Monday, November 30, 2009
Issue summaries are from ScotusBlog, where links can be found to briefs and opinions below:
Barber v. Thomas: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?
Renico v. Lett: Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.
The process by which the United States Supreme Court determined who should bear the risk of loss of constitutional violations stands as a cautionary tale as the courts of Canada embark on the task of deciding when, and from whom, an award of damages is an “appropriate and just” remedy for Charter breaches. The United States Supreme Court developed its jurisprudence in three discrete silos: 1) immunity of individual officials; 2) entity liability for damages; and 3) standards for issuance of equitable and declaratory relief. The Court consistently neglected to consider how its rulings in one of the three silos, when applied in concert with other doctrines, affect the final allocation of losses caused by constitutional wrongdoing. As a consequence, innocent victims often are left without any remedy for infringement of their fundamental constitutional liberties.
Victor Tadros (University of Warwick - School of Law) has posted A Human Right to a Fair Criminal Law (ESSAYS IN CRIMINAL LAW IN HONOUR OF GERALD GORDON, J. Chalmers, L. Farmer and F. Leverick, Forthcoming) on SSRN. Here is the abstract:
A human rights approach to scrutinising our criminal justice systems has gained considerable momentum in the UK, particularly since the Human Rights Act 1998 came into force, with Andrew Ashworth at the forefront. I don’t believe that this approach provides the sole way of critically investigating the quality of our law. After all, to say that our law is human rights compatible is not to say that it is just, a distinction that I will interrogate in a moment. But I do believe that a human rights approach can provide an important component of critical enquiry into the quality of the law. Violation of human rights is a distinctive kind of injustice, one that deserves to be marked out as special.
It is in this spirit that I offer an investigation of whether there is a human right to a fair criminal law. To make progress in that enquiry, we will need to know something about how best to understand human rights. I am interested here, I should say, not in the human rights that we have agreed in human rights documents such as the Universal Declaration of Human Rights or the European Convention of Human Rights. We can easily agree that there is no human right to a fair criminal law in this positivist sense. But human rights documents may be flawed: they may institutionalise as human rights things that are not really human rights at all and they may fail to institutionalise things that are human rights. Our enquiry is, in this way philosophical and moral rather than legal.
Welcome back to the office! Here are the CrimProf posts you may have missed over the Thanksgiving weekend.
- "On 'Undercover Brothers,' Conscience & Getting Free"
- "Hate crimes are likely underreported despite documented increase"
- "White Collar Sentencing - In China"
- "ABA Backs Federal Court Trials of Alleged 9/11 Plotters"
- "Federal appeals court rules Ohio executions can resume"
- O'Connell on Lawful Combatants and Crimes During War
- Schipani on Attorney-Client Privilege in Corporate Criminal Investigations
- Top-Ten Recent SSRN Downloads
- "Over-Punishment in Schools"
- "Jessica’s Law too vague to enforce?"
- The Importance of, and Ways to Avoid, an Independent Judiciary
Sunday, November 29, 2009
Today's San Diego Union-Tribune has the story:
San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, including the Bird Rock Bandits trial and Cynthia Sommer saga, is under a boycott from the District Attorney’s Office.
For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.
Under the law, each side has one such challenge when assigned a judge. They do not have to state a reason for doing so. The case then gets assigned to another judge.
When asked Wednesday about the boycott, District Attorney Bonnie Dumanis issued a one-paragraph statement in which she called Einhorn a “well-respected jurist” but did not say what he had done to earn her office’s enmity.
The article is in today's San Diego Union-Tribune. The lead:
More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.
Jessica’s Law, which was approved by California voters in November 2006, toughened sanctions against sex offenders and bars them from living within 2,000 feet of a school or park. In San Diego County, 1,266 of 1,731 offenders whose addresses are made public by the state live in those restricted zones, according to an analysis by the Watchdog Institute, a nonprofit investigative journalism unit based at San Diego State University.
That finding surprises virtually no one in law enforcement. They say the law is vague and has holes, making it nearly impossible to enforce.
For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.
An interesting editorial in the New York Times about the unintended consequences of the national trend to put police in charge of school security:
The consensus is that public schools are now safe. But juvenile justice advocates across the country are rightly worried about policies under which children are sometimes arrested and criminalized for behavior that once was dealt with by principals or guidance counselors working with a student’s parents.
