Wednesday, May 22, 2013
Dysart on the Protected Innocence Initiative
Tessa L. Dysart (Regent University School of Law) has posted The Protected Innocence Initiative: Building Protective State Law Regimes for America’s Sex-Trafficked Children (Columbia Human Rights Law Review, Vol. 44, 2013) on SSRN. Here is the abstract:
Under the federal Trafficking Victims Protection Act of 2000 (TVPA), the prostitution of minors under the age of eighteen falls specifically within the crime of human trafficking, which makes prostituted children trafficking victims. Human sex trafficking includes the “recruit[ing], entic[ing], harbor[ing], transport[ing], provid[ing], obtain[ing], or maintain[ing]” of minors for commercial sexual exploitation. The passage of the TVPA increased political and public awareness of the existence of human trafficking, but initially most of this awareness was focused on trafficking across international borders. In recent years, however, the federal government and non-profit organizations have turned their attention to the trafficking of U.S. citizens in general and domestic minor sex trafficking in particular.
Bascuas on the Fourth Amendment in the Information Age
Ricardo J. Bascuas (University of Miami - School of Law) has posted The Fourth Amendment in the Information Age (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In 2013, the Supreme Court tacitly conceded that the Expectations of Privacy Test used since 1967 to assess claims of Fourth Amendment violations was inadequate. It asserted that the previous property-based test for Fourth Amendment violations had never, despite widespread agreement to the contrary, been overruled. The Court compounded its artfulness by applying a new, significantly weaker trespass test that, like the Expectations of Privacy Test, enjoys no legal pedigree. This new trespass test, which is to be applied together with the Expectations of Privacy Test, suffers from the same defect as the test it purportedly supplements. It does not require the government to respect private property rights absent probable cause.
Tuesday, May 21, 2013
"How quickly can and will (hundreds of) imprisoned crack defendants file "Blewett claims"?"
Doug Berman at Sentencing Law & Policy discusses the implications of a Sixth Circuit case
declaring that the reduced mandatory minimum crack sentences set out in the Fair Sentencing Act of 2010 must be applied even to those offenders sentenced before the Act’s effective date. This ruling could means still-imprisoned crack defendants sentenced in the two decades before the FSA could now seek a reduction in their mandatory minimum sentences under the FSA's new terms, at least if they were originally sentenced in the Sixth Circuit.
. . .
A little bit of very rough data analysis from a variety of US Sentencing Commission publications indicates that there may still be as many as 20,000 federal prisoners currently in BOP custody serving pre-FSA mandatory minimum crack sentences, and that the Sixth Circuit has historically been responsible for about 10% of nationwide crack sentences. That means that perhaps two thousand or more imprisoned federal defendants might reasonably file what I will can a "Blewett claim" in the district courts of the Sixth Circuit.
"Judge Criticizes ‘High Error Rate’ of New York Police Stops"
From the New York Times:
After listening to two months of testimony on the New York Police Department’s stop-and-frisk practices, Judge Shira A. Scheindlin left little doubt about her views of their effectiveness in helping detect criminal behavior.
. . .
On Monday, Judge Scheindlin asked the lawyers what evidence was required before she could conclude that a police officer’s decision to stop someone had been influenced by race. It is a critical question, particularly because there is no evidence that the officers used racial slurs or overtly racial language when stopping any of the individual plaintiffs who testified in court.
In the absence of overt racial slurs, Judge Scheindlin repeatedly asked a city lawyer, would it be appropriate to infer that a police encounter was racially motivated if an officer stopped a black man with no apparent basis?
Fazzi on California's Corrections Realignment
Steven Thomas Fazzi has posted A Primer on California's 2011 Corrections Realignment: Why California Placed Felons Under County Control (McGeorge Law Review, Vol. 44, No. 2, 2013) on SSRN. Here is the abstract:
California's 2011 corrections realignment marked a dramatic shift in the way the state apportions felon management responsibilities between its central government and its local governments (in particular its 58 counties). This article offers a brief summation of the corrections realignment legislation. It discusses the dual causes of the realignment as well as the legislation's projected consequences. This article also provides appendices summarizing the legislation's key statutory changes.
