Monday, March 31, 2014
This Friday, I will be joining a group of innovative law professors from around the country to participate in LegalEd's inagural conference entittled "Igniting Law Teaching." The conference, which will be held at American University's Washington College of Law, is a TEDx-Styled conference and will feature short presentations by more than three dozen innovative legal educators. Following the TEDex format, each professor will give an eight minute talk to introduce their teaching innovation. The event may be viewed live. In addition, the folks at LegalED will be recording the presentations and uploading them on to the LegalEd website in an effort to spread the word on these innovative teaching pedagogies.
During my presentation, I will be giving viewers advice and insight on how to plan and execute a crisis simulation as part of a course in national security law. Since I teach national security law from a comparative perspective, students are charged with learning how culture, history, and the law frames a particular state's response to terrorism. While that is a tall order, the most challenging part of my course is a four hour crisis simulation exercise in which students play the roles of government officials from around the world and respond in role to a series of crisis events. This challenging event tests students' ability to apply the law learned in the classroom in a crisis situation.
When I first began teaching my course, I borrowed ideas and advice from Amos Guiora, who has planned ground-breaking simulations at Utah's S. J. Quinney College of Law. While I don't claim to have matched Utah's track record, our simulations at IU-McKinney have proven to be highly successful. Our first simulation was featured in a public television documentary entitled "Tough Decisions" which won an Emmy Award for the Great Lakes Region. At the LegalEd event, I intend to share the multiple lessons that I've learned from planning these simulations in Indianapolis so that other professors may incorporate simulations into their national security courses.
The numerous other presentations scheduled for this Friday are organized around the themes of:
1. Flipping the Law School Classroom
2. Using the Classroom for Active Learning
3. Applying Learning Theory to Legal Education
4. The Craft of Law Teaching
5. Simulations, Feedback & Assessment
6. Beyond Traditional Law Subjects
7. Teaching for the 21st Century
The link for the LegalEd website may be found at: http://legaledweb.com/. If you are interested in watching the event live this coming Friday, April 4th, the link is:
Friday, March 28, 2014
The statistics coming out of the New York-based Innocence Project based on a review of post-conviction DNA exonerations - cases in which the defendants were indisputably innocent - show that 75 percent of those convictions involved mistaken identification testimony, 25 percent involved false confessions, and 15 percent involved the testimony of informants or snitches who stood to benefit from testifying against the defendants. It would seem appropriate to acknowledge these figures in constructing safeguards against the admission of unreliable evidence, at least in the United States. Requiring that these demonstrably, potentially unreliable kinds of proof be corroborated is one way to protect against wrongful convictions.
In the United States, of course, corroboration requirements are few and far between. In the federal system, there is no corroboration requirement generally. However; the U.S. Supreme Court has held that a defendant may not be convicted solely on a confession unless it is corroborated by evidence showing that the crime was committed by the defendant. Opper v. United States, 348 U.S. 84 (1954); Smith v. United States, 348 U.S. 147, 152 (1954) (“[A]n accused may not be convicted on his own uncorroborated confession.”). Nevertheless, this is a very low evidentiary threshold, and does little to address the fallibility of a conviction that rests significantly on a confession itself. Indeed, recent science shows that many factors -including mental health issues and aggressive law enforcement tactics- can themselves yield false confessions that contain corroborating details.
According to Dr. Richard A. Leo, who conducted comprehensive empirical research on the causes and correlates of false confessions, there are three sequential errors, which occur during a police-elicited false confession, that lead to a wrongful conviction –none of which are protectable against under the scant corroboration requirement imposed by federal courts. He observed that “[i]nvestigators first misclassify an innocent person as guilty; they next subject him to a guilt-presumptive, accusatory interrogation that invariably involves lies about evidence and often the repeated use of implicit and explicit promises and threats as well. Once they have elicited a false admission, they pressure the suspect to provide a post-admission narrative that they jointly shape, often supplying the innocent suspect with the (public and nonpublic) facts of the crime.”
