May 26, 2007
Can We Call Environmental Activists Terrorists?
From NPR.com: In Oregon, a federal judge has begun sentencing a group of environmental activists who pleaded guilty to charges of conspiracy and arson from 1996 to 2001. Are they terrorists, as prosecutors assert? Listen. . . [Mark Godsey]
May 25, 2007
CrimProf Spotlight: Barbara Armacost
This week the CrimProf Blog spotlights Virginia Law CrimProf Barbara Armacost.
In the fall of 1992, Barbara Armacost returned to the Law School from which she graduated to become a member of the faculty. She teaches civil rights litigation, criminal investigation, torts, and First Amendment (religion clauses).
Armacost became a lawyer after a number of years in the nursing profession. During those years, she served as a head nurse in the cardiovascular unit at the University of Virginia Hospital and worked as a volunteer in a mission hospital in La Pointe, Haiti. In 1984 she earned a Masters Degree in Theological Studies from Regent College at the University of British Columbia. Her work earned her the Master of Theological Studies Proficiency Award and the Ethics Award for Academic Excellence.
Armacost subsequently worked as a paralegal before entering the Law School in 1986. While earning her J.D., she was honored here with the Thomas Marshall Miller Prize, Mary Claiborne and Roy H. Ritter Prize, and election to the Order of the Coif. She also served as notes editor of the Virginia Law Review. After graduation, she clerked for the Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. The following two years she served as attorney adviser in the Office of Legal Counsel at the U.S. Department of Justice. [Mark Godsey]
May 24, 2007
Marijuana Researchers Fight DEA to Grown Their Own
From washingtonpost.com: Armed with a legal decision in their favor, scientists and advocates of medical research on marijuana pressed the Drug Enforcement Administration yesterday to allow them to grow their own, saying that pot supplied by the government is too hard to get and that its poor quality limits their research.
The proponents said a DEA administrative law judge's recent ruling that it would be in "the public interest" to have additional marijuana grown -- and to break the government's monopoly on growing it -- had put them closer to their goal than ever before.
"The DEA has an opportunity here to live up to its rhetoric, which has been that marijuana advocates should work on conducting research rather than filing lawsuits," said Richard Doblin, president of the Multidisciplinary Association for Psychedelic Studies, which has fought for years for access to government-controlled supplies to test possible medical uses of marijuana.
"It's become more and more obvious that the DEA has been obstructing potentially beneficial medical research, and now is the time for them to change," he said.
The agency has opposed petitions that would end the government's marijuana monopoly, saying that the current system works well and that allowing other growers could lead to more diversion to illicit use. All the marijuana produced for research is grown at the University of Mississippi and distributed through the National Institute on Drug Abuse.
But a petition filed in 2001 by University of Massachusetts agronomy professor Lyle E. Craker seeking to grow marijuana in his greenhouses has worked its way through the DEA appeal process and resulted in a ruling against the agency earlier this year. Rest of Article. . . [Mark Godsey]
The School Drug Testing Controversy
From latimes.com: Concerned with high rates of adolescent substance abuse, hundreds of middle schools and high schools nationwide have quietly begun testing some or all students for drugs — to the dismay of some health and addiction experts.
Although less than 5% of all high schools have such programs, testing is now common in schools throughout Texas, Florida, Kentucky and parts of California. In Southern California, many private high schools have implemented drug testing, as have several public school districts in Orange County and San Diego. Nationwide, as many as 1,000 schools have established programs, according to the White House Office of National Drug Control Policy.
The number of schools administering drug tests is expected to grow. Federal funding for school drug testing increased 400% between 2003 and 2006. The Bush administration spent $8.6 million on such programs last year and has requested $17.9 million for fiscal year 2008.
"This is the best new idea to reduce the onset of drug use," says Dr. Robert L. DuPont, president of the Institute for Behavior and Health, a nonprofit drug policy organization that has studied school testing. "About half of high school seniors have used an illicit drug by the time they graduate and about one-quarter are regular users by the time they graduate. Those figures are worrisome."
School-based drug testing gives kids a reason to say no, say DuPont and other proponents. The tests are meant to identify students who are using and guide them into counseling or treatment programs before they develop addictions.
But health officials, by and large, oppose school-based drug testing. NAADAC, the Assn. for Addiction Professionals, has released a statement critical of such programs. And in March, the American Academy of Pediatrics cautioned against random school-based drug testing until more research is completed. The two groups are among those who say testing is not reliable enough, violates trust between adults and teens and is not set up to deal effectively with students who have positive results.
