Showing papers in "Albany law review in 2012"

After Exoneration: An Investigation of Stigma and Wrongfully Convicted Persons

Abstract: (1) To date, the Innocence Project has worked to exonerate over 280 individuals who were wrongfully convicted. (2) As the population of exonerees grows, there is a need to examine the social consequences of wrongful conviction. Previous research has demonstrated that individuals who are paroled from prison are discriminated against and stigmatized, and this research has suggested that exonerees may be stigmatized in a similar manner. (3) Using correspondence bias as a theoretical framework, we examined this possibility through two separate studies. In Study One, participants read a newspaper article about either an exoneree or a guilty individual. (4) In Study Two, participants read a newspaper article about either an exoneree, guilty, or average individual. (5) We found that the guilty individual was generally stigmatized more than the exonerated. However, the exonerated were rated at or near the midpoint of the scale on some measures of stigma in Study One, indicating they may experience some stigma. In Study Two, we found the exonerated individual was stigmatized relative to the average individual on most measures of personal characteristics. However, the exonerated individual was not stigmatized on other measures relative to the average individual. The implications of these results, future directions for research, and policy recommendations are discussed below. I. AFTER EXONERATION: AN INVESTIGATION OF STIGMA AND WRONGFULLY CONVICTED PERSONS In 1989, Gary Dotson became the first person to be exonerated in the United States through the use of DNA evidence. (6) Dotson was incarcerated for more than a decade prior to his exoneration (7) and with his case, a new innocence movement was born. (8) In the years since Dotson's exoneration, DNA evidence has exonerated over 280 individuals of crimes they did not commit. (9) Seventeen of these exonerated individuals had been convicted of first-degree murder and were sentenced to death. (10) Others were exonerated of violent crimes such as rape and assault. (11) These exonerations may represent only a small proportion of all wrongful convictions, which some scholars have estimated to be in the tens of thousands. (12) Other scholars suggest that wrongful convictions occur in between one and fifteen percent of all cases. (13) To date, most research dealing with wrongful conviction has examined why these mistakes occur (14) and how to compensate those who have been wrongfully convicted. (15) Other research has investigated the psychological effects of wrongful conviction from the perspective of the exonerated, (16) but to date, only one study has examined the social consequences exonerees may experience as a result of their wrongful convictions by examining societal perceptions of the exonerated. (17) The present research expands the literature on the stigma of wrongful conviction by examining how people perceive exonerees after release. Using social psychological theory on attribution to inform our research, we consider the stigma levied upon exonerees as compared to that upon parolees, and introduce crime type as a possible moderator of stigma. II. INITIAL EVIDENCE FOR EXONEREE STIGMATIZATION Though little research to date has examined exoneree stigma through an empirical lens, there has been considerably more work that explores exoneree stigma through an anecdotal framework. Some accounts suggest that people may be uncomfortable working alongside exonerees. (18) One exoneree reports that the women at his workplace told their supervisor they were uncomfortable working alongside him because he had been convicted, albeit exonerated, of rape. (19) Other anecdotal evidence suggests that community members are not willing to readily accept exonerees back into the communities from which they were originally arrested. (20) Another exoneree reported that upon returning to his hometown he was harassed and ridiculed, and once found the words "child killer" etched into the dirt on his truck. …

Public Perception of Wrongful Conviction: Support for Compensation and Apologies

Abstract: (1) With over 280 post-conviction DNA exonerations through Innocence Projects in the United States alone and half a dozen Commissions of Inquiry into wrongful convictions in Canada, the public may be more aware of wrongful convictions than ever before. Recent research, however, has documented the paucity of resources available post-conviction for individuals who have been wrongly convicted, the limited and financial focus of current compensation statutes, the many difficulties in obtaining compensation, and the desire of many individuals who have been wrongly convicted to receive an apology for the injustices they have suffered. To investigate public perception of compensation, face-to-face interviews were conducted with fifteen community members. Findings suggest that all interviewees believed that individuals who have been wrongly convicted should receive compensation and apologies. Many felt these individuals needed financial compensation in order to start over, and that they deserved compensation because of the time they had lost while wrongly incarcerated and the damage done to their reputations. Interviewees also felt that public apologies would positively impact the Criminal Justice System, as well as benefit the wider community. Interviewees also mentioned a number of nonfinancial forms of compensation they felt wrongly convicted individuals should receive, including employment training and assistance, housing assistance, and other services. Although most interviewees reported not knowing how much money individuals received in compensation, they felt the dollar amount should be related to particular factors, such as the length of time wrongly incarcerated, character damage, and the impact on their health. Although these findings appear positive, it is noteworthy that forty percent of the sample brought up issues of the judicially released guilty during the interviews, perhaps suggesting that they felt wrongful conviction was of equal (or lower) importance as the guilty who got away. I. INRODUCTION: PUBLIC PERCEPTION OF WRONGFUL CONVICTION: SUPPORT FOR COMPENSATION AND APOLOGIES As of January 10, 2012, the Innocence Project had exonerated 289 American citizens through post-conviction DNA testing. (2) Samuel Gross, Kristen Jacoby, Daniel Matheson, Nicholas Montgomery, and Sujata Patel found 196 wrongful conviction cases in the United States from 1989 to 2003 where evidence other than DNA was used to declare a defendant not guilty of a crime for which he or she had been convicted. (3) In Canada, the Association in Defence of the Wrongly Convicted CAIDWYC") has played a role in the exoneration of eighteen Canadians. (4) Anthony Doob, however, surveyed defense counsel in the province of Ontario and found that nearly half of the sample (n=94; 46.3%) believed they had represented at least one client who was factually innocent but convicted to serve at least one year in prison. (5) Although the exact number of incarcerated innocents is unknown, (6) a conservative estimate of 0.5% of all convictions being wrongful convictions would translate into approximately 7,500 wrongful convictions in the United States in the year 2000 for index crimes alone (7) or roughly 1,000 innocent people incarcerated in the United Kingdom each year. (8) Innocence organizations exist internationally (e.g., Germany, Australia, Japan) (9) as there are thousands--if not tens of thousands--of individuals who have been wrongly convicted worldwide. Saundra Westervelt and Kimberly Cook argued that victims of wrongful conviction are often re-victimized post exoneration because the government fails to provide them with meaningful assistance (e.g., employment, housing, etc.). (10) In fact, many individuals who have been wrongly convicted do not receive anything from the government upon their release; particularly given that some do not even qualify for assistance provided to those rightly convicted and released on parole. …

Safeguarding the Right to a Sound Basic Education in Times of Fiscal Constraint

Abstract: Since the economic downturn that began in 2008, shortfalls in revenues of state government have precipitated wide-spread reductions in educational expenditures that are likely to continue for the foreseeable future. Schools throughout the country have shortened their hours, raised class sizes, cut back on curriculum offerings, and curtailed purchases of books and instructional supplies. Serious constitutional issues are raised by these budget cuts. Most state constitutions guarantee all students the right to the opportunity for an adequate or sound basic education. Nevertheless, many governors and legislators, while honoring their constitutional obligation to balance the budget, ignore or neglect their affirmative constitutional obligation to ensure that students' rights to the opportunity for a sound basic education are maintained in hard economic times. It has long been established that constitutional rights cannot be denied or deferred because of state financial constraints. In past and recent court decisions dealing with reductions in state funding for education during times of fiscal constraint, the courts have consistently upheld students' rights to a sound basic education every time they have directly confronted the issue. However, there is an increasing pattern of judicial reluctance to confront the executive and legislative branches by using technical and procedural justifications to avoid deciding cases on the merits or to limit remedies in cases that are decided. A detailed case study of the reductions in educational funding over the past three years in New York State illustrates the extent to which the governor and the legislature have violated the constitutional requirements articulated by the New York Court of Appeals in CFE v. State of New York. States can however, meet their constitutional obligations while, at the same time, promoting efficiency and cost effectiveness practices to meet their budget goals. To do so, they need to (1) develop guidelines concerning the essential programs and resources needed to provide a sound basic education; (2) develop efficiency and cost effectiveness policies that do not undermine student services in areas such as mandate relief, special education reform, school district consolidation, teacher turnover, and pension modification; (3) undertake a cost analysis to determine a cost effective and adequate funding level; (4) develop foundation funding systems that reflect the actual cost of providing educational services in a cost effective manner; and (5) establish state level accountability for adequacy mechanisms. Procedures such as these provide governors and legislatures the effective tools for meeting their constitutional obligations while dealing with fiscal constraints, and courts need to enforce the constitution when they fail to use them. I. INTRODUCTION II. THE CONSTITUTIONAL RIGHT TO THE OPPORTUNITY FOR A SOUND BASIC EDUCATION III. THE CONSTITUTIONAL RIGHT MUST BE ENFORCED REGARDLESS OF STATE FISCAL CONSTRAINTS A. The General Constitutional Doctrine B. Specific Application to Reductions in Educational Appropriations 1. Past Court Decisions 2. Recent and Pending Court Decisions IV. CONSTITUTIONAL CHALLENGES AND CONSTITUTIONAL VIOLATIONS A. Problems of Constitutional Enforcement in Difficult Economic Times B. A New York Case Study 1. Implementation of the Court of Appeals' CFE Decision 2. Constitutional Violations a. Funding Reductions b. Deferral of Scheduled Funding Increases c. The Cap on Tax Increases V. A FRAMEWORK FOR CONSTITUTIONAL COMPLIANCE A. Develop State Regulations to Implement Sound Basic Education Requirements B. Promote Efficiency and Cost Effectiveness Without Undermining Constitutionally-Required Student Services 1. …

Uneven Reparations for Wrongful Convictions: Examining the State Politics of Statutory Compensation Legislation

Abstract: The whole matter of compensation for unjust convictions for felonies and lesser crimes is well worth further study, to the end that within measurable time remedial legislation may cure this defect in our social institutions. (1) I. INTRODUCTION One of the fascinating findings from interviews with the wrongly convicted is that they harbor little or no anger--or more accurately, that "joy overrides the anger"--towards the State following their release from imprisonment. (2) At the same time, they imagine and wish for compensation for their wrongful convictions, especially when it resulted in their incarceration and particularly when they faced the death penalty. (3) Too often, however, recompense remains a mirage. In an age when state governments willingly spend tens and hundreds of millions of dollars to try to positively reintegrate the justly convicted back into society, the unjustly convicted must scrape, toil, and fight for arguably paltry portions of state dollars to positively reintegrate them. (4) As Alan Northrop put it after he served seventeen years in a Washington state prison for a rape he did not commit, "I got no apology, no nothing, no offer of any kind of financial aid." (5) He is not alone. In the United States, financial compensation for wrongful convictions eludes many of its victims, including those exonerated of crimes. (6) The best empirical evidence of the difficulty the wrongly convicted face in accessing compensation comes from the Innocence Project and its national database of individuals exonerated through DNA testing. As of 2009, forty percent of them were awaiting compensation by their states. (7) Some of the wrongfully convicted reside in states where financial compensation is only possible (but unlikely) through civil litigation and private legislation. (8) Others live in states with statutes permitting compensation, but barriers to it may remain, resulting in few of the wrongly convicted receiving compensation. (9) A study by California Watch, for example, found that of the 132 claims submitted between 2000 and 2011 for compensation by persons determined to have been wrongly convicted by California, eleven claimants (approximately eight percent) received compensation from the state's Victim Compensation and Government Claims Board. (10) Nonetheless, many states have chosen restorative policy designs for the wrongly convicted, including compensation statutes. (11) This is a cause for hope. For a long time, however, it seemed that states were unlikely to make much progress in compensating those whose lives had been irrevocably damaged by wrongful conviction and incarceration. Almost a decade ago, for instance, Adele Bernhard expressed the exasperation of reformers in light of limited success at spreading innovations in wrongful conviction compensation throughout the states: I anticipated that the continuing parade of exonerations, in state after state across the country, would prompt local legislatures to enact new statutes benefiting the unjustly convicted and later exonerated in states that lacked such mechanisms and to modernize imperfect statutes in states where compensation statutes had not been revisited in years. I was wrong. (12) Upon reflection, Professor Bernhard and others were not wrong; they were righteously and justly impatient. Even now, a decade later, many states have yet to enact such statutes. (13) Yet that truth need not foster hopelessness among reformers and those who would benefit from reforms. Policy change is possible. In fact, "large scale change is not an anomaly. There is no iron law of equilibrium that restricts policy making to incremental changes once a policy is established." (14) While it is correct that "[f]ailure is the norm" for criminal justice policies, (15) and the speed of policy change in the United States can be glacial, the consensus among scholars of American politics and public policy is that policy change "is not gradual and incremental, but rather is disjoint[ed] and episodic," with "bursts of frenetic policy activity" disturbing "[l]ong periods of stability. …

