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Abstract: Has the Supreme Court adequately atoned for Dred Scott and Plessy? A Court majority has never confessed and apologized for the horrors associated with those decisions. And the horrors [...]

Special stigma attaches to zealous public defenders. They are widely viewed as undermining the public welfare, of acting immorally, and of inappropriately empathizing with criminals over victims. Poor funding for public defender offices in many jurisdictions underscores what the body politic in those places thinks of unsparingly zealous public defense. The stigma finds sustenance in an account endorsed by zealous public defenders themselves--that they function as client-centered advocates, operating largely outside the criminal justice system and without caring about the public welfare, about guilt or innocence, or much about victims. This scenario poses a dilemma for zealous public defenders who aim to counter the allegations or for poorly funded defender offices that seek to acquire more resources so that they can consistently provide zealous representation. How can they rebut criticisms with which they largely agree? This Article argues that they could, in theory, acknowledge their work as multi-faceted, requiring that they sometimes serve as zealous advocates but often also in several roles that directly benefit the state. This alternate perspective finds support in the Supreme Court's acknowledgement in recent years that criminal justice has become, for the most part, a system of guilty pleas rather than of trials. Although this strategy is the most truthful and responsive to the critics, this Article finds it unworkable from the perspective of the zealous public defenders, which reveals a conundrum. Zealous public defenders must deceive themselves that they are rebels who do not care about the public interest (or about justice or victims) to effectively serve it. Although they face difficulty in making their own case, this Article exposes the reality and the illusion to help defend zealous public defenders against their critics. [ABSTRACT FROM AUTHOR]

TABLE OF CONTENTS INTRODUCTION I. CHARACTERISTICS OF POST-FURMAN CAPITAL SELECTION THAT PROMOTE THE INFLUENCE OF RACIAL BIAS A. Broad Applicability of Death Penalty B. Decentralized Decision Makers C. Prosecutorial Discretion [...]

Early in the tenure of Chief Justice Roberts, a five-Justice majority of the Supreme Court signaled that it was ready to consider eliminating the exclusionary rule as a remedy for Fourth Amendment violations. The central concern was that, even after decades of limiting the rule through new exceptions, it purportedly lacked utility in balancing protections against the competing dangers of crime and police abuse, the only rationale on which it has been grounded in the modern era. That existential reappraisal never openly occurred, and the exclusionary rule, in further reduced form, still survives. Yet, given the Court's recent conservative shift, there is reason to think that such a fundamental reassessment could now happen. On that view, the methods by which the Court could eliminate the exclusionary rule become important, as do some central normative questions that abolition would raise: In a world without court-ordered suppression, how, if at all, should the Constitution protect criminals against government searches and seizures? And how should it balance protection for law-abiders between the competing dangers of crime and police abuse? For the sake of exploring the implications, this Article assumes that the Court will, indeed, eviscerate the exclusionary rule as a judicially mandated remedy. The Article discusses four routes that the Court could follow. All of them, like the exclusionary rule, have defects. However, one stands out for protecting law-abiders somewhat from police overreach while only modestly protecting criminals and for resting on a constitutional grounding. The Court could substitute for the exclusionary rule an "inclusionary rule" based on the right to jury trial in the Sixth Amendment. [ABSTRACT FROM AUTHOR]

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only "decriminalize" in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate, or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. Neither the Cruel and Unusual Punishment Clause, the Fourth Amendment, the Due Process Clause nor the Equal Protection Clause can justify such a protection, and that would remain true even when most states have legalized. But, could another theory justify this constitutional right? A second important and topical legal question concerns when two or more rights-based clauses in the Constitution can combine to invalidate government action that none of the clauses could disallow on their own. The Supreme Court generally has declined to recognize multiple-clause rights. But, in the past, it occasionally seemed to endorse the approach. And, recently, in Obergefell v. Hodges, it gave new impetus to the idea by declaring the existence of a "synergy" between the Due Process and Equal Protection Clauses that it asserted had helped explain its acknowledgment of certain rights previously and that purportedly helped lead, in the case at hand, to its acknowledgment of a right to same-sex marriage. In consequence, enthusiasm has again intensified over the notion that rights-based clause aggregation can expand constitutional protections. But, is clause aggregation only rhetoric offered to justify something the Court would have done anyway under a single clause or can it sometimes really matter? And, if so, when? This Article puts both problems in play by asking this question: After a super-majority of states legalize, could multiple clauses together reveal a constitutional right to engage in certain recreational marijuana activities? The Article answers with cautious affirmance: Clause aggregation could help justify such a constitutional right, in tightly limited circumstances. But, the Article also notes that many of the contours remain undeveloped in the Supreme Court's jurisprudence on rights-based clause aggregation, complicating any effort to predict whether and how the Justices would apply it in the future to recreational marijuana. [ABSTRACT FROM AUTHOR]

The law governing police interrogation provides perverse incentives. For criminal suspects, the law rewards obstruction and concealment. For police officers, it honors deceit and psychological aggression. For the courts and the rest of us, it encourages blindness and rationalization. This Article contends that the law could help foster better behaviors. The law could incentivize criminals to confess without police trickery and oppression. It could motivate police officers involved in obtaining suspect statements to avoid chicanery and duress. And, it could summon courts and the rest of us to speak more truthfully about whether suspect admissions are the product of informed, intelligent, and voluntary decisions. States could promote these outcomes by providing valuable sentencing concessions to those who confess. [ABSTRACT FROM AUTHOR]

The article discusses the claim that American courts' incorporation of the Excessive Bail Clause in the U.S. Constitution's (USC's) Eighth Amendment imposes limits on the nation's government, and it mentions several U.S. Supreme Court cases which deal with the American Constitution's Bill of Rights including McDonald v. City of Chicago, United States v. Salerno, and Stack v. Boyle. The U.S. Bail Reform Act of 1984 is examined, along with bail schedules and the USC's Due Process Clause.

The article presents a speech by P. D. Atty, formerly a public defender attorney, presented at a small conference of new public defender attorneys sponsored by the American Public Defenders Guild in 2015. Topics discussed include the psychological obstacles facing public defender attorneys relating to providing advocacy for all their clients and the strongest aversion against those defendants claiming to be innocent.

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the "narrowing" rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has since Furman v. Georgia about the problem of inequality that has continued to pervade capital selection. If the Court remains unwilling to strike down unequal death-penalty systems, it should acknowledge the inequality and explain that the problem addressed by the Eighth Amendment is not inconsistency but retributive excess. [ABSTRACT FROM AUTHOR]

The article describes the major challenges for the current death penalty in California as the state has the largest number of pending death sentences in the country. It states that in a referendum, most of the voters will choose the alternative that is abolition as a form of malfunction regarding the death penalty as it has lesser evil effect.