Framing and discursive strategies influence the direction of oral arguments and, ultimately, case outcomes, and these strategies benefitdominant interests and sideline marginalized voices. This paper critically evaluates the oral arguments in the 1972 Supreme Court, Argersinger v. Hamlin, decision holding (for the first time) that some misdemeanor defendants were entitled to counsel. The case was argued twice (1971and 1972) and decided under tremendous uncertainty about its effect, including (1) how many misdemeanor defendants would be affected by the ruling, (2) how lawyers might be recruited for representation, and(3) what kind of impact mandated representation might have on small, rural communities. Drawing on critical discourse analysis, this paper investigates how lexicality and framing shifted questions and arguments that constructed social realities perpetuating and reproducing dominant interests while obscuring and backgrounding non-dominant interests on the scope of the right to counsel. The analysis shows that common legal framing strategies amplified the voices and concerns of the judges, lawyers, and systemic interests while undermining defendants’ interests, particularly in resolving factual uncertainties. Guidance in structuring contemporary arguments to avoid these inequities that result in the unintended marginalizing of constitutional rights is discussed.
框架和话语策略影响口头辩论的方向，并最终影响案件结果，这些策略有利于主导利益和边缘化的声音。本文批判性地评价了1972年最高法院阿格辛格诉哈姆林案(Argersinger v. Hamlin)中的口头辩论，该判决(首次)裁定一些轻罪被告有权获得律师辩护。这个案件被辩论了两次(1971年和1972年)，并在其影响的巨大不确定性下做出了决定，包括(1)有多少轻罪被告会受到裁决的影响，(2)如何招募律师作为代表，以及(3)强制代表对小型农村社区可能产生什么样的影响。利用批判性话语分析，本文探讨了词汇和框架如何转移问题和论点，这些问题和论点构建了社会现实，使主导利益永续和再生产，同时使非主导利益在律师权利范围内模糊和背景化。分析表明，共同的法律框架策略放大了法官、律师和系统利益的声音和关注，同时损害了被告的利益，特别是在解决事实不确定性方面。讨论了构建当代论点以避免这些导致宪法权利意外边缘化的不平等的指导。
{"title":"I get Worried with This...Constitutionality by Statistics: A Critical Analysis of Discourse, Framing, and Discursive Strategies to Navigate Uncertainties in the Argersinger Oral Arguments","authors":"Alisa Smith","doi":"10.5070/cj87162082","DOIUrl":"https://doi.org/10.5070/cj87162082","url":null,"abstract":"Framing and discursive strategies influence the direction of oral arguments and, ultimately, case outcomes, and these strategies benefitdominant interests and sideline marginalized voices. This paper critically evaluates the oral arguments in the 1972 Supreme Court, Argersinger v. Hamlin, decision holding (for the first time) that some misdemeanor defendants were entitled to counsel. The case was argued twice (1971and 1972) and decided under tremendous uncertainty about its effect, including (1) how many misdemeanor defendants would be affected by the ruling, (2) how lawyers might be recruited for representation, and(3) what kind of impact mandated representation might have on small, rural communities. Drawing on critical discourse analysis, this paper investigates how lexicality and framing shifted questions and arguments that constructed social realities perpetuating and reproducing dominant interests while obscuring and backgrounding non-dominant interests on the scope of the right to counsel. The analysis shows that common legal framing strategies amplified the voices and concerns of the judges, lawyers, and systemic interests while undermining defendants’ interests, particularly in resolving factual uncertainties. Guidance in structuring contemporary arguments to avoid these inequities that result in the unintended marginalizing of constitutional rights is discussed.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151457","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explores the application and enforcement of GVROs in California and offers an evaluation of their effectiveness thus far. It then argues that GVROs are constitutionally permissible under the new standard announced in New York State Rifle & Pistol Assn., Inc. v. Bruen. In Bruen, the U.S. Supreme Court held that a century-old New York gun safety law, which required a license to carry concealed weapons in public places, was unconstitutional. Further, the Court adopted a new test that says a modern gun law must have an analogue in American legislative text, history, and tradition.This Article blends statutory and legal analyses of GVROs in California and includes a rare discussion of the practical and administrative aspects of how attorneys proceed in bringing forth a GVRO against a respondent. It stands apart from the extant legal literature which has largely addressed the goals and feasibility of red flag laws generally, or has focused on red flag laws in states other than California. Thus far, the analytical scope of the research surrounding GVROs has been defined and maintained by medical and public health academics within medical journals. These studies lean heavily towards case summaries, discussing study design and/or collecting statistics. This Article bridges their results with best legal practices and caselaw analyses to broaden the conversation about the need for GVROs.
