scholarly journals The Constitutional Law of Incarceration, Reconfigured

2018 ◽  
Author(s):  
Margo Schlanger
Keyword(s):  
Due Process ◽  
Use Of Force ◽  
Mass Incarceration ◽  
Federal Court ◽  
Pretrial Detention ◽  
Legal Standards ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Incarcerated Populations ◽  
Lower Courts

103 Cornell L. Rev. 357 (2018)As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.

scholarly journals Constitutional Liberty and the Progression of Punishment

2018 ◽  
Author(s):  
Robert J. Smith ◽  
Zoe Robinson
Keyword(s):  
Death Penalty ◽  
Due Process ◽  
Same Sex ◽  
Individual Liberty ◽  
Life Without Parole ◽  
The Past ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
Marriage Decision

102 Cornell L. Rev. 413 (2017)The Eighth Amendment’s prohibition on cruel and unusual punishment has long been interpreted by scholars and judges to provide very limited protections for criminal defendants. This understanding of the Eighth Amendment claims that the prohibition is operationalized mostly to prevent torturous methods of punishment or halt the isolated use of a punishment practice that has fallen into long-term disuse. This Article challenges these assumptions. It argues that while this limited view of the Eighth Amendment may be accurate as a historical matter, over the past two decades, the Supreme Court has incrementally broadened the scope of the cruel and unusual punishment clause. The Court’s contemporary Eighth Amendment jurisprudence—with its focus on categorical exemptions and increasingly nuanced measures of determining constitutionally excessive punishments—reflects an overt recognition that the fundamental purpose of the Eighth Amendment is to protect vulnerable citizens uniquely subject to majoritarian retributive excess. Animating these developments is a conception of constitutional liberty that transcends the prohibition on cruel and unusual punishment. Indeed, 2015’s same-sex marriage decision, Obergefell v. Hodges, reflects a similar trajectory in the Court’s substantive due process jurisprudence. Taken together, these doctrinal developments illustrate a concerted move to insert the Court as the independent arbiter of legislative excesses that undermine the basic right to human dignity by virtue of unnecessarily impinging upon individual liberty. Ultimately, these liberty-driven developments signal new possibilities for the protection of defendant rights in a variety of contemporary contexts, including juvenile life without parole for homicide offenses, life without parole for non-violent drug offenses, the death penalty, certain mandatory minimum sentences, and the prolonged use of solitary confinement.

Court Decisions and Crime

1969 ◽  
Vol 15 (4) ◽  
pp. 449-458
Author(s):  
William J. Brennan
Keyword(s):  
Due Process ◽  
Federal Court ◽  
Fourteenth Amendment ◽  
Common Interest ◽  
Court Decisions ◽  
Free Society ◽  
Federal Constitution ◽  
The Supreme Court ◽  
Due Process Of Law ◽  
The Common

In the perennial debate on whether court decisions have helped heighten the crime problem, it is essential to reiterate that criminals are not freed on "technicalaties." Not only do these cases usually result in new trials, rather than release of the defendant, but the reversals enforce constitutional guarantees that protect the common interest against oppression. Fifty-five years ago the Supreme Court ruled that evidence obtained through a violation of the Fourth Amendment could not be introduced in a federal court. When the same rule was applied to the states eight years ago, it was hardly an innovation. Rather, it represented a lag in applying the Fourteenth Amendment, which, requiring the states to apply due process of law as called for in the federal constitution, had been adopted in 1868. The evolving decisions are part of a lengthy re-examination de manded by the fact that government has become more powerful and more pervasive than in the days of our ancestors. The de cisions are essential to the preservation of the constitutional structure of government in a free society.

scholarly journals Plaintiff Personal Jurisdiction and Venue Transfer

2019 ◽  
pp. 1463
Author(s):  
Scott Dodson
Keyword(s):  
Due Process ◽  
Federal Court ◽  
Lower Courts ◽  
Implied Consent ◽  
Personal Jurisdiction ◽  
Due Process Rights

Personal jurisdiction usually focuses on the rights of the defendant. This is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization of federal-court personal jurisdiction. And theories based on implied consent stretch that notion too far. Personal jurisdiction legitimately can treat plaintiffs and defendants differently, but those differences call for nuance and fact dependency, not a blanket exemption for plaintiffs from personal-jurisdiction protections. This Essay reestablishes plaintiff-side personal jurisdiction by articulating and justifying the standard for protecting the due process rights of plaintiffs subject to interstate venue transfer without their express consent.

