Tuesday, April 29, 2008
From The School Law Blog: A federal appeals court has rejected a constitutional challenge to a federal law that restricts, and in some cases bars, students with drug convictions from participation in federal college aid programs.
A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled in Students for Sensible Drug Policy Foundation v. Spellings that the controversial sanctions do not violate the double-jeopardy clause of the 5th Amendment.
From the New York Times: About 1,100 people have been executed in the United States in the last three decades. Harris County, Tex., which includes Houston, accounts for more than 100 of those executions. Indeed, Harris County has sent more people to the death chamber than any state but Texas itself.
Yet Harris County’s capital justice system has not been the subject of intensive research — until now. A new study to be published in The Houston Law Review this fall has found two sorts of racial disparities in the administration of the death penalty there, one commonplace and one surprising.
From NPR.com: As the wars in Iraq and Afghanistan put renewed focus on the issue of veterans' mental health, a judge in Buffalo, N.Y., has created a special court to assist veterans who wind up in the criminal justice system.
Monday, April 28, 2008
From associated press: Federal researchers say they've developed a human identification test that's faster and possibly cheaper than DNA testing. It would be a handy new weapon in the arsenal for detectives, forensic experts and the military, though no one expects it to replace DNA analysis — and its promoters say it is not intended to. The new method analyzes antibodies. Each person has a unique antibody bar code that can be gleaned from blood, saliva or other bodily fluids. Antibodies are proteins used by the body to fend off viruses or perform routine physiological housekeeping. "DNA is a physical code that describes you ... and in many ways so are your antibodies," said Dr. Vicki Thompson, a chemical engineer at the Idaho National Laboratory who's been working with other researchers to perfect the test for the past 10 years. Rest of story here. [Mark Godsey, hat tip Marty Yant]
Sunday, April 27, 2008
From seattlepi.com: After a series of reports criticizing the handling of evidence at Washington crime labs, the state's Forensic Investigations Council has weighed in, agreeing that an employee who falsely certified test results cast "a cloud of doubt" over the workings of the entire laboratory system.
But after making six recommendations for improvement, the group of local government representatives and pathologists who make up the council praised the majority of lab workers as "dedicated, hard-working" and honest.
They "certainly did not deserve to have the actions of two people affect the public perception of their work," the report concludes.
Doubts about the accuracy of the lab's breath-test results surfaced last summer, when toxicology lab manager Ann Marie Gordon was accused of signing off on scientific tests in cases she hadn't actually done.
Another employee, Evan Thompson, made technical errors and violated lab procedures when analyzing a bullet's trajectory.
Both have since resigned.
From daily.stanford.edu: Stanford CrimProf Jeff Fisher is no stranger to the Supreme Court — he’s argued before the high court nine times. But when he stepped in front of the nine justices last week to argue the case of a convicted child rapist hoping to avoid the death penalty, the stakes were higher than they ever have been before.
Fisher, the co-director of the Stanford Supreme Court Litigation Clinic, is representing Patrick Kennedy, a Louisiana man who has been sentenced to death for raping his eight year old stepdaughter. If his death sentence is upheld, Kennedy will become the first rapist to be executed in America since 1964.
According to Fisher, such a ruling would open the door to the expansion of the death penalty as punishment for a variety of other crimes, and increase the number of inmates eligible for the ultimate penalty fivefold.
“This was definitely one of the very biggest [cases] that I’ve done, in terms of the intensity and importance,” Fisher said. “The constitutional cases always have a weightier air in the room because the Court really has the final say.”
Thursday, April 24, 2008
From the New York Times: The actor Wesley Snipes was sentenced to a maximum of three years in federal prison on Thursday for three misdemeanor convictions of failure to file his income taxes.
Mr. Snipes was also sentenced to one year of supervised release. He remained free Thursday, and will be notified later when he should report to prison.
His lawyer requested a facility not too far from his family’s home in New Jersey, and the judge said he would recommend that.
Mr. Snipes was convicted by a federal jury on Feb. 1 on three of the lesser charges that he faced and was acquitted on the most serious charges.
