Author Archive | Paul Cassell

Bill Stuntz’s landmark book, The Collapse of American Criminal Justice, has just been released by Harvard University Press.  It is well worth a read for those who are interested in the big picture issues surrounding the American criminal justice system.

Stuntz has been accurately described by Orin as the leading criminal procedure scholar of his generation in this post commemorating Stuntz’s life.  (Stuntz passed away earlier this year).  In today’s Wall Street Journal, I have this review of the book. As you will see in the review, I believe Stuntz properly identified excessive proceduralism as one of the serious problems in our criminal justice system.  While I would have liked to have seen him argue a bit more forcefully for trimming back some of that proceduralism, the book is a tremendous accomplishment — essentially a “must read” for those concerned about the future of American criminal justice. [...]

Along with Professor Edna Erez, I have just published this article on victim impact statements.  It is discusses the concept of “ancillary harm” as a legitimate basis for courts using victim impact statements to determine criminal sentence.  Here is an abstract:

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

In this response, we bring an American perspective to bear on these issues, finding much in the American crime victims’ literature and court decisions to support the Robert-Manikis thesis. For example, at the recent sentencing of Bernie Madoff, the sentencing judge referenced ancillary harm as an important factor. A number of cases have reached similar conclusions. While not using the phrase “ancillary harm” to justify their actions, the court decisions make clear that foreseeable harm to others is an important consideration at sentencing. The American cases also support a crime victim having a right to deliver a victim impact statement not only in writing, but also orally at the sentencing hearing itself. Crime victims, however, should not be cross-examined when delivering their statement. Instead, the court should insure the reliability of information contained in a victim impact statement in other ways, as a number of decisions recognize.

The section on the Bernie Madoff sentencing may be of interest to some readers.  It pulls together some interesting examples of the victim impact statements bringing to a judge’s attention the far reaching consequences of a crime that might not otherwise [...]

Along with my former colleague Erik Luna, I’ve just published an article on mandatory mimimum sentences.  The article, which can be downloaded from SSRN here, tries to find common ground on the issue of revising mandatory minimum sentences in the federal criminal justice system.  Here’s the abstract:

One of us (Cassell) is a former federal judge nominated by President George W. Bush, now a “conservative” scholar whose work is often supportive of law enforcement, the death penalty, and the rights of crime victims. The other (Luna) is a “libertarian” who tends to be suspicious of government and adamant about abuses of power, including those by police and prosecutors, and his scholarship has expressed the need for wholesale criminal justice reform (especially in the federal system). If we could find common ground on ways to modify federal mandatory minimums, we hoped that policymakers might share this agreement, perhaps sowing the seeds of further reforms. Whether or not modest congressional action spurs greater feats, however, our proposal is far from death defying. It is instead a fairly unpretentious yet principled modification.

Part I of this Article begins by briefly describing the background of mandatory minimum sentencing, including arguments for and against mandatory minimums and an analysis of their enactment in the federal system. Part II considers the resilience of mandatory minimums from a behavioral science perspective and then sketches a potential process of reform in light of the relevant phenomena. Part III discusses the concept of minimalism in philosophy and legal theory, proposing the idea of “political minimalism” as a justification for reform efforts that seeks consensus on basic principles accompanied by small legislative steps. Part IV provides specific changes to federal law consistent with a minimalist approach to statutory modification. Finally, Part V offers some suggestions for further reforms, with

I just ran across this interesting post from John Lott, who discusses whether the election of Senator Al Franken was due to votes from felons ineligible to vote.  Here’s a snippet of the argument:

Senator Al Franken likely owes his Senate victory to felons. With a razor thin victory over Senator Norm Coleman in 2008 of just 312 votes, felons convicted of crimes such as murder, rape, robbery, and aggravated assaults may have given Democrats the filibuster proof sixtieth vote that allowed Obamacare to be passed.  Americans have good reason to ask how this could happen. Consider this:

–A conservative watchdog group Minnesota Majority has gone through voting records reportedly finding that at least 341 convicted felons voted illegally in just two of Minnesota’s 87 counties during the 2008 general election.  Undoubtedly other felons voted illegally in other counties.

— After culling through 500 initial allegations of felons illegally voting, the Ramsey County Attorney’s Office told The Minneapolis Star Tribune Monday that they are seriously investigating about 180 cases.  Another 28 felons have already been charged. Hennepin county, which includes Minneapolis, winnowed 451 initial cases down to 216 that they are still looking at.  Some other felons have already been charged.  Both the Ramsey and Hennepin county attorneys are Democrats.

Whether one believes that those two counties account for 341 or possibly well over 400 felons illegally voting, the 2008 Senate vote was so close and research finds that felons vote so overwhelmingly for Democrats that the odds are quite likely that felons from those two counties gave Al Franken the election.  

Over at Sentencing Law and Policy last week, Professor Doug Berman had this interesting post on the recent conviction of a hacker who hacked into Sarah Palin’s Yahoo mail account.

 One of the intriguing questions that he raises is whether Sarah Palin would be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced.  The answer to that question, I believe, is clearly “yes.”  

The indictment in the case, found here, alleges (in count 3, one of the counts of conviction) that the defendant  “in furtherance of the commission of a criminal and tortious act in violation of the laws of the United States and the State of Tennessee, including aiding and abetting other violations of 18 U.S.C. § 1030(a)(2)(C) . . . ; and tortious invasion of privacy, intentionally and without authorization, and in excess of authorization, accessed a protected computer by means of an interstate communication and thereby obtained information . . . .” 

The CVRA requires that a person be “directly and proximately” harmed by an offense to be protected by the statute.  Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status. 

Sarah Palin has condemned the crime  — and applauded the recent verdict — on her Facebook page.  It is probable that the Probation Officer preparing the pre-sentence report will contact her.  Perhaps she will want to pass along comments directly to the judge as well.  If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right. [...]

In the runup to the elections in Britain, Labor Prime Minister Gordon Brown has just made what is being described as “major gaffe” by a host of observers.  He called a woman (a Labor supporter) who raised immigration concerns with him directly a “bigoted woman.”  The remark was caught on a microphone that Brown forgot he was wearing.  Coverage can be found on this link or on the youtube video inserted here. 

[youtube]http://www.youtube.com/watch?v=yEReCN9gO14[/youtube] [...]