Thursday, June 19, 2014
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 streams. The 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.
Thursday, June 12, 2014
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. www.thetimes.co.uk/tto/news/uk/crime/article4116784.ece
Tuesday, June 10, 2014
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, http://www.thetimes.co.uk/tto/law/article4110320.ece
Sean O’Neill, Move to hold terrorist trial in secret is challenged, London Times, June 4, 2014, http://www.thetimes.co.uk/tto/news/uk/crime/article4108972.ece
Sunday, June 8, 2014
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: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2445533
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.
Monday, June 2, 2014
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:
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.
Thursday, May 29, 2014
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.” http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/156/15608.htm.
David Barrett, Paul and Sandra Dunham Face Extradition After Strasbourg Refuses to Intervene, The Telegraph, 5/29/14, http://www.telegraph.co.uk/news/uknews/crime/10787454/Paul-and-Sandra-Dunham-face-extradition-after-Strasbourg-refuses-to-intervene.html.
David Brown, British Suicide Pact Couple Fear Plea Bargain as They Face Extradition to the US, The Times of London, 5/27/14, http://www.thetimes.co.uk/tto/news/uk/crime/article4096028.ece.
Felicity A. Morse, David McIntyre, Ex-Soldier, Says he Will Kill Himself if Extradited to the US, The Huffington Post, 4/27/13, http://www.huffingtonpost.co.uk/2013/04/26/david-mcintyre-threatens-suicide-extradited-us_n_3161829.html.
Lissa Griffin, International Spotlight on the Death Penalty, Comparative Law Prof Blog (May 1, 2014), http://lawprofessors.typepad.com/comparative_law/2014/05/international-spotlight-on-the-death-penalty.html.
Tuesday, May 27, 2014
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).
Thursday, May 22, 2014
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.
Sunday, May 18, 2014
Ozan Varol of the Lewis & Clark Law School has posted "Stealth Authoritarianism" on SSRN. The abstract reads:
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."
Thursday, May 15, 2014
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.
Sunday, May 11, 2014
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: http://www.nlg-npap.org/reports/94
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:http://thediplomat.com/2014/05/brunei-imposes-sharia-law/
Barry Meier, “A Soldier’s War on Pain,” New York Times, May 10, 2014.
Thursday, May 8, 2014
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.
- Rafael Wolff, Plea Bargaining in the United States of America: Is it applicable to Brazil?, (forthcoming 2014) (on file with the author)
- Peter J. Messitte, Plea Bargains in Various Criminal Justice Systems, Montevideo, Uruguay (May 2010)
- Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, 45 Harv. Int'l L.J. 1 (2004)
- Leonard L. Cavise, Essay: The Transition from the Inquisitorial to the Accusatorial System of Trial Procedure: Why Some Latin American Lawyers Hesitate, 53 Wayne L. Rev. 785 (2007).
- Roberto Delmanto Jr., Introducing plea bargaining: a uniquely Brazilian approach, International Law Office (December 16, 2013)
- Thiago Borges, Brazil debates new penal code, Infosurhoy.com (June 3, 2013).
Tuesday, May 6, 2014
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: http://www.forgetthespin.com/archives2008/women_afghanistan.html.
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
Thursday, May 1, 2014
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.
- Erik Eckholm & John Schwartz, Oklahoma Vows Review of Botched Execution, The New York Times (April 1, 2014)
- Steven Erlanger, Outrage Across Ideological Spectrum in Europe Over Flawed Lethal Injection in U.S., The New York Times (April 1, 2014)
- Michele Richinick, White House weighs in on botched Oklahoma execution, MSNBC (April 1, 2014)
- Death Sentences and Executions 2013, Amnesty International (March 26, 2014)
- Roper v. Simmons, 543 U.S. 551 (2005) (holding that “the Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”).
- 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.”).
Sunday, April 27, 2014
According to today’s New York Times, South Korean Prime Minister Chung Hong-won has resigned in response to the country’s recent ferry disaster. To date, prosecutors have identified several factors as the reason why the ship capsized and sank. Most notably, the addition of cabins in the ship’s upper deck made the ship top-heavy undermined the ship’s ability to right itself after the navigator attempted to make a sharp turn in a strong current. In addition, the ship’s crew failed to secure the ship's cargo properly, impairing the ship’s ability to right itself. Given the nature of these findings, it is unsurprising that prosecutors have arrested the ship’s captain as well as the ship’s navigation officers. Making matters worse, many members of the crew evacuated the ship first leaving passengers to fend for themselves. There are also indications that the coast guard radio dispatchers did not respond quickly enough to the disaster.
Culpability for the over 300 deaths caused by the mishap is unlikely to stop there however. Indeed, investigators have identified a number of lax safety measures and weak regulatory oversight as additional reasons why the ship sank. In an indication that prosecutors may be ordering further arrests in the case, prosecutors have barred several officials from a maritime inspection agency from leaving the country.
