CrimProf Blog

How the 9/11 Attacks Changed America's Legal Landscape

Here's a look from Bloomberg.com at how the 9/11 attacks changed America's legal landscape over the past five years--particularly, in the areas of criminal and constitutional law.  The article discusses specific shifts in executive power, international law, and privacy issues that normally would have taken decades to occur.  The article concludes that the changes in criminal law and the balance of power among the governement's branches have ultimately reduced or eliminated many of the external fact-checking measures typically in place to balance power and check the government.  For example, documents that once were available to the public have been reclassified as secret, and that which used to be available online has been removed from public view altogether.  As a result, accountability and public confidence in the system may wane and take decades to restore.

An excerpt: "As a measure of how far things have gone in the law, consider a single amendment to an anti-torture bill passed last year....Congress curtailed one of the most elemental rights, that of habeas corpus, when it said the men held at Guantanamo Bay could no longer go to the U.S. Supreme Court to challenge any aspect of their imprisonment.

That's 'just about the most stupendously significant act that the Congress of the United States can take,' Justice David Souter remarked at an oral argument this spring.  And then there was the revelation that the president had authorized domestic-wiretapping without court orders, even though a law specifically requires them...

'What I was seeing in the months after 9/11 was definitely a presidential exercise of power in what was perceived to be a moment of importance,' says Edwin Smith, constitutional law professor at the University of Southern California. 'I also saw a Congress going along with absolutely everything.'...And yet, in his conduct of the war on terrorism, President Bush has acted without the constitutionally required authority of Congress, the Supreme Court has ruled."  More from Bloomberg.com. . . [Michele Berry]

Bush Cuts Bill of Rights to a "More Workable" Six Amendments

The Onion's story here.

Cynthia McKinney and the Police

Representative Cynthia McKinney is being investigated by a grand jury for shoving or hitting a Capitol Police Officer who, claiming not to recognize her, physically prevented her from going around a metal detector.  Of course, she should not have done that.  But I was struck by the similarity of that case to a Newsweek My Turn column written by an African American female MD, who is continually suspected by patients of not being a real doctor.  Remember when the police allegedly got rough with African American astronaut Dr. Mae Jemison?  Has anyone heard of a Capitol Police Officer physically stopping a white male who went around the metal detector who turned out to be a Member of Congress? [Jack Chin]

Sex Toys Sending Vibrations through the 11th Circuit

A number of states still have laws that make it a crime to sell or distribute sex toys, and over the past several years there has been a notable amount of litigation throughout many southern states concerning whether these laws remain constitutional in the aftermath of the U.S. Supreme Court's ruling in Lawrence v. Texas, which holds that states cannot outlaw homosexual sodomy between consenting adults. Here's a description of cases challenging laws criminalizing sex toy sales and/or distribution, which can be summarized as follows: Sex toy bans are constitutional, except for when they violate First Amendment commercial speech rights, and please be sure to remove the batteries before placing sex toys into checked luggage. [Mark Godsey]

Illinois Hate Crimes Panel Fractures over Nation of Islam Appointment

Three Jewish panel members resigned when a Nationl of Islam leader was appointed to the state's Hate Crimes Panel.  Story here.

Pardon Sought in Civil Rights Era Wrongful Conviction

Clyde Kennard is one of the unsung martyrs of the civil rights movement; he was convicted of a crime underquestionable circumstances after he sought admission to an all white university, and spent most of the rest of his life in prison, realeased only when terminally ill to die shortly thereafter.  I mentioned his story in an article a few years ago.  Gabriel J. Chin, Rehabilitating Unconstitutional Statutes, 71 U. Cin. L. Rev. 421, 447-48 (2002).

Now Northwestern CrimProf Steve Drizin and a high school teacher Barry Bradford and their students are seeking a pardon on the ground of actual innocence.  Here's their message to you:   

"Last year, you may recall, three of my students and I helped to get the Mississippi Burning murder case reopened, This year we have taken on another similar struggle and we need your help. Along with Prof. Steven Drizin of the Center On Wrongful Convictions at the Northwestern University School Of Law, we wanted to let you know that we have made a major breakthrough on our latest effort to overturn a miscarriage of justice and history from the Civil Rights Era.

Our website is http://www.clydekennard.org " Full message here; they just want you to email the Governor of Mississippi to support the pardon.  The Mississippi Supreme Court recently denied collateral relief on the ground that Kennard died in 1963.  

