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.
Wednesday, August 26, 2009
[This is the fifth 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.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.
Facts and Procedural History: In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property. Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.
Colin Miller (John Marshall Law School) has posted Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional on SSRN. Here is the abstract:
In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.' While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.
Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.
and documents recently released about it are discussed in the New York Times. The Times' bottom line:
But the strong impression that emerges from the documents, many with long passages blacked out for secrecy, is by no means one of gung-ho operatives running wild. It is a portrait of overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal.
The CIA inspector general's report, which (inter alia) describes the interrogation techniques, is here.
The Framers understood criminal petit juries to be responsible for making determinations of both fact and law. This 'jury review' power provided the people with a 'check' against the government's judicial function. Today, juries are limited solely to findings of fact. As Blackstone predicted, this erosion of the jury function did not pro-ceed with grand assault, but with minor deployments. The result is a less powerful citizenry, and an unchecked government. The modern jury's diminished power is of particular consequence in cases involving the "death-qualification" of jurors. At issue is whether the State may-at the outset of a capital prosecution-remove from a jury all those who appear to be opposed to imposing the maximum punishment allowed by law. Or, placed into a series of questions: What were the qualifications for jury service at the time of the Constitution's adoption? Will the United States Supreme Court support the slow accumulation of additional qualifications without addressing the residual erosion of the Sixth Amendment's guarantee? This Article considers the 'death-qualification' of jurors, including how the process arose, why the Court continues to justify its existence today, and how a proper historical understanding of the Sixth Amendment right to a jury trial requires that this practice be put to rest.
[This is the fourth 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.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009
Issue: Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.
Factual and Procedural History: Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number. Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.
Last week, with tongue in cheek, I titled a blog post about my new book (with Kimberly Ferzan) as “The Last Word on Criminal Law.” As if to demonstrate to the whole world that I was only kidding, Alec Walen has posted a review of the book on SSRN. The review was summarized on CrimProf yesterday.
We thank Alec for his kind comments about our book and for the effort he has put in in criticizing it. His criticisms boil down to these four, to which we append our responses:
1. We don't justify treating mistakes of how much concern is "sufficient concern" as nonexculpatory when we treat mistakes of fact as exculpatory. Reply: But someone who treats subjecting people to huge risks for trivial reasons just is displaying insufficient concern even if he doesn't so regard it. On the other hand, as we argue in the book, one who doesn't know the riskiness of his behavior cannot be accused of insufficient concern on that ground alone.
2. We don't justify regarding negligence as nonculpable. Reply: Unfortunately, Walen doesn't engage the arguments we make in chapter 3 on this very point. His remarks suggest he holds the "culpability comes from the character defects that led the person to be unaware of the risk" position. But we deal with that position at some length, and Walen doesn't respond to our arguments.
3. Our repudiation of "result luck affects retributive desert" overlooks the many ways luck affects how we fare in life. Reply: Luck surely does this. But one doesn't have to be a luck egalitarian to deny that luck affects the blame or punishment we deserve. All Walen does is give some consequentialist reasons for singling out harm-causers among the persons deserving of punishment. He does nothing to show that those who imposed what they believed were the same risks but whose acts did not result in harm are less deserving of punishment.
4. In a footnote, Walen quarrels with our position on incomplete attempts and other inchoate crimes. Reply: Our position is surely controversial, and it does lead to the position Walen finds ludicrous (assuming the practical joker is, like the would-be murderer, brandishing a loaded gun that might accidentally discharge). That's a bullet we bite. But if one rejects our position, we demonstrate that one is led to the position that the act of intending harm is itself a culpable act, which then leads to the many puzzles and difficulties we describe in ch. 6. So there's a different bullet one needs to bite if one thinks ours is too hard on the teeth. We lay out that challenge in ch. 6, but Walen doesn't take it up.