Saturday, October 16, 2010
The New York Times has this article headlined Accused G.I.'s Were Isolated From Officers:
WASHINGTON — Soldiers in an American Army platoon accused of murdering Afghan civilians for sport say they took orders from a ringleader who collected body parts as war trophies, were threatened with death if they spoke up and smoked hashish on their base almost daily.
. . .
But interviews in recent days and hundreds of pages of documents in the case offer a portrait of an isolated, out-of-control unit that operated in Kandahar Province in southern Afghanistan with limited supervision and little oversight from senior commanders.
There are indications of missed warnings among Army officers who saw trouble with some platoon leaders but did not dig deeper — let alone suspect the extent of the problem — until investigators began asking questions in early May, nearly four months after prosecutors say the first of three murders of Afghan civilians occurred.
In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment – retributivism and utilitarianism. The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer. At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance. This Article asserts that there is in fact a distributive logic to the changes in current criminal law. The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim. Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.
Friday, October 15, 2010
The New York Times has this story:
AUSTIN, Tex. — It was an unusual hearing. The subject at the center of it all, Cameron Todd Willingham, was not present. After being convicted of murdering his three children in a 1991 house fire, he was executed in 2004.
Members of Mr. Willingham’s family, working with lawyers who oppose the death penalty, had asked for the rare and controversial hearing, held here on Thursday, to investigate whether Mr. Willingham was wrongfully convicted. They argue that the proceeding, known as a court of inquiry, could restore Mr. Willingham’s reputation, a right guaranteed under Texas law, even to the dead.
But they also say that the hearing is more than symbolic — it could cast in a new light the Lone Star State’s record on executions. And more broadly, they argue, it is a cautionary tale about the power of flawed science to sway a courtroom, and a glaring injustice that could affect debates over the fairness of the death penalty.
Thursday, October 14, 2010
Thomas L. Hafemeister (University of Virginia School of Law) has posted If All You Have is a Hammer: Society’s Ineffective Response to Intimate Partner Violence on SSRN. Here is the abstract:
After millennia of condoning and even encouraging intimate partner violence (IPV), during the past few decades society has increasingly and appropriately condemned this violence and adopted multiple measures, most of them involving the criminal justice system, to limit, control, and remediate it. Considerable resources have been devoted to this effort, but the success of these programs is mixed at best. While there has been some diminishment in the overall prevalence of IPV, this likely can be attributed more to society’s somewhat improved attitudes regarding this violence than to the direct impact of these measures. The number of individuals suffering from IPV and the magnitude of its adverse consequences continue to remain staggering.
[F]ederal enforcement resources are limited. So Proposition 19 will greatly reduce the incidence of marijuana prosecutions in California, even if the drug remains theoretically illegal there. Perhaps more importantly, passage of Prop 19 would be a major political setback for drug prohibition. A victorious Prop 19 would likely be imitated in other states with referendum initiative processes. That in turn would put the federal War on Drugs under increasing stress. If several large states withdraw state resources from marijuana enforcement, the feds would either have to massively increase their own enforcement efforts or consider giving up the fight. At a time of increasing budgetary problems, the latter option might be more likely.
Adam Liptak reviews yesterday's oral argument in The New York Times. In part:
WASHINGTON — In the course of an hourlong argument at the Supreme Court on Wednesday about a death row inmate’s quest to test DNA evidence, the justices asked neither of the questions that people without legal training might have thought crucial: Why won’t Texas prosecutors consent to the testing? And could the results show that the inmate, Henry W. Skinner, is innocent of the triple murder that sent him to death row?
The justices focused instead on whether Mr. Skinner had located a path through a thicket of legal doctrines meant to limit postconviction challenges.
Erik Luna (pictured) and Paul G. Cassell (Washington and Lee University - School of Law and University of Utah - S.J. Quinney College of Law) have posted Mandatory Minimalism (Cardozo Law Review, Vol. 32, p. 1, 2010) on SSRN. Here is the abstract:
One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.
Wednesday, October 13, 2010
From the New York Times:
In the first civilian trial of a former Guantánamo detainee, the word Guantánamo was not uttered in front of the jury as the case began on Tuesday in Federal District Court in Manhattan.
. . .
The trial of Mr. Ghailani has been widely anticipated since last year, when he became the first Guantánamo detainee moved into the civilian system. After he was captured in 2004, he spent nearly five years at Guantánamo Bay, Cuba, and, earlier, in overseas jails run by the Central Intelligence Agency, where his lawyers have said that he was tortured.
In the trial, there are expected to be no references to Guantánamo and the C.I.A.’s so-called black sites — or to the claims of torture — because the government and the defense agreed to limit their focus to the events around the 1998 attacks.
