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Editor: Kevin Cole
Univ. of San Diego School of Law

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Thursday, December 31, 2009

Re on the Congressional Overruling of Recent Eighth Amendment Cases

Richard M. Re has posted Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.” While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override. This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation. Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment. One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed. But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis. Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law. Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate. As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding. If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.

December 31, 2009 | Permalink | Comments (0)

Mosteller on Defenders and Protecting the innocent

Mostellerrobertp Robert P. Mosteller  (University of North Carolina at Chapel Hill - School of Law) has posted Protecting the Innocent: Part of the Solution for Inadequate Funding for Defenders, Not a Panacea for Targeting Justice (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:

In this article I examine the importance of the role that defenders play in protecting the innocent to invigorate the drive for adequate indigent defense funding during a time of increased societal concern with unjust convictions. I also recognize the inherent dangers and difficulties in harnessing that societal concern. In Part I, I argue that for many defendants, including the most problematic types as demonstrated by DNA exonerations, innocence is not actually knowable to anyone in the system, even defense attorneys. These problematic cases in which the defendants are in fact innocent do not generally present themselves as innocence cases but instead only suggest possible weakness in the prosecution’s evidence, and the defense usually only attempts to raise reasonable doubts in the jury’s mind. Tried by well by adequately funded defense counsel, a percentage of these cases will still result in erroneous convictions of the innocent, but fewer of them. Moreover, innocent defendants will have received all society can actually guarantee in a system where humans decision-makers deal with uncertainty, which is a fair proceeding.

In Part II, I examine a proposed partial solution to inadequate funding, which is a specific application of a rationing system, specifically examining a proposal that attempts to give priority to representing the likely innocent. I conclude that this proposal, even if logically justifiable and plausible as a professional goal of public defenders, can provide no practical guidance that would meaningfully offset inadequate resources. Moreover, it could undermine the arguments for adequate defense funding by suggesting that the priority cases of the likely innocent can be defended well if defenders would simply focus their efforts on observable pretrial indicators.

In Part III, I highlight one of what I believe is one of the most realistic and workable proposals to improve indigent defense, which is the creation of a federally supported center to evaluate and finance improvements and reform in state indigent defense. This proposal would have significant impact, and it is politically viable. This reform effort would greatly benefit from the support of the innocence movement. I also address another recent proposal that supports the effort to improve indigent defense through federal support that goes awry with an apparent quid pro quo that would further restrict federal habeas. It promises to protect the innocent, but does so only for those rare cases where innocence is clear, and it would eliminate review of ineffective assistance of counsel and Brady claims, which present substantial reasons to doubt guilt when meritorious and constitute the best showing that innocent defendants can usually ever make.

In Part IV, I explore preliminary strategies for the use of innocence by those leading the battle for increased defense funding. The argument has its challenges and pitfalls, but it is substantially completely valid. Defender leadership must develop the supporting facts and examples and present them effectively.

December 31, 2009 | Permalink | Comments (1)

Wednesday, December 30, 2009

Wexler on Reintegrating inmates

Wexler  David B. Wexler (University of Arizona - James E. Rogers College of Law) has posted Retooling Reintegration: A Reentry Moot Court (Chapman Journal of Criminal Justice, forthcoming 2010 ) on SSRN. Here is the abstract:

This essay proposes that correctional institutions expose interested inmates to programs involving elements of restorative justice,therapeutic jurisprudence, and relapse prevention planning, culminating in a transition and relapse prevention plan that can form the basis of a proposed parole plan. Then, the prisoner about to be considered for parole can try out the plan before peers in a Reentry Moot Court. Such an exercise should be of practical and rehabilitative use both to the prisoner defending his or her plan and to the peer prisoners who will hone their own problem solving skills by participating in the Moot Court process.


