July 31, 2010
Bradford & Jackson on Cooperating with the Police
Ben Bradford and Jonathan Jackson (pictured) (Scottish Centre for Crime and Justice Research and London School of Economics & Political Science - Methodology Institute) have posted Cooperating with the Police: Social Control and the Reproduction of Police Legitimacy on SSRN. Here is the abstract:
Calling upon and assisting police officers are acts of public cooperation that link informal and formal mechanisms of social control. An in-depth study of seven London neighborhoods investigates the relationships between (a) cooperation with the police, (b) public trust in police fairness and effectiveness, and (c) public perceptions of everyday social regulation processes. Cooperation with the police is associated first with high levels of public trust in procedural fairness, second with confidence that local residents will intervene on behalf of the collective good, and third with heightened concerns about disorder and the loss of authority and discipline in society. We conclude with the idea that cooperation is shaped by trust in the police and is reinforced and challenged by a complex set of relational concerns. Moreover, by recognizing and supporting the function of the police to fight crime and administer justice, acts of cooperation both constitute and confer police legitimacy.
July 29, 2010
Markel on Retributivism and Minors
Dan Markel (Florida State University College of Law) has posted May Minors Be Retributively Punished after Panetti (and Graham)? (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:
In this brief essay, I try to draw some connections between the Supreme Court’s recent decision in Graham v. Florida and its reasoning in a significant but not yet sufficiently appreciated 2007 decision in Panetti v. Quarterman. Specifically, I will argue that the outcome in Graham coheres startlingly well with the reasoning in Panetti, a case prohibiting the execution of a defendant who was deemed presently incompetent. These connections are present, I believe, but the Court still seems unaware of them; the best evidence of this conclusion is that Graham nowhere cites Panetti for support.
From the standpoint of a humane and compelling conception of retributive justice, this omission is lamentable. Once Graham is properly understood in light of Panetti, along with the Court’s other precedents, the grounds for an unsettling conclusion take root: specifically, that the Eighth Amendment likely forbids state-imposed retributive punishment against minors. To be sure, Graham doesn’t say anything like that. Indeed, I want to emphasize that the inferences I draw for capital and noncapital punishment are not stripped from the face of the Panetti opinion. Instead, they are predicated upon the ratio decidendi of the case - the rationale that makes the best sense of the holding in this otherwise potentially obscure Supreme Court opinion. Thus, what I hope to show is that Graham, like Roper and Atkins, is a case whose holding is evidence of a rationale I think is implicit in and compelled by the logic embraced by the Court in Panetti. That rationale would, I believe, require the further conclusion that minors are not fit objects for the state’s blaming practices associated with retributive punishment.
Depriving the state of its authority to punish minors in the name of retribution does not entail that crime by youth must be left unheeded, but rather that the approach must be one combining rehabilitation with other methods of social self-defense against the specific threat posed by that juvenile offender. What’s precluded, in other words, is the condemnatory rebuke associated with retributive justice properly conceived and implemented.
This is a draft; comments and corrections are invited. The argument of the paper draws on claims developed more clearly and at length in a previous article of mine: Executing Retributivism: Panetti and the Future of the Eighth Amendment, 103 Nw U. L Rev. 1163 (2009), available on my SSRN page. This particular paper is part of an upcoming colloquium reflecting on Graham and the Eighth Amendment in the Federal Sentencing Reporter. Other contributors include Alice Ristroph, Eva Nilsen, Richard Frase, John Stinneford, Rachel Barkow, David Gray, and Youngjae Lee. Kudos as always to Michael O'Hear for putting this conversation together.
The Federalization of Noncriminal Law: Internet Gambling
The New York Times has this story headlined Congress Rethinks Its Ban on Internet Gambling:
WASHINGTON — With pressure mounting on the federal government to find new revenues, Congress is considering legalizing, and taxing, an activity it banned just four years ago: Internet gambling.
On Wednesday, the House Financial Services Committee approved a bill that would effectively legalize online poker and other nonsports betting, overturning a 2006 federal ban that critics say merely drove Web-based casinos offshore.
