costs Of Trumped-Up Immigration Enforcement Measures, Kari Hong

Cardozo Law Review de•novo

Currently, our country spends $18 billion each year on immigration enforcement, which is nearly $4 billion more than the combined budgets of the FBI, DEA, Secret Service, and ATF. President Trump hopes to substantially increase that annual number with his proposed heightened enforcement measures that result in more arrests, more ICE officers roaming our streets, airports, and courtrooms, more detentions, more deportations, and more wall. This essay begins by examining each of these measures that were outlined in the new executive orders and concludes that all are expensive, ineffective, unnecessary, and inhumane.

Criminal Procedure: Confessions, Searches, And Seizures, Elena Alicia Esparza, Honorable Michael E. Keasler

SMU Annual Texas Survey

No abstract provided.

Recent Development: Givens V. State: Preservation Of Allegedly Inconsistent Jury Verdicts In A Criminal Trial Must Be Made By Objection Before The Verdicts Are Rendered Final And The Jury Is Dismissed, Nicholas Mastracci

University of Baltimore Law Forum

The Court of Appeals of Maryland held that a defendant waives review of any issue as to allegedly inconsistent verdicts by failing to object before the verdicts become final and the court discharges the jury. Givens v. State, 449 Md. 433, 486, 144 A.3d 717, 748 (2016). Although the defendant in this case did not request plain error review, the court stated that the alleged inconsistent verdicts were not clear and obvious; therefore the four-factor plain error test was not met. Id. at 482, 144 A.3d at 746.

On November 15, 2011, several people including Dominic Givens ("Givens"), pulled up …

An Aggravating Adolescence: An Analysis Of Juvenile Convictions As Statutory Aggravators In Capital Cases, Lesley A. O'Neill

Georgia Law Review

In death penalty cases there is a requirement that
certain statutory aggravators must be present in order to
reach a death verdict. One such statutory aggravator in
most states is the defendant having previously committed
a felony, which can include crimes committed as a
juvenile. While the Supreme Court ruled in 2005 that
sentencing a defendant to death for crimes they committed
as a juvenile is unconstitutional, many states' death
penalty statutes allow for the possibility that the sole
aggravator relied on for a verdict of death is a previous
juvenile conviction. This Note argues that based on the
Court's …

Federalizing Retroactivity Rules: The Unrealized Promise Of Danforth V. Minnesota And The Unmet Obligation Of State Courts To Vindicate Federal Constitutional Rights, Ruthanne M. Deutsch

Florida State University Law Review

No abstract provided.

Hurst V. Florida’S Ha’P’Orth Of Tar: The Need To Revisit Caldwell, Clemons, And Proffitt, Craig Trocino, Chance Meyer

University of Miami Law Review

In Hurst v. Florida, the Supreme Court held Florida’s death penalty scheme violated the Sixth Amendment because judges, rather than juries, found sentencing facts necessary to impose death. That Sixth Amendment ruling has implications for Florida’s Eighth Amendment jurisprudence.

Under the Eighth Amendment rule of Caldwell v. Mississippi, capital juries must appreciate their responsibility for death sentencing. Yet, Florida has instructed juries that their fact-findings merely support sentencing recommendations, while leaving the ultimate sentencing decision to a judge. Because Hurst clarifies that the Sixth Amendment requires juries to find the operative set of facts on which sentences are …

Taming The Wild West: Using Unsecured Bail Bonds In Nevada's Pretrial-Release Program, Hayley E. Miller

Nevada Law Journal

No abstract provided.

West Germany’S Eastern Policy: Legal Claims And Political Realities, Manfred Zuleeg

Georgia Journal of International & Comparative Law

No abstract provided.

