Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences

This Article tells the story of how fundamental shifts in state sentencing policy collided with fundamental shifts in federal habeas policy to produce a tangled and costly doctrinal wreck. The conventional assumption is that state prisoners seeking habeas relief allege constitutional errors in their state court convictions and sentences. But almost 20 percent of federal habeas petitions filed by noncapital state prisoners do not challenge state court judgments. They instead attack administrative actions by state prison officials or parole boards, actions taken long after the petitioner's conviction and sentencing. Challenges to these administrative decisions create serious problems for federal habeas law, which is designed to structure federal review of state court judgments and is ill suited to review administrators' actions. Courts find themselves trying to squeeze square pegs into round holes, and the confusion is particularly intolerable given the stakes for prisoners, state prison systems, and federal courts. This Article is the first to identify this significant problem, to analyze its disparate and complicated causes, and to propose a simple and rational way for Congress to respond

How Different is Death? Jury Sentencing in Capital and Non-Capital Cases Compared

Drawing upon a recent study of felony jury sentencing in Kentucky, Virginia, and Arkansas, this essay highlights some of the similarities and differences between jury sentencing in capital cases and jury sentencing in non-capital cases. Unlike jury sentencing in capital cases, jury sentencing in non-capital cases includes functional differentials in judge and jury options for sentencing, and fewer controls on arbitrary decision-making. Jury sentencing in both contexts shares the potential for reluctance on the part of elected judges to reduce jury sentences, information gaps on the part of jurors in setting sentences, and, above all, service as a tool in negotiating settlements

Postconviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions

In Part I, I review the empirical evidence concerning the effect of jury discrimination on jury decisions. Using the work of social and cognitive psychologists, I argue that the influence of jury discrimination on jury decisions is real and can be measured by judges in certain circumstances. The empirical studies suggest criteria that courts could use to identify the cases in which jury discrimination is most likely to affect the verdict. I also refute the argument that white judges can never predict the behavior of jurors of racial backgrounds different than their own and conclude that judicial estimates of the effects of jury discrimination on jury decisions are feasible. I address in Part II pragmatic and constitutional objections to rules that require judges to measure the influence of jury discrimination on jury decisions. I argue that neither the specter of government-sponsored \u27\u27jurymandering nor antidiscrimination principles limit the choice or application of review standards for jury discrimination. I conclude that the choice between outcome-dependent tests and outcome-independent tests should rest instead on a careful balancing of the costs of disturbing judgments in criminal cases against the costs of tolerating proven jury discrimination. In Part III, I examine the difficulties of conditioning postconviction relief for jury discrimination upon a showing that the discrimination caused the conviction of an actually innocent person. Review standards that test for innocence or accuracy are intended to promote truthful judgments. When applied to jury discrimination, they require a judge to compare the factual accuracy of the decision reached by the illegally selected jury with the factual accuracy of the decision a legally chosen jury would probably make. I argue that this is a standard1ess task, one that courts should not be required to perform

Nameless Justice: The Case for the Routine Use of Anonymous Juries in Criminal Trials

We ask a lot of our jurors. The financial and emotional burdens of jury duty can be significant even in mundane cases. Deciding another\u27s fate is often a trying ordeal, aggravated by unintelligible instructions, hostile attorneys or court personnel, miserable working conditions, and interminable delays.1 The voir dire process may require jurors to reveal intimate, embarrassing, or damning information about themselves and their families that they would not voluntarily choose to reveal.2 Confronted with allegations of violence, injury, or abuse, some jurors become traumatized or ill.3 On top of all of this jury service exposes jurors, their families, and their friends to exploitation by the press and to retaliatory threats and unwanted attention from defendants, victims, and sympathizers. There are judges and legislators in this country who believe that risking humiliation and fear need not be part of the job description for jurors, and they have taken unprecedented steps to prove it. They have promised anonymity to jurors in all criminal cases, except in limited circumstances. 4 In this Essay I examine these innovative efforts and encourage other judges and legislators5 to consider the routine use of anonymous juries in criminal cases at least in urban areas where anonymity is feasible.7 By alleviating juror fear, anonymity can enhance the participation of citizens in jury service, the reliability of the voir dire process, the quality of jury deliberations, and the fairness of criminal verdicts

A Project for Spanish Speaking Migrant Parents for Involvement in Home Reading Activities

The purpose of this project was to develop parent involvement workshops and home reading activities for Spanish speaking migrant parents of the Highland School District. Four one-hour workshops were designed and implemented. In addition, kindergarteners participated in book reading activities. This project demonstrated that Spanish speaking parents could be successfully integrated into school-related activities; and through this integration, positive changes in attitudes and behaviors of both parents and children could be achieved

When Mobile Phones are RFID-Equipped - Finding E.U.-U.S. Solutions to Protect Consumer Privacy and Facilitate Mobile Commerce

New mobile phones have been designed to include delivery of mobile advertising and other useful location-based services, but have they also been designed to protect consumers\u27 privacy? One of the key enabling technologies for these new types of phones and new mobile services is Radio Frequency Identification (RFID), a wireless communication technology that enables the unique identification of tagged objects. In the case of RFID-enabled mobile phones, the personal nature of the devices makes it very likely that, by locating a phone, businesses will also be able to locate its owner. Consumers are currently testing new RFID-enabled phones around the globe, but the phones are not yet in general use by consumers in the United States and Europe. The incorporation of RFID into cell phones in order to deliver mobile advertising and other location-based services raises a host of important privacy questions that urgently need to be addressed before the phones become widely available. Analyzing the risks to consumer privacy in this new context, this paper offers a comparative law analysis of the applicable regulatory frameworks and recent policy developments in the European Union and the United States and concludes that there are many privacy concerns not presently addressed by E.U. and U.S. laws. This article also offers specific ideas to protect consumers\u27 privacy through applications of fair information practices and privacy-enhancing technologies. When mobile phones are RFID-equipped, consumers will need new privacy protections in order to understand the risks and make knowledgeable decisions about their privacy

Juror Delinquency in Criminal Trials in America, 1796-1996

This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis. Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate; Exxon, Charles Keating, and the man accused of murdering Michael Jordan\u27s father all complained of juror misconduct; and, of course, several jurors in the trial of O.J. Simpson were replaced after allegations that ·they had lied, concealed intentions to profit from the case, or otherwise misbehaved. Inthe past year, newspaper reports have described less well-known cases in which jurors refused to answer personal questions, stole jewels introduced as evidence, had sex with courthouse deputies, visited the crime scene, bit another juror\u27s arm to examine tooth marks, read forbidden newspaper articles, got drunk, made racist comments, used drugs, and discussed the case before the end of the trial. The first half of this article is devoted to a study of the avoidance of jury service and the law\u27s response. After introducing theoretical and practical constraints on the administration of compulsory jury service in section I.A, I review in section I.B the experience of courts in recruiting jurors for the past two centuries. Section l.C describes the situation today using the responses of trial judges surveyed. The discussion of jury avoidance concludes in section l.D with a brief analysis of several proposed reforms. The second half of the article addresses misconduct by jurors once they have appeared for jury duty. Following an exposition of historical trends concerning misconduct in section II.A, section II.B reports the responses of judges surveyed about jury misconduct in their courts over the past three years. Section II.C concludes with some observations about the future regulation of juror misconduct

Juror Delinquency in Criminal Trials in America, 1796-1996

This article examines two aspects of the jury system that have attracted far less attention from scholars than from the popular press: avoidance of jury duty by some citizens, and misconduct while serving by others. Contemporary reports of juror shortages and jury dodging portray a system in crisis.\u27 Coverage of recent high-profile cases suggests that misconduct by jurors who do serve is common. In the trial of Damian Williams and Henry Watson for the beating of Reginald Denny, a juror was kicked off for failing to deliberate; Exxon, Charles Keating, and the man accused of murdering Michael Jordan\u27s father all complained of juror misconduct; and, of course, several jurors in the trial of O.J. Simpson were replaced after allegations that they had lied, concealed intentions to profit from the case, or otherwise misbehaved. In the past year, newspaper reports have described less well-known cases in which jurors refused to answer personal questions, stole jewels introduced as evidence, had sex with courthouse deputies, visited the crime scene, bit another juror\u27s arm to examine tooth marks, read forbidden newspaper articles, got drunk, made racist comments, used drugs, and discussed the case before the end of the trial. The research reported here is an effort to place these defects in the jury system into perspective, to learn how widespread these problems are, whether they are new (or, if not, how they differ from similar problems in earlier years), and what courts have done and should do now about them. The article incorporates a historical overview of jury dodging and misconduct since 1796 and the results of an original survey completed in December, 1995, by 562 trial judges across the country. The survey is the first to collect empirical information about jury avoidance and misconduct nationwide