CrimProf Blog

SCOTUS to Hear Boumediene, Lakhdar, et al vs. Bush

The Supreme Court has drawn intense attention by agreeing to weigh in for a third time in the ongoing battle between the Bush Administration and Guantanamo Bay detainees over the prisoners' right to bring writs of habeas corpus.

The Court rejected the prisoners' petition for certiorari in April, but reversed course two months later. Observers have speculated that at least one Justice was moved to change his certiorari vote when the detainees' lawyers filed a court paper in the underlying litigation outlining the claims of an Army lawyer that the panels provided as alternates to habeas were "shams."

The consolidated cases, Boumediene v. Bush and Al Odah v. United States, Nos. 06-1195 and 06-1196, represent the ongoing struggle between the executive and legislative branches on the one hand, and the judicial branch on the other, to define the scope of the government's power to conduct the war on terror.

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers suspected their involvement in a plot to attack the U.S. embassy there.

The U.S. government classified the men as enemy combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the U.S. leases from Cuba.

Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an overseas military base, had no right to a habeas petition.

More. . . [Mark Godsey]

Law and Order SVU Features USC Law Article on Criminal Responsibility

Fans of “Law & Order: Special Victims Unit” saw a familiar University of Southern California Law publication on the TV show’s season premier episode.

The episode – about a woman with dissociative identity disorder whom detectives suspect may have conspired with her sister to kill their parents – featured the spring 2001 Southern California Interdisciplinary Law Journal, titled “Symposium on Multiple Personality Disorder and Criminal Responsibility.” The issue featured articles by USC Law’s Elyn Saks, associate dean and the Orrin B. Evans Professor of Law, Psychology, and Psychiatry and the Behavioral Sciences.

Detectives Olivia Benson and Elliot Stabler, the show’s lead characters, cite articles from the journal that discuss the legal responsibility of persons with multiple personalities and the legal traction that may be established. At one point, Stabler also holds up the journal to an inmate to ask if she has seen it before. [Mark Godsey]

CrimProf Peter Henning Discusses Asset Taking in Public Corruption Cases

From elpasotimes.com: While it is known that the FBI confiscated money and cars from one El Paso businessman implicated in the ongoing public corruption case, chances are several others have already had their assets frozen by the government, a criminal law expert said.

Wayne State Law University CrimProf Peter Henning said that when a public corruption case involves several dozen people -- such as the one in El Paso -- it is rare to find that only one person has had assets taken away.

"There are others, we just don't know about them," Henning said. "The items were seized either through a sealed indictment or a sealed civil forfeiture."

FBI spokeswoman Andrea Simmons said that while no one has been indicted in the ongoing public corruption case, the FBI cannot talk about whether anyone else had their assets frozen.

Several El Paso defense lawyers who are representing some of the people implicated in the case refused to say whether any of their clients had assets frozen.

Henning said there must to be others besides former Access HealthSource President Frank Apodaca.

"We just don't know who they are yet," he said. Rest of Article. . . [Mark Godsey]

CrimProf Spotlight: Mark Alexander

This week the CrimProf Blog spotlight Seton Hall CrimProf Mark Alexander.

Mark C. Alexander is Professor of Law, Seton Hall University School of Law. He writes and teaches in the areas of Constitutional Law, Law & Politics, The First Amendment and Criminal Procedure. His scholarship focuses on the intersection of law, politics and government and on free speech issues, with an emphasis on exploring new constitutional approaches to campaign finance reform. A recent article was cited by the Supreme Court in a major decision from 2006. In addition to his scholarly work, he recently filed a brief in the U.S. Supreme Court, defending the right of governments to limit campaign spending.

Active in politics, Prof. Alexander recently took a leave of absence to serve as General Counsel to Cory Booker and the Booker Team in the 2006 Newark Municipal elections. He then served in the same capacity for Newark in Transition, as Mayor Booker moved to assume the office. He continues to consult with the Mayor and his staff on a wide range of matters.

Other political work includes serving as Issues Director for the Bill Bradley for President campaign in 1999-2000. He was Issues Director for Senator Edward Kennedy’s Re-election in 1988, and before that, a legislative assistant to Senator Howard Metzenbaum. He also served a two-year term as an elected official in the Washington, D.C. government.

