Saturday, July 26, 2014

Fascists and Jews: Mussolini's Race Laws

Professor Michael A. Livingston has recently published what appears to be a fascinating account of Italy's anti-Semitic legislation under Mussolini. The publisher's website reads: "From 1938 until 1943 – before the German occupation and accompanying Holocaust – Fascist Italy drafted and enforced a comprehensive set of anti-Semitic laws. Notwithstanding later rationalizations, the laws were enforced and administered with a high degree of severity and resulted in serious, and in some cases permanent, damage to the Italian Jewish community. Written from the perspective of an American legal scholar, this book constitutes the first truly comprehensive survey of the Race Laws in the English language. Based on an exhaustive review of Italian legal, administrative, and judicial sources, together with archives of the Italian Jewish community, Professor Michael A. Livingston demonstrates the zeal but also the occasional ambivalence and contradictions with which the Race Laws were applied and assimilated by the Italian legal order and ordinary citizens. Although frequently depressing, the history of the Race Laws also involves numerous examples of personal courage and idealism, and provides a useful and timely study of what happens when otherwise decent people are confronted with an evil and unjust legal order." The book may be ordered here: In other news, today is the final day of the XIX International Congress of Comparative Law. Evidently, others expressed views similar to those expressed in my last post where I bemoaned the lack of attention played to criminal law topics. Prof. Dr. Dr. Ulrich Sieber of the Max Planck Institute of Foreign and International Criminal Law in Freiburg, Germany has been elected to the Executive Board of the International Academy of Comparative Law. We can hope that his election will mean that more criminal law topics will be included in the program of the next Congress which will be held in Fukuoka, Japan in 2018. The program topic selection is important as country reports are then prepared on each of the topics which are selected and those national reports are then compiled and summarized in a summary report. Because the topics have in the past reflected the International Academy's bias towards private law, little attention has been devoted to developments in the field of criminal law.

July 26, 2014 | Permalink | Comments (0)

Tuesday, July 22, 2014

Musings from Europe

I have been traveling through Europe for several weeks. I began my travels in Germany making presentations at Justus-Liebig-Universitaet in Giessen, Germany and the Universitaet Hannover on my recent booking the German Prosecution Service. I was encouraged by the enthusiastic questions from the German law students about how their own system works in practice. My next stop was the Juris Diversitas conference in Aix en Provence, France. Juris Diversitas is a relatively new organization dedicated to the interdisciplinary study of "legal and normative mixtures and movements." According to their own descriptive materials: "Our interest is in comparison broadly conceived, extending beyond law narrowly understood to related fields. Titles might be geographical or temporal comparisons. They could focus on theory and methodology, substantive law, or legal cultures. They could investigate official or unofficial ‘legalities’, past and present and around the world. And, to effectively cross spatial, temporal, and normative boundaries, inter- and multi-disciplinary research is particularly welcome." More information on the organization may be found on their blog at: While I enjoyed the rich exchange of ideas at their 2014 conference, I was dismayed by the program's lack of topics devoted to criminal law. This lack of interest may reflect the interests of their current membership as the panel that I participated on was poorly attended. In any case, for those scholars looking for a more manageable interdisciplinary conferncd than the annual law and society conference may wish to explore participating in this conference.

July 22, 2014 | Permalink | Comments (0)

Tuesday, July 8, 2014

Jurors and the Internet

    A meeting of attorneys general of the UK, US, Canada, Australia, and New Zealand raises the complicated but extremely pressing question about how to restrict juror access to the internet.  In the United States, proof that a juror sitting on a case has researched that case on the internet is presumptively prejudicial and requires reversal if not rebutted.  As yet, however, we are not aware of any US juror being charged with a crime, or with contempt of court, for such behavior.  In the United Kingdom, juror misconduct of this kind is usually dealt with as a contempt of court.  A New Zealand law commission has proposed to make it a crime for a juror to disobey the standard instructions of a judge and research a case on line. Jurors could be charged and punished for researching details of a case they are trying, sharing details of that research with other jurors, and disclosing details of juror deliberations.  The latter charge could finally put an end to jurors seeking publicity – or lucrative media contracts – after verdict.



Owen Bowcott, Attorney Generals to Debate Role of Juries in Internet Age, The Guardian (July 6, 2014).

Chambers v. State, 739 S.E.2d 513, 321 Ga. App. 512 (Ga. Ct. App. 2013).

State v. Abdi, 45 A.3d 29, 191 Vt. 162 (2012).

United States v. Bristol-Mártir, 570 F.3d 29 (1st Cir. 2009).

July 8, 2014 | Permalink | Comments (0)

Thursday, July 3, 2014

Comparative Constitutionality of Warrantless Cell Phone Searches

    Last week, in Riley v. California, No. 13-132 and 13-212, 2014 BL 175779, 2014 WL 2864483, 2014 U.S. LEXIS 4497 (U.S. June 25, 2014), the U.S. Supreme Court held that the police may not search a cell phone incident to arrest without a warrant.  Two years ago, on April 24, 2012, the Brazilian Supreme Court reached the opposite conclusion when it held that Brazilian police do not need a warrant to access the cellphone agenda of an arrested suspect (H.C. 91.867). The case involved a defendant described as a “well-known contract killer,” who was accused of murdering a victim in broad day light in the state of Pará, Brazil in 2004.  Upon his arrest, the police checked the agendas of the defendant’s two cellphones, which gave them evidence against the people who supposedly contracted the killing.  The supposed contractors argued the unconstitutionality of that evidence as violating their right to not have their communications intercepted without warrant.

