Saturday, October 30, 2010
There are no cases raising core issues, but a couple on the margins. Issue summaries are from ScotusBlog, which also links to briefs and opinions below:
Tuesday, Nov. 2
- Sossamon v. Texas: Can an inmate sue a state for money damages for violations of the Religious Land Use and Institutionalized Persons Act?
- Schwarzenegger v. Entm't Merchants: Does a state law restricting the sale of violent video games to minors violate the First Amendment right to free speech?
Friday, October 29, 2010
Michael G. Collins and Jonathan Remy Nash (University of Virginia School of Law and Emory University School of Law) has posted Prosecuting Federal Crimes in State Courts (Virginia Law Review, Vol. 97, 2011) on SSRN. Here is the abstract:
May state courts entertain federal criminal prosecutions? Many scholars assume that the answer is "yes." From the Progressive era to the present, scholars have urged that state courts be allowed to entertain certain federal criminal prosecutions - prosecutions now within the exclusive jurisdiction of the federal courts. These proposals aim to alleviate pressures on the federal courts caused by Congress’s unabated federalization of ostensibly local crimes, by returning many such crimes to local courts for local enforcement. While scholars debate the utility of such proposals, this article focuses on a different and less well explored problem: whether such proposals are constitutional.
A day after prosecutors dismissed the capital murder charges that sent Anthony Graves to death row in 1994, they accused the district attorney who convicted him of prosecutorial misconduct.
“Charles Sebesta handled this case in a way that could best be described as a criminal justice system’s nightmare,” Kelly Siegler declared. “It’s a travesty, what happened in Anthony Graves’ trial.” Graves, now 45, was released from jail Wednesday after spending 18 years behind bars for a crime he did not commit, according to Bill Parham, the current DA for Washington and Burleson counties. Parham, Siegler and two investigators called a Thursday news conference at which they accused the former district attorney of hiding evidence and threatening witnesses.
Thursday, October 28, 2010
Paul H. Robinson (University of Pennsylvania Law School) has posted 'Life Without Parole' Under Modern Theories of Punishment on SSRN. Here is the abstract:
Life without parole seems an attractive and logical punishment under the modern coercive crime-control principles of general deterrence and incapacitation, a point reinforced by its common use under habitual offender statutes like "three strikes." Yet, there is increasing evidence to doubt the efficacy of using such principles to distributive punishment. The prerequisite conditions for effective general deterrence are the exception rather than the rule. Moreover, effective and fair preventive detention is difficult when attempted through the criminal justice system. If we really are committed to preventive detention, it is better for both society and potential detainees that it be done through a civil system that openly admits its preventive justification and goals.
Wednesday, October 27, 2010
I. Bennett Capers (Hofstra University - School of Law) has posted Crime, Legitimacy, Our Criminal Network, and the Wire (Ohio State Journal of Criminal Law, Vol. 8, 2011) on SSRN. Here is the abstract:
It perhaps comes as no surprise that, at a gathering of four criminal law professors over drinks and dinner, the subject would turn to the HBO series The Wire. The four of us - Susan Bandes, Jeff Fagan, David Alan Sklansky, and myself - were part of a larger group of about twenty or so criminal professors invited to participate in the University of Chicago’s Criminal Justice Roundtable, and after a full day of discussing each other’s scholarship, we were eager to discuss something else. So we raved about The Wire. Then we lamented the fact that, to our knowledge, there had never been a law conference devoted to The Wire, or even a symposium issue in a law journal. The series certainly raises enough criminal law and criminal procedure questions to warrant such a project. But even more importantly, The Wire does something else. I once argued that “law and order” shows can have a type of "de-shadowing" effect. There is the justice administered by the courts. And there is the justice that the courts imagine they are regulating. Law and order shows, especially the ones that give the illusion of being police procedurals, are uniquely positioned to critique this justice. Law and order shows, at their best, bring out of the shadows the justice that actually exists. No show does this better than The Wire.
Richard E. Redding (pictured) and Daniel C. Murrie (Chapman University - School of Law and affiliation not provided to SSRN) have posted Judicial Decision Making About Forensic Mental Health Evidence (SPECIAL TOPICS IN FORENSIC PRACTICE, Chapter 26, p. 683, 2010) on SSRN. Here is the abstract:
Judges play a central role in decision making in the justice system. This chapter reviews the extant empirical research on judicial decision making in criminal, juvenile, and civil cases. We discuss judges’ decision making about forensic mental health evidence introduced in these cases, judicial receptivity to various kinds of evidence, and their understanding of clinical and scientific evidence as well as the ways they make rulings about such evidence. We focus on decision making at the trial court level, in those arenas that are most relevant to the forensic mental health practitioner (psychiatrist, psychologist, or social worker) who is called on to provide testimony to the courts.
Tuesday, October 26, 2010
In a rarely-discussed passage in the Principles of the Penal Code, Jeremy Bentham discussed a category of offenses he labeled presumed, or evidentiary, offenses. The conduct penalized under such offenses is subject to punishment, Bentham observed, not because it is intrinsically wrong, but instead because engaging in such conduct probabilistically indicates that those who engage in such conduct have done something else that is in fact intrinsically wrong. Bentham offered as examples of presumed offenses the possession of shipwrecked property with altered markings, and the punishment as infanticide of the failure to report the birth of an infant subsequently found dead. Nowadays, evidentiary offenses include the punishment as a drug dealer of anyone found in possession of more than a specified quantity of narcotics, and punishing those who enter or leave the country with large amounts of unreported cash, on the assumption that they are likely to be engaged in money laundering or drug trafficking. Bentham was mildly skeptical of such offenses, but grudgingly accepted their value in light of deficiencies in procedure and in the judiciary. These days the skepticism is even greater, with courts and commentators in the United States, Canada, the United Kingdom and elsewhere believing that such offenses deny to a defendant the right to establish that he did not in fact engage in the conduct that the presumed offense probabilistically but not necessarily indicates. On closer analysis, however, such skepticism appears unjustified. Almost all offenses, and indeed almost all legal rules, are premised on a probabilistic relationship between the behavior the rule encompasses and the behavior that is the rule-maker’s real concern. Presumed offenses may make this relationship especially obvious, but it is a relationship that exists whenever the law operates by the use of rules.
