Tuesday, April 15, 2014
Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive. Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from. Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment. Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional. Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism. Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.
Will Baude has this post at The Volokh Conspiracy. In part:
My understanding is that once a police officer is found to have lied on the stand, it is difficult for that police officer ever to testify again, because the finding of dishonesty can be used to impeach them. This means that a finding of dishonesty can carry major professional consequences for an officer.
Let us suppose this is true. Is it possible that this actually dissuades judges from finding that police officers have lied? I’d worry that a judge who thinks that an officer’s testimony is not that believable, but who is not certain, might err on the side of crediting the officer — or at least declining to say anything about it either way — because of the severe consequences to the officer. In other words, I wonder if the severe consequences to being caught lying cause judges to underenforce the requirement of honesty. That could even lead to more lying in the long run.
Paul Litton (University of Missouri School of Law) has posted Is Psychological Research on Self-Control Relevant to Criminal Law? (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In recent years scholars have asked whether scientific discoveries - specifically in neuroscience and genetics - should have normative implications for criminal law doctrine and theory, especially with regard to free will and responsibility. This focus on novel and merely potential scientific findings makes Rebecca Hollander-Blumoff’s arguments all the more fascinating: she argues that criminal law scholars have neglected to mine a rich body of social psychological research on the mechanisms of self-control which has developed over the past two decades. She, herself, finds that the psychological research suggests that current criminal law inaccurately circumscribes the scope of situations in which an individual lacked the ability to control her actions. Moreover, she argues that the research permits us to separate issues of self-control from philosophical questions about the existence of free will.
This article accepts Hollander-Blumoff’s invitation to mine the self-control research for normatively-relevant insight.
Markus D. Dubber and Tatjana Hoernle (University of Toronto - Faculty of Law and Humboldt Universität zu Berlin, Law Faculty) have posted Mens Rea: A Comparative Approach (Markus D. Dubber & Tatjana Hörnle, Criminal Law: A Comparative Approach (Oxford University Press 2014)) on SSRN. Here is the abstract:
This excerpt from Dubber/Hörnle, Criminal Law: A Comparative Approach (OUP 2014) considers the issue of mens rea (subjective offense elements) from a comparative perspective.
Doug Berman has this post at Sentencing Law & Policy. In part:
The question in the title of this post is prompted by this chart concerning the make-up of the Supreme Court's merits docket this Term from the latest Stat Pack put together by the folks at SCOUTSblog. The chart highlights that nearly 75% of the merits docket this Term involves civil cases. In addition, this SCOTUSblog list of cert grants for October 2014 reveals that only one of nine grants for the next Term involves a criminal law issue (and that issue, as noted here, seems stunningly minor).
Alec Samuels (Government of the United Kingdom - City of Southampton) has posted Preventing Miscarriages of Justice (Current Criminal Law Online, Volume 6, Issue 3, March 2014) on SSRN. Here is the abstract:
A miscarriage of justice is the conviction and punishment of a person for a crime he or she did not commit. This article highlights the miscarriages of justice as have occurred in English case law. Miscarriages of justice do not occur very often in our criminal justice system, only in a very small percentage of convictions every year. At least, so far as is known. However, the wrongful conviction of only one person is tragic in itself. The phrase ‘miscarriage of justice’ may be interpreted in a variety of ways, but for the purposes of this discussion a miscarriage of justice means the quashing of the conviction and no further prosecutorial action, i.e. the presumption of innocence applies, especially where a period of imprisonment has been served.
Monday, April 14, 2014
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.
This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines.
Ray McKoski has posted The Truth Be Told: The Need for a Model Rule Defining a Lawyer's Duty of Candor to a Client (99 Iowa L. Rev. Bull. 73 (2014)) on SSRN. Here is the abstract:
As a fiduciary and officer of the court, a lawyer owes others a duty of candor. Recognizing this fundamental duty, the ABA Model Rules of Professional Conduct includes specific rules demanding truthfulness by lawyers in their communications with the court, third parties encountered in the course of representing a client, jurors, attorney admission and disciplinary bodies, and even members of the general public. The Model Rules protect just about everyone from false or misleading statements by lawyers — oh yes, except for clients. Surprisingly, the long-standing duty of absolute candor and truthfulness to clients finds no expression in the ABA rules governing the legal profession.