{"title":"So Far, So Good: Enforcing California's Gun Violence Restraining Orders Before and After Bruen","authors":"Harvey Gee","doi":"10.5070/cj87162083","DOIUrl":"https://doi.org/10.5070/cj87162083","url":null,"abstract":"This Article explores the application and enforcement of GVROs in California and offers an evaluation of their effectiveness thus far. It then argues that GVROs are constitutionally permissible under the new standard announced in New York State Rifle & Pistol Assn., Inc. v. Bruen. In Bruen, the U.S. Supreme Court held that a century-old New York gun safety law, which required a license to carry concealed weapons in public places, was unconstitutional. Further, the Court adopted a new test that says a modern gun law must have an analogue in American legislative text, history, and tradition.This Article blends statutory and legal analyses of GVROs in California and includes a rare discussion of the practical and administrative aspects of how attorneys proceed in bringing forth a GVRO against a respondent. It stands apart from the extant legal literature which has largely addressed the goals and feasibility of red flag laws generally, or has focused on red flag laws in states other than California. Thus far, the analytical scope of the research surrounding GVROs has been defined and maintained by medical and public health academics within medical journals. These studies lean heavily towards case summaries, discussing study design and/or collecting statistics. This Article bridges their results with best legal practices and caselaw analyses to broaden the conversation about the need for GVROs.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Individuals openly toting high-powered firearms are descending upon America’s polling places, vote tabulation centers, and even the private residences of election officials. While states are free to banfire arms at election facilities, few have done so. Worse yet, statutes designed to prevent voter intimidation are ineffective, as they require prosecutors to prove intent to intimidate on the part of those who open carry. While that may seem obvious, putative defendants will contend they have no intent to intimidate anyone with their open display of firepower, and instead are merely seeking to “prevent voter fraud” or to defend themselves. Consequently, voter intimidation prosecutions are rarely brought.This Article identifies an innovative strategy to combat intimidation by armed individuals at elections: the common law offense of riot. At common law, armed groups unauthorized by law were considered riots and punished as such for causing “public terror.” All but three states have either codified riot in their criminal codes or judicially adopted the common law offense. Although the statutory formulations of the crime vary, in many states, including those where there is a significant risk of election-related intimidation in upcoming elections, prosecutors could effectively deploy the law of riot against those who open carry at elections.This Article canvasses the law of riot in the fifty states, provides a roadmap for prosecuting the offense under the various formulations of the law, and arms prosecutors with a much-needed weapon to disarm those who seek to intimidate voters and election officials.
{"title":"Quiet Riot: A Framework for Prosecuting the Open Carry of Firearms At Elections","authors":"Matthew A. Fogelson","doi":"10.5070/cj87162315","DOIUrl":"https://doi.org/10.5070/cj87162315","url":null,"abstract":"Individuals openly toting high-powered firearms are descending upon America’s polling places, vote tabulation centers, and even the private residences of election officials. While states are free to banfire arms at election facilities, few have done so. Worse yet, statutes designed to prevent voter intimidation are ineffective, as they require prosecutors to prove intent to intimidate on the part of those who open carry. While that may seem obvious, putative defendants will contend they have no intent to intimidate anyone with their open display of firepower, and instead are merely seeking to “prevent voter fraud” or to defend themselves. Consequently, voter intimidation prosecutions are rarely brought.This Article identifies an innovative strategy to combat intimidation by armed individuals at elections: the common law offense of riot. At common law, armed groups unauthorized by law were considered riots and punished as such for causing “public terror.” All but three states have either codified riot in their criminal codes or judicially adopted the common law offense. Although the statutory formulations of the crime vary, in many states, including those where there is a significant risk of election-related intimidation in upcoming elections, prosecutors could effectively deploy the law of riot against those who open carry at elections.This Article canvasses the law of riot in the fifty states, provides a roadmap for prosecuting the offense under the various formulations of the law, and arms prosecutors with a much-needed weapon to disarm those who seek to intimidate voters and election officials.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135256398","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this article, I take a sociological approach to the constitutional questions intrinsic to the pretrial incarceration of the unconvicted, focusing on the group of people whose pretrial detentions most directly complicate the Court’s decisions: those people who are detained pretrial and then never convicted of the crimes for which they were held. Notably, despite the ways in which the experiences of these never-convicted people call into question case law regarding individuals receiving the presumption of innocence and due process protections against punishment before trial, this group is absent from contemporary criminological and sociological studies. I begin this article with a brief review of the key Supreme Court cases on the constitutionality of pretrial detention. I then provide an overview of current social science research on pretrial detention and situate this research therein, before describing my data and methods. I then present my findings, along with a discussion.
