The Faculty Lounge

Perspectives on the Judge’s Comments at Larry Nasser’s Sentencing

Once again the headlines bring us subtle ethics questions, this time in judicial ethics.  Carissa Hessick has a very thoughtful discussion over at Prawfsblawg of the issues raised by some of Michigan Judge Rosemarie Aquilina’s comments during Larry Nasser’s sentencing hearing.  As everyone knows, Dr. Nasser pleaded guilty to multiple counts of sexual assault after molesting scores of girls and young women, many of them elite athletes, over the course of many years while pretending to provide them medical treatment.  In particular, there has been widespread debate over the propriety of Judge Aquilina’s remark, made in the middle of the proceedings:

Our Constitution does not allow for cruel and unusual punishment.  If it did, I have to say, I might allow what he did to all of these beautiful souls—these young women in their childhood—I would allow someone or many people to do to him what he did to others.

As Prof. Hessick observes, “[t]his is a remarkable statement by a judge, but this is also a remarkable case.”  She contends that the statement was nevertheless improper, for the reason that it contravenes the judge’s public role and image as a “neutral arbiter” during sentencing.  (She also concludes that current law may offer no remedy for the impropriety other than public criticism, but does not clearly suggest whether she thinks it should.)

Prof. Hessick rejects the notion that the judge’s proper role encompasses expressing “the people’s outrage” at sentencing, arguing that this job is the prosecution’s alone.  She points out, quite correctly, that acting as a voice of public disapprobation is hard to reconcile with the principle of judicial ethics enjoining impartiality in “all duties of judicial office.”  This is an important point, and it makes the issue difficult. But as discussed below, I think she gives the point undue weight and scope.  I discuss why after the jump.

Criminal justice and the community

There's been tremendous public outrage lately over the process of criminal justice and its failure to prevent needless deaths.  As illustrated by the recent outcries over the shooting deaths of  Walter Scott, Michael Brown, Eric Garner, and Tamir Rice, the public has a growing desire to have their voices heard in matters of local criminal justice. 

Today, society, media, and politicians pay close attention to the latest high-profile crime, but the general public usually finds itself at a great remove, watching the system from the sidelines.  This is highly frustrating to the average citizen, especially when they want to see wrongdoers go through a public adversarial process.

The public’s growing concerns about the secrecy and the lack of public accountability inherent in our current criminal justice system point to a need for more transparency and a better way to include the local community into adjudications of criminal justice.

In my new book, Defending the Jury:  Crime, Community, and the Constitution (Cambridge UP: 2015), I try to provide solutions to some of these problems by focusing on ways to insert the local community back into criminal justice, whether formally or informally.  I argue that the people's right to participate in the criminal justice system through the criminal jury - a right that is all too often overlooked - is essential to truly legitimizing the criminal process and ensuring its democratic nature.

Leon Nefakh , who writes about criminal justice at Slate, just reviewed the book here, giving one of its major ideas--inserting a plea jury into the plea bargain process--careful, if somewhat skeptical, consideration. 

Ultimately, our system of hidden criminal adjudication is one where decisions concerning life and liberty are made far from the public sphere and the public eye.  This book is my attempt to solve some of these seemingly intractable problems.  And at only $29.95 a copy ($16 on Kindle), it's a bargain!

Jury Trial removal and the Boston Marathon bomber trial

With so much going on in the news, the details of the Boston Marathon Bomber's jury trial have fallen from the headlines a bit, at least for those of us not in New England.  Yet even before the trial starts, a controversy has erupted over whether the trial venue should be changed from Boston to another federal district.   I find this issue, one of jury rights and community rights and defendant's rights--fascinating, and so I wanted to share some of what's been published recently:

1) Tsarnaev's defense, having had their motion for removal twice rejected already, is hoping that hopefully third time will be the charm, filing today.  (hat tip:  Legal Times & Howard Bashman)

2) Leon Nefakh has a fascinating piece in Slate today discussing jury bias in the Tsarnaev, Eton Patz, and Colorado shooting jury trials

3) The New York Times recently held one of their "Room for Debate" online forums on whether Tsarnaev's trial should be moved, featuring Valerie Hans, Jeffrey Abramson, Lincoln Caplan, Richard Lind, Thaddeus Hoffmeister, and myself. 

