CrimProf Blog

New Article Spotlight: Victims, 'Closure', and the Sociology of Emotion

Highly Cited DePaul CrimProf Susan Bandes (visiting at Chicago) presented this paper at Arizona last week; a very persuasive and perceptive piece of work. The abstract:

"The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on whether any of these institutional processes or outcomes can actually contribute to a state of closure for survivors.

As  current research in disciplines including cognitive neuroscience, sociology, psychology, and political science suggests, emotions are dynamic processes that evolve in a reciprocal relationship with social structures. As the legal system becomes increasingly invested in helping victims and survivors achieve closure, we need to take a hard look at the emotional content of this concept, and at how it affects, and is affected by, the institutional framework in which it operates." Full text here.                       

New Article Spotlight: Correcting Search and Seizure History

Tennessee CrimProf Thomas Davies has posted Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law on SSRN.  The abstract: "The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities."  Full text Here.   [Jack Chin]

SCOTUS Hears Death Penalty for Rape Case

From npr.com: The Supreme Court on Wednesday takes up a major death penalty case testing whether capital punishment is constitutional for the rape of a child. It is the first time that the newly constituted Supreme Court will be examining what the standards are for determining what crimes can be punished by execution.

For the last three decades, the high court has limited the use of the death penalty, ruling that it can't be imposed against kidnappers who do not kill or even some accomplices to murder.

In 1977, the court, by a 7-to-2 vote, ruled that the death penalty is unconstitutionally cruel and unusual punishment for the rape of an adult woman. In that case, the victim was a 16-year-old woman — considered by the state to be an adult — raped by an escaped prisoner convicted previously for rape."

Execution is "excessive," the court said, for the rapist who does not take a human life.

In the 31 years since the decision, nobody has been executed for rape in the United States. But on Wednesday, the high court will hear arguments on the question of whether a person can be executed for rape if the victim is a child. Six states now have laws that allow capital punishment for child rape. Only Louisiana has actually sentenced anyone to death for child rape. The state allows execution for the rape of someone under age 13, and has two men on death row for the crime.

Rest of Article. . . [Mark Godsey]

Yale Law School Pocket Part Calls For Papers

The Yale Law Journal Pocket Part is soliciting commentaries and essays related to the legal issues presented by virtual worlds and economies. Submissions may address, but need not be limited to, the overlap with and implications for real-world institutions.

Scholarly and practitioner submissions that advance a novel perspective or proposal related to virtual worlds are encouraged in any area of law or legal policy. Pieces submitted should be timely, yet they should also address any relevant literature and developments in the field. Submissions should be no more than 1,500 words.

We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website, www.thepocketpart.org, and follow the link for "Submissions." The deadline for submissions is August 25, 2008. [Mark Godsey]

Michigan Law School Launches new Innocence Clinic

DNA evidence has already freed dozens of wrongfully convicted prisoners around the country, and that’s one reason Michigan Law’s new Innocence Clinic, opening in January, will focus on a potentially far larger group: prisoners convicted in cases where biological evidence like DNA doesn’t exist.

The new clinic will be headed by CrimProf Bridget McCormack, the Law School’s associate dean for clinical affairs, and Professor David Moran, who will join the faculty this fall as a clinical professor. Between eight and 14 law students each term will have the opportunity to work on convictions for a wide variety of crimes that appear unjust and in need of reversal.

Moran, who comes to Michigan from a position as associate dean of the Wayne State University Law School, helped found Cooley Law School’s Michigan Innocence Project in 2000. He has always believed that group’s concentration on DNA reversals could be augmented by looking at cases that relied on other types of evidence, in part because DNA is not often recovered in armed robberies, burglaries, assaults, and other less-serious crimes. And Moran says prisoners convicted of those crimes are at least as likely to be innocent as people convicted of rape or murder – which are usually both more intensively investigated and much more likely to yield biological evidence.

McCormack and Moran, for example, have been working together on a case involving two men who were convicted of a shooting and imprisoned after the judge ignored two eyewitnesses – and five other witnesses – who contradicted a victim who, later, also recanted.

“This clinic will provide students the opportunity to work on complex post-conviction cases, with litigation in the state and federal courts,” McCormack said. “The cases will be fact- and investigation-intensive, and will provide students with opportunities outside the courtroom as well as in working with media and public officials.” [Mark Godsey]

SCOTUS Backs Lethal Injection

From NPR.com: The Supreme Court on Wednesday upheld Kentucky's use of lethal injections for executions, clearing the way for a number of states to proceed with scheduled executions.

In a 7-2 decision, the justices rejected a constitutional challenge to the procedures in place in Kentucky, which uses three drugs to sedate, paralyze and kill inmates.

"We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment," Chief Justice John Roberts wrote.

Justices Ruth Bader Ginsburg and David Souter dissented.      

