Friday, April 18, 2008
"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.
Thursday, April 17, 2008
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
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]
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.
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.
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.
Wednesday, April 16, 2008
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.
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.
Tuesday, April 15, 2008
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]
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]
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]
Monday, April 14, 2008
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]
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]
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]