CrimProf Blog

Racial Disparity in Sentencing-Report from the Sentencing Project

The Sentencing Project just published a review of the literature on racial dispaority in sentencing.  Among the findings:

· Young, black and Latino males (especially if unemployed) are subject to particularly harsh sentencing compared to other offender populations;
· Black and Latino defendants are disadvantaged compared to whites with regard to legal-process related factors such as the “trial penalty,” sentence reductions for substantial assistance, criminal history, pretrial detention, and type of attorney;
· Black defendants convicted of harming white victims suffer harsher penalties than blacks who commit crimes against other blacks or white defendants who harm whites;
· Black and Latino defendants tend to be sentenced more severely than comparably situated white defendants for less serious crimes, especially drug and property crimes.

Studies that examine death-penalty cases have generally found that:
· In the vast majority of cases, if the murder victim is white, the defendant is more likely to receive a death sentence;
· In a few jurisdictions, notably the federal system, minority defendants (especially blacks) are more likely to receive a death sentence.

[Jack Chin]

New Case: Sex Offender Programs and the Self-Incrimination Clause

The Ninth Circuit held last week in U.S. v. Antelope (and here) that the federal sex offender program for convicts on supervised release, which requires participants to disclose past acts of criminal sexual misconduct, violates the self-incrimination clause when it sends a releasee back to prison for refusing to participate and incriminate himself through such disclosures.  The court distinguished McKune v. Lile, in which the Supreme Court upheld the taking away of an inmate's prison privileges when he refused to participate in a similar sex offender program prior to release.  The 2002 case of McKune was a plurality decision from which it is hard to find a clear holding.  Justice Kennedy, writing for 3 other Justices, believed that the prison sex offender program in McKune was permissible in part because it took place in prison, did not impose penalties on "free citizens," and implicated important penalogical goals of the state.  Kennedy also argued that the program in McKune simply offered incentives to participate rather than imposed penalties on silence.  O'Connor concurred on different grounds, arguing that the case presented a question similar to the "choices inherent in the criminal process" cases like Jenkins, McGautha and Bordenkircher, and that the pressure inherent in McKune's choice to participate in the program--possible loss of prison privileges--was not adequately severe to constitute compulsion in that context. Given that the Ninth Circuit relied solely on O'Connor's concurring opinion in McKune (and argued that the penalty in Antelope--imprisonment--was sufficiently more severe than that in McKune) plus speculation as to the likely positions of McKune's 4 dissenters to reach its result, this case might see action at a higher level.  If so, it will be interesting to see if Justice Kennedy and the 3 Justices that joined his McKune opinion believe that a person on supervised release is more like a prisoner or a "free citizen."  [Mark Godsey]

New Case: Independent Source Doctrine for Tainted Searches

The Sixth Circuit held last week in U.S. v. Jenkins, No. 03-3989, that a warrant was not invalid despite the fact that officers obtained it by supplying the magistrate with information obtained through a prior search that violated the Fourth Amendment.  The Court began by discussing Murray v. United States, 487 U.S. 533, 541 (1988) as follows:

"According to Murray, a subsequent search pursuant to a warrant would not be an independent source of evidence unearthed by a previous search if the information obtained during the first search was "presented to the Magistrate and affected his decision to issue the warrant." Id. at 542. In Murray, the police illegally searched a warehouse but then prepared a warrantbased only on their observations before the illegal search. Id. at 535-36. The Court remanded the case for determination of whether the warrant for the second search resulted from information independent of the illegal search. Id. at 543-44. A strict application of Murray 's test of whether information from the first search affected the magistrate's decision, without consideration of other authorities and the underpinnings of the Murray reasoning, might well suggest that the district court's suppression of the cocaine was correct. After all, the information from Riolo's unlawful inspection of the bags in Room 127 (as well as from the confidential informant) was presented to the judge at the time the affidavit was presented, and while it is impossible to know whether the oral information "affected" the judge's decision in some way, one would think it likely. Agent Kahler himself testified that he felt that the information the officers told Judge Corrigan affected his decision."