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December 30, 2009 | Permalink | Comments (0)

Kim, Barak, and Shelton on the "CSI-Effect" on Jurors

Shelton  Young S. Kim  (Eastern Michigan University), Gregg Barak  (Eastern Michigan University), and Donald E. Shelton  (Eastern Michigan University) have posted Examining the 'CSI-Effect' in the Cases of Circumstantial Evidence and Eyewitness Testimony: Multivariate and Path Analyses (Journal of Criminal Justice, Vol. 37.5, pp. 452-460, 2009) on SSRN. Here is the abstract:


As part of a larger investigation of the changing nature of juror behavior in the context of technology development, this study examined important questions unanswered by previous studies on the “CSI-effect.” In answering such questions, the present study applied multivariate and path analyses for the first time. The results showed that (a) watching CSI dramas had no independent effect on jurors' verdicts, (b) the exposure to CSI dramas did not interact with individual characteristics, (c) different individual characteristics were significantly associated with different types of evidence, and (d) CSI watching had no direct effect on jurors' decisions, and it had an indirect effect on conviction in the case of circumstantial evidence only as it raised expectations about scientific evidence, but it produced no indirect effect in the case of eyewitness testimony only. Finally, implications of the present study as well as for future research on the “CSI-effect” on jurors are discussed.


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December 30, 2009 | Permalink | Comments (0)

Tuesday, December 29, 2009

Humbach on the Biology of Blame

Jhumbach  John A. Humbach  (Pace University School of Law) has posted The Humane Principle and the Biology of Blame: Evolutionary Origins of the Imperative to Inflict (Proceedings of Global Conference on Perspectives on Evil and Human Wickedness) on SSRN. Here is the abstract:

The idea that some people “deserve” to suffer has enormous social implications. People insist there is a moral right to cause human suffering. However, as the circle of humans deemed entitled to full human dignity grows wider, the next logical step is to adopt a general principle that any deliberate increase in human suffering is wrong, without exception Such a Humane Principle, to replace the old principle of “just deserts,” might be provisionally formulated as follows: "Any act to cause human suffering is wrong and must be avoided unless it is honestly meant as the most humane alternative that the situation presents, according equal concern to all who are affected." Resistance to such a principle is considerable because, unfortunately, people draw unwarranted moral conclusions from their feelings of blame. But these feelings are merely adaptations to conditions that have long ceased to apply. Causing deliberate harm to others has ceased to be either a socially adaptive or morally defensible mode of social control.


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December 29, 2009 | Permalink | Comments (0)

Klamberg on International Criminal Law in Sweden

Mark_Klamberg  Mark Klamberg  (Stockholm University) has posted International Criminal Law in Swedish Courts: The Principle of Legality in the Arklöv Case (International Criminal Law Review, Vol. 9, pp. 395-409, 2009) on SSRN. Here is the abstract:

On 18 December 2006, the Stockholm district court convicted Jackie Arklöv for a crime against international law. It was the first, and until the present date, the only time, liability for a crime against international law has been tried before a Swedish court. This article presents the law applied by the Court, draws attention to the principles of legality, ne bis in idem, and discusses whether a national court in a dualistic legal system can impose criminal responsibility with reference to customary international law.


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December 29, 2009 | Permalink | Comments (0)

Monday, December 28, 2009

"Florida's 2005 Stand Your Ground law, which broadens a citizen's right to use deadly force, is vexing courts across the state"

The story is in the Miami Herald:

No one disputes that Maurice Moorer fired more than a dozen bullets to kill a rival sitting in a car in West Little River last year.

Moorer claimed self-defense. Police detectives begged to differ.

But prosecutors say they were forced to drop a murder charge against Moorer because of the controversial 2005 ``Stand Your Ground'' self-defense law that broadened a citizen's ability to use deadly force.

``There is no law now that we can point to say Moorer should have backed off, that he should have avoided this,'' said Miami-Dade Assistant State Attorney Kathleen Hoague, who says the new law ``cheapens human life.''

Hat tip to Ted Gest.