Wednesday, April 23, 2008
Today Seton Hall University School of Law sponsored a day-long conference, LEGISLATION, LITIGATION, REFLECTION AND REPEAL: The Legislative Abolition of the Death Penalty in NJ, which explored the events and advocacy that led to the repeal of the death penalty in New Jersey and proposed ideas for models that could be adapted by other states across the country. The event was hosted by Seton Hall Law Dean Patrick Hobbs and Hon. James Zazzali, former Chief Justice of the Supreme Court.
Governor Jon Corzine, who served as the luncheon speaker commented, “There were many reasons to ban the death penalty in New Jersey. It is difficult, if not impossible, to devise a humane technique of execution that is not cruel and unusual, and to develop a foolproof system that precludes the possibility of executing the innocent. New Jersey spent more than a quarter of a billion dollars to maintain its capital punishment system since 1982, even though it had not carried out a single execution for more than four decades, demonstrating little collective will or appetite to enforce this law.
" CrimProf Lassiter expounds the ideal that law school is about “learning to think like a lawyer,” wrote his students when nominating him for the Goldman Award. . Merging thought-provoking hypotheticals and meaningful discussion, he challenges students to think harder while clarifying difficult legal issues. It is uncommon for a student to leave his class without having learned something!
Professor Lassiter teaches courses in criminal law, criminal procedure and white collar crime. In nominating him, students noted that he is far from an intellectual lightweight. In fact, he is considered to be one of the most intelligent and well-respected professors at the College of Law.
This has been exemplified by the large number of students who seek out any class they can take with him. In addition to maintaining an open door policy, Professor Lassiter demonstrates over and over that he genuinely cares about student education and their professional experiences. Students comment that his intelligence, energy, theatrics and occasional song keep them coming back!
The U.S. Supreme Court decided Virginia v. Moore today. The Court rejected Moore's claim that his arrest, and the search incident thereto, violated the Fourth Amendment by virtue of the fact that the arrest was made in violation of state law. Virginia law provides that the misdemeanor for which Moore was arrested is generally a non-arrestable offense. When the officers mistakenly arrested him, they found crack cocaine and a large sum of money in a search incident to the arrest, leading to a possession with intent to distribute charge.
The virtually unanimous result -- Justice Ginsburg concurred only in the judgment -- was expected but, I think, unfortunate. The opinion, written by Justice Scalia, gives short shrift to the notion that "unreasonable" searches and seizures under the Fourth Amendment may encompass those that are not allowed by state law. After all, the Fourth Amendment, and the rest of the Bill of Rights, originated as a result of the anti-federalist's fears of a powerful federal government. They insisted on the inclusion of the Bill as a condition of ratification of the Constitution in several key States. The Bill of Rights thus aligns state power and individual liberties against the awsome power of the new and fear-inducing central government.
Given this, is it so unnatural to think that the Fourth Amendment's use of the term "unreasonable searches and seizures" is shorthand for "searches and seizures prohibited by the laws of each respective State?" In this way, federal power would be constrained because federal officers could search and seize only to the extent that state officers could do the same. State norms would dictate federal norms.
The Court's initial observation that "if anything . . . founding-era citizens were skeptical of using the rules for search and seizures set by government actors as the index of reasonableness," slip op. at 4, misses the mark because it elides the distinction between federal actors and state actors, combining them into one category -- surely, one foreign to the framers and ratifiers -- of "government actors." Founding-era citizens were indeed skeptical of federal actors; but they were far more sanguine about state actors, who were likely to be their friends and neighbors and in whose selection they might have some say.
Of course, that might explain Fourth Amendment constraints on federal actors. Moore, of course, complained of an unlawful seizure by state actors so his claim is technically one grounded in the Fourteenth, not the Fourth, Amendment. But it also seems sensible to me that the Fourteenth Amendment's requirement of "due process of law," like its predecessor in Magna Carta, which referred to "the law of the land," might simply require no more and no less than that States actually follow their own law. After all, the primary concern of the framers and ratifiers of that Amendment was the disparate treatment of freed African-American slaves and relocated Northern Unionists. What better way to assure their protection, to paraphrase Justice Jackson's famous concurrence in the Railway Express case, than to require, not particular substantive standards of search and seizure law, but simply that everyone be subjected to the same standards, whatever they may be? If this view were to take root, our Fourth Amendment law would look very different. Indeed, it would be turned on its head -- there would be no uniform Fourth Amendment doctrine and the only question, in both federal and state court, would be whether state law was followed. Notice the elegant symmetry: both state and federal officers would be constitutionally required to follow the same (state) rules.
