Issues to Watch

Fentanyl is Injected Back into the News Following Its First Use in Capital Punishment


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*Joseph Stephan

In the midst of botched executions and challenges in acquiring the traditional drugs used for lethal injections, states have been forced to explore alternative methods of execution.  See, e.g., Tracy Connor, Oklahoma Says Gas Will Replace Lethal Injection in Executions, NBC News (Mar. 14, 2018, 5:38 PM), https://www.nbcnews.com/news/us-news/oklahoma-says-gas-will-replace-lethal-injection-executions-n856721.  With lethality and availability concerns looming, Nebraska has turned to fentanyl, the fatal synthetic opioid at the core of America’s opioid crisis.  Mitch Smith, Fentanyl Used to Execute Nebraska Inmate, in a First for U.S., N.Y. Times (Aug. 14, 2018), https://www.nytimes.com/2018/08/14/us/carey-dean-moore-nebraska-execution-fentanyl.html.  Carey Dean Moore, who was sentenced to death for killing two taxi drivers in 1979, was executed with a “four-drug cocktail” of diazepam, fentanyl citrate, cisatracurium besylate, and potassium chloride.  Id.  The use of fentanyl in Moore’s execution, a first in the United States, drew fierce resistance from opponents of the death penalty and drug companies alike.  See Joe Duggan, Nebraska is Moving Closer to Its 1st Lethal Injection, but Timing is up to Court, Omaha World-Herald (Apr. 30, 2018), https://www.omaha.com/news/courts/nebraska-is-moving-closer-to-its-st-lethal-injection-but/article_3197ccf0-6820-589d-b1da-dcee0b7be223.html. (more…)

Case Notes

Highest Case Note from Write-On 2018, discussing Sizer v. State, 456 Md. 350, 174 A.3d 326 (2017)


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 Nicholas B. Jordan*

 The Court of Appeals of Maryland affirmed the holding of the Court of Special Appeals, which found that the Circuit Court for Howard County erred by granting Petitioner’s motion to suppress evidence of a handgun and bottle of oxycodone pills discovered by police after conducting an unlawful search. Under the totality of the circumstances, the officers had reasonable suspicion to lawfully investigate the group and seize Petitioner.  Additionally, the Court of Appeals held that even if the stop and search had not been lawful, the evidence would still be admissible under the attenuation doctrine.  Sizer v. State, 456 Md. 350, 174 A.3d 326 (2017). (more…)

Issues to Watch

The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?


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The Curtilage Cage: Should the Confines of Curtilage Be Expanded to Include A Private Driveway?

Tiffany Meekins*

The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause,
. . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.  The Warrant Requirement of the Fourth Amendment can be satisfied in either of two ways.  See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 Va. L. Rev. 881, 882 (1991).  The officer can obtain a warrant from a neutral and detached magistrate with a showing of probable cause or by one of the many warrant exceptions.  Id.  Warrantless searches—or those in which an exception does not apply—are viewed as an intrusion on an individual’s reasonable expectation of privacy.  See Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring).  Evidence obtained without the requisite probable cause and warrant or warrant exception should be deemed as “fruit of the poisonous tree” and held inadmissible. Daniel T. Pesciotta, Note, I’m Not Dead Yet: Katz, Jones, and the Fourth Amendment in the 21st Century, 63 Case W. Res. L. Rev. 187, 225 (2012).  In Collins v. Commonwealth, a case currently before the Supreme Court, the Justices will decide the admissibility of a stolen motorcycle which was parked in the Petitioner’s private driveway and used as evidence to convict him.  See 790 S.E.2d 611 (Va. 2016). (more…)

Issues to Watch

Forgive Me Father, For I Have Sinned: A Possible Resurgence of Parental Responsibility for Child Delinquency?


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Forgive Me Father, For I Have Sinned: A Possible Resurgence of Parental Responsibility for Child Delinquency?

Alexis Holiday*

            Numerous anti-bullying campaigns are dedicated to ending bullying in schools as well as cyber bullying outside of schools.  E.g., Stopbullying.gov, https://www.stopbullying.gov/ (last visited Apr. 12, 2018); STOMP Out Bullying, http://www.stompoutbullying.org/ (last visited Apr. 12, 2018).  In a 2011 study, 27.8% of students ages twelve through eighteen in the United States reported that they were bullied in school.  Nat’l Ctr. for Educ. Statistics, Student Reports of Bullying and Cyber-Bullying: Results from the 2011 School Crime Supplement to the National Crime Victimization Survey T-1 (2011), https://nces.ed.gov/pubs2013/2013329.pdf.  While this does not seem like a large number of children, it forced the town of North Tonawanda, New York, to enact a new law in hopes of deterring bullying in the future.  See Christopher Buchanan & Steve Brown, New York Town’s Law Punishes Parents for Their Kids’ Bullying, 11alive.com (Oct. 11, 2017, 4:34 PM), http://www.11alive.com/news/nation-now/new-york-towns-law-punishes-parents-for-their-kids-bullying/482568440.