Montana Defense Clinic Seeks Pardons for WWI Sedition Convicts

U of Montana Law and journalism students have joined forces to form the Montana Sedition Project, a group of 13 students petitioning for posthumous pardons from MT Gov. Brian Schweitzer for 74 people convicted of sedition during 1918-19.  During these WWI, Montana operated under one of the harshest anti-speech laws ever passed by any state in the history of the United States.  UM journalism Professor Clem Work inspired the project.  He authored the recently published book “Darkest Before Dawn: Sedition and Free Speech in the American West,” which details Montana’s old draconian sedition laws.  The law students who are participating in the Montana Sedition Project plan are drafting a legal opinion as to whether the governor has the authority to pardon these WWI sedition convicts.  In April, the law students hope to present their findings to Gov. Schweitzer.  More on the Sedition Project. . . [Mark Godsey]

Lesbian and Gay Law Notes

Published out of New York Law School are archived here.  There continues to be some criminal law issues related to GayLaw, such as the Kansas Romeo and Juliet case. [Jack Chin]

Happy Martin Luther King Birthday

I'm celebrating by having lunch with one of my colleagues who clerked on the Supreme Court when Brown was argued.  Meanwhile, here is a TV Interview from 1957 with Dr. King and Federal Judge J. Waring Waites. [Jack Chin]

Alabama CrimProf on Sexual Orientation's Exclusion from Hate Crime Legislation

From Al.com (Montgomery, Ala.): AP--"The severe beating of a Montgomery man for allegedly making sexual advances toward another man is the latest example of why Alabama's hate crime law should include sexual orientation, the leader of a gay advocacy group said Wednesday. Police say Marcus Dewayne Kelley, 26, told them he beat Billy Sanford, 52, with a hammer because of repeated sexual advances. Sanford has remained in a coma since the Oct. 19 attack at his home. Kelley, who worked as a handyman for Sanford, was arrested Monday in Alexander City and will be charged with attempted murder...[T]he attack on Sanford is at least the fifth reported crime based on homosexuality in Alabama within a year.

"Hate crimes are based in hatred, and committed based on anti-gay hatred," said [Howard Bayless, Chairman of Equality Alabama]. "The most important thing about it is the perception of the perpetrator, not the identity of the victim." Alabama law defines a hate crime as a violent act committed against a person because of their race, color, religion, national origin, ethnicity, or physical or mental disability. For the last three legislative sessions, Rep. Alvin Holmes, D-Montgomery, has pushed bills to include sexual orientation within Alabama's hate crime statute. The bills have yet to pass.

University of Alabama Law professor and retired Judge Joseph Colquitt said the penalties in many cases like Kelley's are the same even though Alabama's hate crime statute is as strong as those in other states. Attempted murder carries the same penalties as actual murder — a sentence of 10 to 99 years served. An additional hate crime charge would raise the minimum sentence by five years. "It has some affect but not a great amount of impact," Colquitt said. "In many cases of attempted murder or murder, the sentencing may very well be more than 15 years."

[Regardless of the practical effects on sentencing,] Bayless said that including violence aimed at gays and lesbians would likely decrease those crimes. The state sends a message that it is OK to hurt gays and lesbians by excluding sexual orientation from the statute, he said. "It is so important that we get sexual orientation added to the hate crimes bill so that awareness of this problem will grow," Bayless said." [Mark Godsey]

9th Circuit: Law Prohibiting False Statements Against Officers, Overturned

From MSNBC.com: San Francisco, CA (AP): The 9th Circuit Court of Appeals in California has nullified a California criminal law enacted after Rodney King's 1991 beating.  The law prohibited citizens from knowingly lodging false accusations against police officers, an offense punishable by up to six months in jail.  The 9th Circuit held that the law unconstitutionally limited free speech, because the law did not prohibit false statements supporting officers, but rather, only the negative false statements.  The law was enacted in 1995 in reaction to a surge in complaints against officers following King's 1991 taped beating. Story... [Mark Godsey]

Hawaii: ACLU Sues State for "Unsanitary" "Chaotic" Youth Prisons

From Findlaw.com: Honolulu (AP): "A civil liberties group sued the state of Hawaii on Monday, saying it failed to protect inmates at a youth prison where teens were abused and kept in overcrowded, unsanitary conditions.

The class-action lawsuit asks for a federal court-ordered expert to "design, implement and oversee policies and procedures" at the Hawaii Youth Correctional Facility, said Lois Perrin, legal director for the American Civil Liberties Union of Hawaii...

After an ACLU report in 2003 said young inmates were abused and harassed, the prison's two top administrators were removed and the attorney general's office launched an investigation. In August, the U.S. Justice Department released its own critical report, saying the young inmates' constitutional and federal statutory rights were being violated and describing the Kailua facility as 'existing in a state of chaos'...An ACLU lawsuit last month accused guards at the youth prison of harassing and discriminating against inmates because of their sexual orientation." Story... [Mark Godsey]

RIP, Rosa Parks

As the photo on the CNN obit reminds me, segregation was a set of criminal controls. Here's the Conglomerate Blog's Post.  [Jack Chin]

Kansas Supreme Court Strikes Down Harsher Penalties for Gay Statutory Rape

An 18 year old guy was having sex with a 14 year old guy; if one of them had been a female, the maximum sentence would have been 15 months; instead, the dude got 17 years.  The Kansas Supreme Court unanimously held that punishnent of gay underage sex much more harshly than straight underage sex was unconstitutional.  Story here, opinion here. [Jack Chin]

Black Dad Describes False Arrests of Kids

Miami Herald Columnist Leonard Pitts (archive here) describes how, notwithstanding the description of a 5'8" suspect, his 6'3" kid was arrested and held for a couple of weeks; "A few weeks later, the prosecutor declined to press charges, finally admitting there was no evidence." Column here. [Jack Chin]

CrimProfs Offer Insight into the O.J. Verdict, Ten Years Later

This past Monday, October 3, 2005, marked the ten year anniversary of the O.J. Simpson "not guilty" verdict.  Cal Berkeley CrimProf David Sklansky and Temple CrimProf & Associate Dean JoAnne Epps offer insight into the O.J. verdict and its impact, ten years later, in the following article.

