May 25, 2005
UK Sees Increase in Recidivism
From the TimesOnline: "Thousands of prisoners who were freed under supervision are being sent back to jail after being caught reoffending, according to a report published today. The number of prisoners released after serving short sentences for burglary and theft who are then being recalled to jail has almost quadrupled in four years. Officials in the Home Office are so concerned at the figures that, for the first time, they are investigating the reason for the surge in recalls." Story . . . [Mark Godsey]
Momentary Negligence not Criminal
A Canadian judge held that a momentary failure to pay attention while driving was not criminal, and thus exonerated a driver who caused an accident with three fatalities. The defendant was not drunk or speeding, but, perhaps because of sunstroke or dozing off momentarily, crossed the center line and impacted a car in the other lane. Story here. [Jack Chin]
Former Austrailian Crime Official Advocates Torture
A former head of Australia's National Crime Authority, citing the movie "Dirty Harry" argued that torture is sometimes justifiable for terrorist and some domestic criminal situations. Meanwhile, in England the government's chief advisor on youth crime urged prosecutors to stop referring to juveniles as yobs. (Note: Yob is boy spelt backwards, and means lout or hooligan) [Jack Chin]
May 24, 2005
Columbia Students Release New Edition of Jailhouse Lawyers Manual
From a press release: "The two-volume JLM is produced to assist prisoners and others in negotiating the U.S. legal system. Among the 45 chapters is information on legal rights and procedures, religious freedom in prison, special issues of female prisoners, and immigration law and legal research. New sections in the sixth edition - often culled from prisoner feedback - include topics such as the special needs of and juvenile, female, homosexual inmates. Marco Palau ‘05 and Kathy Banuelos ‘05 served as editors of the Spanish publication. Sarah Stewart ‘05 told the New York Law Journal that the magazine staff was also assisted by 20 private practitioners. The manual was first published in 1978, when the prison population was a fifth of what it is today. The current price is $45 for inmates and $90 for all others. One thousand copies are sold annually." [Mark Godsey]
9th Circuit Split Over Grand Jury Nullification Instruction
From Law.com: "A closely divided en banc panel of the 9th U.S.
Circuit Court of Appeals rejected a constitutional challenge to federal
grand jury instructions Monday, saying there's no need to tell jurors
they're free to ignore the law.
Writing for the 6-5 majority, Judge Jay Bybee said grand
juries already have enough freedom and independence without a
"We observe that the weight of U.S. history favors instructing
the grand jury to follow the law without judging its wisdom," Bybee
wrote in U.S. v. Navarro-Vargas, 05 C.D.O.S. 4311.
"The prospect of a grand jury here and there deciding for
itself that a law lacked 'wisdom' is an invitation to lawlessness and
something less than the equal protection of the laws," Bybee warned.
He was joined by Chief Judge Mary Schroeder and Judges Barry Silverman, Johnnie Rawlinson, Richard Clifton and Carlos Bea.
But a dissent by Judge Michael Daly Hawkins argued that grand juries need to be the conscience of a community. "The majority tells us that a constitutionally created institution, designed precisely to filter prosecutorial desire through citizen judgment, must give way to the unbridled exercise of prosecutorial discretion," Hawkins wrote. Four judges -- Harry Pregerson, Kim Wardlaw, William Fletcher and Marsha Berzon -- joined Hawkins.
The decision has wide implications because the instructions at issue are part of the model instructions promulgated by the U.S. Judicial Conference and used across the United States. Courts have used the text since 1978. Of course, grand juries date even further back -- more than 800 years -- as Bybee points out in a lengthy history included in the 61-page opinion. Defense attorneys have been complaining almost as long. They say grand juries just rubber stamp cases brought in by prosecutors and still decry the fact that jurors cannot consider exculpatory evidence.
