Volume 77, Issue 1

 Complete Index of Volume 77, Issue 1


Slavery Under the Thirteenth Amendment: Race and the Law of Crime and Punishment in the Post Civil War South

Peter Wallenstein

This Article takes Paul Finkelman’s focus on the origins and legacy of black as criminal and combines it—at a later time than under chattel slavery—with black as a laborer. With an end declared to individual ownership of enslaved laborers, new questions arose regarding the liberty and labor of former slaves. A legal, political, and economic struggle ensued over who would control black southerners’ liberty and labor—that is, whether it would be black southerners themselves who would hold this control. Part I recounts how the Thirteenth Amendment expressly permitted a recurrence of slavery, provided only that such enslavement constitutes a punishment for violating a criminal statute. Part II explores the new forms of slavery that spread across the South in ways more or less consistent with the language of the Thirteenth Amendment.

Restitution and the Excessive Fines Clause

Kevin Bennardo 

This Article offers solutions to further the conversation regarding the Eighth Amendment’s limits on restitution. The Excessive Fines Clause applies to payments that involve sufficient governmental involvement and are at least partially punitive.3 Criminal restitution satisfies both components and therefore falls within the compass of the Clause. To test for constitutional excessiveness, the amount of the restitution order should be aggregated with other monetary payments that constitute the Eighth Amendment “fine.” That cumulative fine should then be weighed against the gravity of the defendant’s offense conduct for gross disproportionality. Restitution should not be subjected to a special causation-based excessiveness test because causation is predominantly relevant to the compensatory aspect of restitution, not to its punitive aspect.

The Right to Redemption: Juvenile Dispositions and Sentences

Katherine Hunt Federle

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation.State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of` juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed. The analysis also considers the collateral consequences for minors who are adjudicated delinquent or who are criminally convicted. The discussion then turns to the effects of juvenile and criminal court involvement on children and the subsequent impact on life outcomes. The analysis considers theoretical, jurisprudential, and constitutional implications of juvenile sentencing with a special emphasis on the Supreme Court’s recent decisions. This Article concludes with the proposal for the contours of a right to redemption and its implications for reform to the current system and suggests strategies for the individual defense lawyer.

Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing

Kenya J.H. Smith

Part I of this Article explores the history and policies that explain the disparate sentencing treatment of organizations and individuals under the Reform Act and attendant sentencing guidelines. Part II examines the history and evolution of personhood theories underlying these policies and resulting statute and guidelines. Part III examines the Hobby Lobby decision and how the Supreme Court’s recognition of a business corporation’s religious rights necessarily implicates the existence of a corporate soul, making those entities morally culpable and justifying greater alignment of the goals and sentencing options provided in the Reform Act and attendant guidelines. Part IV addresses the argumentsagainst amending the Reform Act and attendant guidelines for greater alignment of individual and organizational sentencing. The Article concludes that the Reform Act and attendant sentencing guidelines should be amended to better reflect the organizational soul and corresponding criminal culpability implicated by the Hobby Lobby Court’s recognition of business corporations’ religious rights.


The Lack of Money is the Root of All Evil: Louisiana’s Ban on Bail Without Surety

Gabriel Loupe

Part I of this Comment provides a historical overview of bail, due process, and Article 334.4. Part II discusses the challenge put forth in Faulkner v. Gusman, including the state’s responses to the petition and the ultimate judgment of the court. In Part III, newly released data on Louisiana bond amounts is used to dispute several claims of the Faulkner court and analyze the constitutionality of Article 334.4, concluding that the article potentially violates procedural due process, equal protection, and the excessive bail clauses of the Louisiana and the United States constitutions. Finally, Part IV provides reasons for the repeal of Article 334.4 and explores policy considerations pursuant to such an action, including the effects of pretrial detention on conviction rates and sentencing.

Cell Phone Location Tracking: Reforming the Standard to Reflect Modern Privacy Expectations

Shannon Jaeckel

Part I of this Comment discusses the history of CSLI technology and the relevant federal statutes. This section explains the mechanics and content of CSLI data; additionally, it illustrates recent advances in CSLI technology and the importance of this information to law enforcement. Part II analyzes the three most recent federal circuit court decisions in this area of the law. These cases identify the analytical problems surrounding CSLI and illustrate the extent to which courts have addressed these problems. Part III examines state responses to CSLI with a particular focus on how Louisiana courts and the Louisiana legislature have approached the issue in comparison with other states. Part IV proposes that the Louisiana legislature be proactive in adopting a comprehensive CSLI statutory scheme rather than waiting for federal action. Specifically, the courts should interpret the Louisiana Constitution more expansively to provide additional privacy interest protections than currently exist under federal law, and the Louisiana legislature should codify this privacy interest and provide detailed guidelines. This solution is most apt to resolve the problems surrounding Louisiana for two reasons. First, it will vest a constitutionally protected interest. Second, it allows the Louisiana legislature, which is charged with adopting policies that benefit its citizenry, to adopt legislative rules that balance the government’s interest in conducting effective investigations with the public’s privacy interests in CSLI.

The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn

Julien Petit

Part I of this Comment discusses the Confrontation Clause and summarizes the state of the law before Ohio v. Clark. Part II explains the holding and reasoning of the Court’s decision in Ohio v. Clark. Part III analyzes the problems that the decision caused and how these problems affect the admissibility of statements into evidence. Part IV proposes a two-part test to be applied under the Confrontation Clause, eliminating confusion and providing a clear analysis for lower courts to adopt.

By the Pricking of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws from Constitutional Review

Megan Joy Rials

This Comment argues that states should not allow philosophical exemptions and should either retain or create religious exemptions that meet certain requirements under the Free Exercise Clause, the Due Process Clause, and the Establishment Clause. California and Louisiana differ in their approaches to vaccination laws. As a result of the California legislature’s controversial response to the Disneyland measles outbreak by banning philosophical and religious exemptions, California is now among the few states with the strictest vaccination requirements. In contrast, Louisiana is among the states with the laxest vaccination laws, which allow for both exemptions.  Under the proposed solution, California should modify its law to allow religious exemptions, and Louisiana should ban philosophical exemptions.