Saturday, November 13, 2010
In this chapter, I propose a novel way of justifying the practices of the criminal justice system — a position I call a ‘public law account’ of criminal justice. I call it a ‘public law’ account because it conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate. Like the new legal moralism of Antony Duff and John Gardner, my account is an attempt to justify the workings of the criminal justice system by demonstrating that they are just what is required for us to be true to a set of roles and relationships that have intrinsic value. But the relevant roles and relationships for criminal justice are not those we understand from ordinary morality. Rather, they are the legally defined roles — such as private citizen, police officer, judge, etc — that we take up within a larger constitutional order that, I shall argue, we could not abolish without abandoning necessary preconditions for our moral life.
When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise – that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of the jury process. Conventional wisdom clings to the notion that criminal verdicts reflect a jury’s unanimous factual assessment. That notion is thwarted when a juror votes for a verdict as a compromise, as a second choice to the one he thinks best reflects reality. To date, therefore, compromise verdicts are typically dismissed as examples of maverick jurors dishonoring their oath to apply the law and seek the truth.
Friday, November 12, 2010
Eugene Volokh at The Volokh Conspiracy notes this recent Georgia Supreme Court case addressing the propriety of a prosecutor's producing a birthday cake and singing "Happy Birthday" to the child victim in a murder case. All the justices agreed that the performance was improper, but the majority concluded that defense counsel's failure to object was a "strategic decision" that precluded reversal.
Writing in the Veteran’s Day edition of the New York Times, Ronald D. Castille, Chief Justice of the Pennsylvania Supreme Court, and a Viet Nam veteran himself, celebrates the growing movement to provide specialized courts for offenders with a record of military service.
Justice Castile writes that “too many proud veterans resist” assistance from the VA and allied private organizations, and “as a result, find themselves on the wrong side of the law, for reasons related more to their experience in service to country than to criminal intent.” As Justice Castille notes, the first such court in recent memory was established through the efforts of Judge Robert T. Russell, Jr. in Buffalo, New York. According to Justice Castille, Judge Russell’s program has been completed by 90% of those who enter it, without any case of recidivism. Similar courts are being experimented with throughout the country, including in Orange County, just up the road here in Southern California.
In general I applaud anyone who dares to attempt less punitive experiments in American criminal justice. But I find this particular experiment troubling, because:
(1) It sounds to me very like the “abuse excuse” long rejected by the law, and denounced with particular certitude by conservatives. Are veterans responsible for criminal conduct or are they not? If the answer is “sometimes” or “kind of sort of”, what then of the cases like State v. Norman, where if defendant’s evidence were believed she had a much rougher time than many whose, undeniably admirable, military service included noncombat roles even in active theaters of war?
In this commentary on an article by Henderson, Wolfers, and Zitzewitz, proposing the use of open markets for the prediction of crime, I explore a few implications stemming from one fact. The prediction market concept — an effort to coordinate decentralized sources of information — would operate in an exceptionally decentralized world of users, a world where the institutional users of crime predictions are fragmented among many different locations and levels of government.
Thursday, November 11, 2010
Eugene Volokh at The Volokh Conspiracy notes this post by Steve Landsburg at The Big Questions. After setting forth a hypo that might be fruitfully used in class to show how bad most folks are at estimating likelihood, Landsburg offers some thoughts on the probabality he might offer as proof beyond a reasonable doubt:
70-74% certainty sounds like roughly the right standard to me in a world where the police can be counted on not to take advantage of that standard by falsifying evidence against people they don’t like. Given that prospect, though, I think I prefer something a little tougher — though not as tough as 98%.
Adam Benforado (Drexel University - Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:
African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us - our friends, family, and neighbors - who show no animus toward African Americans and who profess genuine commitments to equality.
Wednesday, November 10, 2010
Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University - School of Law , Pepperdine University - School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:
In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.
After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court's decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors' report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.
Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster the case for expanding corporate criminal procedure rights. Finally, if the latter three developments come to pass, Citizens United might also have a significant impact on how the criminal justice system treats street criminals. After all, the courts can hardly withhold from human offenders and suspects the dispositional breaks and procedural rights they have granted non-human corporations. Right?
Tuesday, November 9, 2010
Transcript of oral argument in federal case challenging state conviction based on facts not raised in state court
This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz's conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.
Monday, November 8, 2010
Sunday, November 7, 2010
|1||248||Good Faith, New Law, and the Scope of the Exclusionary Rule
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: September 11, 2010 [new to top ten]
|2||207||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 [1st last week]
|3||206||An e-SOS for Cyberspace
Duncan B. Hollis,
Temple University - James E. Beasley School of Law,
Date posted to database: September 3, 2010 [2nd last week]
|4||191||Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010 [3rd last week]
|5||184||Statistical Knowledge Deconstructed
Kenneth W. Simons,
Boston University - School of Law,
Date posted to database: September 7, 2010
|6||181||The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [4th last week]
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [6th last week]
|8||152||A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office
Butler University College of Business,
Date posted to database: October 5, 2010 [new to top ten]
|9||150||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 [8th last week]
|10||140||The Concept of Evil in American and German Criminal Punishment
Goethe University Frankfurt - Cluster of Excellence Normative Orders,
Date posted to database: August 30, 2010 [9th last week]