What makes this case interesting from a comparative law and culture perspective is that, from a legal standpoint, the Prime Minister is not responsible for the deaths of the passengers. However, the disaster occurred just as the public has become increasingly frustrated over the country’s lax regulatory measures. The number of disasters caused by ineffective regulations is so high that the country is known as “the land of disasters.” While the country’s current President, Park Geun-hye, has sharply criticized the crew and the regulatory system’s shortcomings, the media has called on her to make good on her campaign promise to become the “administration of safety.”
That disconnect between the Administration’s campaign promise and the role that government regulators played in the disaster created a unique pressure point. In the United States, the finger-pointing would have most likely led a lower ranking government official to resign in an attempt to deflect the criticism from the President. Of course, our more recent political history suggests that an official on the hot seat may wait to resign until the disaster has abated so that they can point to other reasons for resigning. When an elected politician is involved in a character-related “incident,” members of their party may attempt to pressure them to resign so that the issue does not tarnish the party’s reputation. Still, the concept of character in the U.S. is more fluid than in other countries around the globe. There are many examples in American politics where a disgraced politician has rehabilitated their reputation.
While criminal culpability for the incident may be limited to those directly involved in the disaster, from a societal perspective, the responsibility for the accident extends beyond those immediately responsible up to the top layers of government. Underlying the prime minister’s resignation is the sense of honor and responsibility that undergirds South Korean society. As the number two person in an administration that had pledged itself to improving the safety of South Korean citizens, the prime minister’s resignation was a politically symbolic way for the government to save face.
Another causality of the disaster, Kang Min Khu, was the Vice Principal of the school where many of the students on the ship hailed from. Though Khu survived the disaster, he committed suicide two days later. In the disaster’s aftermath, many of the students’ family members had chastised him as the field trip was his idea and he had not ensured the students’ safety. Committing suicide in an Asian society is one way that individuals attempt to save face and to atone for their public disgrace.
Several individuals on board did act honorably. Most notably, one female crew member, Jee Young, handed out life jackets and helped several passengers escape the ship. Unfortunately, the 22 year old woman, perished as the ship sank.
Madison Park and Stella Kim, “As Sewel Crew is scorned, young worker hailed as heroine,“ CNN, April 23, 2014.
Choe Sang-Hun, “Inquiry in Ferry Disaster Shifts to Safety Certification, “New York Times, April 25, 2014.
Choe Sang-Hun, “Korea Confronts Tendency to Overlook Safety as Toll in Ferry Sinking Grows, April 22, 2014.
Choe Sang-Hun, “South Korean Prime Minister Offers to Resign Over Deadly Ferry Disaster,” April 26, 2014.
Friday, April 25, 2014
The UK’s Bribery Act 2010 represents a bold step toward leveling the commercial playing field for UK companies doing business worldwide and for foreign companies doing business in the UK. It has been called the “toughest anti-corruption legislation in the world,” due mostly to four important provisions. First, the Act is broadly extraterritorial, applicable to companies anywhere where those companies have any “close connection” with the UK. It applies to payment of as well as receipt of a bribe to obtain or retain business or to secure a business advantage. Second, it contains a new corporate strict liability provision for failing to prevent bribery by any ‘associated person’ in connection with its business. A person will be ‘associated with’ the company where that person performs services for the company, whether as employee, subsidiary, intermediary, or supplier. The only defense against this strict liability crime requires proof that a company maintained “adequate procedures.” Third, the Act provides for Deferred Prosecution Agreements as an alternative to prosecution, something that is not widely available in typical UK criminal prosecutions. Finally, the level of fines under the UK’s sentencing guidelines are intended to result in punishments that are “substantial enough to have real economic impact.” Individuals are subject to sentences of up to ten years and both individuals and companies are subject to unlimited fines.
For US readers, the differences between the UK’s Bribery Act and the US’s Foreign Corrupt Practices Act should be apparent. First, the FCPA applies only to bribery of foreign public officials, not to payments made to private individuals. In addition, there is no criminal culpability for receipt of a bribe. Second, it does not have the same kind of broad extraterritorial applicability: it applies to acts by US issuers, concerns and their agents and employees outside of the US, and to acts by US citizens or residents anywhere. . Third, there is no strict liability offense for failing to prevent bribery by any individual. Fourth, there is no liability for receipt of a bribe. Finally, sentences of imprisonment are limited to up to five years. Corporations and other business entities may be fined up to $2 million per violation and officers, directors, stockholders, employees and agents up to $250,000 per violation. Under the Alternative Fines Act, a fine may be up to twice the benefit that the defendant sought.
