September 19, 2009
Controversy Expected as Patriot Act Extension ConsideredThe story in the New York Times is entitled Battle Looms Over the Patriot Act. Without legislative extension by year's end, provisions would expire that expanded the FBI's power "to seize records and to eavesdrop on phone calls." A group of senators filed a bill on Thursday that would limit the provisions.
"Experts: Defense in Yale killing has tough job"
The A.P. story is here. The lead:
Defending a Yale lab technician charged with murder against what appears to be a mountain of forensic evidence might mean trying to convince jurors that the crime scene was contaminated because police didn't immediately shut down the lab where the victim was eventually found, legal experts said.
District Court Rejects Saving "Innocent" DNA Profile in CODIS but Declines to Apply Exclusionary RuleFourthAmendment.com summarizes the case here, calling it "fascinating and important." The court quotes Professor Elizabeth Joh's concerns about creating a "backdoor to population-wide data banking." The 101-page opinion is here.
"Prisoner in Ohio Wins a Stay Against a Second Execution Attempt"
The story is in the New York Times. The article describes the "Hippocratic paradox":
Dr. Jonathan I. Groner, a professor of medicine at Ohio State University, cites what he calls the Hippocratic paradox: it is doctors who are best qualified to carry out executions by lethal injection, and yet, as medical organizations have periodically reminded them, their doing so is ethically proscribed.
The task of injecting a deadly cocktail of drugs instead falls on execution teams whose training, Dr. Groner said, does not adequately prepare them for prisoners who among other problems may be obese or have veins ravaged by intravenous drug abuse. (In a log reviewed by The Associated Press, Mr. Broom’s executioners attributed their trouble to his past IV drug abuse, use that he has denied.)
“The problem is there’s no Plan B,” said Dr. Groner, an outspoken opponent of the death penalty. “They have a group of individuals who have a certain skill set for inserting IVs. It’s a very low skill level, and some of the inmates are extremely challenging.”
The article quotes from the affidavit by the condemned man describing the botched execution effort.
Lyke on Lawrence as an Eighth Amendment Case
Sheldon Bernard Lyke University of Chicago - Department of Sociology) has posted Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency (William & Mary Journal of Women and the Law, Vol. 15, No. 3, 2009) on SSRN. Here is the abstract:
This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse. While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision’s language, I propose that Lawrence is better read as an Eighth Amendment case. This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case. The Lawrence Court not only used objective indicators to find a U.S. consensus against sodomy laws but was also cognizant of foreign nations that refused to criminalize sodomy. Additionally, I suggest that the Eighth Amendment and the evolving standards of decency were on the minds of the Justices when deciding Lawrence, and at a minimum, the case was decided in the amendment’s shadow. The Justices were exposed to an evolving standards of decency analysis in both written briefs and oral arguments, and the majority opinion used language evocative of emergence and evolution. I discuss the importance of this alternative reading of Lawrence and begin a conversation on the possibilities of extending an evolving standard of decency analysis to issues other than sodomy and areas beyond criminal law.
September 18, 2009
"When Criminal Justice Systems Collide: Improving the European Arrest Warrant "That's the title of a piece over at Jurist by Raneta Lawson Mack (Creighton University School of Law) exploring one of the difficulties caused by the co-existence of inquisitorial and accusatorial systems within the European Union.
Erickson on the Brain and the Law
Criminal law scholarship has recently become absorbed with the ideas of neuroscience in the emerging field of neurolaw. This mixture of cognitive neuroscience and law suggests that long established conceptions of human agency and responsibility are fundamentally at odds with the findings of science. Using sophisticated technology, cognitive neuroscience claims to be upon the threshold of unraveling the mysteries of the mind by elucidating the mechanical nature of the brain. Despite the limitations of that technology, neurolaw supporters eagerly suggest that those revelations entail that an inevitable and radical overhaul of our criminal justice system is soon at hand. What that enthusiasm hides, however, is a deeper ambition among those who desire an end to distributive punishment based on desert in favor of a prediction model heavily influenced by the behavioral sciences. That model rests squarely on the presumption that science should craft crime policy at the expense of the authority of common intuitions of justice. But that exchange has profound implications for how the law views criminal conduct and responsibility - and how it should be sanctioned under the law. Neurolaw promises a more humane and just criminal justice system, yet there is ample reason to believe otherwise.
Inmate Ordered to Testify About Failed ExecutionThe story in the New York Times is here. The deposition is scheduled for Monday; the next execution attempt is scheduled for Tuesday. Attorneys will seek to block the execution on three grounds: "They will contend that seven days is not enough time to recover from the physical and emotional trauma of the failed execution attempt, that Ohio’s lethal injection system in its current form is critically flawed and that lethal injection, in general, is cruel and unusual punishment." Doug Berman has several posts on this case over at Sentencing Law and Policy.
