Tuesday, September 27, 2005
From NYTimes.com: "Should white-collar criminals receive harsher sentences than street thugs or drug peddlers?...Ellen S. Podgor of the White Collar Crime Prof Blog doesn't think so...While deterrence may work for common criminals, "the SHAME in the community is by far the harshest punishment felt by the white-collar offender," Ms. Podgor writes.
Maybe. But given the shamelessness with which these crimes were committed, relying on shame as a deterrent seems inadequate, somehow. The Tyco execs were taken to state prison, not the relatively comfortable federal system. Brooks Holland, a lawyer, ruminates on Prawsfblog whether prison conditions should be a consideration in sentencing. His take is that most judges wouldn't buy it." Story... [Mark Godsey]
From the DPIC: "Recent research has revealed a close correlation between the U.S. states that historically carried out the most lynchings and the states that today have the highest homicide rates and most death sentences. In a study led by sociologist Steven Messner of the State University of New York at Albany, county data from 10 southern states where historically reliable information on vigilante lynchings between 1882 and 1930 is available were examined (Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, North Carolina, South Carolina, and Tennessee). The study then compared this information to more recent homicide data compiled from 1986 to 1995 by the FBI and National Center for Health Statistics. The comparison revealed that the counties with the most lynchings had the highest homicide rates, and the counties with fewer lynchings had comparatively fewer murders, even when researchers controlled for factors such as population, poverty, low levels of education, the percentage of young people in the population, the unemployment rate, and the percentage of single-parent households. Messner noted that "lynching seems to matter and is relevant to our understanding of contemporary lethal violence" in the South. The latest issue of the American Sociological Review contains more information about this study.
In a second study conducted by sociologists David Jacobs and Jason T. Carmichael of Ohio State University and Stephanie L. Kent of the University of Nevada, Las Vegas, research revealed that the number of death sentences for all criminals - black and white - was higher in states with a history of lynchings. The link was particularly strong when the researchers analyzed only death sentences for black defendants. The sociologists theorize that the death penalty became a legal replacement for the lynchings of the past, and that the number of death sentences in states with the most lynchings increased as the state's population of African Americans grew. The researchers noted that this trend suggests that "current racial threat and past vigilantism largely directed against newly freed slaves jointly contribute to current lethal but legal reactions to racial threat." This research will be published in an upcoming issue of the American Sociologial Review." [Mark Godsey]
RIP Albert "Caesar" Tocco, a mob boss who died in prison, convicted after his own wife testified against him. He committed some of the murders featured in "Casino," and, according to thestory, cheated his own daughter at tic-tac-toe. John Gotti Jr., who had an acquittal and a mistrial at his latest trial, was granted bail, but some doubt that he has gone legit. [Jack Chin]
Meleia Willis-Starbuck, a female Dartmouth College student home in California for summer break called a friend on her cellphone for help after she got in a beef with some male University of California foorball players. The friend showed up with a gun, started shooting, accidentally killed Willis-Starbuck; he was arrested last week after two weeks on the run. Story here. [Jack Chin]
In upstate New York, a former employee of a nail polish factor who had been fired for possessing child pornography on a company computer returned to the factory to shoot his former bosses. Three people were shot, none fatally as of the time of the report. [Jack Chin]
Fred Zacharias of San Diego has posted The Role of Prosecutors in Serving Justice After Convictions, forthcoming in the Vanderbilt Law Review, on SSRN. Here's the abstract:
This Article addresses prosecutors' ethical duty to serve justice after convictions are complete. Prosecutorial justice issues seem to arise less frequently after conviction than at trial. Once defendants are found guilty beyond a reasonable doubt, prosecutors' natural inclination in balancing the equities has been to sidestep defense-oriented actions.
Analyzing the obligation to serve justice after convictions is important precisely because so little attention has been paid to it. There are at least three reasons why prosecutors are ill-equipped to analyze their post-trial obligations on their own. First, there is little law governing the subject. Second, prosecutors' incentives at the post-conviction stage militate against taking action that benefits convicted defendants. Third, identifying what it means to serve justice is a complex task.