Does the UK’s Bribery Act have teeth? In the absence of a major prosecution to date, observers are watching the pending GlaxoSmithKline prosecution. Already under investigation in China and in Iraq, GSK is now being investigated by the UK’s Serious Fraud Office for allegedly bribing doctors to prescribe its medicines in Poland. GSK has asserted an Adequate Procedures defense to the strict liability charges. How this will play out – or whether it will play out - in a Deferred Prosecution Agreement, given this initial non-cooperation – remains to be seen.
Whether or not the GSK prosecution results in a significant penalty by deferred prosecution agreement or through a full prosecution, international companies may still be subject to the US’s FCPA. Thus, on several levels, the GSK case will provide substantial information about corporate responsibility for corruption worldwide.
- UK Legislation, Bribery Act 2010, Legislation.gov.uk (last visited April 23, 2014)
- Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§ 78dd-1, et seq.)
- Alternative Fines Act (18 U.S.C. § 3571)
- Nathan Peacey, All Eyes on GlaxoSmithIline Bribery Case Outcome, The Times (April 17, 2014)
- Rupert Neate, GlaxoSmithKline holds Iraq inquiry after fresh bribery allegations, The Guardian (April 7, 2014)
- Tracy Staton, Polish prosecutors hit GlaxoSmithKline with third round of bribery charges, FiercePharma (April 14, 2014)
- Denise Roland, GSK under growing pressure from UK authorities, lawyers warn, The Telegraph (April 21, 2014)
- Toh Han Shih, Risk of UK and US action hangs over GSK, South China Morning Post (July 24, 2013)
- GlaxoSmithKline faces bribery allegations in Poland, The Guardian (April 14, 2014)
- The Bribery Act, Transparency International UK (last visited April 23, 2014)
Wednesday, April 23, 2014
Angelique Devaux, who is a French licensed attorney with an L.L.M. from Indiana University's Robert H. McKinney School of Law, recently posted this forthcoming article on SSRN. The abstract reads:
“Drinking, eating, sleeping together is marriage it seems to me” already wrote Antoine Loysel, Jurisconsult, into Institutes Coutumières at the beginning of the 16th century.
After several failed attempts and the creation of a civil partnership designed as a semi-loophole to a heated debate and timely subject, it took France more than twelve years after the Netherlands to finally join the family of countries authorizing marriage of homosexual couples.
Equality is the key word of the French reform: Equality in duties and rights that allows an identical access for legal protection to marriage like for opposite-sex couples, inspired from The Declaration of Human and Civic Rights of 26 August 1789.
To perfect the equality to an international level, the Act of 17 May 2013 included language which states that marriages performed in a foreign jurisdiction satisfy the legal requirements of marriages in France. The new bill also confirms France’s traditional choice of law rule according to
which the law of the nationality of each spouse applies to the substantive validity of marriage. In order to be effective, the statute adopts a new conflict of law rule providing that same-sex marriage would still be allowed when the national law, or the law of the residence, or the law of the domicile
of one of the spouses allows it. Intended to translate an extensive and cosmopolitan access to same-sex marriage, the new rules of conflict of laws suffer in reality from imperfection and do not provide an equal access to marriage for all, in particular due to historical international conventions that
superseded the law.
The difficulties for both gay and lesbian spouses occupy an even more prominent place in today's globalized world where more and more couples live outside their country of origin. As soon as cross-border elements come, the new definition of French marriage faces a multitude of challenges related to immigration, benefits, adoption, international wealth management, matrimonial property regime, divorce, and succession.
What are the surrounding practical consequences when same-sex married couples decide
to move abroad, and how to solve or to anticipate all the dormant problems?
In this paper, I am examining some of the potential issues related to same-sex marriage and conflict of laws in a comparative law perspective, and I suggest a new approach to deal with these coming questions in accordance with the international and European tools that may serve individuals from countries that already have opened marriage to same-sex couples, and those who want to join the international family
Saturday, April 19, 2014
Should Hate Speech Be Protected? Group Defamation, Party Bans, Holocaust Denial and the Divide between (France) Europe and the United States.
Monday, April 14, 2014
The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for a workshop on comparative business and financial law to be held on November 7-8, 2014 at UC Davis School of Law in Davis, California. The purpose of the workshop is to highlight, develop, and promote the scholarship of new and younger comparativists in accounting, banking, bankruptcy, corporations, commercial law, economics, finance, and securities.
Up to thirty papers will be chosen from those submitted for presentation at the workshop pursuant to this Call for Papers. The workshop audience will include invited young scholars, faculty from UC Davis School of Law and Graduate School of Management, faculty from other institutions, and invited guests.
Submissions will be accepted from scholars who have held a full-time academic appointment for no more than ten years as of June 30, 2014.
To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 1000 words before July 1, 2014, to the following address:
email@example.com. Please title the email "YCC Business Law Workshop – [Name]." Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the workshop. Abstracts should include a cover page with the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar.
