Saturday, March 25, 2017
Issue summaries are from ScotusBlog, which also links to papers:
- Lee v. U.S.: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.
- Overton v. U.S.: Whether the petitioners' convictions must be set aside under Brady v. Maryland.
- Turner v. U.S.: Whether the petitioners' convictions must be set aside under Brady v. Maryland.
- Honeycutt v. U.S.: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.
|1||501||Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017
|2||236||The Progressive Prosecutor's Handbook
David Alan Sklansky
Date posted to database: 15 Feb 2017
|3||213||The Undue Influence of Surveillance Technology Companies on Policing
Elizabeth E. Joh
University of California, Davis - School of Law
Date posted to database: 28 Feb 2017
|4||165||The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Date posted to database: 14 Feb 2017
|5||148||Reassessing Prosecutorial Power Through the Lens of Mass Incarceration
William & Mary Law School
Date posted to database: 9 Mar 2017 [new to top ten]
|6||127||Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 [5th last week]
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 23 Jan 2017 [6th last week]
|8||119||The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow andAnkur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 [7th last week]
|9||111||Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System
Data & Society Research Institute
Date posted to database: 21 Feb 2017 [8th last week]
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [9th last week]
Friday, March 24, 2017
Although the privacy of text messages, when retrieved from the recipient, has been solved in US jurisprudence largely by the third-party doctrine, the Canadian courts have rendered the analysis much more complex, in part because they have repudiated the third-party doctrine, and in part because they have adopted a set of different tests that courts have used haphazardly. I propose that despite this complexity, the question affords a relatively simple answer. Normatively speaking, there is no reason to distinguish among letters, email, and text messages: they all attract the same basic privacy interest. However, if the police have objective grounds for believing that particular individuals have been exchanging text messages in furtherance of a crime, the standard of reasonable suspicion is sufficient to justify a limited search, aimed solely at obtaining those messages. This approach allows the public to remain secure in the knowledge that their text messages are not open to random and baseless searches by the police, while nevertheless affording the police access to text messages just when they can articulate objective grounds for believing that the messages will disclose evidence of crime.
Robert J. Currie (Dalhousie University - Schulich School of Law) has posted Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the 'Next Frontier'? on SSRN. Here is the abstract:
A recent and prominent American appeals court case has revived a controversial international law question: can a state compel an individual on its territory to obtain and produce material which the individual owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and potentially resolved—via examination through the lens of the public international law of jurisdiction, and specifically the prohibition of extraterritorial enforcement jurisdiction. Analysis of state practice reveals that unsanctioned cross-border evidence gathering is viewed by states as an intrusion on territorial sovereignty, engaging the prohibition, and that this view properly extends to the kind of state activity dealt with in the Microsoft case.
Lauren Witten has posted Proportionality As a Moral Process: Reconceiving Judicial Discretion and Mandatory Minimum Penalties (Ottawa Law Review, Vol. 48, No. 1, 2017) on SSRN. Here is the abstract:
This article reconceives proportionality in sentencing as a constructive reasoning process rather than as an instrumental means of achieving a fair quantum of punishment. It argues that the Supreme Court of Canada has wrongly adopted the latter view by determining the constitutionality of mandatory minimum sentences according to hypothetical outcomes. R v. Nur is a paradigmatic example of how this error presumes a false objectivity in proportionality assessments that leaves the Court vulnerable to critiques of judicial activism. This paper claims that a process-based conception of proportionality offers a stronger defence of judicial discretion in sentencing than the current framework offers; it better respects institutional roles and provides a more principled basis for declaring the current structure of mandatory minimum penalties unconstitutional. The proportionality as a process theory contends that judges alone are capable of reconciling the values of three constituencies in sentencing—the offender, the judge, and the public—and that this tripartite justification is integral to moral punishment. This paper shows how the process view of proportionality in sentencing is an implicit, but under-theorized, current in the law that should be explicitly developed as part of Canadian constitutional theory.
