November 21, 2005
New Article Spotlight: The Challenge of a Global Standard of Justice
Suffolk Crimprof Eric Blumenson has posted on SSRN The Challenge of a Global Standard of Justice: Peace, Pluralism, and Punishment at the International Criminal Court. The Abstract:
This article addresses what is often described as the 'peace versus justice' problem, in the context of prosecutorial discretion at the International Criminal Court. The problem typically arises when the threat of prosecution would derail peace negotiations or deter a tyrant from relinquishing power. It already confronts the ICC in its first referral, concerning crimes against humanity committed during an on-going civil war in Uganda, where many victims and their families are imploring the prosecutor to foreswear prosecution. They argue that indictments will deter the rebels from negotiations, and that their traditional restorative justice mechanisms will serve to promote justice and reconciliation far better than prosecutions. ICC decisions on this and other early cases will shape the contours of an emerging standard of global criminal justice.
This article analyzes the conflicting claims of peace, pluralism and punishment in such cases. Among the central questions explored in the article are the following:
(1) Does justice in the aftermath of crime always require prosecution? The answer explores the nature of retributive justice and its relationship to victims of crime.
(2) If justice does require prosecution, does this obligation outweigh all other considerations? The analysis considers three alternative ways of handling a conflict between the obligations of justice and the dire impact fulfilling them would have on third parties, when such is the case. This discussion includes a response to one approach to such conflicts advocated by Profs. Sunstein and Vermeule in their recent argument in favor of capital punishment.
(3) As a global institution, how much deference should the ICC afford to diverse state approaches to the previous two questions? The article suggests that for procedural, substantive, and pragmatic reasons, the Court and its prosecutor should adopt a pluralist philosophy in its charging decisions and complementarity assessments.
Paper available here: http://papers.ssrn.com/paper.taf?abstract_id=834004
Law Schools and Urban Danger
A group has published a list of the most dangerous and least dangerous cities; story here. By my count, the Ten Most Dangerous cities are home to over a dozen ABA accredited law schools. The Ten Least Dangerous cities have a total of two law schools. Perhaps this means that whatever else might induce governments and universities to start law schools, the needs of the criminal justice system are one.
The Ten Most Dangeorus Cities and their Law Schools:
Camden, New Jersey. Law School: Rutgers, Camden
Detroit, Michigan. Law school: Wayne State, University of Detroit-Mercy
St. Louis, Missouri. Law School: Wash U., St. Louis U.
Flint, Michigan. Law School: None
Richmond, Virginia. Law School: U. Richmond.
Baltimore, Maryland. Law Schools: U. Baltimore, U. Maryland.
Atlanta, Georgia. Law Schools: Georgia State; Emory
New Orleans, Louisiana. Law Schools: Loyola, Tulane.
Gary, Indiana. Law School: None.
Birmingham, Alabama. Law School: Samford.
The Ten Least Dangerous Cities:
Newton, Massachusetts. Boston College Law School.
Clarkstown, New York. No Law School.
Amherst, New York. No Law School.
Mission Viejo, California. No Law School.
Brick Township, New Jersey. No Law School.
Troy, Michigan. No Law School.
Thousand Oaks, California. No Law School.
Round Rock, Texas. Law School: U. Texas.
Lake Forest, California. No Law School.
Cary, North Carolina. No Law School.
Texas CrimProf Advocates a More Precise Insanity Defense Standard, Looking at the Andrea Yates Case
CrimProf George Dix of Texas Law at Austin advocates a clarification in Texas law's insanity defense by examining the Andrea Yates case, the case in which Yates, a Texas mother, will be retried for the drowning deaths of her five children. He views the Yates case as a prime example of the legislature's need to define insanity as the mental state in which the defendant could not "appreciate" that his/her actions were "morally wrong" or "legally wrong." Currently, Texas law, like many other states' laws, requires the defendant claiming insanity to prove to a jury that, at the time of the crime, he/she did not "know" that the conduct was "wrong." But unlike many other states' laws, Texas law does not define "know" or "wrong" to guide juries as they deliberate. Dix believes defining "know" and "wrong" is essential for just outcomes in cases involving the insanity defense.
