Tuesday, October 31, 2006
Aspiring CrimProf Corey Yung has recently developed a new Criminal Blog called "Sex Crimes." The blog is devoted to the criminal laws regulating and punishing sex offenders.
The goals of the blog are to:
(1) compile news and legal developments about the criminalization and punishment of sex offenses in the United States.
(2) offer legal opinions about developments in the laws regulating and punishing sex crimes.
(3) provide a resource for people doing research and/or writing about sex crimes.
One of the most significant developments related to the subject matter of this blog is the growing use of residency and work restrictions to prevent sex offender recidivism. This is also the scholarly area in which Yung is currently writing. As a result, this will be one of the primary subjects focused on in posts.
Check it Out . . . [Mark Godsey]
Question Presented: (1) Whether, in direct conflict with opinions of the 2nd, 6th, 7th and 10th circuits, the 9th Circuit erred in holding that the Supreme Court's 2004 decision in Crawford v. Washington regarding the admissibility of testimonial hearsay evidence under the 6th Amendment, applies retroactively to cases on collateral review? (2) Whether the 9th Circuit's ruling that Crawford applies retroactively to cases on collateral review violates the Supreme Court's 1989 ruling in Teague v. Lane? (3) Whether, in direct conflict with opinions of the 4th and 7th circuits, the 9th Circuit erred in holding that 28 U.S.C. sec. 2254(d)(1) and (2) adopted the Teague exceptions for private conduct which is beyond criminal prosecution and watershed rules? Details. . . [Mark Godsey]
New Article Spotlight: Toward an International Criminal Procedure: Due Process Aspirations and Limitations
From SSRN.com: University of North Dakota School of Law CrimProf Gregory Gordon recently published "Toward an International Criminal Procedure: Due Process Aspirations and Limitations." Here is the Abstract:
The breathtaking growth of international criminal law over the past decade has resulted in the prosecution of Balkan and Rwandan mass murderers, the development of a substantial body of atrocity law jurisprudence and the creation of a permanent International Criminal Court with jurisdiction over genocide, crimes against humanity, and war crimes.
The growth of international criminal procedure, unfortunately, has not kept pace. Among its shortcomings, critics have pointed to lengthy pre-trial detention without a real possibility of provisional release, the use of affidavits and transcripts instead of live witnesses at trial, the absence of juries, and the right of prosecutorial appeal. Existing literature has pointed out these deficits but has failed to offer a systematic or comprehensive explanation for them. While such literature is helpful in identifying the problem, it has failed to provide a conceptual framework necessary for formulating solutions.
This article constructs such a framework and uses it to provide a starting point for expanding international due process protections. It contends that three separate phenomena contribute to the restriction of international due process growth: (1) fragmentation of enforcement; (2) integration of conflicting legal systems; and (3) gravity of the crimes involved. It also analyzes the interplay among these three restricting phenomena and argues that any future growth of due process will hinge on efforts to achieve greater degrees of structural globalization, procedural hybridization, and transnational public awareness. [Mark Godsey]
Monday, October 30, 2006
Questions presented: (1)Whether the one-year statute of limitations period of the Antiterro rism and Effective Death Penalty Act (AEDPA) denies habeas relief? (2) Does the confusion around the statute of limitations --as evidenced by the split in the circuits -- constitute an "extraordinary circumstance," entitling a defendant to equitable tolling during the time when his claim is being considered by the U.S. Supreme Court on certiorari?
Details. . . [Mark Godsey]
From FBI.gov: The FBI reported today that 55 law enforcement officers were feloniously killed in the line of duty last year; 67 officers died in accidents while performing their official duties; and 57,546 officers suffered assaults while on duty.
The deaths occurred in 24 states and Puerto Rico. The number of officers feloniously killed in 2005 decreased by 2 compared with the 2004 figure (57 officers). A 5-year comparison shows a decrease of 15 line-of-duty deaths compared with the 2001 number (70 officers) and a decrease of 6 compared with the 1996 figure (61 officers).
Of the officers feloniously killed, 15 were handling traffic pursuits or traffic stops. Eight of the slain officers were handling arrest situations, and another 8 were ambushed. Seven of the slain officers were answering disturbance calls, and another 7 were investigating suspicious persons. Of the remaining 10 officers who were feloniously killed in the line of duty, 4 were pursuing investigative activities, such as surveillance; 3 were in tactical situations; 2 were handling mentally deranged persons; and 1 had custody of a prisoner for transport.
