The Shadow Criminal Law of Municipal Governance

Although it often escapes attention, municipal governments possess significant authority to enact criminal laws consistent with their expansive home rule and police powers. In this article, Professor Logan explores the numerous ways in which this authority manifests, and reflects upon, several of the main concerns presented by the shadow criminal law thereby created. These concerns include the negative practical consequences for individuals and entire communities associated with the proliferation of criminal laws, in which municipalities play a significant part; the specter that such governments will indulge punitive or parochial tendencies; and the pitfalls associated with intra-state diversification of the criminal law. Professor Logan argues that while localization has intuitive appeal, consistent with the potent historic pull of local autonomy in American governance more generally, this should not blind courts and policy makers to its potential untoward effects. Rather than continuing to focus on police discretion to enforce local laws, heretofore the predominant concern of courts and commentators, Logan urges that attention be directed at the critically important role localities now play in the actual creation of the criminal law

Contingent Constitutionalism: State and Local Criminal Laws and the Applicability of Federal Constitutional Rights

Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment

Proportionality and Punishment: Imposing Life without Parole on Juveniles

The Eighth Amendment provides that “no cruel and unusual punishment shall be inflicted.” The Supreme Court has interpreted to this to mean a punishment cannot be “grossly disproportionate” to the crime. In this article, the author addresses whether an offender\u27s age should play a role in assessing whether a sentence is “grossly disproportionate.” Specifically, the author addresses the increasingly common practice of imposing life without parole on offenders who are under sixteen years of age at the time they committed their offense, and whether such offenders’ youthful status should play a role in proportionality analysis. The article first provides an overview of the rise in punitive approaches in juvenile sentencing and then examines the evolving standards used by the Supreme Court to assess proportionality. The author argues that, given the special traits of the population at issue, and the systemic shortcomings of the juvenile waiver system that ushers juveniles into adult court, appellate courts need to modify the proportionality analysis they employ when assessing the constitutionality of life without parole imposed on those less than sixteen

The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the federal bench, serves with distinction for thirty-one years, addressing some of the most controversial legal issues of his time with a skill, energy, and workhorse determination unknown to most mortals

The Importance of Purpose in Probation Decision Making

Articulation of purpose is, and should be, an important feature of any governmental activity. Since 1962, and the publication of the Model Penal Code, governments have increasingly seen fit to identify the purposes of punishment. To the extent such purposes have been expressly identified, however, they have primarily related to imprisonment, informing the duration inquiry. Governments have been far less dedicated to the articulation of the purposes of probation, a disposition that today easily accounts for the majority of penal outcomes in U.S. courts. This paper explores the role of purpose in probation decision making. It begins with a historical survey of probation, before and after the Model Penal Code, and assesses the unfortunate effects of purposelessness, a deficit the Code\u27s probation provisions did little to ameliorate. The paper observes that as probation has become increasingly diversified in its applications over time, the absence of identified purpose in probation decisions has become all the more problematic. In its final part, the paper discusses the importance of articulated purpose in probation decision making, both with regard to decisions to grant probation and the types of probation conditions to which particular individuals are potentially subject

A House Divided: When State and Lower Federal Courts Disagree on Federal Constitutional Rights

This Article provides the first in-depth examination of state-federal concurrent constitutional authority and does so by focusing on a context in which its consequences are most problematic: within individual states. While a handful of articles over the years have examined state court power vis-a-vis federal constitutional questions more generally, no systematic effort has been undertaken to examine intrastate, state-federal conflict on federal constitutional questions. This Article redresses this deficit, using as its doctrinal locus federal constitutional criminal procedure, with its unique impact on government power and individual liberty and privacy

The Importance of Purpose in Probation Decision Making

Articulation of purpose is, and should be, an important feature of any governmental activity. Since 1962, and the publication of the Model Penal Code, governments have increasingly seen fit to identify the purposes of punishment. To the extent such purposes have been expressly identified, however, they have primarily related to imprisonment, informing the duration inquiry. Governments have been far less dedicated to the articulation of the purposes of probation, a disposition that today easily accounts for the majority of penal outcomes in U.S. courts. This paper explores the role of purpose in probation decision making. It begins with a historical survey of probation, before and after the Model Penal Code, and assesses the unfortunate effects of purposelessness, a deficit the Code\u27s probation provisions did little to ameliorate. The paper observes that as probation has become increasingly diversified in its applications over time, the absence of identified purpose in probation decisions has become all the more problematic. In its final part, the paper discusses the importance of articulated purpose in probation decision making, both with regard to decisions to grant probation and the types of probation conditions to which particular individuals are potentially subject

The Adam Walsh Act and the Failed Promise of Administrative Federalism

For advocates of federalism, these are uncertain times. With hope of meaningful judicial federalism having largely receded, and Congress persisting in its penchant for intrusions on state authority, of late several scholars have championed the capacity of executive agencies to enforce and preserve federalism interests. This paper tests this position, providing the first empirically based critical analysis of administrative federalism, focusing on the recently enacted Adam Walsh Act, intended by Congress to redesign states’ sex offender registration and community notification laws. The paper casts significant doubt on the accepted empirical assumptions of administrative federalism, adding to the limited evidence amassed to date on state influence on agency rulemaking, and provides an important cautionary tale for future agency-based criminal justice mandates that will likely come to pass