In a fascinating case decided this week, the Wisconsin Court of Appeals affirmed the suppression of a video recording apparently showing a husband having sexual intercourse with his wife, a stroke victim who was unconscious and lived in a nursing home. See State v. Johnson (Appeal No. 2007AP1485-CR, 9/11/2008). The husband was charged with second degree sexual assault, a class C felony, which can result in imprisonment up to 40 years. The offense occurs when a defendant “has sexual contact or sexual intercourse with a person who the defendant knows is unconscious.” Wis. Stat. § 940.225(2)(d). The statute further provides that “A defendant shall not be presumed to be incapable of violating this section because of marriage to the complainant.” Wis. Stat. § 940.225(6). Continue reading “Privacy Interests in Extremis”
Category: Criminal Law & Process
Should Criminal Law Be Used to Enforce Family Responsibilities?
Posted on Categories Criminal Law & Process, Family Law, Legal ScholarshipLeave a comment» on Should Criminal Law Be Used to Enforce Family Responsibilities?
This important question is explored in a forthcoming mini-symposium in the Boston University Law Review. The lead article, written by Professors Jennifer Collins, Ethan Leib, and Dan Markel, argues that if criminal law is going to be used to enforce the responsibilities of family members to one another, then there also ought to be ways for people in other types of caregiving relationships to make their responsibilities criminally enforceable. Continue reading “Should Criminal Law Be Used to Enforce Family Responsibilities?”
Supreme Court Raises Doubts About the Money-Laundering Trap
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, U.S. Supreme CourtLeave a comment» on Supreme Court Raises Doubts About the Money-Laundering Trap
The federal money-laundering statute prohibits both the concealment of proceeds from crime and the use of such proceeds to promote illegal activities. While designed primarily with drug kingpins in mind, the statute’s broad language can easily become a trap for low-level criminals doing fairly routine things. (I posted recently on a good example of an aggressive use of the money-laundering statute.) Expansive readings of the statute mean that the penalties attached by Congress to many predicate offenses become meaningless, as nearly everyone becomes subject to the twenty-year maximum prison term triggered by a money-laundering conviction. Responding to this concern, the Supreme Court recently adopted narrow constructions of the money-laundering statute in two cases, United States v. Santos, 128 S.Ct. 2020 (2008), and Cuellar v. United States, 128 S.Ct. 1994 (2008). The cases may point the way towards a more discriminating money-laundering jurisprudence that attempts to reserve the harsh penalties of the statute for the most deserving defendants. Continue reading “Supreme Court Raises Doubts About the Money-Laundering Trap”
Edwards and Erosion of the Defendant’s Right to Self-Represent
Posted on Categories Criminal Law & Process, U.S. Supreme Court1 Comment on Edwards and Erosion of the Defendant’s Right to Self-Represent
In June, the Supreme Court offered its’ latest pronouncement on the right of criminal defendants to represent themselves in court. The Court first recognized this constitutional right in 1975 in Faretta v. California, a case that I like to present in my Criminal Procedure course as one of the few instances in which the Supreme Court has given any real weight to the dignitary interests of criminal defendants (which are usually subordinated in criminal procedure to competing objectives, such as judicial economy and reliable fact-finding). I think the Court was right that it is profoundly demeaning for the state to force a lawyer on an unwilling defendant, and then authorize the lawyer to decide how the defendant’s story will be presented to the jury. (I discussed this point at greater length in this essay a few years ago.) Yet, the Court’s post-Faretta decisions have generally worked to diminish the scope of the right to self-representation, and the most recent (Indiana v. Edwards, 128 S.Ct. 2379 (2008)) is no exception. Continue reading “Edwards and Erosion of the Defendant’s Right to Self-Represent”
Federal Sentencing Guidelines Still Need Fundamental Reform
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Legal ScholarshipLeave a comment» on Federal Sentencing Guidelines Still Need Fundamental Reform
As a frequent critic of the federal sentencing guidelines (see, e.g., my post from Monday), my readers–yeah, both of them–often assume that I dislike sentencing guidelines in general. To the contrary, I think that sentencing guidelines remain a good idea and have worked quite well in many states (not in Wisconsin, unfortunately, but I will leave that post for another day). The problem with the federal sentencing system is not that it has guidelines, but that it has bad guidelines. Continue reading “Federal Sentencing Guidelines Still Need Fundamental Reform”
Retributive Damages in a World Without Trials
Posted on Categories Criminal Law & Process, Legal Scholarship, Speakers at Marquette, Tort LawLeave a comment» on Retributive Damages in a World Without Trials
Kicking off a terrific speaker series at Marquette this semester, Dan Markel of Florida State and PrawfsBlawg fame is with us today to present his paper How Should Punitive Damages Work?. This is the second part of a multi-article series in which Dan is developing a comprehensive reform proposal for punitive damages law. Dan’s basic premise is that punitive damages should be reconceptualized around principles of retributive justice. To the extent that we want punitive damages to do other things (e.g., compensate victims for dignitary harms), Dan urges that we give those forms of damages different labels and treat them in a procedurally distinct manner from retributive damages. Notably, he would give retributive damages awards to the state, not private plaintiffs; plaintiffs would get merely a small finder’s fee ($10,000) and attorneys’ fees. Continue reading “Retributive Damages in a World Without Trials”
A Galling Case in the Seventh Circuit
Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Seventh Circuit3 Comments on A Galling Case in the Seventh Circuit
The Seventh Circuit has an interesting new sentencing decision, United States v. Carter, which nicely illustrates the impact of the Supreme Court’s decision last year in Gall v. United States. Robert Carter, the husband of defendant Virginia Carter, embezzled money from his insurance business over several years. There is no indication that Virgina Carter participated in the embezzlement, but she likely had some knowledge of what was going on. Eventually, for reasons that are unclear, she sought a divorce. Following the advice of her lawyer, who did not know that much of the family income was illegal, Carter attempted to take control of the couple’s liquid assets by transferring them into her own individual bank accounts. Normally, this would be a sound tactical move in a divorce setting, but, by virtue of the criminal origin of the assets, Carter thereby became a money launderer. Following conviction, she faced a recommended sentence of 87-108 months in prison under the federal sentencing guidelines. Continue reading “A Galling Case in the Seventh Circuit”