January 9, 2010
Next Week's Criminal Law and Procedure Arguments
Description of the issue is from ScotusWiki, which also has links to briefs and opinions below:
Monday, Jan. 11
Briscoe v. Virginia (07-11191): If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?
Tuesday, Jan. 12
United States v. Comstock (08-1224): Whether Congress had the constitutional authority to enact 18 U.S.C. 4248, which authorizes court-ordered civil commitment by the federal government of (1) “sexually dangerous” persons who are already in the custody of the Bureau of Prisons, but who are coming to the end of their federal prison sentences, and (2) “sexually dangerous” persons who are in the custody of the Attorney General because they have been found mentally incompetent to stand trial.
January 8, 2010
Today's Criminal Law and Procedure Cert Grant
The case is Dolan v. United States. Here's the issue as described on ScotusBlog, which also includes links to the opinion below and the cert papers: "Whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated."
Don't expect a lot of media inquiries about this one.
Slobogin & Fondacaro on Juvenile Justice
Christopher Slobogin (Vanderbilt University - School of Law; pictured) and Mark R. Fondacaro (University of Florida, Dept of Pysch and Levin College of Law) have posted Juvenile Justice: The Fourth Option (Iowa Law Review, Vol. 95, No. 1, 2009) on SSRN. Here is the abstract:
The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowledge about the causes of juvenile crime and the means of reducing it. But the rehabilitative vision that motivated the progenitors of the juvenile court errs in the other direction, by allowing the state to assert its police power even over those who are innocent of crime. The most popular compromise theory of juvenile justice - which claims that developmental differences between adolescents and adults make the former less blameworthy - is also misguided because it tends to de-emphasize crime-reducing interventions, overstate the degree to which adolescent responsibility is diminished, and play into the hands of those who would abolish the juvenile justice system, since it relies on the same metric - culpability - as the adult criminal justice system. This Article argues that, with some significant adjustments that take new knowledge about the psychological, social, and biological features of adolescence into account, the legal system should continue to maintain a separate juvenile court, but one that is single-mindedly focused on the prevention of criminal behavior rather than retributive punishment.
January 7, 2010
"Polanski Urges Judge to Sentence Him in Absentia"
The New York Times article is here:
The judge, Peter P. Espinoza, received the written request in an afternoon court session here, and scheduled a Jan. 22 hearing to review it.
. . .
In a December ruling, a panel of appellate court justices suggested that Mr. Polanski’s sentencing could occur while he was being held in Switzerland.
. . .
But the appeals court justices also urged the district attorney to conduct an internal review of the misconduct accusations, which, they said, could be serious enough to merit a prosecutor’s motion to end the case.
The justices had also suggested that Mr. Polanski could be sentenced in absentia. If the ultimate sentence were no more severe than the 90-day prison term once considered by the original judge, who has since died, Mr. Polanski might not qualify for extradition from Switzerland under its treaty with the United States, his lawyers have argued.
Juvenile Justice: Passages, Prevention, and InterventionThis conference will be held Feb. 19-20 at the University of Florida. Plenary speakers are Geoffrey Canada, Founder and President, Harlem Children's Zone; and Shay Bilchik, Director, Center for Juvenile Justice Reform, Georgetown University Public Policy Institute, past president and CEO of the Child Welfare League of America. Other speakers and conference details are available at the conference website here.
Thompson on Eyewitness Identification and State Courts
Sandra Guerra Thompson (University of Houston Law Center) has posted Eyewitness Identifications and State Courts as Guardians Against Wrongful Conviction (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
Despite a growing awareness that mistaken eyewitness identifications contribute significantly to wrongful convictions, most courts continue to apply federal due process criteria for admissibility of eyewitness identification that has proved useless in protect against the use of highly unreliable evidence. In response, this Article reviews the path-breaking decisions of several State Supreme Courts that have blazed their own trail. It explores the issues that courts have addressed, the rules they have devised, and the legal grounds for their decisions, and from this, concludes that State Supreme Courts can implement appropriate criteria that would in fact promote accuracy and fairness in the use of eyewitness identification.