The House of Representatives, Criminal Justice, and the Cocaine Sentencing Disparity
Jurist chronicles these notable developments:
- "US House approves commission to reform criminal justice system"
- "US House approves bill to reduce cocaine sentencing disparity"
"Ruling Against Arizona Is a Warning for Other States"
July 28, 2010
Gross and O'Brien on False Convictions
Samuel R. Gross and Barbara O'Brien (University of Michigan Law School and Michigan State University - College of Law) have posted Reply to Richard A. Leo and Jon B. Gould
(Ohio State Journal of Criminal Law, Vol. 9, 2010) on SSRN. Here is the abstract:
In a recent article in the Ohio Journal of Criminal Law Professors Richard Leo and Jon Gould criticize some of our research on false convictions. In this brief reply we dispute some of their methodological assertions, and point out that while Leo and Gould take issue in some detail with our cautious and generally pessimistic view of research in this area, they do not actually dispute any of our empirical conclusions.
"Civilians take on police work in SFPD program"
From the San Francisco Chronicle:
Fingerprints and DNA evidence are often not collected, Police Chief George Gascón said. To do so, a separate crime scene technician has to be called out, which could stretch into the next day.
"When the police get there, you've been waiting for three, four, five hours," Gascón said. "By this time, you're really fit to be tied."
That's all supposed to change under a pioneering and controversial test program included in the city's new budget that will use civilian investigators to respond to nonviolent crimes like burglaries or car break-ins, freeing up police officers to focus on crimes in progress or dangerous offenders.
July 27, 2010
Kotch & Mosteller on the Death Penalty and the North Carolina Racial Justice Act
Seth Kotch and Robert P. Mosteller (pictured) (University of North Carolina (UNC) at Chapel Hill - Center for the Study of the American South and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina (North Carolina Law Review, Vol. 88, No. 6, 2010) on SSRN. Here is the abstract:
In August 2009, the North Carolina Legislature enacted the Racial Justice Act (“RJA”), which commands that no person shall be executed “pursuant to any judgment that was sought or obtained on the basis of race.” One of the most significant features of the RJA is its use of statistical evidence to determine whether the race of defendants or victims played a significant role in death penalty decisions by prosecutors and jurors and in the prosecutor’s exercise of peremptory challenges. The RJA commits North Carolina courts to ensuring that race does not significantly affect death sentences.
This article examines the RJA and North Carolina’s long struggle with race and the death penalty. The first part traces the history of race and the death penalty in the state, showing that racial prejudice exerted a consistent, strong, and pernicious influence on the imposition and disposition of death sentences. From colonial times into the 1960s, the overwhelming majority of those executed were African American, and although most victims and perpetrators of crime are of the same race, the overwhelming majority of victims in cases where executions took place were white. Hundreds of African Americans have been executed for a variety of crimes against white victims, including scores of African American men executed for rape. However, just four whites have been executed for crimes against African American victims, all murders.
Not only does data indicate disproportionate racial impact, but events show that race frequently influenced capital prosecutions. In many cases in the first half of the twentieth century, juries sentenced African Americans to death in the shadow of lynch mobs. Newspaper reports of executions of African Americans included overtly racist images. In some instances, fairness and mercy eased the pernicious effects of prejudice. However, history shows that whether dooming African Americans or saving them from death, racial prejudice played a powerful role in the death penalty in North Carolina, enduring across the state’s history despite enormous social and legal change.
The second part of this article examines major legal changes in the modern period that may limit the influence of racial prejudice by restraining discretion. It shows that discretionary determinations by prosecutors and jurors continue, allowing racial motivation - particularly unconscious racial prejudice toward defendants or empathy for victims - to influence decisions. Some racial disparities are less extreme but have not been eliminated, and troubling features continue. For example, jury participation by African Americans has remained limited in many cases, and the disproportion of white victims seen throughout North Carolina’s history is virtually unchanged.
The task of the RJA is to ensure that the strong link between race and the death penalty shown by history is finally severed. In its concluding section, this article analyzes how the key features of the RJA will operate. That analysis, together with the historical record and legal framework of the modern death penalty, provide insight into North Carolina’s effort to eliminate the effects of race from the operation of its death penalty.
"China Pushes to End Public Shaming"
The story is in the New York Times:
BEIJING — The Chinese government has called for an end to the public shaming of criminal suspects, a time-honored cudgel of Chinese law enforcement but one that has increasingly rattled the public.
According to the state-run media, the Ministry of Public Security has ordered the police to stop parading suspects in public and has called on local departments to enforce laws in a “rational, calm and civilized manner.”
