Wednesday, February 2, 2005
CrimProf Ronald F. Wright of Wake Forest has posted Sentencing Commissions as Provocateurs of Prosecutor Self-Regulation on SSRN. The article will be published in May in the Columbia Law Review. Here's the abstract:
This Article examines potential efforts
by sentencing commissions to influence the work of prosecutors,
especially the charges they select and the plea bargains they enter.
The practical objections to prosecutorial guidelines issuing from a
sentencing commission emphasize two problems: the linguistic
impossibility of creating meaningful guidelines and the political
impossibility of promulgating them. But experience in the states casts
doubt on each of these objections. Some states have codified
preexisting prosecutor guidelines, generated by prosecutors themselves,
while other states have prompted prosecutors to develop their own
Prompted self-regulation of prosecutors will prove most effective when the ambitions for guidelines are incremental and when the use of those guidelines is monitored from the outside. Working in tandem, commissions and courts can gradually shift back to prosecutors some of the regulatory burdens of producing uniform sentences, leaving more room for judges to dispense mercy. To reinforce this incremental development, the most important value that prosecutor guidelines should embody is transparency for defendants and for voters.
To obtain the article, click here. [Mark Godsey]
. . . and an illegal firearm on top of the dope. The defendant, Rick Roach, is several days into his second term as DA of five counties in Texas. His secretary has also stated that she has seen him ingest meth. More . . . [Mark Godsey] UPDATE: The've found 35 guns in his home and office. Ascording to the AP, "Federal prosecutor Christy Drake wouldn't discuss whether Roach owned the guns legally, whether they were evidence from criminal cases Roach's office handled, or why Roach had so many guns. "The origin of those guns I can't really comment on, other than to say they traveled in interstate commerce," Drake said." Translation: He's getting charged for the guns. [Jack Chin]
Tuesday, February 1, 2005
NPR reports: "Washington, D.C., saw its homicide rate fall to 198 murders in 2004, down from 248 murders in the previous year. While the nation's capital was among several cities to experience a drop in the annual number of murders, many others did not. D.C. city officials believe their success is a direct result of some new crime-fighting strategies. Two years ago, police Chief Charles Ramsey started targeting specific neighborhoods, called hot spots, with beefed-up patrols and drug SWAT teams. Nationwide, criminologists say, cities that targeted drug dealing and gang warfare have been the most successful at reducing their homicide rates. While there's no way to know for sure all the factors that contribute to a high homicide rate, criminologists say cities that depend too heavily on federal programs, such as the anti-drug program D.A.R.E., seem to fare the worst. Gun buy-back initiatives have also proven largely ineffective."
To listen to the full report from Laura Sullivan, click here. [Mark Godsey]
CrimProf Ric Simmons of Ohio State has published Not "Voluntary" But Still Reasonable: A New Paradigm for Understanding the Consent Searches Doctrine in the Indiana Law Journal. Here's the abstract:
In the wake of the recent Supreme Court case United States v. Drayton, this article dissects the current jurisprudence regarding consensual searches, which seems to be disconnected from the practical reality of a police/civilian interaction. My thesis is that we need a new paradigm for evaluating these searches, both to assist courts in judging the validity of consent, and also to better understand how courts are arriving at the decisions that they make. Under the old paradigm, courts have been using the "voluntariness" paradigm, derived from the Due Process clause, which (in theory) looks to the subjective state of mind of the individual being searched to determine whether the consent was "voluntary."
I argue that this paradigm is clumsy and fails to capture the critical nuances of the interaction between the police and civilians. It is so unworkable that the Supreme Court has already begun using a different test in practice, even as it maintains the rhetoric of "voluntariness." I therefore propose that we adopt a "compulsion" paradigm, based on the reasonableness standard of the Fourth Amendment. Under this new paradigm, the court would conduct a purely objective inquiry into the conduct of the law enforcement official. As part of the inquiry, the court would examine the degree of compulsion that was applied and also evaluate the types of compulsion used by the law enforcement officer. I justify my theory through an examination of the consent searches jurisprudence, a comparison with the voluntary confession jurisprudence, and a review of psychological studies on obedience to authority.
To obtain a copy of the paper, click here. [Mark Godsey]
"Defense lawyers David Lane and Jim Castle asked the jury to acquit the eight of a charge of failing to obey a lawful police order "because it is the right thing to do."
They said the parade celebrated the demise of Native Americans and was ethnically intimidating to all American Indians, especially their children.