Sunday, April 13, 2014
From The New York Times:
Mr. Daly spent more than a week immobilized, not just by his three bullet wounds, but also by a set of handcuffs and ankle restraints — all because of an unpaid $25 fine for possessing a cup of wine in public.
What happened to Mr. Daly in December was no fluke. The New York Police Department routinely performs warrant checks on shooting victims. If an outstanding warrant is found, the police generally handcuff and shackle the victim, often for the whole hospital stay, no matter how minor the underlying offense or how grievous the injuries.
|1||669||Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing
Mark W. Bennett and Ira P. Robbins
U.S. District Court (Northern District of Iowa) and American University - Washington College of Law
Date posted to database: 13 Mar 2014
|2||379||The Due Process Exclusionary Rule
Richard M. Re
Yale Law School
Date posted to database: 28 Feb 2014
|3||307||Thinking Slow About Sexual Assault in the Military
Matthew David Burris
United States Airforce
Date posted to database: 26 Mar 2014 [new to top ten]
|4||264||Law and Neuroscience
Owen D. Jones, Jeffrey D. Schall andFrancis X. Shen
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School
Date posted to database: 19 Mar 2014
|5||260||Will There Be a Neurolaw Revolution?
Adam J. Kolber
Brooklyn Law School
Date posted to database: 19 Feb 2014
|6||260||Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction
DePaul University - College of Law
Date posted to database: 3 Mar 2014[new to top ten]
|7||209||Intellectual Property and the Presumption of Innocence
Irina D. Manta
Hofstra University - Maurice A. Deane School of Law
Date posted to database: 5 Feb 2014 [6th last week]
|8||207||The Illusory Eighth Amendment
John F. Stinneford
University of Florida Levin College of Law
Date posted to database: 7 Feb 2014 [7th last week]
Joshua D. Blank and Ruth Mason
New York University School of Law and University of Virginia School of Law
Date posted to database: 2 Feb 2014 [8th last week]
|10||187||A Perfect Storm Brewing for Fire Investigators in Court
Terry-Dawn Hewitt and Wayne J. McKenna
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 9 Mar 2014 [new to top ten]
Saturday, April 12, 2014
Paul H. Robinson (University of Pennsylvania Law School) has posted Murder Mitigation in the Fifty-Two American Jurisdictions: A Case Study in Doctrinal Interrelation Analysis on SSRN. Here is the abstract:
The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of general conclusions can be drawn from the patterns that the survey reveals. The methodology offers a case study in the kinds of insights to be gained from such doctrinal interrelation analysis, insights about not only the doctrines at hand but also about the law-making process that produced them.
Felony murder is a much-maligned and much-misunderstood doctrine. At its broadest, it is indefensible. Guyora Binder and David Crump have compellingly shown that this broad felony murder never really existed and that the limitations that jurisdictions have placed on the doctrine largely make it normatively acceptable.
Vicarious felony murder, however, has not been so defended. This article provides such a defense, drawing from philosophy and psychology work on joint shared intention, action and omission, and imputation of culpability. It concludes that, to the extent that underlying felony murder is normatively appropriate and methods of proof are reliable, vicarious felony murder is also eminently defensible because it reliably functions to discern culpability and impose condign punishment.
Orin Kerr has this timely post at The Volokh Conspiracy. In part;
The cell phone search cases currently pending at the Supreme Court, Wurie and Riley, offer the Justices three basic choices for when the Fourth Amendment allows a warrantless search of a cell phone at the time of arrest under the search incident to arrest exception to the warrant requirement. The answer could be “always,” underUnited States v. Robinson; “sometimes,” primarily under Arizona v. Gant; or “never,” under Chimel v. California. In this post, I want to explain why I think the answer shouldn’t be “always.” In my next post, I’ll explain why I think that both “sometimes” and “never” are plausible answers, and I’ll try to mark out the parameters of the choice between them.
