Center on the Administration of Criminal Law

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The Center on the Administration of Criminal Law is a think-tank dedicated to the promotion of good government and prosecution practices in criminal matters. Its work has been the subject of a feature story in the Associated Press. [1]

Contents

History and mission

The Center was established in June 2008 at New York University School of Law. [2] The Center is apolitical and seeks to apply its experience and expertise in criminal justice matters, as well as its empirical research, to improve the administration of criminal justice. The Center analyzes important issues in criminal law or having implications for the administration of criminal law. In particular, the Center focuses on the exercise of power and discretion by prosecutors.

The Center accomplishes its mission in three areas: academia, litigation, and participating in public policy and media debates. The Center is the first organization dedicated to defining good government practices in criminal prosecutions through this multi-pronged strategy.

Academia

The Center's academic component gathers empirical research, publishes scholarship, and organizes and hosts conferences and symposia.

Annual conference

In addition to hosting various conferences and events throughout the year, the Center hosts one annual major conference on criminal prosecution, choosing a different substantive or procedural focus each year:

DateTitleConference Synopsis
May 8, 2009Regulation By ProsecutorsFocused on the regulation of private industry by criminal prosecutors. [3] Keynote address was delivered by James B. Comey, former Deputy Attorney General of the United States and United States Attorney for the Southern District of New York. A forthcoming book, Prosecutors In the Boardroom: Using Criminal Law to Regulate Corporate Conduct, made up of papers contributed by scholars who participated in the conference will be published by New York University Press. [4]
April 23, 2010Allocating Prosecutorial Power: How Prosecutors Compete, Cooperate and ClashFocused on the inter- and intra-jurisdictional cooperation and competition among criminal prosecutors. [5] Keynote address was delivered by Patrick J. Fitzgerald, the United States Attorney for the Northern District of Illinois.
March 25, 2011Policing, Regulating, and Prosecuting CorruptionWill focus on public corruption.

Litigation

The Center's litigation component uses the Center's research, experience, and expertise to litigate criminal cases or cases having implications for the administration of criminal law, particularly in cases in which the exercise of power and discretion by prosecutors raises substantive legal issues. A core element of the Center's litigation practice is the filing of amicus briefs. The Center litigates cases in all courts, federal and state, and at all levels, including in the Supreme Court of the United States. In fact, in November 2008, the Supreme Court granted certiorari in the first case in which the Center filed a brief after its founding, Abuelhawa v. United States. [6]

Cases

Representative cases the Center has participated in as amicus curiae include:

Abuelhawa v. United States -- Supreme Court of the United States—The Center filed an amicus brief on the merits on behalf of the defendant. [7] The case involved whether a prosecutor should charge a defendant with a felony for using a cell phone to buy drugs solely for personal use under a statute targeting the use of a "communications device" to "facilitat[e]" a narcotics distribution. The Center previously had filed an amicus brief in support of a petition for writ of certiorari and the Supreme Court granted certiorari on November 14, 2008. On May 26, 2009, in a unanimous opinion, the Court agreed with the Center that the defendant should prevail. [8] The Court rested its decision in part on statutory history and Justice Department charging policy, both subjects of the Center's brief.

Colon v. New York -- Court of Appeals, State of New York—In this case, the Center filed an amicus brief proposing a new, clearer test for determining when a tacit agreement exists between a prosecutor and a cooperating witness to provide benefits to the witness in exchange for testifying against a defendant. [9] On November 19, 2009, the Court sided with the Center in a unanimous opinion. [10]

Pottawattamie County v. McGhee -- Supreme Court of the United States—The Center filed an amicus brief on behalf of the respondents, who spent nearly 20 years in prison after prosecutors fabricated evidence to frame them for a crime they did not commit. The Center's brief argued that, like law enforcement agents, prosecutors should receive qualified rather than absolute immunity for unconstitutional actions they take in their investigative capacity. [11] The case was argued on November 4, 2009. During the argument, Justice Sotomayor questioned the Deputy Solicitor General regarding studies that were cited in the Center's brief and that show that, as a matter of routine, prosecutors are not sanctioned for improper conduct. [12]

Carachuri-Rosendo v. Holder -- Supreme Court of the United States—In this case, the Center filed an amicus brief on behalf of the petitioner, addressing whether immigration courts can treat second or subsequent misdemeanor convictions as recidivist felonies despite a state prosecutor's choice to decline felony charges and the fact that the individual was not actually convicted as a recidivist. in support of a petition for writ of certiorari. The Center's brief argued that circuit court decisions allowing such treatment improperly interfere with the basic exercise of prosecutorial discretion, undermine state interests in the proper and equitable administration of criminal justice, and can lead to a violation of the right to a jury trial. [13] The Center had previously written an amicus brief in support of the petition for writ of certiorari and the Supreme Court granted certiorari on December 14, 2009. On June 14, 2010, in a unanimous opinion, the Court sided with the Center. [14] The Court rested its decision in part on Justice Department charging policy, a subject first and most extensively discussed in the case in the Center's brief.

