October 10, 2009
"Expanded Hate Crimes Definition: What is Covered?"Caleb Gross at FindLaw analyzes how the recently passed House bill would change federal law.
"Conviction in Astor family case raises classic questions about how age should impact sentencing"
Berger on Minimum Sentencing in Canada
Benjamin L. Berger (University of Victoria Faculty of Law) has posted A More Lasting Comfort? The Politics of Minimum Sentences, the Rule of Law, and R. v. Ferguson (Supreme Court Law Review, Vol. 47, No. 2, 2009) on SSRN. Here is the abstract:
As a priori political judgments about what is a just punishment in all circumstances, minimum sentences pose particular and profound problems for the administration of criminal justice. Mandatory minimums are, however, politically seductive. Faced with their proliferation in Canadian penal law, Canadian courts have experimented with using the constitutional exemption as a means of addressing the excesses created by mandatory minimum sentences. This experiment was terminated in the Supreme Court of Canada’s decision in R. v. Ferguson. Although this judgment has been met with dismay in some quarters, this article argues that the decision is best read as a welcome disruption of the troubling politics of minimum sentences and sends the right message about the substantive demands that we make of our penal laws and the responsibilities of politicians in their approach to criminal justice.
Hessick on Government Appellate Strategies
Appellate courts are a principal source of change and growth of the criminal law. In the course of resolving disputes, appellate courts announce rules that govern future cases. For the government, seeing that these rules develop in a favorable way is often more important than the outcome in the case before the appellate court. The government is charged with protecting the public, and developing generally applicable rules of criminal law often is more important in obtaining that goal than securing the conviction of one individual. In its efforts to ensure the development of government-friendly rules, the government does not depend solely on the merits of its substantive arguments; it also uses strategies on appeal, sometimes over the course of many appeals, to nudge courts to adopt rules that are favorable to the government or to establish obstacles designed to discourage courts from adopting unfriendly rules. This Symposium Article describes some of these strategies and discusses how those strategies may affect the development of the law.
October 9, 2009
Mikos Presents "Realism about Taxing Marijuana" at MLEA Conference
Robert Mikos (Vanderbilt Law School) was scheduled to present Crime Doesn't Pay: Some Realism about Taxing Marijuana today at the annual meeting of the Midwestern Law and Economics Association at Notre Dame Law School. From the precis:
This Article analyzes state proposals to legalize and tax marijuana, but the insights generated herein could be applied to the legalization and taxation of other proscribed activities as well. It makes two main contributions. First, it suggests that extant revenue projections are overly optimistic because the tax will not be easy to collect. The fragmentation of the marijuana market, for example, will hinder governments’ ability to monitor taxable transactions, thereby creating a large tax gap.
Second, the Article demonstrates that the federal ban on marijuana could thwart state programs (e.g., licensing systems) that might otherwise help to shrink the tax gap. To enforce a marijuana tax, states must gather detailed information on marijuana transactions. Such information, however, could be seized by federal officials and used to impose federal sanctions, thereby giving distributors added incentive to evade state taxes. To my knowledge, this is the first Article that analyzes the taxation of goods proscribed by another sovereign and the unique problem posed by such a hybrid regime.
Meyer on Rituals and the Death Penalty
Linda Ross Meyer (Quinnipiac University School of Law) has posted Rituals of Death: The Meaning of Last Words and Last Meals on SSRN. Here is the abstract:
This paper explores the meaning of rituals of last words and last meals in the context of the death penalty. It concludes that the rituals retain the ability to subvert the state's retributivist message, even while they are necessary to it.
