How can it be that a lifelong civil rights lawyer such as myself would take this position? Because the death penalty cannot be separated from the issue of racial discrimination, especially in the South. The history of slavery and lynching left deep scars in the black community, and the current death penalty does not fare much better. More than 8 in 10 of the executions carried out since the death penalty was reinstated in 1976 have occurred in the South. Blacks make up more than one-third of the 1,170 defendants executed in the region, with most convicted of murdering a white victim.
Tuesday, August 30, 2016
From WHYY in Philadelphia. In part:
After convincing a judge to order DNA tests of a Chicago Bulls sweatshirt and the blue jeans he allegedly wore during a 1991 rape and murder, Wright was granted a new trial, and the jury acquitted him Tuesday.
Wright said the police framed him, and he was coerced him to sign a confession that wasn't even in his words. When police arrested him, at 20 years old, Wright was a seventh-grade dropout and had a toddler.
. . .
The district attorney's office decided to retry him, instead of allowing his release, after his conviction was vacated by a judge in 2014, in light of the new evidence. Prosecutors argued that though forensic tests demonstrated that another man's sperm was found in the victim, and his DNA was not discovered on the clothes detectives said he wore, Wright may have still been an accomplice to the vicious murder of a 77-year-old woman in her home in North Philadelphia in 1991.
Peter Margulies (Roger Williams University School of Law) has posted Searching for Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court on SSRN. Here is the abstract:
The Foreign Intelligence Surveillance Court (FISC) has an Article III problem. Under § 702 of the 2008 FISA Amendments Act (FAA), which brought the Bush administration’s Terrorist Surveillance Program under the rule of law, the FISC typically proceeds ex parte, hearing only from one party: the government. FISC proceedings under § 702 therefore lack the benefit of adverse parties clarifying the issues, which the Supreme Court has linked with sound adjudication and judicial self-governance.
The FISC’s § 702 role does not fit neatly into the established categories of cases, such as search warrants, where ex parte proceedings are permissible. The broad surveillance practices that the FISC reviews under § 702 lack the individualized facts of warrant requests or a direct link to criminal prosecutions. Under Article III, the FISC’s § 702 role may be neither fish nor fowl.
“Probable cause” is not about probability. It is about plausibility. To determine if an officer has the requisite suspicion to perform a search or seizure, what matters is not the statistical likelihood that a “person, house, paper or effect” is linked to criminal activity. What matters is whether criminal activity provides a convincing explanation of observed facts. For an inference to qualify as plausible, an observer must understand why the inference follows; she must be able to explain its relationship to the facts. Probable inferences, by contrast, do not require explanations. An inference can be probable — in a predictive sense, based on past trends — without a human observer understanding what makes it so.
In many cases, plausibility and probability overlap. An inference that accounts for observed facts is often likely to be true, and vice versa. But there is an important sub-set of cases in which the two properties pull apart, raising deep questions about the underpinnings of Fourth Amendment suspicion: inferences generated by predictive algorithms. In this Article, I argue that casting suspicion in terms of plausibility, rather than probability, is both more consistent with established law and crucial to the Fourth Amendment’s normative integrity.
William L. Rosoff and Jingli Jiang (Akin Gump Strauss Hauer & Feld, L.L.P. - Beijing Office and Akin Gump Strauss Hauer & Feld, L.L.P. - Beijing Office) have posted The Proposed Amendments to China’s AUCL Commercial Bribery Provisions: Comments and Suggestions (Tsinghua China Law Review, Vol. 8, No. 2, 2016) on SSRN. Here is the abstract:
Since the enactment of the Anti-Unfair Competition Law in 1993, China’s economy has changed significantly. To better regulate the current market, a draft amendment to the AUCL was published on February 25, 2016. Specifically, Articles 7 and 20, the commercial anti-bribery provisions of the AUCL, reflect substantial changes to the current law. This paper will identify such proposed changes and analyze implications and potential issues of the elements of the commercial anti-bribery provisions, including burden of proof, vicarious liability of employers, bribery involving public service, books and records provision, extraterritorial jurisdiction, and penalties, etc. It will also look to the United States’ domestic commercial anti-bribery laws for comparisons. This paper hopes to shed light on potential improvements the draft amendment should consider to achieve its desired purposes of better curbing commercial bribery and regulating the current market.
