August 14, 2010
Jochnowitz on Claimed Error in Clemency Cases
Leona Deborah Jochnowitz (PhD Candidate, School of Criminal Justice, University at Albany) has posted Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases (Criminal Law Bulletin, Vol. 46, No. 3, pp. 347-427, 2010 ) on SSRN. Here is the abstract:
This research is an exploratory study which captures the prevalence of the types and reasons for claims of missed mitigation in 36 of 80 un-reversed Missouri death penalty cases reaching the clemency stage of review from convictions between 1980-1995. Missed mitigation claims raised in clemency cases may be claims of persistent error which undermine the reliability of death penalty sentencing. The research identifies the conditions which might contribute to the prevalence of claimed error. The study concludes that missed mitigation claims are ubiquitous in un-reversed capital cases which have passed all rounds of judicial inspection and have reached clemency. The high prevalence of sentencing error claims shows that structural overhaul of the capital trial may be needed.
Stinneford on Evolving Standards of Decency
John F. Stinneford (University of Florida Levin College of Law) has posted Evolving Away from Evolving Standards of Decency (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:
In Graham v. Florida, the Supreme Court held that imposing a life sentence without possibility of parole on a juvenile nonhomicide offender violates the Cruel and Unusual Punishments Clause. To support this conclusion, the Court found that there was a societal consensus against the punishment, despite the fact that such punishment was authorized in the federal system, thirty-seven states, and the District of Columbia, and despite the lack of any apparent trend toward abolition of the punishment. Graham represents the fourth time in the last eight years that the Supreme Court has found a societal consensus against a punishment that appeared to enjoy significant public support. Graham is the second case in the last two years in which the Court found a societal consensus against a punishment that appeared to be increasing, rather than decreasing, in popularity.
The Supreme Court’s decision to invalidate punishments despite their popularity seems fine at first blush. The Bill of Rights was designed largely to protect unpopular minorities from the tyranny of the majority. And what minority group is more unpopular, and thus in need of protection, than convicted criminals?
But there’s a deeper problem here. Since 1958, the Supreme Court has used the “evolving standards of decency test” as the primary standard for determining whether a punishment is cruel and unusual. This test holds that a punishment is unconstitutional if it no longer comports with societal moral standards, measured primarily in terms of legislative enactments and jury verdicts. But in Graham and several other recent cases, the Court has found certain punishments to violate current standards of decency despite the fact that many legislatures approved them and that juries continued to impose them.
These cases reveal that the Supreme Court’s Eighth Amendment jurisprudence is evolving away from any real reliance on the evolving standards of decency test. Although the Court gives lip service to the idea that there must be a societal consensus against the punishments it strikes down, it no longer uses the test as a true ground for its decisions.
This change in the Court’s approach is not necessarily a bad thing. The evolving standards of decency test is inherently majoritarian, and is thus a poor protection for criminal offenders when public opinion turns against them. Unfortunately, the Supreme Court has effectively replaced this test with an unfettered reliance on its own “independent judgment,” with no external constitutional standard to guide its decisions. This approach to constitutional jurisprudence runs contrary to basic principles of separation of powers, and does not appear to be sustainable over the long run.
As the Supreme Court prepares to leave the evolving standards of decency test behind, it is a good time to reexamine the original meaning of the Cruel and Unusual Punishments Clause. In a prior article, I have shown that the word unusual originally meant “contrary to long usage,” and that the Cruel and Unusual Punishments Clause was originally meant to prevent legislatures and courts from ratcheting up the severity of punishment significantly beyond what prior practice would allow. I will suggest in this article that the Supreme Court could probably have reached substantially the same result it did in Graham by relying on the original meaning of the Cruel and Unusual Punishments Clause. Had the Court done so, the result would have been more plausible and the Court’s jurisprudence in this area more sustainable.
August 13, 2010
"Blagojevich Jurors Still Can’t Agree"
From The New York Times:
CHICAGO — Jurors deliberating in the federal corruption trial of Rod R. Blagojevich, the former governor of Illinois, told the judge Thursday that they had not reached agreement on a majority of wire fraud charges, major parts in the government’s case.
. . .