Professor Alexander also has significant international experience, including year in Spain on a Fulbright Scholarship, where he taught American law and politics. In addition he has taught in the Seton Hall Law-in-Italy program. He is also a fellow of the U.S.-Japan Leadership Program.

Professor Alexander clerked for Chief Judge Thelton Henderson of the United States District Court for the Northern District of California and was a litigator with Gibson, Dunn & Crutcher in San Francisco before joining the Seton Hall Law School faculty in 1996. Professor Alexander was the 1996-1997 Student Bar Association Professor of the Year, and he has been nominated for the award on numerous other occasions. He received his B.A. and J.D. from Yale University. In the spring 2003 semester, Professor Alexander returned to Yale Law School as a Visiting Scholar. [Mark Godsey]

Denver University Law Review Presents Federal Sentencing Survey

The Denver University Law Review is proud to present a special federal sentencing survey. 

On June 21, 2007, the United States Supreme Court handed down Rita v. United States, an important opinion addressing federal sentencing practices in the aftermath of the Court’s landmark 2005 decision in United States v. Booker.  Shortly thereafter, the Denver University Law Review solicited articles from top sentencing scholars, experts, and judges on Rita and how it changed (or did not change) the federal sentencing landscape. 

The articles merit special attention as the Supreme Court prepares to take up closely-related sentencing issues again in its upcoming Term.  On October 2, 2007, the Court will hear oral argument in Gall v. United States and in Kimbrough v. United States, two important cases in the continued evolution of the Court’s federal sentencing jurisprudence. Visit the Site. . . [Mark Godsey]

Mental Health Courts=Reduced Rate of Recidivism

From pn.psychiatryonline.org: Criminal defendants with mental illness stay out of jail longer when they are enrolled in programs that divert them from the prison system to the mental health system. 

Mental health courts offer an alternative to sending still more people with mental illness to jail. Judges, public defenders, district attorneys, case managers, therapists, probation officers, and psychiatrists together closely supervise defendants selected for these diversion programs, helping with housing, medical care, psychotherapy, education, and job training or coaching. 

The goal is to prevent these defendants from committing more crimes and to help them find a place in the community. Offenders who complete the program can have charges dropped or expunged. 

About 90 mental health courts operate around the country, yet little is known about the extent to which they reduce the chances of a defendant's committing another crime. 

Now a study of the mental health court in San Francisco documents reduced levels of recidivism, as measured by the time to re-offending, although questions remain about what accounts for outcomes and who gets to participate in the programs. Rest of Article. . . [Mark Godsey]

CrimProf Robert Batey Discusses Negative Implications of Insanity Defense

From news-press.com: Stetson University College of Law CrimProf Robert Batey discusses the possible negative impact of going with an insanity theory of defense in the case of Justin Grodin who accused of beating his 11-month-old daughter to death

“Jurors may have a hard time that the defendant suffered from a serious mental disease or defect,” said CrimProf Robert Batey.

J.L. “Ray” LeGrande and John Mills, who argued previously that Grodin is incompetent to stand trial, filed a notice last week indicating they may use the insanity defense.

“We were appointed to represent an individual who couldn’t communicate with us,” Mills said. “We’re basically dealing with a pet rock.

“It’s entirely possible he was insane at the time of the crime,” he said. “That doesn’t mean we’re conceding guilt.”

LeGrande and Mills said they might not necessarily present that defense, but a notice must be filed so prosecutors can prepare against it. Rest of Article. . . [Mark Godsey]

SCOTUS Announces that it Will Hear Cases on Lethal Injection and Voter ID

From NPR.com: The Supreme Court announces it will hear arguments on two controversial cases. The first asks whether lethal injection should be considered cruel and unusual punishment. The second asks whether voter identification laws deter people from casting a ballot. These cases and the way the court rules on them could be a factor in next year's elections. Dahlia Lithwick, legal analyst with the online magazine Slate, talks to Alex Cohen. Listen. . . [Mark Godsey]

UCLA Study Finds that LA's Clean Up Initiative has Harmed the Homeless

From latimes.com: A UCLA study found that the LA's year-old Safer City Initiative to clean up skid row has reduced crime but that few additional social services have been initiated.