United States v. Stevens -- Supreme Court of the United States-The Center filed an amicus brief in support of the United States in its prosecution of a defendant convicted at trial of selling videos of pit bulls engaging in heinous, violent dogfights and attacks on other animals. Sitting en banc, and over a three-judge dissent, the United States Court of Appeals for the Third Circuit found the applicable statute to be facially unconstitutional under the First Amendment. The Center's brief argued that the lower court erred in its holding because the applicable statute reaches only what amounts to crime-scene photographs and videos that are exploited for commercial gain and lack any serious artistic or other value. [15] The case was argued on October 7, 2009. On April 20, 2010, the Court ruled for the defendant. [16] In his dissenting opinion, Justice Alito cited and quoted the Center's brief.

Public policy

The Center's public policy and media component seeks to improve public dialogue on criminal justice matters in various ways, including testifying before public officials.

Congressional testimony

The Center's Faculty Director, Professor Rachel Barkow, testified before the United States Senate Judiciary Committee regarding the implications of the Supreme Court's decision in Blakely v. United States. [17] She also testified before the United States Sentencing Commission and made recommendations for reforming the federal sentencing system. Professor Barkow recommended that the Commission keep the current advisory Guidelines framework, reconsider the use of acquitted conduct to increase sentences, reevaluate its decision to set drug trafficking guideline ranges around the mandatory minimums set by Congress, and prioritize its empirical research and data analysis in setting the agenda for itself and Congress, particularly by engaging in fiscal-cost and racial-impact forecasting of changes in sentencing law, evidence-based research about what works and what does not in fighting crime and curbing recidivism, and studying the relationship between prosecutorial practices and federal sentencing outcomes. [18]

The Center's Executive Director, Anthony Barkow, testified before the United States House of Representatives Subcommittee on Commercial and Administrative Law regarding proposed legislation that would prohibit former federal prosecutors from serving as or for corporate monitors in matters that they investigated or prosecuted when in government service. [19]

Media

The Center addresses public policy via the publishing of op-ed pieces, including pieces in The Washington Post, [20] The Boston Herald, [21] Forbes, [22] and on CNN.com. [23] In addition, Executive Director Anthony Barkow has been interviewed numerous times on various criminal law matters in print, television, and on the radio including appearances on NBC Nightly News with Brian Williams [24] and BBC World News. [25]

Related Research Articles

Gideon v. Wainwright, 372 U.S. 335 (1963), was a landmark U.S. Supreme Court decision in which the Court ruled that the Sixth Amendment of the U.S. Constitution requires U.S. states to provide attorneys to criminal defendants who are unable to afford their own. The case extended the right to counsel, which had been found under the Fifth and Sixth Amendments to impose requirements on the federal government, by imposing those requirements upon the states as well.

Blakely v. Washington, 542 U.S. 296 (2004), held that, in the context of mandatory sentencing guidelines under state law, the Sixth Amendment right to a jury trial prohibited judges from enhancing criminal sentences based on facts other than those decided by the jury or admitted by the defendant. The landmark nature of the case was alluded to by Justice Sandra Day O'Connor, who characterized the decision as a "Number 10 earthquake".

Holmes v. South Carolina, 547 U.S. 319 (2006), was a decision by the United States Supreme Court involving the right of a criminal defendant to present evidence that a third party instead committed the crime. The Court vacated the rape and murder conviction in South Carolina of a man who had been denied the opportunity to present evidence of a third party's guilt, because the trial court believed the prosecutor's forensic evidence was too strong for the defendant's evidence to raise an inference of innocence. The Court ruled unanimously that this exclusion violated the right of a defendant to have a meaningful opportunity to present a complete defense, because the strength of a prosecutor's case had no logical relationship to whether a defendant's evidence was too weak to be admissible.

Sell v. United States, 539 U.S. 166 (2003), is a decision in which the United States Supreme Court imposed stringent limits on the right of a lower court to order the forcible administration of antipsychotic medication to a criminal defendant who had been determined to be incompetent to stand trial for the sole purpose of making them competent and able to be tried. Specifically, the court held that lower courts could do so only under limited circumstances in which specified criteria had been met. In the case of Charles Sell, since the lower court had failed to determine that all the appropriate criteria for court-ordered forcible treatment had been met, the order to forcibly medicate the defendant was reversed.

