August 21, 2010
Gans on "DNA-only" Cases
Jeremy Gans (University of Melbourne) has posted Ozymandias on Trial: The Problem of Fair DNA-Only Hearings on SSRN. Here is the abstract:
Two recent Australian cases have placed the commanding role of DNA evidence in contemporary criminal trials under close scrutiny. In one, the latest entry in the national catalogue of miscarriages of justice, an inquiry found: '[T]he DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert. And like the inscription on the statue’s pedestal, everything around it belied the truth of its assertion. The statue, of course, would be seen by any reasonably perceptive observer, and viewed in its surroundings, as a shattered monument to an arrogance that now mocked itself. By contrast, the DNA evidence appears to have been viewed as possessing an almost mystical infallibility that enabled its surroundings to be disregarded.' In the other, all too briefly engaging the attention of the nation’s top court, the defendant submitted: 'It is the basic contention of the applicant that the conviction was unsafe because the only evidence against him was DNA evidence. We submit that in principle he should not have been convicted on DNA evidence alone, but particularly in the facts of this case where there was additional evidence which was in part exculpatory he should not have been convicted.' In short, the cases raise the question: is a trial based solely on DNA evidence a fair one?
This paper uses the two Australian cases in order to explain why the question of the fairness of DNA-only hearings is not only important, but also subtle and difficult. It first describes the nature of each hearing and the response to problems that arose or were said to arise in them. In each case, it develops an alternative argument that a common flaw in such cases is the absence of evidence of the origins of the DNA match. This complex category of evidence, often vital but nearly always dangerous, signals a fraught future for DNA-focussed hearings.
Buchhandler-Raphael on Rape as Sexual Abuse of Power
Michal Buchhandler-Raphael has posted The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power on SSRN. Here is the abstract:
What is rape? What are the harms, risks and values that the criminal prohibition on rape attempts to promote? How should criminal law properly conceptualize the offense of rape? Does submission to sexual demands in light of threats to inflict non-physical harms, such as economic and professional harms including firing or demotion, constitute rape? Scholars have been grappling with these questions for several decades, attempting to better align society’s perceptions about the criminal regulation of sexual misconduct with the ever-evolving social perceptions about sexuality and gender norms.
This Article argues that while rape law reform has accomplished significant changes in the past decades, it has since stalled. What might account for this stagnation is the turn to consent. This move is conceptually misguided, failing to effect instrumental change both in the courts as well as in social norms. The result is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of rape that many victims still experience.
To address these drawbacks, this Article advocates the adoption of an alternative conceptual framework for rape as an act of abuse of power and exploitation of dominance and control. This approach is not only more responsive to the complainants’ narratives and the harms inflicted upon them, but also better captures the wrongdoing in the perpetrator’s conduct. This Article’s innovation lies in suggesting not only that consent ought not to be an element of rape, but also that the theoretical understanding of what rape is ought to fundamentally change by adopting a conceptual overhaul that captures the offense based on an abuse of power construct.
August 20, 2010
Bandes on the Strange Persistence of the American Death Penalty
Susan A. Bandes (DePaul University - College of Law) has posted The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty (CRIMINAL LAW CONVERSATIONS, Paul Robinson, Stephen Garvey, and Kimberly Kessler Ferzan, eds., Oxford University Press, July 2009) on SSRN. Here is the abstract:
This short essay is a core text for Criminal Law Conversations, followed by my reply to comments by Stephanos Bibas and Douglas Berman, LaJuana Davis, Joseph Kennedy, Terry Maroney, Jeffrey Murphy, Robert Schopp, Mary Sigler, and Carol Steiker. The core text is adapted from my article "The Heart Has its Reasons: Examining the Strange Persistence of the American Death Penalty," 42 Studies in Law, Politics and Society 21 (2008).
The debate about the future of the death penalty often focuses on whether its supporters are animated by instrumental or expressive values. In this article I argue that a more explicit recognition of the emotional sources of support for and opposition to the death penalty will contribute to the clarity of the debate. The focus on emotional variables reveals that the boundary between instrumental and expressive values is porous; both types of values are informed (or distorted) by fear, outrage, compassion, selective empathy and other emotional attitudes. Moreover, emotion theory illuminates the dynamics of the polarized debate. Though history, culture and politics are essential aspects of the discussion, both the resilience of capital punishment in the U.S. and the nature of the death penalty debate can be better understood by taking account of emotional variables.
