Tuesday, April 12, 2005
Stephen Stanko, the co-author of Living in Prison: A History of the Correctional System with an Insider's View is going back; he's the prime suspect in two killings and a murder. His co-authors are criminal justice professors. Story here. [Jack Chin] UPDATE: Captured.
USA Today reports that audits of the $12 Billion Community Oriented Policing Services program has revealed hundreds of millions of misspent funds and little evidence of effectiveness. Story here. The DOJ Office of Inspector General did the audit; they have revealed scandal after scandal; when will they be eliminated? [Jack Chin]
The following is what some states are doing for National Crime Victims' Week this week: Arkansas (protesting Bush's cutting of $1.2 billion from national crime victim fund); Mississippi (improving crime labs); Georgia (granting greater restitution rights to crime victims); Alaska (holding events and programs); Nebraska (dedicating park to crime victims); Texas (dedication of memorial); and New York (ceremony honoring victims). [Mark Godsey]
CrimProf Donald Dripps of San Diego has posted Overcriminalization, Discretion, Waiver: A Survey of Possible Exit Strategies on SSRN. Here's the abstract:
In both the constitutional law of American criminal justice and the
scholarly literature that law has generated, substance and procedure
receive radically different treatment. The Supreme Court, even in this
conservative political period, continues to require costly procedural
safeguards that go beyond what elected legislatures have provided by
statute. The Court, however, has shown great deference to the choices
these same legislatures have made about what conduct may be made
criminal and how severely it may be punished.
The distinction between substance and procedure pervades academic thinking all the way down to its foundations. Substantive criminal law still holds its place in the sacred precincts of the first year curriculum. Criminal Law's cognate discipline is philosophy; the standard method of analysis is to measure general principles according to how well they track intuition's response to hypothetical cases. Criminal Procedure's cognate discipline is Constitutional Law; the standard method of analysis is to subject the operation of the criminal justice system to the same rhetoric of text, history, and precedent that frames the issues in separation of powers or freedom of speech cases. The philosophy mediated by doctrine is political, rather than moral theory.
In trial level courthouses, however, the distinction fades, as the defendant trades his procedural rights for reductions in his substantive liability. The substantive law endows the prosecution with the ability to charge the same conduct at many different levels of potential punishment. The procedural law also endows the defense with its stock in trade - the rights to suppression motions, discovery, elaborate jury selection procedures, confrontation of the victim, and so on.
These endowments are dynamic rather than static. A legislature that adopts a three-strikes law increases the prosecution's bargaining power. A court that reads the confrontation clause to bar excited utterances from the government's proof increases the defendant's bargaining power. In the trenches of criminal justice, these entitlements may well be traded off, erasing the distinction between substance and process.
Admirable scholarship has exposed this basic dynamic. Debate continues about two great issues. First, is this state of affairs normatively defensible or not? Second, if the present relationship between substance and procedure is undesirable, what, if anything, can be done about it?
In this paper I take up the second question, which seems to me to have drawn too little systematic attention (perhaps because it is so daunting). The literature has devoted considerable debate to alternatives to plea bargaining. But these discussions have been self-contained; they do not take account of the substance/procedure feedback loop already in place. The principal point against proposals to ban bargaining is not that we should not but that we cannot; self-interested, repeat-playing actors in the criminal justice process will find ways to bargain. The debate, naturally enough, has not gotten to the point of "what if we succeeded in banning plea bargaining?"
As things stand, the prohibition of bargaining would leave prosecutors with unregulated discretion to select charges from overbroad and draconian criminal codes. Prohibiting bargaining would mean that defendants could not trade their constitutional procedural entitlements off against the state's substantive criminal law entitlements. The new model would be one in which defendants, facing decades in prison for relatively modest crimes, would stand trials they have little chance of winning.
The discussions on plea bargaining have the same isolated quality as the discussions on individual bodies of criminal procedure doctrine. Of course they matter, in some cases; but the bigger picture is the relationship between substantive criminal law sentencing and the procedural rights of the defendant. So serious are the difficulties that I shall not - yet - defend any doctrinal reform on the ground that the relation between substance and procedure would be harmonized thereby. My task is one more modest, but I hope still useful. I aim to survey the possible strategies by which the system might escape the current impasse.