There is currently no federal corroboration requirement for accomplice testimony, snitches, or one-witness identification – also demonstrably vulnerable proof in support of one’s guilt. See, e.g., United States v. Florez, 447 F.3d 145, 155 (2nd Cir. 2006) (“[A] federal conviction may be supported ‘by the uncorroborated testimony’ of even a single accomplice witness.”). Furthermore, Congress has also abolished the long-standing rule requiring corroboration in perjury prosecutions that exists in virtually every common law jurisdiction. See 18 U.S.C. 1623(e) (“It shall not be necessary that such proof be made by any particular number of witnesses or by documentary or other type of evidence”); United States v. Diggs, 560 F.2d 266, 269 (7th Cir. 1977) (“Although the two-witness rule is “deeply rooted in past centuries, it is not of constitutional dimensions. Indeed, Congress has seen fit to abolish it in cases involving false declarations under oath before a grand jury or courts which are prosecuted under 18 U.S.C. s 1623.”)(internal citations omitted).
New York State has slightly stricter corroboration requirements. In addition to retaining the two-witness rule in perjury prosecutions, N.Y. PEN. LAW § 210.50, New York requires corroboration of a confession, NY CPL § 60.50, much like the federal rule. It also requires corroboration of accomplices, NY CPL § 60.22 (1), of unsworn child witnesses, N.Y. CPL. LAW § 60.20 (2) & (3), and of sexual abuse crime victims whose lack of consent is based on mental infirmity. N.Y. PEN. LAW § 130.16. But it does not require corroboration of jail house snitches or of single identifying witnesses.
Although New York’s corroboration rule may appear more expansive, it requires very little. For example, the New York Court of Appeals held in People v. Reome that the “corroborative evidence” required by NY CPL 60.22 (1) “need not be powerful in itself.” Id. at 191. The Court explained that “the corroborative evidence need not show the commission of the crime; it need not show that defendant was connected with the commission of the crime. It is enough if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.” Id. at 192.
Looking abroad, the courts of England and Wales also have no general corroboration requirement, but do retain the requirement in perjury prosecutions. R v Peach, (1990) 2 WLR 976. In an interesting development, Scotland has recently abolished its long-standing, unique corroboration requirement, but has appointed a commission to study what safeguards should be imposed in light of this.
If corroboration requirements are going to have an impact in preventing wrongful convictions, it is worth thinking about how they might be most effective. Rules requiring corroboration generally require that a trial jury be instructed to acquit in the absence of the required corroboration. Given the small number of cases that actually get tried in the United States, it might be more effective to impose a corroboration requirement at the charging stage – prohibiting prosecution in the absence of two sources of proof. And with the U.S. prosecutors’ unreviewable and extensive discretion over which of many statutory charges to bring in the course of plea negotiations, a corroboration requirement at the charging stage might have an impact on the fairness and accuracy of both guilty pleas and verdicts.
- Innocence Project, The Causes of Wrongful Conviction, (last visited March 25, 2014).
- Richard A. Leo, False Confessions: Causes, Consequences, and Implications, J Am Acad Psychiatry Law 37:332–43 (2009).
- Opper v. United States, 348 U.S. 84 (1954)
- Smith v. United States, 348 U.S. 147, 152 (1954)
- People v. Reome, 15 N.Y.3d 188 (2010)
- United States v. Florez, 447 F.3d 145 (2d Cir. 2006)
- United States v. Diggs, 560 F.2d 266 (7th Cir. 1977)
- United States v. Necoechea, 986 F.2d 1273, 1282 (9th Cir. 1993)
- United States v. Galardi, 476 F.2d 1072, 1075 (9th Cir. 1973)
Wednesday, March 26, 2014
The papers gathered in this volume demonstrate how global regulations tend to meet strong cultural resistance, in particular when dealing with the more subtle patterns of conflicts of interest. It is a notion that is far from successfully regulated in every country or addressed in compatible ways. In fact, the comparisons offered demonstrate that even international organizations such as the European Union have failed to fully consolidate their systems for mitigating their own risks of corruption and conflicts of interest.
Providing a comprehensive study of the phenomenon of corruption and conflicts of interest from a comparative perspective, this book will prove vital for academics, NGOs and practitioners.
Thursday, March 20, 2014
In a country with a 99.9 percent conviction rate in 2012, and where party interference with judicial proceedings is routine, a comparativist must look deep for signs of progress in the balance between the right to due process, fair and efficient proceedings, and crime control. After all, the most well known wrongful conviction in China involved the case of a man convicted of killing his wife based on a coerced and false confession, in which the wife reappeared many years later while he was serving his sentence. A book, Back From The Dead: A Landmark Ruling of Wrongful Conviction in China, has recently been released about the case, and new light has focused on the routine coercion of confessions by the police.