Rest of Article. . . [Mark Godsey]
CrimProf Bruce Winick Speaks at "Mental Disorder and the Criminal Law: Responsibility, Punishment, and Competence" Conference
University of Miami Law School CrimProf Bruce Winick will be a guest-speaker at a Conference held at the University of Nebraska - Lincoln titled "Mental Disorder and the Criminal Law: Responsibility, Punishment, and Competence." Professor Winick’s talk is entitled “Determining When Serious Mental Illness Should Disqualify a Defendant from Capital Punishment.”
In Atkins v. Virginia, the Supreme Court held that the Eighth Amendment prohibits capital punishment for those with mental retardation in view of their reduced culpability. This presentation examines substantive and procedural questions regarding the application of Atkins to offenders who manifest mental illness that reduces their culpability to a similar degree.
May 23, 2007
Arizona Getting Criticism for Execution Method
From azcentral.com: Arizona is gearing up to resume executions after a nearly seven-year hiatus. Another Arizona death-row inmate recently lost his last appeal. A third may be extradited from West Virginia.
But as Arizona lapsed in executions, lethal injection, its preferred method, has come under scrutiny as possibly cruel and inhumane.
In fact, a last-minute motion for reprieve filed on Comer's behalf by a Tucson capital-punishment watchdog group raised the risk of extreme suffering as grounds for a stay of execution.
The Arizona Supreme Court refused to consider the motion.
Of the 37 states that use lethal injection as a means of execution, more than a dozen have either granted stays or have completely halted executions because of legal or ethical challenges.
The Arizona Department of Corrections does not reveal the exact prescriptions and protocols of its lethal-injection procedures.
"Because of the lack of standards provided for in the statute, the lethal-injection process subjects condemned prisoners to significant and utterly unnecessary risks that they will be tortured to death," said public defender Victoria Washington, who, to no avail, has filed motions about the potential cruelty of lethal injection. Rest of Article. . . [Mark Godsey]
OK Turns to Faith To Stop Recidivism
From newsok.com: More than a quarter of Oklahoma criminals released from prison return within three years, but a bill passed out of the House on Tuesday seeks to lower that rate.
However, critics of the bill say it will funnel public money to church organizations running prison programs — a violation, they say, of the U.S. Constitution.
The legislation would encourage faith-based and other volunteer organizations to get involved in prisoners' lives, whether that means helping them find a job upon release or teaching them parenting skills while in prison; $100,000 has been allotted in the fiscal year 2008 budget to help these groups reduce Oklahoma's recidivism rate. Rest of Article. . . [Mark Godsey]
Louisiana Supreme Court Upholds Death Penalty for Rapist
From NYTimes.com: The Louisiana Supreme Court yesterday upheld the death sentence of a man convicted of raping an 8-year-old girl. Legal experts say the man, Patrick Kennedy, is the only inmate on death row in the United States who was not convicted of committing or participating in a killing.
“Looming over this case,” Justice Jeffrey P. Victory wrote for the majority in the 6-to-1 decision, “is the potential for the defendant to be the first person executed for committing an aggravated rape in which the victim survived” since the enactment of a 1995 state law that allows capital punishment for the rape of a child under 12.
In 1977, the United States Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The justices said the penalty would be disproportionate to the crime and was therefore forbidden as cruel and unusual punishment under the Eighth Amendment. But they left open the question of whether child rapists might be sentenced to death.
There has not been an execution for rape in the United States since 1964, and no one has been executed for a crime that did not involve a killing since the Supreme Court reinstated the death penalty in 1976. Before the Supreme Court suspended the death penalty in 1972, 16 states and the federal government authorized it for rape. Rest of Article. . . [Mark Godsey]
May 22, 2007
SCOTUS Allows Parents to Sue Schools Without a Lawyer
From NPR.com: Parents of disabled children won a major victory in the U.S. Supreme Court, as the justices ruled unanimously that parents do not have to hire a lawyer to sue a school district over providing an appropriate education for a child with special needs.
The court's ruling came in the case of Jeff and Sandee Winkelman, whose son, Jacob, is autistic. When he entered pre-school, Jacob's tantrums were severe enough that the district placed him in a special school for autistic children.
But after two years, Mrs. Winkelman says, there was a changing of the guard, and new school administrators and school board members said Jacob had to attend regular public school.
Under the Disabilities Act, parents are entitled to go to court to enforce the law, but a majority of the courts have required that parents be represented by a lawyer. If parents didn't have an attorney, their cases were thrown out.
Today, the U.S. Supreme Court unanimously ruled that parents cannot be shut out of court just because they are representing themselves.