"There have been unintended consequences that have negatively impacted the homeless and mentally disabled people, with unpaid citations for jaywalking leading to people going to jail and a focus on small-quantity drug buys ending up with ordinary addicts being sent to state prison," said author Gary Blasi, a UCLA law professor.

But top Los Angeles Police Department officials said Tuesday that the study cannot deny the more than 35% drop in serious crime in skid row as well as a similar drop in the number of homeless people on the streets since the initiative began last September.

"It is more than numbers. We are saving lives with the Safer City Initiative. That alone is a measure of its success. We used to pull dead bodies out of tents, parks and outhouses," said Cmdr. Andy Smith, head of the LAPD's Central Division, which leads the effort.

The push to clean up skid row is centered on the LAPD's addition last year of 50 more patrol officers.

Rest of Article. . . [Mark Godsey]

CrimProf Don Stuart Discusses Broken Agreement Between the Crown and Defendants

From canada.com: Queen's University CrimProf Don Stuart comments on Candian in case in which the Crown terminated an agreement with defendants.

A decision by the federal Crown to terminate a written agreement with defendants in the Toronto-area alleged terror-plot trial will almost certainly trigger an abuse-of-process motion arguing that charges should be dismissed against some of the accused or that there be an order for the preliminary hearing to resume.

The deputy Attorney-General of Canada issued a direct indictment on Monday against the 14 terrorism suspects, which brought an end to a preliminary hearing that began in June.

A direct indictment is a broad power in the Criminal Code that permits a federal or provincial Attorney-General or deputy Attorney-General to order defendants directly to trial. The direct indictment was issued despite a written agreement negotiated this spring between the Crown and the defence, which was filed in court.

The National Post has obtained a copy of the agreement, which contains concessions by defence lawyers so that the Crown would call certain witnesses at the preliminary hearing. "The taking of evidence will commence on May 28, 2007, and continue until the preliminary hearing is completed," the document states.

While the agreement is not an enforceable contract, the actions of the Crown may bolster the defence in an abuse-of-process motion, said Don Stuart, a criminal law professor at Queen's University in Kingston. "We have a tradition in the criminal justice system that the lawyers get along and trust each other," he explained. He stressed that it is very rare for a court to find the Crown has engaged in an abuse of process and while it is unlikely a judge will dismiss charges against any defendants, a "creative remedy" would be to order the preliminary hearing to resume. Rest of Article. . . [Mark Godsey]

Sandra Day O'Connor College of Law Presents a Film on a Wrongfully Convicted Man and Bill to Prevent the Problem

A film about wrongful convictions followed by a discussion with an Arizona man wrongfully imprisoned for eight years will be held on Sept. 27 at the Sandra Day O’Connor College of Law at Arizona State University.

In addition, a bill drafted by ASU law students to compensate wrongfully convicted Arizonans will be discussed. The bill soon will be introduced into the Arizona Legislature.

The film, After Innocence , tells the story of seven men imprisoned for decades and their efforts to rebuild their lives after DNA evidence proved their innocence.“The men are thrust back into society with little or no support from the system that put them behind bars,” according to the film’s Web site. “While the public views exonerations as success stories – wrongs that have been righted – After Innocence shows that the human toll of wrongful imprisonment can last far longer than the sentences served.” 

The film features Barry Scheck and Peter Neufeld, founders of the Innocence Project, which has helped to exonerate the more than 200 people freed through the use of DNA testing in the last decade. It also highlights the work of human-rights activist Dr. Lola Vollen, co-founder of the Life After Exoneration Program.

Following the film, Ray Girdler, a Prescott man who spent eight years in prison after being wrongfully convicted of arson and murder in the deaths of his wife and daughter, will discuss his experience. Girdler will be joined by his attorney, Larry Hammond, who eventually proved the fire was accidental, securing Girdler’s release.

Hammond, of Osborn Maledon, and others founded The Arizona Justice Project, which was established in 1998, making it the fifth organization in the United States set up to help inmates overturn wrongful convictions. Today, there are more than 40 similar organizations throughout the country.

[Mark Godsey]

ABA Report Calls for Halt in Ohio Executions

From abanet.org:  After a 30-month review of Ohio’s death penalty system, a team of Ohio legal experts, working under the auspices of the American Bar Association’s Death Penalty Moratorium Implementation Project, today issued a report calling for a temporary halt to executions in light of numerous problems the team uncovered. 

