Monday, August 31, 2009
Derek R. Brookes (University of Melbourne - School of Social and Political Sciences (Criminology)) has posted Restorative Justice and Work-Related Death: Consultation Report (Derek R. Brookes, RESTORATIVE JUSTICE AND WORK-RELATED DEATH: CONSULTATION REPORT, Creative Ministries Network, 2009) on SSRN. Here is the abstract:
This Report is the second part of a project that aimed to explore the feasibility of a restorative justice service in the context of work-related deaths in Victoria. It presents the responses received from interviewees representing key stakeholder groups, and makes a set of recommendations, based on the findings of this consultation process.
Previously, CrimProf noted that the ACLU had filed a lawsuit demanding information on US policy on searches of laptop computers at the border. The Ninth Circuit has ruled that the constitution does not preclude warrantless and suspicionless searches of laptop computers at the border.
Shortly after the ACLU's suit, the Department of Homeland Security "announced new directives to enhance and clarify oversight for searches of computers and other electronic media at U.S. ports of entry." The press release, which includes links to the policies themselves, is here.
The ACLU has criticized the new policies. The release is here. According to Catherine Crump, staff attorney with the ACLU First Amendment Working Group:
“DHS’s latest policy announcement on border searches is a disappointment, and should not be mistaken for one that restores the constitutional rights of travelers at the border. Members of the public deserve fundamental privacy rights when traveling and the safety of knowing that federal agents cannot rifle through their laptops without some reasonable suspicion of wrongdoing. The ACLU does not oppose border searches, but it does oppose a policy that leaves government officials free to exercise their power arbitrarily. Such a policy not only invades our privacy but can lead to racial and religious profiling.”
Christopher Calabrese, counsel for the ACLU Technology & Liberty Program, said:
“There are two key aspects of this new policy worth applauding – the limitations on the time that electronic devices can be held by Customs officers and requirements that information from electronic devices only be retained if there is probable cause that a crime has been committed. These procedural safeguards recognize that the old system was invasive and harmed many innocent travelers.
“But unless and until the government requires agents to have individualized suspicion before reviewing such sensitive information as medical records, legal papers and financial information, even the most elaborate procedural safeguards will be insufficient for the government to live up to its constitutional obligations. It is now time for Congress to act and create concrete standards for searches and directly confront the problem of racial and religious profiling.”-
Eric J. Miller (Saint Louis University - School of Law) has posted an ambituous assessment of criminal procedure doctrine and scholarship on SSRN entitled Putting the Practice into Theory. Here is the abstract:
Modern criminal procedure, or especially at the Supreme Court level, rests upon a variety of untested regulatory assumptions about the ways in which the police do and ought to interact with the public. These regulatory assumptions depend upon underlying models of police administration that often determine the outcome of cases. Nonetheless, these assumptions are fictional, meaning that they lack any basis in descriptive criminology or social science. Yet they control the development of judicial and academic understandings of what policing is and ought to be about in our modern, fragmented, pluralist democracy. My prescription, at least for the academy, is that we should start examining the criminological evidence to determine whether and how it might support or undermine the Court’s social science speculations.
Constitutional law has always been somewhat marginal in the regulatory universe. Executive branch officials control most of what happens in the criminal justice system. They act according to departmental policies or institutional practices. Though they might have one eye on the courts and the Constitution, they are more concerned with norms of professional ethics or institutional organization. Attending to regulation tilts criminal procedure off its court-centered axis and reminds us just how ineffective we legal scholars may be in setting its terms.
My goal is to trace some of the ways in which criminal procedure doctrine engages with criminology, particularly in its more hermeneutic form. As a starting point, I consider Robert Weisberg’s and David Sklansky’s very different but deeply thoughtful discussions of the relation between criminal procedure, on the one hand, and criminology and social science, more generally, on the other.
His assessment at the end of the piece, about whehter the Court has sufficient evidence to justify its reliance on police-training programs in cases like Leon and Hudson, is particularly interesting.
[This is the tenth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. This case has not yet been assigned an argument date, and the parties' merits briefs have not yet been filed. Peter excerpts and paraphrases the briefs of the parties regarding the cert petition to provide an overview of the cases and the advocates’ arguments. Links to the opinion below appears at the end of the summary.]
Docket No.: 08-1175
Case: Florida v. Powell
Oral Argument Date: not yet assigned
Issue: Must a statement be suppressed if the suspect was not expressly advised of his right to have counsel present during interrogation, even if the suspect was advised of the right to talk with an attorney "before questioning" and the "right to use" any of his rights "at any time" during interrogation.
