Wednesday, April 27, 2005
We previously blogged the controversy over the police use of tasers here and here. The Onion.com takes a comic look at the view of the average Joe on the street here. On a more serious note, here's an article from USA Today discussing a possible conflict of interest that has arisen with respect to tasers. Apparently, the taser manufacturers have put 270 police officers on their payroll to promote the tasers within their departments. (thanks to CrimProf David Harris of Toledo) [Mark Godsey]
- 1 of every 138 U.S. residents are in jail.
- The prison population grew by 900 inmates per week between 2003 and 2004.
- 8,000 more prisoners were admitted to federal prisons than were released.
- 2.1 million people are housed in our prisons and jails."
Story here. [Mark Godsey]
From NPR.com: "With sex offenders accused of two recent high-profile murders in the state, the city of Miami Beach, Fla., is considering a law that would effectively run registered offenders out of town. The city's mayor -- and the opposition -- talk about balancing public safety and civil liberties." Listen to NPR story here. [Mark Godsey]
Tuesday, April 26, 2005
Today the Supreme Court will hear oral argument in the Arthur Anderson case. Question presented: Whether Arthur Andersen LLP's conviction for witness tampering under 18 U.S.C. § 1512(b) must be reversed because the jury instructions upheld by the 5th Circuit misinterpreted the elements of the offense, in conflict with decisions of the Supreme Court and the Courts of Appeals for the 1st, 3rd, and D.C. Circuits. Story and details of case here. [Mark Godsey]
From BNA U.S. Law Week:
The U.S. Supreme Court April 26 decided two cases related to the criminal justice system, both involving the interplay between domestic and foreign laws.
In Small v. United States, No. 03-750, the court held that the federal statute that forbids possession of a firearm by a person "convicted in any court" of a crime punishable by more than a year in prison, 18 U.S.C. §922(g)(1), applies only to domestic, not foreign, prior convictions. The court said nothing in the statutory language indicates that Congress enacted the legislation with anything other than domestic concerns in mind, and it pointed out that foreign laws may criminalize conduct that domestic laws would allow.
In Pasquantino v. United States, No. 03-725, the court decided that a scheme to defraud a foreign government of tax revenue through the use of domestic interstate wires violates the federal wire fraud statute, 18 U.S.C. §1343. It said that applying the wire fraud statute to punish such acts does not violate the common-law revenue rule, because it is not a suit that aims to recover a foreign tax liability but a criminal prosecution intended to punish domestic criminal conduct.
Paul Caron at TaxProf Blog discusses the practice and issues arising therefrom here. It seems that only one of my articles is worthy of Amazon.com. You can get it off Westlaw for free, but if you're a sucker, you can pay $5.95 for it here. [Mark Godsey]
The Supreme Court will hear oral argument today in Bell v. Thompson, No. 04-0514. Question presented: Did the 6th Circuit abuse its discretion by withdrawing its opinion affirming the denial of habeas corpus relief six months after Fed. R. App. P. 41(d)(2)(D) made issuance of the mandate mandatory, without notice to the parties or any finding that the court's action was necessary to prevent a miscarriage of justice, particularly where state judicial proceedings to enforce the inmate's death sentence had progressed in reliance upon the finality of the judgment in the federal habeas proceedings? Details . . . [Mark Godsey]
Loyola-LA CrimProf Alexandra "Sasha" Natapoff has posted Speechless: The Silencing of Criminal Defendants on SSRN. This paper won the AALS Criminal Justice Section Award at the Annual Conference in January. It has been accepted for publication at the NYU Law Review. Here's the abstract:
Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent, spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that it is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially-disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: it is through speech that defendants engage with the law, understand it, express anger, remorse, or their acceptance or rejection of the process. Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides what collective decisions are fair or unfair, and who should be punished. This Article describes the silencing phenomenon in practice and doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to democratic values that underlie the process. It proposes new ways of valuing defendant speech, and challenges conventional understandings of the attorney-client conversation, the listening role of the bench, and the public discourse about criminal justice.