Happy reading!

Kudos to This American Life

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

This American Life and Stigma

Update: TAL has made a clarification. Please see this post for more.

Let me begin by saying how much I absolutely adore This American Life. I listen to it religiously. I particularly had been looking forward to the most recent pocast episode of TAL: Dr. Gilmer and Mr. Hyde. As the episode's blurb teases, "Dr. Gilmer and Mr. Hyde" concerns a doctor — Benjamin Gilmer — who takes over the rural South Carolina practice of Vince Gilmer (no relation). Vince is no longer available to see patients because he is serving a prison sentence for killing his father. As Benjamin gets to know Vince's — and now his — patients, he forms a picture of Vince that's at odds with his status as a convicted father murderer. How could this doctor who was so devoted to his patients have so brutally murdered his own father?

This episode is right up my alley. True crime? Check. Forensic psychology? Check. The intersection of law and medicine? Yes, please. So when I awoke yesterday morning at 5 am and couldn't go back to sleep, I eagerly cued up the podcast. The episode recounts, in TAL's  typically-riveting fashion, the story of Benjamin's search for the truth behind Vince's murder of his father. I enjoyed every minute of the episode until the last five minutes or so, when I became troubled by one critical omission.

Spoilers  follow after the jump; listen to the episode first.

Toward Teaching Prison Law...and Punishment & Prison: A Bibliography

Preamble:

“When we return to the search for a more humane and rational response to crime, we must keep in mind that the prison is tied to other social and political arrangements that limit what changes are possible. The criminal justice system in general is at least partially involved, directly and indirectly, advertently and inadvertently, in repressing groups and classes of people and in maintaining unfair social, political, and economic relationships. Fundamental changes in its operation are impossible unless some higher degree of social justice has been achieved and the criminal justice system is relieved of these tasks. [….]

One of the important obstacles that must be removed is the public conception of the prisoner. Presently, this conception is formed from the rare, but celebrated and horrendous crimes, such as mass murders by the Manson cult, Juan Carona, or the ‘Hillside Strangler.’ Whereas prisoners like George Jackson, viewed as a heroic revolutionary fighting back from years of excessive punishment for a minor crime (an eighty-dollar robbery), shaped the conception of the prisoner in the early 1970s, persons like ‘Son of Sam’ do so today. These extraordinary cases distort the reality. Most prisoners are still in prison for relatively petty crimes, and even those convicted of the more serious crimes must be understood in the context of society in the United States. What we need is a new theory of crime and penology, one that is quite simple. It is based on the assumption that prisoners are human beings and not a different species from free citizens. Prisoners are special only because they have been convicted of a serious crime. But they did so in a society that produces a lot of crime, a society, in fact, in which a high percentage of the population commits serious crime. Those convicted of serious crimes must be punished and imprisoned, because it is the only option that satisfies the retributive need and is sufficiently humane. Knowing that imprisonment itself if very punitive, we need not punish above and beyond imprisonment. This means that we need not and must not degrade, provoke, nor excessively deprive the human beings we have placed in prison. It also means that we must not operate discriminatory systems that select which individuals should be sent to prison and, once incarcerated, who should be given different levels of punishment.

Since we assume that convicts are humans like us and are capable of myriad courses of action, honorable and dishonorable, we also assume that they will act honorably, given a real choice. This means that we provide them with the resources to achieve self-determination, dignity, and self-respect. This theory continues to be rejected not because it is invalid, but because it challenges beliefs and values to which large segments of the population comfortably cling. [….] In pushing this theory, I admit that many prisoners, like many free citizens, act like monsters. But they are not monsters and often choose to act like monsters when their only other real option is to be totally disrespected or completely ignored, while being deprived, degraded, abused, or harassed.” [emphasis added]
—John Irwin, Prisons in Turmoil (1980)

The following proposal strikes me as worthy of wide attention and careful consideration:

Sharon Dolovich, “Teaching Prison Law,” 62 Journal of Legal Education 218 (2012), UCLA School of Law Research Paper No. 12-26. Available: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2171884

Abstract:

“To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.”

