Tuesday, September 15, 2009
CrimProf contributing editor Adam Kolber (my colleague here at the University of San Diego) is presenting The Subjective Experience of Punishment (Columbia Law Review, Vol. 109, p. 182, January 2009) today at New York University Law School. Here is the abstract:
Suppose two people commit the same crime and are sentenced to equal terms in the same prison facility. I argue that they have identical punishments in name only. One may experience incarceration as challenging but tolerable while the other is thoroughly tormented by it. Even though people vary substantially in their experiences of punishment, our sentencing laws pay little attention to such differences.
I make two central claims: First, a successful justification of punishment must take account of offenders' subjective experiences when assessing punishment severity. Second, we have certain obligations to consider actual or anticipated punishment experience at sentencing, at least when we can do so in a cost-effective, administrable manner. Though it may seem impossible or prohibitively expensive to take punishment experience into account, we should not accept this excuse too quickly. In civil litigation, we often make assessments of emotional distress. Even if we cannot calibrate the punishments of individual offenders, we could enact broad policies that are better at taking punishment experience into account than those we have now.
I do not argue that more sensitive offenders should receive shorter prison sentences than less sensitive offenders who commit crimes of equal blameworthiness. I do, however, argue that when they are given equal prison terms, more sensitive offenders receive harsher punishments than less sensitive offenders and that it is a mistake to believe that both kinds of offenders receive punishments proportional to their desert.
The U.S. Supreme Court's vexing approach(es) to the question of how the federal constitution impacts structured sentencing systems is exhaustively and incisively explored in a manuscript by Frank O. Bowman III (University of Missouri School of Law) entitled Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended (University of Chicago Law Review, Vol. 77, Forthcoming 2010), which he has recently posted on SSRN. The piece has already drawn a fair amount of commentary over at the Sentencing Law and Policy blog. Here is the abstract:
This Article argues that the line of Supreme Court Sixth Amendment jury right cases that began with McMillan v. Pennsylvania in 1986, crescendoed in Blakely v. Washington and United States v. Booker in 2004-2005, and continued in 2009 in cases such as Oregon v. Ice, has been a colossal judicial failure. First, the Court has failed to provide a logically coherent, constitutionally based answer to the fundamental question of what limits the Constitution places on the roles played by the institutional actors in the criminal justice system. It failed to recognize that defining, adjudicating and punishing crimes implicates both the Sixth Amendment jury clause and the Fifth and Fourteenth Amendment due process clauses, and it has twisted the jury clause into an insoluble logical knot. Second, the practical effect of the Court’s constitutional bungling has been to paralyze the generally beneficial structured sentencing movement, with the result that promising avenues toward improved substantive and procedural sentencing justice have been blocked. Even the most widely-applauded consequence of the Apprendi-Booker line, the transformation of the federal guidelines into an advisory system, proves on close inspection to be a decidely mixed blessing. The Court has made the Constitution not a guide, but an obstacle, to a desirable distribution of authority among the criminal justice system’s institutional actors. The Article provides a comprehensive constitutional analysis of all the opinions in the McMillan-Apprendi-Blakely-Booker-Ice line, as well as an assessment of the practical impact of these cases on both federal and state sentencing systems. In addition, the article uses its careful dissection of the defects in the Court’s Sixth Amendment sentencing decisions to develop an alternative constitutional analysis that combines Sixth Amendment and due process principles. Finally, the article suggests that the elevation of Judge Sonia Sotomayor to the Supreme Court may provide the occasion for the Court to rethink its sentencing cases and move toward a more intellectually coherent and practically desirable constitutional sentencing jurisprudence.
Rittossa & Palalic with the Croatian Perspective on Secondary Victimisation of Sexually Abused Children
Sexual crimes against children have been considered as one of the heaviest crimes in general. Once the crime is discovered, there is a strong need not to acknowledge the incident. According to the scientific researchers, fear of child secondary victimisation can prevent parents and guardians from reporting the crime. Having this in mind, the aim of this paper is to research the incidence of the heaviest sexual crimes against children in Croatia in the last 15 years, to detect statistical deviations and see whether the Criminal Code and Criminal Procedural Code Amendments could have influenced such oscillations. A special attention will be given to the provisions of the final version of 2008 Criminal Procedural Code Bill governing new methods to suppress child secondary victimisation. Proposed solutions will be evaluated according to the analysis of the Supreme Court and three county courts SAC cases in the period of 1993-2005.
Monday, September 14, 2009
Maybe it did not occur to the drafters that people floating on inner tubes are not technically on a beach. Or maybe the drafters were counting on the increased safety risk of drinking while floating to curb excessive consumption. But as today's San Diego Union-Tribune reports in Alcohol Ban Loophole Upsets Beach Neighbors, the ordinance has not quite resolved the problem for which it was designed:
In August, an estimated 3,000 people gathered off-shore at Fanuel Street Park in Pacific Beach for “Innertube-palooza.” On Sept. 5, about 2,500 floaters converged in the same area for an event dubbed “Floatopia.”
