ABA Approves Model Workplace Policy on Employer Responses to Domestic Violence

(Daniel Schwartz) One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try to get such policies enacted at the federal, state or local level.At this year’s meeting, which took place in Boston over the last few days, the House considered Resolution 112A. The resolution itself is fairly short but stated the following:

RESOLVED, That the American Bar Association adopts the Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014.

FURTHER RESOLVED, That the American Bar Association encourages all employers, public  and private, including governments, law schools and the legal profession, to enact formal policies on the workplace responses to domestic violence, dating violence, sexual violence, and/or stalking violence which address prevention and remedies, provide assistance to employees who experience violence, and which hold accountable employees who perpetrate violence.

In plain English, the ABA adopted a Model Workplace Policy that has been developed by several groups for use in workplaces.  You can find it here.

So why should employers care? Well, for one, Connecticut already has a law that requires all employers to provide for domestic violence leave.  Adopting a policy like the type advocated by the ABA, can help achieve compliance with that law and also further the employer’s interests of making sure employees return to work quickly and are productive while theer.

Is the policy required? No.  And there is no civil liability that is attached to either having or not having the policy.  But an employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.

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The Future of Shaming (and Restorative Justice), Part 7 of 7

(Dan Markel) See here for previous related links to the first through sixth posts in this series. What follows in today’s post is the last excerpt of a forthcoming piece that addresses Dan Kahan’s recent renunciation of shaming punishments and subsequent embrace of restorative justice as an alternative to incarceration. The essay was just accepted for publication in the Texas Law Review, and a draft including footnotes is available here.

In light of the reasons Kahan gives to explain his reversal on shaming punishments (see post five), I confess I am now puzzled by Kahan’s embrace of restorative justice strategies as an alternative to incarceration. As I explain below, restorative justice seems susceptible to the same kinds of concerns about divisiveness raised by Kahan with respect to shaming punishments.

Kahan explains his support of restorative justice by appealing to the previously mentioned principle of “expressive overdetermination.” To quickly recap, what Kahan likes about restorative justice is that he believes it will be a cheaper alternative to incarceration that, unlike shaming punishments, is capable of appealing to the four cultural worldviews he discusses: individualistic, hierarchical, communal, and egalitarian.

By urging crime control responses that have appeal to all these various worldviews, Kahan appears, at first blush, to be drawing from the same well as his former colleague, Cass Sunstein—who has generally urged judges to decide cases on narrow grounds. This judicial minimalism, which itself relies on incompletely theorized agreements, allows legislatures to devise pragmatic solutions for contemporary problems without being overly constrained by judges who may lack accountability or expertise on the issues at hand. Kahan’s search for expressive overdetermination in punishment modes may be viewed as trying to replicate the virtues of incompletely theorized agreements. On this view, the less said publicly about the justification for a social practice, the more likely others can interpret it as being consistent with their cultural worldview and the more likely social conflict will be avoided. But whereas Sunstein’s embrace of judicial minimalism is designed to displace and channel political conflict to the appropriate political sphere, Kahan’s pragmatic search for expressive overdetermination appears aimed at downsizing, if not squelching, the play of the democratic process altogether.

Regardless of whether a reduction in socio-political conflicts is an unqualified benefit for democracies — and I am not sure it is — I suspect Kahan’s new enthusiasm for restorative justice approaches will erode if he tethers his pragmatic support for restorative justice simply to the principle of expressive overdetermination. That’s because once people understand the prototypical mechanisms of restorative justice, those programs will likely be deemed incompatible with the basic values of at least some of the four archetypal worldviews. Let me explain.

Kahan also notes that these kinds of sentencing circles are used for a broad variety of crimes including “theft, burglary, drunk driving, domestic and stranger assaults, and minor sex offenses.”

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The Myth of the Trial Penalty?

(Dan Markel) Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this oneto the file. Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

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Prosecutorial Discretion in Bond

(Richard M. Re) Who would have thought that Bond v. United States — today’s much-awaited decision involving the Chemical Weapons Convention — would have so much to do with prosecutorial discretion? Yet prosecutorial discretion appeared repeatedly in the Court’s consideration of the case, serving different purposes each time.

First, the fact of prosecutorial discretion is the critical factor explaining why Bond even arose. By way of background, the defendant Bond used certain harmful chemicals to retaliate against a romantic rival. Bond was then prosecuted for violating federal legislation implementing the Chemical Weapons Convention. In Bond, the Court relied on federalism canons to conclude that the implementing legislation didn’t reach Bond’s conduct. A major theme of the majority opinion is that Bond is an “unusual” and “curious case” that is “worlds apart” from what anyone would have associated with the Chemical Weapons Convention or its implementing legislation. Another major theme is that the “common law assault” at issue in Bond would normally be handled by state and local government. But if that’s so, then why was the defendant federally prosecuted? The answer is that the federal prosecutors involved in the case concluded — contrary to the intuitive view — that the Convention’s implementing legislation properly applied.

Second, prudent use of prosecutorial discretion was a source of comfort to the majority, since it meant that the Court’s statutory holding wouldn’t have harmful effects. “[W]ith the exception of this unusual case,” Bond noted, “the Federal Government itself has not looked to section 229 to reach purely local crimes.” Instead, federal authorities had previously used the relevant statutory authority primarily to prosecute things akin to “assassination, terrorism, and acts with the potential to cause mass suffering,” and the Court declined to “disrupt the Government’s authority to prosecute such offenses.”

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How to Prosecute Crimes Committed Abroad?