{"title":"\"What Will Become of the Innocent?\": Pretrial Detention, the Presumption of Innocence, and Punishment Before Trial","authors":"Mikaela Rabinowitz","doi":"10.5070/cj87162080","DOIUrl":"https://doi.org/10.5070/cj87162080","url":null,"abstract":"In this article, I take a sociological approach to the constitutional questions intrinsic to the pretrial incarceration of the unconvicted, focusing on the group of people whose pretrial detentions most directly complicate the Court’s decisions: those people who are detained pretrial and then never convicted of the crimes for which they were held. Notably, despite the ways in which the experiences of these never-convicted people call into question case law regarding individuals receiving the presumption of innocence and due process protections against punishment before trial, this group is absent from contemporary criminological and sociological studies. I begin this article with a brief review of the key Supreme Court cases on the constitutionality of pretrial detention. I then provide an overview of current social science research on pretrial detention and situate this research therein, before describing my data and methods. I then present my findings, along with a discussion.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151463","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Part I of this Essay tells the origin story of the UCLA Law COVID Behind Bars Data Project. Part II addresses the question of how an effort like this, focused on data and policy, could have arisen in a law school, and what our experience reveals about the role the legal academy and legal scholarship can play in the movement for social justice and policy change. Part III highlights some of the organizational factors that enabled us to do what we did despite significant time and resource constraints. The focus here is on the process of institution-building and lessons learned. Finally, Part IV briefly describes the denouement of our COVID data collection efforts and our decision to pivot to our currentfocus on national, all-cause carceral mortality.
本文第一部分讲述了UCLA Law COVID Behind Bars数据项目的起源故事。第二部分探讨了这样一个问题，即这样一个专注于数据和政策的努力是如何在法学院出现的，以及我们的经验揭示了法律学院和法律学术在社会正义和政策变革运动中可以发挥的作用。第三部分强调了一些组织因素，这些因素使我们能够在时间和资源限制的情况下完成我们所做的工作。这里的重点是体制建设进程和吸取的教训。最后，第四部分简要介绍了我们COVID数据收集工作的结果，以及我们决定将目前的重点转向全国全因癌症死亡率。
{"title":"The UCLA Law COVID Behind Bars Data Project: Doing Social Justice Work from Inside a Law School","authors":"Sharon Dolovich","doi":"10.5070/cj87162085","DOIUrl":"https://doi.org/10.5070/cj87162085","url":null,"abstract":"Part I of this Essay tells the origin story of the UCLA Law COVID Behind Bars Data Project. Part II addresses the question of how an effort like this, focused on data and policy, could have arisen in a law school, and what our experience reveals about the role the legal academy and legal scholarship can play in the movement for social justice and policy change. Part III highlights some of the organizational factors that enabled us to do what we did despite significant time and resource constraints. The focus here is on the process of institution-building and lessons learned. Finally, Part IV briefly describes the denouement of our COVID data collection efforts and our decision to pivot to our currentfocus on national, all-cause carceral mortality.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"30 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151458","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues judicially-imposed rigid rules governing the conduct of those responsible for providing adequate healthcare to the incarcerated will not reform prison healthcare. This is largely because the “need to customize and adapt makes rules an ineffective means of controlling discretion.” Instead, judges and policymakers should supplant limited rules with principles of ongoing monitoring and correction of these facilities if they hope to improve these facilities’ provision ofhealthcare. Part I quickly describes the United States’ criminal legal system and the dire conditions inside American prisons, jails, and detention centers. Part II surveys class-action litigation challenging inhumane healthcare provisions in four jurisdictions, each one using a different healthcare delivery model. Part III examines how institutional systems and structures at these facilities may be improved by incorporating systems of ongoing monitoring and correction, in line with the principles used in the Alabama-Utah model of child welfare service provision. Finally, Part IV offers a brief conclusion and notes possible implications for correctional facilities across the country.
