Saturday, June 24, 2017
Jacqueline Hodgson (University of Warwick - School of Law) has posted From the Domestic to the European: An Empirical Approach to Comparative Custodial Legal Advice (In: Ross, Jacqueline E. and Thaman, Stephen C., (eds.) Handbook on Comparative Criminal Procedure. Research Handbooks in Comparative Law series. Cheltenham, UK and Northampton, MA: Edward Elgar, pp 258-79 (2016)) on SSRN. Here is the abstract:
Comparative criminal justice has much to teach us, not only in our relative understanding of the criminal procedures of national jurisdictions, but also in the critical analysis of wider European norms of the European Convention on Human Rights (ECHR) and most recently, the European Union (EU). Drawing on the findings of an empirical and comparative study of the suspect’s right to legal counsel, together with earlier empirical research, this chapter analyses the scope and effectiveness of the standards set by the European Court of Human Rights (ECtHR) in its interpretation of the ECHR and the recent EU provisions setting out procedural safeguards for suspects detained and interrogated in EU countries
Friday, June 23, 2017
Even as time machines remain as fictional as ever, time-travel stories hold important lessons for legal reasoning. Starting from the ancient paradigms of prophecy, the article explores the key features of the genre. Considering four key time-travel themes — the self-fulfilling prophecy, predictive policing, evil time-travelers, and getting one shot to undo a fateful moment — the article discusses how time-travel movies express subtle (and not-so-subtle) critiques of cornerstone legal concepts such as mens rea, culpability, obedience to law and individual freedom, regulation of information asymmetries, and negligence. Through this analysis, the article aims to introduce time-travel movies into the broader field of law and film studies.
Leigh Goodmark (University of Maryland Francis King Carey School of Law) has posted Should Domestic Violence Be Decriminalized? (40 Harvard Journal of Law and Gender 53 (2017)) on SSRN. Here is the abstract:
In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence.
Robert Lee Bolton III (Fairmont State University) has posted W.Va. Code § 61-2-9d – Some Thoughts on West Virginia's New Strangulation Law (119 West Virginia Law Review Online __ (Forthcoming)) on SSRN. Here is the abstract:
In March of 2016, the West Virginia Legislature passed a new law adding a new section to W.Va. Code § 61-2-1 et al. which specifically criminalized strangulation as a felony offense under state law. Previously, such offenses would have been charged under the West Virginia Code's provisions for domestic battery, malicious wounding, or attempted murder. The law's passage was the culmination of prior efforts by the legislature during the prior year. The primary motivation to punish this behavior originated in medical studies evidencing a substantially higher likelihood of homicide occurring in domestic relationships where strangulation previously occurred. Upon taking effect in June of 2016, West Virginia joined the majority of states which punished strangulation as a separate offense. However, although the language used in the West Virginia Code was similar to many other jurisdictions, the West Virginia Supreme Court of Appeals has yet to interpret the provision's language requiring loss of consciousness or bodily injury as the threshold for conviction. As a result, how the law is applied varies widely among prosecutors, lower courts, and law enforcement. In addition, the rate of charges being filed under the new statute varied considerably, with some counties having not yet applied it and others doing so on dozens of occasions. The purpose of this article is to compare the approaches of other jurisdictions on what constitutes "bodily injury" and also some proposals for future interpretations and revisions to the law
Thursday, June 22, 2017
Alberto Gonzales and Donald Q. Cochran (Belmont University - College of Law and Belmont University - College of Law) have posted Police-Worn Body Cameras: An Antidote to the 'Ferguson Effect'? (Missouri Law Review, Vol. 82, No. 2, p. 299 (2017)) on SSRN. Here is the abstract:
You are a police officer working the night shift in a major U.S. city. In the dark hours of the early morning, you come across a group of young males in a part of the city known for criminal activity. When they see your patrol car, the young men stop what they are doing and look away quickly. All of your training, as well as the instincts that you have developed over years patrolling these same streets, tells you to stop and at least attempt to start a conversation with the group to determine whether criminal activity is afoot and perhaps prevent it. There is, however, a nagging thought in the back of your head. Isn’t it possible – or perhaps likely – that someone in the group or nearby will have a video device and record the encounter? What if the crowd attempts to provoke a confrontation and then records it? What if the recording is posted to the Internet or sent to the media? Should such thoughts temper your judgment in this situation? Would they make you hesitate to get out of the car? Would it make a difference to you if you knew that you were wearing a body camera – one that you controlled, that would record your view of the situation, with images that could not be disposed of or edited after the fact by someone intending to deprive viewers of necessary context?
