Saturday, September 5, 2009
The first weekend of the college football season is a big treat for sports fans everywhere, and an even bigger treat for those of us who have spent our summer watching the San Diego Padres first play themselves hopelessly out of playoff contention by June and then go on just enough of a winning streak to hurt the team's position in next year's draft.
There is another reason, germane to this blog, for a football cheer today: the news from the Oregon football program that the team has suspended for the season running back LeGarrette Blount, who punched an opponent on the field at the end of the team's Thursday loss at Boise State. The Oregon coach explained his action this way in an article today: "You can't hit somebody in society, whether they called you a name or not. In society, no matter what happens you can't do that."
I don't know how much empirical work has been done on whether big-time athletes run afoul of the law more often than others who are somewhat similarly situated. But conventional wisdom is that they do, because they are treated as so special that they come to believe that the normal rules don't apply to them. And so it is heartening to see a big-time coach willing to send a strong contrary message.
The title of the commentary at Jurist is Reforming Criminal Procedure in France, written by Judith Sunderland (senior researcher for Western Europe at Human Rights Watch) and William Bourdon (a criminal lawyer and a member of Human Rights Watch’s Paris Committee).
That's the headline on an interesting commentary by Steve Sheppard (University of Arkansas School of Law) at FindLaw regarding the investigation by Attorney General Holder into interrogation practices during the Bush administration. The crux:
Cheney argues that this investigation poses a new risk to our government. No U.S. president has overseen the investigation and – as Cheney predicts – the prosecution of the agents or officers of a prior administration. He sees this as a new precedent, and a bad one.
Yet Cheney is wrong. There are precedents. Moreover, there is a reason why there are so few: Most administrations investigate themselves, something the Bush Administration refused to do.
Bidish Sarma has posted Still in Search of a Unifying Principle: What Kennedy v. Louisiana and the Supreme Court’s Denial of the State’s Petition for Rehearing Signal for the Future (Yale Law Journal Pocket Part, Vol. 118, pp. 55-60, 2008) on SSRN. Here is the abstract:
In Kennedy v. Louisiana, the Supreme Court struck down a Louisiana law that authorized the death penalty for the crime of child rape. The Court held, first, that 'there is a social consensus against capital punishment for the crime of child rape;' and, second, that in the Court’s own 'independent judgment' the penalty is disproportionate. Kennedy came under intense public scrutiny because a purported omission in the majority opinion was said to undermine the decision on its own terms. The State of Louisiana claimed that a recent change in military law invalidated the Court’s finding of a national consensus. It attempted to capitalize upon fresh media coverage and widespread confusion about the facts by filing a petition for rehearing with the Supreme Court. On October 1, 2008, the Court denied the request for a rehearing. This piece briefly explores: (I) the basis of the Court’s decision to reject the request for rehearing; and (II) the Kennedy decision’s implications for the Eighth Amendment’s future.
Friday, September 4, 2009
Scott Howe (Chapman University - School of Law) has posted Race, Death and Disproportionality on SSRN. Here is the abstract:
Statistical studies showing unconscious racial bias in capital selection matter under the eighth amendment. In McCleskey v. Kemp, the Court appeared to shun such evidence as irrelevant to eighth amendment challenges to capital punishment. Yet, this kind of evidence has influenced many of the Justices’ views on the constitutionality of the death penalty and has sometimes caused the Court to restrict the use of that sanction under the eighth amendment. My goal, therefore, is to explain why statistical studies concerning race bias in capital selection have limitations as proof but also strong suggestive power that some death sentences amount to 'cruel and unusual punishments.' Ultimately, I address how such studies, despite their limitations, might influence the Court in its regulation of the death penalty in the future.
