Tuesday, August 4, 2015
Stephen W. Mazza , Leandra Lederman and Steve R. Johnson (University of Kansas - School of Law , Indiana University Maurer School of Law and Florida State University - College of Law) have posted Surcharges and Penalties in Tax Law: United States (Indiana Legal Studies Research Paper No. 319, Annual Congress Milan 2015, IBFD Amsterdam (2016 Forthcoming)) on SSRN. Here is the abstract:
This is the General Report for the United States on the theme of “Surcharges and Penalties in Tax Law” for the 2015 meeting of the European Association of Tax Law Professors in Milan, Italy. The Report addresses questions relating to the treatment of civil penalties, criminal penalties and interest charges imposed on taxpayers under the U.S. federal income tax. In so doing, the Report explains the basics of federal tax procedure. It also includes some government statistics on U.S. Tax Court cases and criminal tax prosecutions.
Shon Hopwood has posted Preface for: Failing to Fix Sentencing Mistakes: How the System of Mass Incarceration May Have Hardened the Hearts of the Federal Judiciary (Georgetown Law Journal, Forthcoming, 43 Geo. L.J. Ann. Rev. Crim. Proc. iii (2014)) on SSRN. Here is the abstract:
When most people think about criminal procedure, they think about sexy issues like illegal searches and seizures or the rights to counsel and trial by jury. But what goes largely unnoticed, to all but criminal defendants, are issues related to sentencing and the later review of those sentences through the various habeas corpus and post-conviction remedies. Those issues have gained importance in the last decade and a half as federal courts have heard significantly more claims of sentencing error than at any time previously. And, at a time when more defendants press claims of sentencing error, courts have responded by making it harder for defendants to succeed in obtaining resentencing relief. This Article examines this new normal and its causes.
Sometimes individuals come very close to acting on criminal intentions only to pull back from doing so. These cases raise two questions: How far toward acting on their criminal intentions must agents have to go before incurring attempt liability? And once they have incurred it, should they be permitted to raise renunciation defenses, according to which they contend that they do not deserve punishment because they abandoned their attempts before anyone was harmed? After briefly addressing the first question, I concentrate on the second. Close attention is paid to the variety of motives that might lead individuals to abandon criminal attempts and, in particular, whether a renunciation defense requires full moral abandonment of the agent’s criminal purpose. I argue that it does not, though concede that renunciation ought to be, in most cases, a ground for mitigating punishment, not excusing individuals from it.
Monday, August 3, 2015
Beth Caldwell (Southwestern Law School) has posted Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity (Harvard Law & Policy Review, Vol. 9, 2015) on SSRN. Here is the abstract:
Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.
This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature.
Andrew Chongseh Kim (Concordia University School of Law) has posted Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study (Mississippi Law Journal, Vol. 84, No. 5, 2015) on SSRN. Here is the abstract:
This Article reveals that the average federal defendant who goes to trial receives a sentence 64% longer than if she had instead plead guilty. In other words, federal defendants who exercise their Constitutional right to trial are penalized with sentences 64% longer for exercising that right. This Article is the first to demonstrate that federal defendants who currently go to trial would have been much better off if they had instead plead guilty, even after accounting for their chances for acquittal. It reveals also that federal defendants receive "discounts" for pleading guilty that are so large that extremely few could rationally ever go to trial. Under such a system, trial by jury becomes less of a right and more of a trap for fools.
These findings and conclusions conflict with David Abrams’ recent study claiming that defendants can actually expect shorter sentences for going to trial.
R. A. Duff and S. E. Marshall (University of Minnesota Law School and University of Stirling) have posted 'Abstract Endangerment,' Two Harm Principles, and Two Routes to Criminalization on SSRN. Here is the abstract:
We need to distinguish, as theorists too often fail to distinguish, two distinct harm principles. One, the Harmful Conduct Principle, concerns the criminalization of conduct that is itself harmful or dangerous: that principle cannot explain how we can have good reason to create offences of so-called ‘abstract endangerment’, of which many road traffic offences are good examples. We can explain such offences as those by appeal to a different harm principle, the Harm Prevention Principle. That principle, however, is a principle not of criminalization, but of regulation: it gives us reason to regulate conduct if doing so will efficiently prevent harm, without imposing undue burdens on those whose conduct is regulated. We then have reason to criminalize violations of such regulations, not because such violations are always harmful, but if and because they are wrongful. This distinction, between two kinds of principle and two possible routes towards criminalization, can be drawn whatever goals or values we posit as our starting points.
