February 5, 2011
Gray & Huber on Retribution for Progressives
David C. Gray (pictured) (University of Maryland - School of Law) and Jonathan J. Huber have posted Retributivism for Progressives: A Response to Professor Flanders (Maryland Law Review, Vol. 70, No. 141, 2010) on SSRN. Here is the abstract:
In his engaging article "Retributivism and Reform," published in the Maryland Law Review, Chad Flanders engages two claims he ascribes to James Q. Whitman: 1) that American criminal justice is too "harsh," and 2) that Americans’ reliance on retributivist theories of criminal punishment is implicated in that harshness. In this invited response, to which Flanders subsequently replied, we first ask what "harsh" might mean in the context of a critique of criminal justice and punishment. We conclude that the most likely candidate is something along the lines of "disproportionate or otherwise unjustified." With this working definition in hand, we measure some current American criminal justice practices using a roughly hewn retributivist yardstick. We conclude that American criminal justice may well be too "harsh" as measured by retributivist standards. If this is right, then Whitman and others may be wrong to condemn retributivism as a theory of criminal punishment. To the contrary, the resources needed to justify many progressive reforms may lie in embracing retributivism rather than rejecting it. While further work will be necessary to reach any final conclusions, we suggest that retributivism might be particularly useful in addressing overcriminalization, long prison sentences, and brutal prison conditions, each of which a retributivist might well regard as "disproportionate or otherwise unjustified" and therefore "harsh."
February 4, 2011
Levenson on Redrafting the ABA Standards of Conflicts in Criminal Cases
Laurie L. Levenson (Loyola Law School Los Angeles) has posted Conflicts Over Conflicts: Challenges in Redrafting the ABA Standards for Criminal Justice on Conflicts of Interest on SSRN. Here is the abstract:
Currently, an ABA Task Force faces the considerable challenge of redrafting the ABA Standards for Criminal Justice. Prosecutors and defense counsel need clear guidance on how to handle conflicts of interest rules. However, the initial challenge is in identifying those questions a code of ethics should answer when it comes to conflict situations. With the help of prominent lawyers, academics and judges who participated in a series of roundtables on the new ABA standards, this article identifies forty of the key questions to ask about conflicts of interests. These questions allow real progress to be made toward creating a code that will direct the bench and the bar in the handling of criminal cases.
Bergelson on Strict Liability and Affirmative Defenses
Vera Bergelson (Rutgers Law School - Newark) has posted A Fair Punishment for Humbert Humbert: Strict Liability and Affirmative Defenses (New Criminal Law Review, Vol. 14, No. 1, Winter 2011) on SSRN. Here is the abstract:
In this article, I focused on the intersection of strict liability offenses and affirmative defenses. I sought to explore and evaluate a peculiar discrepancy: all states, as well as the Model Penal Code, deny to a defendant charged with a strict liability offense the defense of mistake, yet at the same time, allow most other affirmative defenses. Is this discrepancy warranted? Consider the following scenarios inwhich Humbert Humbert is charged with the statutory rape of Lolita:
If Humbert Humbert tried to argue that he had acted under a mistaken belief that Lolita was above the age of consent, he most likely would not prevail. He would not prevail even if he made all possible efforts to find out Lolita’s true age (e.g., checked Lolita’s birth certificate and received a signed sworn affidavit from Lolita’s mother) or if he fell prey to Lolita’s own deception.
The outcome, however, would be different if Humbert Humbert could prove that his misperception of Lolita’s age was a result of insanity. In that case, Humbert Humbert would have a valid defense. He would also have a defense if he could show that he had had sex with Lolita under duress. Say, Clare Quilty, engrossed in the production of his pornographic movie, threatened to beat up Humbert Humbert unless he and Lolita performed a sexual act in front of his camera.