    The Brazilian court upheld the constitutionality of the search, reasoning that the Brazilian Constitution (C.F.) protects telephone communications (art. 5º, XII) and the contents of a cell phone differently. The Brazilian Constitution states that telephone communications are inviolable, except when authorized by a judge in case of a criminal investigation (art. 5º, XII). Therefore, a warrant would be needed in case of wiretapping. However, the search of the cell phone was not the same as wiretapping. The police simply accessed the phone agenda to discover with whom the defendant had talked before the killing.

    The court analogized to the situation in which police officers found a piece of paper with a phone number written on it in the defendant’s shirt pocket.  In addition, the court considered the seriousness of the crime and the public’s interest in solving it to outweigh the right to privacy of the defendants.   Justice Mendes also pointed to the theory of inevitable discovery, built by the United States Supreme Court in Nix v. Williams (1984), which would have been applied to the case, since the seizure of a cellphone is usually followed by access of all of the phone registers, not just the last calls.

    The comparison between the two decisions is interesting.  First, obviously, the US and Brazilian constitutions are different:  the US constitution prohibits unreasonable searches and seizures, but the Brazilian Constitution prohibits intercepting communications.  Accordingly, the United States and Brazilian courts seem to analyze the scope of privacy protection differently.   In addition, this kind of Brazilian Supreme Court decision is not binding on other courts,  allowing the Court to focus on the specific facts of the case rather than establishing a general rule.

    Factually, too, the cases are different.  The Brazilian case involved a search of a cell phone in 2004, at a time when cell phones contained much less personal data than they did at the time of the Riley search.  And, to the extent that both courts balance the public’s interest in solving crime against the privacy rights of the defendant, the Brazilian case involved a heinous murder for hire while the Riley case involved narcotics.  The Brazilian court focused specifically on the seriousness of the crime.

    In either country, predictions are difficult.  As technology evolves, so too will the issues surrounding seizure of a variety of items, including laptops and the like.  And as we continue to publish personal information extensively in places like Facebook, Twitter and Instagram, our reasonable expectations of privacy may change.  It will be interesting to see how the jurisprudence follows these developments.

**This post was co-authored by Rafael Wolff, a Federal Judge in Brazil and an SJD Candidate at Pace University School of Law. 

July 3, 2014 | Permalink | Comments (0)

Tuesday, July 1, 2014

Hong Kong: Freedom at Risk

When the U.K. relinquished control of Hong Kong to China in 1997,  China promised to protect the island’s autonomy. Indeed, Hong Kong’s Basic Law, which is based on the common law, grants this special administrative region a high degree of autonomy with respect to local issues.  Specifically Article 27 of Hong Kong’s Basic law states that “residents shall have freedom of speech, of the press and of publication; freedom of association, assembly, of procession and demonstration. . .”

Perhaps unsurprisingly, those freedoms are now under fire as mainland government has chosen to gradually rewrite the rules.  On June 10th of this year, the Chinese cabinet issued a white paper that declared that “[the high degree of autonomy of the HKSAR is not full autonomy, nor a decentralized power. It is the power to run local affairs as authorized by the central leadership. . .” According to an article in the New York Times, the document also suggested that judicial appointments would now be subjected to a political litmus test which critics suggest will undermine the rule of law.

In response to the white paper, local officials sponsored an unofficial poll to gauge support for changing the process whereby the city-state’s next top political official will be chosen in 2017 to a more democratic process. That poll gained over 800,000 votes over a ten day period.

Still, a public opinion poll released yesterday shows a more ambivalent attitude towards the current relationship with China.  While 33% of the respondents viewed the central government’s policies negatively, 31% possessed a positive attitude.  Yet the poll revealed a stunning age divide as anti-government attitudes were prevalent among the younger generation as 52% of respondents aged 18 to 29 had a negative view of the central government’s policies.

Earlier today however, “tens of thousands of people converged on Hong Kong’s Victoria Park for an annual protest march” while only a handful of individuals showed up for a pro-China rally. During the march, activists from the League of Social Democrats burned a copy of the white paper and called for the Hong Kong’s Chief Executive to be sacked. It remains to be seen what message the Chinese government will draw from the large size of the demonstration crowd. In 2003, after a crowd of 500,000 turned out to protest a series of anti-subversion laws, the government scrapped the proposed legislation.

It remains to be seen how the Chinese Cabinet will respond to the public demonstrations.



Michael Forsythe, “Sparse Turnout at Pro-China Rally in Hong Kong,” The New York Times, July 1, 2014. Available online at:
James Pomfret and Grace Li, “Passions Run High as Hong Kong Marches for Democracy,” Reuters Online, July 1, 2014. Available online at:
Austin Ramzy, “Hong Kong Survey Finds Record Dissatisfaction with Beijing,” The New York Times, July 1, 2014. Available online at: 

Alan Wong, “Beijing’s ‘White Paper’ Sets Off a Firestorm in Hong Kong,” New York Times, June 11, 2014. Available online at:

July 1, 2014 | Permalink | Comments (0)

Tuesday, June 24, 2014

NACDL Training Criminal Defense Lawyers in Liberia

Earlier this month, a team of four members of the National Association of Criminal Defense Attorneys (NACDL), including NACDL Indigent Defense Counsel John Gross, conducted a five-day training workshop in Kakata, Liberia with Liberian public defenders and trainers from the James A.A. Pierre Judicial Institute. The training aimed to help Liberian lawyers to improve the quality of criminal defense efforts and focused specifically on honing the pre-trial and trial advocacy skills of Liberia's public defenders.    The public defenders NACDL worked with will use the skills and knowledge gained during the workshop to train other public defenders in Liberia. NACDL is also the process of building a “criminal defense manual,” which will be used to assist in the training of future Liberian defense lawyers. The workshop was a part of an ongoing project of the United Nations Office on Drugs and Crime (UNODC): Promoting Rule of Law & Governance in the Criminal Justice System in Liberia.
Earlier this year, NACDL Secretary and Executive Director of the Neighborhood Defender Service of Harlem, Rick Jones, traveled to Liberia to support the planning and research of the upcoming training. This is the second time that NACDL has sent members to Liberia on such a mission. More information on the effort may be found at:

