June 12, 2010
Newton on Reprisals
The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital “bulwark against barbarity.” In the words of the International Committee of the Red Cross, the prohibition is “absolute”, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of state practice, though conducted under varying legal rubrics and shifting rationales. Reasonable reprisals grounded on an empirical assessment of their deterrent value or framed as appropriate punishment for prior acts of terror may be the most morally acceptable and humane strategy for serving a strategic imperative of civilized society. Limited reprisals may in practice be essential to counteract the growing threat of transnational terrorists. Reasonable reprisals may represent the best long term way to erode support for those who would mobilize terrorist actors to willfully ignore the rules protecting innocent civilians thereby violating the most basic human rights of their victims. This is especially true if nations create clear lines of agreed legal authorities supported by independent adjudication of the motives and methods employed in such reprisals. Peace-loving states should seek common ground to enhance efforts to protect innocent citizens from the effects of terrorist violence. Thoughtful and multilateral reassessment of the lawful scope and rationale for reasonable reprisals is overdue.
June 11, 2010
Ninth Circuit issues split decision in Barry Bonds steroids/perjury caseThe opinion is here. The New York Times article is here.
"Rehnquist Was Asked to Review Wiretapping Program"
The story is in the New York Times:
WASHINGTON — The legal battle over the Bush administration’s program of eavesdropping without warrants has never reached the Supreme Court. But it may have come closer than previously known, as a result of an approach to Chief Justice William H. Rehnquist prompted by National Security Agency employees who believed the program violated the law.
Within months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting, according to several people familiar with the episode.
. . . .
There was no response, and it is not known whether the letter was seen by the chief justice or prompted him to make inquiries.
June 10, 2010
"DAs for Cal. AG"Kent Scheidegger at Crime and Consequences has this post about the winners of yesterday's primaries for the Republican and Democratic nominations for A.G. Both candidates have been criticized--the Republican for his lack of enthusiasm for the three-strikes law, and the Democrat for her refusal to seek the death penalty.
Dempsey on Negligence Liability
This short essay critiques Larry Alexander and Kim Ferzan’s argument against negligence liability, focusing in particular on the authors’ characterization of the object of criminal responsibility (i.e., that for which an actor is held criminally responsible) and the impact this (mis)characterization has on our intuitions regarding negligence liability.
June 9, 2010
Mason on Pedophilia and Hate Crimes
Gail Mason (University of Sydney - Faculty of Law) has posted Prejudice and Paedophilia in Hate Crime Laws: Dunn v. R (Alternative Law Journal, Vol. 34, No. 4, pp. 253-256, 2009) on SSRN. Here is the abstract:
This article considers the recent case of Dunn v R where it was decided by the NSW Supreme Court that sentence aggravation provisions for ‘hate crimes’ apply to paedophiles. This controversial decision is analysed against the backdrop of hate crime laws in Australian jurisdictions. The author argues that the decision in Dunn does little to further the social justice ideals of hate crime laws as a whole.
Frase on Sentencing and Comparative Theory
Richard S. Frase (University of Minnesota Law School) has posted Sentencing and Comparative Theory (CRIME, PROCEDURE AND EVIDENCE IN A COMPARATIVE AND INTERNATIONAL CONTEXT: ESSAYS IN HONOUR OF PROFESSOR MIRJAN DAMASKA, Chapter 18, John Jackson, Máximo Langer, Peter Tillers, eds., Hart Publishing, 2008) on SSRN. Here is the abstract:
Mirjan Damaska and other comparative criminal justice theorists have given very little attention to how comparative law models and theories might apply to sentencing. Although numerous scholars have studied the differences in sentencing alternatives and overall punishment severity across national boundaries, almost none have linked these differences to the models and theories used to describe, explain, and predict changes in criminal pretrial and guilt-determination procedures. In the United States there have been significant recent changes in sentencing goals and procedures, in particular: 1) retributive and public safety goals have been given increased emphasis, while rehabilitation has been de-emphasized; 2) many U.S. jurisdictions now use some form of sentencing guidelines; 3) almost all jurisdictions apply mandatory or mandatory-minimum sentences to certain offenders; 4) the U.S. Supreme Court has held that certain facts permitting sentence-enhancement may no longer be informally determined by the trial judge at the sentencing hearing, but must be submitted to the jury and proven beyond a reasonable doubt; and 5) overall sentencing severity (as measured, for example, by prison populations relative to resident population and relative to criminal caseloads) has risen substantially in almost all U.S. jurisdictions. Do comparative law models help to explain any of these changes? This essay considers whether Damaska’s theories, some variation on his theories, or alternative comparative law theories might help to explain cross-national variations (as well as within-nation variations, across states and other jurisdictions) in sentencing goals, procedures, alternatives, and outcomes.