A couple of months ago, a used copy of Michael S. Moore's book Placing Blame cost $300, if you could even find one. So I was pleased to see that Oxford University Press has begun reprinting Placing Blame, as well as his Act and Crime. The paperback version of his new book Causation and Responsibility is now also available. They are still $50-$60 each, even in paperback. But if you refer to them often, this may be a good opportunity.
From The New York Times:
WASHINGTON — A former child soldier being held at the military prison at Guantánamo Bay, Cuba, pleaded guilty on Monday to terrorism-related charges, averting the awkward prospect that he would be the first person to stand trial before a military commission under the Obama administration.
. . .
By avoiding the need for a trial of Mr. Khadr, the deal represents a breakthrough for the Obama administration’s legal team, which had been dismayed that his case was to become the inaugural run of a new-look commissions system — undermining their efforts to rebrand the tribunals as a fair and just venue for prosecuting terrorism suspects.
. . .
The centerpiece of the charges was not a conventional terrorism offense — targeting civilians — but killing an enemy soldier in combat. Usually in war, battlefield killing is not prosecuted. But the United States contended that Mr. Khadr lacked battlefield immunity because he wore no uniform, among other requirements of the laws of war.
Monday, October 25, 2010
Stephanos Bibas (University of Pennsylvania Law School) has posted Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection on SSRN. Here is the abstract:
Padilla v. Kentucky was a watershed in the Court’s turn to regulating plea bargaining. For decades, the Supreme Court has focused on jury trials as the central subject of criminal procedure, with only modest and ineffective procedural regulation of guilty pleas. This older view treated trials as the norm, was indifferent to sentencing, trusted judges and juries to protect innocence, and drew clean lines excluding civil proceedings and collateral consequences from its purview. In United States v. Ruiz in 2002, the Court began to focus on the realities of the plea process itself, but did so only half-way. Not until Padilla this past year did the Court regulate plea bargaining’s substantive calculus, its attendant sentencing decisions, the lawyers who run it, and related civil and collateral consequences. Padilla marks the eclipse of Justice Scalia’s formalist originalism, the parting triumph of Justice Stevens’ common-law incrementalism, and the rise of the two realistic ex-prosecutors on the Court, Justices Alito and Sotomayor. To complete Padilla’s unfinished business, the Court and legislatures should look to consumer protection law, to regulate at least the process if not the substance of plea bargaining.
Alex Kreit (Thomas Jefferson School of Law) has posted Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms (Chapman Law Review, Vol. 13, p. 555, 2010) on SSRN. Here is the abstract:
Nearly forty years after President Richard Nixon first declared a "war on drugs" (calling drugs the "modern curse of the youth, just like the plagues and epidemics of former years") it seems the war may finally be coming to an end. In his first interview after being confirmed as the Director of the Office of National Drug Control Policy, Gil Kerlikowske told the Wall Street Journal that he thought it was time to retire the war rhetoric when it comes to addressing drug abuse. At the state level, the past year has seen proposals to legalize marijuana introduced in a handful of states with polls showing approximately forty-five percent of Americans nationwide in support of the idea. Importantly, these recent developments follow nearly a decade and a half of successful drug reform measures at the state level on issues ranging from medical marijuana, treatment instead of incarceration, asset forfeiture, and marijuana decriminalization. In short, the argument that we should end the war on drugs in favor of a new approach no longer resides in the world of the politically unthinkable, and has quickly become a subject of serious policy and political discussion.
|1||195||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 [2nd last week]
|2||182||Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010 [4th last week]
|3||182||An e-SOS for Cyberspace
Duncan B. Hollis,
Temple University - James E. Beasley School of Law,
Date posted to database: September 3, 2010 [5th last week]
|4||173||Fourth Amendment Pragmatism
Daniel J. Solove,
George Washington University Law School,
Date posted to database: August 27, 2010 [6th last week]
|5||168||The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [10th last week]
|6||159||Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010 [8th last week]
|7||147||What Might Retributive Justice Be?
Florida State University College of Law,
Date posted to database: September 4, 2010 [new to top ten]
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [9th last week]
|9||135||Rethinking Proportionality Under the Cruel and Unusual Punishments Clause
John F. Stinneford,
University of Florida Levin College of Law,
Date posted to database: August 20, 2010 [new to top ten]
|10||128||The Laws of War as a Constitutional Limit on Military Jurisdiction
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 19, 2010 [new to top ten]
Sunday, October 24, 2010
Penney J. Lewis (King's College London) has posted Informal Legal Change on Assisted Suicide: The Policy for Prosecutors (Legal Studies (Online), October 13, 2010) on SSRN. Here is the abstract:
Following the House of Lords’ decision in Purdy, the Director of Public Prosecutions issued an interim policy for prosecutors setting out the factors to be considered when deciding whether a prosecution in an assisted suicide case is in the public interest. This paper considers the interim policy, the subsequent public consultation and the resulting final policy. Key aspects of the policy are examined, including the condition of the victim, the decision to commit suicide and the role of organised or professional assistance. The inclusion of assisted suicides which take place within England and Wales makes the informal legal change realised by the policy more significant than was originally anticipated.