The Sixth Circuit then stated, however, that "for evidence to be inadmissible due to the government's failure to collect it via an independent source, the tainted information presented to the judge must affect the judge's decision in a substantive, meaningful way.  Under this interpretation of Murray, the simple fact that an application for a warrant contains information obtained from an illegal search does not by itself signify that the independent source doctrine does not apply. If the application for a warrant contains probable cause apart from the improper information, then the warrant is lawful and the independent source doctrine applies, providing that the officers were not prompted to obtain the warrant by what they observed during the initial entry. Invalidating a search warrant because the magistrate was affected in some minor way by tainted information, when the warrant would have been granted even without the tainted information, would put the police in a worse position than they would have been in had they not presented the tainted information to the magistrate. In addressing an analogous situation, the Supreme Court in Franks v. Delaware, 438 U.S. 154, 171-72, 172 n. 8 (1978), suggested that false or reckless statements in a warrant should be set aside and that the warrant should then be examined to determine "if what is left is sufficient to sustain probable cause." Since "[k]nowingly including a false statement in a warrant affidavit seems the functional equivalent of (if not an even more serious transgression than) including in the affidavit knowledge of facts illegally obtained," see Veillette, then it makes sense to deal with cases such as the present one in the same fashion utilized by the Supreme Court in Franks."  [Mark Godsey] 

Gonzaga Program on Teaching Criminal Law and Criminal Procedure

The Institute for Law Teaching at Gonzaga is running a one day conference on "Teaching the Law School Curriculum" at Villanova on Friday, March 11.  The conference includes workshops on teaching 15 standard law school courses (including Crim subjects) as well as workshops on exams and assessments, on using technology in and out of the classroom, on collaborative learning, and on reflective learning.  Details here. [Mark Godsey]

Exoneration Roundup

A California high school coach publicly identified as a molestation suspect but not charged was awarded $4.5 million in a civil suit.  A British pathologist is undergoing a disciplinary hearing for concealing evidence in a wrongful conviction case. A Chicago college student was charged with making a false rape allegation.  A Canadian pathologist testified in a board of inquiry that pathologists should not appear for the prosecution or defense, but rather as impartial friends of the court.  A Washington state firefighter was charged with arson and attempted murder after his house burned and flammable materials appeared on the computer records associated with his Safeway shopper card; charges were dropped when someone else confessed. [Jack Chin]

Reporter Convicted of Obstruction for Failure to Leave Crime Scene

Story here. [Jack Chin]

Conference: Crawford and Beyond at Brooklyn

February 18, 2005.   Too many CrimProfs to mention.  Details here. [Jack Chin]

Former Death Row Inmate Wins Millions from FBI

Former Illinois death row inmate Steven Manning recently won $6.6 million in a civil lawsuit against two FBI agents for framing him twice, including once for murder.  Story . . .  [Mark Godsey]

Idaho Man Convicted of Plotting to Kill Federal Judge and AUSA

From MSNBC.com:  "An Idaho man said by government lawyers to be associated with the anti-government militia movement was found guilty Friday of plotting to kill a federal judge, a prosecutor and an IRS agent in retaliation for an earlier criminal case brought against him.  A jury in Boise returned a guilty verdict in the trial of David Roland Hinkson, who was accused of offering $10,000 for the murder of the three federal officials, including U.S. District Court Judge Edward Lodge. Prosecutors said he contacted two people between December 2002 and March 2003 to try to arrange for the killings.  Hinkson, from east-central Idaho, runs a company called Water Oz, selling dietary supplements and mineral water. The business has earned him millions of dollars. But in the summer of 2000, the IRS began investigating him for failing to file tax returns or pay taxes for his employees. That case ended when he pleaded guilty in May 2004 to tax violations and overstating the benefits of his products.  On Friday, the jury found that Hinkson tried to solicit the murders of the judge who handled that earlier case, the assistant U.S. attorney who worked the tax charges and the IRS agent who investigated him."  Story . . .  [Mark Godsey]

Hip-Hop Executive Charged With Laundering Drug Money

From NPR:  "One of the biggest executives in hip-hop is indicted on money laundering charges by federal prosecutors in New York. Irving "Gotti" Lorenzo, founder of the music label Murder, Inc., and his brother Christopher, are suspected of being involved in a large drug ring."  To listen to the NPR report, click here.  [Mark Godsey]

California Train Wreck Case--How Do They Get to Murder?

