Issue 320
January 21, 2005
v
R. v. Babinsky (Ontario Court of Appeal) Judgment
Released Jan 20, 2005
v Criticizing
the judges – Editorial v California’s
Death Penalty Lie – Editorial v On
Their Own on Death Row in Georgia by Ellen Barry v Why
Japan Still Has the Death Penalty by Charles Lane v Sentences
That Fit the Criminal – Editorial v Sex
offenders face lie detector tests by David Batty and agencies v High
court voids mandatory sentencing in federal courts by Jan Crawford Greenburg v U.S.
terror war ‘over-reaction,’ top judge says by Olivia Ward v Answer
to Scandal: Barcodes in Cadavers by
Charles Ornstein and Rebecca Trounson v In
battle vs. coach, jury calls dad out by Mickey Ciokajlo and Hal Dardick v Attorney
meets the ‘jury pool from hell’ – Associated Press
*****
Ms. Mead disappeared on October 19, 1988. She left work at 5:00 p.m. heading to her mother’s home to pick up her son. Ms. Mead never arrived. She was last seen at about 6:00 p.m. getting gas at a station north of Toronto , with a male passenger in her vehicle. Her badly decomposing body was found seven months later in a creek behind the Appellant’s work.
The Appellant and Ms. Mead first met in 1986. The Appellant wanted a romantic relationship with Ms. Mead, but she was not interested. In March of 1988 the Appellant was charged with sexually assaulting Ms. Mead, and was required by his bail conditions not to communicate with her. In October of 1988, the Appellant broke into Ms. Mead’s apartment in breach of his bail. Ms. Mead went to the police and consented to tape recording a conversation between herself and the Appellant in the hope that the Appellant would acknowledge that he broke into her apartment.
Counsel for the Appellant argued that the trial judge erred in admitting a tape recording of a conversation between Ms. Mead and the appellant on the day she disappeared. The conversation had been tape recorded by the police with Ms. Mead’s consent, but without the Appellant’s knowledge or consent. The Crown relied on the recording at trial to show that the Appellant had broken into Ms. Mead’s home earlier that week before she disappeared and to establish the Appellant’s knowledge of where Ms. Mead worked.
The interception of the conversation with the consent of Ms. Mead was lawful and in accord with the provisions of the Criminal Code as they existed in October 1988. The Court of Appeal had held that consensual interceptions did not violate the privacy rights of the non-consensual party to the conversation. 15 months following the interception the Supreme Court of Canada released the decision in R. v. Duarte (1990), 53 C.C.C. 93d) 1 (S.C.C.) and held that interceptions made with the consent of one party to the communication, but without prior judicial authorization, could infringe the privacy right protected by s. 8 of the Charter of the non-consenting party. The Court in Duarte also held that a recording should be viewed as a search and seizure in all circumstances save where all the parties to the conversation have expressly consented to its being recorded. By application of the Duarte standard, the warrantless participant tape recording utilized in this case was clearly unconstitutional.
The Court of Appeal held that, undoubtedly, the Appellant’s Charter rights were breached, and the evidence could have been obtained without breaching the Charter . However, the Court also held that the Charter breach stemmed from an entirely reasonable misunderstanding of the law by the police officers who would otherwise have obtained the necessary evidence to convict the accused in any event. The Court of Appeal concluded that the Appellant had not established that the admission of the evidence would bring the administration of justice into disrepute.
The Court of Appeal also concluded that the intercepted communication did not aount to conscriptive evidence for the purposes of s. 24(2) of the Charter because the recording did not compel or coerce the appellant to speak. The Court of Appeal referred to the three characteristics of conscriptive evidence according to Stillman in arriving at its decision, namely that the evidence must emanate from the accused, the accused must be compelled to participate in the creation or discovery of the evidence, and the compulsion must be in violation of an accused’s Charter rights. The Court of Appeal held that the intercepted communication was non-conscriptive and as such it was properly admitted by the trial judge.
The Court of Appeal dismissed the appeal.
*****
The following article appeared on globeandmail.com on
January 17, 2005:
Criticizing
the judges
It is time
that the judiciary was dragged kicking and screaming into the 21st-century of
free speech. It is time that the bench stopped thinking of itself as a fragile
flower and accepted that lawyers will from time to time make harsh and
intemperate criticisms. A case in Newfoundland and Labrador offers the perfect
opportunity for the judiciary to accept that free speech means that sometimes
the gloves come off.
Chief Justice Derek Green of the
province's trial division complained to the Law Society of Newfoundland about
the harsh public comments of lawyer Jerome Kennedy, an advocate for the wrongly
convicted. Mr. Kennedy faces a professional-misconduct hearing this week.
Mr. Kennedy was upset in 2003 that
a public inquiry into three wrongful murder convictions (all three of which he
helped reveal as wrong) would not look at the role that trial judges and jurors
may have played. He said in a speech that "trial judges who don't know
what they are doing" are one cause of wrongful convictions. He said part
of the problem is appointments made for political reasons, rather than merit,
and added that some judges have "intentional or unintentional biases -- in
other words, the forming ofa belief in guilt before all the evidence is
in."