Because prosecutors properly embrace a presumption that convicted defendants have received a fair trial, almost any prosecutorial reaction that maintains the status quo seems justified. Nevertheless, once appeals are complete, the prosecutor may be the only participant in the criminal justice system in a position to rectify a wrong. Prosecutors, for the most part, have been left to their own devices in determining how to balance these considerations.
This Article first sets forth categories of realistic scenarios that implicate a post-conviction obligation to do justice and discusses the limited case law addressing the subject. It then identifies ways that prosecutors and rulemakers might think about the issues. Finally, the article offers suggestions for how ethics code drafters and other regulators should begin to resolve some of the core questions.
To obtain the article, click here. [Mark Godsey]
Monday, September 26, 2005
From MSNBC.com--Fort Hood, TX (AP): "Army Pfc. Lynndie England, whose smiling poses in photos of detainee abuse at Baghdad’s Abu Ghraib prison made her the face of the scandal, was convicted Monday by a military jury on six of seven counts. England, 22, was found guilty of one count of conspiracy, four counts of maltreating detainees and one count of committing an indecent act. She was acquitted on a second conspiracy count.
The jury of five male Army officers took about two hours to reach its verdict. Her case now moves to the sentencing phase, which will heard by the same jury [and begins today]. She faces a maximum 10 years in prison." [Mark Godsey]
From a press release: William Mitchell College of Law is hosting the conference "State-of-the Art Use of Actuarial Instruments in the Forensic Assessment of Sex Offenders," Thursday, October 6, from 9 a.m. to 4 p.m.
Actuarial Instruments are necessary tools in the risk assessment of sexual offenders. It is important for forensic psychologists, attorneys and judges to understand their principles and limitations. This conference will review the currently accepted actuarial instruments and discuss significant factors, such as age, that impact their interpretation.
The conference will feature Dr. Howard Barbaree, professor and head of the Law and Mental Health Program, Department of Psychiatry, University of Toronto. He is also the clinical director of the Law and Mental Health Program, Centre for Addiction and Mental Health. He has devoted much of his professional career to research, teaching and clinical practice related to sexual aggression and sexual deviance. Dr. Barbaree has published numerous journal articles and book chapters on the topic and he is co-editor of the Handbook of Sexual Assault: Issues, Theories, and Treatment of the Offender (Plenum), and The Juvenile Sex Offender (Guildford) and editor-in-chief of the journal Sexual Abuse: A Journal of Research and Treatment.
The conference will also feature moderators Dr. Paul Reitman, who is on the staff of four Twin Cities hospitals where he provides clinical and forensic services, and William Mitchell Vice Dean Eric S. Janus, as well as 14 additional panelists including area lawyers and doctors.
The event costs $125 per person. Register online by filling out the attached form. For more information contact Dr. Paul Reitman at (612) 508-9309.
Application will be made for 5.5 Minnesota Continuing Legal Education credits.
