STU Scholarly Works (St. Thomas University)
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Sixth Amendment Right to Counsel: Broaden the Scope, Decriminalize, and Ensure Indigents a Fair Chance in Court and in Life
No full textPart I of this comment explains the history of the Sixth Amendment and the right to counsel, beginning at English common law through the current status of the right. Part II discusses the collateral consequences and social stigma an individual is faced with after conviction of a crime, despite the fact that the accused was not sentenced to jail. Part III summarizes the current problem an ex-convict faces based on the initial denial of assistance of counsel and offers a solution to this problem by explaining that the right to counsel should be extended to all criminal prosecutions. In addition, the solution proposes that state legislatures should adopt a process of decriminalization to alleviate the potential administrative burden of broadening the right to counsel
Pre-Apprendi Sentencing: Issues Surrounding the Retroactivity of an Unconstitutional Sentence
No full textThis comment ventures to provide a manageable resolution to the issues that have arisen from the implementation and subsequent limitations of the federal sentencing guidelines. Part II discusses the sentencing guidelines\u27 history, creation, and evolution. This part also reviews the pertinent cases that have shaped the relevance and application of the sentencing guidelines by the U.S. Supreme Court. Part III details the successful retroactivity of the Boggs Act as a real-world example of the feasibility of retroactivity. Finally, Part IV provides an administrative solution to the problems with retroactive application of the Booker/Fanfan decision in order to remedy the unconstitutional federal sentences being served today
Till the Detail of Surface Is in Accord with the Root in Justice: Treason, Insanity, and the Trial of Ezra Pound
No full textFor most of his adult life Ezra Loomis Pound, Idaho-born and Pennsylvania-reared, was an American abroad. At various times he lived in Venice, London, Paris. In 1928, he settled in Rapallo, in Italy. When World War II broke out, he chose to remain there. Beginning in October of 1941, and through at least July of 1943, he made a series of English language broadcasts from Rome for the Mussolini government, which were directed to English and American audiences. In 1945, Pound was taken into custody by American military authorities and held at the U.S. Army Disciplinary Training Center in Pisa. In November of that year he was flown to Washington, D.C., to be tried on charges of treason arising out of his radio speeches. Section II of this article considers the case against Pound. His was one of a small number of American treason prosecutions arising out of the Second World War. Unlike the other treason prosecutions of that era, however, the charge of treason against Pound was never tried on the merits. Pound was determined to be mentally incompetent to stand trial. He was then held at St. Elizabeth\u27s Hospital for the Criminally Insane for nearly thirteen years--untried, unconvicted, and presumed innocent. During that time he was visited by the great literati of the English-speaking world: by T. S. Eliot, Thornton Wilder, Marianne Moore, Robert Lowell, Katherine Anne Porter, Louis Zukofsky, Langston Hughes, Marshall McLuhan, and others. During that time he completed The Pisan Cantos, in many ways his greatest poetic achievement. He also produced important poetry translations from a variety of languages. Section III of this article considers in detail the adjudicatory process by which Pound was determined to be incompetent to stand trial, and the aftermath of that determination. A disclaimer is appropriate here: Neither section III in particular, nor this article in general, is intended as an authoritative treatment of Pound\u27s complex life or more complex work. Such a treatment would be beyond the scope of this article, and far beyond the scholarship of its author. Pound\u27s life and work, and more particularly that strangely fascinating part of his life and work that led to his indictment, culminated in his trial, and had as its denouement his incarceration in and then liberation from St. Elizabeth\u27s, are discussed not in any attempt to offer a definitive critique of Pound the man or Pound the poet, but as a jumping-off point to consideration of the law of criminal incompetence. That subject matter is considered in section IV, which poses a hypothetical question so thoroughly hypothetical it could be posed only in a law-review article: How would Pound\u27s case be treated today? That statute and case law more clearly define the procedural law governing, and the procedural rights afforded, the putatively incompetent criminal defendant today than was the case in Ezra Pound\u27s era is a safe generalization. That said, it is far from clear that Pound was treated worse at the hands of the law than a defendant similarly situated would be treated today. Generalizations are no more applicable to Pound the litigant than they are to Pound the poet
The Growing Pains of Graham v. Florida: Deciphering Whether Lengthy Term-of-Years Sentences for Juvenile Defendants Can Equate to the Unconstitutional Sentence of Life without the Possibility of Parole
No full textThis article will provide a basic understanding of Eighth Amendment jurisprudence and then explores how the most recent United States Supreme Court cases of Graham v. Florida and Miller v. Alabama affect juvenile resentencing. Additionally, this article addresses the most recent trend presented in juvenile cases where the juvenile defendant is charged as an adult, tried as an adult, and sentenced accordingly. Specifically, the issue of a lengthy term-of-years sentence in states such as California and Florida appear to be the battleground of diverse opinions, more so perhaps than other states
Regression to the Mean: How Miranda Has Become a Tragicomical Farce