To obtain the paper, click here. [Mark Godsey]
The Supreme Court granted cert. in the following criminal case yesterday:
Oregon v. Guzek, No. 04-928 -- Does a capital defendant have a right under the Eighth and 14th Amendments to offer evidence and argument in the penalty phase of his trial in support of any "residual doubt" as to his guilt? Details . . . [Mark Godsey]
This week's top 5 crim papers on SSRN, with number of recent downloads, are:
|(1)||2190||The Perfect Crime |
Brian C. Kalt,
Michigan State University College of Law,
Date posted to database: March 25, 2005
Last Revised: April 19, 2005
|(2)||1071||A Model Regime of Privacy Protection (Version 1.1) |
Daniel J. Solove, Chris Jay Hoofnagle,
George Washington University Law School, Electronic Privacy Information Center - West Coast Office,
Date posted to database: March 11, 2005
Last Revised: April 18, 2005
|(3)||393||Searches and Seizures in a Digital World |
Orin S. Kerr,
The George Washington University Law School,
Date posted to database: April 4, 2005
Last Revised: April 20, 2005
|(4)||210||Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs |
Cass R. Sunstein, Adrian Vermeule,
University of Chicago Law School, University of Chicago Law School,
Date posted to database: March 25, 2005
Last Revised: April 20, 2005
|(5)||142||An Introduction to the Model Penal Code of the American Law Institute |
Paul H. Robinson, Markus Dirk Dubber,
University of Pennsylvania Law School, University at Buffalo School of Law,
Date posted to database: February 4, 2005
Last Revised: February 4, 2005
Monday, April 25, 2005
The Supreme Court will hear oral arguments in the following two cases today:
Halbert v. Michigan, No. 03-10198. Questions presented: (1) Does Michigan's law and practice of not appointing counsel to indigent defendants convicted by guilty plea, violate a defendant's 14th Amendment right to due process? (2) Is a defendant entitled to resentencing, where counsel failed to render effective assistance by not objecting to improper scoring under Michigan's sentencing guidelines which resulted in a considerably longer sentence? Details . . . To be argued by Wayne State CrimProf David Moran; NYT editorial here.
Gonzalez v. Crosby, No. 04-6432. Question presented: Whether the court of appeals erred in holding that every Rule 60(b) motion [other than for fraud under (b(3)] constitutes a prohibited "second or successive" petition as a matter of law? Details . . . [Mark Godsey]
Sunday, April 24, 2005
I was raised in Buffalo, New York, where my father is an Economics professor. Despite (and not because of) that, I left to attend college at the University of Chicago confident that I would never take an Economics course. Not surprisingly, I graduated with a BA in Economics in 1997 and stayed at Chicago to start work on my PhD in Economics the very next quarter. During my first year of graduate school I discovered that Law and Economics held the most interest for me, so once I had finished all my coursework for Economics, I walked across the street to start taking classes at the Law School. I finished law school in 2003 and then clerked for Judge Stephen F. Williams on the DC Circuit during the 2003-04 term. I've spent the past year as the John M. Olin Fellow at the Northwestern School of Law, and I plan to finish graduate school by the time I move to New York City to start teaching at Fordham.
In terms of people who have influenced me, Gary Becker, Bernard Harcourt, Steven Levitt, and Eric Posner have all played big roles. Perhaps the most important thing I have learned from them is importance of rigorous empirical work that remains grounded in economic theory. My area of
interest in particular is the empirical analysis of criminal law. My big project over the next few years is to try to develop a detailed empirical model that might explain what forces have driven the dramatic rise over the past 30 years of the prison population in the United States and where in
the process (at arrest, prosecution, or sentencing, for example) they act. As part of this, I'm currently finishing a paper which examines the efficacy of voluntary criminal sentencing guidelines (finding that they work, though not as well as the presumptive guidelines no longer valid in
the wake of Blakely). I'm also planning to examine more closely how the political process interacts with sentencing behavior and how federal policies influence criminal sentencing in the states.
I am really looking forward to moving to New York and beginning to work and teach at Fordham. I have always enjoyed teaching -- I started to teach as a graduate student the first quarter Chicago allowed me -- and I am excited to (officially) start my academic career.
