ABA Approves Model Workplace Policy on Employer Responses to Domestic Violence

(Daniel Schwartz) One of the roles that I relish is being a member of the American Bar Assocation’s House of Delegates for several terms now.   The ABA adopts certain policies at its Annual Meeting and uses its bully-pulpit to try to get such policies enacted at the federal, state or local level.At this year’s meeting, which took place in Boston over the last few days, the House considered Resolution 112A. The resolution itself is fairly short but stated the following:

RESOLVED, That the American Bar Association adopts the Model Workplace Policy on Employer Responses to Domestic Violence, Sexual Violence, Dating Violence and Stalking (“Model Policy”), dated August 2014.

FURTHER RESOLVED, That the American Bar Association encourages all employers, public  and private, including governments, law schools and the legal profession, to enact formal policies on the workplace responses to domestic violence, dating violence, sexual violence, and/or stalking violence which address prevention and remedies, provide assistance to employees who experience violence, and which hold accountable employees who perpetrate violence.

In plain English, the ABA adopted a Model Workplace Policy that has been developed by several groups for use in workplaces.  You can find it here.

So why should employers care? Well, for one, Connecticut already has a law that requires all employers to provide for domestic violence leave.  Adopting a policy like the type advocated by the ABA, can help achieve compliance with that law and also further the employer’s interests of making sure employees return to work quickly and are productive while theer.

Is the policy required? No.  And there is no civil liability that is attached to either having or not having the policy.  But an employer who does adopt it can illustrate that it takes the issues of domestic violence seriously and will encourage employees who are going through the process to speak up. As noted in the materials attached to the resolution, researchers have determined that victimization rates in the workplace are actually higher than in the general population.

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The Law and Economics of “The Purge”

(Matt Bodie) “The Purge” is the number one movie in America — by a healthy margin!  People are pretty surprised.  Perhaps it’s because it stars Jesseand Cersei.  Or perhaps it’s because of its concept.  As Box Office Mojo says: “The fact that The Purge wound up so much higher can be attributed to the movie’s unique, intriguing premise—what if all crime was legal for 12 hours once a year?”  You can check out the trailer here.

I haven’t seen the movie, but it seems to focus more on one particular home invasion than it does on the broader implications of its premise.  (Cf. “Panic Room.”)  But I want to focus on that frankly unbelievable premise.  First, what does it mean that there is no enforcement of the law during the twelve hours of the purge?  Do norms still exist?  The father in the trailer indicates that he has “no need” to engage in the atavistic free-for-all, because he has no violent urges to purge.  But is society endorsing those urges, or simply acknowledging they exist?  I’d be curious to know how the movie treats it.  (Of course, it looks like our heroes have to get violent to save themselves in the end, which is how most of these movies have their cake and eat it, too.)

My second question — and the basis for the somewhat silly title for my post — is whether the film’s premise has any tether in criminal law theory.  Basically, the idea is that the purge — or, The Purge — allows the nation’s criminals to beat up on each other for a night and kill each other off.  The lawlessness is justified by its overall effects — crime rates go down, unemployment goes down, the other 364.5 days are better.  I don’t know if a purer faceoff between consquentialist and deonotological theories could be devised.  Let’s assume that a lawless 12-hour period would reduce overall crime, and that the primary victims would be the criminals themselves.  Would that justify such a period?

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(When) Was Fingerprinting Unconstitutional?

(Will Baude) One of my main items of business during this blogging stint is to write about this month’s Supreme Court cases as the term wraps up.  So the first order of business is Monday’s cases.  I fear I don’t have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as “the most preempted law ever.”  And while a lot of people have written things about Maryland v. King, I thought I’d throw in my own thoughts.

I’m more sympathetic to the dissent’s reasoning than I expected to be.  When I first saw the case granted, I confidently predicted a reversal and I wasn’t even sure there would be a dissent.   But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine.  It’s common ground that the police can’t just go search your house or your off-site car or your gym locker without suspicion when you’ve been arrested, so it needs a story about why DNA is different.  And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.