Eric Ruderman, a lawyer and jury foreman, said the main reason for the not-guilty verdicts was the jury's finding that the parade contained "strong elements of ethnic intimidation" directed at Native Americans.
"All we heard was that Native Americans definitely felt there was a strong element of ethnic intimidation," Ruderman said.
Ruderman added that if intimidation continues, the parade should no longer be held." [Jack Chin]
A new documentary film has been released titled "Deadline." A review here says "[t]he film chronicles the time leading up to Governor Ryan’s landmark 2002 blanket commutation. Courtroom footage, interviews with the exonerated, their families, organizations for and against capital punishment, and victims’ families, reveal the miscarriages of justice that the system permitted, but also the devastation that those errors, like the crimes themselves, had left in their wake. It contextualizes the debate in history -- the 1972 the US Supreme Court found capital punishment to be a violation of the 8th Amendment of the Constitution (cruel and unusual punishment), but the ban was short-lived, and capital punishment was resumed in 1977 -- and showed that the Governor, a Republican in favor of the death penalty, truly agonized over the decision before him. He met with groups and legislators for and against capital punishment, and reviewed the cases, all the while aware that opposition to the death penalty was unpopular, a political Achilles’ heel belaying to some a softness of crime.
Like the file folders probably crossing the Governor’s desk at the time, the film shifts straight-forwardly from case to case, in a well-produced and highly articulate display of the multiple sides and situations, from Illinois to the whole country, and from over 30 years ago to the Clinton and Bush administrations. Lobbyists lobbied right up to the eve of Ryan’s decision. A petition arrived from all of the Illinois exonerated -- captured in the film as a solemn but ambitions relay march from the state prison to the Governor’s office, in which one man said that 'only through miracles did the truth emerge' bringing justice to the valley in which they walked -- to a spokesman for the Governor. Ryan also met with victims’ families. As the time went on the media speculated one way then another, as the Governor himself said that his own heart went from pro to against as he deliberated." [Mark Godsey]
Monday, January 31, 2005
The Sentencing Project just published a review of the literature on racial dispaority in sentencing. Among the findings:
· Young, black and Latino males (especially if unemployed) are subject to particularly harsh sentencing compared to other offender populations;
· Black and Latino defendants are disadvantaged compared to whites with regard to legal-process related factors such as the “trial penalty,” sentence reductions for substantial assistance, criminal history, pretrial detention, and type of attorney;
· Black defendants convicted of harming white victims suffer harsher penalties than blacks who commit crimes against other blacks or white defendants who harm whites;
· Black and Latino defendants tend to be sentenced more severely than comparably situated white defendants for less serious crimes, especially drug and property crimes.
Studies that examine death-penalty cases have generally found that:
· In the vast majority of cases, if the murder victim is white, the defendant is more likely to receive a death sentence;
· In a few jurisdictions, notably the federal system, minority defendants (especially blacks) are more likely to receive a death sentence.
The Ninth Circuit held last week in U.S. v. Antelope (and here) that the federal sex offender program for convicts on supervised release, which requires participants to disclose past acts of criminal sexual misconduct, violates the self-incrimination clause when it sends a releasee back to prison for refusing to participate and incriminate himself through such disclosures. The court distinguished McKune v. Lile, in which the Supreme Court upheld the taking away of an inmate's prison privileges when he refused to participate in a similar sex offender program prior to release. The 2002 case of McKune was a plurality decision from which it is hard to find a clear holding. Justice Kennedy, writing for 3 other Justices, believed that the prison sex offender program in McKune was permissible in part because it took place in prison, did not impose penalties on "free citizens," and implicated important penalogical goals of the state. Kennedy also argued that the program in McKune simply offered incentives to participate rather than imposed penalties on silence. O'Connor concurred on different grounds, arguing that the case presented a question similar to the "choices inherent in the criminal process" cases like Jenkins, McGautha and Bordenkircher, and that the pressure inherent in McKune's choice to participate in the program--possible loss of prison privileges--was not adequately severe to constitute compulsion in that context. Given that the Ninth Circuit relied solely on O'Connor's concurring opinion in McKune (and argued that the penalty in Antelope--imprisonment--was sufficiently more severe than that in McKune) plus speculation as to the likely positions of McKune's 4 dissenters to reach its result, this case might see action at a higher level. If so, it will be interesting to see if Justice Kennedy and the 3 Justices that joined his McKune opinion believe that a person on supervised release is more like a prisoner or a "free citizen." [Mark Godsey]
