November 21, 2009
"Torture and Accountability"
David Cole (Georgetown) has this post at ACSBlog discussing arguments from his book, "The Torture Memos."
My introductory commentary to the book dissects the lawyers' arguments to show what was so wrong with the job the lawyers did. This was law at its worst, and needs to be understood as such. When lawyers violate their oath and facilitate cruel, inhuman, and degrading treatment and torture, accountability is essential. This book is an attempt to contribute to the struggle for accountability.
"Does Bringing A Terrorist Suspect From Gitmo to New York Confer Any More Legal Rights?"Orin Kerr has the post at The Volokh Conspiracy here.
O'Hanlon on Free Will in Criminal Law
Stephen T. O'Hanlon (Adjunct Professor, Temple University-Philosophy) has posted Towards a More Reasonable Approach to Free Will in Criminal Law (Cardozo Public Law, Policy and Ethics Journal, Vol. 7, No. 2, 2009) on SSRN. Here is the abstract:
This paper questions criminal law's strong presumption of free will. Part I assesses the ways in which environment, nurture, and society influence human action. Part II briefly surveys studies from the fields of genetics and neuroscience which call into question strong assumptions of free will and suggest explanations for propensities toward criminal activity. Part III discusses other "causes" of criminal activity including addiction, economic deprivation, gender, and culture. In light of Parts I through III, Part IV assesses criminal responsibility and the legitimacy of punishment. Part V considers the the possibility of determining propensity from criminal activity based on assessing causal factors and their effects on certain people. In this context, the concept of dangerous individuals and possible justifications for preventative detention of such individuals in order to protect society is assessed. The concluding section suggests that the law should take a broader view of factors that could have determinant effects on agents' actions.
Megret on International Criminal Procedure
Frederic Megret (McGill University - Faculty of Law) has posted Beyond 'Fairness': Understanding the Determinants of International Criminal Procedure (UCLA Journal of International Law and Foreign Affairs, 2010) on SSRN. Here is the abstract:
This article seeks to explore what makes international criminal procedure what it is. Rather than simply assessing its fairness in decontextualised fashion, it proposes a realist and parsimonious explanation of the determinants of international criminal procedure. Two paradigms are contrasted and both found to provide only limited explanation. One is the idea that the main driving force behind the development of procedure before international criminal tribunals is the confrontation of the common law accusatorial and the romano-germanic inquisitorial traditions. Although clearly that confrontation has helped frame the problem, it is not solvable on its own terms, and ultimately too embedded in assumptions each tradition makes about what defines the “right” procedure. The other paradigm is the idea that international criminal procedure is first and foremost an attempt to strive for the fairest possible procedure under the guidance of international human rights standards. Although again this is seen as having some framing value, international human rights law is itself too under-determinative of the issue to be conclusive in all but a few cases. The article then turns to a model described as international criminal procedure’s process of “becoming international”. International criminal tribunals have developed an international criminal procedure that is both adapted to the constraints imposed by their international environment, and the goals and values of international criminal justice. This process is identified as by far the most relevant in identifying the dynamics of international criminal procedure.
November 20, 2009
"The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"
Doug Berman at Sentencing Law and Policy excerpts this article by David Feige at Slate, which predicts that valid arguments will be rejected by courts too cowardly to face the consequences of applying the law faithfully, putting bad law on the books that will apply in all cases. If that's true, it seems to me that the headline should be focusing on judges and not defense lawyers. But the article itself is worth reading.
Commentary Symposium: Criminal Law, Casebooks, and Legal EducationThis symposium in the Ohio State Journal of Criminal Law is available online here. The table of contents, which would be impressive even if it did not include two CrimProf contributing editors (Dripps and Kamisar), is available after the jump.
Joshua Dressler, Criminal Law Casebooks: An Introduction to a Dialogue on Their History and Role in Legal Education, 7 Ohio St. J. Crim. L. 215 (2009).
Anders Walker, The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course, 7 Ohio St. J. Crim. L. 217 (2009).
Yale Kamisar, I Remember Professor Wechsler, 7 Ohio St. J. Crim. L. 249 (2009).
Donald A. Dripps, On Cases, Casebooks, and the Real World of Criminal Justice: A Brief Response to Anders Walker, 7 Ohio St. J. Crim. L. 257 (2009).
Angela P. Harris and Cynthia Lee, Teaching Criminal Law from a Critical Perspective, 7 Ohio St. J. Crim. L. 261 (2009).
Douglas Husak, Criminal Law Textbooks and Human Betterment, 7 Ohio St. J. Crim. L. 267 (2009).