Part I briefly outlines and critiques the Supreme Court’s jurisprudence on eyewitness identifications and due process. It treads on ground well-worn by scholars who have for decades decried the Court’s failure to provide a due process test that would protect against the use of unreliable identification evidence. Part II explores the role that State appellate courts can play in developing a jurisprudence of eyewitness identification evidence that meaningfully incorporates social science research and carefully balances the interests of law enforcement and the accused.
Finally, because of the superior role that judges have in protecting both constitutional and civil rights as well as the integrity of the administration of criminal justice, the article concludes that it is incumbent on State Supreme Courts to show leadership in developing solutions to the problems that plague this area . Accordingly, Part III argues that State Supreme Courts are well-suited to take an active part in the “laboratory” model of criminal justice that characterizes our federalist system.
January 6, 2010
DeGirolami on Interdictory Ideas
Marc O. DeGirolami (St. John's University School of Law) has posted The Excitement of Interdictory Ideas: A Response to Professor Anders Walker (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This short piece on the teaching of criminal law responds to Anders Walker's recent article, "The Anti-Case Method: Herbert Wechsler and the Political History of the Criminal Law Course."
Scallen on Confrontation of Children
Eileen A. Scallen (William Mitchell College of Law) has posted Coping with Crawford: Confrontation of Children and Other Challenging Witnesses (William Mitchell Law Review, Vol. 35, No. 4, 2009) on SSRN. Here is the abstract:
In Crawford, Davis, and Hammon, the United States Supreme Court created a serious hurdle in prosecuting certain kinds of crimes, such as domestic violence, elder abuse, and child abuse. Part II of this article briefly describes the Crawford debacle, arguing that its “cure” was worse than the problem it addressed. However, there is no point belaboring the issue because, as the Court appears to be refining its analysis, it shows no sign of taking another dramatic turn in the near future. Consequently, Part III focuses on the most serious problem created under Crawford: the prosecution of crimes involving vulnerable witnesses, particularly crimes of domestic violence, elder abuse, and child abuse. Focusing on the pragmatics of coping with Crawford, this article suggests ways to overcome Crawford’s limitations on admissibility of evidence and ways to exclude evidence that is no longer protected by the Confrontation Clause after Crawford. Investigators and prosecutors spent years drafting policies and procedures to increase the reliability of statements taken from alleged victims of these crimes that were out of court or outside the presence of a criminal defendant. These investigation and interrogation techniques were developed to comply with existing Supreme Court case law and to increase the integrity of the criminal justice system. Today, however, the more structured and careful investigators and prosecutors are in collecting hearsay evidence, the more likely the courts will bar the use of the evidence under the Confrontation Clause, as interpreted in Crawford and its progeny.
January 5, 2010
"Supreme Court case on prosecutorial immunity settled"Jurist has the report here on the settlement in Pottawattamie County v. McGhee.
"Can the Police Now Use Thermal Imaging Devices Without a Warrant? A Reexamination of Kyllo in Light of the Widespread Use of Infrared Temperature Sensors"Orin Kerr has this interesting post at The Volokh Conspiracy: "My bottom line: I’m not really sure, but there is a decent case to be made that the police can now use thermal imaging devices without a warrant consistently with Kyllo."
"DOJ Issues Discovery Guidance for Federal Prosecutors"
From the Blog of Legal Times:
Federal prosecutors today got a roadmap for handling discovery in criminal cases, guidance that stems from the failed prosecution of former Alaska Sen. Ted Stevens last year.
The Justice Department on Jan. 4 issued three memos--including a detailed guidance memo for all federal prosecutors--that set forth the steps the department has taken and will take to ensure that prosecutors assess and meet their obligations when it comes to sharing information with criminal defense lawyers. The memos from Deputy Attorney General David Ogden establish the minimum considerations for prosecutors in every case.
