November 18, 2006
Crack vs. Coke: Commission Considers Discrepancy in Sentences
From NPR.com: U.S. sentencing guidelines treat 1 gram of crack the same as 100 grams of powder cocaine. So crack users can get much longer prison sentences than powder users. For more than 10 years, that disparity has been the subject of heated debate. The U.S. Sentencing Commission is considering the 20-year-old law in public hearings.
When cocaine comes into the United States, it crosses the border in powder form. The powder travels from a smuggler to a wholesaler to a dealer, divided from kilograms into ounces, and then into grams. Then a dealer puts the powder into a microwave oven with other ingredients, and creates rocks of crack cocaine.
Attorney David Debold, who spoke on behalf of defense lawyers, told the sentencing commission that simple conversion has an enormous impact on the prison sentence for the guy caught holding the bag.
"Should the guidelines recommend such disparate treatment of two defendants," Debold says, "one who handles the drug in powder form, and the other one who handles it later in rock form?"
Listen. . . [Mark Godsey]
November 17, 2006
CrimProf Spotlight: Eve Brensike
This week the CrimProf Blog spotlights University of Michigan Law School CrimProf Eve Brensike:
Eve L. Brensike joins the Michigan Law faculty as an assistant professor of law. She earned her B.A., magna cum laude, from Brown University, and, before entering law school, worked as a criminal investigator for the Public Defender Service in Washington, D.C., as well as a property subrogation paralegal for the Law Offices of White and Williams in Philadelphia, Pennsylvania.
She earned her J.D., summa cum laude, from the University of Michigan Law School, where she was an articles editor on the Michigan Law Review as well as a board member on the Henry M. Campbell Moot Court Board. During law school, she volunteered at a number of public defender and capital defense organizations in addition to working in the Civil Rights Division of the United States Department of Justice.
After law school, Brensike clerked for the Honorable Stephen Reinhardt on the Ninth Circuit Court of Appeals and worked in both the trial and appellate divisions of the Maryland Office of the Public Defender. Brensike’s research and teaching interests include criminal law, criminal procedure, evidence, and habeas corpus. [Mark Godsey]
November 16, 2006
Texas Death Sentence Upheld With Incompetent Counsel
The state's highest court for criminal appeals Wednesday affirmed the conviction of a death-row inmate whose appointed lawyer submitted a court pleading with rambling arguments apparently lifted from his client's own letters.
In a three-paragraph order, the Texas Court of Criminal Appeals put a stamp of approval on a lower judge's ruling in the case of Daniel Clate Acker, a high-school dropout convicted of killing his girlfriend in Hopkins County in 2000.
The ruling makes no direct mention of the 800-pound gorilla in the case — a court pleading that Greenville attorney Toby C. Wilkinson filed. His writ of habeas corpus — which observers say appeared to be cut and pasted — is cited by some as a prime example of the state's failure to adequately examine death penalty convictions.
Wilkinson's writ appeared to copy Acker's letters from death row so that, instead of citing legal cases, the writ echoes Acker's unintelligible arguments, flawed grammar and even his complaint that he was about to run out of paper. Rest of article... [Mark Godsey]
Connecticut Plans to Protect Children of Incarcerated Parents' Rights
From courant.com: Representatives from an array of Connecticut state agencies met at the Legislative Office Building in Hartford Wednesday for a summit to hash out a plan to create a bill of rights for children of incarcerated parents.
"Children of prisoners are often invisible and overlooked," said Susan Quinlan, executive director of Families in Crisis, a Hartford agency that works with families of incarcerated parents. "We as a community need to respond to that."
In Hartford alone, an estimated 4,500 to 6,000 children - about one in every six children in the city - have at least one parent in a state prison. The very fact that no hard numbers exist and that the state is left to extrapolate estimates from national trends illustrates the need for local attention, Quinlan said.
