October 17, 2009
Controversy over Freedoms Afforded Criminally Insane in Washington StateThe A.P. story, which appears on yahoo.com under the headline Criminally insane, but out on the street, covers the controversy over the escape of an institutionalized insanity acquitee from a lightly supervised field trip, and also describes other liberties that are being called into question.
Symposium on Examining Modern Approaches to Prosecutorial Discretion Today at Temple
The webpage describing the event is here. The description:
Symposium panels will focus on issues of prosecutorial discretion in juvenile cases, prosecutorial discretion in death eligible cases, sentencing guidelines and plea bargaining, and the necessity of ethical inquiries, including a comparison of prosecutor[s'] ethical duties to the general public and crime victims with the ethical duties owed defendants.
Participants include Ellen Yaroshefsky (Cardozo School of Law), Douglas Berman (Moritz College of Law, Ohio State University), Stephanos Bibas (University of Pennsylvania Law School), Dean Nora Demleitner (Hofstra University School of Law), Professor Jules Epstein (Widener Law School), Dean Michael Simons (St. John's University School of Law), and Steven Zeidman (CUNY School of Law)
"What Kind Of Sentence Is Roman Polanski Facing?"The column, by John W. Dean at FindLaw, relies heavily on Lynn Branham (visiting at St. Louis University School of Law) and concludes that Polanski is likely to receive a far harsher sentence than he would have received at the time he fled the jurisdiction.
"U.S. Alters Disputed Immigration Rules for Police"
From the New York Times:
PHOENIX — Addressing one of the most contentious immigration policies in recent years, the Obama administration unveiled changes Friday in a program that allows state and local police officers enforce federal immigration law.
As promised in July, the Department of Homeland Security said it had revamped the program to focus on rooting out illegal immigrants who have committed serious crimes. The changes also require law enforcement officers enrolled in the program to abide by federal anti-discrimination law. In addition, federal officials pledged to supervise the program more closely, flag problems and field complaints from the public.
War Without Borders Series: "In Mexican Drug War, Investigators Are Fearful"Another piece has been published in the series of articles in the New York Times entitled War Without Borders, which examines "the impact of Mexican drug cartels on both sides of the border."
Murphy on Manufacturing Crime
Erin Murphy (University of California, Berkeley School of Law) has published Manufacturing Crime: Process, Pretext, and Criminal Justice in the Georgetown Law Journal. Here is the abstract:
What do Bill Clinton, Roger Clemens, Martha Stewart, and Lil’ Kim have in
common? How about adding Marion Jones, Barry Bonds, Kwame Kilpatrick, Frank Quattrone, Donald Siegelman, and Lewis Libby? The list of notable names could go on, each sharing a particular characteristic. All have been accused of a “process crime”—an offense not against a particular person or property, but against the machinery of justice itself.
Process crimes have a long and storied history in the American criminal justice system. Familiar variations of such offenses include perjury, obstruction of justice, and contempt; more recent iterations materialize as violations of court orders or failures to appear. Yet despite the laundry list of politicians, business icons, and sports and entertainment celebrities that have lately found themselves ensnarled in charges related to process crimes, legal scholarship on the topic remains scarce. Moreover, the extant discussion centers entirely on process crimes in federal courts and typically focuses on issues related to prosecutions undertaken for pretextual reasons, like that of Al Capone.
This Article is the first to take a comprehensive look at process crime prosecutions. This survey reveals two critical insights. First, it uncovers a vibrant yet essentially undocumented practice of process charging in state courts. Second, it identifies a new motivation underlying process crime prosecutions. Specifically, this Article argues that process prosecutions are brought not only to remedy core violations of rights or to target otherwise elusive defendants with pretextual charges, but also to punish defendants for nothing more than their obstinate or anti-authoritarian behaviors. This Article closes by probing the normative desirability of process charging in light of these observations, and sounds a note of caution to encourage closer monitoring of such offenses on both a categorical and individual level.
October 16, 2009
Featured Download: Hoffman and King on the Federal Role in State Criminal Justice
Joseph L. Hoffmann (Indiana University Maurer School of Law–Bloomington) and Nancy J. King (Vanderbilt University Law School) have published Rethinking the Federal Role in State Criminal Justice in the New York University Law Review. Here is the abstract:
This Essay argues that federal habeas review of state criminal cases squanders resources that the federal government should be using to help states reform their systems of defense representation. A 2007 empirical study reveals that federal habeas review is inaccessible to most state prisoners who have been convicted of noncapital crimes and offers no realistic hope of relief for those who do reach federal court. As a means of correcting or deterring constitutional error in noncapital cases, habeas is failing and cannot be fixed. Drawing upon these findings as well as the Supreme Court’s most recent decision applying the Suspension Clause, the authors propose that Congress eliminate federal habeas review of state criminal judgments except for certain claims of actual innocence, claims based on retroactively applicable new rules, or death sentences. The federal government should leave the review of all other state criminal judgments to the state courts and invest,instead, in a new federal initiative to encourage improved state defense services.This approach can deter and correct constitutional error more effectively than any amount of habeas litigation ever could.
