VERDICTS OF CONSCIENCE: NULLIFICATION AND NECESSITY AS JURY RESPONSES TO CRIMES OF CONSCIENCE

Consider three types of atypical criminal defendants. The first trespasses at a nuclear weapons plant (or a segregated bus station or women\u27s health clinic) in order to publicly protest a law or public policy represented by that facility or by the activity that occurs there. The second operates an underground railroad in violation of the Fugitive Slave Act (or smuggles South American residents into the United States or breaks into a women\u27s health clinic in order to disable equipment and prevent scheduled abortions). The third causes the death of a loved one by disconnecting that person from life sustaining medical machinery in order to fulfill a promise to that person or to spare that person the pain or indignity of such an existence. All three types of defendants violate legally valid laws out of a sense of conscience. All understand the nature and consequences of their acts, and none suffer any disability that might ground a legal excuse. No ordinary defense clearly applies, yet punishment may raise intuitive discomfort. Many readers might ask, Are these the types of people and conduct we had in mind when we built the prisons? Such defendants sometimes seek judicial instructions regarding either jury nullification or the necessity defense. Although appellate courts almost universally reject these requests, trial courts occasionally instruct regarding the necessity defense, and these instructions sometimes generate acquittals. Because commentators debate the propriety of jury nullification and the necessity defense separately, they do not clarify the relationship between the two or between each and crimes of conscience. Those who favor nullification tend to cite apparent examples in which juries nullify in service of noble causes, including free speech and resistance to slavery. Those who oppose nullification tend to cite apparent examples of jury nullification motivated by racial bias or animosity. This Article examines the appropriate roles for jury nullification and the necessity defense as jury responses to crimes of conscience. It clarifies the role and parameters of each and examines the relationship between the two. Finally, the analysis considers the significance of these doctrines in understanding the juror\u27s responsibilities both as a subject of and a temporary official in the criminal justice system and as an individual moral agent. As such, this Article presents a preliminary inquiry into the manner in which a person should understand the normative force of legal obligation in relation to individual conscience

Sexual Predator Laws: Clarifying the Relationship between Mental Health Laws and Due Process Protections

I. Introduction II. The Justification for SVP Legislation ... A. Police Power and Parens Patriae ... B. The Constitutionality of Civil Confinement III. A Lack of Measurable Standards Make SVP Statutes Unworkable ... A. The Court’s Vague Mental Illness Standard ... B. The Danger of Predicting Dangerousness IV. Clarifying the Nature of SVP Statutes ... A. Maintaining Sex Offender Culpability ... B. The Exclusion of Juveniles from SVP Commitment V. The Utilization of Mental Health Laws for Preventive Incarceration VI. Strict Mandatory Minimums and Recidivist Laws as Alternatives to SVP Commitment VII. Conclusio

Decision-Making About Volitional Impairment in Sexually Violent Predators

The Kansas v. Hendricks (1997) decision, in which the Supreme Court authorized post-sentence civil commitment for certain sex offenders, appeared to be constitutionally legitimized by limiting the class of offenders eligible for this special form of civil commitment to those who are “unable to control” their dangerousness. Nowhere in the available record, however, did the Court elucidate what they meant by this notion of volitional impairment. This study sought to examine factors that legal professionals (n = 43), psychologists (n = 40), and mock jurors (n = 76) deem most relevant to a determination of sex offender volitional impairment. Participants, who were randomly assigned to a sexual predator commitment or an insanity hearing context, read a series of 16 vignettes that described a pedophilic offender and included combinations of variables hypothesized to be related to judgments of volitional impairment. Results suggested that participants, who as a group made remarkably high estimates of likelihood of future sexual violence, considered verbalization of control, history of sexual violence, and the context of the hearing as highly relevant to determinations of volitional impairment. Implications for policy and practice are explored

Law professors want hearing, vote on Garland

Dear Senator Fischer and Senator Sasse, We write this as citizens, but we all teach at the University of Nebraska College of Law. We hold different political viewpoints and disagree frequentIy with each other on political and legal issues. As law professors, however, we share a deep commitment to the rule of law and an impartial judiciary. We therefore urge you to hold confirmation hearings and a vote on President Obama\u27s Supreme Court nominee, Chief Judge Merrick B. Garland

The Psychotherapist\u27s Duty to Protect the Public: The Appropriate Standard and the Foundation in Legal Theory and Empirical Premises

I. Introduction II. Schuster and Hamman ... A. Schuster v. Altenberg ... B. Hamman v. County of Maricopa ... C. The Common Foundation of Schuster and Hamman III. Previous Cases ... A. STIV [specific threats toward identifiable victims] Cases ... B. ZOD [zone of danger] Cases ... C. Comparison of STIV Cases with Earlier ZOD Cases IV. Analysis ... A. The Duty to Protect and the Duty to Warn ... B. Determined or Should Have Determined ... C. The ZOD Standard as Self-Defeating V. Summary and Conclusion