Please send us information on the new CrimProfs hired by your school, and we'll introduce them to the profession. [Mark Godsey]
CrimProf Elizabeth Joh of Davis has posted Reclaiming 'Abandoned' DNA: The Fourth Amendment and Genetic Privacy on SSRN. The article will be published in 2006 in the Northwestern Law Review. Here's the abstract:
We leave traces - skin, saliva, hair,
and blood - of our genetic identity nearly everywhere we go. Should the
police be permitted, without restriction, to target us and to collect
the DNA that we leave behind? In a growing number of instances, the
police, unburdened by criminal procedure rules, seek this "abandoned
DNA" from criminal suspects in hopes of resolving otherwise unsolvable
cases. Abandoned DNA is any amount of human tissue capable of DNA
analysis and separated from an individual's person inadvertently or
involuntarily, but not by police coercion. What are the consequences of
allowing this investigative method to remain unregulated? In stark
distinction to the growing body of commentary on the collection of DNA
samples for state and federal DNA databases, little attention has been
paid to this backdoor method of DNA collection.
Deciding whether DNA might ever be "abandoned" is important, because abandoned DNA provides the means to collect genetic information from anyone, at any time. Criminal procedure law poses no restrictions on this kind of evidence collection by the police. Not only does the label of abandonment affect police behavior, it also raises basic questions about the changing nature of legal identity. How should we characterize the relationships between our physical bodies and our identities, now that nearly any "body particle" can reveal our genetic information? The final part of this Essay proposes first steps towards addressing the problem, but its primary task is to show the need to reframe the debate over covert involuntary DNA sampling and to make the case for "genetic exceptionalism."
To obtain the paper, click here. [Mark Godsey]
From MSNBC.com: "The juror in the Prince William County murder trial swore to the judge that she had not bought any newspapers. The defense attorney swore that she had.
Then came the videotape. The attorney produced a surveillance tape from a 7-Eleven in Old Town Manassas showing juror Lindy L. Heaster buying a copy of The Washington Post and the Potomac News -- and the juror suddenly became the accused.
Circuit Court Judge Rossie D. Alston Jr. threw out a murder conviction against Gerardo N. Lara Sr., the man Heaster had helped convict of killing his estranged wife. Alston found Heaster in contempt of court this week and indicated that she could be forced to pay the cost of the five-day trial. And yesterday, prosecutors said they are considering perjury charges against Heaster." Story . . . [Mark Godsey]
MSNBC reports: "A 10-year-old girl was placed in handcuffs and taken to a police station because she took a pair of scissors to her elementary school. School district officials said the fourth-grade student did not threaten anyone with the 8-inch shears, but violated a rule that considers scissors to be potential weapons.
Administrators said they were following state law when they called police Thursday, and police said they were following department rules when they handcuffed Porsche Brown and took her away in a patrol wagon. Police officers decided the girl hadn’t committed a crime and let her go. However, school officials suspended her for five days." More . . . I wonder what the Atwater Court would say about this one? [Mark Godsey]
UPDATE: From MSNBC.com: "A 5-year-old girl was handcuffed by police (in Florida) after she tore papers off a bulletin board and punched an assistant principal in kindergarten class, according to a video released by a lawyer for the child’s mother." Here's a videoclip of the child being handcuffed. The video shows that the child had calmed down considerably before the police slapped the handcuffs on her. [Mark Godsey]
UPDATE: CNN reports that St. Louis police handcuffed a 5 year old, at the direction of the principal of a charter school who formerly worked for the Department of Corrections. "The boy's mother, Aroni Rucker, said Wednesday her son had trouble adjusting to his first year of school and may have been disruptive, but he did nothing to warrant such treatment. 'They put handcuffs on my baby,' Rucker said. 'That's for adults who murder and kill. He's 5. He's in kindergarten.' . . . St. Louis police spokesman Richard Wilkes said the department was looking into the incident. 'Handcuffing 5-year-olds is not a practice of the department,' he said." The principal has been suspended. [Jack Chin]