From a Texas Law press release: "No one questions that Yates was seriously mentally ill when she drowned her children in the bathtub of her Houston-area home...The jury in Yates' first trial, however, undoubtedly concluded that she understood in some limited sense that authorities would regard her actions as legally wrong. She took precautions against being interrupted as she carried out her plan. She notified authorities when she completed it. Did she know what she did was wrong? This depends on how one defines "know" and "wrong." Yet we demanded that Yates' jury resolve her case without guiding them on what the law means by these critical terms...
The insanity defense should identify those people who have done terrible things but under such a misunderstanding of the surrounding circumstances that they were not morally to blame for having done so...If Yates were to be retried under the Texas standard as it should be amended, the instructions given to jurors would focus their attention on the real — although difficult — issue: Did Yates, as result of her serious mental illness, have such a distorted perception of the meaning of her conduct that she did not meaningfully appreciate that it was morally wrong?" [Mark Godsey]
Emory Law to Start Two New Clinics; In Search of Directors
"Emory Law School will create two new clinical programs in adult indigent criminal defense and in juvenile justice. These clinics are slated to begin in the Fall Semester 2006. The Criminal Defense Clinic will be developed in coordination with the Office of the DeKalb County Public Defender. Students will work directly with clients and will participate in courses taught by a clinical instructor who will work in the Office of the Public Defender.
The Juvenile Justice Clinic will be a unit of the Law School's Barton Child Law and Policy Clinic. In the new Juvenile Justice Clinic, students will have the opportunity to assist in the direct representation of juvenile clients and will participate in related academic courses led by the clinical instructor.
The law school has begun a search for directors for the new clinics. For more information, or to apply for a position with the criminal justice clinic, contact Professor Robert Schapiro at 404-727-1103 or email@example.com. For information on the juvenile justice clinic, contact Professor Frank Vandall at 404-727-6510 or fvandall(at)law.emory.edu. For naming opportunities or to donate to the clinics, contact Susan Carter at 404-727-0055 or sfcarte(at)law.emory.edu. [Mark Godsey]
Talkleft: Criminal Defense Lawyers Jailed in China
Story here. [Jack Chin]
November 20, 2005
This Week's Top 5 Crim Downloads
|(1)||122||Property Rules and Liability Rules, Once Again |
Keith N. Hylton,
Boston University School of Law,
Date posted to database: October 5, 2005
Last Revised: November 2, 2005
|(2)||108||Home as a Legal Concept |
Widener University - School of Law,
Date posted to database: September 16, 2005
Last Revised: September 16, 2005
|(3)||104||Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness |
Amanda C. Pustilnik,
Covington & Burling,
Date posted to database: August 26, 2005
Last Revised: September 8, 2005
|(4)||88||Separation of Powers and the Criminal Law |
New York University - School of Law,
Date posted to database: September 21, 2005
Last Revised: October 7, 2005
|(5)||66||Terrorism and the New Criminal Process |
John T. Parry,
University of Pittsburgh School of Law,
Date posted to database: September 27, 2005
Last Revised: October 10, 2005
Phone Calls from Phony Cops Get Fast Food Workers to Strip
Someone pretending to be a cop calls an assistant manager of a fast food joint, describes another worker and says she is suspected of theft. The assistant manager is asked to have the employee strip, sometimes worse. This scam has happened dozens of times around the country, and many employees evidently often go along.
"On Nov. 30, 2000, the caller persuaded the manager at a McDonald's in Leitchfield, Ky., to remove her own clothes in front of a customer whom the caller said was suspected of sex offenses. The caller promised that undercover officers would burst in and arrest the customer the moment he attempted to molest her, said Detective Lt. Gary Troutman of the Leitchfield Police Department."
"On Jan. 26, 2003, according a police report in Davenport, Iowa, an assistant manager at an Applebee's Neighborhood Grill & Bar conducted a degrading 90-minute search of a waitress at the behest of a caller who said he was a regional manager -- even though the man had called collect, and despite the fact the assistant manager had read a company memo warning about hoax calls just a month earlier. He later told police he'd forgotten about the memo." [Jack Chin]
Rapper Snoop Dogg Urges Schwarzenegger to Grant Crips Co-Founder Clemency
From LATimes.com: "Rapper Snoop Dogg urged Gov. Arnold Schwarzenegger on Saturday to grant clemency to convicted murderer and Crips co-founder Stanley Tookie Williams so he can continue his work with young people. 'Stanley Tookie Williams is not just a regular old guy, he's an inspirator,' the rapper and former Crips member told a crowd of about 1,000 outside San Quentin State Prison. Williams, 51, is set to be executed Dec. 13. He was convicted in 1979 of murdering four people during two robberies in Los Angeles. He has exhausted his appeals and has asked Schwarzenegger for clemency. Schwarzenegger said this past week that he was "dreading" the decision.