An analysis of the data by region showed that 28 of the felonious deaths occurred in the South, 10 in the West, 10 in the Midwest, and 5 in the Northeast. Two of the deaths took place in Puerto Rico. Law enforcement agencies identified 57 alleged assailants in connection with the 55 felonious line-of-duty deaths. All of the assailants were male, and 54 of them had previous criminal arrest records.
Get Report. . . [Mark Godsey]
CrimProf David Steinberg Comments on New Law Allowing Sexually Violent Predators to Remain Indefinitely Hospitalized
From signonsandiego.com: Thomas Jefferson School of Law CrimProf David Steinberg comments on the legal controversy emerging over modifications to a California state law allowing sexually violent predators to be committed indefinitely at mental hospitals after they've served their prison terms.
On Sept. 20, Gov. Arnold Schwarzenegger signed Senate Bill 1128, which removed provisions in the original laws requiring predators to have a trial every two years to determine whether authorities can continue to confine them at the hospitals. Such proceedings are usually referred to as recommitment hearings.
The question remains: Can a person's current two-year commitment term at a state hospital be automatically converted into an indefinite term under the modified law?
“I suspect the answer is no,” said CrimProf Steinberg. “To do so would be a taking of their liberty without due process.”
Sexually violent predators are a special classification of sex offenders under the new law. Officials must document two or more violent sex crimes – such as rape, sexual assault or child molestation – and a diagnosis of a mental disorder making future crimes likely. Rest of Article. . . [Mark Godsey]
Sunday, October 29, 2006
Questions presented: (1) Whether satisfaction of the Prison Litigation Reform Act’s exhaustion requirement is a prerequisite to a prisoner’s federal civil rights suit such that the prisoner must allege in his complaint how he exhausted his administrative remedies (or attach proof of exhaustion to the complaint), or alternatively, whether non-exhaustion is an affirmative defense that must be pleaded and proven by the defense? (2) Whether the PLRA requires a prisoner to name a particular defendant in his or her administrative grievance in order to exhaust his or her administrative remedies as to that defendant and to preserve his or her right to sue them? (3) Whether the PLRA prescribes a “total exhaustion” rule that requires a federal district court to dismiss a prisoner’s federal civil rights complaint for failure to exhaust administrative remedies whenever there is a single unexhausted claim, despite the presence of other exhausted aims? Details. . . [Mark Godsey]
From LATImes.com: Lawyers for the state Legislature said Thursday that government contracts set to ship hundreds of inmates to four private prisons outside California beginning next month were unconstitutional.
The opinion by the Legislative Counsel, a nonpartisan legal office that provides policy advice to lawmakers, casts a legal shadow over Gov. Arnold Schwarzenegger's plan to relieve the prison crowding crisis by housing some inmates out of state in lockups run by private firms.
The opinion said that, with certain exceptions, the state may not contract out services that have traditionally been performed by public employees.
But corrections spokesman Oscar Hidalgo defended the contracts, saying that "obviously we looked at all the legal implications — including constitutionality — before moving forward with this."
Rest of Article. . . [Mark Godsey]
|(1)||195||The Fourth Amendment in Cyberspace: Can Encryption Create a Reasonable Expectation of Privacy? |
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: September 4, 2006
Last Revised: September 5, 2006
|(2)||139||Therapeutic Jurisprudence and Readiness for Rehabilitation |
David B. Wexler,
University of Arizona - James E. Rogers College of Law,
Date posted to database: September 8, 2006
Last Revised: September 14, 2006
|(3)||79||Towards a Common Law Originalism |
Bernadette A. Meyler,
Cornell University - School of Law,
Date posted to database: August 22, 2006
Last Revised: October 12, 2006
|(4)||55||Systemic Changes that Could Reduce the Conviction of the Innocent |
Arnold H. Loewy,
University of North Carolina at Chapel Hill - School of Law,
Date posted to database: August 29, 2006
Last Revised: August 29, 2006
|(5)||52||The Fourth Amendment: Internal Revenue Code or a Body of Principles? |
Stephen A. Saltzburg,
George Washington University School of Law,
Date posted to database: August 29, 2006
Last Revised: September 14, 2006
Complaint Against Alleged Sunglass Stealing Detective will Not be Made Public Without Probable Cause
From boston.com: Boston University School of Law CrimProf David Rossman discusses the fact that the complaint against a homicide detective who allegedly stole a pair of sunglasses from a boutique will not become public unless a Boston Municipal Court clerk finds probable cause for the charge.