July 26, 2010
"Mel Gibson investigation focusing on medical records, text messages, sources say"
From the those-who-ignore-celebrity-cases-are-destined-to-learn-about-them-from-students file, courtesy of the Los Angeles Times:
The Los Angeles County Sheriff's Department investigation into Mel Gibson is focusing on physical evidence, witness testimony and text messages -- not highly publicized audio recordings -- to determine whether he should be charged with hitting his ex-girlfriend and/or endangering their child, law enforcement sources told The Times.
. . .
Detectives are working to overcome several obstacles to the investigation, including the fact that Grigorieva did not report the key incidents for several months and that some of the potential evidence has already been leaked to the tabloid media, sources said.
Rosenthal on Originalism, Race and Terry v. Ohio
Lawrence Rosenthal (Chapman University - School of Law) has posted Pragmatism, Originalism, Race, and the Case Against Terry v. Ohio (Texas Tech Law Review, Forthcoming) on SSRN. Here is the abstract:
Perhaps no decision of the United States Supreme Court concerning the Fourth Amendment’s prohibition on “unreasonable search and seizure” has come in for more criticism than Terry v. Ohio, in which the Supreme Court concluded that even absent probable cause to arrest, a brief detention and protective search of an individual comports with the Fourth Amendment “where a police officer observes unusual conduct which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous . . . .” Terry is frequently denounced as granting the police excessively broad discretion that threatens the liberty of the innocent, and which facilitates discrimination against minorities and others that the police are all too likely to view as suspicious. Originalists attack Terry as well, claiming that it lacks adequate support in framing-era practice.
This paper, part of the 2010 Texas Tech Law Review's Fourth Amendment Symposium, offers a defense of the much-maligned Terry doctrine. It begins with an account of urban crime over the past few decades, and argues that there is a case to be made that Terry’s regime of stop-and-frisk deserves a good deal of the credit for the reductions in violent crime that major cities have experienced in recent years. It then considers the originalist attack on Terry, and argues that it runs afoul on the Achilles heel of originalism – it relies on framing era practice and understandings to flesh out the meaning of constitutional text without taking adequate account of the context in which these practices and understandings emerged. Although the historical support for Terry‘s regime of stop-and-frisk is fairly debatable, framing-era judgments about stop-and-frisk were made in a context so dramatically different from contemporary urban law enforcement that they can offer no useful guide for assessing the constitutional mandate of reasonableness. The paper finally turns to the pragmatic attacks on Terry, and after observing that the evidence that Terry has facilitated unwarranted or discriminatory police conduct is more ambiguous than the critics acknowledge, contends that theses critics undervalue the importance of Terry to saving lives in the inner city.
July 25, 2010
Block on Information Sharing and Tainted Evidence
Micah Block has published The New Silver Platter: How Today's Police are Serving up Potentially Tainted Evidence Without Even Revealing the Search that Produced It to Defendants or to Courts at The Legal Workshop. An excerpt:
[T]he availability of the hand off threatens to alter fine judgments about what constitutes good, aggressive police work and what constitutes an unreasonable invasion of privacy. It does this in at least two ways. First, the hand off makes it easier to “get away with” marginally invasive behavior because that behavior is unlikely to be scrutinized by a judge. Even for the honest officer, this may subtly influence decisions about how much marginal activity to conduct, or how to conduct marginal activity. But perhaps more importantly, if the officer believes that the hand off legally cleanses evidence obtained in a prior investigation that may or may not have been unlawful, then the officer is given to believe that under the Fourth Amendment what a suspect doesn’t know doesn’t hurt him.
"Miranda Rule Should Not Be Weakened, Former FBI Special Agent Says"ACSBlog has the post.
"Court Under Roberts Is Most Conservative in Decades"
From The New York Times:
[T]he court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.
. . . .
Almost all judicial decisions, they say, can be assigned an ideological value. Those favoring, say, prosecutors and employers are said to be conservative, while those favoring criminal defendants and people claiming discrimination are said to be liberal.
Analyses of databases coding Supreme Court decisions and justices’ votes along these lines, one going back to 1953 and another to 1937, show that the Roberts court has staked out territory to the right of the two conservative courts that immediately preceded it by four distinct measures.
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