Saturday, October 3, 2009
Deborah M. Weissman (pictured; University of North Carolina at Chapel Hill - School of Law) and Marsha Weissman have posted The Moral Politics of Social Control: Political Culture and Ordinary Crime in Cuba (Brooklyn Journal of International Law, Forthcoming) on SSRN. Here is the abstract:
The Cuban revolution has been described as “the longest running social experiment” in history, and one not well-received in the United States. The U.S. government responded to the revolution first with suspicion, and then hostility. Even while the current administration has acknowledged the failure of U.S. policy, few substantive changes have been announced and the narrative of Cuba in the United States continues to dwell almost exclusively on political repression and economic failure.
Daniel Moriarty (Albany Law School) has posted Dumb & Dumber: Reckless Encouragement to Reckless Wrongdoers on SSRN. Here is the abstract:
This paper deals with compound negligence, i.e., situations in which one person’s heedlessness helps another to commit a negligent offense. The conviction of the second party who actually commits the offense poses no unique problem; offenses committable through criminal negligence, such as involuntary manslaughter, are routinely available in every jurisdiction. But conviction of the first party who negligently provided the means or opportunity for the second party’s unreasonable behavior poses significant problems. Accomplice liability is unavailable as complicity requires an intention to aid another, which is absent in such cases. Causation might be tried, but the second party’s criminal negligence is apt to be considered an intervening, superseding cause. Reckless Endangerment, an offense pioneered by the Model Penal Code, may well be available in most States (60%), but by no means all, and where available is generally graded as a misdemeanor only, with a maximum imposable prison term of about a year. This paper argues that in many cases such a relatively minor grading is disproportional to the harm committed, such as death or serious physical injury, and proposes a new statute to address the area. Special problems considered in drafting the proposed statute include the degree of aid that ought to be sufficient for liability, the type and degree of harms that should be covered, and the mens rea that should be required, i.e., in Model Penal Code terms, either recklessness or negligence. Several unfortunate instances serve as case studies.
Pat O'Malley (University of Sydney - Faculty of Law) has posted Jeremy Bentham (FIFTY KEY CRIMINOLOGICAL THINKERS, S. Maruna, J. Mooney & K. Hayward, eds., Routledge, Forthcoming) on SSRN. Here is the abstract:
Jeremy Bentham is associated in criminology with his invention of the 'Panopticon.' In many ways this appeared as the quintessential disciplinary institution, training subjects to be 'docile' and obedient. Yet Bentham's classical criminology also stressed that actors are rational choice optimisers, and are to be seen as inventive and enterprising rather than servile and mindless. In part, the overemphasis on the Panopticon leads modern criminologists ignore this side of his thinking and to see Bentham as narrowly punitive and disciplinary. But in his later years he turned toward 'pecuniary sanctions', fines and damages, that he regarded as the optimal liberal sanction. Bentham outlined many of the advantages of monetary justice, and advocated their use in relation to almost every crime, in place of the more usual punishments. This chapter suggests a need to reconsider the contribution of Bentham to criminology and penology in terms of such later works and ideas rather than his advocacy of the Panopticon alone.
Justin D. Levinson (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Race, Death, and the Complicitous Mind (DePaul Law Review, Symposium on Media, Race, and the Death Penalty, Vol. 58, p. 599, 2009) on SSRN. Here is the abstract:
Despite the historical racial imbalance in capital punishment, interdisciplinary scholarship has failed to investigate fully how the human mind may automatically and systematically facilitate racial bias against African-American defendants in capital cases. Considered in the legal context, well-developed social science principles may help reveal how people’s automatic and unintentional cognitive processes may either propagate racial disparities in the death penalty or serve as a masking agent in covering up those disparities. This Article introduces implicit social cognition research to the death penalty context and proposes new hypotheses that help explain why capital cases may be automatically infused with racial bias and why research to date may unintentionally cover up existing racial disparities.
The author presents two preliminary hypotheses that apply social cognition theory to the capital context. Death Penalty Priming Hypothesis posits that the supposedly race-neutral death qualification of jurors unintentionally and automatically elicits implicit racial bias in the final jury panel. This hypothesis is based on the social cognition concept of priming, a phenomenon that explains how even seemingly race-neutral conversations can elicit automatically racially biased cognitive processes in jurors. This automatic activation results from both deep historical associations between capital punishment and race and the continuing propagation of racial stereotypes in the media and American culture generally.
Friday, October 2, 2009
The summary of the issue comes from ScotusWiki, where you can also find briefs, opinions below, and the like.