June 24, 2014 | Permalink | Comments (0)

Thursday, June 19, 2014

International Legal Ethics Conference VI - London July 10-12

Readers may be interested in what promises to be a fascinating conference taking place in London on July 10-12, the sixth biannual International Legal Ethics Conference VI.  Here is the description from the website:

Legal professions around the world are operating in a period of rapid economic, social and technological change. Consumerism, the decline of self-regulation, the intensification of globalisation and the growth of international legal practice, call into question the traditional role of legal professions in society. They also challenge the manifestation of legal professionalism in the organisation, culture and regulation of lawyers. Regulators are reconsidering their functions and approaches in relation to legal education, as seen in the US's ABA Task Force Report and the UK's LETR Report.

The sixth bi-annual conference of the International Legal Ethics Association takes place at a critical time in the evolution of legal ethics. The conference is built around short, paper presentations organised in streamsThe streams are:

1. Culture, Technology, Ethics and Society
2. Empirical Approaches to Legal Ethics
3. Philosophy and Legal Ethics
4. Regulation of the Profession(s)
5. Ethics and Legal Education.

The conference is hosted by The City Law School.

 This conference has attracted a fabulously impressive list of panelists, many of whom are leaders in the US ethics field.  It promises to be a must for comparative ethicists and US ethics professionals.




June 19, 2014 | Permalink | Comments (0)

Thursday, June 12, 2014

Update on Secret UK Terrorism Trial

The UK Court of Appeal modified a lower court ruling that had allowed the defendants in an upcoming terrorism trial to remain anonymous and to hold the trial in secret on the grounds of national security.  We reported on that lower court decision last week.  The court of appeal has now held that the two measures combined - anonymity and secrecy -  were too much and that it was “difficult to conceive of a situation where both departures from open justice will be justified.”    It held that the defendants should be named – and they were (Erol  Incidal and Mounir Rarmoul-Bouhadjar) – and that some of the evidence but not all could be taken in secret.   At the risk of setting precedent that could be interpreted as a broad authorization for secrecy in criminal cases, Lord Justice Gross stressed that the case itself “is exceptional.”

The court also held that a small number of journalists from the organizations that had brought the appeal would be allowed to attend all but the most sensitive evidentiary parts of the trial.  Interestingly, however, these reporters would not be allowed to take their notes out of the courtroom or to do any reporting on the case until an existing reporting ban on the case is lifted.

Part of the problem with the case is that the proof in support of the government’s request for secrecy has itself been secret, so it is impossible for the public to evaluate the bona fides of the claim that secrecy is necessary.  That situation remains.  Nevertheless, the court was concerned and seemed to accept the government’s position that if it did not have some secrecy it would have to dismiss the case.  We should follow the trial to see how the modified order is implemented, since, despite the court’s concern about the uniqueness of this case,  whatever occurs will be novel and precedential, at least for serious terrorism cases. 


David Brown,Terror Suspects Named in Secret Trial, The London Times, June 12, 2014.

June 12, 2014 | Permalink | Comments (0)

Tuesday, June 10, 2014

The UK Struggles with Secret Terrorism Trials

Having just completed a series of public terrorism trials in New York, it is interesting to look at the United Kingdom as it struggles  to hold a terrorism trial in complete secrecy later this month.   A trial level judge has granted the government’s request to hold the terrorism trial in secret on the grounds of ntional security.   In this case, “secret” means the defendants will not be named, the proceedings will not be open to the public, and the media cannot publish details about the defendants.  While defendants in the United Kingdom sometimes are not named in family or sex abuse matters, for the protection of the defendant (not at the government’s request) and while some proceedings are held in camera, the combination of anonymous defenadnts and secret proceedings is unprecedented.    Apparently, UK judges have the discretion to order closed trials in the interests of justice.   Prosecutors contend that undisclosed national security reasons would dictate dropping the charges if the trials are not held in secret.

In the United States, this is unprecedented.    In fact, with the exception of juvenile proceedings, a US court would never require that a defendant's name be withheld from publication for his or her own protection.   Although US prosecutors are given fairly extensive leeway in a terrorism case to withhold discovery on grounds of national security, the trials at least have been public – at least those trials that have been held (remember Guantanamo, where detainees have not been charged or tried).   And there is probably something gratifying and calming to the public about being able to follow the evidence in the media as it lead up to the verdict.  Transparency helps democracy function, especially at this time of what feels like maximum distrust of government.

While the Brits seem culturally to trust their government more than Americans, and since they have no written First Amendment of Sixth Amendment to govern the public trial/free press controversy, the court’s decision to allow a secret trial may be upheld.  On the other hand, the UK is still smarting from what many view as a wrongheaded government decision to follow President Bush into Iraq.   That decision was in large measure based on undisclosed information.    The court of appeal will have to weigh the public interests involved when it decides the case during the next week or so.

If a secret trial is allowed, Britain must be careful.  It has a long, sad and still fresh experience with domestic terrorism and in accommodating its criminal procedure to terrorism’s demands.  Several changes in criminal law and procedure that were originally considered necessary and adopted in the Diplock Northern Ireland courts have subsequently been applied to the mainstream criminal process (for example, making permissible a negative inference from silence).    Conducting trials in secret should not be one of them.    