See too Giovanna Shay’s post at PrawfsBlawg from last year: “Why Do Law Schools Overlook the Incarcerated?”

Some relevant websites and blogs:

California Correctional Crisis

Center for Justice and Reconciliation (Prison Fellowship International)  

Death Penalty Focus

Death Penalty Information Center

“Evolving Standards of Decency:” A Prisoners’ Rights Law Blog    

Justice Policy Institute

The Real Cost of Prisons Project  

Sentencing Law and Policy    

The Sentencing Project   

Vera Institute of Justice

Women’s Prison Association (WPA)

A timely summary of the state of affairs in my home state: “Crime and Punishment in California”

In the spirit of the proposal, here is a basic bibliography on “Punishment & Prison:”

Supreme Court Fellows Program

The deadline for applying for a U.S. Supreme Court Fellowship is November 30 (apply here). 

Over the past forty years, law professors have been well represented among the Fellows contributing to the work of the Supreme Court, the Federal Judicial Ctr., the Administrative Office of the U.S. Courts, and (more recently) the U.S. Sentencing Commission. This is a great opportunity for a sabbatical/leave year for profs whose scholarship would benefit from the experience.

Good luck!

Michael Mushlin on Aging Prison Population

My colleague Michael Mushlin (shown at right) is one of the authors of The Rights of Prisoners, a multi-volume treatise.  He shared with me these thoughts on a recent report from Human Rights Watch.  I reprint Michael's comments with his permission:

We often think of prisons as places filled to the brim with young aggressive men.  However, according to a report issued yesterday by Human Rights Watch entitled Old Behind Bars: The Aging Prison Population in the United States the reality is that many prisoners today are more in need of old age homes than they are of prison cells.  The report found that the number of sentenced state and federal prisoners age 65 or older grew at 94 times the rate of the overall prison population between 2007 and 2010. The number of sentenced prisoners age 55 or older grew at six times the rate of the overall prison population between 1995 and 2010.  The reason for this upsurge in the number of elderly prisoners is sentencing laws in the United States.  Currently over 10% of the prison population are serving life sentences and another 11% have sentences of greater than 20 years.

Prisons are not designed as geriatric centers. Thus, for the growing number of older prisoners, many of whom are frail, with myriad of problems associated with old age, prison confinement without adequate attention to their needs becomes harsh and punitive.  The report makes three recommendations. The first is that sentencing and release policies be modified to allow for release of prisoners whose condition no longer justifies incarceration. Second that plans be developed for housing, medical care, and programs for this population of older prisoners. And finally that prison rules that make no sense for older inmates be reformed. The report, which is important and timely, is found here.

 

Do District Attorneys Campaign in the Courtroom?

Some thoughts here.

Deinstitutionalizing the Prisons

Our ever-growing number of convicted felons in prison is a continuing problem in criminal justice, particularly so in this time of fiscal austerity.  We've seen states like California have their prison system taken over by the federal government; seen counties (like Maricopa County, Arizona) go to extremes to cut costs (such as housing prisoners in tent cities, feeding them on less than $2 a day);  seen reintegration services for released prisoners cut to bare bones or nothing.   No band-aid solutions seem to be working.

So it was with great interest that I read Bernard Harcourt's latest article, entitled:

REDUCING MASS INCARCERATION: LESSONS FROM THE DEINSTITUTIONALIZATION OF MENTAL HOSPITALS IN THE 1960S

In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.

Whether you agree with his conclusions or not, it's a fascinating piece.

Culture Clashes: Books and Movies

Over the last week, I've enjoyed (for want of a more appropriate word) a book and a movie both of which have somewhat similar themes although each is very different.  The book (with thanks to Steven Lubet for recommending it) was Chloe Hooper's The Tall Man which dealt with the first criminal prosecution in Australia of a policeman for an aboriginal death in custody.  It's hard to believe that such a prosecution didn't occur until a few years ago.  And the detail with which the author investigates the Queensland police culture and the aboriginal indigenous culture is really quite impressive.  She obviously had more access to the Palm Island inhabitants and their legal representatives, but she did her best with what she had with respect to other groups involved in the story including police groups and politicians.  She raises lots of inter-racial issues for which there are no easy answers, but the book certainly makes you think. 

