STU Scholarly Works (St. Thomas University)
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Embracing Mercy: Rehabilitation as a Means to Fairly and Efficiently Address Immigration Violations
No full textEfforts by the U.S. Congress and the Obama Administration to provide millions of undocumented immigrants a path to legal status will fail unless deserving immigrants are allowed to overcome prior immigration or minor criminal violations. Indeed, a pathway to legal status is a hollow gesture if the path is either too narrow or too steep. As one means of evaluating which immigrants should benefit from comprehensive immigration reform, rehabilitation allows immigrants to demonstrate that they deserve a second chance and provides policymakers with a buffer against critics of immigration reform who allege it is nothing more than an amnesty for persons who violated immigration and criminal laws. This article explores the current limited use of rehabilitation in the immigration context, examines its historic use in the criminal justice system, contrasts the U.S. approach with that employed by Canada, and outlines practical measures which could be taken to ensure that rehabilitation is an effective tool to decide who deserves to walk the path to legal status. A central premise of this article is that, by significant margins, most Americans recognize that the value of welcoming immigrants with somewhat checkered immigration histories and perhaps even low-level criminal records outweighs the moral, social and economic costs of banishment. Current U.S. immigration laws are severe, unyielding and lead to the separation of families and the loss of productive workers for U.S. employers. Families, employers and educational institutions operate in a shadowland in which various members are a blend of U.S. citizens, Lawful Permanent Residents and undocumented immigrants.\u27 Comprehensive immigration reform offers the hope that millions of immigrants who have lived and worked in the U.S. will be able to gain legal status. A touchstone of comprehensive immigration reform is that U.S. immigration laws should focus on justice and fairness and, in particular, persons who entered the U.S. illegally or who overstayed visas should not be treated as criminals but, instead, offered a pathway to legal status and eventual citizenship. As a legal, moral and ethical construct, comprehensive immigration reform makes sense: if enacted, families will no longer live in fear of the deportation of one or more of its members, employers will be able to hire needed workers without fear of violating federal and state laws, and American society can become more cohesive and less rent by legal status and ethnic divisions
Social Media in the Sunshine: Discovery and Ethics of Social Media - Florida\u27s Right to Privacy Should Change the Analysis
No full textThe question is whether the liberal discovery rules have gone too far and where the line should be drawn in Florida to protect the privacy interests of individuals from being implicated by overly permissive rules of discovery. Current case law on this issue is informative, but demonstrates that courts need direction on how to decide these complex issues in a uniform manner. The courts that have rendered decisions regarding discovery of social networking sites ( SNS ) have made attempts to balance individual privacy interests in the information contained on the SNS with the broad rules of discovery. Focusing on Florida law, this article will argue that, even in the absence of a constitutional or legislative amendment, federal discovery rules and Florida law dictate that individual privacy interests should play a larger role in a court\u27s determination of whether the content contained on SNS is automatically discoverable
Double Jeopardy in the Inter-American System of Human Rights: Balancing the Right and the Remedy
No full textOn December 11, 2009, the Guatemalan Supreme Court ordered the re-opening of four cases involving murders committed toward the end of the country\u27s civil war. The concise sentences were nearly identical in their summary determinations to vacate all earlier sentences - some of which were acquittals of the accused - and to resume criminal proceedings against all those that might be responsible for the crimes. The Guatemalan Supreme Court acknowledged that it was complying with judgments of the Inter- American Court of Human Rights (IACtHR), which had determined the international responsibility of Guatemala for failing to investigate the killings with due diligence and sanction the perpetrators. Yet, it offered no explanation for its decision to reexamine the sentences of acquittal. These and similar orders in Peru, Colombia, and Argentina were motivated by the IACtHR\u27s jurisprudence on the principle of non bis in idem, or double jeopardy. The Court has interpreted this principle when analyzing violations of the American Convention on Human Rights (the Convention) and when granting reparations for such violations. These interpretations have not always been consistent, creating a difficult task for domestic courts that seek to apply a coherent rule that balances the rights of victims with those of the accused. The IACtHR\u27s jurisprudence has also failed to provide guidance to states in an area in which it is most needed: when existing law is insufficient to impel the prosecution of those responsible for serious human rights violations. This article opens in Part II by presenting a background of the Inter-American system of human rights and the principle of non bis in idem. Part III explores how the IACtHR has interpreted this principle, both as a right and in the context of reparations. Part IV presents a critique of the manner in which the principle was adopted and its content. Part V examines how state parties have applied the principle in seeking to make reparations for human rights violations and questions whether they have placed the rights of the accused in peril in so doing
