December 16, 2006
Concerns About Enforcing Federal Death Penalty in Puerto Rico
From the DPIC: Although no jury has returned a death sentence in a federal case in Puerto Rico in modern times, more cases are pending, raising concerns among many citizens. Puerto Rico bars the death penalty in its constitution. However, a U.S. Court of Appeals decision in 2001 held that the federal death penalty can be applied there. This decision overturned a lower court that ruled the use of the federal death penalty in the Commonwealth would be unconstitutional. The issue has not been reviewed by the U.S. Supreme Court. "It’s still an open issue for the U.S. Supreme Court to decide," said death penalty counsel William Matthewman. Opponents of the death penalty point to the fact that American Indian tribes get to choose whether the federal death penalty applies on their land.
The federal death penalty may be sought even over the recommendations of the local U.S. Attorney in Puerto Rico. U.S. Attorney Rosa Emilia Rodríguez noted, "Sometimes we do not recommend a case for the death penalty and Washington certifies it." According to Esperanza López, the mother of recent death penalty defendant Carlos Ayala López, this was the case with her son. "The local U.S. Attorney’s Office was negotiating a plea deal with my son, but then the death penalty certification came down from Washington. It was [former U.S. Attorney General] John Ashcroft who decided to make the case against my son a death penalty one." Ayala was eventually convicted but spared the death penalty by the jury.
December 15, 2006
New Article Spotlight: Kamisar's Latest on Miranda
Yale Kamisar has posted On the Fortieth Anniversary of Miranda: Why We Needed it, How We Got it - and What Happened to It on SSRN. Here's the abstract:
The pre-Miranda test for the admissibility of confessions was known as the due process voluntariness test. Given the courts' inability to articulate clear and predictable definitions of voluntary or involuntary confessions and the fact that the pre-Miranda test was too amorphous, too subjective and too time-consuming to administer, it seemed inevitable that the Supreme Court would seek a better way to deal with the confession problem. That way turned out to be Miranda.
At first, Miranda was widely and harshly criticized. It is now widely agreed, however, that Miranda was a compromise between those who liked the voluntariness test and those who wanted to abolish police interrogation as we have long known it.
Miranda does not condition police questioning on the presence of counsel (as many feared the Court would do). Rather, it conditions it on the giving of certain warnings of rights and the waiver of those rights. Miranda allows the police to obtain these waivers without the advice or presence of defense counsel. (Numerous studies establish that most suspects waive their rights.)
When it became clear that Miranda was having little impact on the confession rate, most commentators stopped criticizing the famous case for going too far and many began criticizing it for not going far enough. This article explores why Miranda has had only a negligible impact on law enforcement. It also maintains that the right question is not What good does Miranda do?, but at this point in time, how much harm would it cause to abolish Miranda?
To obtain the article, click here. [Mark Godsey]
Kevorkian Will Be Paroled
in June, after he agreed to no longer perform assisted suicides. story.
December 14, 2006
Feds Restrain White Collar Investigations
The Justice Department has placed new restraints on federal prosecutors conducting corporate investigations, easing tactics adopted in the wake of the Enron collapse, reports the New York Times. Under the changes, outlined in a memo from a deputy attorney general, federal prosecutors will no longer have blanket authority to ask routinely that a company under investigation waive the confidentiality of its legal communications or risk being indicted. Instead, they will need written approval for waivers from the deputy attorney general, and can make such requests only rarely.Another change prohibits prosecutors from considering, when weighing whether to seek the indictment of a company, whether it is paying the legal fees of an employee caught up in the inquiry. Experts says the changes make it easier for corporations to defend themselves. The revised guidelines follow criticism that the tactics used in recent years against companies like the drug maker Bristol-Myers Squibb and the accounting firm KPMG were coercive and unconstitutional. they are being made at a time when companies are seeking — and receiving — greater protection from criminal and regulatory scrutiny. Story... [Mark Godsey]
Colorado to Unveil New "Lifeline" Program for Inmates
Early next year, three Colorado prison lifers will be used to launch the Lifeline program, which seeks to prepare long-term, parole-eligible inmates for successful transition into the community. Lifeline is modeled after a Canadian effort that, for the past 15 years, has gained praise in the corrections industry for turning prison lifers into productive citizens, reports the Denver Post. This will be its first use in the U.S.The program partners the prisoners with former lifers who have found success. Originally scheduled to begin with six inmates this fall, Lifeline ran into trouble after its public unveiling in August, when objections from victims' families, investigators and a neighborhood group prompted an overhaul. As a result, the ex-cons face a more closely guarded path toward life outside prison walls. Lifeline candidates must be at least 45 with at least 20 years served, be parole eligible and have a record of good conduct in the DOC system. The program doesn't accept sex offenders. Story from Denver Post.... [Mark Godsey]
December 13, 2006
Sex Offender Restrictions
Virginia and New York push for tighter restrictions for sex offenders. Meanwhile, the trend may be slowing down in other states as successful challenges by sex offenders make tracking sex offenders more difficult.
