CrimProf Blog

New Article Spotlight: Persuasion and Resistance: Race and the Death Penalty in America

University of Kentucky CrimProf Mark Peffley and University of Pittburgh CrimProf Jon Hurwitz recently released Persuasion and Resistance: Race and the Death Penalty in America. Here is a description:

Although there exists a large and well-documented “race gap” between whites and blacks in their support for the death penalty, we know relatively little about the nature of these differences and how the races respond to various arguments against the penalty.

To explore such differences, we embedded an experiment in a national survey inwhich respondents are randomly assigned to one of several argument conditions. We find that African Americans are more responsive to argument frames that are both racial (i.e., the death penalty is unfair because most of the people who are executed are black) and nonracial (i.e., too many innocent people are being executed) than are whites, who are highly resistant to persuasion and, in the case of the racial argument, actually become more supportive of the death penalty upon learning that it discriminates against blacks.

These interracial differences in response to the framing of arguments against the death penalty can be explained, in part, by the degree to which people attribute the causes of black criminality to either dispositional or systemic forces (i.e., the racial biases of the criminal justice system).[Mark Godsey]

CrimProf Dan Mark Comments on Stopduiaz.com

From azcentral.com: Stopduiaz.com is a Web site that provides the names, mug shots and blood-alcohol content of people convicted of felony and misdemeanor drunken driving in the Valley.

It is the modern equivalent of a Puritan stockade, where the guilty are exposed and the rest of society is reminded of what can happen when you break the law.

The anti-drunken-driving campaign is the work of Maricopa County Attorney Andrew Thomas.

Some are opposed to this type of campaign, but Thomas believes that because DUI is a crime routinely committed by otherwise law-abiding citizens, the fear of shame could prevent people from getting behind the wheel when they have had too much to drink.

Florida State University College of Law CrimProf Dan Markel thinks the tactic reflects poorly on society.

"The very goal of shaming," Markel wrote in the New Republic, "is the dehumanization of another person before, and with the participation of, the public. Before we permit democratic institutions to subject an offender to ridicule, scorn and humiliation, we have to ask whether this kind of punishment comports with evolving standards of decency and the dignity of humankind. The answer is clearly no."

In an interview, Markel also questioned whether the campaign will make a person less likely to drive drunk.

"The problem is that when people drink, they are probably not in the mode of thinking about what the possible punishment is," Markel said. "And if they did, then they probably wouldn't be driving."

Rest of Article. . . [Mark Godsey]

Crimtorts Conference

Widener University School of Law will host the first national conference on "crimtorts."  "Crimtorts" refers to the expanding middle ground between criminal and tort law.  The conference will take place on February 25, 2008 in Harrisburg, Pennsylvania.  The lineup of speakers include: 

• Martha Chamallas (Ohio State),
• Mark Geistfeld (NYU),
• Keith Hylton (Boston University),
• Mary Kate Kearney (Widener),
• Tom Koenig (Northeastern Sociology),
• Jeffrey O'Connell (Virginia), Mike RustadSheila Scheuerman (Charleston),
• Tony Sebok (Cardozo),
• Cathy Sharkey (NYU),
• Ken SimonsByron Stier (Southwestern). 

I will post the brochure in the next few days.  If you have any questions, please contact Chris Robinette, at (717) 541-3993 or [email protected].  [Mark Godsey]

Shedding Light on Lie Detectors

From MSNBC.com: An extensive study from the National Academy of Science published in 2003 concluded that in a very controlled setting — say, with college students in a psychology lab — a polygraph can discriminate lying at “rates above chance.”

But the machine — which measures pulse, blood pressure, sweat and other physiological parameters — often fails in the real world. Countermeasures, or ways to cheat the test, are well known and widely available. That's why the National Academy of Sciences concluded that “polygraph test accuracy may be degraded by countermeasures, particularly when used by major security threats who have a strong incentive and sufficient resources to use them effectively.”

The Academy found that reliance on polygraph testing to screen government employees who may be potential security threats results in “too many loyal employees falsely judged deceptive and too many security threats left undetected.” Rest of Article. . . [Mark Godsey]

SCOTUS to Once Again Decide if Federal Judges Have Jurisdiction to Hear Guantanamo Cases

From NYTIMES.com: Observers at the Supreme Court on Wednesday should probably be excused in advance for concluding that they have wandered into a time warp.