{"title":"All Hope is Not Lost: How the \"Alabama-Utah Model\" Can Revolutionize Prison Healthcare Service Provision","authors":"Roger Antonio Tejada","doi":"10.5070/cj87162081","DOIUrl":"https://doi.org/10.5070/cj87162081","url":null,"abstract":"This Article argues judicially-imposed rigid rules governing the conduct of those responsible for providing adequate healthcare to the incarcerated will not reform prison healthcare. This is largely because the “need to customize and adapt makes rules an ineffective means of controlling discretion.” Instead, judges and policymakers should supplant limited rules with principles of ongoing monitoring and correction of these facilities if they hope to improve these facilities’ provision ofhealthcare. Part I quickly describes the United States’ criminal legal system and the dire conditions inside American prisons, jails, and detention centers. Part II surveys class-action litigation challenging inhumane healthcare provisions in four jurisdictions, each one using a different healthcare delivery model. Part III examines how institutional systems and structures at these facilities may be improved by incorporating systems of ongoing monitoring and correction, in line with the principles used in the Alabama-Utah model of child welfare service provision. Finally, Part IV offers a brief conclusion and notes possible implications for correctional facilities across the country.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151656","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Bruen majority invalidated New York’s firearms licensing law on the basis of its supposed conflict with historical tradition, stating: “[t]he test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” The Court’s disparate standards for voting rights and the right to keep and bear arms enables legislatures to expand access to guns while constraining access to ballots. Second Amendment expansion and voting rights contraction will particularly harm minoritized Americans. Research shows that looser gun laws lead to more gun-related deaths, and gun homicide disproportionately kills Black, Hispanic/Latino, and Native Americans. Black, Hispanic/Latino, and Native people likewise bear the brunt of voter suppression laws. This means that the Supreme Court’s insistence on expanding the right to keep and bear arms, while shrinking the right to vote, conspires to silence Americans of color whether denying them ballots or subjecting them to bullets.Part II of this paper discusses the ways in which structural barriers, such as discriminatory public/social policies, and physical barriers, such as armed violence, have kept minoritized Americans from participating in electoral politics. Part III of this paper argues that the Supreme Court’s diverging approaches to cases involving the Fifteenth Amendment, the Voting Rights Act, and the Second Amendment effectively uphold and reinforce structural barriers to democracy and enable armed political violence. Part IV discusses the implications of the Court’s treatment of firearms and voting in the context of heightened political tension, voter suppression, and Second Amendment extremism. Part V concludes with suggestions for how to course correct.
{"title":"The Supreme Court's Second and Fifteenth Amendment Hypocrisy Could Shoot Down Voting Rights...and People","authors":"Kelly Sampson","doi":"10.5070/cj87162084","DOIUrl":"https://doi.org/10.5070/cj87162084","url":null,"abstract":"The Bruen majority invalidated New York’s firearms licensing law on the basis of its supposed conflict with historical tradition, stating: “[t]he test that we set forth in Heller and apply today requires courts to assess whether modern firearms regulations are consistent with the Second Amendment’s text and historical understanding.” The Court’s disparate standards for voting rights and the right to keep and bear arms enables legislatures to expand access to guns while constraining access to ballots. Second Amendment expansion and voting rights contraction will particularly harm minoritized Americans. Research shows that looser gun laws lead to more gun-related deaths, and gun homicide disproportionately kills Black, Hispanic/Latino, and Native Americans. Black, Hispanic/Latino, and Native people likewise bear the brunt of voter suppression laws. This means that the Supreme Court’s insistence on expanding the right to keep and bear arms, while shrinking the right to vote, conspires to silence Americans of color whether denying them ballots or subjecting them to bullets.Part II of this paper discusses the ways in which structural barriers, such as discriminatory public/social policies, and physical barriers, such as armed violence, have kept minoritized Americans from participating in electoral politics. Part III of this paper argues that the Supreme Court’s diverging approaches to cases involving the Fifteenth Amendment, the Voting Rights Act, and the Second Amendment effectively uphold and reinforce structural barriers to democracy and enable armed political violence. Part IV discusses the implications of the Court’s treatment of firearms and voting in the context of heightened political tension, voter suppression, and Second Amendment extremism. Part V concludes with suggestions for how to course correct.","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":"97 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-09-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135151461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How the Conflation Of 'Inappropriate' Grief With Guilt Compromises The Sixth Amendment Right To Fair Trial","authors":"E. Chazen","doi":"10.5070/cj86157746","DOIUrl":"https://doi.org/10.5070/cj86157746","url":null,"abstract":"","PeriodicalId":91042,"journal":{"name":"UCLA criminal justice law review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43473242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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