Saturday, March 19, 2005
This week we profile Eric Miller of Western New England College School of Law. He writes:
Born in 1969 in Glasgow, Scotland, I graduated from the University of Edinburgh in 1991 with an LL.B., and from Harvard Law School in 1993 with an LL.M. Although I returned to the U.K. to work on a Ph.D. in legal philosophy (at which I am still toiling), I knew I wanted to return to the United States to pursue an academic career. My year at Harvard had left me particularly interested in issues of racial justice, and I returned three years later as a Visiting Scholar, intending to finish my Ph.D. When I started working as a research assistant for Professor Charles Ogletree, my interest in criminal justice was cemented.
Thanks to support from my Harvard professors, who were somehow able to explain my lack of a J.D. , I was able to clerk for the Hon. Myron H. Thompson in the Middle District of Alabama and the Hon. Stephen Reinhardt of the Ninth Circuit Court of Appeals, two very different men, but both brilliant, tirelessly hard-working, and with an incredible sense of social justice. I also worked for two years at a large L.A. litigation firm where I mingled with a lot of former AUSA’s, managed to litigate some small misdemeanor trials pro bono, and attended the Academy Awards as a seat-filler.
After the clerkships, I returned to Harvard as a Charles Hamilton Houston fellow, to write a paper on drug courts (Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio State L.J. 1479 (2004)). While there, Professor Ogletree made me part of his reparations team. As a result, I have had the incredible fortune to work, not only with him, but a variety of amazing lawyers and academics in drafting the complaint and motion papers in Alexander v. Governor of the State of Oklahoma, a case seeking reparations on behalf of the victims of the Tulsa Race Riot of 1921. In fact, we just filed our cert. petition on March 9th, 2005. Remarkably, five of our clients, all over 85, including Otis Clark who is 102, were at the Supreme Court to watch us file it.
While I continue to work on reparations, my present interest is in rethinking the social norms or democratic experimentalist approaches to criminal law which tend to see the law as a system of norms that most effectively guide behavior by using community pressure rather than legal sanctions. I am concerned to develop an account of policing and procedure that seeks to increase community participation in the process of policing and prosecution and emphasizes role- rather than rule-related constraints on the authority of the various executive agents, including police and prosecutors.
I currently teach at Western New England School of Law, but am very much looking forward to moving to St. Louis University Law School, where I shall teach criminal law, criminal procedure and critical race theory. Having worked on both coasts and in the Deep South, I hope that moving to the heart of the Midwest will round out my American experience. I do not plan to become either a Cardinals or a Rams fan. My publications include:
Foundering Democracy: Felony Disenfranchisement in the American Tradition of Vote Suppression, 16 Nat’l Black L.J. (forthcoming 2005).
Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio State L.J. 1479 (2004)
Representing the Race: Standing to Sue in Reparations Lawsuits, 20 Harv. BlackLetter L.J. 91 (2004)
Reconceiving Reparations: Multiple Strategies in the Reparations Debate, 24 B.C. Third World L.J. 45 (2004)
Sympathetic Exchange: Adam Smith and Punishment, 9 Ratio Juris 182 (1996)
Each Saturday, CrimProf Blog will spotlight on one of the 1500+ criminal justice professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community. Please email us suggestions for future CrimProf profiles, particularly new professors in the field.