The Expungement Myth

Abstract: I. INTRODUCTION This article stems from a study of the post-release behavior of individuals following exoneration. (1) In the course of conducting research on post-release behavior, the most comprehensive such study to date, an interesting and troubling finding emerged: expungement does not always follow exoneration. (2) Expungement is the "[p]rocess by which [a] record of criminal conviction is destroyed or sealed" from the state or federal repository. (3) In instances where a former defendant is exonerated, expungement is sometimes part of the relief granted. (4) In most cases, however, it must be secured in a separate civil action. (5) Though every member of our sample has been deemed not guilty by an official body, approximately forty-two percent of these exonerees still had evidence of the wrongful conviction on their record. (6) This disturbing statistic has significant consequences for exonerees and the criminal justice system generally. The principal research examines post-release offending of 117 individuals who were exonerated and released between 1999 and 2009. (7) The study explores a variety of questions: What is the risk posed by these individuals? Are they victims of prisonization? In other words, does their time in prison convert them into criminals? Do exonerees with prior offenses offend more than exonorees with no prior offenses? Do exonerees who were found guilty of certain types of crimes offend more than others? The sample consists principally of exonorees whose cases have been documented by the Center on Wrongful Convictions ("CWC") at the Bluhm Legal Clinic of Northwestern University Law School. These records are publicly available. To explore post-release offending, the authors ran public record searches in four states--Florida, Illinois, New York, and Texas--using the assistance of a commercial data provider. (8) In order to obtain criminal history information, a subject's date of birth had to be provided. (9) If we were unable to obtain that information, that case was excluded from the study. Everyone for whom we could find the necessary identifying information was included. Gathering this data presented a unique opportunity to look at the criminal history records of exonerees. (10) We were immediately struck by the fact that many exonerees have evidence of the crime for which they were wrongfully convicted on their criminal record. This article explores the relationship between exoneration and expungement. Part II presents our findings regarding expungement. We attempt to explain some of the results by offering a brief overview of current expungement laws and procedures in the four subject states. Within this section we also briefly discuss the relationship between executive pardons, exoneration, and expungement. Part III discusses the implications of having a criminal record. These include loss of privileges of citizenship, barriers to employment, loss of benefits, and access to government documents. The section notes that criminal records are increasingly accessible, which enhances the associated stigma. The article concludes with a brief review and recommendation for legal reform. II. EXPUNGEMENT IN PRACTICE A. Present Data on Expungement We collected criminal history data in 117 cases in which a defendant was determined by an official act to be not guilty of the crime for which they were convicted and incarcerated. (11) Eighteen of the cases were from Florida, thirty-one from Illinois, twenty-four from New York, and forty-six from Texas. The situation was most encouraging in New York. None of the twenty-four New York cases showed any record of the prior wrongful conviction. New York law permits the sealing of cases where charges have been dismissed, vacated, set aside, not filed, or otherwise terminated. (12) In our experience, this process was automatic. In the three states where clearing the record is discretionary, expungement is irregular and possibly random. …

Without Legal Obligation: Compensating the Wrongfully Convicted in Australia

Abstract: After exoneration, some innocent individuals seek financial compensation and social services to aid with their reintegration into society. Since not all countries or jurisdictions have compensation legislation, exonerees are left with limited alternatives to address financial, psychological, and health issues that are often consequences of the wrongful conviction and incarceration. In common law jurisdictions, one compensation remedy is the application for ex gratia, "out of grace" payments, for wrongful convictions. Australia is one of the few common law jurisdictions that do not have state or federal compensation statutes for exonerees, leaving ex gratia payments as the primary means to seek restitution. However, there are no guidelines to evaluate cases or allocate awards. Furthermore, ex gratia decisions are indisputable without the chance of appeal. This article reviews successful and unsuccessful ex gratia applications for wrongful conviction in Australia from 1985 to 2011 and examines the state's corresponding rationales for these decisions. Not surprisingly, the rationales lacked any precedent or transparency in the decision making process. This article concludes with suggestions for a comprehensive statute that addresses monetary and non-monetary consequences of wrongful conviction. I. INTRODUCTION Wrongful convictions occur in Australia as they do in other common law jurisdictions such as the United States, Canada, New Zealand, and the United Kingdom. (1) In Australia, there is currently no reliable national data that provides an estimate of the prevalence of wrongful convictions, (2) though the causal factors in common law jurisdictions are the same. (3) U.S. studies estimate the imprisonment of innocent individuals to fall within 0.5% to 5% of felony cases. (4) This figure is considered a conservative estimate, since it is difficult to prove innocence unless errors are exposed post-conviction, such as through confessions by the perpetrator or forensic DNA testing of evidence. (5) Nonetheless, wrongful convictions are an international problem whose remedy must include preventing future wrongful convictions, identifying wrongfully convicted and incarcerated persons, and a means of addressing the consequences of the conviction and the exoneree's successful reintegration back into the community. To date, the literature on the study of Australian exonerees has consisted mostly of the investigation of the causal factors of wrongful conviction (6) and the role of the innocence projects in the correction of wrongful conviction (7) with little attention paid to post-exoneration consequences and remedies. (8) Wrongfully convicted individuals often undergo emotional, psychological, physical, and social challenges (9) and seek compensation for injuries and loss of liberty. (10) Without compensation legislation, the recourses available to exonerees in Australia are to apply for ex gratia awards, file a tort claim against liable parties, or propose an individualized compensation bill through Parliament. (11) Ex gratia payments are a viable option for most exonerees who do not have the resources or political influence to pursue private lawsuits or draft a personalized bill. (12) However, without guidelines for decision-makers or transparency in the process of awarding and allocating funds, ex gratia awards are often criticized as inadequate and arbitrary. (13) This article attempts to address the gap in the literature by examining ex gratia cases and the state's corresponding rationale to justify these outcomes in the Australian context. If ex gratia payments are an established and favored method of receiving compensation, then understanding the reasons and patterns for their awards and denials would be of vital importance to exonerees. Moreover, if ex gratia payments are truly arbitrary, then this calls into question the fairness of the justice system and the adequacy of Australia's compensation remedies for the wrongfully convicted. …

The Casey Anthony Trial and Wrongful Exonerations: How "Trial by Media" Cases Diminish Public Confidence in the Criminal Justice System

Abstract: I. INTRODUCTION Even with the most protections as compared to any other criminal justice system in the world, (1) the American criminal justice system is still plagued by wrongful convictions more frequently than one may expect. (2) Without question, "[t]here is no worse error in American criminal justice than the wrongful prosecution, conviction, and incarceration of an innocent person...." (3) Judge Learned Hand acknowledged this in United States v. Garsson, when he famously proclaimed that "[o]ur procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream." (4) Currently, the United States is in the midst of what some scholars call an "Innocence Movement" focused on freeing those wrongfully incarcerated, educating the public, and lobbying for change. (5) Yet, this disdain for wrongful convictions is not new. Eighteenth-century philosopher Voltaire acknowledged that it is better to risk saving a guilty person than to condemn an innocent one. (6) Years later, William Blackstone echoed this when he infamously enunciated that "it is better that ten guilty persons escape than that one innocent suffer." (7) But sometimes when a guilty person--or one who the public perceives to be guilty--goes free, the public admonishes our criminal justice system for it. (8) The same is true when one who is perceived as innocent is incarcerated, or worse--executed. (9) For instance, take the trial of Casey Anthony. It generated a maelstrom of media which infected the public's perception with the biases from the sources reporting about it. (10) What is disconcerting is that the public's perception of justice is almost entirely shaped by the media, via the television. (11) This is because so "few individuals have direct experience with the system, [therefore] the overwhelming number of citizens get their knowledge of the courts and crime through the media." (12) Former New York Court of Appeals Chief Judge Judith S. Kaye concededly agrees that actual judges are undermined by the law portrayed on the television, such as Judge Judy, because "she is in their living rooms every single day. [The public] actually experience[s] her formidable personality. They know her because they see her." (13) This is a dangerous predicament. Particularly when the media converts the public into an "armchair jury" and such jury reaches a different verdict than the real jury because this shift in public perception has the potential to generate a negative stigma on the entire American criminal justice system. (14) And the Casey Anthony trial did just this. The majority of the public and media forcefully condemned Casey Anthony and were utterly flabbergasted when she was acquitted. In a sense, this created a "wrongful exoneration" of the defendant because the "armchair jury" had convicted her when the actual jury acquitted. Therefore, this "wrongful exoneration" created the perception that the criminal justice system is not working, it is too soft on crime, and there are incompetent participants in our system such as judges, prosecutors, defense attorneys, and jurors, even though Blackstone's ratio suggests otherwise. This article argues that the phenomenon of a "wrongful exoneration" is birthed primarily through a "trial by media," and imputes on our criminal justice system the same stigma that one would experience through another miscarriage of justice, such as a wrongful conviction. This is a new theory and advanced by this article in parallel to the problem of wrongful convictions. Moreover, this broader stigma is dangerous not only for the perception of the criminal justice system as a whole, but also for the individual jurors who are merely fulfilling their civic duty. Further, it jeopardizes the defendant's Sixth Amendment right to a fair trial. (15) Yet, the media still has an inherent right to cover the trial under the First Amendment, which would include obtaining the jurors' names. …

An insider's perspective: defense of the pharmaceutical industry's marketing practices.