Obviously, the defenses of mistake, insanity, and duress, albeit belonging to the same family of excuses, differ in many important respects. To see whether certain formative differences may account for the different treatment of these defenses, I examine various excuses on the scales of cognitive-volitional, external-internal, and permanent-temporary. In the end, I conclude that, from the moral perspective, there is: (i) no difference between a permanent and temporary impairment;
(ii) a marginal difference in favor of external limitation compared to internal;
(iii) a meaningful difference in favor of cognitive impairment compared to volitional. Effectively, this conclusion means that a person who commits a strict liability offense pursuant to a reasonable mistake deserves punishment even less than a person who commits the same crime under duress.
I further explore the discrepancy between the treatment of the defense of mistake and other excuses in cases of strict liability from the perspectives of efficiency and other public policies. I conclude that this discrepancy is unwarranted, unfair, and arguably, unconstitutional. Accordingly, I advocate for a revision of the current law and adoption of an across-the-board rule that would make the defense of a reasonable mistake available in any criminal prosecution.
Slate on "The Subjective Experience of Punishment" (Kolber)
Chris Beam at Slate has written a piece entitled, "Hard Time," about the so-called "giant" Dutch prisoner who is challenging his comparatively tiny conditions of confinement under the European Convention on Human Rights. (See also here). Beam also describes some of the academic commentary on the issues raised by the case, including my discussion in "The Subjective Experience of Punishment."
I'm told that the prisoner may receive a decision in his case as early as February 8. So stay tuned! (Cross-posted.)
February 3, 2011
Green on Leading Issues in Criminal Justice
Bruce A. Green (Fordham University School of Law) has posted Criminal Justice – What’s Ahead? Roadblocks and New Directions (Criminal Justice, Vol. 25, p. 4, 2011) on SSRN. Here is the abstract:
The leadership of the ABA Criminal Justice Section was asked to identify the most important issues of criminal justice policy of the next three to five years. This column by the Section’s Chair identifies the subjects that the responding prosecutors, defense lawyers, academics and others anticipated to be most important, ranging alphabetically from “alternatives to incarceration” to “wrongful convictions.”
"Forcible rape" in the new abortion legislation
Two recent posts--one at The Huffington Post and one at the Washington Post's PostPartisan blog--address the question of whether the proposed federal legislation, which limits abortion funding to cases of "forcible rape," is intented to and should distinguish among the various situations currently combined in the rape category by modern codifications, including for example rapes accomplished as a "result of a woman being drugged, drunk, mentally disabled or date rape." Thanks to Ken Simons for calling these to our attention.
February 2, 2011
Rapping on Indigent Defense
Jonathan Rapping (Atlanta's John Marshall Law School) has posted National Crisis, National Neglect: Realizing Justice Through Transformative Change (Journal of Law and Social Change, Vol. 13, p. 331, 2009-2010) on SSRN. Here is the abstract:
Since the Supreme Court decided Gideon v. Wainright nearly 50 years ago, there has been a Constitutional mandate that people accused of crimes are entitled to effective assistance of counsel. Despite that mandate, competent representation for poor people remains the exception. The Court’s response to this development has only compounded the crises, as the legal standards developed to determine when lawyers fall below the constitutional floor encourage incompetent representation. States have also proven to be inadequate guardians of this precious right as lawyers for the poor are excused for failing to live up to their professional obligations to their clients. While indigent defense advocates frequently cite financial and structural reform efforts as the panacea, few commentators appreciate the role that the culture of injustice, that has become acceptable in criminal justice systems nationally, plays in perpetuating the status quo. In this paper I argue that there is a role for the federal government to play in ensuring that the right to counsel, a principle central to the value system of our nation, is realized by all of its citizens. I further argue that an effective strategy for achieving the promise of Gideon must include investment in the human resources (i.e. the public defenders) necessary to carry out this mandate. Through the development of a generation of public defenders who embrace the values consistent with excellent representation, we can ensure that these lawyers for the poor will both begin to deliver on Gideon’s promise immediately as well as develop into the future leaders necessary to hold the states accountable for their failures to meet their constitutional obligations. In this paper I discuss the work of the Southern Public Defender Training Center, an organization dedicated to building a community of reformers through the recruitment, training, and mentoring of a new generation of public defenders in the region. I then introduce a bold new initiative called the Public Defender Corps, committed to building on the work of the SPDTC to create a national movement through a public defender fellowship program and suggest that there is a significant role for the federal government to play in supporting this effort. Finally I suggest that without an effort to groom a new generation of public defenders committed to the work and the clients they serve, financial and structural fixes, while necessary, will not be sufficient to bring about the reform needed. I advocate a national push to transform the existing culture of indigent defense as part of any comprehensive reform strategy.
