posted
I am mulling over two different topics for a scholarly legal paper and would welcome comments about which one sounds more worthwhile.
Topic 1: Criminal Law Enforcement as a Civil Right
I'm interested in this topic from two different angles. The first is how characteristics of the victim affect both sentencing and the definition of the crime committed. For example, killing a child is an aggravating factor for murder in some states - in some states, it's sufficient basis for bringing capital charges. What does this say about how we value children v. adults? Or does the difference derive from what we think it says about the murderer? Another aspect that comes up is the impulse to bring lesser charges when a disabled person is killed by a family member. This brings into sharp relief the difference between focusing on attributes of the offender (i.e., their "compassion") and on the victim.
The paradigm example of crime enforcement as civil right is the lack of prosecution for murders of civil rights activists. In these cases, the knowledge that the state would not prosecute eliminated the deterrence value of the murder statute. I would like to focus, though, on situations where the deterrence value is not lowered. Is there something society should provide to victims of crimes beyond attempts to prevent such crimes?
There are two principle reasons for due process: accuracy, the idea that certain processes reach "better" results, and fairness, beyond what merely derives from a more accurate result. Feeling heard and included in the decision-making process has an inherent value in and of itself. Similarly, knowing that society condemns a wrong done to you has value outside the reduction in the chance that wrong will occur because of punishment.
I want to define that value. Obviously, this a very vague topic right now and I don't have anything close to a thesis.
Topic 2: Privatization of Public Spaces and the First Amendment
This idea was inspired by an incident in Silver Spring. The county government leased an entire block (both sides of the street) to a private company, who revitalized it, put in stores, and maintains the street and sidewalks. Both the street and sidewalks are open to the public under the terms of the lease. There's no question the downtown area has improved because of this. However, the private company has placed restrictions on what can be done there, including restrictions on photography.
I think most people agree that truly private property, even if open to the public, should generally be controllable by the owner or tenant. For example, few people think PETA picketers have to be allowed in front of the mil case in a corner grocery store.
Additionally, most people feel that public areas should have few restrictions on expression - content-neutral noise and obstruction of traffic regulations, but not much else.
In between these, however, are a variety of types of areas where the principle is less clear. The paper would propose a mechanism for setting the boundary between the two cases, including normative arguments and constitutional arguments. The ultimate thesis would be a multi-factor test to apply in these cases.
I haven't done a preemption check on either, but both are fluid enough that I'm sure I could stay within the general topic areas even if someone else is publishing on the topic.
Anyone who's braved through this really long post care to comment?
Posts: 26071 | Registered: Oct 2003
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posted
Well, I doubt you'd be surprised by *my* vote.
Here are a couple of very recent news stories that might pique your interest. (One is from the U.K., but it is a particularly disturbing example of the leniency angle when the term "mercy" gets used as a defense in a domestic homicide).
quote:Married for 65 years, they seemed the epitome of a loving couple. But shortly after this picture was taken, Herbert Powell stabbed his wife to death. He claimed it was to end her agony from arthritis. Here, their son tells a very different story...
***
While no one is sure of the provocation, it is known he beat his wife - who was virtually blind - with a rolling pin and stabbed her in the heart with a kitchen knife. He also slit their cat Digger's throat, and then placed a selection of photographs of the couple's two children in Irene's lifeless hands before fleeing the scene.
Last month, after admitting manslaughter on the grounds of diminished responsibility, Herbert Powell was sentenced to three years in prison. In court, he claimed he'd committed a 'mercy killing' because his wife wanted to die to escape the pain of her crippling arthritis.
The fact he'd already served 19 months in custody and was ruled not a danger to the public by the judge at Plymouth Crown Court meant he was able to walk free and return home.
This one is also disturbing. From Oregon. Two nurses who may have illegally "assisted" a suicide - or outright murdered a patient. Neither the employer nor the Oregon State Board of Nursing reported the matter to legal authorities. Except for this alternative newspaper in Portland, the press isn't exactly all over it either. Nurses' role in death probed
quote: For the past two years, the family of Hillsboro software engineer Wendy Melcher has believed that Melcher died from cancer.