(Naomi Goodno) Earlier this year, in U.S. v. Pepe, a former U.S. Marine captain was sentenced to over 200 years in prison for brutally molesting young girls while teaching in Cambodia under the pretense of being a college professor looking out for the Cambodian youth.  He was found guilty of a violation of the PROTECT Act, a laudable federal statute with extraterritorial application which prohibits U.S. citizens from molesting children abroad.  The Pepe case had been lingering for eight years.  The investigation began in 2006, the jury convicted in 2008, and since then the case has been stuck in litigation limbo (a lingering motion for new trial based on an inappropriate relationship between a U.S. law enforcement agent and translator).

I have previously written about the PROTECT Act, and how it, along with numerous other federal statutes that criminalize U.S. citizens behavior abroad, raises an interesting Foreign Commerce Clause (FCC) issue – a matter in which circuit courts are in complete disarray over.  Assuming that Congress, under the FCC, has the power to enact laws like the PROTECT Act with extraterritorial application, the next issues to address (the issues which are framing my fall research project) are the criminal procedure implications of investigations of U.S. citizens in other countries and the related evidentiary matters.

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Harmon on the Fragility of Knowledge in the Riley (cellphone and 4A) Case

(Dan Markel) Prof. Rachel Harmon from UVA had an interesting post to the crimprof listserv that I thought warranted broader exposure, so with her permission I’m sharing it. (Rachel asked to also thank UVA law librarian Kent Olson for his help with the underlying research).

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In light of the likely significance of the Court’s opinion in Riley v. California, I may seem obsessed with the trivial, but I can’t help but note the Court’s odd support for one of its statements about policing, and the pathetic state of information about policing it reveals. On page 6, the Court states that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”  Though the proposition seems intuitively obvious, data on searches and seizures isn’t easy to find, so I was curious about the Court’s support.

Chief Justice Roberts cited LaFave’s Search and Seizure treatise, which struck me as an odd source for an empirical claim, so I looked it up.  LaFave does indeed say, “While the myth persists that warrantless searches are the exception, the fact is that searches incident to arrest occur with the greatest frequency.”  But that sentence has appeared unchanged since the first edition of the treatise in 1978.  And LaFave’s support for the proposition is itself pathetic.  It comes in a footnote which reads:  “See T. Taylor, Two Studies in Constitutional Interpretation 48 (1969). ‘Comparison of the total number of search warrants issued with the arrests made is equally illuminating. In 1966 the New York police obtained 3,897 warrants and made 171,288 arrests. It is reliably reported that in San Francisco in 1966 there were 29,084 serious crimes reported to the police, who during the same year obtained only 19 search warrants.’ Model Code of Pre-Arraignment Procedure 493–94 (1975).”

Because I’m crazy, I pulled Taylor and the Model Code too.

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Detroit Criminal Lawyer – 6 Things to Look For In Your Quest to Hire The Best Criminal Lawyer

When you have been charged with a criminal offense Detroit Criminal Lawyer, you need to consider many things including hiring the right attorney.

There are many things to consider when hiring a criminal lawyer for your case. The following is to be used as only a guideline and is certainly not an exhaustive list of what you should consider in your quest to hire the best Detroit criminal lawyer.

1. Be certain that the attorney you intend to hire specializes in handling criminal cases. Don’t hire your traffic lawyer to try your criminal case. You wouldn’t hire a brain surgeon to operate on your heart would you? Because criminal defense is a very specialized field of law best Detroit criminal lawyer, you need a lawyer who specializes in this particular practice area.

2. Be certain that the Michigan criminal lawyer you intend to hire specifically handles your particular case and in the right jurisdiction. If you are charged with a federal crime Best Detroit Criminal Lawyer, don’t hire an Michigan lawyer who handles crimes only in state court. Find a lawyer instead who has experience handling federal cases – this is very important.

3. Avoid hiring a lawyer who promises you a specific outcome. Actually no, instead RUN the other way. You don’t need to be led astray by a lawyer who simply wants your case to pad his/her resume.

4. If your goal is to resolve your case without a trial, you may not need to hire the best criminal trial lawyer in Detroit. You may want to look instead for someone who has experience successfully negotiating your particular type of criminal case.

5. If you are hiring a specific criminal lawyer to work on your case, make sure that that specific lawyer and not an ‘associate.’ You must be their priority; I cannot stress this enough.

6. And last but not least, be sure that the lawyer you intend to hire has time to work on your case. If the lawyer you intend to hire is starting a month-long federal trial next week, he may not be the criminal lawyer best suited to represent you if your case requires a lot of work and your trial date is fast approaching.

There you have it, six good reasons to hire the right criminal lawyer. There are many more, but this list that will get you started in your quest to hire the best Detroit Criminal Lawyer possible for your case.

New Michigan Laws Fighting Meth Production

LANSING, Mich. (AP) – New Michigan laws are intended to stop people from buying small amount of medicine from numerous stores to illegally make the drug methamphetamine.

One law prohibits buying or possessing ephedrine or pseudoephedrine knowing it will be used to cook meth. Another law makes it a crime to ask another person to buy ephedrine or pseudoephedrine, ingredients in cold medicine.

The laws are meant to crack down on “smurfs” – people who buy cold medicine for drug ringleaders to use in meth production.

Gov. Rick Snyder signed the bills last week. He’s also expected to soon sign related measures requiring law enforcement to report meth-related convictions to a national database. The goal is generating stop-sale alerts to pharmacies for people convicted of meth crimes.

The laws take effect in January.

H/T 13ABC