At the moment, though, China is making all of the right noises, and reporting that great strides are being taken to address flaws within its criminal justice system. Chinese news reports have also indicated that over 800 convictions were vacated last year by the Supreme People's Court due to findings of actual innocence. Notably, however, the Nation’s movement towards reforming its system has not been met with any material substantive changes to the rule of law. Likewise, the reports relating to the Court’s overturning of a few hundred convictions is hardly conducive of everlasting change, considering that the judiciary is not an independent body and has accounted for more than 5 million convictions between the years of 2008 to 2012 alone.
Zhou Qiang, the head of the Supreme People’s court recently acknowledged that in some of the criminal cases that resulted in conviction…“the rulings…were not fair…which harmed the interests of the litigants and undermined the credibility of the law.” Last year, he called for changes to prevent wrongful convictions. And Shen Deyong, the executive vice-president of the Supreme People’s Court articulated last year the basic value that it is better to acquit a guilty person than convict an innocent one. Meanwhile, there has apparently been some reform in curtailing the power of the community party’s Political and Legal Committee, which in the past has overtly interfered in legal cases.
Nevertheless, lawyers for the jailed New Citizens Movement members have become outspoken about the restraints being placed upon their ability to effectively represent their clients. Zhang Qingfang noted that his clients, whom are accused of mounting an amorphous civic campaign to compel reform in the way China deals with corruption and the rule of law, have been denied basic legal precepts, and have not received a fair trial. Notably, the defense lawyers were advised that they will not be allowed to either cross-examine the prosecution’s witnesses, or call witnesses as part of their defense.
Jerome A. Cohen, an expert on Chinese law at New York University, has noted that the implementation of better practices within China’s criminal justice system was simply being fettered by Chinese authorities. Cohen, citing the recent barring of the public and the news media from trials, contended that the authorities were undermining the promises of Mr. Xi and his newly appointed Supreme Court chief, Zhou Qiang, to curtail wrongful convictions. Mr. Cohn stated that “There doesn’t seem to be any connection to what they are preaching and what is being practiced.”
Other critics, have also noted that "[b]ecause the judicial system is tied to the political system, if there is no real political reform, the reforms to the judicial system cannot be fully realized.” Eva Pils, a law professor at the Chinese University of Hong Kong, stated that "the biggest concern about the judiciary remains that it is a weak institution compared to the Party-State security apparatus.”
Political interference is not something the United States routinely faces in its wrongful conviction cases, although politics is clearly the cause of so few grants of executive clemency. Clearly, though, the problem of false confessions is real, not simply due to police coercion but to more subtle suggestion by the police which result in confessions by innocent people that contain what appear to be corroborative details. The practice of recording statements, used widely in England and beginning to be used in the United States, certainly will prevent both subtle and unsubtle causes of false confessions. Hopefully, the Chinese will watch and learn from these steps.
- He Jiahong, Back From The Dead: A Landmark Ruling of Wrongful Conviction in China, Penguin Specials (February 10, 2014).
- Debra Bruno, Resurrecting One of China’s Most Embarrassing Court Decisions, The Wall Street Journal (Mar 11, 2014)
- Terrence Mccoy, China scored 99.9 percent conviction rate last year, The Washington Post (March 11, 2014)
- Sui-Lee Wee and Li Hui, With legal reforms, China wants less interfering in cases, fewer death penalty crimes, Reuters (March 10, 2014)
- Andrew Jacobs, Chinese Activist’s Lawyers Call His Trial Unfair, The New York Times (January 22, 2014)
- Cao Yin, More than 800 convictions overturned in 2013, China Daily (last updated March 10, 2014)
- China's chief justice reports work of Supreme People's Court, English.news.cn (March 10, 2013)
Saturday, March 15, 2014
Sahar Aziz (Texas Wesleyan) has posted, Revolution Without Reform? A Critique of Egypt’s Election Laws on SSRN. The article should be of interest to anyone who seeks to understand the post-colonial history of Egypt’s electoral institutions. The article notably compares the efficacy of Egypt’s election laws before and after the January 25 Revolution. Aziz persuasively argues that post-revolution reforms fall short of creating the necessary conditions to produce a “sustainable and meaningful democracy.” Te article traces the history of the Egyptian Constitution, which came into force in 1956, and critically examines the legal framework that governs Egypt’s two key election monitoring and oversight authorities- the High Elections Commission (HED) and the Presidential Elections Commission (PEC).