Tinker’s Troubled Legacy

Troublemakers ◽  
2019 ◽  
pp. 171-208
Author(s):  
Kathryn Schumaker
Keyword(s):  
Racial Disparities ◽  
Racial Discrimination ◽  
Corporal Punishment ◽  
Students Of Color ◽  
School Discipline ◽  
Mass Incarceration ◽  
School Officials ◽  
Eighth Amendment ◽  
The Supreme Court ◽  
History Of

This chapter examines how ideas about race and order shaped the way the courts’ articulated students’ rights in relation to school discipline in the 1970s and early 1980s, placed in context of the rise of mass incarceration. The chapter begins by discussing how advocates for students of color confronted racial disparities in school discipline and the ways that the courts limited the kinds of claims students could make about racial discrimination in suspensions and expulsions.In Ingraham v. Wright, the Supreme Court ruled that the Eighth Amendment does not prohibit school officials from using corporal punishment. In New Jersey v. T.L.O., the Court determined that students’ do have a limited right to privacy in relation to searches of their clothing and belongings at school. This chapter places these cases within the context of a longer history of a punitive turn in education and demonstrates how these rulings reinforced existing racial inequities in school discipline.

scholarly journals Manuel v. City of Joliet

2018 ◽  
Vol 5 (4) ◽  
pp. 47-53
Author(s):  
Lynda Hercules Charleson
Keyword(s):  
Due Process ◽  
Fourth Amendment ◽  
Lower Court ◽  
Legal Process ◽  
Pretrial Detention ◽  
Majority Opinion ◽  
The Supreme Court ◽  
Before And After ◽  
Circuit Courts ◽  
Broad Consensus

In Justice Kagan’s majority opinion in Manuel v. City of Joliet, the Supreme Court held that the Fourth Amendment governs a claim sought under 42 U.S.C.A. § 1983 for unlawful pretrial detention, even after the start of the legal process. Following the “broad consensus among the circuit courts,” the Court overturned the Seventh Circuit’s holding that pretrial detention following the start of the legal process was a claim under the Due Process Clause instead of the Fourth Amendment. This note will argue that the Court’s majority opinion correctly held that the Fourth Amendment governs a claim for unlawful pretrial detention both before and after the legal process begins, but the Court incorrectly remanded the statute of limitations issue to the lower court. This note discusses the following: (1) the Fourth Amendment, including its definition, scope, evolution, and remedies; (2) the case at issue; and (3) an analysis of the Court’s holdings.

Localist Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Central Government ◽  
Local Institutions ◽  
Appellate Courts ◽  
Law And Policy ◽  
Large Colony ◽  
The Supreme Court ◽  
Lower Courts ◽  
Bureaucratic Institutions ◽  
Primary Institutions ◽  
County Courts

This chapter shows that, in the absence of bureaucratic institutions, courts were the primary institutions by which central political authorities could enforce law and policy in localities. The courts, in turn, were local institutions under local control in every colony except, perhaps, Pennsylvania. In many colonies juries that determined both law and fact used their power to nullify legislation and other commands of central government. In other colonies, county courts were self-perpetuating bodies whose judges felt free to ignore the commands of appellate courts and other central authorities. Other colonies were so small that power was necessarily local in nature. Pennsylvania was the only large colony in which the Supreme Court controlled the work of lower courts, but its authority was also under challenge.

Forum Non Conveniens and Antisuit Injunctions: An Update

1998 ◽  
Vol 92 (1) ◽  
pp. 41-43
Author(s):  
Andreas F. Lowenfeld
Keyword(s):  
New Jersey ◽  
New South ◽  
Product Liability ◽  
Federal Court ◽  
The United States ◽  
Insurance Companies ◽  
South Wales ◽  
The Supreme Court ◽  
Forum Non Conveniens ◽  
Court Of First Instance

In the April 1997 issue of the Journal, I reported on three cases in which the response to an action brought in the court of one country led not to an answer, but to a countersuit in another country—for an antisuit injunction, a declaration of nonliability or both. One of the cases I discussed arose out of a controversy between an asbestos manufacturer, CSR, and a group of insurance companies, the Cigna Group, that may or may not have been obligated to defend and indemnify the manufacturer in respect of claims in the United States for product liability. The manufacturer brought suit in federal court in New Jersey, raising both contract and antitrust claims. The insurers, as I reported, succeeded in securing an antisuit injunction in the Supreme Court of New South Wales (a court of first instance), and thereafter in defeating a motion by the manufacturer to stay or dismiss, on grounds of forum non conveniens, the insurers’ action seeking a declaration of nonliability. I thought that outcome was wrong: in my view, the Australian court should not have stepped into the controversy, and the insurers should have brought their challenge to the jurisdiction and suitable venue of the New Jersey court in that court.

Legal Aid for Children: Some Reflections

1979 ◽  
Vol 4 (4) ◽  
pp. 29-32
Author(s):  
Brian Lucas
Keyword(s):  
United States Of America ◽  
Due Process ◽  
Juvenile Court ◽  
The United States ◽  
Fourteenth Amendment ◽  
Court System ◽  
Bill Of Rights ◽  
Legal Aid ◽  
Legal Representation ◽  
The Supreme Court

In its Second Main Report, Law and Poverty in Australia, the Commission of Inquiry into Poverty expressed the view that “legal representation for children appearing before the children's court, whether in the criminal or protective jurisdiction, is necessary if justice is to be done.”This view coincides with the opinion of the Supreme Court of the United States of America in In re Gault. It has been said that this decision “unleashed a frontal assault on the juvenile court system.” It confirmed that juveniles were entitled to “due process” and the same protection which the Fourteenth Amendment and the Bill of Rights afforded to adults.

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