December 26, 2009
Paul-Emile on Drug Control Policy
Kimani Paul-Emile (Fordham University - School of Law) has posted Making Sense of Drug Regulation: A Theory of Law for Drug Control Policy (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
This article advances a new theory of drug regulation that addresses two previously unexamined questions: how law-makers are able to regulate drugs differently irrespective of the dangers the drugs may pose and independent of their health effects, and the process followed to achieve this phenomenon. For example, although tobacco products are the leading cause of preventable death in the U.S. they can be bought and sold legally by adults, while marijuana, a substantially safer drug, is subject to the highest level of drug control. This article posits a conceptual model for making sense of this dissonance and applies this model to the regulation of four common drugs: cocaine, marijuana, tobacco and anabolic steroids. Although much has been written on the topic of licit and illicit drug regulation, none of the scholarship in this literature has attempted to explain through an examination of pharmaceutical, illicit, and over-the-counter drugs how the apparent inconsistencies and incoherence of the U.S. system of drug control have been achieved and sustained. This work fills the gap in this literature by proposing an innovative and comprehensive theoretical model for understanding how drugs can become “medicalized,” “criminalized” or deemed appropriate for recreational use, based upon little or no empirical evidence regarding the pharmacodynamics of the drug.
December 25, 2009
Merry Christmas from CrimProf Blog!Here's a trivia question you can use to stump friends and family during the holiday season: In what movie was the song first sung that became the best-selling single record of all time? Answer after the jump.
The song is "White Christmas" by Bing Crosby, and so the natural impulse is to say that the movie is "White Christmas," but the song actually was previously performed in the movie "Holiday Inn."
Utah Expands Admissibility of Expert Testimony on Eyewitness Identifications
The Salt Lake Tribune covers the decision of the Utah Supreme Court here:
[A] judge refused to allow the expert, David Dodd, to testify and instead warned jurors about the dangers of eyewitness testimony with a jury instruction, which had been the common practice of courts for two decades, the opinion said.
Clopten appealed, and the Utah Court of Appeals affirmed his conviction. But the justices on Friday said the circumstances of Clopten's case -- mainly prosecutors' heavy reliance on eyewitness testimony -- are "exactly those under which the testimony of an eyewitness expert is most helpful to a jury."
. . .
Chief Justice Christine Durham wrote for the court: "We are not mandating the admission of eyewitness expert testimony in every case. We expect, however, that in cases involving eyewitness identification of strangers or near-strangers, trial courts will routinely admit expert testimony."
Associate Chief Justice Matthew Durrant and Michael Wilkins dissented in part, saying the high court should not remove the discretion of trial judges and create a presumption in favor of eyewitness expert testimony.
December 24, 2009
"Maine's high court finds part of sex offender registration law unconstitutional"Doug Berman at Sentencing Law and Policy has the story. The opinion in the case is available here.
December 23, 2009
Austin on Women at the Border
Regina Austin (University of Pennsylvania Law School) has posted Women’s Unequal Citizenship at the Border: Lessons from Three Nonfiction Films about the Women of Juárez (GENDER EQUALITY: DIMENSIONS OF WOMEN'S EQUAL CITIZENSHIP, Linda C. McClain, Johanna L. Grossman, eds., Cambridge University Press, 2009) on SSRN. Here is the abstract:
There is no better illustration of the impact of borders on women’s equal citizenship than the three documentaries reviewed in this essay. All three deal with the femicides that befell the young women of Ciudad Juárez, Mexico between 1993 and 2005. Juarez is just across the border from El Paso, Texas. Performing the Border (1999) stimulates the viewer’s imagination regarding the ephemeral nature of borders and their impact on the citizenship of women who live at the intersection of local, regional, national and international legal regimes. Señorita Extraviada (2001) is an intimate portrait of the victims which illustrates why the private grief of their survivors should have been a cause for public national mourning. Finally, Battle of the Crosses (2005), the work of social scientists, offers a panoramic description of the complicated social terrain on which the Juárez femicides occurred and their meaning was fought over. Together, the films suggest how borders are constructed and “performed” through law and law enforcement in ways that jeopardize women’s rights as citizens. The films also show how women in turn challenge law and law enforcement to transcend the limitations of social, political, and economic borders and assert their right to equal citizenship.
