Motive’s Role in Criminal Punishment – Article by Carissa Byrne Hessick

From Volume 80, Number 1 (November 2006)

Motive plays an important role in criminal law. It is necessary to prove liability for some offenses; it is a key component of several defenses; and it has been a traditional consideration at sentencing. Motive’s role in criminal punishment has grown through the adoption of hate crime sentencing enhancements and the rise of substantive sentencing law. And motive has an important role in punishment theory, as it reinforces the centrality of shared moral judgments, which are indispensable to any system of criminal law. Yet despite motive’s increasing importance in criminal law, its treatment is inconsistent and incomplete. This Article proposes an expanded role for motive in criminal punishment, in which a defendant’s motive for committing any crime may result in a sentencing increase or decrease. The proposed sentencing system not only will result in a greater correlation between a defendant’s punishment and her individual blameworthiness, but also will increase sentencing uniformity, because it clarifies the aggravating and mitigating nature of various motives ex ante.



(Re)Constitutionalizing Confrontation: Reexamining Unavailability and the Value of Live Testimony – Note by Raymond LaMagna

From Volume 79, Number 6 (September 2006)

The Sixth Amendment guarantees a criminal defendant the right “to be confronted with the witnesses against him.” Despite the sweeping tone of this declaration, the Confrontation Clause has been misunderstood, maligned, and misapplied by courts for the last century. At its core, confrontation reflects society’s notions of justice and procedural fairness. Confrontation developed under Roman law as a production requirement, unconnected to cross-examination. It was designed to ensure fair criminal procedure by requiring witnesses to testify live before both the accused and the trier of fact. In response to notorious abuses in England, where defendants were convicted without witnesses testifying live at trial, confrontation was included in the Bill of Rights by the Framers. But a mere century later, courts began to misconstrue the grant, sapping it of its intended meaning.



Closing a Resentencing Loophole: A Proposal to Amend 28 U.S.C. § 2255 – Note by Julie Austin

From Volume 79, Number 4 (May 2006)

Historically, habeas corpus relief has provided a remedy in extraordinary cases for prisoners incarcerated in violation of the U.S. Constitution. Habeas relief brings to mind gross injustices – prisoners serving sentences for crimes they did not commit or prisoners who are incarcerated because they were not represented by counsel at their trials. Yet under current law, prisoners serving enhanced federal sentences may reduce their sentences without necessarily proving that any constitutional violation or error has occurred.



The Price of Silence: The Prosecution of Domestic Violence Cases in Light of Crawford v. Washington – Note by Jeanine Percival

From Volume 79, Number 1 (November 2005)

A woman calls 911 and says, “Please. I need an ambulance. My husband just attacked me and I’m eight months pregnant. He hit me in the stomach and I’m bleeding. I think I’m losing the baby.” The home is located outside a small town. When the police and ambulance arrive after some time, the wife is unconscious at the bottom of a staircase and the woman’s husband is there, claiming to have just arrived home to find his wife in this condition.

The wife has bruises all over her body and the baby is lost, but shortly after being admitted to the hospital and regaining consciousness, she flees and is nowhere to be found. There are no witnesses, and the husband insists the wife fell down the stairs. The husband has no prior domestic violence convictions, but the wife’s medical history reveals a number of other “accidental injuries.” The wife has no friends and has not spoken to her family since the couple married two years ago. Her coworkers can testify that they suspected the husband was abusive. They can also testify that the wife was not allowed to drive, spend money, or attend social events.

Prior to the Supreme Court’s March 2004 decision in Crawford v. Washington, the wife’s 911 call would likely have been admitted in court under a hearsay exception and used to secure the husband’s conviction. But following Crawford, if the wife could not be brought into court, the statement would be inadmissible. Given that there is no evidence besides the 911 call that directly implicates the husband as the cause of the wife’s injuries, prosecutors would be unlikely even to file a case against the husband, let alone convict him.



Negotiating Sex – Article by Michelle J. Anderson

From Volume 78, Number 6 (September 2005)

Adrienne had just turned thirteen. Late one autumn night, after her siblings and parents had fallen asleep, she crawled out of bed, walked downstairs to the basement, unlocked and opened the sliding glass door, and slipped outside.