This is rough stuff by the
standards of the legal profession. At one time it might have been cause for a
contempt-of-court hearing, under a common-law rule against "scandalizing
the court" designed to maintain the public's faith in the administration
of justice. But since the Ontario Court of Appeal ruled in 1987 that this common-law
rule was overly restrictive of free speech under the 1982 Charter of Rights and
Freedoms, the rule has become nearly obsolete in Canada.
The Ontario ruling came after a
maverick lawyer, Harry Kopyto, told a Globe and Mail reporter that the courts are
"warped in favour of protecting the police. The courts and the RCMP are
sticking so close together you'd think they were put together with Krazy
Glue." One of the appeal-court judges, Peter Cory (later a member of the
Supreme Court of Canada), wrote that "the courts are not fragile flowers
that will wither in the hot heat of controversy." He also said it cannot
be expected that "criticism will always be muted by restraint," and
added that "hyperbole and colourful, perhaps even disrespectful language
may be the necessary touchstone to fire the interest and imagination of the
public . . ."
Judge Cory's defence of free
speech is worth remembering in Mr. Kennedy's disciplinary hearing. The
Newfoundland law society's code of professional conduct says "the lawyer
should encourage public respect for and try to improve the administration of
justice." A tension exists in that sentence: To offer a sincere criticism
is to try to improve the justice system, but criticism may undermine public respect.
Of course, a system that does not permit public criticism and does not work on
its flaws will lose more respect in the long run.
Mr. Kennedy made an extremely
serious criticism in saying that some judges lack open-mindedness. Did he
believe his criticisms were true, and did he hope to improve the justice system
by making them? Or was he simply trying to wound orspite the bench for personal
reasons? From what has been made public thus far, there seems no reason to
doubt Mr. Kennedy's sincerity. The law society should send a message that the
justice system won't wilt if lawyers criticize the conduct of judges.
* * * * *
The
following article appeared on latimes.com on January 17, 2005:
California's
Death Penalty Lie
Donald
Beardslee was 38 years old in 1981 when he shot one woman and strangled and
slashed another in San Mateo County, retaliation for a soured drug deal. He is
now 61. So many years have passed since a jury sentenced him to die in the gas
chamber that the infamous green room at San Quentin Prison has become a grisly
relic. Beardslee's execution, now scheduled for Wednesday, will be by lethal
injection.
It's taken
state prosecutors nearly 24 years to arrive at this moment, and Beardslee's
case alone has probably cost taxpayers more than $1 million. Yet his winding
path to the death chamber is hardly unusual, and his case demonstrates the
caprice, unfairness and waste woven through California's death penalty. In
concept, many Californians seem to approve of capital punishment; as voters,
they regularly declare additional crimes subject to the death penalty.
California law now lists more than 30 "death-eligible" special
circumstances, more than any other state.
The broad
latitude of prosecutors to ask for death and the willingness of juries to
comply has put 640 men and women on death row, the largest condemned population
in the nation. Texas, which executes its condemned prisoners more swiftly, is
second with 455 inmates.
Beardslee
was subject to the death penalty because he committed multiple murders. So was
Leonard E. Brown. In 1981, the Compton man, then 23, was convicted of two
murders committed during a four-day PCP-fueled spree that also included rape,
assault and robbery. But the Los Angeles jury that heard Brown's case sentenced
him to life without parole instead of death. That same year an Orange County
judge sentenced another man, William Caywood, to life after a jury deadlocked
over the death penalty. Caywood murdered his two bosses at the gas station
where he worked, shooting them execution style.
Three men,
each convicted of two murders, yet only one is sentenced to death.
California
does more than many states to keep the innocent from being executed and to
ensure that those condemned get fair trials. The appeals and assurances may
take decades to work their costly way through the courts, which is another
matter. But in the whole complicated process, nothing addresses the inequality
of the death penalty's application. Judges in California cannot throw out a
capital sentence on the ground that defendants who committed similar crimes
were not sentenced to die.
So few
California lawyers are qualified to handle death-penalty appeals that 248
inmates still have no attorney appointed for at least one phase of this review
process. So much cost and time are involved in these complex challenges that
Beardslee's execution would be only the 11th since voters reinstated the death
penalty in 1978. But speeding up the process would necessarily mean accepting
less-qualified lawyers for the appeals and increasing the risk of executing
defendants who are innocent or were unfairly convicted.
Beardslee
confessed to his crimes, and prosecutors painted him as a calculating,
remorseless killer. Those were among the factors that led the jury to recommend
death. But Beardslee's appellate lawyers argue that extensive brain damage he
suffered in accidents as a child and young man put him under the sway of a
domineering accomplice who directed the murders.
The original
trial jury heard about those accidents but not about the lasting damage they
might have caused or the effect on his personality and behavior. The
brain-imaging technology now available didn't then exist. His lawyers'
contentions on that damage form the basis of a clemency petition now before
Gov. Arnold Schwarzenegger.
The governor
should grant that petition and at least commute Beardslee's sentence to life
without the possibility of parole. But Beardslee's case also demonstrates the
impossible position California is now in: By erecting a death penalty scheme
that sentences so many to death and executes so few, the state lies to itself
and the people about what it's doing.
