November 14, 2009
"Ohio to adopt single-drug lethal injection protocol"Jurist covers Ohio's response to its widely publicized botched execution attempt in September,
"9/11 Trial Poses Unparalleled Legal Obstacles"The article in the New York Times has an interesting summary of some of the likely challenges, including a discussion of how the government has tried to use "'clean teams' of investigators to collect information independently and do reviews that it says have not been tainted by rough interrogation techniques."
"America's Prison Spree Has Brutal Impact"
The November 9 Supreme Court arguments on whether it is cruel and unusual to impose life in prison without parole on violent juveniles who have not killed anybody understandably got prominent media coverage.
But a far more important imprisonment story gets less attention because it's a running sore that rarely generates dramatic "news." That is our criminal-justice system's incarceration of a staggering 2.3 million people, about half of them for nonviolent crimes, including most of the 500,000 locked up for drug offenses.
The Single-Juror Veto and the Federal Death Penalty
Kent Scheidegger at Crime and Consequences criticizes the decision to try some of the 9/11 suspects in federal civilian courts on the grounds that it makes a death sentence more difficult to achieve.
[i]n federal court, if the jury votes 11 for death and 1 for life, the decision of the 1 prevails over the decision of the 11. This rule is brain dead, but it is followed in a surprising number of jurisdictions. One better alternative is the California rule, where deadlock means a mistrial and retrial of the penalty phase before another jury. Another is the Florida rule, where a nonunanimous jury can make a recommendation to the trial judge, who makes the final decision
"Accused 9/11 Mastermind to Face Civilian Trial in N.Y."
The New York Times story addressing the controversy over trying some of the suspects in a civilian trial and others before military commissions is here. As to those being tried in civilian court, critics
argued that Qaeda suspects did not deserve the protections afforded by the American criminal justice system, that bringing them into the United States would heighten the risk of another terrorist attack, that civilian trials increase the risk of disclosing classified information, and that if the detainees were acquitted they could be released into the population.
November 13, 2009
Hodgson on Pre-Trial Procedure in England and Wales
Jacqueline Hodgson (University of Warwick - School of Law) has posted Recent Reforms in Pre-Trial Procedure in England and Wales on SSRN. Here is the abstract:
In this paper, focusing on the investigation and prosecution of crime, I would like to outline some of the recent changes and trends within criminal justice in England and Wales, and by way of comparison, to mention how some of these issues are developing in a very different European jurisdiction, that of France. There are two principal themes to my talk: the changing role of the prosecutor and of the defence lawyer in pre-trial investigations. These current developments exemplify not so much best practice, but rather areas of tension to be addressed in ensuring that the integrity of the criminal process and its values are not undermined by efficiency and political policy driven reform.
Really Starting Over with a Clean Slate
An article in the New York Times, Two German Killers Demanding Anonymity Sue Wikipedia’s Parent, discusses an interesting aspect of German law:
The legal fight pits German privacy law against the American First Amendment. German courts allow the suppression of a criminal’s name in news accounts once he has paid his debt to society, noted Alexander H. Stopp, the lawyer for the two men, who are now out of prison.
“They should be able to go on and be resocialized, and lead a life without being publicly stigmatized” for their crime, Mr. Stopp said. “A criminal has a right to privacy, too, and a right to be left alone.”
Symposium: What Criminal Law and Procedure Can Learn From Criminology
This symposium, in the latest issue of the Ohio State Journal of Criminal Law, is available online here. The table of contents follows the jump.
David A. Harris, What Criminal Law and Procedure Can Learn from Criminology, 7 Ohio St. J. Crim. L. 1 (2009).
Richard A. Leo and Jon B. Gould, Studying Wrongful Convictions: Learning From Social Science, 7 Ohio St. J. Crim. L. 7 (2009).
Eric J. Miller, Putting the Practice Into Theory, 7 Ohio St. J. Crim. L. 31 (2009).
Erik Luna, Criminal Justice and the Public Imagination, 7 Ohio St. J. Crim. L. 71 (2009).
David A. Harris, How Accountability-Based Policing Can Reinforce—Or Replace—The Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149 (2009).
