Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement

The use of solitary confinement in U.S. prisons and jails has come under increasing scrutiny. Over the past few months, Supreme Court Justice Anthony Kennedy all but invited constitutional challenges to the use of solitary confinement, while President Obama asked, “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day for months, sometime for years at a time?” Even some of the most notorious prisons and jails, including California’s Pelican Bay State Prison and New York’s Rikers Island, are reforming their use of solitary confinement because of successful litigation and public outcry. Rovner suggests that in light of these developments and “the Supreme Court’s increasing reliance on human dignity as a substantive value underlying and animating constitutional rights,” there is a strong case to make that long-term solitary confinement violates the constitutional right to freedom from cruel and unusual punishment.

Double Reasonableness and the Fourth Amendment

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.

The Work of the Task Force to Implement Amendment 64: A Case Study

This short essay – taken from a keynote address given at the University of Denver’s Marijuana at the Crossroads Conference – describes the dynamics of marijuana law and policy in the United States with a particular eye toward the federalism implications of marijuana legalization in the states. The essay discusses the history of marijuana regulation in the United States, sets forth a number of possible scenarios going forward, and makes a few, tentative predictions about the future.

High Value Lies, Ugly Truths, and the First Amendment

Lying has a complicated relationship with the First Amendment. It is beyond question that some lies – such as perjury or pretending to be a police officer – are not covered by the First Amendment. But it is equally clear that some lies, even intentionally lying about military honors, are entitled to First Amendment protection. U.S. v. Alvarez, 132 S. Ct. 2537 (2012). To date, however, both Supreme Court doctrine and academic commentary has taken for granted that any constitutional protection for lies is purely prophylactic – it protects the liar to avoid chilling truthful speech. This Article is the first to argue, contrary to conventional wisdom, that certain types of lies paradoxically advance the values underlying the First Amendment. Our framework is descriptively novel and doctrinally important insofar as we provide the first comprehensive post-Alvarez look at the wide range of lies that may raise First Amendment issues. Because there was no majority opinion in Alvarez, there is uncertainty about which standard of constitutional scrutiny should apply to protected lies, an issue we examine at length. Moreover, our normative claim is straightforward: when a lie has intrinsic or instrumental value it should be treated differently from other types of lies and warrant the greatest constitutional protection. Specifically, we argue that investigative deceptions – lies used to secure truthful factual information about matters of public concern – deserve the utmost constitutional protection because they advance the underling purposes of free speech: they enhance political discourse, help reveal the truth, and promote individual autonomy. A prototypical investigative deception is the sort of misrepresentation required in order for an undercover journalist, investigator, or activist to gain access to information or images of great political significance that would not be available if the investigator disclosed her reporting or political objectives. Tactical use of such lies have a long history in American journalism and activism, from Upton Sinclair to his modern day heirs. Using the proliferation of anti-whistleblower statutes like Ag Gag laws as an illustrative example, we argue that investigative deceptions are a category of high value lies that ought to receive rigorous protection under the First Amendment. At the same time, we recognize that not all lies are alike and that in other areas, the government regulation of lies serves legitimate interests. We therefore conclude the Article by drawing some limiting principles to our theory.

Psychological Perspectives on the Civil Liberties of Transgendered Inmates in a Prison Setting

As society becomes increasingly less binary, and moves towards a more spectrum based approach to mental illness, medical illness, and personality, it becomes necessary to address this shift within formerly rigid institutions. This paper explores this shift as it is occurring within correctional settings around the United States concerning the medical care, housing, and safety of transgendered inmates. As there is no legal standard for the housing or access to gender-affirming medical care (i.e., hormone therapy, sexual reassignment surgery), these issues are addressed on an institutional level, with very little consistency throughout the country. Currently, most institutions follow a genitalia-based system of classification. Within the system, core beliefs are held, some adaptive and some no longer adaptive, that drive the system's behavior and outcomes. With regard to transgendered inmates, several underlying beliefs within the system serve to maintain the status quo; however, the most basic underpinning is the system's reliance on a binary gender system. As views of humane treatment of the incarcerated expand and modernize, the role of mental health within corrections has also expanded. Psychologists, social workers, counselors, and psychiatrists are found in almost all correctional facilities, and have become a voice of advocacy for an often underserved population.

Communication in Cyberspace

This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language. This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way people use the Internet to develop a definition of “communication” that reflects those realities. That is, we aim to provide effective tools by which prosecutors can address wrongful conduct without punishing innocuous behavior or chilling speech. We conclude by proposing a model statute that appropriately defines “communication.” We recommend that state legislatures adopt the statute or modify existing laws to match it in pertinent part and demonstrate how the statute would apply in a range of situations.