Monday, May 20, 2013
"Statutory Rape of 15-Year-Old by 18-Year-Old"
Eugene Volokh has this post at The Volokh Conspiracy discussing the controversy over prosecution in a same-sex relationship. In part:
The story alleges that the 15-year-old girl’s parents are upset about the same-sex nature of the relationship, so it’s possible that their motivation in complaining to the police relates to that. (I’m not certain that this is so, since it’s quite possible that the parents would also be upset about their 15-year-old daughter having an opposite-sex relationship with an 18-year-old man, so the same-sex nature of the relationship may not even be a but-for cause of the complaint; but let’s set that aside for now.) But the police and the school can’t just say, “Your motivation for the complaint is hostility against lesbianism, so we’ll refuse to act on the complaint, even though this is a crime that we’d take seriously if we thought your complaint was motivated by general disapproval of sex between 15- and 18-year-olds.” And absent some evidence that Florida authorities turn a blind eye on parental complaints about 18-year-old men having sex with 15-year-old girls, I don’t really see this as a case about “same-sex relationship[s]” as such.
Goosen on Imminence and Battered Women
Samantha Goosen (University of KwaZulu-Natal - University Of KwaZulu-Natal) has posted Battered Women and the Requirement of Imminence in Self-Defence (Potchefstroom Electronic Law Journal, Vol. 16, No. 1, 2013) on SSRN. Here is the abstract:
Should the South African courts abolish the traditional imminence standard, something must be used to stand in its place. The identification of the various alternatives which have been suggested to replace imminence - most notably the establishment of the "reasonable woman standard" as advanced in the case of S v Engelbrecht 2005 (92) SACR 41 (W) - has moved the law of self-defence into the realm of subjectivity. The end result not only undermines self-defence as a justification defence, but is also unworkable for a number of reasons. For instance, utilising expert testimony to explain how the battered woman’s syndrome affects individual perception would leave a judge with no meaningful way to determine if that abused woman’s belief in the imminence of danger was reasonable, even if viewed from her distorted perspective. It is suggested that no reference need be made to the "reasonable battered woman", since South African courts already do this to a limited extent by taking a number of factors into account in determining if the abused woman acted reasonably. By rethinking certain factors in the situation as a set of relatively innocuous normative propositions, the abused woman’s actions can be judged in accordance with standard propositions in the law of self-defence.
Today's criminal law/procedure cert grant
Issue summary from ScotusBlog, which will also link to papers when available:
- Fernandez v. California: whether a co-occupant of a home must be on hand to object to a police search, when the other occupant has agreed to let the officers enter.
Opinion refusing habeas relief for Michigan's retroactive abolition of diminished-capacity defenseJustice Ginsburg delivered the opinion for a unanimous Court in Metrish v. Lancaster.
Sunday, May 19, 2013
Top-Ten Recent SSRN Downloads
|1||4572||The Dangers of Surveillance
Neil M. Richards,
Washington University in Saint Louis - School of Law,
Date posted to database: March 25, 2013
|2||696||Foreword: Accounting for Technological Change
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 17, 2013
|3||395||Knives and the Second Amendment
David B. Kopel, Clayton E. Cramer,Joseph Olson,
Independence Institute, College of Western Idaho, Hamline University - School of Law,
Date posted to database: March 24, 2013
|4||326||Lanny Breuer and Foreign Corrupt Practices Act Enforcement
Southern Illinois University School of Law,
Date posted to database: March 24, 2013
|5||284||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013
|6||247||Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions
Matthew C. Waxman,
Columbia Law School,
Date posted to database: March 21, 2013
|7||191||Antitrust Corporate Governance and Compliance
Rosa M. Abrantes-Metz, D. Daniel Sokol,
Global Economics Group, LLC, University of Florida - Levin College of Law,
Date posted to database: April 10, 2013 [9th last week]
|8||171||Lafler and Frye: A New Constitutional Standard for Negotiation
Texas Tech University School of Law,
Date posted to database: March 21, 2013 [10th last week]
|9||145||Federal Public Defense in an Age of Inquisition
Federal Defenders of New York,
Date posted to database: May 2, 2013 [new to top ten]
Loyola Law School Los Angeles,
Date posted to database: March 23, 2013 [new to top ten]
Saturday, May 18, 2013
"Trial Weighs Importance of Arrests in Police Stops"
From the New York Times:
The so-called hit rate — often measured as a percentage of stops that lead to an arrest or summons — has long been at the center of the fraught public debate over the stop-and-frisk tactic. Critics cite it as evidence that the police stop people without legal ground in minority neighborhoods and use the stops as an opportunity to search for contraband. The department, however, interprets declines in the hit rate as evidence that the tactic works: as more stops deter criminals from carrying guns, there are fewer guns on the street, leading to fewer arrests.
