December 5, 2009
"Texas executes death row prisoner despite mental impairment defense"Jurist has coverage here.
"Interesting take on SCOTUS Porter and Van Hook rulings and 'selective empathy'"Doug Berman has this post at Sentencing Law and Policy, excerpting this post by Linda Greenhouse of the New York Times.
Bailey on Polygamy
The question addressed in this paper is whether, in addition to the marriage laws, which do not permit polygamy, and the criminal prohibition of bigamy, Canada should also retain the criminal provision on polygamy, which outlaws the practice of carrying on a conjugal relationship with more than one person. This paper argues that the provision is unnecessary to protect Canada's cultural commitment to monogamy, that it is problematically broad, and that it is not an effective tool in protecting the public interest or preventing harms to women and children.
Dubber on Legalizing Drug Criminal Law
This paper investigates American drug criminal law, or rather the American drug penal regime, from the perspectives of two fundamental modes of governance, police and law. In particular, it inquires into the possibility of drug criminal law as law, rather than as a police action designed to identify and eliminate threats to public welfare. The topic of this paper thus is not “the legalization of drugs,” whatever that might mean, but the legalization of the drug penal regime. It is concerned with the possibility of legitimate state action that brings the law power of the state in general, and its penal law power in particular, to bear on persons on account of their interaction, relationship, or association with drugs.
December 4, 2009
Winer on Medellin
The recent Supreme Court decision in Medellín v. Texas created a veritable “maze” for foreign prisoners in the U.S., and their countries of nationality, who might wish to enforce their rights under the Vienna Convention on Consular Relations (the “VCCR”). This decision, and other Supreme Court and lower federal court opinions, have erected “dead ends” for prisoners and their countries of nationality that block their “escape” from this maze. These opinions, among other implications, cast substantial doubt on the availability of judicial relief for individuals under the VCCR, foreclose executive enforcement, and exclude the possibility of corrective injunctions for many current prisoners. This article also takes the position, unacknowledged by many others, that the Supreme Court’s “new federalism” even poses risks to potential congressional enforcement of VCCR rights. This article initially describes how present doctrines erect these dead ends for virtually all the escape routes that courts and commentators seem to be currently considering. This article then proposes a possible new plan of escape, at least for the sovereign sending States whose nationals’ rights are being violated. It is noted that sending states parties to the VCCR have substantial rights under it, in their own distinct capacities as parties to it. This article suggests that once a U.S. jurisdiction violates the VCCR rights of a prisoner from a foreign State, the VCCR rights of that State itself are also violated, and that this violation is continuous. Accordingly, the sending State should be able to obtain an injunction against the U.S. jurisdiction’s officers, requiring them to obey the VCCR prospectively.
Frase on Racial Disproportionality in Prisons and Jails
Richard S. Frase (University of Minnesota Law School) has posted What Explains Persistent Racial Disproportionality in Minnesota’s Prison and Jail Populations? (Crime and Justice: A Review of Research, Vol. 38, pp. 201-280) on SSRN. Here is the abstract:
Racial disparity in prison and jail populations, measured by the ratio of black to white per capita incarceration rates, varies substantially from state to state. To understand these variations, researchers must examine disparity at earlier stages of the criminal process and also racial differences in socioeconomic status that help explain disparity in cases entering the system. Researchers must adjust disparity ratios to correct for limitations in available data and in studies of prior incarceration rates. Minnesota has one of the highest black/white incarceration ratios. Disparities at the earliest measurable stages of Minnesota’s criminal process – arrest and felony conviction – are as great as the disparity in total custody (prison plus jail) populations. Disparities are substantially greater in prison sentences imposed and prison populations than at arrest and conviction. The primary reason is the heavy weight sentencing guidelines give to offenders’ prior conviction records. Highly disparate arrest rates appear to reflect unusually high rates of socioeconomic disparity between black and white residents.
Green on Retributive Justice for Unjustly Disadvantaged Offenders
Stuart P. Green (Rutgers Law School-Newark) has posted Hard Times, Hard Time: Retributive Justice for Unjustly Disadvantaged Offenders (University of Chicago Legal Forum, 2009) on SSRN. Here is the abstract:
Criminological studies consistently indicate that a disproportionate percentage of crimes in our society, both violent and non-violent, are committed by those who are impoverished. If we assume that at least some of the poor who commit crimes are poor because they fail to get from society what they “deserve” in terms of economic or political or social rights, the question arises whether this fact should affect the determination of what such people “deserve” from society in terms of punishment. The question is all the more pressing given recent Census Bureau figures indicating that the economic recession that began in 2008 has resulted in a higher percentage of Americans living below the poverty line than at any point since 1997, with figures for 2009 certain to be even worse given rising unemployment rates.
