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Laura I Appleman - One of the best experts on this subject based on the ideXlab platform.

  • justice in the shadowlands pretrial detention punishment and the Sixth Amendment
    Washington and Lee Law Review, 2012
    Co-Authors: Laura I Appleman
    Abstract:

    Table of ContentsI. Introduction: Diplomats, Detention and Punishment .. 1299II. Pretrial Detention as Punishment 1304A. Bail Bondsmen, Bounty Hunters, and Corrupt Incentives 1305B. Increased Numbers of Poor Indicted Offenders Denied Bail 1310C. The Punishing Conditions of Pretrial Detention 1312D. Pretrial Incarcerative Harm 1318E. Punishment Before Conviction Violates the Spirit of the Sixth Amendment Jury Trial Right 1321III. A Short History of Bailing and Jailing 1323A. Colonial Practices 1324B. Bail Following the Constitution 1326C. Recent Bail Reforms 1329IV. Preventative Detention, Future Dangerousness, and the Sixth Amendment 1336A. The False Promise of Preventative Detention 13361. Barefoot v. Estelle 13372. Preventative Detention's Binary Nature 13383. Adjudicating Dangerousness 13404. Empirical Evidence and National Trends 1344B. Salerno, the 1984 Act, and the Sixth Amendment 13491. Salerno Did Not Close the Door 13492. Pretrial Detention as Punishment Under the 1984 BRA 13503. Applying the Sixth Amendment to the BRA 1351C. Punishment, Community Rights, and Pretrial Detention 13531. Future Dangerousness in Adversarial Context 13532. Post-Blakely, Community as Only Arbiter of Punishment 13553. The Community Should Decide Danger to Itself 13564. Laymen and Members of Community Are Better Predictors of Danger 13585. Attacking the Problems of Race & Gender in Pretrial Detention 1359V. Proposal: Reform and Revision 1361A. Reforming Bail Bondsmen and Pretrial Release 1361B. Revising the Bail Hearing Procedure 1363C. Potential Problems 13661. Lack of Historical Precedent 13662. Impracticality/Cost/Delays 1367VI. Conclusion 1368I. Introduction: Diplomats, Detention, and PunishmentNotwithstanding crime, the decision to imprison a defendant before trial all too often hinges on wealth and power. For example, a promiscuous foreign diplomat is halted at the airport, ready to flee the country, after allegedly sexually assaulting a hotel chambermaid, and initially denied bail, but then is permitted to reside in a posh penthouse while electronically monitored, serving an extremely upscale version of "house arrest."1 A lifestyle maven charged with perpetuating insider trading pleads not guilty and is released without bail, along with her stockbroker.2 A well-known money manager, accused of running a $50 billion Ponzi scheme, is permitted basic freedom of movement within several states while awaiting trial, even after confessing to the crime and failing to live up to his original $10 million bail terms.3 A prominent governor is charged with serious corruption and is not only released on minimal bail,4 but is even allowed to take part in a Donald Trump reality show while charges are still pending.5 A wealthy couple charged with enslaving and brutally mistreating two young maids - including starving, beating, and torturing - are permitted pretrial release6 with electronic monitoring, due in part to their ability to afford a specialized security firm that functions as private bail guards for the very wealthy.7 And a well-known alleged Mafia boss, charged with various racketeering charges (and suspected of inducing a variety of violent crimes as acting boss), is released on a $10 million bail, an oath to wear an electronic bracelet, and a guard at his Oyster Bay, Long Island mansion. …

  • justice in the shadowlands pretrial detention punishment and the Sixth Amendment
    Social Science Research Network, 2012
    Co-Authors: Laura I Appleman
    Abstract:

    In a criminal system that tips heavily to the side of wealth and power, we routinely detain the accused in often horrifying conditions, confined in jails while still maintaining the presumption of innocence. Here, in the rotting jail cells of impoverished defendants, are the Shadowlands of Justice, where the lack of criminal procedure has produced a darkness unrelieved by much scrutiny or concern on the part of the law. This article contends that our current system of pretrial detention lies in shambles, routinely incarcerating the accused in horrifying conditions often far worse than those convicted offenders existing in prisons. Due to these punitive conditions of incarceration, pretrial detainees appear to have a cognizable claim for the denial of their Sixth Amendment jury trial right, which, at its broadest, forbids punishment for any crime unless a cross-section of the offender’s community adjudicates his crime and finds him guilty. This article argues that the spirit of the Sixth Amendment jury trial right might apply to many pretrial detainees, due to both the punishment-like conditions of their incarceration and the unfair procedures surrounding bail grants, denials and revocations. In so arguing, I expose some of the worst abuses of current procedures surrounding bail and jail in both federal and state systems. Additionally, I also propose some much needed reforms in the pretrial release world, including better oversight of the surety bond system, reducing prison overcrowding by increasing electronic bail surveillance and revising the bail hearing procedure to permit a community “bail jury” to help decide the defendant’s danger to the community.