August 19, 2010
Buell on the mail fraud cases
In this contribution to a collection of essays on the Supreme Court’s October Term 2009, I comment on the Court’s trilogy of mail fraud cases, disposed of principally through Justice Ginsburg’s opinion in Skilling v. United States. The Court’s solution to the problem of "honest services fraud" was tidy but somewhat arbitrary and quite shallow. The Court seemed to recognize that the cases presented the problem of how to deal with frauds that involve indirect benefits to violators and/or intangible harms to victims. This can be termed the "relationship and context problem" in fraud or, if one prefers, the "duty problem." But the Court failed to engage with this problem conceptually, missing a golden opportunity to develop the jurisprudence of fraud that is not likely to arise again for a long time. I explain the problem, demonstrate that it is not limited to the recent tempest over the "honest services" statute and its constitutionality, and suggest some directions for addressing it that the Court might have pursued.
"Clemens to Be Indicted for Perjury in Doping Testimony"
The New York Times has the story here:
Federal authorities have decided to indict Roger Clemens on charges of making false statements to Congress about his use of performance-enhancing drugs, according to two people briefed on the matter.
August 18, 2010
Professor Ellen Podgor receives NACDL award
Washington, DC (Aug. 18, 2010) – Stetson Law Professor Ellen S. Podgor was awarded the 30th annual Robert C. Heeney Memorial Award, the National Association of Criminal Defense Lawyers’ most prestigious honor, Aug. 14 at its 52nd Annual Meeting in Toronto, Ont. This award is given annually to the one criminal defense lawyer who best exemplifies the goals and values of the Association and the legal profession.
Cassidy on Ethics and Plea Bargaining
Michael Cassidy (Boston College Law School) has posted Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
In this article the author explores what it means for a prosecutor to “do justice” in a plea bargaining context. Although the vast majority of criminal cases in the United States are resolved by guilty plea rather than by trial, ABA Model Rule 3.8, the special disciplinary rule applicable to prosecutors, has very little to say about plea bargaining. Scrutinizing the multiplicity of interests at stake in plea bargaining, the author suggests that a prosecutor’s primary objectives during negotiations should be efficiency, equality, autonomy, and transparency. After defining each of these terms, the author identifies several troublesome and recurring practices employed by prosecutors in the plea bargaining context that in his view violate a prosecutor’s duty to “do justice,” but yet presently are entirely unregulated. He then demonstrates how a focus on efficiency, equality, autonomy and transparency might help prosecutors avoid these ethical minefields.
August 17, 2010
"Divided Jury Convicts Blagojevich of Single Count"
The story is at the New York Times site:
CHICAGO — Rod R. Blagojevich, the ousted former governor of Illinois, was convicted on Tuesday of making false statements to the Federal Bureau of Investigation, but the jury in the corruption case against him also reported that it was hopelessly deadlocked on the 23 other counts against him.
. . .
Judge James B. Zagel of Federal District Court accepted the jury’s verdict on the false-statements count on Tuesday and declared a mistrial on the remaining counts, the bulk of the case. Federal prosecutors said immediately that they would try Mr. Blagojevich once more.
Forman on School Searches
Sarah Jane Forman (Washington University School of Law in St. Louis) has posted Countering Criminalization: Toward a Youth Development Approach to School Searches on SSRN. Here is the abstract:
This article focuses on one aspect of school disciplinary enforcement: the search and seizure of students and their property while at school. School search and seizure policy is important because it is not an area of the law that has been frequently examined by legal scholars in the context of youth development. Youth development is becoming part of the discussion around juvenile justice reform with regard to culpability and sentencing, Eighth Amendment issues involving the constitutionality of death or life without parole sentences for juveniles, and in the Fifth Amendment context. However, little has been said about how the scientific and psychological research that is used to support these arguments could be applied to Fourth Amendment jurisprudence. This article is the first in a trilogy of projects that will explore how the school environment effects youth development and identity. Beginning with this article, I advance a theory of juvenile rights that accounts for adolescent development without eschewing autonomy and equality concerns.
Every since New Jersey v. T.L.O., the dominant narrative, particularly in inner-city schools, has been that school children are dangerous and violent, drug dealing, gang affiliated, and out of control. Teachers and fellow students need protection from these menacing ambassadors of street thuggery. Therefore, under the rubric of school safety, we strip students of the full protection afforded by the 4th Amendment while simultaneously subjecting them to a model of school discipline that utilizes law enforcement officers to enforce school rules.
