Saturday, September 12, 2009
This article, from today's New York Times, is interesting for a couple of reasons. First, it starts by discussing the use of harsh criminal penalties to change a culture of business corruption, with the usual consequences--many prosecutions needed to dislodge the practice.
Second, the main thrust of the article, about harsh criminal penalties for incurring debts that can't be paid back, illustrates the dangers of criminalizing conduct that comes too close to socially desirable behavior (ordinary business activity).
But best of all is the following story, which would make a nice exam question:
Consider the tale of Ali Fariq, a 33-year-old Iraqi real estate agent now serving a three-year jail term. Mr. Fariq says his ordeal in the Dubai legal system began last year when he was kidnapped and beaten by a diplomat who blamed him for an investment deal gone sour.
The diplomat, an Iraqi named Birhan al-Yacoubi, then forced Mr. Fariq — and later, his brother — to sign checks totaling $600,000, he said. She did not want the money; she knew they did not have it. Instead, she drove the men to a police station, where she presented the freshly signed checks as evidence of fraud, court records show.
The brothers, whose account is supported by police and hospital documents, were arrested, charged and convicted on several counts — one for each check.
Krista Stone-Manista has posted Protecting Pregnant Women: A Guide to Successfully Challenging Criminal Child Abuse Prosecutions of Pregnant Drug Addicts (Journal of Criminal Law and Criminology, Vol. 99, No. 3, 2009) on SSRN. Here is the abstract:
This Comment is intended to enable advocates for pregnant women to challenge the impermissible and unconstitutional prosecutions of pregnant drug users for criminal child abuse and endangerment. The Comment surveys the history of such prosecutions, and considers the policy justifications for them, before turning to an analysis of the frameworks that state appellate and supreme courts have applied in holding that these prosecutions may not proceed under various state laws. In summarizing the various challenges that may be brought to criminal prosecutions of pregnant drug addicts, this Comment illuminates the tactics that have been successful in previous cases, and offers various notes for those challenging future prosecutions.
Friday, September 11, 2009
Arnold Loewy (pictured) reports that the Fourth Annual Texas Tech Symposium on Criminal Law/Procedure will be held on April 8-9, 2010. This year’s theme is “The Fourth Amendment.” There is no charge for law professors; the first ten law professors that tell Professor Loewy they would like to attend are welcome to attend all of the symposium meals at no charge.
The schedule of events is as follows:
7:00 p.m.—Opening Dinner
9:00-9:15—Welcoming Remarks from various University and Law School Officials
9:15-9:45—Opening Address: Arnold Loewy (Texas Tech)
10:00-12:00--- Panel 1: How Important is (should) History be to resolving 4th Amendment questions, and how good (or bad) a job does the Supreme Court do in construing history?—Panelists: Morgan Cloud (Emory), Tom Davies (Tennessee), Andy Taslitz (Howard), George Thomas (Rutgers—Newark). Moderator: Darryl Brown (Virginia).