Abstract: I. INTRODUCTION A sharply dressed, attractive female walks into the waiting room of an office. All eyes turn and look at this young lady, who looks quite out of place amongst the throngs of elderly, young, and sick patients waiting long periods to see their doctor. This person, carrying meals, gifts, and free drugs, skips the line of patients waiting to be seen and walks right into the back, embracing a friendly handshake with the physician. The patients are all wondering how much longer they will now have to wait because a "'drug rep" has walked in just as their appointments are to begin. The patients eventually see their doctor, late because of the drug rep, and are wondering if they have been prescribed a drug that the rep was just promoting to their doctor. These same patients eventually go home and turn on the television in the evening to enjoy sports, the evening news, or a sitcom. The evening news may even be airing a special on the marketing tactics of "big pharma.'" Each commercial break is full of ads by drug companies promoting their products ... It is no wonder that negative perceptions surround the pharmaceutical industry. (1) The woman described above represents a pharmaceutical company, and for many, is an image of what is wrong with today's healthcare industry. The perception that the pharmaceutical industry is market-driven (2) arguably conflicts with the hope that it is a research-driven, (3) lifesaving industry. (4) I would argue that it could be all three. The right to affordable healthcare for all members of society is a burning topic--cheaper medications are at the forefront of the debate. (5) Although pharmaceuticals only make up about ten percent of all healthcare costs, (6) the pharmaceutical industry falls into the heart of the healthcare debates because of its conflicting role as a provider and profit maker. (7) The companies are providers of essential, yet expensive, medicines that are partially financed by high out-of-pocket costs, and such costs are justified by the industry as the expenses incurred in researching and developing the lifesaving and life-improving medicines of the future, (8) The high profits in the pharmaceutical industry certainly do not help the image. (9) Some believe that pharmaceutical companies have a social contract with society to provide cheap, lifesaving medicines and that the government should be regulating pricing. (10) Others believe that lifesaving medicines only come from innovation, which will be eradicated by heavy regulation of prices if the government were to get involved, thereby leaving companies with little incentive to invest towards research and development. (11) This paper is a benefits analysis to the services provided by the pharmaceutical industry and aims to address and clarify a few of the many misperceptions about the industry. The pharmaceutical industry is often portrayed as having unethical business practices, and the industry fails to fall into a positive light--more often than not--becoming a target amongst the media, the general public, and politicians. (12) I would like to expose readers to the pharmaceutical world I knew in my former career as a pharmaceutical representative (13) and provide one viewpoint from the other side--the story that is often not told by those who are quick to blame pharmaceutical companies for the problems affecting the healthcare industry. (14) More specifically, I plan on addressing the practices that are the most widely criticized by opponents: direct-to-consumer marketing, (15) physician-directed marketing, (16) and the so-called lack of regulations governing the pharmaceutical industry's practices. (17) Part II of this paper will begin the discussion by providing relevant background information in order to gain insight into the pharmaceutical industry's world. The background will cover the drug development process from Petri dish to pharmacy, the economic effect of the pharmaceutical industry, and what pharmaceutical marketing entails. …

The Opinions by the Attorney General and the Office of Legal Counsel: How and Why They Are Significant

Abstract: Although much research has been done on the opinions issued by the Office of Legal Counsel (OLC) regarding the power of President Bush to order enhanced interrogations of captured enemy combatants, and the power of the President, as commander in chief, to act to address the events of September 11, 2001, and prevent future attacks, there has been much less research on explaining the source of the power and significance of OLC opinions within the Executive Branch. This article will focus on the historical basis and legal significance of opinions by the Attorney General, and later those of the OLC. This article will explain why and how opinions on the meaning and applicability of the law issued by the Attorney General, dating from those of General Randolph to General Holder and those of the OLC, have historically been quasi-judicial in approach and determinative within the Executive Branch. I. INTRODUCTION After the attacks of September 11, 2001, the Bush Administration's Department of Justice OLC issued a series of memos that stated that the President had the exclusive constitutional power (1) to detain enemy combatants, (2) to bypass the Uniform Code of Military Justice (UCMJ) and initiate military commissions to try such combatants, and (3) to determine what types of techniques could be initiated to secure information from captured enemy combatants from the military operations in Afghanistan and Iraq. (1) Subsequent to the issuance of these memos much ink has been spilled on the legality of the actions made by the Bush Administration. (2) What all of these critiques have not included is an analysis of why the opinions by the Attorney General and the OLC (3) were determinative within the executive branch. Every President from Washington to Obama has received legal advice regarding a proposed action or policy. (4) Foreign policy and domestic policy under our Constitution is measured by its legality. All presidents seek to act within the law and the Constitution. The Constitution itself requires and obligates the President to "take [c]are that the [1]aws [are] faithfully executed[.]" (5) It is this responsibility that requires the President to first determine what the law requires and then to act accordingly. (6) Historically, the main agency within the executive branch to aid the President in both maintaining and obeying the law has been the Office of the Attorney General. (7) This article will focus on two issues. First, what is the historical purpose and authority of the Office of the Attorney General? (8) And second, how has the Office of the Attorney General, and later the OLC, developed into the plenary legal opinion agency within the executive branch? This article traces the history of the Office of the Attorney General and the OLC to meet a gap in the literature on presidential legal policymaking and the role of the rule of law that governs executive decision-making; specifically, it is a detailed review of the origin and purpose of the Office of the Attorney General and the why that underlies the purpose and unique role of this office to act as defender of the rule of law (9) regardless of political and policy expediencies, (10) After the attacks of 9/11, it was the OLC, not President Bush himself, which received almost unprecedented attention by the legal community. (11) It is by clearly understanding the history and historic role of the OLC can the significant attention given to the Bush OLC be understood. II. THE ORIGIN AND PURPOSE OF THE OFFICE OF THE ATTORNEY GENERAL The position of Attorney General was not always among the pantheon of cabinet secretaries within the executive branch. (12) Former Attorney General William Barr, in a presentation at Cardozo Law School, observed that the position was originally a part-time position with no staff, office space, or supplies, with an annual salary of half of the other cabinet secretaries. (13) Since the Attorney General was authorized only to handle legal matters and cases in which the U. …

Exceptional Freedom - the Roberts Court, the First Amendment, and the New Absolutism

Abstract: This chart, incomplete as it is, (223) does tell us something important, namely, that while Justice Kennedy, Chief Justice Roberts, and Justices Scalia and Sotomayor are most likely to lean towards a kind of near-absolutism, Justices Breyer and Alito are just as likely to move in the opposite direction. (224) Notice, too, how uncertain votes from Justices Thomas and Kagan's to affirm a First Amendment free speech claim can be. With this in mind, simply consider how conceptually divergent were the approaches outlined by Justice Kennedy in his plurality, Justice Breyer in his concurrence, and Justice Alito in his dissent. Let us begin with how Justice Kennedy viewed the matter: The previous discussion suffices to show that the Act conflicts with free speech principles. But even when examined within its own narrow sphere of operation, the Act cannot survive. In assessing content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach, but rather has applied the "most exacting scrutiny." Although the objectives the Government seeks to further by the statute are not without significance, the Court must, and now does, find the Act does not satisfy exacting scrutiny. (225) This approach smacks of the new absolutism, of the near absolute protection of free speech in certain cases. Contrast that with the approach urged by Justice Breyer: I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Government can achieve its legitimate objectives in less restrictive ways. Sometimes the Court has referred to this approach as "intermediate scrutiny," sometimes as "proportionality" review, sometimes as an examination of "fit," and sometimes it has avoided the application of any label at all. (226) At a certain level of generality, what we see here is reminiscent of the kind of First Amendment balancing once championed by Justices Frankfurter and Harlan (227) and contested by Justices Black and Douglas. (228) Finally, we come to Justice Alito, the Roberts Court's most consistent critic of expanding First Amendment free speech rights. With Chaplinsky-like fervor, Justice Alito (229) drew on precedents that referred to both prongs of Chaplinsky's dictum. To make the point, I have taken the liberty of quoting a wider swath of his opinion: "Time and again, this Court has recognized that as a general matter false factual statements possess no intrinsic First Amendment value." (230) What is, I think, significant about Justice Alito's line of string citations and quotations is that many of the very cases he cited discounted the Chaplinsky categorical dictum and allowed for a degree of First Amendment protection. (231) In fairness, Justice Alito might reply that there was a certain subset of false-speech cases that were categorically unprotected. But even on that score, and as evidenced by the bold plurality opinion and the timid concurring opinion, a majority of the Roberts Court would not yield. Still, while the plurality opinion took yet another conceptual swipe at the Chaplinsky dictum, it nonetheless did something noteworthy--something that might be seen as adding a dollop of vigor to that infamous dictum. Unlike the five exceptions identified in Chaplinsky (lewd, obscene, profane, and defamatory speech along with fighting words), (232) or the five flagged in Stevens (obscenity, defamation, fraud, incitement and speech integral to criminal conduct), (233) or the three cited in Brown (obscenity, incitement, and fighting words), (234) Justice Kennedy's plurality opinion listed the following nine categories of unprotected expression, which he conceded were not all inclusive: (1) incitement (2) obscenity (3) certain kinds of defamation (4) speech integral to criminal conduct (5) fighting words (6) child pornography (7) fraud (8) true threats, and (9) "speech presenting some grave and imminent threat the government has the power to prevent. …

Backing out of a Constitutional Ditch: Constitutional Remedies for Gross Prosecutorial Misconduct Post Thompson

Abstract: In the past three years, we have witnessed what may be the most significant series of cases on prosecutorial immunity under Title 42 U.S.C. [section] 1983 (1) since the seminal decision of Imbler v. Pachtman (1976). (2) In 2009, the Supreme Court accepted for review the case of Pottawattamie County, Iowa v. McGhee, (3) although the parties settled after oral arguments before the Court; (4) then, in 2009, along with issuing a decision in Van de Kamp v. Goldstein, (5) the Court accepted Connick v. Thompson (decided March 2011). (6) These cases involved allegations of gross prosecutorial misconduct resulting in the wrongful conviction of innocent persons. (7) At the heart of these cases is the question of how far--and at what cost--the Supreme Court is willing to defend the doctrine of absolute immunity for prosecutors. McGhee and Connick posed the question plainly: is such prosecutorial misconduct a necessary price to pay for assuring the proper functioning of the criminal justice system? (8) The question was not unforeseen, since, as Justice Powell had remarked in Imbler, absolute immunity protects both the honest and the dishonest prosecutor. (9) In this article we argue that the largely theoretical possibility acknowledged by Justice Powell (since the prosecutor in Imbler deserves the appellation of honest rather than dishonest) has now become a reality. To continue to apply, or worse, to extend, Justice Powell's reasoning to cases revealing egregious prosecutorial actions backs us into a constitutional ditch. Instead, we suggest that there are at least two paths leading out of the ditch for the future. In Part I, we describe the major developments in the law of prosecutorial immunity under [section] 1983. In Part II, we discuss the contours of the ditch in which we find ourselves. We focus on the need for both individual and organizational liability, the lack of accountability for prosecutors, and present a typology of honest and dishonest prosecutors. In Part III, we outline the type of case that might successfully challenge the current doctrine on absolute immunity for prosecutors in hopes of placing some checks on prosecutorial misconduct. I. HISTORY OF PROSECUTORIAL IMMUNITY UNDER 42 U.S.C. [section] 1983 42 U.S.C. [section] 1983 created a means by which citizens could address civil wrongs perpetrated by state actors. (10) It states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... (11) One justification often cited by the courts for clothing prosecutors with absolute immunity under [section] 1983 is the supposed long history of treating prosecutors as entitled to it. (12) However, this alleged history has been challenged. For example, Justice Scalia, in a concurring opinion in Kalina v. Fletcher, (13) took issue with the view that, in 1871, prosecutors had enjoyed absolute immunity: There was, of course, no such thing as absolute prosecutorial immunity when [section] 1983 was enacted. (Indeed, as the Court points out, there generally was no such thing as the modern public prosecutor.) The common law recognized a "judicial" immunity, which protected judges, jurors and grand jurors, members of courts-martial, private arbitrators, and various assessors and commissioners. That immunity was absolute, but it extended only to individuals who were charged with resolving disputes between other parties or authoritatively adjudicating private rights. When public officials made discretionary policy decisions that did not involve actual adjudication, they were protected by "quasi-judicial" immunity, which could be defeated by a showing of malice, and hence was more akin to what we now call "qualified," rather than absolute, immunity. …