"Senate Committee Misses Chance to Limit Patriot Act"
The post by Greg Nojeim (senior counsel and director, Project on Freedom, Security & Technology; Center for Democracy and Technology) at ACSBlog. After objecting to the Senate's rejection of certain proposed limits, he continues:
It shortens from 30 to seven days the period during which the government can delay notice when it conducts a "sneak and peek" search to find evidence of crime. It imposes minimization requirements on NSLs to limit the dissemination to other agencies of personally identifiable but irrelevant information about Americans obtained with an NSL. It takes significant steps to bring the NSL gag provision in line with the First Amendment by providing for a more meaningful judicial review. It requires accountability measures that could uncover abuses, including Inspector General audits of the use of NSL and Section 215 authority, public reporting about the number of people subjected to FISA surveillance, and new sunsets that may prompt members of Congress to ask tough questions about use of Patriot Act powers when reauthorization is sought.
This is not to say that the bill the Senate Judiciary Committee just approved (S. 1692) diminishes civil liberties protections in current law. In fact, it enhances those protections, albeit in small ways.
"New Orleans Police Face Swarm of Inquiries"
The New York Times article focusing on the federal investigation of post-Katrina conduct is here. Among the more interesting passages:
Many residents are skeptical of efforts to re-examine the actions of anyone who responded to the anarchy of the flood, much as they have been to the questioning of doctors who may have played a role in the deaths of at least 17 patients at Memorial Medical Center here.
The circumstances were traumatic, skeptics say, and the city faces too many grave problems — a crowded crime blotter, a lack of medical facilities, thousands of blighted houses — to focus on the first responders, especially those who stayed to help, in the days after the storm.
“I don’t sense a lot of enthusiasm down here,” Peter Scharf, a criminologist at Tulane University in New Orleans, said of the investigation into the Danziger Bridge shooting. “What’s the endpoint of all this? Is this the best use of prosecutorial resources?”
"The Supreme Court and Juveniles: International Comparisons"The title of the post by Bernard Harcourt (University of Chicago Law School) at Balkinization, concluding that juvenile life without parole is a uniquely U.S. phenomemon and linking to this report from the University of San Francisco's Center for Law and Global Justice.
The Fourteenth Amendment, the Bill of Rights, and the (First) Criminal Procedure Revolution (Dripps)
The theory that the Fourteenth Amendment incorporates the Bill of Rights established the foundation for the Warren Court's "criminal procedure revolution." Long before the Warren Court, however, there had been another criminal procedure revolution. This first revolution worked slowly and incrementally, led throughout the nineteenth century by legislatures rather than by courts. It included an institutional, an intellectual, and a doctrinal component. When it was over - roughly speaking, around the turn of the nineteenth into the twentieth century - the founders' criminal justice system had been altered beyond recognition.
In an essay prepared for a symposium in the University of San Diego's Journal of Contemporary Legal Issues, I argue that our understanding of the incorporation question can be strengthened by appreciating the first criminal procedure revolution. The ratification of the Fourteenth Amendment took place just as the doctrinal part of the revolution - the authorization of felony prosecutions by information and of testimony by the defendant - was becoming part of the positive law. These doctrinal changes were incompatible with the Fifth Amendment's indictment and self-incrimination clauses, and this incompatibility was recognized by both their proponents and their opponents. Many of the best jurists in the North and West did not understand the Fourteenth Amendment as imposing these clauses on the states.
To say the history of criminal justice in the nineteenth century provides powerful evidence against the incorporation theory is not to say that this evidence is dispositive. There is evidence on all sides of the incorporation controversy, and how to weigh it is something reasonable people continue to contest. All I claim is that, however we understand the appeal to the original understanding, the first revolution presents powerful evidence against incorporation of the grand jury and self-incrimination clauses of the Fifth Amendment, and by implication against any theory of total incorporation.
You can see the entire argument here.
"Does a Cheek Swab for DNA Require a Warrant?"Orin Kerr at The Volokh Conspiracy notes a recent case allowing the procedure based on reasonable suspicion but expresses doubt about the conclusion and disagreement among lower courts.
Next Week's Oral Arguments
Brief description of the case is from ScotusWiki:
Tuesday, Oct. 13
Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea
Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case
Wednesday, Oct. 14
Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime
October 8, 2009
House Votes to Include Sexual Orientation in Hate Crime ProhibitionThe New York Times has the story here.