The question before the court will be whether federal judges have jurisdiction to hear cases brought by detainees at Guantanamo, Cuba. A lawyer for a group of detainees will argue that they do; the Bush administration’s solicitor general will argue that they do not.

But did not the court already decide that question? Did not the justices rule in Rasul v. Bush in 2004 that federal judges could review the legality of the Guantánamo detentions, rejecting the administration’s position that the detainees’ fate was a question for the executive branch alone?

No, history will not just be repeating itself at the court Wednesday. It has moved on, and the four years since the court shocked the administration by agreeing to hear the Rasul case have been busy ones.

Each of the three branches of government has made a series of judgments on how to strike the balance between individual liberty and national security in the post-9/11 era. This latest Supreme Court confrontation, round three of the justices’ encounter with the detainee question, reflects an extraordinary interbranch drama, played out as a series of actions and reactions that has now cycled back to where it began: the role of the federal courts.

This third round is potentially the most momentous, because at stake is whether the Supreme Court itself will continue to have a role in defining the balance or whether, as the administration first argued four years ago, the executive branch is to have the final word.

The roots of the new case, Boumediene v. Bush, No. 06-1195, lie in the court’s second-round detainee case, Hamdan v. Rumsfeld, decided in 2006. The court ruled that the military commission system the Bush administration had set up to try enemy combatants for war crimes was fatally flawed because the president had acted without Congressional authorization. Rest of Article. . . [Mark Godsey]

SCOTUS Takes a Right to Counsel Case

From SCOTUSBLOG.com: The Supreme Court agreed on Monday to further clarify when a suspect taken into custody by police has a right to a lawyer. The question is whether that right sets in when an individual has been taken before a magistrate, who finds reason to believe a crime has been committed and sends the individual to jail, or whether it only ataches when a prosecutor prepares to or makes a charge.

The new right-to-counsel case, Rothgery v. Gillespie County, Texas (07-440), the Justices will hear, with oral argument likely in March, involves a Fredericksburg, Texas, man, Walter Allen Rothgery, who sought but was denied the aid of an attorney when he appeared before a magistrate at a probable cause hearing. The magistrate found probable cause to support a charge that Rothgery was a felon who had a gun; Rothgery was sent to jail. He was released on bond, but rearrested later after a grand jury indicted him. Once he obtained a lawyer, the charges were dismissed; the felony allegation against him turned out to have been an error because charges against him in California had been dismissed.

Rothgery sued the county in a civil rights lawsuit over the denial of a lawyer at the first hearing. The County opposed the lawsuit, contending that the right to counsel did not attach until he actually had been indicted — a claim ultimately upheld by the Fifth Circuit Court.  Rothgery’s appeal was supported by 22 law professors urging the Justices to clarify when the right to counsel attaches.

Rest of Article. . .[Mark Godsey]

Spotlight on a Texas Capital Crimes Defense Attorney

From observer.guardian.co.uk: The Observer recently published an article showcasing the life of a death penalty defense attorney in Texas.  Here is an excerpt:

Texas sentences more people to death than any other state in America, and the emotional toll on its defence lawyers is so great that many only ever work on a handful of cases. Not so Jerry Guerinot. He's defended 39 men and women. The bad news: 20 have been sentenced to death.

A few miles west of downtown Houston, in his office on a scruffy industrial estate, Jerry Guerinot, probably America's most dangerous defence lawyer, reflects on his career. For a conscientious attorney, death penalty murder trials create 'absolutely the most pressure you can have', he says emphatically. 'You never want anybody to be sentenced to death on your watch. I'm never happy to see anybody get sentenced to death. I don't think anybody could ever be happy.'

Guerinot, a big man with a booming voice and thinning, silvery hair, says that at the age of 62 he's finally had enough of the legal death business in which he's toiled for more than 25 years. '[If] the state tries you for the death penalty in Harris County [the jurisdiction in which Houston sits], the chances of you getting it are huge. And the chances of you having it carried out against you are even bigger.' Guerinot is right - as of July this year, 98 Harris County men and two women have been dispatched since the US Supreme Court restored the death penalty in 1976. Houston has 1.3 per cent of America's population but carries out 10 per cent of its executions.

