February 17, 2007
CrimProf Victor Streib Releases "The Fairer Death: Executing Women in Ohio"
From DPIC.org: The Fairer Death: Executing Women in Ohio is a new book by Ohio Northern University CrimProf Victor Streib. The book explores Ohio’s use of the death penalty for women and examines the implications for women on death row throughout the country. Streib carefully describes the cases of all four women executed by Ohio in its history and those of the 11 women sentenced to death in the state during the modern death penalty era (1973-present).
Professor Streib’s analysis of two centuries of Ohio’s use of the death penalty reveals no clear intent to exclude women, but, nonetheless, shows the strong possibility of gender bias. The book provides insight into the national experience of applying the death penalty, invoking questions about the rationale for the death penalty and the many disparities in its administration. National reviewers have characterized the book as a "magnificent work" with "richly detailed" and "vivid portraits" of Ohio's condemned women. [Mark Godsey]
February 16, 2007
CrimProf Spotlight: Allison Marston Danner
Allison Danner is an authority on international criminal law. She has authored amicus briefs on the law of war in litigation over the rights of enemy combatants and has published articles in leading journals, including the Stanford Law Review, the Virginia Law Review, and the American Journal of International Law.
In 2004, she received the prestigious Déak Prize from the American Society of International Law for outstanding scholarship by a young author. She is a past member of the Board of Visitors of Stanford Law School and the Executive Council of the American Society of International Law.
Before joining the law faculty, Professor Danner was a clerk for United States Supreme Court Justice John Paul Stevens and for Court of Appeals Judge John T. Noonan, Jr. Her scholarship and expertise encompass a variety of international law topics, including public international law, international criminal law, international trade law and policy, as well as U.S. criminal law. She is affiliated with Vanderbilt's International Legal Studies Program. In 2006, she served as a Visiting Professor at Harvard Law School and at U.C.L.A. Law School. [Mark Godsey]
February 15, 2007
The State With the Greatest Prison Growth. . .Montana?
From greatfallstribune.com: Based on current trends, Montana is projected to have the nation's greatest growth in prison population over the next five years. Montana could house 41 percent more prisoners by 2011, according to a new report by the Pew Charitable Trusts.That would raise Montana's incarceration rate from 298 per 100,000 people in 2006 to 414 in 2011, which would still be below the projected 50-state average of 480 inmates per 100,000 people in five years. The Montana projections are based on statistics from the state Department of Corrections. "This forecast is an image of what may be, not necessarily what will be," Corrections spokesman Bob Anez said Tuesday. "It assumes no changes, but we're making a lot of changes. Rest of Article. . . [Mark Godsey]
Montana could house 41 percent more prisoners by 2011, according to a new report by the Pew Charitable Trusts.That would raise Montana's incarceration rate from 298 per 100,000 people in 2006 to 414 in 2011, which would still be below the projected 50-state average of 480 inmates per 100,000 people in five years. The Montana projections are based on statistics from the state Department of Corrections.
"This forecast is an image of what may be, not necessarily what will be," Corrections spokesman Bob Anez said Tuesday. "It assumes no changes, but we're making a lot of changes.
Rest of Article. . . [Mark Godsey]
State Commission Urges NJ to Close Ammo Loophole for Ex-Cons
From nj.com:The state Commission of Investigation called yesterday for legislation to close a "patently ridiculous" loophole that allows ex-convicts to purchase ammunition in New Jersey even though they cannot legally own a firearm.
The recommendation is among nine issued by the agency following a probe that found dozens of instances in which criminals with rap sheets for everything from assault ing police officers to rape legally purchased ammunition for guns they could not lawfully own.
"While New Jersey maintains some of the most stringent and restrictive laws in the United States governing the purchase and sale of handguns, the trade in actual bullets -- the very projectiles that make firearms lethal -- remains a wide-open, unregulated bazaar," commissioners wrote in a report on the issue. "It is patently ridiculous, shocking even."
The SCI's report recommended closing the loophole by requiring consumers who want to purchase ammunition to show they have a valid state firearms permit and that the gauge of the ammo matches the caliber of the handgun they own. Buyers can currently display any form of identification to establish proof-of-age -- 21 for handgun ammo and 18 for long- gun ammo.
