December 15, 2004
New Article Spotlight: Offense Grading and Multiple Liability: New Challenges for a Model Penal Code Second
"This commentary raises two issues that, in the author's view, present some of the greatest challenges - as well as opportunities - for modern criminal theory and criminal-code reform. The first issue relates to the allocation of decisionmaking authority regarding an offender's ultimate punishment. Specifically, while Apprendi, its progeny, and most of the scholarship in this area have discussed the appropriate constitutional rules to govern element-versus-sentencing-factor determinations, more attention must be paid to developing and justifying a normative basis for making such determinations. The second issue relates to when, and how, criminal law imposes liability for more than one offense at a time. Here again, though the law of double jeopardy may provide a constitutional "resolution" of the issues, exploration of the underlying normative considerations remains surprisingly, and seriously, inadequate." To obtain a copy of the piece, click here. [Mark Godsey]
Interesting Post About Capital Case on Berman's Blog
CrimProf Doug Berman's Sentencing Law and Policy Blog has an interesting post about a remarkable case from Ohio in which the Ohio Supreme Court concluded it was compelled to reverse a death sentence imposed in the gruesome murders of two Ohio college students for lack of jurisdiction because the murders were committed in Pennsylvania. Berman was recently contacted by Chris Muha, a Yale Law School student who is the older brother of Brian Muha, one of the students murdered 5 years ago in this case. Chris asked for Berman's feedback and opinion on the motion for reconsideration being filed in the case, and seeks help from anyone who has expertise in the area. To offer insight to Chris or to check out this interesting post, click here. [Mark Godsey]
December 14, 2004
Use of Death Penalty Dropped in '04 for Fifth Year in a Row
According to the Death Penalty Information Center, the use of the death penalty dropped in '04 for the fifth year in a row. The number of executions in '04 dropped to 59, down from 64 in '03, and the number of death sentences handed out dropped to 130, down from 144 in '03 and the lowest number in 30 years. Overall, the '04 numbers show a 40% drop in executions since 1999, and a 50% decline in death sentences handed out since 1999. The Center attributes the decline to growing questions about the possible innocence of the accused. The report will be released today, and should be available here. [Mark Godsey]
Crime Rates Decline in Early '04, FBI says
The FBI reported yesterday that in the first six months of '04, murder rates across the country dropped 6% compared to the same time period in '03. Violent crime, which includes murders, rape, robbery and aggravated assault, declined 2%. Property crimes dropped by 2%, and arson fell 7%. Rape increased by 1.4%, however. CrimProf James Lynch at American said the drop in crime is related to measures taken by Homeland Security, "You’re after terrorists, but you’re picking up other things," he commented to the Washington Post. For more, go to p. 5 of the Washington Post here. [Mark Godsey]
Good News for the Kids: Washington Supreme Court Suppresses Testimony of Snooping Parents
In State v. Christensen, the Washington Supreme Court unanimously ordered a new trial for a teenage girl convicted of robbery in part on the testimony of her mother, who listened in to the daughter's phone conversation. The Court said the Washington privacy act prohibited such eavesdropping, and precluded admission of overheard conversations. More here. [Jack Chin]
England: Metal Detectors for Knives
Faced with an increase in the criminal use of knives, police have installed a metal detector at one of London's busiest bus stations. If the experiment is a success, it may be expanded. Possession of a knife without good reason is a crime punishable by up to 4 years in "gaol." [Jack Chin]
New Book on Overcriminalization
See the review at Crime and Federalism of Go Directly to Jail: The Criminalization of Almost Everything, published by the Cato Institute, with chapters from Utah CrimProf Erik Luna and Cato's Timothy Lynch among others. [Jack Chin]
December 13, 2004
New Fourth Amendment Decision From Supreme Court
Today the Supreme Court decided Devenpeck v. Alford, No. 03-710. Holding: "A warrantless arrest is reasonable under the Fourth Amendment if the arresting officer has probable cause to believe a crime has been or is being committed, even if the offense for which probable cause exists is not "closely related" to the offense the arresting officer identifies at the time of arrest." [Mark Godsey]
"Big Brother" for Financial Crimes?
The NY Times reports that the U.S. government has begun experimenting with a new computer system that "allows investigators to match financial transactions against a list of some 250,000 people and firms with suspected ties to terrorist financing, drug trafficking, money laundering and other financial crimes." The program gives investigators what amounts to an enormous "global watch list" to track possible financial crimes at American border crossings, banks and other financial institutions.
