“Governor Rebuffs Clemency Board in Murder Case”
Adam Liptak’s column in the New York Times is here. In part:
Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed. But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.
Robbins on Ghostwriting for Pro Se Prisoners
Ira P. Robbins (American University – Washington College of Law) has posted Ghostwriting: Filling in the Gaps of Pro Se Prisoners’ Access to the Courts (Georgetown Journal of Legal Ethics, Vol. 23, No. 2, pp. 271-321, 2010) on SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them – that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation – or “unbundled legal services” – is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. Nevertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take – i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance – and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Dov Fox has posted The Right to Silence Protects Mental Control (LAW AND NEUROSCIENCE, CURRENT LEGAL ISSUES, Vol. 13, M. Freeman, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:
This chapter argues that a right of mental control prohibits the state either from extracting a suspect’s thoughts without her meaningful consent or from making use of a suspect’s compelled recall or recognition to lay criminal blame upon her. Existing accounts of the constitutional privilege against self-incrimination are ill-equipped to address the doctrinal implications of safe and reliable forensic neuroscience. Brain imaging is importantly different, for Fifth Amendment purposes, from all other forms of evidence, because it enables state officials to obtain information directly from a suspect’s brain, in a way that affords her no opportunity to control the transmission of that information. The physical/testimonial distinction in right-to-silence jurisprudence presupposes a flawed conception of mind/body dualism. Exposing this dualism reveals that the normative significance we confer to a suspect’s control over his thoughts against unwanted use by the government. The use of compelled neuroscientific evidence is illegitimate when it deprives the accused of control over her mental life. Prosecutors may not comment on a suspect’s decision to decline the testing, and judges should instruct jurors not to draw adverse inferences from a choice to decline testing. Instructions against drawing adverse inferences are likely to be effective, however, only if jurors come to recognize legitimate reasons to decline testing.
June 5, 2010 | Permalink
Gould & Leo on Wrongful Convictions
Jon B. Gould and Richard A. Leo (pictured) (George Mason University – School of Public Policy and University of San Francisco – School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.
Stern on Homes and the Fourth Amendment
Stephanie Stern (Chicago-Kent College of Law) has posted The Inviolate Home: Housing Exceptionalism in the Fourth Amendment (Cornell Law Review, Vol. 95, 2010) on SSRN. Here is the abstract:
This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.
Lahny R. Silva has posted Clean Slate: Expanding Expungements; Pardons For Non-Violent Federal Offenders (University of Cincinnati Law Review, Forthcoming) on SSRN. Here is the abstract:
Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The “tough on crime” rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, “truth in sentencing” laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay.
This article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to clear their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. The first parts of this article examine post-conviction penalties and contemporary recidivism trends. Second, this article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society. This article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not feasible practically or politically. Moreover, the two existing federal post-conviction remedies-pardons and judicial expungements are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (hereinafter “U.S.S.C.”) create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. may be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.
May 25, 2010 | Permalink
Pillsbury on Doubt in Criminal Judgment
Samuel H. Pillsbury (Loyola Law School Los Angeles) has posted Fear and Trembling in Criminal Judgment (Ohio State Journal of Criminal Law, Vol. 2, 2010) on SSRN. Here is the abstract:
This review describes James Whitman’s argument that the beyond a reasonable doubt standard for conviction in Anglo-American criminal law was developed to solve a moral and theological dilemma arising from the medieval change from clergy-directed trials by ordeals to the secular jury trial. Whitman writes that the beyond a reasonable doubt standard, like the jury unanimity rule, was designed primarily to assuage what he calls moral doubt, the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting an accused of a capital offense. Whitman contends that this concern with decision-maker salvation was greater than any concern with an erroneous determination of the facts and that the greatest challenge for early modern decision-makers was not resolving contested facts but overcoming fear of the spiritual consequences of condemning another human being to death. Whitman contends that this makes the beyond a reasonable doubt standard ill-suited to the challenges of modern litigation, where the hard cases involve fact-finding and decision-makers generally do not fear for their souls in rendering a legal verdict. After considering this argument in both legal and theological terms, the reviewer develops a suggestion of the book’s author, that the early juror experience of “fear and trembling” in judging the most serious crimes might have a useful application to contemporary American criminal justice with its predilection for long terms of incarceration, especially by mandatory sentencing laws.
Illinois Appeals & Post Convictions 
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