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Micah B. Rankin - One of the best experts on this subject based on the ideXlab platform.

  • The Origins, Evolution and Puzzling Irrelevance of Jury Recommendations in Second-Degree Murder Sentencing
    2015
    Co-Authors: Micah B. Rankin
    Abstract:

    Section 745 of the Criminal Code is currently the only area of Canadian sentencing law that contemplates a role for juries. It grants juries the ability to recommend periods of parole ineligibility immediately following a guilty verdict in Second-Degree Murder cases. This power is a remnant of a 1961 amendment to the Criminal Code that empowered juries to recommend clemency in capital Murder cases. Although capital punishment has long since been repealed, jury involvement in sentencing persists — at least on paper. This article demonstrates that despite the codification of jury recommendations, Canadian courts have shown remarkable reluctance to give them meaningful weight in sentencing. A survey of the jurisprudence reveals that courts have several concerns related to jury recommendations, including the jury’s limited understanding of the legal principles of sentencing and the undue burden that the additional responsibility places on the already exhausted jurors. Although some courts pay lip service to jury recommendations, it is evident from the jurisprudence that the courts consider the power to be irrelevant. After weighing the potential benefits of retaining jury recommendations, this article argues that they have been judicially repealed for sound reasons of principle and policy, and accordingly should be formally removed from the Criminal Code.

  • Justice as a Rounding Error? Evidence of Subconscious Bias in Second-Degree Murder Sentences in Canada
    2014
    Co-Authors: Craig E. Jones, Micah B. Rankin
    Abstract:

    There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, “heuristics”. In this article, the authors explore one heuristic – “number preference” – through an examination of all reported second degree Murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably “round off” measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to “cluster” around even numbers and multiples of five, without any obvious, legally-justifiable reason for such “rounding.” The authors propose that the phenomenon should cause concern not least because it suggests that other, less easily measurable but no less powerful heuristics may also be at work in judicial decisions.

  • Justice as a Rounding Error? Evidence of Subconscious Bias in Second-Degree Murder Sentences in Canada
    Osgoode Hall Law Journal, 2014
    Co-Authors: Craig E. Jones, Micah B. Rankin
    Abstract:

    There are few areas of law that grant judges as much discretion as the sentencing of criminal offenders. This discretion necessarily leads to concerns about the influence of biases, including those that result from subconscious processes associated with human cognition; that is to say, “heuristics”. In this article, the authors explore one heuristic – “number preference” – through an examination of all reported second degree Murder parole ineligibility decisions between 1990 and 2012. Number preference leads individuals to predictably “round off” measurements to certain favoured numbers. The authors identify a tendency for parole ineligibility decisions to “cluster” around even numbers and multiples of five, without any obvious, legally-justifiable reason for such “rounding.” The authors propose that the phenomenon should cause concern not least because it suggests that other, less easily measurable but no less powerful heuristics may also be at work in judicial

Kimberly Kessler Ferzan - One of the best experts on this subject based on the ideXlab platform.

  • Plotting Premeditation’s Demise
    Law and contemporary problems, 2012
    Co-Authors: Kimberly Kessler Ferzan
    Abstract:

    I INTRODUCTION Few legal concepts are as accessible to the layman as is premeditation. Popular culture is filled with images of premeditating actors, be they Professor Moriarty, Voldemort, or even the opaquely denominated Dr. Evil. What is striking about popular culture depictions is that these characters are typically one-dimensional: they do nothing but plan the demise of the hero. No doubt exists as to the antagonist's culpability because all the actor does is plot the protagonist's death. (1) Unfortunately, art sometimes does imitate life all too accurately. The events of September 11th reveal that there are human beings who truly spend significant effort deliberating over killing other people and planning those killings. Osama bin Laden, Adolf Hitler, and Saddam Hussein represent real-world embodiments of one-dimensional evildoers. But the run-of-the-mill killing is not committed by Hitler or Voldemort. It is committed in strikingly different contexts--romantic rifts, bar fights, gang wars. One might think that, with such striking examples of premeditating actors, it would be easy to apply the common man's view of premeditation. In fact, however, theorists are exceedingly skeptical as to whether premeditation actually exists in any discernible way and, even if it can be conceptually captured, whether premeditation is an appropriate means for distinguishing between first- and Second-Degree Murder. Indeed, Dan Kahan and Martha Nussbaum proclaim, "'Premeditation' is in fact one of the great fictions of the law." (2) Fiction or not, premeditation is a real problem. Despite the Model Penal Code's rejection of premeditation, twenty-nine states, the District of Columbia, and the federal government all employ a premeditation or deliberation formula as a part of their Murder statutes. (3) In some of these jurisdictions, premeditation is the difference between life and death. (4) In others, premeditation may make a significant difference in prison term. (5) In efforts to adjudicate the guilty mind, premeditation presents obstacles at numerous levels. First, as a normative matter, there is reason to doubt that premeditation truly distinguishes the most culpable killings. As Sir James Fitzjames Stephen imagined, a man "passing along the road[] sees a boy sitting on a bridge over a deep river and, out of mere wanton barbarity, pushes him into it and so drowns him." (6) Stephen noted that in this case there is no premeditation but that it represents "even more diabolical cruelty and ferocity" than premeditated killings. (7) At the other end of the spectrum is State v. Forrest in which the defendant killed his suffering, terminally ill father; a first-degree Murder conviction was upheld by the North Carolina Supreme Court. (8) Premeditation thus appears to be both over- and under-inclusive in capturing the most culpable actors. (9) Second, at the conceptual level, articulating a clear distinction between premeditation and an intention to kill is difficult. (10) In the average case, to form the intention to kill requires desiring something, believing that one will achieve what one desires by killing, and then forming the intention to kill. Is the deliberation inherent in choosing distinguishable from premeditation? Moreover, once the intention is formed, rational agents will often have to further deliberate as to how to kill, so intention execution may also involve deliberation. The problem is that, even if all that an intentional killing requires is the choice or intention itself, it is an extraordinarily rare individual who will not engage in some additional exercise of deliberation in intention formation or intention execution. (11) Third, even with viable normative and conceptual assumptions, translating this normatively charged concept into hard-edged legal rules will require that statutory drafters either opt for vague and overinclusive moralized standards (leaving "premeditation" to be filled in by juries) or underinclusive analytic styles (such as requiring specific time or ability to reflect). …

Michael Mannheimer - One of the best experts on this subject based on the ideXlab platform.

  • Not the Crime But the Cover-Up: A Deterrence Based Rationale for the Premeditation-Deliberation Formula
    Indiana Law Journal, 2009
    Co-Authors: Michael Mannheimer
    Abstract:

    Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of Murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate Murder is Murder of the first-degree Murder, while Second-Degree Murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree Murder. Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of the relative culpability or dangerousness of intentional Murderers. The premeditation-deliberation formula, the critics tell us, is incapable of segregating out the worst Murderers because it is both under- and over-inclusive. In addition, critics have pointed to the courts’ inability or unwillingness to apply the premeditation-deliberation formula in any coherent fashion. Many courts have held that the premeditation and deliberation required to transform a mere intentional, Second-Degree Murder into first-degree Murder can be formed in the instant before the killing. Thus do many courts fail meaningfully to distinguish one degree of intentional Murder from the other. This second failing appears inextricably related to the first: since many unplanned but intentional Murders are as bad as or worse than many planned killings, and their perpetrators at least as dangerous, courts contort the meanings of premeditation and deliberation to allow the most culpable and dangerous Murderers to be punished most harshly. These criticisms are founded on the premise that the distinction between first- and Second-Degree Murder is grounded solely upon principles of retribution and incapacitation. What the critics have overlooked is that there is a powerful deterrence-based rationale for distinguishing premeditated, deliberate Murders from those that are unpremeditated or non-deliberate. Where a Murder is premeditated and deliberate, it is much more likely that the Murderer has not only planned out the crime itself but has developed a plausible way to avoid or delay detection. Because the value of punishment as a deterrent depends in large part on the likelihood and swiftness of punishment, crimes that are less likely to be punished swiftly, all other things being equal, ought to be punished more severely. Thus, given two equally dangerous and culpable intentional Murderers, we are arguably justified in punishing more severely the one who, by virtue of better planning beforehand, is more likely to escape or delay detection.

  • Not the Crime But the Cover-Up: A Deterrence Based Rationale for the Premeditation-Deliberation Formula
    Indiana Law Journal, 2009
    Co-Authors: Michael Mannheimer
    Abstract:

    Beginning with Pennsylvania in 1794, most American jurisdictions have, at one time or another, separated the crime of Murder into two degrees based on the presence or absence of premeditation and deliberation. An intentional, premeditated, and deliberate Murder is Murder of the first-degree Murder, while Second-Degree Murder is committed intentionally but without premeditation or deliberation. The distinction was created in order to limit the use of the death penalty, which generally has been imposed only for first-degree Murder. Critics have attacked the premeditation-deliberation formula on two fronts. First, they have charged that the formula is imprecise as a measure of the relative culpability or dangerousness of intentional Murderers. The premeditation-deliberation formula, the critics tell us, is incapable of segregating out the worst Murderers because it is both underand over-inclusive. In addition, critics have pointed to the courts’ inability or unwillingness to apply the premeditation-deliberation formula in any coherent fashion. Many courts have held that the premeditation and deliberation required to transform a mere intentional, Second-Degree Murder into first-degree Murder can be formed in the instant before the killing. Thus do many *© 2009 by Michael J. Zydney Mannheimer. ** Associate Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University (“NKU-Chase”). J.D. 1994, Columbia Law School. E-mail: mannheimem1@nku.edu. I thank the participants at the annual conference of the Central States Law Schools Association, and faculty workshops at Pepperdine University School of Law, University of Missouri-Kansas City School of Law, and NKU-Chase for their helpful comments and suggestions. PREMEDITATION-DELIBERATION FORMULA 2 courts fail meaningfully to distinguish one degree of intentional Murder from the other. This second failing appears inextricably related to the first: since many unplanned but intentional Murders are as bad as or worse than many planned killings, and their perpetrators at least as dangerous, courts contort the meanings of premeditation and deliberation to allow the most culpable and dangerous Murderers to be punished most harshly. These criticisms are founded on the premise that the distinction between firstand Second-Degree Murder is grounded solely upon principles of retribution and incapacitation. What the critics have overlooked is that there is a powerful deterrence-based rationale for distinguishing premeditated, deliberate Murders from those that are unpremeditated or non-deliberate. Where a Murder is premeditated and deliberate, it is much more likely that the Murderer has not only planned out the crime itself but has developed a plausible way to avoid or delay detection. Because the value of punishment as a deterrent depends in large part on the likelihood and swiftness of punishment, crimes that are less likely to be punished swiftly, all other things being equal, ought to be punished more severely. Thus, given two equally dangerous and culpable intentional Murderers, we are arguably justified in punishing more severely the one who, by virtue of better planning beforehand, is more likely to escape or delay detection. MICHAEL J.Z. MANNHEIMER

Rebecca L. Haffajee - One of the best experts on this subject based on the ideXlab platform.

  • Murder Liability for Prescribing Opioids: A Way Forward?
    Mayo Clinic proceedings, 2016
    Co-Authors: Y. Tony Yang, Rebecca L. Haffajee
    Abstract:

    In February 2016, Dr. Hsiu-Ying Tseng was sentenced to 30-years to life in prison after a jury found her guilty of Second-Degree Murder for three patient drug overdose deaths in California. For the first time in American history, a physician was held criminally liable for the Murder of a patient by means of extreme recklessness in opioid prescribing. Although Dr. Tseng’s unique conviction reflects her outlier prescribing practices, the conviction and sentencing has sent ripples through the medical community, causing concerns for many physicians who now worry they will be held criminally liable when their patients abuse and misuse opioid prescriptions. However, physicians—particularly the majority that prescribe opioids in an earnest attempt to alleviate legitimate patient pain—may take comfort that the legal risks can be managed. Prescribers can take a number of steps to minimize criminal liability concerns, including following available guidelines, such as those recently issued on opioid prescribing for chronic pain by the Centers for Disease Control and Prevention. While outlier physicians like Dr. Tseng may meet the standards for criminal liability, criminal prosecution may do little to curb prescription opioid abuse—an epidemic that calls for more upstream prevention measures.

Neal A. Hudders - One of the best experts on this subject based on the ideXlab platform.

  • The Problem of Using Hearsay in Domestic Violence Cases: Is a New Exception the Answer?
    Duke Law Journal, 2000
    Co-Authors: Neal A. Hudders
    Abstract:

    On the morning of September 6, 1993, the Honolulu Police Department received a report of a screaming female at a condominium complex. Upon his arrival at the scene, the responding officer observed a woman, Diana, bleeding from her chest. Diana told the responding officer, and then the emergency room physician, that her husband had stabbed her. Later that day, a police investigator conducted a tape-recorded interview with Diana at the hospital. Diana told the investigator that after a long argument her husband had jumped on her and, when she screamed, had put his hand on her throat. After punching her in the back, she said, he threw her in the closet and stabbed her with a kitchen knife. At her husband’s trial for attempted Second-Degree Murder, however, Diana’s testimony was dramatically different—she claimed that the story she had given to the police was a lie and that she had grabbed the knife and stabbed herself. Diana’s testimony presented the prosecutors with a serious problem. The only witness to the incident, Diana, was not willing to testify against her husband. The statements she had made to the police and medical personnel on the day of the incident were the prosecutor’s only potential evidence, but they were classic hearsay. The