Saturday, May 22, 2010
Scott E. Sundby (Washington and Lee University - School of Law) has posted War and Peace in the Jury Room: How Capital Juries Reach Unanimity (Hastings Law Journal, Vol. 62, 2010) on SSRN. Here is the abstract:
Using data from the Capital Jury Project, this article takes a close look inside the jury room at the process by which capital juries reach a unanimous verdict at the penalty phase. The process proves to be a fascinating one. The article first examines the relationship between first ballot voting patterns and the ultimate sentence, and then explores the dynamics of group interaction in achieving unanimity. In particular, by using the jurors’ own narratives, the piece delves into the psychological process and arguments through which the majority jurors persuade the holdouts to change their votes. This process is especially intriguing because individual juries do not, of course, have any training in how to deliberate and reach unanimity, and yet they are strikingly similar from case-to-case in how they convert holdouts to the majority position (the striking differences are between the dynamics of juries that reach a verdict of death and those that return a sentence of life without parole). Using the closing argument in the death penalty case of Susan Smith (the mother who had done the unthinkable, killing her two children by driving them into a lake and then trying to cast blame on a mysterious black man), the article concludes by examining how a closing argument might address many of the pressures that affect holdouts.
Friday, May 21, 2010
It is often said that truth “accurate sorting of the guilty from the innocent” is the primary objective of criminal trials. Among the important safeguards in our criminal justice system intended to ensure that the innocent are protected from wrongful conviction is the system of appeals and postconviction remedies. Recent empirical evidence based on DNA exoneration cases reveals, however, that the appellate process does not do a good job of recognizing or protecting innocence. Examination of known innocents “those proved innocent by postconviction DNA testing” shows that they have rarely obtained relief on appeal. Moreover, those individuals subsequently proved innocent by postconviction DNA testing do no better on appeal and their innocence is no more regularly acknowledged than otherwise similarly situated individuals who have not been exonerated by DNA. This article examines the variety of reasons why the appellate system fails to effectively guard against wrongful conviction of the innocent, and considers possible reforms that might enhance the system's innocence-protecting functions.
ScotusBlog has the story on this decision from the D.C. Circuit Court:
The ruling overturned a federal judge’s decision that the Supreme Court’s ruling two years ago allowing habeas challenges by prisoners at Guantanamo Bay extends to Bagram, at least for non-Afghan foreign nationals captured outside of Afghanistan and taken there for detention.
The opinion is here.
Thursday, May 20, 2010
Gail Mason (University of Sydney - Faculty of Law) has posted Hate Crime Laws in Australia: Are They Achieving Their Goals? (Criminal Law Journal, Vol. 33, No. 6, pp. 326-340, 2009) on SSRN. Here is the abstract:
A number of common law countries have introduced legislation designed to respond to the problem of prejudice-related crime, commonly referred to as ‘hate crime’ law. This article examines recent developments in hate crime law in Australia. It outlines the general purpose of these laws and provides an overview of three different models: the penalty enhancement model; the sentence aggravation model; and the substantive offence model. Against this background, the article analyses several reported decisions under the sentence aggravation provisions that have operated in New South Wales since 2003 (s21A(2)(h) Crimes (Sentencing Procedure) Act 1999). Four issues of significance emerge: whether the provisions apply to individual forms of hatred; whether intra-group conflict is covered; whether criminal conduct influenced by racial stereotypes comes within the ambit of the applicable motive test; and the question of which groups should be protected under the legislation. In terms of the last issue, the article argues that the recent decision of the NSWCCA in Dunn v R to include paedophiles as a protected group under s21A(2)(h) does little to further the social justice goals of hate crime laws.
Jennifer M. Chacón (University of California, Irvine School of Law) has posted A Diversion of Attention? Immigration Courts and the Adjudication of Fourth and Fifth Amendment Rights (Duke Law Journal, Vol. 59, 2010) on SSRN. Here is the abstract:
Because of fundamental changes in the nature of immigration enforcement over the past decade, an increasing number of interactions between law enforcement agents and noncitizens in the United States are ultimately adjudicated not in criminal courts, but in immigration courts. Unfortunately, unlike the state and federal courts that have long performed an oversight function with regard to police activity, immigration courts were not designed to police the police. As a result, there are inadequate mechanisms in place to address many of the rights violations that are occurring in the context of immigration enforcement. This Article explores the procedural deficiencies of the current system and offers some proposals to address this growing problem.
Wednesday, May 19, 2010
Mark A. Drumbl (Washington and Lee University - School of Law) has posted Collective Responsibility and Post-Conflict Justice on SSRN. Here is the abstract:
How best to secure justice in the aftermath of mass atrocity? International criminal tribunals – and courtrooms and jailhouses generally – have emerged as influential accountability mechanisms. Yet the justice pursued by international criminal tribunals, although tangible, also is strikingly under-inclusive. These limitations suggest that adequately redressing collective violence might contemplate a discursive shift to inclusively incorporating other accountability mechanisms, including collective forms of responsibility. Collective responsibility implies non-criminal sanctions that attach to groups whose misfeasance or nonfeasance is supportive of, acquiescent in, causally connected to, or necessary for serious violations of international criminal law to occur. This paper examines what collective responsibility mechanisms might look like; what ends they might serve; what dangers they pose; and how they might contribute to a more robust instantiation of post-conflict justice.
