Saturday, October 23, 2010
John Bronsteen (pictured), Christopher J. Buccafusco and Jonathan S. Masur (Loyola University Chicago School of Law , Chicago-Kent College of Law and University of Chicago - Law School) have posted Retribution and the Experience of Punishment (California Law Review, Forthcoming) on SSRN. Here is the abstract:
In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.
Friday, October 22, 2010
Robert Blecker (New York Law School) has posted Less than We Might: Meditations on Life in Prison Without Parole (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:
Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for "the worst of the worst." These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a "punishment worse than death."
Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World on SSRN. Here is the abstract:
A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.
Thursday, October 21, 2010
Christopher Slobogin (Vanderbilt Law School) has posted Psychological Syndromes and Criminal Responsibility on SSRN. Here is the abstract:
These two papers both focus on the intersection of the law of evidence with criminal responsibility doctrine, using as a springboard my book, Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness. The first piece, Psychological Syndromes and Criminal Responsibility, appears in the Annual Review of Law and Social Science. It analyzes the admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome, and XYY syndrome as well the admissibility of prosecution-proffered evidence about phenomena such as rape trauma syndrome and abused child syndrome. It emphasizes the need to assess, in each instance, materiality (the logical relationship of the evidence to the precise doctrine at issue-insanity, lack of mens rea, etc.), probative value (reliability), helpfulness (the extent to which the evidence adds to the fact-finder knowledge), and prejudice (the extent to which the evidence distracts or confuses the fact-finder). Thus, the ultimate admissibility decision involves consideration of the scope of the criminal law, the scientific methodology associated with the syndrome, the counter-intuitiveness of the evidence, and the role and capacities of juries.
From The New York Times:
WASHINGTON — Nearly four years after the federal government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government’s own making.
. . .
Interviews with lawyers involved in the cases, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in American civilian courts, and of overcoming immunity deals given to defendants by American officials on the scene.
Wednesday, October 20, 2010
FourthAmendment.com links to this document by Stephen R. Sady, chief deputy public defender for the District of Oregon, which canvasses recent authority with an eye toward identifying lower court precedents that might be helpful in representing criminal defendants.
Dissatisfaction with parts of the indeterminate (parole) sentencing system led many states, including Wisconsin, to totally eliminate this and substitute a Truth-in-Sentencing system. After a decade with the new system, there are also many problems including difficulty in arranging programs, overcrowding and banishing the concept of rehabilitation. An adjustment would be to provide judges with both options at the time of sentencing so that the most serious offenders would be serving the fullest sentence while others would have earlier access to treatment and possible earned release.
Randolph N. Jonakait (New York Law School) has posted Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt's Development on SSRN. Here is the abstract:
Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable doubt standard’s early development and its original meaning, purposes, and intent.
Tuesday, October 19, 2010
The story, from The New York Times, reports that Steven Slater pleaded guilty "to two charges of attempted criminal mischief, one a felony, one a misdemeanor, " and "agreed to enroll in an alternative sentencing program that requires him to undergo mental health counseling and substance abuse treatment for the next year. He must also keep regular appointments with the court to report on his progress."
“He clearly has a mental health-alcohol abuse problem,” [the prosecutor] said. “While his condition does not in my mind justify or excuse his actions, it does to some respect explain them. I think it’s also fair to say Mr. Slater has recognized the seriousness of his actions.”
FindLaw has this story from Iowa State University. On the methodology:
An overwhelming majority of this high sum is the result of the amount of money citizens would be willing to pay to prevent future crime. The study also used the same formula to determine the costs of other crimes: rape ($448,532), armed robbery ($335,733), aggravated assault ($145,379), and burglary ($41,288).
From The New York Times:
WASHINGTON — Law enforcement and counterterrorism officials, citing lapses in compliance with surveillance orders, are pushing to overhaul a federal law that requires phone and broadband carriers to ensure that their networks can be wiretapped, federal officials say.
Cecelia M. Klingele , Michael Scott (pictured) and Walter Dickey (University of Wisconsin Law School , University of Wisconsin Law School and affiliation not provided to SSRN) have posted Reimagining Criminal Justice (Wisconsin Law Review, 2010) on SSRN. Here is the abstract:
The criminal justice system needs more than reform. It requires reimagining. In its present state, by every measure that matters, the criminal justice system is failing to deliver what can fairly be expected of it. Many crimes are never reported, and most crimes that are reported go unsolved. When offenders are identified and apprehended, they are often processed through the criminal justice system in a manner that values expediency over enhanced public safety. Despite falling crime rates, many communities remain unsafe. Limitations on the capacity of law enforcement agencies, prosecutors' offices, trial courts, and correctional programs prevent the criminal justice system, as presently configured, from responding to the volume of cases it processes with the time and attention needed to ensure justice is done and public welfare and security are advanced.
Monday, October 18, 2010
Issue summary from ScotusBlog, which links to cert papers and the opinion below:
- Ashcroft v. al-Kidd: (1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a “pretext” to preventatively detain terrorism suspects; and (2) whether the former government official is entitled to qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of the respondent’s arrest.
"California state bar to investigate 130 prosecutors following misconduct study by Innocence Project and Santa Clara law school"
John Steele has this post at Legal Ethics Forum. In part:
I expect we'll hear a lot more news about this, that the prosecutors will fight back, that the prosecutors will feel that old matters that were argued years ago shouldn't be the basis of discipline charges, and so on. But this move by the bar seems quite deliberate and planned out, and I expect they've thought through a lot of the issues. We'll see. I'd also expect that at some point more prosecutor offices will adopt "open file" policies simply out of self-protection.
For a truly excellent debate about federal habeas for state prisoners, compare Joseph L. Hoffman & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 818-33 (2009) with John H. Blume, Sheri Lyn Johnson. & Keir M. Weyble, In Defense of Non-capital Habeas: A Response to Hoffman and King, available online here. I remain skeptical about federal habeas, for reasons that the formidable scholars on both sides of this debate largely agree on--habeas comes late and the states lack systemic incentives to comply with Brady and Strickland. I have been inclined to agree with Hoffman and King that the resources used at the back end on habeas would be much better spent on less disgraceful indigent defense up front. But I am less sure of this position than before reading the paper by Blume, Johnson and Webyle. I commend the two articles in the strongest terms to anyone who cares about federal habeas.
Sunday, October 17, 2010
|1||211||Palestine and the International Criminal Court: Asking the Right Question
Michael G. Kearney,
London School of Economics & Political Science (LSE) - Department of Law,
Date posted to database: July 3, 2010
|2||189||The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes
University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: August 19, 2010
|3||178||Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law
Gabriel J. Chin, Marc L. Miller,
University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: July 26, 2010
|4||173||Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010 [new to top ten]
|5||169||An e-SOS for Cyberspace
Duncan B. Hollis,
Temple University - James E. Beasley School of Law,
Date posted to database: September 3, 2010 [4th last week]
|6||168||Fourth Amendment Pragmatism
Daniel J. Solove,
George Washington University Law School,
Date posted to database: August 27, 2010 [7th last week]
|7||161||Selected Salient Evidentiary Issues in Employment Discrimination Cases
University of Baltimore School of Law,
Date posted to database: July 12, 2010 [5th last week]
|8||156||Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010 [6th last week]
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [new to top ten]
|10||132||The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [new to top ten]