November 30, 2009
Today's Criminal Law Cert Grants
Issue summaries are from ScotusBlog, where links can be found to briefs and opinions below:
Barber v. Thomas: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?
Renico v. Lett: Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.
"Post-combat stress as a defense"ScotusBlog has this post on the Court's per curiam reversal today in Porter v. McCollum, concluding that defendant received ineffective assistance in the penalty phase of his trial. The opinion is here.
Gildin on Strip Searches and the Canadian Charter
The process by which the United States Supreme Court determined who should bear the risk of loss of constitutional violations stands as a cautionary tale as the courts of Canada embark on the task of deciding when, and from whom, an award of damages is an “appropriate and just” remedy for Charter breaches. The United States Supreme Court developed its jurisprudence in three discrete silos: 1) immunity of individual officials; 2) entity liability for damages; and 3) standards for issuance of equitable and declaratory relief. The Court consistently neglected to consider how its rulings in one of the three silos, when applied in concert with other doctrines, affect the final allocation of losses caused by constitutional wrongdoing. As a consequence, innocent victims often are left without any remedy for infringement of their fundamental constitutional liberties.
This article proposes that in litigating and adjudicating any single issue that arises when a citizen seeks to recover damages for a Charter violation, the advocates and judges must adopt a holistic approach, assessing how resolution of that one issue will impact the overall assignment of the risk of loss. Counsel and the court always must consider how the answer to the question posed in the case at bar will affect plaintiff’s and future citizen’s ability to obtain a viable remedy for deprivations of Charter rights in light of 1) rules regarding immunity of individual officials; 2) doctrines approving or limiting the liability of governmental entities; and 3) the availability of injunctive or declaratory relief to redress the constitutional violation.
Tadros on Human Right to a Fair Criminal Trial
Victor Tadros (University of Warwick - School of Law) has posted A Human Right to a Fair Criminal Law (ESSAYS IN CRIMINAL LAW IN HONOUR OF GERALD GORDON, J. Chalmers, L. Farmer and F. Leverick, Forthcoming) on SSRN. Here is the abstract:
A human rights approach to scrutinising our criminal justice systems has gained considerable momentum in the UK, particularly since the Human Rights Act 1998 came into force, with Andrew Ashworth at the forefront. I don’t believe that this approach provides the sole way of critically investigating the quality of our law. After all, to say that our law is human rights compatible is not to say that it is just, a distinction that I will interrogate in a moment. But I do believe that a human rights approach can provide an important component of critical enquiry into the quality of the law. Violation of human rights is a distinctive kind of injustice, one that deserves to be marked out as special.
It is in this spirit that I offer an investigation of whether there is a human right to a fair criminal law. To make progress in that enquiry, we will need to know something about how best to understand human rights. I am interested here, I should say, not in the human rights that we have agreed in human rights documents such as the Universal Declaration of Human Rights or the European Convention of Human Rights. We can easily agree that there is no human right to a fair criminal law in this positivist sense. But human rights documents may be flawed: they may institutionalise as human rights things that are not really human rights at all and they may fail to institutionalise things that are human rights. Our enquiry is, in this way philosophical and moral rather than legal.
Long Weekend Roundup
Welcome back to the office! Here are the CrimProf posts you may have missed over the Thanksgiving weekend.
- "On 'Undercover Brothers,' Conscience & Getting Free"
- "Hate crimes are likely underreported despite documented increase"
- "White Collar Sentencing - In China"
- "ABA Backs Federal Court Trials of Alleged 9/11 Plotters"
- "Federal appeals court rules Ohio executions can resume"
- O'Connell on Lawful Combatants and Crimes During War
- Schipani on Attorney-Client Privilege in Corporate Criminal Investigations
- Top-Ten Recent SSRN Downloads
- "Over-Punishment in Schools"
- "Jessica’s Law too vague to enforce?"
- The Importance of, and Ways to Avoid, an Independent Judiciary
November 29, 2009
The Importance of, and Ways to Avoid, an Independent Judiciary
Today's San Diego Union-Tribune has the story:
San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, including the Bird Rock Bandits trial and Cynthia Sommer saga, is under a boycott from the District Attorney’s Office.
For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.
Under the law, each side has one such challenge when assigned a judge. They do not have to state a reason for doing so. The case then gets assigned to another judge.
When asked Wednesday about the boycott, District Attorney Bonnie Dumanis issued a one-paragraph statement in which she called Einhorn a “well-respected jurist” but did not say what he had done to earn her office’s enmity.
"Jessica’s Law too vague to enforce?"
The article is in today's San Diego Union-Tribune. The lead:
More than 70 percent of registered sex offenders in San Diego County are violating a state law by living too close to schools and parks.
Jessica’s Law, which was approved by California voters in November 2006, toughened sanctions against sex offenders and bars them from living within 2,000 feet of a school or park. In San Diego County, 1,266 of 1,731 offenders whose addresses are made public by the state live in those restricted zones, according to an analysis by the Watchdog Institute, a nonprofit investigative journalism unit based at San Diego State University.
That finding surprises virtually no one in law enforcement. They say the law is vague and has holes, making it nearly impossible to enforce.
For example, the law doesn’t specify whether residence restrictions apply to all convicted sex offenders or only to those who were convicted or paroled after it passed. There are no penalties for violating the restrictions.
"Over-Punishment in Schools"
An interesting editorial in the New York Times about the unintended consequences of the national trend to put police in charge of school security:
The consensus is that public schools are now safe. But juvenile justice advocates across the country are rightly worried about policies under which children are sometimes arrested and criminalized for behavior that once was dealt with by principals or guidance counselors working with a student’s parents.
Top-Ten Recent SSRN Downloads
|1||291||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||259||Blaming the Brain |
Steven K. Erickson,
University of Missouri at Columbia - School of Law,
Date posted to database: September 12, 2009 [3rd last week]
|3||239||The Torture Lawyers |
Jens David Ohlin,
Cornell Law School,
Date posted to database: September 10, 2009 [2nd last week]
|4||237||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
|5||184||Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms |
University of Virginia School of Law,
Date posted to database: August 13, 2009
|6||181||Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended |
Frank O. Bowman III,
University of Missouri School of Law,
Date posted to database: September 10, 2009
|7||148||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009
|8||141||Incarceration American-Style |
University of California, Los Angeles - School of Law,
Date posted to database: October 13, 2009
|9||139||Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory |
Paul H. Robinson, Michael T. Cahill, Daniel M. Bartels,
University of Pennsylvania Law School, Brooklyn Law School, Center for Decision Research, University of Chicago GSB,
Date posted to database: September 23, 2009
|10||132||The Abu Omar Case in Italy: ‘Extraordinary Renditions’ and State Obligations to Criminalize and Prosecute Torture Under the UN Torture Convention |
University of Cambridge,
Date posted to database: August 26, 2009