Stuart P. Green (Rutgers Law School) has posted To See and Be Seen: Reconstructing the Law of Voyeurism and Exhibitionism (American Criminal Law Review, Vol. 54, Forthcoming) on SSRN. Here is the abstract:
Although the incidence of voyeurism and indecent exposure is relatively low compared to other sexual offenses, both crimes raise fundamental questions about the proper scope of the criminal law in a liberal society. The two offenses mark out, and mutually reinforce, the borders of the ever-changing and culturally variable understanding of what is public and what is private. In voyeurism, the offender violates the victim's right to exclude others from her private domain. In indecent exposure, the offender violates the victim's right not to be included in the private domain of others. The interests and rights at stake in the two offenses are in a sense complementary. But they also reflect significant asymmetries.
Zachary S. Price (University of California Hastings College of the Law) has posted Funding Restrictions and Separation of Powers (Forthcoming: Vanderbilt Law Review, Vol. 71, 2018) on SSRN. Here is the abstract:
Congress’s “power of the purse” — its authority to deny access to public funds — is one of its most essential constitutional authorities. A crucial check on executive over-reaching, it may provide authority to stop a President in his tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the Obama Administration, sharp conflicts over this issue arose in areas of acute policy conflict, including climate change, prisoner transfers, proposed closure of detention facilities at the Guantanamo Naval Base, and federal marijuana enforcement. Many planned initiatives of the Trump Administration — from immigration enforcement to renegotiation of trade deals to relocation of U.S. forces overseas or military operations against Islamic terrorists or other foreign adversaries — could present analogous questions. Despite the issue’s contemporary salience, however, existing scholarship provides no satisfactory account of Congress’s power to control the other two branches through appropriations constraints.
Opinion concluding that crime of wrongfully procuring citizenship requires finding that illegal act affected decision
Justice Kennedy delivered the opinion of the Court in Weaver v. Massachusetts. Justice Thomas, joined by Justice Gorsuch, filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment in which Justice Gorsuch joined. Justice Breyer filed a dissenting opinion joined by Justice Kagan.
Wednesday, June 21, 2017
Sherri Lee Keene (University of Maryland Francis King Carey School of Law) has posted Stories that Swim Upstream: Uncovering the Influence of Stereotypes and Stock Stories in Fourth Amendment Reasonable Suspicion Analysis (Maryland Law Review, Forthcoming) on SSRN. Here is the abstract:
This Essay challenges courts to acknowledge and address racial bias in the courtroom at a fundamental level. It discusses the limitations of judicial review of police stops, which fail to appreciate the potential impact of implicit racial bias on a police officer’s assessment of a citizen’s behavior. Specifically, it focuses on the Supreme Court’s Fourth Amendment reasonable suspicion analysis and explains how the potential for biased decision making is worsened in a legal system where race is deemed legally irrelevant, and as a result not meaningfully considered. Moreover, this Essay discusses the specific challenge of cognitive shortcuts that can mask implicit racial bias, limiting a court’s ability to recognize its potential influence and thus engage in a robust review of police officers’ actions.
Divya Sukumar, Jacqueline Hodgson and Kimberley Wade (University of Warwick, University of Warwick - School of Law and University of Warwick) have posted two pieces on SSRN. The first is Strategic Disclosure of Evidence: Perspectives from Psychology and Law (Psychology, Public Policy, and Law, Volume 22, Issue 3, Aug. 2016). Here is the abstract:
The police frequently present their evidence to suspects in investigative interviews. Accordingly, psychologists have developed strategic ways in which the police may present evidence to catch suspects lying or to elicit more information from suspects. While research in psychology continues to illustrate the effectiveness of strategic evidence disclosure tactics in lie detection, lawyers and legal research challenge these very tactics as undermining fair trial defense rights. Legal research is alive to the problems associated with strategically disclosing evidence to a suspect, such as preventing lawyers from advising the suspect effectively, increasing custodial pressure for the suspect, and worsening working relations between lawyers and police. This paper brings together the opposing research and arguments from the two disciplines of psychology and law, and suggests a new way forward for future research and policy on how the police should disclose evidence.
Roxanna Altholz (University of California, Berkeley, School of Law) has posted Elusive Justice: Legal Redress for Killings by U.S. Border Agents (Berkeley La Raza Law Journal, Vol. 27, No. 1, 2017) on SSRN. Here is the abstract:
Since the 1990s, U.S. Customs and Border Protection (CBP) agents have killed approximately fifty Mexican and U.S. nationals along the U.S.-Mexico border. Many of the victims, including several teenagers, were unarmed and shot in the back. The vast majority of CBP agents have faced no criminal, civil, or disciplinary action for their conduct. This Article identifies U.S. legal doctrines, defenses, and procedures that make justice elusive for the relatives of victims. The Article argues that there is mounting legal and political pressure to hold CBP agents accountable for violence at the border and suggests that reformists look to international standards to help guide efforts to address systemic barriers to redress.