* * * * *
The
following article appeared on latimes.com on January 20, 2005:
On
Their Own on Death Row in Georgia
A prisoners'
advocacy group says it can't supply lawyers for seven appeals. The state says
it's a ploy for funding.
By Ellen
Barry
ATLANTA —
Seven inmates on Georgia's death row may be forced to represent themselves at
hearings because the state is not required to provide appellate lawyers and a
prisoners' advocacy group says it cannot help.
Georgia is
the only state that does not provide prisoners with lawyers after their initial
appeals.
The state
funds a resource center to help inmates in the second phase of their appeals.
But its executive director, Tom Dunn, said his four-person staff was too
overloaded to take the seven cases.
One of the
inmates, Gregory Lawler, has a hearing scheduled in a month.
"He's
frightened," Dunn said. "They're all frightened. They want a
lawyer."
Many states
provide little funding for representation during phase two, the state habeas
corpus petition, in which an inmate can raise legal issues from his or her
trial such as prosecutorial misconduct or suppression of exculpatory material.
But Georgia
stands out when it comes to not providing legal representation, one expert
said.
"Georgia
is the only state that has just shrugged its shoulders and said if a condemned
person doesn't have a lawyer, it doesn't matter," said Stephen B. Bright,
director of the Southern Center for Human Rights. "Other states have made
a pretense of supplying a lawyer, even if it is an inadequate lawyer."
Since 1996,
Georgia has executed 16 people and set aside the death penalty in 17 appeals,
Dunn said. There are 113 people on Georgia's death row.
Dunn's
nonprofit organization, the Georgia Appellate Practice and Educational Resource
Center, receives $800,000 a year to represent death row inmates.
The center's
funding has not increased since 2000, but its caseload has jumped 40%, said
Emmet Bondurant, chairman of its board of directors. Meanwhile, the center has
lost three lawyers whose salaries were paid by an outside source — reducing the
staff to four — and recruiting pro bono lawyers has become more difficult.
Russ
Willard, a spokesman for Georgia Atty. Gen. Thurbert E. Baker, said the
center's warnings were part of a strategy to increase funding.
The group's
budget to defend death row inmates, Willard said, is more than the attorney
general's budget to uphold the death penalty. State prosecutors must handle
twice as many cases, Willard said.
"The
arguments put forth by the Georgia Resource Center are hard to take at face
value," he said.
A series of
court decisions set the stage for this standoff.
In 1989, the
U.S. Supreme Court ruled that states are not constitutionally obliged to fund
appellate representation for the poor. In that Virginia case, Justice Anthony
M. Kennedy wrote that a state law provided counsel for death row inmates, and
that no inmate had ever gone unrepresented in appeal.
In 1996, a
Georgia case highlighted the issue: Exzavious Gibson was the first death row
inmate in modern history to be forced to represent himself in a state habeas
corpus proceeding — an event the Atlanta Journal-Constitution described as a
"mockery of justice."
Gibson,
whose highest IQ rating was 81, was convicted of stabbing a grocer to death
when Gibson was 17. He arrived at the hearing without so much as a pen to take
notes, an article in the Toledo Law Review reported.
Sitting
alone opposite a lawyer for the state, Gibson answered with confusion when the
judge asked him to present objections, witnesses or evidence in his defense.
When the judge asked if he had any objection to a piece of evidence submitted
by the state, he said: "Your honor, I don't waive any rights, but I don't
have counsel, so I don't know what to say about anything you have asked me or
anything you will ask me."
When the
case moved up to the third phase of the appeal, the federal habeas corpus
petition, U.S. District Judge Dudley H. Bowen Jr. sent it back for a second
state hearing. "There is not a lawyer … who, in the exercise of
intellectual honesty, could say that this [case] is one which has no troubled background,"
Bowen said.
Gibson's
case remains at the level of the state habeas corpus petition. As part of his
appeal, the Georgia Supreme Court was asked in 1999 to rule on whether death
row inmates had the right to taxpayer-funded counsel. The justices ruled 4 to 3
that the state should not be forced to provide funds.
As a result,
that funding decision falls to the state legislature. Michael Mears, an Atlanta
defense lawyer, said the yearly appropriations process was "a
cat-and-mouse to see who blinks first."
For the last
two years, state legislators have voted to cut off funding for the resource
center altogether, and the money has been restored at the last minute.
Habeas
corpus is an area of law so technical that most lawyers are not able to grasp
it, Bright said.
"I
think everyone in the system — including the state — has an interest in people
being represented in these cases," he said. "The idea that someone
can represent themselves in a habeas case is like suggesting you go to the
airport and fly the plane yourself to Los Angeles."
* * * * *
The
following article appeared on washingtonpost.com on January 16, 2005:
Why
Japan Still Has the Death Penalty
By Charles
Lane
There is a
place in the advanced industrial world where people are regularly sentenced to
death, and executed, for their crimes. Some of the condemned deny their guilt
-- and there are confirmed cases of mistakes in sentencing. But government
officials say the system delivers retribution and deterrence fairly and
efficiently.
This place
is not Texas. It is Japan -- the only industrial democracy other than our own
that still regularly executes convicted murderers. In 2004, the Japanese
conducted two executions by hanging, the sole method employed there. In some
years, the rate is double or triple that. This is nowhere near the rate in the
United States, where 59 convicted murderers were put to death in 2004. But
there are many more murders in the United States than in Japan, and our
population is 295 million people compared to Japan's 127 million. When you
adjust for those facts, Japan has recently been about as likely as Texas and
Virginia to sentence killers to death.