Henning on Enforcement and the SEC
The current environment is highly supportive of increased government regulation, particularly in the financial field. One of the beneficiaries of this push for greater oversight of the markets appears to be the Securities & Exchange Commission, despite some recent high profile enforcement failures, most particularly the massive Ponzi scheme undertaken by Bernie Madoff. In this essay, I raise the question whether the SEC should retain its enforcement authority over fraud cases, or whether it would be better served if that function were shifted to the Department of Justice. The SEC’s recent push to take on a more prosecutorial air gives the clear impression that an adversarial approach to enforcement of the securities laws is in order. However, the Commission must continue to solicit the views of Wall Street to fulfill its regulatory function, much like Madoff was included in the SEC’s deliberations on rules related to the stock market. At some point in the future, the push for greater regulation is likely to pass from the scene as the pendulum swings back toward a less intrusive approach to oversight. Whether the Commission can resist renewed entreaties to go easier on enforcing the law to free the capital markets from strict regulation is an open question. To allow the SEC to regulate Wall Street properly, splitting off at least a portion of the enforcement function to an agency with expertise in prosecutions - the United States Department of Justice - is at least worthy of consideration as the government looks to increase regulation.
September 17, 2009
Guest Blogger Michael Perlin: Some Advice about Ignoring Advice about Collaborations
[Guest blogger Michael Perlin, an internationally recognized expert on mental disability law, is a professor of law at New York Law School.]
Many years ago, when I began teaching (I had litigated for 13 years prior to changing careers, and had written a good number of law review articles during those years), I received all sorts of well-meaning advice from colleagues (both at my own school and elsewhere) about what to do and what not to do as part of my pre-tenure years (being me, I proceeded to ignore almost all that advice, and I have never regretted it for a moment, but that’s another story). Much of the advice was predictable, and made sort of sense, given how tenure decisions are mostly made. But one piece of it flabbergasted me, and has remained stuck in my mind for years as an example of one of the many things wrong with the legal scholarship enterprise.
“Never write anything with a colleague,” I was warned, “because the tenure committee won’t be able to figure out what was yours and what was your colleague’s and, therefore, it won’t count.” The whole notion of what “counts” also struck me as bizarre (I was at the time engaged in writing a three-volume treatise in mental disability law, an area of the law in which there had never been a treatise, and was told blithely that it wouldn’t “count” because it was a book (well, three books), and “books don’t count.” I was also told that it was time for me to abandon writing in behavioral journals and cross-over “law and ...” journals, since they weren’t really law reviews and this they told me, you guessed it, “wouldn’t count.”
All this was supremely foolish (and, as I said, I chose to ignore much of it), and it was pretty much, in my case, relegated to the category of no-harm-no-foul. But I realized that, unconsciously, the don’t-write-with-a-colleague ukase must have stuck, since, in the six years that elapsed from the time I was hired until I was tenured (1984-90 for those keeping score at home), I didn’t write a single piece with a colleague.
I’m not sure why now. The treatise kept me busy, As did running a litigation clinic. As did writing a series of law review articles (including one that everyone called my “tenure piece,” though I certainly never saw it that way). Whatever. But, looking back at my CV now, I note that, in the few years immediately after I was granted tenure, I began again to write with colleagues (including other law professors, practitioners, forensic psychiatrists, and forensic psychologists), and have never looked back.
Recently, most of my scholarship is with co-authors, and, significantly, I think, much of it is with non-law professors. And since I have been doing this, I believe my scholarship has been enriched, and that my perspective on my subject matters (I now write mostly about the relationship between international human rights and mental disability law, the role of forensic witnesses in the criminal trial process, and the relationship between criminal procedure and mental disability law) has benefited in multiple ways.
I looked at some of my recent postings on SSRN (and that’s really what inspired this blog post), and was struck with the diversity of my co-authors (both in terms of their professional backgrounds and their internationality).