12:00-1:15--- Luncheon: Keynote Speaker—Erwin Chemerinsky (Cal.—Irvine)
1:15-3:15--- Panel 2: What value(s) is (are) the 4th Amendment intended to serve?---Panelists: Paul Butler (George Washington), Tom Clancy (Mississippi), Larry Rosenthal (Chapman), Carol Steiker (Harvard). Moderator: Wayne Logan (Florida State)
3:30-5:30---Panel 3: Is the exclusionary rule a good (the best) way of enforcing 4th Amendment value(s)?---Panelists: Catherine Hancock (Tulane), David Harris (Pittsburgh), Ken Starr (Pepperdine), Scott Sundby (Washington & Lee). Moderator: Ron Rychlak (Mississippi)
5:30-6:30---Wine and Cheese where participants can mingle with audience
Arlie Loughnan (University of Sydney - Faculty of Law) has posted The Legislation We Had to Have?: The Crimes (Criminal Organisations Control) Act 2009 (NSW) (Current Issues in Criminal Justice, Vol. 20, No. 3, pp. 457-465, 2009) on SSRN. Here is the abstract:
In the wake of several high-profile incidents of outlaw 'bikie gang'-related violence, including a fatal bashing at Sydney Airport, the New South Wales Government has introduced new laws to expand police powers relating to 'criminal organisations', membership, and association. This Comment provides a critical overview and analysis of the Crimes (Criminal Organisations Control) Act 2009 (NSW) (the Act), with reference to recent related legislation in other States and at federal level. The Act contains a number of problematic aspects, as it creates what are in effect status offences and makes compromises regarding conventional rules of procedure, proof and evidence. This Comment argues that the Act must be understood in the broad context of penal popularism and that it is symptomatic of the dominance of 'law and order' politics in NSW. Revealing a clear debt to anti-terrorism legislation, an emphasis on risk and prevention, and the curtailment of individual rights in the larger interests of security, the Act is an unfortunate if not unexpected step in the ongoing process of criminal law reform in NSW.
John D. Inazu (Public Law Fellow, Duke University School of Law) has posted No Future Without (Personal) Forgiveness: Re-Examining the Role of Forgiveness in Transitional Justice (Human Rights Review, Vol. 10, 2009) on SSRN. Here is the abstract:
The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including legal forgiveness), while not without a normative function, cannot effectuate either personal or political forgiveness, and (3) personal forgiveness requires a shared narrative framework to lead to political forgiveness. These assertions lead to two further observations. First, because the state has a normative role in its (limited) capacity to forgive on its own behalf and a practical role in its ability to spread and to transmit a shared narrative framework, the state has an important place in political forgiveness. Second, because the primary historical example of political forgiveness in transitional justice is the South African Truth and Reconciliation Commission that unfolded within an explicitly Christian theological framework, it may be that the shared narrative framework need be religious or even Christian in nature.
Thursday, September 10, 2009
Robert P. Mosteller and Kenneth S. Broun (pictured at right)(both of University of North Carolina at Chapel Hill - School of Law) have posted The Danger to Confidential Communications in the Mismatch between the Fourth Amendment’s 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges (Campbell Law Review, 2009) on SSRN. Here is the abstract:
This article examines the distinction between the concept of confidentiality under privilege law and the “reasonable expectation of privacy” concept of the Fourth Amendment. In many situations, the two concepts have the same application, but that is not always the case. We argue in this article that it would harm the protections currently understood to protect many significant confidential communications with professionals and marital partners to apply the Fourth Amendment concept to the law of evidentiary privileges.
This article arises from State v. Rollins, 675 S.E.2d 334 (N.C. 2009). Mickey Rollins was charged with murder. He had confided his guilt to his wife, who recorded their conversations for the authorities during visits with him in prison. The contested issue was the admissibility of the recordings under marital privilege law applied to confidential communications.
The conversation in question was a privileged marital communication under existing case law. Rollins was clearly relying on the confidence of the marital relationship in confiding his guilt to his wife. He had secretly lost her support and was deluded in the confidence he placed in her, but the marital privilege for confidential communications protects communicating partners from that type of betrayal. On these dimensions, his statement was clearly protected.
With respect to one issue - required confidentiality - the statement was close to the line but inside it under prior precedent. Rollins had the subjective intent to keep the conversation secret, and he had taken reasonable precautions to ensure no third party overheard. He had little margin for error since he was talking to his wife in a prison’s public visiting area, but the couple spoke quietly and were not overheard by those around them.
Had the majority found some way under these facts to rule that Mr. Rollins’ attempts to ensure confidentiality were inadequate, its narrow holding might have been factually unsupported but would not have posed much of a threat to the marital communications privilege or other privileges, such as the attorney-client privilege. However, the majority ruled broadly, deciding as a matter of law that, because the defendant lacked a “reasonable expectation of privacy” under the Fourth Amendment in the prison visiting area, he had no confidential evidentiary privilege. This article demonstrates that under the convoluted dimensions of the Fourth Amendment’s “reasonable expectation of privacy” concept and with the intrusion of technology into the privacy of many forms of contemporary communication, a vast array of important communications that are covered by evidentiary privileges would lose their protection if the erroneous reasoning of Rollins were applied to their requirement of confidentiality.