Adcock on Executions in North Carolina
Cynthia F. Adcock (Charlotte School of Law) has posted The Twenty-Fifth Anniversary of Post-Furman Executions in North Carolina: A History of One Southern State’s Evolving Standards of Decency on SSRN. Here is the abstract:
The State of North Carolina resumed executions on March 16, 1984, at 2:00 a.m., with the execution by electrocution of James Hutchins, a severely mentally ill many who had shot and killed three law enforcement agents. Over the next 25 years, North Carolina executed 42 men and one woman. This article provides a brief overview of the more significant events that have shaped the face of the death penalty in this new era - events which the author views as coming in four waves - three that have ebbed and one that is yet to hit. The first wave was the crime wave of the 1980’s and early 90’s. This wave generated much energy, creating a second wave, one of strong public support for the death penalty; this wave, in turn, contributed to a third wave of increased death sentences.
These waves have now subsided. Today, there is a de facto moratorium on executions in North Carolina. When and if the moratorium is lifted, Adcock predicts that North Carolina’s newly elected Governor, Beverly Perdue, will likely find herself facing the “fourth wave” - a wave of execution dates not seen by any previous governor of this state or, perhaps, of any state. And this wave will involve a unique backdrop: a “sea change” in both the public support for the death penalty in North Carolina and in the reliability of the death penalty system, which has increased dramatically due to recent reforms. This article, ultimately, is about the Governor’s role at the time of a pending execution. Based on the history of executions in this state and on the changed milieu, this article argues that clemency must be done differently post-moratorium and offers the Governor some ideas for doing justice in the face of the coming wave of executions in today’s new landscape.
November 12, 2009
"Miranda With an English Accent"
Kent Scheidegger at Crime and Consequences discusses a recent article by Lauren Altdoerffer contasting Miranda with the U.K.'s statutory scheme:
A key difference in the U.K. is that the suspect is advised that his silence can be used at trial if he raises something he would reasonably have been expected to say upon arrest. For example, an arrestee with a real alibi would be expected to say so immediately. A criminal who wants to concoct a false alibi needs to line up people willing to lie for him first. There is a logically valid inference from silence in that situation, and the trier of fact should be allowed to consider it.
Jurist has a story titled, "UK government announces proposal to remove innocent people from DNA database," and FourthAmendment.com report on a case from the Western District of Pennsylvania holding that "Compulsory taking of DNA from pretrial detainee violates Fourth Amendment."
"Heightened Privacy Concerns in a Digital Era"ACSBlog has posted an interview with Jeffrey Rosen (George Washington University Law School) on this topic. The introduction read, "Rosen said the 'stakes for privacy rights have never been higher,' noting that so much of what we do in cyberspace can be stored and accessed by others."
"Guilty Pleas Expected in Balloon Hoax Case"
The New York Times story is here. Mom is pleading to the misdemeanor of false reporting to authorities, and Dad is pleading to the felony of "attempting to influence a public servant." Before you Coloradans stop writing to your Senators, though, be aware that the crime entails more than its title suggests: according to FindLaw, the crime entails
using deceit or a threat with the intent of changing how a public servant performs his or her function. In this case, it could relate to allegedly using deceit to cause many public servants (from various departments of government) to swing into action to find and rescue young Falcon.
Greenawalt on Self Defense and International Law
Few issues are both more central to and more elusive for the project of international law than identifying the conditions under which the use of armed force is justified. In Defending Humanity (Oxford, 2008), Fletcher & Ohlin join the debate on this issue with the provocative claim that international law has been impoverished by its neglect of the more developed doctrines of self-defense existing in domestic criminal law. The authors argue for and elaborate upon six-part model of “legitimate defense” that justifies the defensive use of force against attacks that are (1) overt, (2) unlawful, and (3) imminent; provided the defense is (4) necessary, (5) proportional, and (6) knowing or intentional.
The authors’ approach is especially effective when it reveals how international law scholarship has either ignored the lessons of criminal law principles or misread them to defend an overly narrow doctrine of self-defense. Too often, however, the authors’ argument is weakened by confusion surrounding how best to analogize the “self” of domestic self-defense for the international context. The authors’ approach to the problem of humanitarian intervention is especially troublesome: they argue that the international community may intervene when a state attacks its own population, but only if attacked people are a “nation.” The authors are too quick to reject a more inclusive theory of humanitarian intervention rooted in respect for human rights. This path too, is fraught with difficulty, but it better aspires to the promise of the book’s title: that of defending humanity, and not contested social constructs.