[T]he jury stated Thursday that it had reached unanimous agreement on only two of more than a dozen wire fraud charges, and so far were “unable to agree” on the rest.
"Will Brain Science Develop Alternative Technologies for Interrogation?"Kenneth Anderson at The Volokh Conspiracy excerpts this press release regarding work at Northwestern University.
"Cleared, and Pondering the Value of 27 Years"
The New York Times has the story:
HOUSTON — Since a judge let him out of prison for a rape that prosecutors now say he did not commit, Michael A. Green has had trouble sleeping.
. . .
He also ponders, he says, whether to take a $2.2 million compensation payment from the State of Texas or file a civil lawsuit in the hope of exposing the truth about the investigation that led to his incarceration. To receive the compensation, he must waive the right to sue.
. . .
The story of Mr. Green’s nightmarish imprisonment — and how a prosecutor, Alicia O’Neill, eventually unearthed biological evidence that led to the real culprits — throws a harsh spotlight on an uncomfortable reality in American justice: the identification of a suspect in a lineup or in an array of photos is not always reliable.
More than three-quarters of the 258 people exonerated by DNA tests in the last decade were convicted on the strength of eyewitness identifications, according to the Innocence Project, the Manhattan-based organization dedicated to freeing innocent prisoners.
Johnson on Objective Probability
Eric Alan Johnson (University of Illinois College of Law) has posted Knowledge, Risk, and Wrongdoing: The Model Penal Code's Forgotten Answer to the Riddle of Objective Probability on SSRN. Here is the abstract:
In criminal cases, courts routinely say that the lawfulness of an actor’s conduct depends in part on the objective probability of harm posed by the conduct. The conventional wisdom among criminal law theorists, meanwhile, is that objective probabilities of the required sort do not even exist, much less determine the lawfulness of conduct. This Article sides with the courts. Drawing on a forgotten but central feature of the Model Penal Code, and on a parallel feature of the law of search and seizure, the Article argues that the answer to the riddle of objective probability lies in the difference between what the actor knows and what the actor merely believes. It argues that probabilities calculated on the basis of what the actor knows – on the basis of “the circumstances known to him,” in the Model Penal Code’s formulation – are not illusory, and moreover are objective in exactly the way that the criminal law appears to require. It argues, further, that the circumstances known to the actor encompass or imply everything essential to actor’s perspective, and so provide a fair basis for determining the justifiability and lawfulness – if not the culpability – of the actor’s conduct.
August 12, 2010
Gilles on the Supreme Court and Legal Uncertainty
This essay is an outgrowth of a paper presented at the 16th Annual Clifford Symposium on Tort Law and Social Policy. Its thesis is that our contemporary Supreme Court all too often creates (or fails to reduce) legal uncertainty for no sufficient legal or policy reason. The essay focuses both on uncertainty about what the law is and uncertainty about whether the law will remain the same. The examples it addresses include (1) the Court’s inability consistently to adhere to its multi-factorial test for stare decisis in constitutional cases, (2) the Court’s refusal even to acknowledge that the dubious regime of Chevron deference creates enormous instability in federal regulatory law, (3) the Court’s inexplicable decision to wait twenty years before addressing the unclear and contested meaning of the “intangible right of honest services” mail-fraud statute, and (4) the Court’s precarious punitive-damages jurisprudence, an initiative to which the Court has committed substantial resources, but one whose future remains profoundly uncertain. In each instance, I suggest that the Court’s tendency to undervalue legal certainty and stability can be seen as a symptom of what Craig Lerner and Nelson Lund describe in a forthcoming article as “the Supreme Court’s Cult of Celebrity.” The almost complete freedom Congress has given the Justices to set their own agenda has resulted in a Court whose members tend to behave more like nine independent constitutional oracles than like self-effacing, craftsman-like, certainty-fostering judges. The fact that the Court is closely divided along ideological lines may exacerbate these worrisome tendencies, but they would persist even if a solid majority emerged – and regardless of whether it was liberal or conservative. That is bad news for anyone, of whatever political persuasion, who thinks legal certainty and stability should be among the Court’s top priorities.
