CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, May 7, 2005

Intermediaries help Prisoners Maintain Websites.

Story here. [Jack Chin]

May 7, 2005 in Sentencing Corrections | Permalink | TrackBack (0)

Emmett Till's Body to be Exhumed for Potential Prosecution

We previously blogged on the reopening of this investigation. Story of the latest developments here. [Jack Chin]

May 7, 2005 in News | Permalink | TrackBack (0)

CrimProf Spotlight: Alabama's New Hire Michael Pardo

This week, CrimProf Blog highlights Michael Pardo.  He writes:

After spending the past two years as a visiting assistant professor, first at Northwestern and now at Chicago-Kent, this upcoming fall I’m heading south to join the faculty at the University of Alabama.

I was born and grew up in the suburbs of Chicago.  I went to college at Illinois Wesleyan University, where I double majored in philosophy and business, drifting more and more toward the former. I considered pursuing a PhD in philosophy. Instead—after checking the help-wanted ads for philosophers and being disappointed—I went to law school at Northwestern. While there, I continued to pursue the philosophical issues that interested me, primarily those involving epistemology (knowledge) and language. I’m thankful to have had the opportunity to do so and attribute it to the following factors:  the strong (in my opinion) initial training I received, the opportunity to take graduate-school classes, and, most important, the influence and support of Professors Ron Allen and Robert Burns.   

After law school I spent two years as a Staff Attorney at the Seventh Circuit. The position varies among circuits, but in the Seventh Circuit it involves an extremely rewarding (if lesser known) two-year clerkship that allowed me to work with each of the judges of the court. After that, I obtained a visiting teaching position last year at Northwestern, and then a similar position this year at Chicago-Kent. These positions have provided a wonderful introduction to legal academia. I’ve taught classes primarily in the areas of criminal procedure and evidence, and I will teach civil procedure next fall. This spring I also co-wrote an amicus brief on behalf of a defendant in a criminal appeal before the Seventh Circuit. 

My current research explores the ways philosophical theory can illuminate our evidentiary and procedural practices, both criminal and civil. I think that any critique (whether moral, ethical, legal, or whatever) of a practice, will always be dependent upon our best understanding of that practice. Much of my focus at this point is on this latter project. My publications include: Disentangling the Fourth Amendment and the Self-Incrimination Clause, 90 Iowa L. Rev. (forthcoming 2005); The Field of Evidence and the Field of Knowledge, 24 Law and Philosophy (forthcoming 2005) (presented at the 2004 Stanford/ Yale Junior Faculty Forum in the Jurisprudence and Philosophy category); The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769-1807 (2003) (with R. Allen); Facts in Law and Facts of Law, 7 Int’l J. of Evid. & Proof 153-171 (2003) (with R. Allen); Juridical Proof, Evidence, and Pragmatic Meaning: Toward Evidentiary Holism, 95 Nw. U. L. Rev. 399-442 (2000) (student comment).

One of my primary personal interests is literature. Some favorites include James Joyce (I read Ulysses once a year), William Gass, John Barth, and David Foster Wallace. I also very much enjoy music and film: lately, the jazz trio Medeski, Martin & Wood, the Chicago-based band Wilco, and the films of Jim Jarmusch. And finally—despite my otherwise unflinching commitment to evidence—I’m an optimistic fan of the Cubs. 

May 7, 2005 in Weekly CrimProf Spotlight | Permalink | TrackBack (0)

Atlanta Child Killings Case Reopened

This is the famous Wayne Williams case.  Story here. [Jack Chin]

May 7, 2005 in News | Permalink | TrackBack (0)

Friday, May 6, 2005

GW CrimProf Orin Kerr Testifies Before Congress On Patriot Act

He tells his story about yesterday's testimony here.  [Mark Godsey]

May 6, 2005 in CrimProfs | Permalink | TrackBack (0)

Criminalizing Road Rage

Ohio is set to become the 7th state to make road rage a distinct crime.  The proposed bill criminalizes "observable erratic behavior" on the road that falls short of reckless driving.  Story . . .  [Mark Godsey]

May 6, 2005 in Criminal Law | Permalink | TrackBack (0)