Sean O’Neill, Secret trial damage “would be irreversible,” London Times,  June 6, 2014,

Sean O’Neill, Move to hold terrorist trial in secret is challenged, London Times, June 4, 2014,

June 10, 2014 | Permalink | Comments (0)

Sunday, June 8, 2014

Empowering the U.K.'s Judicial Branch

JoAnne Sweeny, University of Louisville Brandeis School of Law, has posted an interesting paper on SSRN. In "Creating a More Dangerous Branch: How the United Kingdom's Human Rights Act Has Empowered the Judiciary and Changed the Way the British Government Creates Law," Sweeny argues that, by enacting the Human Rights Act in 1998, the legislature granted new powers of interpretion to the judicial branch and thereby strengthened the judicial and legislative branches at the expense of executive power. While this thesis echoes separation of powers debates in the United States, it is a relatively new development in the U.K. where the country's parliamentary form of governance has traditionally favored the executive branch's strong reign over the legislative process. It would be interesting to compare the trajectory of the post Human Rights Act changes in the U.K. with the increasing power of Germany's Constitutional Court where the Court's expanding power has developed over a several decade period.

Sweeney's abstract reads:

Power struggles between government branches are nothing new. What is new is how those struggles have recently changed in the United Kingdom as a result of the constitutional reforms enacted by Tony Blair and the Labour Party. In addition to incorporating fundamental human rights into the British legal system, the enactment of the Human Rights Act 1998 resulted in the alteration of the balance of power between the three British government branches, with the judiciary and legislature achieving substantial gains in influence and independence. An
unintentional side-effect of these changes is that the British government structure now appears to have a more American style with a stronger separation of powers. More specifically, the British legislature and judiciary have gained new powers when human rights laws are implicated, which place these branches on more equal footing with the traditionally dominant executive branch. As this article shows, when creating or altering laws that involve human rights, government branch interactions are noticeably different, and the legislature and judiciary now have more of an impact on which laws will stand the test of time.

The paper may be found online at:

On another note, as summer rolls around, expect our blog posts to become less frequent as all of us will be doing a bit of travelling.



June 8, 2014 | Permalink | Comments (0)

Monday, June 2, 2014

Comparative Analysis of Access to Personal Data

Last week Ira Rubinstein (NYU), Gregory Nojeim (Center for Democracy & Technology), and Ronald D. Lee (Arnold & Porter) posted a timely article on SSRN entitled "Systematic Government Access to Personal Data: A Comparative Analysis."

From the abstract:

    There has been a recent increase worldwide in government demands for data held by the private sector, including an expansion in government requests for (i) direct access by the government to private-sector databases or networks, or (ii) government access, whether direct or mediated by the company that maintains the database or network, to large volumes of data.
    Documents describing programs involving large-scale government access to telephony and Internet metadata have been declassified in response to disclosures of former National Security Agency contractor Edward Snowden.
    Relying on analysis of the law and practices in 13 countries, this Article develops both a descriptive framework for comparing national laws on surveillance and government access to data held by the private sector, and a normative framework based on factors derived from constitutional and human rights law.
    In most, if not all countries studied, the law provides an inadequate foundation for systematic access, both from a human rights perspective and at a practical level. Systematic surveillance programs are often not transparent and based on secret governmental interpretations of the law, and there is often inconsistency between published law and government practice.
The article calls for a robust, global debate on the standards for government surveillance premised on greater transparency about current practices; international human rights law provides a useful framework for that debate.

June 2, 2014 | Permalink | Comments (0)

Thursday, May 29, 2014

Extradition: A New Perspective on the US Plea Bargaining Process

A recent extradition battle in the United Kingdom brings a new perspective to the unique plea bargaining process in the United States.  Paul and Sandra Dunham have been charged in Maryland with an alleged fraud to the tune of $1 million. They are UK citizens awaiting extradition who recently attempted suicide by taking an overdose of drugs rather than be extradited to the United States. 

The Dunhams’ extradition is sought under the 2003 Extradition Treaty between the US and the UK.   That Treaty has been criticized in the UK as one sided for several reasons, including the right to extradite UK citizens for offenses committed against US law, even if those offenses were committed in the UK, for which there is no reciprocal right, and a reduction in the proof required in some cases from prima facie evidence to reasonable suspicion.  There is also a concern that UK citizens extradited to the US will lose their entitled to legal aid that would otherwise be available if they were prosecuted in the UK. 

But, according to counsel for the Dunhams, extradition is being resisted on the ground that the UK is “forcibly sending them to American to face trail in a justice system where plea agreements are effectively forced upon people.”  The argument seems to be twofold:  1) that because of the way plea bargaining takes place in the United States, and the fact that 98% of cases result in guilty pleas, the Dunhams will effectively be required to admit their guilt rather than assert their innocence; and 2) the plea bargaining process produces unjust outcomes in the form of excessive prison sentences.  It should be noted that the Dunhams are in their 50s and vehemently deny their guilt.    

Interestingly, a similar claim was made by David McIntyre, an ex-soldier who was accused of overcharging a US peace group for a security contract.  He claimed he was afraid he would not be able to clear his name if he were extradited because, “In the American judicial system you’ve got a plea bargain system and they’ll sit a piece of paper in front of me and tell me I can either do 20 years hard time in the penitentiary or cough to it and do three years soft time.”   As of this writing, McIntyre has been granted a new appeal based on medical evidence that he suffers from PTSD, and has not been extradited. 

This week, the European Court of Human Rights dismissed their application. 