The Sixth Circuit held last week in U.S. v. Jenkins, No. 03-3989, that a warrant was not invalid despite the fact that officers obtained it by supplying the magistrate with information obtained through a prior search that violated the Fourth Amendment. The Court began by discussing Murray v. United States, 487 U.S. 533, 541 (1988) as follows:
"According to Murray, a subsequent search pursuant to a warrant would not be an independent source of evidence unearthed by a previous search if the information obtained during the first search was "presented to the Magistrate and affected his decision to issue the warrant." Id. at 542. In Murray, the police illegally searched a warehouse but then prepared a warrantbased only on their observations before the illegal search. Id. at 535-36. The Court remanded the case for determination of whether the warrant for the second search resulted from information independent of the illegal search. Id. at 543-44. A strict application of Murray 's test of whether information from the first search affected the magistrate's decision, without consideration of other authorities and the underpinnings of the Murray reasoning, might well suggest that the district court's suppression of the cocaine was correct. After all, the information from Riolo's unlawful inspection of the bags in Room 127 (as well as from the confidential informant) was presented to the judge at the time the affidavit was presented, and while it is impossible to know whether the oral information "affected" the judge's decision in some way, one would think it likely. Agent Kahler himself testified that he felt that the information the officers told Judge Corrigan affected his decision."
The Sixth Circuit then stated, however, that "for evidence to be inadmissible due to the government's failure to collect it via an independent source, the tainted information presented to the judge must affect the judge's decision in a substantive, meaningful way. Under this interpretation of Murray, the simple fact that an application for a warrant contains information obtained from an illegal search does not by itself signify that the independent source doctrine does not apply. If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry. Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information, would put the police in a worse position than they would have been in had they not presented the tainted information to the magistrate. In addressing an analogous situation, the Supreme Court in Franks v. Delaware, 438 U.S. 154, 171-72, 172 n. 8 (1978), suggested that false or reckless statements in a warrant should be set aside and that the warrant should then be examined to determine "if what is left is sufficient to sustain probable cause." Since "[k]nowingly including a false statement in a warrant affidavit seems the functional equivalent of (if not an even more serious transgression than) including in the affidavit knowledge of facts illegally obtained," see Veillette, then it makes sense to deal with cases such as the present one in the same fashion utilized by the Supreme Court in Franks." [Mark Godsey]
The Institute for Law Teaching at Gonzaga is running a one day conference on "Teaching the Law School Curriculum" at Villanova on Friday, March 11. The conference includes workshops on teaching 15 standard law school courses (including Crim subjects) as well as workshops on exams and assessments, on using technology in and out of the classroom, on collaborative learning, and on reflective learning. Details here. [Mark Godsey]
A California high school coach publicly identified as a molestation suspect but not charged was awarded $4.5 million in a civil suit. A British pathologist is undergoing a disciplinary hearing for concealing evidence in a wrongful conviction case. A Chicago college student was charged with making a false rape allegation. A Canadian pathologist testified in a board of inquiry that pathologists should not appear for the prosecution or defense, but rather as impartial friends of the court. A Washington state firefighter was charged with arson and attempted murder after his house burned and flammable materials appeared on the computer records associated with his Safeway shopper card; charges were dropped when someone else confessed. [Jack Chin]
Sunday, January 30, 2005
From MSNBC.com: "An Idaho man said by government lawyers to be associated with the anti-government militia movement was found guilty Friday of plotting to kill a federal judge, a prosecutor and an IRS agent in retaliation for an earlier criminal case brought against him. A jury in Boise returned a guilty verdict in the trial of David Roland Hinkson, who was accused of offering $10,000 for the murder of the three federal officials, including U.S. District Court Judge Edward Lodge. Prosecutors said he contacted two people between December 2002 and March 2003 to try to arrange for the killings. Hinkson, from east-central Idaho, runs a company called Water Oz, selling dietary supplements and mineral water. The business has earned him millions of dollars. But in the summer of 2000, the IRS began investigating him for failing to file tax returns or pay taxes for his employees. That case ended when he pleaded guilty in May 2004 to tax violations and overstating the benefits of his products. On Friday, the jury found that Hinkson tried to solicit the murders of the judge who handled that earlier case, the assistant U.S. attorney who worked the tax charges and the IRS agent who investigated him." Story . . . [Mark Godsey]