Executions across the country have been on hold since September, when the court agreed to hear the Kentucky case. Texas, which leads the nation in executions, has also had an unofficial moratorium. It is not known when executions will resume. Rest of Article. . . [Mark Godsey]

Abstracts Needed for Neuroscience, Law, and Government Symposium

On September 25 and 26, 2008, The University of Akron School of Law will host a symposium on Neuroscience, Law & Government.

Fascinating neuroscience developments are changing how we perceive and understand the world around us.  Many neuroscience discoveries have important implications for both law and government, particularly in detecting deception and visualizing mental illness, injury or disease. The U.S. Government is interested in potential uses for neuroscience, and the courts have begun to admit neuroimaging evidence at trial. This symposium considers the complicated intersections of neuroscience with government and law. Topics that may be included are:

• The current state of neuroscience and neuroimaging research
• Scientific and legal reliability standards for neuroscience research
• Neuroscience research and the "war on terror" - accuracy, privacy, national security, and the role of the state
• The legal implications of brain, mind, and person
• The Military Commissions Act and the admissibility of neuroscience evidence in tribunals
• Neuroscience and proof of mental illness, injury, and disease in criminal and civil trials
• Neuroscience and neuroimaging in death penalty casesNeuroscience and privacy

We are currently soliciting abstracts for those interested in presenting at the symposium.  Interested persons should send an abstract and CV to symposium chair, Professor Jane Campbell Moriarty, at moriart@uakron.edu by May 2, 2008. The law school plans to publish a symposium edition in its law review composed of papers and presentations.

          The keynote speaker for the symposium will be Henry T. Greely, Deane F. and Kate Edelman Johnson Professor of Law at Stanford.  Greely is a leading expert on legal, ethical, and social issues surrounding health law and the biosciences, and co-director of the MacArthur Foundation's Law & Neuroscience Project.  Other confirmed speakers include:

• Professor Jay D. Aronson, History, Carnegie Mellon University
• Professor Nita Farahany, Vanderbilt Law School
• Professor Daniel Langleben, Psychiatry, University of Pennsylvania;
• Professor Jonathan H. Marks, Bioethics, Humanities and Law, Pennsylvania State University;
• Professor Michael L. Perlin, New York Law School
• Professor Stacey Tovino, Drake Law School

To submit proposals or for further information, contact:

Professor Jane Campbell Moriarty
University of Akron School of Law
150 University Ave
Akron OH 44325-2901
moriart@uakron.edu
330.972.6796

Faulty Phot ID Practice was the Cause of Yet Another Wronful Conviction

From dallasnews.com: A questionable identification process nearly 23 years ago helped strip away freedom from Thomas Clifford McGowan Jr. Now the certainty of DNA testing is about to restore it.

Today, state District Judge Susan Hawk is likely to recommend Mr. McGowan's release after agreeing that new genetic evidence proves he could not have committed a 1985 rape and burglary in Richardson that sent him to prison for life.

    

Mr. McGowan is expected to be freed while the Texas Criminal Court of Appeals in Austin considers the judge's recommendation.

    

The 49-year-old would become the 16th Dallas County inmate to be cleared through DNA testing since 2001, the highest total for any county in the country. Like almost all of the other discredited convictions, Mr. McGowan's was based primarily on the victim selecting his photograph from a police lineup.

    

What is remarkable about Mr. McGowan's case, according to one of his defense attorneys, is the ordinariness of the process that ultimately branded him a rapist.

    

Richardson police obtained his photograph from a traffic arrest two days after the rape. Out of seven total pictures, Mr. McGowan's color photo was placed in an array that contained three other color originals. A fifth photo was black and white. The remaining two were black-and-white photocopies of photographs. Rest of Article. . . [Mark Godsey]

Judge Tapped for Public Safety Chief

From clarionledger.com: Improving the state Crime Lab and naming a medical examiner will be priorities for Stephen Simpson if he's confirmed as the next commissioner of the Mississippi Department of Public Safety.

On Friday, Gov. Haley Barbour nominated Simpson, a circuit judge for Harrison, Hancock and Stone counties, for the commissioner post.

If confirmed by the Mississippi Senate, Simpson, 49, of Gulfport, will succeed George Phillips, who stepped down in December after holding the post for a little more than two years.

Barbour said Simpson will maintain "integrity and strength" in the office.

"Judge Simpson has an impressive blend of prosecutorial, judicial and correctional experience that will serve him well as commissioner of public safety," Barbour said. Rest of Article. . . [Mark Godsey]

Lawmakers Wants to Limit FBI Access to Data

From washingtonpost.com: Bipartisan groups in Congress are pressing to place new controls on the FBI's ability to demand troves of sensitive personal information from telephone providers and credit card companies, over the opposition of agency officials who say they deserve more time to clean up past abuses.

