October 21, 2009
Gruber on Gender Based Crimes
Over the past several years, feminism has been increasingly associated with crime control and the incarceration of men. In apparent lock-step with the movement of the American penal system, feminists have advocated a host of reforms to strengthen state power to punish gender-based crimes. In the rape context, this effort has produced mixed results. Sexual assault laws that adopt prevailing views of criminality and victimhood, such as predator laws, enjoy great popularity. However, reforms that target the difficulties of date rape prosecutions and seek to counter gender norms, such as rape shield and affirmative consent laws, are controversial, sporadically-implemented, and empirically unsuccessful. After decades of using criminal law as the primary vehicle to address sexualized violence, the time is ripe for feminists to reassess continued involvement in rape reform. This Article cautions feminists to weigh carefully any purported benefits of reform against the considerable philosophical and practical costs of criminalization strategies before considering making further investments of time, resources, and intellect in rape reform. In advancing this caution, the Article systematically catalogues the existing intra-feminist critiques of rape reform and discusses reasons why these critiques have proven relatively ineffective at reversing the punitive course of reform.
Featured Download: Sundby on Mapp v. Ohio and Suppression Hearings
The exclusionary rule is back under the judicial magnifying glass. Recent opinions, most notably by Justice Scalia, have sparked speculation that the Roberts Court is inclined to overrule Mapp v. Ohio and send Fourth Amendment disputes back to the realm of civil suits and police disciplinary actions. As the Court’s rulings have made clear, any reevaluation of the exclusionary rule’s future will be conducted under the now familiar rubric of whether the rule’s “benefit” of deterring police misbehavior outweighs the “cost” of lost evidence and convictions.
This essay argues that if any such reevaluation does occur, the Court must take into account something overlooked in evaluations of the past: the benefits of a suppression hearing itself. The hearing acts much like a morality play for those involved in the nitty gritty of law enforcement – police, judges, prosecutors, and defense attorneys – by instructing everyone involved both as to the Fourth Amendment’s rules and why those rules are of a constitutional magnitude mandating honor and respect. And because the exclusionary rule reaches a wide variety of police behavior – unlike civil suits and disciplinary proceedings which reach only the most egregious instances of misbehavior – the suppression hearing becomes an invaluable public forum for providing transparency and promoting police compliance with the Fourth Amendment. In short, the suppression hearing is the exclusionary rule’s unsung hero, and in the end offers the Court a means to find the truest measure of the exclusionary rule’s costs and benefits.
"One Reporter’s Lonely Beat, Witnessing Executions"
The article, in the New York Times, can be found here.
Here is the lead:
Of all the consequences of shrinking newsrooms, one of the oddest is this: Fewer journalists are available to watch people die. But Michael Graczyk has witnessed more than 300 deaths, and many of those were people he had come to know.
October 20, 2009
"Aiming for Liberty: The Past, Present and Future of Freedom and Self-Defense"That's the title of David Kopel's new book and his post about it over at The Volokh Conspiracy. At the post, he links to a podcast discussing the book, which he describes as "a collection of essays on firearms law and policy, and many other liberty issues and heroes."
Summary Ruling in Death Penalty Case
According to ScotusBlog, the Court required
the Seventh Circuit Court to allow a federal judge to rule on several challenges to the death sentence of an Indiana man, Joseph Corcoran, convicted of four counts of murder. The Circuit Court had allowed Indiana to reinstate the death sentence for Corcoran even though no court had yet ruled on challenges other than the one that the Circuit Court explicitly rejected. This was an error, the Justices said Tuesday in their unsigned opinion in Corcoran v. Levenhagen (08-10945). There were no noted dissents.
The per curiam opinion is here.
Dissent from Cert Denial in Case Involving Drunk Driving Program
Chief Justice Roberts, joined by Justice Scalia, dissented in Virginia v. Harris. The dissent is here. Here's how the Chief describes the case:
By a 4-to-3 vote, the Virginia Supreme Court below adopted a rule that will undermine such efforts to get drunk drivers off the road. The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road—by which time it may be too late.
Here, a Richmond police officer pulled Joseph Harris over after receiving an anonymous tip that Harris was driving while intoxicated. The tip described Harris, his car, and the direction he was traveling in considerable detail. The officer did not personally witness Harris violate any traffic laws. When Harris was pulled over, however, he reeked of alcohol, his speech was slurred, he almost fell over in attempting to exit his car, and he failed the sobriety tests the officer administered on the scene. Harris was convicted of driving while intoxicated, but the Virginia Supreme Court overturned the conviction. It concluded that because the officer had failed to independently verify that Harris was driving dangerously, the stop violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
Today's Habeas Cert GrantKiyemba v. Obama, in which the issue, according to ScotusBlog, is "Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush, has no power to order the release of prisoners held by the Executive for seven years, when the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy." ScotusBlog also links to the opinion below and to some of the briefs filed thus far.