Confronted with state intransigence in the face of the murders of dozens of young females, the women of Juárez used their traditional female roles as a springboard to political engagement. Overcoming the debilitating effect of class and ethnic marginality, patriarchal mass violence, and governmental corruption and lack of accountability, the women turned back the state’s effort to belittle the murders as private matters and the victims as deserving of their fate. The documentaries together provide a vivid case study that proves the importance of understanding the synthetic quality of borders and their relationship to women’s equal citizenship in a globalizing world where borders can pop up anywhere and at anytime.
Turner on Ethics in International Criminal Defense
Jenia Iontcheva Turner (Southern Methodist University (SMU) - Dedman School of Law) has posted Legal Ethics in International Criminal Defense (Chicago Journal of International Law, Winter 2010) on SSRN. Here is the abstract:
This paper examines the new and complex dilemmas facing defense attorneys who represent clients before international criminal courts. It argues that the unique features and goals of international criminal trials demand a distinct approach to resolving some of these ethical dilemmas. In particular, the goals of international trials are broader and often more political than those of ordinary domestic trials, and the applicable procedures are a unique hybrid of the inquisitorial and adversarial traditions. Moreover, some of the justifications for aggressive defense at the domestic level - such as discouraging disengaged advocacy and protesting overly harsh punishments - are less applicable internationally.
Professional regulation of defense advocacy at the international courts should take account of these special features and goals of the international criminal justice system. The paper addresses how such a purposive approach to legal ethics would apply to four key decisions that international criminal defense attorneys may face: 1) whether to impeach victim-witnesses whom they know to be telling the truth; 2) how to respond to clients who want to testify falsely; 3) whether to allow clients whom the lawyer believes to be innocent to plead guilty; and 4) how to respond to a client’s request to boycott or disrupt the proceedings. In some cases, the purposive interpretation may result in less aggressive advocacy than might be warranted in an ordinary domestic criminal case. In others, it may demand a more independent approach to making decisions about the client’s representation.
To implement the approach set out in this paper, I propose including a commentary to international courts’ Codes of Conduct (particularly the ICC Code), which would define more precisely the boundaries on aggressive practices, working within existing rules. The commentary would not create new categories of sanctionable conduct. Instead, it would identify situations in which attorneys are not required to engage in certain aggressive tactics or follow certain client instructions. In some cases, it would also recommend a particular course of action as most consistent with the attorneys’ ethical obligations, while leaving some flexibility to attorneys in how they interpret their duties before the ICC.
December 22, 2009
"Polanski exit strategy suggested by court"
The L.A. Times story is here:
A state appellate court Monday rejected Roman Polanski's bid to have his 1977 child-sex prosecution dismissed but outlined a way that could end the long-running case without Polanski serving more time behind bars or returning to the American justice system he fled three decades ago.
In a 3-0 ruling, the 2nd District Court of Appeal suggested that Polanski ask to be sentenced in absentia for the statutory rape he admitted committing 32 years ago.
According to the three-justice panel, the sentencing hearing held in his absence would provide a forum for a Los Angeles County judge to evaluate Polanski's allegations of prosecutorial and judicial misconduct in the original handling of the case.
"Are federal prosecutors acting worse or are judges just starting to notice?"Doug Berman at Sentencing Law and Policy asks this interesting question in response to a couple of recent incidents he cites, which follow the better-known Broadcom dismissal.
"The Elephant in the Crime Stats Living Room"
Year-to-year fluctuations don't tell us much. The long-term trends are that violent crime went way up in the 60s, 70s, and 80s, dropped sharply in the 90s and generally continued dropping at a slower rate in the decade now ending (the 00s?). Demographics are part of that, as Fox says, but the fact that we went soft on crime in the 60s and 70s and then toughened up in the late 80s is also a factor.
But we mustn't mention that, you see, because so many people are so heavily invested in telling us that it would be "smart on crime" to repeat the mistakes of the 60s.
December 21, 2009
"FBI Report: Crime, Murder Rate Dropped in First Half of 2009"
The ABC News website has the story here.
Crime fell 4.4 percent nationwide in the first half of 2009 with the murder rate dropping a startling 10 percent, according to statistics released Monday by the FBI. The decline in murders is one of the more significant one-time decreases in recent memory, according to some criminologists.
