September 1, 2009
"Innocent But Dead"
That's the headline on the op-ed piece in the New York Times about the 2004 Texas execution of Cameron Todd Willingham, convicted of starting a fire that killed his children. He had turned down a plea bargain that would have spared him the death penalty. Substantial doubt has now been cast on the scientific evidence that the fire was arson. When so informed, the jailhouse snitch who testified against Willingham "seemed taken aback. 'Nothing can save me now,' he said." Doug Berman has links to other articles on the case at Sentencing Law and Policy.
Exum on Honesty and Proportionality in Federal Sentencing
Jelani Jefferson Exum (University of Kansas School of Law) has posted Why March to a Uniform Beat?: Adding Honesty and Proportionality to the Individualized Tunes of Federal Sentencing on SSRN. Here is the abstract:
The Federal Sentencing Guidelines were initially created to increase uniformity in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker , and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not necessarily eradicated by the uniformity promised by sentencing guidelines, and this possibility of bias in sentencing also has implications for the honesty and appropriate proportionality that Congress has called for to inform sentencing decisions. However, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the §3553(a) sentencing factors, and adequately explain the chosen sentence. However, out of those three requirements for procedural reasonableness, only the requirement that district courts begin the sentencing process by calculating the applicable Guidelines range - the factor that the Court considers to be the most closely related to ensuring uniformity - has been given any force. The requirements to consider the §3553(a) factors and adequately explain the sentence have fallen by the wayside as vague concepts, though these are the requirements that can most effectively ensure the reduction of impermissible bias in sentencing by allowing for a check on both honesty and proportionality. This Article reveals the Supreme Court’s error in requiring that district courts begin their sentencing determinations by calculating and considering the applicable Sentencing Guidelines range in order for the sentence to be procedurally reasonable. Not only is this requirement based on a misreading of the sentencing statutes, but it also cuts against the sentencing principles set forth by Congress as well as the traditional concern with individualized sentencing that has always been at the heart of sentencing jurisprudence and that are reflected in both the honesty and proportionality goals.
This Article provides an in-depth look at the Guidelines themselves in order to make the argument that the Supreme Court’s approach to sentencing post-Booker is misguided. The Supreme Court’s framework for an advisory Guidelines scheme allows the biases that are already buried in the Guidelines themselves to continue to act as the prevailing factors in sentencing. These biases, whatever the source, counteract Congress’ three-fold purpose in promulgating the Sentencing Guidelines in the first place - honesty, uniformity, and proportionality. Even the recent Supreme Court decision, Kimbrough v. United States, acknowledged that the Guidelines can sometimes create unwarranted disparities and lead to sentences that are unduly harsh. The new, advisory Guidelines system provides the opportunity for the Court to require that sentences be based on §3553(a) factors, in order to create uniformity in sentencing purposes rather than just in sentencing results, and to require real explanations to justify those sentences. Therefore, this Article proposes that the Supreme Court do away with the procedural requirement that district courts begin the sentencing process by calculating the Guidelines range in order to remove the possibility of using the Guidelines as a shield behind which to hide bias in the name of uniformity. As this Article asserts, not only is this outcome statutorily mandated, but it serves Congress’ own articulated sentencing principles and is consistent with notions of sentencing fairness that is reflected in the concept of individualized sentencing.
Previewing the Coming Term (Part 11): Black v. United States
[This is the eleventh 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 case and the advocates’ arguments. Links to the briefs appear at the end of the summary.}
Case: Black v. United .States
Docket No.: 08-876
Oral Argument Date: not yet assigned
Issues: (1) Whether 18 U.S.C. § 1346 applies to the conduct of a private individual whose alleged "scheme to defraud" did not contemplate economic or other property harm to the private party to whom honest services were owed; (2) Whether a court of appeals may avoid review of prejudicial instructional error by retroactively imposing an onerous preservation requirement not found in the federal rules.
Factual and Procedural History: The U.S. Supreme Court held, in McNally v. United States, 483 U.S. 350 (1987), a public corruption case, that the mail fraud statute could not be used to prosecute schemes to deprive the citizenry of the intangible right to good government. Congress responded in 1988 by enacting 18 U.S.C. § 1346, which expands the definition of a "scheme or artifice to defraud" under the mail and wire fraud statutes to encompass schemes that "deprive another of the intangible right of honest services." Twenty years later, the courts of appeals are hopelessly divided on the application of Section 1346 to purely private conduct. In this case, the Seventh Circuit disagreed with at least five other circuits and held that Section 1346 may be applied in a purely private setting irrespective of whether the defendant's conduct risked any foreseeable economic harm to the putative victim. In the alternative, the Seventh Circuit ruled that the defendants forfeited their objection to the improper instructions by opposing the government's bid to have the jury return a "special verdict," a procedure not contemplated by the criminal rules and universally disfavored by other circuits as prejudicial to a defendant's Sixth Amendment rights.
Summary of Petitioners’ Argument: Petitioners argue the Supreme Court’s holding in McNally is dispositive in this case. Moreover, according to petitioners, § 1346, as drafted and adopted by Congress, failed to clearly address the concerns of the Court by enjoining the deprivation of the “intangible right of honest services.” Petitioners argue the lower courts have construed this language as a “direction to revive the body of case law that antedated McNally.” Ultimately, according to petitioners, interpreting § 1346 based on pre-McNally case law would be in error because it would involve, as applied in this case, purely private conduct.
In the alternative, “[w]hatever the precise scope of Section 1346,” petitioners argue it is “clear” their convictions “must be reversed because the district court refused to instruct the jury on the one requirement that is apparent from the text and history of the statute.” According to petitioners, the language of § 1346 precludes prosecutors from prosecuting dishonest conduct outside the common understanding of fraud. Petitioners argue the Seventh Circuit was incorrect when it found that the jury might have convicted petitioners anyway if properly instructed. Accordingly, petitioners request the Court to reverse the obstruction of justice and fraud convictions.
Summary of Respondent's Argument: Merits brief not yet filed.
August 31, 2009
Reaction to Holder's Appointment of Prosecutor to Examine Abuse of DetaineesThe New York Times has a story here. The lead is criticism from former vice president Dick Cheney. Senator Dianne Feinstein (D-Calif.) expresses ambivalence about the wisdom of the inquiry.
Brookes on Restorative Justice and Work Related Death
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.
New Guidelines on Border Searches of Laptop Computers
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.”-
Featured Download: Miller on Putting Practice into Criminal Procedure Theory
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.
Previewing the Coming Term (Part 10): Florida v. Powell
[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.
August 30, 2009
Schauer on Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms
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.
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