February 12, 2005
CrimProf Spotlight: Notre Dame Law's Richard W. Garnett
"I grew up in Anchorage, Alaska, and spent most of my school years as the only Roman Catholic at a small, non-denominational Protestant school. After switching to and graduating from, a large public high school, I went to college at Duke University, where I studied philosophy, played guitar, and watched a lot of basketball. During my senior year, I had a chance to read and write about Liberation Theology, which inspired an interest in the work of Latin American Jesuits and, in turn, the decision to do a year's worth of volunteer service in San Francisco with the Jesuit Volunteer Corps. During that year, I worked with a non-profit organization on a number of criminal-justice issues and also developed an interest in the capital-punishment debate. This experience prompted me, once I arrived at Yale Law School, to focus on similar matters in my academic work and in my summer employment, and I was lucky to have the chance to work with both the Arizona Capital Representation Project and the Federal Public Defender's office in Phoenix.
After graduation, I worked for two years as a law clerk, first for Judge Richard S. Arnold, an inspiring man who passed away recently, and then for Chief Justice Rehnquist. Next, I practiced law for two years with a small firm in Washington, D.C., and was able to work on a wide range of interesting religious-freedom and criminal-defense cases while learning from brilliant, decent people. In 1999, I joined the faculty at Notre Dame Law School, where I teach courses on criminal law and procedure, the First Amendment, and capital punishment. I have also written a few amicus curiae briefs in criminal cases before the Supreme Court, and served as co-counsel to a death-row inmate on whose case I had worked years before as a first-year law student.
In my research and writing, I am trying to (among other things) integrate my religious commitments, my interest in law-and-religion questions, and my criminal-defense experiences. For example, I am exploring the implications for the death-penalty debate, and for punishment theory more generally, of a religiously grounded "moral anthropology. That is, I am trying to work out whether and how our account of what the human person is might shape ourcriminal-law doctrines, arguments, and conclusions.
Garnett has published the following articles: The Theology of the Blaine Amendments; The New Federalism, the Spending Power, and Federal Criminal Law; Dow Jones & Company Inc v Gutnick: An Adequate Response to Transnational Internet Defamation?; Assimilation, Toleration, and the State's Interest in the Development of Religious Doctrine; and Perils of Publishing on the Internet: Broader Implications of Dow Jones v Gutnick.
Each Saturday, CrimProf Blog will spotlight on one of the 1500+ criminal justice professors in America's law schools. We hope to help bring the many individual stories of scholarly achievements, teaching innovations, public service, and career moves within the criminal justice professorate to the attention of the broader criminal justice community. Please email us suggestions for future CrimProf profiles, particularly new professors in the field.
Conference: Wisconsin Hunter Shootings
Fri • 18 Feb 2005 [6:00 PM - 8:00 PM]
In A/P/A Studies' typical fashion for shining a critical eye on current affairs, we now present a forum that examines the surrounding circumstances of the recent Wisconsin hunter shootings where one hunter killed six others. The lone shooter was Hmong. The victims were white.
Certainly, no one condones the actions of the shooter, Mr. Chai Soua Vang. However, A/P/A Studies firmly believes this case and the tragic murders and woundings deserve serious and fair examination. We also believe it important to express national support for the Upper Midwest Hmong community during the difficult months to come. A/P/A Studies' central goal is to promote cross-cultural communication and understanding.
* Minnesota StateSenator Mee Moua
* Ms. Ka Vang, Minnesota Women's Press columnist and community activist
* Prof. Frank Wu, lawyer, scholar, and Dean of Wayne State University Law School
Prof. Lok Siu, A/P/A Studies, NYU
Speakers will be commenting on the case and framing the incident within larger Asian American and profiling contexts and issues. Questions they will address include:
* What is the status of the case?
* Has the media fully examined the context of the murders?
* What are the Hmong community's perspectives?
* What are the experiences of the Hmong community in the upper Midwest?
* What have been past attitudes and actions of Euro-American hunters towards indigenous American Indians, Hmong, and others?