Rena I. Steinzor (University of Maryland Francis King Carey School of Law) has posted White Collar-Reset: The DOJ's Yates Memo and Its Potential to Protect Health, Safety, and the Environment (7 Wake Forest Journal of Law & Policy 39 (2017)) on SSRN. Here is the abstract:
In September, 2015, Deputy Attorney General Sally Yates issued a memo developed by a career staff task force updating the Department of Justice’s (DOJ) approach to the prosecution and settlement of white collar criminal cases. Among other clarifications, exhortations, and instructions, the “Yates Memo” said that DOJ would now emphasize the investigation and prosecution of cases against individual corporate managers and that, in order to get credit for cooperating with prosecutors, corporations must share all available evidence of wrongdoing by individual employees with the government. Because being deemed as having cooperated with the government is central to reducing criminal fines, and can even make the difference between a decision to bring or forgo criminal charges, the Yates Memo caused a small tsunami of alarm among the defense bar and members of the Chamber of Commerce. Whether newly appointed Attorney General Jeff Sessions will request a review of the policies in the Yates Memo remains to be seen. On one hand, the Trump Administration is business-friendly to a new degree but, on the other hand, being accused as going soft on white collar crime would not play well with the president’s working class base.
Thursday, March 23, 2017
Charlie Eastaugh (University of Surrey) has posted Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution (Willamette Law Review, Forthcoming) on SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards—decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions—still visible across the nation—that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
Keynote speech delivered at Lara D. Gass Annual Symposium in February 2016, discussing lethal-injection litigation.
Paul H. Robinson and Criminal Law Research Group (University of Pennsylvania Law School and University of Pennsylvania Law School) have posted Draft Report of the Somali Criminal Law Recodification Initiative. Here is the abstract:
The Government of Somalia and the International Development Law Organization (IDLO) jointly commissioned the drafting of a modern criminal code for Somalia that embodies fundamental Islamic principles. The proposed code developed by the Criminal Law Research Group in cooperation with the major Somali players of the criminal justice process is a modern and comprehensive penal code incorporating numerous cutting-edge innovations in drafting forms, code structure, and criminal law doctrine. It is also the first and only such code incorporating the major tenets and principles of Islamic law as currently practiced in Somalia. This two-volume report to the Somali Working Group includes a proposed draft text, draft commentary, summary grading table, milestone grading table, as well as conversion tables from the current law sections to the draft code sections and vice versa.
Minimal responsibility threateners (MRTs) are epistemically justified but mistaken in thinking that imposing a non-negligible risk on others is permissible. On standard accounts, an MRT forfeits her right not to be defensively killed. I propose an alternative account: an MRT is liable only to the degree of harm equivalent to what she risks causing multiplied by her degree of responsibility. Harm imposed on the MRT above that amount is justified as a lesser evil, relative to allowing the MRT to kill her victim. This hybrid account, which generalizes to those are who are more than minimally responsible, has considerable advantages.
David H. Kaye (Pennsylvania State University, Penn State Law) has posted Hypothesis Testing in Law and Forensic Science: A Memorandum (Harvard Law Review Forum, Vol. 130, No. 5, pp. 127-136, 2017) on SSRN. Here is the abstract:
The Organization of Scientific Area Committees for Forensic Science (OSAC), was established to promote and develop forensic-science standards based on sound scientific principles. One of the first standards to be approved deals with declaring fragments of glass to be either distinguishable or indistinguishable in their chemical composition. This determination is important when it is suspected that small fragments associated with a defendant came from the scene of a crime involving broken glass. Because of instrumental measurement error, even fragments with identical elemental concentrations will display some differences. To account for measurement error, the standard uses statistical hypothesis tests that presume that two fragments are identical unless the measurements are far apart. This procedure seems to give an advantage to the prosecution position that the fragments came from the crime scene.
Wednesday, March 22, 2017
A police officer sees a suspicious bulge in the pocket of a passing pedestrian and deliberates whether to stop and search. The pedestrian is also a young, black man and from past searches and convictions the police arguably know that such men are much likelier than other people to carry an illegal firearm. Should the police officer be instructed to take this information into account? This paper objects to racial profiling because it relies on the following type of inference: from the individual’s membership of a certain racial group, the searcher is invited to infer that he is likelier to exhibit some culpable behaviour. The paper shows that such an inference to culpable behaviour requires contradictory presuppositions about the freedom of the suspected behaviour. On the one hand, racial profiling ought to presuppose that the individual suspect’s behaviour is unfree because the inference it involves takes the suspect’s behaviour to be determined by his race, age and gender, none of which is within his control. On the other hand, similarly to criminal trials, search practices also ought to presuppose the exact opposite: that the individual is free to determine her own behaviour. If the suspected behaviour is free, the involved inference to culpable behaviour is not probative of the individual suspect’s behaviour, so profiling methods which rely on it are useless. And if the suspected behaviour is unfree, the inference is probative but the suspect is not culpable and should thus not be put to trial, whatever the profiled-search yields.