Williams founded the Crips with a childhood friend in 1971 in Los Angeles, and in the following years, the gang battled with its rival, the Bloods, for territory and control of the drug trade. In prison, however, he gained international acclaim for writing children's books about the dangers of gang life. An award-winning television movie starring Jamie Foxx, "Redemption," was based on his life. Snoop Dogg, 33, whose real name is Calvin Broadus, said Williams inspired him to work with young people. The rapper said he was once a gang member and now does youth outreach activities, including running a football league for youngsters. 'I didn't get this from somebody that was on the streets. I got this from Stanley Tookie Williams, a brother that was locked up on death row,' he said, wearing a white T-shirt with huge black letters that said savetookie.org. 'He inspired me to want to do something positive with my life and to go touch the kids.' The rapper had wanted to visit Williams on death row, but his application was denied by prison officials because of his criminal record. Snoop Dogg has been arrested several times for weapons and drug-related offenses, according to the California Department of Corrections and Rehabilitation.
Organizers played a new Snoop Dogg song called "Real Soon," which promotes Williams' advocacy work. Todd Chretien, who works with the Campaign to End the Death Penalty, an advocacy group that helped organize the rally, implored the governor to grant clemency. 'There is no reason on earth to kill him, and there is every reason to keep him alive,' he said." [Mark Godsey]
Texas: School Bus Driver Charged with Felony Murder for Child's Death
South Texas CrimProf Susan Crump (pictured) explains the Harris County, Texas Prosecutor's decision to charge a school bus driver with felony murder for a child's death that resulted from a road accident. The bus driver, Jerry Michael Cook, was driving his school bus a block away from the school when he hit and killed 9 year-old Ruth Young, a fourth-grader at the school. Cook failed to yield the right of way to the girl as she was riding her bike.
From Chron.com: The Houston Chronicle: [Crump said Harris County prosecutor Warren Diepraam] "is well within the law to file a felony murder charge against the bus driver, but called the move 'unusual.'...Crump said the law identifies various ways in which murder is committed in Texas. The felony murder with which Cook is charged occurs when a person commits an underlying felony (injury to a child) and the person commits a clearly dangerous act to human life that causes the death of the victim...Cook also can be charged with criminal negligent homicide because the charge is not included as a lesser offense to felony murder under the penal code.
Under the penal code, a person commits criminal negligent homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual. Criminal homicide is listed as murder, capital murder, manslaughter or criminally negligent homicide. Most bus drivers involved in the deaths of students in recent years were charged with criminal negligent homicide, although the charges later were dismissed by grand juries. A felony murder charge [in Texas] is punishable by up to life in prison and a $10,000 fine. Criminal negligent homicide is a state jail felony punishable by six months to two years in jail and a $10,000 fine...
Diepraam said he chose to seek a murder charge because the law provides extra protection for children. Diepraam says the Cook case is different from the other bus fatality cases. 'Generally speaking it's a fact-based situation. If it's something where the kid jumps in front of the school bus driver or something that is unexpected or purely an accident — it doesn't involve negligence or recklessness on the part of the bus driver — I wouldn't expect charges to be filed,' Diepraam said. 'There are many different factors that are alleged in this one.' The prosecutor said Cook committed the felony offense of injury to a child by negligently and recklessly causing Ruth's death. Cook, he said, by failing to maintain a proper lookout for Ruth and by failing to yield the right of way to her caused the girl's death. The bus, he said, constitutes the use of a deadly weapon." [Mark Godsey]
The Juror and the Convict: Felony Murder in New York
A juror who convicted two men of felony murder for a notorious double killing above the Carnegie Deli in New York is now outraged that the one of them she believed to be far less culpable got the same "forever and a day" sentence as the real bad actor. The juror has now befriended the less culpable defendant and is fighting for justice. Brooklyn CrimProf and Legal Aid Society of New York attorney David Crow represents the convict. [Jack Chin]