University of Colorado Law Review
Volume 79, Issue 1, Winter 2008
FOREWORD
In our lead article, The Future of Federal Sentencing Policy: Learning Lessons from Republican Judicial Appointees in the Guidelines Era, Professor David M. Zlotnick recommends that advocates of federal sentencing reform look to the experiences of Republican judicial appointees in the Guidelines Era to direct their reform efforts. Drawing from an extensive research project examining forty comprehensive case files and their policy implications, Professor Zlotnick argues that the lessons of Guidelines Era Republican appointees are highly relevant to the most crucial sentencing reform issues today. In particular, he suggests that these appointees’ experiences highlight the need for mandatory minimums, as well as a legislatively driven proposal to reverse the landmark U.S. Supreme Court decision Booker v. United States, which has caused a standstill in federal sentencing policy. Professor Zlotnick concludes that the lessons of Republican appointees in the Guidelines Era provide a useful rhetorical framework from which Congress can and should create meaningful federal sentencing policies that better protect the interests of the public
In our next article, The Accounting: Habeas Corpus and Enemy Combatants, Professor Emily Calhoun argues that when a petitioner in a habeas corpus proceeding challenges the accuracy of the facts that form the basis of his detention, the executive who asserts detention authority should bear a heavy burden of justification. She begins by describing the executive’s current claim of power to detain citizens as enemy combatants and by identifying the types of potential habeas challenges to such detentions. Professor Calhoun then examines—and ultimately rejects—the due process perspective on habeas proceedings taken by the plurality in Hamdi v. Rumsfeld. She contends, instead, that history, theory, and practice support an institutional perspective on the Great Writ. Professor Calhoun concludes that in order to protect the indispensable institutional purposes of the writ of habeas corpus and to guarantee proper separation of powers, deference to the executive should limited, even in times of national emergency. To this end, she argues that the U.S. Supreme Court should confirm the flexibility of courts in habeas proceedings to ensure that the executive always has a heavy burden of justification for its detentions.
Our third article, Civic Republicanism, Public Choice Theory, and Neighborhood Councils: A New Model for Civic Engagement, by Matthew J. Parlow, addresses the lack of civic engagement in the local government decision-making process and looks at neighborhood councils as a possible solution. Professor Parlow encourages the adoption of the civic republicanism model of local government, which unlike public choice theory, recognizes that a lack of civic engagement is a systematic flaw that is capable of being overcome. Professor Parlow explores the idea of neighborhood councils as a way to achieve civic republicanism’s vision of providing meaningful opportunities for citizens to discuss community issues among themselves and enlighten local decision-making. Informed by the lessons of failed attempts to encourage civic engagement, Professor Parlow examines the potential problems neighborhood councils may face, particularly in the long term. Professor Parlow concludes, however, by optimistically discussing the transformative effects that increased civic participation through neighborhood councils may have on local governments.
In our first student comment, Beyond the Davis Dictum: Reforming Nontestimonial Identification Evidence Rules and Statutes, Jennifer M. DiLalla examines the fallout that resulted in the forty years after Justice Brennan’s dictum in Davis v. Mississippi, which implied that detention for the purpose of fingerprinting might be permissible even without probable cause if there is a judicial order preauthorizing the procedure. Following a discussion of Davis itself, Dr. DiLalla looks at Colorado and five other states that, building on the Davisdictum, have created statutes and rules that allow police with a court order to obtain nontestimonial identification evidence from felony suspects. Dr. DiLalla then suggests that while these states’ statutes and rules are obviously beneficial to criminal investigators, they may infringe upon Fourth Amendment principles regarding invasive search and seizures. With the goals of maintaining the benefits to the criminal justice system and not overstepping constitutional limits, Dr. DiLalla offers a novel approach to reforming states’ statutes and rules and proposes a new model nontestimonial identification evidence rule.
Our next student comment, Interstate Instability: Why Colorado's Alien Smuggling Statute Is Preempted by Federal Immigration Laws, by Ben Meade, argues that the federal alien smuggling statute should preempt Colorado's alien smuggling statute. Mr. Meade begins by exploring some of the social and political issues involved in alien smuggling, examining how alien smuggling affects the State of Colorado, the Nation as a whole, and the illegal aliens involved in those activities. After explaining how federal preemption works in the context of criminal law and immigration law, Mr. Meade discusses the history and operation of both the federal alien smuggling statute and the Colorado alien smuggling statute. Then, following a discussion of preemptory challenges to similar state statutes, Mr. Meade concludes that Colorado's alien smuggling statute has unconstitutionally infringed upon an area already regulated by federal law and that therefore the Colorado statute is preempted by federal immigration laws.
Opening the Door: Crowe v. Tull and the Application of the Colorado Consumer Protection Act to Attorneys, by Daniela Ronchetti, examines the application of Crowe v. Tull, a case in which the Colorado Supreme Court held that the Colorado Consumer Protection Act (“CCPA”) applies to attorneys. After discussing the history and purposes of the CCPA, the Crowe decision, and the requirements for proving a CCPA claim generally, Ms. Ronchetti discusses the consequences of Crowe for attorneys and clients. She suggests that in the attorney-client context, several elements of a CCPA claim may be difficult to establish because the CCPA was designed to prevent the deception of public consumers as a whole, not to remedy private wrongs. In particular, Ms. Ronchetti explains that clients will often be unable to prove the existence of deceptive conduct, public impact, and causation. However, Ms. Ronchetti concludes that when a CCPA claim is appropriate, it will be more beneficial to a client than other potential claims aimed at resolving attorney-client disputes, such as malpractice.
In our final student comment, What Happened to “Paul’s Law”?: Insights on Advocating for Better Training and Better Outcomes in Encounters Between Law Enforcement and Persons with Autism Spectrum Disorders, Elizabeth Hervey Osborn discusses the vulnerability of people with autism spectrum disorder (“ASD”) to dangerous encounters with police officers and examines approaches for achieving better results when encounters occur. After illustrating the unfortunate results of inadequate police training through the story of Paul Childs, a fifteen-year-old boy with cognitive disabilities who was killed by Denver police, Ms. Osborn provides a deeper understanding of ASD, explaining the disorder’s unique characteristics that increase the danger for people with ASD in interactions with law enforcement personnel. Following a discussion of the rights of persons with ASD under the federal Americans with Disabilities Act, Ms. Osborn details how the lack of training may lead police to misinterpret the behavior of a person with ASD, thus turning an encounter into a potentially dangerous “exigent circumstance.” Ms. Osborn concludes by identifying approaches that may promote better outcomes in these encounters, including better training for law enforcement and caregivers, improved information access, and legislative changes.
James P. Eckels
Editor-in-Chief