Most scholars who have been concerned with this issue have assumed that there is one set of principles that will explain the proper relationship between distributive and retributive justice: The fact that an offender has been denied the basic entitlements of a just society, however defined, is taken to have implications for criminal liability across the board, regardless of the offense charged. The argument that I develop here suggests that a proper analysis of the relationship between distributive and retributive justice should proceed on a case-by-case basis. Such an analysis would take account of three distinct factors: First, it would look to the specific kind of offense with which the offender is charged. The fact that an offender is deeply and unjustly disadvantaged might be relevant to determining his blameworthiness for committing one kind of criminal offense (say, an offense against the person) but not another kind of offense (say, an offense against property or an offense against the administration of justice). Under this approach, we need to consider what it is that makes an offender blameworthy for committing a particular kind of offense in the first place, and then ask whether and how such blameworthiness is affected by his disadvantage. Second, we need to look at the precise form that the offender’s disadvantage takes. The fact that an offender has been denied any reasonable opportunity to obtain property, for example, might be relevant to determining his blameworthiness for committing a particular kind of offense in a way that his being denied the opportunity to participate in the political process or the right to certain kinds of basic police protection by the state might not. Third, we need to consider the economic and social circumstances of the crime victim, if any. For example, a criminal act directed by a disadvantaged offender at a similarly disadvantaged victim might be blameworthy in a way that the same crime directed at a privileged member of the political or economic elite would not.
Next Week's Criminal Law and Procedure Arguments
Description of issue from ScotusWiki, where you can also find links to briefs and opinions below:
Florida v. Powell: Must a suspect be expressly advised to his right to counsel during questioning and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?
Black v. United States: Whether the “honest services” clause of 18 U.S.C. § 1346 applies in cases where the jury did not find - nor did the district court instruct them that they had to find - that the defendants “reasonably contemplated identifiable economic harm,” and if the defendants’ reversal claim is preserved for review after they objected to the government’s request for a special verdict.
Weyhrauch v. United States: Whether, to convict a state official for depriving the public of its right to the defendant’s honest services through the non-disclosure of material information, in violation of the mail-fraud statute (18 U.S.C. Sec. 1341 and 1346), the government must prove that the defendant violated a disclosure duty imposed by state law.
December 3, 2009
Toddlers and Criminal Propensities (Kolber)
Some recent research arguably finds a relationship between toddlers' fear reactions and their propensity to commit crimes as adults. The research suggests that toddlers with weaker fear reactions to a noisy blare are more likely to grow up and commit crimes than toddlers with more typical fear reactions. New Scientist summarizes the experiment:
. . . Raine and colleague Yu Gao turned to data from a 1970s study, collected as part of a decades-long project to understand the biological and environmental factors underlying mental illness.
Back then, researchers led by Raine's former research supervisor had measured the sweat response of about 1800 3-year-olds in Mauritius when they were exposed to two different sounds. One sound was always followed by a noisy blare, the other by nothing. The children learned to anticipate which sound preceded the blare, and sweated in response to it – an indicator of fear.
Decades later, Raine's own team looked to see if any of the subjects had criminal records and found 137 that did. The team discovered that, as toddlers, these people had sweated significantly less in anticipation of the blare compared with subjects of similar race, gender and background for whom no criminal record was found.
This very interesting research is, of course, quite preliminary. The article cautions as follows:
However, numerous children who showed muted responses to fearful cues never fell foul of the law, Raine says. "Is this a throw-away-the-key approach to criminals? Absolutely not," he says.
Raine emphasises that environment can make someone less likely to commit a crime. He points to other studies from his team, also based on data from Mauritius, which indicate that manipulating a child's surroundings with improved nutrition, more exercise and cognitive stimulation, can reduce the chance they will commit a crime later on in life.
Garvey on Attempts and Treason
If the state can legitimately criminalize only actions that cause or risk harm, and if it respects the fact that an actor who sets out to commit a crime can always change his mind until he takes the last step, we are apt to end up with a law of attempts in which an attempt is a crime only when the actor has taken the last step, or come very close to taking it. Our dominant theories of attempt, objectivism and subjectivism, do indeed end up with such a narrow law of attempts. In contrast to these theories, I suggest that an actor who chooses to form the intent to commit a crime, who chooses to resolve to commit that crime, and who chooses to take a step in furtherance of that intention is akin to a traitor. He has chosen to obey a self-made law antithetical to the law claiming his allegiance, and the state should in principle be permitted to punish him, as it should any traitor.