I spent about two weeks this past summer serving on a jury, and another four weeks explaining how I ended up getting chosen. (One answer is that, when the trial judge is a member of your school's Board of Visitors, you really don't have the option of answering questions during voir dire in a way obviously designed to avoid service.)
Our case was a petition to declare as a sexually violent predator a prisoner concluding his 20-plus year sentence for two counts of rape. The declaration would have permitted his commitment to a mental hospital. Under California law, we were to grant the petition only if we found, beyond a reasonable doubt, that the respondent suffered from a mental disorder affecting his emotional or volitional capacity that predisposed him to committing future criminal sexual acts.
Much has been written about these laws, including commentary spawned by the Phillip Garrido case and a couple of manuscripts recently posted on SSRN by Professors Logan, Levine, Yung, and Saxer and summarized over the past few weeks on CrimProf. My goal is not to provide a systematic treatment of the topic, but to report an experience that surprised me more than it probably should have.
CrimProf has now summarized the criminal law and procedure cases from last term and previewed those for which cert has been granted for the coming term. In addition, we will summarize new cases on which review is granted throughout the term.
To simplify access to posts about particular Supreme Court cases, we have now tagged them with the "Supreme Court" label. You can find them all by scrolling down to the "Topical Archive" list on the right of this page and clicking on "Supreme Court." At this point, we are not tagging all of our posts with the various categories listed, but as we build our army of helpers, we may begin using more of the tage.
Here are links to our recent posts on Supreme Court cases, with a description of the issues raised in the cases to be argued this coming term. Links to the briefs in many of the cases appear at the end of the post about the case:
Maryland v. Shatzer: 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.
Wednesday, September 9, 2009
"Mexican attorney general's resignation shows failure of prohibition strategy to stop drug trafficking"
Gus Van Harten (Osgoode Hall Law School) has posted Weaknesses of Adjudication in the Face of Secret Evidence (International Journal of Evidence and Proof, Vol. 13, 2009) on SSRN. Here is the abstract:
Since 2001, governments in Canada and the United Kingdom appear to have increasingly sought to use secret evidence in proceedings against individuals suspected of posing a security threat, relying on the courts to review and legitimate executive claims in closed proceedings. Yet, in the face of secret evidence, adjudicative decision-making is subject to several extraordinary weaknesses. First, the judge is precluded from hearing additional information that can come to light only if the individual or the public is aware of the executive’s claims. Secondly, courts are uniquely reliant on the executive to be fair and forthcoming about confidential information and to characterize accurately the case for secrecy. Thirdly, the dynamic or atmosphere of closed proceedings may condition a judge to favour unduly the security interest over priorities of accuracy and fairness. Even where the use of secret evidence is not deemed to be irreparably unsafe or unfair, therefore, its admissibility must be premised on the acknowledgment and careful consideration of corresponding weaknesses in adjudication.
The most effective way to achieve corporate compliance is to have individuals comply with the law. The reality, however, is that punishing misconduct, a reactive model, is the common methodology used to attain future legal compliance. Focusing more resources on the front end and using a pro-active model to achieve compliance would keep the corporate structure whole and yet also provide a sound basis for eradicating corporate criminality. This Essay proposes that an education model be implemented, with the government more actively participating in promoting compliance with the law.
The paper points out the costs associated with "reactive" approaches to corporate wrongdoing, including how the tendency of the corporation to sacrifice some employees during an investigation can work to make employees generally reluctant to seek assistance from corporate counsel and the like to ensure compliance with the law. It also describes some of the educational activities already engaged in by federal agencies to foster compliance and suggests possible benefits from their wider use.