While Aziz notes that the post-revolution changes in the electoral system appear to be constructive, she argues that built in structural flaws will undermine their ability to produce sustainable and meaningful change. In one example, Aziz points out that, by requiring that the membership ranks of the HED and PEC be drawn from the judicial rather than the political ranks, the reforms attempt to depoliticize the composition of the monitoring agencies. Unfortunately, because the law dictates that commission members arbitrate front line partisan electoral disputes rather than review the decisions of independent election commissions, the process guarantees that judges will find themselves at the center of partisan debates. By immersing judicial officials into the heart of partisan debates, the judiciary’s legitimacy as an independent institution will be threatened from the start. Americans witnessed this development first –hand when the Supreme Court announced its decision in Bush v. Gore, as we saw how quickly this involvement may impair the public’s perception of the judicial independence.
With respect to the representation of women in public political life, Aziz criticizes the government’s decision to eliminate the sixty-four seat representation quota for women in the People’s Assembly. While the law requires the parties to include women on their candidate lists, because the parties typically put women at the bottom of those lists, they have little chance of getting elected. Finally, Aziz suggests that the reforms have done little to reform a pre-revolution electoral system that allowed the NDP to maintain a three-decade grip on political power. Ironically, by adopting a purely democratic system after decades of authoritarian rule, Sahar argues that the system reinforces the inequities created by that system as disparities in income, status, and cultural bias against particular groups and women impede equal opportunity. In addition to failing to create a level playing field, the laws fail to create a system that is transparent and independent enough to earn voters’ confidence.
Despite these criticisms, Sahar points out that Egypt has undertaken two positive electoral reform steps. First, she argues that the use of a closed list system will presumably improve the competency of the office holders and undercut the system’s historical tendency to elect candidates buttressed by wealth who could self-finance their campaigns. Given Egypt’s governance issues, Aziz postulates that the parties will be motivated to select competent candidates who are likely to win reelection. One downside to the list system, which Aziz acknowledges, is that the political parties are likely to shut out independent political activists who seek political office.
Second, Sahar notes that the changes to the HEC, which will replace the Commission’s political appointees with judges, will bring Egypt close to achieving some measure of independent elections oversight. Unfortunately, because the president appoints the senior judges to the highest courts and holds the keys to lucrative consulting opportunities, the judges on the HEC are unlikely to cross the President in a high profile political dispute.
This is a well-written and well-researched article that is likely to serve as a excellent guide to the current state of Egypt’s electoral system.
Friday, March 14, 2014
A New York court is set to decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence that would entitle the defendant to post-conviction relief under NYCPL 440.00. Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.
Bailey was convicted at a time when there was a more general medical consensus that a triad of symptoms – subdural hematoma, retinal hemorrhaging, and cerebral edema – were enough to support the conclusion that an unexplained death of an infant was caused by the violent shaking of the baby rather than to any other cause, such as accident, falling, and the like. Indeed, Bailey was convicted on the testimony of the state medical examiner to that conclusion. Medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on finding the “triad.”
There is a growing body of medical opinion today that believes the conclusion of shaken baby syndrome from the presence of the “triad” alone is not scientifically proven. That is, findings of the “triad” of symptoms can result from other causes, such as common short distance falls. See e.g., Patrick E. Lantz & Daniel E. Couture Fatal Acute Intracranial Injury, Subdural Hematoma, and Retinal Hemorrhages Caused by Stairway Fall, 56 J. Forensic Sci. 1648 (2011); Scott Denton & Darinka Mileusnic, Delayed Sudden Death in an Infant Following an Accidental Fall, 24 AM. J. Forensic Med. Pathol. 371 (December 2003). Indeed, some biomechanical engineering experts have raised doubts about whether it is possible to shake a baby to death without significant injuries to the child’s neck or spine. See Shaken Baby Syndrome: A Biomechanics Analysis of Injury Mechanisms, 151 Forensic Sci. Int. 71 (2005).
