April 7, 2006
New Article Spotlight: "Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime
UC Davis CrimProf Robert Mikos has posted "Eggshell" Victims, Private Precautions, and the Societal Benefits of Shifting Crime, 105 Mich. L. Rev. ___ (forthcoming 2006), on SSRN.
The abstract reads: Individuals spend billions of dollars every year on precautions to protect themselves from crime. Yet the legal academy has criticized many private precautions because they merely shift crime onto other, less guarded citizens, rather than reduce crime. The conventional wisdom likens such precaution-taking to rent-seeking: citizens spend resources to shift crime losses onto other victims, without reducing the size of those losses to society. The result is an unambiguous reduction in social welfare. This Article argues that the conventional wisdom is flawed because it overlooks how the law systematically understates the harms suffered by some victims of crime, first, by ignoring some types of harm altogether in grading and sentencing decisions, and second, by ignoring wide disparities in the amount of harm caused in individual cases. It follows that the same “crime”, as defined by the law, may inflict significantly different amounts of harm on different victims, and by aggregation, on society. Thus it cannot be safely assumed that displacing a given crime from one citizen to the next is necessarily wasteful, from a social point of view. Indeed, this Article argues that shifting crime may be beneficial to society, from an economic point of view, since eggshell victims - those who are harmed more by crime - tend to take more precautions. The implication is that private crime fighting efforts that displace crime - universally criticized in the literature - may be more socially useful than previously acknowledged. The Article discusses the implications for the ongoing debates over the regulation of precaution-taking.
Ex-NYPD Detectives Convicted of Moonlighting as Hired Murderers
Two highly decorated ex-NYPD detectives, Louis Eppolito and Steven Caracappa, were convicted Thursday of murder while on the payroll of a mob underboss. The two detectives served a combined 44 years on the force and worked as partners; now, they face up to life in prison. More from NYTimes. . . and more here too. [Mark Godsey]
Subscription to Porn site = Probable Cause
The 9th Circuit Court of Appeals, in U.S. v. Gourde, No. 03-30262, ruled that mere membership in a pornographic website that contains both legal and illegal porn is enough to authorize the FBI to search a home computer. The 7-2 decision provoked a strong dissent from two judges who are on the liberal and conservative extremes of the court joined forces.
"The majority concludes that the [search warrant] affidavit made out probable cause by assuming that anyone who subscribes to an internet site with both legal and illegal material must collect illegal material from the site," wrote Judge Andrew Kleinfeld, a conservative appointee of President George H.W. Bush. "This assumption stacks inference upon inference until the conclusion is too weak to support the invasion of privacy entailed by a search warrant," wrote Kleinfeld. More from the National Law Journal. . . [Mark Godsey]
Texas Law Inaugurates New Capital Punishment Center
Congratulations to UT Law! Yesterday, the University of Texas School of Law inaugurated its new Capital Punishment Center (CPC) with speakers including Judge Charlie Baird (formerly of the Texas Court of Criminal Appeals and currently a candidate for District Judge), and American University professor and humane rights defense attorney Mike Tigar. The CPC combines and expands the school’s academic and clinical programs on the death penalty.
The Center will be co-directed by UT Law professors Rob Owen and Jordan Steiker, who have worked together with clinic students for more than a decade on capital punishment cases. The Capital Punishment Clinic has had numerous successes over the years, including two victories in the United States Supreme Court.