Yes, the kinds of “we can’t get a fair trial if extradited” claims that routinely are made in extradition proceedings focus on court proceedings  in less-evolved judicial systems in other countries and to the very real potential for  interference with an accused’s right to a fair trial.   But the Dunhams’ claim raises troubling issues about the US plea bargaining process.   Compared to the UK, prosecutors in the US have virtually unfettered and unguided discretion in the plea bargaining process. They also have access to a huge array of potential charges and significantly longer permissible sentences, including harsh mandatory minimum sentences.   If aggregated, the sentence Mr. Dunham faces on the thirteen counts of his indictment would subject him to 390 years’ imprisonment, and for Ms. Dunham’s eight counts her sentence could be 240 years.   While of course the sentence they would receive after a conviction by plea or verdict would not be anywhere near those lengths, those numbers do drive home the point.  And very significantly, in contrast to the strict rules and relatively low sentences that govern sentence reductions for guilty pleas in the UK, the sentencing differentials in the US between pleading guilty or going to trial are enormous.   These arguments have been made and rejected in the United States, but perhaps the international awareness, which is recurrent and compelling, will begin to resonate in extradition proceedings.  As noted in an earlier post, the Europeans have become much more vocal in their criticism of the US death penalty process.    Maybe we will start to hear some international discourse about the unfairnesses in our guilty plea system.   


Human Rights Joint Committee (22 June 2011), “The UK’s bilateral extradition treaties: US-UK Extradition Treaty 2003.”

David Barrett, Paul and Sandra Dunham Face Extradition After Strasbourg Refuses to Intervene, The Telegraph, 5/29/14,

David Brown, British Suicide Pact Couple Fear Plea Bargain as They Face Extradition to the US, The Times of London, 5/27/14,

Felicity A. Morse, David McIntyre, Ex-Soldier, Says he Will Kill Himself if Extradited to the US, The Huffington Post, 4/27/13,

Lissa Griffin, International Spotlight on the Death Penalty, Comparative Law Prof Blog (May 1, 2014),



May 29, 2014 | Permalink | Comments (0)

Tuesday, May 27, 2014

The Duty to Warn

The recent “day of retribution” in California which left six individuals dead and more than a dozen more injured has again brought to the forefront our society’s inability to identify and prevent mass shootings. Despite the fact that the shooter’s mother voiced concerns about her son’s behavior with his therapist and the therapist contacted authorities, law enforcement officials found insufficient grounds to justify an involuntary commitment.  Apparently, the officers who visited the suspect never bothered to even search his apartment.  Had they done so, they would have found his arsenal as well as his writings and plans of the attack. Ironically, California is one of 27 states where therapists are bound by a mandatory duty to warn third parties of threats to their safety.

The United States has some of the most robust “duty to warn” laws among Western European countries.  Although there is a recognized common law exception in the U.K. to the duty of confidentiality, the law has stopped short of imposing a duty to warn the public of a potentially dangerous patient. In the aftermath of the highly publicized case, W. vs. Egdell, in 1990, the U.K.’s General Medical Council issued this policy statement: 

‘If you remain of the view that disclosure is necessary to protect a third party from death or serious harm, you should disclose information promptly to an appropriate person or authority. Such situations arise, for example, where disclosure may assist in the prevention, detection, or prosecution of a serious crime, especially crimes against the person, such as abuse of children’.

Other countries however impose less robust duties on mental health professionals. For example, in New Zealand, psychiatrists possess no formal duty to warn the public of potential dangers posed by their patients. At the same time, the lack of a formal duty is not an absolute license to protect patient confidentiality at all costs as both psychiatrists and institutions do possess a duty to safeguard potential victims from foreseeable harm. In France, as well, practitioners possess no legal duty to warn the family and relatives of a patient’s potential dangerous. In addition, although French law does permit individuals to be held involuntarily against their will for mental health reasons, there is a robust procedural process in place which is designed to protect the patient’s confidentiality and freedom.

The first reaction of the media to mass killings seems to focus on finding some person or law that is at fault for the carnage. In this area of the law, the United States appears to be out in front in trying to set up a legal framework to head off a castrophe. The solution likely lies in the direction of more efficient data sharing. But if authorities were able to improve their ability to collect this type of data, it might not only raise privacy issues, but resource issues as well. In our tax-phobic environment, there is currently little political will to fund an expansion of mental health resources. 


Adam Nagourney & Erica Goode, “Limits to Law and Information Sharing, Despite Gunman’s Danger Signs,” New York Times, May 26, 2014.

Associated Press, “Elliot Rodger’s Family Tried to Intervene Before Deadly Rampage,” FOX NEWS, May 27, 2014.

Alan R. Felthous, Roy O'Shaughnessy, Jay Kuten, Irène François-Pursell, Juan Medrano, “The Clinician's Duty to Warn or Protect: In the United States, England, Canada, New Zealand, France and Spain,”  The International Handbook of Psychopathic Disorders and the Law: Laws and Policies, Volume II, pp. 75–94, 2008.

Colin Gavaghan, “Dangerous Patients and Duties to Warn: A European Human Rights Perspective,”14 Eur. J. Health L. 113 (2007).

May 27, 2014 | Permalink | Comments (0)

Thursday, May 22, 2014

In the News: the Mental Disease or Defect Defense


The mental examination of Oscar Pistorius and the continued news of mass shootings in the United States focus attention on the defense of mental disease or defect.    In a previous blog we noted the procedural complications of referring a defendant for a thirty-day psychiatric examination during trial.  Can this all be the consequence of his expert’s claim at trial that he suffered a generalized anxiety disorder following the amputation of his lower legs and a difficult childhood?  Even the defense expert testified that this disorder did not mean he could not distinguish between right and wrong.  Why is the question of his ability to understand the difference between right and wrong and to conform his conduct even being pursued?  At some point, we are likely to be treated to headlines that say something like “Pistorius knew what he was doing!” or “Pistorius flunks insanity test,” or something equally misleading, irrelevant, and prejudicial.  Alternatively, if the doctors find that he did not pass the test, will the defense now seek to disprove that to avoid indefinite commitment in a mental institution?