Brandon L. Garrett, Daniel A. Krauss and Nicholas Scurich (University of Virginia School of Law, Claremont McKenna College - Department of Psychology and University of California, Irvine) have posted Capital Jurors in an Era of Death Penalty Decline (Yale Law Journal Forum, Vol. 126, p. 417, 2017) on SSRN. Here is the abstract:
The state of public opinion regarding the death penalty has not experienced such flux since the late 1960s. Death sentences and executions have reached their lowest annual numbers since the early 1970s and today, the public appears fairly evenly split in its views on the death penalty. In this Essay, we explore, first, whether these changes in public opinion mean that fewer people will be qualified to serve on death penalty trials as jurors, and second, whether potential jurors are affected by changes in the practice of the death penalty. We conducted surveys of persons reporting for jury duty at the Superior Court of Orange County, California. What we found was surprising. Surveys of jurors in decades past suggested ten to twenty percent of jury-eligible individuals would be excludable due to their substantial doubts about the death penalty. Despite Orange County’s status as a redoubt of death sentencing, we find that 35% or more of jurors reporting for jury service were excludable as having such substantial doubts about the death penalty that it would “substantially impair” their ability to perform their role as jurors. Indeed, large numbers went further: roughly a quarter said they would be reluctant to find a person guilty of capital murder knowing the death penalty was a possibility. A final question asked whether the fact that executions have not been conducted in California for a decade impacts whether jurors would be favorable towards the death penalty. We found that, across all types of attitudes towards the death penalty, that fact made jurors less inclined to sentence a person to death. Rare punishments may seem more arbitrary, even to those who find them morally acceptable. We conclude by describing how this research can be useful for scholars, litigators, and judges concerned with selection of jurors in death penalty cases, and we discuss why, as social and legal practices change, more study of public attitudes towards punishment is needed.
Erin L. Sheley (University of Calgary Faculty of Law) has posted A Broken Windows Theory of Sexual Assault Enforcement (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
The law of sexual assault is in an expressive crisis. Jurisdictions struggle with the conceptual shift from thinking of rape as forcible sex to a broader understanding that turns on the meaning of consent. Due to resource, evidentiary, and reporting problems there is a mis-match between the new substantive understanding of sexual assault and its actual enforcement. This has led to something of a cultural war by survivors and many women generally against the idea of “rape culture,” which runs the risk of categorizing all sexualized or gendered speech and much of male behavior as implicitly rape-supportive. This article proposes that lessons from broken windows policing can assist prosecutors in addressing the expressive gap between the law’s definition of sexual assault and the current realities of under-enforcement and victim disempowerment. I suggest that enforcement of existing laws against the lower level street harassment of women, on the occasions it already meets the elements of assault or sexual assault, will likely have two positive effects. First, while the efficacy of broken windows theory is hotly debated, to the extent that aggressive enforcement of lower level crimes of disorder does translate into a reduction in more serious offenses, more convictions for street harassment may result in a longer-term reduction in more serious sexual assaults that are much harder to detect and prove. Second, and perhaps more importantly, aggressive prosecution of even “harmless” non-consensual street harassment would help to resolve the expressive problems surrounding the law’s definition of non-consensual sex more broadly. This would combat—more concretely and less divisively—the norm of default access to female bodies than the amorphous, extra-legal critique of “rape culture” has thus far.
Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal.
To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated nearly 1500 criminal cases as on point, 900 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation.
Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store.
