Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.4.655
Antje du Bois-Pedain
The prevalent criminal justice practices in the U.S. have produced levels and patterns of incarceration that fewer and fewer politicians, scholars, and citizens care to support. There seems to be widespread consensus that the system is indicted as unjust by its outcomes no matter how these outcomes came about. But if that is so, how can it be turned back? Who should be eligible for release, and on what grounds? This article addresses the position of black prisoners serving very long sentences. Many of these prisoners are at risk of missing out under current legislative and administrative proposals designed to reduce overall levels of imprisonment. Partly this is due to the fact that the wrong of mass incarceration is often understood as a wrong suffered at the collective level by what has come to be referred to as “overpunished communities.” It is unclear how the existence of that collective wrong affects the permissibility of continued punishment at the individual level. This article develops an argument that, at the individual level, being a black prisoner serving a very long sentence gives rise to a moral entitlement for a review of the need and justification for continued incarceration. The article outlines the basic shape of a clemency scheme devised especially for these prisoners as a moral imperative for a reform process intended to remedy penal injustice.
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Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.4.601
M. Zalman, R. Norris
What is the rate of wrongful conviction? This question may be implicit in Blackstone’s ratio: “It is better that ten guilty persons escape than that one innocent suffer.” Scholarship designed to provide an empirical answer, however, emerged only with the rise of the “innocence movement” in the United States. This article does not provide another study estimating the rate of wrongful felony conviction either for a specified sample, such as death sentences within a specified time period, or for an entire jurisdiction. Instead, we evaluate the rate question itself and assess its importance to innocence scholarship and action. We first trace the question’s intellectual lineage, and its historical and ideological roots among innocence believers and innocence skeptics. We then describe and evaluate all or most of the published studies attempting to estimate the wrongful conviction rate. Next, we discuss a reoccurring limitation of this published work, namely, its failure to account for or its unsubstantiated assumptions about guilty pleas and misdemeanor convictions among innocent defendants. Finally, we question the continued importance of the rate question in light of the modern innocence movement and its growing accomplishments.
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Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.4.518
Isa C. Qasim
In 2018, the Supreme Court issued a little noticed decision, Currier v. Virginia, that signaled a potential revolution in the Double Jeopardy Clause doctrine. This essay uses that decision to reconsider the Clause’s disparate protections, seeking coherence in this long-confused area of law. In doing so, it finds that the central protections of the Clause are best understood through a single, novel framework: the jury-preservation theory of double jeopardy. This essay explicates the theory, explaining its roots in the Revolutionary Era jury, its applications to modern double jeopardy law, and its implications for Currier and future double jeopardy cases.
2018年，最高法院发布了一项鲜为人知的判决，即Currier v. Virginia，这标志着双重危险条款原则的潜在革命。本文利用这一判决来重新考虑该条款的不同保护，在这个长期混乱的法律领域寻求一致性。在此过程中，它发现该条款的核心保护可以通过一个单一的、新颖的框架得到最好的理解:双重审判的陪审团保全理论。本文阐述了这一理论，解释了它在革命时代陪审团的根源，它在现代双重危险法中的应用，以及它对柯里尔和未来双重危险案件的影响。
{"title":"Navigating the Trunks and Spars","authors":"Isa C. Qasim","doi":"10.1525/nclr.2021.24.4.518","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.4.518","url":null,"abstract":"In 2018, the Supreme Court issued a little noticed decision, Currier v. Virginia, that signaled a potential revolution in the Double Jeopardy Clause doctrine. This essay uses that decision to reconsider the Clause’s disparate protections, seeking coherence in this long-confused area of law. In doing so, it finds that the central protections of the Clause are best understood through a single, novel framework: the jury-preservation theory of double jeopardy. This essay explicates the theory, explaining its roots in the Revolutionary Era jury, its applications to modern double jeopardy law, and its implications for Currier and future double jeopardy cases.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"38 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91333576","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.4.498
S. Henderson, Dean A. Strang
A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy “dual sovereignty” that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.
一位年轻的辩护律师在联邦法庭上为被控抢劫银行的当事人赢得了陪审团的无罪释放。(这是律师的第一次。)人们会期望公正的法官感谢陪审团的服务。相反，这篇文章对陪审团和辩护律师都进行了长篇大谈(“导致他的脸色从红到紫再到死白”)，公开谴责判决，试图禁止陪审员今后继续任职，拒绝释放被告，并成功地促使检察官提起重复的州起诉，最终以同一罪名定罪。对于任何尊重法治的人，或者至少是尊重美国陪审团的人来说，这应该是令人深感不安的。然而，当1953年12月在芝加哥联邦法庭开庭时，州检察官立即响应了联邦法官的要求。当州重复起诉的上诉到达美国最高法院时，被告以5比4败诉。刑事从业者知道巴特库斯诉伊利诺伊州案(Bartkus v. Illinois, 359 U.S. 121(1959))的结果，这是法院在2019年重申的双重审判“双重主权”规则。但几乎没有人知道它是如何在芝加哥联邦法庭上开始的。这段历史在这位杰出的辩护律师未发表的笔记中栩栩如生。这个故事凸显了法律规则是多么顽固，也生动地展现了司法权力的滥用。
{"title":"Behind Bartkus","authors":"S. Henderson, Dean A. Strang","doi":"10.1525/nclr.2021.24.4.498","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.4.498","url":null,"abstract":"A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy “dual sovereignty” that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"68 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87196893","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.3.326
Lee B. Kovarsky
The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.