Is it ethical to submit your article to law reviews that you don't really want to publish in simply to jump-start the expedite process at more prestigious reviews? A discussion of ethics in the law review submission process here. [Mark Godsey]
Friday, March 18, 2005
Until now, the greatest staff work in history was probably performed by the anonymous Hill worker who told Orrin Hatch that the book "The Exorcist" had a scene in it similar to an accusation made by Anita Hill against Clarence Thomas; surely that catch warranted a lifetime no-show job somewhere in government. It has been surpassed, however, by the person who came up with the idea of subpoenaing Terri Schiavo to "testify" in the Senate. As she is in a persistent vegetative state, it is unlikely that she will be able to contribute anything. Regardless of one's stance on these issues, all advocates must take their hats off to people who can come up with ideas like these. [Jack Chin]
UC Davis CrimProf Robert Mikos has a paper coming out in the Cornell Law Review; here's an abstract:
Enforcing State Law in Congress's Shadow analyzes federal statutes that impose sanctions (such as deportation, or loss of firearms privileges) on individuals who have been convicted of state crimes. It demonstrates that by raising the stakes involved in state criminal cases, federal sanctions may cause defendants to contest state charges more vigorously, thereby producing one of two unintended consequences. First, the sanctions may make it more costly for state prosecutors to enforce state laws. Second, due to resource constraints or dislike of the federal sanctions, state prosecutors may circumvent them by manipulating charging decisions. But in the process, state prosecutors may have to reduce state sanctions as well, thereby undermining deterrence and the fair application of both state and federal law. The article theorizes that the severity of the sanctions and the emphasis they place upon state outcomes, among other factors, determine how much the sanctions will distort state proceedings. It then substantiates the theory with five in-depth case studies of federal sanctions: deporting criminal aliens, barring domestic abusers from possessing firearms, and disqualifying drug offenders from receiving federal welfare, public housing, and student financial aid. The full text of the article is available on the Social Science Research Network: http://ssrn.com/abstract=605422
In Pakistan, a rape case raises a number of criminal law issues. The case began when a 12 year old boy allegedly has sex with a woman from a more prominent clan. The local council ordered the boy's sister to be raped as punishment of the offending family. Two members of the council and the 4 rapists were charged, convicted and sentenced to death. However, five of the men were acquitted on appeal, the sentence of the sixth was communted to life. A further appeal is pending to the Federal Sharia Court. [Jack Chin]
From BNA.com: "The Fourth Amendment requires police officers to have reasonable suspicion before searching or arresting a parolee who is subject to a condition of release authorizing warrantless searches, the U.S. Court of Appeals for the Ninth Circuit held March 7. It also decided that the prohibition on suspicionless searches of parolees or probationers was clearly established in 2000, despite the Supreme Court's reservation of the question in United States v. Knights, 534 U.S. 112, 70 CrL 220 (2001), and other indications in subsequent caselaw that judges remain divided over the issue. (Moreno v. Baca, 9th Cir., No. 02-55627, 3/7/05).
The civil rights plaintiff in this case was walking down the sidewalk in 2000 when he attracted the attention of two sheriff's deputies. Taking all inferences from the facts in favor of the plaintiff, the deputies stopped him without reasonable suspicion, made him empty his pockets, and locked him in the back of a police vehicle. The deputies then learned of an outstanding arrest warrant and the fact that the plaintiff was on parole with a condition that he submit to warrantless searches. They subsequently searched the area where the plaintiff had been walking and found a rock of crack cocaine. After being acquitted of drug charges, the plaintiff brought a civil rights action pursuant to 42 U.S.C. §1983, claiming a violation of his Fourth Amendment rights. The deputies filed a motion for summary judgment, asserting that they were entitled to qualified immunity.
In Griffin v. Wisconsin, 483 U.S. 868 (1987), the Supreme Court held that warrantless probationary searches are permissible under the Fourth Amendment's "special needs" doctrine when they are authorized by a statute or regulation that requires reasonable grounds for searches. In Knights, the court looked at a warrantless probation search from the investigatory, rather than a special needs, point of view and held police officers needed "no more than reasonable suspicion" to conduct a search of the home of a probationer who was subject to a condition of release authorizing warrantless and suspicionless searches. Because the parties in Knights conceded that the officers had reasonable suspicion, the U.S. Supreme Court expressly noted that it did not need to consider whether the probationer's Fourth Amendment rights were so diminished by the search condition that the officers could have conducted the search with less than reasonable suspicion, or with no suspicion at all.
In United States v. Crawford, 323 F.3d 700, 72 CrL 568 (9th Cir. 2003), vacated and reheard 372 F.3d 1048, 75 CrL 446 (9th Cir. 2004) (en banc), a divided panel of the court, addressing the question that appeared to have been left open in Knights, ruled that law enforcement officers must have reasonable suspicion before searching the home of a parolee or probationer who is subject to a condition of release authorizing warrantless and suspicionless searches. The en banc court, however, assumed without deciding that a Fourth Amendment violation had occurred and resolved the case on the basis of the scope of the exclusionary rule. Nevertheless, pluralities of the en banc court in Crawford did square off on the issue of parole and probation searches. One group signed an opinion approving warrantless, suspicionless searches and seizures of parolees and their residences so long as the searches are not arbitrary, capricious, or harassing. Another group said the panel was right when it approved a reasonable suspicion standard.
In the instant case, the court resurrected the ruling of the panel in Crawford by holding that, even if the deputies knew about the plaintiff's parole status and search condition, the Fourth Amendment required them to have reasonable suspicion to justify the detention and search of the plaintiff. Along the way, the court said the Knights court "held that reasonable suspicion was required to search the probationer's house" in that case, and that recent studies prevented the state from showing that suspicionless searches "significantly advance the purposes of parole beyond searches based on a reasonableness requirement."