Daniel E. Martinez and Jeremy Slack (George Washington University - Department of Sociology and University of Texas at El Paso) have posted What Part of 'Illegal' Don't You Understand? The Social Consequences of Criminalizing Unauthorized Mexican Migrants in the United States (Social & Legal Studies 22(4): 535–551 (2013)) on SSRN. Here is the abstract:
In this article, we examine the social repercussions of criminally prosecuting individuals that cross into the United States without official documentation. The "criminalization of immigration law" (Coleman, 2007), federal- and state-level anti-immigrant initiatives, and an incarceration-oriented approach to dealing with unauthorized migration have redefined what it means to be undocumented in the United States, a definition with more sociological implications than ever before. Using strain theory (Agnew, 1992; Merton, 1938) and Cloward and Ohlin's (1960) concept of illegitimate means structures, we discuss the social ramifications for migrants who are exposed to a potentially unfamiliar criminal element while incarcerated for unauthorized entry. First-hand accounts of migrants' experiences were gathered from face-to-face semi-structured interviews of 210 randomly selected individuals at a migrant shelter in northern Mexico.
|1||1,670||Concealed Carry Permit Holders Across the United States
John R. Lott, John E Whitley andRebekah C. Riley
Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center
Date posted to database: 20 Jul 2015 [new to top ten]
Date posted to database: 21 Jul 2015 [new to top ten]
|3||368||'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics
Ira Mark Ellman and Tara Ellman
Arizona State University College of Law and Independent
Date posted to database: 9 Jun 2015 [1st last week]
|4||302||Ten Years of Commitment Decisions Under Article 9 of Regulation 1/2003: Too Much of a Good Thing?
Wouter P. J. Wils
King's College London
Date posted to database: 13 Jun 2015 [2nd last week]
|5||243||Gideon's Servants and the Criminalization of Poverty
Loyola Law School Los Angeles
Date posted to database: 28 Jun 2015 [4th last week]
|6||230||Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data
Orin S. Kerr
The George Washington University Law School
Date posted to database: 9 Jul 2015 [3rd last week]
|7||167||Invisible Women: Mass Incarceration's Forgotten Casualties
University of California, Irvine School of Law
Date posted to database: 10 Jun 2015 [5th last week]
|8||154||Riders on the Storm: An Analysis of Credit Card Fraud Cases
Ioana Vasiu and Lucian Vasiu
Babes-Bolyai University - Faculty of Law and Independent
Date posted to database: 4 Jun 2015 [6th last week]
|9||146||Prison Abolition and Grounded Justice
Allegra M. McLeod
Georgetown University Law Center
Date posted to database: 2 Jul 2015 [7th last week]
|10||214||An Economic Understanding of Search and Seizure Law
Orin S. Kerr
The George Washington University Law School
Date posted to database: 21 Jul 2015 [[new to top ten]
Sunday, August 2, 2015
Paul Litton (University of Missouri School of Law) has posted On the Argument That Execution Protocol Reform is Biomedical Research (90 Washington L. Rev. Online 87 (2015)) on SSRN. Here is the abstract:
Regardless of whether the Supreme Court rightly upheld Oklahoma’s execution protocol in Glossip, Oklahoma officials had inadequate reason to choose midazolam as the anesthetizing agent in its procedure. Their decision is one example illustrating Seema Shah’s point that death penalty states are engaged in “poorly designed experimentation that is not based on evidence.” Shah argues that “an important factor” causing the high rate of botched executions is that lethal injection reform is a type of human subjects research that is going unregulated. Shah argues that research requirements, such as informed consent and IRB review, are necessary to render the research permissible.