• "Equality, I Spoke That Word/As If a Wedding Vow": Mental Disability Law and How We Treat Marginalized Persons, 53 N.Y.L. SCH. L. REV. 9 (2008-09) (with John Douard)
• “Where Souls Are Forgotten”: Cultural Competencies, Forensic Evaluations and International Human Rights (with Dr. Valerie McClain), -- PSYCHOL., PUB POL’Y & L. – (2009) (in press)
• “Where The Home In The Valley Meets The Damp Dirty Prison”: A Human Rights Perspective On Therapeutic Jurisprudence And The Role Of Forensic Psychologists In Correctional Settings, 14 AGGRESSION & VIOLENT BEHAVIOR 256 (2009) (with Astrid Birgden)
• “The Witness Who Saw, /He Left Little Doubt": A Comparative Consideration of Expert Testimony in Mental Disability Law Cases, 6 J. INVESTIGATIVE PSYCHOL. & OFFENDER PROF. 59 (2009) (with Astrid Birgden & Kris Gledhill)
• “It’s Doom Alone That Counts”: Can International Human Rights Law Be An Effective Source of Rights in Correctional Conditions Litigation? -- BEHAV. SCI. & L. – (2009) (with Henry Dlugacz ) (in press)
• "Tolling for the Luckless, the Abandoned and Forsaked": Community Safety, Therapeutic Jurisprudence and International Human Rights Law As Applied to Prisoners and Detainees, 13 LEG. & CRIMINOL. PSYCHOLOGY 231 (2008) (with Astrid Birgden)
• Mental Health Law and Human Rights: Evolution and Contemporary Challenges, in MENTAL HEALTH AND HUMAN RIGHTS (Michael Dudley ed. 2009) (Oxford University Press) (with Eva Szeli) (in press)
I also thought, in the same vein, about the two most recent books I have published:
• COMPETENCE IN THE LAW: FROM LEGAL THEORY TO CLINICAL APPLICATION (with Pamela Champine, Henry Dlugacz, and Mary Connell) (John Wiley) (2008)
• PSYCHIATRIC ETHICS AND THE RIGHTS OF PERSONS WITH MENTAL DISABILITIES IN THE COMMUNITY (with Harold Burstajn, Kris Gledhill & Eva Szeli) (Yozmot Ltd., Israel UNESCO) (2008)
So, who are these guys I write with? Douard is a practicing attorney and a philosophy professor. McClain is a practicing forensic neuropsychologist. Birgden is a forensic psychologist who runs a prison in Australia and is now teaching at Deakin University in Melbourne. Gledhill is a law professor at the University of Auckland in New Zealand. Dlugacz is a lawyer (and a social worker) whose law practice focuses on mental health issues in jail and prison cases. Szeli is a lawyer and forensic psychologist who teaches psychology in Arizona, and who formerly practiced law in Hungary and Kosovo. Connell is a forensic psychologist in Texas. Burstajn is a psychiatrist in Massachusetts. Dlugacz and Szeli are also adjunct professors at New York Law School in our online mental disability law program. (Sadly, Pam Champine, my colleague at New York Law School, passed away last year; she was the only full time law teacher on this list).
I still write solo articles, and will continue to do so. But I am so much fonder (is that a word one uses in legal scholarship?) of most of these, and feel they have so much more to offer in light of the diversity of the professional and practice backgrounds of the others with whom I collaborated. So I write this to share these thoughts with the readers of this list in the modest hopes that it will inspire some more of my colleagues to do the same, Whatever your colleagues may tell you to the contrary, trust me -- these “count.”
Symposium Issue on MPC Sentencing
The Florida Law Review's September 2009 issue is a symposium on MPC sentencing featuring articles by Kevin Reitz, Doug Berman, Judge Michael Marcus, Christopher Slobogin (pictured), Nora Demleitner, Robert Weisberg, and Alice Ristroph. Professor Slobogin's introduction is available here. Here's the table of contents:
Introduction to the Symposium on the Model Penal Code's Sentencing Proposals
- Christopher Slobogin (61 Fla. L. Rev. 665)
- Kevin R. Reitz (61 Fla. L. Rev. 683)
The Enduring (and Again Timely) Wisdom of the Original MPC Sentencing Provisions
- Douglas A. Berman (61 Fla. L. Rev. 709)
How (Not) To Think Like a Punisher
- Alice Ristroph (61 Fla. L. Rev. 727)
MPC -- The Root of the Problem: Just Deserts and Risk Assessment
- Michael Marcus (61 Fla. L. Rev. 751)
Good Conduct Time: How Much and for Whom? The Unprincipled Approach of the Model Penal Code: Sentencing
- Nora V. Demleitner (61 Fla. L. Rev. 777)
Tragedy, Skepticism, Empirics, and the MPCS
- Robert Weisberg (61 Fla. L. Rev. 797)
Featured Download: Beale on Corporate Criminal Liability
