Criminal Law & Process – Page 139 – Marquette University Law School Faculty Blog

Outlawing Amnesty: The Return of Criminal Justice in Transitional Justice Schemes

Post author:Lisa J. Laplante
Post published:June 11, 2009
Post category:Criminal Law & Process Human Rights International Law & Diplomacy

Until recently, immunity measures like amnesties were considered an acceptable part of promoting transitional justice in countries seeking to address past episodes of systematic violations of human rights. The politically sensitive context of countries seeking to broker peace between oppositional forces often outweighed the moral imperative of punishing those responsible for perpetrating human rights atrocities. Latin America exemplified this trend in the 1980s, while also popularizing truth commissions. The resulting truth v. justice debate eventually sidelined criminal trials in transitional justice schemes, accepting amnesty as lawful. However, growing international human rights and international criminal law jurisprudence began to slowly put in question the legality of amnesties. Recognition of individual rights chipped away at absolute state sovereignty by building recognition of the state duty to investigate, prosecute, and punish those responsible for serious violations of human rights. In addition, the end of the Cold War saw a new reliance on international and hybrid tribunals for criminal prosecutions, a remedy left largely dormant since the Nuremburg trials in 1945. Jurisprudence emanating from these tribunals solidified the principle of individual criminal liability for egregious human rights violations, which previously was thought to trigger only liability based on the theory of the wrongful acts of states.

Seventh Circuit Case of the Week: Sentencing Judges, You’ve Got Some ‘Splaining to Do

Post author:Michael M. O'Hear
Post published:June 6, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

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David Morrow was sentenced to an eye-popping 504 months in prison for conspiring to sell crack cocaine. This extraordinary punishment was ordered despite the fact that Morrow was diagnosed with diabetes in 2006 and had a leg amputated a few months later. At sentencing, counsel identifed Morrow’s health concerns as a mitigating factor, as did the presentence investigation report prepared by a probation officer. Yet, the sentencing judge said nothing about Morrow’s health problems in imposing a sentence twelve years above the minimum recommended by the federal sentencing guidelines.

Not so fast, said the Seventh Circuit last week in United States v. Harris (Nos. 08-1192, 08-1543, & 08-1694). The court, per Judge Williams, vacated Morrow’s sentence because the sentencing judge failed to address the health argument, which was not an argument “clearly without merit”:

[W]e cannot assure ourselves that the district court weighed Morrow’s health complications against other factors when it imposed the 504-month sentence, as we see no indication that the district court considered it. We therefore remand Morrow’s case for resentencing.

In emphasizing the importance of thorough sentence explanations, particularly to demonstrate that the defendant’s arguments for lenience were at least considered, Harris indicates (contrary to an earlier prediction of mine) that the Seventh Circuit’s important decision in United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005), is still alive and well. Sometimes it is nice to be proven wrong.

MULS 2009 Works-In-Progress Workshop (June Session)

Post author:Irene Calboli
Post published:June 5, 2009
Post category:Corporate Law Criminal Law & Process Education & Law Health Care Human Rights Intellectual Property Law International Law & Diplomacy Judges & Judicial Process Legal Education Legal Practice Legal Scholarship Wisconsin Law & Legal System

champ To open my month as faculty blogger, I would first like to thank my colleague Michael O’Hear, whose dedication to, and work for, the Marquette Faculty Blog since its creation last summer have been incredible. This is very much one of the major reasons why this project has been so successful and brought so many wonderful contributions to so many aspects of the law so far.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc. We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools. Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program.