The group, which includes state agencies as well as representatives from the United Way and the University of Connecticut School of Social Work, agreed to form committees that would work on developing legislative proposals and a bill of rights for children. Rest of Article. . . [Mark Godsey]
Prison Rape Panel held at Folsom Prison
From signonsandiego.com: Spurred by a 2003 federal law, the U.S. Department of Justice's new Review Panel on Prison Rape began two days of hearings Tuesday at California's Folsom Prison to learn what the country's largest state prison system is doing about the problem.
It is the start of a month long national effort to find how many prison inmates are victims of sexual assault and how to deter the attacks.
Reports of assaults “may be just the tip of the iceberg. We haven't a clue,” said McFarland, who also directs the Justice Department's Task Force for Faith-Based and Community Initiatives.
Congress, in passing the federal rape law, cited estimates that 13 percent of inmates are assaulted nationwide. The federal Bureau of Justice Statistics, in a 1997 survey, put the incidence at less than 1 percent.
California legislative researchers found 4.4 percent of California inmates reported assaults in 2000, compared to 4 percent in Florida, 2.5 percent in Texas, 2.3 percent in New York and 1.7 percent in federal penitentiaries. But reporting methods vary so widely that the figures are useless, McFarland said. Rest of Article. . . [Mark Godsey]
Pakistan Puts Rape Under Civil Penal Code
From theage.com: Pakistan's lower house of parliament has voted to put the crime of rape under the civil penal code, curtailing the scope of Islamic laws that rights groups have long criticised as unfair to women.
The Women's Protection Bill was seen as a barometer of President Pervez Musharraf's commitment to his vision of "enlightened moderation" and a major battle in a struggle between progressive forces and religious conservatives over the Muslim nation's course.
Musharraf said in a television address to the nation later on Wednesday the bill was part of a government campaign to empower women launched in 2000, soon after he seized power in a bloodless coup. Rest of Article. . . [Mark Godsey]
Garbage Collectors Trained By Police to Spot Crime
Story... [Mark Godsey]
November 15, 2006
Standoff Between Judges and Govt Official Over Mentally Ill Inmates
From NYTimes.com: For years, circuit judges here have ordered state officials to obey Florida law and promptly transfer severely mentally ill inmates from jails to state hospitals. But with few hospital beds available, Gov. Jeb Bush’s administration began flouting those court orders in August.
Now, in a growing standoff between the government of Florida and its judges, the state is being threatened with steep daily fines if it does not comply. And at least one judge has raised the possibility that the secretary of the Florida Department of Children and Families could go to jail for contempt of court.
State law requires that inmates found incompetent to stand trial be moved from county jails to psychiatric hospitals within 15 days of the state’s receiving the commitment orders. Florida has broken that law for years, provoking some public defenders to seek court orders forcing swift compliance.
With the state now rebuffing even those orders, a rising number of mentally ill inmates, now more than 300, have been left without treatment in crowded jails because the state’s 1,416 psychiatric beds are full. Rest of Article. . . [Mark Godsey]
CrimProf Sharon Dolovich Offers Her Opinion on Cali's Prison Reform
From latimes.com: UCLA Law CrimProf Sharon Dolovich offers some thoughts on Governor Arnold Schwarzenegger's reform plan for California prisons in a recent opinion article the LA Times. Here is a portion of the opinion:
"CALIFORNIA'S PRISONS are bursting at the seams, but Gov. Arnold Schwarzenegger's latest strategy for easing the pressure has hit a snag. The nonpartisan Legislative Counsel, which provides legal advice to state lawmakers, has issued an opinion concluding that the governor's plan to ship thousands of prisoners to private prisons out of state violates California's Constitution. This opinion buoyed the anti-privatization California Correctional Peace Officers Assn. (the state prison guards union), which has gone to court to try to stop the transfers.
"Let's hope the court sides with the union. Outsourcing the care of state prisoners to private, for-profit contractors, especially those located out of state, is a bad idea. Not only will the move do little to fix what is wrong with California's prisons, it will create a whole new set of problems that will outlast any short-term benefit.