Covering the
Supreme Court, which has the final say in every capital case, I have gotten
used to seeing the United States as a loner on this issue. The European Union,
Canada, South Africa and a growing portion of Latin America have abolished the
death penalty. The United States regularly absorbs condemnation from human
rights organizations because it hasn't. But the United States is joined in
continuing the practice by an officially pacifist country that many Americans
think of as the cradle of Pikachu and Hello Kitty. How come? My best guess,
based on reporting I did there this past summer: Basically, Japan's leaders are
giving their people what they want.
To be sure,
democracy in Japan is not usually thought of as highly responsive. Since World
War II, Japan's government has been dominated by a single party, the Liberal
Democratic Party (LDP), which is closely allied with unelected bureaucrats who
make policy behind the scenes. The government forbids the release of basic
information about the death penalty, so public opinion is poorly informed.
Executions are conducted in secret; as former justice minister Hideo Usui told
me, they are scheduled during parliamentary recesses, so as to deprive
opposition politicians of any opportunity "to cause a big public row over
the death penalty."
Still, not
even capital punishment's opponents in Japan question the basic validity of a
survey conducted by the government in 1999, which found that 79.3 percent of
the public backs the death penalty. In 34 polls taken between 1953 and 1999,
abolition of capital punishment has never garnered a majority. Letters
published in the Japanese press reflect the surprisingly intense feelings
behind the polls. "I believe execution is the best punishment for felons,
especially murderers," a citizen named Hajime Ishi wrote to the Yomiuri
Shimbun in July 2003. "Controversial as my opinion may be, I would like to
see all murderers -- regardless of their age, gender and nationality -- put to
death." In a 2003
trial, a
Tokyo prosecutor made his case for a death sentence by handing the judge a
petition signed by 76,000 people.
Japanese
frequently invoke culture to account for these sentiments. One theory, of which
I heard several variants, is that the Japanese, group-oriented and with
ancestral roots in village life, have a long tradition of isolating and
eliminating evildoers. Authoritarian tenets of Confucianism, a Chinese import,
may have reinforced this. Several people told me that Japanese Buddhism, too,
provides support for capital punishment. "A basic teaching is
retribution," says Tomoko Sasaki, a former member of the Diet (Japan's
parliament), an ex-prosecutor and a leading advocate of the death penalty in
the LDP. "If
someone evil
does something bad, he has to atone with his own life. If you take a life, you
have to give your own."
But cultural
norms, though powerful, are not immutable; capital punishment has ebbed and
flowed in Japan, both historically and in modern times. Buddhism, famously a
nonjudgmental, nonviolent doctrine, can easily be interpreted as incompatible
with the death penalty. And a ban on capital punishment prevailed in Japan during
the Heian Era (794 A.D. to 1185 A.D.), which coincided with Buddhism's
introduction to the country from China. One of the country's most prominent
anti-capital punishment activists since the war, the late Tairyu Furukawa, was
a Buddhist priest. During the early '90s, Megumu Sato, a former Buddhist priest
serving as minister of justice, refused to sign execution orders for the year
he was in office, citing his religious beliefs.
Sato was one
of four ministers who served during a 40-month de facto moratorium on
executions that began in November 1989 and ended in March 1993. The moratorium
followed a period of increasing concern about capital punishment, both inside
and outside the Japanese government. The key events were the exonerations
during the 1980s of four death-row prisoners, all of whom had been sentenced to
hang in the chaotic period just after World War II and then spent years
pursuing appeals.
The
exonerations were deeply embarrassing to the powerful Ministry of Justice,
which handles all criminal prosecutions in Japan. Ministry officials sincerely
believe that such miscarriages of justice are all but impossible under the
Japanese system, because prosecutors rarely bring charges unless the defendant
confesses and only seek the death penalty in selected cases involving multiple
victims, or where murder is combined with rape or robbery. But the exonerations
forced the country to acknowledge that several men had been sentenced to death
based on confessions squeezed out of them in prolonged custody, that the police
had mishandled key evidence -- and that such practices have not disappeared.
Amid the soul-searching, the anti-death penalty movement, traditionally
marginal, gained strength and coalesced into an umbrella organization known as
Forum 90, the first of its kind in modern Japan.
Yet, just as
death-row exonerations based on DNA evidence have dented but not overturned the
basic consensus in favor of the death penalty in the United States, the
pro-death penalty consensus in Japan proved resilient. In time, concerns about
crime and violence came to trump concerns about the rights of defendants. After
an internal review of the exonerations, which concluded mainly that authorities
needed to do a better job of ensuring truthful confessions, the Ministry of
Justice resumed executions in March 1993.
Then, on
March 20, 1995, a cult known as Aum Shinrikyo released nerve gas in the Tokyo
subway, killing 12 people and injuring thousands. Citizens demanded that the
perpetrators pay with their lives, and the authorities responded.