Wake Up and Die Right: The Rationale, Standard, and Jurisprudential Significance of the Competency to Face Execution Requirement

Contemporary American criminal law prohibits the execution of those who are not competent to face execution. The state cannot execute convicted offenders, including those who have been sentenced to death for capital crimes under valid law and through acceptable procedures, unless those offenders are competent at the time of execution. Although this requirement applies in all states that practice the death penalty and traces its heritage deep into the common law, its exact formulation remains controversial as does the appropriate rationale and the corresponding procedure.\u27 Five identifiable questions have troubled courts and commentators. First, what rationale justifies this requirement? Second, what is the appropriate standard of competency to face execution? Third, does the eighth amendment of the United States Constitution preclude execution of the incompetent as cruel and unusual punishment? Fourth, what procedural protection is necessary to implement this requirement? Fifth, what ethical dilemmas does this requirement raise for health care professionals who participate in the criminal justice system, and how should these clinicians resolve these issues

MULTIPLE PERSONALITY DISORDER, ACCOUNTABLE AGENCY, AND CRIMINAL ACTS

Smedley Wormwood is an accountant who is indicted for embezzling funds from the company for which he works. He generally presents an impression of an unobtrusive, conventional, compliant, vanilla individual. When his lawyer interviews him about the charges, Smedley seems innocent, frightened, and bewildered. In discussing the details of events around the time of the alleged crime, Smedley becomes somewhat vague and then admits to some lapses in recall. Smedley then startles the lawyer by apparently undergoing a marked change in attitude, tone of voice, and apparent self-identity. The lawyer realizes that she is now discussing the crime with a confident, angry, arrogant client who identifies himself as Slick and announces that he took the money this time, just as he has before. Slick describes prior crimes of various types and laughs about the possibility that the worm will be convicted and punished for this episode. A clinical evaluation results in the diagnosis of dissociative identity disorder ( DID ), more traditionally referred to as multiple personality disorder. Wormwood experiences two states of consciousness. He holds a job as an accountant, rents an apartment, and carries on the mundane affairs of life as Smedley. At certain times, however, he takes on the consciousness of Slick, the psychopathic personality who engages in a variety of types of exploitative and criminal behavior. While Smedley is anxious, compliant, and passive, Slick is confident, arrogant, and aggressive. Smedley has no awareness of Slick or of conduct performed as Slick. Smedley is sometimes embarrassed by lapses in memory and by episodes in which he finds himself in strange places or encounters unfamiliar people who seem to know him. Slick is aware of Smedley and of Smedley\u27s experience. Slick perceives Smedley\u27s experience from the perspective of an observer, and he despises the worm. Reported cases occasionally address the significance of DID for criminal responsibility. Courts and commentators debate the proper approach to this question without arriving at any consensus. Most often, this dispute addresses the most appropriate manner in which to apply the insanity defense or some alternative criteria of criminal responsibility. Reflecting upon the criminal responsibility of defendants who engage in criminal conduct while manifesting DID provides an opportunity to examine three more general issues. The first involves the exculpatory significance of impaired consciousness as it occurs in DID or in other disorders. Second, this analysis might inform the conception of accountable agency represented by the voluntary act requirement included in the standard legal criteria of criminal responsibility. Third, this analysis demonstrates that in order to understand the exculpatory significance of a particular type of psychopathology, one must integrate description and explanation of the specific pattern of functional impairment with the principles of political morality underlying the applicable criteria of criminal responsibility

Education and Contraception Make Strange Bedfellows: \u3ci\u3eBrown, Griswold, Lochner,\u3c/i\u3e and the Putative Dilemma of Liberalism

Future historians may contend that the Supreme Court decisions in Brown v. Board of Education and Griswold v. Connecticut represent the apex of liberal legal and political thought. Thirty-five years after Brown, however, the attempt to clarify and implement the jurisprudence of equal protection represented by that case remains incomplete. Programs designed to effectuate the equal protection mandate of Brown through methods such as busing, hiring quotas or goals, preferential treatment, and affirmative action continue to incite controversy. The Supreme Court\u27s recent ruling in City of Richmond v. Croson Co. demonstrates that the justices remain deeply divided regarding the appropriate role and scope of affirmative action programs involving race-based classification or reverse discrimination. The long and difficult road toward practical implementation of Brown and the jurisprudence of equal protection can be attributed to many factors. These include the long history of segregation in the United States, the economic and political costs of some remedies, and many realistic and unrealistic fears associated with segregation and integration. It is reasonable to suggest, however, that the Brown Court may have unwittingly contributed to this extended controversy by failing to fully articulate a principled foundation for its decision. Indeed, even Herbert Wechsler, who supports the Brown decision, is troubled by the Court\u27s failure to clearly ground its opinion in established legal principles