Saturday, June 19, 2010
The story is in the New York Times:
PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.
. . . .
Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.
Friday, June 18, 2010
City Limits has this op-ed by Eric Deadwiley, which begins as follows:
The powers that be are trying to make some sense of the extremely high unemployment rates blacks have here in New York State and across the country. Civil rights leaders recently met with President Obama to discuss his jobs agenda, and to suggest that he use “targeted measures” to combat joblessness in communities of color. There have been panel-discussions, forums and lectures from some of the premier thinkers and educators this country has to offer.
Yet, with all of these great minds discussing black unemployment, only a few key organizations have considered how the high conviction and incarceration rates of blacks relate to high unemployment. Every state in this country has laws which restrict or prevent ex-offenders from enjoying the same rights and privileges other citizens enjoy.
Barbara Fedders (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Losing Hold of the Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency Representation (Lewis & Clark Law Review, Vol. 14, p. 771, 2010) on SSRN. Here is the abstract:
Lawyers for children in juvenile delinquency proceedings frequently provide their clients deficient representation. In addition to failing to investigate the facts of a case and research the applicable law, they ignore relevant ethical mandates and fail to address the demands created by the unique characteristics of children. The widespread nature of substandard legal representation, combined with delinquent adjudications' serious and long-term consequences, makes it imperative that juveniles harmed by deficient legal representation have access to some form of legal redress. Yet, at present, no such remedy exists. A child who is adjudicated delinquent can theoretically bring a claim of ineffective assistance of counsel (IAC), which, if granted, results in a new adjudicatory or dispositional hearing or a plea withdrawal. In practice, however, systemic and doctrinal barriers prevent children from filing IAC claims and from receiving appellate review of those claims. As a recent survey of IAC claims in delinquency cases suggests, children file these claims in an extremely small number of cases. Moreover, courts almost never grant relief on the basis of these claims. This form of appellate review fails to provide meaningful remedies to the large number of children harmed by substandard legal representation. Although commentators have explored this problem in the context of adult criminal defendants, this Article is among the first to examine the inadequacy of the IAC remedy for juveniles. It traces the history of the grant of the right to counsel to juveniles; analyzes substandard representation's nature, causes, and extent; details systemic and doctrinal barriers facing juveniles who wish to file IAC claims; and offers preliminary proposals for reform.
Thursday, June 17, 2010
Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
City of Ontario v. Quon is here. Here is the syllabus:
Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD’s chief, sought to determine whether the existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon’s and another employee’s August and September 2002 text messages, it was discovered that many of Quon’s messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD’s internal affairs division. The investigating officer used Quon’s work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules.
He and the other respondents—each of whom had exchanged text messages with Quon during August and September—filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon’s pager messages, and that Arch Wireless violated the SCA by giving the City the transcript.The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O’Connor v. Ortega, 480 U. S. 709, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden work-related costs. After the jury concluded that Scharf’s intent was legitimate, the court granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript.
Dillon v. United States is here. Here is the syllabus:
In 1993, petitioner Dillon was convicted of, inter alia, crack and powder cocaine offenses, which produced a base offense level of 38 and a Guidelines range of 262-to-327 months’ imprisonment. The court sentenced him at the bottom of the range for those counts. After the Sentencing Commission amended the Guidelines to reduce the base offense level associated with each quantity of crack cocaine, USSG Supp. App. C, Amdt. 706, and made that amendment retroactive, USSG Supp. App. C, Amdt. 713, Dillon moved for a sentence reduction under 18 U. S. C. §3582(c)(2). That provision authorizes a district court to reduce an otherwise final sentence pursuant to a Guidelines amendment if a reduction is consistent with the Commission’s policy statements. The relevant policy statement, USSG§1B1.10, precludes a court from reducing a sentence “to a term that is less than the minimum of the amended guidelines range” except in limited circumstances. In addition to the two-level reduction authorized by the amendment, Dillon sought a variance below the amended Guidelines range, contending that United States v. Booker, 543 U. S. 220, authorized the exercise of such discretion. The District Court imposed a sentence at the bottom of the revised range but declined to grant a further reduction. Finding Booker inapplicable to §3582(c)(2)proceedings, the court concluded that the Commission’s directives in §1B1.10 constrained it to impose a sentence within the amended Guidelines range. The Third Circuit affirmed.
Held: Booker’s holdings do not apply to §3582(c)(2) proceedings and therefore do not require treating §1B1.10(b) as advisory. Pp. 6–14.
Wednesday, June 16, 2010
Wayne McCormack (University of Utah - S.J. Quinney College of Law) has posted Prosecuting Terrorism - Models for Confronting Organized Violence on SSRN. Here is the abstract:
This article reviews application of the two existing paradigms of law and crime to international terrorism. Terrorism is not an entity with which the model of war makes sense, and ordinary crime is not an adequate model for addressing the problem. Rather than contorting the traditions of either existing paradigm, it would be better to recognize the applicability of a third paradigm that has been applied successfully to piracy and slavery - the model of crimes erga omens under jus cogens which can be supported by military operations other than war (MOOTW). There is already the emerging supra-state body of international humanitarian law (IHL) to address offenses that are characterized by ongoing violence against civilians that is "widespread or systematic."
A valuable corollary is the US experience with racial terrorism and the so-called KKK statutes. The reason for supra-state intervention by international organizations into the affairs of a nation-state is the same as the reason for supra-state intervention by the U.S. federal government into the affairs of a U.S. state. It is the presence of an organization (whether recognized as the state or not) with sufficient resources to carry out violent actions against a civilian population without the state’s being willing or able to control it. This is the identical problem with terrorism today.