Hate speech, fighting words, and beyond - why American law is unique

Abstract: During the waning days of the turbulent presidential campaign of 2012, the issue of free speech was bound to emerge. President Barack Obama chose this moment to declare to the United Nations General Assembly his abiding commitment to the uniquely American value of unfettered expression. (1) In a diverse society, he reaffirmed, "efforts to restrict speech can become a tool to silence critics, or oppress minorities." (2) The catalyst for this declaration was the appearance of "a crude and disgusting video" (3) caricaturing the Prophet Muhammad which had triggered violent protests in more than twenty nations, mainly in the Middle East. (4) President Obama made clear both his disdain for the video and his unswerving faith in the singularly American insistence on free expression. (5) Curiously (or some would say paradoxically) the Obama Administration only weeks earlier had actively supported passage of a resolution in the United Nations Human Rights Council to create an international standard restricting some anti-religious speech; the Egyptian ambassador to the United Nations had lauded this measure by recognizing that '"freedom of expression has been sometimes misused' to insult religion." (6) Secretary of State Hilary Clinton had added her view that speech or protest resulting in the destruction of religious sites was not, she noted, "fair game." (7) In a recent and expansive analysis of these contrasting events, constitutional scholar Jonathan Turley noted the paradox: "President Obama's U.N. address last month declaring America's support for free speech, while laudable, seemed confused--even at odds with his administration's own efforts." (8) In fact, such asymmetries abound in the contrasting views of the United States and virtually all other western nations. Countries as geographically close and politically congenial as Canada view free expression in starkly different ways than do we in the United States. In mid-October of this year, Canadian officials barred from our mutual border Reverend Terry Jones, the notorious Koran-burning pastor who has been the target of venomous hatred but has not been charged with any crime in this country; Jones was interrogated at length by Canadian officials and eventually turned away, unable to attend a Toronto gathering at which he had been invited to speak weeks earlier. (9) In sharp contrast, President Obama, the Pope, and religious and military leaders have consistently implored Reverend Jones to abandon his Koran-burning, and his church's tax exempt status has been stripped for technical reasons, (10) But even under the rubric of "incitement," (11) criminal sanctions and even civil penalties have not been imposed. (12) And just as a timely reminder of how dramatically different is the U.S. approach to hateful speech, a federal district court in the same week ruled that the Metropolitan Washington Transit Authority could not constitutionally prevent or delay the posting of a controversial ad reading "IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN. SUPPORT ISRAEL. DEFEAT JIHAD." (13) District Judge Rosemary Collyer ruled that such a message could not be barred or excluded from the bus and subway poster spaces simply because it might upset (or even inflame) some Metro riders. (14) Finally in this very recent overview, we might note the growing tension over restrictions imposed by U.S. internet providers upon expression in other parts of the world. Google, for example, is blocking access in two countries to a crude and inflammatory anti-Muslim video, but without removing the video from the YouTube website. (15) And a few weeks later, Twitter was reported to have blocked German Twitter users from accessing an account of the activities of a neo-Nazi group that is banned in Germany, since the use of Nazi symbols and slogans and insignia is widely banned and subject to severe criminal sanctions. (16) The following day, however, a French Jewish group reported that Twitter had removed the anti-Semitic postings and had reopened access even to German users. …

Are Franchisees Well-Informed? Revisiting the Debate over Franchise Relationship Laws

Abstract: The most vital debate in the field of franchise contract law over the last few decades has focused on the following issue: Whether the law should protect franchisees against franchisor opportunism. Franchisor advocates suggest that franchisee protection laws, commonly known as "franchise relationship laws," are undesirable. Their opposition to such laws is based primarily on an assumption that franchisees consider all relevant information before signing a franchise contract and make a well-informed choice among the range of franchise alternatives available. In particular, prior to signing the contract, franchisees are assumed to have read the franchise disclosure documents made available to them, compare the various contracts and disclosure documents offered by different franchisors, and consult with a specialized franchise attorney regarding the terms of the franchise contract. Since franchisees consider all of the relevant information and make a well-informed decision, they do not deserve, according to franchisor advocates, any special legislative protection that would interfere with the franchisor-franchisee free-market relationship. Based on a significant body of existing empirical research, which has thus far been overlooked in the debate over franchise relationship laws, this article will argue that the assumption that franchisees consider all relevant information before signing a franchise contract and make a well-informed choice is questionable. Briefly summarized, the argument presented in this article is as follows: New franchisees that join a franchise network normally lack prior business ownership experience. This lack of experience presents significant cognitive obstacles for novice franchisees when attempting to consider all of the relevant information before acquiring ownership of a franchise unit. Such cognitive obstacles-contrary to the franchisor advocates' view--often lead franchisees to ignore franchise disclosure documents, avoid conducting a comparison between various franchise contracts and disclosure documents, and neglect to consult with a specialized franchise attorney prior to signing the franchise contract. Given this reality, theoreticians and legislators interested in creating franchise laws that protect novice franchisees from possible opportunism by franchisors must cast doubt on the assumption that franchisees are well-informed business people and incorporate into their analyses a more representative conception of franchisee characteristics. I. INTRODUCTION II. FRANCHISE RELATIONSHIP LAWS--OVERVIEW III. THE FRANCHISOR ADVOCATES' VIEW IV. THE CRITIQUE A. New Franchisees Lack Prior Business Ownership Experience 1. Explanation 2. Empirical Evidence B. Inexperienced Franchisees Ignore Relevant Information 1. Explanation 2. Empirical Evidence V. CONCLUSION I. INTRODUCTION The most vital debate in the field of franchise contract law over the last few decades has focused on the issue of whether the law should protect franchisees against franchisor opportunism. (1) Franchisor advocates claim that franchisee protection laws, commonly known as "franchise relationship laws," are undesirable. (2) Their opposition to such laws is based mainly on an assumption that franchisees consider all relevant information before signing a franchise contract and make a well-informed choice among the range of franchise alternatives available. (3) In particular, according to this analysis, prior to signing the franchise contract, franchisees read the franchise disclosure documents made available to them before signing the franchise contract, compare the various contracts and disclosure documents offered by different franchisors, and consult with a specialized franchise attorney regarding the terms of the franchise contract. (4) According to franchisor advocates, since franchisees consider all of the relevant information and make well-informed decisions, they do not require any special legislative protection that would interfere with the franchisor-franchisee free market relationship. …

Donation after cardiac death: respecting patient autonomy and guaranteeing donation with guidance from Oregon's Death with Dignity Act.

Abstract: As medical technologies advance, the legal community is forced to address difficult medical issues, balance competing ethical concerns, and find solutions to seemingly impossible questions. One such question is whether a patient "living" in a medically futile condition, who has sought the withdrawal of life support and donation of his or her organs can be declared legally dead--or, in this situation, can the law deem the administration of death hastening drugs acceptable--for the purpose of ensuring the viability of his or her procured organs for the future organ recipient? In the context of organ donation, such a question can have far reaching effects. Consider the following situation. An adult woman, Anne, falls victim to a horrific bicycle accident, leaving her with only primitive brain stem functioning and completely dependent upon a ventilator. (1) Prior to the accident she signed an advance directive requesting that if she were ever in a state of permanent unconsciousness a do not resuscitate ("DNR") order be set in place and any ventilator removed. The directive assigns Anne's spouse to act as her surrogate and to implement her requests. On several prior occasions the couple had discussed their wishes and each had expressed the desire not to remain on life support. Furthermore, concerned about the increasing organ shortage, the couple registered as organ donors and expressed to each other their strong desire that their organs be donated. Following the accident, it became clear that Anne's condition was not going to improve and that medical intervention would be futile. Pursuant to the directive and Anne's wishes, her husband requested that life support be withdrawn and that Anne's organs be donated. The hospital initiated its donation after cardiac death ("DCD") protocol. However, strictly complying with the DCD protocol, the hospital did not continue the process of procuring Anne's organs because she did not reach full cardiac arrest within a given time period; the organs could not be used because they are less likely to be successful in the recipient's body. As a valid DNR was in place, Anne was not revived. She and her organs died several minutes later. This comment explores the legal landscape surrounding DCD and the possibility of allowing the utilitarian removal of organs from patients who may not be considered dead under current legal definitions. While this exploration focuses on New York State law, much of the discussion is applicable to jurisdictions throughout the United States. Part I of this comment sets forth the current DCD protocols and the problems these protocols can create or prevent. Part II discusses current legal and ethical considerations involved in DCD and their interplay with long-established ideas of patient autonomy, nonmaleficence, and beneficence. Part III discusses the ethical arguments that proponents of procuring organs prior to legal death have set forth and the benefits that can be gained from such conduct. Part IV notes the hesitance--prior to their widespread acceptance--of the medical, legal, and lay communities to accept DNR orders, the removal of life-prolonging technology, and to legally define death to include brain death. Finally, Part V discusses what needs to change in the legal and medical spheres to ensure that organs can be procured within one hour after withdrawing life-prolonging measures. Acquisition of organs within that period is necessary to ensure that the organs remain viable for transplantation into the recipient(s) and to meet the requirements under DCD protocols. I. DCD PROTOCOLS IMPLICATE ETHICAL CONCERNS The Uniform Determination of Death Act ("UDDA"), which has been adopted in some form by all fifty states, defines a person as dead when the "individual ... has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem. …

Judicial Selection Principles: A Perspective

Abstract: We commend the Albany Law Review for focusing attention on the critical issues involved in judicial selection. Our country prides itself, justifiably, on being a nation of laws. But history tells us that the rule of law cannot survive without an independent judiciary. No matter how magnificent a court's building, no matter how dedicated its staff, and no matter how skilled the advocates who appear, if judges make their decisions for reasons other than as a faithful application of the law, the rule of law as we know and revere it does not exist. Judges must be free to apply the law without prejudice and without favoritism, free of improper outside or political influences, and unencumbered by the threat of removal from office when a decision required by the law does not meet with public or political approval. Our institutional framework, including the methods we use to select our judges, must assure our judges the freedom to render unbiased decisions. The principle that judges must be protected from improper political and outside influences is not new to us. Indeed, our founding fathers recognized that the judiciary must be independent of the political branches of government. To that end, they drafted a federal Constitution designed to assure that Article III judges, who are appointed by the President and confirmed by the Senate, are not beholden to the political branches of government with respect to their tenure and salary. Emerging democracies across the globe have adopted this once-revolutionary approach, which structurally restrains the political branches from impulsive abuses of power that might otherwise occur. The history of judicial selection in the states, on the other hand, reveals considerable experimentation. Today, states use various methods to select their judges: partisan and nonpartisan elections; appointment by legislatures or by governors, with and without legislative confirmation; and "merit selection," usually combined with retention elections in which the voters decide whether a judge should be retained on the bench. Most of these variations were unknown at our country's founding. Each original state adopted a judicial appointment approach designed to insulate judges from the political process; no original state selected judges through a popular elective process. In the nineteenth century, however, many states, impacted by the teachings of the populist movement, chose to elect some or all of their judges. Unlike other democratic innovations devised in the United States, the decision to elect judges has not found broad acceptance in other countries. Popular election of judges, which introduced campaign cash to the courtroom, soon spawned questions about the impartiality and qualifications of judges chosen through an electoral process. In response to a series of bitter judicial elections that were accompanied by charges of patronage politics and corruption, a number of states adopted the approach referred to as merit selection, under which an independent, nonpartisan commission nominates the best qualified applicants for consideration by the appointing authority. Other states, however, retained the elective process. In our view, experiments with electing judges have not proved successful and should be abandoned in favor of merit selection and retention elections. Choosing judges through popular elections always presented the danger that money and campaigning skills, rather than ability and merit, would determine who served as a judge. The last decade, however, has raised that danger to new heights. Today's judicial elections pose a real and increasing threat to the fair and impartial courts on which this country has relied to maintain its democratic government and to ensure the rights of its citizens. If a modern Rip Van Winkle character had slept through the last decade, he would awaken to find judicial elections unrecognizable from prior elections in both character and cost. …