The commission also suggested those permits be renewed every three years and include digital photographs and firearm serial numbers. In addition, it recommended tightening ammunition sales in stores; regulating mail-order and Internet sales; and strengthening criminal penalties for unlawful am munition sales, purchases and pos session. Rest of Article. . . [Mark Godsey]
New York Divorcee Jailed in "Debtor's Prison"
From NYTimes.com: Like many of the one million Americans who go through a divorce each year, Marvin Singer is indignant, depressed, financially stressed and convinced that he is a victim of judicial abuse. Unlike all but a tiny number, Mr. Singer, 71, is also in jail.
According to the official record, Mr. Singer was jailed for refusing a judge’s order to pay his ex-wife’s lawyer $100,000 — about half of what he owes for her legal representation during their six-year tug-of-war over marital assets.
According to Mr. Singer, he is an inmate in a modern-day debtor’s prison.
“In this country, you’re not supposed to go to jail for owing money,” said Mr. Singer, a real estate lawyer who may or may not have retired, depending on which side of this bitter struggle one sits. “I haven’t hurt anyone. I haven’t robbed anyone. How could this be?”
There is no record of how many people travel a path from divorce court to jail. Administrators of the matrimonial courts in New York and other states track how many divorces are filed, and how many are resolved, but not how many litigants in irreconcilable marriages end up in irreconcilable rows with the judge. Rest of Article. . . [Mark Godsey]
February 14, 2007
Teenage Murderer Shot to Death
From NPR.com: Police say Salt Lake City, Utah, teenager Sulejmen Talovic killed five people and wounded four others at the Trolley Square Mall before he was confronted by an off-duty officer. Tolovich was shot to death by police. Listen. . . [Mark Godsey]
New Article Spotlight: THe Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty
From SSRN.com: University of Arizona CrimProf Jack Chin, fresh of his Daily Show debut, is back to work with more of his cutting edge scholarship with his new piece "The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty" Here is the abstract:
When analyzing the consequences of and remedies for discrimination against African Americans, courts and scholars characterize African Americans as a minority. This Article shows that the traditional approach is wrong: When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule. African Americans and their white allies were stripped of their electoral majority through fraud, violence and illegal disenfranchisement.
This Article argues that the most important harm African Americans suffered was something that the law has until now overlooked: Loss of the right to control the governments of several Southern states. This injury means that current African Americans disadvantage likely rests on a constitutional violation; Jim Crow could not have happened had democracy functioned as provided in the Constitution. Consideration of African American majority status also sheds new light on the counter-majoritarian difficulty. In reviewing measures oppressing African Americans, the Court did not have to balance majority rule against minority rights; instead, majority rule and constitutional rights both militated toward invalidation of laws passed by a minority to oppress the majority.
New Article Spotlight: When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong
From SSRN.com: Chapman University School of Law CrimProf Jeremy M. Miller recently published "When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong." Here is the abstract:
Miranda was judicial fiat, at its worst, it was ultra vires, it was a usurpation of the legislative function, it was illogical, it was - being complimentary - the second try at handling a social problem, it was verbose, it confused the Sixth Amendment Right to Counsel with the Fifth Amendment Self-Incrimination Clause, it was filled with dictum that was inexorably eroded from its birth to the present, it changed the long-held belief that the self-incrimination right attached at trial or trial-like proceedings, not in the street; but it was idealistic, it attempted to maximize the truth-finding function of trial, it maximized individual dignity and liberty. Additionally, it relied on the intrinsic equitable powers of the High Court to fashion appropriate remedies.
The Framers were not plagued by crime, nor did they have a massive police force. They were aware that uncorroborated confessions were unreliable; and thus the corpus delicti rule was and is part of our common and extant law. The rule precludes convicting an individual based solely on his or her own uncorroborated confession.
Then the High Court began an embarrassing set of stumbles. Correctly, it held the right to counsel of the Sixth Amendment, in Massiah, applied after formal charging. But it stumbled badly in Escobedo, in holding that the “target” of a criminal investigation must be told of his or her right to counsel - whether or not that person is arrested or formally charged.That case has been over-ruled.
The rule proved as impracticable as it was ridiculous, and has been riddled by exceptions. The Miranda opinion has been carved up, almost beyond recognition.
The simple rule should have been to mandate the arrestee be told of the right to silence, and that at jail or on the street, the arrestee be offered counsel—thus moving the Sixth Amendment Counsel right, also, to the pre-trial arena of jail or arrest.