But however great the trauma of losing a client, Guerinot, who earlier acted as a prosecutor in six cases in which the defendant received the death penalty, says he can't recall how many of those he defended have been sentenced to die in Texas's well-used lethal injection chambers: 'I want to say maybe 10 to 15, somewhere in there.' But he cannot, he admits, remember them all: 'There's just so many.'

According to Guerinot, 'significantly more did not get death than got death'. In fact, no fewer than 20 of the men and women Guerinot has represented since he turned to defence work have been sentenced to death. Two had their sentences commuted when the Supreme Court ruled in 2005 against capital punishment for juveniles, because they were under 18 when they committed their crimes. Thirteen are still on death row. Five have already been executed, the most recent last year. Rest of Article. . .

[Mark Godsey]

 

Editorial Concerning Alabama's Refusal to Order DNA Testing Before Executing a Man Who Claims Innocence

birminghamnews.com:  The Birmingham News recently ran an editorial discussing state of Alabama's refusal to order DNA testing before executing a Death Row inmate who claims to be innocent. Here is an excerpt:

homas Arthur may absolutely be guilty of a 1982 murder for which he was sentenced to death. Arthur emphatically claims he is not; a jury concluded he was.

The truth is, there's at least some evidence to suggest guilt and other evidence that makes you wonder. Unfortunately, the jury that decided Arthur's fate didn't have the luxury of DNA testing that might have helped them sort through the complicated facts of the case.

Had the technology existed at the time of his trial, surely DNA tests would have been conducted on the evidence, which includes hair and semen. It's routinely used now on the front end of criminal cases to confirm guilt or to eliminate suspects.

It boggles the mind, then, that the state of Alabama won't order DNA tests before proceeding to execute Arthur on Dec. 6.

True, the U.S. Supreme Court this week denied Arthur's legal bid for DNA testing. But the courts are bound by legal timelines and rules. We may not always like those constraints, but at least we can see the reasoning behind the decision.

Gov. Bob Riley is under no such rules. He can order DNA testing in this case, and there's no good reason for him not to do it. Rest of Article. . . [Mark Godsey]

CIA Secret Holding Cell in Jordan

From washingtonpost.com: Over the past seven years, an imposing building on the outskirts of Amman, Jordan has served as a secret holding cell for the CIA.

The building is the headquarters of the General Intelligence Department, Jordan's powerful spy and security agency. Since 2000, at the CIA's behest, at least 12 non-Jordanian terrorism suspects have been detained and interrogated here, according to documents and former prisoners, human rights advocates, defense lawyers and former U.S. officials.

In most of the cases, the spy center served as a covert way station for CIA prisoners captured in other countries. It was a place where they could be hidden after being arrested and kept for a few days or several months before being moved on to Guantanamo Bay, Cuba, or CIA prisons elsewhere in the world.

Others were arrested while transiting through Jordan, including two detained during stopovers at Amman's international airport. Another prisoner, a microbiology student captured in Pakistan in the weeks after the attacks of Sept. 11, 2001, has not been seen since he was flown to Amman on a CIA plane six years ago.

The most recent case to come to light involved a Palestinian detainee, Marwan al-Jabour, who was transferred to Jordan last year from a CIA-run secret prison, then released several weeks later in the Gaza Strip. Rest of Article. . . [Mark Godsey]

 

CrimProf Spotlight: Diane E. Eisenberg

This week, the CrimProf Blog spotlights Ave Maria Law School CrimProf Diane E.  Eisenberg.

Professor Eisenberg began her legal career in private practice, working first as an associate at the San Francisco firm of Steefel Levitt & Weiss, in the area of complex civil litigation and later at Townsend & Townsend & Crew, in the areas of intellectual property, antitrust and complex commercial litigation.

Professor Eisenberg has also served as an attorney for the administrative office of the Judicial Council of California, and has taught at Golden Gate University School of Law, the University of Michigan Law School, and Hastings College of the Law. Her course offerings include Professional Responsibility, Criminal Law, and Law and Literature.

She earned a Bachelor of Arts in English and Religious Studies from the State University of New York, Stony Brook, a Master of Arts in English and American Literature from Princeton University, and a Juris Doctor from Harvard Law School. [Mark Godsey]