27 University Avenue
Palo Alto, CA 94301
Honorable Alex Kozinski, United States Court of Appeals for the Ninth Circuit
Honorable Joseph P. Russoniello, Former United States Attorney, Northern District of California
Is Clay v. United States, currently pending in the 11th Circuit, a case study of overcriminalization and abusive federal prosecution? The case raises basic notions of due process, fair notice, the rule of lenity, mens rea, and actus reus. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute of how to interpret a provision in Florida’s Medicaid reimbursement statute with no clarifying administrative regulations, ended in the indictment, conviction, and prison sentences for the company’s top executives for fraud. This case is particularly important for all regulated industries, where there are numerous and ambiguous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. John Lauro, counsel in the case, discussed the lawsuit, with Paul Kamenar joining to offer questions and comments.
On Thursday July 16, 2015, the Wisconsin Supreme Court issued an opinion and order ending the long running “John Doe” investigation into potential violations of Wisconsin campaign finance law and whether candidates and outside groups illegally “coordinated” spending. In mid-June of 2015, a young political consultant was sentenced to nearly two years in federal prison for illegally coordinating between a congressional campaign and a Super PAC. The U.S. Department of Justice also recently announced it will look carefully at allegations of coordination between candidate and outside groups. What does all of this mean? Where is the law heading on this? Are civil and criminal investigations into campaign activity going to be increasing?
During oral argument in Glossip v. Gross, Justice Samuel Alito pointed to what he called "a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain[.]" The goal of these efforts, apparently, is to facilitate constitutional challenges to the death penalty by making its implementation more painful.
This teleforum analyzed whether the efforts by death penalty opponents to pressure drug manufacturers to stop supplying drugs for use in execution--resulting in states resorting to execution methods that are more painful--are circumventing the democratic process in debating the death penalty. Specifically, our experts debated the methods used by those in opposition to the death penalty to shut down access to less painful execution methods, the propriety of complicating the death penalty's implementation, the relationship between that complication and constitutional challenges to the death penalty, and whether this amounts to treating the democratic process like a one-way ratchet: only permitting the people to choose more painful means of implementing executions so as to facilitate legal challenges to the death penalty.
The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court’s criminal law jurisprudence and fielded questions from a call-in audience.