Author Archive | Paul Cassell

Review of Bill Stuntz’s Book — The Collapse of American Criminal Justice.

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. [...]

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Victim Impact Statements and “Ancillary Harm” from a Crime

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 [...]

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Federalist Society Teleforum on Miranda Warnings and Terror Suspects:

Here’s some promotional information about a debate I will be participating in today, hosted by the Federalist Society:

TODAY!  Miranda Warnings and Terror Suspects

A Teleforum sponsored by the International & National Security Law Practice Group

Featuring The Hon. Paul G. Cassell
Ronald N. Boyce Presidential Professor of Criminal Law
S.J. Quinney College of Law at the University of Utah

Professor Amos N. Guiora – S.J. Quinney College of Law at the University of Utah

Dean A. Reuter – Vice President & Practice Groups Director
The Federalist Society (MODERATOR)

Thursday, March 31, 2011 at 3:00 p.m. (EDT) – 1-888-752-3232 – No registration is necessary.

To participate on this practice group Teleforum, please dial in to 1-888-752-3232
today, March 31, at 3:00 p.m. (EDT) via telephone.

Professors Paul G. Cassell and Amos N. Guiora of the S.J. Quinney College of Law at the University of Utah recently debated the extent to which law enforcement personnel are required to read the standard Miranda warning to terror suspects, and whether the reading of such a warning compromises the government’s ability to investigate acts of terror, both prospectively and retrospectively, or whether a public safety exception for terror suspects effectively erodes a vital protection for all criminal suspects.  Now they will reprise their debate and be available to answer your questions.  Please join us this Thursday for their live presentations.

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Text of the FBI Memo on Miranda and Questioning of Terror Suspects:

Following up on my post from yesterday about the FBI’s new policy of using the “public safety” exception to Miranda to question terrorism suspects  — The NY Times has the text of the FBI’s memo, found here.

The larger interesting question is why should the new policy be limited to suspected terrorists.  Presumably FBI agents question many other suspects who pose a threat to the American people.  It seems to me that the FBI should use the recognized public safety exception in all circumstances where it is applicable, not just the relatively exotic situations where terrorism is involved. [...]

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Justice Department Guidelines Cut Back on Miranda Rights For Terror Suspects:

The Justice Department has just announced new guidelines, apparently expanding the “public safety” exception to Miranda to allow extended questioning of terror suspects.  The WSJ has the story here. Such extended questioning will require approval of Justice Department lawyers.

How does Eric Holder reconcile these new guidelines with the position that he supported in Dickerson in 2000 (that the Miranda warnings were constitutionally required)?  Bill Otis has an interesting analysis of the contradiction here.

Previous VC posts on the subject of Miranda and public safety can be found here. Questioning terror suspects seems to me to be  the classic example of the need for a public safety exemption.  It does seem desirable to have Congress add its backing to the exemption by passing a statute confirming its agreement with the Justice Department guidelines. [...]

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Significant Child Pornography Restitution Ruling in the Fifth Circuit

Today the Fifth Circuit gave victims of child pornography who are seeking restitution a significant victory. The Fifth Circuit agreed with my arguments that the relevant restitution statute does not contain a proximate cause requirement for most categories of losses for which restitution can be awarded.  As a result, a victim of child pornography need only show that she was harmed to receive, for example, restitution for lost income or psychiatric counseling expenses — not that she suffered proximate harm from a defendant’s crime.  Under the Fifth Circuit’s analysis, a victim of a widely distributed child pornography will not have to trace out loss to each and every individual defendant who views images of her being abused.
If followed by other courts, the Fifth Circuit’s decision will likely significantly expand the restitution that child pornography victims will receive.  A copy of the decision can be found here.
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Federalist Society Debate about Miranda and Questioning Suspected Terrorists

 Professor Guiora (a colleague of mine at Utah) and I recently debate the appropriateness of Miranda warnings in the context of terrorism investigations.  Here’s a link to the Federalist Society’s podcast of the debate, which revolves around whether or not the “public safety” exception to Miranda  should apply in the context of questioning suspected terrorists.  I argue that, under current doctrine, the exception easily applies; Professor Guiora argues that using the exception would put us on a slippery slope, sliding toward the destruction of civil liberties. [...]