Margaret L. Paris, Four Good Things About Wechsler’s Approach, 7 Ohio St. J. Crim. L. 275 (2009).
Lloyd L. Weinreb, Teaching Criminal Law, 7 Ohio St. J. Crim. L. 279 (2009).
Robert Weisberg, Did Legal Realism Engage the Real World of Criminal Law?, 7 Ohio St. J. Crim. L. 293 (2009).
Anders Walker, Response to Readers of “The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course”, 7 Ohio St. J. Crim. L. 303 (2009).
Featured Download: Dillof on Modal Retributivism and Attempts
Anthony M. Dillof (Wayne State University Law School) has posted an interesting piece, Modal Retributivism: A Theory of Sanctions for Attempts and Other Criminal Wrongs, on SSRN. Here is the abstract:
How much punishment, in terms of size and severity, should a person get for a given offense? There are, broadly speaking, two well-established theories of criminal punishment: utilitarianism and retributivism. The first provides an answer to the question posed – punish as much as needed to maximize social welfare. With this, the theoretical work is done; only empirical work remains. The second theory also provides an answer – as much as deserved. In contrast to the first answer, however, theoretical work must be done to explicate the concept of desert. This has not been done in a systematic way with respect to the range of criminal offenses. The article attempts to think systematically about what sanctions are deserved for offenses both of offenses of harm-causing, like murder, and inchoate offenses, like attempts, as well as offenses of negligence and crimes of passion. Thus, the article attempts to answer the question of criminal punishment severity in a unified, principled manner.
The article begins by considering and critiquing harm-based retributivism. Harm-based retributivism is a leading theory of punishment. According to it, the punishment an actor deserves depends on the harm he is culpably responsible for causing – the greater the harm, the greater the punishment deserved. Harm-based retributivism has normative appeal for many and is consistent with the great majority of our punishment practices.
The article then advances a novel criticism of harm-based retributivism. The problem with harm-based retributivism, it is argued, is that it cannot be extended in a principled manner to inchoate offenses, such as attempts. An alternative to harm-based retributivism is intent-based retributivism – the theory that punishment for both consummate and inchoate offenses should be based solely on subjective factors such as the harm intended. Intent-based retributivism, however, is inconsistent with a wide-spread intuition that "harm matters."
In response to these criticisms, the article presents an alternative to both harm-based and intent-based retributivism. The alternative theory presented is called, largely for lack of a better name, "modal retributivism." The essence of modal retributivism is that under it, the fact that harm results from wrongful conduct is not relevant to the severity of the sanction deserved, as it is under harm-based retributivism, but rather, it is relevant to the sanction's mode as precatory ("should be imposed") or permissive ("may be imposed"). With this theory in place, punishment levels for inchoate crimes, such as attempts and reckless endangerment, are recommended. Next, punishment levels for crimes of passion and negligence are considered. Modal retributivism’s recommendations for crimes of intentional harm-causing are extended to these crimes.
Rather than building the case for modal retributivism from the ground up, the article seeks to take the existing components of retributive thought and reassemble them into a sounder structure. The cogency of the argument against harm-based retributivism and the appeal of modal retributivism will likely be strongest for those who allow reason, as opposed to intuition, a relatively great role in resolving moral issues.
Epstein on Death-Worthiness and Prosecutorial Discretion
Jules Epstein (Widener University - School of Law) has posted Death-Worthiness and Prosecutorial Discretion in Capital Case Charging (Temple Political & Civil Rights Law Review, Forthcoming) on SSRN. Here is the abstract:
Any attempt to assess the merits of a prosecutorial ‘selection’ scheme in capital-eligible homicide cases must have an appropriate metric. Scholarship to date has screened such discretionary scheme for racial and intra-state geographic disparities and found recurring problems in each area, with race (often race of victim) standing out in some jurisdictions as a dispositive factor in which defendant must face the death penalty at trial. If one assumes that a well-designed capital charging process can reduce if not eliminate such disparities, a metric for judging the success of prosecutorial charging schemes is still needed. This paper proposes that metric to be “death-worthiness,” a standard derived from the Court’s repeated insistence that the death penalty be reserved for the ‘worst of the worst,’ a standard that examines not only the crime and the negatives in the background of the accused but also all mitigating factors.