The team said that Ohio’s death penalty system is “flawed” due to inadequate procedures to protect defendants, including failure to require the preservation of biological evidence for as long as a defendant is on death row, failure to provide adequate legal services to all capital defendants and death row inmates, racial and geographic disparities in capital sentencing, and  insufficient safeguards to protect the rights of capital defendants and death row inmates with mental disabilities.

The team urged Gov. Ted Strickland to temporarily suspend executions to permit a “thorough review” of every aspect of capital punishment administration in the state.

"Ohio’s own experts have concluded that the state fails to provide adequate measures to protect defendants.  As has happened elsewhere, Ohio has exonerated five inmates who spent years on death row,” said ABA President William H. Neukom.  “The ABA agrees with the team’s view that nobody should be executed until the problems identified by these experts are addressed, and we urge a temporary halt to executions until fairness and accuracy are assured," he said.

The ABA neither supports nor opposes the death penalty, but it does urge a moratorium on executions until fairness and due process are assured in death penalty cases.  The Ohio report has not been presented to the ABA’s policy-making arm, the House of Delegates, and so does not constitute association policy. Rest of Article. . . Read Report. . . [Mark Godsey]

Different Perspective on America's Growing Prison System

From boston.com: What if America launched a new New Deal and no one noticed? And what if, instead of lifting the unemployed out of poverty, this multibillion-dollar project steadily drove poor communities further and further out of the American mainstream?

That's how America should think about its growing prison system, some leading social scientists are saying, in research that suggests prisons have a far deeper impact on the nation than simply punishing criminals.

Fueled by the war on drugs, "three-strike" laws, and mandatory minimum sentences, America's prisons and jails now house some 2.2 million inmates - roughly seven times the figure of the early 1970s. And Americans are investing vast resources to keep the system running: The cost to maintain American correctional institutions is some $60 billion a year.

For years sociologists saw prisons - with their disproportionately poor, black, and uneducated populations - partly as mirrors of the social and economic disparities that cleave American life. Now, however, a new crop of books and articles are looking at the penal system not just as a reflection of society, but a force that shapes it.

In this view, the system takes men with limited education and job skills and stigmatizes them in a way that makes it hard for them to find jobs, slashes their wages when they do find them, and brands them as bad future spouses. The effects of imprisonment ripple out from prisoners, breaking up families and further impoverishing neighborhoods, creating the conditions for more crime down the road. Prisons have grown into potent "engines of inequality," in the words of sociologist Bruce Western; the penal system, he and other scholars suggest, actively widens the gap between the poor - especially poor black men - and everyone else. Rest of Article. . . [Mark Godsey]

FBI report Shows Violent Crime is on the rise

From FBI.gov: Accordingto the FBI's report "Crime in the United States," at the national level, the report shows an increase of 1.9 percent in the amount of violent crime compared to 2005. The volume of property crime fell by nearly the same amount. While the rate of violent crime—473.5 per 100,000 inhabitants—rose for the second straight year, it is the third lowest total in the past two decades. Property crimes rates dropped to their lowest level since 1987.  Read Report. . . [Mark Godsey]

CrimProfs Paul Giannelli and Edward Imwinkelried Recently Finished the Fourth Edition of "Scientific Evidence"

Case Western CrimProf Paul Giannelli and University of California-Davis CrimProf Edward Imwinkelried recently finished the fourth edition of the textbook titled "Scientific Evidence".

Lexis Publishing Company recently released the textbook. Commentators have cited the former editions of the book hundreds of times, including the U.S. Supreme Court in United States v. Shefflin, 523 U.S. 303 (1998) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). [Mark Godsey]

DPIC Launches Capital Punishment in COntext

The Death Penalty Information Center recently launched Capital Punishment in Context, an innovative college-level curriculum that uses real-life capital cases to foster the research and analytical skills of college students. Capital Punishment in Context contains two teaching cases of individuals who were sentenced to death in the United States, Gary Graham and Juan Raul Garza, that are vehicles for engaging the larger issues surrounding capital punishment. The curriculum provides a detailed narrative account of each individual's legal case, including resources such as the original reports from the homicide investigation, affidavits, and transcripts of testimony from witnesses. 