My project proceeds in five parts. Part I contends that the eighth amendment regulates capital selection not, as is commonly asserted, through a consistency mandate but, instead, through a deserts limitation - a mandate that only a person who deserves the death penalty should receive that sanction. Part II shows how the capital selection process allows for multiple opportunities for reprieves of offenders who deserve the death penalty but also provides a two-phase trial to try to ensure that nobody receives a death sentence who does not deserve it. Part III briefly describes the statistical efforts to determine whether racial biases concerning defendants and victims influence decisions along the selection process. Part IV shows, however, why studies that do not focus on the capital sentencer have only limited eighth amendment meaning and why even studies that do have that focus cannot establish with much certainty that violations of the deserts limitation frequently occur. Statistical evidence of racial bias even at the sentencing trial might reflect mostly the effect of race in the dispensation of merciful reprieves. Yet, this Part also explains that such evidence can spur our intuitions that some sentencer findings of deserts underlying some death sentences, in addition to some reprieves, are racially influenced. In fact, Part V contends that, despite the Court’s general unwillingness to acknowledge that racial-bias studies reveal that death sentences are sometimes disproportional, the studies have influenced the Court - and will continue to influence it - to confine the use of the death penalty.
Wayne A. Logan (Florida State University College of Law) has posted the preface to his new book from Stanford University Press, Knowledge as Power: Criminal Registration and Community Notification Laws in America, on SSRN. The book is the first extended treatment of registration and community notification laws.
Here is the abstract:
Societies have long been concerned about the criminal threat posed by potentially dangerous individuals in their midst. America is surely no exception. Knowledge as Power traces the evolution of a particular strategy intended to address this anxiety - criminal registration and community notification laws.
While their European origins extend back to at least the eighteenth century, America’s criminal registration laws took shape in the 1930s as a means of monitoring gangsters, thereafter experienced an extended period of desuetude and then a dramatic resurgence in the 1990s, when they were complemented by community notification laws. Today, the laws collectively function much as "Wanted" posters did in the Frontier West, publicly disclosing registrants' identifying information, involving not just law enforcement but also entire communities in the criminal monitoring process.
Knowledge as Power provides the first in-depth history and analysis of criminal registration and community notification laws, examining the forces driving their rapid nationwide proliferation, as well as how the laws have fundamentally affected American society. The book’s Introduction is posted here. Other contents include: Historical Antecedents; Early Laws: 1930-1990; Modern Laws: 1990-Today; Social and Political Catalysts; Effects and Consequences; Law, Privacy, and Governance; Prospects for the Future; and Conclusion.
[This is the fourteenth 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 and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.This case was previously the subject of a guest post on CrimProf by Professor James J. Duane.]
Case: Briscoe v. Virginia
Docket No.: 07-11191
Oral Argument Date: not yet assigned
Issue: Whether, if a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, the state avoids violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
Factual and Procedural History: Petitioners, Mark A. Briscoe and Sheldon A. Cypress, were charged and convicted on charges relating to the distribution of cocaine. At trial, the key issue was whether the substances seized and introduced by the police and prosecution did actually contain cocaine. The principal evidence introduced to establish this fact was a certificate of analysis prepared by a forensic analyst of the department of Criminal Justice Services. The certificate had test results purporting to show that the seized substances contained large quantities of cocaine.
Thursday, September 3, 2009
Richard Culp (City University of New York - Department of Public Management) has posted Prison Privatization Turns Twenty-Five: The Evolution of a Mature Private Prison Industry in the United States on SSRN. Here is the abstract:
This paper examines the current level of competition and innovation in the private prison industry in the US. The author places twenty-five years of private prison business development within an industrial life cycle framework and argues that the realities of the mature prison privatization market do not match the promise of innovation and quality improvements voiced by privatization advocates during the 1980s and early 1990s. Analysis by way of the four firm market concentration ratio and the Herfindahl-Hirschman Index (HHI) at two points in time shows the market to be dominated by decreasingly fewer companies (an oligopoly of producers). At the same time, the number of government jurisdictions buying incarceration services is small and shrinking, resulting in an oligopsony of consumers. The net effect is that any real cost advantages of privatization are marginal at best, private prison programs have become virtually indistinguishable from public prisons, and the promise of innovation remains unfulfilled. The article concludes with a discussion of policy implications, including the idea of increasing the role of the non-profit sector in the operation of secure correctional facilities.