"The most obvious problem is age-old: Who will watch the watchers? The contracts require contractors to comply with all California laws governing the treatment of prisoners, plus a host of other terms designed to ensure safe and secure facilities. But a signed contract is no guarantee of performance. Prison contractors make their money by spending less to run their prisons than the contract price. If they think no one is watching, they may well cut corners." Rest of Article. . . [Mark Godsey]
New Article Spotlight: Structural Reform in Criminal Defense
Criminal defense representation faces two problems that may share one structural solution. First, there is no effective remedy for defendants whose trial attorneys are incompetent. Defendants typically must complete their appeals before being permitted to challenge their trial attorneys' performance on collateral review. With appeals often taking four or more years, most defendants have served their sentences and have little incentive to pursue collateral challenges.
There is no realistic opportunity of success, because defendants have no right to counsel on collateral review, and the delay makes it difficult to gather evidence of ineffectiveness. Thus, forcing defendants to wait until collateral review to challenge trial attorney performance creates a right to effective trial counsel that has no corresponding remedy.
A second structural problem arises at the appellate level. Appellate attorneys file briefs asking to withdraw from representation in over thirty percent of cases in some jurisdictions, because they cannot find issues worth raising.
Most jurisdictions confine appellate review to matters that appear on the face of the trial record. As a result, when trial attorneys fail to preserve issues, appellate attorneys do not have grounds for appeal. Because all defendants are constitutionally entitled to appellate counsel, defenders are often forced to file frivolous briefs or seek withdrawal. The result is an enormous waste of the funds that states invest in appellate representation.
In this Article, I analyze both problems and propose a structural solution – namely, a mechanism through which appellate attorneys may open the trial record in limited circumstances to raise ineffective assistance of trial counsel claims. In addition to ameliorating the trial problem by giving defendants a realistic opportunity to challenge trial attorney performance, such a restructuring would reduce the waste of public resources by assigning a more constructive role to appellate defenders now consigned to raising meritless issues. [Mark Godsey]
November 14, 2006
Organized Street Racers Stir Up Trouble in N.C.
From charlotte.com: Young drivers in souped-up cars have been racing for months late at night on roads around Mecklenburg County, North Carolina traveling at speeds of 100 mph and higher.
More than a few times, they nearly collided with city buses, tractor trailers and motorists on stretches they expected to be abandoned. After four months of surveillance, authorities cracked down. They arrested 10 drivers this weekend and two more Monday night, and have seized 19 modified cars. Police said this week that their investigation revealed an organized, complex and dangerous racing culture.
"This isn't just a bunch of high school kids," said one undercover Charlotte-Mecklenburg officer who asked not to be identified because he's still involved in the investigation. "This is an organized group in their mid-20s, and there's evidence of criminal activity, from drinking to stolen vehicle parts to weapons." Rest of Article. . . [Mark Godsey]
CrimProf Steve Chanenson Comments on Mistrial in Fraud Case
From kentucky.com: Villanova University School of Law CrimProf Steve Chanenson recently commented on a federal judge decision to declare a mistrial in the case against Charles E. "Junior" Johnson on federal charges of fraud and conspiracy.
The motions concerning the mistrial are all under seal and the proceedings were conducted out of the public view. So the reason for the mistrial, which was granted last Thursday, is a mystery.
Johnson, a Lexington native and the founder of Las Vegas-based PurchasePro, has been on trial with three other defendants since Oct. 16 on charges stemming from the collapse of his company and deals with America Online that prosecutors charge defrauded investors of millions of dollars.
CrimProf Chanenson said that with so many things under seal, the most any observer can do is speculate. "It is unusual to let an attorney step out in the middle of a trial," Chanenson said yesterday. "It is unusual to allow a mistrial for unknown reasons, and it is unusual to have another judge take part in the proceedings." (A judge other than the trial judge held proceedings involving the Johnson case.) Rest of Article. . . [Mark Godsey]
The Right to Remain Silent Lost its Bite in NJ
From nj.com: Michael Tucker got life in prison for killing his mother at her Piscataway home.
