Thwarting California’s Presumptive LWOP Penalty for Adolescents: Psychology’s and Neuroscience’s Message for the California Justice System – Note by Ashley N. Johndro

From Volume 83, Number 2 (January 2010)

In California, adolescents convicted of special circumstance first-degree murder are presumptively sentenced to life without the possibility of parole (“LWOP”) pursuant to section 190.5 of the California Penal Code. To date, California has sentenced more than 250 adolescents to die behind bars. Recent studies in psychology and neuroscience challenge this status quo. These disciplines suggest that adolescents are biophysically determined to suffer from poor decisionmaking capacities and behavior control. This Note argues that adolescent culpability is mitigated by currently valued standards, informed by science’s conception of the adolescent, and that adolescent crimes consequently warrant the lesser punishment of twenty-five years to life.



Cyber Crime 2.0: An Argument to Update the United States Criminal Code to Reflect the Changing Nature of Cyber Crime – Note by Charlotte Decker

From Volume 81, Number 5 (July 2008)

In 1945, two engineers at the University of Pennsylvania invented the first general-purpose electronic computing device—the Electronic Numerical Integrator and Computer (“ENIAC”). The ENIAC was capable of 5000 simple calculations a second, yet it took up the space of an entire room, “weighed 30 tons, and contained over 18,000 vacuum tubes, 70,000 resistors, and almost 5 million hand-soldered joints.” This machine cost over $1 million dollars, equivalent to roughly $9 million today. Over the next thirty years integrated circuits shrunk, yielding microprocessors able to perform millions and billions of calculations per second with new storage media able to hold megabits and gigabits of data. As a result, computers became smaller, more advanced, and dramatically less expensive. Still, prior to the late-1980s, these and other computers were “solely the tool[s] of a few highly trained technocrats.” In the mid-1980s, only 8.2 percent of American households contained computers. American public businesses, universities, and research organizations used only 56,000 large “general purpose” computers and 213,000 smaller “business computers”; private businesses used another 570,000 “mini-computers” and 2.4 million desktop computers; and the federal government employed between 250,000 and 500,000 computers.


Unreasonably Wrong: The Supreme Court’s Supremacy, the AEDPA Standard, and Carey v. Musladin – Note by Padraic Foran

From Volume 81, Number 3 (March 2008)

Plenty of injustices go judicially unresolved. On the Supreme Court’s docket, however, injustices in the criminal context have become alarmingly perfunctory, and the cause is a single procedural mechanism: a piece of legislation passed in 1996 called the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). Though in effect for more than ten years now, two representative cases serve to demonstrate the enormous power of the AEDPA.




Intuitions of Justice: Implications for Criminal Law and Justice Policy – Article by Paul H. Robinson & John M. Darley

From Volume 81, Number 1 (November 2007)

Recent social science research suggests that many if not most judgments about criminal liability and punishment for serious wrongdoing are intuitional rather than reasoned. Further, such intuitions of justice are nuanced and widely shared, even though they concern matters that seem quite complex and subjective. While people may debate the source of these intuitions, it seems clear that, whatever their source, it must be one that is insulated from the influence of much of human experience because, if it were not, one would see differences in intuitions reflecting the vast differences in human existence across demographics and societies.



Arnold, Digital Media, and the Resurrection of Boyd – Postscript (Comment) by Brian M. Hoffstadt

From Volume 81, Number 1 (November 2007)

In the fall of 2006, United States District Judge Dean D. Pregerson handed down United States v. Arnold, which held that U.S. Customs agents violated the Fourth Amendment when they searched a laptop computer belonging to an inbound international traveler at Los Angeles International Airport without any particularized suspicion. The Ninth Circuit recently overturned the district court’s ruling, but the district court’s analytical approach remains of vital interest. That is because the decision was the first in the nation to find that the “border exception” to the Fourth Amendment—which permits law enforcement to conduct suspicionless, routine searches of personal items crossing the international border or its functional equivalent—did not apply to laptop computers. Given its novelty and potential implications for all digital media, it is hardly surprising that the district court’s ruling in Arnold has grabbed the attention of the press, law student commentators, civil liberties lawyers, and, most notably, other judges.



Remedies for California’s Death Row Deadlock – Article by Judge Arthur L. Alarcón

From Volume 80, Number 4 (May 2007)

The unconscionable delay in the disposition of appeals and habeas corpus proceedings filed on behalf of California’s death row inmates continues to increase at an alarming rate. It is now almost double the national average. Procedural changes must be made to the manner in which death penalty judgments are reviewed to avoid imprisoning a death penalty inmate for decades before the condemned prisoner’s constitutional claims are finally resolved.

This Article identifies the woeful inefficiencies of the current procedures that have led to inexcusable delays in arriving at just results in death penalty cases and describes how California came to find itself in this untenable condition. It also recommends structural and procedural changes designed to reduce delay and promote fairness. These recommendations include: transferring exclusive jurisdiction over automatic appeals from judgments of death away from the California Supreme Court to the California Courts of Appeal; requiring that capital case state habeas corpus petitions be filed in the trial court with the right to appeal to the California Courts of Appeal, rather than filing the petitions with the Supreme Court in the first instance; providing adequate training and compensation for counsel appointed to represent indigent death row inmates; and providing continuity of counsel for state and federal habeas corpus proceedings. These changes would significantly reduce delay and promote a more just resolution for death penalty inmates and society.



Beyond Conspiracy? Anticipating Prosecution and the Challenge of Unaffiliated Terrorism – Article by Robert M. Chesney

From Volume 80, Number 3 (March 2007)

There is a continuum that runs from contemplation to completion of a criminal act. Precisely how early along that continuum does federal criminal liability attach in circumstances involving potential acts of terrorism?

The significance of this question became apparent during the summer of 2006 in the wake of a string of arrests in terrorism-related cases both at home and abroad. The first set of arrests came in Toronto in early June, when approximately seventeen men were taken into custody by the Royal Canadian Mounted Police on charges that they had acquired three tons of ammonium nitrate and were planning to bomb a variety of targets in Ottawa. Eventually, two U.S. citizens also were arrested in connection with this group. Meanwhile, in late June, local and federal agents in Miami arrested the head of an obscure religious sect known as the Seas of David, along with six followers, on charges that they were conspiring to carry out a bombing campaign, possibly to include the Sears Tower in Chicago. Two weeks later, the press reported that officials in Lebanon and elsewhere had arrested participants involved in a plot to destroy the Holland Tunnel, which runs under the Hudson River between New Jersey and New York City.

In each of these cases, U.S. government officials have gone out of their way to calm the public by emphasizing that the plots were disrupted at a preliminary stage. Speaking of the Miami arrests, for example, Federal Bureau of Investigation (“FBI”) Deputy Director John Pistole observed that the plot was “more aspirational than operational.” But the early nature of prosecutorial intervention in these and other terrorism-related cases has not been welcomed in every quarter. The prospect that the government has adopted a policy of prosecuting suspected terrorists at the earliest available opportunity has generated criticism from both the civil liberties and national security perspectives, with the former contending that we risk prosecuting dissenting thought uncoupled from culpable action and the latter contending that such a policy would sacrifice the benefits of additional intelligence and evidence gathering.