As the Court notes, "linking Fourth Amendment protections to state law would cause them to `vary from place to place and from time to time.'" Slip op. at 11 (quoting Whren v. United States, 517 U.S. 806, 815 (1996). But so what? First of all, this is already true to some extent. For example, running from the police in Washington Heights, NY (a "high-crime area"), without more, probably generates reasonable suspicion while doing the same thing in Scarsdale, NY (a "low-crime area"), without more, probably does not. Moreover, other constitutional provisions incorporate local standards, most notably the First Amendment definition of obscenity and the Sixth Amendment requirement of effective assistance of counsel. But most powerfully, the notion that the Fourth Amendment can vary, at least from time to time, was put forth by none other than the author of Moore, Justice Scalia, in his dissenting opinion in Georgia v. Randolph (2006):
"There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ” Phillips v. Washington Legal Foundation, 524 U.S. 156, 164, 118 S.Ct. 1925, 141 L.Ed.2d 174 (1998) (quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). The same is true of the Fourteenth Amendment Due Process Clause's protection of “property.” See Castle Rock v. Gonzales, 545 U.S. 748, ----, 125 S.Ct. 2796, ----, 162 L.Ed.2d 658 (2005). This reference to changeable law presents no problem for the originalist."
From Law.com: The 9th U.S. Circuit Court of Appeals ruled Monday that border control agents who found child porn on a traveler's laptop didn't violate the man's right to be free from unreasonable searches.
"We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," Judge Diarmuid O'Scannlain wrote. O'Scannlain went on to say that the defendant "has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers' luggage that the Supreme Court and we have allowed."
He was joined by Judge Milan Smith Jr. and U.S. District Judge Michael Mosman, sitting by designation from Oregon.
Tuesday, April 22, 2008
Stanford CrimProf Mariano-Florentino Cuellar has published The Political Economies of Criminal Justice on SSRN. The Abstract: "Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control. This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice - including some beyond the scope of Simon's project - and considers their effects. Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime - including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention - draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state." Full text here. [Jack Chin]
An op-ed piece in the April 22 Richmond Times Dispatch by Richmond School of Law CrimProf Corinna Barrett Lain offers insight into issues surrounding the "Norfolk Four" case in which four Navy sailors were convicted and imprisoned for a 1990 rape and murder to which they had confessed, only to be totally exonerated by DNA evidence. Prof. Lain offers examples and explanations from her own career as a prosecutor to why innocent defendants falsely confess crimes. Read Article. . . [Mark Godsey]
From washingtonpost.com: For two decades, Scott L. Rendelman has sent letters threatening judges, prosecutors, presidents and others with graphic violence. Yesterday, as he was sentenced in federal court in Greenbelt, Rendelman told U.S. District Judge Roger W. Titus that he'd stop -- as long as Titus gave him probation instead of prison time.
Titus was not persuaded.
"You simply cannot do this to a judge and a prosecutor, much less the president of the United States," and expect probation, Titus said.
Monday, April 21, 2008
Maryland CrimProf Michael Pinard has posted this abstract on SSRN: "In recent years, record numbers of
individuals have been released from U.S. correctional facilities and
have reentered their communities. At present, approximately 650,000
individuals are released annually from U.S. federal and state prisons,
while an estimated additional 7 million are released from its jails. In
addition, the number of individuals with criminal records - whether or
not they were incarcerated - continues to climb. At present,
approximately 20 percent of adults in the United States have criminal
Part I [of this article] details the shortcomings of current reentry practice. Part II sets forth a reentry-centered vision of criminal justice that recasts the roles of defense attorneys, prosecutors, and judges. Part III sets out a couple of ways in which the reentry-centered model differs from models that, at first blush, appear to be similar and then explains that broader reforms are necessary to fully realize the reentry-centered vision." Full text here. [Jack Chin]
From npr.com: U.S. Supreme Court Justices John Paul Stevens and Antonin Scalia both voted last week that lethal injections in death penalty cases are constitutional. But that was where the agreements ended. In Stevens' opinion, he reversed the stance he held in the 1970s. Scalia criticized Stevens' reversal.