It was Mike’s idea. He was a varsity basketball player from a nearby high school. Mike proposed they both sneak out and meet on the street halfway between their houses. Wanting Mike to like her, Adrienne agreed.

Mike never showed.

At that hour, the suburban streets were still. Adrienne walked three miles to Mike’s house, where she found him waiting in his front yard. He signaled for her to come into the house. “Don’t make any noise because my parents are asleep,” he said. “They’d kill me if they found us in here.” So throughout the night, Adrienne remained silent.

Mike led her downstairs into the family room. Now that she was inside his house, a deep fear set in, and Adrienne panicked. In her words, “I just completely left my body.” She does not know how her clothes came off. All she remembers is coming back to the intense pain of Mike ramming inside her. He was ripping her apart. She blacked out.



California’s Inequitable Parole System: A Proposal to Reestablish Fairness – Note by Daniel Weiss

From Volume 78, Number 6 (September 2005)

Dana Hill is currently serving fifteen years to life in a California prison, and for the past few years, she has struggled to convince the Board of Prison Terms (“Board”) and the Governor that she is suitable for parole and ready to reenter society. Dana is but one victim of modern parole, a draconian system used as a mechanism of enforcing retributive principles. Modern parole falls far short of achieving the goals of rehabilitation and reintegration for which it was created.

When Dana was a child, her stepfather was physically abusive, and for her own safety, she left her family’s home at the age of fifteen. She served a two-year stint in the Navy, beginning at age seventeen. Shortly after being discharged, she befriended her codefendant, Keith Chandler, who introduced her to cocaine. Addicted to cocaine and in need of money, Dana met a man named Marion Canter, who had “both money and a preference for young women.” Shortly after they met, Canter began to pay Dana’s expenses and to allow her to live with him, rent-free, until they had a disagreement and he abruptly evicted her. In need of money, Dana, along with Chandler and another person, devised a plan to rob Canter. During the robbery, Dana’s codefendants insisted that she hit Canter over the head to subdue him, but the one blow that Dana inflicted was insufficient to render Canter unconscious. After Dana struck Canter, her codefendants wrestled him to the bed and proceeded to strangle him with an electrical cord. Frightened by her codefendants’ actions, Dana left the room, and when she returned five to ten minutes later, her codefendants were in the final stages of strangling Canter. About two weeks later, Dana turned herself over to the police department and cooperated in the investigation. In 1984, Dana pleaded guilty to second-degree felony murder for her involvement in Canter’s death.



The Deconstruction and Reconstruction of Habeas – Article by Brian M. Hoffstadt

From Volume 78, Number 5 (July 2005)

Habeas is an anomaly in the law of federal courts. For decades now, state courts have solely and finally resolved federal issues with minimal federal superintendency. For nearly as long, however, the federal writ of habeas corpus has not adhered to this general paradigm and has been interpreted to permit federal courts to revisit anew federal issues litigated before state courts in the course of state criminal prosecutions. Indeed, the special treatment of habeas is so longstanding that it is a near-axiomatic contour in the fabric of federal courts law. This Article questions that axiom. Starting from a premise placing high value on theoretical consistency (a premise subject to legitimate criticism), I examine the functional and theoretical differences between the paradigm that typically governs adjudication of federal issues in the state courts (which I dub the “paradigmatic construct”) and the paradigm that applies to adjudication of federal issues in state criminal prosecutions and in subsequent, federal habeas corpus proceedings (the “habeas construct”). This deconstructive exercise reveals that these two constructs are animated by fundamentally different views of the interrelationship of the state and federal judiciaries. Starting from the further premise that the paradigmatic construct is the appropriate baseline (a premise also subject to debate), I then examine two very different approaches to eliminate this theoretical discord. The less aggressive approach attempts to cure the discord by providing a new theoretical basis for habeas that justifies its current contours. The more aggressive approach attempts to cure the discord by reshaping the contours of the writ to treat adjudications of federal issues in the habeas construct more like they are treated under the paradigmatic construct.