Lawrence Brown was convicted of assaulting a Phillipsburg man with a beer bottle so savagely the victim required 900 stitches and lost part of his ear.
A jury found Ahmed Elkwisni guilty in the gunpoint robbery of Bob's Market in Garfield.
All three men say they invoked the right to remain silent while the crimes were under investigation, but the right was violated -- and they were denied a fair trial -- because once the case was before a jury, prosecutors questioned the silence or suggested it implied guilt.
Tomorrow, the New Jersey Supreme Court is scheduled to take up this trio of cases, which could help define what silence is and how it can, or can't, be used at trial. The cases are being closely watched by a divided legal community and could have national implications, experts say.
"The fact that they've taken these three different cases will give them the opportunity to really lay out the parameters of how far we are going to go to protect the right to silence in New Jersey," said Alison Perrone, who represents Tucker.
Defense attorneys say defendants are not obliged to prove their innocence. They have an absolute right not to incriminate themselves because it is the state's burden to prove their guilt. Their silence -- even if it means staying quiet about certain details or not coming forward with an explanation -- is still silence and cannot be used in court. Rest of Article. . . [Mark Godsey]
November 13, 2006
Identity Theft High Among Family Members
From NYTimes.com: Though most victims never learn who stole their identities, half of those who do say the thief was a family member, a friend, a neighbor or an in-home employee, according to surveys by the Federal Trade Commission and Javelin Strategy and Research, a private research firm. The surveys estimate that 9 million to 10 million Americans have their identities stolen each year.
For example, in the five years since his divorce, Eric Wagenhauser had moved on with his life. He had remarried and was sharing custody of the three children from his first marriage. Then, last year, Mr. Wagenhauser discovered a new wrinkle on American divorce: his former wife had used the children’s Social Security numbers to apply for nine credit cards in their names. She obtained two.
Identity theft involving family members takes many forms, said Betsy Broder, assistant director of the Federal Trade Commission’s division of privacy and identity protection. A child steals a parent’s identity to buy drugs, one sibling steals another’s identity to try to avoid arrest or debt.
Identity theft is often difficult to solve and prosecute, and, in the case of families, victims may be reluctant to report relatives to the police. Rest of Article. . . [Mark Godsey]
CrimProf Alafair Burke Comments on New Trash Privacy Law
From newsday.com: Hofstra University School of Law CrimProf Alafair Burke comments on new Lake Grove, New York villiage ordiance which makes it illegal to go through the garbage in a closed trash can.
The law aims to stop identity thieves, but anyone caught with their hand in the trash can without the owner's written permission can face criminal prosecution. The new law also applies to police and authorities must now get a search warrant from a judge before poking through a suspect's refuse.
Alafair Burke called Lake Grove's ordinance a "novel criminal prohibition" that targets what once was a permissible activity. "Over the last eight years, it's become increasingly common for lawmakers to try to criminalize activity that is a precursor to identity theft," Burke said.
Rest of Article. . . [Mark Godsey]
Police Plant Weapon in Suspect's Car as a Practical Joke
From ocweekly.com: With a horrified suspect watching, Huntington Beach police planted evidence—a loaded revolver—in the man’s car during a DUI accident investigation in January.
The controversial revelation is not now in dispute although cops, prosecutors and city bureaucrats attempted to keep the incident a secret by sealing records and stalling discovery of related documents. Despite those efforts, the gun incident became an issue during an obscure misdemeanor trial last week at Orange County’s West Court in Westminster. Police officers were forced to admit under oath that a snub-nosed handgun had been tossed like a Frisbee about four feet into the trunk of a Hyundai belonging to Tom Cox, the suspect. The loaded gun bounced twice and slammed up against the driver’s side of the car’s trunk. No bullets were discharged.
Brian Knorr, the uniformed officer who threw the weapon, lowered the trunk lid with the gun inside and stepped back, allegedly waiting for an unsuspecting fellow officer to find it during a search, according to testimony. The officer assigned to search the vehicle eventually located the gun and, startled, turned to Cox holding the revolver in both hands. This officer stared at Cox, who began to panic at the scenario of a weapons charge. Knorr walked over, “elbowed that cop and took the gun back,” said Cox.
