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April 14, 2010

Commenting on each others' mid-term papers...

can and should get started in the comments to this post.  And, upon request (or based on my own assessment of which comments merit added attention), specific comments can and will be transposed into a new post (which in turn can and should enable continued and more focused commentary).

Most essentially, everyone is urged to recommend at least one of the mid-term paper (and as many as appropriate) that you think would merit publication and/or wider circulation either as is ASAP or in some modified form at some future date.

April 14, 2010 in Class activities, Course requirements, Student-assigned readings, Supreme Court rulings | Permalink


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My vote for publication goes out to Steve Kress's piece on jury sentencing for juvenile LWOP. I'm not sure that I agree with Steve's ultimate conclusion (that judicial review can serve as an adequate check on a jury's discretion in these cases), but I think the piece is clear and thoughtful, and I really enjoyed it!

Posted by: Emily Viglietta | Apr 15, 2010 11:00:29 AM

I thought Brian Hannan's piece on the United States v. Stevens was excellent. Brian uses the case as a lens for looking at the extent to which "the sentence one receives has much to much to do with the broad criminal category into which it falls or may be put as it has to do with the relative severity of the offense." I think this is an important observation and which, though not unfamiliar to our class, is probably under-discussed and often entirely unacknowledged in many sentencing discussions. Though he makes other, interesting points throughout the piece (some of which I agree with, others I might challenge to varying degrees), I think this is the most interesting and could be used as a foundation for a larger paper assessing this kind of trend in criminal sentencing.

Posted by: Sarah Lorr | Apr 16, 2010 7:06:03 PM

Ashley King's think piece on Maryland v. Shatzer was both insightful and thought provoking. I think the piece is excellent now and could also provide a solid foundation for a lengthier paper on custodial interrogations. I think a paper that further elaborated on the idea that the "14-day rule gives the police a clear timetable for badgering suspects” combined with a further analysis of her point that focusing on the state of mind of the suspect and not of the police seems both necessary and unlikely to produce an arbitrary enforcement of the Edwards rule could make for a very interesting paper! Good job, Ashley!

Posted by: Julia Z. | Apr 17, 2010 12:53:14 PM

I really enjoyed a few of the pieces and I also found that each one gave me insight into the others.

In terms of publication, I found Steve's piece on Juvenile LWOP especially good and well thought out. I agree with Emily that I'm uncertain if I agree with his conclusions. I found his discussion on judges as experts interesting (and controversial) especially in contrast with Calvin's piece on the AMA & the American Academy of Child & Adolescent Psychiatry's "neutral" amicus brief and how judges are probably unqualified to understand the science behind the difference between juveniles and adults. I think Steve's paper could be more interesting and persuasive if he pushed against his inclination toward juries and judges as sentencers because of their lack of expertise in the area of science and perhaps why he thinks that doesn't matter (as "bastions of the community's moral values"?) or how it could be overcome.

I also thought a discussion of alternatives to traditional prison sentencing may be especially interesting in the context of the Graham v. Florida case since there is such a push to differentiate juveniles from adults. It appears that generally there is some recognition that they are more capable of rehabilitation and perhaps alternative methods of punishment or education could begin with juveniles? Julia's discussion of the amicus brief by former juvenile offenders was illustrative of this point.

Having read so many papers on Comstock, I also wanted to comment on Justin's paper. I believe he is the only one who mentioned the state of Kansas's amicus brief. He also alluded to how state commitment might still affect Comstock if 4248 is found unconstitutional. I think it is especially interesting in a discussion of who sentences and why.

