Saturday, August 22, 2009
Emily Kadens (University of Texas at Austin - School of Law) has posted The Last Bankrupt Hanged: Capital Punishment for Bankruptcy in 18th-Century England on SSRN. Here is the abstract:
This paper frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of the debtor in his financial dismantling. The pivotal moment in this story came in the years 1705-1706, when the English Parliament drafted a bill making the bankrupt’s refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge, of course, would have a fruitful future. Coercing the debtor to be honest, however, proved a failure. Fraud flourished, and few perpetrators were executed, in part because creditors and jurors found putting bankrupts to death a bit excessive. And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.
Nicole van der Meulen and Bert-Jaap Koops (Tilburg University - Faculty of Law) have posted The Challenge of Identity Theft in Multi-Level Governance; Towards a Co-ordinated Action Plan for Protecting and Empowering Victims (GLOBALISATION, VICTIMS AND EMPOWERMENT, STUDIES IN GLOBAL JUSTICE SERIES, Jan van Dijk, Rianne Letschert, eds., Springer, Forthcoming) on SSRN. Here is the abstract:
The growing role of the Internet within contemporary society provides innovative opportunities for more efficient and convenient ways of committing ‘old’ crimes. Identity theft is a prime example of a crime that perpetrators currently manage to commit in a low-risk environment through creative use of the Internet, leading to a potentially enormous increase in victimization. Online identity theft has proven to be a particularly complicated crime with regard to detection, investigation, and prosecution. Issues of jurisdiction and lack of cooperation among states complicate the ability of individual states to actually protect their citizens against identity theft. The primary aim of this chapter is to analyze the challenge of Internet-related identity theft and the role of multi-level governance in combating this crime. We analyze the concept and prevalence of identity theft, victimization issues, and the role of the Internet. Following the notion of multi-level governance, we then present a general idea for a multi-level action plan to help and empower victims of identity theft, particularly in the context of the Internet. We analyze how this action plan fits in with current policy-making, in order to determine the challenge of Internet-related identity theft in multi-level governance.
Friday, August 21, 2009
Michael Asimow (University of California, Los Angeles - School of Law) has posted Lawyers in Your Living Room! Law on Television (LAWYERS IN YOUR LIVING ROOM! LAW ON TELEVISION, Michael Asimow, ed., ABA Press, 2009) on SSRN. Here is the abstract:
From Perry Mason and The Defenders in the 1960’s to L. A. Law in the 80’s, The Practice and Ally McBeal in the 90’s, to Boston Legal, Shark, and Law & Order today, the television industry has generated an endless stream of dramatic series involving law and lawyers. As a result, most members of the public receive most of their information (and misinformation) about what lawyers and judges do and how legal institutions function from absorbing pop culture representations on television. This book features 36 chapters about legal television, both domestic and foreign, written by 40 different authors. In addition, it contains celebrity introductions by Sam Waterston and James Woods, two of the premiere actors portraying lawyers in contemporary television.
The book covers the Judge Judy phenomenon (including her foreign counterparts) as well as shows that are not primarily about lawyers but feature important lawyer characters (such as The Simpsons or The West Wing). It also contains chapters about the production of dramatic legal shows, including writing and technical advising, and about legal ethics on television. The book concentrates on the personal and professional character of the lawyers -- which runs the gamut from fearless champions of the innocent to the sort of unethical or personally dysfunctional lawyers that the public loves to hate.
Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted The Defense Attorney as Mediator in Plea Bargains (Pepperdine Dispute Resolution Law Journal, Vol. 9, No. 3, 2009) on SSRN. Here is the abstract:
In this article, it will be argued that defense counsel’s function in plea bargains is identical to that of a mediator, seeking to reconcile the positions of the defendant and the prosecution. Within this framework, the plea bargain should be seen as part of the broad conception of Alternative Dispute Resolution (ADR) which first made its appearance at the end of the 1970s. An analysis of plea bargains in the Western world as part of the broader concept of ADR actually shows that it is the defense attorney, rather than the court or the other parties to the issue, who functions as mediator, assessing the interests of the parties caught up in the dispute. This also gives expression to the philosophy of privatization upon which mediation is based. The tactics of influence and use of an impression of force employed by the defense attorney in plea bargains are identical in every way to those used by mediators. The methods of persuasion, use of pressure, delineation of the debate, manipulations, and numerous other parameters are identical to those employed by the mediator. As a result, if indeed the mediation function of the defense attorney in plea bargaining may be recognized, it will be argued that this has implications rooted in applying the accumulated experience of the mediator in private litigation to plea bargains in criminal cases.
