Friday, April 17, 2015

Judicial Override in Alabama

Judicial override is a concept that has been in place since the late 1970s. Its a permissive doctrine that gives state trial judges the option to override a jurys sentencing determination and institute a sentence the judge believes is more suitable. In Alabama, judicial override has been used frequently to override jury verdicts of life without parole for the death penalty. The Supreme Court will soon decide whether to grant certiorari on the question of whether Alabamas use of the judicial override option violates a defendants Sixth Amendment right to a jury as well as the Eighth Amendments prohibitions on arbitrary and capricious death sentences and cruel and unusual punishment.

Tuesday, April 14, 2015

SCOTUS Watch: Glossip v. Gross

Glossip v. Gross, Docket No. 14-7955,
on Appeal from the Tenth Circuit

“From this day forward, I shall no longer tinker with the machinery of death.  For more than twenty years I have endeavored—indeed.  I have struggled—along with a majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor.  Rather than continue to coddle the Court’s delusion that the desired level of fairness has been achieved and the need for regulation is eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed.”
-          Justice Harry Blackmun

In the current term of the United States Supreme Court, the Justices are set to decide a case which almost literally questions the “machinery of death” and the “death penalty experiment.”   

Friday, April 10, 2015

The Death Penalty: Academia v. Public Opinion

In the past decade or so, the subject of capital punishment has spurred many academics to heated opinions arguing for and against the death penalty.  Some opponents of capital punishment have highlighted the world trend of abolishing the death penalty, noting that China, Iran, Pakistan, Saudi Arabia, and the United States carry out most of the known executions around the world, and that “the number of countries that still allow the death penalty has been dwindling. 

Teen Courts: A Call for Accountability

Teen courts, also known as youth courts or peer courts, are not new phenomena.  Since the 1970s, over 800 teen courts have popped up around the nation; the majority were created in response to the United States Justice Department's Office of Juvenile Justice and Delinquency Prevention’s (OJJDP) push for alternative juvenile programs in the 1990s.  While the court itself varies between four models, discussed below, jurisdictions across the country use teen courts to address the same types of offenders and crimes: first-time offenders, aged 11-17, who have been accused of misdemeanors such as theft, vandalism, underage drinking, disorderly conduct, assault, possession of marijuana, tobacco violations, and curfew violations.  Because the teen court is offered as an alternative to going through the juvenile justice system, the accused typically have to admit guilt prior to admittance to the program.  

Tuesday, April 7, 2015

Protect the Children or Protect the Defendant?

In October 2014, the Supreme Court agreed to hear an appeal of the Ohio Supreme Court’s decision, in State v. Clark, to overturn a man’s convictions for child abuse.  The Court will have to decide two issues in the case: whether a mandatory reporter of child abuse acts as an agent of law enforcement for the purposes of the confrontation clause, and whether admission at trial of a child’s hearsay statements made to his teachers violates a defendant’s sixth amendment right to confront the witnesses against him.

The case arose after a preschool teacher noticed whip-like marks and other injuries on one of her three-year-old students at school.  After asking the three-year old some questions about the marks, she got the other teachers involved, and they came to suspect that the child had been abused.  Some of the child’s answers to the teachers implicated his mother’s boyfriend, Mr. Clark, as the abuser.  One of the teachers, in accordance with her mandatory duty to report child abuse, called the child abuse hotline and child protective services investigated the matter.  Mr. Clark was later arrested for child abuse and at trial, the court found the three-year old incompetent to testify, but permitted his teachers to testify to the child’s statements.  Mr. Clark was convicted of four counts of felonious assault, two counts of child endangering resulting in serious physical harm, and two counts of domestic violence, and was sentenced to 28 years in prison.

Monday, April 6, 2015

Privacy, Technology, and the Fourth Amendment: "The Fourth Amendment in the Digital Age" Master Post

The following blog post contains all of the guest posts that the Criminal Law Practitioner published in anticipation of "The Fourth Amendment in the Digital Age" symposium.

Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.