A brief statement as to the historical background of this clause will be helpful for interpretation. Even in colonial times an inquisitorial, torture-laden, trial by ordeal method was not uncommon. Likewise there was hostility to the "ex officio" oath. The ex officio oath, was a badge of infamy on an often exemplary common law. It required the defendant place his or her hand on a Bible and promise to tell the truth to questions then asked him or her. After this point, incriminating answers were sought, and were punishable. Further, there was no right to refuse to answer. Perjury, incidentally, was a capital crime. Sir Edward Coke, an Elizabethan English lawyer and judge, placed his career on the line to have the ex officio oath ousted from the common law. In fact, King James did just that - he was removed from office for this stand. The Lilburne trial and tragedy, also in the 1600s in England, more than anything, cemented these procedural rights into the common law. Here, the rebel writer Lilburne was tortured and tried. He dramatically emphasized this lacking in the then English system, and by his eloquence and popular support, brought the safeguards we now have into their system, via the Self-Incrimination Clause.
Another source of the privilege was the 1689 Scottish Claim of Rights. It should be noted, however, that the right was not in the Magna Carta. James Madison, the principal author of the Amendment, purposefully used a broad drafting - so as to make the right, itself, broad.
Wechsler's seminal article, Toward Neutral Principles of Constitutional Adjudication and the critical stage analysis of the Wade/Gilbert line of cases (extending the right to counsel to pre-trial line-ups, transcripts and the like) allowed the High Court to rule that police interrogation after arrrest is a critical stage - but under the SIXTH amendment (where it belongs). [Mark Godsey]
February 13, 2007
Courts Put a Gag Order On Divorced Parents
From NPR.com: A recent legal case put restrictions on the language of divorced parents. It's just the latest effort by the courts to manage life after divorce for the children involved.
UCLA constitutional law professor Eugene Volokh discusses the implications of the trend with Scott Simon. Listen. . . [Mark Godsey]
William & Mary Hosts "Women and Prisons"
On Saturday, Feb. 24, 2007, the William & Mary Law School will host a symposium titled “Women and Prisons.” The symposium is sponsored by the William and Mary Journal of Women and the Law and will be held from 9:30 a.m. to 3 p.m. in the Law School’s McGlothlin Courtroom.
The symposium will explore a variety of issues including, for example, a human rights framework for prison reform, how women’s incarceration affect their families, and the effect of post 9/11 security concerns and anti-immigration policies on incarcerated Latina women and their families. The event’s goal is to help provide a voice to women who suffer silently in prisons and to explore what can be done to ensure a better prison system.
Speakers will include:
- Elizabeth Alexander, Director of the National Prison Project of the ACLU. Ms. Alexander has argued several major prisoners' rights cases before the Supreme Court, including Farmer v. Brennan, Wilson v. Seiter, and Lewis v. Case, and has testified before Congress on the subject of health care within the prison system. Topic: how women’s incarceration affects their families
- Jenni Gainsborough, Director of the Washington office of Penal Reform International. Ms. Gainsborough has worked previously with The Sentencing Project and the National Prison Project of the ACLU. Topic: “The Reality of Prison for Women Worldwide and the Implications of a Human Rights Framework for Prison Reform”
- Sandra Guerra Thompson, Law Foundation Professor and Criminal Justice Institute Director, University of Houston Law Center. Professor Thompson has authored numerous articles, focusing especially on drug sentencing, asset forfeiture and federal law enforcement. She is a former Chair of the Criminal Justice Section of the Association of American Law Schools. Topic: “Latinas and Their Families in Detention: Caught in the Web of Post 9/11 National Security Concerns and Anti-Immigration Policies”
- Kim White, Regional Director, Mid-Atlantic Region, Federal Bureau of Prisons. Ms. White joined the Bureau of Prisons in 1984 and has since held a variety of positions including Warden at FCI Danbury, CT, and Warden at FCI Fairton, NJ. Topic: to be announced.
More Info. . . [Mark Godsey]
Montana's First Mental Health Court is Up and Running
billingsgazette.com: The Montana's lone court specifically for mentally ill people accused of crimes is now in full operation here, after a startup that began with initial funding in 2003.