Factual & Procedural History: In 2004, Florida police arrested respondent, Kevin Dwayne Powell, and transported him to police headquarters where he was questioned after being advised of his Miranda rights.
At trial, during the direct examination of the investigating detective, respondent’s trial counsel objected to testimony concerning respondent’s statements to police on the ground that the Miranda warning given was invalid. Subsequent testimony revealed that the standard police form used during the interrogation of respondent did not explicitly indicate he had the right to have an attorney present during questioning. The warning read as follows:
" You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."
The trial court ruled that the warning was adequate.
On appeal, the Second District reversed respondent’s conviction, holding that the Miranda warnings were deficient under the Fifth Amendment because respondent was not “clearly informed” of his right to have a lawyer with him during questioning.
The Florida Supreme Court affirmed, holding that respondent was not clearly informed of his right to have counsel present during questioning. According to the Florida Supreme Court, the standard police form used during the interrogation of respondent failed Miranda because it did not expressly state that respondent had the right to have counsel present during the interrogation, which is “indispensable to the protection of the Fifth Amendment privilege.” Consequently, according to the Florida Court, because both Miranda and the Florida Constitution require that a “suspect be clearly informed of the right to have a lawyer present during questioning,” the Second District’s decision was affirmed.
Petitioner's Argument: Merits brief not yet filed.
Respondent's Argument: Merits brief not yet filed.
Sunday, August 30, 2009
Frederick Schauer (University of Virginia School of Law) has posted Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms on SSRN. Here is the abstract:
As the capabilities of cognitive neuroscience, in particular functional magnetic resonance imaging (fMRI) 'brain scans,' have become more advanced, some have claimed that fMRI-based lie-detection can and should be used at trials and for other forensic purposes to determine whether witnesses and others are telling the truth. Although some neuroscientists have been at the forefront of promoting such claim, most neuroscientists aggressively resist them, and have argued that the existing research on neuroscience-based lie-detection is deeply flawed in numerous ways. And so these neuroscientists have resisted any attempt to use such methods in litigation, arguing, in effect, that they are the product, so far, of poor science. But although it is probably true that the existing studies have serious problems of validity when measured by the standards of science, and true as well that the reliability of such methods is significantly lower than their advocates claim, it is nevertheless an error to assume that the distinction between good and bad science, whether as a matter of validity or a matter of reliability, should be dispositive for law. Law is not only about putting criminals in jail, and once we understand that numerous uses of evidence in various contexts in the legal system require a degree of probative value far short of proof beyond a reasonable doubt, we can understand the larger point that legal and scientific norms and standards are different. Some examples of good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science my, in some contexts, still be good enough for some legal purposes.
Saturday, August 29, 2009
Adam M. Gershowitz (University of Houston Law Center) has posted Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty (Vanderbilt Law Review, Vol. 62, 2010) on SSRN. Doug Berman gives the piece a thumbs-up over at Sentencing Law and Policy. Here is the abstract:
In almost every state that authorizes capital punishment, local county prosecutors are responsible for deciding when to seek the death penalty and for handling capital trials. This approach has proven to be arbitrary and inefficient. Because death penalty cases are extremely expensive and complicated, counties with large budgets and experienced prosecutors are able to seek the death penalty often. By contrast, smaller counties with limited budgets often lack the funds and institutional knowledge to seek the death penalty in truly heinous cases. The result is geographic arbitrariness. The difference between life and death may depend on the side of the county line where the offense was committed. Furthermore, in some counties, death penalty cases are handled by subpar lawyers. Inadequate lawyering leads to capital cases being reversed for prosecutorial misconduct, ineffective assistance of counsel, and inaccurate rulings by trial judges. Following reversal, these capital cases are re-litigated for years at enormous expense. Because county control of death penalty cases has proven to be a failure, this article offers a roadmap for eliminating counties' involvement in the death penalty system. All aspects of capital cases - charging, trial, appeal, and everything in between - can and should be handled at the state level by an elite group of prosecutors, defense lawyers, and judges whose sole responsibility is to deal with capital cases. This article details how an elite statewide death penalty unit could be created and how it could minimize the geographic arbitrariness of the death penalty while simultaneously reducing the costs of handling death penalty cases.
[This is the ninth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-7412
Case: Graham v. Florida
Oral Argument: November 9, 2009
Issue: Whether the Eighth Amendment’s ban on cruel and unusual punishment prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile’s commission of a non-homicide crime.
[Another case raising similar issues and to be argued on the same day, Sullivan v. Florida, was previewed yesterday.]