Another interesting development is a report of research from the University of Glasgow about serial or mass murderers.    That study concluded that 28% of such killers suffered from Autism Spectrum Disorder (ASD), 21% of such killers suffered a head injury in the past, and of those with ASD or head injury, 55% had experienced some psychosocial stressors in the past.  To be sure, this is important research.   We will have to watch to see if or how it makes its way into court in the context of criminal responsibility, criminal procedure, and sentencing.


May 22, 2014 | Permalink | Comments (0)

Sunday, May 18, 2014

Stealth Authoritarianism

Ozan Varol of the Lewis & Clark Law School has posted "Stealth Authoritarianism" on SSRN. The abstract reads:

     "Authoritarianism is undergoing a metamorphosis. Historically, authoritarians openly repressed opponents by violence and harassment and subverted the rule of law to perpetuate their rule. The post-Cold War crackdown on these transparently authoritarian practices provided significant incentives to avoid them. Instead, the new generation of authoritarians learned to perpetuate their power through the same legal mechanisms that exist in democratic regimes. In so doing, they cloak repressive practices under the mask of law, imbue them with the veneer of legitimacy, and render anti-democratic practices much more difficult to detect and eliminate.

     This Article identifies and offers the first comprehensive cross-regional account of that phenomenon, which I term stealth authoritarianism. Drawing on rational-choice theory, the Article explains the expansion of stealth authoritarianism across different case studies. The Article fills a significant void in the literature, which has left undertheorized the authoritarian learning that occurred after the Cold War and the emerging reliance on legal, particularly sub-constitutional, mechanisms to perpetuate political power. Although stealth authoritarian practices are more prevalent in nondemocracies, the Article illustrates that they can also surface in regimes with favorable democratic credentials, including the United States. In so doing, the Article informs important questions in legal theory by demonstrating the limits of democratic processes and their vulnerability to abuse.

     The Article concludes by discussing the implications of stealth authoritarianism for scholars and policymakers. The existing democracy-promotion mechanisms in the United States and elsewhere are of limited use in detecting stealth authoritarian tactics. Paradoxically, these mechanisms, which have narrowly focused on eliminating transparent democratic deficiencies, have provided legal and political cover to stealth authoritarian practices and created the very conditions in which these practices thrive. In addition, stealth authoritarianism can ultimately make authoritarian governance more durable by concealing anti-democratic practices under the mask of law. At the same time, however, stealth authoritarianism is less insidious than its traditional, more repressive alternative and can, under some circumstances, produce the conditions by which democracy can expand and mature, in a two-steps-forward-one-step-backward dynamic."
The article may be accessed via this link:



May 18, 2014 | Permalink | Comments (0)

Thursday, May 15, 2014

Capital Punishment Redux: Recent Executions and International Norms

In a recent article in The Diplomat, Professor Margaret K. Lewis, of Seton Hall Law School, evaluates whether recent executions in the United States and Taiwan satisfy prevailing international norms.  Specifically, Prof. Lewis looks at the International Covenant on Civil and Political Rights (ICCPR), which encourages abolition, and The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), whose special rapporteur recently  concluded that "states cannot guarantee that therere is a pain-free method of execution."

While the botched execution of  Clayton Lockett gained headlines in the United States, five executions carried out in Taiwan last week - the first in over a year - raise questions about Taiwan's position vis a vis the death penalty.  When, in 2009, Taiwan incorporated the ICCPR into domestic law, an international group of experts who reviewed implementation recommended a moratorium on executions as a move toward abolition of capital punishment.  Their additional recommendation to adhere to CAT has not been addressed by the Taiwanese government to date. 

To read Prof. Lewis's article, click this link.

May 15, 2014 | Permalink | Comments (0)

Sunday, May 11, 2014

Our Struggle against Islamic Fundamentalism

Since 9/11, various levels of the American government have sought, not only to prevent another attack by Islamic fundamentalists on U.S. soil, but also to combat the inroads made by Islamic law overseas. In today’s news, three stories highlight different frontlines of this battle, as well as the limits and miscalculations of American power and influence to undercut the influence of Islamic fundamentalism.

First up to the plate is the report by Joseph Goldstein in the New York Times that NYPD detectives make regular trips to the city’s jails, not to investigate crime, but rather to recruit Muslim informants. Mr. Goldstein reports that detectives routinely question numerous individuals, who were incarcerated for mostly minor criminal offenses, in an effort to spy on mosques throughout the city. According to the article, the Citywide Debriefing Team “interviewed” some 220 suspects in the first quarter of 2014. Although city officials claim that the program is modeled on other programs to recruit informants to investigate crimes such as drug trafficking, the program raises several red flags on both the individual and societal level. On the individual level, the program intrudes on the suspect’s liberty and privacy interests. First, because the potential informants are often held for a longer period of time, if only a few hours, until a member of the debriefing unit arrives, the program interferes with the suspect’s liberty interests. Second, because the detectives gather information on the suspect’s family, religious practices, and immigrant communities, the program is yet one more example of how the state has extended its reach into our private lives. Finally, in some respects, the program is more coercive than plea bargaining, as some informants may feel pressured into surrendering their privacy and information about their family lives, in exchange for the dismissal of petty charges.

On the societal level, a report by NYU’s Center for Human Rights and Global Justice, points to several problems with law enforcement’s use of Muslim informants. First, this policy assumes that most Muslims living in the U.S. have some ties to terrorism. Using similarly flawed logic, these policies assume that the U.S. faces a real threat from homegrown Muslim terrorists. Perhaps, most disturbingly, because the policies are based on a preventative, rather than a reactive, model of policing, they threaten to create crime through police entrapment with little oversight or accountability.