CrimProf is glad to post notices about upcoming conferences of potential interest to other crimprofs. Send your information to firstname.lastname@example.org.
The full preliminary conference program schedule for LatCrit XIV and the LatCrit/SALT New Faculty Development Workshop, hosted by American University Washington College of Law Oct. 1-4, has been released. It is here:
Hotel and conference registration materials are here:
And the conference theme narrative and initial call for papers/panels are here, although the submission deadline has long passed and, absent cancellations, there will be no more panel and work-in-progress slots available (with the exception of commentators for works-in-progress colloquia):
All of you interested in criminal law theory should take a look at Kim Ferzan's, Stephen Morse's, and my new book, Crime and Culpability: A Theory of Criminal Law (Cambridge Univ. Press, 2009). In it we ask what criminal law would look like if organized along moderately retributivist grounds, with culpability as its primary axis. We advance a theory of culpability, discuss what matters reduce or eliminate it (justifications and excuses), whether negligence is culpable, the relevance of resulting harm, inchoate forms of criminality, the individuation of offenses, rules versus standards, and what an ideal criminal code would look like. We urge you to in turn urge your library to purchase a copy; and if you want your own copy in which to write critical comments, it's available in paperback at a ridiculously low price.
Carla Del Ponte , Charles Sudetic and Peter Erlinder (William Mitchell College of Law) have posted Book Review - Madame Prosecutor: Confrontations with Humanity’s Worst Criminals, and the Culture of Impunity on SSRN. Here is the abstract:
It is not often that a first-person memoir immediately establishes itself as a foundational source in such esoteric subjects as International Jurisprudence and the theory and practice of International Criminal Law. But, the recently-published English-version memoir of the former Chief Prosecutor for the UN Tribunals for Yugoslavia and Rwanda, Carla Del Ponte, can legitimately lay claim to being to being such a book. The importance of the issues discussed in the Del Ponte book was confirmed by the Security Council's response to its publication in early 2008, and to that of a related book by Florence Hartmann, Ms. Del Ponte's long-time press-aide published in 2007. The Security Council has attempted to suppress publication of the books, and is criminally prosecuting Ms. Hartmann at the International Criminal Tribunal for Yugoslavia for contempt of court. Del Ponte's memoir may well be the most important international criminal law book published since the Security Council established the Yugoslavia and Rwanda Tribunal in the early 1990's. And, it is certainly the most important introduction ever written for casual readers, academics and practitioners who wish to understand the realities of the Security Council Tribunals, and the uncomfortable relationship between the Rule of Law and the undeniable effects of international power-politics. The strengths and weaknesses of the Security Council Tribunals described by Ms. Del Ponte, and teased from the previously unknown history of prosecutorial decision-making she reveals, convincingly demonstrates the largely unacknowledged interplay between the interests of powerful nations, and basic legal concepts such as: equality before the law; due process; the presumption of innocence; proof beyond a reasonable when 'law meets power' in the actual functioning of all international tribunals.
Thursday, August 20, 2009
Alan Dershowitz (Harvard Law School) argues that Justice Scalia's views on innocence and the death penalty are incompatible with Catholic thought in a post at The Daily Beast. Here's the language from Justice Scalia's recent opinion in the Davis case that Dershowitz flags:
This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”
Paul Campos takes Justice Scalia on in another post on The Daily Beast:
Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.
Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.
Constitutional criminal procedural rights can be enforced through civil actions for damages and through remedies that are part of the criminal proceeding itself, such as exclusionary rules. For a brief and interesting critique of the Court's approach to choosing among these remedies, read the recent manuscript by Jennifer E. Laurin entitled Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing (Columbia Law Review Sidebar, Vol. 109, 2009).
Here is the abstract:
Criminal procedure rights are most commonly thought of as adduced and enforced in the context of criminal proceedings, in the course of which defendants litigate criminal procedure guarantees and thereby both obtain individual relief and, the story goes, generate systemic incentives for the conduct of law enforcement. This regulatory process also occurs, however, though civil litigation of criminal procedure rights, most commonly through the federal civil rights statute 42 U.S.C. s. 1983. This recursive dynamic is eschewed, however, by what this short essay identifies as a recent trend of "remedial rationing" in the Supreme Court's criminal procedure jurisprudence: the cabining of criminal procedure litigation in either the criminal or civil realms. The Supreme Court's recent Confrontation Clause decision in the criminal case Melendez-Diaz v. Massachusetts, and a recent civil rights verdict in the case Rodriguez v. City of Houston - both cases that concern constitutional limitations on the conduct of law enforcement with respect to forensic science practices - provide an opportunity to reflect on the limits of both criminal and civil litigation as mechanisms for generating law enforcement incentives, and to consider the possible coordinate and synergistic advantages of the availability of both remedial regimes. Such a dynamic suggests that the Court's “remedial rationing” approach is misguided.
