October 16, 2010
An insight into atrocity
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.
Gruber on a Distributive Theory of Criminal Law
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.
This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms. Understanding much of modern criminal law as distribution highlights an interesting political contradiction. For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another. But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims. Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.
October 15, 2010
"Family’s Effort to Clear Name Frames Debate on Executions"
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.
"DOJ to continue to prosecute drug crimes regardless of California vote: AP"
Jurist has this story about AG Holder's statement regarding Proposition 19.
October 14, 2010
Hafemeister on Intimate Partner Violence
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.
Critics of society’s response to IPV often argue that various provisions of domestic violence laws such as mandatory reporting, mandatory arrest, and no-drop policies have led to an “over-reliance on criminal strategies.” Moreover, the adoption of these measures has been driven by a few widely publicized cases. These notorious cases tend to be relatively “easy” ones where culpability and an apparent appropriate response is readily deduced in retrospect, but too great a focus on a few cases has resulted in what tends to be a one-size-fits-all approach that fails to adequately address the complexity of IPV and the range of factors and behaviors associated with it.
This societal response can be counterproductive if it fails to adequately distinguish among or provide sufficient latitude, flexibility, and nuance for responding to the various types of IPV, as well as the diverse needs, desires, and circumstances of the victims. For example, exclusive reliance on a traditional criminal justice approach, without also empowering the victim, can diminish the victim’s feelings of self-worth and increase the victim’s isolation, dependence, and vulnerability. This is not to say, however, that traditional criminal justice remedies have no place: when an injured victim has been rendered isolated and dependent or otherwise unable to exercise their autonomy as a result of IPV, the protection and safety that can be afforded by the criminal justice system should be readily forthcoming. Additionally, the nature of the abuse and the characteristics and motivations of the abuser should be taken into account when devising a remedy. Mandatory criminal justice intervention is generally appropriate when the abuse reflects a systematic, terrorizing violence perpetrated to maintain control over the victim, but an alternative victim-directed approach tends to be better suited when the IPV involves a relatively isolated outburst of mild violence linked to circumstances that are relatively unlikely to be repeated or can be readily avoided.
In general, more emphasis needs to be placed on assessing the nature and causes of a given case of IPV and the characteristics of the parties involved. For example, an assessment should be made of whether victims understand their predicament, whether they are unable to exercise their autonomy because of isolation or dependence, and whether they have access to adequate remedial options before deciding whether the autonomy of the victim should take priority or interventions should be imposed over the victim’s objection. This approach would empower victims whenever possible to make their own choices about whether to invoke society’s assistance, educate them about the services that are available, and acknowledge that cases of IPV vary considerably and require an individualized response, while still providing protection to victims who are unable to help themselves.
Once this assessment is completed, there should be a range of programs from which to select - including a greater number of education, treatment, and rehabilitation programs - that better respond to the needs and risks particular to the individuals involved. A failure to respond appropriately to such disputes can overlook significant dangers, but can also solidify conflict and convert what could have been a temporary disagreement into a relatively intransigent one from which long-term adverse consequences result. For some cases of IPV, a more graduated, measured, inclusive, and individualized approach may better defuse an otherwise explosive situation and avoid many of the adverse short- and long-term consequences that can otherwise result.
In crafting the societal response to IPV, it should be recognized that IPV is a complex phenomenon for which the most appropriate and effective response can vary considerably. While intimate partner violence should under no circumstances be condoned, a more enlightened understanding of IPV and the factors that contribute to it can lead to a more rational, nuanced, and efficient use of society’s resources to combat it.
"Law Professors’ Petition in Support of California Proposition 19"
[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.
"High Court Weighs Death Row Inmate’s DNA Query"
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.
Luna & Cassell on Mandatory Minimalism
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.
Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with the hope of inspiring dialogue on the propriety of legislatively compelled, judicially unavoidable punishment.
October 13, 2010
"Trial of Man Once Held at Guantánamo Opens"
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.
"Study: Prop. 19 Won't Dramatically Reduce Drug Cartel Revenues"
Argument transcript in Skinner v. Switzer
Ohlin on Joint Intentions to Commit International Crimes
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.
"Special feature: Texas death row DNA case"
Green on White-Collar Crime and Punishment
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.
October 12, 2010
Lee on the Disappearing Container Doctrine
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.
