In the proud tradition of the Twinkie Defense and the Chewbacca Defense, we now have the Zombie Defense: A young transient who said he was trying to shake zombies off a stolen semi-trailer truck he was driving caused a major freeway incident in southern California that sent four people to the hospital and tied up […]
Archive | Criminal Law
Knives and the Second Amendment
By David Kopel on March 25, 2013 12:43 pm in Constitutional Law, Criminal Law, Defense of Property, Non-Firearms Arms, Self-Defense
That’s the title of my forthcoming article in the University of Michigan Journal of Law Reform. My co-authors are Clayton Cramer and Joe Olson. The abstract: This Article is the first scholarly analysis of knives and the Second Amendment. Knives are clearly among the “arms” which are protected by the Second Amendment. Under the Supreme […]
Defining “High Seas Felonies” in Another Country
By Eugene Kontorovich on March 18, 2013 9:00 am in Constitutional Law, Criminal Law, Foreign and Religious Law in American Courts, Global Governance/World Government, International Law, National Security, Uncategorized, War on Drugs
A district court recently ruled that Congress’s power to “Define and Punish… Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013). The Maritime Drug Law Enforcement Act (MDLEA) […]
Catholic Cardinal Says Pedophiles Who Had Been Molested as Children Shouldn’t be Criminally Prosecuted for Their Adult Pedophilia
BBC News reports: The Catholic Archbishop of Durban, Wilfrid Fox Napier, has described paedophilia as a psychological “illness, not a criminal condition”. The South African cardinal told the BBC that people who were themselves abused as children and then abused others needed to be examined by doctors…. Cardinal Napier referred to paedophilia as “a psychological […]
Sex, Drugs, Alcohol, Gambling, and Guns: The Synergistic Constitutional Effects
By David Kopel on March 16, 2013 4:21 pm in Asset Forfeiture, Constitutional History, Constitutional Law, Criminal Law, Federalism, Guns, Supreme Court, Symposia, Tenth Amendment, War on Drugs
That’s the title of a new article by Trevor Burrus (Cato) and me, forthcoming in a symposium issue on drug policy, from the Albany Government Law Review. The symposium title is “Overdose: The Failure of the US Drug War and Attempts at Legalization.” Here is an excerpt from the introduction: In this Article we discuss the synergistic […]
Ninth Circuit Panel Overturns Murder Conviction
And a pretty conservative panel — Chief Judge Alex Kozinski, Judge Carlos Bea, and Judge Jerome Farris (a Carter appointee who nonetheless, to my knowledge, has a fairly conservative reputation on criminal justice cases). An excerpt, from Milke v. Ryan (9th Cir. Mar. 14, 2013): In 1990, a jury convicted Debra Milke of murdering her […]
General Verdicts That Might Be Based on Either an Unconstitutional Theory or a Constitutional One
As I note in the post below, the Indiana Attorney General’s office agrees (see its brief) that the State v. Brewington Indiana Court of Appeals decision was unsound. But the AG’s office argues that Brewington’s conviction should still be affirmed. This illustrates a broader issue that I thought was worth briefly discussing, though note that […]
What the Definition of Piracy Means for UNCLOS & ATS
By Eugene Kontorovich on February 28, 2013 1:05 pm in Alien Tort Statute, Criminal Law, International Law, Terrorism, War and Armed Conflict
Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have […]
Ohio Court Strikes Down Ban on “Lur[ing]” Under-14-Year-Olds to Accompany Person Without Parent’s Permission
From State v. [John D.] Goode (Ohio Ct. App. Feb. 20, 2013): Mr. Goode was convicted of violating R.C. 2905.05(A), which provides, No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure any child under fourteen years of age to accompany the person in any manner, including […]
The War on Drugs, Overcriminalization, and the Rise of Militarized Police Raids
Deroy Murdock has an interesting National Review column describing the rise of abusive, military-style police raids: Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT. FBI agents and U.S. marshals […]
Perils of Prosecutorial Discretion in a World Where Everyone is a Criminal
University of Tennessee lawprof Glenn Reynolds (AkA “Instapundit”) has an interesting short paper on the dangers of prosecutorial discretion in a world where the scope of criminal law has gotten so vast that almost anyone can be convicted of a crime if the prosecutor goes after them aggressively enough: Attorney General (and later Supreme Court […]
Foreign Commerce Authority for Universal Jurisdiction over Terrorists
By Eugene Kontorovich on January 9, 2013 8:00 am in Alien Tort Statute, Constitutional Law, Counter-Terrorism Policy, Criminal Law, International Law, National Security, Necessary and Proper, Terrorism, Uncategorized, War and Armed Conflict, War on Terror
The government is prosecuting three foreigners for the participating in “combat operations” in a foreign civil war. The indictment apparently alleges no connection to America, or even foreign commerce (unlike a similar 2011 case that lacked an apparent connection to the U.S.) The defendants are Somalis who fought in Somalia. In a previous post, I […]
Is Having Sex with Someone, Pretending to Be Her Boyfriend, Rape?
People v. Morales (Cal. Ct. App. Jan. 2, 2013) says no, following the general view of American courts (see, e.g., Suliveres v. Commonwealth (Mass. 2007)). The one exception that courts have historically recognized is having sex with a person while pretending to be the person’s spouse, which is indeed treated as rape. The facts: [D]efendant […]
The Offenses Clause & Universal Jurisdiction Over Terrorists
By Eugene Kontorovich on January 2, 2013 2:53 pm in Alien Tort Statute, Constitutional Law, Criminal Law, Global Governance/World Government, International Law, National Security, Terrorism, Uncategorized, War and Armed Conflict
A few days before Christmas, the U.S. indicted three men at the Federal District courthouse in Brooklyn for plotting suicide bomb attacks. This is an extraordinary, almost unique case: none of the people or conduct has any connection to the U.S. The defendants are foreign nationals, captured by some African government ont their way to […]
Judge Posner on Very Long Prison Sentences
A very interesting concurring opinion yesterday, in United States v. Craig (7th Cir. Dec. 18, 2012); here’s a slightly trimmed version: [From the panel opinion, which Judge Posner joined.] The defendant pleaded guilty to four counts of producing child pornography. He produced them by photographing his repeated sexual assaults on a girl who was a […]