{"title":"Prosecutor Mercy","authors":"Lee B. Kovarsky","doi":"10.1525/nclr.2021.24.3.326","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.3.326","url":null,"abstract":"The tailwinds might be behind criminal justice reform, but American mercy power remains locked in a sputtering clemency model. Centralized leadership should be braver or the centralized institutions should be streamlined, the arguments go—but what if the more basic mercy problem is centralization itself? In this essay, I explore that question. In so doing, I defend the normative premise that post-conviction mercy is justified, and I address the questions of institutional design and political economy that follow. I ultimately encourage jurisdictions to layer decentralized mercy powers on top of their clemency mechanisms, and for the newer authority to be vested in local prosecutors. I present less a single proposal than a collection of principles for mercy decentralization. Governors and presidents simply cannot deliver the punishment remissions appropriate for an American prison population bloated by a half-century love affair with over-criminalization, mandatory minimums, and recidivism enhancements.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"35 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82033808","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1525/NCLR.2021.24.1.90
Kenny Yang
Singapore is well known for its harsh stance against drug traffickers, with drug trafficking carrying some of the most severe penalties available in law. This includes the mandatory death penalty where the weight of the drug exceeds a statutory threshold. The act of trafficking is also broadly defined in the Misuse of Drugs Act 1973 and can encompass a wide range of activities. In a series of authoritative decisions since 1994, this has also included the act of safekeeping drugs for another. However, the Singapore Court of Appeal revisited this definition in the recent decision of Ramesh a/l Perumal v Public Prosecutor [2019] 1 SLR 1003, finding that the act of safekeeping drugs does not fall under the definition of “trafficking.” As this paper argues, this new definition is an attempt by the Court of Appeal to better delineate the varying roles and culpability of those involved in the drug trade, but will have future implications for drug prosecutions and enforcement.
新加坡以其对毒品贩子的严厉立场而闻名，毒品走私会受到一些最严厉的法律处罚。这包括在毒品的重量超过法定阈值时判处强制性死刑。贩运行为在《1973年滥用药物法》中也有广泛的定义，可以包括范围广泛的活动。在1994年以来的一系列权威决定中，这也包括为他人保管药品的行为。然而，新加坡上诉法院在最近的Ramesh a/l Perumal v Public Prosecutor [2019] 1 SLR 1003的决定中重新审视了这一定义，认为保管药品的行为不属于“贩运”的定义。正如本文所论证的那样，这个新的定义是上诉法院试图更好地界定参与毒品交易的人的不同角色和罪责，但将对毒品起诉和执法产生未来的影响。
{"title":"Is Safekeeping Drug Trafficking? The Singapore Court of Appeal’s Attempt to Delineate Role and Culpability in Drug Trafficking Offenses","authors":"Kenny Yang","doi":"10.1525/NCLR.2021.24.1.90","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.1.90","url":null,"abstract":"Singapore is well known for its harsh stance against drug traffickers, with drug trafficking carrying some of the most severe penalties available in law. This includes the mandatory death penalty where the weight of the drug exceeds a statutory threshold. The act of trafficking is also broadly defined in the Misuse of Drugs Act 1973 and can encompass a wide range of activities. In a series of authoritative decisions since 1994, this has also included the act of safekeeping drugs for another.\u0000 However, the Singapore Court of Appeal revisited this definition in the recent decision of Ramesh a/l Perumal v Public Prosecutor [2019] 1 SLR 1003, finding that the act of safekeeping drugs does not fall under the definition of “trafficking.” As this paper argues, this new definition is an attempt by the Court of Appeal to better delineate the varying roles and culpability of those involved in the drug trade, but will have future implications for drug prosecutions and enforcement.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"60 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84962624","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1525/nclr.2021.24.4.568
Shai Farber, Nethanel Benichou
In June 2018, a new Reform came into effect in the Judea and Samaria Area (the West Bank; hereinafter “the Area”). For the first time, victims of terror activity that was adjudicated in military courts in the Area, acting under international law, were given statutory rights. These victims were awarded new procedural rights, including the right to receive information regarding the proceedings against the defendant, updates regarding plea bargains, release from prison, and pardon. The rights that crime victims are now entitled to, following the Reform, will allow them to state their opinion on and take part in the proceeding, though not entirely so. The article describes the new Reform regarding victims of terrorism in the Area. It explains the legal, international, and social factors that were at the basis of the Reform. It portrays how these changes are compliant with principles of international law and of foreign legal systems relating to enhancing the protection of crime victims. The article then explores the normative changes expected as a result of the Reform and performs a preliminary evaluation of future developments resulting from its application, de facto. Simultaneously, the article poses criticism to certain aspects of the Reform, such as regarding the enforcement of compensation awarded to victims of terrorism in the Area, and offers suggestions for improvement.