Part I of this essay grants Shah’s conclusion that death penalty states are engaged in human subjects research. However, it argues that if protocol reform amounts to research, it is unethical for lacking social value, even if capital punishment is justified. The purpose of this “research” is to make executions palatable to the public and, thereby, maintain support for the death penalty. (Its purpose is not to find a painless means of killing; we already have that knowledge). However, the state disrespects its citizens by attempting to influence public opinion by a means that has nothing to do with reasons to support its policies.
Saturday, August 1, 2015
Adam M. Gershowitz (William & Mary Law School) has posted The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches on SSRN. Here is the abstract:
Last year, in Riley v. California, the Supreme Court required police to procure a warrant before searching a cell phone. Unfortunately, the Court’s assumption that requiring search warrants would be “simple” and very protective of privacy was overly optimistic. This article reviews lower court decisions in the year since Riley and finds that the search warrant requirement is far less protective than expected. Rather than restricting search warrants to the narrow evidence being sought, some magistrates have issued expansive warrants authorizing a search of the entire contents of the phone with no restrictions whatsoever. Other courts have authorized searches of applications and data for which no probable cause existed. And even when district and appellate courts have found these overbroad search warrants to be defective, they have almost always turned to the good faith exception to save the searches and allow admission of the evidence.
This article calls on courts to take the Fourth Amendment’s particularity requirement seriously before issuing search warrants for cell phones. Just as magistrates cannot authorize police to search for a fifty-inch television in a microwave, nor should officers be permitted to rummage through all of the files on a cell phone when a narrower search will suffice. In order to effectuate the privacy guarantee in Riley, this Article proposes two approaches to narrow cell phone search warrants. First, I argue that judges should impose search protocols that specify in advance exactly how police should execute warrants and sift through electronic data. Second, this Article challenges the common assumption that all cell phone searches require full forensic analysis. In many cases involving street crimes, magistrates should initially restrict warrants to a manual search of the particular functions or applications for which there is probable cause. These two ex ante restrictions on cell phone searches will protect privacy and prevent over-use of the good faith exception, while still permitting police to examine all data they have probable cause to investigate.
Friday, July 31, 2015
Dan M. Kahan (Yale University - Law School) has posted Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz (prepublication draft of Kahan, D. M. (2011). Two Conceptions of Two Conceptions of Emotion in Criminal Law: An Essay Inspired by Bill Stuntz. In The Political Heart of Criminal ProcedureD. S. Michael Klarman & C. Steiker (Eds.), (pp. 163-176): Cambridge University Press) on SSRN. Here is the abstract:
This essay examines alternative explanatory theories of the treatment of emotion in criminal law. In fact, it re-examines a previous exposition on this same topic. In Two Conceptions of Emotion in Criminal Law (Kahan & Nussbaum 1996), I argued that the law, despite a surface profession of fidelity to a mechanistic conception of emotion, in fact reflects an evaluative one: rather than thoughtless surges of affect that impair an actor’s volition, emotions, on this account, embody a moral evaluation of the actor that is in turn subject to moral evaluation by legal decisionmakers as “right” or “wrong,” “virtuous” or “vicious,” and not merely as “strong” or “weak” in relation to the actor’s volition. I now qualify this claim — and indeed reject certain parts of it. I do so on the basis of an alternative conception of the evaluative conception of emotion: whereas the position in Kahan & Nussbaum (1996) treats the evaluative conception as implementing a conscious moral appraisal on the part of decisionmakers, the alternative sees it, at least sometimes, as a product of decisoinmakers’ unconscious vulnerability to appraisals they themselves would view as subversive of the law’s moral principles, which might well invest volitional impairment with normative significance. I examine the empirical evidence, amassed by various researchers including (without giving this point much thought) by me, for this third view, which I label the “cognitive conception” as opposed to the earlier (Kahan & Nussbaum 1996) “moral conception” of the “evaluative” view of emotions in criminal law.