Saul on How International Law Protects Journalists and War Correspondents
Journalists and war correspondents have long assumed a special importance in investigating and documenting war crimes and other human rights violations in armed conflict. In recent years, threats to the safety of journalists have proliferated. This article considers how international law protects journalists and media personnel and objects from violence. The examines the legal regimes applicable in international armed conflict, followed by non-international conflict, and finally violent situations (or public emergencies) beneath the level of armed conflict (such as low-level insurgency, terrorism or other domestic unrest). While the normative legal frameworks protecting journalists and media objects are well developed, the application of those norms raises complex interpretive issues which are examined in this article, while there remains the residual problem - common to humanitarian law as a whole - of securing enforcement and implementation of those norms
"Justices Consider Ineffective Counsel Case"This post at ACSBlog reports on reactions to the recent oral argument in Padilla v. Kentucky.
Dolovich on Incarceration
In the United States today, incarceration is more than just a mode of criminal punishment. It is a distinct cultural practice with its own aesthetic and technique, a practice that has emerged in recent decades as a catch-all mechanism for managing social ills. In this essay, I argue that this emergent carceral system has become self-generating - that American-style incarceration, through the conditions it inflicts, produces the very conduct society claims to abhor and thereby guarantees a steady supply of offenders whose incarceration the public will continue to demand. I argue, moreover, that this reproductive process works to create a class of permanently marginalized and degraded noncitizens - disproportionately poor people of color - who are marked out by the fact of their incarceration for perpetual social exclusion and ongoing social control. This essay serves as the Foreword to a symposium in the Harvard Law & Policy Review addressing the costs of mass incarceration.
October 15, 2009
"New Senate bill introduced to eliminate crack/powder federal sentencing disparity"
I will not start getting too excited about this bill unless and until some . . . Republican Senators get behind it or until at least the White House and the Attorney General start expressing support. In other words, I fear it is going to take a lot more than the usual political suspects to turn these kinds of (long-overdue) proposed reforms into a legal reality.
When Is Interrogation Torture? (Kolber)
This post is adapted from my new draft article, The Experiential Future of the Law. Comments on the article are welcome at akolber “at” sandiego.edu:
Waterboarded interrogatees are strapped down on an incline, with their feet elevated above their heads, while water is poured over their faces to give the sensation of drowning. A federal statute prohibits those acting under color of law from engaging in acts “intended to inflict severe physical or mental pain or suffering” on people in their custody or control. Does waterboarding constitute the sort of intentional infliction of extreme pain or suffering that can qualify as torture?
We often address the question by focusing on the interrogation technique in the abstract. Generally speaking, waterboarding probably does inflict extreme pain and suffering. In fact, however, whether a person experiences extreme pain or suffering (and whether we can expect a person to) depends on the relationship between the person and the way he is treated. A person who developed PTSD from having nearly drowned in a swimming pool as a child will react differently to waterboarding than will a Marine who has advanced training in how to resist waterboarding. Defacing a religious text may constitute extreme suffering to one person but be largely inconsequential to the next.
Despite variation in interrogatee sensitivity, we seem inclined to rely on broad categories of prohibited interrogation behavior. Another way of safeguarding interrogatees, if we had sufficiently reliable technology, would be to limit the maximum distress an interrogatee is permitted to experience, based on certain biological markers. For example, we can already measure several markers of acute distress, like pulse, blood pressure, levels of stress hormones, galvanic skin response, and others. We’re even getting better at predicting which sorts of interrogation techniques are likely to lead to long-term negative effects. (There may be an unacceptable risk of electrocution that makes it impossible to measure distress during waterboarding, but there are lots of other interrogation techniques; so the general point remains.)
The idea of measuring people’s acute distress seems disturbing, but the concern is misplaced. The harm caused by inflicting some amount of distress is far more troubling than the comparatively slight invasion caused by measuring it. In fact, if you’re permitted to inflict modest amounts of pain or suffering, then perhaps you are morally obligated to measure the distress inflicted to make sure it does not reach a more extreme level.
The reason that the measurement of distress seems so troubling is that it forces us to palpably recognize and quantify the nasty business of intentionally making people suffer. The measuring is not the principle act of harm, however. Measuring merely forces us to confront and better quantify the real concern—the pain and suffering itself. If it's impermissible to measure the pain of technique X, you probably shouldn't be doing X in the first place.
There are several reasons why we might rely on “categorical” methods of banning torture rather than engaging in individualized measurements. I'll name just two. First, we may not be good enough at measuring acute distress. (True, though someday we probably will be.) Second, we may be skeptical of those tasked with measuring distress levels. We fear that they will simply rubber stamp torture. (True again, though it is far from clear that we couldn’t adopt procedures to reduce this concern. If people can be dishonest about measuring distress, they can be dishonest about what categories of interrogation are used.) In any event, we should not lose sight of the fact that even if we ban certain methods of interrogation, those methods are just rough proxies for our true concern, namely the intentional infliction of extreme pain and suffering.
