Friday, December 13, 2013
Keith A. Petty has posted A Different Kind of Criminal? Miranda, Terror Suspects, and the Public Safety Exception (4 Elon Law Review 175 (2012)) on SSRN. Here is the abstract:
Ten years after the tragic terror attacks of September 11, 2001, the tension between civil liberties and national security-based law enforcement endures. The due process rights of terror suspects are at the pinnacle of this ongoing debate. Two cases in particular pushed the boundaries of constitutional compliance. On December 25, 2009, Umar Farouk Abdulmutallab attempted to detonate an explosive device while on a flight from Amsterdam to Detroit. The “Christmas Day Bomber” was then taken into custody and questioned by FBI agents before being read his Miranda rights. In May 2010, Faisal Shahzad attempted to detonate a car bomb in Times Square and was later questioned by FBI agents for three hours prior to his rights advisement. In light of these cases, Attorney General Eric Holder announced that he would work with Congress to seek new legislation formalizing Miranda’s public safety exception. When these efforts stalled, the FBI issued a memorandum in October 2010 establishing the current policy; terror suspects will not be read Miranda warnings during the first critical hours of custodial interrogation.
Thursday, December 12, 2013
Uwe Steinhoff (University of Hong Kong - Department of Politics and Public Administration) has posted Firth and Quong on Liability to Defensive Harm: A Critique on SSRN. Here is the abstract:
Joanna Mary Firth and Jonathan Quong argue that both an instrumental account of liability to defensive harm, according to which an aggressor can only be liable to defensive harms that are necessary to avert the threat he poses, and a purely noninstrumental account which completely jettisons the necessity condition, lead to very counterintuitive implications. To remedy this situation, they offer a “pluralist” account and base it on a distinction between “agency rights” and a “humanitarian right.” I argue, first, that this distinction is spurious; second, that the conclusions they draw from this distinction do not cohere with its premises; third, that even if one granted the distinction, Firth’s and Quong’s implicit premise that you can forfeit your agency rights but not your “humanitarian right” is unwarranted; fourth, that their attempt to mitigate the counterintuitive implications of their own account in the Rape case relies on mistaken ad-hoc assumptions; fifth, that even if they were successful in somewhat mitigating said counterintuitive implications, they would still not be able to entirely avoid them; and sixth, that even in the unlikely case that none of these previous five critical points are correct, Firth and Quong still fail to establish that aggressors can be liable to unnecessary defensive harm since they fail to establish that unnecessary harm can ever be defensive in the first place.
Randy Gordon has posted Of Gangs and Gaggles: Can a Corporation Be Part of an Association-in-Fact Rico Enterprise? Linguistic, Historical, and Rhetorical Perspectives (University of Pennsylvania Journal of Business Law (Forthcoming)) on SSRN. Here is the abstract:
Over 30 years ago, courts of appeals began to hold that the RICO statute’s definition of association-in-fact enterprise is broad enough to include corporations as constituent members, even though that definition states that such an association is limited to a “group of individuals.” This Article demonstrates why these cases were wrongly decided from a variety of perspectives: linguistic, systemic and consequentialist. It also suggests a strategy for correcting this widespread interpretive error and provides evidence that the Supreme Court may be disposed to agree that the lower courts have uniformly erred.
Wednesday, December 11, 2013
Consorting laws have piqued the attention of Australian legislatures. In the last year alone, two states have re-enacted these offenses, which criminalize repeated association with criminals. Such measures, though, have a pedigree stretching over seven centuries. This article offers an historical analysis of consorting offenses, placing them in the context of a long line of statutes that criminalized the act of associating with undesirable classes of people. It traces their emergence from the beginnings of English vagrancy legislation in the late-medieval period, to early attempts in the Australasian colonies to suppress inchoate criminality, and then to 20th century efforts to tackle organized criminal activities. What emerges is that consorting offenses are neither a modern phenomenon nor one restricted to the antipodes.
Keisuke Nakao and Masatoshi Tsumagari (University of Hawaii at Hilo and Keio University - Faculty of Economics) have posted The Inquisitor Judge's Trilemma (Review of Law & Economics, Vol. 8, No. 1, pp. 137-159, 2012) on SSRN. Here is the abstract:
We address the long-standing judicial debate over inquisitorial and adversarial procedures in criminal trials, focusing on the incentives to collect evidence of a defendant's guilt and innocence. We demonstrate three shortcomings of the former procedure: (i) a judge may suffer a trilemma or a quandary among three tasks she confronts, i.e., an incentive scheme to improve the performance of one task impairs the performance of one or two of the others; (ii) it underperforms the latter procedure in collecting evidence at cost if private interests in winning a suit are more motivating than the public interests in avoiding erroneous judgments; (iii) incentive arrangements are so constrained that it may be impossible to induce high efforts of investigation. However, the shortcoming (ii) might be negated when the private interests lead adversely to obscuring, rather than revealing, evidence.