Available for free through a simple registration process, Capital Punishment in Context incorporates detailed teaching notes, sample syllabi, and a variety of supplementary materials to support instructors from multiple disciplines such as sociology, criminology, legal studies, literature, writing, statistics, and religion. [Mark Godsey]

Determining a Daily Dosage of Marijuana

From latimes.com: Patients using marijuana for ailments ranging from chronic back pain to cancer are allowed by Washington state law to possess a two-month supply of the drug. But medical marijuana doesn't come with a standard dose or even a standard method of taking the drug.

The 1998 law has never spelled out how much usable pot nor how many plants make up a 60-day supply.
Now the Legislature has demanded an answer to the question by July, and the state is holding hearings to ask experts and citizens for their opinions on how to determine a two-month supply.

"There is so much you will have to take into account," says Joanna McKee, founder of Seattle's Green Cross Patient Co-op. "What about people who eat it? How different is the amount they need from people who smoke it?"

McKee was one of many who spoke at a state health department public meeting this month in Seattle. More than 100 people attended, and about 45 people spoke. Another meeting in Spokane drew similar numbers. Rest of Article. . . [Mark Godsey]

Sex Trafficking Expert Ronald Weitzer Questions the Severity of the Problem in the US

From washingtonpost.com: In 2000 Congress passed a law, triggering a little-noticed worldwide war on human trafficking that began at the end of the Clinton administration and is now a top Bush administration priority. As part of the fight, President Bush has blanketed the nation with 42 Justice Department task forces and spent more than $150 million -- all to find and help the estimated hundreds of thousands of victims of forced prostitution or labor in the United States.

But the government couldn't find them. Not in this country.

The evidence and testimony presented to Congress pointed to a problem overseas. But in the seven years since the law was passed, human trafficking has not become a major domestic issue, according to the government's figures.

The administration has identified 1,362 victims of human trafficking brought into the United States since 2000, nowhere near the 50,000 a year the government had estimated. In addition, 148 federal cases have been brought nationwide, some by the Justice task forces, which are composed of prosecutors, agents from the FBI and Immigration and Customs Enforcement, and local law enforcement officials in areas thought to be hubs of trafficking.

In the Washington region, there have been about 15 federal cases this decade.

George Washington University CrimProf and Expert on Sex Trafficking Ronald Weitzer, a criminologist at George Washington University and an expert on sex trafficking, said that trafficking is a hidden crime whose victims often fear coming forward. He said that might account for some of the disparity in the numbers, but only a small amount.

"The discrepancy between the alleged number of victims per year and the number of cases they've been able to make is so huge that it's got to raise major questions," Weitzer said. "It suggests that this problem is being blown way out of proportion."  Rest of Article. . . [Mark Godsey]

Youngest US Attorney is Now the Subject to Investgation

From washingtonpost.com: the nation's youngest U.S. attorney Rachel K. Pauloseis the subject of an investigation by the U.S. Office of Special Counsel into allegations that she mishandled classified information, retaliated against those who crossed her, and made racist remarks about a support staff employee, said multiple sources in Minnesota and Washington, who declined to be identified because the probe is still under way.

In addition, an internal Justice Department audit completed last month said her employees gave her very low marks, alleging that she treats subordinates harshly and lacks the requisite experience for the job, said several sources familiar with the audit. Her performance review was so poor that Kenneth E. Melson, head of the department's Executive Office for U.S. Attorneys, took the unusual step of meeting with her in Minnesota several weeks ago, two sources said.

The Justice Department's inspector general and Office of Professional Responsibility are also examining the Minnesota office as part of a broader investigation into personnel issues at Justice, although that inquiry does not specifically deal with Paulose's performance, sources said.

The case provides a key example of the unresolved challenges that will face former federal judge Michael B. Mukasey if he is confirmed to succeed Alberto R. Gonzales, who resigned as attorney general this month. Temporary appointees fill a quarter of the U.S. attorney offices and most of the department's senior jobs in Washington, while internal and congressional investigations into the problems at Justice are likely to continue well into next year. Rest of Article. . . [Mark Godsey]

New Sex Offender Law Causes Parolees to Now Be in Violation

From npr.com: Parole boards have begun to enforce a new California effort to impose strict residency requirements on sex offenders freed from prison. So far, nearly 3,000 parolees have been found to be in violation of the law. Listen. . . [Mark Godsey]