The ruling was a blow to school boards across the country. National School Boards Association General Counsel Francisco Negron says that allowing non-lawyer parents in court will lengthen the process because parents are not legally trained and often are emotional. Listen. . . [Mark Godsey]
My Space Will Release Sex Offender Names
From plaindealer.com: Local police will soon know exactly which registered Ohio sexual offenders recently used MySpace.com, a social Internet site popular with children and adults alike.
MySpace, which last week rejected requests from eight state attorneys general - including Ohio's - for the list of offenders, reversed its decision Monday after being hit with subpoenas from several of the attorneys general.
"Our families are safer today as a result of the company's decision to relinquish these names," said Ohio Attorney General Marc Dann in a statement. Dann was among those threatening legal action against MySpace. Rest of Article. . . [Mark Godsey]
SCOTUS Decides L.A. County vs. Rettele
From latimes.com: Mistakes sometimes happen when police conduct home searches, the Supreme Court said Monday in throwing out Los Angeles County vs. Rettele, a lawsuit brought by a white couple in Southern California who were rousted from bed and held naked at gunpoint by deputies looking for several black suspects.
The search of Max Rettele and his girlfriend, Judy Sadler, in their bedroom may have been an error, and it was certainly embarrassing to them, the justices said. But it did not violate their rights under the 4th Amendment, which protects against "unreasonable searches and seizures," they added.
Police obtain search warrants based on probable evidence, not "absolute certainty," the court said in an unsigned opinion. "Valid warrants will issue to search the innocent, and people like Rettele and Sadler unfortunately bear the cost."
Without bothering to hear arguments in the case, the Supreme Court agreed and ruled for the deputies.
The couple's "constitutional rights were not violated," the court said in Los Angeles County vs. Rettele. The deputies "believed a suspect might be armed…. In executing a search warrant, officers may take reasonable action to secure the premises and to ensure their own safety and the efficacy of the search."
As for the innocent victims, "the resulting frustration, embarrassment and humiliation may be real, as was true here," the court said in its seven-page opinion. Nonetheless, "when officers execute a valid warrant and act in a reasonable manner to protect themselves from harm, however, the 4th Amendment is not violated."
Only Justice David H. Souter dissented from the order to reject the suit. In a separate statement, Justices John Paul Stevens and Ruth Bader Ginsburg concurred in the outcome without joining the court's opinion. Rest of Article. . . [Mark Godsey]
May 21, 2007
Death Row Inmates are Volunteering for Execution
From amnsety.org: Robert Comer, Christopher Newton and Elijah Page have something in common, aside from being on death row in the USA. Each of these three men is assisting their government in its efforts to kill them. They have given up their appeals and are "volunteering" for execution. Robert Comer is scheduled for execution in Arizona on 22 May 2007, Christopher Newton in Ohio on 23 May, and in the week of 9 July Elijah Page is due to become the first person to be put to death in South Dakota since 1947. In addition, on 4 May 2007, the Tennessee Attorney General requested an execution date for Daryl Holton, a former soldier with a history of depression, who has effectively waived his appeals and has been found competent to do so.
The execution of another "volunteer", Carey Dean Moore, due to be carried out in Nebraska on 8 May 2007, was stopped by the state Supreme Court on 2 May in view of concerns – not raised by Moore – about Nebraska’s use of the electric chair. In issuing its order, a divided Court noted that the "unique problem presented by this case is that Moore has not asked for a stay." It added, however, that "we simply are not permitted to avert our eyes from the fairness of a proceeding in which a defendant has received the death sentence", and that "we have authority to do all things that are reasonably necessary for the proper administration of justice".(2) It seems that not all courts have adopted such a view, and "volunteers" have gone to their deaths despite concerns about the fairness of proceedings that put them on death row or about the reliability of determinations that found them competent to waive their appeals.
About one in 10 of the men and women put to death in the USA since judicial killing resumed there in 1977 had given up their appeals. Outside of the five main executing states of Texas, Virginia, Oklahoma, Missouri and Florida, this figure rises to one in five for the remaining 28 jurisdictions that have executed since 1977. Four of the first five executions in the USA after 1977 were of "volunteers". Put to death by firing squad, electrocution, and gas, perhaps their personal pursuit of execution made it easier for the USA to stomach a return to a punishment that much of the rest of the world was beginning to abandon. Rest of Article. . . [Mark Godsey]
Conservative Christian Law Schools on the Rise Thanks to Falwell and Others
From chicagotribune.com: Some may have found it curious when Rev. Jerry Falwell's new Liberty University School of Law recently unveiled a $1 million teaching courtroom featuring exact-to-the-inch replicas of the U.S. Supreme Court bench and the lectern and counsel tables facing it. But Liberty faculty and students understood perfectly: Falwell intended his students to be well prepared to argue before and, ultimately, to serve on the highest court in the land.