In this Article, Professor Lee demonstrates how the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued by a judicial officer. Studying the numerous ways in which the Court has undermined the Container Doctrine is useful for several reasons. First, the erosion of the Container Doctrine is emblematic of a more tectonic jurisprudential shift - the Court’s movement away from the Warrant Preference view (the belief that the Fourth Amendment expresses a preference for warrants) and its gradual embrace of the Separate Clauses (or reasonableness) view of the Fourth Amendment. Second, the Court’s willingness to allow a growing number of container searches without warrants suggests a deep judicial ambivalence about the effectiveness of warrant formalism. Third, the demise of the Container Doctrine, and its corresponding impact on the poor and homeless, reflects a troubling indifference to non-majoritarian interests.
This Article proceeds in four parts. In Part I, Professor Lee examines the longstanding debate over whether the Fourth Amendment expresses a preference for warrants or merely requires that searches and seizures not be unreasonable. In Part II, she provides background on the Container Doctrine and discusses its rationales. In Part III, she examines the myriad ways in which police can lawfully search a container without a warrant. The Court’s increasing willingness to tolerate warrantless searches of containers mirrors its gradual embrace of the Separate Clauses or Reasonableness view of the Fourth Amendment, the position that all the Fourth Amendment requires is that searches and seizures be reasonable. In Part IV, Professor Lee discusses why this movement away from warrants towards reasonableness in the container search context is problematic and what might be done about the situation. She notes that reasonableness review tends to be highly deferential to the government and wildly indeterminate. Not requiring warrants for most container searches hurts the poor and, by implication, poor communities of color, more so than the wealthy. To rectify this unfairness, Professor Lee proposes an additional layer of review in container search cases. Borrowing from a small slice of the Court’s equal protection jurisprudence – the Court’s “rational basis with bite” cases -- Professor Lee proposes that courts be non-deferential and rigorous when engaging in reasonableness review. In other words, she proposes that reviewing courts employ reasonableness review “with teeth.”
Argument transcript in Premo v. Moore
Argument transcript in Harrington v. Richter
Today's crim law/procedure cert grants
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.
Bandes on Cop Shows
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.
The Wire is a different kind of television. It aims not to reassure but to unsettle, or as David Simon once put it, "to pick a fight." Unlike the standard police procedural, which resolves a discrete problem every week, The Wire keeps widening its lens to reveal the context in which crime and policing take place. Although the show begins as a description of an actual wiretap, the series soon turns out to be about a series of interlocking systems, wired for dysfunction.
The Wire is deeply concerned with institutions, how they constrain the shape of individual lives, and how they perpetuate themselves, often at the expense of achieving their legitimate goals. However, although the show’s most cherished subject is the institutional roadblocks to good policing, The Wire defies the standard paradigm in this regard as well. It is not one of those cop shows that reflexively portray constitutional rights as annoying hindrances to law enforcement. Other shows tell us that cops need free rein; that we ought to trust their instincts and keep the government and the Constitution off their backs. This show vividly demonstrates that those instincts are sometimes misguided or self protective and that the right kinds of limits can play an important role in good police work.
This essay is an exploration and appreciation of The Wire’s remarkable portrait of the criminal justice system, with particular attention to its insights about policing and criminal procedure. It uses the chess lesson scene from Season One, “The King Stay the King,” as a starting point.
October 11, 2010
Birckhead on Lawyering Across Difference in Juvenile Court
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.
This Article examines the phenomenon that results when criminal defense culture, juvenile court culture, and the culture of the family intersect. It argues that when the defense attorney is caught in the middle of these competing norms, accurate fact-finding ceases to be a priority, the quality of advocacy falters, and a whole host of harms result – from the stigma of being labeled a juvenile delinquent to the trauma of institutionalization and commitment to the direct and collateral consequences of wrongful convictions. The Article proposes that law schools, state bar associations, and public defender agencies import the pioneering work of Sue Bryant and Jean Koh Peters on the five practices – or habits – of cross-cultural lawyering to juvenile court, thereby helping to ensure that defense attorneys are equipped with the tools necessary to practice law based on facts rather than assumptions. It emphasizes the importance of acknowledging the challenging nature of the problem and offers strategies for training juvenile defenders as well as for taking proactive steps to change the culture of juvenile court.