Sara Sun Beale (Duke University School of Law) has posted A Response to the Critics of Corporate Criminal Liability (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay responds to critics of corporate liability and to the claim that elimination or limitation of such liability should be a priority for law reform. It discusses four points. First, imposing criminal liability on corporations makes sense, because corporations are not mere “fictional” entities. Rather, corporations are very real – and enormously powerful – actors whose conduct often causes very significant harms both to individuals and to society as a whole. Second, in evaluating the priorities for law reform it is critical to recognize that most of the problems with corporate liability are endemic to U.S. criminal law, rather than unique. The problems of corporations are neither special and distinctive, nor the most serious problems facing the criminal justice system. Third, a comparative review reveals something that may come as a surprise: corporate criminal liability is neither an embarrassing historical vestige nor a uniquely troubling feature of U.S. criminal law. To the contrary, in other countries the focus in the past several decades has been on the creation of corporate criminal liability in jurisdictions in which it did not exist, and where such liability already existed the modern reforms have included modifications intended to make it easier, rather than harder, to prosecute corporations criminally. Finally, what about the collateral consequences of a criminal conviction, which may wreck havoc on innocent parties including shareholders, employees, and creditors? Critics have mistakenly assumed that these collateral consequences are intrinsically tied to criminal liability. They are either necessarily related to criminal liability nor are they limited to corporations. Accordingly, these collateral consequences should be considered by prosecutors on a case-by-case basis, but they should not affect the policy questions addressed here. The critics are right that there are serious problems with corporate criminal liability in the United States. But any agenda for reform should acknowledge that those problems are generally endemic to the criminal justice system (and especially the federal criminal justice system), rather than unique to corporations. In addition, the agenda for reform should include the question whether corporate criminal liability (and/or other mechanisms such as civil liability and regulatory oversight) needs to be strengthened or expanded.
I'm not sure that the size and power of corporations tell us much in any direct way about the wisdom of corporate criminal liability, as individuals cause the corporation to act and could always be subjects of punishment. One might justify corporate liability as a way to deter conduct that otherwise cannot be traced to individuals, but that is another argument. Nor does the undoubted spillover effect of individual criminal punishment tell us much about whether corporate criminal liability is sound; with corporate liability, the spillover effects are the whole point, not an unavoidable but lamentable consequence of punishing an actual wrongdoer.
Kreit on A Public Health Approach to Drug Policy
September 16, 2009
"Attorneys, Academics Sort Through Landmark Case on Computer Searches"
With the permission of BNA, Orin Kerr at The Volokh Conspiracy has posted this helpful story from the Criminal Law Reporter on the Ninth Circuit's recent and, in Professor Kerr's estimation, "remarkable" opinion in United States v. Comprehensive Drug Testing.
Hafemeister & Stockey on Criminal Responsibility of War Veterans with PTSD
Thomas L. Hafemeister (University of Virginia School of Law) and Nicole A. Stockey have posted Last Stand? The Criminal Responsibility of War Veterans Returning from Iraq and Afghanistan W ith Post-Traumatic Stress Disorder (Indiana Law Journal, Forthcoming) on SSRN. Here is the abstract:
As more psychologically-scarred troops return from combat in Iraq and Afghanistan, society's focus on and concern for these troops and their psychological disorders has increased. With this increase and with associated studies confirming the validity of the Post-Traumatic Stress Disorder (PTSD) diagnosis and the genuine impact of PTSD on the behavior of war veterans, greater weight may be given to the premise that PTSD is a mental disorder that provides grounds for a “mental status defense,” such as insanity, a lack of mens rea, or self-defense. Although considerable impediments remain, given the current political climate, Iraq and Afghanistan War veterans are in a better position to succeed in these defenses than Vietnam War veterans were a generation ago. This Article explores the prevalence and impact of PTSD, particularly in war veterans, the relevance of this disorder to the criminal justice system, and the likely evolution of related mental status defenses as Iraq and Afghanistan War veterans return from combat.
"Officers’ New Tool Against D.W.I.: Syringe"This A.P. story ran in yesterday's New York Times, discussing a federal pilot program and some of the concerns expressed about it. Police officers are trained to draw blood at the scene of a traffic stop. Hat tip:FourthAmendment.com.