"Politicians listen to voters' views," Yuji Ogawara, a lawyer who
represents capital defendants, told me. "In that sense, it has become more
difficult to talk about abolishing the death penalty since Aum. It was a
watershed event." Of the 50 death sentences issued between 1999 and 2002,
nine went to Aum conspirators. The cult's founder, Shoko Asahara, was sentenced
to death last year.
Something
else happened in the mid-1990s: street crime rose. Japan is still much safer
than America. But what Japanese notice is that it is less safe than it used to
be. According to the government, reported crimes registered a postwar high for
six consecutive years between 1996 and 2002 before leveling off in 2003. Causes
include Japan's steep and socially disruptive economic downturn in the '90s, as
well as post-Cold War freedom of movement among Japan, Russia and China, which
brought some foreign gang activity to Japan's shores. While the number of
murders hasn't risen rapidly, several brutal and highly publicized killings --
including a massacre of eight schoolchildren in 2001 -- fed the public's
growing sense of insecurity.
Whereas 1990
saw the founding of Forum 90, 1999 marked the founding of the National
Association of Crime Victims and Surviving Families, an influential pro-death
penalty lobby. Its founder, Isao Okamura, is a lawyer and former vice chairman
of the Japan Federation of Bar Associations, which advocates a moratorium on
executions and greater legal protections for death row inmates. But after
Okamura's wife was brutally stabbed to death in 1997, his views hardened.
The courts,
which had led the way in re-examining capital punishment two decades earlier,
now were following the public mood. On Dec. 10, 1999, Japan's Supreme Court
overturned the life sentence imposed on a man convicted of robbery and murder
in Hiroshima prefecture. It was the first time since 1983 that the Supreme
Court had recommended that a life sentence be replaced with death. This
decision had a "great influence" on trial judges, says Satoru
Shinomiya, a law professor at Waseda University in Tokyo. It has been followed
by several other rulings in which appeals courts have granted prosecution
requests to overturn life sentences in favor of the death penalty. (Such requests
are not allowed in the United States.)
Judges
sentenced one person to death in 1992 (there are no jury trials in Japan); they
sentenced 18 people to death in 2002. There are currently 60 people on death
row whose sentences have been finalized (as of Sept. 15, 2004), an increase of
10 from 1999 and more than double the level, 24, of 1986. Meanwhile, a bill
calling for a three-year moratorium on executions and a top-to-bottom review of
the capital punishment system was shelved last year by its sponsors in the
Diet, because of its poor prospects for success.
To expect
Japan to abolish the death penalty through normal democratic processes is to
expect it to do something that Europe itself did not exactly accomplish.
Germany and Italy got rid of the death penalty immediately after World War II,
when the drafters of their new constitutions banned it. (Japan's 1946
constitution, promulgated under U.S. occupying authorities who were also
hanging Japanese war criminals, bans "cruel" punishments; in 1948,
the Japanese Supreme Court ruled that the death penalty was not cruel.) In
France, then-president Francois Mitterrand abolished the death penalty by
decree in 1981; most French citizens supported it, but Mitterrand imposed his
will thanks to the power of the French presidency, which has no equivalent in
consensus-oriented Japan. Even now, large percentages in most European nations
favor the death penalty,
according to
polls. More countries continue to abolish it to meet a condition of inclusion
in the European Union. Poland, for example, abolished the death penalty in
1997, despite surveys showing that more than 60 percent of Poles wanted to keep
it.
But
opponents of the death penalty in Japan, international and domestic, have no
such leverage. Europe is not about to slap economic sanctions on the world's
second-largest economy. The strongest punishment threatened so far is
revocation of Japan's observer status on the Council of Europe, a human rights
organization made up of representatives from 44 governments -- and the council
has hesitated to impose even that. For Japanese officials, resistance to
foreign critics of the death penalty may be a relatively cost-free way to savor
a little old-fashioned national sovereignty. "We believe that the decision
whether to keep or abolish the death penalty should be the decision of each
individual
country, and
should be based on the public sentiment of each country, and the crime
situation in each country," says Hideo Takasaki, a senior official of the
Ministry of Justice's criminal affairs bureau.
Unless
something leads Tokyo to change that attitude, the United States won't be
totally isolated. At least on this one issue, in these two countries, East
meets West.
* * * * *
The
following article appeared on latimes.com on January 19, 2005:
Sentences
That Fit the Criminal
Some members
of Congress are putting a hard eye on last week's Supreme Court ruling that
loosened federal sentencing rules. Though fuzzily expressed, the decision
should help restore fairness to the criminal justice system. Congress had
destroyed that fairness in order to look tough, and it will do the same thing
all over again if it tries to "fix" the court ruling.
The
sentencing rules, which set a range of prison terms for each federal crime,
were enacted by Congress 20 years ago to ensure that defendants received
uniform terms for similar crimes, whether in Texas or Massachusetts. But the
rules became a political tool for grandstanding lawmakers. Sentences were
increased and judicial discretion steadily limited. This tilted the judicial
scales toward the prosecution and unbalanced the relationship between the crime
committed and the sentence served.
The Supreme
Court did not exactly strike down the rules, but it made them advisory rather
than mandatory. That means judges must still consult the guidelines but will be
free to consider individual circumstances in setting terms longer or shorter
than the prescribed range. Sentences that federal prosecutors feel are too
lenient can be reviewed for "reasonableness" by appeals courts.
