December 19, 2009
"Treatment vs. incarceration: U.S. officials debate handling of drug offenses"The Washington Post story is here.
"California's death row grows as death sentences decline nationwide"
The L.A. Times story is here.
"A California Court Debates the Good Faith Exception to the Exclusionary Rule post-Gant"
Lauren Altdoerffer has a post at Crime and Consequences, commenting on a California appellate court's decision in People v. Branner
that the exclusionary rule did not prevent the use of evidence obtained by an officer relying on a rule of the U.S. Supreme Court even when the Court later changed its mind about the rule. According to the majority, "the guilty should not go free when the constable did precisely what the U.S. Supreme Court told him he could do, but the Court later decides it was the one who blundered."
. . .
The court's debate presents some interesting questions on the deterrent purpose of the exclusionary rule and whether the Branner should benefit from Gant's retroactive effect.
The opinion is here.
Yarussi & Smith on Sexual Violence in Custody
Jaime M. Yarussi and Brenda V. Smith (pictured) (both from American University Washington College of Law) have posted Legal Responses to Sexual Violence in Custody: State Criminal Laws Prohibiting Staff Sexual Abuse of Individuals under Custodial Supervision on SSRN. Here is the abstract:
This publication is part of a larger scholarly project and one in a series that aims to create a “legal toolkit” for addressing sexual violence in custody. This publication begins with a brief discussion of staff sexual misconduct, and then examines a variety of definitions of staff sexual misconduct as defined by federal law. Next, the publication explores, in detail, sexual misconduct as defined by state criminal laws in the United States, provides examples of current state criminal laws on staff sexual misconduct and discusses the legal implications of these statutes. Finally, this publication concludes by reviewing the policy issues that stakeholders and policymakers should consider when evaluating a state criminal law on staff sexual misconduct, and provides recommendations for strengthening state laws to enhance their effectiveness.
December 18, 2009
Schehr on Law School Pedagogy
Robert Carl Schehr (Northern Arizona-Criminology and Criminal Justice) has posted 'The Lord Speaks Through Me': Moving Beyond Conventional Law School Pedagogy and the Reasons for Doing So (International Journal of Clinical Legal Education, pp. 9-47, July 2009) on SSRN. Here is the abstract:
Maintenance of status quo law school curricular design and delivery, along with the continued marginalization of live client clinic programs, and the discordant objectives of law schools as compared to the expectations of Bar passage, serve to stifle the role of juridic practitioners in the service of justice. Decades of careful scholarship regarding the problems associated with the quality of legal education have repeatedly called for curricular revisions that should enhance the knowledge and skill base of graduates, develop their level of preparedness to actually serve in the profession, and demonstrate care for students. And while there has been a commitment on behalf of law schools to establish experiential educational opportunities through participation in live client clinics, far too often these clinics appear as appendages to the core curriculum and are marginalized as a result. This essay has two objectives - to address the serious and well-known shortcomings associated with law school pedagogy, and to stimulate consideration of alternate pedagogical methods that draw upon student development theory to enhance what education scholars know about cognition.
(Another) Cautionary Note on Wrongful Convictions
Findlaw reports in DNA Evidence Frees James Bain after 35 Years:
James Bain spent more time in prison than any of the 245 inmates previously exonerated by DNA evidence nationwide.
But today, Bain, 54, is a free man after 35 years behind bars on a wrongful conviction. According to CNN, DNA evidence showed that Bain did not kidnap and rape a 9-year-old boy in 1974.
Bain was set free after his fifth request to use DNA evidence. Previously, he submitted handwritten motions four times seeking such testing, but was denied each time. In 2001, Florida passed a statute allowing cases to be reopened for DNA testing.
"Number of death sentences falls to a historic low"
The Washington Post story is here:
The number of executions in the United States increased this year, but the number of new death sentences handed down fell to the lowest total since capital punishment was reinstated in 1976, according to a new report from the Death Penalty Information Center.
. . .
Legal experts and prosecutors in Virginia cite several factors for the decline, including Supreme Court rulings that barred the execution of juvenile offenders and the mentally retarded. They also point to a drop in violent crime, growing jury concerns about executing an innocent man, and prosecutors' concerns about the expense of pursuing a death penalty at a time of budget cuts.
Davis on Anti-Corruption Law and Developing Countries
Kevin E. Davis (New York University - School of Law) has posted Does the Globalization of Anti-Corruption Law Help Developing Countries? (INTERNATIONAL LAW, ECONOMIC GLOBALIZATION AND DEVELOPMENT, Julio Faundez and Celine Tan, eds., E. Elgar, 2010) on SSRN. Here is the abstract:
What role do foreign institutions play in combating political corruption in developing countries? This chapter begins by describing the recently developed transnational anti-corruption regime, which encompasses legal instruments ranging from the dedicated multilateral agreements sponsored by the OECD and the United Nations, to the anti-corruption policies of international financial institutions, to components of the international antimony laundering regime, international norms governing government procurement, and private law norms concerning enforcement of corruptly procured contracts. It also surveys the evidence concerning a variety of claims about the potential advantages and disadvantages of having foreign institutions play a role in preventing, sanctioning, or providing redress for corruption on the part of local public officials. One of the main conclusions is that more attention ought to be paid to whether foreign institutions displace and undermine, or alternatively complement and enhance, local anti-corruption institutions. The analysis not only sheds light on the transnational anti-corruption regime, but also has implications for other efforts to rely on foreign legal institutions to address the problems of developing countries.