The controversy surrounding SBS has become a much debated issue in many courts, including the United States Supreme Court. In Cavazos v. Smith, the Supreme Court ruled that the Ninth Circuit had exceeded its authority under 28 U.S.C. § 2254(d) when it concluded that a California jury should not have credited the prosecution experts' conclusion that The defendant had shaken her grandson so violently that she had caused his death. 132 S. Ct. 2 (2011).
The Ninth Circuit initially vacated the conviction, troubled by the fact that “[t]he prosecution experts testified,  that shaking caused the death even though the physical examination of the brain during and after autopsy could not demonstrate that fact.” Smith v. Mitchell, 624 F.3d 1235 (9th Cir. 2010). The Circuit Court concluded that the usual scientific characteristics of SBS were not present, and that the presence of blood in the victim’s brain (one or two tablespoons) alone was not conclusive as to whether the baby was violently shaken. Id. Nor could the experts identify where the shaking had allegedly torn the brain stem. Importantly, the Ninth Circuit also noted that “no physical evidence supported the prosecution experts' testimony as to the cause of death.” Id. In shirt, the experts conclusions were unsupported; the cause of death really could not be proven.
The Supreme Court reinstated the verdict against Smith, although conceding that “[d]oubts about whether Smith is in fact guilty are understandable.” Cavazos, 132 S. Ct. at 5. It concluded that the decision whether to accept the experts' conclusions was for the jury. The Court also noted that the lack of diagnostic characteristics relative to SBS could be explained by the fact that the baby’s “death happened so quickly that the effects of the trauma did not have time to develop.” Id. at 4. (quoting Smith v. Mitchell, 453 F. 3d 1203, 1207 (2006)).
In dissent, Justice Ginsburg was concerned that the SBS evidence adduced against Smith was not strong and that the conviction turned on damage to the brain stem that was not actually seen. Notably, Justice Ginsburg recognized the change in medical opinion, noting that “[i]n light of current information, it is unlikely that the prosecution's experts would today testify as adamantly as they did in 1997" and that “[d]oubt has increased in the medical community ‘over whether infants can be fatally injured through shaking alone.” Id. At 10. Because of concern about the support for the conviction, California Governor Jerry Brown commuted the defendant’s sentence to time served after the Court reinstated her conviction.
Recently, a federal court had also found that a stark shift in the medical approach to SBS could be deemed newly discovered evidence. Del Prete v. Thompson, 2014 WL 296094 (N.D. Ill 2014). Similarly, a new trial was granted to the defendant on the basis of newly discovered evidence from the developments in the medical community around “shaken baby syndrome.” State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2014). And a defendant convicted in 2005 of first-degree reckless homicide for shaking his infant daughter to death was granted a new trial inState v. Louis, 8 N.W.2d 319 (Wis. Ct. App. 2010) because “the medical community is [now] sharply divided on whether the symptoms commonly associated with shaken baby syndrome are exclusively characteristic of that diagnosis.” Id. The court explained that there is a “legitimate and significant dispute within the medical community as to the cause of those symptoms commonly associated with shaken baby syndrome.” Id.
What should the courts do when convictions that rest in large part on medical conclusions are undermined by developments in medical research? This is not a traditional battle of experts but rather a change in scientific knowledge. The SBS cases bring that question into stark relief.
The courts in England and Wales have dealt with this issue and are probably ahead of the United States courts in addressing it. Indeed, as long ago as 2005, in R v Lorraine Harris, Raymond Charles Rock, Alan Barry Cherry and Michael Faulder  EWCA Crim 1980,  Cr App R 5;  2 FLR 412, CA, the Court of Appeal held that the classic triad would no longer be accepted as "automatically or necessarily" leading to a conclusion of SBS. While it rejected a new medical hypothesis known as the unified hypothesis that challenged the inevitability of shaking as the cause of the triad because this hypothesis had not yet been widely enough accepted, the Court accepted that a substantial body of medical opinion did not accept the classic triad as inevitably caused by abuse.
