Wednesday, October 14, 2009
Dan Markel (Florida State) and Alice Ristroph (Seton Hall, visiting at Georgetown) are organizing multiple panel discussions for the event. In addition to article-length works, recently published monographs.and book-length manuscripts will be considered. Deadline for submission of book-length manuscripts is November 10; for articles, November 25. Details below.
This article examines the role of the jury in a post-Apprendi justice system. Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences. I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability. In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate. This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact. Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability. I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.
Tuesday, October 13, 2009
This paper explores the possibility of a theoretical inquiry into the foundations of criminal law that, straddling the line between philosophical speculation and historical search, aims to facilitate, and in fact to enable, the critical analysis of the practice of punishment as an exercise of the law power (Rechtsmacht) of the state.
- Skilling v. U.S. (08-1394): claiming "that 'searing media attacks' on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges." The case "also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive."
- U.S. v. Marcus (08-1341): raising " the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred"
- Holland v. Florida (09-5327): "whether 'gross negligence' by a defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge"
Deborah W. Denno (Fordham University School of Law) has posted an interesting manuscript, Consciousness and Culpability in American Criminal Law (Waseda Proceedings of Comparative Law, Vol. 12, 2009, Waseda Bulletin of Comparative Law, Vol. 43, 2010), on SSRN. Here is the abstract:
American law requires a voluntary act or omission before assigning criminal liability. The law also presumes that an individual who is unconscious, such as a sleepwalker, is incapable of a voluntary act. For some criminal defendants in the United States this all-or-nothing approach to the voluntary act requirement can mean the difference between unqualified acquittal if they are found to have acted involuntarily, lengthy institutionalization if they are found to be insane, and incarceration or even the death penalty if their acts are found to be voluntary. In contrast to the law’s dual dichotomies of voluntary/involuntary and conscious/unconscious, modern neuroscientific research indicates that the boundaries between our conscious and unconscious states are permeable, dynamic, and interactive. To enable the law to join science in a more nuanced and just view of the human mind, this article proposes that, in addition to voluntary and involuntary acts, the criminal law recognize a third category - semi-voluntary acts.
The idea seems sensible that certain acts currently called "unconscious," like acts during sleepwalking, might profitably be subject to some state intervention short of an insanity commitment, even if retributive instincts about what justifies criminal punishment cannot be met.
State and federal courts increasingly are being confronted with prosecutors moving the court to consider prior convictions in American Indian tribal courts during the sentencing phase, and sometimes earlier. If the conviction being introduced occurred in state or federal court, the instant court would be obligated to give full faith and credit to that conviction. But if the prior conviction occurred in a tribal court, state and federal courts are often confronted with unforeseen complexities. This paper is intended to parse through much of the political baggage associated with recognizing tribal court convictions. To be frank, the law is unsettled, leaving little guidance for state and federal judges in these cases, while at the same time granting enormous discretion to judges on the questions involved. The first part of this paper will provide a quick overview of the constitutional status of Indian tribes and tribal courts, as well providing a basic but sufficient introduction to relevant principles of federal Indian law. The second part will offer a summary of criminal jurisdiction in Indian Country and, in particular, what role tribes play – and how well they play it. The third part offers a short description of the key cases in the field, as well as relevant federal and state statutes, and state court rules. It also offers a short normative argument on the question of what state and federal court judges who are confronted with prior tribal court convictions should look for in these cases, especially where the defendants convicted in tribal court are not represented by counsel.
Monday, October 12, 2009
The A.P. story is in the New York Times. The lead:
RALEIGH, N.C. (AP) -- In its search for fugitives, the FBI has begun using facial-recognition technology on millions of motorists, comparing driver's license photos with pictures of convicts in a high-tech analysis of chin widths and nose sizes.
The project in North Carolina has already helped nab at least one suspect. Agents are eager to look for more criminals and possibly to expand the effort nationwide. But privacy advocates worry that the method allows authorities to track people who have done nothing wrong.
The New York Times editorial headlined Wrong Paths to Immigration Reform, in arguing against decentralized enforcement of immigration laws, offers the following suggestions:
Rather than broadening the reach of law enforcement, using local police can cause immigrant crime victims to fear the police and divert the police from fighting crime. It leads to racial profiling, to Latino citizens and legal residents being asked for their papers. Responsible sheriffs and police chiefs across the country have looked at 287(g) and said no thanks.
Programs like 287(g) rest on the dishonest premise that illegal immigrants are a vast criminal threat. But only a small percentage are dangerous felons. The vast majority are those whom President Obama has vowed to help get right with the law, by paying fines and earning citizenship. Treating the majority of illegal immigrants as potential Americans, not a criminal horde, is the right response to the problem.