The possible strategies fall into five basic categories. First, we might continue what we seem to be doing now: increasing constitutional procedural entitlements in the hope of mitigating the excesses of the substantive criminal law. Second, we might give up on the constitutional distinction between substance and process by deconstitutionalizing procedure altogether, or at least to a dramatic degree. Responsible then for both substance and process, legislatures might strike a better balance than is produced by the current division of labor. Third, we might achieve the same sort of unification by constitutionalizing substance. Robust judicial review of substantive criminal legislation might curb overcriminalization, which might in turn lead the courts to develop a more rational body of procedural rights. Fourth, we might look for more rigorous restrictions on prosecutorial discretion, building on administrative law and experience with sentencing guidelines. Fifth, we might look for more rigorous restrictions on the defendants' right to waive procedural rights for substantive advantage.
What I hope to add to the scholarly conversation is a brief assessment of the promise and pitfalls that attend each of these strategies.
To obtain the paper, click here. [Mark Godsey]
Sister Helen Prejean, author of Dead Man Walking and
an outspoken critic of capital punishment, will discuss the human
consequences of the death penalty at a special presentation on Saturday,
April 23, at 5:30 p.m. in the McNally Amphitheatre on the Lincoln
Center campus. The event is free and open to the public, but
reservations are required.
In conjunction with Sister Prejean’s visit, the Fordham University Theatre Department will present several performances of Tim Robbins’ play Dead Man Walkingin Pope Auditorium at 113 W. 60th Street. Show times are 8 p.m., Thursday, April 21 through Saturday, April 23 and Thursday, April 28 through Saturday, April 30. Additional show times are Friday, April 22, at noon and Saturday, April 23, at 2 p.m. Tickets for the production are $12 per person; $8 for faculty, alumni and staff; and $5 for students and senior citizens. Tickets can be reserved at (212) 636-6340.
The event is being sponsored by the Fordham Office of Mission and Ministries, the School of Law’s Institute on Religion, Law & Lawyer’s Work, and the Theatre Department. Tickets for Sister Helen Prejean’s discussion are different from the stage production tickets and must be obtained separately by sending your mailing address to the Institute on Religion, Law & Lawyer’s Work, Fordham Law School, 140 W. 62nd St. New York, NY 10023, or by emailing firstname.lastname@example.org. Donations will also be accepted for the Moratorium Campaign, an organized effort to obtain an immediate moratorium on the death penalty.
Monday, April 11, 2005
We are thrilled to announce that LexisNexis has agreed to sponsor all of the blogs in our Law Professor Blogs Network:
- AntitrustProf Blog (Shubha Ghosh (SUNY Buffalo))
- ContractsProf Blog (Carol Chomsky (Minnesota) & Frank Snyder (Texas-Wesleyan))
- CrimProf Blog (Jack Chin (Arizona) & Mark Godsey (Cincinnati))
- Health Law Prof Blog (Betsy Malloy (Cincinnati) & Tom Mayo (SMU))
- LaborProf Blog (Rafael Gely (Cincinnati))
- Law Librarian Blog (Joe Hodnicki (Cincinnati))
- Law School Academic Support Blog (Dennis Tonsing (Roger Williams))
- Media Law Prof Blog (Cristina Corcos (LSU))
- Sentencing Law & Policy Blog (Douglas Berman (Ohio State))
- White Collar Crime Prof Blog (Peter Henning (Wayne State) & Ellen Podgor (Georgia State))
- TaxProf Blog (Paul Caron (Cincinnati))
- Tech Law Prof Blog (Jonathan Ezor (Touro) & Michelle Zakarin (Touro))
- Wills, Trusts & Estates Prof Blog (Gerry Beyer (St. Mary's))
LexisNexis shares our vision for expanding the network into other areas of law, so please email us if you would be interested in finding out more about starting a blog as part of our network.
From Talkleft.com: "A murder conviction has been overturned by a California appeals court because the victim's family wore buttons with an image of the victim throughout the trial. The jury may have been swayed by the display. This is an extraneous influence calculated to sway the emotions of the jury. It's justly prohibited by law. Blame this one on the trial judge and the prosecutors. The defense objected to the buttons during trial and the judge refused to tell the family to remove them. The prosecutors should have told the family this is inappropriate. They gambled that they'd get away with this display in this age of victims' rights and they lost." [Mark Godsey]
Sunday, April 10, 2005
On Legal Affairs, Cardozo CrimProf Richard Bierschbach and Marquette CrimProf Michael O'Hear are debating the question of whether an apology should reduce a convicted person's sentence. "Will an apology save you from Jail" here. Sometimes my toddler apologizes for something, and I ask her "are you really sorry or are you just saying that to get out of trouble?" Because she knows its wrong to lie, she says "I'm just saying it." I hope both profs agree that those sorts of apologies shouldn't count. [Jack Chin]