The appellate panel was considering two federal drug cases from Southern California. Besides arguing in favor of nullification language, attorneys with Federal Defenders of San Diego Inc. also challenged a section that bolsters the stature of federal prosecutors. Grand jurors are told to expect "candor, honesty and good faith in matters presented by the government attorneys," according to the instructions. Steven Hubachek, who represented the appellant, first challenged grand jury instructions in 2001 in what became United States v. Marcucci, 299 F.3d 1156. Hawkins also dissented in Marcucci. Hubachek said he plans to appeal Monday's decision to the U.S. Supreme Court. Although the majority recognized criticism of grand juries, the judges weren't convinced that things need to change. They cited grand juries' independence as key, as well as the fact that they can simply choose not to indict if they don't like a case. "The grand jury has no accountability at the ballot box, before Congress, the president or the courts. The grand jury's duty to follow the Constitution is no less than the president's duty to take care that the laws are faithfully executed. It is the grand jury's position in the constitutional scheme that gives it its independence, not any instructions that a court might offer," Bybee wrote." Decision not yet available on Findlaw. [Mark Godsey]
Former Prosecutor Named Chief Counsel of Senate Judiciary Committee
Preet Bharara was named chief counsel on the Senate Judiciary Committee, working on judicial selection for U.S. Senator Chuck Schumer (D-NY). His portfolio includes all judicial nominations, crime, terrorism, laws relating to privacy, civil rights legislation, and abortion rights. Before joining Sen. Schumer in Washington, he was an assistant U.S. Attorney in Manhattan. He served as a member of the organized crime and terrorism unit and was involved in cases involving Chinese and Russian organized crime, as well as the Colombo crime family. Press release here. [Mark Godsey]
Michael Jackson Odds--UPDATED
If you go to betonsports.com, and look under betting lines, you can get the latest odds on the outcomes of celebrity trials (under "Trials"; at the moment, odds favor conviction on less than all charges; second most likely, acquittal on all charges), and on who will be the next Supreme Court appointment (Under "Cinema and Celebrities," Item 5 on "Celebrity Props"; Luttig and Wilkinson should start looking for DC real estate). The market does not lie. [Jack Chin]
UPDATE: The smart money says MJ will be acquitted.
Law Student Evaluations Apparently Hinge on Professor's Sex Appeal
Story from TaxProf blog here. [Mark Godsey]
A South African convicted of rape and robbery was released after serving 10 years; in Massachusetts, an exonerated person filed suit for damages claiming he was framed; a report proposes that the Texas death penalty system does not reliably exonerate the innocent. [Jack Chin]
New Article Spotlight
Martha Chamallas of Ohio State has posted Lucky: The Sequel on SSRN. Here's the abstract:
Lucky: The Sequel is a review essay
based on Alice Sebold's 1999 memoir Lucky in which Sebold describes her
own rape as a college student, her experiences as a rape victim and her
navigation of the legal system. Chamallas uses Sebold's rape narrative
to explore themes of particular interest to feminist legal scholars.
She discusses the intersection of race and rape, the continuing
controversy surrounding the categorization of rape as a crime of
violence versus a sex crime and the usefulness of considering the
social and cultural dimensions of the trauma of rape.
To download the paper, click here. [Mark Godsey]
WSJ on Aging Prisoners
Story here. [Jack Chin]
Case CrimProf and Nuremberg Prosecutor
GA CrimProf Honored
Georgia CrimProf Ronald Carlson recently received a lifetime achievement award from the Georgia Trial Lawyer's Association.
Georgia Law Dean Rebecca H. White said the recognition is a testament
to what Carlson, a teaching legend at the School of Law, means to the
lawyers in the state of Georgia. “Ron is someone who has made a
significant difference in the lives of lawyers and in the practice of
law, and we are so fortunate to have him on our faculty.” A prodigious scholar and lecturer, Carlson has written numerous books
on evidence, trial practice and criminal procedure as well as scores of
articles in prominent law reviews. His most recent titles are Criminal
Justice Procedure, which was released earlier this year, and A
Student's Guide to Elements of Proof. [Mark Godsey]
New Use For DNA Testing?
