“Actual” and “Constructive” Possession in Alaska: Clarifying the Doctrine

In two cases, one recent and one now nearly a decade old, Judge David Mannheimer has raised important questions about Alaska’s jury instruction on “possession.” In particular, Judge Mannheimer has expressed a worry that Alaska’s definition of “constructive possession” invites juries to find possession where the defendant is only near an object and has knowledge of its presence. As Judge Mannheimer correctly points out, such a definition is too expansive. But how can we avoid this problem? My short article takes Judge Mannheimer’s opinions in Alex v. State and Dirks v. State as the starting point for an investigation of Alaska’s possession doctrine. After summarizing the two opinions in Part II, Part III attempts to clarify the seemingly straightforward idea of “actual possession,” and finds that many courts wrongly treat many cases of actual possession as cases of constructive possession. Part IV tries to provide a solution to the problem—as presented by Judge Mannheimer—with Alaska’s instruction on constructive possession. It offers that the key to constructive possession is not the idea that one intends to have control over an object, but that one has a legal right (or the functional equivalent of a legal right) over the object, or the space where the object is. If we understand this idea of “authority” as essential to constructive possession, it turns out that pure cases of constructive possession are actually quite rare, and that many supposed cases of constructive possession are really cases of past actual possession. Part V proposes a new jury instruction on actual and constructive possession

Substantial Confusion about Substantial Burdens

As the Supreme Court rev1s1ts the clash between religious belief and the Affordable Care Act (ACA) in the Zubik1 case, it is worth mulling over a key phrase in the law that governs that clash: \u27·substantial burden. According to the Religious Freedom Restoration Act (RFRA), the government must-provided it does not meet certain other conditions, such as showing a compelling interest-make an accommodation if it places a \u27\u27substantial burden\u27\u27 on a person\u27s religious exercise.2 If the question in the Hobby Lobby case was whether a for-profit corporation could be a \u27\u27person that \u27\u27exercised religion, 3 the question the Court now faces is whether the government has in fact \u27\u27substantially burdened some religious non-profits in trying to accommodate their objection to the contraceptive mandate.4 But what is a \u27\u27substantial burden ? Or to put it another way, what makes a burden substantial? What follows is my best effort to provide clarity-in the form of a primer-as to the meaning of substantial burden under RFRA

Is Having Too Many Aggravating Factors the Same as Having None at All? A Comment on the Hidalgo Cert. Petition

While the Court does not dispute that at first blush the defendant\u27s argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could create a tool that would measure the percentage of defendants eligible for capital punishment, where is the dividing line of constitutionality and who makes that decision

Public Wrongs and Public Reason

The distinction between crimes that involve wrongs in themselves and crimes that are wrong because the law makes them so has long puzzled theorists. This essay argues that the distinction, while getting at something real, is based on a mistake. That mistake is made both by those who see moral wrongness as a necessary condition for criminality and by those who believe merely making something illegal is sufficient to make it criminal. Neither is correct. Rather, what makes something a criminal wrong is that it involves a violation of a law that has been justified in terms of “public reason.

Cost and Sentencing: Some Pragmatic and Institutional Doubts

In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) Will judges use cost as a factor in a consistent and uniform way? and (3) Are judges in the best position to make cost decisions in sentencing, or should this be left to the legislature? The motivation for including cost in sentencing is in one way inarguable: sentences should at some level be determined by taking into account all the relevant information, and should be done in a way that is the most cost effective. But it is a separate question which institution – the legislature, the executive, or the judiciary -- should be making decisions about cost. There are difficulties in getting legislatures to act in ways that are cost effective, especially when dealing with punishment. Still, things are starting to change, and we might hope that sentencing reform from the top down will happen, and happen sooner rather than later. Sentencing commissions should push them to take this responsibility, and not, as is the case with giving judges the power to decide sentencing decisions, give them a way to shirk their responsibility

The One-State Solution to Teaching Criminal Law, or, Leaving the Common Law and the MPC Behind

How should criminal law be taught to first-year law students? Professors preparing their classes for the first time, and even veterans of many semesters of criminal law, find themselves facing a dilemma. On the one hand, the common law is no longer good - law in nearly every state; it has been superseded by statute. Even states that leave a large role for the common law usually have a combination of common law and statutory law or strongly limit the scope of the common law. On the other hand, there is no uniform code that actually exists as law in all fifty states. While the Model Penal Code (MPC) may serve as a useful stand-in for such a uniform law, few, if any, states have adopted the MPC in its entirety, and most have rung interesting changes on it, accepting some parts and rejecting or modifying others. The way out of the muddle, I suggest, is to focus on one state‘s criminal code and to read cases from that state interpreting its statutes. Using this approach, students are exposed to a consistent and actual existing body of law to master - not one state‘s law for one case, another state‘s law for the next, and a discussion about a proposed set of laws (the MPC) and its commentary. Although this approach may raise some objections, my argument will be that it is a sound approach to teaching first year criminal law and that the advantages outweigh the disadvantages. It represents, in short, a more than satisfactory answer to the dilemma of what law to teach. If criminal law is for the most part statutory law, why not expose students early and often to actual statutes? And why not have the statutes be from the state in which they are actually studying and in which many will go on to practice

How Do You Spell M-U-R-K-O-W-S-K-I? Part I: The Question of Assistance to the Voter

The 2010 race for the Alaska Senate now seems to be over. After losing in the Republican Party Primary to Tea Party-backed candidate Joe Miller, Senator Lisa Murkowski staged a write-in candidacy and, bucking both U.S. and Alaska history, won the general election. Although much attention has been paid to Miller’s post-election challenges to Murkowski write-in ballots, a major election law question was at issue prior to the election: to what extent can poll workers assist voters who need help in voting for a write-in candidate? After Murkowski declared her write-in candidacy, the Alaska Division of Elections distributed a list of eligible write-in candidates to polling places, in case voters had questions about how to properly spell the name of a write-in candidate. Both parties, sensing this would benefit Murkowski, cried foul, and challenged the new policy in Alaska state court as a violation of the Division’s own regulations prohibiting the distribution of “information” about write-in candidates at polling places. This essay examines four issues regarding voter assistance in the Murkowski litigation: (1) how to interpret statutes and regulations regarding voter assistance; (2) what kind of assistance is permissible and what kind is not; (3) whether the state can legitimately handicap the ability of voters to write-in the name of a candidate; and (4) how decisions on assistance to voters before the election might affect a court’s disposition on cases that arise after the election

Can Retributivism be Saved?

Retributive theory has long held pride of place among theories of criminal punishment in both philosophy and in law. It has seemed, at various times, either much more intuitive, or rationally persuasive, or simply more normatively right than other theories. But retributive theory is limited, both in theory and practice, and in many of its versions is best conceived not as a theory of punishment in its own right, but instead as shorthand for a set of constraints on the exercise of punishment. Whether some version of retributive theory is a live possibility in the contemporary world remains very much an open question. In my essay, I consider three interrelated lines of attack against retributive theories of punishment: first, that it relies on philosophical assumptions that are either unrealistic or false; second, that the notion that offenders deserve to be punished, whatever its intuitive appeal, is possibly an empty idea and in any case one unsuited to a politically liberal state; and third, that the abstractness of most versions of retribution render it unable to offer much in the way of useful or concrete policy advice. If retributivism is to be taken seriously as a robust theory of punishment, it needs to provide replies to each of these lines of criticism