American Journalist Victim of Hate Crime In The Netherlands

From The Editor & Publisher:  "Chris Crain, editorial director of the gay newspaper chain Windows Media, was beaten by seven men in Amsterdam, Holland, as he was walking hand-in-hand with his boyfriend early Saturday morning.  Crain described the gay-bashing in a first-person story scheduled for publication Friday in the Washington (D.C.) Blade, one of several papers owned by Windows. Crain and William Waybourn founded the chain in 1996.  "I was covered in blood, mostly from my nose," Crain wrote, "but I got lucky: no broken bones, no damage to my vision, just some very nasty bruises and a lot to think about."  In the article, headlined "Looking hate in the face," Crain said he never imagined that he would be beaten up for being gay in the gay-friendly Netherlands, where same-sex marriage is legal and discrimination on the basis of sexual orientation is against the law.  "As a child of the South, where 'fag' and 'queer' were everyday insults, I would have expected a fist to the face somewhere back home for sure," he wrote."    Story . . .  [Mark Godsey]

May 6, 2005 in News | Permalink | TrackBack (0)

Thursday, May 5, 2005

UK: Difficult to Achieve Convictions in Rape Cases

Story here. [Jack Chin]

May 5, 2005 in Sex | Permalink | TrackBack (1)

CrimProfs in the News

Texas Tech CrimProf Larry Cunningham talks about the criminal justice system and prominent Texas cases. Virginia CrimProf Anne Coughlin talks about police corruption. Loyola's Laurie Levenson and Southwestern's Robert Pugsley talk about MJ. [Jack Chin]

May 5, 2005 in CrimProfs | Permalink | TrackBack (0)

CrimProf Markel Responds To Sunstein and Vermeule's Death Penalty Paper

Cass Sunstein and Adrian Vermeule’s draft paper: Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs has caused quite a stir over the past month.  The paper argues that the death penalty may be morally required.  [This paper is one of the top 5 most downloaded crim papers this week, see post below].  Florida State CrimProf Dan Markel has an interesting response to Sunstein and Vermeule at PrawfsBlawg here.  [Mark Godsey]

May 5, 2005 in Capital Punishment, Scholarship | Permalink | TrackBack (0)

Arizona Voids Race-Based Traffic Stops

Seal2lvl The Arizona Supreme Court unanimously held that race-based traffic stops may give rise to a defense to criminal charges arising therefrom.  The case involved an appeal of the refusal of the trial court to appoint an expert witness who allegedly would have shown a race-based pattern of traffic stops in the county.  The trial judge held that under Whren, "selective enforcement of traffic laws was not a defense to the drug offenses for which the defendants were charged."  The Supreme Court disagreed, holding that while discrimination might not be a Fourth Amendment problem, it was a Fourteenth Amendment problem.  On appeal, the state did not deny this, but contended "however, that proof of selective enforcement of traffic laws is not a defense to a criminal charge, but rather entitles injured parties only to civil redress."  Either the Supreme Court unfairly characterized the state's argument or the state's copy of United States Reports didn't have Yick Wo v. Hopkins in it; in any event, the Court unanimously rejected the argument.  The Court cited this article by Penn CrimProf Paul Robinson.  Opinion here, story here. [Jack Chin].

May 5, 2005 in Civil Rights, News | Permalink | TrackBack (2)

Court Can Order Alternative Suspect To Submit To DNA Testing At Defendant's Request

From  "A defendant who can convince a judge there is a good chance he might be exonerated by the results of a DNA test of another person is entitled under the Massachusetts Constitution to a court order compelling the other person to submit to an oral swab for a DNA sample, even though that individual has not been charged with a crime, the Massachusetts Supreme Judicial Court rules in In re Jansen, Mass., No. SJC-09430, 4/25/05. The court adds that it sees no Fourth Amendment problem with such an order because it is solicited not by the government but by the accused, whose motive is purely a selfish one."  Details . . .  [Mark Godsey]

May 5, 2005 in Exoneration Innocence Accuracy, Search and Seizure | Permalink | TrackBack (0)

Michigan's Steve Croley Urges Pardons

Op-ed here. [Jack Chin]

May 5, 2005 in Sentencing Corrections | Permalink | TrackBack (0)

Are Undocumented Immigrants Trespassing?