In addition to documenting some of the instances in which the Court has limited civil remedies in reliance on the availabilty of exclusionary remedies, and limited exclusionary remedies in reliance on the availability of civil remedies, the piece suggests that civil remedies might have advantages in terms of general deterrence of constitituonal violations and that exclusionary remedies might be more effective in terms of specific deterrence.
Jarrod Wong (University of the Pacific - McGeorge School of Law) has posted Reconstructing the Responsibility to Protect in the Wake of Cyclones and Separatism (Tulane Law Review, Vol. 84, 2009) on SSRN. Here is the abstract:
The Article fundamentally reconceptualizes the doctrine of the responsibility to protect (R2P) by proposing an interpretation of R2P that would authorize the international community to respond not just to mass atrocities perpetrated through armed attacks but also those resulting from a government’s criminal failure to protect its people based on omissions that constitute crimes against humanity. As endorsed by the UN in 2005, R2P provides that where sovereign governments are manifestly failing to discharge their primary responsibility to protect their populations from 'genocide, war crimes, ethnic cleansing, and crimes against humanity,' that responsibility shifts to the wider international community acting through the UN. A contentious but crucial element of the doctrine is that it authorizes the use of force, although only as a last resort and then only if sanctioned by the UN Security Council. In May 2008, a storm of controversy arose around the proper scope of R2P in the wake of the destruction wreaked by Cyclone Nargis in Myanmar. In the face of the junta’s resistance to foreign help even as tens of thousands of people lay dying, French Foreign Minister Bernard Kouchner raised the possibility of the UN implementing R2P to compel the delivery of aid. Critics opposed to applying R2P here noted that the doctrine addressed the perpetration of mass atrocities like the genocide in Rwanda, and not natural disasters, and that to do so would effectively justify all manner of humanitarian intervention, and thereby destroy the legitimacy of R2P. In contrast, those seeking to apply R2P in Myanmar discerned no moral sense in distinguishing between withholding aid in natural disasters and refusing to help in situations of armed conflict when the end result was the same: serious and irreparable harm to the population. However, while both sides make compelling points, the premise of the exchange itself is fundamentally flawed insofar as it turns on the concept of natural disasters. R2P applies if at all because of the state’s criminal failure to protect its citizens from harm in the aftermath of the natural disaster, and not because of the deaths immediately caused by the natural disaster. In other words, if Myanmar could but did not prevent the continuing large-scale loss of life in the wake of the cyclone, then R2P is potentially applicable since such deliberate inaction itself is culpable neglect that arguably amounts to a crime against humanity under international law. Accordingly, this Article proposes the adoption of an alternative analytical framework based on what I call the 'constructive interpretation' of R2P. Under this interpretation, R2P applies not just to a government’s failure to protect its people from affirmatively perpetrated mass atrocities but also from harm based on omission where the government’s failure to act constitutes a crime against humanity under international law. Significantly, the Article will demonstrate that the constructive interpretation of R2P is grounded in prevailing international criminal jurisprudence, which has recognized that an omission may be the basis of a finding of a crime against humanity. There is, in other words, no need to sanction natural disaster situations as a new and independent basis for invoking R2P. Rather, natural disaster situations that warrant intervention already fall within a self-defined basis for the invocation of R2P, namely the failure of a government to protect its population against a crime against humanity. Because the constructive interpretation of R2P stays faithful to its definition, it tempers the concerns regarding abuse while providing a means of intervening in otherwise desperate situations involving grave harm by omission. In keeping the focus on the issue of the criminal failure to act rather than natural disasters, the constructive interpretation also lends R2P greater coherency and moral authority, but yet preserves its bite. Further, as this Article will show, the safeguards inherent in both the definition and the mode of operation of the doctrine will prevent R2P from overreaching, and the resulting formulation of R2P, while broader, could paradoxically foster greater support for the doctrine and insure its use in any future crisis that calls for it.
The California Supreme Court has long been influential in shaping the contours of the felony murder rule, and two of its recent cases have limited the reach of the rule in California and may be influential beyond the state.