Cox said he didn’t definitively learn until several months later that the officers had not filed weapons charges against him. A self-professed fan of law enforcement and TV cop dramas, the 45-year-old Huntington Beach father of two and construction supervisor insisted that most of the officers present at his arrest acted professionally except for the laughter.
Rest of Article. . . [Mark Godsey]
November 12, 2006
This Week's Top Five Crim Papers
The top 5 crim papers for this week, with number of recent downloads, from SSRN are:
|(1)||208||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)||149||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)||96||Structural Reform Prosecution |
Brandon L. Garrett,
University of Virginia - School of Law,
Date posted to database: September 20, 2006
Last Revised: September 24, 2006
|(4)||56||Whimsical Punishment: The Vice of Federal Intervention, Constitutionalization, and Substantive Due Process in Punitive Damages Law |
Jenny Miao Jiang,
University of California, Berkeley - School of Law (Boalt Hall),
Date posted to database: October 12, 2006
Last Revised: October 30, 2006
|(5)||48||Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi |
Michael M. O'Hear,
Marquette University Law School,
Date posted to database: August 29, 2006
Last Revised: August 29, 2006
John Jay College of Criminal Justice Hosts "Off the Witness Stand"
John Jay College of Criminal Justice will host the conference "Off The Witness Stand: Using Psychology in the Practice of Justice" to mark the 100th anniversary of Hugo Munsterberg's "On The Witness Stand" on March 1-3, 2007.
Exactly one hundred years ago, Hugo Munsterberg, William James’s hand-picked successor as the director of Harvard’s Psychology Laboratory, rattled the gates of the criminal justice system, and announced that the social sciences wanted in.
Munsterberg offered to pay for his admission with an astonishing series of essays later collected in the book On The Witness Stand. Munsterberg saw the questions that bedeviled the legal system—“Can witness memory be trusted?”, “Can liars be exposed?”, “Can confessions be untruthful?”, “Can crime be prevented?”—and he claimed that his new science had the answers. He was met with derision in some quarters, with patronizing skepticism in others: “When the psychologists are ready for the courts,” Dean John Henry Wigmore wrote, “the courts will be ready for the psychologists.” The gates stayed locked.
Today, a growing litany of DNA exonerations makes us painfully aware that too often we get the wrong man, and let the real perpetrator go without charge. The DNA exoneration cases also tell us that the sources of many of our mistakes lie just where Munsterberg said they might: in faulty eyewitness testimony; in a failure to understand the nature of witness memory; in interrogation and investigation techniques that aggravate the chances for error.
More and more, we realize that if police investigators, litigators, and judges engage the scientists who are Munsterberg’s heirs—and if the scientists learn to value the lessons of justice practice—we may be able to develop the ability to produce better evidence and the ability to evaluate that evidence in the justice system.
“Off the Witness Stand” will bring scientists and justice system practitioners and policy-makers together to see where we stand now in answering Munsterberg’s call to inform practice with science (and science with practice), how we got here and where we are going. The conference will include presentations by psychologists, by practitioners from many points of the criminal justice compass, and by leaders in justice system reform on topics including : perception, witness memory and testimony, deception detection, confessions, forensic assessment, competency and treatment in forensic settings, expert testimony, jury decision making, courtroom procedures, crime prevention, and the influence of psychological research on the legal system.
Plenary and other invited speakers include former United States Attorney General Janet Reno, Thomas Grisso, Saul Kassin, Amy Klobuchar, Elizabeth Loftus, John Monahan, Steve Penrod, Barry Scheck, and Gary Wells. More Info. . . [Mark Godsey]
New Article Spotlight: Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms
From SSRN.com: University of Pennsylvania Law School CrimProf Paul H. Robinson and others recently released "Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms." Here is the abstract:
The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law).
On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use.
On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.
While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.
However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed. [Mark Godsey]