Archive for the ‘Constitutional Law’ Category

Despite criticism, Americans not ready to kill death penalty

1,September 30, 2011

Yesterday on September 28, a week to the day after Georgia executed Troy Davis, the United States Supreme Court denied an application to stay Manuel Valle’s death sentence.  Later the same day, Florida executed Valle after he had spent 33 years on death row.  In his dissent from the denial of the stay, Justice Breyer argued that Valle’s execution would be excessively cruel (“I have little doubt about the cruelty of so long a period of incarceration under sentence of death”) and lacks utilitarian purpose (“It is difficult to imagine how an execution following so long a period of incarceration could add significantly to that punishment’s deterrent value”).  He also critiqued a society that would demand his execution on retributivist grounds:

I would focus upon the ‘moral sensibility’ of a community that finds in the death sentence an appropriate public reaction to a terrible crime.  And, I would ask how often that community’s sense of retribution would forcefully insist upon a death that comes only several decades after the crime was committed.

Justice Breyer is not the only jurist on the High Court to voice his opposition to capital punishment recently.  On September 15, Justice Ginsburg spoke in San Francisco at University of California Hastings College of the Law.  In her talk, Justice Ginsburg stated “I would probably go back to the day when the Supreme Court said the death penalty could not be administered with an even hand, but that’s not likely to be an opportunity for me.”  She was alluding to Furman v. Georgia (1972) 408 U.S. 238, the case that temporarily halted capital punishment in America. 

Despite criticism by these justices, Field Poll results released today demonstrate that a solid majority of Californian voters favor capital punishment.  The poll shows that 68% of Californians are in favor of keeping the death penalty.  These are, in fact, higher than the national average.  According to Gallup polls, 64% of Americans are in favor of the death penalty.  While support for the death penalty is gradually waning, it appears that neither Californians nor Americans in general are ready to end the practice. 

California Penal Code section 15 permits death as a punishment for a crime.  Several resources at the Alameda County Law Library discuss California’s death penalty law such as chapter 54 of CEB’s California Criminal Law: Procedure and Practice and volume 3, section XVI of Witkin’s California Criminal Law, 3d.  In addition, the Library has numerous titles that discuss the capital punishment policy.  These resources are shelved on the second floor in the KF 9227 call number area.

Fourth Amendment: Dead or Alive?

1,July 13, 2011

Last month, Alex Kozinski, Chief Judge of the United States Court of Appeals for the Ninth Circuit, and his somewhat notorious law clerk, Stephanie Grace, published an opinion piece for the iPad news app, The Daily.  In their article, “Pulling the Plug on Privacy,” the authors eulogize the demise of the Fourth Amendment to the United States Constitution, the part of the Bill of Rights that guards against unreasonable searches and seizures.  They argue that each of us had a hand in killing the Amendment by unwittingly revealing information about ourselves to third parties, eliminating the need for officials to obtain search warrants to learn about our activities.  As they write:

[C]onstitutionally speaking, . . . the Fourth Amendment protects only what we reasonably expect to keep private.  One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

They cite, as an example, grocery store club cards that track individuals’ purchases.  Police were able to access this information in order to show that a suspected arsonist had purchased a fire starter. 

But despite this pessimistic forecast from the Ninth Circuit’s preeminent jurist (and clerk), there might still be some life left in the Amendment.  Consider, for example, a Thomson Reuters news article published just yesterday, “A New Law-Enforcement Tool: Facebook Searches.”  This article discusses how law enforcement agencies are increasingly seeking search warrants in order access users’ information.  While this may appear at first as yet another intrusion into our private affairs, it demonstrates that the Fourth Amendment has not yet been made completely obsolete by the third party doctrine: Government officials still need to obtain search warrants before accessing online information that has been made available to others.  So as Mark Twain might have said, “the reports of [the Fourth Amendment’s] death have been greatly exaggerated.”

If you are interested in learning more about search and seizure law, the Alameda County Law Library has numerous well-regarded resources available.  Among the most comprehensive titles on the subject is Professor LaFave’s six-volume treatise.  And for the most current developments, the library also has attorney-turned-novelist James Scott Bell’s Compendium on Searches and Seizures


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