{"title":"Between Victims of Crime and Victims of Terrorism","authors":"Shai Farber, Nethanel Benichou","doi":"10.1525/nclr.2021.24.4.568","DOIUrl":"https://doi.org/10.1525/nclr.2021.24.4.568","url":null,"abstract":"In June 2018, a new Reform came into effect in the Judea and Samaria Area (the West Bank; hereinafter “the Area”). For the first time, victims of terror activity that was adjudicated in military courts in the Area, acting under international law, were given statutory rights. These victims were awarded new procedural rights, including the right to receive information regarding the proceedings against the defendant, updates regarding plea bargains, release from prison, and pardon. The rights that crime victims are now entitled to, following the Reform, will allow them to state their opinion on and take part in the proceeding, though not entirely so. The article describes the new Reform regarding victims of terrorism in the Area. It explains the legal, international, and social factors that were at the basis of the Reform. It portrays how these changes are compliant with principles of international law and of foreign legal systems relating to enhancing the protection of crime victims. The article then explores the normative changes expected as a result of the Reform and performs a preliminary evaluation of future developments resulting from its application, de facto. Simultaneously, the article poses criticism to certain aspects of the Reform, such as regarding the enforcement of compensation awarded to victims of terrorism in the Area, and offers suggestions for improvement.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"72 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89431026","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-01-01DOI: 10.1525/NCLR.2021.24.1.3
S. Butt
This article discusses flaws of Indonesia’s criminal procedural laws through an analysis of the Jessica Wongso case. After a televised trial in 2016, Wongso was convicted of murdering her friend Salihin, by putting cyanide in her coffee at a Jakarta café, and sentenced to 20 years’ imprisonment. The conviction was upheld on appeal in late 2018. The police obtained very limited evidence against Wongso, leaving prosecutors unable to determine the cause of Salihin’s death, much less to prove convincingly that Wongso was the perpetrator. By contrast, the defense mustered significant exculpatory evidence. But the judges, at first instance and on appeal, took an uncritical view of the prosecution evidence and ignored the defense case. Throughout the investigation and trial, Wongso was not accorded the presumption of innocence, partly because of Indonesia’s flawed or absent formal legal infrastructure for arrests, detentions, searches, and disclosure of prosecution evidence to the defense. It is also because highly prejudicial press coverage before and during trials is not prohibited and because judges lack professionalism. All this suggests a strong need for reform—not only to Indonesia’s criminal procedure law, but also to the way it is applied in practice.
{"title":"Indonesia’s Criminal Justice System on Trial","authors":"S. Butt","doi":"10.1525/NCLR.2021.24.1.3","DOIUrl":"https://doi.org/10.1525/NCLR.2021.24.1.3","url":null,"abstract":"This article discusses flaws of Indonesia’s criminal procedural laws through an analysis of the Jessica Wongso case. After a televised trial in 2016, Wongso was convicted of murdering her friend Salihin, by putting cyanide in her coffee at a Jakarta café, and sentenced to 20 years’ imprisonment. The conviction was upheld on appeal in late 2018. The police obtained very limited evidence against Wongso, leaving prosecutors unable to determine the cause of Salihin’s death, much less to prove convincingly that Wongso was the perpetrator. By contrast, the defense mustered significant exculpatory evidence. But the judges, at first instance and on appeal, took an uncritical view of the prosecution evidence and ignored the defense case. Throughout the investigation and trial, Wongso was not accorded the presumption of innocence, partly because of Indonesia’s flawed or absent formal legal infrastructure for arrests, detentions, searches, and disclosure of prosecution evidence to the defense. It is also because highly prejudicial press coverage before and during trials is not prohibited and because judges lack professionalism. All this suggests a strong need for reform—not only to Indonesia’s criminal procedure law, but also to the way it is applied in practice.","PeriodicalId":44796,"journal":{"name":"New Criminal Law Review","volume":"29 1","pages":"3-58"},"PeriodicalIF":0.4,"publicationDate":"2021-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89338146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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