Matthias J. Borgers (pictured) and Elies Van Sliedregt (both of VU University Amsterdam - Faculty of Law) have posted The Meaning of the Precautionary Principle for the Assessment of Criminal Measures in the Fight against Terrorism (Erasmus Law Review, Vol. 2, No. 2, 2009) on SSRN. Here is the abstract:
Criminal lawyers and criminologists often refer to contemporary society as the risk society, dominated by an awareness and fear of risks that threaten security: for instance, terrorist attacks. Governments respond to this fear by taking measures that prevent such risks as much as possible. This has led to the development of a concomitant change to preventive criminal justice, illustrated most prominently with regard to recent anti-terrorism legislation. There is much debate in criminal law circles, engaging both scholars and politicians, on the need for preventive criminal law. Different points of view are expressed. Often, the framework against which preventive criminal law is assessed is human rights law: in European circles, the European Convention for the Protection of Human Rights. In this paper, we opt for a different approach: preventive criminal justice is evaluated on the basis of the precautionary principle.
Paul H. Robinson (University of Pennsylvania Law School)(pictured), Geoffrey P. Goodwin (Dept. of Psychology, University of Pennsylvania), and Michael Reisig have posted The Disutility of Injustice on SSRN. It both presents original social science research and canvasses previous studies to argue in favor of the proposition that adhering to community notions of just punishment may lead to greater compliance with law.
Here is the abstract:
The retributivists and the crime-control instrumentalists have seen themselves as being in a irresolvable conflict for more than half a century. Social science increasingly suggests, however, that they need not be. Doing justice may be the most effective means of controlling crime. Perhaps partially in recognition of these developments, the American Law Institute's recent amendment to the Model Penal Code's "purposes" provision – the only amendment to the Model Code in the 47 years since its promulgation – adopts desert as the primary distributive principle for criminal liability and punishment.
John William Nelson (Samford University - Cumberland School of Law and University of East Anglia - Norwich Law School) has posted Border Confidential: Why Searches of Laptop Computers at the Border Should Require Reasonable Suspicion (American Journal of Trial Advocacy, Vol. 31, 2007) on SSRN. Here is the abstract:
Our laptops are capable of containing large amounts of personal, private, intimate, and confidential information. At the same time, the power of the government to search us and our possessions is at its zenith during a border crossing. How should our laptops be treated during these border crossings? This Note examines the background of the border search exception and the privacy interests we each have in our laptop computers. This Note argues that searches of our laptop computers should be viewed as highly intrusive in nature because of the ability to quickly sort through vast amounts of intimate and private data. Further, this Note argues that a reasonable suspicion should be required before government can search our laptops during a border crossing.
Sunday, September 13, 2009
for manuscripts announced in the last 60 days in the criminal law and procedure journals are here.
CrimProf previously noted that these rankings should be taken with a grain of salt. Here's another grain. Though the ranking only includes manuscripts posted within the last 60 days, when a manuscript is revised, the 60 days starts to run again. But the total download count for a manuscript does not reset. So the list doesn't just compare brand new manuscripts with those posted 60 days ago. Indeed, this week's list includes one manuscript that was originally posted on June 11. Indeed six of the 10 articles listed were first posted more than 60 days ago.
Of course, there is nothing wrong with revising and reposting a manuscript. But to make it easier for readers to compare apples to apples, or at least to know what fruit is being compared with what fruit, the list below now includes the dates when the manuscript was first posted and last updated.
|1||361||Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases |
Dan M. Kahan,
Yale University - Law School,
Date posted to database: July 22, 2009
Last Revised: September 12, 2009
|2||228||Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets |
Andrew Brady Spalding,
University of Mumbai (Bombay),
Date posted to database: July 4, 2009
Last Revised: August 5, 2009
|3||216||Minds, Brains, and Norms |
Michael S. Pardo, Dennis Patterson,
University of Alabama School of Law, European University Institute,
Date posted to database: July 13, 2009
Last Revised: July 13, 2009
|4||183||Coming to Terms with Ruthlessness: Sovereign Equality, Global Pluralism, and the Limits of International Criminal Justice |
Brad R. Roth,
Wayne State University Law School,
Date posted to database: July 31, 2009
Last Revised: August 12, 2009
|5||134||The Prosecutor as Regulatory Agency |
Rachel E. Barkow,
New York University - School of Law,
Date posted to database: July 3, 2009
Last Revised: August 10, 2009
|6||114||Breaking the Law to Enforce it: Undercover Police Participation in Crime |
Elizabeth E. Joh,
U.C. Davis School of Law,
Date posted to database: July 3, 2009
Last Revised: August 27, 2009
|7||106||Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama |
Ian F. Haney-Lopez,
UC Berkeley School of Law,
Date posted to database: June 12, 2009
Last Revised: July 21, 2009
|8||103||Empirical Work in International Law: A Bibliographical Essay |
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: August 5, 2009
Last Revised: September 8, 2009 [new to top-10 list this week]
|9||99||The Unexceptionalism of Evolving Standards |
University of Richmond - School of Law,
Date posted to database: July 10, 2009
Last Revised: August 10, 2009 [8th last week]
|10||94||Power Rules |
Columbia Law School,
Date posted to database: June 11, 2009
Last Revised: September 9, 2009