As barrister David Bedingfield notes in his recent article, "From ‘Shaken Baby Syndrome’ to ‘Non-accidental Head Injury’ – the Continuing Research and the Law," Family Law Week (UK) March 11, 2014, after Harris, the then Attorney General reviewed the records in 88 SBS cases that had resulted in guilty verdicts or guilty pleas. See The Rt Hon The Lord Goldsmith QC, The Review of Infant Death Cases: Addendum to Report Shaken Baby Syndrome (HMSO 2006). Three of the cases (3.4% of the total reviewed) were seen to be unsafe and were subsequently referred to the Court. Thereafter, as a result of the Goldsmith review as well as developments in medical research, the Crown Prosecution Service issued new guidelines for the prosecution of non-accidental infant head injury cases as follows:
- Generally, non-accidental head injury will be diagnosed by findings of the triad;
- However, to prove guilt in such a case, the prosecution will usually require corroborating evidence;
- The unified hypothesis has not been accepted by the courts and should be resisted;
- The defense may introduce biomedical evidence and other expert evidence, if relevant;
- Cases in which these issues arise must be reported to The Strategy and Policy Directorate.
The courts in England and Wales are generally more willing to entertain new evidence after conviction than the US courts, and even allow new evidence to be considered on direct appeal. In some sense the English courts are less committed to finality and slightly less deferential to their trial juries. This may be because there is no appeal as of right, because they invest less in the jury system, and because there is a greater commitment to accuracy. It will be a real test for the US judicial system to respond with integrity -- as a few courts are now doing - to developments in science that may challenge the accuracy of criminal convictions.
- People v. Bailey, Ind. No. 2001-0490, (J. Piampiano) (Jan. 24, 2014)
- Cavazos v. Smith, 132 S. Ct. 2 (2011)
- Smith v. Mitchell, 624 F.3d 1235 (9th Cir. 2010)
- Del Prete v. Thompson, 2014 WL 296094 (N.D. Ill 2014)
- State v. Edmunds, 746 N.W.2d 590 (Wis. Ct. App. 2008)
- State v. Louis, 798 N.W.2d 319 (Wis. Ct. App. 2010)
- Steve Orr, Judge Orders Special Hearing in Shaken Baby Case, Democrat & Chronicle (Jan. 24, 2014).
- Steve Orr, Watchdog Report: Shaken-Baby Science Doubt Grows, Democrat & Chronicle (June 29, 2013).
- Gary Craig, Watchdog Report: Shaken-Baby Triad Still Rules in New York Courts, Democrat & Chronicle (June 30, 2013).
- Emily Bazelon, New Evidence on Shaken Baby Syndrome, NY Times (Jul. 5, 2011).
- Anthony DiPietro, Battle of Experts: Controversy in Shaken Baby Case set for NY Court, Pace Criminal Justice Center Blog, (Feb. 14, 2014).
- David Bedingfield, From ‘Shaken Baby Syndrome’ to ‘Non-accidental Head Injury’ – the Continuing Research and the Law, Family Law Week (UK) March 11, 2014, http://www.familylawweek.co.uk/site.aspx?i=ed128171.
- Deborah Turkheimer, The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts, 87 Washington Univ. L. Rev. 1 (2009).
Sunday, March 9, 2014
When President Obama took office many lawyers expected that the federal government's hostility towards whistleblowers would end or at least abate. Yet, the opposite has occurred as the Obama Administration has aggressively sought to punish, rather than encourage, whistleblowers. From the FBI's persecution of reporter James Risen, to the efforts to discredit the pre-Snowden NSA whistleblowers, the Administration has been relentless in cracking down on government whistleblowers. The latest victim is former TSA air marshal, Robert MacLean, who went to the press after the Administration moved to cancel several months of missions for cost-cutting reasons in the midst of a hijacking alert. In an Orwellian move, it was only after members of Congress forced the Administration to reconsider its actions that the government decided to classify the leaked information as "security sensitive information" and thus set MacLean up for dismissal.
As a comparativist, I was curious about the state of whistleblower protections in Europe. The news across the ocean is no brighter. According to a 2013 report by Transparency International, only four European countries-Luxembourg, Romania, Slovenia and the United Kingdom (UK)-currently have in place advanced whistleblower protections. In October of last year, the European Parliament did call on the European Commission to draft a comprehensive legislative proposal to establish community wide whistleblowing protections. One would hope that the recent and anticipated moves in some European countries might eventually serve as an antidote to the American government's current hypersensitive persecution of public servants who seek to speak out for the common good.
