Tag Archives: Criminal law

Indefinite Detention, and Our Unlikely Ally in the Fight

At the close of the last year, President Obama signed into law the National Defense Authorization Act for 2012, which includes language that commentators claim, not unfairly, would permit the indefinite detention of even American citizens by a willing administration. The operative sections permit “detention under the law of war without trial until the end […]

The Death Penalty, Incremental Progress on the Avenue of Criminals, and Net Injustice

Responding to the Troy Davis execution, Ross Douthat does what he does best, offering an overthought response that manages to “raise a point” without actually addressing the central issue in the argument. Maybe that’s useful on some topics, but not really here. The argument: the death penalty, because it’s so terrible, generates justice by inspiring […]

The Routinization of Error in Criminal Appeals

(This is an observation from a very talented appellate litigator at my firm. So as a matter of professional integrity, I can’t claim credit, but for reasons of anonymity, nor can I name her.) I’ve had the privilege of working on more than a few criminal appeals in my very short time in practice, and […]

The Odd Consequences of the Separation of Powers: Common Law Crimes

So it’s been a busy few days here. In lieu of a longer post, which would be the norm, this note on an old and strange legal principle, but one that’s been slightly useful lately: We’re all familiar with the “separation of powers,” and the common implications of the theory. Namely, the President can’t pass […]

Crime, War, and Punishment: No Easy Paradigm for Counterterrorism Work

Continuing conservative America’s latest trend — selectively remembering everything that happened before January 20, 2009 — RedState’s Erick Erickson today excoriated President Obama for daring to try the Christmas Day bomber, Umar Abdulmuttalab, as a criminal, because these proceedings will entitle him to a lawyer, and the right to reach a compromise with prosecutors through […]

Stateside Trial of Terrorists Raises Interesting, Long-Answered Questions of Public Policy

Friday’s news that Khalid Sheikh Mohammed — the self-professed “mastermind” of the 9/11 attacks — would be tried in New York City did not fail to generate the frenzied blend of misinformation and paranoia that we’ve come to expect from the right. Let’s have a look. First, there’s Politico (which reads the post-Boumediene release of […]

Hate Crimes and Thought Crimes: a Question of Mens Rea

Thank you, reader Jim E., for tipping me off to this discussion at “Crooked Timber” on current Republican objections to “hate crime” legislation, and for thinking I could add something to it. I’ll do my best. Republican opposition to hate crime legislation is not a model of consistency. As “Crooked Timber” notes, Jim Boehner (R-OH), […]

AEDPA & Troy Davis: The Death Penalty, Actual Innocence, and Federal Deference

There are few political footballs that’ve been kicked around more, and with greater reprecussions, than the writ of habeas corpus. The “great writ,” of course, traces its origin to the Magna Carta — “no free man shall be taken, imprisoned … or any other wise destroyed … but by lawful judgment of his Peers” — […]