Justin D. Levinson (pictured) and Danielle Young (University of Hawaii at Manoa - William S. Richardson School of Law and University of Hawai`i at Manoa Dept. of Psychology) have posted Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence (West Virginia Law Review, Vol. 112, pp. 307-350, 2010) on SSRN. Here is the abstract:
Many commentators and judges have come to accept the changing reality of racial discrimination – discrimination that has largely shifted from overt and intentional to covert and unintentional. Despite this scholarly progress, the dearth of empirical studies testing implicit bias within the legal system is surprising. In an effort to begin filling the empirical research gap, this Article proposes and tests a new hypothesis called Biased Evidence Hypothesis. Biased Evidence Hypothesis posits that when racial stereotypes are activated, jurors automatically and unintentionally evaluate ambiguous trial evidence in racially biased ways. Because racial stereotypes in the legal context often involve stereotypes of African-Americans and other minority group members as aggressive criminals, Biased Evidence Hypothesis, if confirmed, could help explain the continued racial disparities that plague the American criminal justice system.
Tuesday, May 18, 2010
The concept of crimes against humanity emerged in reaction to massive government-orchestrated crimes including, in particular, the holocaust. Unlike the other prototypically international crimes – war crimes and genocide – the proscription against crimes against humanity has not been enshrined in an international convention. Instead, the law of crimes against humanity has developed piecemeal, largely through the legal instruments and jurisprudence of the various courts and tribunals adjudicating these crimes. This chapter describes the evolution of the definition of crimes against humanity and argues that the ad hoc development of these crimes has produced enduring normative debates and doctrinal ambiguities.
Christopher Slobogin (Vanderbilt University - School of Law) has posted Proportionality, Privacy and Public Opinion: a Reply to Kerr and Swire (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article responds to two reviews of my book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (University of Chicago Press, 2007). The book criticizes Supreme Court decisions that immunize from constitutional challenge numerous government surveillance techniques, including monitoring of public activities, spying on the home using generally available technology, and aggregation of records describing everyday transactions. Privacy at Risk proposes instead that the Fourth Amendment be read to permit only those surveillance techniques that produce a success rate roughly proportionate to the intrusion they visit upon those affected, and argues that intrusiveness should be measured empirically rather than simply determined through guesswork. In their reviews of the book, Professor Swire finds this proportionality idea attractive but would tweak it, while Professor Kerr argues that intrusions on civil liberties should be gauged “normatively” rather than empirically and that the justification for a particular intrusion should depend on numerous variables besides the extent to which it is likely to produce evidence of wrongdoing. This Article defends my original proposals and adds discussion about (1) the relevance of empirical findings to constitutional adjudication and (2) the relevance of political process theory to surveillance of groups.
Sarah French Russell (Lecturer, Yale Law School) has posted Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing (UC Davis Law Review, Vol. 43, No. 4, 2010) on SSRN. Here is the abstract:
Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system. This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States. Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions. The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds. Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases. Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District. Judges nationwide can apply this Shepard analysis. Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants. Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement. Given the potential for unwarranted disparities – and the serious doubts as to whether the enhancements further any of the purposes of sentencing – Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.
Monday, May 17, 2010
Interesting commentary on today's juvenile LWOP and sex offender cases at Sentencing Law and Policy blog
Issue summary from ScotusBlog, which also links to briefs and opinion below:
- Wall v. Kholi: Whether a state court sentence-reduction motion consisting of a plea for leniency constitutes an “application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), thus tolling the Anti-Terrorism and Effective Death Penalty Act’s one-year limitations period for a state prisoner to file a federal habeas corpus petition.
Graham v. Florida is here. Here is the syllabus:
Petitioner Graham was 16 when he committed armed burglary and another crime. Under a plea agreement, the Florida trial court sentenced Graham to probation and withheld adjudication of guilt. Subsequently, the trial court found that Graham had violated the terms of his probation by committing additional crimes. The trial court adjudicated Graham guilty of the earlier charges, revoked his probation, and sentenced him to life in prison for the burglary. Because Florida has abolished its parole system, the life sentence left Graham no possibility of release except executive clemency. He challenged his sentence under the Eighth Amendment’s Cruel and Unusual Punishments Clause, but the State First District Court of Appeal affirmed.
Held: The Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. Pp. 7–31.
in United States v. Comstock is here. Here is the syllabus:
Federal law allows a district court to order the civil commitment of a mentally ill, sexually dangerous federal prisoner beyond the date he would otherwise be released. 18 U. S. C. §4248. The Government instituted civil-commitment proceedings under §4248 against respondents, each of whom moved to dismiss on the ground, inter alia, that, in enacting the statute, Congress exceeded its powers under the Necessary and Proper Clause, U. S. Const., Art. I, §8, cl. 18. Agreeing, the District Court granted dismissal, and the Fourth Circuit affirmed on the legislative-power ground.
Held: The Necessary and Proper Clause grants Congress authority sufficient to enact §4248. Taken together, five considerations compel this conclusion. Pp. 5–22.
Sunday, May 16, 2010
|1||340||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
|2||294||The Shadow of State Secrets |
Georgetown University Law Center,
Date posted to database: March 8, 2010
|3||261||Disentangling Child Pornography from Child Sex Abuse |
Carissa Byrne Hessick,
Arizona State, Sandra Day O'Connor College of Law,
Date posted to database: March 28, 2010
|4||207||When Is Tax Enforcement Publicized? |
Joshua D. Blank, Daniel Z. Levin,
New York University School of Law, Rutgers Business School - Newark and New Brunswick,
Date posted to database: March 23, 2010 [6th last week]
|5||198||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 [4th last week]
|6||192||Vigilante Justice: Prosecutor Misconduct in Capital Cases |
Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman,
CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services,
Date posted to database: April 5, 2010 [7th last week]
|7||190||Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law |
Georgetown University - Law Center,
Date posted to database: March 23, 2010 [8th last week]
|8||172||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 [9th last week]
|9||164||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 [10th last week]
|10||154||Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency |
DePaul University - College of Law,
Date posted to database: March 28, 2010 [new to top ten]