CourtTV reports that the man whose suicide attempt-gone-bad caused 11 deaths in the big train derailment this week in California could be facing the death penalty.  Prosecutors are still deciding whether to charge him with death specs.  Story . . .  He was attempting to commit suicide by parking his car on train tracks, and then lost his nerve at the last second and bailed.  The train smashed into his car, derailed, and passengers died. 

How do they get to capital murder?  One possibility is First Degree Felony Murder under California Penal Code 189: "All murder . . . which is committed in the perpetration of, or attempt to perpetrate, . . . train wrecking . . . is murder of the first degree." 

This route is may be doubtful.  California Penal Code 218 and 219 deal with train wrecking, so the use of the term in the felony murder statute probably does not  deal with train wrecking in general, divorced from the specific statutory felonies.  However, 218 and 219 apply to train wrecking by fire, which is not what happened in this case.  (218 applies to any person "who unlawfully sets fire to any railroad bridge or trestle, over which any such train, car or engine must pass with the intention of wrecking such train").

A more promising theory is the Special Train Derailment Statute, which has its own death penalty: Cal. Penal Code 219: "Every person who unlawfully throws out a switch, removes a rail, or places any obstruction on any railroad with the intention of derailing any passenger, freight or other train, car or engine and thus derails the same . . . is guilty of a felony and punishable with death or imprisonment in the state prison for life without possibility of parole in cases where any person suffers death as a proximate result thereof . . . ." Evidently there are no cases interpreting the section.

The critical question here is what "with the intention of derailing" means; in Model Penal Code terms, does it mean the defendant's purpose in the sense of subjective goal has to have been derailment, or is the defendant's mere knowledge, awareness of a substantial certainty that the train would derail, enough?  On the evidence as reported in the newspapers, it will be easier to prove knowledge; whether he had the purpose of derailing the train is questionable.

Although there may be a California case giving a clear answer that I [Jack Chin] could not find in a quick search, what I found conflicts about the meaning of the mens rea term "intent" under California law. Compare People v. Osband, 919 P.2d 640, 681 (Cal. 1996) ("To '[i]ntend' means 'to have in mind as a purpose or goal....'" (People v. Balcom (1994) 7 Cal.4th 414, 423, fn. 2, 27 Cal.Rptr.2d 666, 867 P.2d 777") with People v. Smith, 67 Cal.Rptr.2d 604, 613 (Cal. App. 1997) ("'As Professor Perkins puts it: 'Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)."'). 

Other posts on this issue: CrimLaw, DUIBlog, Three Generations. The blogosphere has its doubts about these charges.

There's a federal statute covering similar ground, 18 USC 1992; it has been held not to require a specific intent to derail the train; that derailment is a natural and probable consequence of conduct wilfully performed may be enough. See, e.g., United States v. Alcorn, 329 F.3d 759 (10th Cir. 2003); United States v. Dreding, 547 F.2d 471 (9th Cir. 1976).  However, the language of the federal statute and the California statute is sufficiently different that the federal decisions may not be particularly weighty.

For cases under the predecessor version, see People v. Thompson, 43 P. 748 (Cal. 1896); People v. Thompson, 46 P. 912 (Cal. 1896); for a conviction under a misdemeanor version of the statute holding that no mens rea is required, see People v. Bohmer, 120 Cal. Rptr. 136 (Cal. App. 1975). These and other California court opinions available here.  [Mark Godsey and Jack Chin]