Recent DNA exonerations have shed light on the problem that people sometimes confess to crimes they did not commit. Drawing on police practices, laws concerning the admissibility of confession evidence, core principles of psychology, and forensic studies involving multiple methodologies, this White Paper summarizes what is known about police-induced confessions. In this review, we identify suspect characteristics (e.g., adolescence; intellectual disability; mental illness; and certain personality traits), interrogation tactics (e.g., excessive interrogation time; presentations of false evidence; and minimization), and the phenomenology of innocence (e.g., the tendency to waive Miranda rights) that influence confessions as well as their effects on judges and juries. This article concludes with a strong recommendation for the mandatory electronic recording of interrogations and considers other possibilities for the reform of interrogation practices and the protection of vulnerable suspect populations.
showed that a group of psychiatrists who evaluated mental competence from case files of 156 criminal defendants performed at a strikingly high level of accuracy.
In an average of 29 out of every 30 cases, the psychiatrists could distinguish competent defendants from incompetent defendants. That’s a level of performance that exceeds standard diagnostic performance in other areas of medicine, such as spotting breast cancer in mammograms or using advanced imaging methods to detect Alzheimer’s disease.
It also points out one of the basic truths of the justice system, even when dealing with a topic as definitive as expert testimony: ultimate decisions still come down to judgment calls.
“These results help us see how courtroom experts can be quite accurate in distinguishing competence from incompetence, but still reach different conclusions,” says Mossman of the study, which was published online in “Law and Human Behavior,” the journal of the American Psychology-Law Society. “It’s a matter of where experts draw the line on the issue of competence.”
Our assessments of the severity of prison sentences rest on a fundamental mistake. We deem inmates as receiving equal punishments when they are incarcerated for the same period of time under the same conditions. While doing so puts the inmates into identical situations, it does not change their situations equally unless they started out in identical circumstances. It is the amount by which we change offenders’ circumstances that determines the severity of their sentences.
In tort and contract law, we understand what a defendant has done to a plaintiff by examining the change in the plaintiff’s condition caused by the defendant. To assess the amount of an injury, we compare an injured party’s condition relative to the condition the party would have been in under other circumstances. For some reason, however, when we consider the treatment of prisoners, we ignore their baseline conditions.
CrimProf posts you may have missed over the weekend:
- Next Week's Oral Arguments
- "Does a Cheek Swab for DNA Require a Warrant?"
- Hessick on Government Appellate Strategies
- Berger on Minimum Sentencing in Canada
- "Conviction in Astor family case raises classic questions about how age should impact sentencing"
- "Expanded Hate Crimes Definition: What is Covered?"
- Top-Ten Recent SSRN Downloads
- Choice of Evils and Global Warming
- "An End to DNA Test Waivers?"
- Keitner on Rights Beyond Borders
- "In Polanski Case, ’70s Culture Collides With Today"
Sunday, October 11, 2009
This New York Times article includes the following:
Manners, mores and law enforcement have become far less forgiving of sex crimes involving minors in the 31 years since Mr. Polanski was charged with both rape and sodomy involving drugs. He fled rather than face what was to have been a 48-day sentence after he pleaded guilty to unlawful sex with a minor.
But if he is extradited from Switzerland, Mr. Polanski could face a more severe punishment than he did in the 1970s, as a vigorous victims’ rights movement, a family-values revival and revelations of child abuse by clergy members have all helped change the moral and legal framework regarding sex with the young.
Mr. Polanski’s lawyers — including Reid Weingarten, a Washington power player — are likely to argue that Mr. Polanski does not even qualify for extradition from Switzerland, because he was set to be given a jail term of less than one year when he fled to France in 1978.
Burgeoning scholarly interest in comparative constitutional law, transnational criminal law, and national security law has generated surprisingly little synthesis among these fields. The central question of whether, and when, a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative analysis. This Article addresses this gap by developing a conceptual framework for thinking about the extraterritorial application of domestic rights guarantees, with a focus on cases arising from the detention and interrogation of terrorism suspects. Part I identifies three modes of reasoning about rights beyond borders, which I label constitution as compact, constitution as conscience, and constitution as code. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her personal status and/or territorial presence. Conscience-based reasoning focuses the government’s mandate to act solely in accordance with a defined set of national values in all locations and circumstances. Code-based reasoning takes a strictly territorial approach to restrictions on government action outside the national territory, even vis-à-vis citizens.
Jonathan Adler has the post over at The Volokh Conspiracy, approving the reexamination of a Bush Administration policy that required some defendants to waive their rights to DNA testing as part of plea deals. An article in the Washington Post discusses this "little-known" policy. After noting the argument that such testing for federal convicts has been rare, the article continues:
But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty.
"It's a mean-spirited policy. Truth, ascertained by science, should trump the finality of a conviction," said Peter Neufeld, co-director of the New York-based Innocence Project. He said the waivers are effectively "gutting the impact" of the 2004 law because 97 percent of federal convictions result from guilty pleas.