December 28, 2009 | Permalink | Comments (1)

Perlin on Therapeutic Jurisprudence in Incompetency and Insanity Cases

Michael L. Perlin  (New York Law School) has posted ‘Too Stubborn to Ever be Governed by Enforced Insanity’: Some Therapeutic Jurisprudence Dilemmas in the Representation of Criminal Defendants in Incompetency and Insanity Cases (International Journal of Law and Psychiatry, Vol. 33, No. 4/5, 2010) on SSRN. Here is the abstract:

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role of criminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders . On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise , given the omnipresence of sanism, an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that infects both our jurisprudence and our lawyering practices, that is largely invisible and largely socially acceptable, and that is based predominantly upon stereotype, myth, superstition, and deindividualization, is sustained and perpetuated by our use of alleged "ordinary common sense" (OCS) and heuristic reasoning in an unconscious response to events both in everyday life and in the legal process.

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December 28, 2009 | Permalink | Comments (0)

Sunday, December 27, 2009

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 316 The Emerging Criminal War on Sex Offenders
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
2 314 The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
3 176 Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009
Mary Ellen O'Connell,
Notre Dame Law School ,
Date posted to database: November 6, 2009
4 172 Amicus Brief in Mcdonald v. Chicago: On Behalf of the International Law Enforcement Educators and Trainers Association, et al
David B. Kopel,
Independence Institute,
Date posted to database: November 22, 2009
5 160 The Experiential Future of the Law
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009
6 104 Two Ways to Think About the Punishment of Corporations
Albert W. Alschuler,
Northwestern University - School of Law,
Date posted to database: October 22, 2009 [8th last week]
7 90 Why Care About Mass Incarceration?
James Forman,
Georgetown University Law Center,
Date posted to database: October 16, 2009 [10th last week]
8 89 Mapp v. Ohio’s Unsung Hero: Suppression Hearings as Morality Play
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: October 13, 2009 [9th last week]
9 84 How Movies Created the Financial Crisis
Larry E. Ribstein,
University of Illinois College of Law,
Date posted to database: November 3, 2009 [new to top ten]
10 78 Police-Induced Confessions: Risk Factors and Recommendations
Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, Allison D. Redlich,
John Jay College of Criminal Justice, Northwestern University - School of Law, Bluhm Legal Clinic, University of Massachusetts at Worcester - University of Massachusetts Medical School, University of London - King's College London, University of San Francisco - School of Law, Author - affiliation not provided to SSRN,
Date posted to database: October 7, 2009 [new to top ten[

December 27, 2009 | Permalink | Comments (0)

Saturday, December 26, 2009

Paul-Emile on Drug Control Policy

Paulemile kimani Kimani Paul-Emile  (Fordham University - School of Law) has posted Making Sense of Drug Regulation: A Theory of Law for Drug Control Policy (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids. Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained. This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.

December 26, 2009 | Permalink | Comments (0)

Friday, December 25, 2009

Merry Christmas from CrimProf Blog!

Here's a trivia question you can use to stump friends and family during the holiday season: In what movie was the song first sung that became the best-selling single record of all time? Answer after the jump.

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December 25, 2009 | Permalink | Comments (1)

Utah Expands Admissibility of Expert Testimony on Eyewitness Identifications

The Salt Lake Tribune covers the decision of the Utah Supreme Court here:

[A] judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.

Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."

. . .

Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony."

Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.

The opinion is here. Hat tip: How Appealing.

December 25, 2009 | Permalink | Comments (2)

Thursday, December 24, 2009

"Maine's high court finds part of sex offender registration law unconstitutional"

Doug Berman at Sentencing Law and Policy has the story. The opinion in the case is available here.

December 24, 2009 | Permalink | Comments (0)

Wednesday, December 23, 2009

Austin on Women at the Border

Austin regina Regina Austin  (University of Pennsylvania Law School) has posted Women’s Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez (GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP, Linda C. McClain, Johanna L. Grossman, eds., Cambridge University Press, 2009) on SSRN. Here is the abstract:

There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the private grief of their survivors should have been a cause for public national mourning. Finally, Battle of the Crosses (2005), the work of social scientists, offers a panoramic description of the complicated social terrain on which the Juárez femicides occurred and their meaning was fought over. Together, the films suggest how borders are constructed and “performed” through law and law enforcement in ways that jeopardize women’s rights as citizens. The films also show how women in turn challenge law and law enforcement to transcend the limitations of social, political, and economic borders and assert their right to equal citizenship.