Even if a prosecutor’s office were to embrace this metric, and conduct pre-trial reviews of defense mitigation evidence to screen out those not ‘worthy’ of death, three barriers stand in the way of successful implementation of this standard. Counsel often fail to develop mitigation evidence, either due to ineffectiveness or a lack of resources. A defendant’s youth may compromise his/her willingness and ability to assist in the mitigation process, and where youth stands as a barrier to expressing remorse may unjustifiably leave a particular defendant in the death-worthy cohort. Finally, the power of victim survivor constituencies, as when the victim is a police officer killed in the line of duty, may bar a well-intentioned prosecutor from declining to seek death even where the individual defendant is not death-worthy. The result will be an over-inclusive charging process in capital cases; and given the variability of juror response (and the persistence of race-based judgments in jury deliberations), the result will ensure that capital punishment is visited upon some who are not, by any measure, “death worthy.”
November 19, 2009
"Ohio launches new non-DNA innocence initiative"The A.P. story is here.
"Middle Managers Turn to Crime Amid Downturn"
The Wall Street Journal has the article here. Here's the lead:
The economic downturn has caused a global upsurge in accounting fraud and induced more middle managers to commit economic crimes, according to a study released Thursday by PricewaterhouseCoopers LLP.
The Global Economic Crime Survey, which surveyed 3,037 corporate employees in 54 countries in conjunction with the Fontainebleau, France-based INSEAD Business School, also found that fraud was more prevalent in companies with high-variable, performance-based pay schemes for senior executives.
Craig on Criminal Law and Sexual Mores
Elaine Craig has posted Laws of Desire: The Political Morality of Public Sex on SSRN. Here is the abstract:
In deciding cases that involve the intersection of criminal law and sexual mores, the courts are faced with the challenge of determining the appropriate moral framework from which to approach simultaneously private and social concerns. In indecency cases, Canadian courts historically employed a communitarian model of sexual morality based on the community’s standard of tolerance. However, the Supreme Court of Canada’s recent jurisprudence affirms a harm-based test, which relies upon and protects the fundamental values enshrined in the Canadian constitution. This article analyzes the Court’s decisions in R. v. Labaye and R. v. Kouri and demonstrates that these cases represent a shift in the relationship between law and sexuality. Drawing upon the work of both Joseph Raz and Ronald Dworkin, the author illuminates the possibility of a new approach by the Court to the regulation of sex. Such an approach allows for the legal recognition of pleasure behind, beyond, or outside of legal claims regarding identity, antisubordination, relationship equality, and conventional privacy rights. A new theoretical approach to the legal regulation of sexuality recognizes the importance and benefit of challenging mainstream beliefs about sexuaity and subverting certain dominant sexual norms. Such an approach is firmly grounded in the principles of liberalism that Labaye reflects.
Bronsteen, Buccafusco & Masur on Happiness and Punishment
The Legal Workshop has an interesting piece by John Bronsteen (Loyola-Chicago), Christopher Buccafusco (Chicago-Kent; pictured), and Jonathan Masur (University of Chicago), drawn from their article at 76 U. Chi. L. Rev. 1037 (2009). Here's how it starts:
New findings in hedonic psychology have implications for punishment theory. Specifically, these findings suggest that criminals adapt surprisingly well to fines and even to incarceration, but that incarceration negatively affects post-prison life in ways that tend to be unadaptable. These results increase the difficulty of using adjustments in the size of a fine or the length of a prison sentence to tailor a punishment to fit a crime. Because such adjustments are our primary means of crafting proportional punishments, and because such proportionality is important to retributive and utilitarian theories of punishment, a problem with their effectiveness could necessitate a rethinking of penal assumptions.
Featured Download: Pillsbury on Provocation
This symposium article questions the significance of the partial justification v. excuse distinction often discussed with respect to provocation, noting that the doctrine inevitably has elements of both. It argues that provocation should best be understood as providing mitigation of punishment based on defendant’s good reasons for anger and/or fear rather than according to diminished capacity for rational choice due to the experience of any strong emotion. Finally, if mitigation is provided for diminished rationality due to mental illness, that should occur under a doctrine distinct from provocation.
November 18, 2009
"Virginia conducts first US electric chair execution in over a year"Jurist has the story here.
Heller, the Privileges or Immunities Clause, and the StatesDoug Berman has a helpful post at Sentencing Law and Policy that collects several posts related to the recently filed brief in McDonald v. Chicago, in which the challengers of Chicago's strict gun-control measures present an extended argument against it based on the privileges or immunities clause.