Additionally, the CPC has expanded UT Law's clinical program with the hiring of additional faculty. Jim Marcus will join the clinic's faculty. He currently is the executive director of the Texas Defender Service, the premier non-profit providing representation (both directly and through consultation) to indigent death-sentenced inmates. Marcus joins Owen, clinical faculty member Maurie Levin, an experienced death penalty lawyer, and clinical faculty member Meredith Rountree, as a supervising attorney within the clinical component of the Center. The Center is also expanding its course offerings to students. Currently, there are four classes relating to the death penalty, including a new class on mental health issues and the death penalty. [Mark Godsey]
April 5, 2006
Study: Drug Treatment Less Expensive than Imprisonment
From Findlaw: A report by UCLA's Semel Institute for Neuroscience and Human Behavior found that taxpayers saved nearly $2.50 for every dollar invested in drug treatment in the first 30 months since implementation of a 2000 law (California's Proposition 36--the Substance Abuse and Crime Prevention Act) allowing drug treatment as an alternative to imprisonment. Savings further increased if offenders actually completed their programs, with taxpayers saving nearly $4 per dollar spent, according to the study. The total savings in the first 30 months was more than $173 million said researchers, who factored in money saved from such areas as housing inmates, probation, parole, re-arrests and future court fees. [Mark Godsey]
Errors in State Crime Labs Prompt New State Laws and Procedures
State legislators, troubled by reports of botched DNA tests and other mistakes by forensic analysts, have begun to establish oversight commissions to improve local crime labs and coroner's offices. As a result, the American Judicature Society, a non-partisan policy research group of judges, attorneys and academics, recently held a three-day conference in Greensboro, N.C., to establish recommendations for crime lab practices. The conference's co-chairs include former U.S. attorney general Janet Reno and former federal judge and CIA and FBI director William Webster.
Virginia, Texas, Minnesota, Massachusetts, Illinois, and Oklahoma, are among the states that already have, or soon will, implement plans for improvement. These plans include oversight commissions to improve local crime labs and coroner's offices, and required accrediting of local crime labs by professional crime lab groups. Detail on these improvements and recent mistakes that prompted these improvements, here from USA Today. [Mark Godsey]
Larry Pozner on Denver's Controversial Marijuana Prosecutions
Last November, 2005, Denver voters passed a city ordinance making it legal for a person 21 or older to possess less than 1 ounce of marijuana (or 28 grams) for personal use. But the Denver city prosecutors and the Denver District Attorney's Office have been pursuing proseuctions under a state law that makes it a petty offense, punishable by a $100 fine, to possess not more than 1 ounce of marijuana. Here is an editorial by Larry Pozner, past president of the National Association of Criminal Defense Lawyers (NACDL), discussing the conflict of laws. [Mark Godsey]
Death Penalty News
Washington: The Washington State Supreme Court recently came within one vote of effectively abolishing the state's death penalty when it ruled in the case of death row inmate Dayva Cross. Cross is on death row for the murder of his wife and her two teenage daughters. Attorneys for Cross had argued that their client should not be executed because killers who had committed worse crimes had been spared the death penalty. Part of the dissenting opinion read: "When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not 'stand alone,' as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty. . . . The death penalty is like lightning, randomly striking some defendants and not others." More. . .
North Carolina: Former Union County prosecutor Scott Brewer, who is already under investigation for allegedly obstructing justice in the 1996 death penalty trial of John Gregory Hoffman, has been accused of withholding important evidence in a second capital trial. Attorneys representing Darrell Strickland have asked the North Carolina State Bar to discipline Brewer for improperly withholding three statements made by the victims' wife, Gail Brown, the only eyewitness to the crime for which their client was sentenced to die. More. . .
American Bar Association: The ABA's Criminial Justice Section has released a new report on preventing wrongful convictions. The report, "Achieving Justice: Freeing the Innocent, Convicting the Guilty," includes commentary and resolutions that addresses topics such as false confessions, eyewitness identification procedures, use of forensic evidence, jailhouse informants, and compensation for the wrongfully convicted. More. . .
Death Sentences in 2005: The Capital Case Data Project of the American Judicature Society announced their count of 125 new death sentences in 2005, one less than in 2004. In addition, AJS counted 14 death sentences imposed through new sentence proceedings after appellate reversals. Those sentenced to death included 63 white defendants, 57 black defendants, and 15 Hispanics. The largest number of death sentences were imposed in California (19) and Florida (16). Texas had 14 death sentences, down considerably from 24 in 2004. The Bureau of Justice Statistics will release their data on death sentences in 2005 later this year. More. . .
Second Circuit Issues Major Sentencing Decision
On Monday, the Second Circuit issued a major decision on reasonableness review in sentencing. In United States v. Fernandez, Docket No. 05-1596-cr (2d Cir. April 3, 2006) (decision found here) The Second Circuit addressed the following questions:
1. Does the Second Circuit possess statutory authority to review a sentence within the relevant Guidelines range for reasonableness?