Most recently, in People v. Farley, 46 Cal.4th 1053 (2009), the Court overruled People v. Wilson, 1 Cal.3d 431 (1969), and held that the merger doctrine does not apply to first degree felony murder. Wilson had applied the merger doctrine to first degree felony murder based upon a burglary committed with the intent to assault the murder victim. Farley emphasizes legislative prerogative in defining crime and fixing penalties.
Earlier in the year, in People v. Chun, 45 Cal.4th 1172 (2009), the Court considered the merger doctrine in the context of second degree felony murder and overruled two decisions: People v. Robertson, 34 Cal.4th 156 (2004) (applying the independent purpose test); and People v. Hansen, 9 Cal.4th 300 (1994) (asking whether the use of the particular predicate felony will subvert the legislative intent to calibrate punishment for homicide). Chun holds that a felony merges with the homicide and cannot be the basis of a felony murder instruction when that felony is assaultive in nature. Chun declined to identify the felonies which are assaultive in nature, but explained that these felonies involve “a threat of immediate violent injury” (at 1200). Chun further explains that the court determines whether a crime merges by examining the elements of the crime and not the facts of the case.
This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa's story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system's response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a default response to social disorder. Once we begin attending to the accounts of people directly affected by criminal sanctions, however, we can begin to understand how our policies have exacerbated the very social problems they were intended to remedy. By holding offenders unaccountable to their families and communities, incarceration, at least as it is currently practiced, frustrates the fundamental norms of reciprocity that form the basis of social order itself.
In 2005, the Supreme Court in United States v. Booker rendered the United States Sentencing Guidelines advisory. Arriving after eighteen years of complex and mandatory sentencing rules, the decision initially was heralded as revolutionary, both by critics and defenders of the federal Guidelines. But subsequent reports by the Sentencing Commission have shown few signs of a Booker revolution, revealing surprisingly modest changes. The existing research on post-Booker sentencing is incomplete, however, because it has not examined the response of individual judges to the decision. That omission is critical, given that the reduction of inter-judge disparity was the central purpose of the Guidelines. Studying sentencing patterns by individual judges is notoriously difficult because the Commission does not disclose the identity of the sentencing judge when releasing case records. But one district court - the District of Massachusetts - has adopted a unique policy that makes key sentencing documents available to the public, allowing the analysis of judge-specific data.
This Article offers the first empirical evidence of individual judges’ responses to Booker, drawing on a dataset of sentences from 2002 to 2008 by judges in Boston who share a common case pool. An analysis of those sentences suggests a modest but clear increase in inter-judge disparity since Booker. The strength of the relationship between the identity of the sentencing judge and sentence length has increased, by some measures 60-80% above pre-Booker levels. The identity of the judge also has become a stronger predictor of sentencing relative to the Guidelines: some judges now sentence outside the guideline range more frequently, and to a greater extent, than their colleagues. Although it is difficult to know whether similar trends have played out in other districts, the Boston data suggest that judges’ disagreements about the Guidelines have a greater effect on sentencing outcomes since Booker.
Wednesday, August 19, 2009
S. David Mitchell (University of Missouri) has posted In With the New, Out With the Old: Expanding the Scope of Retroactive Amelioration on SSRN. Here is the abstract:
The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to apply the changes retroactively to him. I use the Genarlow Wilson case as a backdrop to examine the denial of the retroactive application of ameliorative sentencing changes that is manifested through the use of a legislative device known as the express saving clause or a general saving statute. Currently, in the majority, ameliorative sentencing changes are applied retroactively provided there is a clear expression of legislative intent. Dissatisfied with this approach, a minority of jurisdictions engage in retroactive amelioration routinely either judicially or legislatively. While the courts in these jurisdictions apply ameliorative changes retroactively despite the existence of a general saving statute in contravention of the rules of statutory construction thus bordering on what some may label as judicial activism, the legislatures have created an ameliorative amendment exception to the general saving statute. Each applies ameliorative sentencing changes retroactively but restricts the application of such changes to circumstances in which there is neither an express saving clause nor has final judgment been determined. In my proposed retroactive amelioration statute, I advocate for ameliorative sentencing changes to be applied to pre-final judgment defendants adopting the current minority legislative practice and to those with finalized convictions through an administrative sentence readjustment process.
How about discussing whether the benefits of wounding live pigs and using them to train Marines on how to treat battlefield injuries outweigh the harm to the animals. The pigs are under anesthesia and supposedly feel no pain. Opponents argue that other training methods are adequate. The practice is discussed here. Is it better or worse if they eat the pigs afterwards?