Pardo on Evidence Theory and the NAS Report on Forensic Science
Michael S. Pardo (University of Alabama School of Law) has posted Evidence Theory and the NAS Report on Forensic Science (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:
Although many of the report’s proposed reforms focus on activities that take place outside of legal proceedings, the report also provides an invitation for courts to respond to, and perhaps to improve upon, the law’s use of forensic evidence now and in the future. For this reason, it also provides an invitation to evidence scholars to develop a solid theoretical foundation for possible avenues of legal response to forensic science. This article discusses two possible avenues of response in light of theoretical accounts of the evidentiary proof process and its primary goals (accuracy and allocating the risk of error). Although much of the discussion regarding judicial responses to forensic science has focused on admissibility, I argue that sufficiency-of-the-evidence determinations provide a more theoretically justified response. Such a response, however, would require courts to develop more robust sufficiency review in criminal cases. I briefly sketch how this development might proceed in light of the theoretical considerations discussed.
The recent report of the National Academy of Sciences on forensic science documents an array of problems with the current use of forensic science in law enforcement and as evidence in criminal prosecutions. These problems are economic, political, legal, scientific, or epistemological in nature. The report recommends widespread reform aimed at improving the quality of forensic science and the juridical use of such evidence. The proposed reforms include, for example, creating an independent agency to oversee forensic science in the United States; establishing best practices and standardized protocols; improving education and training; and conducting further research into the scientific foundations of the various forensic techniques.
This article was written for a symposium entitled, “Crime Laboratories on Trial: The Future of the Forensic Sciences,” forthcoming in the Utah Law Review.
"Death Clash at the High Court"
The post, at BLT, begins as follows:
In the wake of the Supreme Court's refusal early this morning to hear the last-minute appeal of a Tennessee death row inmate, two justices clashed--one with some bite--over whether execution after lengthy delay is cruel and unusual punishment under the Eighth Amendment.
December 2, 2009
Tetlow on Discriminatory Acquittal
This article is the first to analyze a pervasive and unexplored constitutional problem: the rights of crime victims against unconstitutional discrimination by juries. From the Emmett Till trial to that of Rodney King, there is a long history of juries acquitting white defendants charged with violence against black victims. Modern empirical evidence continues to show a devaluation of black victims; dramatic disparities exist in death sentence and rape conviction rates according to the race of the victim. Moreover, just as juries have permitted violence against those who allegedly violated the racial order, juries use acquittals to punish female victims of rape and domestic violence for failing to meet gender norms. Statistical studies show that the “appropriateness” of a female victim’s behavior is one of the most accurate predictors of conviction for gender-based violence.
Discriminatory acquittals violate the Constitution. Jurors may not constitutionally discriminate against victims of crimes any more than they may discriminate against defendants. Jurors are bound by the Equal Protection Clause because their verdicts constitute state action, a point that has received surprisingly little scholarly analysis. Finally, defendants have no countervailing right to jury nullification based on race or gender discrimination against victims. The Sixth Amendment promises defendants an “impartial” jury, not a partial one.
Double jeopardy prohibits a direct remedy for the problem of discriminatory acquittal, and jury secrecy makes proof difficult. Yet recognizing the unconstitutionality of discriminatory acquittal would result in fundamental normative shifts. It would create a new constitutional language for prosecutors and judges to protect victims against jury discrimination within our existing criminal procedure. Most of all, the pervasiveness of discriminatory acquittals could no longer serve as a legitimating excuse for police and prosecutors to magnify the problem by conducting their own anticipatory underenforcement of the law.
Ni Aolain on a Feminist Theory of Harm
The author argues that a feminist theory of harm is necessary if law is to respond effectively to the experiences of women. She builds on developments in feminist scholarship which have identified the ways in which women experience harm and on the inadequacy of law’s response. To advance the general argument her focus is on societies that are characterized by violent conflict or that are in process of emerging from such conflict. Such societies offer unique forums for exploring the scale and depth of harms to women and highlight novel legal responses.
To advance the arguments concerning the gendered nature of harms the author explores a developing psychological and psychoanalytical literature on gender differentials in the experience of harms. The research broadly affirms that women experience and process harm differently than men. In particular, studies have shown that being a woman is per se a risk factor for developing post-traumatic stress disorder. Although trauma analysis of conflicted and post-conflict societies remains limited, it is suggested that women in these societies experience harm more acutely and their capacity to recover is more limited.