Falwell, the prominent televangelist and father of the Moral Majority who founded Liberty University in 1971, died less than a week before the school granted its first law degrees to 50 graduates on Saturday. But his dream of "training a new generation of lawyers, judges, educators, policymakers and world leaders in law from the perspective of an explicitly Christian worldview" remains very much alive.
And that's true not just at Liberty, with its evangelical Baptist heritage, but at a growing number of conservative Christian law schools, such as the Ave Maria School of Law in Ann Arbor, Mich., which graduated its first class in 2003; the University of St. Thomas in Minneapolis, which graduated its first class in 2004; and Barry University School of Law in Orlando, founded in 1999 -- all Catholic schools. Televangelist Pat Robertson's 21-year-old evangelical Regent University School of Law in Virginia Beach, Va., was one of the first of this new wave of schools, while Liberty is the youngest. All of them are either fully or provisionally accredited by the American Bar Association.
"It's a really good and healthy development in legal education," said John Garvey, dean of the Boston College Law School, a Jesuit school, and president-elect of the Association of American Law Schools.
Rest of Article. . . [Mark Godsey]
CrimProf David Moran Discusses the Pot Brownie Overdose Story
From salemnews.com: Wayne State University CrimProf David Moran recently commented on the story about a 28-year old Dearborn, Michigan police officer named Edward Sanchez, who called 911 and said he and his wife were dying, from a marijuana brownie overdose. It turns out the weed was stolen from criminal suspects, and that is when this sadly comical story just starts to get traction.
CrimProf Moran described Sanchez's behavior as problematic, and he applied the same assessment of the Police Department's decision not to charge him.
"It is not as unusual as it should be for the police to look the other way when an officer commits an infraction, but this is a lot worse than the average police officer speeding a little bit," Moran told The AP. Rest of Article. . . [Mark Godsey]
May 20, 2007
CrimProf Laurie Levenson Explains How Lying Defendants Hurt Themselves
From Bakersfield.com: Loyola Law School CrimProf Laurie Levenson recently explained the problem with lying defendants with regard to Vincent Brothers case in which the Deputy District Attorney Lisa Green argued to jurors that Brothers lied to them 41 times in his testimony in his trial concerning the murders of his wife, child, and mother-in-law.
Brothers testified he got into a crash with a boy on a bicycle in Columbus, Ohio, on the same day in July 2003 that his wife, Joanie Harper; their three children, Marques, Lyndsey and Marshall; and Joanie Harper's mother, Earnestine were killed in Bakersfield.
That was the biggest lie of all, Green said in court, after finding the man she believes was really in that crash and convincing him to testify.
Lying is poison to a defendant's credibility, legal experts agree.
"When the defendant comes off badly, he is not just seen as a killer, but a killer and a liar -- a man with basically no conscience." said Loyola Law School CrimProf Laurie Levenson. Rest of Article. . . [Mark Godsey]
How the Gault Case Changed Juvenile Law
From NPR.com: In 1967 a landmark U.S. Supreme Court decision gave juveniles accused of crimes the same due process rights as adults. The case involved Jerry Gault, who at 14 was given a seven-year sentence for a prank phone call. Gault's story didn't end there. Listen. . . [Mark Godsey]
CrimProf Mark Denbeaux and Law Student Published "The Attorney-Client Relationship in Guantanamo Bay"
Seton Hall CrimProf Mark Denbeaux and Christa Boyd-Nafstad, who will be receiving her J.D. degree from Seton Hall Law on May 25, have had their article “The Attorney-Client Relationship in Guantánamo Bay” accepted for publication in the upcoming issue of the Fordham International Law Journal.
The article details how attorneys representing clients in Guantánamo are at the heart of “cause lawyering,” similar to the civil rights attorneys of the 1960s, as they seek to advance a cause, create a dialogue and spark change, but with one critical difference. As a result of government regulations, cultural differences and a resulting inequality in the attorney and client relationship, lawyers representing detainees in Guantánamo find themselves limited in their ability to adequately represent those clients.
“The relationship between the attorney and the client in Guantánamo Bay is severely limited in two major respects,” says Boyd-Nafstad, of Tom Bean, TX. “First government regulations hinder the flow of information between the attorney and the client, and second the client has little, or no, knowledge of the U.S. legal system, making it difficult for the client to trust and realize the role of the attorney.”
Boyd-Nafstad also edited the second of Seton Hall Law’s “Guantánamo Reports” in preparation for Denbeaux’s testimony before the Senate Armed Services Committee in April. [Mark Godsey]