A Call For Justice: Virginia's Need For Criminal Discovery Reform, Douglas A. Ramseur

Richmond Journal of Law and the Public Interest

In order for the promise of a strong and reliable criminal justice system to work properly in Virginia, there must be strong and prepared advocates on both sides of the process. The current process of discovery for criminal cases in Virginia fosters a culture of secrecy and unpreparedness that should not be tolerated in a system that has such power over the lives of every person in this state. It is far past the time for Virginia to move forward on criminal discovery reform. The current rules for criminal discovery in Virginia were first adopted in 1972. The rules do …

A Call For Justice: Virginia's Need For Criminal Discovery Reform, Douglas A. Ramseur

Richmond Public Interest Law Review

In order for the promise of a strong and reliable criminal justice system to work properly in Virginia, there must be strong and prepared advocates on both sides of the process. The current process of discovery for criminal cases in Virginia fosters a culture of secrecy and unpreparedness that should not be tolerated in a system that has such power over the lives of every person in this state. It is far past the time for Virginia to move forward on criminal discovery reform. The current rules for criminal discovery in Virginia were first adopted in 1972. The rules do …

An Analysis Of Austin Lawyers Guild V. Securus Technologies, Inc.: The Constitutional And Ethical Implications Of Using Illegally Recorded Attorney–Client Telephone Conversations As Derivative Evidence, Christina Santos

St. Mary's Journal on Legal Malpractice & Ethics

For the justice system to operate effectively, privileged communications between an attorney and his or her client should be afforded the utmost and strictest protections. Intrusion by law enforcement upon these communications severely diminishes the confidence and candor needed in the attorney-client relationship. Although the United States Supreme Court recognizes prosecutorial immunity and generally leaves prosecutorial discipline to state bar authorities, the Court has long held that the attorney-client privilege is needed for attorneys to effectively advocate on behalf of their clients.

Austin Lawyers Guild v. Securus Technologies, Inc., a civil class-action lawsuit, is currently pending before the United …

Police Misconduct - A Plaintiff's Point Of View, Part Ii, John Williams

Touro Law Review

No abstract provided.

Police Misconduct - A Plaintiff's Point Of View, Fred Brewington

Touro Law Review

No abstract provided.

Criminal Prosecution And Section 1983, Barry C. Scheck

Touro Law Review

No abstract provided.

Fixing Bail, Samuel R. Wiseman

Scholarly Publications

A large portion of the jail population consists of criminal defendants whose guilt has yet to be established. A growing number of states have attempted to reduce jail populations in light of budget concerns, and many federal and state statutes already direct judges to detain defendants only if alternative conditions will not protect society or prevent pretrial flight. Despite these legislative directives, judges continue to jail too many defendants pretrial. Indeed, although statutes often direct judges not to impose financial conditions leading to detention, many pretrial detainees are in jail because they could not afford the bond set by a …

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.

Recent Development: Counts V. State: Absent The Defendant's Consent, The State May Not Amend The Charging Document If The Amendment Changes The Character Of The Offense, Kristin E. Shields

University of Baltimore Law Forum

The Court of Appeals of Maryland held that amending a charge from theft of property “with a value of less than $1,000” to theft of property “with a value of at least $1,000 but less than $10,000” without the defendant’s consent changed the character of the offense. Counts v. State, 444 Md. 52, 55, 118 A.3d 894, 895 (2015). Therefore, the court held that such action was prejudicial per se because it interfered with the defendant’s right to defend himself by not giving notice of the exact charges against him, thereby violating Maryland Rule 4-204.

Recent Development: Williams V. State: A Confession Is Voluntary Unless The Defendant Unambiguously Invokes His Constitutional Right To Remain Silent Or The Confession Is Obtained Through Coercion Or Inducement, Pascale Cadelien

University of Baltimore Law Forum

The Court of Appeals of Maryland held that “I don’t want to say nothing. I don’t know,” is an ambiguous invocation of the right to remain silent. Williams v. State, 445 Md. 452, 455, 128 A.3d 30, 32 (2015). The court reasoned that the defendant’s addition of “I don’t know” to his initial assertion “I don’t want to say nothing” created uncertainty about whether he intended to invoke his right to remain silent. Id. at 477, A.3d at 44. This allowed a reasonable officer to interpret his statement as an “ambiguous request to remain silent.” Id. Furthermore, the officers’ implication …

Recent Development: Jackson V. State: Successive Post-Conviction Petitions Are Not Barred By The Doctrine Of Res Judicata Or Maryland Rule 4-704; A Petition For Dna Testing Will Be Denied If The Evidentiary Threshold For A Wrongful Conviction Claim Is Not Met., Kayla M. Dinuccio

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the doctrine of res judicata and Maryland Rule 4-704 do not bar successive DNA petitions. Jackson v. State, 448 Md. 387, 406, 139 A.3d 976, 987 (2016). The court further held that denying Jackson’s petition for DNA testing without a hearing under Maryland Rule 4-709 was proper, because none of his assertions would have produced exculpatory evidence. Id. at 411, 139 A.3d at 990.