Stevens, who has served on the court for 33 years and turns 88 today, said that after seeing thousands of death penalty cases and systems over the years, he has now concluded that the death penalty is unconstitutional. But, he added, he is bound by the court's precedents upholding the capital punishment, and will adhere to them, including in the lethal injection case.
Ironically, Stevens was partly responsible for one of those key precedents. In 1976 he wrote part of the opinion ending a moratorium on the death penalty and allowing it to be used again, if special procedures were used to ensure that only criminals guilty of the most heinous crimes were executed.
In his recent last analysis, Stevens, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents the pointless and needless extinction of life with only marginal contributions to any discernible social or public purpose. A penalty with such negligible returns to the state is patently excessive and violates the Constitution's ban on cruel and unusual punishment.
Justice Scalia responded with a rhetorical skewer. Hardest to take, he said , is Justice Stevens' "bemoaning of the enormous costs of the death penalty," since as Scalia put it, those costs are largely the creation of Justice Stevens and other justices who have encumbered capital punishment with unwarranted restrictions found nowhere in the Constitution.
And as to Stevens' new conclusion about the death penalty based on more than three decades of experience, Scalia had this to say: "Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens experience, the experience of all others, in state legislature or Congress, is, it appears of little consequence." Listen. . . [Mark Godsey]
From baltimoresun.com: In a city where leaders have for years tried and failed to curtail one of the nation's highest crime rates, a University of Maryland law professor has turned his classroom into a crime-fighting think tank.
University of Maryland professor Orde F. Kittrie is challenging his 13 students this semester to come up with workable ideas for making Baltimore and the rest of Maryland a safer place to live.
The proposals, due in the form of term papers, are not destined for burial in a dusty file cabinet, the product of mere intellectual exercise.
Instead, they will be submitted to public officials, including - at their request - State's Attorney Patricia C. Jessamy and Attorney General Douglas F. Gansler, both of whom recently addressed Kittrie's class at the law school downtown.
From washingtonpost.com: Twenty years after DNA fingerprints were first admitted by American courts as a way to link suspects to crime scenes, a new and very different class of genetic test is approaching the bench.
Rather than simply proving, for example, that the blood on a suspect's clothes does or does not match that of a murder victim, these "second generation" DNA tests seek to shed light on the biological traits and psychological states of the accused. In effect, they allow genes to "testify" in ways never before possible, in some cases resolving long-standing legal tangles but in others raising new ones.
Already, chemical companies facing "toxic tort" claims have persuaded courts to order DNA tests on the people suing them, part of an attempt to show that the plaintiffs' own genes made them sick -- not the companies' products.
In other cases, defense attorneys are asking judges to admit test results suggesting that their clients have a genetic predisposition for violent or impulsive behavior, adding a potential "DNA defense" to a legal system that until now has held virtually everyone accountable for their actions except the insane or mentally retarded.
Some gene tests are even being touted for their capacity to help judges predict the likelihood that a convict, if released, will break the law again -- a measure of "future dangerousness" that raises questions about how far courts can go to abort crimes that have not yet been committed.
Most of these tests are still research tools hovering on the margins of admissibility; only a few have made the leap from the lab bench to the courtroom. But scientists' expanding ability to query people's genes, and lawyers' efforts to introduce those findings as evidence, are forcing scholars and judges to think in new ways about the Constitution's protections against self-incrimination and unreasonable search and seizure.
At its extreme, the prospect of getting an accurate handle on future dangerousness challenges the very notions of autonomy and free will that are at the core of any theory of criminal responsibility.