Wiggins v. Smith, 539 U.S. 510 (2003), is a case in which the United States Supreme Court spelled out standards for "effectiveness" in the constitutional right to legal counsel guaranteed by the Sixth Amendment. Previously the court had determined that the Sixth Amendment included the right to "effective assistance" of legal counsel, but it did not specify what constitutes "effective", thus leaving the standards for effectiveness vague. In Wiggins v. Smith, the court set forth the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases Guideline 11.8.6.(1989), as a specific guideline by which to measure effectiveness and competence of legal counsel.

Kennedy v. Louisiana, 554 U.S. 407 (2008), is a landmark decision by the Supreme Court of the United States which held that the Eighth Amendment's Cruel and Unusual Punishments Clause prohibits the imposition of the death penalty for a crime in which the victim did not die and the victim's death was not intended.

Barefoot v. Estelle, 463 U.S. 880 (1983), is a United States Supreme Court case. The Court ruled on the admissibility of clinical opinions given by two psychiatrists hired by the prosecution in answer to hypothetical questions regarding the defendant's future dangerousness and the likelihood that he would present a continuing threat to society in this Texas death penalty case. The American Psychiatric Association submitted an amicus curiae brief in support of the defendant's position that such testimony should be inadmissible and urging curtailment of psychiatric testimony regarding future dangerousness and a prohibition of such testimony based on hypothetical data.

Griffin v. California, 380 U.S. 609 (1965), was a United States Supreme Court case in which the Court ruled, by a 6–2 vote, that it is a violation of a defendant's Fifth Amendment rights for the prosecutor to comment to the jury on the defendant's declining to testify, or for the judge to instruct the jury that such silence is evidence of guilt.

United States v. Stevens, 559 U.S. 460 (2010), was a decision by the Supreme Court of the United States, which ruled that 18 U.S.C. § 48, a federal statute criminalizing the commercial production, sale, or possession of depictions of cruelty to animals, was an unconstitutional abridgment of the First Amendment right to freedom of speech.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test. While the court ruled that the then-common practice of submitting these reports without testimony was unconstitutional, it also held that so called "notice-and-demand" statutes are constitutional. A state would not violate the Constitution through a "notice-and-demand" statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection.

<span class="mw-page-title-main">Rachel Barkow</span> American legal scholar

Rachel Elise Barkow is an American professor of law at the New York University School of Law. She is also faculty director of the Center on the Administration of Criminal Law. Her scholarship focuses on administrative and criminal law, and she is especially interested in applying the lessons and theory of administrative law to the administration of criminal justice. In 2007, Barkow won the Podell Distinguished Teaching Award at NYU. In the fall of 2008, she served as the Beneficial Visiting Professor of Law at Harvard Law School.

Linda Anita Carty is a Kittitian-American former schoolteacher who is on death row in Texas. In February 2002, she was sentenced to death for the abduction and murder in 2001 of 20-year-old Joana Rodriguez in order to steal Rodriguez's newborn son. Carty claimed she was framed by her co-defendants who were drug dealers because she had previously been an informant.

United States v. Jones, 565 U.S. 400 (2012), was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle's movements constitutes a search under the Fourth Amendment.

Deck v. Missouri, 544 U.S. 622 (2005), was a United States Supreme Court case that dealt with the constitutionality of shackling a prisoner during the sentencing phase of a trial. In a 7–2 opinion delivered by Justice Breyer, the court held that it is against due process, a right prescribed by the 5th and 14th Amendments, to shackle a defendant in the sentencing portion of a trial unless the shackling relates to a specific defendant and certain state interests.

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), was a decision by the Supreme Court of the United States involving copyright law. The Court held that failure to register a copyright under Section 411 (a) of the United States Copyright Act does not limit a Federal Court's jurisdiction over claims of infringement regarding unregistered works.

<i>Florida v. Harris</i> 2013 United States Supreme Court case

Florida v. Harris, 568 U.S. 237 (2013), was a case in which the United States Supreme Court addressed the reliability of a dog sniff by a detection dog trained to identify narcotics, under the specific context of whether law enforcement's assertions that the dog is trained or certified is sufficient to establish probable cause for a search of a vehicle under the Fourth Amendment to the United States Constitution. Harris was the first Supreme Court case to challenge the dog's reliability, backed by data that asserts that on average, up to 80% of a dog's alerts are wrong. Twenty-four U.S. States, the federal government, and two U.S. territories filed briefs in support of Florida as amici curiae.