The drug company agreed to pay $2.3 billion to settle civil and criminal allegations that it illegally marketed a painkiller. Of the total, $1.2 billion is desginated as a criminal fine. The New York Times article is here, and Ellen Podgor has posts here and here at White Collar Crime Prof.
While the consensus view is probably right that the technology is not yet ready for primetime, there is a perhaps unwarranted pessimism that pervades many of these discussions. I've been to numerous conferences where academics love to identify problems with the reliability of fMRI-based lie detection and emphasize that jurors are likely to be unduly swayed by neuroscience evidence. They often seem to forget that our most well-known method of lie detection--the jury--has numerous reliability problems. Most importantly, despite hundreds of years of data, we can't say very well just how reliable juries are. Surely juror lie detection leads to false positives and false negatives, but this particular "technology" is widely used in the United States.
Of course, litigants have constitutional rights to jury trials that they don't have to modern lie detection techniques. But from a policy perspective, we want to know whether a new approach to lie detection, when combined with whatever other truth-generating techniques we already use, leads to cost-effective improvements in the judicial system. That policy question, at least on the surface, looks rather different than the legal issue of whether the technology satisfies the standards for admission of scientific evidence set out in the Daubert or Frye test.
With these considerations in mind, I was pleased to read Fred Schauer's (Law, UVA) new draft article, Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms. Schauer points out, quite appropriately, that the standards for the admission of legal evidence are determined as a matter of policy not scientific inquiry. Neuroscientists can tell us whether a particular technology satisfies an existing legal standard but have no special expertise, as a general matter, in selecting the standard itself.
Schauer states, "Some examples of good science may still not be good enough for some legal purposes, and, conversely, some examples of bad science m[a]y, in some contexts, still be good enough for some legal purposes." His draft, therefore, seems to cut to the heart of the Daubert and Frye standards. Perhaps, given the ways that scientific evidence may unduly sway juries, we need something like the Daubert and/or Frye standards, so that, at the end of the day, we reach the right policy outcomes. But Schauer is not so pessimistic about juror abilities. He suggests, at least implicitly, that in the lie detection context, the traditional tests for admitting scientific evidence may not set the bar at the right place.
Kay L. Levine (Emory University School of Law) has posted an interesting manuscript, When Gender Meets Sex: An Exploratory Study of Women Who Seduce Adolescent Boys (William and Mary Journal of Women and the Law, Vol. 15, Issue 2, 2009), on SSRN. Here is the abstract:
This article describes the origins, design, and implications of a new study exploring female-perpetrated statutory rape against adolescent boys in the United States. In contrast to both legal frameworks, which typically regard statutory rape as a male-on-female phenomenon, and existing literature from the fields of pyschology and psychiatry derived from clinical samples and sex offender registries, This study examines the incidence of female-perpetrated statutory rape using data from electronic news reports covering the period 1990-2008. In this short article, the author explains the advantages of her approach over those taken by prior scholars, in terms of the size of the data set and the scope of coverage, as well as her decision to focus on statutory rape exclusively, rather than on female sex abuse more generally. The article also discusses the projected implications of the study for understanding not only the crime of statutory rape but also the gender assumptions implicit in conventional works on this topic.
While Levine is still analyzing her data, some of her initial suggestions are intriguing. For example, she thinks the data will run counter to the view that these cases are typically "romance stories"--a view usually rejected in the case of male perpetrator/female victim and potentially harmful to male victims in the less common cases she studies.
[This is the thirteenth 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 and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]
Case: Weyhrauch v. United States
Docket No.: 08-1196
Oral Argument Date: not yet assigned
Issue: Whether 18 U.S.C. § 1346, by criminalizing denials of "the intangible right of honest services," mandates the creation by the federal courts of a federal common law defining the disclosure obligations of state government officials.