Factual and Procedural History: At age sixteen, petitioner was charged with (1) armed burglary with assault or battery, and (2) attempted armed robbery. Petitioner pled guilty to the offenses in return for three years' probation and a twelve-month sentence in a pre-trial detention facility.
Leonidas K. Cheliotis (Queen Mary University of London) has posted How Iron is the Iron Cage of New Penology? The Role of Human Agency in the Implementation of Criminal Justice Policy on SSRN. Here is the abstract:
This article addresses the extent to which the concept of ‘new penology’ is helpful in understanding penal currents, particularly as they relate to the older paradigms of retribution and rehabilitation. In the light of theoretical, historical and empirical evidence, support is lent to the arguments: that the new penology thesis downplays the role of human agency at the level of implementing criminal justice policies; that it ignores the potentially positive aspects of managerialism; and that it misses the continuity between past and contemporary penal features. It is concluded that, despite its merits, new penology remains a hypothesis, rather than a realized penal rationale.
Friday, August 28, 2009
The title of an interesting column on FindLaw by Michael Dorf (Cornell Law School). Over at Sentencing Law and Policy, Doug Berman links to an article in the Atlanta Journal-Constitution discussing the reaction of the district court judge to whom the Supreme Court sent the original habeas petition filed in the Troy Davis case.
[If you'd like CrimProf to list a conference that might be of interest to criminal law and/or criminal procedure professors, please send the details to firstname.lastname@example.org.]
On Friday and Saturday, September 25-26, 2009, Rutgers School of Law-Newark will present a conference entitled "Philosophical Foundations of Criminal Law.
The program will consist of the following:
FRIDAY, SEPTEMBER 25
Welcome and Introduction by Dean John J. Farmer, Jr.
The Resurgence of "Character"?: Individuals, Types and Criminalisation - Nicola Lacey (LSE)
Criminal Responsibility and Criminal Liability - Antony Duff (Stirling)
Commentator: Kyron Huigens (Cardozo)
10:45-11:15 am Break
11:15 am-12:45 pm
Are We All Consequentialists Now? - Mitchell Berman (Texas)
Towards a Jurisprudence of Criminal Procedure - Paul Roberts (Nottingham)
Commentator: Michael Cahill (Brooklyn)
12:45-1:45 pm Lunch
Crime, Law, and Political Philosophy - Richard Dagger (Rhodes)
Criminal Law and Political Theory - Matt Matravers (York)
Commentator: Alice Ristroph (Seton Hall)
3:15-3:45 pm Break
Just Prevention: Preventive Justice and the Limits of the Criminal Law - Andrew Ashworth (Oxford) & Lucia Zedner (Oxford)
The Ontological Problem of "Risk" in Criminal Law - Peter Westen (Michigan)
Commentator: Adil Haque (Rutgers-Newark)
SATURDAY, SEPTEMBER 26
Beyond the Special Part - Lawrence Alexander (San Diego) & Kimberly Ferzan (Rutgers-Camden) Wrongdoing and Motivation - Victor Tadros (Warwick)
Commentator: Michelle Dempsey (Villanova)
11:00-11:30 am Break
11:30 am-1:00 pm
The De Minimis "Defense" to Criminal Liability - Douglas Husak (Rutgers-New Brunswick)
Just Deserts in Unjust Societies: An Offense-Specific Approach - Stuart Green (Rutgers-Newark)
Commentator: Youngjae Lee (Fordham)
1:00-2:00 pm Lunch
Self-Defence and Punishment - John Gardner (Oxford) & Francois Tanguay-Renaud (Osgoode Hall) Criminal Law as Public Law: Police Powers and Justification - Malcolm Thorburn (Queen's)
Commentator: Vera Bergelson (Rutgers-Newark)
3:30-4:00 pm Break
Criminal Liability in "Smart Environments" - Mireille Hildebrandt (Vrije Universiteit Brussels)
Title TBA - Christopher Wellman (Washington U.)
Commentator: Ekow Yankah (Cardozo)
5:30-5:45 pm Closing thoughts
These papers, along with several others, will appear in a book entitled Philosophical Foundations of Criminal Law, edited by Antony Duff and Stuart Green, and published by Oxford University Press in 2010.
Additional information, including information about registration, can be obtained on the conference website:
[This is the eighth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-7621
Case: Sullivan v. Florida
Oral Argument Date: November 9, 2009
Issue: Whether the imposition of a life without parole sentence on a thirteen-year-old for a non-homicide violates the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments.
Factual and Procedural History: Petitioner, Joe Sullivan, was arrested in 1989 at the age of thirteen and was indicted as an adult for sexual battery in violation of Florida law. After a one-day trial, petitioner was convicted and sentenced to life imprisonment with no possibility for parole.