"As a matter of routine this is the way police treat matters of larceny dealing with less than eye-popping amounts," said Rossman.
Rossman said that while probable cause is a low standard, court clerks sometimes do not find it in cases that appear to warrant charges. He cited the case of Cambridge City Councilor Anthony D. Galluccio, who was not criminally charged by Boston Municipal Court Clerk Magistrate Daniel J. Hogan in April despite testimony from three witnesses who said the councilor appeared to be driving drunk in December when he was involved in a four-car crash, and by two police officers who said Galluccio was so disruptive that he had to be restrained. Rest of Article. . . [Mark Godsey]
Saturday, October 28, 2006
"Reconstructing the Fourth Amendment is a remarkable scholarly accomplishment. It presents one of the most radical challenges to standard constitutional thinking--not just about searches and seizures but also about the interpretation of the Fourteenth Amendment as a protection of individual rights--in recent literature. Andrew Taslitz stakes out a radical and compelling position on a pressing contemporary issue--the protection of individual privacy against government invasion--and does so on impeccably researched and intellectually conservative grounds. It is a must read."
—H. Jefferson Powell, author of A Community Built on Words: The Constitution in History and Politics
"Taslitz's analysis provides a unique vision of the Fourth Amendment's purpose: to tame political violence from governmental officials, while forcing officials to treat each individual with respect and dignity. Taslitz's research on the search and seizure practices of Southern states during Reconstruction is illuminating and strengthens his thesis that respect for the individual lies at the core of the Fourth Amendment."
—Tracey Maclin, Professor of Law, Boston University School of Law
"Fourth Amendment scholarship has hitherto emphasized the amendment's background and gestation, i.e., the period before its inception in 1789. Taslitz, however, has removed a critical gap in that scholarship by illuminating the amendment's development after 1789, through the ante-bellum and Reconstruction periods, until 1868. Taslitz breaks new ground by exploring the Fourth Amendment's connections with political violence and slavery. He introduces readers to the interpretative diversity of and among scholars who debate the amendment's original and current contents."
—William Cuddihy, author of The Fourth Amendment: Origins and Original Meaning, 602-1791
The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror.
Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791—born in political struggle between the English and the colonists—served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic.
With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police. Get the Book. . . [Mark Godsey]
Friday, October 27, 2006
This week the CrimProf Blog spotlights Saint Louis University School of Law CrimProf Stanislaw Frankowski.
A well-respected authority on comparative law, Stanislaw Frankowski has authored and co-authored numerous articles and books — in English and in Polish — on subjects ranging from abortion and protection of the human fetus, to pre-trial detention, to the death penalty in postcommunist Europe. His book, Legal Responses to AIDS in Comparative Perspective, with 10 chapters written by legal scholars from five continents, is considered by many to be the most comprehensive review of legal responses to HIV/AIDS to date.
Professor Frankowski spent 2002 and 2003 on sabbatical completing the book, Introduction to Polish Law, and translating the Polish penal code into English.
Frankowski taught law at the University of Warsaw for nearly 20 years before martial law was imposed in 1981. He came to the United States and taught at the University of Santa Clara School of Law. He joined Saint Louis University School of Law in 1983. In 1992, he co-founded the School’s Center for International and Comparative Law. Through his efforts, the School’s law library shelves a premier collection of Polish legal publications that facilitate both the tracking of legal changes in Poland and current legal information for those interested in doing business in his homeland.
“Law doesn’t function in isolation,” Professor Frankowski says. “It’s grounded in politics and societies. It’s part of the larger picture, which comes out clearly when one adopts a comparative approach. Such an approach provides the most varied and enriching grasp of the spirit of the of the law.”