Hughes on Proliferation of Criminal Law
This paper considers why the criminal law continues to grow despite broad-based policy consensus on the harms of over-criminalization. I argue that political expediency combines with the Canadian constitutional arrangement under ss. 91 and 92 of the Constitution Act, 1867 to drive the expansion of Canadian criminal law. The federal power to criminalize and the provincial responsibility for enforcement amounts to a constitutionally directed unfunded mandate. In a case study of the Westray Bill, the paper examines the political mechanisms and institutional forces that further the expansion of the criminal law and that result in ineffective, inefficient and ultimately harmful prohibitions. The paper concludes that it is legitimate to invoke the constitutional power of the courts to limit the scope of the criminal law and shows how this can be achieved without abandoning established constitutional and criminal law principles and precedent.
February 1, 2011
Duncan on "Qualified" Notice-and-Demand Statutes
Samuel M. Duncan has posted 'Qualified' Notice-and-Demand Statutes Unconstitutionally Eliminate a Criminal Defendant’s Sixth Amendment Right to 'True' Confrontation: Live Testimony from Witnesses (Hamline Law Review, Vol. 34, 2011) on SSRN. Here is the abstract:
This Article contends that "qualified" notice-and-demand statutes, enacted in many states, violate a criminal defendant's Sixth Amendment right to confrontation. Plain notice-and-demand statutes allow a prosecutor to introduce a witness' testimony in written form unless the defendant demands live testimony. Qualified statutes require some showing above a timely demand before requiring that the witness testify in person. These statutes are unconstitutional because the Confrontation Clause, properly understood, protects a defendant's right to "true" confrontation - live testimony from prosecution witnesses - as well as the right to cross-examination. This interpretation is well supported by case law and the history of confrontation at common law, and furthers the reasoning of and principles behind Crawford v. Washington. Further, this Article argues that qualified notice-and-demand statutes are invalid because they conflict with the current interpretation of the Confrontation right, by forcing waiver of objections that would be unquestionably valid under Crawford.
Hodgson on Prosecutors in France
Both the pre-trial and dispositive roles of the French prosecutor have continued to expand over the last decades with a resulting shift in power away from the trial judge and the juge d’instruction. The recommendations of the Léger Commission in 2009 went beyond the redistribution of authority and proposed the abolition of the juge d’instruction, placing the prosecutor in charge of all criminal investigations, even the most serious, complex, and sensitive. At the same time, the prosecutor’s role and status has been challenged in a number of ways — in particular concerning her function as judicial supervisor of the detention and interrogation of suspects in the garde à vue. The case of Medvedyev v. France called into question the prosecutor’s status as a judge and the string of cases beginning with Salduz v. Turkey has caused several jurisdictions, including France, to reconsider the provision made for custodial legal advice. There is a real tension between the direction of reforms proposed within France and the pressure from Europe to ensure more effective due process safeguards. As a result of domestic litigation and constitutional challenge, the French government is slowly relenting and allowing lawyers a greater role. It has yet to grasp the nettle of the independence of the prosecutor, however. The ECtHR has made it clear that a judge must be independent of the executive and of the case parties — both of which are contested in relation to the French prosecutor. Within a procedural model in which defense rights are secondary to the supposed truth-seeking ideology of the judicial supervisor, the independence of the prosecutor is crucial.
