Frank Talk About Chinese Reform
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rofessor Jerome Cohen and the criminal law faculty played host to six eminent professors from Beijing’s Renmin University of China last March, reciprocating for a groundbreaking visit they made to China last year. The guests lectured, attended classes and debated with faculty and students. The Chinese delegation included professors Gao Mingxuan, honorary president, and Zhao Bingzhi, current president, of the Chinese Criminal Law Society, as well as their Renmin colleagues, Wang Zuofu, Lu Jianping, Huang Jingping and Wang Xiumei. Explaining their enormous sway, Cohen said that aside from government officials, “these high-prestige academics have had perhaps the biggest influence on Chinese policy and reform in the past 50 years of Chinese legal reform.” For the NYU School of Law professors, fellows and students, as well as the Asian experts who attended, this was an invaluable opportunity to speak openly about a broad range of subjects, including the death penalty and terrorism. The group discussed recent efforts to set tougher procedural standards for trials involving the death penalty— China has 68 offenses which are punishable by death—and debated over who should have the power to review such cases. Terrorism was the subject of a roundtable hosted by the Council of Foreign Relations in honor of the Chinese delegation’s visit. “China has always been comfortable discussing terrorism since it enhances cooperation with the U.S.,” said Cohen, “and it’s a welcome diversion from the subject of human rights violations.” He added that other topics that the professors preferred to skirt included organized crime and corruption in China. Nonetheless, Professor James Jacobs, an expert on these topics, as they pertain to the U.S., said that he was impressed with “how open and frank all the discussions were.” One of the scholars, Professor Huang, even gave a talk in Jacobs’s Juvenile Justice class. “China still has a long way to go,” said NYU School of Law Research Scholar Ping Yu, “but the country is witnessing an important transition over the past decade or so where lawyers and the state are actively debating major changes in the legal system.” —Ranjani Ramaswamy
The Aftereffects of Death Penalty Rulings
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n a five-to-four split decision last March, the Supreme Court abolished capital punishment for juvenile offenders, ruling it unconstitutional to sentence anyone to death for a crime he or she committed before turning 18. The Court concluded that the death penalty for minors is cruel and unusual punishment, echoing a June 2002 decision by the Court that the execution of mentally retarded criminals violates Eighth Amendment rights. In January of this year, James Borden, whose case was investigated by NYU’s Capital Defender Clinic—Alabama, became the first Alabama death row prisoner to have his death sentence overturned because of mental retardation. Though clinic students had discovered and developed evidence of Borden’s mental retardation as far back as 2001, it took until this year for the state’s Court of Criminal Appeals to pave the way for his resentencing to life in prison. Two other juvenile clients of the Capital Defender clinics had death sentences vacated in light of the Supreme Court decision. “I am relieved for the kids. This is an important categorical exception to the death penalty, as important as the banning of capital punishment for the mentally retarded in 2002,” said Professor Bryan Stevenson, who supervises the Alabama clinic. AUTUMN 2005
But Stevenson warned that the bigger fight to ban the death penalty is still looming. “This decision was too narrow to represent a major victory,” he cautioned. Unlike countries where executions are allowed only under exceptional circumstances, he said, “in the U.S. we embrace the death penalty. It is an expression of who we are and is actively promoted as therapy.” Stevenson hopes that, “our courts will temper justice with mercy and see the relationship between mental illness, social illness and culpability, eliminating the need for executions and excessive punishments entirely. —R.R.
Professor Barkow Goes to Washington–Twice
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n January 12, the U.S. Supreme Court ruled that the 1980s federal sentencing guidelines were unconstitutional because they violated a defendant’s Sixth Amendment right to be tried by a jury. The decisions were handed down in a pair of 5-to-4 rulings that gave broader discretion to federal judges. Previously, judges were forced to boost sentences based on factors that juries hadn’t ruled on. Now judges are free to consider the guidelines, as, well, guidelines. Professor Rachel Barkow, who testified before the Senate Judiciary Committee on the future of the Federal Sentencing Guidelines in 2004, pointed out that change would come slowly if at all. “Judges are so accustomed to relying on the guidelines, that more often than not, they follow them as a matter of protocol,” she said. “I would expect sentences to stay the same. There might be some movement in drug-related cases, as judges often view those penalties as too severe.” In July, Barkow was the only law professor invited to the National Sentencing Policy Institute for a forum organized by the Federal Judicial Center. At that meeting, Barkow warned that there was reason to fear a political backlash. “There will definitely be resistance from Congress if judges give out softer sentences—even though an appellate process exists to check the ‘reasonableness’ of the trial judge’s decision,” she said. “Congress has always wanted to appear tougher on crime while judges are often shocked by the severity of sentences they have to mete out.”—R.R.
THE LAW SCHOOL
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