From The Crime Report:
Texas Gov. Rick Perry’s dramatic rejection last month of the federal Prison Rape Elimination Act(PREA) called attention to the fact that many states are having trouble complying with 288 regulations required to follow the 11-year-old law.
On March 28, Perry said that his state would not comply with new federal standards aimed at preventing sexual assaults in prisons, calling them a “burden” and “ill-conceived” in a letter to Attorney General Eric Holder.
Friday, April 11, 2014
Paul J. Larkin Jr. (The Heritage Foundation) has posted Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases (Loyola Law Review, New Orleans, Vol. 47, 2014, Forthcoming) on SSRN. Here is the abstract:
Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases. In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms. And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements. Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review. This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement. The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing. Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies. This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles. The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors. Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution-agreement process.
Kevin M. Barry (Quinnipiac University - School of Law) has posted From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty on SSRN. Here is the abstract:
Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.
Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future.
Thursday, April 10, 2014
Eugene Volokh has this post at The Volokh Conspiracy. In part:
I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.
Manuel A. Utset (Florida State University College of Law) has posted two pieces on SSRN. The first is Corporate Actors, Corporate Crimes and Time-Inconsistent Preferences (1 Virginia Journal of Criminal Law, No. 2, p. 265 (2013)). Here is the abstract:
This article examines criminal misconduct by corporations and their agents. It allows for the possibility that corporate agents systematically mispredict their future willpower — their ability to withstand the transient pull of immediate gratification. The article shows that even relatively small mispredictions about their willpower can lead agents to engage in repeated misconduct, notwithstanding a long-term preference to obey the law — “time-inconsistent (TI) misconduct.” As a result, in most criminal law scenarios, the optimal sanctions for corporate actors with perfect self-control will under-deter TI actors. But the article also shows that, to the extent that the immediate costs of committing a crime are sufficiently high, a TI actor may repeatedly procrastinate following through with misconduct that, from a long-term perspective, made economic sense — i.e., the expected benefits exceeded the expected sanctions. In scenarios involving this sort of “time-inconsistent obedience,” the standard optimal sanctions will under-deter. The TI misconduct theory allows for a more intuitive explanation of repeated violations of securities, banking, and environmental laws by corporations and their agents. The theory also predicts that corporate governance problems will be more severe, to the extent that gatekeepers and regulators exhibit TI preferences, and as the immediate costs of acquiring information increases.
Anna Roberts (Seattle University School of Law) has posted Asymmetry as Fairness: Reversing a Peremptory Trend (Washington University Law Review, Vol. 92, No. 6, (2015 Forthcoming)) on SSRN. Here is the abstract:
A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical solution is more appropriate. Second, the states historically adopted an asymmetrical solution — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, declaring that there are no reasons not to. This Article supplies those reasons, demonstrating that asymmetrical allocation of peremptory challenges not only brings benefits in the jury selection context, but also helps resist tendencies elsewhere in the criminal justice system to equate asymmetry with unfairness, and thus to erode foundational protections.
Wednesday, April 9, 2014
A wide range of commentators have raked through the ruins of the 2008 financial collapse confident that there were significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to have brought them. Their confidence that blockbuster criminal cases could have been made and were not rests on shaky grounds however. So too does their faith that the hunting of heads is a socially productive response to the collapse. All too frequently missing from current debates has been sustained engagement with realities of federal criminal law enforcement. The goal of this essay is to bring somewhat prosaic considerations of law and institutional capacity back into the conversation. While I offer little in the way of regulatory or architectural reform, I simply seek to clear away broad rhetoric that can only impede such efforts.