Sorry Linus, I Need Your Security Blanket: How the Smartphone, Constant Connectivity with the Internet, and Social Networks Act as Catalysts for Juror Misconduct
No full textIn the context of the judicial system, it is the judges, lawyers, and parties to lawsuits who are equally affected by juror\u27s statements. While this problem is not exclusive to criminal law, it is within the context of criminal law that the most severe problems are presented to the courts. This is not an attempt to suggest any lack of seriousness associated with a civil claim, but the fact that the stakes for a defendant remain higher in a criminal case because an individual\u27s fundamental, constitutional rights are at issue is a significant difference. The knee jerk reaction by the courts and State Bar Associations has been to include a standard jury instruction admonishing jurors from using the Internet to either conduct any research or use social media to comment about the trial. However, the alarming number of cases involving Internet Misconduct that arise from the use of social media or Internet search engines demonstrates that all too often, jurors succumb to the temptation of constant connectivity. This growing trend highlights a breakdown between the mindset of jurors and the judicial system. It seems . . . that many jurors do not see blogging, Tweeting or posting as communication, or at least they don\u27t consider it to fall within the rubric of traditional admonitions
Surveillance Technology and the Loss of Something a Lot Like Privacy: An Examination of the Mosaic Theory and the Limits of the Fourth Amendment
No full textCombating Human Trafficking Through Transnational Law Enforcement Cooperation: The Case of South Eastern Europe
No full textBook: Policing Across Borders
This study aims at analyzing one of the most challenging elements of the international community’s efforts to combat the grave societal problem of human trafficking. It examines the problem through the lenses of the New Haven School of Jurisprudence. Thematically, this study focuses on substantive and procedural issues of international cooperation in criminal matters, concentrating on the transnational organized crime of trafficking in human beings. Geographically, the study investigates the prospects for such cooperation through showcasing some countries in the region of South Eastern Europe. The methodology employed helps to delimit the problem of transnational crime, cooperation in criminal matters, or lack thereof; it identifies the conflicting claims and lays out past trends in decision, actual agreements, and instances of cooperation, to be followed by the projection of future trends. The study concludes with an appraisal of past practices and recommends better approaches to the problem, in order to enhance the prospects for a world public order of human dignity in this field.https://scholarship.stu.edu/faculty_book_chapters/1004/thumbnail.jp
Your Lethal Injection Bill: A Fight to the Death over an Expensive Yellow Jacket
No full textThis article reviews in detail the history of capital punishment, and the United States\u27 constitutional proscription of cruel and unusual punishment. Examined are the Magna Carta of 1215, English Bill of Rights of 1689, and various bills of rights of the early American colonies, as they were critical to the Drafters\u27 enlightened understanding of corporal punishment, which eschewed the barbaric and inhumane and culminated in the Eighth Amendment\u27s prohibition of cruel and unusual punishment. Included, also, is an examination of the early cases alleging Eighth Amendment violations, for they developed the judiciary\u27s determination of whether certain methods of capital punishment, such as the firing squad and the electric chair, were too cruel or unusual to pass constitutional muster. This article further exposes the great societal costs engendered by the United States\u27 enlightened approach to capital punishment. Specifically discussed are the enormous expenses beget by the death penalty process, and how these expenses deplete local state economies, distort economic decisions, and render capital punishment anti-productive. This article then particularly examines the litigation concerning lethal injections, and the recent inclusion of pentobarbital into the death-producing cocktail. The ultimate question posed is thus: considering the recent turn of economic events, can the United States continue to maintain the death penalty when life imprisonment without parole may prove to be more cost-efficient?
Litigation on behalf of death row inmates has exposed problems at every step of the process, including the mixing of the drugs; the setting of the IV lines; the administration of the drugs; and the monitoring of their effectiveness. At each step, discovery has revealed untrained and unreliable personnel working with inadequate equipment under poorly designed conditions. Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate\u27s consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of a slightly or marginally safer alternative is, as the plurality notes, insufficient. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a [s]tate fails to adhere to contemporary standards of decency if it declines to employ those measures