The
flexibility the high court granted is appropriate. The mandated sentencing —
which calculates terms based on the offense, the defendant's history and the
specifics of the crime — reduced judges to little more than clerks tallying
sentences from a spreadsheet. Congress demanded mandatory minimums for so many
crimes that judges from across the political spectrum considered the federal
sentencing system irrational, unfair and unduly harsh. Several judges quit
their lifetime jobs in recent years rather than impose prison terms they
believed a defendant didn't deserve.
Judges who
have commented publicly on last week's ruling say they aren't about to go soft
on criminals. But they were pleased to have back some discretion and judgment,
those qualities that presumably appealed to the presidents who appointed them.
Predictably,
the ruling has angered congressional conservatives, who mutter about reimposing
the harsh rules. Last session, some House members pushed bills to bar federal
courts from ruling on the Pledge of Allegiance and gay marriage, even passing
one, but such actions raise serious concerns about separation of powers.
The
constitutional implications are just one reason that Congress ought to avoid
any effort to undo last week's decision. To its credit, the court settled on a
reasonable compromise that respects the principle of separation of powers. The
legislative branch owes the court's solution a chance to work.
* * * * *
The
following article appeared on gurardian.co.uk on January 13, 2005:
Sex
offenders face lie detector tests
by David
Batty and agencies
The government today pushed ahead with
plans to introduce compulsory lie detector tests for convicted sex offenders
released from prison.
Under the management of offenders and sentencing bill, published
today, sex offenders could be forced to undergo polygraph tests to check they
are fulfilling the conditions of their release.
The reliability of polygraph tests has
proved controversial in Britain, but the results of a small voluntary pilot
scheme in the north-east last year has shown their use was welcomed by
probation staff involved in supervising sex offenders.
The bill puts onto a statutory footing
the National Offender Management Service (Noms), which brings together the
Prison Service and the Probation Service. More controversially, it will also
allow private companies and the voluntary sector to supervise offenders on
community sentences instead of the Probation Service.
The home secretary will also get new
powers to direct local probation boards to commission certain services from
private and voluntary sector providers.
The assistant general secretary of the
probation union Napo, Harry Fletcher, said: "The purpose of the National
Offender Management Service, which is established in today's bill, is to
dismantle the Probation Service and introduce privatisation in order to drive
down costs.
"This will be done through reducing
the terms and conditions of staff," he said.
"This is unlikely to reduce
re-offending and, indeed, could actually lead to an increase in crime, because
quantity not quality will become the main principle."
The bill also proposes a new system of
imposing court fines - called day fines - based on an offender's ability to
pay.
* * * * *
The
following article appeared on chicagotribune.com on January 13, 2005:
High
court voids mandatory sentencing in federal courts
Congress
likely to re-establish guidelines
By Jan Crawford
Greenburg, Washington Bureau. Tribune staff reporter Matt
O'Connor
contributed to this report
WASHINGTON
-- The Supreme Court on Wednesday dramatically changed how criminal defendants
are sentenced in federal court, a decision that calls into question
thousands of
sentences across the country and throws open how the federal government
investigates, charges and negotiates with accused criminals.
In a 5-4
opinion by Justice Stephen Breyer, the court said the federal sentencing
guidelines, which have provided judges with set formulas to calculate sentences
for almost 18 years, were not mandatory. Judges, the court said, were not
always required to follow them.
Criminal
defense lawyers and legal observers predicted confusion and inconsistency in
sentences, as lower courts try to make sense of the Supreme Court's
pronouncements.
The
decision, which struck down as unconstitutional a provision in the guidelines
that had made them mandatory, appears to give judges significantly more
discretion in how they sentence defendants--an outcome the guidelines
specifically were designed to curtail.
It also is
likely to immediately bring Congress back into the sentencing arena to take
that discretion away. In his opinion, Breyer acknowledged that "ours, of
course, is not the last word: The ball now lies in Congress' court."
Gregory Poe,
a Washington attorney and former federal defender, said, "Congress is
likely to make changes. And there is great concern that Congress may have an
appetite to create a system applying strict penalties regardless of the merits
in individual cases."
Although the
court's decision does not appear to reach back and affect cases that have been
already decided, it nonetheless could give "hundreds of thousands of
defendants" an argument to the contrary, said Douglas Berman, a professor
at the Ohio State University law school.
Others said
the ruling threatens to undo years of sentencing reform at the federal level
and stop state efforts to develop uniform guidelines. The decision, they said,
could create wildly divergent sentences for similarly situated defendants,
based simply on which courtroom their case ends up in.
Frank
Bowman, a professor at the Indiana University School of Law and a leading
expert on the guidelines, said, "There is one thing that appears to be
clear: The court has, by either judicial fiat or an act of statutory
interpretation, created a system of advisory guidelines which, I think you can
at least argue, give federal trial judges the greatest sentencing power they've
ever had."
But the
decision was not necessarily a big win for criminal defendants. In making the
guidelines advisory, those with pending cases run the risk of getting a stiffer
sentence from an unforgiving judge if they elect to challenge their sentence, said
Washington lawyer Chuck Klein, who is representing a client affected by
Wednesday's decision.