2. Is a sentence within the relevant Guidelines range entitled to a presumption of reasonableness?
3. Does 18 U.S.C. § 3553(a)(6), which obliges sentencing judges to consider unwarranted disparities in sentencing, apply to differently situated defendants?
4. Does the duty to consider the sentencing factors of 18 U.S.C. § 3553(a) requires a sentencing judge to discuss on the record during the sentencing proceeding each of the factors or each argument that a defendant makes relating to those factors?
5. Can a sentencing judge take a defendant's cooperation with authorities into account under 18 U.S.C. § 3553(a) even if the Government has not made a § 5K1.1 downward departure motion?
For a detailed discussion, see the Second Circuit Sentencing Blog. [Mark Godsey, thanks to Harlan Protass]
Southern District of Florida Sees Little Change in Sentencing Post-Booker
When the U.S. Supreme Court issued its landmark sentencing rulings in U.S. v. Booker and U.S. v. Fanfan, defense attorneys in South Florida rejoiced, but 15 months later, prosecutors are the ones reeping the benefits. Judges in the area have opted to stay mostly within the guidelines, at a rate well above the national rate.
A new study by the U.S. Sentencing Commission found that judges in the Southern District of Florida, which covers the area from Key West to Fort Pierce, have been among the strictest in the nation in sticking to the guidelines. They stayed within the guideline range in 77.5% of 1,951 cases sentenced, whereas the Northern district of Florida sentenced within the guidelines 71.7% of the time and the Middle district, 65.6%. But even more striking, the Sourthern District of Florida rate is significantly higher than the national rate. Nationally, across 94 judicial districts, federal sentences fell within the guidelines in 62.2 % of 65,368 cases.
How come? Some cite pressure from the Republican-controlled Congress and the Justice Department as a reason to be nervous about using more discretion in sentencing. "No one wants to be the judge that sticks his head out to be chopped off," said one. More. . . [Mark Godsey]
SCOTUS: Examines Criminally-Accused Foreign Nationals' Rights under the Vienna Convention
Last week the U.S. Supreme Court delved into rights and remedies under international law in two different contexts: the war on crime and the war on terror. The day after the justices heard arguments over whether Salim Hamdan is entitled to protections under the Geneva Convention, they took up the cases of two foreign nationals claiming violation of their rights under the Vienna Convention. In both arenas, the Bush administration argued there were no judicially enforceable rights created.
Moises Sanchez-Llamas, a Mexican national convicted of attempted murder, and Mario Bustillo, a Honduran citizen convicted of first-degree murder, contend that Article 36 of the Vienna Convention requires signing nations to notify "without delay" a detained foreign national of his right to request help from his country's consul and, if the foreign national asks, to inform the consul of the arrest or detention. The Court will decide if Article 36 of the Vienna Convention creates individual rights of consular notice and access, and whether suppression of evidence sought by Sanchez-Llamas, or the habeas relief sought by Bustillo, would be appropriate remedies for violations of Article 36. The cases are Sanchez-Llamas v. Oregon, No. 04-10566 and Bustillo v. Johnson, No. 05-51. More. . . [Mark Godsey]
April 3, 2006
Eyewitness ID Conference, April 21
The Loyola Chicago Public Interest Law Reporter will sponsor a conference on New Policies, New Practices: Fresh Perspectives on Eyewitness Identification on April 21. Among the lawyers speaking will be Patrick Fitzgerald, Thomas Sullivan and Dan Webb. Among psychologists will be Gary Wells, Ebbe Ebbesen and Roy Malpass.
The topics will include a discussion of the new Illinois Pilot Program on Sequential Double-Blind Identification Procedures released this last week. One of the conclusions reached in the program report: "Surprisingly, the Illinois data did not bear out the research experiments that sequential, double-blind lineups produce a lower rate of known false identifications. Instead, the sequential, double-blind procedures resulted in an overall higher rate of known false identifications than did the simultaneous lineups."