Monday, August 29, 2016
Roof’s crime was surely heinous, and his racism was repugnant. But supporters of racial equality and equal treatment under the law should support Roof’s offer to plead guilty and serve a sentence of life without the possibility of parole.
From The New York Times:
In an age when policing is under intense scrutiny, new training programs for officers are showing up across the country. Organizers say this one, which everyone on the 1,172-member police force here is expected to take, stands out in two ways.
The first is its goal: teaching officers how to be psychologically prepared to intervene when they see fellow officers on the verge of unethical behavior, no matter the circumstances. This will be taught in daylong courses and as a part of every course from driving skills to report writing, in an attempt at instilling the approach that goes beyond what any police department has tried, said Jonathan S. Aronie, who was judicially appointed to oversee the department’s adherence to a federal consent decree.
The second is the program’s origins. While the curriculum was developed by New Orleans officers and outside experts, its core principles are rooted in the work of Ervin Staub, a retired psychology professor at the University of Massachusetts, Amherst, who knows as well as anyone the perils of passivity and the virtues of intervention.
Caren Myers Morrison (Georgia State University - College of Law) has posted Body Camera Obscura: The Semiotics of Police Video on SSRN. Here is the abstract:
Our understanding of violent encounters between the police and civilians is now primarily mediated by video images. With surprising rapidity, recording these encounters has become an integral part of modern policing, sparking the current body camera bonanza.
When these recordings are used as evidence in police use-of-force cases, the factfinders must decide whether the police officer’s actions were “reasonable” under the Fourth Amendment. But there is an unrecognized fault line between “police video” (video recorded by the police in the course of their official duties) and “eyewitness video” (recorded by bystander-witnesses). Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, eyewitness videos typically offer the counter-narrative of an abusive state.
Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.
Tim Lyman (Northeastern University, Institute for Security and Public Policy at the School of Criminology and Criminal Justice) has posted About Race and Aggravators in East Baton Rouge Parish Murder Cases on SSRN. Here is the abstract:
Are Black-on-White (BkW) death-eligible murder cases more aggravated than the other racial categories? To investigate this question, we look at the 316 death-eligible and completed murder cases with black and/or white principals gathered for the study "Death Sentencing in East Baton Rouge Parish (1990-2008)" by Glenn L. Pierce and Michael L. Radelet, and for the study "East Baton Rouge (LA) Parish Study on Race, Homicides, and Prosecutions (1990-2008)" by Tim Lyman. We find that these murders are less aggravated than it first appears.
Charlotte King, Lorana Bartels, Patricia L. Easteal and Anthony Hopkins (University of Canberra, University of Canberra - School of Law and Justice, University of Canberra - School of Law and Justice and University of Canberra – Faculty of Law) have posted Did Defensive Homicide in Victoria Provide a Safety Net for Battered Women Who Kill? A Case Study Analysis (Monash Law Review, Vol. 42(1), p. 138-178, 2016) on SSRN. Here is the abstract:
This article seeks to draw conclusions about the potential impact of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 (Vic). We do so by considering whether defensive homicide served as a safety net in the 2014 case of Director of Public Prosecutions (Vic) v Williams. The article presents a detailed analysis of the trial transcript and sentencing remarks to support the contention that the defence did in fact achieve this purpose. The conclusion rests, principally, upon understanding the jury finding that Williams killed in the belief that her actions were necessary for her own protection, but apparently determined that she had no reasonable grounds for that belief (thereby failing the legal test of self-defence as it then stood). Having looked at how the 2014 legislation also amended relevant evidence laws, and reinforced jury directions to accommodate considerations of family violence, we then consider the implications of these reforms for battered women who kill. We suggest that, in the absence of the offence of defensive homicide, women like Williams may in the future be convicted of murder, even when they kill in response to family violence and with a genuine belief that their actions are necessary in self-defence.