Carissa Byrne Hessick - One of the best experts on this subject based on the ideXlab platform.

  • the Sixth Amendment sentencing right and its remedy
    Social Science Research Network, 2021
    Co-Authors: Carissa Byrne Hessick
    Abstract:

    The Sixth Amendment sentencing doctrine recognizes the right to a jury trial of facts that increase criminal sentences. The doctrine has had only a minimal effect on sentencing because subsequent cases crafting a remedy largely undermined the right. The remedial cases have undermined the Sixth Amendment sentencing right in three notable ways: (1) by repeatedly refusing to recognize that district courts possess an unfettered power to sentence based on nothing more than a policy disagreement; (2) by encouraging appellate court judges to review sentences in a manner that is designed to curtail district court discretion; and (3) by refusing to require district court judges to engage in any independent sentencing analysis. Although the Supreme Court has justified its remedy by reference to historical sentencing practices, these three choices in its remedial cases represent significant departures from historical practice. What is more, the current remedy fails to vindicate the interests protected by the Sixth Amendment—the liberty interests of criminal defendants and democratic input into individual criminal cases. Until and unless the Court revisits its remedial decisions, the Sixth Amendment sentencing right will continue to be little more than a meaningless formalism.

  • Sixth Amendment sentencing after hurst
    Social Science Research Network, 2019
    Co-Authors: Carissa Byrne Hessick, William W Berry
    Abstract:

    The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized. At times the doctrine has expanded—invalidating sentencing practices across the country—and at times it has contracted—allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine. Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt. This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

Jenny Diamond Cheng - One of the best experts on this subject based on the ideXlab platform.

  • voting rights for millennials breathing new life into the twenty Sixth Amendment
    Social Science Research Network, 2017
    Co-Authors: Jenny Diamond Cheng
    Abstract:

    Millennials are now the largest generation in the United States, and they are the most likely to identify as liberal Democrats. Their access to the ballot has become a political and legal flashpoint, with a growing number of young people arguing that Republican-dominated state legislatures have enacted voter restrictions deliberately to suppress their vote. This article focuses on legal challenges to state voting laws based on the Twenty-Sixth Amendment, which lowered the minimum voting age from twenty-one to eighteen. These are novel claims and courts have struggled with how to interpret the Amendment. I argue that the Twenty-Sixth Amendment, as an analogue to the Fifteenth Amendment, prohibits intentional voter discrimination on the basis of age. As I demonstrate, the federal courts that have heard these claims are haltingly moving towards this same interpretation. However, I offer a newly strong theoretical basis for reading the Twenty-Sixth Amendment this way by emphasizing the Amendment's text rather than its history. I also suggest that demographic changes in the United States are blurring the line between voter discrimination based on age and that based on race.

Ben L Trachtenberg - One of the best experts on this subject based on the ideXlab platform.

  • confronting coventurers coconspirator hearsay sir walter raleigh and the Sixth Amendment confrontation clause
    Social Science Research Network, 2012
    Co-Authors: Ben L Trachtenberg
    Abstract:

    Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay exception cannot plausibly be described as “firmly rooted” in American law, nor does the hearsay included in the new exception bear “indicia of reliability,” coventurer hearsay would have been inadmissible at criminal trials under pre-Crawford Sixth Amendment jurisprudence. The overwhelming majority of coventurer statements, however, are not “testimonial,” meaning that current Confrontation Clause law does not prohibit their use against criminal defendants. Accordingly, coventurer hearsay demonstrates that defendants suffer prejudice from the Court’s reinterpretation of the Sixth Amendment. After reviewing evidence that the Crawford majority misinterpreted the historical background of the Confrontation Clause, the Article argues that the Court should reexamine whether the Confrontation Clause, or perhaps the Due Process Clauses of the Fifth and Fourteenth Amendments, should be read to prohibit the admission of dangerously unreliable hearsay against criminal defendants, even if such hearsay is “nontestimonial.” The case of the Holy Land Foundation - in which the United States government closed America’s largest Muslim charity and convicted five leaders of funneling money to Hamas - provides a concrete example of coventurer hearsay run amok. The prosecution case relied heavily on “joint venture” hearsay, unreliable out-of-court statements admissible only pursuant to a new interpretation of the coconspirator exception, a hearsay exception likely to have been found unconstitutional under the Confrontation Clause jurisprudence upended by Crawford. The result exemplifies the injustice made possible by recent case law and provides a new challenge to the testimonial theory of confrontation law.