June 8, 2010
Robbins on Ghostwriting for Pro Se Prisoners
Ira P. Robbins (American University - Washington College of Law) has posted Ghostwriting: Filling in the Gaps of Pro Se Prisoners' Access to the Courts (Georgetown Journal of Legal Ethics, Vol. 23, No. 2, pp. 271-321, 2010) on SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them - that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation - or “unbundled legal services” - is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. Nevertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take - i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance - and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Chin, Hessick, Massaro, and Miller on Arizona's Immigration Law
Gabriel J. Chin (pictured left), Carissa Byrne Hessick (pictured right), Toni M. Massaro and Marc L. Miller (University of Arizona James E. Rogers College of Law , Arizona State, Sandra Day O'Connor College of Law , University of Arizona College of Law and University of Arizona - James E. Rogers College of Law) have posted Arizona Senate Bill 1070: A Preliminary Report on SSRN. Here is the abstract:
This paper explores SB 1070, the 2010 Arizona law creating several new immigration-related crimes in the Arizona code and imposing a set of duties on Arizona law enforcement agencies and officers, some enforceable by private suit. We lay out the main features of the statute, show how they fit in to current Arizona and federal law, and are in many respects novel. We also explore some of the interpretive and constitutional issues presented by particular sections of the law.
We emphasize that our views are necessarily preliminary. To understand this bill requires the expertise of one half of a law school faculty, since issues arise about both structural and substantive constitutional law, immigration law, criminal law, criminal procedure, state and local government law, and other fields. Further, SB 1070 includes many provisions whose interpretation is open to a range of interpretations. Accordingly, we invite comments and rejoinders to this analysis.
June 7, 2010
Court certifies question on sex offender statute to Montana Supreme Court
The per curiam opinion in United States v. Juvenile Male is here. The certified question:
Is respondent’s duty to remain registered as a sex offender under Montana law contingent upon the validity of the conditions of his now-expired federal juvenile-supervision order that required him to register as a sex offender, see Mont. Code Ann. §§46–23–502(6)(b), 41–5–1513(1)(c) (2005); State v. Villanueva, 328 Mont. 135, 138–140, 118 P. 3d 179, 181–182 (2005); see also §46–23–502(9)(b) (2009), or is the duty an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions, see §46–23–502(10) (2009); 2007 Mont. Laws ch. 483, §31, p. 2185?
The opinion states that the Montana court's answer "will help determine whether this case presents a live case or controversy, and there is no controlling appellate decision, constitutional provision, or statute on point."
Opinion on calculation of good-time credits
Barber v. Thomas is here. Here is the syllabus:
The federal sentencing statute at issue provides that a “prisoner . . . serving a term of imprisonment of more than 1 year . . . may receive credit toward the service of [that] sentence . . . of up to 54 days at the end of each year” subject to the Bureau of Prison’s (BOP) “determination . . . that, during that year, the prisoner” has behaved in an exemplary fashion. 18 U. S. C. §3624(b)(1). Credit “for the last year or portion of a year of the term of imprisonment [is] prorated . . . .” Ibid. The BOP applies this statute using a methodology that awards 54 days of credit at the end of each year the prisoner serves and sets those days to the side. When the difference between the time remaining in the sentence and the amount of accumulated credit is less than one year, the BOP awards a prorated amount of credit for that final year proportional to the awards in other years.