The sacrifice of students’ rights in the name of public safety comes at a cost. Such policies “construct a narrow range of meaning through which young people define themselves.” Forcing students to submit to pats, frisks, sniffs, and searches that would be illegal if performed on the average adult citizen transforms them into suspects. The constant suspicion with which they are regarded pushes students into a defensive posture that hinders their ability to become active and engaged citizens of their community and nation. This alienates them from mainstream society, increasing the lure of counter-culture ideas, decreasing the legitimacy of the rule of law, and, in some instances, feeding the school-to prison pipeline.
This conditioning is particularly detrimental to high school age youth because adolescents undergo significant psychological, intellectual and emotional development. During this time, youth are being “hardwired,” shaped, and programmed into patterns of thought and behavior that impact the way they interact with the world around them and determine what kind of adults they will become. As a result, they have very fragile identities which make them particularly vulnerable to outside pressures and influences. During the teenage years, children learn as much from interactions with peers and authority figures as they do from textbooks. Therefore, the draconian disciplinary policies of America’s public schools, where children are viewed with suspicion and treated like threats, create a self-fulfilling prophecy – when students are treated as threats to society, they become threats to society.
In section one, I examine and critique the current paradigm of school search jurisprudence. I discuss how the Court’s analysis largely ignores age as a factor in determining the reasonableness of a search. I also address the increased use of police officers to enforce school discipline. Drawing on neuroscience and developmental psychology, in section two I discuss the developmental needs of youth, particularly in light of recent Supreme Court cases involving the rights of juveniles. The Court’s endorsement of recent research in the area of adolescent brain development has important implications for school search jurisprudence particularly because reasonableness is an evolving standard. I also examine positive youth development, an approach that focuses on strengthening youth by encouraging healthy development.
Section three focuses on the developmental implications of search and seizure practices in America’s public high schools and seeks a way to strike a developmentally appropriate balance between safety and privacy in the context of school searches. To encourage positive development, adolescents’ burgeoning sense of autonomy must be nurtured and supported rather than diminished and disregarded. I call this a ‘positive youth development approach’ to school searches. Evolving standards of reasonableness, like evolving standards of decency, should account for the realities of adolescent brain development and the particular vulnerabilities of youth. Furthermore, utilitarian concerns militate in favor of a unitary standard that applies to both school officials and police officers.
In conclusion, I suggest doctrinal and policy changes that counter the trend of increasing youth criminalization by encouraging positive youth development. I argue that, if implemented correctly, probable cause is more a developmentally appropriate standard. Therefore, it should be the unitary standard in school searches.
August 16, 2010
"DOJ ends DeLay criminal probe without filing charges"Jurist has this report.
Aviram, Seymour & Leo on Good Faith Doctrine
Hadar Aviram (pictured), Jeremy Seymour and Richard A. Leo (University of California, Hastings College of the Law , University of California, San Francisco - Hastings College of the Law and University of San Francisco - School of Law) have posted Moving Targets: Placing the Good Faith Doctrine in the Context of Fragmented Policing (Fordham Urban Law Journal, Vol. 37, 2010) on SSRN. Here is the abstract:
The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as the decisive element in establishing good faith. The authors rely on the actual holding of Herring in light of its facts, on the Court’s previous decision in Evans, and on the current circuit split with regard to illegal predicate searches to conclude that a narrow and reasonable reading of the Herring doctrine is appropriate. Part II discusses problematic implications, detailing potential abuses and disincentives of not holding one police agency accountable for the mistakes of another. The authors argue that a “moving target” government party to the criminal process is fundamentally unfair to defendants without proper safeguards. Part III offers a solution: a multivariate analysis of the proper deterrence incentives, which will not only provide protection to the citizen tackling “moving targets,” but also clearer and more detailed guidelines for future decisions.
August 15, 2010
Top-Ten Recent SSRN Downloads
|1||2641||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||342||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||198||Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing |
CUNY School of Law,
Date posted to database: May 18, 2010
|4||120||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 [5th last week]
|5||105||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 [6th last week]
|6||98||Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law |
Chapman University - School of Law,
Date posted to database: June 27, 2010 [new to top ten]
|7||91||Reconsidering Reprisals |
Michael A. Newton,
Vanderbilt University - Law School,
Date posted to database: June 9, 2010 [9th last week]
|8||90||Retributivism Refined - Or Run Amok? |
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: May 17, 2010
|9||86||More Different than Life, Less Different than Death |
William W. Berry,
University of Mississippi School of Law,
Date posted to database: May 25, 2010 [new to top ten]
|10||86||Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development |
David B. Wexler,
University of Puerto Rico - School of Law,
Date posted to database: June 23, 2010 [new to top ten]