The second story of interest involves the boycott by movie industry executives of the famous Beverly Hills Hotel.  The primary motivation for the boycott is the fact that the hotel is owned by Sultan Hassanal Bolkiah of Brunei who recently adopted a harsh form of Islamic law.  The “new” laws, which went into effect on May 1st, calls for gays and adulterers to be stoned and thieves to be punished by having their limbs amputated. Both the International Commission of Jurists and the UN High Commissioner for Human Rights have condemned the new laws.  Brunei is not alone in embracing Sharia law as it continues to influence legal norms in 12 other countries throughout the world including Pakistan and Afghanistan. Although boycotts can be an effective way of publicizing an issue, the small scale of this boycott is unlikely to provoke Brunei to rewrite its legal codes.

The final article highlights one of the side effects of our country’s recent wars in Afghanistan and Iraq-the human cost of battle. Barry Meier’s article, “A Soldier’s War on Pain,” we are reminded of the human cost of war.  Four years ago, Sgt. Shane Savage was seriously injured in Afghanistan when his armored truck was blown apart by a roadside bomb. After battling chronic pain for several years after the blast, the Sgt. has found a way to handle his pain without the use of narcotics. The lifetime of pain that the Sgt. must likely endure is one reminder of the long-lasting costs of our misguided and largely counter-productive military adventures.  One subtext of the article is the fact that Sgt. Savage found his path to healing through an innovative, but not widespread, multi-disciplinary pain treatment program developed by the VA hospital in Tampa, Florida. While many members of Congress quickly voiced support for our war efforts, upgrading our veteran’s medical care is not a top political goal of either party.

These three articles underscore our country’s continued concern with Islamic fundamentalism and the threat that fundamentalism poses to human rights. At the same time, they also highlight the limits and human costs of the use of American power. Most disturbingly, they shine the light on the fact that our policies reflect our overconfidence in the use of power and leverage on our own soil-most notably exploiting our criminal justice system’s most glaring systemic weakness-the exploitation of the rights of our most powerless residents.


Center for Human Rights and Global Justice, “Targeted and Entrapped: Manufacturing the Homegrown Threat in the United States,” (2011). Available online at:

Michael Ciepely, “Brunei Ownership Casts a Shadow on a Beverly Hills Hotel, New York Times, May 9, 2014.

Joseph Goldstein, “New York Police Recruit Muslims to be Informers,” New York Times, May 11, 2014.

Luke Hunt, “Brunei Imposes Sharia Law,” May 2, 2014, The Diplomat-Blog. Available online at: 

Barry Meier, “A Soldier’s War on Pain,” New York Times, May 10, 2014.

May 11, 2014 | Permalink | Comments (0)

Thursday, May 8, 2014

Bringing Plea Bargaining to Brazil

I was lucky to have Rafael Wolff, a Federal Judge in Brazil and an SJD Candidate here at Pace Law School, as a student in my Comparative Criminal Procedure seminar this semester.  Judge Wolff has written a fascinating paper analyzing new legislation – additions to the Criminal Code and the Code of Criminal Procedure in Brazil -- that would authorize plea bargaining in Brazil for the first time.  The bills would allow a judge, after finding sufficient evidence to support the charge, to allow for immediate imposition of sanctions if there is a 1) total or partial confession about the facts; 2) a request for imposition of the minimum statutory sentence; and 3) an express agreement that the prosecution of evidence is not necessary.  Presently, the only type of “bargain” that can be struck is a non-prosecution agreement, which is used most widely in the prosecution of misdemeanors.

These proposals have been met with opposition in Brazil, based largely on a concern that defendants will plead guilty involuntarily, and innocent people may be convicted. Some opponents also fear that the negotiating process would alter the truth seeking process, and hamper the ability of officials to carry out an investigation into the facts of the case.  United States District Court Judge Peter J. Messitte noted that the Brazilian judicial system has generally remained committed to the traditions of an inquisitorial system, resulting in “compulsory prosecution[s], which is to say all cases must go to trial.” He explained  that “[t]he idea of negotiating and bargaining a plea traditionally has [simply] not existed within [Brazil’s] inquisitorial system primarily by reason of the principle that the real truth can never be negotiated.”

But several aspects of Brazilian criminal procedure make the dim scenarios proposed by opponents unlikely to occur. First, a guilty plea may not be accepted unless a judge has already “accepted” the charges, meaning a judge has found sufficient evidence to support the charge.  While this is a low threshold, as it is in the United States, judges in Brazil have full access to the dossier and should theoretically be able to spot weaknesses in the prosecution’s proof that could signal a not guilty defendant. Moreover, as Judge Rafael Wolff explains “not all crimes are complex,” and the likelihood of a miscarriage of justice occurring as a result of a negotiated plea may be largely minimal in such cases.

In addition, the sentence discount available to a pleading defendant is the statutory minimum sentence; unlike the United States prosecutors, who have tremendous discretion in negotiating a plea, the prosecution cannot offer a larger discount that might encourage an innocent defendant to plead guilty.   Notably, prosecutors in Brazil are civil servants, who have no professional stake in a conviction.  Finally, there is no evidence that judges put pressure on prosecutors to enter into non-prosecution agreements under the current regime.

We are all aware of the pros and cons of plea bargaining.  It will be interesting to see if this rather modest, well-regulated proposal – compared to US plea bargaining – is adopted.