In an opinion by Judge A. Wallace Tashima, the court said that, regardless of whether the intrusions in this case are evaluated as investigatory actions or under the special needs doctrine, the determination of the reasonableness of the intrusions turns on a balancing of the degree to which they intruded on the plaintiff's privacy against the degree to which they were needed to promote the state's interest in supervising parolees. The deputies contended that the existence of the parole condition authorizing warrantless searches extinguished any protection the Fourth Amendment provided against their actions. The court, however, pointed out that even in Knights, where the search condition authorized not only warrantless but also suspicionless searches, the Supreme Court referred to the probationer's privacy rights as "significantly diminished," not eliminated. "Whatever the extent of [plaintiff] Moreno's Fourth Amendment rights, they clearly included the right to walk along a public sidewalk unmolested by law enforcement," the court said.
Evaluating the extent of the intrusion on the plaintiff's surviving privacy rights, the court concluded that there was "little doubt" that the encounter with the plaintiff, particularly his confinement in the police vehicle, was tantamount to "a full blown arrest and search" that would otherwise have required probable cause. Turning to the other side of the balance, the court acknowledged that the state has an overwhelming interest in supervising parolees to protect the public and to ensure that parolees are reintegrated into society. Griffin itself relied on what the Ninth Circuit called the "traditional assumption" that these two goals are furthered by close supervision of parolees.
But things have changed since Griffin,
the Ninth Circuit decided. It reported that "[m]ore recent studies
suggest that close supervision of offenders has relatively little
impact on recidivism rates." In light of this newer information, the
court decided that "the State has not shown that suspicionless
searches, which mimic the conditions of prison, significantly advance
the purposes of parole beyond searches based on a reasonableness
requirement." [Mark Godsey]
TalkLeft has the story here. A Chicago Tribune editorial in favor of the bill states: "The Illinois House is considering legislation that would establish a higher burden of proof in capital case sentencing. Judges and jurors in criminal trials would still apply the time-tested standard of guilt 'beyond a reasonable doubt.' But the standard to impose a death sentence would be even higher. Under the legislation, the court would tell jurors that they may impose a death sentence 'if the jury unanimously determines that the evidence leaves no doubt respecting the defendant's guilt.' If jurors had any residual, or lingering, doubts, they would impose a sentence of life in prison. Given the deeply troubling experience in Illinois, it should be easy for supporters and opponents of capital punishment to agree on this: When the state is going to impose the ultimate, irreversible punishment, there should be no doubt that the person paying for the crime is the one who committed it." [Mark Godsey]
Thursday, March 17, 2005
Well, this film, discussed here, shows Jim Morrison of The Doors being denied a college education, because the public colleges in Florida were overcrowded. Later, he was arrested for indecent exposure. Admittedly, he was acting in the film, and he was in fact admitted to FSU, but I think you see the point. [Jack Chin]
Suffolk County, New York, is faced with a $286 million proposal to build a new jail. Michael Jacobson, Director of the Vera Institute of Justice, has another idea: Follow the lead of New York City and reduce the jail population. Other jurisdictions considering alternatives to incerceration include Wisconsin, exploring non-prison corrections for substance abusers, and Christian groups in Kentucky, which are spending their own money for drug treatment before individuals wind up in the justice system. [Jack Chin]
A 14 year-old girl shot and killed her 56 year-old father, claiming she shot the fatal bullet to end his pain after finding him suffering from the self-inflicted gunshot wounds of his failed suicide attempt. The girl is being held without bond while her claim is investigated. The family's neighbors in Boulder, CO describe the household as "not quite right." MSNBC reports: (Neighbor Cathy Miller) "described the home as a prison of sorts, saying the girl and her older brother were rarely seen outside after they returned from school on the bus...'I think they lived in fear,' Miller said. 'All I could think of is just that (the girl) had had it.'" "I certainly wouldn’t have wanted to cross him in any way," commented Alan Patrick, another neighbor. Law enforcement officials in Boulder, CO became suspicious of the girl's possible role in the shooting after she first explained her father's death as a suicide, then later admitted that she shot him after finding him wounded from a failed suicide attempt. So far, no suicide note has been discovered. The full story... [Mark Godsey]
Youngjae Lee, recently hired for Fall 2005 as a new CrimProf at Fordham, has posted The Constitutional Right Against Excessive Punishment on SSRN. The article is forthcoming in the Virginia Law Review. Here's the abstract:
When is a death sentence, a sentence of
imprisonment, or a fine so excessive or disproportionate in relation to
the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme
Court’s own repeated, albeit uncertain, gestures in the direction of
proportionality regulation by the judiciary, the Court's answer to this
question within the past few decades is a body of law that is messy and
complex, yet largely meaningless as a constraint, except perhaps in a
few instances in the death penalty context. In the core of this
ineffectual and incoherent proportionality jurisprudence lies a
conceptual confusion over the meaning of proportionality. This Article
seeks to prepare the ground for a more coherent and potent
jurisprudence of proportionality to develop by clarifying the concept
of proportionality. First, this Article describes the way in which the
Court's confusion over the meaning of proportionality has been the
source of the problem by discussing four different ways in which the
Court has understood the term. Second, this Article proposes
retributivism as a side constraint as the organizing principle upon
which to base a more coherent and effective constitutional doctrine.