Thursday, March 6, 2014
An observer of comparative criminal procedure developments cannot help but notice that there is a movement afoot to soften a generation of harsh sentencing practices. As recently as Monday, the New York Times reported a unique alliance to eliminate mandatory minimum sentences for nonviolent drug offenders between U.S. Senator Rand Paul, a libertarian, and Attorney General Eric Holder, a democrat. This hitherto unimaginable alliance supports early release for those sentenced under now-abolished crack sentencing guidelines that disproportionately sentenced crack offenders more severely than those convicted of powder cocaine crimes and more sentencing discretion for judges imposing sentences for nonviolent drug offenders. Another republican-Holder alliance supports restoring voting rights to felons. And not so far in the past, the U.S. Supreme Court held life sentences for juveniles to be unconstitutional.
Has Washington suddenly seen the humanitarian light? Not really. The libertarian/republican support for more liberal sentencing laws comes from a view of long prison sentences as both ineffective and extremely expensive and a general concern with protecting personal liberties from big government. The two sides share a recognition that harsh sentencing laws have also had a disproportionate impact on minorities.
It may not be coincidence that harsh sentencing laws have come under fire in other jurisdictions, albeit from the courts and not directly from legislators or politicians. In Case of Vinter and Others v. UK, the European Court of Human Rights recently ruled that whole life sentences were incompatible with the European Convention on Human Rights if there were no possibility of a sentence review during the term. It also held that UK laws on the power to release a whole-life prisoner were unclear. Even more recently, in Canada, the Court of Appeal for Ontario ruled in R. v. Nur that mandatory minimum sentences for gun possession are cruel and unusual punishment and thus unconstitutional. The Court heard six cases together and struck down a three-year mandatory minimum sentence for a first offence of possessing a loaded gun and for five years on a second offense. The Court apparently relied, among other things, on social science data that showed mandatory minimums do not deter and do not make communities safer. The court expressed concern that such “draconian mandatory minimum penalt[ies]” endangered the public’s respect and confidence in the criminal justice system. Id. at 180.
It would appear that all three countries are beginning to recognize that prior law-and-order legislation created problems that must now be dealt with. Without any doubt, the crash of 2008 and the weakness of current economies has shown that extremely punitive sentencing regimes are economically unsupportable. Racial disparities have reached the public consciousness. Importantly, with falling crime rates there is less political advantage to the law-and-order agenda. And social science has contributed to the sense that, given these problems, there is little purpose in keeping certain offenders in prison. This multi-dimensional approach may yet result in more rational sentencing regimes worldwide.
- Matt Apuzzo , Holder and Republicans Unite to Soften Sentencing Laws, (March 3, 2004)
- Matt Apuzzo, Holder Urges States to Lift Bans on Felons’ Voting, The New York Times (February 11, 2004).
- Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding that “that mandatory life without parole for those under age of 18 at the time of their crime violates the 8th Amendment’s prohibition on cruel and unusual punishments.").
- Graham v. Florida, 560 U.S. 48 (2010) (holding that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”).
- Case of Vinter and Others v. UK, App. No. 66069/09, 130/10 and 3896/10, Eur. Ct. H.R. (2013).
- R. v. Nur, 2013 ONCA 677
Tuesday, March 4, 2014
My fieldwork in comparative law is concentrated in Ukraine, and particularly the Ukrainian parliament. For Ukrainian parliamentarians as well as its citizens, the last two weeks have been full of unexpected reversals, dramatic events, and plenty of choleric turns. It has been simply harrowing.
In future posts, I will address legal aspects of major developments, including the deposing of the elected president and the subsequent invasion of a portion of southern Ukraine. There are significant tensions between rule of law discourse and political exigency overdue for analysis. For background, I start here by giving a brief description of the political culture of post-Soviet Ukraine. I composed it four years ago (for an edited volume due out summer 2014), well before the recent events:
"A certain mode of reproduction of authoritative discourse came to an end with the break-up of the Soviet Union. In post-Soviet Ukraine, open-ended discursive modes dominate the present in place of an authoritative discourse. What that means for Ukrainians is that rather than drawing on an established frame of reference to evaluate personal success or failure, experience happiness or sadness, formulate life goals and daily expectations, or retell the history of their country or themselves, they feel they are making it up as they go along."
These are improvisatonal times, and the Ukrainian government is relying on new legislation to get through some of the current crises. That's a lot to expect. One research question for me, then, will be how much law can actually accomplish. What are its limits?
In the days ahead, affect or emotion will be a significant feature of the context within which legal work will get done. Fear, distrust, hope, and anger: Ukraine has become a test case for law in a time of cholera.