Criminal jurisdiction in Indian country is defined by a central, ironic paradox. Recent federal laws expanding tribal criminal jurisdiction are, in many respects, enormous victories for Indian country, as they acknowledge and reify a more robust notion of tribal sovereignty, one capable of accommodating increased tribal control over safety and security on Indian reservations. At the same time, the laws make clear that sovereignty comes at a price, potentially working to effectuate further assimilation of tribal courts and Indian people. As a result, at the same time that tribal sovereignty gains ground in ways critical to autonomy and self-governance, it is simultaneously threatened by exogenous forces that have the potential to homogenize tribal justice systems legally, politically, and — in particular — culturally.
This Article offers the first comprehensive assessment of the Tribal Law and Order Act and the reauthorization of the Violence Against Women Act, respectively, to show how they relate to one another on the ground and the implications for tribal sovereignty and self-determination.
Like other markets, the plea bargaining market uses a pricing mechanism to coordinate market functions and to communicate critical information to participants, information that permits rational decisionmaking in the face of uncertainty. Because plea bargaining play such a prominent role in the administration of criminal justice, and because the pricing mechanisms inherent in plea bargaining can - like pricing mechanisms generally - both explain past conduct by market participants and predict future conduct, close scrutiny of the pricing mechanisms at work in plea bargaining is amply justified. This Article explores several features of the plea bargaining system in light of economic insights borrowed from basic price theory. That analysis suggests several structural flaws of the plea market that could, in theory, be amenable to reform efforts. Those flaws include an oversupply of penal leniency, overreliance on wholesale pricing mechanisms, and a devaluation of factual innocence from procedural time-constraints on the effective use of exculpatory evidence.
Sunday, August 28, 2016
|1||272||The Downstream Consequences of Misdemeanor Pretrial Detention
Paul S. Heaton, Sandra G. Mayson and Megan Stevenson
University of Pennsylvania Law School, University of Pennsylvania Law School and University of Pennsylvania Law School
Date posted to database: 17 Jul 2016
|2||164||The Drug Court Paradigm
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016
|3||158||A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian M. Murray
Temple University, Beasley School of Law
Date posted to database: 27 Jul 2016
|4||143||Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016
|5||141||Indians, Race, and Criminal Jurisdiction in Indian Country
Alexander Tallchief Skibine
University of Utah - S.J. Quinney College of Law
Date posted to database: 12 Aug 2016
|6||136||The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016
|7||123||Prosecuting Collateral Consequences
University of North Carolina School of Law
Date posted to database: 7 Jul 2016
|8||117||Arresting Batson: How Striking Jurors Based on Arrests Violates Batson
Vida B. Johnson
Georgetown University Law Center
Date posted to database: 2 Jul 2016
|9||115||How Frank Easterbrook Kept George Ryan in Prison
Albert W. Alschuler
University of Chicago Law School
Date posted to database: 25 Jul 2016 [new to top ten]
|10||114||An Insurance-Based Typology of Police Misconduct
University of Chicago Law School
Date posted to database: 12 Jul 2016 [9th last week]
|1||245||Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016
|2||149||Public Attitudes toward Data Fraud and Selective Reporting in Science
Justin Tyler Pickett and Sean Patrick Roche
School of Criminal Justice, University at Albany, SUNY and University at Albany
Date posted to database: 12 Jul 2016
Last Revised: 12 Jul 2016
|3||93||Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016 [4th last week]
|4||88||Privileging Professional Insider Trading
Yale Law School
Date posted to database: 18 Jul 2016 [5th last week]
|5||78||Why Lenity Has No Place in the Income Tax Laws
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [6th last week]
|6||77||The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham Law School
Date posted to database: 18 Jul 2016 [new to top ten]
|7||68||A Theory of Bribery
University of Virginia - School of Law
Date posted to database: 25 Aug 2016 [new to top ten]
|8||61||What Counts as Prostitution?
