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Recent Blog Posts
Objects of Punishment in Federal Court
The U.S. Congress, in its (ahem) wisdom, has specified the purposes of punishment in federal criminal cases:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;(B) to afford adequate deterrence to criminal conduct;(C) to protect the public from further crimes of the defendant; and(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
18 U.S.C. §3553(a)(2). (Notice that "making the victims whole" is not a purpose of punishment.)
In a federal criminal case, the sentence should be "sufficient, but not greater than necessary" to satisfy those purposes. Id. §3553(a) 1.
I alluded to the five purposes of sentencing here. (In New York, criminal-defense lawyer Scott Greenfield tells us, there are only four. Punishment greater than necessary to provide rehabilitation, specific deterrence, general deterrence, and incapacitation can only be justified by retribution, so nobody ever goes to prison in New York for any longer than is necessary to rehabilitate him, to make sure he doesn't recidivate, and to deter others. Isn't that nice?) How do section 3553's four objects of sentencing translate to the five purposes of sentencing? I'll start at the bottom and work my way up.
The Problem of Volition 1
Here I mentioned Jeffrey Rosen's The Brain on the Stand. Quoted in Rosen's article (and elsewhere) was Stephen J. Morse, professor of law and psychiatry (but not, as he is sometimes described, a psychiatrist) at the University of Pennsylvania. Morse is the go-to pundit for the proposition that, neuroscience be damned, people are still "responsible" for their actions. I will read what Morse has written and said on the subject (here, for example, and in articles cited here) and report back. Meanwhile, however, I will note:
(A) That of all the accepted purposes of punishment, only retribution would be adversely affected by a belief that we do not have some discrete volition independent of nature and nurture. Even if free will is an illusion, specific and general deterrence, rehabilitation, and incapacitation are appropriate goals of punishment. Retribution, some would say, is unworthy of us whether free will is real or illusory. Eighty years ago Clarence Darrow said, "The human mind is blind to all who seek to look in at it and to most of us that look out from it." He argued that this was good reason to cling to "charity and understanding and mercy" instead of trying to ignorantly pursue justice. Neuroscience has rendered the human mind a little more visible, but nothing neuroscience has taught us should lead us to believe that we know enough about the workings of the mind to mete out justice;
Neuroscience and Neurolaw
Scott Greenfield in his post, Mental Impairment as a Mitigating Factor, writes, "To the simple-minded, there is no spectrum of disability. It's all or nothing." I've written before about traumatic brain injury and criminal defense. Scott's post discussed bipolar disorder and low intelligence as mitigating factors. At some point, a mitigating factor must become so extreme that it negates moral responsibility.
The law is simpleminded. In the words of Dickens's Mr. Bumble, "the law is a ass - a idiot." In Texas and Federal Court, as well as most other jurisdictions, the only mental disability that relieves a person of responsibility for his actions is the inability to tell right from wrong. A person who can tell right from wrong, but can't conform his conduct to what he knows is right, is held responsible for his actions just as though he could conform.
Robert Sapolsky, a neurobiologist at Stanford, was quoted by Jeffrey Rosen in his March 11, 2007 New York Times Magazine article, The Brain on the Stand:
Practical Blawgosphere Rollcall
I wrote here about the Practical Blawgosphere - the group of blogs producing original content useful to the practice of law. I am starting a list of blawgs in the Practical Blawgosphere. Here are the rough criteria:
1. Blog;
2. Recently updated;
3. Focused on knowledge or ideas
3a. clearly useable in the practice of law; or
3b. potentially useable in the practice of law, along with a discussion of how they might be useable.
A blog discussing how to pick juries would qualify under 3a, as would a blog talking about how to deal with difficult clients or how to keep one's sanity as a public defender or how to get business as a private defender. A lawyer's blog venting about the frustrations of the work might qualify if it could easily be mined for useable knowledge or ideas.