Under the
court's decision, a sentence imposed by a trial judge would be subject to a
review by an appellate court to determine whether it is reasonable--although
the decision does not explain what reasonableness means.
"Commentators
may say it will open the floodgates, but a lot of defendants are going to have
to carefully consider whether it's worth rolling the dice, because the judge is
constrained only by a reasonableness standard of review, and it's unclear what
that means," Klein said.
Justice
Department reaction
Assistant
Atty. Gen. Christopher Wray said the Justice Department was
"disappointed" that the court had made the guidelines advisory, but
emphasized that the opinion makes clear that trial judges still are required to
consult the guidelines in making sentencing decisions. Defense attorneys or
prosecutors also could appeal the sentence on grounds that it is unreasonable,
Wray said.
Chicago's
U.S. District Chief Judge Charles Kocoras said it was too early to predict the
ramifications of the decision.
"We
need to look at it carefully," he said. "An early guess is there may
be an increase in appeals."
Some experts
speculated that Breyer, who helped developed the sentencing guidelines before
he became a justice, saw his approach as the best way to save them. They said
Breyer could be suggesting that a criminal sentence that doesn't closely track
the guidelines' provisions would be considered unreasonable. Those issues must
be worked out in the lower courts, and the Supreme Court could have another
say.
In reaching
its decision, the court took a sharp turn away from a course it set five years
ago, when it began suggesting the opposite: that judges had too big of a role
in sentencing and were wrongly deciding facts the Constitution said should be
up to a jury.
Led by
Justice Antonin Scalia, an unusual coalition of liberal and conservative
justices had joined forces to say that juries--not judges--should decide key
facts in a case, if those facts would enhance a defendant's sentence. That
group--Scalia, John Paul Stevens, David Souter, Clarence Thomas and Ruth Bader
Ginsburg--joined to strike down a sentencing system in Washington state last
June, in a decision called Blakely vs. Washington.
That
decision caused chaos in lower federal courts. Dissenting justices in Blakely
had warned that the reasoning in the decision would undermine the federal
sentencing guidelines, and lawyers immediately began challenging sentences
based on those assumptions.
Some lower
courts took the Blakely decision to undermine the federal guidelines,
as well,
since they require judges to decide facts--such as the amount of drugs in
question--when calculating sentences. Others took a different view.
The Supreme
Court agreed last summer to decide the issue on an expedited basis,
and after
arguments on the first day of the court's term in October, most expected the
five to again come together and say juries must decide those critical facts if
they would enhance a sentence.
When Stevens
began announcing his opinion from the bench Wednesday, it appeared
the five had
carried the day. Joined by Scalia, Souter, Thomas and Ginsburg, Stevens said
the court decided the Constitution's 6th Amendment, which guarantees a right to
a jury trial, prohibited judges from deciding those facts that would enhance a
defendant's sentence under the federal guidelines.
But when the
court turned to the next question--what to do about that constitutional
problem--Stevens and Scalia lost control. To remedy the constitutional problem,
Stevens wanted the federal courts to try an approach similar to that in the
states, where prosecutors are simply presenting more facts to the juries, so
they are making the decisions on enhancing sentences.
Stevens
stressed that only a tiny fraction of cases would even be affected, since
defendants plead guilty in 90 to 95 percent of all cases. Under his approach,
Stevens saw no constitutional problem keeping them mandatory.
But the
dissenting justices--Chief Justice William Rehnquist and Justices Sandra Day
O'Connor, Anthony Kennedy and Breyer--had other ideas and persuaded Ginsburg to
switch sides and join them.
Led by
Breyer, the dissenters and Ginsburg decided on an approach that would give
judges more discretion, not less. They ruled that in light of the 6th
Amendment, the Constitution prohibited the guidelines from being mandatory
rules.
Possible
effect on charges
That
decision could have sweeping consequences beyond sentencing criminal
defendants. Lawyers said it could also come into play in decisions that
prosecutors make on charging defendants, as well as in negotiations with them.
For example,
one of the few ways criminal defendants could get a break in their sentences
under the guidelines was to provide substantial cooperation to prosecutors.
Because the guidelines were rigid, defendants had a powerful incentive to
cooperate in order to get a reduction in their sentences.
But with
judges now able to consider other factors outside the guidelines, defendants
may have less incentive to provide assistance, some lawyers said.
* * * * *
The
following article appeared on thestar.com on January 17, 2005:
U.S.
terror war ‘over-reaction,’ top judge says
Gives
criminals special status Osgoode hall hosts rights forum
The American-led war on terrorism is a threat to international
justice and a challenge to the rule of law in the 21st century, says one of the
world's most eminent jurists.
"Sept. 11 led to a
major overreaction by politicians in many countries," said Richard
Goldstone, the first chief prosecutor at the war crimes tribunals for former
Yugoslavia and Rwanda.
"In dictatorships their
actions don't matter, because we don't expect any respect for human rights. But
in a democracy we are handing victory to terrorists if we change our way of
life and abandon human rights."
Goldstone will be one of 30
leading international law experts speaking at Osgoode Hall Law School's Raoul
Wallenberg Day International Human Rights Symposium, held today and tomorrow.