Crime rates have been dropping since 2007, following a run up in violent crime during the middle part of the decade. FBI figures for 2005 showed that violent crime had increased 2.5 percent overall, one of the largest percentage increases in 15 years. Overall crime in the United States increased 3.7 percent in 2006.
"Court Rejects Polanski Bid to Dismiss Case"
The Wall Street Journal has the article here:
Attorneys for the fugitive director argued earlier this month that misconduct in the case was grounds for dismissal of a charge of having unlawful sex with a minor. They also contended Mr. Polanski didn't need to be present to argue for dismissal.
The court disagreed on both issues.
"Repeat Offenses in Texas Raise Questions Over Release of Mentally Ill Juveniles"
The A.P. story is here.
Mosteller on Adversarial and Inquisitorial Systems and the Protection of the Innocent
Robert P. Mosteller (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the American Adversarial System to Protect the Innocent and Conceptual Advantages in the Inquisitorial Design for Investigative Fairness (Symposium on the Future of Adversarial Systems, Chapel Hill, NC, April 6, 2010) on SSRN. Here is the abstract:
The relative advantages and disadvantages of the adversarial system, as practiced in the United States, and modern European inquisitorial systems are often examined. In this Article, I continue that examination in the context of a new emphasis placed on the fair treatment of the innocent defendants, highlighted by the numerous DNA exonerations of defendants, many who faced the death penalty, unjustly convicted by the American adversarial system. I examine two significant failures of the American adversarial system and note a new basis to find merit in the inquisitorial design of the investigative process.
The American adversarial system suffers from significant, widespread and persistent failures of key elements, elements that are critical to accuracy and fairness for defendants. One is the chronic underfunding of the defense of indigents, the vast majority of those accused of serious crimes. Although American defense attorney are charged with defending even the guilty, they are the primary hope for exoneration for the large percentage of innocent defendants who have no compelling evidence, scientific or otherwise, of their actual innocence. The second is the failure to provide adequate discovery to the defense to enable it, lacking resources of independent investigation, to exonerate the innocent, or to provide an effective alternative guarantee of fairness and accuracy through enforceable commands to prosecutors to help protect against unjust convictions. These persistent failures in the American adversarial system mean that the potential advantages of this system are unfulfilled.
The Article also focuses on steps for institutional redesign of the adversarial system to eliminate some of the inherent biasing influences of the system regarding investigative fairness and accuracy. Specifically, bias is inherent because the prosecutor, who typically is given the task of prevailing at trial, also has responsibility for investigating and charging the case. Reforms have been proposed that would separate essentially prosecutorial and adjudicatory functions to reduce bias and to provide independent review for problematic cases.
Finally, I examine insights from social psychology and new empirical research indicating that a prosecutor’s ultimate task of winning a conviction may unconsciously bias the perception and memory of facts learned during the investigation. This research suggests that the inquisitorial system, which entrusts the supervision of investigation to a judicial officer not given the adversarial task of prosecuting the accused, has a theoretical design advantage for fairness and accuracy. The extent to which that theoretical advantage translates into real differences depends on a complex social and institutional context in which the actual system. Nevertheless, the new insights support redesign efforts in all systems to help protect the innocent.
December 20, 2009
Keller on Prior Convictions in Illegal Re-Entry Cases
Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction. No other federal crime is punished based primarily on what the defendant previously did. And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase. That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist. Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent. Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry. This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence. Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.
This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases - and only in illegal re-entry cases. The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels. In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years - costing taxpayers up to $200,000 - because of a single prior conviction that could have occurred years or even decades ago.
Top-Ten Recent SSRN Downloadsare here. The usual disclaimers apply.
|1||308||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||307||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009
|3||167||Unlawful Killing with Combat Drones: A Case Study of Pakistan, 2004-2009 |
Mary Ellen O'Connell,
Notre Dame Law School ,
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David B. Kopel,
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|5||156||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009 [6th last week]
|6||122||White Collar Innocence: Irrelevant in the High Stakes Risk Game |
Ellen S. Podgor,
Stetson University College of Law,
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Northwestern University - School of Law,
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Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: October 13, 2009 [new to top ten]
|10||86||Why Care About Mass Incarceration? |
Georgetown University Law Center,
Date posted to database: October 16, 2009 [new to top ten]