December 17, 2009
(Another) Cautionary Note for the CSI Generation
The New York Times has a story headlined Inquiry Condemns Oversight at State Police Crime Lab:
The New York State Police’s supervision of a crime laboratory was so poor that it overlooked evidence of pervasively shoddy forensics work, allowing an analyst to go undetected for 15 years as he falsified test results and compromised nearly one-third of his 322 cases, an investigation by the state’s inspector general has found.
The analyst’s training was so substandard that at one point last year, investigators discovered he did not know how to operate a microscope essential to performing his job, a report released Thursday by the inspector general said.
"Intelligence Improperly Collected on U.S. Citizens"The New York Times story is here, reporting on documents released in connection with a lawsuit filed by the Electronic Frontier Foundation. The documents show "several cases in the last several years in which the department’s intelligence office improperly collected information about American citizens or lawful United States residents."
Tiefenbrun and Edwards on Sex Trafficking in China
Susan Tiefenbrun (pictured) and Christie J. Edwards (both of Thomas Jefferson School of Law) have posted Gendercide and the Cultural Context of Sex Trafficking in China (Fordham International Law Journal, Vol. 32, No. 3, p. 731, 2009) on SSRN. Here is the abstract:
This article discusses a demographic crisis in China that arguably rises to the level of "gendercide." Women in China are bought and sold, murdered and made to disappear, in order to comply with a governmental policy that coincides with the cultural phenomenon of male-child preference. Demographers estimate that there are between 50 and 100 million missing women in China. In answer to the resulting scarcity of women, gangs, "specialist households," and "specialist villages" have been working in an organized chain to kidnap and sell women in China.
Several factors work interdependently to cause a serious shortage of women in China. Women are disappearing because of the social pressures of male-child preference, the zealous enforcement of China’s "One-Child Policy" by local government authorities, and the murderous responses to this policy undertaken by millions of ordinary people in China who are desperate to have a son. The 2000 Chinese census reported that 117 boys were born for every 100 girls, compared to the global average of 105 or 106 boys to every 100 girls. This disparity may be linked to the practice of aborting female fetuses and killing female babies.
This gender imbalance has caused an increase in prostitution and human trafficking in China. Sex trafficking in China takes many forms: the purchase of women for brides, the purchase of a male son, or the sale of unwanted female children. Many men, primarily in rural China, desperately seek brides in a country where women are in short supply. These men will resort to purchasing a trafficked woman for marriage. Couples seeking a male child will sell or even murder their girl child in order to make room for the purchase of a trafficked baby boy. Young women and infants are bought and sold like cargo. Human trafficking in China is a lucrative international business that is expanding due to several factors: the aggressive implementation of the One-Child Policy, a faulty legal system, and the blind adherence to longstanding cultural traditions that devalue women. In China, Communist Party directives overshadow the legislative and judicial process. The primacy of government policy results in the ineffectiveness of laws that theoretically protect women and female children in China.
December 16, 2009
Ford on the Effects of Peremptory Challenges
Although proponents argue that peremptory challenges make juries more impartial by eliminating “extreme” jurors, studies testing this theory are rare and inconclusive. For this article, two formal models of jury selection are constructed, and various selection procedures are tested, assuming that attorneys act rationally rather than discriminate based on animus. The models demonstrate that even when used rationally, peremptory challenges can distort jury decision making and undermine verdict reliability.
Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction - as empirical evidence suggests is usually the case - then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future.
Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.
"Government Misconduct Results in Dismissal of Backdating Case"Ellen Podgor has a post on the dismissal in the Broadcom prosecution here, including a link to the court's order. The A.P. story is here.
Dubber on the War on Terror and U.S. Criminal Law
This paper addresses the question of what impact the so-called “new security agenda against terrorism” has had on substantive criminal law in the United States. This question has a simple answer: None.
There is nothing new about the so-called War on Terror, except for a redesignation of its object, from Crime to Terror. The mode of governance, its essence as a “security agenda,” remains unchanged. The War on Terror is another, contemporary, manifestation of a mode of penal governance that regards itself as emanating from the sovereign’s power to police, understood here in the traditional sense of the power to maintain the peace, or, in Blackstone’s phrase, the sovereign’s power as “pater-familias of the nation” to see after “the public police and oeconomy,” i.e., “the due regulation and domestic order of the kingdom.” The security agenda against terrorism, in this sense, is neither “new,” nor can it have an “impact” on American criminal law, simply because it is American criminal law, and always has been.
