September 2008
Abstract:
On June 25, 2008, the United States Supreme Court issued an opinion in Kennedy v. Louisiana holding that the application of the death penalty to the crime of aggravated child rape violated the Eighth Amendment of the United States Constitution. Three days after the opinion was issued, it was discovered that everyone involved in the case had overlooked a 2006 amendment to the Uniform Code of Military Justice ("UCMJ") that made child rape a death penalty offense. This seeming oversight by the majority led the state of Louisiana and Solicitor General to petition the Court for the case to be reheard. On September 8, the Supreme Court took the highly unusual step of asking for more briefing on whether the case should be reheard. This short article contends that for the Court to grant rehearing based upon the rationales embodied in the Louisiana and Solicitor General's briefs would represent a substantial departure from past Court practice and be contrary to the special treatment that military law has historically received. A careful review of the Court's prior opinions shows that the Court has never considered military law in evaluating the objective indicia of the "evolving standards of decency" even when the military had seemingly relevant provisions. This practice by the Court is almost surely due to its recognition that when Congress amends military law, it only represents a national consensus as to military policy and not civilian policy. As a result, the Supreme Court should not rehear the Kennedy case based upon the majority opinion's omission of the 2006 UCMJ amendment. ..Source.. by Corey Rayburn Yung, John Marshall Law School, Chicago
Note: If you want to download the paper, click the "Choose Download Location" link near the top of the page. It is unknown why SSRN changed the appearance to make the download link less visible. If you have any comments or suggestions, feel free to email Corey Rayburn Yung.
September 13, 2008
Is Military Law Relevant to the "Evolving Standards of Decency" Embodied in the Eighth Amendment?
August 1, 2008
One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions
8-1-2008 National:
Abstract:
In 2003, the United States Supreme Court issued its only two opinions regarding the constitutionality of sex offender registration and notification statutes. The two opinions, Smith v. Doe ("Smith") and Connecticut Department of Public Safety v. Doe ("DPS"), upheld the Alaska and Connecticut registry and notification laws against Ex Post Facto Clause and procedural due process challenges. Three years later, the federal Sex Offender Registration and Notification Act ("SORNA") was passed as part of the Adam Walsh Child Protection and Safety Act. The federal statute was very different from the state statutes that the Court reviewed. Most notable among the differences was the creation of the federal crime of "failure to register" which was punishable by up to ten years imprisonment. Despite the significance of the disparities between the state and federal laws, district courts across the country have virtually rubber stamped the criminal provisions of SORNA as constitutional. The district courts' reasoning has been almost entirely based upon superficial, mechanical applications of the Court's decisions in Smith and DPS. This article contends that most district courts have been severely misguided in reading the two Court opinions and the statutory provisions of SORNA. Consequently, this article concludes that either Congress should amend SORNA or courts should strike down portions of SORNA on Ex Post Facto Clause, procedural due process, and Commerce Clause grounds. ..Source.. by Corey Rayburn Yung, John Marshall Law School, Chicago
Yung, Corey Rayburn,One of These Laws is Not Like the Others: Why the Federal Sex Offender Registration and Notification Act Raises New Constitutional Questions(August, 01 2008). Available at SSRN: http://ssrn.com/abstract=1193871
May 31, 2007
Banishment By a Thousand Laws: Residency Restrictions on Sex Offenders
January 2007:
Abstract:
Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live. In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America. Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society. ..more.. (link at bottom of page) by COREY RAYBURN YUNG (His blog "Sex Crimes")