Stuart P. Green
Rutgers Law School
Date posted to database: 13 Jul 2016 [7th last week]
|9||56||What Is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016
|10||56||Sorcery Crimes, Laws, and Judicial Practice in Traditional China
University of Sydney, Department of Chinese Studies
Date posted to database: 7 Jul 2016
Friday, August 26, 2016
The theme is "Constructing Truth: Criminal Law in Flux." The program is part of a seminar available to Fordham Law students to promote further exploration of topics beyond first year courses but others may attend by permission: contact person is Professor Deborah Denno. Workshops are held on Tuesdays from 10:30 a.m.–12:30 p.m. The list of speakers follows the jump.
Wei Pei (Beihang University (BUAA)) has posted Harmony, Law and Criminal Reconciliation in China: A Historical Perspective (Erasmus Law Review, Vol. 9, No. 1, 2016) on SSRN. Here is the abstract:
In 2012, China revised its Criminal Procedure Law (2012 CPL). One of the major changes is its official approval of the use of victim-offender reconciliation, or ‘criminal reconciliation’ in certain public prosecution cases. This change, on the one hand, echoes the Confucian doctrine that favours harmonious inter-personal relationships and mediation, while, on the other hand, it deviates from the direction of legal reforms dating from the 1970s through the late 1990s. Questions have emerged concerning not only the cause of this change in legal norms but also the proper position of criminal reconciliation in the current criminal justice system in China. The answers to these questions largely rely on understanding the role of traditional informal dispute resolution as well as its interaction with legal norms. Criminal reconciliation in ancient China functioned as a means to centralise imperial power by decentralizing decentralising its administration. Abolishing or enabling such a mechanism in law is merely a small part of the government’s strategy to react to political or social crises and to maintain social stability. However, its actual effect depends on the vitality of Confucianism, which in turn relies on the economic foundation and corresponding structure of society.
Cynthia Conti-Cook (The Legal Aid Society) has posted Defending the Public: Police Accountability in the Courtroom (Seton Hall Law Review, Vol. 46, No. 4, 2016) on SSRN. Here is the abstract:
Politicians across the country, seeking to address a growing sense of political and social alienation from communities of color and their allies, have scrambled to introduce reforms to police departments and police investigative agencies that promote accountability and transparency. Body cameras, special prosecutors, inspectors general, and new internal accountability procedures have all been broadcasted as political efforts towards reform. This Article addresses what impact these political maneuvers — which all work within the same executive branch as the police — have without routine judicial scrutiny of misconduct in the courtroom. Without consistent and rigorous judicial review, they have none. Without defense attorneys armed with sufficient information and resources to initiate judicial review, they have none. But defense attorneys have been blocked from petitioning for judicial review by statutory laws that protect police records from public disclosure and even from disclosure to defense lawyers in court. In response to these challenges in New York, the Legal Aid Society has employed a new database to collect police accountability data to expand its opportunities to advocate for scrutiny of officers in the courtroom and in the public sphere.
Thursday, August 25, 2016
From The New York Times:
The two women were asleep on a bed after drinking at a party when they were sexually assaulted. A high school athlete pleaded guilty to indecent assault and battery on a person over 14 in the case, according to court documents.
But when a Massachusetts judge sentenced the defendant, David Becker, to two years’ probation last week, he reignited a debate on white privilege, leniency and judicial discretion.
. . .
Prosecutors in the Massachusetts case recommended a two-year sentence for Mr. Becker, 18, a former student at East Longmeadow High School, a spokesman for the Hampden County district attorney’s office, James Leydon, said in an email on Wednesday. Mr. Becker also would have had to register as a sexual offender.
But on Aug. 15, Judge Thomas Estes of Palmer District Court not only ignored the prosecutors’ recommendation, but he also allowed Mr. Becker to serve his probation in Ohio, where the defendant planned to attend college, court documents showed.
Judge Estes said Mr. Becker must abstain from drugs and alcohol, submit to an evaluation for sex offender treatment and stay away from the victims, both of whom were 18, they showed.