"Now I See It for What It Really Is": The Impact of Participation in an Innocence Project Practicum on Criminology Students

Abstract: Despite the growing number of university and law school-based innocence projects in North America, the impact of participation in the case review process on students has been underexplored. The current study investigated the experiences of criminology students who participated in an innocence project practicum at a Canadian university. Overall, participants found the practicum to be a positive experience that led to greater empowerment and increased feelings of competence and self-worth. Additionally, the innocence practicum impacted students' views of wrongful conviction and their beliefs about the criminal justice system. In particular, students left the practicum with a better appreciation of the factors that contribute to wrongful conviction, knowledge that wrongful convictions occur more frequently than they previously thought, feelings of empathy about the post-release challenges faced by exonerees, and the sense that they could make a difference in the lives of others. Moreover, students developed more negative views of, and lost faith in, the criminal justice system as a result of their involvement in the practicum. The implications of these findings are discussed. I. INTRODUCTION Research has found that many exonerees exhibit psychological symptoms similar to those of survivors of sustained catastrophes, such as victims of abuse and war veterans. (1) For example, Dr. Adrian Grounds conducted extensive assessments of eighteen men who had been erroneously convicted and incarcerated and found that wrongful imprisonment may lead to personality change, posttraumatic stress disorder, depression, and panic disorder. (2) Studies based on interviews with exonerees reveal that many exonerees experience feelings of profound grief and loss as a result of their wrongful imprisonment. (3) Christopher Ochoa, for example, described the void left by his wrongful conviction when he said: I have no family, I have no kids, I have no education, no car, no house. I used to get the newspaper from back home. I used to see these people that I went to school with. They had kids, beautiful homes, beautiful wives, and all this stuff, and I had nothing.... (4) Although freedom is initially a time of joy and celebration for the wrongly convicted, this joy often gradually subsides as exonerees experience the realities of life after exoneration. (5) Like other ex-prisoners, exonerees face numerous challenges following their release, including locating housing and employment. (6) However, because they are usually released with little notice, preparation, or support, they are often left to confront these challenges on their own. (7) For example, because they are innocent of the crimes for which they were incarcerated, exonerees are generally not eligible to receive the reintegration counseling, housing assistance, and employment training provided to other ex-prisoners. (8) Exonerees must also cope with social stigma and hostility, which is often fuelled by prosecutors and police, who-despite evidence proving otherwise--maintain that they are guilty. (9) Thus, after years of living in maximum security prisons for crimes they did not commit, exonerees are often re-victimized by those responsible for their wrongful conviction in the first place and left to fend for themselves. (10) As John Wilson remarked: If you're a victim of war, if you're a victim of a disaster, there are all kinds of organizations that will help you. But if you're a victim of our system of justice and you lose your freedom and you're traumatized in a similar manner [as a war veteran or a refugee or a person who's a victim of a disaster or a terrorist act], we don't have any mechanisms to help you get back into a normal life and a normal place in society. (11) To date, over 280 American citizens have been exonerated through the use of post-conviction DNA testing. …

Legal and Social Exoneration: The Consequences of Michael Toney's Wrongful Conviction

Abstract: I. INTRODUCTION In the last twenty years increasing scholarly attention has been devoted to understanding the causes and consequences of wrongful convictions. (1) This research has added enormously to our collective understanding of how the criminal justice system can sometimes fail to detect, convict, and punish the responsible party and instead focus its limited resources on securing the conviction and sentence of an innocent person. (2) Our ability to identify some wrongful convictions has been greatly assisted by advances made in DNA technology. (3) The use of DNA evidence has been pivotal to the discovery and release of numerous innocent men and women from prison. (4) Yet, as other commentators have pointed out, reliance on DNA evidence to designate innocence has confused our understanding of what it means to be innocent, wrongfully convicted, and exonerated. (5) The use of DNA evidence to prove innocence has likely given some members of the public pause when considering whether an accused is guilty. (6) However, it has also made society increasingly expectant of such proof in relation to claims of innocence. (7) This is concerning since most criminal cases do not actually involve DNA evidence. (8) Moreover, the emphasis on DNA has, in some cases, made it more difficult for those who have been wrongfully convicted and eventually exonerated without the benefit of such evidence to obtain social acceptance of their innocence. (9) For those who have been released due to other factors such as the use of junk science, eye witness misidentification, or prosecutorial misconduct, (10) members of the communities to which they return may continue to call into question their innocence in spite of their exoneration. (11) Researchers are just beginning to investigate the unique set of challenges facing the exonerated as they attempt to rebuild their lives after release. (12) In particular, pioneering research has identified similarities in the experiences of the exonerated and victims of state harm. (13) Such a comparison helps to clarify how the state can play a central role in creating and intensifying the problems faced by the wrongfully convicted (14) in the aftermath of release. Conceptualizing exonerees as victims of state harm helps to capture the array of challenges faced by those who have been wrongfully convicted and imprisoned. (15) In addition, it enables a broader discussion about the responsibility of the state to protect the welfare of the exonerated by taking steps to ease their transition back into the free world. This article expands on this growing area of research into exonerees as victims of state harm by providing a case study of statements by public officials in the aftermath of exoneration. Through an analysis of public comments in the aftermath of the exoneration of Michael Roy Toney, the 134th person exonerated from death row in the United States, (16) we discuss how public statements made by the state may impact public perceptions of the exoneree as wrongfully convicted, thus potentially increasing the challenges they face after exoneration and release. In 1999, Mr. Toney was convicted and sentenced to death for killing three people in what was at that time "the longest-running unsolved bombing investigation in the [nation]." (17) Nine years later, his conviction was vacated due to numerous Brady violations. (18) The Attorney General of Texas subsequently dismissed the indictment and Mr. Toney was released from custody. (19) As discussed in the next section of this article, although the indictment was dismissed because there was no credible evidence of Mr. Toney's guilt, the nature of his exoneration and the reaction by public officials cultivated unwarranted doubt about Mr. Toney's factual innocence even after the charges against him had been dismissed. (20) Section two discusses how public statements made by state officials served to impede Mr. Toney's reintegration into society, providing an opportunity to examine what it means to be "exonerated. …

The Supreme Court and Political Speech in the 21st Century: The Implications of Holder V. Humanitarian Law Project

Abstract: I. Introduction The repression of American political dissent in the 1950s derived much of its force from the concept of guilt by association. (1) Even the Supreme Court of that era, which until the late 1950s did virtually nothing to rein in the loyalty investigations and purges, recognized early on that criminally prosecuting or otherwise punishing people for mere membership in or "sympathetic association" (2) with allegedly subversive groups was inconsistent with basic principles of personal guilt. The Court thus interpreted laws and loyalty programs that targeted political associations to require scienter, or knowledge of a disapproved group's purportedly unlawful aims. (3) But the scienter requirement alone did nothing to stop the heresy hunts; it was not until 1961, when the Court also required specific intent to advance a group's illegal purposes, that it imposed any meaningful limits on guilt by association. (4) The all-important "specific intent" case, Scales v. United States, involved a criminal prosecution under the 1940 Smith Act for membership in the Communist Party. (5) The Court affirmed the conviction, but only by reading a specific intent requirement into the Smith Act's membership clause. (6) Explaining the importance of limiting associational crimes to situations where the defendant specifically shares the organization's unlawful purposes, Justice John Harlan wrote for the Court that if there were a "blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired." (7) The Court eventually extended this specific intent requirement to noncriminal cases, striking down loyalty oaths and investigatory programs that punished people for past or present Communist Party membership, even if they supported only the peaceful and legal programs of the Party. (8) Fast forward to 2010, when the Supreme Court revisited this Cold War history, but rejected its application to a contemporary form of guilt by association: the prohibition of non-tangible, speech-related "material support" to any group designated by the government as a foreign terrorist organization ("FTO"). (9) In Holder v. Humanitarian Law Project, Chief Justice John Roberts's opinion for the Court declined to read a specific intent limitation into provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act ("AEDPA") that criminalized providing "material support," broadly defined, to any FTO. (10) Propounding a meaningless distinction between membership in and material support to designated organizations, Roberts said that Scales, which concerned only membership, did not control the disposition of the case. (11) And he accepted the government's argument that nonviolent, nonmonetary, humanitarian aid or advice to an FTO may constitutionally be punished because it could lend the group legitimacy and thus undermine the U.S. government's foreign policy goals. (12) The Court reversed Ninth Circuit rulings that several elements of the material-support law were unconstitutionally vague, and dismissed the plaintiffs' and amici's First Amendment arguments with the assurance that AEDPA does not reach "independent advocacy" in support of the listed organizations. (13) Was the Holder decision a prelude to Supreme Court acquiescence in another era of political repression comparable to the heresy hunts of the 1950s, with "terrorist" now substituted for "communist" as the demonized enemy whose threat to U.S. security is said to justify broad limits on free speech and association? Or was it a narrowly tailored and reasonable judicial acquiescence to the political judgments of the executive and Congress, affirming a law that already had built-in First Amendment protections? Or was it something in between? This article first outlines the jurisprudential background to Holder: the Supreme Court's response to the repression of political dissent during the Cold War era, and its continuing protection for freedom of association. …