Without the Missoula Mental Health Court, many of the defendants who pass through it would languish in jail.The court works with prosecutors, defense attorneys and treatment agencies to help people accused of crimes that appear linked to mental illnesses.
"People noticed that drug treatment courts (for addicted offenders) were having positive results, so they began to look at other populations in the criminal justice system that were defined by very specific aspects of the offenders' lives," said Theresa Conley, coordinator for Missoula's mental-health court.
The goal is to divert nonviolent offenders, who have significant mental disorders, into treatment programs rather than keeping them in jail.
Proponents say treating mentally ill defendants less as criminals and more as people who are sick stands to better meet their needs, ease jail crowding and save money. A judge presiding over mental-health court might allow a person convicted of a nonviolent crime the option of participating in counseling or receiving medication, rather than serving jail time.
"We have inadequate mental-health care in Montana," said Standing Master Brenda Desmond, judge for the Missoula court. "We're a far cry from solving the problem, but incarceration is certainly not the solution." Rest of Article. . . [Mark Godsey]
February 12, 2007
Women's Prison Hospital Under Scrutiny
From fwweekly.com: Hospital personnel at the Federal Medical Center in Carswell, TX took so long to call the exterminators for an ant infestation in December that the tiny biters were found crawling on comatose and dying patients in their beds and covering the body of at least one paraplegic.
Last week a woman with heart trouble collapsed and died after complaining repeatedly that her pacemaker was not working properly, only to be sent back to her ward without treatment. And when prison authorities were told last month by one of their own doctors that a breast cancer patient whose left breast had been removed needed a CAT scan because of a probable recurrence of cancer, she was ordered instead to go for a mammogram on the breast that no longer exists. When she demanded the scan instead, she was written up for refusing medical care.
Those charges and others were made recently by two inmate patients at Carswell — Ramona Holcombe, the breast cancer victim who, according to her attorney, also witnessed the ant infestation, and a second woman who found the dead inmate. The latter asked for anonymity for fear of retaliation. These are just the latest, however, in the litany of allegations of medical misconduct and neglect reported to Fort Worth Weekly since 1999 by female prisoners and their families at the facility located just outside Fort Worth’s western city limits, the only hospital in the country for chronically ill and dying women in the federal penal system.
The federal Bureau of Prisons for years has ignored, denied, and downplayed the growing mountain of evidence of often- fatal malpractice at Carswell. Now, with a U.S. senator, a retired Texas judge, a sitting federal judge, and others finally bringing official attention to bear, prison officials have responded — and their responses are filled with contradictions, errors, and statements that make it appear that they don’t even know which civilian hospital they send their patients to. The responses also indicate that families have repeatedly been given false information about such things as autopsies. Rest of Article. . . [Mark Godsey]
The Death Penalty is Dying in US
From Washingtonpost.com: In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.
The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoriums on the death penalty; executions in New York are on hold after the state's death penalty law was declared unconstitutional in 2004; 11 states (including, most recently, Florida and Tennessee) have effectively barred the practice because of concerns over lethal injection; and 11 more are considering moratoriums or repeals.
The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 we executed 98 people, and in 2006 that number dropped to a 10-year low of 53. Whereas America steadily condemned about 300 prisoners a year to death through the 1990s, that number has declined by more than half and reached a low of 114 in 2006. Public support also seems to be faltering. A Gallup poll last year showed that two-thirds of the country still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 percent) to capital punishment (47 percent) for the first time in 20 years.
The new uncertainty over capital punishment ranges from queasiness over the methods of execution to concern that we are executing innocents. Lethal injection, the preferred method of execution in 39 of the 40 states that permit capital punishment, is particularly fraught with problems.
Rest of Article. . . [Mark Godsey]
LA Creates Gang List
From NPR.com: In Los Angeles, a new strategy of listing the city's worst gangs has created a stir among some of the gang-bangers who've been identified. But it remains to be seen whether the list will make a difference as Los Angeles authorities launch a major crackdown on gang violence.
Listen. . . [Mark Godsey]
February 11, 2007
New Attempts to Prevent the High Police Suicide Rate
USATODAY.com: The California Highway Patrol is developing training for suicide awareness and prevention after eight troopers killed themselves in eight months last year, for a total of 13 since September 2003. The CHP toll is "the largest cluster I've seen for a department that size," says Robert Douglas, executive director of the National Police Suicide Foundation.