The following article is an attempt to provide a coherent theory that international tribunals may use to ground the imposition of vicarious liability for collective crimes. Currently, the case law and the literature is focused on a debate between the Joint Criminal Enterprise (JCE) doctrine applied by the ICTY and the co-perpetration doctrine applied by the ICC, which defines co-perpetrators as those who have joint control over the collective crime. The latter doctrine, influenced by German criminal law theory, has recently won many converts, both in The Hague and in the Academy, because it allegedly avoids many of the pitfalls and excesses associated with the JCE doctrine, including vicarious liability for actions that fall outside the scope of the criminal plan, the most expansive version of the JCE doctrine (JCE III). The following Article subjects the control theory, the new darling of the professoriate, to renewed scrutiny and questions whether “control” is the most important criteria for collective crimes. This Article defends the claim that the most essential aspect to ground vicarious liability for members of a criminal gang is the mens rea of its individual members. These individuals share with each other what the philosopher Michael Bratman calls a joint or shared intention -- in this case a joint intention that the group commit a collective crime. Through a series of hypothetical examples, I argue that this fact ought to be the most central aspect of the legal doctrine. The original version of JCE doctrine did little to analyze these joint intentions, though it implicitly relied on them, and the co-perpetration theory has sought to sidestep them by emphasizing “control” instead. But this is an overreaction. The proper course is to return mens rea to the center of the debate and develop a nuanced account of joint intentions that avoids the excesses of the JCE doctrine. Instead of replacing JCE with the control theory of perpetration, international courts should reform JCE by eliminating JCE III because it fails to comply with the underlying theory supporting the doctrine.
This article reviews white-collar crime questions now under review by the ABA Criminal Justice Section (“CJS”), especially the question of federal sentencing for economic crimes where there is a large loss to victims but little gain to the defendant. This question, which will be a focus of the CJS’s November 5, 2010 conference, has troubled the Department of Justice, which in such cases opposes downward departures from the Federal Sentencing Guidelines ranges and may advocate for reform of the Guidelines or mandatory minimum sentences to reduce sentencing disparities. This article suggests, as an alternative, that the U.S. Sentencing Commission collect judicial reasoning in exemplary sentencing decisions in order to promote the development of the common law of sentencing. The article invites comment on this and other issues under study by the CJS.
Tuesday, October 12, 2010
In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses which enjoy unquestioned Fourth Amendment protection.
Issue summaries from ScotusBlog, which also links to cert papers and opinions below:
- Bond v. United States: Whether a criminal defendant convicted under a federal statute has standing to challenge her conviction on grounds that, as applied to her, the statute is beyond the federal government’s enumerated powers and inconsistent with the Tenth Amendment.
- Camreta v. Greene: (1) Whether the traditional warrant/warrant exception requirements that apply to seizures of suspected criminals should apply to an interview of the child in light of reports of child abuse, or whether instead a balancing standard should apply; and (2) whether the Ninth Circuit’s constitutional ruling is reviewable, notwithstanding that it ruled in the petitioner’s favor on qualified immunity grounds.
- Alford v. Greene: [consolidated with previous case] Whether the Fourth Amendment requires a warrant, a court order, parental consent, or exigent circumstances before law enforcement and child welfare officials may conduct a temporary seizure and interview at a public school of a child whom they reasonably suspect was being sexually abused.
- DePierre v. United States: Whether the term “cocaine base” encompasses every form of cocaine that is classified chemically as a base, or whether the term “cocaine base” is limited to “crack” cocaine.
Susan A. Bandes (DePaul University - College of Law) has posted And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System (Ohio State Journal of Criminal Law, Vol. 8, No. 2, 2011) on SSRN. Here is the abstract:
The standard police procedural, even including great dramas like NYPD Blue and Hill Street Blues, adheres to time-honored narrative conventions. It focuses on good if sometimes imperfect cops trying to find the real bad guys - the perpetrators - and bring them to justice. A crime had ruptured the social fabric, and at the end of the episode, guilt is determined and things are put to right. The standard procedural is concerned mainly with individual fault and heroism. It does not raise disquieting questions about the criminal justice system, the legal system, or the social and political arrangements that lead to a permanent underclass. There are eight million stories in the Naked City, and in the police procedural, every one of them stands on its own.
Monday, October 11, 2010
Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Culture Clash: The Challenge of Lawyering Across Difference in Juvenile Court (Rutgers Law Review, Vol. 62, No. 4, 2010) on SSRN. Here is the abstract:
In analyzing the causes of wrongful convictions of youth in juvenile court, the role of the defense attorney can be overlooked and its importance underestimated. Although juvenile defenders are trained to advocate based on their young client’s expressed interest rather than relying on what they deem to be in the child’s best interest, this basic tenet is often more challenging to follow than is commonly acknowledged. The norms of effective criminal defense practice – which emphasize rigorous oral and written advocacy with little mention of whether the client has learned a lesson from the experience – stand in direct contrast to the informal culture that permeates most juvenile courtrooms in the United States. When delinquency court judges do not apply the beyond-a-reasonable-doubt standard of proof, when prosecutors neglect to respond substantively to motions filed by the defense, and when probation officers reflexively recommend punitive sanctions that fail to address the child‟s actual needs, defense attorneys are confronted with hurdles that are difficult to overcome. In addition, the parents of juvenile clients may have goals and objectives vis-à-vis the case that differ greatly from those of the attorney, a serious problem that is compounded when the parent herself is a co-defendant, witness, or alleged victim of the offense. Further, even defense attorneys who are committed to their role and to the most robust form of representation are not immune from feeling conflicted, as juvenile clients can be impulsive, unreliable, and incapable of mature decision-making.