August 7, 2010
Stubbs on Restorative Justice and Domestic Violence
Julie Stubbs (University of NSW - Faculty of Law) has posted Relations of Domination and Subordination: Challenges for Restorative Justice in Responding to Domestic Violence on SSRN. Here is the abstract:
Restorative Justice (RJ) is often promoted as a response to the failings and limitations of conventional criminal justice. Within conventional criminal justice the parties are seen to have competing and probably irreconcilable differences, and criminal justice processes offer obstacles to effective communication. The open, discursive character of restorative justice offers new opportunities for dialogue between the parties and the potential for reparation. Story telling is said to be central to RJ, but also carries risks. Whose stories will prevail? What are the consequences of the ‘wrong story’ or a story that is not well received? Non-domination is said to be a core value of RJ, but if we acknowledge that asymmetrical social relations position people differently, what are the implications for restorative encounters? In this paper I examine these issues through the lens of gendered violence with particular reference to domestic violence and sexual assault as a means of displacing the approach common in much Restorative Justice literature of working with an undifferentiated concept of victim (and offender).
"CIA removed terror suspects from Guantanamo to avoid due process: AP"
WASHINGTON — Four of the nation's most highly valued terrorist prisoners were secretly moved to Guantanamo Bay, Cuba, in 2003, years earlier than has been disclosed, then whisked back into overseas prisons before the Supreme Court could give them access to lawyers, The Associated Press has learned.
The transfer allowed the U.S. to interrogate the detainees in CIA "black sites" for two more years without allowing them to speak with attorneys or human rights observers or challenge their detention in U.S. courts.
August 6, 2010
Borgers & Stevens on the Use of Illegally Gathered Evidence in the Dutch Criminal Trial
Matthias J. Borgers and Lonneke Stevens (VU University Amsterdam and VU University Amsterdam) have posted The Use of Illegally Gathered Evidence in the Dutch Criminal Trial on SSRN. Here is the abstract:
This report, written for the the XVIIIth International Congress of Comparative Law, gives an overview of the way in which the Dutch law of criminal procedure deals with illegally gathered evidence, in particular when the suspect’s right to privacy or right to voluntary statement is violated.
Beale on Ewing v. California
Sara Sun Beale (Duke University - School of Law) has posted The Story of Ewing V. California: Three Strikes Laws and the Limits of the Eighth Amendment Proportionality Review (CRIMINAL LAW STORIES, Donna Coker, Robert Weisberg, eds., Foundation Press, Forthcoming) on SSRN. Here is the abstract:
In 1994 California enacted the nation's harshest "three strikes" law. Under this law, any felony can serve as a third strike, and conviction of a third strike requires a mandatory prison sentence of 25 years to life. In Ewing v. California, 538 U.S. 11 (2003), the Supreme Court held that sending a drug addict who shoplifted three golf clubs to prison for 25 years to life under the three strikes law did not violate the cruel and unusual punishment clause of the Eighth Amendment.
The chapter for the forthcoming Criminal Law Stories tells the story of the Ewing case, describing Gary Ewing’s life, the crime that became his third strike, and each stage of his case. It describes all of the players and brings to life the oral argument and the Supreme Court’s opinion.
This chapter also explores three questions: First, why did California law impose such a draconian sentence for such a minor offense? The chapter tells the story of the voter initiative that enacted the three strikes laws, the unsuccessful efforts to amend the law, and it describes the way the law has been enforced by California’s elected district attorneys and construed by its courts. Second, why wasn't such a sentence prohibited by the cruel and unusual punishment clause? The chapter reviews the Supreme Court’s prior Eighth Amendment cases and analyzes the majority and dissenting opinions in Ewing. The chapter concludes with a discussion of the question what limits -- if any -- the Eighth Amendment imposes on the state's authority to replace policies based on rehabilitation, retribution, and individualized sentencing with a policy that seeks to protect society by incapacitating recidivists.
August 5, 2010
"England has worse crime rate than the US, says Civitas study"
England and Wales has one of the worst crime rates among developed nations for rapes, burglaries and robberies, a major report has found.
However, offenders are locked up for shorter periods than in comparable countries - raising questions about claims made by Ken Clarke, the Justice Secretary, that too many criminals were being jailed.
"Defense Lawyers in Rubashkin Case Question Federal Judge's Ties to Prosecution"
From the BLT:
“The government’s own memoranda show that more than six months before the raid, Judge Linda Reade began a series of meetings in which she collaborated with the law-enforcement team that prosecuted the case against Sholom Rubashkin,” Lewin, lead appellate counsel for Rubashkin, said in a statement. “Without disclosing to defense counsel her meetings with the U.S. attorney and the support she expressed for the raid, she presided at Mr. Rubashkin's trial, and then immediately had him imprisoned, and sentenced him to two years more in prison than the prosecution requested.”