  • confronting coventurers coconspirator hearsay sir walter raleigh and the Sixth Amendment confrontation clause
    Florida Law Review, 2012
    Co-Authors: Ben L Trachtenberg
    Abstract:

    Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking”—defined as pretty much any cooperative activity—even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay exception cannot plausibly be described as “firmly rooted” in American law, nor does the hearsay included in the new exception bear “indicia of reliability,” coventurer hearsay would have been inadmissible at criminal trials under pre-Crawford Sixth Amendment jurisprudence. The overwhelming majority of coventurer statements, however, are not “testimonial,” meaning that current Confrontation Clause law does not prohibit their use against criminal defendants. Accordingly, coventurer hearsay demonstrates that defendants suffer prejudice from the Court’s reinterpretation of the Sixth Amendment. After reviewing evidence that the Crawford majority misinterpreted the historical background of the Confrontation Clause, the Article argues that the Court should reexamine whether the Confrontation Clause, or perhaps the Due Process Clauses of the Fifth and Fourteenth Amendments, should be read to prohibit the admission of dangerously unreliable hearsay against criminal defendants, even if such hearsay is “nontestimonial.” The case of the Holy Land Foundation—in which the United States government closed America’s largest Muslim charity and convicted five leaders of funneling money to Hamas—provides a concrete example of coventurer hearsay run amok. The prosecution case relied heavily on “joint venture” hearsay, unreliable out-of-court statements admissible only pursuant to a new interpretation of the  Associate Professor, University of Missouri School of Law. I thank Frederic Bloom, Joe Blumberg, Frank Bowman, Danielle Carmody, Edward Cheng, George Fisher, David Gummerson, Josh Hawley, Joan Lang, Stephen Saltzburg, Joanna Trachtenberg, and Nathan Willard for their comments during the development of this Article. 1 Trachtenberg: Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleig Published by UF Law Scholarship Repository, 2012 1670 FLORIDA LAW REVIEW [Vol. 64 coconspirator exception, a hearsay exception likely to have been found unconstitutional under the Confrontation Clause jurisprudence upended by Crawford. The result exemplifies the injustice made possible by recent case law and provides a new challenge to the testimonial theory of confrontation law. INTRODUCTION 1670 I. BAD HISTORY MAKES BAD CONSTITUTIONAL LAW 1675 A. Rebutting Crawford’s “Law Office History” 1677 B. The “So What?” Rejoinder 1681 II. BAD LAW IN BOOKS AND BAD LAW IN ACTION 1684 A. “Coventurer Hearsay”—An Exception Swallowing the Rule 1685 1. Why Courts Admit Coconspirator Statements in the First Place 1686 2. Why Courts Should Not Expand the Exception to Include Lawful Ventures 1689 3. How the Revisionists are Wrong about Congress and the Supreme Court 1693 B. Crawford Admits Against Defendants Evidence that Roberts Excluded 1695 1. Today’s Constitution Will Not Save Us 1696 2. Yesterday’s Constitution Might Well Have Saved Us 1700 3. Will Tomorrow’s Constitution Save Us? 1703 III. ANSWERING THE “SO WHAT?” REJOINDER 1709 A. Historical Evidence Argues Against Admission of Coventurer Hearsay 1709 B. Modern Practice Shows the Evil of Admitting Coventurer Hearsay 1713 CONCLUSION 1722

Kelly Sarabyn - One of the best experts on this subject based on the ideXlab platform.