What they didn’t know, until last week, was that four days before Melcher died in August 2005 two Portland-area nurses gave her massive amounts of drugs intended to cause her death. The drugs were administered in what the nurses would later call an assisted-suicide plan directed by Melcher.
The nurses have admitted to the Oregon State Board of Nursing that they administered doses of morphine and phenobarbital without informing Melcher’s physician. Oregon’s Death With Dignity Act — the only such law in the nation — allows assisted suicide but only with the assistance of a physician.
The nurses now are under investigation for possible criminal wrongdoing by state police and the Oregon attorney general after a former employee of the Oregon State Board of Nursing two weeks ago provided Gov. Ted Kulongoski information about the case.
Meanwhile, with the investigation in its beginning stages, members of Melcher’s family are questioning everything about Melcher’s death — including whether she really wanted to end her life.
I have a *lot* of info on this topic and people I could direct you to for more of the same.
Posts: 4344 | Registered: Mar 2003
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posted
I would love to read either paper, but the first one sounds the most intriguing.
Forgive me if I'm misunderstanding, but here are my additional thoughts on it:
Nearly everything in our constitution and our criminal process is designed around rights of the criminal. His right to due process, etc.
What would happen if the rights of the victim started being taken into consideration--his right to have the criminal caught, the case prosecuted.
How would that effect a case where, say, vital evidence was deemed inadmissable? Would the right of the victim to Law Enforcement, recognized as a right, have any sway towards creating a means whereby the man might still be tried?
Just my initial thoughts . . . but I like the first idea.
Posts: 1894 | Registered: Aug 2000
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quote:Well, I doubt you'd be surprised by *my* vote.
Considering you inspired this idea, it's not surprising.
The heart of my interest is defining the value in "knowing that society condemns a wrong done to you has value outside the reduction in the chance that wrong will occur because of punishment," maybe I need do a paper just on the "mercy" defense issue, possibly using it as a specific analysis on the concept that I would later expand to the more general sense I described above.
quote:Nearly everything in our constitution and our criminal process is designed around rights of the criminal. His right to due process, etc.
True - and this isn't by itself bad. Preventing improper use of the coercive power of the state is very necessary.
quote:What would happen if the rights of the victim started being taken into consideration--his right to have the criminal caught, the case prosecuted.
I think I'm going to avoid looking for any kind of assertable right - these would be aspirational rights for the most part. U.S. law has almost no provision for forcing a prosecution, and I'm not sure that's wrong. In essence, it gives every branch of government plus the people a chance to veto a criminal prosecution - a nice set of safeguards.
quote:How would that effect a case where, say, vital evidence was deemed inadmissable? Would the right of the victim to Law Enforcement, recognized as a right, have any sway towards creating a means whereby the man might still be tried?
I would love to come up with a meaningful remedy for illegal searches and interrogations other than exclusion, but so far I haven't been able to do so. I don't see this paper dealing with this issue at all, really, although it's certainly related (and puts in relief the competing interests of protecting people from exertions of government power and private power).
Posts: 26071 | Registered: Oct 2003
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posted
Option 2 sounds far more facinating to me. Not only that, it sounds like a more coherent concept then the first.
quote:The paper would propose a mechanism for setting the boundary between the two cases, including normative arguments and constitutional arguments. The ultimate thesis would be a multi-factor test to apply in these cases.
Love the idea of a proposed test; who knows if it might actually influence policy? Do you have ANY idea on the particulars of this test?
I might be biased though in that a very related incident happened in my state fairly recently, and even though the church won it made me feel like the principles were still alittle vague,
Again, two just sounds more fleshed out to me then one, and anything that makes the first amendment more tangible and inteligent to me is worth doing.
Posts: 14316 | Registered: Jul 2005
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posted
Both sound really interesting, but if I had to vote I think the second sounds more interesting.