Doin’ Time in God’s House: Why Faith-Based Rehabilitation Programs Violate the Establishment Clause – Note by Douglas Roy

From Volume 78, Number 3 (March 2005)

On December 24, 2003, the Governor of Florida, Jeb Bush, attended a special Christmas Mass at a state correctional facility about forty miles north of Gainesville, Florida. More than just celebrating the Christian holiday with the prison’s almost 800 inmates, Governor Bush was attending a milestone in modern American criminal rehabilitation. He was there to dedicate the Lawtey Correctional Institution (“Lawtey”) as the nation’s first completely faith-based prison.

The conversion of Lawtey to a faith-based format is one of the most recent examples of the growing political trend to allow more open participation of religious organizations in government supported and funded social welfare programs. This trend is in line with the much talked about charitable choice provision, which allows religious groups access to federal welfare funds without having to establish a secular service provider component. The provision also allows religious groups to incorporate their religious message into social programs and to consider religion when hiring and disciplining employees.



Catastrophic Threats and the Fourth Amendment – Article by The Honorable Ronald M. Gould and Simon Stern

From Volume 77, Number 4 (May 2004)

The traditional Fourth Amendment search-and-seizure doctrine was fine for an age of flintlocks, and maybe even for an age of automatic weapons. In the past, ordinary crime, even heinous crime, almost always had a limited impact. But one must wonder whether our traditional constitutional doctrine, without more, is up to the task of governing all searches and seizures in an age of weapons of mass destruction and potential terrorism. This Article explores this question and concludes that traditional doctrine falls short in an age of threats unprecedented in their potential for harm. We propose that, because of the potential harms posed by catastrophic threats, courts should come to recognize that a fresh look at the probable-cause standard is necessary. We contend that, if properly conducted, largescale searches undertaken to prevent horrific potential harms may be constitutionally sound even when the search of each particular location does not satisfy the traditional probable-cause requirement that such search have a “fair probability” or a “substantial chance” of yielding the object sought. As we discuss at more length below, established Fourth Amendment doctrine requires “individualized suspicion” for each person or place to be searched. We argue, however, that even where that element is lacking, the government’s search for a weapon of mass destruction4 may be permissible if the Supreme Court’s “special needs” exception to the probable-cause requirement is extended. Specifically, such a search should be permissible if (1) the search is justified by special needs that go beyond routine police functions; (2) the search program is reasonably designed to be as effective as is practical with the aim of preventing or minimizing harm to the public; (3) the procedure will give law enforcement constrained discretion in executing the search, and the search is not discriminatory in application; and (4) weighing the total circumstances, the balance between the governmental and societal need to search, weighed against the infringed-upon privacy of individuals, favors search.



Extradition of Execution? Policy Constraints in the United States’ War on Terror – Note by James Finsten

From Volume 77, Number 4 (May 2004)

On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.

On March 4, 2004, a German appellate court vacated this conviction and ordered a new trial after Motassadeq’s lawyers successfully argued that the U.S. government withheld potentially exculpatory evidence during the first trial. In citing the failure of the United States to cooperate with the German courts, Judge Klaus Tolksdorf, presiding judge of the five-judge panel, stated that “‘under the German law, all available evidence must be made available . . . [and] the justice system could not bend to accommodate security concerns stemming from international efforts to fight terrorism. . . . [T]he fight against terrorism cannot be a wild, unjust war.’”

Given that the murders took place on American soil and that the vast majority of victims were American citizens, it may come as a surprise to the American public that their government did not attempt to extradite Motassadeq so that he could face trial in U.S. courts. After all, the United States has held Zacharias Moussaoui since prior to September 11 and charged him with six counts of conspiracy in the aftermath of the attacks. President George Bush himself promised “to pursue the terrorists in cities and camps and caves across the earth.” The United States was willing to pursue regime change in Afghanistan and indefinitely detain al-Qaida suspects in Cuba, and it would stand to reason that the United States would seek custody of anyone who was suspected of aiding the perpetrators of September 11.