Proposals to rein in the use of secret "national security letters" will be discussed over the next week at hearings in both chambers. The hearings stem from disclosures that the FBI had clandestinely gathered telephone, e-mail and financial records "sought for" or "relevant to" terrorism or intelligence activities without following appropriate procedures.

The Justice Department's inspector general issued reports in 2007 and earlier this year citing repeated breaches. They included shoddy FBI paperwork, improper claims about nonexistent emergencies and an insufficient link between the data requests and ongoing national security probes. Rest of Article. . . [Mark Godsey]

SCOTUS Looks into Whether Judges Must Notify After Sentencing Guideline Deviation

From NPR.com: The Supreme Court on Tuesday hears a case involving whether a judge must notify the defense if he deviates from the Federal Sentencing Guidelines. A pre-sentence report recommended a sentence of 41 to 51 months in prison for a California man who pleaded guilty to threatening his wife. Without notifying defense counsel, the judge rejected the recommendation and instead sentenced the man to the maximum penalty of five years in prison. Listen. . . [Mark Godsey]

Making Pot Possession the Lowest Priority

From NPR.com: Marijuana legalization activists are pushing for new city ordinances to make enforcement of pot possession the lowest priority for police and prosecutors. Seattle passed such a measure in 2003. Has anything changed on the streets there over the past four years? Rest of Article. . . [Mark Godsey]

Budget Cuts Put More Pressure on Public Defenders

From maysville-online.com: In response to the General Assembly decision to cut $2.5 million in Department of Public Advocacy funding in the next fiscal year, the DPA issued a three-page announcement regarding the future of public defender availability in Kentucky.

Already seeing a steady increase in case loads since 2000, the possibility of cutting attorneys and/or staff members, and increasing case loads is not something the department is looking forward to implementing, and has an alternative plan.

"The cut in DPA’s fiscal year 2009 budget is considerable, and cannot be justified in view of the inadequacy of past DPA funding and current increases in prosecutorial, law enforcement and corrections budgets. The Public Advocate has informed the Commission of a proposed plan to cut services in a way that would make every effort to minimize the impact on the liberty interests of most DPA clients," said Robert C. Ewald, DPA Commission Chairman in the announcement. Rest of Article. . . [Mark Godsey]

Questioning Government Monitoring

washingtonpost.com: Imagine a world of streets lined with video cameras that alert authorities to any suspicious activity. A world where police officers can read the minds of potential criminals and arrest them before they commit any crimes. A world in which a suspect who lies under questioning gets nabbed immediately because his brain has given him away.

Though that may sound a lot like the plot of the 2002 movie "Minority Report," starring Tom Cruise and based on a Philip K. Dick novel, I'm not talking about science fiction here; it turns out we're not so far away from that world. But does it sound like a very safe place, or a very scary one?

It's a question I think we should be asking as the federal government invests millions of dollars in emerging technology aimed at detecting and decoding brain activity. And though government funding focuses on military uses for these new gizmos, they can and do end up in the hands of civilian law enforcement and in commercial applications. As spending continues and neurotechnology advances, that imagined world is no longer the stuff of science fiction or futuristic movies, and we postpone at our peril confronting the ethical and legal dilemmas it poses for a society that values not just personal safety but civil liberty as well.

Consider Cernium Corp.'s "Perceptrak" video surveillance and monitoring system, recently installed by Johns Hopkins University, among others. This technology grew out of a project funded by the Defense Advanced Research Projects Agency -- the central research and development organization for the Department of Defense -- to develop intelligent video analytics systems. Unlike simple video cameras monitored by security guards, Perceptrak integrates video cameras with an intelligent computer video. It uses algorithms to analyze streaming video and detect suspicious activities, such as people loitering in a secure area, a group converging or someone leaving a package unattended. Since installing Perceptrak, Johns Hopkins has reported a 25 percent reduction in crime.

But that's only the beginning. Police may soon be able to monitor suspicious brain activity from a distance as well. New neurotechnology soon may be able to detect a person who is particularly nervous, in possession of guilty knowledge or, in the more distant future, to detect a person thinking, "Only one hour until the bomb explodes." Today, the science of detecting and decoding brain activity is in its infancy. But various government agencies are funding the development of technology to detect brain activity remotely and are hoping to eventually decode what someone is thinking. Scientists, however, wildly disagree about the accuracy of brain imaging technology, what brain activity may mean and especially whether brain activity can be detected from afar.

Yet as the experts argue about the scientific limitations of remote brain detection, this chilling science fiction may already be a reality. In 2002, the Electronic Privacy Information Center reported that NASA was developing brain monitoring devices for airports and was seeking to use noninvasive sensors in passenger gates to collect the electronic signals emitted by passengers' brains. Scientists scoffed at the reports, arguing that to do what NASA was proposing required that an electroencephalogram (EEG) be physically attached to the scalp. Rest of Article. . . [Mark Godsey]