Saturday, May 1, 2010
Friday, April 30, 2010
Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system.
This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.
Every criminal defendant is promised the right to the effective assistance of counsel. Whether at trial or on first appeal of right, due process is violated when attorney negligence undermines the fairness and reliability of judicial proceedings. That, at least, is the black-letter law articulated in Strickland v. Washington, 466 U.S. 668 (1984). In practice, however, the right to effective representation has meant surprisingly little over the last two decades. Under the standards that emerged from Strickland, scores of defendants have received prison or death sentences by virtue of serious unprofessional errors committed by their attorneys.
This Essay canvasses a line of recent Supreme Court cases that have breathed new life into Strickland as a meaningful guarantee of effective defense representation. These cases - all of which involved sentences of death - pointedly reject the understanding of Strickland that made it exceedingly difficult to prevail on ineffective-assistance claims. Although the new line of Strickland cases were undoubtedly motivated by concerns about the proper administration of the death penalty, the more rigorous understanding of Strickland should not be limited to capital cases. Whether or not the death penalty is at stake, appellate courts should be vigilant in policing the effectiveness of defense attorneys so that the determinative factor in criminal proceedings will be the strength of the government’s case on the merits, not the weakness of the defense put forth by the lawyers for the defendants.
Thursday, April 29, 2010
Regina Austin (University of Pennsylvania Law School) has posted Documentation, Documentary, and the Law: What Should be Made of Victim Impact Videos? (Cardozo Law Review, Vol. 31, p. 979, 2010) on SSRN. Here is the abstract:
Since the Supreme Court sanctioned the introduction of victim impact evidence in the sentencing phase of capital cases in Payne v. Tennessee, 501 U.S. 808 (1991), there have been a number of reported decisions in which that evidence has taken the form of videos composed of home-produced still photographs and moving images of the victim. Most of these videos were first shown at funerals or memorial services and contain music appropriate for such occasions. This article considers the probative value of victim impact videos and responds to the call of Justice John Paul Stevens, made in a statement regarding the rejection of certiorari in People v. Kelly, 129 S.Ct. 564 (2008), for the articulation of reasonable limits on the admission of victim impact evidence.
The first part of the article offers an analysis of victim impact videos drawing on the lessons of cinema studies and cultural studies. The common reception of home photographs and moving images affects the interpretation of victim impact videos. As a result, impact videos are typically too idealistic and idyllic to be really probative evidence of the victims’ individuality and the impact of their loss on their families and friends. However, impact videos may be particularly important evidence for the members of devalued or denigrated groups who fall outside of generally accepted images of ideal victims. The second part of the article deals with an actual case in which the subject of the video was a young Latina mother, felled by domestic violence, whose character was attacked as part of the effort to mitigate her husband’s sentence. He wound up with a judgment of life without the possibility of parole. Here the article considers how the victim impact video might have been more probative and the response of the defense to it, more likely to produce a less harsh punishment. Part three finds greater relevance in a video streamed on YouTube that was based on the written impact statement presented by the young adult son of a homicide victim at the perpetrator’s first parole hearing which was held some 15 years after the murder. Finally, the conclusion offers recommendations for the admission of victim impact videos.
Here's the schedule for this great looking event, organized by Dan Markel and Alice Ristoph, to be held in Chicago. A wonderful line up, and the Cubs won't yet be mathmatically eliminated:
Thursday May, 27
8:15am to 10:00am
Police and the Courts: Judicial Management and Evaluation of Law Enforcement Activity 1110
Building: Renaissance, Room: tba 10 Session Participants:
Chair: Richard E Myers (University of North Carolina)
The Perennial Police Gaming Problem and the Need for Articulation-Forcing and Data-Development Rules in Constitutional Criminal Procedure *Mary D. Fan (American U/U of Washington)
GPS Tracking as Search and Seizure *Bennett L. Gershman (Pace University)
Rethinking Reasonable and Articulable Suspicion *Richard E Myers (University of North Carolina)
Judging Police Lies: An Empirical Perspective *Melanie D. Wilson (University of Kansas)
Wednesday, April 28, 2010
Jennifer A. Chandler (University of Ottawa - Faculty of Law) has posted Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection (Dalhousie Law Journal, Vol. 33, 2010) on SSRN. Here is the abstract:
How will the courts react to the emerging technology of detecting deception using neuroscientific methods such as neuro-imaging? The sociological theory of the autonomy of technology suggests that if neuroscientific techniques come to be seen as reliable for this purpose, other objections will soon be abandoned. The history of the judicial reaction to DNA evidence illustrates this pattern. As DNA evidence came to be seen as highly reliable, the courts rapidly abandoned their concerns that juries would be overwhelmed by the “mystique of science” and that the justice system would be “dehumanized.” The legal justifications for rejecting polygraph evidence are explored in order to illustrate that the judicial resistance to lie detection technologies, including neuro-imaging, can be expected to follow a similar pattern.