Third, this Article specifies the meaning of retributivism as a side
constraint, emphasizing the distinction between comparative and
noncomparative aspects of retributivism and the significance of
comparative desert for understanding not only what it means for one to
deserve a punishment, but also for devising a viable strategy of
judicial enforcement of constitutional limitations on amounts of
Paper here. [Mark Godsey]
Tennessee law professor Glenn Reynolds, perhaps better known as the Instapundit, talks here about overcriminalization and the trend of categorizing most crimes as felonies, resulting in widespread disenfranchisement, etc. He writes: "Felonies
were once a fairly rare class of crime, a class that generally carried
capital punishment as a more-than-theoretical possibility. A felon was,
by virtue of his heinous acts, an outcast from society. Even if
permitted to live, he was expected to bear the mark of his iniquity for
life, in the form of lost civil rights like the right to vote and the
right to bear arms. To be a felon was to be a permanent outcast within
one's own society.
The issuance of new currency is a common response to runaway inflation. It's also a futile one if the authorities just keep the printing presses running. That's what happened in Tennessee, as lawmakers vied to designate more crimes as "Class X" felonies in order to demonstrate their toughness on crime, until the whole enterprise became a legislative joke.
It's been pretty much the same story everywhere else. Where once "felony" meant things like murder, rape, or armed robbery, now it includes things like music piracy, or filling in potholes that turn out to be "wetlands." As the title to a recent book edited by Gene Healy notes, we've achieved the criminalization of almost everything.
Which means, in fact, the criminalization of almost everyone,
too -- if you haven't been convicted of some felony or other, it's
probably because no prosecutor has tried to put you away, not because
you haven't committed one, whether you realized it at the time or not.
With felonies created so promiscuously, it's no surprise that people are upset that in the process we've created so many permanent outcasts. Separating a few people from society may be salubrious, but as the numbers grow, so does the stress, and the numbers have grown a lot." [Mark Godsey]
Wednesday, March 16, 2005
Robert Blake was acquitted of murder and acquitted of one count of solicitation, with the jury hanging on another count of solicitation to commit murder. The AP reports that the jury voted 11-1 for acquittal on the third count and the judge dismissed that count. [Jack Chin]
Former special prosecutor and D.C. Circuit judge Kenneth Starr, now dean of Pepperdine, is representing a Virginia man who he says was unfairly sent to death row. Said Starr: "the death penalty has to be administered with the utmost caution and reserved for the gravest offenses. This is not that kind of case. Robin Lovitt maintains his innocence, and evidence that might prove his innocence has been destroyed. I'm very distressed by that.... Society had better be absolutely certain before they put someone to death who is maintaining his innocence. I feel very passionately about that." News here and here. Here's information about Starr's client on a pen pal site. [Jack Chin].
At William & Mary Law School on March 25th. Speakers of the conference include James E. Felman, co-chair of Practitioners' Advisory Group, U.S. Sentencing Commission, 2000-2004; Frank O. Bowman, the M. Dale Palmer Professor of Law at Indiana University – Indianapolis and reporter for the ABA “Justice Kennedy Commission” on sentencing; and Stephanos Bibas, Associate Professor of Law University of Iowa College of Law. Details here. [Mark Godsey]
A former judge on house arrest after being convicted for fixing tickets was held in violation of the terms of his release for taking NyQuill for his cold. Apparently, NyQuill contains more alcohol than most alcoholic drinks. Story. (thanks to Objective Justice for the story) [Mark Godsey]