Recent Development: Peterson V. State: Limitations On Defense Cross-Examination Are Permitted When The Testimony Lacks A Factual Foundation, Is Overly Prejudicial, Or Has Not Been Adequately Preserved, Meghan E. Ellis

University of Baltimore Law Forum

The Court of Appeals of Maryland held that the defendant’s right to confrontation was not violated when the defense was precluded from cross-examining a witness about hallucinations and his potential sentence prior to entering into a plea agreement. Peterson v. State, 444 Md. 105, 153-54, 118 A.3d 925, 952-53 (2015). The court found that the defendant failed to preserve the issue of a witness’s expectation of benefit with respect to pending charges, and failed to show sufficient factual foundation for a cross-examination regarding the expectation. Id. at 138-39, 118 A.3d at 944. In addition, the court found that, although not …

Shock Incarceration And Parole: A Process Without Process, Adam Yefet

Brooklyn Law Review

The idea that an inmate could possess a liberty interest in parole is a relatively recent development in Fourteenth Amendment law. It was not until 1979, in Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, that the Supreme Court examined Nebraska’s parole scheme and found that inmates could have a liberty interest in parole. The primary implication of Greenholtz was that parole statutes that contained certain mandatory language could confer upon inmates a liberty interest in parole. Applying the Greenholtz analysis, numerous parole schemes across the country were held to create a liberty interest and to require …

Miscarriage Of Justice: The Cognizability Of § 2255 Claims For Erroneous Career Offender Sentences, Matthew B. Rosenthal

Georgia Law Review

Career offender sentencing enhancements present difficult questions for courts. One of the most difficult of these questions is deciding what crimes warrant the application of these serious enhancements. Federal courts sentencing defendants often must decide, with little guidance, what offenses constitute a "crime of violent" or "violent felony." On a few occasions, the Supreme Court has stepped in and told lower courts that certain crimes do not fit within these categories, and that their interpretation of the career offender enhancement is incorrect. Often, the recognition of this misapplication of the enhancements occurs years after an individual defendant has been convicted, …

Recent Developments: Sharp V. State: Despite Not Formally Objecting, Defense Counsel Properly Preserved The Issue Of Whether The Circuit Court Inappropriately Weighed Defendant's Decision Not To Plead Guilty At Sentencing; The Circuit Court Did Not Impermissibly Consider Defendant's Rejection Of The Plea Offer At Sentencing., Colin Campbell

University of Baltimore Law Forum

The Court of Appeals of Maryland held that defense counsel’s statements conveyed an objection to the circuit court’s perceived consideration of the defendant’s decision not to plead guilty at sentencing. Sharp v. State, 446 Md. 669, 113 A.3d 1089 (2016). As a result, the court held that defense counsel sufficiently preserved the issue for appellate review. Id. at 684, 113 A.3d at 1098. Ultimately, though, the circuit court’s statements at sentencing did not give rise to the inference of an impermissible consideration. Id. at 701, 113 A.3d at 1108.

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …

Unequal Access To Justice: Solla V. Berlin And The Unprincipled Evisceration Of New York’S Eaja, Armen H. Merjian

Pace Law Review

Solla is noteworthy not merely in light of the baleful effects of its ruling, but because of its reasoning: it is categorically wrong. The decision wholly elides a cornerstone and settled principle of New York welfare law, namely, that in the administration of public assistance, the municipalities act as the agents of the State, while blatantly violating the most fundamental of agency principles, namely, that a principal is vicariously liable for the actions of its agent acting within the scope of its authority. Indeed, this principal/agent relationship is established both by statute and by decades of uniform state and federal …