Media Diversity and Online Advertising

Abstract: I. INTRODUCTION II. BACKGROUND A. Freedom of Press, Media Diversity, and Advertising B. Privacy in Many Forms III. ENTER THE INTERNET A. The Internet Disrupts Press, Increases Diversity B. The Internet Transforms Privacy IV. MEDIA DIVERSITY AND PRIVACY A. Advertising, Media, and the Internet Ecosystem B. Balancing Privacy and Diversity V. CONCLUDING THOUGHTS I. INTRODUCTION In the midst of a fierce presidential election season, in October 2012, The New York Times revealed that the political campaigns of Barack Obama and Mitt Romney agree on at least one thing. (1) Both are turning to personalized data about voters, such as "shopping histories, gambling tendencies, interest in get-rich-quick schemes, dating preferences and financial problems." (2) Campaign workers use this information in their "get out the vote" efforts running up to Election Day. (3) They are debating whether to publicly shame people into voting through social networks or to use the detailed information to "persuade" unlikely voters to do their civic duty. (4) The two major parties are buying into big data; together, they spent $13 million on "data acquisition and related services" in 2012. (5) Even though both campaigns claim to follow the highest ethical standards and industry best practices, (6) and although the Federal Trade Commission (FTC) and Commerce Department have both emphasized the importance of "notice" to consumers and choice, (7) it remains unclear whether Americans understand know how much information the two presidential campaigns or their consultants have. (8) Headlines like Forbes's "The Obama And Romney Campaigns Know If You've Visited Porn Sites" suggest much of the public does not yet know these facts. (9) A member of Romney's campaign told The New York Times: "You don't want your analytical efforts to be obvious because voters get creeped out.... A lot of what we're doing is behind the scenes." (10) Despite the revelations of such massive information collection of personal information, there has been little uproar--likely because of the countervailing benefits of this activity. (11) Considering the value of wide participation in a democracy and our nation's chronically low turnout rates, (12) anything increasing electoral participation seems like a good thing. In addition, for centuries, political candidates have used information about voters to craft an argument that would persuade a particular voter, from knowing their gender to knowing their union membership. (13) Consider a second, seemingly unrelated, example. Ars Technica is an online-only publication with millions of readers across the country. (14) It specializes in technology news and informed analysis. (15) In March of 2010, the site's editors experimented with their audience by "blocking" content from readers who visited the site using ad-blocking technology. (16) The experiment worked, though it angered some of their readers. (17) Some twenty-five thousand readers responded by whitelisting the site (meaning they removed Ars Technica from the sites whose ads were blocked), while another two hundred readers paid for premium subscriptions, (18) The following day, the publication explained the "experiment gone wrong," detailing the importance of advertising to Ars Technica and others outlets like it, and asking readers to consider the real harms to online publications caused by ad blocking, such as staff layoffs and reliance on more advertising "of a truly questionable nature." (19) The experiment also surprised the editors; they didn't realize many people were blocking ads unintentionally, not understanding the harm it caused to the sites they frequent. (20) From the point of view of a publisher, blocking ads has essentially the same effect as blocking the use of information to generate more revenue from ads. (21) It is unclear whether Ars Technica runs behavioral advertising, but behavioral advertising often generates more revenue than less targeted advertising, and many sites rely on such advertising in part to sustain themselves. …

Domestic Worker Organizing: Building a Contemporary Movement for Dignity and Power

Abstract: We have read in history books and other books about slavery of long ago, but the way the housemaids must work now from morning till night is too much for any human being. I think we girls should get some consideration as every other labor class has, even though it is housework ('Fifteen weary housemaids' to Mrs. Roosevelt, February 1938 ... ). (1) With the passage of this International Convention and Recommendation, I am emotional thinking of all of the domestic workers--their sweat, their hard work, the abuses they've endured--and I myself have lived this experience. Today, at a global level, the work of cleaning houses, caring for children, the elderly, and disabled is recognized as work-work like any other. (Juana Flores, domestic worker delegate to the International Labour Conference, June 16, 2011). (2) I. INTRODUCTION In the past decade, domestic workers have created a robust worker movement and sustained organizing in states like New York and California, as well as nationally and internationally. (3) Their labor has borne fruit in the passage of the New York Domestic Workers Bill of Rights ("New York Bill of Rights") and the International Labour Organization's CILO") adoption of the ILO Convention and Recommendation Concerning Decent Work for Domestic Workers. (4) California is poised to pass its own bill of rights and nationally, the Department of Labor has proposed regulations greatly expanding wage entitlements for live-in domestic workers and workers providing companionship services. (5) It seems at last that domestic workers are gaining visibility and legal rights. The success of domestic worker organizing in the twenty-first century may seem like an anomaly against the backdrop of increased hostility towards unionized labor and an overall decline in wages and benefits for workers. (6) The contemporary domestic worker movement, beginning in the 1990s, builds upon centuries of organizing and agitation by domestic workers and others for a cultural shift that values domestic labor as real work. (7) The current movement fundamentally alters past organizing models, linking the struggle to a broader movement for social justice. Unlike past organizing efforts, domestic workers are at the helm of the contemporary movement. They have made significant strides, through their leadership and visibility, moving the cultural paradigm and building a broad-based alliance with labor, social justice activists, faith-based organizations, women's groups, and students. (8) Using a historical lens, this article analyzes the contemporary domestic worker movement's success and momentum in transforming cultural attitudes toward favoring the legal protection of domestic workers. Part II will discuss the reasons why domestic work has not been valued historically. Part III will trace the history of domestic worker organizing, focusing on three organizing models that helped alter the societal framework. Part IV analyzes the contemporary organizing models used in New York and California for domestic labor reform. Part V discusses the next frontier in domestic worker organizing: building transnational unity and power. II. THE VALUE OF REAL WORK The historic devaluation of domestic labor stems from a complex societal framework that is rooted in the gendered and racial makeup of the workforce. The low status of domestic labor was firmly intertwined with both the status of those who predominately served and the history of slavery. African-American women dominated the domestic services both during and after slavery in the South. (9) They soon came to supply domestic labor in northern cities as well, as African-Americans migrated in overwhelming numbers during the Great Migration. (10) During this period, "black women ... formed a servant and laundress class, as no white group had ever done before." (11) By the 1940s, African-American women held close to half of domestic service jobs, nationally. …

A Neu Neumeier: The Need for a More Flexible Framework for Choice of Law in the State of New York

Abstract: "The only way to create a foundational document that could stand the test of time was to build in enough flexibility that later generations would be able to adapt it to their own needs and uses." (1) INTRODUCTION During the second half of the twentieth century, choice of law principles in the United States came under heavy criticism. (2) Choice of law disputes arise in cases that involve "facts connected to different jurisdictions," and require courts to determine which jurisdiction's law should apply. (3) Initially, the increasing complexities surrounding this field of law led the majority of jurisdictions in the United States to follow the "traditional" choice of law rule in tort actions (also commonly referred to as lex loci delicti) (4) embodied in the original Restatement of Conflict of Laws: "the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort." (5) This theory posited "that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law." (6) However, the doctrine--once praised for its ease of application and predictability--soon became discredited for its rigidity and ignorance of other interested jurisdictions. (7) Thus, the traditional rule was abandoned by the majority of jurisdictions, in search of a rule that was less mechanical and allowed for greater flexibility in its application. (8) New York "played a major role in the evolution of modern choice of law theories," and its jurisprudence and case law are still given considerable attention by conflicts theorists. (9) The New York Court of Appeals led the charge against the traditional approach, and became the first jurisdiction to openly abandon it as its rule. (10) However, while New York was once a respected leader in the field of conflict of laws, its influence in the field has decreased over the last several decades. (11) This is a direct result of the Court of Appeals' pronouncement to be the first jurisdiction to adopt a rigidly applied mechanical framework for a set of rules that would govern all future tort conflict situations, which has come to be known as the Neumeier rules. (12) Since the adoption of these rules, not a single jurisdiction has followed suit; the majority have instead elected to adopt alternative conflicts approaches, primarily that of the Second Restatement of Conflict of Laws. (13) These other jurisdictional approaches differ from the approach adopted in New York, primarily in their fluidity and ability to adapt to the particular circumstances involved on a case-by-case basis. In June 2011, the Court of Appeals was presented with a question of first impression--a unique case that had never before reached its courtroom--involving questions of choice of law concerning "nondomiciliary defendants [who were] jointly and severally liable to nondomiciliary plaintiffs in a tort action arising out of a single incident within the State of New York." (14) The case, Edwards v. Erie Coach Lines Co., involved multiple defendants, domiciled in Ontario and Pennsylvania, who were in a car accident in the State of New York. (15) The majority's holding in the case, and the application of New York's choice of law rule, highlighted the deficiencies in the Neumeier rules: their rigid nature and inability, at times, to render a fair and equitable result. Moreover, the court's decision in Edwards brings to the forefront the reason that New York has fallen behind in the conflicts field and is no longer the major and esteemed player it once was: its choice of law framework is inadequate to deal with the wide range of cases and circumstances that arise in the multistate and international system that exists today. While a set of mechanical rules can be useful, goals of uniformity and predictability should not be accentuated at the expense of bedrock principles such as fairness, justice, and equity. …

My Three Decades with Darryl Hunt

Abstract: I. 2006 AT THE HOTEL HELIX: FLASHBACK TO 1984 Darryl Hunt and I were waiting in the lounge of the Hotel Helix in Washington, D.C. to attend a screening of The Trials of Darryl Hunt, (1) a documentary about his twenty-year saga from wrongful conviction to exoneration. (2) It was the summer of 2006, well over two years after the State of North Carolina released Darryl from prison.(3) Darryl started perspiring, became agitated, and said he felt his heart was racing. As we sat, he noticed a lime green flashing light in the lounge. This lime green was the same color as the socks a reporter was wearing on September 14, 1984, the day the police put Darryl, a nineteen-year-old black kid, on display in a fenced-in area in the basement warrant office of the Forsyth County Hall of Justice in Winston-Salem, North Carolina. (4) Darryl focused on those green socks while the white reporters stared at this caged black man whom they saw as the animal who raped and took the life of one of their own, the beautiful white Deborah Sykes, a copy editor for the evening paper, Twin City Sentinel. (5) He held back the tears by staring at the green socks. (6) The lime green light twenty-two years later triggered a flashback with this intense physical response for Darryl. II. 1993: MY FOUR-YEAR-OLD'S ADVICE My four-year-old daughter stood in the doorway of our bedroom, hand on her hip, and gently advised me, "what you have to do is look at her sideways, and remember her the way she was." She saw that I had been crying at the bedside of her mother, distraught over Pam's confusion and pain as the cancer cells spread to her brain. Her sentences were becoming incoherent. Periodically, she screamed in pain. This was late May 1993, just a week before Pam died from breast cancer diagnosed twenty-two months earlier. In my lexicon, it was also just a few weeks before hearings in the Darryl Hunt case, hearings on whether the police had intimidated defense witnesses before his 1990 murder retrial. What did my daughter mean by her advice, "look at her sideways?" Even now, more than eighteen years after that day in May 1993, I struggle to discern the meaning of those words. Maybe they were simply words to soothe. Perhaps she was telling me to "see" with some sense other than my eyes. Was she tapping into the collective subconscious and suggesting that I begin to see with "the sidelong glance" of Aphrodite, or the "mind's eye" of meditators and prophets? When I found her in the tree house in the backyard later that day talking on her play phone with Pam, I thought there was some direct line of communication between the two of them, mother and daughter, a line beyond talking. Just a few weeks earlier, Pam was in the hospital so the doctors could drain fluid from her lungs. Finally, I began to realize that my role was not to find a cure for her cancer, but simply to be present with her, to love her. For the first twenty months of her illness, I tried to read everything I could, to question every doctor, and be a cheerleader. I was out on a run when, just out of the corner of my eye, I saw myself standing on a bridge with Pare. It was the drawbridge going onto Sunset Beach, North Carolina, our usual vacation spot. This was the spot where, as I drove onto the bridge at the beginning of the week, in my mind's eye, I envisioned myself driving back onto the mainland at the end of the week. It was a spot where time stopped. On this day in May 1993, Pam and I simply shared the space for this moment, without disease, anger, or grief. Maybe this was the meaning of my daughter's confirmatory advice, to "look at her sideways," to take the long view, to focus not on the pain before my eyes, but on the life she shared with me and our girls. III. THE INTENTION OF THIS REFLECTION My daughter's advice to me has become one of several mysterious phrases and riddles that continue to haunt and inspire me. Another of these phrases was given to me by my classmate Monte Creque, in her high school valedictory speech: "Never buy shoes in the morning. …

