October 24, 2009
"How a girl's stark words got lost in the Polanski spectacle"
The article in the Los Angeles Times states, "Samantha Gailey, at 13, was unequivocal in her testimony against Polanski. But her account was turned into something almost benign."
Samantha's testimony that day was unequivocal: She had kept trying to get away from him, putting her clothes back on, saying no repeatedly. She had made up a lie about having asthma to get out of a Jacuzzi. He persisted. She was scared. She did not physically fight him off. He began to have sex with her, then concerned she might get pregnant, switched to anal sex. When he drove her home, he told her not to tell her mom, adding, "You know, when I first met you, I promised myself I wouldn't do anything like this with you."
. . . .
But Samantha's stark testimony has never been seriously impugned, in or out of court. When she sued Polanski years later for sexual assault, he pleaded the 5th when asked if he illegally gave her champagne and part of a quaalude pill, then performed oral copulation on her and sodomized her.
An extensive review of several thousand court documents, as well as numerous interviews, shows a basic dynamic defining the entire saga -- one force trying to drive debate away from a young girl's unshaken allegations, and another trying to reel it back in.
Skepticism about New Federal Policy on Medical MarijuanaDoug Berman at Sentencing Law and Policy excerpts Jacob Sullum's piece at Reason.com entitled Medical Marijuana Muddle: The Obama administration’s new policy may not make much difference in practice.
"Craigslist Not Liable for Prostitution Ads"Eugene Volokh has a helpful post on this interesting issue over at The Volokh Conspiracy. This is more than a question of accomplice liability, in light of 47 U.S.C. § 230, and more than the barest imaginable case of internet publishing, as Craigslist provides categories like "adult services" into which these ads are sorted.
"Arizona May Put State Prisons in Private Hands"
The New York Times article is here. An excerpt:
State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row. It is the first effort by a state to put its entire prison system under private control.
The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books. Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.
Annino, Rasmussen, and Rice on Juvenile Life Without Parole for Non-Homicide Offenses
Paolo Annino (Florida State University-College of Law), David W. Rasmussen (FSU Center on Economic Policy)and chelsea Boehme Rice (Public Interest Law Center) have posted Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation on SSRN. Here is the abstract:
In May of 2009, the United States Supreme Court accepted two cases that raise the question of whether sentencing juvenile offenders who commit non-homicide crimes to life without the possibility of parole is cruel and unusual punishment. This report is focused exclusively on these juvenile offenders who received life without parole sentences for non-homicide crimes. It compares the sentencing trends in Florida, where both these cases originated, to the rest of the United States.
Researchers surveyed the state departments of corrections around the country and relay their findings in this report. Florida’s practice of sentencing juvenile offenders to life without parole for non-homicide crimes is unique among American states. The data presented in this report show that Florida far exceeds the rest of the nation in number of juvenile offenders sentenced to life without parole for non-homicide offenses. The total estimated number of juvenile offenders serving life without parole sentences for only non-homicide crimes in the United States is 109. Seventy-seven of these juvenile offenders are in Florida. Thirty-nine states have no juvenile offenders who have been sentenced to life without parole for non-homicide crimes.
October 23, 2009
"Stop or I'll Shoot, and in Any Case I'm Guilty of Making a Criminal Threat"
Crime and Consequences comments on the recent decision of the Supreme Court of Kansas, calling for prompt legislative action to reverse it. In essence, the court construed its self-defense statute to reach "force" in self defense, but not the "threat of force." The opinion in State v. Hendrix is here. It shows the dangers of textualism in the wrong hands, and also shows how annoying cases make bad law. The trial court declined to give a self-defense instruction on the grounds that insufficient evidence had been introduced in support of the defense. Perhaps dubious of that ground, both the Court of Appeals and the Supreme Court said that the instruction was properly withheld because defendant had not used any actual force.
The dissent suggests that the majority's ruling will encourage those being threatened to use force immediately rather than a threat of force, but it appears that the majority's opinion may lead to an even more bizarre result unless someone reins it in. One would imagine that force will not be deemed necessary if a threat would have sufficed, so those acting in self defense will often still need to threaten force before using it. But the statute does not say anything that would suggest a threat of force is justified if actual force is later employed. So those who threaten force before using it in Kansas may be justified in killing but not in threatening to kill. One assumes that prosecutorial discretion will intervene at some point, but since the State argued for this unfortunate construction of the statute, one cannot be certain.
Walen on the Relevance of Intentions to Permissibility
Alec D. Walen (Institute for Philosophy and Public Policy) has posted Comments on Doug Husak: The Low Cost of Recognizing (and of Ignoring) the Limited Relevance of Intentions to Permissibility (Criminal Law and Philosophy, Vol. 3, pp. 71-78, 2009) on SSRN. Here is the abstract:
Doug Husak frames a worry that makes sense in the abstract, but in reality, there is not much to worry about. The thesis that intentions are irrelevant to permissibility (IIP) is a straw man. There are reasons to think that the moral significance of intentions is not properly registered in criminal law. But the moral basis for criticism is not nearly as extreme as the IIP, and the fixes are not that hard to make. Lastly, if they are not made, some people may not get the punishments they deserve, and there will be some extra inequities in the criminal law as a result. But these inequities are not so great that change must be made now. The moral categories that are used may be too crude, but they are also familiar and easy to work with, and that counts for something.