Sloan on Stealth Procedures and the Erosion of Stare DecisisAmy E. Sloan (University of Baltimore School of Law) has posted The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals (Fordham Law Review, Vol. 78, 2009) on SSRN. Here is the abstract:
Informal en banc review is a procedural expedient that nine of the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to take actions normally reserved for the full court sitting en banc. The circuits that use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal en banc review is significant when compared with formal en banc review. Informal en banc review is more efficient than formal en banc review, but the efficiency benefits come at a price. Informal en banc review is used arbitrarily. Courts often hide informal en banc actions in footnotes, which diminishes the transparency of their actions and makes research difficult. Informal en banc review appears to be used disproportionately in criminal cases, and in all cases in which it is used, it deprives the parties of the opportunity to participate in the decisional process because it is an internal court procedure that panels invoke sua sponte. The procedure can also damage judicial collegiality by depriving minority-view judges of opportunities to present their views. Informal en banc opinions inject uncertainty into the system of precedent because their precedential status is unclear. Further, informal en banc review can result in poor decision making when changes to the law are based on incomplete information. This Article explores informal en banc review in depth, tracing its history and use. It then analyzes the advantages and disadvantages of informal en banc review and proposes procedures to ensure that it is used only on legitimate terms.
Tiersma on California's Jury Instructions
California was a leader in the pattern jury instruction movement. Beginning in the 1930s, committees of judges and lawyers acting under the auspices of the Los Angeles Superior Court began to publish standardized (fill-in-the-blank) jury instructions. These pattern instructions saved judges and lawyers a great deal of time and were well regarded as being legally accurate. But the legal accuracy came at a cost. The instructions, which generally parroted the language of statutes and judicial opinions, were often quite stilted, used obscure language, and were hard for jurors to understand.
In the late 1990s the California Judicial Council, as part of a broader reform effort, appointed a task force to draft more user-friendly instructions. This article describes that process and then compares some of the old to the new instructions, including those on evidence, burden of proof, homicide, and the death penalty.
November 17, 2009
Steinzor on Deterring Production of Unsafe Food
Rena I. Steinzor (University of Maryland - School of Law) has posted High Crimes, Not Misdemeanors: Deterring the Production of Unsafe Food (Health Matrix: Journal of Law-Medicine, Vol. 19, No. 2, 2010) on SSRN. Here is the abstract:
Food-borne illness causes 5,000 deaths, hospitalizes 325,000, and sickens 76 million annually. Incidents like those at PCA have spurred Congress to draft comprehensive legislation to strengthen FDA’s food safety programs, which cover 80 percent of the American diet. (The Department of Agriculture has jurisdiction over meat and poultry.) Yet under the leading piece of Senate legislation, such egregious conduct would remain punishable as a misdemeanor, triggering at most 0-6 months in jail if the Department of Justice even considered prosecuting those crimes. Industry groups like the Grocery Manufacturers of America oppose enhanced criminal and civil penalties, urging the FDA to focus on cooperative efforts to achieve compliance. The paper argues that the nation cannot afford to forego the substantial deterrent effects provided by severe criminal penalties, especially under the “responsible corporate officer” doctrine that applies to violations of the Food, Drug, and Cosmetics Act. That doctrine holds responsible any corporate officer who should know illegal practices are occurring and is in a position to stop them. In an era when regulatory agencies responsible for protecting health and safety cannot afford to inspect their way out of trouble, high profile enforcement is critical to efforts to improve the safety of the food supply.
In the fall of 2008, Minnesota public health officials became alarmed by an unusually high number of illnesses and deaths caused by salmonella poisoning. Federal and state regulators and the news media eventually traced the outbreak back to products supplied by the Peanut Corporation of America (PCA). Employees shipped batches that tested positive for salmonella from a plant with a leaking roof, mold growing on ceilings and walls, rodent infestation, filthy processing receptacles, and feathers and feces in the air filtration system. Under an agreement with the Food and Drug Administration (FDA), Georgia state inspectors visited the PCA plant nine times in 2006-2008 but took no effective action to terminate any of these conditions. When called to testify before Congress, Stewart Parnell, PCA’s chief executive officer, invoked his Fifth Amendment rights, and the company itself is under criminal investigation.
Murphy on Familial Searches of DNA Databases
As DNA databases have grown in size, a search method known as familial or kinship matching has also become more prevalent. Familial searches use databases to locate possible relatives of the source of a crime-scene sample in cases in which no exact match was found. Because this kind of searching focuses attention only upon possible matches to innocent persons with relatives in a DNA database, while ignoring possible matches to innocent persons without such relatives, it raises serious concerns. This Article argues against familial search practices on a variety of grounds, including claims related to equality, accuracy, privacy, racial discrimination, and democratic accountability. Should such arguments not prove persuasive, however, it then sets forth recommendations for restrictions on familial searching aimed at ameliorating their possible iniquitous effects.