Local Offenses

Criminal law is generally thought to exist within two jurisdictional levels: federal and state. Neglected in the legal mind, and in legal scholarship, is the vast body of criminal law promulgated by local governments. While one should ask “what” is being criminalized by cities, towns, and villages, one should also ask “how” these offenses are written. The offense-drafting practices reflected in state criminal law have been extensively studied, but this has never been attempted for local offenses. This Article undertakes that task. After surveying a large number of local criminal codes, this Article concludes that local offenses routinely fail to live up to modern drafting standards—especially in that they usually lack a mens rea element (and thus impose strict liability). While this is problematic in its own right, special concern arises when there is an asymmetry between archaically written local offenses and a state criminal code that has been updated to reflect modern practice. In such a context, the home rule powers of the local government have the effect of thwarting the advances in criminal law made at the state level. This may be because of a reduced institutional competence of city councils and town boards, but it may also be a deliberate choice. While the primary aim of this Article is to unearth this phenomenon and describe its implications, these implications can be seen as relevant for two significant conversations in criminal law scholarship: the recent literature studying the misdemeanor system and also the movement to “democratize” criminal justice. In general, recognition of harmful local-state offense asymmetry should temper the prolocalist optimism of both groups

When Agencies Make Criminal Law

The nondelegation doctrine prohibits a legislature from delegating its power to an administrative agency, yet it is famously underenforced—even when the delegation results in the creation of criminal offenses (so-called “administrative crimes”). While this practice appears to scandalize the hornbook presumption that legislatures alone define criminal offenses, it has long been ratified by the Supreme Court and has received little scholarly attention. The few commentators who have addressed administrative crimes highlight the intuition that criminal sanctions are uniquely severe and thus deserving of a more rigorous nondelegation analysis, but they stop there. They do not precisely link the severe aspects of criminal punishment with a requirement for the type of institutions that can create criminal law. This Article provides that link. I argue that the two most significant dimensions of criminal punishment—community condemnation and liberty deprivation—implicate the concerns of two prominent political theories of punishment: expressivism and liberalism. A latent but mostly unstated premise of both theories, I claim, is that criminalization must be undertaken by a democratic institution. Given this, administrative crimes should be seen as illegitimate under either conception of state punishment

Rightsizing Local Legislatures

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size. This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size can affect the content of local law and the way that it is perceived. The fundamental problem with a micro-legislature is that it is not inclusive of the diversity of interests in a modern society. Too few seats results in a deficit of descriptive representation—meaning the legislature will not “look” like its community—and also of democratic deliberation, since all voices will not be a part of political debate. This works to silence or muffle minority viewpoints, resulting in more extreme legislation. Moreover, minorities will perceive this exclusion, and may view local law as less legitimate because of it. Rather than being models of democratic involvement, localities—at least as they are currently structured—are sites of exclusion, not inclusion. The path forward is uncertain and depends on one’s appetite for reform

Unusual: The Death Penalty for Inadvertent Killing

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the actual killer. In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death. Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States. Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016). This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional

Unusual: The Death Penalty for Inadvertent Killing

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the actual killer. In this Article, we urge the recognition of a new Eighth Amendment norm against executing even actual killers who lack a culpable mental state of at least recklessness, with respect to the victim’s death. Using the methods employed by the Supreme Court for determining “evolving standards of decency,” we survey the pertinent homicide and sentencing laws of the fifty-three criminal law jurisdictions in the United States. Second, we evaluate the facts of the cases that resulted in the nearly five hundred executions that have taken place since 1973, when the post-Furman statutes became operative, and 2016, in those jurisdictions permitting execution for inadvertent killing. We did the same for the facts of the 1755 cases of all death row inmates convicted in those jurisdictions and alive at the time of the study (2016). This analysis shows that capital punishment for inadvertent killing has become “truly unusual,” and therefore, unconstitutional.

Capital Punishment of Unintentional Felony Murder

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the underlying justifications of Eighth Amendment jurisprudence require a rational selection for death of only the most deserving and deterrable offenders, and this in turn requires an assessment of culpability. We argue that the Supreme Court should address this open question in Eighth Amendment law and that it should correct the lower courts by imposing a uniform requirement of at least recklessness with respect to death for capital punishment of felony murder

The Role of a Bioengineered Artificial Kidney in Renal Failure

Renal failure continues to carry substantial burden of morbidity and mortality in both acute and chronic forms, despite advances in transplantation and dialysis. There is evidence to suggest that the kidney has metabolic, endocrine, and immune effects transcending its filtration functions, even beyond secretion of renin and erythropoietin. Our laboratory has developed experience in the tissue culture of renal parenchymal cells, and has now been able to demonstrate the metabolic activity of these cells in an extracorporeal circuit recapitulating glomerulotubular anatomy. We have observed active transport of sodium, glucose, and glutathione. We describe the design and initial preclinical testing of the bioartificial kidney, as well as future directions of our research.Peer Reviewedhttp://deepblue.lib.umich.edu/bitstream/2027.42/71995/1/j.1749-6632.2001.tb03841.x.pd

Atrial fibrillation in hemodialysis patients: clinical features and associations with anticoagulant therapy

Using data from the international Dialysis Outcomes and Practice Patterns Study (DOPPS), we determined incidence, prevalence, and outcomes among hemodialysis patients with atrial fibrillation. Cox proportional hazards models, to identify associations with newly diagnosed atrial fibrillation and clinical outcomes, were stratified by country and study phase and adjusted for descriptive characteristics and comorbidities. Of 17,513 randomly sampled patients, 2188 had preexisting atrial fibrillation, with wide variation in prevalence across countries. Advanced age, non-black race, higher facility mean dialysate calcium, prosthetic heart valves, and valvular heart disease were associated with higher risk of new atrial fibrillation. Atrial fibrillation at study enrollment was positively associated with all-cause mortality and stroke. The CHADS2 score identified approximately equal-size groups of hemodialysis patients with atrial fibrillation with low (less than 2) and higher risk (more than 4) for subsequent strokes on a per 100 patient-year basis. Among patients with atrial fibrillation, warfarin use was associated with a significantly higher stroke risk, particularly in those over 75 years of age. Our study shows that atrial fibrillation is common and associated with elevated risk of adverse clinical outcomes, and this risk is even higher among elderly patients prescribed warfarin. The effectiveness and safety of warfarin in hemodialysis patients require additional investigation