Monday, Oct. 5
Maryland v. Shatzer: limits on police questioning after a suspect asks for a lawyer
- ScotusWiki summary
- Testing the Outer Limits of the Edwards Rule: Maryland v. Shatzer (Dripps & Kamisar)
- Previewing the Coming Term (Part 1): Maryland v. Shatzer
Tuesday, Oct. 6
Johnson v. United States: battery as a “violent felony” for sentence enhancement
Bloate v. United States: calculation of time of pre-trial stages under federal Speedy Trial Act
In McDaniel v. Brown, the Supreme Court will review the use of DNA evidence in a 1994 trial for sexual assault and attempted murder. The Court granted certiorari to consider two procedural issues—the standard of federal postconviction review of a state jury verdict for sufficiency of the evidence, and the district court's decision to allow the prisoner to supplement the record of trials, appeals, and state postconviction proceedings with a geneticist's letter twelve years after the trial.
This essay clarifies the nature and extent of the errors in the presentation of the DNA evidence in Brown. It questions (1) whether the transposition of a conditional probability (of the DNA match given the defense hypothesis that a man unrelated to the defendant was the source of the semen on the victim's panties) amounted to a deprivation of due process and (2) whether the position of the Ninth Circuit Court of Appeals, the defendant, and various amici curiae that the probability of a match to any of four brothers should have presented rather than the probability of a match to a single brother.
Jelani Jefferson Exum (Kansas) is presenting Why March To A Uniform Beat?: Adding Honesty and Proportionality to the Tune of Federal Sentencing at the University of Cincinnati College of Law today. Here is the abstract:
The Federal Sentencing Guidelines were initially created to increase uniformity, honesty, and proportionality in sentencing by diminishing the influence of individual judges’ biases in the sentencing determination. However, now that the Guidelines have been rendered advisory by the Supreme Court in United States v. Booker, and circuit courts have been directed to review sentences for “unreasonableness”, most of the Supreme Court’s attention has been focused on ensuring the preservation of uniformity, rather than recognizing the continued importance of honesty and proportionality in bias reduction. The assumption, it seems, is that once uniformity in sentencing is achieved then the potential of judicial bias has been erased. However, judicial bias in sentencing is not eradicated by the form uniformity brought by sentencing guidelines alone. Despite this, the Supreme Court has ignored these additional purposes of sentencing. Recently, in United States v. Gall, the Supreme Court explained that in order for a sentence to be procedurally reasonable, district courts must first calculate and consider the proper Guidelines range, consider the § 3553(a) sentencing factors, and adequately explain the chosen sentence.
Here's the announcement:
The University of South Carolina School of Law in Columbia, SC, is seeking a visiting professor to teach Criminal Law and Evidence for either Fall 2010 or for the full AY 2010-11. Applicants for a full-year visit would teach Criminal Law in the Fall and Evidence in both semesters, with a fourth course negotiable. This is a podium visit only. At least three years prior law school teaching experience is preferred.
I no longer can read an article about blackmail without recalling the observation of my colleague, Don Dripps, in his piece entitled The Priority of Politics and Procedure over Perfectionism in Penal Law, or, Blackmail in Perspective: "In the last twenty years, there may very well be fewer reported blackmail prosecutions than articles on the subject." The latest contribution: Paul H. Robinson (University of Pennsylvania Law School) (pictured), Michael T. Cahill (Brooklyn Law School), and Daniel M. Bartels (University of Chicago) have posted Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory on SSRN. The piece canvasses the various theories offered to justify the offense of blackmail and seeks, through survey techniques, to test their resonance with common intuitions, finding that many of the approaches are "over-theorized," a position with which Don would agree, but for different reasons.
Here is the abstract:
Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists. It criminalizes the threat to do something that would not be criminal if one did it. There exists a rich literature on the issue, with many prominent legal scholars offering their accounts. Each theorist has his own explanation as to why the blackmail offense exists. Most theories seek to justify the position that blackmail is a moral wrong and claim to offer an account that reflects widely shared moral intuitions. But the theories make widely varying assertions about what those shared intuitions are, while also lacking any evidence to support the assertions.
Thursday, October 1, 2009
First off, let me admit that two posts about this case in the same day is at least one too many, even though we all know that our students will track high-profile cases in the news with a care that might better be focused on their real studies. But I got a kick out of the headline. Is it really news when "defense strategies" might keep someone out of prison? Putting the headline aside, however, the article, from the Los Angeles Times, does usefully canvass some of the likely defense strategies.