Delahunty on the Fourth Amendment in the Aftermath of 9/11
In October 2001 - not quite six weeks after the 9/11 attacks on the United States - the Office of Legal Counsel in the Justice Department prepared an opinion on the question (among others) of whether the Warrant Clause of the Fourth Amendment would apply to domestic military operations against later such attacks inside the United States. The opinion concluded that it would not. The present writer was one of the co-authors of that opinion. The opinion was released in March 2009 by the new Administration's Justice Department, and was immediately subjected to a barrage of criticism in the media. This article answers those criticisms and defends the opinion's conclusions.
Michael Jackson, Abuse, and the Experiential Future (Kolber)A fascinating study in Nature Neuroscience from earlier this year may have identified biological markers of childhood trauma in the brains of adults. Researchers examined brain tissue from three groups of people: (1) 12 suicide victims who had been abused as children; (2) 12 suicide victims who had no history of childhood abuse; and (3) 12 control subjects with no history of abuse who died from causes other than suicide. Remarkably, the researchers identified epigenetic activity in the group that committed suicide and had been abused that they didn't see in the other two groups.
The research holds out the potential that certain kinds of childhood trauma may have lasting effects on gene expression in the brain (and possibly elsewhere) that can potentially be identified. The research is at the earliest stages, however. There are about a million caveats (e.g., the research looks at features of groups of brains and not features of individual brains, removal of brain tissue is only practical for cadavers, the research has yet to be replicated, there were small sample sizes, any sort of trauma might trigger the epigenetic activity, etc.).
Someday, however, we may develop more reliable markers of childhood trauma or abuse. We currently have all sorts of methods of demonstrating physical abuse, but there is often no easily-observable physical evidence of sexual abuse. In the future, we may be able to provide biological markers of childhood abuse that could help inculpate an alleged abuser. (More likely, the absence of such markers might be some evidence to exculpate an alleged abuser.) How might such a technology be relevant in a scenario similar to one raised by the death of Michael Jackson? See here.
(Originally posted at Prawfsblawg.)
Roberts & Saunders on Pre-Trial Witness Interviewing by Crown ProsecutorsPaul Roberts (University of Nottingham School of Law) and Candida Saunders have posted Pre-Trial Witness Interviews and the "Justice Gap" - A Plea for Sophistication in Criminal Procedure Reform on SSRN. Here is the abstract:
Drawing extensively on new empirical data, this article presents pre-trial witness interviewing by Crown Prosecutors (PTWI) as an illuminating case-study in criminal procedure reform and its evaluation. Various rationales for PTWI are canvassed and compared against documented experience during its Pilot Evaluation. Proceeding from the deceptively simple instrumental objective of increasing convictions, the discussion broadens out into a more comprehensive evaluation of the intrinsic merits and limitations of PTWI. Having indicated the wider implications of this case-study for policies aimed at tackling ‘the justice gap’, the article concludes by advancing a general argument for greater sophistication in the planning, execution and ongoing evaluation of criminal procedure reform.
October 19, 2009
"Changes to Military Commissions Act not enough to fix flawed system"Title of the commentary by Michelle McCluer (director, National Institute of Military Justice) at Jurist. The piece links to the proposed changes.
"Indicting DNA Profiles is Vital in Old Rape Cases"
That is the title of the article, in yesterday's New York Times, which can be found here.
Nearly 10 years had passed since a college student was raped on the Upper West Side of Manhattan, and with no known suspect in the 1993 case, the police were not close to an arrest. But what they did have was nearly as critical: the rapist’s DNA profile.
Prosecutors in Manhattan — aware that the legal clock for bringing a case was running out — devised the novel strategy of indicting the rapist’s DNA. Four years later, the sample was connected to a man, Victor Rondon; he was eventually convicted and sentenced to 44 to 107 years in prison.
Magnusson on Physician-Assisted Suicide in AustraliaRoger Magnusson (University of Sydney Faculty of Law) has posted The Traditional Account of Ethics and Law at the End of Life – and its Discontents (Journal of Bioethical Inquiry, Vol. 6, No. 3, 2009) on SSRN. Here is the abstract:
For the past thirty years, the Melbourne urologist Dr Rodney Syme has quietly – and more recently, not-to-quietly - assisted terminally and permanently ill people to die. This paper draws on Syme's recent book, A Good Death: An Argument for Voluntary Euthanasia, to identify and to reflect on some important challenges to what I outline as the traditional account of law, ethics, and end-of-life decisions. Among the challenges Syme makes to the traditional view is his argument that physicians’ intentions are frail and unfairly expose physicians to moral and legal censure. Secondly, Syme argues that physician-assisted dying (PAD) should be framed as a form of palliative care, not as a kind of safety-chute for when palliative care fails. Thirdly, Syme himself is a rare breed: a dissident doctor who has opened himself up for scrutiny and criticism, by reflecting publicly on his experiences at the edge of the law. Syme's career illustrates that prohibition, just like legalization, is a social policy that carries social consequences. The paper acknowledges the variability and idiosyncratic nature of extra-legal physician-assisted dying, and argues that the best way forward is to attempt to weigh the social consequences of both policies. Advocates and opponents of PAD should recognize that both prohibition and legalization involve trade-offs and impose possible costs on patients and on society.