|1||291||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||259||Blaming the Brain |
Steven K. Erickson,
University of Missouri at Columbia - School of Law,
Date posted to database: September 12, 2009 [3rd last week]
|3||239||The Torture Lawyers |
Jens David Ohlin,
Cornell Law School,
Date posted to database: September 10, 2009 [2nd last week]
|4||237||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
|5||184||Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms |
University of Virginia School of Law,
Date posted to database: August 13, 2009
|6||181||Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended |
Frank O. Bowman III,
University of Missouri School of Law,
Date posted to database: September 10, 2009
|7||148||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009
|8||141||Incarceration American-Style |
University of California, Los Angeles - School of Law,
Date posted to database: October 13, 2009
|9||139||Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory |
Paul H. Robinson, Michael T. Cahill, Daniel M. Bartels,
University of Pennsylvania Law School, Brooklyn Law School, Center for Decision Research, University of Chicago GSB,
Date posted to database: September 23, 2009
|10||132||The Abu Omar Case in Italy: ‘Extraordinary Renditions’ and State Obligations to Criminalize and Prosecute Torture Under the UN Torture Convention |
University of Cambridge,
Date posted to database: August 26, 2009
Saturday, November 28, 2009
Cindy A. Schipani (University of Michigan - Stephen M. Ross School of Business) has posted The Future of the Attorney-Client Privilege in Corporate Criminal Investigations (Delaware Journal of Corporate Law (DJCL), Vol. 34, No. 3, 2009) on SSRN. Here is the abstract:
This article discusses how the Department of Justice (DOJ) has viewed waiver of the attorney-client privilege as an important factor evidencing cooperation when determining whether to enter non-prosecution or deferred prosecution agreements with firms allegedly involved in criminal activities. It further discusses recent changes to the DOJ's guidelines, purporting to take waiver out of the equation in deciding whether to prosecute. Questions remain as to whether the corporate attorney-client privilege is a relic of the past or whether the new guidelines, issued in August 2008, have indeed restored the privilege to firms under federal investigation.
Mary Ellen O'Connell (Notre Dame Law School) has posted Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 (SHOOTING TO KILL: THE LAW GOVERNING LETHAL FORCE IN CONTEXT, Simon Bronitt ed., Forthcoming) on SSRN. Here is the abstract:
Within days of his inauguration as president, Barack Obama ordered the CIA to continue President Bush’s policy of attacks by unmanned aerial vehicles (UAVs) or drones in Western Pakistan. By October of 2009, the CIA had launched around 80 drone attacks. These attacks cannot be justified under international law for a number of reasons. First drones launch missiles or drop bombs, the kind of weapons that may only be used lawfully in an armed conflict. Until the spring of 2009, there was no armed conflict on the territory of Pakistan because there was no intense armed fighting between organized armed groups. International law does not recognize the right to kill without warning outside an actual armed conflict. Killing without warning is only tolerated during the hostilities of an armed conflict, and, then, only lawful combatants may lawfully carry out such killing. Members of the CIA are not lawful combatants and their participation in killing persons—even in an armed conflict—is a crime. Members of the United States armed forces could be lawful combatants in Pakistan if Pakistan expressly requested United States assistance in a civil war to end a challenge to Pakistan’s civilian government. No express request of this nature has been made. Even if it were made, drone attacks are the wrong tactic in the context of Western Pakistan. The CIA’s intention in using drones is to target and kill individual leaders of al-Qaeda or Taliban militant groups. Drones have rarely, if ever, killed just the intended target. By October 2009, the ratio has been about 20 leaders killed for 750-1000 unintended victims. Drones are having a counter-productive impact in Pakistan’s attempt to repress militancy and violence. The use of the drone is, therefore, violating the war-fighting principles of distinction, necessity, proportionality and humanity.
Friday, November 27, 2009
BEIJING — China executed two milk producers on Tuesday for selling more than three million pounds of contaminated milk products in connection with a food-safety scandal that killed six infants, shocking the country last year.
More than 300,000 children were also sickened after consuming milk products contaminated with the industrial chemical melamine. The scandal caused panic among Chinese parents, weakened the nation’s dairy industry and provoked a global recall of Chinese-made dairy products.
Paul Butler (George Washington University) has a post at ACSBlog discussing his book, "Let's Get Free: A Hip-Hop Theory of Justice." In part:
Of special interest to lawyers and law students is a chapter that asks "Should Good People Be Prosecutors?" The answer is "no." As a young African-American man who had several unpleasant experiences with the police, I became a prosecutor hoping that I could make a difference. I went in as an "undercover brother" who hoped to change things from the inside. Instead, I found, the system changed me.
In researching the book, I interviewed several progressive prosecutors who, like me, became disenchanted with the work. You're not really allowed to use the power that you have in a way that makes a big difference. Your main work, as a line prosecutor, is to put people in prison, and if you seem too uncool with that fact, you start to arouse suspicion.
Thursday, November 26, 2009
The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.”
This Report concludes that Tasers can be worthwhile and safe weapons in the police arsenal, but only if they are used consistent with proper policy, training, supervision and accountability. Anything less makes the use of these weapons a risky choice from the point of view of both police officers and the public. The Report discusses the scientific and medical research on Tasers, and sets out the best practices that should appear in any Taser policy. The Report also makes recommendations concerning situations in which Tasers should never be used, and situations in which police should only use these devices with extreme caution. It also contains a first-person description of what it feels like to be shot with a Taser, based on the experience of the Report’s primary author.
Wednesday, November 25, 2009