I also watched a movie from 2007 which I hadn't heard of before - actually, I think it might have been a Netflix recommendation.  It's called The Visitor and it stars  Richard Jenkins.  The film deals with an unlikely friendship that develops between a dispirited old college professor and a young couple of illegal immigrants who end up living in his New York apartment.  It deals with themes of racial differences, particularly between Arabs and Americans post-9/11 in the immigration context.  It also deals to a small extent with the relationship between the boyfriend and girlfriend in the illegal couple as the woman is from Senegal and the man is from Syria.  The writing, directing and acting are very subtle and understated, but it is still an engaging film that makes you think about immigration, cultural differences, and to some extent what our goals are/should be both personally and on a larger scale.  I really wasn't expecting to enjoy the movie so much, but I would recommend it - again, hardly light holiday viewing, but maybe sometime in the new year...

The Skilling Saga

Those who continue to follow Jeff Skilling's path down the appellate road may find interesting this story from the local newspaper.  A panel of the Fifth Circuit will hear oral arguments in his case today in Houston (interesting court announcement here).  I tried to find the panel composition, with no luck.  A digital recording of the arguments may be available later today (click here if interested).

Judge Sharon Keller: The Story Continues (but perhaps now concludes)

Continuing the story that we have been posting on for some time (most recently this post from July 17, 2010):   a judicial panel has ruled that the State Commission on Judicial Conduct did not have the authority to issue a "public warning" against Texas Court of Criminal Appeals Judge Sharon Keller.

Story here and here.

New Jersey Privacy/Hate Crime Prosecutions

I've been recently following the case of the Rutgers student who committed suicide last week after videos showing him engaging in a homosexual encounter were posted on the Internet by his roommate and another student.  Of course, the case raises many issues about cyberbullying and invasions of privacy.  But what particularly interests me - and others may be able to illuminate the law on this - is that New Jersey appears to have very strong privacy laws and hate crime laws which enable state prosecution based on both the invasion of the student's privacy and the fact that the conduct may have been motivated by animus against homosexuals.  According to the MSNBC coverage, the hate crime laws come into play at the time of sentencing, rather than as a separate cause of action, to raise the penalty for the criminal conduct under the privacy laws.  This would seem to make the laws easier to enforce than in some other states (and at the federal level) where many hate crime laws require proof of an intent by the perpetrator to cause harm to the victim.  I'm also under the impression than many existing harassment and bullying laws also require a credible threat of immediate harm to the victim.  Thus, New Jersey's approach seems to be particularly stong in comparison.  Does anyone know anything about the history of the New Jersey criminal laws on privacy and hate crime and why they seem to be different to the laws in many other states, assuming I'm correct about that?

Criminal Justice System Readings

For those who might be looking for books to assign to new law students interested in getting some accessible background perspectives on the criminal justice system, I would recommend two recent publications of the New Press.

The first is Let's Get Free by Paul Butler.  Butler is a prof at GW Law and has previously been a federal prosecutor.  He provides interesting perspectives on the criminal justice system both from the point of view of a federal prosecutor and as an African-American.  The book is short and accessible and can easily be read in a day - it's actually kind of hard to put down.  It's a great introduction to racial issues in the system, how new technologies might impact on future criminal processes, and what criminal procedure might learn from Hip Hop culture.

Another good book is Lynn Powell's Framing Innocence.  This is an account of a situation some years ago in Ohio where criminal (child pornography) charges were brought against a woman, Cynthia Stewart, who had taken nude photographs of her 8 year old daughter in the bathtub.  The book is written by Stewart's friend and neighbor, Lynn Powell, who conducted detailed interviews with many of those involved in the proceedings.  Again, this is an easy read that is hard to put down.  It shows up issues inherent in the criminal justice system and Child Services system involving family law, constitutional law and criminal law - and addresses the difficulties of fairly enforcing criminal laws based on "community standards" of unacceptable behavior.

Both of these books look at the law and legal processes from different perspectives and both would be engaging reading for those embarking on a legal career.