Susan A. Bandes (DePaul University - College of Law) has posted Is it Immoral to Punish the Heedless and Clueless? (Law and Philosophy , 2010) on SSRN. Here is the abstract:
This essay, written for a symposium on the book Crime and Culpability: A Theory of Criminal Law, by Larry Alexander, Kim Ferzan and Stephen Morse, responds to the authors’ argument that the criminal law should not punish negligent behavior. The authors argue that criminal culpability should be measured in light of the level of risk the actor himself perceives, and that we are not morally culpable for taking risks of which we are unaware, even if our lack of awareness is objectively unreasonable. They contend that for the negligent actor, the failure to advert to risk is beyond the actor’s control, and beyond the influence of the criminal law, at the critical moment of action. It follows, they argue, that negligent conduct should not be culpable, since punishing negligence would require holding actors responsible when their failure to advert to a risk, however unreasonable, did not entail a conscious choice.
The consequences that flow from the authors’ initial descriptive assumptions about awareness and choice are significant. The authors declare objective reasonableness standards for evaluating negligent behavior off-limits since objective standards would lead to punishment for a state of mind the actor did not in fact possess. And because the authors assume that negligent behavior lacks the element of choice and therefore falls below the threshold for culpability, they deem it improperly consequentialist to consider whether punishing negligence would promote the penal goal of communicating and enforcing norms for future conduct. The essay raises concerns about this distinction, questioning whether the criminal law's norm-creation and norm-enforcement functions can be readily distinguished from its role in assessing moral desert.
One obvious drawback of doctrines that insulate negligent conduct from criminal liability is that they reward heedless and clueless behavior. The actor who somehow failed to advert to well-know risks is off the hook, while the actor who adverted to such risks and engaged in the risky behavior anyway may be liable. Nevertheless, this essay does not argue that criminal negligence liability is necessarily a matter of good policy. It argues that the authors have taken the policy debate off the table based on questionable assumptions about the nature of consciousness, choice and character. The authors’ normative argument that negligence liability must be rejected as a threshold matter relies heavily on their descriptive assumption that the negligent actor is impervious to influence or correction--an assumption that is increasingly at odds with evolving knowledge in the fields of cognitive psychology and cognitive neuroscience.
To me, Bandes's criticism seems to miss the gist of the argument by Alexander et al. They do not contend that punishing negligence can have no effect on negligent behavior, though that is a significant part of Bandes' critique. Even if punishing negligence can induce some to become more careful, Alexander et al. argue that those who do not advert to risk have not necessarily made the kind of culpable choice that retributively justifies punishment. Nor does the variety of possible levels of consciousness make any difference if one is attracted to the position of Alexander et al. that "cognitive awareness" is necessary to just punishment.
In the "justificatory" mode, we treat intuitions as capturing some sort of moral beliefs or sentiments. If our considered intuitions line up in certain ways that cohere with a general principle, we might think that our intuitions help justify the underlying principle. There is quite a bit of dispute about precisely how our intuitions should factor into normative arguments, but widely-shared intuitions are nevertheless frequently used to buttress normative legal and ethical claims. By staying in the predictive mode, we can avoid some difficult conceptual problems about the relationship between intuitions and moral justification. I take this to be a central task of those, like Paul Robinson, who argue that the criminal law should generally try to match laypeople's intuitions. By so doing, it is hoped, people will recognize the law's moral authority and be more likely to comply with its commands. Robinson does not claim that laypeople's intuitions are justified but rather that we can use their intuitions as tools to promote compliance with the criminal law. I view Robinson's project, a kind of consequentialism which he calls "empirical desert," as an important one. Criminal law scholars have paid too little attention to the ways in which laypeople understand the law (an interesting psychological question in its own right) and how, if at all, lay views should affect both consequentialist and retributivist theories of punishment. But I do think that empirical desert advocates still have their work cut out for them. It is difficult to demonstrate that laypeople will comply more with laws that match their intuitions. It is harder still to estimate the amount of compliance that can be induced by changing the law to better match lay intuitions. Since changing the law will have many different effects (in terms of cost and levels of incapacitation, for example), it is difficult to know whether to change the law unless we can estimate the amount of compliance we can plausibly expect to gain. Until then, empirical desert might be helpful only in limited situations (for example, when we are on the fence about which policy to choose and empirical desert pushes us in one direction). I describe this challenge to empirical desert in more detail (along with some others), in this draft article, How to Improve Empirical Desert. (Originally posted here.)
In the "justificatory" mode, we treat intuitions as capturing some sort of moral beliefs or sentiments. If our considered intuitions line up in certain ways that cohere with a general principle, we might think that our intuitions help justify the underlying principle. There is quite a bit of dispute about precisely how our intuitions should factor into normative arguments, but widely-shared intuitions are nevertheless frequently used to buttress normative legal and ethical claims.