Davis & Leo on the Three Prongs of the Confession Problem
Deborah Davis and Richard A. Leo (pictured) (University of Nevada, Reno and University of San Francisco - School of Law) have posted Three Prongs of the Confession Problem: Issues and Proposed Solutions (THE FUTURE OF EVIDENCE, Epstein, Jules, ed., Forthcoming) on SSRN. Here is the abstract:
Many cases could not be successfully prosecuted without a confession, and, in the absence of a confession, many would be much more costly to investigate and to develop other evidence sufficient to convict. Responding to this pressure to reliably elicit confessions from their suspects, the police have developed sophisticated psychological techniques to accomplish two goals: to induce suspects to submit to questioning without an attorney, and to induce them to confess. Unfortunately, these methods are sufficiently powerful to induce false as well as true confessions and to render them involuntary. Further, because they are based upon often subtle, yet sophisticated weapons of influence, their coercive power sometimes goes unrecognized by those who must judge their voluntariness or validity. This yields a crucially important yet often unrecognized three-pronged problem with confession evidence - voluntariness, validity, and prejudicial impact. In this chapter, the authors first briefly review the nature of modern interrogation tactics, and then turn to consideration of the three-pronged confession problem, systemic barriers to recognizing and addressing the problem, and some proposed solutions.
August 11, 2010
Data on NYC stop and frisk
The Center for Constitutional Rights today issued a press release reporting on data it receives pursuant to court order. It reports a 21 percent rise in stop and frisks in the second quarter of 2010, with 88 percent of the total involving blacks or hispanics.
CCR has found significant racial disparities for stop-and-frisks over the last decade based on NYPD data turned over by court order. CCR, which represents victims of the NYPD’s racially discriminatory stop-and-frisk policies in a class action lawsuit, will receive more comprehensive data than the summary numbers released to the City Council yesterday and will provide those results as soon as they are available.
Hat tip: FourthAmendment.com.
"Justice by the Numbers"
The New York Times has this op-ed by Amy Bach, author of "Ordinary Injustice: How American Holds Court." In part:
America needs a “justice index” to show how the essential aspects of our local courts are working. The index, compiled according to national standards, would function roughly like college rankings, evaluating county courts on factors like cost, recidivism, crime reduction and collateral consequences, including whether people lose their jobs or homes after contact with the criminal justice system.
. . .
Rankings for hospitals and public schools create healthy competition. To get the justice we deserve, we would do well to bring a similar approach to bear on our criminal courts.
At last--a sensible strategy for informing criminals where to commit crimes!
Sigler on the Methodology of Desert
In a series of books and articles Paul Robinson (along with various coauthors) builds a case for “empirical desert” as a basis for deciding who should be punished under the criminal law and how much. Robinson’s case is unconvincing in several respects. First, his attempt to discredit the leading rival, deontological desert, is based on a misconception of the prevailing methodology in deontological ethics. Additionally, by dismissing as practically irrelevant the grounds for justified punishment, Robinson’s analysis fails to take account of the dynamic interplay between social and political values on the one hand and the meaning and justification of punishment on the other. Finally, because Robinson’s pragmatic conception of desert is untethered from our political morality, it provides neither the occasion to reflect critically on our punitive institutions and practices nor the normative resources to reform them.
August 10, 2010
Alternative Court Systems symposium at University of RichmondLegal Scholarship Blog notes this fall symposium planned for the University of Richmond, addressing "issues related to Family Court, Drug Court, Juvenile and Domestic Relations Court, Benefits, Effects on Recidivism, and all other relevant topics."
"US military judge rules Khadr confessions admissible at trial"Jurist has the story, including links to the defense motion arguing that the confession resulted from threats of rape and death and news reports of the prosecution's claim that the confessions were not relied on to obtain subsequent statements.
Nicolas on Adultery Laws and Same-Sex Couples
Peter Nicolas (University of Washington School of Law) has posted The Lavender Letter: Applying the Law of Adultery to Same-Sex Couples and Same-Sex Conduct on SSRN. Here is the abstract:
In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been limited – since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship – with the growth in the number of states legalizing same-sex marriage, the question is certain to recur with increased frequency.