Here's a story about a politician in Austria who wants to create a DNA registry for dogs. His thought is that when dog poop is found on the street, it can be DNA tested, entered into the database, and the dog's owner can be charged and convicted. Great idea . . . particularly in light of the widespread backlogs at DNA labs for rape and murder cases. [Mark Godsey]
May 23, 2005
Chicago Invitation: CrimProf Bernard Harcourt's Project The Carceral Notebooks
Here's an announcement about a very interesting program and an invitation to hear more about it in person:
Carceral Notebooks, Volume 1, 2005
The Carceral Notebooks, Volume 1, 2005 is now available in print and on-line.
The Carceral Notebooks is a new publication intended to explore the liminal space where moral opprobrium meets government-sanctioned punishment. The Carceral Notebooks is a collection of essays that wrestle with the hard cases in the penal sphere. In a preface and an introductory essay to Volume 1, Bernard E. Harcourt, professor of law at the University of Chicago, sketches the contours of the carceral zone and maps the different ways in which we imagine punishment for the types of conduct that are usually deemed morally offensive or inappropriate. Volume 1 then presents nine essays written on various topics involving the criminal enforcement of morality from casino gambling to hard-core pornography, from S/M sexual practices to the exploitation of urban gangs. The essays in Volume 1 challenge us to rethink the social distribution of pain and pleasure, and to reexamine the borderland of crime and punishment.
The Carceral Notebooks is part of a larger interdisciplinary project studying contemporary culture through the integration of law, art, social science, theory, and criticism. The Carceral Notebooks will publish a series of Journals, Virtual Art Exhibits, and host Salons.
Wednesday, June 8, 2005, 8:00 p.m.
1470 Milwaukee Avenue
Artwork by Sara Black, Virgil Marti, and Mia Ruyter
Discussion with Elizabeth Emens
Shaudy Danaye-Elmi’s article
Pornography as Action, Pornography as Interaction
The Carceral Notebooks, Volume 1, are available on-line at
Supreme Court Decides Two Crim Cases Today
In Deck v. Missouri, No. 04-5293, the court held that the Fifth and Fourteenth Amendments' guarantee of due process bars the use of visible shackles during the penalty phase of a capital trial unless shackling is justified by the need for courtroom security or some other essential state interest specific to the particular defendant. Decision here.
In Medellin v. Dretke, No. 04-5928, the court dismissed as improvidently granted a case involving whether a failure to comply with the Vienna Convention's requirement that arrested foreigners be given access to their consular missions spoils a Mexican national's Texas capital murder conviction. The court said that, in light of the president's directive that the petitioner and other death row inmates others like him be given hearings called for by the International Court of Justice, it should not address the issues raised in the case.
How, you may wonder, do prisoners escape from custody of the U.S. Bureau of Prisons: Dig a tunnel as in The Great Escape? Disguise themselves as guards, as in Midnight Express? Carve a gun out of soap, as in Take the Money and Run? The astonishing truth is that some of them simply get off the bus at the wrong stop. Yes, it turns out that prisoners are often transferred between BOP facilities by commercial bus, and some of them abscond. Story here. [Jack Chin]
Interested in Turning Your Scholarship Into a Profit Center?
Then check this out. [Mark Godsey]
New Polls on Capital Punishment
The most recent Gallup Poll found current support for the death penalty at 74%, down from 80% in 1994. Those supporting the death penalty decreased to 56% when respondents were given the choice of life in prison without parole, down from about 61% in 1997. Compared to more recent years, however, support for the death penalty increased slightly in the most recent poll. [Mark Godsey]
In the News
Bush Seeks To Increase Mail Monitoring; Postal Service Objects
FBI Says Greatest Domestic Terror Threat Is Environmental Extremists
State-By-State Sex Offender Info Going National on the Internet
Texas Considers Life Without Parole Option [Mark Godsey]