"Wide detention power upheld"
The post is at ScotusBlog. In part:
The D.C. Circuit Court, filling in some of the legal blanks left by the Supreme Court on the president’s power to detain terrorist suspects, on Tuesday upheld the broadest view the government has taken of that authority, and ruled that the power is not limited in any way by international law, including the law of war. Only domestic law controls whom the president may detain, and those home-grown legal concepts sweep widely, the appeals court ruled. Its decision — very likely to be challenged in further appeals – can be read here.
The ruling in Al-Bihani v. Obama (Circuit docket 09-5051) was the first by the Circuit Court to apply the Supreme Court’s 2008 decision in Boumediene v. Bush creating a constitutional right for Guantanamo Bay detainees to challenge their captivity. Unless reviewed and overturned either by the en banc Circuit Court or the Supreme Court, the new decision will control how scores of detainee cases are resolved in District Court in Washington.
Dubber on Treason
Markus D. Dubber (University of Toronto - Faculty of Law) has posted The State as Victim: Treason and the Paradox of American Criminal Law on SSRN. Here is the abstract:
The American law of treason has remained unchanged since the Founding Era of the New Republic. The Founding Era's conception of treason itself did not significantly revise that reflected in the English Treason Act of 1351. Treason always was, and in US law remains to this day, the breach of the duty of allegiance that the subject owes the sovereign, any sovereign.
What's more, treason is paradigmatic of American criminal law because it is both the ultimate victimless and the ultimate victimful crime. Treason is victimful because it is the offense most directly aimed at the authority of the state, and the state, as the abstract holder of amorphous sovereignty, is the ultimate victim of crime conceptualized as an offense against the sovereign. At the same time, treason is the ultimate victimless offense because it is explicitly not aimed at a particular person (say, the English king) and, more fundamentally, because the very existence of the state, and of the sovereignty it wields, is denied.
In other words, as both victimless and victimful, treason highlights the central paradox at the heart of American criminal law. The state, and its sovereignty, are both nowhere and everywhere, and so is treason, as the ultimate offense against the state as sovereign.
January 4, 2010
"Group Gives Up Death Penalty Work in Frustration"
Adam Liptak's column addressing the American Law Institute's stance is in the New York Times. In part:
Some supporters of the death penalty said they welcomed the institute’s move. Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”
Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.
But opponents of the death penalty said the institute’s move represents a turning point.
“It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said. “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”
Barkow on Organizational Guidelines for the Prosecutor's Office
Robinson on Offense Grading
January 3, 2010
Top-Ten Recent SSRN Downloads
|1||323||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 [2nd last week]
|2||212||How Movies Created the Financial Crisis |
Larry E. Ribstein,
University of Illinois College of Law,
Date posted to database: November 3, 2009 [9th last week]
|3||187||Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 |
Mary Ellen O'Connell,
Notre Dame Law School ,
Date posted to database: November 6, 2009
|4||177||Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al |
David B. Kopel,
Date posted to database: November 22, 2009
|5||150||Two Ways to Think About the Punishment of Corporations |
Albert W. Alschuler,
Northwestern University - School of Law,
Date posted to database: October 22, 2009 [6th last week]
|6||79||The Dog that Didn't Bark: Stealth Procedures and the Erosion of Stare Decisis in the Federal Courts of Appeals |
Amy E. Sloan,
University of Baltimore - School of Law,
Date posted to database: November 14, 2009 [new to top ten]
|7||77||Towards a More Reasonable Approach to Free Will in Criminal Law |
Stephen T. O'Hanlon,
Date posted to database: November 4, 2009 [new to top ten]
|8||76||Secret Evidence and the Due Process of Terrorist Detentions |
Daphne Barak-Erez, Matthew C. Waxman,
Tel Aviv University - Buchmann Faculty of Law, Columbia Law School,
Date posted to database: November 24, 2009 [new to top ten]
|9||72||Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders |
Stuart P. Green,
Rutgers Law School-Newark,
Date posted to database: November 24, 2009 [new to top ten]
|10||63||Evidence Theory and the NAS Report on Forensic Science |
Michael S. Pardo,
University of Alabama School of Law,
Date posted to database: November 23, 2009 [new to top ten]