Thursday, April 10, 2014
The Oscar Pistorius trial continues in what feels like full view of the entire world. It feels almost mandatory to make some comparativist contribution about a trial that everyone is watching.
For me, the most striking observation has come from seeing the picture of the judge and the defendant in the same frame. On the bench sits a distinguished, diminuitive Black woman in judicial robes and finery, Judge Thokozile Masipa, who has been chosen, apparently at random, to judge a White, South African man. I was alive during apartheid and thus this image ranks, for me, in the same moving category as pictures of Barak Obama being elected President of the United States.
The same image, however, causes me to catch my breath when I realize that the choice between Pistorius’s version of what happened the night of the shooting of his girlfriend or the prosecution’s version of that same night belongs not to a jury, as it would in the United States, but to this single judge and her two expert assessors. In this case, as in South Africa generally, there is no lay jury. In the Pretorius case, Judge Masipa appointed two “assessors” who will sit with her to decide whether Pistorius reasonably believed he was protecting himself and his girlfriend during a home invasion. As far as it appears, the appointment of “assessors” contemplates that they will have some expertise, for example, that they are lawyers, retired magistrates, or law professors, or that they have some special expertise, for example, in forensics or otherwise, that is relevant to the case. The reason the two assessors was chosen has not been addressed in the press. In any event, the right to a lay jury trial in South Africa was gradually whittled down and then ultimately abolished in 1969. Certainly, it would feel more comfortable to leave this up to three experts were the issue not one so perfectly intended for the deliberation of twelve jurors: what did the defendant intend? In the United States, of course, this is a classic jury question. See e.g., Morissette v. United States, 342 U.S. 246, 274 (1952) (“Where intent of the accused is an ingredient of the crime charged, its existence is a question of fact which must be submitted to the jury.”); People v. Fernandez, 64 A.D.3d 307, 310 (1st Dept. 2009) (“What is true of the specific mens rea of criminal intent is true of mens rea generally: it is quintessentially a question for the jury.”); People v. Flack, 125 N.Y. 324, 334 (1891)) (“[T]o constitute guilt there must not only be a wrongful act, but a criminal intention. Under our system, (unless in exceptional cases,) both must be found by the jury to justify a conviction for crime.”).
One safeguard under South African law is that whatever a majority of the three fact finders decide will become the verdict. As in other circumstances and jurisdictions, where there is a mixture of judicial fact finders, the non-judicial jurors can decide contrary to the judicial fact finder and determine the verdict. Questions of law, and of sentence, remain with the single judge.
One wonders about the reason for and impact of all of the extremely gory forensic evidence that the prosecutors have presented and the impact of Pistorius’s extreme emotionality in the courtroom. It seems fair to say that this sort of evidence and behavior would not be allowed in a US jury trial, for example, the comparison between the melon Pistorius apparently shot at in target practice and the victim’s head and Pistorius’s retching in the courtroom. A mistrial would certainly have to be declared. For us in the United States, this raises the differences between a bench trial and a jury trial. Presumably, a judge sitting as fact finder can put gruesome or otherwise prejudicial evidence or behavior out of mind and arrive at an unaffected verdict. In this case, that task would not be easy for anyone. One hopes that the judges will see their way clear to a just verdict.
- Understanding the Criminal Justice System, The National Prosecuting Authority of South Africa (June 11, 2008)
- The Criminal Justice System and You: A Guide to the South African Criminal Justice System for Refugees and Migrants, Independent Projects Trust (last visited April 9, 2014)
- Richard Allen Green, Gory details lend Oscar Pistorius trial a 'CSI' flavor, CNN (March 16, 2014)
- Corey Adwar, Here's Why Nobody In South Africa Gets A Jury Trial Including Oscar Pistorius, Business Insider Australia (April 4, 2014)
- Zelda Venter, Oscar trial judge appoints assessors, IOL News (February 13, 2014)
- Sarah Lyall , After Sobs, Prayers and Illness in Court, Pistorius May Testify, The New York Times (April 2, 2104)
- Sarah Lyall, Tearful Drama as Pistorius Says He Panicked, The New York Times (April 8, 2014).
- Sarah Lyall & Dan Bilefsky, Pistorius Describes ‘the Moment Everything Changed,’ The New York Times (April 8, 2014).
- Richard Allen Greene, Oscar Pistorius trial: How will the defense fight back?, CNN (April 7, 2014)
- Oscar Pistorius trial: Defence case postponed, BBC News (March 28, 2014)
- Nicholas Kulish, Witness in Pistorius Trial Tells of Screams and Gunshots, The New York Times (March 30, 2014).
- Sarah Lyall, Prosecution Rests Case in Pistorius Murder Trial, The New York Times, (March 35, 2014).