Lee on Reasonable Provocation and Self Defense
Cynthia Lee (George Washington University Law School) has posted Reasonable Provocation and Self-Defense: Recognizing the Disctincton between Act Reasonableness and Emotion Reasonableness (CRIMINAL LAW CONVERSATIONS, Paul H. Robinson, Stephen Garvey, Kimberly Ferzan, eds., Oxford University Press, 2009) on SSRN. Here is the abstract:
This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness while the majority of states require only emotion reasonableness. I explore possible reasons for the reluctance to require act reasonableness. I then offer a different way to understand act reasonableness. Under my suggested reform, the reasonableness of the provoked defendant’s action would depend on the type of force and degree of force he used in relation to the triggering provocation. In other words, act reasonableness would entail a kind of proportionality review. Proportionality, however, would not mean that the provoked defendant would have to respond with force equal to the force used by the provoker. The defendant’s act would just need to be seen by the jury as commensurate with the wrong inflicted by the provoking party.
In Part II, I examine the doctrine of self-defense. A similar distinction between emotion reasonableness and act reasonableness exists in the self-defense arena. Even though act reasonableness is implied in self-defense doctrine’s proportionality requirement, jury instructions on self-defense tend to focus only on emotion (or belief) reasonableness. Jurors are instructed to find that the defendant reasonably believed (or reasonably feared) deadly force was necessary to counter an imminent threat of death or grievous bodily injury. Jurors are not instructed to separately find that the defendant’s act of shooting or stabbing or beating the victim was reasonable. I argue that self-defense doctrine should make explicit that which is implicit. Jurors should be instructed to find not only that the defendant reasonably believed deadly force was necessary to counter an imminent threat of death or grievous bodily injury, but also that the defendant’s acts were reasonably proportionate to the threatened harm.
In Part III, I conclude that my proposal for reform of the doctrine of self-defense is not a radical reform. My proposal with regard to self-defense merely makes explicit that which is implicit. In contrast, my proposal for reform of provocation doctrine constitutes a substantial departure from current practice in most jurisdictions. I argue that this departure is worthwhile because the provoked killer has taken a human life and therefore deserves heightened scrutiny of the reasonableness of his actions.
August 4, 2010
Hylton on Property Rules, Liability Rules, and Criminal Law
Keith N. Hylton (Boston University) has posted Some Notes on Property Rules, Liability Rules, and Criminal Law (RESEARCH HANDBOOK ON THE ECONOMICS OF CRIMINAL LAW, A. Harel, K. Hylton, eds., Edward Elgar, 2011) on SSRN. Here is the abstract:
The property-liability rules framework, which offers a robust positive theory of criminal law, has come under attack in recent years. One critique, which I label the Indifference Proposition, argues that property rules and liability rules are equivalent in low transaction cost settings. In this paper I examine the conditions under which the Indifference Proposition is valid. In several plausible low transaction-cost settings the proposition is not valid.
"Treasury Department to issue license for terror suspect defense"Jurist has this update on the challenge to the federal law requiring a special license to provide legal services to "Specially Designated Terrorists."
Jurisdictional Limits to Affirmative Duties?
Does a 911 operator have affirmative duties? Do they extand beyond the operator's jurisdiction? Does it matter if the operator is mistaken? All suggested by the following from the Lorenzen Wright case, as reported in the San Diego Union-Tribune:
Police dispatchers didn’t alert patrol officers or commanders to a 911 call from the phone of former NBA player Lorenzen Wright because they couldn’t confirm that it came from inside their suburban Memphis jurisdiction, documents show.
August 3, 2010
Chin & Miller on State Regulation of Immigration through Criminal Law
Gabriel J. Chin and Marc L. Miller (pictured, lower right) (both of University of Arizona James E. Rogers College of Law) have posted Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law on SSRN. Here is the abstract:
While the Supreme Court has held that regulation of immigration is an exclusively federal power, some claim that pursuant to “cooperative enforcement”, states can enact statutes that are “mirror images” of federal criminal immigration laws. This theory, that federal criminalization enhances state power to enact consistent laws, led to Arizona’s SB1070 as well as legislation in several other states. Through cooperative enforcement measures, it is proposed, states can create regimes encouraging undocumented non-citizens to self-deport under threat of prosecution.
