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Sat 26 Mar, 2005 02:33 pm
Hi all!
Here's the deal- The class selection for next year at my school is terrible. I've decided to do an independent project instead of a class for 2 or 3 credits to make up for it.
I'm planning on being a prosecutor when I graduate, so I'm very interested in criminal law. My question:
Is anyone aware of interesting criminal law issues that are going on these days?
So far, I've been thinking of the question of the automatic access of the "black box" that cars are installed with. Its the information center of the car that was originally used by car companies to measure the effectiveness of air bags in car accidents, but now they are able to store all sorts of information that can help with prosecution/defense (speed at impact, whether seat belts were on at the time, whether the brakes were used, etc).
Other than that, I'm drawing a blank. Anyone know of other interesting things that relate to criminal law that might make for an interesting independent project?
Any help would be greatly appreciated! Thank you!
Independent project
As a prosecutor, you will make sentencing recommendations to the Court.
Sentence enhancement statutes in states throughout the country have been under attack since the United States Supreme Court decided Apprendi v. New Jersey. States have taken various approaches to Apprendi errors -- some states have applied the "harmless error" analysis when reviewing the constitutionality of an enhanced sentence.
When is it proper to apply a harmless error analysis . . . when isn't it proper?
Sentence enhancement statutes implicate the DUE PROCESS CLAUSE and the relevant question becomes whether the statute is unconstitutional on its face or as applied . . . .
If you take a good look at Apprendi, you will see that the U.S. Supreme Court struck down the sentencing enhancement statute as unconstitutional on its face. As you know, an unconstitutional statute is void ab initio and must be treated as if it never existed . . . it can have no effect.
At least one state that I am aware of has applied a harmless error analysis to a sentencing enhancement statute that was clearly unconsitutional on its face and upheld the enhancement. How did that happen? (It probably happened because the petitioner for post-conviction relief was acting pro se and never presented the issue of whether the sentence enhancement statute was unconstitutional on its face -- however, in a footnote in the decision, the state's highest court acknowledged that the sentence enhancement statute would not survive a constitutional challenge, yet the court applied the harmless error analysis anyway and continued to apply this same flawed analysis in subsequent cases. I find it shocking!)
In another state, the prosecution tried unsuccessfully to get the state's highest court to apply the harmless error analysis to an Apprendi error. The court refused because the statute was unconstitutional on its face. At least THIS court was smart enough to understand that the application of a statute that is unconstitutional on its face can NEVER be harmless error.
What about sentence enhancement statutes that PRESUME that any offender who uses a dangerous weapon is an especially dangerous offender per se and therefore subject to an enhanced sentence? Isn't a conclusive presumption in a sentencing statute just as unconstitutional as a presumption in a jury instruction? See Sandstrom v. Montana.
And what about the application of the above described "especially dangerous" enhancement to an offender's sentence when the crime he was convicted of already takes into consideration the use of a weapon . . . doesn't that implicate the Double Jeopardy Clause?
I think if you conduct a study of state court decisions concerning sentence enhancement statutes following Apprendi, you will find considerable food for thought . . . and considerable material for an independent project.
Another hot topic
Here's another hot topic on
SENTENCING:
Quote:Many are asking, for understandable reasons, about the prospect of Booker's retroactive application. The simple answer is that Booker does not speak to the question, and thus some future case (soon?) will have to make a definitive ruling on this issue. However, as a number of commentators have already noted, the dueling opinions for the Court seem to provide conflicting tea leaves to read.
Justice Stevens' opinion for the Court suggests the Court is just "reaffirm[ing] our holding in Apprendi" which might suggest application back to 2000, while Justice Breyer's opinion for the Court speaks of Booker as if it is a "new rule" only applicable to pending cases. Of course, even if Booker is a new rule, arguments can (and surely will) be made that this new rule fits into one of Teague's exceptions so as to be retroactive. But, as others like TalkLeft here have suggested, offenders whose convictions and sentences are final should not find much that is encouraging in Booker. And, especially since the lower courts have already been consistently resisting claims that Apprendi and/or Blakely are retroactive, I forecast a lot of litigation from, and little relief for, prisoners with final convictions.
Wow, thanks for the great leads, Deb!
Its GREATLY appreciated!
Re: Independent project
Debra_Law wrote:in a footnote in the decision, the state's highest court acknowledged that the sentence enhancement statute would not survive a constitutional challenge, yet the court applied the harmless error analysis anyway and continued to apply this same flawed analysis in subsequent cases. I find it shocking!
I agree. That's absurd. What state was this in?
I'm curious; do these defendants, who had this unconstitutional statute applied to their case, have the ability to ask for a writ of habeas corpus or an appeal to minimize their sentence? And isn't it the job of the attorney to point out that this statute is invalid and should not be applied, or did that happen and the court decided to use it anyway?
(2L here also...still learning and asking any attorney I come into contact with all sorts of questions...lol)
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