In North Tonawanda, a group of fourteen and fifteen year-old teens bullied other students continuously; one incident involved them waiting to ambush another student outside of a Dollar General.  Id.  The teens proceeded to publish a video of the attack online.  Id.  In dismay and protest, parents in the town formed the “North Tonawanda Coalition for Safe Schools & Streets” group on Facebook, and the involved students were expelled from the local middle school.  Id.  The city enacted a new law holding parents accountable for their child’s delinquency in response to the pressure by the parents involved in the Facebook group.  Id.  This new law states that if twice during a ninety-day period, a minor child violates the city’s curfew or any city law including bullying or harassment, then the child’s parent or guardian is subject to a fine up to $250 and/or fifteen days’ imprisonment.  Id.

This is not the first time that the United States has seen the enactment of laws holding parents responsible for their child’s delinquent actions.  Peter Applebome, Parents Face Consequences as Children’s Misdeeds Rise, N.Y. Times (Apr. 10, 1996), http://www.nytimes.com/1996/04/10/us/parents-face-consequences-as-children-s-misdeeds-rise.html.  By 1997, seventeen states enacted more specific criminal parental responsibility statutes in addition to truancy laws.  Pamela K. Graham, Note, Parental Responsibility Laws: Let the Punishment Fit the Crime, 33 Loy. L.A. L. Rev. 1719, 1732–33 (2000).  For example, in 1992, the California Superior Court considered a statute that made a failure to exercise supervision and control over a child that causes delinquency a misdemeanor, even though a violation of the statute resulted in a year of jail time and a $2,500 fine.  Philip Hager, Justices to Review Parental Responsibility Law: Delinquency, L.A. Times (Apr. 4, 1992), http://articles.latimes.com/1992-04-04/news/mn-292_1_parental-responsibility.  This was one of the first laws of this nature in the nation, although, not the last.  Id.  A version of this statute still exists in California today, where a violation of the statute may result in a year of jail time and a $2,500 fine.  Cal. Penal Code § 272(a)(1) (West 2018).  Some laws in municipalities order parents to attend counseling and classes, while other parents are forced to spend a night in jail as a result of their child’s poor actions.  Applebome, supra.

The primary goal of criminal parental liability laws is to reduce juvenile delinquency.  Graham, supra, at 1733.  The effectiveness of these laws is not conclusive due in large part to a lack of enforcement.  Id. at 1734 (citing Howard Davidson, No Consequences—Re-Examining Parental Responsibility Laws, 7 Stan. L. & Pol’y Rev. 23, 25–27 (1995)).  One reason these laws are not enforced is because classifying these actions as misdemeanors diminishes prosecutorial interest.  Id.  Parents may not be deterred by criminal responsibility laws because conviction is unlikely and, even if there is prosecutorial interest, it is likely punishment would not be not severe enough to change the parent’s behavior.  Id.  Another reason for a lack of enforcement is the difficulty of proving mens rea because the enacted laws are too vague.  Id. at 1735.  Only if the parental responsibility statute or law is clear can courts effectively determine if a parent’s lack of responsibility falls within the standard set forth by the law.  Id.

North Tonawanda’s new parental responsibility law has the opportunity to be effective as intended, just like many of the other parental responsibility laws enacted in the 1990s.  Buchanan & Brown, supra; Graham, supra, at 1734.  It is also possible that this law may not be effective at all.  First, this new law is only a misdemeanor.  See Buchanan & Brown, supra.  Parents whose children are delinquent more than once in a ninety-day period of time are subject to a fine up to $250 and/or fifteen days’ imprisonment.  Id.  In this case, the threat of such consequences may not influence parents to monitor their children any differently.  See id.; see also Graham, supra, at 1734.  Therefore, this new law might not be a deterrent for parents as intended because it is a mere slap on the wrist.

Additionally, lack of enforcement for the law may be caused by the difficulty of proving parental mens rea and lack of knowledge of their child’s delinquent acts.  Graham, supra, at 1735.  North Tonawanda’s parental responsibility law is vague.  See Buchanan & Brown, supra.  It is not explicit in laying out the foundation required for a parent’s mens rea.  Id.  The law is not clear as to whether or not parents need to be on notice of their children’s actions.  Id.  This ambiguity leaves prosecutors in trouble because there is no standard of parental responsibility set forth by the law.