Petitioners claim that the BOP’s calculation method is unlawful because §3624(b)(1) requires a calculation based on the length of the term of imprisonment imposed by the sentencing judge, not the length of time that the prisoner actually serves. The District Court rejected this challenge in each of petitioner’s cases, and the Ninth Circuit affirmed.
Held: Because the BOP’s method for calculating good time credit reflects the most natural reading of the statute, it is lawful. Pp. 5–17.
(a) The statute’s language and purpose, taken together, support the BOP’s method. That method tracks §3624(b)’s language by providing a prisoner a maximum credit of 54 days for each full year of imprisonment and a proportionally adjusted amount of credit for any additional time served that is less than a full year. As §3624(b) directs, the BOP awards the credit “at the end of each year” of imprisonment. Petitioners’ approach cannot be reconciled with the statute. Because it awards credit for the sentence imposed, regardless of how much time is actually served, a prisoner could receive credit for a year that he does not spend in prison. Moreover the calculation of credit for such a year would not be made “at the end of” that year. Nor could the BOP determine whether the prisoner had exemplary behavior “during that year.” This language did not find its way into the statute by accident. The differences between the prior provision (repealed in 1984)—which granted the prisoner a deduction at the outset of his sentence, subject to forfeiture for breaking prison rules—and the present statute—under which “credit” is “earned” “at the end of” the year based on an evaluation of behavior “during that year”—show an intent to move from a prospective entitlement to a retrospective award. The BOP’s method also furthers the basic purpose of the statute. Section 3624 was part of the comprehensive Sentencing Reform Act of 1984, which sought to achieve both increased sentencing uniformity and greater honesty by “mak[ing] all sentences basically determinate.” Mistretta v. United States, 488 U. S. 361, 367. Thereafter, the sentence the judge imposed would be the one the offender actually served, with a sole statutory exception for good time credits. Ibid. Section 3624(b) states the reason for the exception: to provide an incentive for prisoners to “compl[y] with institutional disciplinary regulations.” The exception is limited and tailored to its purpose—credit is earned at the end of the year after compliance with institutional rules is demonstrated and thereby rewards and reinforces a readily identifiable period of good behavior. The BOP’s approach furthers §3624’s objectives by tying the award directly to good behavior during the preceding year. In contrast, petitioners’ approach would allow a prisoner to earn credit for both the portion of his sentence that he served and the portion offset with earned credit, which would loosen the statute’s connection between good behavior and the good time award. Pp. 5–8.
(b) Arguments to the contrary are unconvincing. Context indicates that the phrase “term of imprisonment” as used in the portion of §3624(b) at issue here refers to prison time actually served not, as petitioners contend, to the sentence imposed by the judge. Petitioners’ reliance on legislative history is misplaced. A U. S. Sentencing Commission Supplementary Report is not helpful to them either, because there is no indication that the Commission, in that report or in the Guidelines themselves, considered or referred to the particular question whether to base good time credit on time served or the sentence imposed. Nor, in light of the statute’s text, structure, history, and purpose, is this a case in which there is a “grievous ambiguity or uncertainty in the statute,” Muscarello v. United States, 524 U. S. 125, 139, permitting application of the rule of lenity. Because the BOP’s calculation system applies the statute as its language is most naturally read, and in accordance with the statute’s basic purpose, this Court need not determine the extent to which Congress has granted the BOP authority to interpret the statute more broadly, or differently than it has done here. Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844–845. And because the BOP’s approach reflects the statute’s most natural reading and is the most consistent with its purpose, it is also preferable to the dissent’s alternative interpretation. Pp. 8–17.
BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, ALITO, and SOTOMAYOR, JJ., joined. KENNEDY, J., filed a dissenting opinion in which STEVENS and GINSBURG, JJ., joined.