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 [...]