FeiFei Jiang has posted Dancing the 'Two-Step' Abroad: Finding a Place for Clean Team Evidence in Article III Courts (Columbia Journal of Law and Social Problems, Forthcoming) on SSRN. Here is the abstract:
There is little case law that discusses whether the government can use statements elicited from “two-step” interviews abroad after the defendant has been Mirandized, or whether all such evidence should be suppressed. The interplay of international investigations and domestic prosecutions implicates wider policy issues — in particular, the FBI’s interview techniques, how and where to prosecute terrorism suspects, and international cooperation in terrorist investigations. This Note discusses the boundaries of the “two-step” interrogation practice as an evidentiary issue in Article III courts, using the investigation and prosecution of Mohamed Ibrahim Ahmed as a case study around which to frame the analysis. The Note first explores current “clean team” practices in extraterritorial investigations, then analyzes the current state of U.S. law as to “two-step” interrogations and the admissibility of evidence, and finally situates the “two-step” practice within existing doctrine in order to argue that the “clean team” tactic in extraterritorial terrorism investigations holds a particular place within the current state of Miranda jurisprudence.
Tuesday, December 10, 2013
D. Michael Risinger (Seton Hall University School of Law) has posted At What Cost?: Blind Testing, Eyewitness Identification, and the Question of What Can and Cannot Be Counted as a Cost of Reducing Information Available for Decision on SSRN. Here is the abstract:
One theme of the conference for which this piece was written is “When does less information result in better decisions?” In keeping with that theme, I am taking up an issue which raises a central question concerning what we mean by “information,” and what counts as “less information” and “better decisions.” In what follows, I will dissent, at least in part, from the position of the prominent eyewitness identification researcher Steven Clark, set forth in a recent article in the journal Perspectives on Psychological Science, who appears to hold that in evaluating reforms in eyewitness identification procedures, all losses of selections that are in fact true perpetrator selections must be counted as costs of the proposed reform in evaluating the wisdom of the reform. I will take the position that this is clearly not true in regard to the administration of such line-ups “double blind,” that is, their administration in such a way that the person conducting the procedure has no knowledge of the target of the lineup (or at least of the target’s position in the lineup array), and therefore cannot cue the witness, consciously or unconsciously, about the hoped-for selection. Ultimately, however, I will support Professor Clark’s position that losses of accurate identifications may properly be counted as costs in evaluating some other proposed reforms of eyewitness identification procedures, particularly sequential presentation, but I will conclude that in that case, based on the knowledge currently available, that the epistemic and moral benefits of sequential presentation outweigh such costs.
Tracey P. Booth (University of Technology Sydney, Faculty of Law) has posted 'Cooling Out' Victims of Crime: Managing Victim Participation in the Sentencing Process in a Superior Sentencing Court (Australian & New Zealand Journal of Criminology, August 2012, 45: 214-230) on SSRN. Here is the abstract:
Victim participation in the sentencing hearing by way of oral victim impact statements (VISs) is a contentious aspect of contemporary criminal justice. A particular concern is that the disjuncture between the legal goals of the sentencing hearing on the one hand and the goals of victims on the other can generate tension and conflict in the courtroom and threaten the integrity of the process. The subject of this article is the management and containment of victim participation in 18 sentencing hearings observed in the NSW Supreme Court. It is argued that various cooling out structures and processes effectively managed and contained the emotional tension in the courtroom as well as assisted victims to adjust to the legal constraints and the compromise inherent in their position in the process.
Paul H. Robinson (University of Pennsylvania Law School) has posted The Moral Vigilante and Her Cousins in the Shadows on SSRN. Here is the abstract:
By definition, vigilantes cannot be legally justified – if they satisfied a justification defense, for example, they would not be law-breakers – but they may well be morally justified, if their aim is to provide the order and justice that the criminal justice system has failed to provide in a breach of the social contract. Yet, even moral vigilantism is detrimental to society and ought to be avoided, ideally not by prosecuting moral vigilantism but by avoiding the creation of situations that would call for it. Unfortunately, the U.S. criminal justice system has adopted a wide range of criminal law rules and procedures that regularly and intentionally produce gross failures of justice.
