Showing papers in "Journal of Criminal Law & Criminology in 1999"

The Collapse of the Harm Principle

Abstract: In November 1998, fourteen neighborhoods in Chicago voted to shut down their liquor stores, bars, and lounges, and four more neighborhoods voted to close down specific taverns. Chicago's temperance movement reflects a fascinating development in the legal enforcement of morality. Instead of arguing about morals, the proponents of enforcement are talking about individual and social harms in contexts where, thirty years ago, the harm principle would have precluded regulation or prohibition. The same argument about harm has been used to justify the regulation of sexual practices among military personnel infected with the HIV virus. The collapse of the harm principle has significantly altered the map of liberal legal and political theory in the debate over the legal enforcement of morality. Liberal theory prevails in the sense that the harm principle is hegemonic—if only in theory. The original progressive political valence of the harm principle, as well as the contemporary conservative tilt, are the products of particular historical and political contexts.

Foreword: Race, Vagueness, and the Social Meaning of Order-Maintenance Policing

Abstract: Follow this and additional works at: http://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Criminal Law Commons, Criminology Commons, Inequality and Stratification Commons, Law and Society Commons, Law Enforcement and Corrections Commons, Race and Ethnicity Commons, and the Social Control, Law, Crime, and Deviance Commons

Managed health care in prisons as cruel and unusual punishment.

Abstract: In an effort to cut costs, many state and county incarceration facilities have turned to private managed health care organizations to provide health care for their prisoners. Despite -- or, perhaps, because of -- the money saved by the government and the money made by managed care organizations, the level of health care in these facilities has decreased, and prisoner complaints and lawsuits are on the rise. Private managed health care in prisons has resulted in inmate injuries and deaths, many of which have been and are being challenged on Eighth Amendment grounds.Constitutional violations in prison health care are determined under the deliberate indifference standard. The Supreme Court has held that government entities, or private companies carrying out governmental duties, can be held liable for systemic deliberate indifference violations where the entity promulgates an official custom or policy that violates prisoners? constitutional rights. Without question, some managed health care systems in prisons contain aspects that constitute an official custom or policy that violates prisoners' constitutional rights.Some aspects of managed care, particularly direct financial incentives to avoid treating inmates, constitute per se deliberate indifference. Courts should find that the implementation of these policies always fails constitutional muster. Other aspects of managed care create a rebuttable presumption that deliberate indifference exists. Measures to save money -- such as cutting staff, hiring less qualified staff, and denying, delaying or providing inefficacious treatment -- can give rise to a rebuttable presumption that deliberate indifference has occurred.Legislatures might consider banning private managed health care in prisons and jails. In the alternative, legislatures might consider enacting and departments of corrections might consider contracting for provisions that ensure the adequate treatment of inmates. Absent these alternatives, the use of managed health care in incarceration facilities, and the decreased level of care that comes along with it, should remain under the constant vigilance of federal and state courts, whose obligation it is to enforce the Constitution of the United States.

Confessions and Culture: The Interaction of Miranda and Diversity

Abstract: This article sets forth and analyzes the current law on the interaction of MIRANDA and culture. When MIRANDA was decided in 1966, the Supreme Court paid little attention to the cultural background or language abilities of the defendant. Since that time, however, the United States has experienced an immigration explosion. Between 1969 and 1989, more than 12 million individuals have legally immigrated to this country. Moreover, the source of these immigrants has changed significantly. Before 1965, Europe provided the majority of American's immigrants. Since 1965. Asia and Latin American share that distinction. In addition to a language other than English, these immigrants have brought to the United States their different culture - "their sense of self identification and group identification, engendered by race, ethnicity, religion and language." These cultural attributes have deeply influenced American society and have affected the perceptions of interrogated individuals. As a result of this immigration explosion, courts have been obliged to address the application of MIRANDA to those of different cultures. In their interpretation of MIRANDA, courts throughout the United States have confronted such factors as the defendant's cultural heritage, language skills and familiarity with the American criminal justice system. From the definition of custody to the evaluation of a waiver, court have considered whether and how the defendant's cultural history should be factored into the MIRANDA analysis. This article makes clear that, with the newly-populated American society, it is critically important for lawyers, judges and legal scholars to be sensitive to the role that culture and language play in the interpretation of confession law under MIRANDA.

Responding to child homicide: A statutory proposal

Abstract: Those who kill young children are nearly always caretakers or persons in a significant relationship to the child The homicide of infants and young children is infrequently accomplished with the use of firearms, knives, or other weapons commonly classified as dangerous Rather, very young children are killed at the hands of their caretakers Although the most common cause of death in children under five years of age is beating, the very youngest victims are more likely to be suffocated, violently shaken, or thrown This article provides a thorough commentary on public opinion and the established law concerning the investigvation and prosecution of these acts

Louisiana's newest capital crime: The death penalty for child rape

Abstract: This Comment proposes that imposing the death penalty for child rape is unconstitutional because the Eighth Amendment prohibits punishments that are disproportionate to the crimes for which they are imposed. Part II reviews the background law involving the Eighth Amendment and relevant Supreme Court case law. Part III analyzes the issues presented by the decision in State v. Wilson and discusses four hurdles for the Louisiana statute: (1) a procedural hurdle which insures against arbitrary and capricious imposition of the death penalty; (2) that the punishment must not be excessive in relation to the crime; (3) that the punishment must serve a legitimate goal beyond the needless imposition of pain and suffering; and (4) that a punishment must not be so severe as to be unacceptable to contemporary society. Part IV concludes that the Louisiana statute will likely be struck down when it reaches the Supreme Court of the United States because it is excessive punishment for the crime of rape.

Law and Police Practice: Restrictions in the Law of Interrogation and Confessions

Abstract: When the police handcuff a suspected criminal, they, as well as the arrested person himself, have a very definite understanding as to where he is going. The purpose of the handcuffing is also quite apparent. But when the courts handcuff the policeand it is suggested that some of them do-it is doubtful if they have a clear-cut notion as to where they are headed. It is also questionable whether such courts have given adequate consideration to other and perhaps better methods for coping with the police problems about which they are concerned. Artificial restrictions which the courts have imposed upon law enforcement agencies and officers are the result of two basic misconceptions regarding police misconduct. The first misconception concerns the role to be played by the courts with respect to the control or supervision of police activities. The theory has been developed by some judges that the judiciary is privileged to exert disciplinary control and supervision over the police. For this position constitutional authority seems to be completely lacking. Courts have the power, of course, to reject evidence illegally obtained, and particularly so where the trustworthiness or validity of the evidence may be affected by the methods used to secure it. But that is a distinctly different matter from the control or supervision of police activities themselves. Even within the federal system, there seems to be no constitutional authority for the exercise of any supervisory power by the Supreme Court over the activities of federal officers, although there is no doubt about the Supreme Court's supervisory power with respect to the lower federal courts and the evidence that may be admitted in the trial of federal cases. The fundamental concept of a threefold division

Firearms Identification--Ballistics

Abstract: Judicial tribunals usually exercise considerable caution regarding the admissibility into evidence of expert testimony concerning some new phase of our ever increasing wealth of scientific knowledge. In certain instances this attitude has led courts of justice to reach apparently absurd results. The scientist occasionally reads with scorn the judicial denunciation of, or the refusal to consider, the application of a scientific principle or instrumentality. Yet the conscientious scientific investigator himself exhibits the same degree of caution, if not more, whenever there appears the announcement of some alleged discovery or invention.