Wildfires and Felony MurderThe A.P. story can be found at Yahoo.com. It addresses the decision to charge the arsonist who started a wildfire with murder in several deaths by heart attack. Robert Weisberg (Stanford Law School) is quoted as saying that " the judge could conceivably say I'm not even going to give this to the jury ... because it's too hard to say the fire actually caused the deaths."
"New York Times editorial calls for ignition locks for all drunk drivers"
Doug Berman at Sentencing Law and Policy agrees with the Times and also provides a useful list of his prior posts on "technocorrections." Like Doug, I believe these approaches hold great promise. If these techniques can displace harsh sentences in some significant set of cases, they will be a great boon.
"Automated Crime Victim Notification"
Thanks to Kent Scheidegger at Crime and Consequences for this post, which quotes a press release from the California Department of Corrections and Rehabilitation that begins:
In its effort to keep crime victims informed, the Office of Victim and Survivor Rights with the California Department of Corrections and Rehabilitation (CDCR) is asking crime victims to register for a new automated system that will soon provide real-time information about the custody status of their offenders....
October 22, 2009
"The Argument in Padilla v. Kentucky"
A guest post by L. Song Richardson (Depaul University College of Law) at ACSBlog, concluding after reviewing the oral argument:
Padilla v. Kentucky has the potential to define the scope of the right to the effective assistance of counsel in the guilty plea context that will have consequences for citizens and non-citizens alike. Ultimately, however, the Court might avoid the difficult and thorny issues the case raises by finding that Mr. Padilla cannot establish that he suffered prejudice; he cannot demonstrate that a rational defendant would have insisted on going to trial had he received accurate advice.
"Wrongfully Convicted Boston Man Awarded $14M"
The A.P. story is in the New York Times. The lead:
BOSTON (AP) -- A federal jury awarded $14 million on Wednesday to a man who spent nearly 15 years in prison after he was wrongly convicted in the 1988 slaying of a 12-year-old Boston girl.
Podgor on White Collar Innocence
When one thinks of “wrongful convictions and reliability in the criminal justice process” one often thinks of street crime convictions of defendants later proven innocent through DNA or other scientific evidence. But this Essay presents a new dimension to this issue - the white collar crime context. Three stories are considered here: Arthur Andersen LLP, Jamie Olis, and Jeffrey Skilling - all who proceeded to trial after criminal charges were brought against them; and contrasting these three with KPMG, Gene Foster, and Andrew Fastow, all who secured plea agreements or deferred prosecution agreements with reduced sentences and finite results.
"Judges reject California plan to cut prison crowding"The story in the L.A. Times is here.
"Dense Population of Sex Offenders in Fla. Case Is Alarmingly Typical"
The rest of the report can be found here along with the initial coverage of Somer Thompson's disappearance here.
There are so many sex offenders living within blocks of where 7-year-old Somer Thompson vanished Monday that when their homes are represented by pins on a digital map they create a cluster so thick it overlaps in places.
Law enforcement officials have interviewed at least 75 registered sex offenders who live within a 5-mile radius of the second grader's home on Orange Park, Fla., but state officials say there are some 161 convicted offenders in that area.
Consequentialism and Forfeiture of the Choice-of-Evils Defense (Alexander and Cole)
Marc DeGirolami’s recent manuscript about the choice-of-evils defense, noted here by CrimProf, raises interesting questions about the relationship of the defense to criminal law theory. He cites several scholars for the proposition that choice-of-evils is more at home with a consequentialist than a retributivist justification for punishment. He then argues that the consequentialist account is inconsistent with forfeiture of the defense for those who bring about the necessity for choosing among the evils in question.
We disagree with the idea that pure retributivists would reject a necessity defense. And we also disagree that forfeiture of the defense is appropriate for those who cause the necessity in question, except possibly for reasons that do not implicate deep theoretical concerns.
The idea that retributivists would reject a necessity defense may be explained, in part, by the increased likelihood that retributivists would reject an unconstrained approach to choice of evils. Those attracted to a deontological theory like retributivism are more likely to be attracted to deontological constraints on killing in a case like Dudley & Stephens, for example, than would pure consequentialists (who would not be “pure” if they rejected welfare-maximizing killings).Nevertheless, in many cases, the choice of a lesser evil will not offend a deontological command, and a retributivist might well embrace the defense. Indeed, it would be an odd version of retributivism that required punishment of the prisoner who steps outside the prison walls to avoid a fire. These cases do not raise great questions of retributive justice so much as they illustrate the admirable reluctance of legislators to attempt to draft crimes so comprehensively as to address every situation. Surely, a retributivist need not object to an escape statute that provides an explicit exception for cases in which escape is necessary to preserve life.