Professor Frankowski has been a fellow at the Max-Planck-Institute of Foreign and International Criminal Law in Germany and at the Criminal Law Education and Research Center at New York University School of Law. He has been a guest lecturer in many countries, including Germany, Poland, Holland and Mexico. [Mark Godsey]
Thursday, October 26, 2006
From onion.com: Henry "Hank" Doswell, 42, was released from his marriage Wednesday, after DNA tests conclusively proved his innocence in the July 1991 fathering of Spencer Doswell, the solitary charge that has kept him committed for 15 years.
"Fifteen years, seven months, and two days," said Doswell, speaking to a group at the Red Room bar's Singles Night shortly after his release. "I always said they'd made a terrible mistake, that I did not deserve to be put away in the prime of my life, but no one believed me. If it hadn't been for this DNA test, I might have died in that monogamous relationship."
Though he feared he might never be able to break free of "the old ball and chain," Doswell always professed that being sentenced to a life of enforced fidelity was a "horrible injustice." But as each new anniversary seemed only to confirm his guilt, Doswell began to doubt he would ever be a free man again. Rest of Article. . . [Mark Godsey]
From seattletimes.com: A Thurston County senior deputy prosecutor who was ejected from Qwest Field Sunday after employees said he was having sex in a bathroom told his boss he was just using the facilities.
King County Sheriff's Sgt. John Urquhart said two female employees told off-duty sheriff's deputies and Seattle police officers who were working security at the stadium during the Seahawks game that a man and woman were having sex in a bathroom stall.
"We didn't see them having sex but they were clearly in the same stall," Urquhart said of the couple, who told deputies they work together in the Thurston County Prosecuting Attorney's Office.
The man, a 39-year-old attorney, "had been drinking and was argumentative" with deputies, he said. Arrested for obstructing and trespassing, the man was interviewed and released, Urquhart said, explaining that it is "against the law for him to be in a women's restroom."
Rest of Article. . . [Mark Godsey]
From sunherald.com: University of Mississippi CrimProf Michael Hoffheimer discusses whether the actions of a University of Mississippi student in the dragging death of a campus police officer constitutes a "depraved heart" murder eventhough he was intoxicated.
Daniel Cummings, 20, of Germantown, Tenn., was arrested early Saturday morning, shortly after Officer Robert Langley was thrown to the pavement while trying to stop Cummings from driving away from a traffic stop on the Ole Miss campus, according to a Justice Court affidavit sworn by Lt. Walter Davis of MBI, the state's crime investigation agency.
Toxicology results would not likely change the charge, said Michael Hoffheimer, an Ole Miss criminal law professor. "Intoxication is not a defense to murder in Mississippi."
Hoffheimer said that given a lack of premeditated intent to kill a specific person, as MBI's Davis' affidavit contends, prosecutors would face a difficult challenge to prove murder, but it would still be possible, Hoffheimer said.
They "would basically have to prove that the defendant acted with a depraved heart with indifference to human life," he said, essentially the way Davis described the crime.
Rest of Article. . . [Mark Godsey]
Wednesday, October 25, 2006
From siouxcityjournal.com/talkleft.com: A fired state trooper's link to a white supremacist group has placed Nebraska in the middle of a debate over individual rights and ensuring police fairness.
An arbitrator ruled in August that state trooper Robert Henderson should get his job back, but officials at the State Patrol and capitol promise to fight, setting the stage for a courtroom battle this month in Lincoln. Both sides filed briefs in the court case on Friday.
A secret State Patrol investigation found that Henderson had joined the Knights Party, which has ties to the Ku Klux Klan. Henderson acknowledged his membership to investigators and admitted posting messages on the group's members-only Web site. He later resigned from the group and apologized to the State Patrol's commander before termination.
The state should prevail, said Mark Potok, director of the Intelligence Project, which has been tracking hate groups since 1981. "The law is clear on this," Potok said. "He can be fired for this."
Yet arbitrator Paul J. Caffera cited several court rulings that say public employees and law enforcement officers don't have to give up their Constitutional rights when they accept the job. He also faulted the State Patrol's internal investigation and said the agency didn't follow its contract.
Rest of Article. . . [Mark Godsey]
From LATimes.com: California prosecutors are no longer releasing routine information about defendants, including their criminal histories and parole or probation status.