New Crime and Investigation Channel to Debut on Cable
Can't get inough Cold Case Files or Investigative Reports? A&E is planning a 24 hour cable channel called Crime and Investigation to satisfy this market. Story here. [Jack Chin]
New ABA Report on Crisis in Criminal Defense
Taken from an ABA press release: A new report released today by the American Bar Association Standing Committee on Legal Aid and Indigent Defendants finds that 40 years after the landmark Supreme Court decision in Gideon v. Wainwright, which established the constitutional right to counsel in state criminal proceedings, the American legal system still fails to protect the rights of the nation’s poorest defendants by not providing properly trained and prepared defense counsel. These failings largely stem from inadequate funding of indigent defense systems nationwide, and result in the risk of wrongful convictions. The report, “Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice,” comes on the heels of President Bush’s State of the Union address, in which he announced plans for expanding the use of DNA evidence to prevent wrongful conviction, as well as a proposal to fund special training for defense counsel in capital cases. But as the ABA report makes clear, effective defense is linked to adequate funding of complete defense systems, not only in providing special training in a specific area.
The report culminates a year-long series of public hearings to examine whether the promise of the Gideon decision is being met. It has not been approved by the ABA’s policy-making House of Delegates, and its recommendations do not represent official policy of the association unless otherwise stated in the report. “Forty years after the Gideon decision, indigent defense in the United States is mired in a state of crisis,” said Bill Whitehurst, chair of the Standing Committee on Legal Aid and Indigent Defendants. “After holding year-long hearings in 2003 involving witnesses from 22 states, and then analyzing the extensive testimony we collected, we are troubled to find that nationwide most indigent defense systems are woefully inadequate. This is primarily due to a lack of resources, training, and overwhelming case loads. For poor people, this means they are at constant risk of being wrongfully convicted.” The report notes that in recent years mounting evidence of wrongful convictions proves that the phenomenon is much more common than once believed, with one study putting the number potentially as high as 10,000 annually nationwide. While there are many reasons why innocent people are convicted, the best defense against such miscarriages of justice is effective, well-trained defense lawyers.
In addition to its extensive findings, the report makes a number of recommendations on how the country can improve its indigent defense systems. Chief among the recommendations is the call for states to increase funding for indigent defense to a level that ensures uniform quality legal representation, and for the federal government to financially support the provision of indigent defense services in state courts as well. “Effective defense is inextricably linked to adequate funding,” said Whitehurst. “Without exception, witnesses from each of the 22 states examined in these hearings reported grave inadequacies in the available funds and resources for indigent defense.”
The report finds that:
* Lawyers who provide representation in indigent defense systems sometimes are unable to furnish competent representation because they lack the necessary training, funding, time and other resources;
* Too often lawyers are not provided to defendants in proceedings in which a right to counsel exists. Prosecutors often seek to obtain waivers of counsel and guilty pleas from accused people without representation, while judges accept and on occasion encourage waivers of counsel that are not knowing, voluntary, intelligent, and on the record;
* Indigent defense systems often lack basic oversight and accountability;
* Reform efforts have been most successful when they represent a broad spectrum of approaches, services and interests;
* Model approaches to providing indigent defense services do exist in the United States, but they often are not adequately funded and are difficult to duplicate without substantial financial support.
To obtain the report, click here. [Mark Godsey]
The Best LSAT Prep?
The Volokh Conspiracy has asked how prospective law students can best prepare for the LSAT. More than 30 students and others have weighed in with their recommendations here. [Mark Godsey]
February 11, 2005
"Mr. Bean" opposes Anti-Bias Legislation
Rowan Atkinson, British TV's beloved Mr. Bean, fought for a meansure to eliminate a hate crime provision from the law, on the ground that it could criminalize the making of jokes. However, the efforts of opponents of the law got the language changed; instead of prohibiting "racial or religious hatred" it now applies to "hatred against persons on racial or religious grounds". Radio interview here. [Jack Chin]
New Article Spotlight: Does Criminal Law Deter?