Governance and Uncertainty

Government actors create law against a backdrop of uncertainty. Limited information, unpredictable events, and lack of understanding interfere with accurately predicting a legal regime’s costs, benefits, and effects on other legal and social programs and institutions. Does the availability of no-fault divorce increase the number of terminated marriages? Will bulk-collection of telecommunications information about American citizens reveal terrorist plots? Can a sensitive species breed in the presence of oil and gas wells? The answers to these questions are far from clear, but lawmakers must act nonetheless. The problems posed by uncertainty cut across legal fields. Scholars and regulators in a variety of contexts recognize the importance of uncertainty, but no systematic, generally-applicable framework exists for determining how law should account for gaps in information. This Article suggests such a framework and develops a novel typology of strategies for accounting for uncertainty in governance. This typology includes “static law,” as well as three varieties of “dynamic law.” “Static law” is a legal rule initially intended to last in perpetuity. “Dynamic law” is intended to change, and includes: (1) durational regulation, or fixed legal rules with periodic opportunities for amendment or repeal; (2) adaptive regulation, or malleable legal rules with procedural mechanisms allowing rules to change; and (3) contingent regulation, or malleable legal rules with triggering mechanisms to substantively change to the rules. Each of these strategies, alone or in combination, may best address the uncertainty inherent in a particular lawmaking effort. This Article provides a diagnostic framework that lawmakers can use to identify optimal strategies. Ultimately, this approach to uncertainty yields immediate practical benefits by enabling lawmakers to better structure governance.

Background Checks for Firearms Sales and Loans: Law, History, and Policy

This article examines past and present systems requiring that a person receive permission before buying or borrowing a firearm. The article covers laws from the eighteenth century to the present. Such laws have traditionally been rare in the United States. The major exceptions are antebellum laws of the slaves states, and of those same states immediately after the Civil War, which forbade gun ownership by people of color, unless the individual had been granted government permission. Today “universal background checks” are based on a system created by former New York City Mayor Michael Bloomberg and his “Everytown” lobby. Such laws have been enacted in several states, and also proposed as federal legislation. Besides covering the private sale of firearms, they also cover most loans of firearms and the return of loaned firearms. By requiring that almost all loans and returns may only be processed by a gun store, these laws dangerously constrict responsible firearms activities, such as safety training and safe storage. Massachusetts, Connecticut, and California are among the jurisdictions which have enacted less restrictive, more effective legislation which create controls on private firearms sales, without inflicting so much harm on firearms safety.

The First Century of Right to Arms Litigation

This Article examines state court cases involving the right to arms, during the first century following ratification of the Amendment in 1791. This is not the first article to survey some of those cases. This Article includes additional cases, and details the procedural postures and facts, not only the holdings. The Article closely examines how the Supreme Court integrated the nineteenth century arms cases into Heller and McDonald to shape modern Second Amendment law. Part I briefly explains two English cases which greatly influenced American legal understandings. Semayne’s Case is the foundation of “castle doctrine” — the right to home security which includes the right of armed self-defense in the home. Sir John Knight’s Case fortified the tradition of the right to bear arms, providing that the person must bear arms in a non-terrifying manner. Part II examines American antebellum cases; these are the cases to which Heller looked for guidance on the meaning of the Second Amendment. Part III looks at cases from Reconstruction and the early years of Jim Crow, through 1891. As with the antebellum cases, the large majority of post-war cases are from the Southeast, which during the nineteenth century was the region most ardent for gun control. The heart of gun control country was Tennessee and Arkansas; courts there resisted some infringements of the right to arms, but eventually gave up. Heller and McDonald did not look to the Jim Crow cases as constructive precedents on the Second Amendment.

Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.

Conceptual Decolonization of Space: Worldview and Language in Anishinaabe Akiing

This dissertation examines the role of worldview and language in the cultural framework of American Indian people. In it I develop a theory of worldview which can be defined as an interrelated set of logics that orients a culture to space (land), time, the rest of life, and provides a prescription for understanding that life. Considering the strong links between language and worldview, it is methodologically necessary to focus on a particular language and culture to decolonize concepts of and relationships to land. In particular, this dissertation focuses on an Anishinaabe worldview as consisting of four components, which are; (1) an intimate relationship to a localized space; (2) a cyclical understanding of time; (3) living in a web of relatedness with all life, and (4) understanding the world around us in terms of balance. The methodological approach draws from Anishinaabemowin, the traditional Anishinaabe language, as a starting place for negotiating a linguistic-conceptual analysis of these logics to decolonize the understandings of land, time, relatedness and balance. This dissertation helps to demonstrate that the religious language as codified in the 1st Amendment to the United States Constitution as religious freedom is unable to carry the meaning of the fundamental relationships to land that are embedded in Anishinaabemowin and culture. I compare the above Anishinaabe worldview to that of the eurowestern culture in America, which is; (1) the domination of space; (2) a linear progression of time; (3) a hierarchical organization of life; and (4) understanding the world as a Manichean battle of good versus evil. This dissertation seeks to decolonize American Indian translational methodologies and undermine the assumptions of eurowestern cultural universality.