From BlackAmericaWeb.com: "As an estimated 150 million people watched the live broadcast of the courtroom finale on October 3, 1995, television news cameras captured the vastly-different reactions of black and white Americans, and the images spoke volumes about race relations as the 20th century drew to a close.

JoAnn A. Epps, a one-time prosecutor for the city of Los Angeles and the U.S. Attorney’s Office in Philadelphia, told BlackAmericaWeb.com that she believes the Simpson trial presented a defining moment for blacks and the legal system.  "I think the O.J. trial did empower African-Americans across this country to believe that they could get a fair day in court, although for many that realization was tempered by the worry that their day in court would be costly," said Epps, who is black. "But the trial gave hope for many that they could have their case and their voice heard."

Some would argue that the trial and the infamous use of the "race card" by Simpson’s defense team were nothing more than a public spectacle, while others believe it played an important role in getting people to have frank discussions about race.  "The race card spawned a tremendous amount of conversation on race," said Epps, a professor and associate dean at Temple University’s School of Law. "Not all of it was easy, but it was good that we were reminded of this thorny issue."...

"This trial really revealed the extent to which black Americans and white Americans saw things through different lenses,” David Sklansky, a professor at the University of California at Berkeley’s School of Law, told BlackAmericaWeb.com. "There was just an astonished lack of comprehension by many white Americans, and there were things that seemed plausible to black Americans that didn’t seem plausible to whites -- like how blacks were much quicker, in general, to believe that police could have planted evidence."

The person many believed to have planted evidence was Los Angeles homicide detective Mark Fuhrman, who discovered a bloody glove near the murder scene. While on the witness stand, Fuhrman also denied ever having used a racial slur, although it was eventually discovered that he spewed the N-word in a taped interview 10 years prior to Simpson’s trial.

'That was an important lesson from the trial,' said Sklansky, who was a criminal law professor at the University of California at Los Angeles at the time of the trial. 'It was a lesson that, despite all of the progress that has been made, we still live in a universe in which black and white lives can be very different. The fact was that police officers that didn’t utter racial epithets in court might very well use them outside of the courtroom.'" More insight from Epps and Sklansky here... [Mark Godsey]

European Commission Proposes Increased Surveillance

From PCPro.co.uk: "The European Commission has accepted proposals to log details of all telephone, email and Internet traffic in an attempt to combat terrorism and serious crime.

The proposals, which are designed to harmonise data retention practices across the EU, will need the backing of all 25 member states. However some states believe they have been watered down in response to pressure from telecommunications firms and civil rights groups.

Under the EC proposals telecoms operators will be required to store data for one year and ISPs to retain it for six months. In the wake of the Madrid bombings, the EU's Council of Ministers had originally called for a three year retention period...Home Secretary Charles Clarke stressed the importance of a common approach. 'Getting some kind of uniformity across Europe is important because this is such an important technique in how we solve serious crimes and in dealing with counter-terrorism,' he said." Story... [Mark Godsey]

Boston: Controversy over Racial Composition of Jury Pools

Using registered voters and driver's license records to select jurors,  skews your pool white and affluent.  In addition, databases are maintained by localities rather than the state as a whole, and affluent communities have more accurate records, so more of them are findable.  U.S. District Judge Nancy Gertner is trying to increase the pool of eligible jurors, and it is controversial.  Story here. [Jack Chin; thanks to Lester Roy Zipris]

US House Approves More Stringent Sex-Offender Monitoring and Expansions to Hate Crime Law

From MSNBC.com: Washington (AP)--On Wednesday, the US House approved the Children's Safety Act, "which, among its many provisions, creates a national Web site for child sex offenders and stipulates that sex felons face up to 20 years in prison for failing to comply with registration requirements...The sex offender bill...also requires felony offenders to register for life and authorizes the death penalty for sex crimes resulting in the killing of a child." House Judiciary Committee Chairman James Sensenbrenner, R-Wis., called the bill a response to a "'national crisis' in child sex offenses. He said that of some 550,000 convicted sex offenders in the nation, the whereabouts of 100,000 are unknown."  Rep. Mark Foley, R-Fla., commented that 'We track library books better than we do sexual predators.' 

In addition to tightened sex-offender monitoring, the bill also expands the "current hate crime law to include some crimes involving sexual orientation, gender and disability. Under current law, the federal government assists local and state authorities prosecuting limited types of crimes based on the victim’s race, religion or ethnic background." Sensenbrenner expects the bill to be approved by the Senate and signed into law by the end of the year. Story... [Mark Godsey]

WI: Firefighters Challenge Hate Crime Statute

Story here. [Jack Chin]