December 15, 2009
Psychopathy and Mitigation in a Capital Case
The defense argued that Dugan suffers from psychopathy, a psychiatric disorder typified by antisocial behavior, impulsivity, and lack of remorse, which made it difficult for him to control his behavior. As a result, the defense argued, Dugan is less culpable for his criminal behavior, and his disorder should be considered a mitigating factor. Kiehl testified that based on functional magnetic resonance imaging (fMRI) tests and a diagnostic checklist, Dugan showed abnormal brain functioning and responses similar to other psychopaths Kiehl has tested. Although data from other brain imaging techniques, such as PET and SPECT, have been used in court previously, Kiehl’s testimony may be the first instance in which fMRI data was admitted in a criminal case.
"Where does GPS tracking go from here?"This interesting post at FourthAmendment,com comments on an equally interesting post by Orin Kerr at The Volokh Conspiracy on warrantless GPS surveillance.
Levy-Pounds on Impact of War on Drugs on African-American Families
Nekima Levy-Pounds (University of St. Thomas School of Law) has posted Can These Bones Live? A Look at the Impacts of the War on Drugs on Poor African-American Children and Families (Hastings Race & Poverty Law Journal, Forthcoming) on SSRN. Here is the abstract:
It is no secret that there is currently an incarceration crisis in America. A Pew Report issued in February of 2008 proved one of our worst fears, as the United States now has the highest rate of incarceration in the world. In fact, according to the report, one in every one hundred adult Americans is presently incarcerated. One has to look no further than the last twenty years to identify the source of the boom in our nation’s prison population: Namely, the war on drugs.
Of all the communities impacted by the war on drugs, poor African-Americans have arguably experienced the most dramatic and lasting effects of the war. Although African-Americans comprise just 13% of the U.S. population, they are nearly half of those represented in federal and state prisons, largely due to drug-related crime. Notably, a number of incarcerated African-Americans are parents of children under the age of eighteen.
In light of the failure of the war on drugs to achieve its goals of reducing access to and the sale of narcotics in the U.S., one must wonder whether a new strategy for addressing the issue of drug trafficking and improving fragile communities is in order. The purpose of this paper is to increase awareness of the devastating effects of the war on drugs on poor African-American children and families in an effort to advocate for change.
December 14, 2009
Argument Accelerated in Pending "Honest Services" Mail Fraud Case
ScotusBlog reports that the Court has moved up by three weeks (to March 1) the argument in Skilling v. United States, which
is the third case that the Court will be hearing this Term on the “honest services” provision of mail fraud law. The Skilling case, however, raises more directly and pointedly than the other two cases the issue of that law’s constitutionality. The Court had heard the other two cases last week, and at least some Justices seemed strongly interested in the constitutional question.
Today's Criminal Law and Procedure Cert Grants
Three cases were granted today; description of issues comes from ScotusBlog, which also has links to briefs and opinions below:
Carachuri-Rosendo v. Holder: Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
Robertson v. U.S. Ex Rel. Watson: Whether prosecution for criminal contempt of a court created by Congress may be brought by a private individual in her own name
Bellin on Adverse Comment on Trial Silence
Jeffrey Bellin (Southern Methodist Univeresity) has posted Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence (Ohio State Law Journal, forthcoming) on SSRN. Here is the abstract:
The landmark case of Griffin v. California holds that the Fifth Amendment privilege against self-incrimination prohibits a prosecutor from arguing that a defendant's failure to testify supports an inference of guilt. In the four decades since Griffin was decided, this holding has become, in the Supreme Court's words, "an essential feature of our legal tradition," strictly limiting jury argument and instruction in state and federal criminal trials. At the same time, Griffin's doctrinal underpinnings have been strongly criticized by prominent jurists (including three current Supreme Court justices) and commentators. In light of these largely unanswered criticisms, even Griffin's contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.
This article takes up that challenge, relying on a fairness rationale implicit in existing case law to construct a doctrinal defense of a limited Fifth Amendment prohibition of adverse comment on defendant trial silence. The article suggests that in a certain subset of cases, primarily consisting of those cases where a defendant declines to testify to avoid the introduction of a prior criminal record as impeachment, adverse comment on defendant silence so exacerbates the plight of the silent defendant that it rises to the level of compulsion, forbidden by the Fifth Amendment.
The analysis also reveals, however, that in the bulk of cases, a Fifth Amendment-based prohibition of adverse comment is, in fact, indefensible. For many defendants, including most prominently defendants who decline to testify because they fear that the substance of their testimony will support rather than rebut the prosecution's evidence, adverse comment on trial silence constitutes a relatively minor burden. This burden, while not insignificant, simply cannot be analogized to the compulsion to testify that the Fifth Amendment prohibits. The article also notes that many silent defendants remain silent for reasons that are not protected by the Fifth Amendment (e.g., to avoid incriminating a third party). A Fifth Amendment bar to adverse comment on the trial silence of these defendants is also doctrinally indefensible.
Thus, while this article's thesis shores up the uncertain footing of the constitutional prohibition of adverse comment for some silent criminal defendants, it reveals the absence of a coherent rationale for the prohibition with respect to numerous others. The article posits, therefore, that the current Fifth Amendment-based prohibition of adverse comment on defendant silence must be recast in a more narrowly tailored form. The article concludes by suggesting a mechanism by which a properly tailored constitutional prohibition could be implemented.