Brief history

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•   Presentation of the DOJ

•   DOJ/ Attorney General: the
    implications of their power
A. Brief history

   1870: the “law department”,after called the “Office of
    the Attorney General”, becomes the Department of
    Justice (DOJ).
   No executive department before to assist in carrying
    out the duties of the office
   Growing responsibilities of the Attorney General and
    need for uniformity in the administration of law.
   World's largest law office and the central agency for
    enforcement of federal laws.
B. Role and missions of the DOJ

   Enforce the federal law and defend the interests of
    the United States
   Ensure fair and impartial administration of justice for
    all Americans
   Ensure public safety against threats foreign and
   Provide federal leadership in preventing and
    controlling crime
   Furnish legal counsel in federal cases +construing
    the laws
C. The organization of the DOJ

   Office of the Attorney General, Deputy of the Attorney
    General and Office of the Associate Attorney General: on
    the head of the DOJ

   Six specialized divisions (the Antitrust Division, the Civil
    Division, the Civil Rights Division, the Criminal Division,
    the Environment and Natural Resources Division, and the
    Tax Division )

   The Solicitor General is the top official in the DOJ and
    represents the nation
   DOJ also includes the Federal Bureau of Investigation
    (FBI), principal investigative arm of the department
   Bureau of Prisons
   United States Marshals Service
   Drug Enforcement Administration
   Immigration and Naturalization Service
   the U.S. Central Bureau–International Criminal Police
    Organization, , the Bureau of Alcohol, Tobacco, Firearms,
    and Explosives, and at last he Office of Justice Programs.
D. The Attorney General

   Who it is?
   Created by the Judiciary Act of 1789
   June 1870: the Congress enacted the law “An Act to
    Establish the Department of Justice”. The A.G.:
     - Is the head of the DoJ
     - Has direction and control of U.S. Attorneys and all other
    counsel employed on behalf of the U.S.
   The A.G. is a member of the President’s Cabinet
   The current Attorney General is Alberto R. Gonzales
     Major functions

   Represent the United States in legal matters
   Supervise and direct the administration and operation of the
   Offer advice and opinions to the President and the Cabinet
    and to the heads of the executive departments of the
   Represent or supervise the representation of the U.S.
    Government in the Supreme Court of the United States and
    all other courts, foreign and domestic, in which the United
    States is a party or has an interest
2. DOJ / The Attorney General: the
implications of their powers
    A. What “America‟s lawyer”
    should do and should be

   America's lawyer: civil and criminal matters.
   Most important person in the Cabinet → represents all of American
    people (not just to represent administration policy )
   Protect the civil rights of Americans
   A position vulnerable to politicization by one who puts ideology and
    politics above the law
→ Is A.G. willing to vigorously enforce all the laws in the Constitution,
  even he might have philosophical disagreements?
→ Does he possess the standing and temperament that will permit the
  majority of the American people to believe he can and will protect
  and enforce their individual rights?
    Be fair to all and not make decisions based upon his ideology
    and should lead a DOJ that is free from politics
B. Controversial figures of AGs

   John ASHCROFT (2001-2005)

   The most controversial nominee for A.G.
    ever (42 voices against his nomination in
   Ashcroft's conservative views → intense
    opposition on critical issues involving civil
    rights, women's rights, gun control and
    nominations of judges…
   Critics thought his ideology would influence
    his policy and that he would push and prod
    the law to conform to his own strongly held
John Ashcroft: a controversial AG
    Roberto GONZALES (2005)

   Career in Texas → G.W Bush

   2001, President Bush appointed Gonzales
    White House Counsel → often criticized
    because he has been party to controversial
    legal matters involving the Bush

   Some controversies (memos on torture,
    prisoner executions Texas…) → opposition
    to Gonzales during his Senate
    confirmation proceedings

   2005: confirmed by the Senate by a vote of
    60-36 and became Attorney General
    C. War on Terror: controversial
    issues with consequences

   Gonzales authored the
    Presidential Order which
    authorized the use of military
    tribunals to try terrorist suspects.

   Gonzales was an early advocate
    of the USA PATRIOT Act

   He was accused of being involved
    in the decision to allow foreign
    combatants in U.S. custody to be
    deported to nations that allow
    torture, to extract further
    information from them
    Memo January 2002: the “obsolete“ Geneva

   The Geneva Convention
    treatment of prisoners of war
    does not apply to detainees in
    the "war on terrorism".