That said, I don’t think Justice Scalia does a good job of distinguishing DNA from fingerprints.  As I read it, the dissent actually trots out three different arguments about why its view doesn’t forbid the routine fingerprinting of those who are arrested.

  1. Fingerprinting is not a search. (“The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question.”)  Possible, but Justice Scalia seems unwilling to actually commit to this argument, he just mentions it and moves on.
  2. Fingerprinting really is for identification purposes. (“Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).”)  Possible, but this argument relies heavily on computer databases that were only created in the late 1990s, and fingerprinting has been around for a lot longer than that.

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The Myth of the Trial Penalty?

(Dan Markel) Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this oneto the file. Almost every teacher of criminal procedure is aware of the idea of the “trial penalty,” which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.

Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it’s true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there’s a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.

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What’s an Acceptable Error Rate in Death Penalty Distributions? And Some Other Thoughts on The Jones Decision

(Dan Markel) The indispensable Doug “not that subway fugitive” Berman alerted me earlier today to the Jones v. Chappell opinion by the federal judge in California who struck down the Cal death penalty on the grounds that the insane amounts of delay between sentence and execution are violative of the Eighth Amendment’s ban on cruel and unusual punishments. (I have registered my retributivist and constitutional doubts about the death penalty before, but I haven’t been too enamored of the argument that wins the day in this case. Whether I revise my views, well, anything’s possible. I am after all getting older.)

Having worked my way through the opinion by Judge Cormac Carney (a GWB appointee), I imagine the outcome won’t stand on appeal to SCOTUS should it get there. That said, with Justice Kennedy as the swing vote deciding on California issues, you never know for sure. Moreover, Justice Breyer has in the past voiced concern about foot-dragging death penalty delays.

Regardless of when/if it gets struck down, the Carney opinion notes the following about error rates, which I found to be of profound interest. Specifically:

“Of the 748 inmates currently on California’s Death Row, more than 40 percent, including Mr. Jones, have been there longer than 19 years.”

“Of the 511 individuals sentenced to death between 1978 and 1997, 79 died of natural causes, suicide, 
or causes other than execution by the State of California.”

“For those that survive the extraordinary wait for their challenge to be both heard and decided by the federal courts, there is a substantial chance that their death sentence will be vacated. As of June 2014, only 81 of the 511 individuals sentenced to death between 1978 and 1997 had completed the post-conviction review process. Of them, 32 were denied relief by both the state and federal courts—13 were executed, 17 are currently awaiting execution, and two died of natural causes before the State acted to execute them. The other 49—or 60 percent of all inmates whose habeas claims have been finally evaluated by the federal courts—were each granted relief from the death sentence by the federal courts.”  But of those 49, the “State resentenced 10 of these individuals to death, thus starting anew the post-sentencing appeal process on the renewed sentences, though two have since died while on post-conviction review for the second time.” 

A few points here.

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Panel Recommends Suspension of Chicago Attorney

(Chicago Tribune) A state disciplinary commission is recommending that a Chicago attorney’s license be suspended for six months for conduct ranging from allegedly misleading clients to vulgar and offensive remarks directed at opposing counsel.

In its finding against David Alan Novoselsky, a hearing board for the Illinois Attorney Registration and Disciplinary Commission considered misconduct in four client matters, including an allegation that he referred to opposing counsel as a “slut.”

An ARDC administrator who conducted an investigation had recommended a yearlong suspension. But the board, after conducting a nine-day hearing, weighed Novoselsky’s lengthy law career, during which he has never been disciplined, as well as his volunteer work in the legal community and testimony from several judges about his “good character.”

The board instead recommended a six-month suspension, which includes completion of a professionalism seminar. The recommended punishment would require Novoselsky, 66, to notify clients and any court he has cases before of the suspension.

Novoselsky said Friday he intends to appeal the findings against him but declined to comment on the “merits of the matter.”

“I stand by my denials of any wrongdoing,” he said in an email.

Novoselsky noted that the panel found in his favor on several points, including that he didn’t lie to the ARDC or to the court, and didn’t fail to refund unearned fees to one client or make a false statement regarding where he would hold certain funds.

Ultimately any punishment would have to be approved by the Illinois Supreme Court, and he can practice law until then.

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