A New Hampshire Police Chief says yes, and has charged undocumented noncitizens with trespassing.  UMKC LawProf Kris Kobach is quoted in this article agreeing. [Jack Chin]

May 5, 2005 in Criminal Law | Permalink | TrackBack (0)

Wednesday, May 4, 2005

This Week's Top 5 Crim Papers

Ssrn_22_2 This week's top 5 crim papers downloaded from SSRN, with number of recent downloads, are:

(1) 2290 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) 1105 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: May 2, 2005
(3) 513 A Model Regime of Privacy Protection (Version 2.0)
Daniel J. Solove, Chris Jay Hoofnagle,
George Washington University Law School, Electronic Privacy Information Center - West Coast Office,
Date posted to database: April 6, 2005
Last Revised: May 2, 2005
(4) 418 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
(5) 271 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

May 4, 2005 in Weekly Top 5 SSRN Crim Downloads | Permalink | TrackBack (0)

Even Bush Not Immune From Identity Theft

The's humorous take on the pervasiveness of identity theft here.  [Mark Godsey]

May 4, 2005 in Miscellaneous | Permalink | TrackBack (0)

Seattle Post Intelligencer Editorializes Against Prison Population Growth

Here. [Jack Chin]

May 4, 2005 in Sentencing Corrections | Permalink | TrackBack (0)

Colorado Supreme Court Considers Challenge to Juror Questions

Story here. [Jack Chin]

    May 4, 2005 in News | Permalink | TrackBack (0)

    A 3Ls Thoughts on the Last Day of Law School

    Here.  [Mark Godsey]

    May 4, 2005 in Teaching | Permalink | TrackBack (0)

    New Article Spotlight: Susan Klein of Texas

    Skleinsg_1CrimProf Susan Klein of Texas has posted on SSRN The Return of Federal Judicial Discretion in Criminal Sentencing from a Valpo symposium entitled The Shifting Powers in the Federal Courts.  Here's the abstract:

    Federal judicial discretion in criminal sentencing has come full circle over the last 200 years. The English practice in colonial times for felony offenses consisted of a determined sentence for every crime, depending upon a finding beyond a reasonable doubt by a jury of all of the essential ingredients of that crime. America, on the other hand, switched to indeterminate sentencing during colonial times, giving state and federal judges the authority to impose any sentence they chose within the very wide penalty range established by the legislature. Each judge was master of her courtroom upon receiving a conviction by jury verdict or guilty plea. She made all of the moral, philosophical, medical, penological, and policy choices surrounding what particular sentence to impose upon a particular offender, and her decision was virtually unreviewable by any higher court.

    Judges ceded some of this enormous discretion by the early 1960s, as every state and the federal government permitted a parole board or probation agency to release a defendant after serving the minimum sentence imposed. Judges nonetheless, in the words of Judge Marvin Frankel, possessed discretion that was terrifying and intolerable for a society that professes devotion to the rule of law. This discretion was abruptly and almost completely terminated shortly after Congress enacted the Sentencing Reform Act of 1984, which transferred power over federal criminal sentencing from district judges to the newly created United States Sentencing Commission. Needless to say, many federal trial court judges were not overly fond of this new arrangement. After many false starts, a successful attack was finally launched last term in United States v. Booker and United States v. Fanfan.

    In Part I of this article, I will briefly recount the history of American criminal sentencing and describe the line of Sixth Amendment cases leading to Booker. I will offer some educated speculation as to why Justice Ginsburg inexplicably joined both competing majority opinions in Booker, and what the five Justices writing for the remedial majority hoped to gain by their tortured interpretation of the Sentencing Reform Act. I suggest that this five justice block hoped to revive judicial discretion in federal sentencing in the wake of what they considered the rude, disruptive, and unwise coup over criminal sentencing that Congress accomplished via the Sentencing Reform Act of 1984 and the Feeney Amendment of 2002.

    In Part II, I will predict the effect Booker will have on federal sentencing. We will see a sharp, perhaps temporary surge of judicial discretion at the trial level, used primarily to decrease the length of sentences, before federal prosecutors regain some (but not all) of their dominance. While there will be a shift of power from prosecutors to the judiciary (at least until Congress supplants Booker by new legislation), the jury will continue to play a minor role. In Part III, I describe Booker's effect on plea bargaining. Though the sustantive terms of bargains will shift in favor of defendants, the overall percentage of guilty pleas will remain high, and the shift of fact-finding responsibility will again flow from the prosecutor to the judge, not to the jury. I conclude with a few thoughts about the likely duration of this new scheme, and what measure would actually be required to expand the jury's role in criminal trials.

    To obtain the paper, click here. (more recent version available from author)  [Mark Godsey]   

    May 4, 2005 in Scholarship | Permalink | TrackBack (0)