This paper contends that the mirror image theory, pioneered by Professor Kris Kobach, is doubtful, by exploring some points not yet fully ventilated in the SB1070 litigation. First, the mirror image theory extrapolates from case law allowing states to enforce federal law in the sense of permitting arrests by local police for federal crimes. But power to arrest does not imply power to try or criminalize. Second, the theory builds on the observation that the Immigration and Nationality Act (“INA”) includes a role for state law enforcement. However, the INA permits only local action that is preliminary, in the form of arrests or information sharing (which leave decision-making in federal hands) or is supervised and controlled by federal agencies.
This paper also focuses on the criminal nature of the statutes created under the mirror image theory. While cooperative enforcement may make sense in the civil arena, since the Judiciary Act of 1789, Congress has granted federal criminal jurisdiction to federal courts, “exclusively of the courts of the several States.” While of course state legislatures often have concurrent criminal jurisdiction over particular matters, there are also areas of exclusive federal criminal jurisdiction. The Court has held that if “an offense against the public justice of the United States” it is “within the exclusive jurisdiction of the Courts of the United States” even if a state statute seems to cover the misconduct. The Constitution’s assignment to the federal political branches of exclusive federal power to regulate immigration, coupled with the INA’s grants of administrative discretion and regulatory authority to the Secretary of Homeland Security and Attorney General but not the states, leave little room for the proposition that authority to prosecute, “an exercise of the sovereign power of the United States” has somehow been delegated to the states sub silentio.
"Passage of Fair Sentencing Act no guarantee of change"
Jurist has this commentary by Eric Sterling, President of The Criminal Justice Policy Foundation. In part:
For this long-awaited Act to be meaningful, we must see something in the U.S. Attorneys Manual or a memorandum from the Attorney General to the U.S. Attorneys that will change the practices of federal agents and prosecutors in choosing defendants and cases to investigate. My fear is that there will be no change. I believe informants -- those cutting deals and the paid professionals -- will simply change their stories about the quantities that were involved. Or perhaps agents will simply direct that there be another controlled buy or two. The egregious racial disparity among defendants will not change unless Justice changes its policies. We will not know if this law has any positive effect until the U.S. Sentencing Commission issues its FY 2011 report federal sentences.
August 2, 2010
Leo & Koenig on Gatehouses and Mansions Revisited
Richard A. Leo (pictured) and Alexa Koenig (University of San Francisco - School of Law and University of California, Berkeley - Jurisprudence and Social Policy Program) have posted The Gatehouses and Mansions: 50 Years Later (The Annual Review of Law and Social Science, Vol. 6, pp 19.1-19.17, 2010) on SSRN. Here is the abstract:
In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that would come to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court’s most important criminal-procedure decisions” (White 2003-04), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50 years of legal developments and social science research.
"A must-read take on American justice courtesy of now-free Lord Conrad Black"
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years.
"France ruling expands legal protections for persons held in police custody"Jurist has the story. The Constitutional Council ruled "that French police may no longer hold suspects for 48 hours without telling them their rights or bringing charges."
August 1, 2010
Roach on Prosecutorial Independence and Accountability in Terrorism Prosecutions
Kent Roach (University of Toronto - Faculty of Law) has posted Prosecutorial Independence and Accountability in Terrorism Prosecutions (Criminal Law Quarterly, Vol. 55, pp. 486-507, 2010) on SSRN. Here is the abstract:
The convention that the Attorney General should be independent from Cabinet when making prosecutorial decisions is particularly strong in Canada and has in recent years been recognized by the Supreme Court of Canada as a constitutional principle. Some of the important issues and dilemmas of prosecutorial independence and accountability will be explored in this article by focusing on the roles of prosecutors, Directors of Public Prosecution (DPPs), Attorneys General (AGs) and a range of Ministers in terrorism prosecutions. I will focus on the Canadian situation with respect to terrorism prosecution and suggest that the 2006 enactment of the Director of Public Prosecutions Act has added unforeseen and unfortunate complexities to terrorism prosecutions by interjecting an independent DPP into most terrorism prosecutions. I will argue that it would be wrong, contrary to constitutional convention and unnecessary to allow governments or the Cabinet to assume direct responsibility for the exercise of prosecutorial discretion in terrorism cases. In my view, the traditional position associated with Lord Shawcross's famous statement about the ability of AGs to consult with but not be bound by government colleagues, coupled with the reality that the AG can lose the confidence of the Prime Minister, still provides an adequate means to reconcile the demands of independence with political accountability in terrorism prosecutions.
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