News Roundup

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There were several major criminal law stories this week, none of them especially cheery. Boston Marathon bomber Dzhokhar Tsarnaev had his sentencing hearing. The result was not in doubt, as a jury had already returned a death verdict. But the judge spoke, several victims spoke – and the defendant spoke, offering an apology that seemed sincere to some and rang hollow to others. CNN’s extensive coverage of the story is here. Obviously, apologies are better suited for things like hurting another person’s feelings than for things like killing and maiming innocent victims, but I for one am glad that Tsarnaev showed the decency and humanity to express regret.

In other news:

Speaking of apologies, can a judge require one as part of a criminal sentence? Or does that violate the defendant’s First Amendment rights? UCLA law professor Eugene Volokh discusses the issue and a recent case on point here.

South Carolina has no hate crime statute. Considerable attention remains focused on Charleston, South Carolina, where a white supremacist gunned down nine black churchgoers. In most states, the shooting would likely qualify as a hate crime, but South Carolina is one of only a few states that have no hate crime laws. The Huffington Post reports on efforts to change that here, while the New York Times reports that the shooter is likely to face federal hate crime charges here.

New report on capital cases that were dismissed or that resulted in acquittals. The Center for Death Penalty Litigation in Durham, which generally represents death row inmates in post-conviction proceedings, found 56 North Carolina cases from 1989 to 2015 in which a defendant was charged capitally but not convicted of any crime. The report is here. The thrust of it is that the death penalty is not being reserved for cases in which guilt is clear, with a variety of attendant costs. (I’m not aware of a formal response from the Conference of District Attorneys or any similar organization, but would be happy to post a link to any such document if one exists.)

Finally, prison conditions at home and abroad. At Sentencing Law & Policy, Professor Doug Berman notes that Justice Kennedy – the critical swing vote in so many of the Court’s decisions in recent years – has essentially asked for litigation over the constitutionality of the long-term use of solitary confinement. Meanwhile, the Marshall Project has an interesting series up about prisons in Germany, which take a totally different approach to incarceration than our prisons do.

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3 comments on “News Roundup

  1. As to a condition of probation being an apology, I have a different issue with it. It is not unusual for a judge to try to order my clients, especially my juvenile clients to do this. In situations in which my client contests guilt and there are decent appellate issues, I argue my client should not be required to apologize since that could be used against them in a retrial should one be granted. Are there any cases on this issue?

    I did have a “adult” case one time (client was 16) where the judge ordered my client to apologize for his actions to her. It was a district court trial. I refused to let him, since we were appealing de novo to superior ccourt. I don’t think there is any doubt wihen you have a de novo appeal of right that you should not be forced to make any admission.

    • I’m a police officer, so I don’t come at this from a lawyer’s perspective, but to me I feel like it’s almost a violation of a person’s 1st Amendment rights to mandate they say something that they may not mean. If a person genuinely doesn’t want to apologize, why force the issue? They’re either guilty or innocent, and an apology that’s not sincere won’t change things. I don’t think a judge should be able to compel someone to say something they don’t want to say in these situations, not just because of appellate concerns, but just from a practical standpoint of that individual’s rights to speak what they want to speak, or not speak.

  2. I’m with Christopher. A court-ordered apology is worthless.
    Now I have seen judges require defendants, particularly younger defendants, present a research paper on a topic germane to their crime (eg. how shoplifting harms stores/the public, potential health risk of drug use, etc.). I’m all aboard with that sort of creative sentencing. It forces a smidgen more of introspection that was probably given before the deed was done and at least has the potential to open the defendant’s eyes a bit.

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