Cone v. Bell, 556 U.S. 449 (2009), was a case in which the United States Supreme Court held that a defendant was entitled to a hearing to determine whether prosecutors in his 1982 death penalty trial violated his right to due process by withholding exculpatory evidence. The defendant, Gary Cone, filed a petition for postconviction relief from a 1982 death sentence in which he argued that prosecutors violated his rights to due process under the Fourteenth Amendment by withholding police reports and witness statements that potentially could have shown that his drug addiction affected his behavior. In an opinion written by Justice John Paul Stevens, the Supreme Court held that Cone was entitled to a hearing to determine whether the prosecution's failure to disclose exculpatory evidence violated Cone's right to due process; the Court noted that "the quantity and the quality of the suppressed evidence lends support to Cone’s position at trial that he habitually used excessive amounts of drugs, that his addiction affected his behavior during his crime spree". In 2016, Gary Cone died from natural causes while still sitting on Tennessee's death row.

Lafler v. Cooper, 566 U.S. 156 (2012), was a United States Supreme Court case in which the Court clarified the Sixth Amendment standard for reversing convictions due to ineffective assistance of counsel during plea bargaining. The Court ruled that when a lawyer's ineffective assistance leads to the rejection of a plea agreement, a defendant is entitled to relief if the outcome of the plea process would have been different with competent advice. In such cases, the Court ruled that the Sixth Amendment requires the trial judge to exercise discretion to determine an appropriate remedy.

Napue v. Illinois, 360 U.S. 264 (1959), was a United States Supreme Court case in which the Court held that the knowing use of false testimony by a prosecutor in a criminal case violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution, even if the testimony affects only the credibility of the witness and does not directly relate to the innocence or guilt of the defendant.

<i>National Coalition for Men v. Selective Service System</i> U.S. court case ruling that male-only military conscription is unconstitutional

National Coalition for Men v. Selective Service System was a court case that was first decided in the United States District Court for the Southern District of Texas on February 22, 2019, declaring that requiring men but disallowing women to register for the draft for military service in the United States was unconstitutional. The ruling did not specify which actions the government needed to take to resolve the conflict with the constitution. That ruling was reversed by the Fifth Circuit.

References

  1. ↑ "Ex-terrorism prosecutor flags flaws at tribunal" . Retrieved 22 December 2008.
  2. ↑ "NYU's new Center on the Administration of Criminal Law" . Retrieved 22 December 2008.
  3. ↑ "Regulation By Prosecutors".
  4. ↑ "Prosecutors In the Boardroom: Using Criminal Law to Regulate Corporate Conduct".
  5. ↑ "Allocating Prosecutorial Power".
  6. ↑ "Abuelhawa v. United States - Ceriorari Granted" (PDF). Retrieved 22 December 2008.
  7. ↑ "Abuelhawa v. United States - Center's Amicus Brief" (PDF). Archived from the original (PDF) on 2011-06-14.
  8. ↑ "Abuelhawa v. United States - Opinion" (PDF). Archived from the original (PDF) on 14 June 2011. Retrieved 17 December 2009.
  9. ↑ "Colon v. New York - Center's Amicus Brief" (PDF). Archived from the original (PDF) on 2011-06-14.
  10. ↑ "Colon v. New York - Opinion" (PDF). Retrieved 17 December 2009.
  11. ↑ "Pottawattamie County v. McGhee - Center's Amicus Brief" (PDF). Archived from the original (PDF) on 2011-06-14.
  12. ↑ "Pottawattamie County v. McGhee - Oral Argument Transcript" (PDF). Archived from the original (PDF) on 28 May 2010. Retrieved 17 December 2009.
  13. ↑ "Carachuri-Rosendo v. Holder - Center's Amicus Brief" (PDF). Archived from the original (PDF) on 2012-02-25.
  14. ↑ "Carachuri-Rosendo v. Holder - Opinion" (PDF). Retrieved 29 July 2010.
  15. ↑ "United States v. Stevens - Center's Amicus Brief" (PDF). Archived from the original (PDF) on 2012-02-25.
  16. ↑ "United States v. Stevens - Opinion" (PDF). Retrieved 29 July 2010.
  17. ↑ "Testimony of Professor Rachel Barkow". Archived from the original on 21 September 2008. Retrieved 22 December 2008.
  18. ↑ "United States Sentencing Commission Public Hearing Agenda". Archived from the original on 2010-02-11.
  19. ↑ "Hearing on Transparency and Integrity in Corporate Monitoring". Archived from the original on 2009-12-02.
  20. ↑ "In Kaine's Budget Plan, a Reality Check for Prisons". The Washington Post. January 4, 2009.
  21. ↑ "Sentencing Laws Needn't Drain Us". The Boston Herald. December 6, 2008.
  22. ↑ "How Health Care Can Reduce Crime". Forbes. June 22, 2010.
  23. ↑ "Commentary: Sotomayor the Crime Fighter". CNN. July 16, 2009.
  24. ↑ "Letterman Confession No Laughing Matter". Archived from the original on 2003-12-07.
  25. ↑ "Anthony Barkow Speaks to the BBC about Allen Stanford's Civil Charges". YouTube . Archived from the original on 2021-12-15.
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