Posts: 2437 | Registered: Apr 2005
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posted
They do both sound very interesting, but both also sound very broad. I was thinking "how is he going to cover all aspects of that in one legal paper?"
I guess I lean toward the first one, just because I didn't fully understand the true focus on the second one -- it just seemed too broad.
quote:The heart of my interest is defining the value in "knowing that society condemns a wrong done to you has value outside the reduction in the chance that wrong will occur because of punishment," maybe I need do a paper just on the "mercy" defense issue, possibly using it as a specific analysis on the concept that I would later expand to the more general sense I described above.
It would probably need to be narrowed as well. There are different factors in play when caregivers and/or family members kill someone as opposed to killings in a medical setting.
A few years ago, I had the opportunity to join a researcher to interview the prosecutor in the Orville Lynn Majors case. The county, a relatively poor one, needed a grant from the state to do the 1.5 million dollar investigation into the suspected killings at the Vermillion County Hospital. The hospital administration itself violated state regulations by failing to report a sharp increase in deaths at their facility for many months.
According to the prosecutor, the jury in the Majors case felt that one or more of the hospital administrators should have faced criminal charges. The reason that didn't happen?
Money - too expensive to prosecute another case like that one in this county.
Money can be a significant factor in the kinds of investigations required in going after medical professionals - so can facing the stonewalling of medical facilities who generally resist any intrusion of the criminal justice system into the medical arena, no matter how justified.
Neither of these is generally a factor in domestic homicides, however.
Posts: 4344 | Registered: Mar 2003
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quote:The heart of my interest is defining the value in "knowing that society condemns a wrong done to you has value outside the reduction in the chance that wrong will occur because of punishment," maybe I need do a paper just on the "mercy" defense issue, possibly using it as a specific analysis on the concept that I would later expand to the more general sense I described above.
It would probably need to be narrowed as well. There are different factors in play when caregivers and/or family members kill someone as opposed to killings in a medical setting.
A few years ago, I had the opportunity to join a researcher to interview the prosecutor in the Orville Lynn Majors case. The county, a relatively poor one, needed a grant from the state to do the 1.5 million dollar investigation into the suspected killings at the Vermillion County Hospital. The hospital administration itself violated state regulations by failing to report a sharp increase in deaths at their facility for many months.
According to the prosecutor, the jury in the Majors case felt that one or more of the hospital administrators should have faced criminal charges. The reason that didn't happen?
Money - too expensive to prosecute another case like that one in this county.
Money can be a significant factor in the kinds of investigations required in going after medical professionals - so can facing the stonewalling of medical facilities who generally resist any intrusion of the criminal justice system into the medical arena, no matter how justified.
Neither of these is generally a factor in domestic homicides, however.
Posts: 4344 | Registered: Mar 2003
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quote:Love the idea of a proposed test; who knows if it might actually influence policy? Do you have ANY idea on the particulars of this test?
Not yet, but I think it would focus on the perceptions of the public.
quote:I might be biased though in that a very related incident happened in my state fairly recently, and even though the church won it made me feel like the principles were still alittle vague,
I had forgotten about that case - it might mean it's too pre-empted to create a publishable paper on the subject.
quote:I guess I lean toward the first one, just because I didn't fully understand the true focus on the second one -- it just seemed too broad.
I think the first one is much less focused, actually, but I probably left out a lot of specifics in the second one that would make that evident.
quote:It would probably need to be narrowed as well. There are different factors in play when caregivers and/or family members kill someone as opposed to killings in a medical setting.
I would probably concentrate mostly on the domestic ones.
Posts: 26071 | Registered: Oct 2003
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posted
I find the second topic more interesting. (To the point that I'd love to read it if you choose to go that route.)
Posts: 6394 | Registered: Dec 1999
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posted
Both sound interesting but to me the first sounds more a political topic than a legal one. So I like #2.
Posts: 544 | Registered: Mar 2007
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