Police Stop More Than 1 Million People on Street Each Year
The A.P. story is in the New York Times. The lead:
NEW YORK (AP) -- A teenager trying to get into his apartment after school is confronted by police. A man leaving his workplace chooses a different route back home to avoid officers who roam a particular street.
These and hundreds of thousands of other Americans in big cities have been stopped on the street by police using a law-enforcement practice called stop-and-frisk that alarms civil libertarians but is credited by authorities with helping reduce crime.
Oral Argument RecapsScotusBlog recaps this week's arguments in Maryland v. Shatzer here and in Johnson v. United States here.
"Patriot Act Excesses"
The editorial from yesterday's New York Times, which concludes:
Chances are fading for an expansive and searching review of the USA Patriot Act, which was the whole point of having some of its central provisions expire. The Judiciary Committee’s deliberations are scheduled to resume on Thursday. It is one more critical chance to add missing civil liberties and privacy protections, address known abuses and trim excesses that contribute nothing to making America safer.
Bowman on Crimes, Trials and Appeals in Civil War Era Missouri(University of Missouri School of Law) has posted Stories of Crimes, Trials and Appeals in Civil War Era Missouri (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper explores criminal appellate practice in Missouri from the time of statehood in 1821 until the 1870s, with particular focus on the decades before and after the Civil War. The article uses the stories of three trials in and around Columbia, Missouri - an attempted rape case against a slave that resulted in a lynching, a murder case against a white farmer that ended in his execution, and another murder case successfully appealed - to explore the legal culture of the period. All three trials involved two prominent central Missouri lawyers, James S. Rollins and Odon Guitar, who were also important political figures in Missouri’s Civil War. The article weaves together the trials, the biographies of Rollins and Guitar, and an exploration of contemporary rules and trial and appellate norms to explain the relative dearth of criminal appeals in mid-19th Century Missouri, and the factors that gradually produced an appellate system more like our own.
This paper was written for a symposium at Marquette Law School on criminal appeals, but it arises from a larger project examining the social, military, and legal history of central Missouri before, during, and after the Civil War.
Spiritual Treatment for Children and Criminal Liability
According to the New York Times:
CHICAGO — A Wisconsin couple were sentenced to jail time on Tuesday for failing to seek medical attention for their ill daughter, renewing a debate in some circles over whether states should allow parents to practice spiritual treatments.
The parents, Dale and Leilani Neumann, were ordered to spend 30 days in jail each year for the next six years and were placed on 10 years’ probation. Mr. Neumann, 47, and Ms. Neumann, 41, who live in Weston, in central Wisconsin, had been convicted of second-degree reckless homicide in August.
"Italian Court Rejects Prime Minister’s Immunity "The New York Times has the story here.
Featured Download: Wright on Mexican Drug Violence and Adversarial Experiments
Two remarkable developments mark this time in Mexican criminal justice as profoundly different. First, the country is suffering through wrenching violence connected with the drug trade. Second, Mexico has embarked on procedural changes both at the federal and state levels. Many characterize this procedural transformation as a shift from an inquisitorial to an adversarial model of criminal procedure. I suggest, however, that the reforms do not simply endorse the strengths of a particular adversarial fact-finding method. Rather, the codes create meaningful competition for the public prosecutors in Mexico during the investigation, trial, and punishment of alleged criminals.
This essay considers the connections between these two events, both in the past and the future. Did one development cause the other, or did they both flow from a single cause? First, I consider the “inevitability hypothesis.” According to this view, procedural reform would have happened with or without the drug violence, and the fact that they occurred at the same moment is simply a coincidence. I believe the stronger account, however, is the “violence-as-causation” hypothesis. According to this account, the extraordinary drug violence of 2007 made possible a sweeping set of procedural changes. The violence was necessary to motivate actors to embrace major institutional change.