January 31, 2011
Gless on the exclusionary rule in Germany
Sabine Gless (University of Basel) has posted Truth or Due Process? The Use of Illegally Gathered Evidence in Criminal Trials - Germany on SSRN. Here is the abstract:
Theories of admissibility of evidence provide insights into concepts that ensure the reconstruction of facts, reliability of proof, fair trial and respect for individual rights in a nutshell. In the German criminal justice system different frameworks form a rather complex system for monitoring the use of illegally gathered evidence. Overall, however, two issues constantly occur: (a) references to the adherence to the rule of law, which mingle with a more modern concept of “fair trial,” and (b) growing emphasis on the protection of the individual’s right to privacy – may it concern a suspect, a victim or a witness. The paper discusses the relevant constitutional and statutory rules as well as legal doctrine and case law, marking the tension between the duty to determine the truth and exclusionary rules. During the last two decades, new, especially covert methods of information gathering were established that challenge traditional concepts, such as the defendant’s rights and potential consequences for the exclusion of evidence. This requires new solutions for balancing the right to privacy, principles of fair trial and law enforcement tasks.
The Subjective Experience of Being a "Giant" in Prison (Kolber)
According to this BBC article, a 6' 9'', 500+ pound Dutch prisoner is arguing that keeping him in an ordinary cell violates the European Convention on Human Rights.
The issue relates to a more general phenomenon that I discuss in The Subjective Experience of Punishment (as well as here and here). Namely, not all prisoners experience conditions of confinement in the same way. Though we typically ignore differences in punishment experience, I argue that, according to our best justifications of punishment, we are morally required to take such differences into account.
In many cases, it is difficult to accurately assess or anticipate an inmate's punishment experiences. In a case like this one, however, it is easy to see why the prisoner will have an especially difficult time. According to the article, he has to duck his head to fit in the door of his cell. He cannot fit comfortably on his bed, and in order to shower, "he must first wedge himself into the cubicle, then crouch down under the head." No doubt, we must consider the costs involved in accommodating this prisoner, but we cannot pretend that he is likely to experience the confined conditions of incarceration in the same way as the average prisoner.
And while it is true that he ought to have taken his large size into account before he committed criminal activity that could land him in prison, such facts do not alter our usual analysis of proportional punishment. If people could justly be incarcerated under any conditions whenever they knew or should have known about those conditions before committing criminal activitly, then we could justify virtually any conditions of confinement for any crime. Similar reasoning would justify locking people up for any duration, so long as they were informed of the duration in advance.
Part of the reason that people are hesitant to make adjustments for a prisoner like this is that they view the adjustments as "special accommodations." Indeed, they are given real-world prisons that have already been constructed. We deem subjectively-sensitive punishments to be special accommodations, however, partly because we fixate on our conventional, objective understanding of punishment conditions. As I explain in my article:
Imagine, by contrast, the fictitious punishment of “boxing,” where an offender who is boxed is confined to a cell that has dimensions n by n by n, where n equals the height of the offender. Setting aside the horrendousness of the punishment itself, is it unfair when offenders of different heights are boxed? I think not. Yet, in objective terms, offenders who are boxed receive quite different punishments. Nevertheless, it seems fair that taller people should be placed in larger cells than shorter people. Simply by reframing punishment descriptions in subjective terms, we can ease or eliminate perceptions of punishment inequality.
My thanks to Doug Berman for his blog post that helpfully points to other discussions of the subjective experience of punishment by Simons, Baer, Bronsteen, Buccafusco, Masur, Markel, Flanders, and Gray.
Wexler on Therapeutic Jurisprudence and the Sentencing Guidelines
David B. Wexler (University of Puerto Rico - School of Law) has posted Advice for the U.S. Sentencing Commissioners: The Relevance of Therapeutic Jurisprudence and its Literature (Federal Sentencing Reporter, Vol. 23, 2011) on SSRN. Here is the abstract:
This short essay will be part of an issue of the Federal Sentencing Reporter devoted to recommended action for the U.S. Sentencing Commission. The present essay calls attention to the relevance of therapeutic jurisprudence to the sentencing function. It looks at some legal rules and guidelines that do not effectively motivate convicted persons to focus on the future, and it also shows how judges need guidance not only on what sentences to impose but also on the manner and process of sentence imposition.
January 30, 2011
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