CrimProf Paul Robinson of Penn and John Darley of Princeton have posted Does Criminal Law Deter?: A Behavioral Science Investigation on SSRN. The article was recently published in the Oxford Journal of Legal Studies. Here's the abstract:
Does criminal law deter? Given available
behavioral science data, the short answer is: generally, no. The
behavioral sciences increasingly call into question the assumption of
criminal law's ex ante influence on conduct. Potential offenders
commonly do not know the legal rules, either directly or indirectly,
even those rules that have been explicitly formulated to produce a
behavioral effect. Even if they know the rules, the cost-benefit
analysis potential offenders perceive - which is the only cost-benefit
analysis that matters - commonly leads to a conclusion suggesting
violation rather than compliance, either because the perceived
likelihood of punishment is so small, or because it is so distant as to
be highly discounted, or for a variety of other or a combination of
reasons. And, even if they know the legal rules and perceive a
cost-benefit analysis that urges compliance, potential offenders
commonly cannot or will not bring such knowledge to bear to guide their
conduct in their own best interests, such failure stemming from a
variety of social, situational, or chemical influences. Even if no one
of these three hurdles is fatal to law's behavioral influence, their
cumulative effect typically is.
Obtain the paper here. [Mark Godsey]
Georgia Judge Orders Sterilization of Mother Who Killed Her Child
From MSNBC.com: "A Georgia judge ordered a mother of seven who pleaded guilty to killing her 5-week-old daughter to have a medical procedure to prevent her from having more children. Carisa Ashe was charged with murder and faced life in prison if convicted. After two days of trial, Ashe, 34, admitted to voluntary manslaughter. As a condition of her sentence, she has 90 days to get a tubal ligation or prosecutors can reinstate the murder charge, Fulton County Superior Court Judge Rowland Barnes said in an order issued Tuesday.
According to prosecutors, Destiny Ashe had been shaken and hit so badly her brain swelled and hemorrhaged. She died Dec. 16, 1998. The mother’s remaining children — ages 1 to 16 — are with relatives or in foster care, District Attorney Paul Howard said Wednesday. 'We just looked at the circumstances and said there’s got to be an end to this,' Howard said. 'She’s still at an age where she could continue to have children. We thought this might be the right thing to do.' Attorney Shannon Weathers, who represents Ashe, did not immediately return a telephone call seeking comment. A tubal ligation is a surgical sterilization technique for women in which the fallopian tubes are closed or tied. Medicaid is covering the cost of the operation, Howard said. Howard said that the court is leaving the decision of whether Ashe will be able to regain custody of her other children to the Division of Family and Children Services. Though extreme, similar sentences have been imposed elsewhere in the country." [Mark Godsey]
February 10, 2005
BREAKING NEWS: Lynne Stewart Convicted
If this is a Crime, I want to be Guilty: Kissing in the First Degree
As Indonesia reforms its criminal law to be more in conformity with the Muslim majority, public kissing is to be added to the list of offenses. The penalty is up to 10 years in prison and a $33K fine. In other decency news, the Virginia bill criminalizing hip-hop style droopy pants died in the senate after passing the house. And in the Philippines, a kissing festival is in the works. [Jack Chin]
Webcast: Computer Search Symposium
Webcast link available here.
University of Mississippi School of Law, Thursday, February 17, 2005.
