The Unintended Consequences of California Proposition 47: Reducing Law Enforcement’s Ability to Solve Serious, Violent Crimes

Comment by: Shelby Kail

44 PEPP. L. REV. 1039 (2017)

For many years, DNA databases have helped solve countless serious, violent crimes by connecting low-level offenders to unsolved crimes.  Because the passage of Proposition 47 reduced several low-level crimes to misdemeanors, which do not qualify for DNA sample collection, Proposition 47 has severely limited law enforcement’s ability to solve serious, violent crimes through California’s DNA database and reliable DNA evidence.  This powerful law enforcement tool must be preserved to prevent additional crimes from being committed, to exonerate the innocent, and to provide victims with closure through conviction of their assailants or offenders.  Proposition 47’s unintended consequences have led to devastating costs in the first year alone, including a decreased deterrent effect, a rise in crime rates, and a lack of rehabilitation.  The goal of ensuring the safety and security of citizens should remain at the forefront of future actions.

This Comment analyzes the impact Proposition 47 has had and will have on the DNA database in California.  Additionally, this Comment examines the history of both state and federal DNA databases, the evolution of California’s DNA database, and case law considering the constitutionality of DNA database programs.  Specifically, this Comment assesses the consequences of Proposition 47 and considers different approaches to handling the arising issues.  This Comment concludes by summarizing the importance of restoring DNA collection for the low-level crimes Proposition 47 reduced to misdemeanors to ensure the safety and security of California citizens by keeping serious, violent criminals off the streets.

Download the Full Article

The Outer Limits: IMSI-Catchers, Technology, and the Future of the Fourth Amendment

Comment by: Ryan C. Chapman

44 PEPP. L. REV. 841 (2017)

Recent advances in technology are posing new challenges for a legal system based on decades-old precedent.  Nowhere is this more apparent than in law enforcement’s warrantless use of IMSI Catchers.  These devices mimic a cell phone tower, and when the device is activated, cell phones will naturally connect to them.  Law enforcement officers can use those intercepted cell phone signals to track a suspect’s movements in real time with startling accuracy.  Scholarly commentary on these devices has largely concluded that their use requires a warrant.  This Comment engages in a close examination of Fourth Amendment precedent and argues that, as much as we might wish otherwise, the use of these devices is justified under existing case law.  The Fourth Amendment generally protects what a person seeks to keep private, but in a technologically connected world, the public has willingly traded privacy for convenience.  Thus, if we are to maintain our privacy in an increasingly technological world, we might require either a rethinking of the precedent underpinning the Fourth Amendment or a proactive Legislature to step in and fill the gap that exists between an eighteenth century Amendment and a twenty-first century world.

Download the Full Article

A Diverse Student Body Without Student Bodies?: Online Classrooms and Affirmative Action

Essay by: Ryan H. Nelson

2016 PEPP. L. REV. 65 (2017)

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between.  These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions.  In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.”  Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may treat people differently because of their race only for the most compelling reasons.”  Yet, can student body diversity exist when there are no student bodies, as in an online classroom?  Is the ability of public university students to know the races of their classmates a necessary element of what makes student body diversity sufficiently compelling to justify race-based admission considerations?  What remains of Grutter if students stop seeing the color of their classmates’ skin, and instead see only their computer screens?


Download the Full Article

Failure to Act and the Separation of Powers—The Vice Presidency and the Need to Surmount Divided Power in Pursuit of a Workable Government

Symposium article by: Douglas W. Kmiec

44 PEPP. L. REV. 477 (2017)

Is the Vice President an executive officer, a legislative officer, or both?  This query has existed since the time of the founding.  The question poses more difficulty than one might suppose, and it remains unsettled.  It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function.  Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose?  For the first century and a half of the American experience, the Vice President was more often accorded legislative status, with offices not in the White House, but in the capitol.  Beginning in the second half of the Twentieth Century, presidents have delegated considerable and increasing executive authority to the Vice President, such that it is now commonplace to think of those occupying the office as “deputy president.”  While nominally retaining his space in the capitol, today’s vice presidents have a greater physical presence in the West Wing of the White House and are expected to be the President’s emissary in those tie-breaking moments, over which the Vice President presides as President of the Senate.  In this article, Ambassador Douglas Kmiec traces these historical developments and provocatively asks whether seeing the Vice President as either legislative or executive may well miss the point that this officer with dual loyalties is intended to exercise a degree of independence that potentially makes him neither a executive nor a legislative agent, but rather the focal point of political-branch.


Download the Full Article

The Vice Presidency in the Twenty-First Century

Symposium article by:  Jody C. Baumgartner

44 PEPP. L. REV. 561 (2017)

The vice presidency has undergone almost revolutionary change since its inception 227 years ago.  Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate.  However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors.  What was once an all-but forgotten office is now an essential part of a president’s administration.  These developments are, generally speaking, welcomed by political observers and analysts.  However, they also raise important practical, legal, and normative questions moving forward.  This Article begins by reviewing the emergence of the modern vice presidency and follows with an analysis of the current role of the office.  Next, it examines the attributes, successes, and failures of modern vice presidents, focusing primarily on the tenures of Gore, Cheney, and Biden.  Finally, it turns to some of the challenges vice presidents will face going forward, as well as the legal and normative questions that surround this new model of the vice presidency.


Download the Full Article

The Vice President—More than an Afterthought?

Symposium round-table discussion transcript featuring:  Richard B. Cheney, Edwin Meese III, & Douglas W. Kmiec

44 PEPP. L. REV. 535 (2017)

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both.  It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative.  Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol.  Beginning with Walter Mondale’s service as Vice President, presidents have been delegating increasing executive authority, seeing the Vice President as a “deputy president.”  Perhaps the most aggressive and influential of the modern “deputy presidents” was Vice President Cheney himself.  Attorney General Meese concurred and saw this as positive.  Ambassador Kmiec was less approving, encouraging Vice President Cheney and Attorney General Meese to contemplate the benefits that a dual-natured legislative–executive Vice President supplies to maintaining a workable government.  The capacity of the Vice President to assert independence, as late Justice Scalia explained in an Office of Legal Counsel opinion, is unique.  Unlike members of the Cabinet, the Vice President is not removable by the President, and thus, the Vice President can use his dual nature to advance executive–legislative compromise.  Vice President Cheney’s reliance upon his significant, but personal, legislative experience prior to his vice presidency to facilitate executive–legislative bargaining suggests qualities that presidential nominees might consider more directly in vice presidential selection, and not just geographic complementarity and ideological compatibility.  While it has been commonplace to think of the vice presidential office as “an afterthought” borrowed from state charters at the time of the founding, this dialogue suggests how a vice president with a foot in each of the Legislative and Executive Branches can assist in overcoming dysfunctional periods when partisan division is great.


Download the Full Article