You Can't Make This Stuff Up

A man who robbed a convenience store in Minnesota was caught when he returned a few minutes later to reclaim the gun that the store clerk had snatched from his hand during the robbery.  In Michigan, a woman was convicted of DUI after having had too much Listerine.  Listerine contains 27% alcohol.  In NC, a man who was prounced dead at the scene was taken to the morgue, where the coroner noticed that he was breathing faintly.  The man was taken to the hospital where he remains in critical condition.  Here's a story about some kids who drew suspicion when they started showing up before school at a convenience store to buy candy with $100 bills.  Turns out, one of the youngsters had run across tens of thousands of dollars from a drug dealer's stash.  A police officer in London says he has the cure for high crime rates:  getting the public to read more Jane Austen novels.  Finally, police in Cleveland have decided not to press animal cruelty charges against a high school student who skinned and cooked a guinea pig and rabbit that he purchased from a local pet store.  An important fact in their decision not to prosecute was that the young man killed the animals for a cooking class, and the students and teacher dined on the would-be pets afterward (the fact that they ate the animals meant the killings were not "unnecessary" under the cruelty statute, according to police).  [Mark Godsey]  I've got to add: The only difference between a chicken, pig or cow and some animal that some consider horrible to eat is a highly culturally contingent sense of cuteness or appropriateness. Many Americans eat rabbit and squirrel, and guinea pig is a common food in South America.  (For the record, I only eat tofu, made from beans that died of natural causes.) [Jack Chin]

New Article Spotlight

Julie Goldscheid of CUNY has recently published Crime Victim Compensation in a Post 9/11 World in the Tulane Law Review.  Here's the abstract:

In this article, Professor Goldscheid explores the barriers to economic independence faced by victims of domestic and sexual violence by comparing the government programs for those victims with the federal September 11 Victim Compensation Fund created for victims of the 9/11 terror attacks, another group of victims systematically impacted by violence. Professor Goldscheid chronicles and compares the history, rationales and underlying theories that animate the programs. She argues that the programs contain different, but opposite, flaws. Neither is driven by a coherent theoretical foundation or a methodical analysis of victims' economic realities in the aftermath of the violence. She concludes that the tremendous differences in program approach are not warranted by the differences in program purpose or victims' experience.

Professor Goldscheid argues that future compensation programs for victims of domestic and sexual violence should maximize cost spreading and should redress the systemic unavailability of traditional systems of recovery. She proposes an approach that is grounded in empirical data describing the reality of victims' experiences and that eliminates vestiges of bias against victims of domestic and sexual violence. The approach would generally retain the modest award structure of the state programs, but would integrate the September 11 Fund's overall approach to victims, marked by meaningful efforts to address their resulting unmet practical needs, by extensive public education and outreach and by efforts to encourage participation and maximize program utilization. She cautions against the dangers of developing a two-tier track of crime victim compensation programs - one for victims of terrorism and one for victims of other acts of violence - and identifies risks that such a dual system would present.   [Mark Godsey]

Job Announcements: Texas Tech

The Texas Tech University School of Law seeks to fill two new professorships, each with a substantial endowment. One of the positions is limited to criminal law and procedure, and the other is open to any field of law. As a general guideline, candidates should have ten or more years of full-time teaching experience and a record of scholarship that clearly demonstrates the professor's potential to make a long term contribution to Texas Tech and to the legal community.

THE PROFESSORSHIPS

Judge George E. Killam Professor of Criminal Law
Experience: 10+ years
Endowment: Multimillion dollar (income to supplement senior level salary)
Field: Some aspect of criminal law or procedure

Governor Preston B. Smith Professor of Law
Experience: 10+ years
Endowment: $560,000 (income to supplement senior level salary)
Field: Open

APPLICATIONS

If you are interested in one or both of these positions-or would like to nominate another potential candidate-please contact Professor John Krahmer, Chair of the Search Committee, at:

John Krahmer
Foundation Professor of Commercial Law
Texas Tech University School of Law
1802 Hartford Avenue
Mail Stop 0004
Lubbock, Texas 79409-0004

Enviromental Crime Fugitive on State's "Most Wanted" List

A 64 year old Maine man who fled rather than serve his 1 year sentence is now on that state's most wanted list.  MaineToday reports that "Most of Maine's most-wanted criminals are accused of burglaries, thefts, scams and drug crimes." Here's his photo. [Jack Chin]