High Volume Hydraulic Fracturing and Home Rule: The Struggle for Control

Abstract: I INTRODUCTION At the core of American jurisprudence is its system of checks and balances Each of the three branches of government--executive, legislative, and judicial--is specifically designed to provide oversight and review of each other; the goal to reign in and prevent abuses of power or instances where one branch exerts powers it does not have Moreover, there is no hierarchy of power between the branches; their powers, functions, and limitations being derived by the Constitution itself In addition to this system of checks and balances within government, there is also a system of checks and balances among the different layers of government--federal, state, and local The difference here is that there is a hierarchal structure of power between these layers Unquestionably, the federal government sits atop the power structure, and provides a unifying force of law and policy throughout the country The federal government also provides powers to the states, colloquially referred to as the "police powers" (1) Likewise, state governments have control and authority over local municipalities, and local governments get their powers from the states, such powers being referred to as "home rule" powers (2) In other words, the powers, functions, and limitations of each layer of government are derived from the preceding layer Just because a layer of government has exerted power in a particular area, does not automatically preclude another layer from regulating There are many instances where the different layers of government are able to concurrently regulate a particular area However, there are instances where the federal or state government has either (i) reserved complete and exclusive control, or (ii) specifically limited the powers of a lower layer of government This is done through the doctrine of preemption (3) and supersession (4) Notwithstanding this system, which has been in place for over two hundred years, (5) there is still a struggle for control among the branches of government, as well as among the layers of government Where the system tends to break down is with an emerging area of law In these instances, a struggle for control occurs There can be an executive order, proposed legislation, and judicial review occurring simultaneously Plus, there can be attempts by multiple layers of government to exert control There is no better current example than with high volume hydraulic fracturing ("HVHF"), an emerging technology and area of law in the Northeast For the most part, the struggle for control over HVHF is taking place between state and local governments, (6) and this article primarily focuses on the struggle between New York State and its local governments As municipalities are enacting local laws and moratoria banning HVHF within their borders, the question remains: do municipalities have this power? As explained in more detail below, two recent court cases, Anschutz Exploration Corporation v Town of Dryden ("Dryden"), (7) and Cooperstown Holstein Corporation v Town of Middlefield ("Middlefield"), (8) have upheld local laws prohibiting HVHF (9) These laws were upheld, despite the fact that New York State law has very broad preemption powers over the oil and gas industry, and prior attempts by municipalities to regulate the oil and gas industry have been struck down as preempted by state law (10) Even more recently, on October 2, 2012, another case dealing with home rule powers and HVHF was decided In Jeffrey v Ryan ("Binghamton"), (11) the court overturned a local law prohibiting HVHF, determining that the local law was an improper moratorium (12) In so doing, the court casted doubt upon and questioned the legality of all moratoria prohibiting HVHF (13) Both Dryden and Middlefield have been appealed to the Appellate Division, Third Department, (14) and a decision to appeal has not been made yet regarding Binghamton …

Encouraging Congress to Encourage Speech: Reflections on United States V. Alvarez

Abstract: Like many Supreme Court decisions, United States v. Alvarez (1) answered many questions. Can the government proscribe false statements solely because they are false? (No.) What must the government establish before regulating or proscribing speech? (Likely or actual harm.) Also like many Supreme Court decisions, Alvarez created (or resurrected) at least as many questions as it answered. How much harm is required before the government can regulate speech? How do courts and lawmakers discern the holding when no opinion garnered a majority of Justices? Both judges and lawmakers look to the Court for guidance. While judges have the advantage of actual parties and concrete facts, legislators must gaze into the future to craft legislation that comports with the Court's decision while meeting the needs of their constituents. This challenging task is made all the more difficult when the Court's decision is fractured, with no single legal theory attracting the votes of five Justices. This article attempts to shed some light on the path forward for the legislative branch, bifurcating (as does the Alvarez decision) to address the harms posed by false claims of military awards. This article starts by examining the pre-Alvarez legal landscape of proscribing content-based speech, (2) then examines how the Court treated its own precedent in Alvarez, including an analysis of Justice Breyer's concurrence and its application of intermediate scrutiny to content-based speech. (3) Of particular note is the emphasis on--and the differing treatments of--counterspeech, and its effect on the constitutional analysis. (4) Finally, both approaches to false statements of fact are applied to various approaches to addressing the harm of false claims of military valor: the plurality's approach as applied to the Stolen Valor Act of 2012 (which recently passed the House by a vote of 410 to 3), and Justice Breyer's intermediate scrutiny as applied to a statute designed to protect the reputation of military awards. (5) I. PROHIBITING LYING IS CONTENT-BASED REGULATION Everyone agrees: proscribing falsehoods is a content-based regulation of speech. (6) Because content-based restrictions are presumptively invalid (7) this fact presented problems for Craig Missakian, (8) the Assistant United States Attorney defending the Stolen Valor Act (SVA or the Act) before the Ninth Circuit. To successfully defend the SVA, Mr. Missakian had to establish that either the First Amendment didn't apply to false statements of fact, or, if the First Amendment protected those falsehoods, the SVA either satisfied the rigors of strict scrutiny or fell into a "well-defined" exception. (9) The Ninth Circuit majority--Judges Milan D. Smith, Jr. (l0) and the late Thomas Nelson (11)--started by "presumptively protect[ing] all speech against government interference," (12) including false statements of fact. The majority also rejected the contention that the SVA was the least restrictive means to achieve the government's ends, (13) a point conceded (14) by the lone dissenter, Judge Jay Bybee. (15) Thus, the only remaining avenue to save the Act was to construe it as a member of a "well-defined and narrowly limited class[] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." (16) The Supreme Court enumerated these "narrow classes" in United States v. Stevens, and indicated that while the list was not finite, discovery of additional classes of unprotected speech would be rare. (17) Although Stevens had not been decided when Alvarez was argued at the Ninth Circuit on November 4, 2009, Xavier Alvarez's attorney, Assistant Federal Public Defender Jonathan Libby (who would also represent Alvarez before the Supreme Court), (18) successfully argued that the SVA did not fall into any of the categorical exceptions later collected by the Stevens Court. (19) The Ninth Circuit's decision, handed down just over four months after Stevens, was one of the first applications of Stevens's categorical approach. …

Missing the Target: Where the Geneva Conventions Fall Short in the Context of Targeted Killing

Abstract: I. Introduction The Geneva Conventions are the core body of international law that regulates armed conflict. (1) Since 1864, when the First Geneva Convention was codified, the Conventions have been updated several times. (2) War is waged much differently today, (3) however, than it was in 1949--the last time the Conventions were updated in their entirety. (4) Even though Additional Protocols I and II were implemented in 1977 specifically to "deal with the changing nature of armed conflict and advances in weapons technology," (5) their adoption was a retroactive response to the increase in internal State conflicts, civil wars, and national liberation movements (CARs), (6) rather than a prospective means of encompassing any future advances in warfare. (7) Over the last decade, the International Committee of the Red Cross (ICRC) has issued several reports to rectify areas of ambiguity in the Conventions and other areas of customary international law in general, (8) but gaps still remain. (9) This note explores those gaps by focusing on the issue of targeted killing and the current problems the international legal community faces in upholding International Humanitarian Law (IHL). Part II examines the emergence of targeted killing as part of the United States and Israeli policies to combat terrorism. Part III discusses the law of armed conflict as it is codified in the Conventions and how classification of an armed conflict affects the legality of targeted killing. Part IV contrasts the United States' position justifying targeted killing as preemptive self-defense with the international legal community's position of strict adherence to Article 51 of the U.N. Charter. Part V explores the recent targeted killings of Osama bin Laden and Anwar Al-Aulaqi, and the disparate treatment afforded to each under international law. The note concludes with a discussion on how the Geneva Conventions can be reformed to eliminate gaps in the future. II. Emergence of Targeted Killing [T]argeted killings are not a new phenomenon. (10) For centuries, States have eliminated individual enemies through the employ of targeted killings. (11) But only recently has any State openly acknowledged engaging in this tactic. (12) The United States unofficially adopted targeted killing as a counterterrorism tactic in 2001 in response to the September 11th terrorist attacks on the World Trade Center. (13) In the first five years after 9/11, the United States conducted more than a dozen targeted killings in Afghanistan, Pakistan, Iraq, and Yemen. (14) In October 2001, the new version of the 'Predator' drone was employed jointly with jet fighters to kill Mohammed Atef, the suspected military chief of al Qaeda, in Afghanistan. After that, the 'Predator' continued to be used for the targeted killing of individuals suspected of assuming leading functions within al Qaeda, including, most notably, Ali Qaed Senyan al-Harithi (Yemen, 3 November 2002), Haitham al-Yemeni (Pakistan, approximately 10 May 2005), and Hamza Rabia (Pakistan, December 2005). (15) While the international community has continuously condemned targeted killing since its emergence in 2000, (16) criticism has not deterred either the United States or Israel from continuing to conduct targeted killing operations. (17) In fact, under the Obama administration, the number of U.S. drone strikes has steadily increased (18)--122 were launched in Pakistan in 2010 alone (19)--and shows no sign of diminishing anytime soon. (20) Several high-ranking U.S. political figures have even called the applicability of the Conventions into question given the changing nature of warfare (21)--an ideology not shared by the international community. (22) "The criticism of targeted killing is primarily based on the premise that it constitutes either extra-judicial killing or assassination," (23) both of which are illegal under customary and international humanitarian law. …

Whither the Criminal Court: Confronting Stops-and-Frisks

Abstract: Two recent cases from one of New York's intermediate appellate courts suppressed evidence based on illegal searches, (1) and, given the present stop-and-frisk controversy, immediately became headline news. The New York Times ran a front-page story (2) and the New York Post printed an editorial titled "Next stop: Anarchy." (3) In federal court in Manhattan, a judge granted class-action status to a lawsuit challenging the New York City Police Department (NYPD) stop-and-frisk practice, and commenced a trial to determine whether the NYPD was adhering to constitutional search and seizure requirements. (4) The New York Times article even declared that judges were "the most potent critics" of stop-and-frisk practices. (5) These decisions, and the attention they garnered, suggest that New York courts are immersed in stop-and-frisk litigation. (6) That is hardly the case. The timely decisions rendered by the federal court and the state appellate court on this contentious subject actually point to a larger issue--the invisibility and willful irrelevance of the New York City Criminal Court, the first-tier trial court. (7) While many have critiqued the NYPD, its Commissioner, and the Mayor for the plague of rampant stops-and-frisks that impact young men of color in disproportionate and disturbing numbers, (8) few have turned their attention to the role of the criminal court. One would expect, or at least imagine, that in a city with more than 685,000 stops-and-frisks per year, (9) there would be innumerable suppression hearings with police officers called to testify under oath about what they did and why they did it. This is precisely the role imagined for the criminal court by the U.S. Supreme Court when it established the exclusionary rule for Fourth Amendment violations. (10) The Court determined that exclusion, or suppression, of the evidence was necessary in order to deter police officers from violating constitutional rights and performing unreasonable searches and seizures. (11) However, suppression hearings in the criminal court are few and far between. (12) Just as the criminal court's longstanding and overarching emphasis on efficiency and plea bargains trumps trials and meaningful determinations of guilt or innocence, (13) it also ignores, if not abhors, suppression hearings and careful examinations of the legality of everyday police conduct on the street. By abdicating its critical oversight role, the criminal court effectively shields police behavior from any meaningful external review or accountability and allows and encourages rampant stops-and-frisks to continue unabated. (14) The criminal court's missing-in-action status on the policing issue of the day is all the more egregious when the NYPD's stops-and-frisks are examined through a constitutional lens. The very use of the phrase "stop-and-frisk" implies that the practice employed by the NYPD is somehow condoned or imbued with legality by the Supreme Court through its landmark decision from 1968 in Terry v. Ohio. (15) Although street stops must be distinguished from street stops-and-frisks, the tension and controversy (16) surrounding both practices has generally been subsumed under the "stop-and-frisk" heading. That makes sense since street stops in general are viewed as authorized by the Court in Terry, the case that gave the Court's imprimatur to the practice now known as "stop-and-frisk." Given that Terry is offered by proponents of stop-and-frisk as providing constitutional cover for this controversial policing tactic, (17) it behooves all concerned to critically examine whether, and to what extent, that is truly the case. Put simply, did the Supreme Court in Terry mean to authorize more than 685,000 street stops in a single city in a single year? In Terry, the Court wrestled with a seemingly basic question: what, if anything, can police do to a citizen when they don't have probable cause to arrest, but they suspect that something illegal is afoot? …

The butt stops here: the Tobacco Control Act's anti-smoking regulations run afoul of the First Amendment.