    Gonzalez describes
    provisions of the Geneva
    Conventions as "quaint" and
    The “Torture” Memo 2002 (August)

   Torture = limited to practices causing physical pain
    "equivalent in intensity to the pain accompanying serious
    physical injury, such as organ failure, impairment of
    bodily function, or even death.“

   International laws prohibiting torture "do not apply to the
    President's detention and interrogation of enemy
    combatants," because he is Commander-in-Chief of the
    US military → they 'may be unconstitutional’

   Very high threshold for finding an act of torture + a
    torturer can escape criminal liability if he engages in
    torture with a noble goal in mind (i.e extract vital
    information, protect national security)

→ Very narrow view of what behaviour might
  constitute torture and was crafted to help
  interrogators at the CIA evade prosecution
→ Set a legal framework that led to the
  abuses in prisons in Iraq (Abu Ghraib),
  Afghanistan, Cuba's Guantanamo Bay…
→ Knowledge and approval of the highest
  levels of Bush administration
→ Violation of prohibitions under both
  international (UN Convention Against
  Torture and Other Cruel, Inhuman or
  Degrading Acts…) and US laws : “legal”
  pretext and cover for the administration
  and its actions
     Memo 2004: Justice expands “Torture” definition

   “This memorandum supersedes the
    August 2002 Memorandum in its
    entirety” because memo 2002 →
    scandal and political fallout by its

   A revised and expansive definition of
    acts that constitute torture under
    domestic and international law
Repudiates  the earlier analysis of the circumstances
under which someone could be found criminally liable
for engaging torture

Torture may consist of acts that “fall short of provoking
excruciating and agonizing pain and thus may include
mere physical suffering or lasting mental anguish”

Critic: omission of a controversial assertions made in
memo 2002= the president's executive powers in
extraordinary circumstances
  The right persons as “America‟s lawyers”?

→ Consequence’s of Gonzales’s
  unprofessional and unethical representation
→ He purported legality upon policies and
  procedures that supported the torture and
  abuse of detainees
→ Many think “Alberto Gonzales' role in the
  development of policies that led to the Abu
  Ghraib prison scandals in Iraq is deeply
  And that his approval of torture has
  contributed to the embarrassment of his
  country before the world.
→ “M. Torture” now serves as America’s
→ To feel like being “above the law”

1.   The Patriot Act
2.   The „3 Strikes and you„re out“ rule
3.   The death penalty
1.       Patriot Act
         A. Definition and content

         Definition

           “Uniting and strengthening America by providing tools
          required to Intercept and Obstruct Terrorism Act of 2001”

          Enacted on October 26, 2001 by the Congress at the
          request of the President Bush.

          In order to deal with a new situation.

The Patriot Act :
    Gives new powers to the D.O.J
    Law enforcement to fight terrorism
    Allows investigators to use new tools.
    Facilitates information sharing between agencies
    Updates the law on technologies and threats.
    Increases the penalties.
    Expands roving wiretaps.
    Carnivore program
    Allows FBI to have a greater control
    Gives the governments to search in citizen houses
B. Arguments in favour and against
Arguments against

   Not enough studied
   Too much power to federal government
   Endangers privacy
   Discourages and overturns constitutional protection
    of free speeches
   Does not respect religious freedom.
   Unconstitutional according to 4th amendment
   Basis for future regulation that could infringe on civil
Arguments in favour

   Feeling that national security has increased.

   Cultivates cooperation between FBI and the CIA.

   Limit of civil rights and liberties is essential
C. The Sunset clause and its debate

   The sunset clause

    Provision on regulation that
    determines or repeals all or
    proportions of the law after a specific
    date, unless further legislative action is
    taken to extend it.
   Debate around the sunset clauses

   Sunset clauses of the Patriot Act will expire on
    December 31, 2005.
    Is it necessary to have this act?
   Is it necessary to expand it?
   What are the results of this act?
   What are the sections that will expire?
   Opponents ask for a complete examination of the
=> Results

    According to Attorney General there are less crimes.
   But figures are not published.
2. The „3 Strikes and you„re out“ rule

A. What is the rule?

   Law that target repeat offenders
   After a person is convicted of a crime three times, he or
    she receives a mandatory life sentence.
   No judiciary discretion in sentencing these repeat
    offenders(but no possibility of parole for the criminal)
   Purpose: curb repetitive serious criminal behavior.
B. Background
 Violent crime, with the public outraged over several
  highly publicized murders.
 Action from citizens to keep repeat offenders in
  prison and off the streets.
Which states passed the law?
 More than two dozen states (26) and the federal
  government have enacted three strikes laws between
  1993 and 1995
C. The specificity of the State of California

   The State of California is noted to have the hardest three-
    strikes laws
   Two or more previous serious or violent felony convictions
    = 25 years to life sentence
   Burglary is considered as "serious felony"
   The third strike itself does not have to be a serious or
    violent felony.
D. What are the limits of the 3-strikes?
   7,000 people sent to prisons under the “3 strikes”, 350
    of those cases the third crime the defendant committed
    was a minor offense
   Often qualified as cruel and as unusual punishment
   Did not really help to decline crime
   The law unfairly sentences minor felons
   Costs California billions of dollars every year
   Disproportionately affected blacks and Hispanics
   State budgets depleted by the huge costs of prison
10 reasons to oppose the 3 strikes and you„re out rule

