Category: Criminal Law

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Silence and Evil

Some of you may have read the story of the 55 bodies found at a reform school for boys in Florida. Although the national media is finally paying some attention (law professor Tim Wu deserves some credit for this), I cannot help but wonder the reasons that it isn’t considered true headline news. It is hard to identify a clearer example of a recent story exhibiting  such genuine evil and injustice.

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UCLA Law Review Vol. 61, Issue 2

Volume 61, Issue 2 (January 2014)
Articles

Negotiating Nonproliferation: International Law and Delegation in the Iranian Nuclear Crisis Aslı Ü. Bâli 232
Detention Without End?: Reexamining the Indefinite Confinement of Terrorism Suspects Through the Lens of Criminal Sentencing Jonathan Hafetz 326
Transparently Opaque: Understanding the Lack of Transparency in Insurance Consumer Protection Daniel Schwarcz 394

 

Comments

California’s Unloaded Open Carry Bans: A Constitutional and Risky, but Perhaps Necessary, Gun Control Strategy Charlie Sarosy 464
Exclusion, Punishment, Racism and Our Schools: A Critical Race Theory Perspective on School Discipline David Simson 506

 

 

 

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What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.

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“The German Prosecution Service: Guardians of the Law?”

I want to note the publication of my colleague Shawn Boyne’s fascinating new book on prosecutorial discretion in Germany.  Here is the Abstract:

Acclaimed as the “the most objective prosecutors in the world”, the German prosecution service has long attracted the attention in the past of comparative law scholars. At first glance, the institutional position and statutory mandate of German prosecutors indicate that that reputation is well-deserved. Unfortunately, the introduction of charge-bargaining has opened the door to criticism that German prosecutors have abandoned their role of objective decision-makers. Using interview data collected from interviews with German prosecutors themselves as well as quantitative data, the book uses the actual voices of German prosecutors to show how real-world constraints, rather than changes in the law, undermine the ability of German prosecutors to objectively seek the truth. The book will take readers behind closed doors where prosecutors discuss case decisions and unveil the realities of practice. As a result, it will critically revise previous studies of German prosecution practices and offer readers a well-researched ethnographic analysis of actual German decision-making practices and the culture of the prosecution service. Unlike prosecutors in America’s adversarial system, whom critics claim are driven by a “conviction-mentality” and gamesmanship, German prosecutors are institutionally positioned to function as (at least semi-)judicial officials dedicated to finding a case’s objective truth. The book argues that, organizational incentives and norms, rather than the boundaries of the law determinately shapes how prosecutors investigate and prosecute crime in Germany. 

American Arms Race

One has to wonder what the upshot of this story is for those who promote more widespread ownership of guns:

As a male moviegoer texted, the man seated behind him objected, and asked the texter to put his phone away. . . . Voices were raised. Popcorn was thrown. And then came something unimaginable — except maybe in a movie. A gun shot. [The texter] was fatally wounded. His wife was hit, too, through the hand as she raised her hand in front of her husband as the shooter drew a handgun.

Is the idea behind, say, universal carry (or concealed-carry) that someone else in the theater could have shot the gun out of the killer’s hand before he shot the texter? That in a world of universal gun ownership, nobody would think to pull a gun on someone else in a trivial situation like this because the other person’s wife would shoot back? I recall reading a science fiction novel years ago about a world where everyone was exceedingly polite, because they knew everyone else was packing lethal force. That may be about the most positive outcome I can imagine from the emerging American arms race.

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Gay Polygamy in Utah!

mUX_twETB9XdG_75sgCSB3ABy now you’ve heard the news. A federal judge in Utah just ruled that the state’s ban on same-sex marriage was unconstitutional. This follow on last week’s ruling, from a different judge, that portions of Utah’s polygamy statute were also unconstitutional.

What does it mean? Obviously, it means the advent of gay polygamy!! It won’t stop until everyone is married to everyone else, in one giant gay-polygamous-mega-wedding. Let the festivities begin!

Okay, maybe not. Let’s go through the rulings, piece by piece, to see what they say, and what their effects may be. Read More

A Strange New Front in the Medicalization of Penality

The headline says it all: “Cops Subject Man To Rectal Searches, Enemas And A Colonoscopy In Futile Effort To Find Drugs They Swear He Was Hiding.” We can at least hope that Rochin has some applicability to colonoscopies.

But the Supreme Court has “upheld invasive strip searches even for those charged with the most minor crimes—–including unpaid traffic fines.” Perhaps the drug war will lead to new job opportunities for medical professionals willing to ensure that various police or military interventions don’t cross the line into Rochin territory.

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Squaring Revenge Porn Criminal Statutes with First Amendment Protections

Yesterday, the New York Times editorial board endorsed the efforts of the Cyber Civil Rights Initiative to criminalize revenge porn. As the editorial board urged, states should follow the lead of New Jersey in crafting narrow statutes that prohibit the publication of nonconsensual pornography. Such efforts are indispensable for victims whose lives are upended by images they shared or permitted to be taken on the understanding that they would remain confidential. No one should be able to turn others into objects of pornography without their consent. Doing so ought to be a criminal act.

Professor Mary Anne Franks has been at the forefront of legislative efforts in New York, Wisconsin, and Maryland. Soon, I will be blogging about the work Franks and I have done with Maryland legislators. Now, I would like to shift our attention to the First Amendment. As free speech scholar Eugene Volokh has argued elsewhere, non-consensual pornography can be criminalized without transgressing First Amendment guarantees. Let me explain why from the vantage point of my book Hate 3.0 (forthcoming Harvard University Press) and an essay Franks and I are writing for the Wake Forest Law Review. Read More

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Recommended Reading: Avlana Eisenberg’s Expressive Enforcement

Avlana Eisenberg recently posted on SSRN her article “Expressive Enforcement” forthcoming in the UCLA Law Review. The piece makes an important contribution to the literature on hate crimes laws and enriches the literature on expressive theories of law. Eisenberg’s study of hate crimes charging decisions (based on a set of interviews with prosecutors in 23 states) finds some surprising patterns. While the prosecutors Eisenberg spoke to often don’t bother with hate crimes charges in archetypal hate crimes cases (because they already can get a serious conviction for a violent crime, and it’s not worth the difficulty of proving bias motives), many do charge hate crimes in certain kinds of cases that don’t really seem “hate”-related at all–for instance, frauds that target senior citizens. Such crimes may well involve “vulnerable victims,” but they do not involve the kind of group-based animus that hate crimes laws are generally intended to condemn. (I blogged about such prosecutions here). Eisenberg uses this to illustrate a broader point: when we talk about the “expressive message of a law,” we usually are thinking about the message legislators intended to express when they passed the law, or at least some message that is encapsulated, even if unintentionally, by the legislation itself. But the way the law plays out on the ground may be very different, and that affects the way the expressive message is actually heard by communities (and, in this case, risks devaluing it, by turning the threat of hate crimes prosecution into just another instrumental tool in prosecutors’ toolboxes).