Abstract: I. INTRODUCTION II. A CHRONICLE OF TOBACCO LEGISLATION: THE SLIPPERY SLOPE OF LEGISLATION REQUIRING HEALTH DISCLAIMERS ON CIGARETTE PACKAGING III. THE TOBACCO CONTROL ACT'S GRAPHIC IMAGES MANDATE AND THE FIRST AMENDMENT DIVIDE A. Discount Tobacco City & Lottery v. United States B. R.J. Reynolds Tobacco Co. v. U.S. Food and Drug Administration IV. GRAPHIC IMAGES AS COMPELLED, VIEWPOINT DISCRIMINATORY SPEECH A. The Commercial Speech Doctrine B. Compelled Commercial Speech 1. Zauderer--Rational Basis Standard of Judicial Review 2. Strict Scrutiny Review 3. Central Hudson Intermediate Scrutiny V. CONCLUSION I. INTRODUCTION Picture this: the upper body of an anonymous man, cigarette in hand, mouth parted in shame, as he exhales the ominous white smoke of his relentless habit through the black tracheotomy in the small of his neck. (1) Or perhaps, visualize: a healthy, pink, life-sustaining lung alongside a brown, disease-riddled lung, overgrown with foreign green and yellow tissue. (2) Try to envision: lips pulled back to reveal a crooked, rotting set of stained teeth, or what is left of them, with a crimson, flesh-eating wound, relentlessly devouring the raw skin surrounding it. (3) Finally, imagine: a lifeless, naked cadaver atop a crisp, white sheet, the dual cavities of his chest fastened together with a vertical row of staples, hiding the internal chaos left behind by the autopsy. (4) Did the foregoing narratives elicit a visceral response? Did the written descriptions alone incite feelings of unease, anxiety, and trepidation? If so, imagine the intensity of the response one might experience at the sight of the actual graphic images themselves. This October, (5) every consumer who purchases a pack of cigarettes will be forced to view these and five other graphic images, along with prominent new textual warnings, including the capitalized "1800-QUIT-NOW," the toll free phone number to a smoking cessation hotline. (6) Pursuant to a major component of the 2009 Family Smoking Prevention and Tobacco Control Act ("Tobacco Control Act" or "Act"), (7) the most comprehensive and aggressive tobaccos legislation to date, every cigarette package must soon bear one of nine color graphic images depicting the negative health consequences of smoking (9) These nine graphic images, released by the Food and Drug Administration ("FDA") for publication on all cigarette packages this fall, were designed specifically with the intent to shock the consumer and change his or her habits. (10) They express a subjective point of view and convey a strong message, beyond the purely factual information historically printed on tobacco and cigarette packaging. (11) Indeed, the message communicated through these highly graphic and disturbing images--namely, if you smoke, you will suffer the consequences depicted in these images--carry with them a high "fear appeal," (12) a factor that the government hopes will impact consumer decision-making. (13) In fact, studies indicate that visual stimuli with emotional imagery, such as these, create certain intensified physiological responses, including an elevated heart rate, a greater propensity for the "[s]tartle [r]eflex and the [e]yeblink," (14) and the amplification of skin conductance. (15) These physiological changes are a natural response to the emotions manifested in the pictures. (16) The pain, hopelessness, and desperation on the faces and images portrayed in color trigger an emotional response, driving thoughts, feelings, and ultimately, human behavior. (17) Unlike the health disclaimers currently published on all cigarette packages, the Tobacco Control Act's graphic images communicate a subjective and highly controversial message, eliciting a physiological and emotional response in the viewer, (18) According to Congress, (19) these images may ultimately drive long-term smokers to quit and decrease the incidence of first-time tobacco use, especially among adolescents. …

Categories, Tiers of Review, and the Roiling Sea of Free Speech Doctrine and Principle: A Methodological Critique of United States v. Alvarez

Abstract: I. INTRODUCTION In United States v. Alvarez, (1) the Supreme Court struck down the Stolen Valor Act of 2005, (2) in a splintered decision with no five-Justice majority. (3) The failure of five Justices to agree on a single rationale, rather than the merits of the case itself, is the principal focus of this article. The modest hypothesis of this article is that the Supreme Court has lacked doctrinal discipline in adhering to any consistent and clear set of doctrinal principles when analyzing content-based regulation of speech. This lack of disciplined consistency, highly visible in Alvarez, diminishes stability and predictability in First Amendment analysis. Such instability poorly serves legislative bodies, by diminishing the quality of constructive guidance as to what forms of speech regulation are or are not constitutional. The instability also handicaps lower courts tasked with judicial review of speech regulation. Setting the formulaic world of legal doctrine aside, Alvarez offers a good rough and ready guide to three very different judicial sensibilities regarding the preferred position of freedom of speech in the constitutional hierarchy. Visible in the spread of the three opinions in Alvarez are (1) the view, represented by Justice Kennedy's plurality opinion, that freedom of speech occupies an exalted position, rarely trumped by other societal values, (4) (2) the view, represented by Justice Breyer's concurrence, that freedom of speech deserves some elevated stature in the constitutional scheme, but not a stature so elevated that it cannot be overtaken by well-crafted laws vindicating other significant society values, (5) and (3) the view, represented by Justice Alito's dissent, that speech may be divided into that speech which serves some plausible positive purpose, which is deserving of constitutional protection, and that speech which advances no legitimate end worth crediting, yet is highly offensive to good order and morality, which is not deserving of any protection. (6) II. THE GHOST OF CHAPLINSKY V. NEW HAMPSHIRE First Amendment analysis has long been plagued by the ghost of Chaplinsky v. New Hampshire, (7) in which the Supreme Court suggested that the best way to handle judicial review of laws regulating speech was simply to list certain classes of speech as outside of the First Amendment's coverage. (8) In one of the most famous passages in the history of free speech jurisprudence, the Court in Chaplinsky confidently declared: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. (9) This passage has haunted free speech law for sixty years. The struggle of the Justices in Alvarez to unify behind any one coherent test for measuring the validity or invalidity of the Stolen Valor Act is the most recent example. (10) Purely as a description of contemporary First Amendment case outcomes, the Chaplinsky standard is all but worthless. Chaplinsky is both an overstatement and an understatement of the state of play. Chaplinsky is an overstatement in that many of the classes of speech listed by the Court as not "rais[ing] any Constitutional problem" have come to be understood as raising big constitutional problems. (11) Indeed, elaborate bodies of law have evolved to resolve those problems, providing substantial constitutional protection for speech that is lewd, obscene, profane, libelous, and insulting. (12) Take--as an especially graphic example--the legal fate of the "F Word," the mother of all words commonly labeled lewd or profane, in the years since Chaplinsky. In Cohen v. California, (13) the Court held the phrase "Fuck the Draft," worn on a jacket in a public place, was protected by the First Amendment. …

A New Look at Duty in Tort Law: Rehabilitating Foreseeability and Related Themes

Abstract: This article addresses the subtle yet turbulent "duty wars" currently raging with respect to the conceptual nature of duty in tort law. The scholars have thus far divided principally into three camps, and the courts have increasingly been taking their cue from this scholarship and altering their previously settled notions of the duty element. The main dispute has been over the role of foreseeability in the duty analysis. This article critiques the principal approaches taken in the literature, demonstrating, for example, why the vision of duty articulated in the new Restatement (Third) of Torts and represented by one of the scholarly camps--"purging" foreseeability from duty--is incoherent. The article develops the framework for a different, positive conception of duty, a policy, not obligation, centered view, in which foreseeability is itself a normative policy sub-element different in nature from the sort of foreseeability that underlies the jury's breach and proximate cause findings. The methodological insight that engenders this conception concerns the "self-reflexive" nature of the court's engagement with questions of law, in particular the duty question. While the community asks the first-order question what is the obligation we owe or should owe one another, the court self-reflexively addresses the higher-order questions of how it should rule on the duty issue, and what will be the impact of its ruling on the community and society. At those times, courts implicitly, and sometimes explicitly, speak of themselves and grapple with the judicial system's institutional role, legitimacy, and limitations. Appreciating the court's self-reflexive character enables us to show why, as an analytic matter, the inclusion of foreseeability in the court's duty analysis does not usurp the jury's role. This insight also grounds the new argument presented in this article for why duty arises from policy rather than obligation. I. INTRODUCTION II. OVERVIEW OF THE DUTY DEBATE III. A CRITIQUE OF GOLDBERG AND ZIPURSKY'S VERY RELATIONAL VIEW OF DUTY A. Goldberg and Zipursky's Obligation-Centered View of Duty B. A New Argument In Favor of the Policy Approach to Duty IV. A CRITIQUE OF ESPER AND KEATING'S SOMEWHAT RELATIONAL VIEW OF DUTY A. Esper and Keating's Weak Relational View of Duty B. Why the Obligation View Increases Particularized Duty Rulings C. Efficient, Particularized Duty Analysis is Not All Bad.. D. Accounting for the Courts' Self-Reflexiveness V. A CRITIQUE OF CARDI AND GREEN'S NON-RELATIONAL VIEW OF DUTY A. Cardi and Green's Alignment with the Restatement (Third) of Torts B. Rehabilitating Foreseeability--Why the Third Restatement's Vision of Duty is Incoherent C. Why Foreseeability in Duty Does Not Encroach Upon the Jury's Role VI. CONCLUSION I. INTRODUCTION After long inattention, the concept of duty in tort law is gaining currency. (1) Some scholars have been waging subtle yet turbulent "duty wars." (2) Outside of the academy, tort and products liability litigants and their amicus supporters, sometimes motivated by the scholarship, increasingly dispute the issues of whether one actor owes another a duty and of which duty standard to apply. (3) The prior and logically independent question is how to decide these matters, a question that must provoke reflection about the institutional concerns characterizing duty analysis, and decision-making processes generally. This sort of reflection has thus far been meager in the duty wars. Aiming to correct this methodological lapse, this article proceeds critically and divides according to the three main camps in the contest over the nature of duty in tort law. The teams leading much of the duty debate line up in the following way. John C.P. Goldberg and Benjamin C. Zipursky start with the position that duty is primarily an obligation to provide care with regard to individuals specifically resembling the plaintiff and that, by virtue of this strongly relational and obligation-centered view, the duty concept is an essential and robust component in tort controversies. …