For more information, visit the conference website: http://www.luc.edu/law/activities/publications/pilrsymposium/index.shtml
More on the "No Snitchin'" Phenomeonon
What does a prosecutor do when her own witness shows up with a "no snitchin'" shirt on? Well, it is not a good omen. [Jack Chin, thanks to Jeff Kerr]
BlackProf Blog on the Duke Rape
Blog post Here. for those not familiar with the story, a female college student at another school, who is African American and an exotic dancer, claimed she was raped after being hired to dnace at a party for the lacrosse team. The Charlotte News and Observer reports that a third of the lacrosse team members had arrest records. The link also has some interesting 911 calls and other audio. Here's all of the paper's coverage.
New Article Spotlight: Virginia's Brandon Garrett
Virginia CrimProf Brandon L. Garrett has posted Aggregation in Criminal Law on SSRN. It is forthcoming in the California Law Review. Here's the abstract:
This Article considers aggregation in criminal law. Procedural aggregation, such as joinder or consolidation, occurs only in limited circumstances during criminal trials due to fundamental constitutional rights to an individual day in court. By way of contrast, in civil cases, courts permit a range of aggregate litigation, including in class actions. Nevertheless, the boundaries between civil and criminal law approaches to aggregation are more permeable than conventionally understood. Courts now aggregate criminal cases, and they do so without violating constitutional rights, by joining cases only before trial and during appeals. I present five case studies examining novel aggregative procedures that courts employed to remedy systemic criminal procedure violations such as the lack of proportionality in death sentencing, wrongful convictions, forensic fraud and inadequate indigent representation. Second, I frame due process safeguards to structure future aggregation in criminal law. Finally, I develop a possible second wave of institutional reform that could flow from intermediate models that do not aggregate but accomplish similar goals, using innocence commissions, prosecutorial case review, special masters, and two-tier models of judicial review. I conclude that aggregation can potentially transform criminal adjudication, leading to a more efficient, accurate, and fair criminal justice system.
Obtain the paper here. [Mark Godsey]
April 2, 2006
Dan Filler on Drug Free Zone Sentencing
Here. Point 1: In many major cities, everything is a "drug free zone" because it is within the statutory distance from a school. Point 2: Therefore, there is no special deterrent; since everywhere where people are is within a school zone, sellers have no ability or incentive to stay away from schools.
Online Sale of Financial Information About Others
This post from BoingBoing is pretty scary: bulletin boards and other websites abound where private financial data, such as account numbers, is for sale.
Texas Court: "Delivery" Does not Include to Unborn
The Texas Court of Appeals has held that pregnant women cannot be charged with "delivery" of controlled substances to their unborn fetuses as a result of taking drugs and having then transmitted via the placenta. Opinion here. The critical language: "Nowhere are we cited to evidence suggesting that the unborn child actually
handled, touched, manipulated or otherwise exercised physical possession over the drug.
Again, the substance was merely discovered in the unborn child's body." This seems unquestionably wrong to me. If A injects B with a syringe of a controlled substance (whether B requests this or not) A has "delivered" a controlled substance to B. See, e.g., Stanford v. State,
1988 WL 113997 ( Tex. App. 1988). [Jack Chin]
This Week's Top 5 Crim Papers
|(1)||221||Law, Science, and Morality: A Review of Richard Posner's 'The Problematics of Moral and Legal Theory' |
Georgetown University - Law Center,
Date posted to database: January 24, 2006
Last Revised: March 15, 2006
|(2)||168||Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data |
Mark Denbeaux, Joshua W. Denbeaux,
Seton Hall University - School of Law, Denbeaux & Denbeaux,
Date posted to database: February 21, 2006
Last Revised: March 6, 2006
|(3)||112||The Japanese American Cases - A Bigger Disaster than We Realized |
Eric L. Muller,
University of North Carolina at Chapel Hill - School of Law,
Date posted to database: February 6, 2006
Last Revised: February 15, 2006
|(4)||106||The Second Death of Capital Punishment |
J. Richard Broughton,
United States Department of Justice - Capital Case Unit,
Date posted to database: January 26, 2006
Last Revised: February 12, 2006
|(5)||93||Therapeutic Forgetting: The Legal and Ethical Implications of Memory Dampening |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: March 2, 2006
Last Revised: March 16, 2006
Another FBI Agent Indicted for Mob Ties
The Brooklyn DA said that the respected agent leaked information about pending cases to members of the Colombo crime family, leading to the killing of informants and other individuals.