Symposium: The Search and Seizure of Computers and Obtaining Electronic Evidence
8:30 – 8:35 a.m. CST Introduction
●Thomas K. Clancy, Director, National Center for Justice and the Rule of Law, and Visiting Professor of Law
8:35 – 9:30 a.m. The Fourth Amendment in an Era of Ubiquitous Technology
●Susan M. Brenner, NCR Distinguished Professor of Law & Technology, University of Dayton School of Law
9:40 – 10:30 a.m. The Warrant Process in an Era of Digital Evidence
●Orin S. Kerr, Associate Professor of Law, George Washington University Law School
10:40 – 11:30 a.m. Transaction Surveillance by the Government
●Christopher Slobogin, Stephen C. O’Connell Chair, Professor of Law, Fredric G. Levin College of Law, University of Florida
11:30 a.m. – 12:30 p.m. Panel Discussion
12:30 – 12:40 p.m. Evaluations and Wrap-Up
New Study Shows Juveniles on Death Row Suffer From Serious Mental Problems
From the DPIC: "A recent study of 18 juvenile offenders on death row in Texas found that nearly all participants experienced serious head traumas in childhood and adolescence, came from extremely violent and/or abusive families, had one or more severe mental illnesses, and had signs of prefrontal brain dysfunction. The study, conducted by Dr. Dorothy Otnow Lewis of Yale along with other experts, suggests that most of the juvenile offenders on America's death rows suffer from serious conditions which 'substantially exacerbate the already existing vulnerabilities of youth.' In the study, Dr. Lewis and her colleagues reviewed all available medical, psychological, educational, social, and family data for each participant to clarify the ways in which these various aspects of development may have diminished a juvenile offender's judgment and self control." Obtain full report here. [Mark Godsey]
The study's findings are similar to earlier research conducted by Dr. Lewis in 1988. Her work was cited in an amicus brief filed last year by the Juvenile Law Center and more than 50 other organizations in support of juvenile offender Christopher Simmons. In his case, Roper v. Simmons, the Supreme Court will rule on the constitutionality of executing juvenile offenders. A ruling is expected before July 2005. The article regarding Dr. Lewis's latest study,"Ethics Questions Raised by Neuropsychiatric, Neuropsychological, Educational, Developmental, and Family Characteristics of 18 Juveniles Awaiting Execution in Texas," was recently published in the Journal of the American Academy of Psychiatry and the Law. (32 American Academy of Psychiatry and the Law 408 (December 2004)). See Juvenile Death Penalty and Resources. [Mark Godsey]
Arizona Bills Feds For Cost of Incarcerating Convicted Illegal Aliens
From the Seattle Post-Intelligencer: "Arizona Gov. Janet Napolitano has billed the federal government for nearly $118 million in unreimbursed costs for imprisoning criminal illegal immigrants. If the federal government doesn't pay, it should take custody of approximately 3,600 illegal immigrants in state prisons, Napolitano said in a letter sent last week to U.S. Attorney General Alberto Gonzales. 'This is just wrong,' Napolitano said in a statement Tuesday. 'Arizona has held up its end of the bargain, and has taken these criminals off the streets. Yet the federal government has abandoned its job by refusing to pay for them.'" Full story . . . [Mark Godsey]
Police Back Study Saying That Preschool is Best Crime Preventer
From ABC news: "The call to make preschool available to
more children is getting a boost from police chiefs throughout
California, who say it is one of the greatest crime-fighting tools they
have seen. The chiefs cited statistics from a recent study done by the group Fight
Crime: Invest in Kids which claims that children left out of preschool
are twice as likely to become career criminals. The study also found that 76 percent of publicly funded preschools in
California have waiting lists to get in. In Sacramento County only 44
percent of the eligible children are enrolled, which is under the state
average. The bottom line, according to the police chiefs and many educators, is
that the cost for law enforcement to deal with criminal behavior later
is a considerably more expensive than spending the money years earlier
for pre-school programs. The study said that for every dollar spent on
pre-school programs, communities save up to $17 later in the cost of
welfare and crime. 'We need to work on the prevention side of law enforcement,' said
Sacramento Police Chief Albert Najera. 'The smart way of approaching
this, the most economic way of approaching this is through the quality
preschool education.'" [Mark Godsey]
New Mexico Considering Prohibiting Immigration Enforcement by State Authorities; Arizona Allows Undocumented Status to be Aggravator for Sentencing
A member of the New Mexico Legislature introduced a bill prohibiting state law enforcement officers from enforcing federal immigration laws. The policy is designed to encourage noncitizens to report crimes and cooperte with local police wihtout fear of being deported.
