Monday, May 20, 2013
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.
"Doctor Avoids Death Penalty in Murders at His Clinic"
From the New York Times:
Kermit Gosnell, the doctor convicted of murdering babies after failed abortions in his Philadelphia clinic, avoided the death penalty on Tuesday by agreeing to a sentence of life in prison without parole.
. . .
Prosecutors had said from the start of the trial that they would seek the death penalty because of the “aggravated” circumstances of the crimes Dr. Gosnell was charged with: murder of more than one person and the young age of the victims.
But the district attorney’s willingness to compromise on a life-without-parole sentence seemed a calculation about the difficulty of persuading the same 12 jurors to agree on capital punishment after they spent 10 days sifting evidence and acquitted Dr. Gosnell on one first-degree murder charge.
Meyn on Criminal Discovery
Ion Meyn (University of Wisconsin Law School) has posted Discovery and Darkness: The Information Deficit in Criminal Disputes (Brooklyn Law Review , Forthcoming) on SSRN. Here is the abstract:
Scholarship has long recognized a disparity between the discovery rights afforded to civil litigants and those afforded to criminal defendants. The consensus is that this disparity is caused by resource constraints and limited access to the prosecutorial file. This Article challenges that conception, contending that criminal defendants are in fact structurally precluded from conducting any formal investigation. Merely entitled to disclosures of the State's evidence, a criminal defendant must rely on the fruits of the opponent's investigation to somehow suggest a counter-narrative. This dynamic is inconsistent with the design of the adversarial system and results in a failure to engage in adequate pretrial testing. This Article recasts a criminal defendant as an essential party to a criminal investigation who should have the pretrial power to compel information from multiple sources.
Sarch on Yaffe on Attempts
Alex F. Sarch has posted Two Objections to Yaffe on the Criminalization of Attempts (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
In his recent book Attempts, Gideon Yaffe suggests that attempts should be criminalized because of a principle he dubs the "Transfer Principle." This principle holds that if a particular form of conduct is legitimately criminalized, then the attempt to engage in that form of conduct is also legitimately criminalized. Although Yaffe provides a powerful defense of the Transfer Principle, in this paper I argue that Yaffe’s argument for it ultimately does not succeed. In particular, I formulate two objections to Yaffe’s argument for the Transfer Principle. First, I argue that a basic assumption about criminalization, on which Yaffe’s argument crucially depends, is incomplete, and Yaffe’s own attempt to supplement it undermines his argument for the Transfer Principle. Second, I argue that Yaffe’s argument does not properly account for the fact that those who merely attempt a crime and those who complete it might sometimes be responding to reasons in different ways. Accordingly, I conclude that Yaffe has not succeeded in establishing the truth of the Transfer Principle.
Tidwell on Police Non-Cooperation in Immigration Enforcement
Natashia Tidwell (New England Law | Boston) has posted Fragmenting the Community: Immigration Enforcement and the Unintended Consequences of Local Police Non-Cooperation Policies (St. John's Law Review, Vol. 88, No. 1, 2014) on SSRN. Here is the abstract:
The role of local police in federal immigration enforcement remains a divisive issue, both within the legislative branch and among the public at large. Congress’s failure to enact meaningful reform coupled with a post September 11, 2001 increase in the federal government’s reliance on local police to shore up the country’s internal enforcement have transformed local police chiefs into the “public face of the immigration debate.” For these police executives, striking the proper balance between “community” and “policing” is a vexing challenge, one that raises the question of whether the two competing concerns are mutually exclusive.
Tuesday, May 14, 2013
"Isn't it stunningly idiotic for GOP Rep. Sensenbrenner to defend mandatory minimums because of "judge-shopping"?"
From Douglas Berman at Sentencing Law & Policy. In part:
Perhaps Sensenbrenner knows something magical about the operation of the federal criminal justice system that I do not know, but I am pretty sure there are no existing mechanisms for either prosecutors or defense attorneys to somehow "shop" for judges based on their sentencing reputations. . . . [I]s it too much to ask that powerful members of Congress at least have the most basic understanding of how our existing sentencing laws and procedures actually work before they assert that we have to be "stuck with mandatory minimums"?
King on Enforcing Effective Assistance after Martinez
Nancy J. King (Vanderbilt University - Law School) has posted Enforcing Effective Assistance after Martinez (The Yale Law Journal Company, Incorporated in The Yale Law Journal (Forthcoming)) on SSRN. Here is the abstract:
This Essay argues that the Court’s effort to expand habeas review of ineffective assistance of counsel claims in Martinez v. Ryan will make little difference in either the enforcement of the right to the effective assistance of counsel or the provision of competent representation in state criminal cases. Drawing upon statistics about habeas litigation and emerging case law, the Essay first explains why Martinez is not likely to lead to more federal habeas grants of relief. It then presents new empirical information about state postconviction review (cases filed, counsel, hearings, and relief rates), post-Martinez decisions, and anecdotal reports from the states to explain why, even if federal habeas grants increase, state courts and legislatures are unlikely to respond by invigorating state collateral review. The Essay concludes that alternative means, other than case-by-case postconviction review, will be needed to ensure the provision of effective assistance.