This realization feeds into the need for recognition of an international norm of counter-terrorism in which "widespread or systematic" attacks on civilians can be addressed by any nation with use of MOOTW. The model avoids most, but not all, of the confusion and problems that have surrounded the concept of "enemy combatant" in recent U.S. initiatives. Some of the problems not addressed are what to do with tortured miscreants such as KSM and how to address targeted killings – those are to be resolved by other analysis suggested at the end of this article.
Tuesday, June 15, 2010
Adam Liptak's column in the New York Times is here. In part:
Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed.
But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.
Monday, June 14, 2010
Issue summaries are from ScotusBlog, which also links to briefs and opinions below. In the second case listed, the Court postponed further consideration of the jurisdictional question to the hearing of the case on the merits.
- Cullen v. Pinholster: (1) Whether it is appropriate under § 2254 for a federal court to conclude that a state court’s rejection of a claim was unreasonable in light of facts that an applicant could have but never alleged in state court; and (2) what standard of review is applicable to claims of ineffective assistance of counsel.
- Schwarzenegger v. Plata: (1) Whether the three-judge court below properly determined that crowding was the “primary cause” of continuing violations of prisoners’ constitutional rights to adequate health care, and that no remedy existed other than issuance of a Prisoner Release Order pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626; (2) whether the system-wide Prisoner Release Orders issued by the three-judge court are “narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [are] the least intrusive means necessary to correct the violation of the Federal right” in compliance with the PLRA, 18 U.S.C. § 3626(a)(1)(A); and (3) whether the same court properly gave ”substantial weight to any adverse impact on public safety or the operation of a criminal justice system” in ordering a reduction in population of approximately 46,000 inmates.
Holland v. Florida is here. Here is the syllabus:
Petitioner Holland was convicted of first-degree murder and sentenced to death in Florida state court. After the State Supreme Court affirmed on direct appeal and denied collateral relief, Holland filed a pro se federal habeas corpus petition, which was approximately five weeks late under the 1-year statute of limitations set forth in the An-titerrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(d). The record facts reveal, inter alia, that Holland’s court-appointed attorney, Bradley Collins, had failed to file a timely federal petition, despite Holland’s many letters emphasizing the importance of doing so; that Collins apparently did not do the research necessary to find out the proper filing date, despite the fact that Holland had identified the applicable legal rules for him; that Collins failed to inform Holland in a timely manner that the State Supreme Court had decided his case, despite Holland’s many pleas for that information; and that Collins failed to communicate with Holland over a period of years, despite Holland’s pleas for responses to his letters. Meanwhile, Holland repeatedly requested that the state courts and the Florida bar remove Collins from his case. Based on these and other record facts, Holland asked the Federal District Court to toll the AEDPA limitations period for equitable reasons. It refused, holding that he had not demonstrated the due diligence necessary to invoke equitable tolling. Affirming, the Eleventh Circuit held that, regardless of diligence, Holland’s case did not constitute “extraordinary circumstances.” Specifically, it held that when a petitioner seeks to excuse a late filing based on his attorney’s unprofessional conduct, that conduct, even if grossly negligent, cannot justify equitable tolling absent proof of bad faith, dishonesty, divided loyalty, mental impairment, or the like.
Dolan v. United States is here. Here is the syllabus:
Petitioner Dolan pleaded guilty to assault resulting in serious bodily injury and entered into a plea agreement, which stated that the District Court could order restitution for his victim. Dolan’s presentence report also noted that restitution was required, but did not recommend an amount because of a lack of information on hospital costs and lost wages. The Mandatory Victims Restitution Act provides that “if the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing,” the court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.” 18 U. S. C. §3664(d)(5). On July 30, the District Court held a sentencing hearing and imposed a sentence of imprisonment and supervised release. On August 8, the court entered a judgment, stating that restitution was “applicable” but leaving open the amount of restitution given that no information had yet “been received regarding possible restitution payments.” On October 5, 67 days later, an addendum documenting the restitution amount was added to the pre-sentence report. The court did not set a hearing until February 4, about three months after the 90-day deadline had expired. At the hearing, Dolan argued that because that deadline had passed, the law no longer authorized restitution. Disagreeing, the court ordered restitution, and the Tenth Circuit affirmed.
Held: A sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution—at least where, as here, that court made clear prior to the deadline’s expiration that it would order restitution, leaving open (for more than 90 days) only the amount. Pp. 3–15.
Sunday, June 13, 2010
|1||358||Disentangling Child Pornography from Child Sex Abuse |
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010
|2||279||Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction |
Margaret Colgate Love, Gabriel J. Chin,
Law Office of Margaret Love, University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2010
|3||224||Vigilante Justice: Prosecutor Misconduct in Capital Cases |
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010
|4||215||Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law |
Georgetown University - Law Center,
Date posted to database: March 23, 2010
|5||178||Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency |
DePaul University - College of Law,
Date posted to database: March 28, 2010
|6||161||Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws |
University of South Carolina - School of Law,
Date posted to database: April 5, 2010
|7||154||Two Kinds of Retributivism |
Mitchell N. Berman,
University of Texas School of Law,
Date posted to database: April 20, 2010
|8||139||The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants |
Adam M. Gershowitz, Laura Killinger,
University of Houston Law Center, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: April 5, 2010
|9||113||Changing the Sentence Without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release |
Cecelia M. Klingele,
University of Wisconsin Law School,
Date posted to database: March 22, 2010
|10||110||The Swan Song of Universal Jurisdiction in Spain |
Ignacio de la Rasilla del Moral,
Watson Institute for International Studies, Brown University,
Date posted to database: April 16, 2010