Meanwhile, the Arizona Court of Appeals held that a sentence for a non-immigration crime may be enhanced based on the offender's status as an undocumented immigrant. The defendant, convicted of aggravated DUI, was sentenced to 4.5 years instead of the presumptive 2.5. Story here, opinion here.[Jack Chin]
February 9, 2005
New Article Spotlight: The Challenge of Motive in the Criminal Law
CrimProf Elaine Chiu of St. John's has posted the above-titled article on SSRN. Here's the abstract:
This article builds on recent
discussions amongst criminal law scholars on the role that motive
should play in the criminal law. It advocates for greater consideration
of a defendant’s motive in all critical decisions of the criminal
justice process and offers concrete guidelines. Unlike many other
articles that focus on euthanasia or hate crime, this one takes on the
simple street sale of drugs and an unusual defense known as the agency
defense to demonstrate how the criminal law can better accommodate
motive. Created to avoid the harsh jail terms imposed on convicted drug
dealers, the agency defense pretends that steerers who steer customers
to drug dealers are the purchasing agents of the customers. As agents,
they avoid criminal liability for the sale of drugs. Steerers, though,
are not agents; instead, they are commonly drug addicts themselves who
support their addictions by working as steerers. Instead of using a
legal fiction like agency, this article proposes that the criminal law
honestly and directly accommodate the true motive of steerers to
satisfy their drug addictions. Addiction is admittedly problematic as a
motive because of its low provability and low moral potency. One
acceptable accommodation may be to mandate that judges simply consider
whether drug offenders suffer from addictions in determining the
appropriate sentence. Aside from this consideration, not every
defendant will warrant an actual reduction in sentence. That would be
up to the discretion of the judge.
To obtain the paper, click here. [Mark Godsey]
Montana Grand Jury Hands Down Significant Environmental Indictments
From Mineweb.net: "In what may be one of the most significant environmental criminal indictments in U.S. history, a federal grand jury in the District of Montana has charged W.R. Grace and seven current and former executives with endangering the residents of Libby, Montana, with its vermiculite mining operations, and concealing information regarding the health affects of its asbestos mining. The federal government asserts that ore from the site was contaminated with asbestos fibers, which were spread throughout the town as the ore was mined and processed. It is estimated that 1,200 residents of Libby have suffered from some kind of asbestos-related abnormality. Libby's lung cancer rate is 30% higher than expected when compared with other areas of Montana and the U.S., according to the indictment. Local residents have clamed nearly 200 deaths on the former vermiculite mine, which W.R. Grace bought from Zonolite in 1963. Doctors and residents claimed at least another 375 people have been diagnosed with terminal illnesses. 'A human and environmental tragedy has occurred in Libby,' declared William W. Mercer, U.S. Attorney for the District of Montana. 'This prosecution seeks to hold Grace and its executive responsible for the misconduct alleged.'
A U.S. EPA special agent called the charges 'one of the most significant environmental indictments in our history.' In the 10-count indictment, the defendants are also accused of obstructing the government's cleanup and wire fraud, according to a news release issued Monday by the U.S. Department of Justice." Full story . . . [Mark Godsey]
Booker Causes Problems On the Front Lines
Law.com has an article here about the problems prosecutors and defense attorneys are facing in their active cases in light of the Supreme Court's recent Booker decision. [Mark Godsey]
Former MI-5 Chief opposes Using Spy Evidence in Court
A former chief of the British intelligence agency MI-5 has come out against using secretly obtained evidence in criminal prosecutions. He argues that admitting the evidence creates too many risks of exposing secret intestigative techniques. [Jack Chin]
Hate Crime Legislation Criticized in NH; Gaining in Utah
In New Hampshire, the legislature is considering eliminating special penalties for hate crimes. Story here; editorial here. Meanwhile, in Utah, the legislature is considering adding bias penalties. Kentucky and Montana are considering strengthening existing law. Here's an article about Death on the Fourth of July, a book about three minority males in Maryland, one of whom, in 2000, killed a caucasian male, a member of a group taunting them. The killer was tried for murder and acquitted. [Jack Chin]