Monday, December 9, 2013
"Victims provide some recent historical perspectives on two worst crimes in recent American history"
Hans-Bernd Schäfer (Bucerius Law School) has posted Decriminalization, How Can It Be Legitimized and How Far Should It Go? on SSRN. Here is the abstract:
This is about the changing scope of criminal law, the changing borders between criminal law, administrative law and civil liability and the abolition of some crimes for philosophical as well as for practical reasons. Safety and security in any society depend on a balanced assignment of tasks for criminal, regulatory and civil sanctions. This balance might change over time with cultural, technical and economic developments. The incomplete theories of criminal punishment can only provide very limited guidance. Retribution theory remains silent on the scope of criminal punishment, specific deterrence cannot explain some of the basic and undisputed facts of criminal law and general deterrence cannot explain why criminal punishment is not harsher than what we observe. Should we in the light of economic reasoning expect or demand a withering away of criminal sanctions and their replacement by administrative sanctions and civil liability when a country becomes rich? It is shown that this is not without pitfalls and widely rejected in European countries, especially in Germany, unlike in the USA. Replacing prison sentences with criminal fines might be more advisable. It is also shown, that the punishment of victimless crimes lacks convincing legitimacy and may for economic reasons remain less effective in terms of deterrence than for all other crimes. Both reasons call for decriminalization of victimless crimes. These are the topics for my lecture.
Sunday, December 8, 2013
Issue summary is from ScotusBlog, which also links to papers:
- White v. Woodall: (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.
Saturday, December 7, 2013
From The New York Times:
In announcing that William J. Bratton would be the police commissioner come January, Mr. de Blasio promised that he would succeed in changing stop-and-frisk policing, an area in which, he claimed, Mayor Michael R. Bloomberg’s administration had failed. “There was no meaningful response from City Hall,” he said.
. . .
In October, about 3,000 people were stopped, which would be an annual rate of 36,000 — about a twentieth of what it was in 2011. Still, the mayor-elect, and his police-commissioner-designate, remained passionate about ending a practice that is pretty much over with. Mr. Bratton promised he would make quick work of it.
Deseriee A. Kennedy (Touro College - Jacob D. Fuchsberg Law Center) has posted 'The Good Mother': Mothering, Feminism, and Incarceration (18 Wm. & Mary J. Women & L.161 (2012)) on SSRN. Here is the abstract:
As the rates of incarceration continue to rise, women are increasingly subject to draconian criminal justice and child welfare policies that frequently result in the loss of their parental rights. The intersection of an increasingly carceral state and federally imposed timelines for achieving permanency for children in state care has had a negative effect on women, their children, and their communities. Women, and their ability to parent, are more adversely affected by the intersection of these gender-neutral provisions because they are more likely than men to be the primary caretaker of their children. In addition, incarcerated women have higher rates of substance abuse, domestic violence, and childhood and domestic abuse that make it more difficult for them to comply with federal and state standards for retaining their parental rights. Incarcerated mothers must also struggle against stereotypes of mothers and effective mothering which may be at play in parental termination decisions. This article suggests that feminists need to look more closely at these issues and proposes changes to arrest, sentencing, and parental rights hearings that would help incarcerated women maintain their connection with their children and preserve their parental rights. The article suggests a community-based approach to caring for the children of incarcerated women that would help empower women and their communities.
Friday, December 6, 2013
Susan W. Brenner (University of Dayton - School of Law) has posted Humans and Humans+: Technological Enhancement and Criminal Responsibility (Boston University journal of Science and Technology Law, Vol. 19, 2013, Forthcoming) on SSRN. Here is the abstract:
This article examines the implications our use of technological enhancements to improve our physical and/or cognitive abilities will necessarily have on the processes of imposing criminal responsibility on those who victimize others. It explains that while our use of such enhancements is still in its infancy, it is more than likely that their use will dramatically accelerate over the next century or less.
The articles examines how law has historically approached the concept of a “legal person,” with reference to “normal” humans, “abnormal” humans, animals, objects, supernatural beings and juristic persons. It also reviews how two other authors have analyzed the general legal issues our use of enhancements and other technological advancements are likely to raise.
Thursday, December 5, 2013
Maximo Langer (University of California, Los Angeles (UCLA) - School of Law) has posted The Long Shadow of the Adversarial and Inquisitorial Categories (Forthcoming in Handbook on Criminal Law, Markus D. Dubber & Tatjana Höernle eds., Oxford University Press, 2014) on SSRN. Here is the abstract:
This chapter argues that the influence and centrality of the categories “adversarial” and “inquisitorial” in comparative criminal procedure run even deeper that it has been acknowledged because the categories have reflected and contributed to creating the main theoretical trends and the main thematic interests of this field. This chapter maintains that it is possible to identify the main theoretical traditions that comparative criminal procedure has engaged with by mapping commentators’ and courts’ uses of the adversarial and inquisitorial distinction. This mapping reveals five main uses of these categories as: 1) descriptive ideal-types; 2) historical or sociological systems present in actual criminal procedures; 3) opposing interests or values that co-exist in any criminal process; 4) functions of the criminal process; and 5) normative models. After doing this mapping, the chapter argues that even the main comparative criminal procedure alternative approaches to the adversarial-inquisitorial opposition are operating within these same theoretical traditions.
Zachary Price (University of California Hastings College of the Law) has posted Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction on SSRN. Here is the abstract:
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.
Wednesday, December 4, 2013