The key determinant of whether courts are likely to accept neuroscientific evidence for the purpose of lie detection is the degree to which this evidence is considered to be reliable. Competing concerns about the “dehumanization” of the justice system, or the customary judicial attachment to protecting credibility determination as a purely human function, are unlikely to be able to overcome the pressure to adopt reliable neuroscientific technologies for lie detection should such technologies develop. This is because technologies that are widely accepted as reliable cannot be permitted to remain outside the justice system to deliver their own verdicts incompatible with those of the courts. The continued legitimacy of the justice system cannot tolerate this. The rules of evidence and, in particular, the constitutional right to make full answer and defense are the legal mechanisms by which this accommodation would take place.
David Wolitz (Georgetown University Law Center) has posted Innocence Commissions and the Future of Post-Conviction Review (Arizona Law Review, Forthcoming) on SSRN. Here is the abstract:
In the fall of 2006, North Carolina became the first state to establish an innocence commission – a state institution with the power to review and investigate individual post-conviction claims of actual innocence. And on February 17, 2010, after spending seventeen years in prison for a murder he did not commit, Greg Taylor became the first person exonerated through the innocence commission process. This article argues that the innocence commission model pioneered by North Carolina has proven itself to be a major institutional improvement over conventional post-conviction review. The article explains why existing court-based procedures are inadequate to address collateral claims of actual innocence and why innocence commissions, due to their independent investigatory powers, are better suited to reviewing such claims. While critics on the Right claim that additional review mechanisms are unnecessary or too costly, and critics on the Left continue to push for a court-based right to innocence review, the commission model offers a compromise that fairly balances the values of both finality and accuracy in the criminal justice system. At the same time, I argue, the North Carolina commission suffers from the tension – inherent in all expert agencies – between efficiency and discretion, on the one hand, and procedural fairness and accountability, on the other. I offer several suggestions for reform of commission procedures to help insure that none of these values is overwhelmed by the others. Overall, the record of the North Carolina commission demonstrates that the commission approach can provide justice where the traditional court system has failed, and, with the reforms I suggest here, it ought to be a model for states across the country.
Tuesday, April 27, 2010
This essay, written as a contribution to a forthcoming volume on the philosophical foundations of the criminal law, challenges the longstanding dominant framework for classifying justifications for criminal punishment. The familiar binary distinction between consequentialism and retributivism is no longer most perspicuous, I argue, because many recognizably retributivist theories of punishment employ a consequentialist justificatory structure. However, because not all do, it might prove most illuminating to carve the retributivist field in two – distinguishing what we might term “consequentialist retributivism” (perhaps better labeled “instrumentalist retributivism”) from “non-consequentialist retributivism” (“non-instrumentalist retributivism”).
Owen D. Jones (pictured) and Robert Kurzban (Vanderbilt University - School of Law & Department of Biological Sciences and University of Pennsylvania - Department of Psychology) have posted Intuitions of Punishment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:
Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726) we proposed a new explanation for these unexpectedly high levels of agreement.
Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.
Monday, April 26, 2010
City Limits has the story:
The New York Police Department is spending $160 million in city and federal funding on a massive surveillance network of video cameras and license plate readers for Lower and Midtown Manhattan. Despite the investment of public funds, NYPD refuses to reveal much of what it will purchase under the plan, how the costs are being shared, how data will be stored or used—or even what broad Homeland Security priorities the high-tech system is supposed to support.
Donald Braman (George Washington University - Law School; pictured), Dan M. Kahan (Yale University - Law School) and (Temple University - James E. Beasley School of Law) have posted A Core of Agreement (University of Chicago Law Review, forthcoming) on SSRN. Here is the abstract:
In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, we reiterate our claim that RKJ’s finding of such a “core” - while of considerable academic interest - does not have any normative or prescriptive upshot for debates about issues at the core of political contention and law-reform efforts in criminal justice - including important ones over the definitions of rape, homicide, domestic violence, and fraud.
Sunday, April 25, 2010
|1||302||The Case Against the Goldstone Report: A Study in Evidentiary Bias |
Harvard Law School,
Date posted to database: January 27, 2010 [2nd last week]
|2||297||Brain Imaging for Legal Thinkers: A Guide for the Perplexed|
Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois,
Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: March 4, 2010 [3rd last week]
|3||270||The Shadow of State Secrets |
Georgetown University Law Center,
Date posted to database: March 8, 2010 [4th last week]
|4||233||'The Look in His Eyes': The Story of State v. Rusk and Rape Reform |
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [5th last week]
|5||215||We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging |
Northwestern University - School of Law,
Date posted to database: February 5, 2010 [6th last week]
|6||176||Twenty-Five Years of Social Science in Law |
John Monahan, Laurens Walker,
University of Virginia School of Law, University of Virginia School of Law,
Date posted to database: February 26, 2010 [9th last week]
|7||171||Taxing Punitive Damages |
Gregg D. Polsky, Dan Markel,
Florida State University - College of Law, Florida State University College of Law,
Date posted to database: June 19, 2009 [8th last week]
|8||160||Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint |
William W. Berry,
University of Mississippi School of Law,
Date posted to database: March 3, 2010 [10th last week]
|9||156||The Undiscovered Country: Execution Competency & Comprehending Death |
Jeffrey L. Kirchmeier,
CUNY School of Law,
Date posted to database: February 5, 2010 [new to top ten]
|10||154||Recognizing Constitutional Rights at Sentencing |
F. Andrew Hessick, Carissa Byrne Hessick,
Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 3, 2010 [new to top ten]