The change comes in the aftermath of a Sept. 20 legal opinion from Atty. Gen. Bill Lockyer that furnishing such information from law enforcement computer databases violates defendants' privacy rights
Taken together with a recent California Supreme Court decision restricting disclosure of police disciplinary records, the opinion significantly narrows the public's access to bedrock information about the criminal justice system. Rest of Article. . . [Mark Godsey]
From examiner.com: University of California Hastings College of Law CrimProf Evan Lee discussed the The American Civil Liberties Union's plan to challenge a civil injunction sought by The City of San Francisco to prevent members of a Bayview street gang from congregating and conducting gang activity in a specified area.
Next Monday, a San Francisco Superior Court judge will hear evidence regarding City Attorney Dennis Herrera’s requested injunction against the Oakdale Mob, which claims as its turf the four square blocks around Oakdale Avenue and Baldwin Court. The gang has been linked to murders, assaults, drug dealing, rapes, carjackings and robberies. Residents of the neighborhood live in fear for their safety and that of their families, police say.
Civil gang injunctions have been used to combat gang presence in neighborhoods in Southern California and elsewhere since the 1980s. In 1999, the U.S. Supreme Court, in Morales v. Chicago, struck down a civil gang injunction in Chicago on the grounds that it was too vague. That injunction prohibited loitering and defined it as, “to remain in any one place with no apparent purpose.”
The injunction sought by Herrera also would prohibit loitering, but it specifies, “loitering with the intent to commit a narcotics-related offense.” However, Herrera’s injunction also includes an order for gang members not to associate publicly, except in church or school, which may be too vague to pass Constitutional muster.
“What the ACLU’s going to argue is that that doesn’t give adequate notice to those people, suppose those associates include their mothers?” CrimProf Lee said Monday. “Suppose one of those mothers goes down to the complex for a PTA meeting, she could get picked up for that order.”
In the end, Lee said, the injunction’s constitutionality will be determined by the limits it places on the discretion of police. The less “carte blanche” police appear to have to make arrests, the less likely the possibility for civil rights to be violated and therefore the more constitutional the injunction will be seen as, Lee said. Rest of Article. . . [Mark Godsey]
Tuesday, October 24, 2006
From USATODAY.com: FBI and local police are teaming up to combat a little noted but highly lucrative crime: robberies by gangs that target traveling jewelry and precious gem sales representatives.
Jewelry and gem salespersons reported 117 such robberies nationwide in the first nine months of this year, putting the industry on track for its lowest number of annual attacks since about 1990, according to a report by the industry group Jewelers' Security Alliance (JSA).
However, ripping off sales reps, who typically travel by car and carry hundreds of thousands of dollars worth of goods in small pieces of rolling luggage, remains a highly lucrative crime. The average theft this year has netted about $224,000. By contrast, the average bank robbery netted about $4,220 in 2004, the FBI estimated.
"It's a crime that's below the radar, and doesn't get nearly the attention of say, bank robbery," says John Kennedy, president of the JSA. "But in the past 10 years or so, it's become a fact of life for an industry where it had pretty much been unknown."
After 1999, when sales reps endured a record 323 robberies and more than $76 million in losses, the FBI began to partner with local police task forces in New York City, Los Angeles, Houston, Miami and other jewel theft hot spots. Using stakeouts, stings and other methods, they've helped boost arrests and lower dollar losses each year since 2000. Figures kept by the Jewelers' Security Alliance show local, state and federal arrests increased 25%, from 456 in 2003 to 570 in 2004. Those included crimes against retailers as well as sales reps. Rest of Article. . . [Mark Godsey]
From DPIC.com: The Common Sense Foundation of North Carolina recently released a study on that found that at least 37 people now on death row had trial lawyers who would not have met today’s minimum standards of qualification. Nearly a third of the cases where sufficient data was available fell into this substandard category.
The study also lists the names of 16 people who have been executed whose trial lawyers did not meet these same standards. Over half of the executions in the state where data was available were of defendants whose attorneys would not meet the current state standards.
The study noted that after the state legislature created the Office of Indigent Defense Services (IDS) in 2001 requiring that appointed capital defense attorneys have some experience and knowledge of capital defense, the number of N.C. death sentences declined sharply. However, the new rules do not apply to those who have already been sentenced to death.
Get Study. . . [Mark Godsey]