Confronted with state intransigence in the face of the murders of dozens of young females, the women of Juárez used their traditional female roles as a springboard to political engagement. Overcoming the debilitating effect of class and ethnic marginality, patriarchal mass violence, and governmental corruption and lack of accountability, the women turned back the state’s effort to belittle the murders as private matters and the victims as deserving of their fate. The documentaries together provide a vivid case study that proves the importance of understanding the synthetic quality of borders and their relationship to women’s equal citizenship in a globalizing world where borders can pop up anywhere and at anytime.

December 23, 2009 | Permalink | Comments (0)

Turner on Ethics in International Criminal Defense

Turner jenia Jenia Iontcheva Turner  (Southern Methodist University (SMU) - Dedman School of Law) has posted Legal Ethics in International Criminal Defense (Chicago Journal of International Law, Winter 2010) on SSRN. Here is the abstract:

This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.

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December 23, 2009 | Permalink | Comments (0)

Tuesday, December 22, 2009

"Polanski exit strategy suggested by court"

The L.A. Times story is here:

A state appellate court Monday rejected Roman Polanski's bid to have his 1977 child-sex prosecution dismissed but outlined a way that could end the long-running case without Polanski serving more time behind bars or returning to the American justice system he fled three decades ago.

In a 3-0 ruling, the 2nd District Court of Appeal suggested that Polanski ask to be sentenced in absentia for the statutory rape he admitted committing 32 years ago.

According to the three-justice panel, the sentencing hearing held in his absence would provide a forum for a Los Angeles County judge to evaluate Polanski's allegations of prosecutorial and judicial misconduct in the original handling of the case.

December 22, 2009 | Permalink | Comments (1)

"Are federal prosecutors acting worse or are judges just starting to notice?"

Doug Berman at Sentencing Law and Policy asks this interesting question in response to a couple of recent incidents he cites, which follow the better-known Broadcom dismissal.

December 22, 2009 | Permalink | Comments (0)

"The Elephant in the Crime Stats Living Room"

Kent Scheidegger at Crime and Consequences thinks that recent coverage of declines in crime rates leaves an important factor out:

Year-to-year fluctuations don't tell us much. The long-term trends are that violent crime went way up in the 60s, 70s, and 80s, dropped sharply in the 90s and generally continued dropping at a slower rate in the decade now ending (the 00s?). Demographics are part of that, as Fox says, but the fact that we went soft on crime in the 60s and 70s and then toughened up in the late 80s is also a factor.

But we mustn't mention that, you see, because so many people are so heavily invested in telling us that it would be "smart on crime" to repeat the mistakes of the 60s.

December 22, 2009 | Permalink | Comments (0)

Monday, December 21, 2009

"FBI Report: Crime, Murder Rate Dropped in First Half of 2009"

The ABC News website has the story here.

Crime fell 4.4 percent nationwide in the first half of 2009 with the murder rate dropping a startling 10 percent, according to statistics released Monday by the FBI. The decline in murders is one of the more significant one-time decreases in recent memory, according to some criminologists.

Crime rates have been dropping since 2007, following a run up in violent crime during the middle part of the decade. FBI figures for 2005 showed that violent crime had increased 2.5 percent overall, one of the largest percentage increases in 15 years. Overall crime in the United States increased 3.7 percent in 2006.

December 21, 2009 | Permalink | Comments (0)

"Court Rejects Polanski Bid to Dismiss Case"

The Wall Street Journal has the article here:

Attorneys for the fugitive director argued earlier this month that misconduct in the case was grounds for dismissal of a charge of having unlawful sex with a minor. They also contended Mr. Polanski didn't need to be present to argue for dismissal.

The court disagreed on both issues.

December 21, 2009 | Permalink | Comments (0)