Ana Aliverti (University of Warwick - School of Law) has posted The Wrongs of Unlawful Immigration (Criminal Law and Philosophy, DOI 10.1007/s11572-015-9377-y (pp 1-18) (Online First)) on SSRN. Here is the abstract:
For too long, criminal law scholars overlooked immigration-based offences. Claims that these offence are not ‘true crimes’ or are a ‘mere camouflage’ to pursue non-criminal law aims deflect attention from questions concerning the limits of criminalization and leave unchallenged contradictions at the heart of criminal law theory. The purpose of this paper is to examine these offences through some of the basic tenets of criminal law. I argue that the predominant forms of liability for the most often used immigration offences are, at least in principle, controversial and depart from what is often presented as the paradigm in criminal law. Above all, immigration offences are objectionable because they fall short in fulfilling the harm principle and, given that criminal punishment as used against immigration offenders is often a secondary, ancillary sanction to deportation, they licence excessive imposition of pain.
John F. Pfaff (Fordham University School of Law) has posted Federal Sentencing in the States: Some Thoughts on Federal Grants and State Imprisonment (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:
As the movement to reduce the outsized scale of US incarceration rates gains momentum, there has been increased attention on what federal sentencing reform can accomplish. Since nearly 90% of prisoners are held in state, not federal, institutions, an important aspect of federal reform should be trying to alter how the states behave. Criminal justice, however, is a distinctly state and local job over which the federal government has next to no direct control.
In this paper, I examine one way in which the federal government may be driving up state incarceration rates, and thus one way it can try to alter them: not directly through its criminal code, but through the millions of dollars in grant money it provides. A strong predictor of state prison growth is state fiscal health: states with more money spend more on everything, including prisons. And federal grants bolster state fiscal capacity. So perhaps one way that the federal government could change state sentencing would be to help prop up corrections spending less.
Tracey Maclin (Boston University - School of Law) has posted A Comprehensive Analysis of the History of Interrogation Law, with Some Shots Directed at Miranda v. Arizona (Boston University Law Review, Vol. 95, 2015) on SSRN. Here is the abstract:
Police interrogation is designed to convict suspects under arrest or those suspected of crime. It does not matter that the suspect may not be guilty; interrogation is instigated to obtain an incriminating statement that will help convict the suspect. While many are quick to defend what are considered the “respectable freedoms” embodied in the Constitution — freedom of speech, freedom of the press, and freedom of religion — few champion the Fifth Amendment’s bar against compelled self-incrimination, popularly known as the “right to remain silent,” as a basis for a suspect’s right to resist police questioning. Although it has been said that “virtually every schoolboy is familiar with the concept, if not the language” of the Fifth Amendment, and that the Miranda warnings “have become part of our national culture,” persons steadfastly against police interrogation are difficult to identify. Surely many Americans agree with Professor George Thomas when he asks: “Who claims [a right to silence] unless he has something to hide?” Moreover, Justices and legal scholars often argue that interrogation is indispensable to solving crimes. Even scholars who have provided the most compelling critiques of police interrogation would not abolish the practice.
Thursday, July 30, 2015
Michael Pinard (University of Maryland Francis King Carey School of Law) has posted Poor, Black and 'Wanted': Criminal Justice in Ferguson and Baltimore (Howard Law Journal, Vol. 58, No. 3, 2015 Forthcoming) on SSRN. Here is the abstract:
Ferguson, Missouri is everywhere. This has been an enduring and sad lesson in the year since Michael Brown was killed. The national spotlight has moved throughout cities and towns across the United States, as unarmed Black men, women and children have been killed by police officers at an exhausting pace. Mr. Brown’s death has caused stakeholders to grasp and examine the similarities between the wide range of issues impacting Ferguson’s Black communities and their respective communities. Thus, the events in Ferguson have been the source of reflection, examination and action. In that spirit, this essay looks at some similarities between Ferguson and Baltimore, which have grown despairingly closer in light of Freddie Gray’s death in April 2015. Specifically, the essay explores the vast capacities of the criminal justice systems in these two cities to police and prosecute communities of color, particularly for low-level crimes that flood the criminal court dockets in both jurisdictions. It then focuses on ways in which poor, Black residents in Ferguson and Baltimore remain stuck in the criminal justice system because of court-issued warrants.