Defense: Jury Racially Biased
From CNN.com: Several jurors who convicted a black trash collector in the slaying of a white fashion writer made disparaging racial remarks during deliberations, which at one point became so heated two jurors had to be separated, according to documents filed Tuesday. The attorney for Christopher McCowen, who was convicted last month in the January 2002 rape and murder of writer Christa Worthington, filed the sworn statements from three jurors about three other jurors as part of a bid for a new trial. "The statements clearly indicate that these jurors were racially biased against the defendant before deliberations ever started," attorney Robert George said.
According to the affidavits, filed by jurors identified only as Juror A, Juror B and Juror C, racist comments included snide remarks from a white female juror about a black female juror's hairstyle and questions about her educational background; a white female juror commenting that she was afraid of McCowen, saying "the big black guy" was staring at "us"; and a black male juror's comments that he did not like other blacks because "look at what they are capable of." The black female juror, referred to as Juror A, said in her affidavit that the white woman, while trying to convince other jurors that Worthington had been bruised during a struggle, "exploded when I questioned her about it by yelling that '...when a big black guy beats up on a small woman' bruises of that size would happen." Juror A then called the woman a racist and the two had to be separated, according to the affidavit. The affidavits also describe the pressure the jurors say was exerted on them to switch their votes from not guilty to guilty. Juror B said that after the jury delivered its guilty verdict Nickerson told them they could have declared a second deadlock. Both Juror A and Juror B said they would not have changed their votes to guilty if they had known that. Full story... [Mark Godsey]
December 12, 2006
New Article Spotlight: Underenforcement
Loyola-LA CrimProf Alexandra Natapoff has posted Underenforcement on SSRN. The abstract states: In numerous U.S. communities and institutions, the government openly and systematically fails to enforce the criminal law. Law enforcement officials know they will not enforce certain laws; victims expect to be unprotected; violators realize they will go unpunished. In these “underenforcement zones,” such official practices can generate violence, social decay, and often represent distinct forms of discrimination and democratic failure. And yet, underenforcement remains underappreciated. Unlike “overenforcement,” which has become an infamous symbol of racial bias and undemocratic policing, the role of underenforcement in shaping the criminal justice landscape has largely escaped scrutiny. This Article conceptualizes underenforcement as a powerful socio-legal phenomenon in its own right. It documents widespread underenforcement practices and describes the kinds of harms it can cause to vulnerable groups and communities. Not all underenforcement is pernicious: it can, for example, reflect appropriate governmental restraint, or the necessities of overbroad codes. This Article thus proposes a descriptive framework for distinguishing between the appropriate and the problematic. It also relocates underenforcement within three ongoing scholarly debates over: law enforcement discretion, democratic policing, and the state's constitutional obligation to provide minimal law enforcement protection. Underenforcement not only poses significant theoretical challenges in these arenas, but is a major contributor to some of the most dysfunctional aspects of the criminal system.
Obtain article here. [Mark Godsey]
Fewer Inmates Enter Death Row in 05
Story and stats here. [Mark Godsey]
Serious Problems in CA Prison System
NYTimes story here.
December 11, 2006
SCOTUS: Victim Buttons Don't Deny Fair Trial
From BNA.com: Today, in Carey v. Musladin, No. 05-785, the court held that a state court did not unreasonably apply established federal law when it ruled that the wearing of buttons depicting a murder victim by members of the victim's family in front of the jury did not deny the defendant a fair trial. The court noted that while it has previously held that some government-sponsored practices, such as compelling an accused to wear jail garb in front of the jury, may infringe on fair trial rights, it has never directly dealt with whether conduct by private spectators such as the wearing of buttons or ribbons in the courtroom is potentially so prejudicial as to implicate those concerns.
Argentines Flock to Gated Communities to Avoid Crime
From Reuters: BUENOS AIRES, Argentina (Reuters) - The new status symbol in Buenos Aires is not a luxury car or a Disneyland vacation. It's a clump of conspicuously unlocked bicycles in front of a house in a gated community. Flaunting how safe your neighborhood is -- by refusing to lock the childrens' bikes, the car, or even the front door -- shows you have made it in greater Buenos Aires, home to 13 million and one of the world's 10 most populated urban areas. Since 1994, an estimated 300,000 people have fled high-density, high-crime, high-priced Buenos Aires and its traditional suburbs near the city core, to live far on the outskirts in pastel houses along idyllic artificial lakes, with 24-hour security guards screening visitors at the perimeter fence. Rest of article... [Mark Godsey]
On Campus Recruiting for Cyber-Crime Gangs
From psfk: According to a report conducted by Mcafee, the recent boom in cyber crime is forcing criminals to go to great lengths to recruit skilled hackers. The report claims that cyber crime gangs, who have the inclination and criminal skills no longer have the technological know-how to keep up and are being forced to recruit younger, tech-savvy students to carry out their cyber biddings.
These cyber gangs are recruiting the next generation of techies by sponsoring students through their IT degree, with the expectation that they will bring their 'unique skill set' back to the gang after graduation. Hyping up the glamours hacker lifestyle (as seen in this movie) is apperantly also a favored tactic for the criminal recruiters when reaching out to the younger kids. Rest of article....[Mark Godsey]
December 10, 2006
FLA considers Attacks on Homeless as Hate Crime
Story... [Mark Godsey]