This article argues that there is no justification for corporate criminal liability. First of all, corporations are not moral agents capable of morally praise- or blameworthy action, and hence are not properly subject to punishment. Secondly, criminal punishment of corporations is inappropriate because 1) it advances none of the legitimate purposes of punishment, 2) it creates an unacceptable risk of prosecutorial error or abuse, and 3) it is not necessary to address a public harm. The only purpose served by threatening corporations with criminal punishment is to shift the balance in power between the prosecution and defense in white collar criminal cases radically in favor of the prosecution. However, this is inconsistent with the inherent liberal bias of the criminal law that embodies the normative assessment that an unrestrained government is a greater danger to citizens’ well-being than any number of individual criminals. Corporate criminal liability cannot be theoretically justified because it is directly violative of the theoretical structure of Anglo-American criminal law.
Thursday, August 27, 2009
The New York Times covered it in the sports section. CrimProf mentioned yesterday that Orin Kerr was blogging about this at The Volokh conspiracy, and he has more today, asking about retroactivity questions and stating, "I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards."
[This is the seventh in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-9156
Case: Wood v. Allen
Oral Argument Date: November 4, 2009
Issue: (1) Whether the state court erred in concluding that, during the sentencing phase of a capital case, the defense attorney’s failure to present the defendant’s impaired mental functions constituted ineffective counsel; and (2) whether the 11th Circuit erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) in reviewing the state court decision.
Factual and Procedural History: In 1994, petitioner, Holly Wood, was convicted of capital murder during a first-degree burglary. The jury recommended a death sentence, and after a pre-sentencing report and a separate sentencing hearing, the trial judge sentenced petitioner to death. On direct appeal, the Alabama Court of Appeals rejected petitioner’s appeal, and the Alabama Supreme Court affirmed.
At the very least, this manuscript has timeliness on its side. Chrysanthi S. Leon (University of Delaware - Sociology and Criminal Justice) has posted Working Paper: Work Release as Economic Stimulus: Overview of Current and Potential Usage in the 50 States on SSRN. Here is the abstract:
Work release programs are authorized by the statutes of all fifty states. Some states have clearly articulated work release programs while others are partial, with little statutory governance for their establishment or operation. Yet most correctional authorities agree that work release provides crucial transitioning into functional re-entry. As the recent crises in the California correctional system dramatized, overflowing systems can no longer be tolerated. The contemporary penal climate, which prioritizes economic efficiency and evidence-based corrections, is ripe for a re-invigoration of a tried and true technique. Therefore, in order to document the current state of work release in the U.S., we combined a review of statutory authorization with an examination of implementation. We begin by describing the reasons why work release makes sense, focusing on the example of Washington state, followed by a review of the current parameters of work release in state law. By examining how work release now works, we can suggest how best to take advantage of the interest in bringing economic efficiency to the correctional system.
The article cites statistics from the state of Washington indicating that the work-release program there in fiscal year 2007 saved taxpayers $3.82 for every dollar spent. Much of the piece addresses how various states address the many questions that arise in work release programs, such as "selection of participants, participant eligibility, specific eligibility restrictions, type of work, the control and use of their wages, the logistics of the operation of work release, and whether or not local law enforcement or the participant’s victim must be notified." The piece also draws extensively from the Report of the Re-Entry Policy Council: Charting the Safe and Successful Return of Prisoners to the Community. Council of State Governments. Reentry Policy Council. New York: Council of State Governments. January 2005, which is available online
This article addresses four central questions. First, what is the difference between normal law enforcement policy and a 'war' on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act ('AWA') in combination with other sex offender laws triggered a transition to a criminal war on sex offenders? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped? By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.
[This is the sixth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]
Docket No.: 08-1065
Case: Pottawattamie County et al. v. McGhee et al.
Oral Argument Date: November 4, 2009
Issue: Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation and introducing that same testimony against the criminal defendant at trial.
Factual and Procedural History: In 1978, Curtis W. McGhee, Jr., and Terry Harrington, respondents, were convicted of murdering a retired police officer. McGhee and Harrington were each sentenced to life in prison. In 2002, the Iowa Supreme Court reversed Harrington’s conviction and remanded for a new trial, finding the prosecutor failed to disclose evidence of an alternative suspect. The prosecutor concluded it would be impossible to retry Harrington and also agreed to move to vacate McGhee’s conviction. McGhee agreed to enter a plea to second degree murder in exchange for a sentence of time served. With these agreements, McGhee was released.