A blog discussing some other technology - neuroscience, for example, or improvisational theatre - would qualify under 3a only if it related the technology to the practice of law. Blogviation about current events would not qualify.
Mapping the Blogosphere
The discussion of the stagnation of the blawgosphere and the vitality of the Practical Blawgosphere, as well as this post from attorney Anne Reed's Deliberations blog - specifically, Juror Number 3, Len Aslanian's comment on the importance of geographical proximity to the success of a community - has me thinking about the (metaphorical) geography of the (metaphorical) community of the blawgosphere.
New York criminal defense attorney Scott Greenfield's Simple Justice is Defending People's nearest conceptual neighbor. Deliberations lives on the same street. Public defender Gideon's A Public Defender, Dallas criminal-defense lawyer Robert Guest's I Was the State, and Bryan, Texas criminal defense attorney Stephen Gustitis's Defense Perspective are in the same neighborhood. Defender-turned-prosectur Ken Lammers's CrimLaw and Maryland criminal defense and First Amendment lawyer Jon Katz's Underdog live in the same town as Defending People.
An Odd Sort of Victory
Last week I helped a client plead guilty to life in prison plus 20 years. He'll be eligible for parole, if all goes well, in 34 years. Realistically, though, he'll probably never get out.
The motivation for his plea was, of course, that he might receive a death sentence if he didn't make a deal. He had confessed to the stabbing murder of his next-door neighbor in the course of burglarizing her house; the facts were such that I didn't see much of a culpability defense, and a jury in that venue would likely have killed him.
A part of me says that he should have kept on fighting, that there is always a chance of winning, and that twelve years or so in prison followed by a needle in the arm is no worse than life behind bars. Then I think about all of the people on Death Row who wish they had been given the chance to save their own lives. Having taken a non-death sentence, he can decide to end his own life if it ever becomes too burdensome.
Anyway, I didn't write about this earlier because I didn't know how I felt about it. I'm still not entirely sure.
The Power of Fear
(I promised, on reading New York criminal defense attorney Scott Greenfield's Independence Day post, 231 Years and Still Trying, to write about the nature of freedom, the power of fear, and the abandonment of American ideals. This is the third post in the series; it covers the second topic. I discussed the nature of freedom and the abandonment of American ideals.)
Walking the halls of the Harris County Criminal Courthouse, I smell fear. The accused are often afraid, as you might expect, as are their loved ones, but theirs is not the fear I smell.
The fear I smell oozes out from under doors leading to the judges' chambers, locked to keep the outside world away, and from the robes of the judges, concealing the firearms they carry (literally) to protect themselves against some imagined danger. It wafts from the prosecutors, likewise armed and armored with fear.
More on Bennett's Chainsaw
I wrote a couple of weeks ago about Bennett's Chainsaw, which is the principle that:
The more things you must contest and the more explanations you must provide in order to mount a defense, the more likely it is that you will be convicted.
Here is the first corollary to Bennett's Chainsaw:
In the defense of a criminal case, the second-simplest explanation that accounts for all of the government's admissible evidence is generally the best.
Why the second-simplest explanation?
Drop me a comment if you think you know.
Technorati Tags: criminal defense, strategy
Welcome to the Practical Blawgosphere
There seems to be a bit of a kerfuffle about whether the blawgosphere is "stagnant." Here's David Hoffman's (Concurring Opinions) post asking the question, and contrasting law blogs with progressive political blogs. Citing Stephen Bowers of Open Left, he characterizes the "short tail" (the highly trafficked sites) of the progressive political blogosphere as:
marked by: (1) a norm of group blogging and a resulting wealth of new content even on weekends; (2) blogs produced by institutions; (3) professional bloggers; and (4) Self-Reinforcing communities
Scott Greenfield commented on the new wave of blawgs bringing vitality back to the blawgosphere. I think he's right - but Scott and David are talking about entirely different places on the web. Just as law professors and criminal-defense lawyers inhabit different places in the real world, Scott's Blawgosphere is not David's.
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