The symposium will be opened by Justice Minister Irwin Cotler, who has
investigated the fate of Wallenberg, a Swedish diplomat who saved more than
100,000 Hungarian Jews from the Nazi death camps during World War II.
Wallenberg disappeared when the Soviet army entered Hungary.
Other speakers include Yale
Law School's Dean Harold Koh; South African Constitutional Court Justice Albie
Sachs, a former political prisoner; former Ontario premier Bob Rae; Canada's
U.N. Ambassador Allan Rock and York University chancellor Peter Cory, former
Supreme Court justice.
Goldstone, who chaired an
International Bar Association task force on terrorism, is a member of South
Africa's Constitutional Court. He will speak on the legacy of the Nuremberg
trials that brought Nazi war criminals to justice after World War II.
"International criminal
justice didn't exist before World War II, but now it's a huge industry,"
he said. "The use of national and international courts, and the creation
of the International Criminal Court are tremendous forward steps. Canada should
get much credit for leading the movement to create the court."
But, said Goldstone, since September, 2001, the
international justice system and the rule of law have been weakened by the
actions of governments joining a "war on terror." The U.S. in
particular has declared suspects "unlawful combatants" and detained
them without trial, as well as deporting them to Guantanamo Bay, Cuba, and
Middle Eastern countries where torture is routinely used.
"Terrorism must be
fought for what it is, that is, criminality. To use the analogy of a real war
is to elevate the status of the terrorists, and hand them the advantage,"
says Goldstone.
In a time of crisis, he
added, "the role of the judiciary is always weakened, and that is exactly
when you need it. Politicians feel that they must do something, and that
becomes the basis for unnecessary restrictions. In time of peace, human rights
aren't threatened in the same way."
However, he said "we
must be realistic about terrorism, and not naïve. Enforcement officials need to
be given tools that might have been unthinkable not too long ago. Because of
modern technology, when criminals make use of the Internet, electronic banking
and access to travel, law enforcement must be able to deal with them."
The key to maintaining
legality, Goldstone said, is "oversight, preferably judicial. The main
thing is that people who are using tools like wiretapping know somebody is
watching. If not, you can be absolutely certain there will be abuse."
The most obvious examples,
he said, are Iraq's Abu Ghraib prison, where prisoners have been subjected to
humiliation and abuse by U.S. forces, and Guantanamo Bay, where complaints of
human rights violations surfaced in spite of attempts to close it to outside scrutiny.
The war on Iraq - fought
without U.N. authorization - has also damaged the United Nations system as well
as the rule of law, Goldstone said.
"I don't think anyone
wants to go back to pre-World War II days when the powerful did exactly as they
wished. It's not in the interest of the democracies, including the United
States."
The best way of protecting
the rule of law, he said, was strengthening the U.N. Security Council, which
has the power to authorize the use of force.
"The council must be
enlarged to reflect the world community in 2005. It's very important to add
voices. But a mechanism should also be found for avoiding a situation where one
veto can stop a resolution that is supported by the other nations."
* * * * *
The
following article appeared on latimes.com on January 20, 2005:
Answer
to Scandal: Barcodes in Cadavers
By Charles
Ornstein and Rebecca Trounson
SAN
FRANCISCO — University of California medical schools would be required to
implant barcodes or radio-frequency identifiers in cadavers, university
officials said Wednesday as they announced a plan aimed at ending repeated
scandals involving bodies donated to science.
With reforms
in place, officials said, they plan to ask a judge in March to reopen the body
donor program at UCLA medical school, a year after it was temporarily closed.
The suspension came after authorities uncovered the allegedly illegal sale of
hundreds of cadavers at the school.
Under the
reform plan presented to the UC regents at their meeting here, the university
would centralize the management of the willed body programs at its five medical
schools and significantly strengthen security and recordkeeping.
In addition
to electronic identifiers implanted on the bones of cadavers or wired into
them, campuses would also be required to install video cameras at loading docks
to monitor after-hours activities involving cadavers.
"You
and I know that you can never be sure that you can prevent all criminal
activity," Dr. Michael Drake, UC's vice president of health affairs, said
in an interview. "But what we want to do is make it extremely difficult
for the problems that have happened in the past to happen in the future. And we
believe we have done that."
But Mike
Arias, an attorney representing people who have sued UCLA over how it
handled
cadavers, said he was skeptical about promises of reform.
"I do
believe the amount of public attention that this program has been under is
really going to force them to do something that is more in line with what the
public expects," Arias said.
On the other
hand, he added: "History tells us that you believe what somebody is going
to do based on their past actions. And if you've been bitten a couple times,
you have to stay away from that dog."
UCLA's
willed body program, the oldest in the country, received about 175 donated
bodies every year and had a waiting list of more than 11,000 people who had
agreed to donate their bodies for use by researchers and medical students.
The bodies —
worth thousands of dollars to biomedical firms — were stored in a large freezer
on the seventh floor of UCLA Medical Center.
When the
program was suspended last spring, it was the third scandal in a decade at UC
medical schools involving the misuse of bodies or body parts.
In 1993,
hazardous medical waste was discovered inside boxes of cremated human remains
from UCLA. The operator of a funeral-at-sea business said the debris included
broken parts of syringes, glass vials, clumps of used gauze and a rubber glove.