No full textIn my original article, I examined Miranda\u27s historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine\u27s seductive appeal lulled defense counsel into a false sense of security, thereby deflecting reliance on the voluntariness standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to do away with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on a Miranda waiver to establish the voluntariness of a confession. With the benefit of hindsight, I suppose my arguments and conclusions, however prosaic, have stood the test of time. Indeed, it seems in retrospect that most scholars have arrived at the same place. Therefore, I hope to elaborate on the piece by focusing, in Part I, on a couple of cases which illustrate the U.S. Supreme Court\u27s ratification of deception as an integral part of interrogations, despite Miranda\u27s admonitions. Then, in Part II, I will juxtapose those earlier cases with the Court\u27s latest pronouncements on Miranda, which reflect the virtual dismantling of the doctrine. In Part III, I will focus on a case that, though based on the Sixth Amendment\u27s right to counsel, threatens to turn Miranda on its head. The Conclusion provides a revision of my proposal to return to the voluntariness standard by focusing on factors that will provide better guidance to lower courts in assessing the putative voluntariness of a confession
Powerless against Police Brutality: A Felon\u27s Story
No full textImagine driving to the store with friends, but while en route, you are shot and beaten by the police so severely that random citizen witnesses intervene to stop the police brutality. Next, envision recovering from those injuries and awakening from a coma chained to your hospital bed informed that you are under arrest for attempted murder of a police officer. Then, consider waiting over five years for the opportunity to tell your story to the court, believing justice will be served, but instead you discover that the trial is more influenced by the revelation of your prior criminal record than the knowledge of the serious injuries that the police inflicted upon you. These facts introduce the real police encounter experienced by Mr. Theodore Dukes, an ex-felon, in Miami-Dade County. This shooting incident stemmed from an investigation of Mr. Dukes for the misdemeanor of driving with an unauthorized license plate
Kelo Through the Lens of Therapeutic Jurisprudence
No full text“Boiled down to its most essential element, therapeutic jurisprudence adds to legal analysis in a formal way, the dignity and value of the individual human being.” It therefore provides a fascinating jurisprudential lens through which to analyze the project that resulted in the infamous eminent domain case, Kelo v. City of New London. A therapeutic jurisprudence analysis of this project draws attention to additional considerations not fully appreciated in Kelo, in particular, the especially antitherapeutic impacts of this private-to-private taking undertaken solely for economic development. Recognition of these impacts helps to explain the level the public outrage that followed the Supreme Court’s decision. The therapeutic jurisprudence analysis also points to important norms that compete with that case’s expansive interpretation of government’s power to utilize eminent domain for private-to private-takings for economic development. It highlights the need for further work on this controversial topic by scholars, by members of the eminent domain and by members of the constitutional law bar. It suggests that therapeutic jurisprudence can contribute to that effort
A Therapeutic Jurisprudence Analysis of the Use of Eminent Domain to Create A Leasehold
No full textTherapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. The objective of these takings is for the condemnor to become a tenant under a lease, rather than the fee simple owner. I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work, I provided an exhaustive analysis of the conclusion that government can use eminent domain to create a leasehold. That work went on to conclude that there are circumstances in which government should use eminent domain to create a leasehold, but that difficult problems can arise in such takings. They necessitate refinements in arriving at just compensation. That work also concluded that there is at least one situation in which government should not be allowed to use eminent domain to create a leasehold. I labeled such takings Kelo-type takings, wherein the government uses its power of eminent domain with the objective of creating a leasehold that it will then transfer to a private party for private use. My argument that the use of such Kelo-type takings to create leaseholds should not be allowed was based primarily on public policy considerations. I concluded that the problems arising from takings that create private leaseholds are much worse than those encountered in situations such as Kelo, in which government acquires a fee simple from the condemnee and then makes a transfer to a private party, because the form disrupts the social contract between government and the people. Any such conclusion demands reexamination on theoretical grounds, which is done in this Article.\u27 In order to re-examine the question, it formally extends the jurisprudential philosophy of therapeutic justice to eminent domain in general and specifically to takings to create leaseholds. The principles underlying therapeutic jurisprudence, as well as the illuminating insights derived from its application, confirm the prior conclusion
Introduction
No full textThe practice of elder law covers many legal subjects and is considered a horizontal rather than a vertical practice of law. A criminal law attorney representing a client accused of shoplifting will look to the same section of the criminal code whether the client is 18 or 81. An elder law attorney will rely on many different laws and procedures based on the needs of a particular client. Elder law is defined by the client to be served. The elder law attorney does not focus on a particular law or statute, but a segment of the population. The problems affecting a senior client will dictate the specific legal solutions offered by the attorney. While I began my legal career as a traditional estate-planning attorney, it transformed as the issues I was presented with were less about what happens when the client dies, and more about what happens when the client keeps living, but due to age or disease, lacks the ability to remain independent