Orin S. Kerr (The George Washington University Law School) has posted An Economic Understanding of Search and Seizure Law (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
This article uses economic concepts to understand the function of search and seizure law, the law governing government investigations that is most often associated with the Fourth Amendment. It explains search and seizure law as a way to increase the efficiency of law enforcement by accounting for external costs of investigations. The police will often discount negative externalities imposed by their work. Search and seizure law responds by prohibiting investigative steps when external costs are excessive. By conditioning law enforcement steps on specific factual predicates, the law channels government resources into welfare-enhancing investigative paths instead of welfare-reducing steps that would occur absent legal regulation. This perspective on search and seizure law is descriptively helpful; it provides a useful analytical language to describe the role of different Fourth Amendment doctrines; and it provides fresh normative insights concerning recurring debates in Fourth Amendment law.
The United States government hacks computer systems, for law enforcement purposes. According to public disclosures, both the Federal Bureau of Investigation and Drug Enforcement Administration are increasingly resorting to computer intrusions as an investigative technique. This article provides the first comprehensive examination of how the Constitution should regulate government malware.
When applied to computer systems, the Fourth Amendment safeguards two independent values: the integrity of a device as against government breach, and the privacy properties of data contained in a device. Courts have not yet conceptualized how these theories of privacy should be reconciled.
Marco Y. Wong has posted United States v Camou: Warrantless Cell Phone Searches after Riley v California (Legal Issues Journal, Vol. 3, Issue 2, pp. 117-135, 2015) on SSRN. Here is the abstract:
This Comment examines how the Fourth Amendment applies to warrantless cell phone searches in United States v Camou, and questions whether the Ninth Circuit’s ultimate position is desirable. Last year, in Riley v California, the United States Supreme Court held that a police officer should generally get a warrant before searching a defendant’s cell phone incident to her arrest. It explained that cell phone searches may be very intrusive of one’s privacy because of the amount of information that cell phones can contain, as well as their pervasiveness in our lives. The Camou court was challenged with what this insight meant for other exceptions to the Fourth Amendment’s traditional warrant requirement.
Thomas Crofts (University of Sydney - Faculty of Law) has posted A Brighter Tomorrow: Raise the Age of Criminal Responsibility (Current Issues in Criminal Justice, 2015 Forthcoming) on SSRN. Here is the abstract:
A report released by Amnesty International in May 2015 highlights the alarming overrepresentation of Indigenous young people in detention in Australia. It calls on the Australian Commonwealth Government to make a number of legislative changes to address this issue, which the report argues are necessary to ensure Australia’s compliance with its obligations under the UN Convention on the Rights of the Child. The foremost area in need of reform identified in the report is the low age of criminal responsibility in Australia. This note examines Amnesty International’s arguments for an increase in the minimum age of criminal responsibility and agrees that the age should be raised to at least twelve.
John R. Lott Jr., John E Whitley and Rebekah C. Riley (Crime Prevention Research Center , Crime Prevention Research Center and Crime Prevention Research Center) have posted Concealed Carry Permit Holders Across the United States on SSRN. Here is the abstract:
Since President Obama’s election the number of concealed handgun permits has soared, growing from 4.6 million in 2007 to over 12.8 million this year. Among the findings in our report:
-- The number of concealed handgun permits is increasing at an ever- increasing rate. Over the past year, 1.7 million additional new permits have been issued – a 15.4% increase in just one single year. This is the largest ever single-year increase in the number of concealed handgun permits.
-- 5.2% of the total adult population has a permit.
-- Five states now have more than 10% of their adult population with concealed handgun permits.
-- In ten states, a permit is no longer required to carry in all or virtually all of the state. This is a major reason why legal carrying handguns is growing so much faster than the number of permits.
-- Since 2007, permits for women has increased by 270% and for men by 156%.
-- Some evidence suggests that permit holding by minorities is increasing more than twice as fast as for whites.
-- Between 2007 and 2014, murder rates have fallen from 5.6 to 4.2 (preliminary estimates) per 100,000. This represents a 25% drop in the murder rate at the same time that the percentage of the adult population with permits soared by 156%. Overall violent crime also fell by 25 percent over that period of time.
-- States with the largest increase in permits have seen the largest relative drops in murder rates.
-- Concealed handgun permit holders are extremely law-abiding. In Florida and Texas, permit holders are convicted of misdemeanors or felonies at one-sixth the rate that police officers are convicted.