Judge Sharon Keller (Update)

Last February, Dan blogged about Texas Court of Criminal Appeals presiding judge Sharon Keller and her decision concerning a last-minute appeal from a prisoner on death row.

In January, I mentioned that a special master presiding over Judge Keller's ethics trial had issued a 16-page report on the matter.

Yesterday the  State Commission on Judicial Conduct decided not to remove Judge Keller from office.  Instead the Commission issued a "public warning" to her. 

You can read more on this story here and here.  The "Commission's Findings, Conclusions and Order of Public Warning" is available here.

Enron, Jeff Skilling, and the Crime of Honest Services Fraud

Loungers with an interest in the Supreme Court's forthcoming opinion in Skilling v. United States and the constitutional challenge to the federal "honest services" fraud statute may wish to read this editorial appearing yesterday in The Houston Chronicle and written by Houston law prof Geraldine Moohr (pictured).

California's Fiscal Crisis Forces Re-Evaluation of Sentencing

Well, the fiscal rubber has finally hit the  sentencing and prison road in California.  As the New York Times details, the state's financial crisis has forced open early release for some prisoners for the first time in years:

The California budget crisis has forced the state to address a problem that expert panels and judges have wrangled over for decades: how to reduce prison overcrowding.  The state has begun in recent weeks the most significant changes since the 1970s to reduce overcrowding — and chip away at an astonishing 70 percent recidivism rate, the highest in the country — as the prison population becomes a major drag on the state’s crippled finances. . . . The goal is to reduce the number of inmates in the state’s 33 prisons next year by 6,500 — more than the entire state prison population in 2009 of Nebraska, New Mexico, Utah or West Virginia. In all, there are 167,000 prisoners in California.

California's prisons are notorious for overcrowded conditions, and its fiscal crisis has certainly not helped matters.  The solution the state has come to--early release of non-violent prisoners who are unlikely to recidivate--is being watched with great interest by other cash-strapped states.

Our criminal justice system has long over-relied on long sentences and continual building of prisons to try to control crime, all of this ironically as crime has gone down over the past 40 years (and has continued to go down even in the recession).  Perhaps the simple lack of cash on the part of state governments will finally force some more reasonable thinking in sentencing.  Of course, as the article points out, the early release of California prisoners is not accompanied by any form of drug or alcohol counseling or rehabilitation to help prevent recidivism.  But it is a step in the right direction. 

Killing the Death Penalty

Loungers with an interest in the death penalty may wish to read an editorial by my former colleague (now at crosstown UH) Adam Gershowitz (pictured).  A teaser:  "The real problem with the death penalty is that it is terrible public policy that the voters of Texas should reject."  The full editorial, which appeared in the Sunday edition of The Houston Chronicle, is available here.

Columbia Law’s Elizabeth Scott Wins Best Book Award (And Some Darn Good Indian Food, Too)

Rethinking Juvenile Justice, by Columbia Univesity Professor Elizabeth Scott (Law) and Temple University Professor Laurence Steinberg (Psychology), has been awarded the 2010 Social Policy Best Authored Book Award from the Society for Research on Adolescence.

Scott and Steinberg will receive their award at a ceremony on March 12 in Philadelphia.

From the Harvard University Press website:

What should we do with teenagers who commit crimes? Are they children whose offenses are the result of immaturity and circumstances, or are they in fact criminals? . . .

[Scott and Steinberg] argue that juvenile justice should be grounded in the best available psychological science, which shows that adolescence is a distinctive state of cognitive and emotional development. Although adolescents are not children, they are also not fully responsible adults.

Elizabeth Scott and Laurence Steinberg outline a new developmental model of juvenile justice that recognizes adolescents’ immaturity but also holds them accountable.

  

Congratulations to Elizabeth, whose accomplishment provided a great excuse (as if we needed one) to celebrate at Tamarind restaurant in New York, which I've wanted to visit for years now, and finally made it.  I made up for lost time with the Lamb Dopiaza, Samosas, Boondi Raita, Pindi Chana, Bhagarey Baingan, and way too much other food and wine. Excuse me, while I waddle back to Durham now.

 

Image Right: Tamarind Restaurant in New York City.

Below: A video of dishes at Tamarind