As the author moves to address the processing of harm by law she notes much time and effort has been spent to ensure that international criminal law recognizes women’s experiences of sexual violation. This legal dimension has been critical to conflicted and post-conflict societies. Despite these strides there is ongoing skepticism about the success of this endeavor. Moreover, the international community’s emphasis on crimes involving sexual violence has led to the neglect of the psychological and socio-economic trauma suffered by women every day in conflicted and transitioning societies, and to the neglect of ‘private’ violations occurring within the home. The author introduces the concept of connected harms, which is grounded in the idea that individual violations create communities of harm which include not only the victim herself but also those people who are closely tied to her emotionally or who are in a relationship of codependency with her. These explorations further ground and extend the notion that the harms women and men experience may be different and require new conceptualization as well as novel legal solution to ensure the adequacy of accountability, redress and compensation by law.
Alexandre on Reformation of Drug and Prostitution Regulations
Michele Alexandre (University of Mississippi) has posted Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward a Reformation of Drug and Prostitution Regulations (UMKC Law Review, Vol. 78, No. 1, pp.102-137, 2009) on SSRN. Here is the abstract:
Moral dirigisme (John Stuart Mill, On Liberty 13 (Stefan Collini ed., 1989) (1859) is an economic term, which describes an economic structure for which the government provides strong direction. (See generally Élie Cohen, Le Colbertisme “High Tech”: Économie Des Telecom et du Grand Projet (1992); David Baker, The Political Economy of Fascism: Myth or Reality, or Myth and Reality?, 11 NEW POL. ECON., 157, 227-50 (2006). The term dirigisme derives from the French word diriger, which means to guide. (see WordReference.com, French to English Dictionary, http://www.wordreference.com/fren/diriger (last visited Sept. 3, 2009). Moral dirigisme, by analogy, refers to the underlying philosophy which believes that moral behaviors can be changed through formal regulation. It is referred to, by Mario J. Rizzo, as “the attempt or tendency to control certain kinds of moral behavior by formal legal means.” (See Rizzo, supra note 2, at 791). Rizzo views acts by the state to prohibit or authorize certain conduct of individuals in an attempt to force them to act morally as flawed. Id. The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.
This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means." (See, e.g., Mario J. Rizzo, The Problem of Moral Dirigisme: A New Argument Against Moralistic Legislation, 1 N.Y.U. J.L. & LIBERTY 789, 791 (2005).
From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.
Consequently, the Article is divided as follows. Part II considers the inefficiency of the prohibition of drugs and prostitution. Part III discusses the underlying legal and philosophical theories that support prohibitory legislation and analyzes why prohibition of drugs and prostitution, although a popular default mechanism, is ineffective at eradicating these behaviors. Part III also identifies the Smithian-Humean view of justice as a basis to evaluate prohibition-based laws. Part IV explores the issues inherent in the prohibition of drugs and considers alternative approaches. Part V explores issues that result from the prohibition of prostitution and Part VI proposes an alternative framework to the prohibition of prostitution. Part VII explores ways of preventing pro-prostitution regulations from strengthening the sex trafficking market. Finally, Part VIII borrows from philosophical frameworks to formulate a standard that helps differentiate between effective and ineffective prohibition. Through an analysis of the unintended effects of prohibition, this Article provides a strong economic and legal argument for the legalization of prostitution and, at the very least, marginal changes in U.S. drug policy.
December 1, 2009
"DOJ Report on Public Defenders' Caseloads"ACSBlog has the post here. The underlying report is available here.
Issue on Fundamental Human Rights in Criminal Process
The October 2009 issue of the Utrecht Law Review is devoted to the topic of Developments in the Protection of Human Rights in Criminal Process, and several pieces from the issue have been posted on SSRN, including an Introduction by Chrisje Brants (University of Utrecht - Faculty of Law) and an Epilogue by Stefan Trechsel (United Nations - International Criminal Tribunal for the Former Yugoslavia). Here is the abstract from the Introduction:
This issue of Utrecht Law Review is devoted to a problem that is by no means new: the protection of human rights and individual freedoms in criminal process. Indeed, the question of how to reconcile the necessary powers of the state for maintaining order and ensuring the security of society with their inevitable encroachments on the freedom of citizens and their right to be treated with the respect and dignity they command as human beings is a perennial one in the field of criminal law. But for all that, and despite great advances in the establishment of international human rights conventions and in the academic study of human rights, the answers, though tantalisingly close in theory, have in practice become increasingly complicated and pressing in recent years.