  • the twenty Sixth Amendment resolving the federal circuit split over college students first Amendment rights
    Social Science Research Network, 2009
    Co-Authors: Kelly Sarabyn
    Abstract:

    The Supreme Court has allowed primary and secondary schools to broadly regulate their students' speech, while expressing ambivalence over whether universities possess the same power. Despite the current federal circuit split over the public university's right to regulate student speech, commentators have largely ignored the issue. In this article, I examine the conflicting federal doctrine, and then offer a clarifying theory based on forgotten constitutional history. I recover the constitutional history of the Twenty-Sixth Amendment in order to argue that, with respect to constitutional rights such as free speech, a bright line exists between primary and secondary schools, on the one hand, and universities, on the other. In providing a detailed, historical analysis of the Twenty-Sixth Amendment debates, the article reveals that the ratifiers understood the Amendment to establish eighteen-year-olds as full-fledged citizens, with all the attendant constitutional rights and responsibilities. After covering the history of the Twenty-Sixth Amendment - and the subsequent, but now forgotten, legal incorporation of this history into constitutional and tort law - the article argues that a proper reading of the Constitution renders the state treating eighteen-year-olds as children unconstitutional. This, in turn, prohibits the in loco parentis university, and thereby creates a bright line between secondary schools and universities.

  • the twenty Sixth Amendment resolving the federal circuit split over college students first Amendment rights
    Texas Journal on Civil Liberties & Civil Rights, 2008
    Co-Authors: Kelly Sarabyn
    Abstract:

    I. INTRODUCTION The free speech rights of public university students are in a precarious position. Since the mid-1980s, public universities across the country have routinely, and often unapologetically, restricted their students' expression. In order to create welcoming and safe environments for their students, universities regulate student speech by promulgating civility codes; banning verbal harassment; censoring the student press; implementing overbroad time, place, and manner restrictions; and denying funding to student groups with disfavored views.1 An important ambiguity in the Supreme Court's jurisprudence enables this regulation to occur: specifically, the question of whether the First Amendment standards developed for secondary and primary schools apply to universities.2 Since it first addressed the university,3 the Court has conceptualized it as possessing a distinct function in society.4 It has held the university up as an open marketplace of ideas whose primary function is truth-seeking. This characterization of the university, which emphasizes unbridled dialogue as an essential component of the academic endeavor, stands in sharp contrast to the functions the Court has assigned to primary and secondary schools, which are to keep students safe and cultivate their moral and civic character. In Hazelwood School District v. Kuhlmeier,5 a 1988 decision, the Court explicitly challenged its own distinction between universities, on the one hand, and primary and secondary schools on the other. In a footnote, the Hazelwood opinion "reserved" the question of whether the deferential standard it had laid out for high school speech regulation applied to universities.6 The indecision indicated by the Court's reservation namely, that the deference allotted to secondary schools to regulate their students' speech might apply to universities - has not since been clarified by lower federal courts. Instead, the federal circuits have produced conflicting standards, which range from treating universities exactly like high schools to treating them as wholly distinct institutions.7 In a 2007 opinion, the Court expanded high schools' ability to regulate their students' speech without clarifying whether this expansion applied to the university. In Morse v. Frederick, the Court upheld a high school's decision to suspend a student for displaying a sign that read "BONG HITS 4 JESUS" at a public, non-curricular event.8 As the Court has further empowered high schools to circumscribe their students' speech, universities and some federal circuits, focusing on the similarities between high schools and universities, have deployed the Court's logic and precedent to justify universities restricting their students' speech, imperiling the university's raison d'etre as the premier marketplace of ideas. Surprisingly, there is a paucity of legal scholarship addressing the threat to free speech at universities. This article seeks to fill that void by drawing attention to the threat and providing an argument for sharply distinguishing the rights of primary and secondary school students from the rights of university students. The argument proceeds by first specifying the reason primary and secondary school students have diminished rights: their immaturity and lack of self-sufficiency. The question of when this childhood abrogation of constitutional rights ends has never been addressed by me Court. By examining the history and text of the largely forgotten Twenty-Sixth Amendment, which gave eighteen-year-olds the right to vote, this article argues that the abrogation must end at age eighteen. Up to this point, the Twenty-Sixth Amendment has only appeared in the legal literature in passing.10 A close study of the Amendment's origins demonstrates that by the time it came up for debate, the people understood the act of enfranchisement to entail the confirmation of full citizenship in the political order. Citizens on both sides of the TwentySixth Amendment debate conceived of the Amendment as granting young people "full-fledged citizenship," with all the attendant rights and responsibilities. …