November 11, 2009
Fred Zacharias: Old School Loses a Teacher
I am sad to report the death of my longtime friend and colleague, Fred Zacharias. Fred's work was known to many criminal law and procedure types because of his interest in prosecutorial ethics and his early empirical work on how lawyer-client confidentiality impacts the lawyer-client relationship, particularly important in criminal matters. More generally, as Georgetown Professor David Luban says in Fred's obit, Fred "was one of the finest legal ethics scholars in the United States, a genuine leader in the field. He was also a wise and generous colleague."
Fred was old school in the good ways--not resistant to new ideas, but confident that the time-tested path of diligence and open inquiry was the route to professorial success. He rose early in the morning even before classes he had taught many times to review his materials so that he could be ready to follow whatever tack his students pursued that day. He kept his nose to the scholarly grindstone because that was the job he had agreed to do.
The last time I played basketball was with Fred. I had "retired" from the sport a couple of years earlier, to the appreciation of my knees and back, but Fred, with whom I had often played in the past, decided to offer up a three-on-three, faculty-against-student game for San Diego's annual Women's Law Caucus auction. The winning students were, as usual, a tall, athletic group looking forward to running circles around and jumping over the faculty pigeons (rounded out by CrimProf's own Larry Alexander). To their surprise--because they probably hadn't seen a pick-and-roll before--we screened ourselves to victory. We limped for weeks afterwards, but it was worth it.
Featured Download: Dubber on Criminal, Public, and Private Law
Markus D. Dubber (University of Toronto - Faculty of Law) has posted Criminal Law Between Public and Private Law on SSRN. The piece is a tightly argued effort to situate criminal law within the domain of law in general. Here is the abstract:
To criminalize something (not someone, ordinarily) means to bring it within the scope of criminal law; in this sense, crime is a legal phenomenon, as is punishment. This means that an account of criminalization needs an account not of crime simpliciter, but of law in general, and of criminal law within it. In this paper, I approach this task equipped with two distinctions, one - between law and police - designed to illuminate the concept of law, and the other - between public and private law -meant to clarify that of criminal law.
"Death Penalty is considered a boon by some California Inmates"The story can be found in the Los Angeles Times. Here is the lead:
White supremacist gang hit man Billy Joe Johnson got what he asked for from the Orange County jury that convicted him of first-degree murder last month: a death sentence.
It wasn't remorse for his crimes or a desire for atonement that drove him to ask for execution; it was the expectation that conditions on death row would be more comfortable than in other maximum-security prisons and that any date with the executioner would be decades away if it came at all.
Prosecutors Allege that Innocence Project Students Paid Witness for Exculpatory EvidenceThe New York Times reports on the court proceedings here. The new allegations shed light on why prosecutors had previously issued a controversial subpoena directed at the Northwestern journalism students seeking information on how their performance was graded, reported previously here.
"A Justice's Curious Comment About ABA Guidelines For Death Penalty Lawyers"That's the title of the post at BLT reporting on Justice Alito's concurring opinion this week in Bobby v. Van Hook, in which the Court reversed the Sixth Circuit's conclusion that a criminal defendant had received ineffective assistance of counsel. Justice Alito wrote separately to emphasize that the ABA's guidelines for appointment and performance of counsel in capital cases should not be given undue weight.
MacDowell on Integrated Domestic Violence Courts and Court Pluralism
Scholarship about domestic violence-related judicial system reform tends to focus on criminal justice, leaving the civil system under-analyzed. Moreover, the pluralistic nature of the justice system - which consists of both criminal and civil justice - is often ignored. This article explores claims for specialized domestic violence courts that integrate civil and criminal cases into a single court and argues that the value of court pluralism is overlooked. Part I of this article introduces the problem of integrated courts in a pluralistic court system. Part II examines the normative function of criminal courts in relation to domestic violence cases and contrasts the remedies available to victims in criminal and civil courts. Part III critiques the rationale for integrated domestic violence courts from the standpoint of litigation strategy and other avenues for system reform. This Part also examines the ways in which integrated courts compromise the autonomy-enhancing functions of civil courts. Part IV shows that despite the advantages of civil courts for victims, the characterization of civil justice as relatively unproblematic is inaccurate, and revisits the normative role of the criminal courts. This Part concludes that given the risks and lack of benefits to victims of integrating criminal and civil court functions, this reform strategy should be reconsidered in light of its impact on court pluralism.