And here is the abstract from the Epilogue:
The topic under consideration at the XVIIIth International Congress of AIDP is fundamentally the same as that dealt with at the XIIth Congress – the protection of human rights in criminal proceedings. Even at that time, it was not a new issue – in 1953, under the title of ‘The Protection of personal freedoms during criminal proceedings’, the VIth Congress dealt with the same problems. It is remarkable that the term ‘human rights’ was not yet mentioned, even though the European Convention had been adopted almost three years earlier. In the meantime the subject has become a central concern for the international community which is demonstrated by the present publication which unites the General Report of the AIDC with that of the AIDP.
Davies on Originalism and the Forfeiture Exception to Confrontation
Thomas Y. Davies (University of Tennessee College of Law) has posted Selective Originalism: Sorting Out Which Aspects of Giles' Forfeiture Exception to Confrontation Were or Were Not 'Established at the Time of the Founding' (Lewis &. Clark Law Review, Vol. 13, No. 605, 2009) on SSRN. Here is the abstract:
In Giles v. California (2008), as in Crawford v. Washington (2004), Justice Scalia's majority opinion purported to follow the framing-era Confrontation Clause. Giles did comport with historical doctrine insofar as it limited forfeiture by wrongdoing to instances of a defendant's deliberate witness tampering. However, Giles departed from framing-era doctrine in other, fundamental ways. Specifically, in framing-era law forfeiture applied only to sworn prior testimony given under the Marian statutes; that is either in Marian post-arrest committal proceedings or in coroners inquests. Likewise, during the nineteenth century, forfeiture applied only to prior sworn and confronted testimony. Forfeiture was never a basis for admitting unsworn and unconfronted hearsay such as that at issue in Giles until the late twentieth century - and then were allowed under the Roberts "reliability" formulation of confrontation that Crawford rejected as an inadequate formulation of the right. Hence, a genuine "originalist" analysis would have undermined the constitutionality of current Federal Rule of Evidence 804(b)(6).
Additionally, all of the opinions in Giles persisted in endorsing Crawford's completely fictional claim that the original confrontation right regulated only "testimonial" hearsay, but did not apply at all to "nontestimonial" hearsay - notwithstanding that Justice Scalia made several assertions in Giles that undercut that pretended historical distinction. For example, and in contrast to Crawford, he acknowledged that the general ban against hearsay arose from the same roots as the confrontation right itself. Nevertheless, dicta in Giles indicates that the justices intend to narrowly confine "testimonial" hearsay - and thus the confrontation right itself - to only those hearsay statements made to (or by) government officers, but to exempt all other hearsay as "nontestimonial," including even statements made to physicians or nurses involved in gathering evidence for domestic violence prosecutions. In sum, the purported originalism in Giles was so selective that it did not amount to originalism at all.
Hjalmarsson & Lindquist on Intergenerational Nature of Crime
Randi Hjalmarsson (University of Maryland-Public Policy; pictured) and Matthew J. Lindquist (Stockholm University - Department of Economics) have posted Like Godfather, Like Son: Explaining the Intergenerational Nature of Crime on SSRN. Here is the abstract:
This paper studies intergenerational correlations in crime between fathers and their children and the underlying mechanisms that give rise to these correlations. Using data from the Stockholm Birth Cohort, we find strong evidence of an intergenerational criminal relationship. Sons whose fathers have at least one sentence have 2.06 times higher odds of having a criminal conviction than sons whose fathers do not have any sentence. At the intensive margin, one additional sentence of the father increases the expected number of sons’ convictions by 32 percent. Father-daughter relationships are generally not significantly different than fathers-son relationships. Traditional regression techniques indicate that socioeconomic status accounts for roughly one-third of the extensive margin father-son relationship and somewhat less, particularly at the intensive margin, for daughters. Over and above this, for both sons and daughters, our ability proxies account for an additional 20 percent. Finally, household heterogeneity, the most important component of which is household instability, accounts for almost one-third of the intergenerational relationships. More direct evidence regarding whether the intergenerational correlations arise through either an inherited traits mechanism or a father as role model mechanism is provided in four alternative experiments. These experiments focus on: (i) a sample of twins, (ii) an adoptee sample, (iii) the timing of the father’s crime, and (iv) the quality of the father – child relationship. We find evidence that both direct channels play a role in the reproduction of crime from one generation to the next. Finally, we find that paternal incarceration may actually lower the number of crimes committed by some children, providing additional evidence of the importance of a behavioral transference mechanism.