Posted by: Meredith | Apr 20, 2010 8:33:31 PM

I enjoyed Diana's paper which discussed Bobby v. Van Hook and the relevance (or lack thereof) that is given to the ABA Guidelines when determining whether a criminal defendant has received adequate counsel in capital punishment cases, as required by the Sixth Amendment. I found this paper thought provoking because of the wide array of issues it recalls: constitutional interpretation, the "who's" of sentencing and distribution of that power, and the problem of vagueness in our law and steps that can be taken to eliminate that vagueness in the name of fairness and parsimony

Particularly in questions of capital punishment, it is the mark of a just society to practice parsimony. Diana makes the argument that allowing the vague words of the Sixth Amendment to be the only guiding words for judges in determining this issue opens the door for discrimination and abuse of these defendants. I would go further and say that a fixed "guideline" standard such as the ABA's would provide uniformity and proportionality to this issue, and provide a sort of last stand against the highest punishment our courts can deal out. The resistance by Justice Alito and others to this principle represents an over-eagerness for capital punishment, when we should be doing everything we can to make it a last resort.

Finally, a more obvious point, I thought Diana did well to draw attention to the fact that Alito's point of view does nothing to curb the problem of wrongful convictions. Good paper.

Posted by: Clay | Apr 21, 2010 9:09:59 AM

I liked Camillia's Comstock paper, particularly where she addresses the WHO issue: removing power from the judiciary and giving to the executive in the form of the AG. Having the AG determine "sexually dangerous" indiviudals reminds me of the hottest question of executive power in this decade: "enemy combatant". From the perspective of our crrent legal landscape's concern with expanding executive power, Camillia's discussion was very interesting.

Posted by: John Hamill | Apr 21, 2010 9:33:40 AM

I really enjoyed Steve Kress' paper on the benefits of having a jury play a role in juvenile sentencing. Particularly in light of the fact that the Supreme Court decisions set to come down any day have the potential to drastically change the landscape of juvenile sentencing, I think Steve's paper could provide an interesting framework to analyze a new system for sentencing juveniles. Great paper!

Posted by: Ashley King | Apr 26, 2010 10:50:40 AM

I too was impressed with Steve Kress' piece and feel it has the makings of being a possibly influential article.
Having done my paper on Comstock, I enjoyed reading the other perspectives on the case. A point made by Aaron Krieger sticks out. If the government was motivated by a rehabilitative concern, why would rehabilitation processes "be commenced only after incarceration were close to completion and only for specific individuals."
Finally Julia Zousmer's piece on Graham v. Florida nicely focused on the effects of sentencing decisions on the individual. Often we look to the net effects of policies without taking into account the individual human cost.

Posted by: Justin Siebel | Apr 27, 2010 9:07:34 PM

I also enjoyed the piece on US v. Stevens, especially the part that discusses the First Amendment and its exceptions. It got me thinking about the First Amendment generally and whether we give it too broad an interpretation, so that we need "exceptions" to allow laws that ban child porn or other detestable things. We apply "speech" to include hearing, reading, publishing. . . basically anything that involves expressing one's self. But I think we should reinterpret the First Amendment as guaranteeing speech that advocates an idea. The only rationale anyone ever gives for the First Amendment is that it's the only way to ensure an open market for ideas. Allowing crush videos is thus justified by a slippery slope argument: if we ban them, we might come to eventually ban Mein Kampf, and if we ban that we'll eventually come to ban the Weekly Standard, and so on. This will lead to suppression of ideas, which overall isn't a good thing. But why not draw a bright line at anything that could conceivably be promoting or advocating something? That would protect the spirit of free speech while allowing bans on things that everyone detests, like crush videos or child porn, things that have no value. Then we wouldn't need exceptions.

Posted by: Jeremy Gorfinkel | Apr 28, 2010 10:02:03 AM

I mean, just because something involves "speech" doesn't mean that you can do it. You can't threaten to kill the president and then claim First Amendment protection. Even though your act consisted of emitting words from your mouth, which constitutes "speech" in a literal sense, you'd be arrested because that's not the kind of speech that anyone ever intended to protect. Why can that be criminalized but not crush videos? What's the difference?

Posted by: Jeremy Gorfinkel | Apr 28, 2010 8:01:13 PM


Posted by: cherry | Oct 10, 2011 4:15:19 AM

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