Factual and Procedural History: Petitioner, Bruce Weyhrauch, is a licensed attorney who represented Juneau in the Alaska House of Representatives in 2006 while the House was considering legislation that would alter how the state taxed oil production. Five days before the legislature’s scheduled adjournment, petitioner authored a letter to Bill Allen, the CEO of an oil fields services company, requesting further conversations about petitioner’s law office representing his oil company. The letter included a heading that stated “Advertising Material.”
Wednesday, September 2, 2009
My colleague, Shaun Martin, has an interesting post over at his California Appellate Report blog on a case out of the Ninth Circuit today involving alleged bribery of San Diego city councilmen which came to be called "Strippergate" locally. (For the record, that's Shaun pictured on the right, not (1) one of our councilmen or (2) a stripper.) Shaun gives Judge Canby credit for his sense of humor, noting that the second paragraph of the opinion begins:
"In 2000, the San Diego City Council enacted an ordinance banning touching between exotic dancers and patrons: the so-called No-Touch ordinance. This ordinance replaced another provision banning only “lewd and lascivious” conduct at clubs. The bright line aspect of the No-Touch ordinance made for easier law enforcement and eliminated the need to spend public funds on lap dances for undercover police officers."
Shaun also notes that the court identifies "a lingering issue about the legal requirements for 'honest services' fraud that's at issue in the trial as well as in a pending Supreme Court case, so the Ninth Circuit stays the mandate to see how that all plays out." The opinion is here.
This paper investigates the topic of universal jurisdiction, ie the supranational prosecution and repression - without the necessity of a link between the accused and the prosecuting state - of crimes of such gravity and magnitude as to collide with certain core values accepted by the international community and transcending the peculiarity of national interests. The focus of the chapter is exactly to try and discern the scope of universal jurisdiction, distinguishing between the two different versions of universality theorized by contemporary authors: ‘conditional universal jurisdiction,' which requires the presence of the accused in the prosecuting state, and ‘absolute universal jurisdiction’, according to which the accused does not have to be present in order to make the exercise of universal jurisdiction possible. As a matter of fact, only a handful of states currently possesses national legislation covering the exercise of ‘absolute universal jurisdiction’, as a confirmation that, notwithstanding the general scholarly consent in recognizing the existence of a universality principle, no agreement actually exists about this principle’s content. By means of an historical overview of the most noteworthy examples of implementation of universal jurisdiction, Helena Gluzman displays various arguments against it - e.g. its administrative costs, the local concern connected to its enforcement and the related risk of political manipulations, the criticalities related to the need of granting the accused a due process of law - showing the shortcomings of such jurisdiction with particular regard to its less wellaccepted form (the ‘absolute’ one), whose theoretical foundations seem to have been historically undermined by the Nuremberg and Eichmann experiences. Prominent exercises of absolute universal jurisdiction, however, also illustrate its practical pitfalls, as the associated political and administrative costs seem to widely outweigh the benefits of universality.
The headline of an article in today's New York Times. Here's the lead:
In all 50 states, registries of sex offenders have grown sophisticated and accessible in recent years, a response to high-profile attacks on children. People can search their neighborhoods for former convicts on state-run Web sites, sign up for private services that alert them if an offender moves nearby, even download an iPhone application, “Offender Locator.”
But the case of Phillip Garrido, the California man accused of kidnapping a young girl and holding her captive for 18 years, is reigniting a debate about the usefulness of the government-managed lists and whether they might create a false sense of public safety.
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Not the Crime But the Cover-Up: A Deterrence Based Rationale for the Premeditation-Deliberation Formula on SSRN--an interesting look at a long-standing problem. Here is the abstract:
Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate murder is murder of the first-degree murder, while second-degree murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree murder.
Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of the relative culpability or dangerousness of intentional murderers. The premeditation-deliberation formula, the critics tell us, is incapable of segregating out the worst murderers because it is both under- and over-inclusive. In addition, critics have pointed to the courts’ inability or unwillingness to apply the premeditation-deliberation formula in any coherent fashion. Many courts have held that the premeditation and deliberation required to transform a mere intentional, second-degree murder into first-degree murder can be formed in the instant before the killing. Thus do many courts fail meaningfully to distinguish one degree of intentional murder from the other. This second failing appears inextricably related to the first: since many unplanned but intentional murders are as bad as or worse than many planned killings, and their perpetrators at least as dangerous, courts contort the meanings of premeditation and deliberation to allow the most culpable and dangerous murderers to be punished most harshly.
These criticisms are founded on the premise that the distinction between first- and second-degree murder is grounded solely upon principles of retribution and incapacitation. What the critics have overlooked is that there is a powerful deterrence-based rationale for distinguishing premeditated, deliberate murders from those that are unpremeditated or non-deliberate. Where a murder is premeditated and deliberate, it is much more likely that the murderer has not only planned out the crime itself but has developed a plausible way to avoid or delay detection. Because the value of punishment as a deterrent depends in large part on the likelihood and swiftness of punishment, crimes that are less likely to be punished swiftly, all other things being equal, ought to be punished more severely. Thus, given two equally dangerous and culpable intentional murderers, we are arguably justified in punishing more severely the one who, by virtue of better planning beforehand, is more likely to escape or delay detection.
Normatively, the piece dismisses more quickly than I would the argument that premeditation correlates with an opportunity to reflect on punishment that might make more severe punishments pay their utilitarian way. But it does a nice job elaborating another strand of deterrent thinking not well explicated by prior work--that premeditated killers are more likely to have fashioned a plausible plan to escape detection, and hence must be threatened with more severe punishment to achieve optimal deterrence. The manuscript is also an interesting piece of intellectual history, showing how deterrent theorists like Beccaria and Montesquieu affected the thinking of those who imported the premeditation/deliberation distinction into American law, even though it is commonly discussed today in retributive terms.
[This is the twelfth 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 and the petition for certiorari to provide an overview of the case and the advocates’ arguments. Links to the briefs appear at the end of the summary.]
Case: United States v. Comstock
Docket No.: 08-1224
Oral Argument Date: not yet assigned
Issue: Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) "sexually dangerous" persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) "sexually dangerous" persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
Factual and Procedural History: This case consists of five civil-commitment proceedings that were initiated by the United States in the District Court for the Eastern District of North Carolina. The United States instituted proceedings against each of the five respondents (Comstock, Revland, Matherly, and Vigil) pursuant to § 4248 in November and December 2006. At that time, each respondent was scheduled to complete a prison term. The fifth respondent, Catron, was indicted in 2004 on four counts of aggravated sexual abuse of a minor under the age of 12, and one count of abusive sexual conduct. He was found incompetent to stand trial, and was committed for evaluation. The government subsequently initiated civil-commitment proceedings against him under 18 U.S.C. § 4246, which were then transferred via a proceeding under § 4248.
Tuesday, September 1, 2009
Francesco Messineo (University of Cambridge) has posted The Abu Omar Case in Italy: ‘Extraordinary Renditions’ and State Obligations to Criminalize and Prosecute Torture Under the UN Torture Convention. Here is the abstract:
This article deals with state obligations under the UN Torture Convention, specifically the criminal prosecution of individuals for torture and complicity in torture incidental to ‘extraordinary renditions’, by focusing on Italy's obligations arising from the abduction of Mr Abu Omar. After addressing what ‘extraordinary renditions’ are and the wider context in which they occurred, the article considers the obligation to criminalize complicity in torture and its implementation in Italy. It then analyzes the ongoing Italian criminal proceedings concerning the abduction of Mr Abu Omar and concludes that they are not an adequate implementation of Italy’s obligation to prosecute complicity in torture under the Convention for a variety of reasons. In particular, it addresses the issue of ‘state secrecy’ which emerged during the proceedings and was decided upon by the Constitutional Court, and argues that it cannot be used to avoid international obligations under the Convention.