But now Judge Scheindlin, who is deciding the case in Federal District Court in Manhattan instead of a jury, must determine whether the rate has any constitutional significance. Does a low rate suggest that the police have watered down the meaning of reasonable suspicion — the legal standard officers must meet before stopping someone? Or does it reveal nothing more than the challenging nature of police work?
In deciding what constitutional importance to attach to the rates, Judge Scheindlin may be forced to rely more on instinct than legal precedent, of which there is little.
Bowers on Counsel in Plea Bargaining
Josh Bowers (University of Virginia School of Law) has posted Two Rights to Counsel (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
This forthcoming essay argues that there is not one constitutionally recognized right to counsel, but two. There is a right to legal counsel and a right to extralegal counsel. The right to legal counsel applies principally to the formal domain of the criminal trial; the right to extralegal counsel applies exclusively to the informal domains of the plea bargain and guilty plea. To understand the distinction, consider the Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye. An underappreciated feature of these rulings is the manner by which the Court has encouraged (and perhaps even constitutionally required) counsel to bargain “creatively” around substantive law. Specifically, the Court has signaled that prosecutors and defense attorneys — not legislators — are the system’s real policy makers, and that, accordingly, effective assistance of counsel ought to be measured against their conception of the “sound administration of criminal justice.” In the process, the Court has almost re-conceptualized the right to counsel as a constitutional entitlement to skirt legislative command — an entitlement that Justice Scalia derisively has termed a threat to the legality principle. It does not follow, however, that the Court’s two-track jurisprudential approach is misguided. Whereas the approach continues a troubling trend away from legislative and lay influence over criminal justice and toward professional executive control, it also may constitute the pragmatic (and even normatively compelled) best course in a second-best system of criminal justice that depends procedurally on horse trading and substantively on mandatory sentencing statutes that ill serve any defensible conception of proportionality or crime control.
Friday, May 17, 2013
"A ‘Pandora’s Box of Problems’ From a Police Shooting and Drugs in a Utah Town"
From the New York Times:
West Valley City officials offered a few details from their investigation into the drug squad.
They found that officers had mishandled evidence and had placed tracking devices on suspects’ cars without getting necessary warrants. Confidential informers had been misused. In some cases, officers had removed trinkets like necklaces or candles from the scene of drug arrests as “trophies.” In a few instances, drugs and money were missing.
. . .
The pattern was repeated in case after case, defense lawyers said: When they decided to challenge drug charges rather than accept a quick guilty plea, West Valley City folded up the cases. Then the district attorney, after reviewing hundreds of cases, began dismissing them by the dozen, saying he could not successfully prosecute them.
"Galanter Throws O.J. Simpson Under the Bus"
From TalkLeft, discussing Simpson's claim of ineffective assistance. In part:
O.J. Simpson's former attorney, Yale Galanter, threw O.J. under the bus today, testifying O.J. told him he knew others were bringing guns to the hotel room where O.J. planned to retrieve his possessions. He even said O.J. told him he asked the others to bring the guns (called "heat.")
Bennardo on Post-Sentencing Appellate Waivers
Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Incentivizing Lawfulness Through Post-Sentencing Appellate Waivers on SSRN. Here is the abstract:
A sentencing appellate waiver is a promise by a criminal defendant not to appeal her sentence. These provisions routinely appear in federal defendants’ plea agreements. With a few narrow exceptions, a knowing and voluntary sentencing appellate waiver bars a defendant from appealing all issues within the scope of the waiver. Using previous models of judicial behavior and available empirical data, this article argues that the inclusion of sentencing appellate waivers in plea agreements creates bargaining inefficiencies and removes important incentives from the sentencing process. As a solution, the article proposes that sentencing appellate waivers should take the form of separate post-sentencing agreements.