Booker Backlog

Since the Supreme Court handed down Booker a few weeks ago, thousands of petitions for resentencing have flooded the federal courts causing an enormous backlog.  Details. . .  [Mark Godsey]

Symposium Announcement

The Mind of a Child:  The Relationship Between Brain Development, Cognitive Functioning, and  Accountability Under the Law

On March 10-11, 2005, the Justice for Children Project, in conjunction with the Ohio State Criminal Law Journal and the Center for Law, Policy, and Social Science, will sponsor a conference entitled The Mind of a Child: The Relationship Between Brain Development, Cognitive Functioning, and Accountability Under the Law. Unlike other symposia, which generally have focused on social scientific explanations for juvenile behavior and crime, the interdisciplinary symposium will look to recent developments in the "hard" science of brain development and function and the implications of that research for concepts of mens rea.       

Details, brochure and registration here.  [Mark Godsey]

Conference Announcment: Undercover Policing and Emerging Enforcement Powers: Perspectives from Two Sides of the Atlantic

University of Illinois, March 11-12, 2005.  Too many CrimProfs to mention; details here. [Jack Chin]

New Article Spotlight

Attorney Ted Sampsell-Jones, a recent Yale grad and Ninth Circuit clerk, has posted an article titled Culture and Contempt:  The Limitations of Expressive Criminal Law on SSRN.  Here's the abstract:

Criminal sanctions work to reduce crime in a variety of ways. In a simple economic sense, legal sanctions raise the cost of criminal conduct. Expressive law scholars have shown that the criminal law can help to reduce crimes in other ways as well - by shaping preferences, changing social meanings, and encouraging non-legal sanctions. Lawmakers rely on these mechanisms when they attempt to use criminal laws to change behavior. But lawmakers and scholars alike should keep in mind that the expressive function of criminal law does not always work as intended.

In order to illustrate that point, this article examines street culture's reaction to criminal drug policy. The first section describes street ideology and the social meaning of crack dealing and marijuana use. It relies not only on recent academic work in the fields of sociology and history, but also on a variety of primary sources, including music, movies, magazines, poetry, and memoirs. These sources demonstrate that in street culture, drug policy has utterly failed to produce its intended social norms. In fact, if anything, criminal drug policy has helped to create a system of norms and meanings that undermine the state's goal.

The second section lays a foundation in theoretical sociology for the argument that expressive criminal law can fail. It draws on several concepts, including strain theory, differential association, and labeling theory, from canonical sociological texts. The third section examines implications for recent law and norms scholarship. Finally, and most provocatively, the article questions whether criminal law's production of oppositional cultures is truly a failure or simply part of its intended function.

To obtain the paper, click here.  [Mark Godsey]

New Case: Terry Pat Downs

The Eighth Circuit held yesterday in U.S. v. Hanlon that a police officer did not exceed the scope of a Terry patdown when the officer reached into the suspect's pocket after feeling a hard, cylinder-shaped object one-half inch to an inch in length and with the diameter of a penny.  Not surprisingly, the object turned out to be a vial of meth rather than a weapon.  Of course, the rule is that officers are only allowed to reach into the clothing during a Terry patdown if they are able to determine during the patdown that a weapon is present, or if they develop probable cause based on the "plain feel" doctrine that contraband is present.  The Eighth Circuit upheld the search because the officer in question had testified at the suppression hearing that he had not yet "ruled out" the possibility that the object was a weapon.  The officer argued that the object could have been a very small pocketknife.

Unless I'm missing something, the argument that the object in question could have been a one-half inch long, cylinder-shaped pocketknife strains credulity.  Any reasonable police officer would have concluded that such an object was probably a vial of narcotics and not a weapon.  This case demonstrates that we need to develop some type of standard which holds that officers can reach into the clothing only if a "reasonable officer" would have concluded that a weapon may have been present based on what he felt during the patdown.  Otherwise, Terry's promise that Terry searches must be "confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer" is illusory.  [Mark Godsey]