Ohlin on Torture Lawyers
One of the longest shadows cast by the Bush Administration’s War on Terror involves the fate of the torture lawyers who authored or signed memoranda approving the use of torture or enhanced interrogation techniques against detainees. Should they face professional sanction or even prosecution for their involvement? The following article suggests that their fate implicates some of the deepest questions of criminal law theory and that resolution of the debate requires a fundamental reorientation of the most important areas of justifications and excuses. First, the debate about torture has been overly focused on justifications for torture. This can be explained in part by a general confusion in U.S. law over the necessity defense. Second, this Article therefore argues that necessity, when properly understood, constitutes two separate defenses, one a justification and the other an excuse, each with its own standard. The necessity justification does not apply to government agents who tortured detainees, though necessity as an excuse might apply under certain conditions. However, excused necessity - like all excuses - does not generate a corresponding exculpation for accomplices, like the torture lawyers, who might be said to have aided and abetted the principal perpetrators. Third, the Article questions the usual assumption of lawyers that they are only liable as accomplices if they supported their client’s criminality through frivolous legal arguments, though even under this standard the torture lawyers might face accomplice liability for some of their arguments. Finally, commentators are wrong that such prosecutions would be unprecedented. The United States itself prosecuted Nazi officials at Nuremberg for their failure to properly advise the Reich that their conduct violated international law.
Findlay on Recognizing a Victim Constituency in International Criminal Justice
Those who would like to see the international criminal trial remain a retributive endeavor reflecting the conventional features and characteristics of domestic trials are concerned that enhancing victim constituency for the international trial process will endanger its limited potential success. Despite legalist assertions the ICC, and its prosecutor, have claimed more universalist justifications in the form of the court's potential to assisting in state reconstruction and peacemaking. Further, the ICC, and the international tribunals which precede it, have within their authorizing legislation growing recognition of victim interests, even if this remains largely outside the processes of trial decision making.
Today in many domestic criminal jurisdictions, the position and voice of the victim is receiving increasing attention and recognition, if only in terms or very selective participation. The imperative for victim inclusion has progressed into the procedures governing institutional international criminal justice.
This being said, the reality of global crime victimization and its terrible collective dimensions has found little practical trial recognition beyond the fragmentary and selective prosecution of genocide. Victim communities, and the prosecution of collective perpetration are not driving the unique jurisprudence of international criminal; law or trial procedure.
This paper argues that the nature of global crime, and the purposes of international criminal justice require a more victim-centered transformed trial process. Te nature of international criminal justice and the global crimes it confronts, presents a uniquely persuasive position for a victim constituency despite the challenging partiality of victim interests.
Such a transformation of justice constituency must be measured against the crucial importance of accountability as a indicator of trial fairness, and the protections of the accused which these require. Despite active efforts by the international criminal courts and tribunals to better balance victim interests at trial and pre-trial phases, the constrictions of adversarial justice relegate the victim voice to the witness role, and compensation considerations post sentence.
Along with accountability to a victim constituency, follows the pragmatic persuasion that with a heightened victim purchase over international criminal justice will flow greater legitimacy for this process across a wider range of communities which it is said to serve. The legitimacy that the satisfaction of victim interests offers should not be underestimated, or over calculated. The nature and direction of victim legitimation will be examined specifically in this paper against a range of challenges which might tend to compromise that legitimating process.
Our concluding discussion of 'communities of justice' argues rationalization above balance. In any criminal justice resolution there may be several victims or victim communities with different victim stories exercising different interests and values. A distillation of legitimate victim interests in such a contested environment will be a challenge for the transformed criminal trial. The identification and harmonization of legitimate victim interests is much more than uncritical concession to the self-interested expectations, beyond retributive justice and vengeance that victims enunciate.
The paper begins by confronting prevailing circumspection about why victims should be prioritized as the constituency for international criminal justice. The argument moves from the demands of legitimacy, on to the anticipation that through communities of justice a sharper victim focus will require that international criminal justice be more accountable. This is a theme that prevails throughout and will link our case for transformed criminal trial process to a new age of global governance. But first it is necessary to locate the paper's theoretical mission, against the perennial struggle between subjective and universalized analysis.
September 15, 2009
Botched Ohio Execution Leads to One-Week Stay
The execution team had trouble finding the vein of the condemned. Crime and Consequences has a post on this ("Execution Attempt in Vein") that links to the AP story. Doug Berman's post at Sentencing Law and Policy ("More on Ohio's execution troubles and what could happen next") says:
In modern times, a completely failed lethal injection execution is unchartered legal terrain, and Broom's lawyers are certainly going to urge state and federal courts to grant a stay so that they have plenty of time to chart this terrain. Whether Broom avoids execution altogether is hard to predict, but I won't be at all surprised if Broom lives a lot longer than just an extra week.
Eisenberg, Hans and Colb on Prior Criminal Records, the Decision to Testify, and Trial Outcomes
Two pieces posted at The Legal Workshop address this topic. The first, by Theodore Eisenberg and Valerie P. Hans (both of Cornell Law School), is titled, Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and on Trial Outcomes. The second, by Sherry F. Colb (also of Cornell Law School), is entitled, Prior Convictions at Criminal Trials: A Response to Eisenberg and Hans. Both of these short pieces are well worth reading.