"Report: Majority Of Newspapers Now Purchased By Kidnappers To Prove Date"
That's the headline at The Onion:
NEW YORK—According to a report published this week in American Journalism Review, 93 percent of all newspaper sales can now be attributed to kidnappers seeking to prove the day's date in filmed ransom demands.
Caution is suggested before citing this work as authoritative.
Featured Download: DeGirolami on Choice of Evils and Criminal Theory
Marc O. DeGirolami (St. John's University School of Law) explores the feasibility of a purely consequentialist account of criminal law through the lens of choice-of-evils doctrine in a helpful piece he has posted on SSRN, The Choice of Evils and the Collisions of Theory (In Retributivism: Essays on Theory and Policy, Mark D. White, ed., Oxford University Press, Forthcoming). Here is the abstract:
This essay considers the project of reduction in criminal law theory in a narrow, but paradigmatic, doctrinal context - the choice of evils or necessity defense. Many scholars take the view that the only conceivable explanation for the choice of evils defense must be uncorruptedly consequentialist. There can be no other fundamental explanation, it is said, for a defense that at bottom always must issue in a cost/benefit analysis - a weighing or comparison of the illegal evil that must be done against the evil that will thereby be avoided - than a concern for increasing, or maximizing, social welfare.
Against these views, this essay argues that some of the doctrines which adorn the choice of evils defense are worthwhile precisely because they instantiate values that are in direct and irreconcilable conflict with consequentialism. It develops this claim by considering one of these adornments - the widely adopted doctrinal rule that an actor who is criminally culpable for causing the conditions leading to a choice of evils should not be permitted to assert the defense. The essay offers a retributivist explanation for the exclusion where the actor was purposely and criminally culpable for creating the necessitous conditions and discusses how this justification is in tension with the consequentialist aims of the defense. It then considers whether, in light of this tension, a “hybrid” theory of justification - modeled on hybrid theories of punishment - might best explain the defense. But in the end it rejects that possibility. Hybrid theories, no less than their pure-bred cousins, are inclined toward precisely the types of totalistic explanations that are seemingly confounded by the culpability-in-causing exclusion. The collision of values highlighted by the problem of the choice of evils intimates a different conclusion, one that echoes the deep pluralism constitutive of criminal law itself.
Nadler & Trout on the Language of Consent in Police Encounters
In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen’s consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers’ language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current Fourth Amendment jurisprudence assumes that the authority of armed police officers simply vanishes when they pose their desire to search as a question. We discuss empirical evidence suggesting that people are afraid to decline police officer requests to search, and conclude by discussing the social and psychological cost of the widespread use of consent searches.
October 14, 2009
"Forfeiture Laws, the War of Drugs, and Alvarez v. Smith"The title of a guest column by Ilya Somin (George Mason) at FindLaw about the case on which the Court heard argument today. He also has a blog post at The Volokh Conspiracy including his impressions of the argument.
"Is Gov. Perry Covering Up the Execution of an Innocent Man?"Jonathan Adler at The Volokh Conspiracy comments on additional revelations about the aftermath of the controversial Texas execution of Cameron Todd Willingham.
Transcript of Oral Argument in Today's Forfeiture Case
Alvarez v. Smith transcript is here.
Featured Download: Kolber on the Experiential Future of the Law
Like the soon-to-be-repeat world champion Philadelphia Phillies, my colleague and CrimProf contributing editor Adam J. Kolber is having a good week. First, he posted the revised version of his fine paper, The Comparative Nature of Punishment. Now, a thought-provoking new post on SSRN, The Experiential Future of the Law. Here is the abstract:
Subjective experiences, like pain, sadness, anxiety, and panic, are fundamentally important to the law. Since we cannot observe these experiences directly, we often ignore them or rely on very rough assessments of their nature and quality. In this article, I explain why subjective experience is so important to the law and how technological advances in neuroscience and related fields are beginning to give us new tools to more accurately infer the experiences of others.
In the experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity. Emerging technologies may also help us assess whether, for example: (1) a patient is in a persistent vegetative state, (2) a placebo treatment relieves pain, (3) an alleged victim has been abused as a child, (4) a person being executed is in pain, and (5) a waterboarded interrogatee has been tortured. While only some of these applications will pan out in the foreseeable future, I explain why thinking about our experiential future can help us better understand and apply the law today.
As always with Adam, well worth reading.
Upturn in Criminal Cases at the Court?
Criminal law and procedure cases have been well represented in cert grants this term, and that's on top of the many pending cases that were already scheduled for argument. The reason? Doug Berman speculates at Sentencing Law and Policy that the addition of two former prosecutors to the Court (Alito and Sotomayer) might be playing a role. He suggests that "they likely find a range of criminal law topics inherently more interesting than their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners."