Contributor Profile: Professor Evan J. Mandery

Contributing Editor: Sean Murphy

The New England Law Review’s Spring 2014 symposium, “A Look Back at the History of Capital Punishment,” centered on Professor Evan J. Mandery’s book, A Wild Justice: The Death and Resurrection of Capital Punishment in America. New England Law | Boston was honored to have Professor Mandery in attendance, along with Professor Phyllis Goldfarb of George Washington University Law School; Professor Michael Meltsner from Northeastern Law School; the Honorable Michael Ponsor, Associate Justice of the United States District Court of Massachusetts; and Professor Carol S. Steiker from Harvard Law School. Discussions during the symposium covered a range of topics, from the Bill of Rights and Supreme Court cases, to issues of race and the influence of media on the public’s perception of the death penalty. Live Twitter coverage of the symposium appears here.

Professor Mandery, a graduate of Harvard College and Harvard Law School, teaches at John Jay College of Criminal Justice and serves as the chairperson of the college’s Department of Criminal Justice. A Wild Justice is not Professor Mandery’s only book on the subject of capital punishment; he has also written a textbook, Capital Punishment: A Balanced Examination, which is now in its second edition, as well as numerous law review articles and commentaries on the death penalty and other criminal law issues facing the justice system. In addition to his non-fiction books about capital punishment, Professor Mandery has written three novels: Q: A Novel, First Contact (Or It’s Later Than You Think) – Parrot Sketch Excluded, and Dreaming of Gwen Stefani; two short stories: The Christmas Miracle Event and The Son Also Rises; and a non-fiction book The Campaign: Rudy Giuliani, Ruth Messinger, Al Sharpton and the Race to be Mayor of New York City, which was published in paperback as Eyes on City Hall.

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Article Preview: Money Makes All the Difference: Why Corporate Defendants Are Not Entitled to the Sixth Amendment Jury Trial Right’s Full Protection by Allison Reuter

Contributing Editor: Kevin Mortimer

Personal interests and motivations differ from person to person. The consequences of a criminal conviction are life-altering and may include moral condemnation, retribution, and incarceration.

Corporations, on the other hand, typically have one motivation: maximizing profit. Corporations, with their “vast size, wealth, and power,” do not possess a conscience. They will never face the moral condemnation, imprisonment, or death penalty that so many human beings fear. Rather, corporations face criminal fines that are often treated as “a mere cost of business or a slap on the wrist.” These fines do not serve the purpose of moral condemnation or retribution, but rather serve mere regulatory functions.

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Contributor Profile: The Honorable William G. Young

Contributing Editor: Kevin Mortimer

The Honorable Judge William G. Young, speaker at New England Law Review’s Fall 2013 Symposium, is a United States Federal Judge for the District of Massachusetts. A native of Huntington, New York, Judge Young received his A.B., magna cum laude, from Harvard University in 1962, served our nation as a United States Army Captain from 1962 to 1964, and earned his LL.B. from Harvard Law School in 1967.

Following his graduation, Judge Young served as a law clerk to the Honorable Raymond S. Wilkins of the Massachusetts Supreme Judicial Court (1967–1968), Special Assistant to the Massachusetts Attorney General (1970–1972), and Chief Counsel to Governor Francis W. Sargent (1972–1974). After serving on the Massachusetts Superior Court for eight years, President Ronald Reagan nominated Judge Young to a seat on the United States District Court for the District of Massachusetts in March 1985. Judge Young went on to serve as Chief Judge from 1999 to 2005.

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New England Law Review Volume 49 Associate Members

The New England Law Review is proud to announce its membership selection for Volume 49:

Justin Amos

Brandon Arey‎

Nicholas Baran

Zachary Blaes

Shannon Boyne

Kathleen Brekka

Sara Conway‎

Robin Craig

Lauren DeMatteo

Tanya Dennis

Kasey Emmons

Ryan Goodhue

Cynthia Hahne

John Kulevich

Jeffrey Marvin

Aleah McGraw

Gregory Mosher

Amy Robinson

Christine Vana

Conor Walsh

Aysha Warsi

Cody Zane

Click on each Associate name above to learn a little about each member.

Congratulations to you all! We look forward to working with you.

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On Remand has taken to the Blogs!

On July 26h, 2014, the New England Law Review launched its Editor Blog, the newest component of On Remand.

Upcoming blogs will be written by Editors of the New England Law Review, and commentary will be moderated by the Executive Online Editor. The goal of our Editor Blog is to promote our authors, upcoming content in both the print publication and On Remand, keep readers in touch with our publication process, happenings within the Law Review, and other news-worthy commentary.

We hope that you’ll follow our blog and join in the commentary!

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In Memoriam: Dan Markel (1972-2014)

by: Jordan Singer

Those inside and outside the legal academy are still coming to terms with the sudden and tragic loss of Florida State University law professor Dan Markel, who was shot and killed at his Tallahassee home on Friday. Dan touched the lives of hundreds of students and colleagues. I was fortunate to know him since law school, and wanted to share some (admittedly scattered) memories of a friend lost too soon.

Even as a 1L, when most of us felt uncertain and trembling about our career decisions (or even just making it through the next class), Dan carried a certain unusual confidence. In criminal law, he argued in favor of sending people to “virtue schools.” He lugged his old Macintosh laptop to all classes, dragging the plug carefully across the floor behind his classmates’ chairs. On Saturday afternoons after synagogue, he was known to offer friends a mean vegetarian chopped liver. He was a character, and a sincere one.

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Media and Transitional Justice: A Complex, Understudied Relationship

by: Lisa Laplante

According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.

The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.

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Privacy and the Surveillance State

According to a recent New York Times/CBS News poll, Americans by a large margin favor installing video surveillance devices in public places in order to provide greater security, with 78 percent of participants saying such surveillance is a good idea.

The poll was taken in the wake of the bombings in Boston on Marathon Monday and the results likely reflect the very real anxiety that such horrific events can produce. The positive reaction to greater surveillance is natural and understandable. But that does not necessarily mean that it will lead to sound public policy.

It remains that it is always easier to give away someone else’s privacy interests, especially hypothetically. Most people cannot imagine ever being the target of government surveillance–for them, the potentially ubiquitous video recording devices will be aimed at someone else.

That is fine as far as it goes, but the fact is that, under the Fourth Amendment doctrine for determining whether you have a protectable privacy right as against the government, the Supreme Court has repeatedly said that any expectation of privacy you assert must be objectively reasonable. We all do lots of things in public that we assume to be private–like talking on cell phones, text messaging, and even having a conversation with the person walking next to you, and believe the assumption to be reasonable because we do not really expect anyone nearby actually to listen to what we are saying or texting. But the fact that someone could do so, according to the Court, eliminates any true expectation of privacy. And even if that were not the case, could we say any of these communications reasonably should be deemed private when the government has the capacity to record and review all of them?

It could be argued that the problem lies not in our actual expectations but in Fourth Amendment doctrine itself. But despite noises from some justices in recent years—like Justice Sotomayor’s concurring opinion in the GPS case from last year, United States v. Jones—it’s far from clear that a major doctrinal shift is coming.

What is interesting, though, is that just as we seem willing to allow the government greater surveillance capabilities, we balk at the potential of new technology like Google Glasses to allow people to accomplish a similar end, by surreptitiously taking photos and short videos of anyone who happens to be nearby. Perhaps it is the fact that this technology allows our privacy to be invaded without our knowledge or consent that so bothers us. Whatever the reason, legislators in many state and local governments have begun exploring efforts to regulate these Google devices, which are not yet on the market.

Such regulation would seem to indicate that people are at least somewhat concerned to maintain some degree of privacy in public. But more than anything it reveals our ambivalence about privacy. Trading privacy for security seems like good policy to many, but it’s worth remembering that the constitutional expectation of privacy test historically has functioned as a one-way ratchet, with the scope of privacy as against the government continually being diminished as it becomes more difficult to maintain that expectations of privacy are reasonable.

Lawrence Friedman

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Reflecting on Gideon at 50

This month marks the 50th anniversary of Gideon v. Wainwright, the Supreme Court’s celebrated decision establishing the constitutional right to counsel for indigent criminal defendants. The occasion provides much to commemorate, but also reminds us how far there is to go. Indeed, it has become commonplace to note that “Gideon’s Trumpet” (the title to the wonderful book by Anthony Lewis, who just passed way) has been “muted” by widespread violations of the right to counsel. Blame rests primarily with persistent underfunding of the defense function and the excessive caseloads that result. An assembly line of routinized pleas, in which lawyers engage in little or no advocacy on behalf of their clients, too often is the norm in courthouses across the country.

The extent of the problem is well-documented. According to the Constitution Project’s exhaustive study, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel, underfunded and overworked public defenders:

“[A]re constantly forced to violate their oaths as attorneys because their caseloads make it impossible for them to practice law as they are required to do according to the profession’s rules. They cannot interview their clients properly, effectively seek their pretrial release, file appropriate motions, conduct necessary fact investigations, negotiate responsibly with the prosecutor, adequately prepare for hearings, and perform countless other tasks that normally would be undertaken by a lawyer with sufficient time and resources.”

Nor is the problem new. Ever since Gideon was rendered, a parade of studies has documented continuous underfunding of indigent defense services and the problems that result. And while each report provides its own perspective, invariably the conclusion is the same: criminal defendants are represented too often by lawyers–whether public defender, appointed counsel, or otherwise–whose capacity to render adequate representation is severely limited. As Stephen Bright, President of the Southern Center for Human Rights, has recently stated, “The representation received by most poor people accused of crimes–if they receive any at all–is a far cry from the constitutional requirement of ‘the guiding hand of counsel at every step in the proceedings'” contemplated by Gideon and its progeny.

Changing course after decades of neglect is not easy, although important efforts at reform are underway. They include litigation to produce greater compliance with Gideon’s demands. Currently pending before the Supreme Court of Florida, for example, is a case that, if successful, will permit public defenders in Miami-Dade County to decline new appointments and to withdraw from existing ones when caseloads, which can exceed 500 cases per attorney, become intolerable. Other efforts include promoting the independence of defense lawyers through the creation of statewide indigent defense commissions. New Mexico’s voters, for instance, recently approved a constitutional amendment creating an independent commission to oversee the provision of defense services to indigent clients and to promote a robust defense function. State bar associations have also taken a leading role. For example, Washington’s highest court recently adopted recommendations authored by the state’s bar association to cap caseloads at levels that, while still high, comply with national recommendations. Such efforts make meaningful contributions and must be encouraged.

Lasting solutions, however, will require resetting the political calculations that drive funding decisions, which in turn depend upon raising and sustaining public consciousness about the critical importance of adequate defense. Here, some feint glimmers of hope can be detected. For example, a new award-winning documentary that will premiere this summer on HBO, Gideon’s Army, tracks the stories of three brave public defenders in the Deep South who fight for justice for their clients despite the long odds against them. Also profiled in the film is an innovative Atlanta-based organization, called Gideon’s Promise, which works with public defense organizations and others to train and support frontline defenders. Other notable efforts to build public awareness include a new film by the Constitution Project narrated by Martin Sheen, Defending Gideon, and recent books on the importance of effective criminal defense (including Amy Bach’s excellent investigative account detailing the failings of the criminal justice process, Ordinary Injustice: How America Holds Court, and the just released book on Gideon itself, Chasing Gideon: The Elusive Quest for Poor People’s Justice by Karen Houppert).

Time will tell whether these and other efforts can change the narrative about Gideon‘s legacy. Optimists will view them as part of the arc toward ensuring a meaningful right to counsel, while pessimists may see them as part of the same story often retold. But all should agree that the time is long past to make Gideon‘s promise a reality.

Tigran Eldred

Posted in Eldred, Faculty Blog, Gideon, Right to Counsel | 1 Comment

Stakes are High for Abbas’s Statehood Gamble

Earlier today, Palestinian Authority President Mahmoud Abbas announced his intention to press ahead with a bid for UN affirmation of the statehood of Palestine. He recalled last year’s unsuccessful application for UN membership, and has chosen instead to seek a General Assembly resolution recognizing Palestine’s Observer Mission as that of a state observer, as opposed to its current status as an observer “entity,” as I predicted last fall.

Abbas is taking a huge gamble.

While he is very likely to receive the General Assembly affirmation he seeks, he risks losing hundreds of millions of dollars in U.S. aid, particularly having announced this intention prior to November’s U.S. presidential election. He may be able to mitigate that risk by not pushing for the adoption of a resolution by the General Assembly (GA) until after the election. At the same time, he has made clear that he expects a resolution affirming Palestinian statehood to be adopted during the present GA session, which runs until next September.

Major developments have occurred in the past year with respect to the question of Palestinian statehood. The most significant development since the November 2011 admission of Palestine into the United Nations Education, Scientific, and Cultural Organization (“UNESCO”) was the release of a statement earlier this year by the Chief Prosecutor of the International Criminal Court by which he essentially punted the issue of Palestinian statehood to the political organs of the UN and the ICC Assembly of States Parties.

One of the more sensitive issues implicated by Palestine’s UN bid is the question of whether Palestine can consent to the exercise of ICC jurisdiction over conduct that took place in Gaza during Operation Cast Lead–the 2008-09 armed conflict between Israel and Hamas. Article 12(3) of the ICC Statute allows for a “State which is not a Party to this Statute” to accept the exercise of the Court’s jurisdiction over crimes committed by its nationals or within its territory.

After the Palestinian Authority lodged its declaration with the ICC Registrar, the ICC Prosecutor reported that he was examining “first, whether the declaration accepting the exercise of jurisdiction by the Court meets statutory requirements, and second, whether crimes within the Court’s jurisdiction have been committed.” The phrase “statutory requirements” presumably includes the question of whether or not Palestine is a “state” for the purposes of Article 12(3).

On April 3, 2012, the ICC Prosecutor released a statement referring, inter alia, to the practice of the UN Secretary-General as treaty depositary. The statement also implied that his office, for the moment, would not be considering allegations of crimes committed in Palestine.

The Prosecutor’s reference to the treaty practice of the United Nations may add some weight to the significance of the UNESCO vote. As with UN membership, the issue of treaty participation is distinct from the question of statehood. Negotiating states can decide to make treaty participation available to entities other than fully independent states. Even where the text of a treaty limits participation to states (as does the ICC Statute), there may be a grey zone in which the treaty depositary is afforded a degree of discretion. On this latter point, the Prosecutor’s statement refers to an understanding adopted by the General Assembly at its 2202nd plenary meeting on 14 December 1973.

In the 1970s, the UN Secretary-General, concerned about purported treaty actions by entities whose status in international law was unclear, brought this issue to the attention of the General Assembly. The General Assembly adopted an understanding that “the Secretary-General, in discharging his functions as depositary of a convention with an ‘all States’ clause, will follow the practice of the Assembly in implementing such a clause and, whenever advisable, will request the opinion of the Assembly before receiving a signature or an instrument of ratification or accession.” The Prosecutor essentially used this understanding as a justification for placing the issue before the political organs of the United Nations.

However, the Summary of Practice of the Secretary‐General as Depositary of Multilateral Treaties, to which the Prosecutor cites, also includes reference to the so-called
“Vienna formula.” The Vienna formula is drawn from the Vienna Convention on the Law of Treaties. According to Article 81 of that instrument, “[t]he present Convention shall be open for signature by all States Members of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or parties to the Statute of the International Court of Justice, and by any other State invited by the General Assembly of the United Nations to become a party to the Convention . . . .”

The Summary of Practice seems to indicate that the Secretary-General will only seek the guidance of the General Assembly where a purported state does not fall within this formula (i.e. that a treaty open to participation by “all states” will presumably be open to any purported state that falls within the Vienna formula). Following its admission into UNESCO, a specialized agency of the United Nations, Palestine arguably falls within the Vienna formula. Admittedly, however, UN practice on this point is somewhat ambiguous.

In any event, if the General Assembly does indeed affirm the statehood of Palestine, it would be very difficult for the ICC Prosecutor to decline to investigate the allegations of international crimes committed during Operation Cast Lead, as alleged, for example, in the Report of the United Nations Fact Finding Mission on the Gaza Conflict.

John Cerone

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