In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising a provocation defense based on a spouse’s act of adultery. I demonstrate that those decisions holding that same-sex conduct does not constitute adultery do so on the basis of outdated precedents that rely on a gendered concept of adultery that treats sexual dalliances by men and women differently, as well as on heteronormative statutory regimes in which same-sex adultery and opposite-sex adultery were punished differently because all sexual activity between individuals of the same-sex was considered unlawful. Next, I show that the policy arguments in favor of maintaining any of these bases for criminal and civil liability apply with equal force to same-sex couples and same-sex conduct. Finally, I conclude that the same equality principles that have resulted in the extension of the right to marry to same-sex couples likewise require the application of adultery laws and related doctrines to same-sex couples and same-sex conduct, and indeed that a failure to apply them in those contexts devalues same-sex relationships and perpetuates antiquated, negative stereotypes about gay people.
Hodgson & Roberts on Empirical Research in Criminal Justice
Jacqueline Hodgson (pictured) and Andrew Roberts (University of Warwick - School of Law and University of Warwick) have posted An Agenda for Empirical Research in Criminal Justice: Criminal Process and Prosecution on SSRN. Here is the abstract:
Over the last few decades, legislative regimes regulating police and prosecutorial power have altered, prosecution priorities have changed and the empirical research data available varies considerably across time and jurisdiction. However, a constant feature of the pre-trial criminal process in most countries is the exercise of discretion by police and prosecutors. How much discretion does the law allow? How is this controlled? Which factors influence the exercise of discretion, from ‘cop culture’ to the politics of prosecution?
August 9, 2010
"Honest Services Hypo"is here, courtesy of Solomon L. Wisenberg at White Collar Crime Prof Blog, picking up on the suggestion that prosecutors will try to recast cases in the "bribe or kickback" paradigm.
Garrett on the Substance of False Confessions
Brandon Garrett (University of Virginia School of Law) has published The Substance of False Confessions at The Legal Workshop. It is based on an article that will appear in the Stanford Law Review. An excerpt:
False confessions uncovered by DNA testing are almost certainly not representative of other false confessions, much less confessions more generally. The 40 cases examined, consisting chiefly of confessions to 1980’s rape-murders, cannot speak to how often people confess falsely. While unusual, only in such examples of known false confessions can one assess whether detailed or supposedly non-public facts contaminated a confession. These data provide a set of examples of a very troubling problem that deserves further study.
The full version of the forthcoming article can be accessed here.
August 8, 2010
Top-Ten Recent SSRN Downloads
|1||2621||Arizona Senate Bill 1070: A Preliminary Report |
Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller,
University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: May 29, 2010
|2||337||War and Peace in the Jury Room: How Capital Juries Reach Unanimity |
Scott E. Sundby,
Washington and Lee University - School of Law,
Date posted to database: May 12, 2010
|3||189||Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing |
CUNY School of Law,
Date posted to database: May 18, 2010
|4||141||From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? |
Henning Grosse Ruse-Khan,
Max Planck Institute for Intellectual Property, Competition & Tax Law,
Date posted to database: May 4, 2010
|5||112||Status as Punishment: A Critical Guide to Padilla v. Kentucky |
Gabriel J. Chin, Margaret Colgate Love,
University of Arizona James E. Rogers College of Law, Law Office of Margaret Love,
Date posted to database: July 10, 2010 [new to top ten]
|6||95||One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research |
Jon B. Gould, Richard A. Leo,
George Mason University - School of Public Policy, University of San Francisco - School of Law,
Date posted to database: May 27, 2010 [9th last week]
|7||91||Collective Responsibility and Post-Conflict Justice |
Mark A. Drumbl,
Washington and Lee University - School of Law,
Date posted to database: May 10, 2010 [5th last week]
|8||88||Retributivism Refined - Or Run Amok? |
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: May 17, 2010 [7th last week]
|9||88||Reconsidering Reprisals |
Michael A. Newton,
Vanderbilt University - Law School,
Date posted to database: June 9, 2010 [8th last week]
|10||85||Fear and Trembling in Criminal Judgment |
Samuel H. Pillsbury,
Loyola Law School Los Angeles,
Date posted to database: May 18, 2010