Tuesday, August 25, 2009
[This is the third 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.: 08-559
Case: E.K. McDaniel, Warden, et al., v. Troy Brown
Oral Argument Date: originally scheduled for October 13, 2009, but subsequently removed from argument calendar
Issue: Whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).
Factual and Procedural History: In 1994, Troy Brown, respondent, was arrested for the sexual assault of a nine-year-old girl in Carlin, Nevada. At trial, the prosecution presented testimonial evidence from a DNA expert, Renee Romero, who testified that, among other things, there was a 99% chance that Brown was the assailant. Brown was subsequently convicted on several counts of sexual assault and one count of child neglect.
David B. Wexler (University of Arizona - James E. Rogers College of Law) has posted Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering on SSRN. Here is the abstract:
This brief essay,prepared for a Chapman law school conference on therapeutic juriprudence and problem-solving courts, suggests that a therapeutic jurisprudence approach to criminal lawyering is consistent with notions of zealous advocacy, and that such an approach to criminal lawyering also fits nicely within an emerging framework of 'relationship-centered' lawyering. Relationship-centered lawyering is consistent with client-centered lawyering in exactly the same way that therapeutic jurisprudence lawyering is consistent with zealous advocacy: both approaches add a rich,interdisciplinary, and holistic ingredient to the traditional approach. Moreover, in the criminal law context, a relationship-centered approach will encourage therapeutic jurisrudence thinking to examine the role of the prosecutor, an area that has thus far not attracted sufficient academic attention. The present essay provides some examples from the prosecutorial arena and urges further development of therapeutic jurisprudence studies along those lines.
[This is the second 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: 08-6925
Case: Johnson v. United States
Oral Argument Date: October 6, 2009
Issue: Whether a prior state conviction for battery is, in all cases, a “violent felony” under the federal Armed Career Criminal Act (“ACCA”) even when that offense does not have as an element the use or threatened use of physical force.
Alec D. Walen (Institute for Philosophy and Public Policy) has posted Crime, Culpability and Moral Luck: Comment on Alexander, Ferzan and Morse (Law and Philosophy , Forthcoming) on SSRN. Here is the abstract:
Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should.
I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.
Michael L. Perlin (New York Law School) and Valerie Rae McClain (Neurology and Physical Therapy Centers of Tampa Bay) have posted 'Where Souls are Forgotten': Cultural Competencies, Forensic Evaluations and International Human Rights (Psychology, Public Policy and Law, Vol. 15, 2009) on SSRN. Here is the abstract:
Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.
Professor Perlin and Henry A. Dlugacz (New York Medical College - Graduate School of Health Sciences) have posted 'It's Doom Alone that Counts:' Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation? (Behavorial Sciences and Law, Vol. 27, 2009) on SSRN. Here is the abstract:
Monday, August 24, 2009
[This is the first 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: 08-680
Case: Maryland v. Shatzer
Oral Argument Date: October 5, 2009
Issue: Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.
Shelley Ross Saxer (Pepperdine University - School of Law) has posted Banishment of Sex Offenders: Liberty, Protectionism, Justice, and Alternatives (Washington University Law Review, Vol.. 86, p. 1397, 2009) on SSRN: Here is the abstract:
Although most sex offenses are committed by relatives or acquaintances of the victims, our public policy approach has been to focus on the stranger sex offender and punish sex offenders through residency restrictions. These residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities in fear that they may reoffend in our neighborhoods. Rather than being thrust into some wilderness, sex offenders are 'banished' to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.
Banishing sex offenders through these residential restrictions impacts individual liberty, our national structure, and social policy considerations. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of both sex offenders and our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. This Article also examines what methods from the environmental justice movement might be available to deal with the 'social justice' issue of sex offenders disproportionately burdening poor, minority communities. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that legislators should reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.
Last week, CrimProf noted some criticisms of Justice Scalia's opinion in the Davis case, including Alan Dershowitz's claim that Catholic teaching is inconsistent with Justice Scalia's doubts about whether actual innocence would state a cognizable federal habeas claim . Douglas Berman has collected commentators who disagree with Dershowitz. For example, at the Bench Memos column at National Review Online, Ed Whelan states that Catholic thought "does not mean that Scalia must conclude that a death-penalty system is immoral if it relies, say, on the vehicle of executive clemency rather than judicial adjudication of 'constitutional' claims of 'actual innocence' to prevent execution of those actually innocent." At Mirror of Justice, Rick Garnett writes
to cringe at Prof. Dershowitz's silly piece is not to endorse the view that Justice Scalia expressed in Herrera about the power of a federal court to enjoin a state's execution. But, it seems to me that even we Catholics who oppose capital punishment should object to such an opportunistic and simplistic deployment of the "Catholic morality" card.
I join Larry Solum in highly recommending this piece by my colleague, Adam J. Kolber, entitled How to Improve Empirical Desert (Brooklyn Law Review, Symposium: 'Is Morality Universal and Should the Law Care?', 2010), to those interested in criminal law theory. It is a rigorous examination of the idea of empirical desert that is a must-read for both proponents and opponents and a good-read for those on the fence. Here is the abstract:
According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.
I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain -- those who are on the fence about offending -- are likely to act under biased, heat-of-the-moment circumstances. Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals. Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.
I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies. (This article was written for the Brooklyn Law School Symposium, “Is Morality Universal and Should the Law Care?”.)
Sunday, August 23, 2009
Raneta Lawson Mack (Creighton University School of Law) has an op-ed piece at Jurist describing the new system (featuring jurors deliberating along with judges) and identifying challenges ahead. Among the concerns:
Japan has an exceptionally high conviction rate (> 99% by most estimates). While this can certainly be attributed, in part, to prosecutorial selectivity, it is also clear that most of the criminal cases in Japan are presented to the courts wrapped neatly with confessions by defendants. In most instances, these confessions are obtained without the benefit of counsel and within the secret confines of the interrogation room. Japan has so far resisted repeated calls for general audio- or videotaping of interrogations explaining that recording could impede the interrogation process.
Professor Mack wonders how jurors will respond to confessions in cases where substantial questions are raised about guilt, and whether a possible decline in conviction rates if jurors are skeptical will undermine public support for jury trials.