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D.C. Circuit Argument on Victim’s Right to Restitution in Child Pornography Cases

On Monday, I’ll be in the D.C. Circuit arguing an interesting case concerning a crime victim’s right to restitution in child pornography cases. 

I represent “Amy”, who is the victim depicted in the “Misty” child pornography series — apparently the most widely disseminated series on the web.  She has filed restitution requests of approximately $3,000,000 in cases throughout the country, mostly seeking to recover lost income and psychiatric counseling losses.  District courts have reached differing conclusions about whether Amy is entitled to restitution for that amount and, if so, whether individual defendants are liable for the entire amount or some smaller share.

Several weeks ago, Judge Kessler awarded Amy only $5,000 in restitution.  Under the Crime Victims Rights Act (CVRA), New York attorney James Marsh and I filed a CVRA petition in the D.C. Circuit, asking for full recovery for Amy.  The petition is here, along with responses from the defendant and the Government.

Amy’s petition implicates a procedural issue on which the circuits are split: whether crime victims filing a CVRA petition are entitled to ordinary appellate review or merely deferential mandamus review for clear and indisputable errors.  I’ve written a  law review article taking the position that victims should receive the same sorts of appellate protections that other litigants receive, so I’m looking forward to making my case to the D.C. Circuit on that one.   The issue is how to interpret 18 U.S.C.  3771, which requires a court of appeals to “take up and decide” a mandamus petition filed by victims.   In my view, this language makes clear that Congress intended to replace discretionary mandamus standards with ordinary appellate standards — a view taken by the 2d, 3rd, 9th, and 11th circuits. 

On the substantive restitution issue, the question that has divided district courts is how [...]

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Time to Codify a Miranda Exception for Terrorists?

Today at 12:15 at the University of Utah College of Law I will be debating my colleague Amos Guiora about whether Miranda rights should be extended to terrorists.  I have previously blogged here and here about my view that Miranda’s “public safety” exception means that law enforcement officers investigating terrorist incidents need not give Miranda warnings.  I thought I’d briely lay out my argument a bit more fully now in anticipation of the debate.

The case of Umar Farouk Abdulmautallab (the so-called “Christmas Day Bomber”) usefully frames the issue.  According to public reports, Abdulmutallab spoke openly to FBI agents in his initial 50-minute interrogation — questioning that took place before he was Mirandized.  He then received treatment for his burns. And five hours after his initial interrogation a second team of interrogators was brought in to question him. These interrogators were part of a “clean team,” brought in to interrogate him after he was read his Miranda rights. The “clean team” began by reading Abdulmutallab his rights. And Abdulmutallab, advised of his right to remain silent, chose to exercise it.

The policy question here is why would anyone want to give Abdulmautallab Miranda warnings?  As Stewart Taylor forcefully wrote here:  

But no reasonable person could doubt that starting out with “you have the right to remain silent” is not the way to save lives.  Yet this is essentially the policy into which the Obama administration has locked itself by insisting that it did the right thing when it read Umar Farouk Abdulmutallab, the would-be Christmas Day bomber, his Miranda rights after only 50 minutes of questioning and a hospital visit.

The only reason that I can see for giving Miranda warning in such a situation is that the is a constitutional requirement to do so.  But Miranda has been [...]

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Time to Revise Mandatory Minimum Sentences?

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

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Was Senator Franken’s Election Due to Illegal Votes from Felons?

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.  

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A Crime Victim’s Right to Appellate Review?

  The Denver University Law Review has just published my latest article, entitled “Protecting Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provisions.”   The article deals with the question of appellate review of denials of assertions of crime victims’ rights by federal district courts.  

  There is a clear “circuit split” among the various circuits as to whether crime victims are entitled to ordinary appellate review in the appellate courts or merely “clear and indisputable error” review that applies in the setting of mandamus petitions.  I argue the crime victims should receive the same sort review as other litigants.  For further information on the argument, the abstract can be found below.


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Is Sarah Palin a “Victim” of Computer Hacking

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. [...]

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Major Gaffe in Britain

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. 

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