By staying in the predictive mode, we can avoid some difficult conceptual problems about the relationship between intuitions and moral justification. I take this to be a central task of those, like Paul Robinson, who argue that the criminal law should generally try to match laypeople's intuitions. By so doing, it is hoped, people will recognize the law's moral authority and be more likely to comply with its commands. Robinson does not claim that laypeople's intuitions are justified but rather that we can use their intuitions as tools to promote compliance with the criminal law.
I view Robinson's project, a kind of consequentialism which he calls "empirical desert," as an important one. Criminal law scholars have paid too little attention to the ways in which laypeople understand the law (an interesting psychological question in its own right) and how, if at all, lay views should affect both consequentialist and retributivist theories of punishment.
But I do think that empirical desert advocates still have their work cut out for them. It is difficult to demonstrate that laypeople will comply more with laws that match their intuitions. It is harder still to estimate the amount of compliance that can be induced by changing the law to better match lay intuitions. Since changing the law will have many different effects (in terms of cost and levels of incapacitation, for example), it is difficult to know whether to change the law unless we can estimate the amount of compliance we can plausibly expect to gain. Until then, empirical desert might be helpful only in limited situations (for example, when we are on the fence about which policy to choose and empirical desert pushes us in one direction). I describe this challenge to empirical desert in more detail (along with some others), in this draft article, How to Improve Empirical Desert.
(Originally posted here.)
Much has been made about prosecutorial unfairness in treating corporations, that some multibillion dollar enterprises have been bullied by the Department of Justice to cooperate with the government by acknowledging guilt and then turning over records and employee statements regardless of guilt or innocence. Despite the repeated criticisms of corporate criminal liability, it is a staple of the criminal law in the United States, and unlikely to leave the scene any time soon. Indeed, it is growing outside the United States as a means of policing corporate misconduct. In this Essay, I focus on two issues that seem relevant to the current discussion about the scope of corporate criminal liability: first, is there a justification for applying the criminal law to a corporation or other type of business organization? While there is at least the possibility of deterring an individual from undertaking criminal conduct again by imposing punishment on the person, and society can exact retribution from the law-breaker to vindicate its interests and those of the victim, these rationales for punishment do not work well for organizations that do not act through the same individuals and will continue to exist even if individual miscreants are removed. Second, if specific deterrence or retribution are at best weak justifications for punishing corporations, is there a workable rationale for using criminal laws rather than civil regulatory actions against organizations? I argue in this Essay that the current trend toward using deferred prosecution agreements (DPAs) and non-prosecution agreements (NPAs) to resolve criminal investigations of corporations highlight the proper focus on rehabilitation of the organization as the proper goal of the application of the criminal law to corporations.
Wednesday, September 30, 2009
Symposium on American and International Perspectives on the Future of the Exclusionary Rule at Southwestern Law School
The Current State of the Exclusionary Rule, International Perspectives on the Exclusion of Evidence, and Future Predictions on the Validity of Exclusion.
Scheduled speakers include: Ellen S. Podgor, Professor of Law, Stetson University College of Law; Jody David Armour, Roy P. Crocker Professor of Law, University of Southern California, Gould School of Law; Peter L. Arenella, Professor of Law, University of California, Los Angeles School of Law; Laurie L. Levenson, Professor of Law, William M. Rains Fellow and David W. Burcham, Chair of Ethical Advocacy, Loyola Law School; Dr. Stefano Maffei, Professor of Law, University of Parma, Italy; Binyamin Blum, Stanford Law School; Stephen C. Thaman, Professor of Law, Saint Louis University School of Law; Don Stuart, Professor, Queens University Faculty of Law, Canada; Máximo Langer, Professor of Law, University of California, Los Angeles School of Law; David A. Sklansky, Professor of Law and Faculty Chair, Berkeley Center for Criminal Justice, University of California, Berkeley School of Law; James J. Tomkovicz, Edward Howrey Professor of Law, University of Iowa College of Law; and Andrew E. Taslitz, Professor of Law, Howard University School of Law.
SCOTUSblog has summaries, including links to cert petitions, opinions below, and the like, for all ten cases on which the Court granted review here. Here are the excerpts that relate to criminal law and procedure:
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250 for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.
Title: Berghuis, Warden v. Smith
Issue: Whether the Sixth Circuit erred in concluding that the Michigan Supreme Court failed to apply “clearly established Federal law” under 28 U.S.C. § 2254 when it rejected a state prisoner’s Sixth Amendment fair cross-section claim and whether the Sixth Circuit erred in applying the comparative-disparity test (for evaluating the difference between the numbers of African Americans in the community as compared to the venires).