The International Association of Chiefs of Police is circulating a proposal to make suicide prevention tools available to all of the nation's nearly 18,000 state and local police agencies. "Current police culture … tends to be entirely avoidant of the issue," leaving suicidal officers with "no place to turn," a draft of the proposal says.
The suicide foundation says it has verified an average of 450 law enforcement suicides in each of the last three years, compared with about 150 officers who died annually in the line of duty. Douglas says no more than 2% of the nation's law enforcement agencies have prevention programs.
Suicide rates for police — at least 18 per 100,000 — are higher than for the general population, according to Audrey Honig, chief psychologist for the Los Angeles County Sheriff's Department.
Rest of Article. . . [Mark Godsey]
CrimProf Justin Brooks and His California Innocence Project Helps Exonerate and Innocent Man
After serving more than 20 years in jail for a murder he did not commit, Timothy Atkins’ conviction was overturned when the California Innocence Project at California Western School of Law petitioned Judge Michael Tynan to consider new evidence that proved Atkins’ innocence.
“Timothy Atkins is an innocent man who has spent the majority of his life incarcerated for a crime he did not commit,” said California Western CrimProf Justin Brooks, director of the California Innocence Project and Atkins’ lead attorney. “Judge Tynan should be praised for revisiting this case so many years later and making things right.”
Atkins was convicted of one count of murder and two counts of robbery on July 28, 1987, after being identified by a frightened woman who witnessed her husband being shot in the chest during an attempted carjacking. The police were led to Atkins when a woman named Denise Powell told police that Atkins had confessed to being an accomplice in the killing.
Recently, in a Los Angeles courtroom, Denise Powell testified that she fabricated the story of Atkins’ confession. In recanting testimony that helped convict Atkins, Powell said she made the confession up and was afraid of changing her story after lying to police.
In addition to the recantation of Powell’s testimony, the original defense attorney, David Wesley, also took the witness stand to bat for the man’s innocence.
“Although it has taken way too long and Tim can never get the years back, we are thrilled that the court has recognized that Timothy Atkins’ conviction cannot stand,” said California Western Professor Jan Stiglitz, co-director of the California Innocence Project. “We really appreciate that Judge Tynan was willing to give Atkins a hearing. Sadly, in many cases we cannot even get that far.”
This is the fifth client that has been released by the work of the California Innocence Project. Of more than 300 documented cases of wrongful conviction in the U.S., nearly two-thirds are the result of erroneous identification. Rest of Article. . . [Mark Godsey]
CrimProf Susan W. McGraugh Recetly Discussed Whether DNA Evidence Could Help Convict a Man Suspected of Many St. Louis Murders
From stltoday.com: St. Louis University School of Law CrimProf Susan W. McGraugh recently discuessed the likelihood of the DNA match linking Gregory Bowman to the murder in 1977 of Velda Joy Rumfelt, 16, a girl from St. Louis who was found raped and strangled in a remote area of southwestern St. Louis County leadingto a conviction.
In July 1978, Bowman was arrested for abducting a woman from Belleville at knifepoint from a laundromat. She fought him off and escaped. Bowman was later convicted in that case.
In 1979, Bowman was convicted of murdering Elizabeth West, 14, and Ruth Ann Jany, 21, in the summer of 1978. West, a high school student, and Jany, a nurse, were found dumped in rural areas of St. Clair County. This conviction was largely based on a confession and for a short period of time he was released on bond.
The conviction, however, was thrown out in 2001, two years after reports in the Post-Dispatch raised questions about the way the confession had been obtained. Judge Richard A. Aguirre ordered a new trial, expected sometime this year. Aguirre ruled in 2005 that prosecutors would still be able to use Bowman's confession. He is currently awaiting his retrial.
CrimProf McGraugh said a DNA match alone would not secure a conviction. "A DNA match is not a fingerprint," McGraugh said. "But it does strengthen a case." McGraugh said Bowman's attorneys could question the DNA testing process. "It's my understanding that the same lab had both (DNA) samples at once," McGraugh said. "That introduces the risk of cross-contamination."
Rest of Article. . . [Mark Godsey]
Alabama Environmentalists Lobby
for solar-powered electric chair. Doyle Redland from the Onion reports here. [Mark Godsey]