    1. "3 Strikes" is an old law dressed up in new clothes
    2. "3 Strikes" laws won't deter most violent crimes
    3. "3 Strikes" laws could lead to an increase in violence
    4. "3 Strikes" laws will clog the courts
    5. "3 Strikes" laws will take all sentencing
           discretion away from judges
    6. The cost of imprisoning 3-Time losers for life
           will be prohibitively high
    7. "3 Strikes" will have a disproportionate impact
           on minority offenders
    8. "3 Strikes" laws will impose life sentences on offenders
     whose          crimes don't warrant such harsh punishment
    9. Let the punishment fit the crime -- A constitutional principle
    10. "3 Strikes" laws are not a serious response to crime
Death penalty
    2. The death penalty
       A. Background

   Allowed in 38 states + federal government
   Each state has its own legislation regarding its methods, age
    limits & crimes which qualify
   The South (especially Texas) accounts for 80% of executions
   Crimes subjects vary by jurisdiction:
      murder: most of death row inmates presently
      large scale drug-trafficking
      treason
      espionage
      desertion in time of war (under military law)
                                 STATES WITH THE DEATH PENALTY

Alabama                             Louisiana                            Oregon
Arizona                             Maryland                             Pennsylvania
Arkansas                            Mississippi                          South Carolina
California                          Missouri                             South Dakota
Colorado                            Montana                              Tennessee
Connecticut                         Nebraska                             Texas
Delaware                            Nevada                               Utah
Florida                             New Hampshire                        Virginia
Georgia                             New jersey                           Washington
Idaho                               New Mexico                           Wyoming
Indiana                             New York*
Illinois                            North California                     ALSO
Kansas*                             Ohio                                 - U.S. Government
Kentucky                            Oklahoma                             - U.S. Military

* The New York (6/24) and Kansas (12/17) death penalty statutes were declared unconstitutional in 2004

                              STATES WITHOUT THE DEATH PENALTY

Alaska                              Michigan                             West Virginia
Hawaii                              Minnesota                            Wisconsin
Iowa                                North Dakota
Maine                               Rhode Island                         ALSO
Massachusetts                       Vermont                              - Dist. Of Columbia
B. Significant legal changes

   1608: first execution in the new colonies
   1967-1976: D.P. suspended by the Supreme Court
    because considered unconstitutional (“cruel and unusual
    punishment” which violated the 8th Amendment of the
     After this date, all executions have been for 1st degree
    murder (= premeditated murder)
   Since the 1980s: the U.S. didn’t abolish the D.P., like the
    other western countries, but established limitation on
    capital punishment
   1977: The Supreme court ruled that the D.P. for rape was
    “grossly disproportionate and excessive”
   1977: the D.P. considered unconstitutional for rape of an adult
    when the victim wasn’t killed
   2002: the Supreme Court declared that the D.P. must be
    imposed by a jury and not a sole judge
   June 2002: the Supreme Court ruled that it is unconstitutional
    to execute defendant with mental retardation
   1st March 2005: the Supreme Court abolished the D.P. for
    defendants who committed a crime as juveniles (under 18)
 The rate of death sentences has been declining over recent
  years: from 328 in 1994 to 144 in 2003
    C. The death penalty: a broken
   American Declaration of Independence: the “right to
    life” is the first listed of the natural rights
   Fallible proceeding: risk of executing innocents
    Error in almost 7/10 of the thousands of death
    sentences reviewed on appeal during the 23-year
    study period (1973-1995: study of the US capital
    justice system conducted by Colombia University)
   High costs: appeal + death penalty is more
    expensive than keeping a prisoner captive for his
    natural life
   isn’t a deterrent of crime: death rate is higher in state
    which have the D.P.
   Brutalisation of the society showing it that in some
    circumstances, the right thing to do is to kill people
   Racial disparities* in death sentences, based on the race
    of the victim + unequal jury selection
   Who takes the decision of using the D.P.?
     Disparities between the states and in a lot of cases, the
      decision depends on a few people
     In some states, the judge can overrule the juries’ life in
      prison sentence and impose a death sentence
   People are being sentenced to death for crimes that do
    not “deserve” the D.P.
   Suppression of evidence by prosecutors or police
   Constitutionally inadequate defence (e.g. young lawyer
    who has never handled a capital case before; incompetent
    trial who doesn’t present any of the existing mitigating
   Pressure made on officials to pronounce death penalties
    as much as possible (often against African American
    people because of fears of crime driven by racial
    stereotypes and economic factors)

   To what extent do you
    think that USA (Bush
    consider themselves as
    being above the law
    (naltional and
    international law)?
   In your opinion, is this

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