Conversely, this law might actually be as effective as the “Coalition” group envisioned.  First, the law is supported by hundreds of parents in the area.  Id.  While support for other parental responsibility laws is unknown, it is clear that parental support of the new law would be advantageous.  See Graham, supra, at 1734.  Prosecutors might be more likely to put these misdemeanors at the top of their priority list because there is more pressure from the community than in other jurisdictions with similar laws.  As a result, irresponsible parents with delinquent children will be more likely to receive higher penalties.

This law is founded on a parental responsibility for a child staying out past curfew and engaging in harassment and bullying in schools.  Buchanan & Brown, supra.  As to a child staying out past the town’s curfew, parental mens rea may be evident because parents should know where their child is when they are not home.  Similarly, as to parental responsibility for bullying, schools typically notify parents when a child is involved.  E.g., Ark. Code Ann. § 6-18-514(e)(2)(G) (West 2018) (“The policies shall: . . . [r]equire that copies of the notice of what constitutes bullying . . . be provided to parents, students, school volunteers, and employees.”).  With an influx of anti-bullying campaigns, schools are more proactive than ever with regard to deterrence of bullying for the sake of safety.  See Caralee Adams, Cyberbullying: What Teachers and Schools Can Do, Scholastic, https://www.scholastic.com/teachers/articles/teaching-content/cyberbullying-what-teachers-and-schools-can-do/ (last visited Apr. 12, 2018).  Therefore, parental mens rea may actually be easier to prove than previously thought.  But mens rea is not always obvious in bullying incidents when they do not occur in school.   However, technology, compared to the 1990s, has greatly improved.  For example, in North Tonawanda, the group of bullying teens posted a video of their actions on the internet.  Buchanan & Brown, supra.  Mens rea is clear in this regard because parents can easily be cognizant of what their child is doing on the internet.  See id.

In the short-term, this law might be effectively enforced due to the ability to prove parental mens rea in many cases.  In addition, the pressure inflicted upon prosecutors by members of the community will assist in the effectiveness of this law.  In turn, this may deter delinquency among children as well as decrease bullying in schools.  That being said, following the influx of criminal parental responsibility laws in the 1990s and the subsequent lack of enforcement, it is unlikely that this law will be effective.  See Graham, supra, at 1734.  Nevertheless, if North Tonawanda’s new law is successful, the United States may see a rise of anti-bullying and child delinquency deterrence in the form of parental responsibility statutes.

 

*Alexis Holiday is a second-year law student at the University of Baltimore School of Law, where she serves as a staff editor for Law Review and will serve as a Production Editor for Volume 48. She is also a member of the Women’s Bar Association, the Royal Graham Shannonhouse III Honor Society, the University of Baltimore School of Law Honor Board and she is a teaching assistant. Last summer, Alexis served as a judicial intern with the Hon. William C. Mulford II of the Circuit Court of Anne Arundel County.  Currently, and this summer, Alexis will work as a law clerk at the Law Office of Laura Burrows.

 

Issues to Watch

THE CONSTITUTIONALITY OF THE PROPOSED BAN ON BUMP-FIRE STOCKS


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The Constitutionality of the Proposed Ban on Bump-Fire Stocks

Jacob Waechter*

            On October 1, 2017, the United States experienced the deadliest mass shooting in its history when a single gunman in Las Vegas managed to kill fifty-eight people and wound hundreds more.  Tina Bellon, Las Vegas Shooting Victims File Lawsuit Against Bump Stock Makers, Reuters (Oct. 10, 2017, 1:58 PM), https://www.reuters.com/article/us-lasvegas-shooting-lawsuit/las-vegas-shooting-victims-file-lawsuit-against-bump-stock-makers-idUSKBN1CF2IC.  The use of at least twelve bump-fire stocks allowed the shooter, Stephen Paddock, to fire hundreds of rounds into a crowd of people at a country music concert in a matter of only ten minutes.  Tory Newmyer & Christian Davenport, NRA Stops Short of Supporting a Legal Ban on ‘Bump Stocks, Wash. Post (Oct. 8, 2017), https://www.washingtonpost.com/politics/nra-stops-short-of-supporting-a-legal-ban-on-bump-stocks/2017/10/08/c96c14fe-ac44-11e7-9e58-e6288544af98_story.html?utm_ term=.aa522450c671. (more…)