Related References:

May 8, 2014 | Permalink | Comments (0)

Tuesday, May 6, 2014

Arranged Marriages in Afghanistan and the Limits of Rule of Law Reforms

Despite the fact that the United States has poured over $900 million  in “rule-of-law” funding into Afghanistan to “modernize” the country’s civil codes and to institutionalize more robust rights for women, many Afghan women face lives defined by arranged marriages. According to a recent article in the New York Times, the legal basis for these marriages is not enshrined in the state’s updated civil code, but rather it is embedded in unwritten customary law developed through the state’s tribal culture.  Prior to the coalition effort to topple the Taliban from power, the ruling Taliban government imposed a strict version of Sharia law which barred women from receiving an education and ordered them to completely obey their husbands and male family member. While the coalition forces voiced public support for improving the lives of women, mere changes in the law have only made limited inroads in improving women’s rights. While the Karzai government has improved the plight of women in Kabul, outside the capital, the tribal warlords have expressed little support for women’s rights.

A key problem with the rule of law programs lies in the fact that ultimately the mindsets of the judges themselves, infused with dominant cultural norms, determine which “law” is applied. The plight of women throughout much of Afghanistan is difficult to reconcile from a Western perspective. According to the Times article, unmarried women found unaccompanied by a relative outside the home, are “routinely subjected to a virginity test.” Women who abscond from arrange marriages, face death at the hands of their own family members.

A family’s commitment to enforcing customary norms may not dim even when they emigrate to the West.  Two years ago, a Canadian man enlisted his son and his wife to kill three of his teenage daughters. The family had left Afghanistan in 1992 finally settling in Canada in 2007. Canadian authorities stated that the killers believed that the victims had brought shame to the family because of their dress, dating, and use of the internet.

The limits of legal reform in Afghanistan were foreseeable. For at least a decade, law and society scholars have highlighted the link between law and culture. As one example, Lawrence Rosen’s book, Law as Culture (2006), highlights the inseparability of law and culture as well as the fact that one should not view the impact of culture on the law as a mere afterthought.


Associated Press, “Honour Killings: Canadian Authorities Finds Afghan Family Guilty of Honour Killings,” The Guardian, January 29, 2012.

Heather Barr, “Women’s Rights in Afghanistan Must be Steadfastly Respected,” JURIST-Hotline, March 5, 2014.

Paul Schiff Berman, “The Enduring Connections Between Law and Culture: Reviewing Lawrence Rosen, Law as Culture, and Oscar Chase, Law, Culture, and Ritual”, 57 Am. J. Comp. L. 101 (2009)

Blog Post, N. Lukanovich, “Women in Afghanistan-Before and After the Taliban,”   November 7, 2008. Available online at:

Clifford Geertz, “Local Knowledge: Fact and Law in Comparative Perspective,” in LOCAL KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY (1983). 

Rod Nordland, “In Spite of Law, Afghan ‘Honor Killings’ Continue, New York Times, May 3, 2014


May 6, 2014 | Permalink | Comments (0)

Thursday, May 1, 2014

International Spotlight on the Death Penalty

It doesn’t seem right to let the execution debacle in Oklahoma go un-remarked on this blog.  While this domestic tragedy might not be appropriate for a comparative law blog under normal circumstances, the fact that France, Spain and England have publically commented on it raises a comparativists interests, as does the mass death sentence of almost 700 people this week in Egypt.

Usually, our European colleagues hold their noses but remain quiet about the outlaw justice that the U.S. death penalty represents to them.   Uncharacteristically, however, the botched execution, which resulted in an excruciating death – “cruel and unsual” as a Times editorial called it - spurred our allies to public comment.

The death penalty is banned in the European Union, with Belarus the only European country that still carries out legal executions.  The UK banned the death penalty long ago, and France banned it in 1981.  The immorality of this sentence is old news to Europeans.  What is interesting however, is that the EU has also moved to ban the export to the United States of the kinds of drugs used for lethal injections and, as a result, one company has stopped making them and others, fearing sanctions, have sought to prevent their use in executions.  It is not surprising, then, that US jurisdictions, like Oklahoma, have had trouble getting the kinds of lethal drugs they need to carry out their executions properly and have resorted to unknown and unnamed sources of supply for unnamed and undisclosed drugs.  The botched execution appears to be the result of that misguided practice.

As reported in the New York Times, France, Spain, and the UK all issued official statements condemning the execution in Oklahoma and urging the abolition of the death penalty worldwide as a matter of “human dignity,” “principle,” and its lack of demonstrated “deterrent value.”

According to Amnesty International, twenty-two countries conducted 778 executions in 2013.  These figures do not include executions in China, where death penalty statistics are considered a state secret and are unavailable.  Amnesty International reports that China executed more people than all of the other countries in the world combined.   The US is the only country in the Americas to have carried out any executions in 2013, with 41% taking place in Texas. 

Suffice it to say we are not in good company.   This has been recognized in the Supreme Court’s controversial juvenile death penalty cases, where Justice Anthony Kennedy, in particular, has pointed out our ignoble place in the developed world on juvenile executions in particular.  In Roper v. Simons, Justice Kennedy explained that “[i]t does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.”

To be sure, the White House also condemned the barbarity of yesterday’s execution.  White House Press Secretary Jay Carney commented “that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely. And I think everyone would recognize that this case fell short of that standard.”

Politically, of course, the Left has been opposed to the death penalty for years, and the Right has joined the bandwagon in some instances as part of its austerity and anti-big government agenda.  Is it possible that market forces will ultimately determine this important moral issue?  If pharmaceutical companies have a financial disincentive to produce the correct drugs and the public continues to be treated to medieval, town-square executions like yesterday’s, maybe enough will be enough.  It will not be the first or last time that money talks. 

Related Readings


May 1, 2014 | Permalink | Comments (0)