Accordingly, we would not be surprised if some limitation of the necessity defense could be explained only in retributive terms, as we believe the defense itself can be embraced consistently by a pure retributivist. But we are also substantially less attached than is Marc to the forfeiture doctrines surrounding the defense. We view them sometimes as errors rather than as windows into the nature of the criminal law—errors that reflect not some deeply held attitudes about criminal law, but rather the rare circumstances in which the defense is aptly raised, and a judicial tendency to err on the side of cumulating reasons for rejecting the defense without examining them all carefully. At other times, forfeiture simply compensates for the incompleteness of criminal codification.
Consider the case in which an actor’s illegal act gives rise to the need to choose among evils. Wrongdoer tries to burn a barn to collect insurance proceeds, but the fire spreads unexpectedly, and so Wrongdoer trespasses on Neighbor’s property to use a hose to protect that property. We see no reason to add trespass to the charges against Wrongdoer, and reason not to do so—the possibility of deterring Wrongdoer from taking the steps that are socially desirable, given the initial wrong for which Wrongdoer will be fully punishable.
Nor does some deep principle require forfeiture of the defense even when Wrongdoer clearly envisioned and planned to trespass on Neighbor’s property at the time Neighbor set fire to the barn. At the most, forfeiture in a case like this simply reflects the fact that Wrongdoer was culpable not only for the fire, but also for the trespass. In some cases, forfeiture of the defense may not be needed to punish for this second harm. When the second offense is a result crime—e.g., if Wrongdoer had needed to kill Neighbor by burning Neighbor’s house to create a fire break in order to save a greater number of people—then even without forfeiture, we could punish Wrongdoer for Neighbor’s death because it was culpably caused by Wrongdoer’s act in setting fire to the barn. We need not worry about deterring Wrongdoer from killing Neighbor, since Wrongdoer will be liable for killing more people through omitting to kill Neighbor, and Wrongdoer has a duty to act because of prior culpability.
Trespass as a second offense is a bit different from murder, because trespass does not have a result element, and therefore does not seem satisfied simply by showing that unjustified conduct at time 1 caused justified conduct at time 2. If forfeiture of the defense in this kind of case helps us to get to the right outcome, it is not because forfeiture is inconsistent here with consequentialism. Rather, when we threaten Wrongdoer with punishment, the optimal threat will be greater than the threat designed to deter simple arson, because Wrongdoer intends the greater harm of arson plus trespass. Forfeiture helps us get to this consequentially justified threat by getting around the time-framing problems that are more difficult to evade with conduct crimes than with result crimes.
For a fuller discussion of some of these ideas, take a look at Larry's book (with Kimberly Ferzan), Crime and Culpability: A Theory of Criminal Law (Cambridge Univ. Press, 2009). .
LAA & KC
Temple on the Death Penalty
John Temple (West Virginia University School of Journalism) has published The Last Lawyer: The Fight to Save Death Row Inmates with University Press of Mississippi. Here is a description from the publisher's website:
Ken Rose has handled more capital appeals cases than almost any other attorney in the United States. The Last Lawyer chronicles Rose's decade-long defense of Bo Jones, a North Carolina farmhand convicted of a 1987 murder. Rose called this his most frustrating case in twenty-five years, and it was one that received scant attention from judges or journalists. The Jones case bares the thorniest issues surrounding capital punishment. Inadequate legal counsel, mental retardation, mental illness, and sketchy witness testimony stymied Jones's original defense. Yet for many years, Rose's advocacy gained no traction, and Bo Jones came within three days of his execution.
The book follows Rose through a decade of setbacks and small triumphs as he gradually unearthed the evidence he hoped would save his client's life. At the same time, Rose also single-handedly built a nonprofit law firm that became a major force in the death penalty debate raging across the South.
October 21, 2009
"Murder, Arson Charged in 2003 California Wildfire"The A.P. story can be found in the New York Times. The lead:
SAN BERNARDINO, Calif. (AP) -- Almost six years after a wildfire destroyed nearly 1,000 homes in Southern California, prosecutors say they have enough evidence to charge a prison inmate with arson and murder in connection with the 2003 blaze.
San Bernardino County District Attorney Michael Ramos said Tuesday that a special criminal grand jury indicted Rickie Lee Fowler, a 28-year-old prison inmate, on arson and murder charges in connection to the wildfire that has been linked to five heart attack deaths.
"Kansas AG Worries DNA Backlog Hurting Crime Efforts"The A.P. story is in the New York Times. The lead:
TOPEKA, Kan. (AP) -- Kansas' attorney general said Tuesday that a state lab has a backlog of more than 38,000 DNA samples and suggested budget problems could keep some crimes unsolved longer.
Attorney General Steve Six said the Kansas Bureau of Investigation lab handling DNA testing doesn't have enough money to keep up with samples submitted by law enforcement agencies. State funding for the lab is 4.8 percent lower than two years ago, and the KBI's share of state dollars has dropped nearly 13 percent.