Eliminating Counties' Roles in Death Penalty: At Sentencing Law and Policy, Doug Berman posts a link to a SSRN article, Statewide Capital Punishment: The Case for Eliminating Counties' Role in the Death Penalty, by Professor Adam Gershowitz. In his article, Gershowitz argues that the power of local county prosecutors to decide when to seek the death penalty "has proven to be arbitrary and inefficient." He argues that the discrepancy between large counties with large budgets and trained prosecutors, and small counties with limited budgets and resources, has led to "geographic arbitrariness" in implementing the death penalty. Gershowitz advocates that all
aspects of capital cases (charging, trial, appeal) be handled at the state level by an elite
group of prosecutors, defense lawyers, and judges whose sole
responsibility is to deal with capital cases. He believes this will minimize the geographic arbitrariness of the death penalty and cut costs. Berman likes Gershowitz proposal, but believes that the local nature of capital cases will prevent counties from relinquishing control of the death penalty. This is an accurate statement. Counties, and those dealing with the lasting effects of a murder, are often the best ones to determine who should receive the ultimate punishment.
Ohio Supreme Court on Apprendi's Prior Conviction Exception: Doug Berman posts on today's unanimous Ohio ruling that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender's prior convictions that is part of the judicial record. In Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009), Hunter was charged with felonious assault for attacking a church employee when he was asked to leave the building. In its indictment, the state included an Repeat Violent Offender (RVO) specification based on Hunter's earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge. He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification. Ohio held its ruling was consistent with Shepard v. United States, because Shepard allows a trial court to consider "these documents, which are 'judicial record evidence' created in connection with his prior conviction."
Summer Issue of The Green Bag Released (With 2008 Supreme Court Revue): At Volokh Conspiracy, John Elwood posts a link to his latest publication, What Were They Thinking, The Supreme Court in Revue, October 2008. The article appears in Summer 2009 issue of The Green Bag, and discusses what Elwood believes are "top eight areas of legal development in the Term's decisions." These include "underperformers" like Northwest Austin Municipal Utility District No. 1 v. Holder, "procedural niceties" such as Aschroft v. Iqbal, as well as criminal law cases, the Fourth Amendment case Safford Unified School District v. Redding, due process issues, the APA, the "big preemption opinion" of Wyeth v. Levine, and the First Amendment case Pleasant Grove City, Utah v. Summum. Ed Whalen posts excerpts from Elwood's "informative yet irreverent" piece over at NRO's Bench Memos.
Crime, Culpability and Moral Luck: CrimProf Blog provides the abstract and a link to Alec D. Walen's SSRN piece commenting on Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse). Walen's article discusses his belief that Alexander, Ferzan, and Morse's argument is fundamentally morally misguided. He argues that by focusing on "outcome luck" the authors fail to hold actors liable for the harms they cause when they have taken less care they should. Walen argues that "outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b)."
Supreme Court Preview of McDaniel v. Brown: CrimProf's graduate fellow, Peter Stockburger previews another one of our Supreme Court cases, McDaniel v. Brown, over at CrimProf Blog. Stockburger's preview states the question presented, and then provides paraphrases of the briefs of the parties in order to provide an overview of the cases and the advocates' arguments. At issue in this case is whether analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia permits a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial. Our brief in Brown is available here. Kent's most recent post on Brown can be found here.
Ohio Supreme Court on Apprendi's Prior Conviction Exception: Doug Berman posts on today's unanimous Ohio ruling that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender's prior convictions that is part of the judicial record. In Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009), Hunter was charged with felonious assault for attacking a church employee when he was asked to leave the building. In its indictment, the state included an Repeat Violent Offender (RVO) specification based on Hunter's earlier conviction for striking and injuring a corrections officer while he was incarcerated at the Cuyahoga County jail. Hunter moved for separate proceedings on the assault count and RVO specification, and waived a jury trial on the RVO charge. He was convicted by a jury on the assault count. In a separate hearing before the judge, he was also found guilty on the RVO specification. Hunter was sentenced to eight years in prison for the assault, and two years were added to that term based on the RVO specification. Ohio held its ruling was consistent with Shepard v. United States, because Shepard allows a trial court to consider "these documents, which are 'judicial record evidence' created in connection with his prior conviction."
Summer Issue of The Green Bag Released (With 2008 Supreme Court Revue): At Volokh Conspiracy, John Elwood posts a link to his latest publication, What Were They Thinking, The Supreme Court in Revue, October 2008. The article appears in Summer 2009 issue of The Green Bag, and discusses what Elwood believes are "top eight areas of legal development in the Term's decisions." These include "underperformers" like Northwest Austin Municipal Utility District No. 1 v. Holder, "procedural niceties" such as Aschroft v. Iqbal, as well as criminal law cases, the Fourth Amendment case Safford Unified School District v. Redding, due process issues, the APA, the "big preemption opinion" of Wyeth v. Levine, and the First Amendment case Pleasant Grove City, Utah v. Summum. Ed Whalen posts excerpts from Elwood's "informative yet irreverent" piece over at NRO's Bench Memos.
Crime, Culpability and Moral Luck: CrimProf Blog provides the abstract and a link to Alec D. Walen's SSRN piece commenting on Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse). Walen's article discusses his belief that Alexander, Ferzan, and Morse's argument is fundamentally morally misguided. He argues that by focusing on "outcome luck" the authors fail to hold actors liable for the harms they cause when they have taken less care they should. Walen argues that "outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b)."
Supreme Court Preview of McDaniel v. Brown: CrimProf's graduate fellow, Peter Stockburger previews another one of our Supreme Court cases, McDaniel v. Brown, over at CrimProf Blog. Stockburger's preview states the question presented, and then provides paraphrases of the briefs of the parties in order to provide an overview of the cases and the advocates' arguments. At issue in this case is whether analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia permits a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial. Our brief in Brown is available here. Kent's most recent post on Brown can be found here.
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