Justice & Meares on How the Criminal Justice System Educates Citizens
Benjamin Justice (Rutgers University) (pictured) and Tracey Meares (Yale Law School) have posted How the Criminal Justice System Educates Citizens on SSRN. Here is the abstract:
The modern democratic state interacts with citizens through various paths, but at least two are central: public school systems and criminal justice systems. Rarely are criminal justice systems thought to serve the educational function that public school systems are specifically designed to provide. Yet for increasing numbers of Americans, the criminal justice system plays a powerful and pervasive role in providing a formal civic education that mirrors, in the reverse, the education that public schools are supposed to offer. Deploying educational curriculum theory, we analyze three of the primary processes of criminal justice systems — adjudication, incarceration, and policing — to demonstrate the operation of two parallel curricula: a symbolic, overt curriculum rooted in positive civic conceptions of fairness and democracy, and a hidden curriculum, rooted in empty or negative conceptions of certain citizens and their relationship to the state. We conclude with a few observations and recommendations that grow out of seeing the criminal justice system as a source of civic education.
Thursday, May 16, 2013
Cassell & Mitchell on Applying the Crime Victims' Right Act Before Charges
Paul G. Cassell and Nathanael J. Mitchell (University of Utah - S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law) have posted Crime Victims’ Rights During Criminal Investigations? Applying the Crime Victims’ Rights Act Before Criminal Charges Are Filed (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In recent years, federal and state enactments have given crime victims extensive rights to participate in criminal cases. Many of these rights apply only after the filing of criminal charges, such as the victim’s right to be heard during court proceedings. A crime victim's right to deliver an impact statement at sentencing, for instance, can only be exercised after the prosecutor has filed charges against a defendant and obtained a conviction. Other rights, however, could apply even before the formal filing of charges. As one example, the federal Crime Victim’s Rights Act (CVRA) extends to crime victims the right to “confer” with prosecutors. Can victims exercise this right even before charges have been filed?
Madden on Criminal Evidence and Human Rights
Mike Madden (Schulich School of Law at Dalhousie University) has posted Book Review - Criminal Evidence and Human Rights: Reimagining Common Law Procedural Traditions, Edited by Paul Roberts and Jill Hunter ((2013) 50:4 Osgoode Hall Law Journal) on SSRN. Here is the abstract:
This piece reviews Paul Roberts and Jill Hunter's recent edited collection dealing with evidence and human rights in various domestic jurisdictions around the world.
Bowers on how Lafler and Frye help the government
Josh Bowers (University of Virginia School of Law) has posted Lafler, Frye, and the Subtle Art of Winning by Losing (Federal Sentencing Reporter, Vol. 25, No. 2, pp. 126-130, 2012) on SSRN. Here is the abstract:
In its recent decisions, Lafler v. Cooper and Missouri v. Frye, the Court recognized defendants’ rights to effective assistance of plea-bargaining counsel. Counter-intuitively, however, it is the government that may come to benefit most from the Court’s rulings against it, not only because a well-regulated plea-bargaining market facilitates frequent and expeditious plea deals, but also because prosecutors exercise terrific control over that market. Indeed, by making plea offers that are too attractive to reasonably refuse, prosecutors may constitutionally conscript defense counsel to persuade defendants to plead guilty. Moreover, prosecutors shape the practice norms against which the competency of bargaining counsel is now measured.
Wednesday, May 15, 2013
"Brady Violation Leads to Arrest of Former Texas Prosecutor"
Lawrence Goldman has this post at White Collar Crime Prof. In part:
A Texas judge, acting as a court of inquiry, under Texas law, after a hearing ordered the arrest of a current Texas state court judge, Ken Anderson, for contempt and withholding evidence from the court and defense attorneys when Anderson was a District Attorney prosecuting Michael Morton, who was recently demonstrated to be actually innocent for the murder of his wife for which he served 25 years of a life sentence. See here.
. . .
For denying to the trial judge that there was exculpatory evidence and for failing to provide a full copy of a police report demanded by the judge, Anderson was charged with tampering with evidence, tampering with a government document, and contempt. The most serious charge, evidence tampering, carries a maximum prison term of ten years, far short of the 25 years Morton served.