Sunday, September 25, 2005
The New York Times reports that a suspect in a decades-old civil rights killing got the heat turned off by spreading a rumor that he was dead. This is an old trick. There are two cases from Australia. Houstonian Larry Michael Nixon faked his death to avoid investigation of a business scam. An Oklahoman convicted of murder in the 1990s, and now charged with raping a child, unsuccessfully faked his own death to deter investigators. In England, a man on a sex offender registry called police and, using a pseudonym, reported that his true self had been a passenger on a wrecked train, and therefore was probably dead. A Texas woman dug up a corpse to use as a prop in her faked car accident death, so she could flee with her husband who was facing sex charges. Lots of people seem to fake their deaths for life insurance; or to avoid paying their student loans, like this MIT grad (you wouldn't want to just not pay, because that would mess up your credit rating.) The complicated part of these schemes is that it is not clear how often they occur because the successful ones are never discovered--we know about the others because they blew up. Cases like this one, where a ten year old alleged death is reinvestigated, seem rare. [Jack Chin]
|(1)||518||Search and Seizure: Past, Present, and Future |
Orin S. Kerr,
The George Washington University Law School,
Date posted to database: July 14, 2005
Last Revised: July 14, 2005
|(2)||384||The Political Constitution of Criminal Justice |
William J. Stuntz,
Harvard Law School,
Date posted to database: August 14, 2005
Last Revised: August 25, 2005
|(3)||211||Aspects of the Theory of Moral Cognition: Investigating Intuitive Knowledge of the Prohibition of Intentional Battery and the Principle of Double Effect |
Georgetown University - Law Center,
Date posted to database: July 27, 2005
Last Revised: September 14, 2005
|(4)||132||Against Prediction: Sentencing, Policing, and Punishing in an Actuarial Age |
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: July 27, 2005
Last Revised: July 30, 2005
|(5)||121||Appeal Waivers and the Future of Sentencing Policy |
Nancy J. King, Michael O'Neill,
Vanderbilt University School of Law, George Mason University - School of Law,
Date posted to database: August 3, 2005
Last Revised: September 2, 2005
CrimProfBlog is pleased to announce a first: An Op-ed by a reader, exclusive to CrimProf. Margy Love, the former U.S. Pardon Attorney who retired after 20 years at DOJ, offers some insightful analysis of the new national sex offender registry. ***
DOJ National Sex Offender Registry, by Margaret Colgate Love
I have recently seen an article by Regina Schofield, Assistant Attorney General, Office of Justice Programs, announcing the Justice Department's new National Sex Offender Public Registry (NSOPR). The article explains that Attorney General Gonzales believes that "real time access to public sex offender information is one critical resource for Americans to help identify sex offenders beyond their own streets or states." It points out that "the NSOPR currently gives millions of parents, grandparents, and other concerned citizens easy-to-use and free access to information on two out of every five registered sex offenders in the United States." It concludes hopefully that "Thanks to the National Sex Offender Public Registry, they can now take a proactive and meaningful step in protecting a child's life."
This article made me really mad, mostly at those in my old agency who are trying to pass off this half-baked mean-spirited incitement to vigilante justice as a responsible public safety measure.
. . .
Full Text here
From a press release: Students in Professor Ursula Bentele’s Capital Defender and Federal Habeas Clinic are aware of the uphill battle faced by their clients, particularly given the recent restrictions on the federal habeas corpus remedy. It was therefore gratifying for her to receive word in mid-September that a district court granted habeas relief to one of the clinic’s first clients.
Credit for the rare habeas victory is shared by Danielle Feman, ’04, Alex Lesman, ’05, and Alex Riley ’04, who developed the challenging legal theories in the case starting in the fall of 2003. A federal habeas petition is the final opportunity for a defendant to assert that his or her conviction in state court was unconstitutionally obtained. A 1996 statute has made it more difficult than ever to be granted relief in federal court. Students in the clinic work on federal habeas petitions filed by inmates in the Southern and Eastern Districts of New York.
The defendant in the case had been tried and sentenced in absentia. When he was apprehended to start serving the sentence, he sought to appeal the conviction. The state refused to assign counsel to him and dismissed the appeal on the basis that he had been a fugitive. The federal court determined that the state’s failure to allow this indigent defendant to perfect his appeal, with the assistance of counsel, violated clearly established Supreme Court law. The court ordered that the client be released unless within 60 days the state permits the appeal to go forward. “If the trial was unfair, or the evidence of the client’s guilt was not sufficient, he would be entitled to a new trial or to be freed,” Bentele explained. “Of course, if there was no prejudicial error at trial the conviction will be affirmed, but at least a court will have reviewed the case.
“What makes these cases so valuable from a student’s perspective is that the law is incredibly complex,” Bentele said. “Students who work on them get a good grounding in constitutional theory, which will stand them in good stead no matter what area of law they pursue.”