"Largest Hedge Fund Insider Trading Case Ever Charged, Criminally"
Ellen Podgor has the post at White Collar Crime Prof Blog concerning this $20 million case, including links to charging documents.
New DOJ Policy on Federal Role in States Permitting Medical Use of Marijuana
The DOJ memorandum is here. Jonathan H. Adler at The Volokh Conspiracy has a post entitled A Step Toward Sanity on Medical Marijuana applauding the move, which was reported on by The Washington Post. The lead:
The Obama administration delivered new guidance on medical marijuana to federal prosecutors Monday, signaling a broad policy shift that will mean fewer crackdowns against dispensaries and the people who use them.
Attorney General Eric H. Holder Jr. instructed government lawyers that in 14 states where medical marijuana use is legal, federal prosecutors should focus only on cases involving higher level drug traffickers or people who use the state laws as a cover story.
Griffin on the Prosecution of Defensive Dishonesty in Federal Investigations
This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through prosecution. Enforcement decisions in marginal criminal lying cases are driven by efficiency rather than accuracy goals, which may produce unintended consequences. Using false-statement charges as pretexts for other harms can diminish transparency and mute signals to comply. Accountability also suffers when prosecutors can effectively create offenses, and when it is the interaction with the government itself rather than conduct with freestanding illegality that forms the core violation. The disjunction between prosecutions and social norms about defensive dishonesty may also result in significant credibility costs and cause some erosion of voluntary compliance. Animating the materiality requirement in the statute with attention to the harm caused or risked by particular false statements could mitigate these distortions. An inquiry into the objective impact of a false statement might account for the nature of the underlying conduct under investigation, whether the questioning at issue is pretextual, whether the lie is induced, and whether the deception succeeds or could succeed in harming the investigation. By taking materiality seriously, courts could curtail prosecutorial discretion and narrow application of the statute to cases where prosecution harmonizes with social norms.
Weekend in Review
CrimProf posts you may have missed over the weekend:
- Dolovich on Incarceration
- "Justices Consider Ineffective Counsel Case"
- Saul on How International Law Protects Journalists and War Correspondents
- Featured Download: Hoffman and King on the Federal Role in State Criminal Justice
- Murphy on Manufacturing Crime
- War Without Borders Series: "In Mexican Drug War, Investigators Are Fearful"
- "U.S. Alters Disputed Immigration Rules for Police"
- "What Kind Of Sentence Is Roman Polanski Facing?"
- Symposium on Examining Modern Approaches to Prosecutorial Discretion Today at Temple
- Controversy over Freedoms Afforded Criminally Insane in Washington State
- Top-Ten Recent SSRN Downloads
- Corrado on Preventative Detention and Psychopathy
- "Los Angeles Prepares for Clash Over [Medical] Marijuana"
- Possible Charges in Balloon-Boy Case
- Starr on Sentencing Reductions for Prosecutorial Misconduct
October 18, 2009
Starr on Sentencing Reductions for Prosecutorial Misconduct
Sonja B. Starr (University of Michigan Law School) has published Sentence Reduction as a Remedy for Prosecutorial Misconduct in the Georgetown Law Journal. Here is the abstract:
Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct uncondemned and undeterred.
This Article proposes adding sentence reduction to current remedial schemes, arguing that this would provide courts with an intermediate remedy that they would be more willing to grant. The Article demonstrates that several prosecutorial incentives combine to make sentence reduction an effective deterrent. Moreover, because sentence reduction could be tailored to the magnitude of the violation, it could resolve the windfall dilemma and serve as an effective corrective and expressive remedy.
Possible Charges in Balloon-Boy Case
In Sheriff Calls Balloon Chase a Hoax, the New York Times reports:
Richard Heene and his wife Mayumi have not yet been arrested, but the sheriff said that among the charges being considered are three felonies: conspiracy between the husband and the wife to commit a crime, contributing to the delinquency of a minor and an attempt to influence a public servant., the last of which carries a prison term of six years. The charges could also include a misdemeanor, filing a false report.
The sheriff said his conclusions were based on separate interviews of the Heenes and their three children as well as searches of their computers, e-mail records and documents found in their home. He said the plot to launch a balloon and tell authorities that Falcon was aboard was planned two weeks ago, with the aim of obtaining a contract to do a reality TV show.
"Los Angeles Prepares for Clash Over [Medical] Marijuana"
From the article in the New York Times:
Whatever happens here will be closely watched by law enforcement officials and marijuana advocates across the country who are threading their way through federal laws that still treat marijuana as an illegal drug and state laws that are increasingly allowing medicinal use. Thirteen states have laws supporting medical marijuana, and others are considering new legislation.
No state has gone further than California, often described by drug enforcement agents as a “source nation” because of the vast quantities of marijuana grown here. And no city in the state has gone further than Los Angeles. This has alarmed local officials, who say that dispensary owners here took unfair advantage of vague state laws intended to create exceptions to marijuana prohibitions for a limited number of ill people.
“About 100 percent of dispensaries in Los Angeles County and the city are operating illegally,” said Steve Cooley, the Los Angeles County district attorney, who is up for re-election next year. “The time is right to deal with this problem.”