Tuesday, March 21, 2017
Branislav Hock (Tilburg Law and Economics Center (TILEC)) has posted Transnational Bribery: When is Extraterritoriality Appropriate? (11 Charleston L. Rev. 305 (2017)) on SSRN. Here is the abstract:
This paper explores when extraterritorial application of national laws is an appropriate solution to global problems. As a case study, the paper analyzes enforcement of national anti-bribery legislation based on the Anti-Bribery Convention of the Organization for Economic Cooperation and Development (OECD Convention). In recent years, the extraterritorial enforcement of national legislation has increased. The scope of such legislation covers many multinational corporations (MNCs) acting worldwide. While this way of governing MNCs makes it more effective for governments to hold them accountable for a number of global problems they cause, extraterritoriality might serve self-interests of major economies, thus destabilizing markets, principles of international order, and trust among the international community of states. The OECD international anti-bribery regime is an exemplary case to study because some OECD members, such as the U.S., have increasingly been using their anti-bribery laws extraterritorially. Drawing upon the economic and international relations literature, the starting point of the article is that extraterritoriality is appropriate if it serves the main policy goal of the international regulatory regime in which it functions. This article analyzes the main policy goal of the OECD regime, which is based on the principle of competitive neutrality, meaning that all corporations compete on a level playing field. The paper concludes that extraterritoriality is a dynamic phenomenon that is appropriate when used by a small number of major economies in an initial stage of the anti-bribery regulatory framework. In the analyzed case, the increasing anti-bribery enforcement is found to be accompanied by substantive and procedural fragmentation of the underlying legislation that prevents the OECD members from efficiently cooperating, coordinating their actions, and using their full potential to hold MNCs accountable for transnational bribery.
Paul H. Robinson and Sarah M. Robinson (University of Pennsylvania Law School and Independent) have posted Trigger Crimes & Social Progress: The Tragedy-Outrage-Reform Dynamic in America (In Paul H. Robinson and Sarah M. Robinson, TRAGEDY, OUTRAGE, & REFORM: CRIMES THAT CHANGED OUR WORLD (Forthcoming)) on SSRN. Here is the abstract:
Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart‐ wrenching.
This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are used as case studies to investigate the most interesting questions: Why do some tragedies produce broad outrage while others, often of a very similar nature, do not? Why do some outrages produce reform while others, often with greater claims to outrageousness, do not?
Opinion permitting Fourth Amendment claim based on pretrial detention following the start of legal process
Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Plea Bargaining (in Academy For Justice, A Report On Scholarship And Criminal Justice Reform (Erik Luna ed., 2017), Forthcoming) on SSRN. Here is the abstract:
This report on plea bargaining was written for the "Academy for Justice," a collaborative research project whose goal is "to inspire and guide reform in the federal and state systems, and to fortify these efforts with the research and analysis of top academic experts."
Plea bargaining dominates the criminal process in the United States today, yet it remains highly controversial. Supporters defend it on the grounds that it expedites cases, reduces processing costs, and helps authorities obtain cooperation from defendants. But critics contend that it can generate arbitrary sentencing disparities, obscure the true facts, and even lead innocent defendants to plead guilty. Lack of transparency and limited judicial involvement frustrate attempts to correct flaws in the process. As policymakers and legislators prepare to tackle reform of sentencing laws and prosecutorial discretion, they should also consider reforms to plea bargaining that would make the practice fairer, more transparent, and more honest.
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted Unpacking Affirmative Consent: Not As Great As You Hope, Not As Bad As You Fear (49 Texas Tech L. Rev. 57 (2016)) on SSRN. Here is the abstract:
The debate over “affirmative consent” suffers from conceptual confusion and unwarranted assumptions. This Article seeks to clarify the concept of affirmative consent and dispel mistaken assumptions. In its most basic form, affirmative consent is a relatively modest reform that has already taken root, either overtly or sub silentio, in many American jurisdictions.
The main difficulty in many contested cases of rape or sexual assault is how to interpret various signals—verbal and nonverbal—sent between the parties to the encounter. The dispute is not over whether a signal was sent at all, and thus, requiring affirmative consent does not assist with or change that difficult task. That is because the problem is not in determining whether some affirmative signal was sent but in determining whether the combination of words and conduct, on balance and in context, indicated agreement to sex. Thus affirmative consent does not offer the significant reform that some of its advocates desire nor present the dire risks many of its opponents fear.