Tuesday, June 20, 2017
This essay examines the increasingly ambivalent role and status of the French prosecutor, the procureur. As a judicial officer (magistrat), she is required to act in and to uphold the public interest, but her hierarchical accountability to the executive and her role in the formation and implementation of local criminal justice policy threaten her independence, notably in the eyes of her fellow magistrats. The dominance of the executive, both politically and through the imposition of managerialist imperatives, is felt in the ever-expanding role of the procureur, especially in the local sphere. Whilst the limited forms of legal and structural accountability in place leave the prosecutor with broad discretion, this is diminished through the drive to standardization resulting from the delegation of work to fulfill the demands of dealing with greater numbers of cases more quickly, with fewer resources.
This article ventures into the unchartered waters of virtual reality criminal law, presenting both a novel multidisciplinary insight into a technological medium that many believe will shape future human society and an unexpected challenge to an inherently flawed cyber intrusion legal doctrine.
Thirty years ago, lawmakers in countries all over the world enacted new and specialized computer misuse legislation, acting on the notion that existing criminal law is insufficient to the task of prosecuting and resolving computer intrusion cases. Unfortunately, the resulting unauthorized access regime has created significant problems. One is the potential criminalization of everyday technological behavior, brought about by an overly extensive normative scope; another is chronic under-enforcement; and yet another is a wider chilling effect on creativity and digital freedoms.
Ann M. Eisenberg, Amelia Courtney Hritz, Caisa E. Royer and John H. Blume III (University of South Carolina - School of Law, Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students, Cornell University, College of Human Ecology, Law, Psychology and Human Development Program, Students and Cornell Law School) have posted If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014 (68 South Carolina Law Review 373, 2017) on SSRN. Here is the abstract:
This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.
The study and the article it builds on add to decades of empirical research exploring the impacts (or lack thereof) of Batson and related jurisprudence on jury selection practices.
Jacqueline Hodgson (University of Warwick - School of Law) has posted Legitimating Preventive Detention: A Comment on 'Exceptional Laws in Europe with Emphasis on 'Enemies'' (in Caianiello, M. and Corrado, M. (eds) Preventing Danger: New Paradigms in Criminal Justice (Durham, North Carolina: Carolina Academic Press) 60-62) on SSRN. Here is the abstract:
Germany operates a “double track” system of punishment and preventive detention. Traditionally, this system included fixed-term prison sentences, which were limited by the safeguards of legality, proportionality, double jeopardy, etc., followed by preventative detention of indefinite length, which was not limited by those safeguards. In 2010, the European Court of Human Rights determined that the preventive period had to count as punitive and, thus, should be subject to the safeguards that surround punishment. This decision affects many other European countries that share a version of the “double track” system. While Europe is retreating under the tutelage of the ECHR on this matter, the United States has been developing its own system of preventive detention, both within the criminal law (for sexual predators) and without (for suspected terrorists). The essays in this volume bring together the best of European and American comparative writing on these issues.
Monday, June 19, 2017
Jocelyn Simonson (Brooklyn Law School) has posted Democratizing Criminal Justice Through Contestation and Resistance (Northwestern University Law Review, Vol. 111, 2017) on SSRN. Here is the abstract:
Collective forms of participation in criminal justice from members of marginalized groups – for example, when people gather together to engage in participatory defense, organized copwatching, or prison labor strikes – have a profound effect on everyday criminal justice. In this Essay I argue that these bottom-up forms of participation are not only powerful and important, but also crucial for democratic criminal justice. Collective mechanisms of resistance and contestation build agency, remedy power imbalances, bring aggregate structural harms into view, and shift deeply entrenched legal and constitutional meanings. Many of these forms of contestation display a faith in local democracy as a tool of responsive criminal justice, while simultaneously maintaining a healthy skepticism of the law and existing legal institutions that maintain the status quo. These forms of resistance and contestation are not antagonistic, but agonistic; not revolutionary, but devolutionary.
Keith N. Hylton (Boston University - School of Law) has posted Whom Should We Punish, and How? Rational Incentives and Criminal Justice Reform (Wythe Lecture, William & Mary Law School, 2017) on SSRN. Here is the abstract:
This essay sets out a comprehensive account of rational punishment theory and examines its implications for criminal law reform. Specifically, what offenses should be subjected to criminal punishment, and how should we punish? Should we use prison sentences or fines, and where should we use them? Should some conduct be left to a form of market punishment through private lawsuits? Should fines be used to fund the criminal justice system? The answers I offer address some of the most important public policy issues of the moment, such as mass incarceration and the use of fines to finance law enforcement. The framework of this paper is firmly grounded in rational deterrence policy, and yet points toward reforms that would soften or reduce the scope of criminal punishment.