The program provides yet another indication of the wide-ranging efforts by American officials to look for new technological tools in fighting terrorism and other international crime. But it also raises privacy and civil liberties questions because domestic security officials are relying on a private overseas firm to provide a voluminous list of people and companies that it considers to represent a "high risk" of committing financial crimes, based on an assortment of public records and data. "There's a real risk in a situation like this because there's really no accountability," said Marc Rotenberg, executive director of the Electronic Privacy Information Center, an advocacy group based in Washington devoted to privacy issues. "People can find themselves on a watch list incorrectly, and the consequences can be very serious." More. . . [Mark Godsey]
Accused Killer of Six White Hunters in Wisconsin May Rely on "Cultural Defense"
The National Law Journal reports that a Southeast Asian immigrant charged with killing six white hunters in Wisconsin comes from an insular Minnesota community of 27,000 Laotians known as Hmongs that has often clashed with the surrounding St. Paul population. That, along with the defendant's allegations that the hunters used racial slurs when they ordered him off their property in the Nov. 20 hunting incident, could provide possible grounds for a "cultural defense" strategy, defense lawyers say. More.... [Mark Godsey]
New SCOTUS Decision Today on Ineffective Assistance Standard
The Supreme Court ruled unanimously today in No. 03-931, Florida v. Nixon, "that a defense lawyer's decision to concede that a client is guilty in the trial of a capital murder, in order to concentrate on trying to prevent a death penalty, does not automatically make the lawyer's conduct deficient even though the client did not approve the decision. The ruling overturned a decision of the Florida Supreme Court." Justice Ginsburg wrote the opinion. More on the Supreme's Court activity today . . . [Mark Godsey]
A Merry Christmas After All: Supreme Court Lifts Stay on Hallucinogenic Tea for Church's Christmas Celebration
CNN.com reports: "The U.S. Supreme Court sided Friday with a New Mexico church that wants to use hallucinogenic tea as part of its Christmas services, despite government objections that the tea is illegal and potentially dangerous. The high court lifted a temporary stay issued last week against using the hoasca tea while it decides whether the Brazil-based O Centro Espirita Beneficiente Uniao do Vegetal is permitted to make it a permanent part of its services. The legal battle began after federal agents seized 30 gallons of the tea in a 1999 raid on the Santa Fe home of the church's U.S. president, Jeffrey Bronfman. Bronfman sued the government for the right to use the tea and the church won a preliminary injunction, which was upheld by 10th U.S. Circuit Court of Appeals in Denver. The Bush administration then took the case to the Supreme Court." More . . . [Mark Godsey]
Jeb Bush's New Judicial Appointee Prefers "Rock and Roll Executions"
TalkLeft reports that "Brad Thomas, Gov. Jeb Bush's long-time public safety policy coordinator, is leaving to take a judgeship on the 1st District Court of Appeal in Tallahassee. He was named Thursday to the appellate court to fill the vacancy created by the retirement of Judge Anne Booth. Thomas, who has advised Bush on the death penalty, crime policy and other issues, caused a stir in 2000 when he urged a more streamlined system of appeals for death row inmates, telling the St. Petersburg Times, 'Bring in the witnesses, put them on a gurney, and let's rock and roll.'" More . . . [Mark Godsey]
Race Profiling Claim Wins By Default
Eleven Hispanic traffic defendants in North Carolina won their racial profiling claim when the officer at issue failed to appear in court--neither side had subpoenaed him. The officer was the same one who was on the losing side of a rare reported appellate decision affirming the dismissal of a case on racial profiling grounds, People v. Juan Villeda in the North Carolina Court of Appeals. When the officer was accused of profiling Hispanics he reportedly explained: "I'm not targeting Hispanics. Most of my tickets go to blacks." [Jack Chin]
December 12, 2004
Lottery Windfalls for Criminals
Austrailian lawmakers recently abandoned an effort to deny a serial rapist the fruits of his winning $17 million lottery ticket. In Vermont, this kind of travesty couldn't happen, as their restitution statute ensures that lottery winnings go to victims, 13 VSA Sec. 7043(m)(3). [Jack Chin]
Richard Friedman of Michigan Launches The Confrontation Blog
Evidence Professor Richard Friedman of Michigan has launched The Confrontation Blog. He writes: "This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary." To visit the new blog, click here.
Sentencing Law and Policy has a good post on capital punishment at the close of 2004. [Jack Chin]