December 4, 2010
Dempsey on Sex Trafficking
Michelle Madden Dempsey (Villanova University School of Law) has posted Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism (University of Pennsylvania Law Review, Vol. 158, No. 6, 2010) on SSRN. Here is the abstract:
This article provides an overview of the feminist abolitionist response to sex trafficking and defends criminalizing the purchase of sex on grounds of complicity and endangerment.
December 3, 2010
Romero on Decriminalizing Border Crossings
An international border crosser should only be deemed a criminal if the United States government can prove that, with requisite criminal intent, she engaged in an act aside from crossing the border that would constitute a crime. No longer should crossing the border be a strict liability criminal offense. Doing so will restore balance to the civil immigration system, conserve scarce enforcement resources to target truly criminal behavior, enhance our standing abroad, and help heal our racially-polarized discourse on immigration policy.
Holmes on Empirical Analysis of Registration and Notification Laws for Juvenile Sex Offenders
Stephanie Holmes has posted An Empirical Analysis of Registration and Notification Laws for Juvenile Sex Offenders on SSRN. Here is the abstract:
Since the 1990s, there has been a dramatic change in the way state legislatures and the federal government attempt to prevent sex offending. Across the country, two types of laws - registration laws and notification laws - have emerged. Passed in 1994, the federal Jacob Wetterling Act requires all states to maintain registries of offenders convicted of sex crimes or crimes against children. Passed in 1996, the federal Megan’s Law requires states to publicize information about offenders on their registries. Passed in 2006, the federal Adam Walsh Act will add more requirements for states, including a requirement that states include on their registries juveniles age fourteen and older who are adjudged delinquent or convicted in adult court of certain sex offenses. This paper estimates the effectiveness of sex offender registration and notification laws when they are applied to juveniles. Using state-level panel data for the period 1993-2007, I use a fixed-effects model to test the extent to which registration and notification laws for juveniles are predictive of juvenile sex offense arrest rates. The 1993-2007 period was used because most registration and notification requirements for juveniles were added during the mid- to late-1990s. I find that registration and notification laws are not significant predictors of the juvenile sex offense arrest rate. This finding suggests that registration and notification laws are ineffective at decreasing juvenile sex offending. It is also possible that registration and/or notification laws do, in fact, significantly decrease juvenile sex offending, but that this result is obscured by increased policing or reporting of juvenile sex offenses concurrent with the passage of registration and/or notification laws. However, incident-based statistics of juvenile sex offending suggest otherwise. The legal and policy implications of the empirical model are also discussed.
Next week's criminal law/procedure argument
Issue summary is from ScotusBlog, which also links to briefs and opinions below:
Monday, December 6
- Pepper v. US: May a court consider a defendant’s post-sentencing rehabilitation as a ground for reducing his sentence below the federal sentencing guideline range? When a sentence is vacated on appeal, and a new judge is assigned on remand, must the new judge follow the prior district judge’s sentencing findings? (Kagan, J., recused).
December 2, 2010
Johnston on Theorizing Mental Health Courts
To date, no scholarly article has analyzed the theoretical basis of mental health courts, which currently exist in forty-three states. This article examines the two utilitarian justifications proposed by mental health court advocates - therapeutic jurisprudence and therapeutic rehabilitation - and finds both insufficient. Therapeutic jurisprudence is inadequate to justify mental health courts because of its inability, by definition, to resolve significant normative conflict. In essence, mental health courts express values fundamentally at odds with those underlying the traditional criminal justice system. Furthermore, the ability of therapeutic rehabilitation to offer sufficient theoretical grounding depends on the validity of the assumed link between mental illness and crime. In particular, mental health courts view participants’ criminal behavior as symptomatic of their mental illnesses and insist that untreated mental illness serves as a major driver of recidivism. Drawing upon social science research, this article demonstrates that these relationships may not hold for a substantial proportion of individuals served by mental health courts. The article concludes by identifying alternative theories that may justify these courts.
von Wilpert on Holland v. Florida
Marni von Wilpert has posted Holland V. Florida: a Prisoner's Last Chance, Attorney Error, and the Antiterrorism and Effective Death Penalty Act's One-Year Statute of Limitations for Federal Habeas Corpus Review (Fordham Law Review Vol. 79, p. 1429, 2010) on SSRN. Here is the abstract:
When should a prisoner be held accountable for his attorney’s negligence or misconduct? Since the mid-1990’s, courts throughout the nation were deciding this question, after a growing tide of attorneys failed to meet the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations when filing federal habeas corpus petitions on behalf of their incarcerated clients. In Holland v. Florida, the Supreme Court decided once and for all when a prisoner would be given another chance to file his habeas corpus petition through the doctrine of equitable tolling when the only reason his petition was late was the fault of his attorney. This Comment explores the issues raised by the Holland decision. In doing so, this Comment analyzes the principles of agency law and professional responsibility - the foundations of the attorney-client relationship - and raises questions as to whether these principles are properly applied to incarcerated clients in the post-conviction context. This Comment ultimately concludes that while Holland was properly decided, the Court misapplied agency law to support its decision and did not go far enough in extending the protection of equitable tolling to all prisoners who have been turned away from the courts because they detrimentally relied on their defaulting attorneys.
Kinley & Murray on Corporations that Kill
David Kinley (pictured) and Odette Murray (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) has posted Corporations that Kill: Prosecuting Blackwater (SHOOT TO KILL: THE LAW GOVERNING THE USE OF LETHAL FORCE IN CONTEXT, S. Bronitt, M. Gani, eds., Hart Publishing, 2010) on SSRN. Here is the abstract:
The deaths of 17 civilian Iraqis in Baghdad’s Nisour Square in September 2007 at the hands of Blackwater (now Xe) personnel was as notable for the horrifying manner in which the 17 died as it was for revealing the abject lack of effective regulation and accountability mechanisms that exist for private military corporations engaged in lethal actions. How did this circumstance come to be? What are the dimensions of the growing phenomenon of security and military privatization? What ought to be the framework within which the exercise of public power in private hands is regulated when the power in question is in extremis? And what are the challenges in establishing such control? This article addresses these questions working through the prism of the Nisour Square massacre and its aftermath. It concludes that even if some progress can be made through private sector initiatives, the filling of the current regulatory lacunae must be seen as primarily a task of the contracting-out states themselves, and it is to them that we must look to lobby for change.
December 1, 2010
Miron & Waldock on Budgetary Impact of Ending Drug Prohibition
Jeffrey A. Miron and Katherine Waldock (Harvard University - Department of Economics and New York University (NYU) - Leonard N. Stern School of Business) have posted The Budgetary Impact of Ending Drug Prohibition on SSRN. Here is the abstract:
State and federal governments in the United States face massive looming fiscal deficits. One policy change that can reduce deficits is ending the drug war. Legalization means reduced expenditure on enforcement and an increase in tax revenue from legalized sales.
This report estimates that legalizing drugs would save roughly $41.3 billion per year in government expenditure on enforcement of prohibition. Of these savings, $25.7 billion would accrue to state and local governments, while $15.6 billion would accrue to the federal government.
Approximately $8.7 billion of the savings would result from legalization of marijuana and $32.6 billion from legalization of other drugs.
The report also estimates that drug legalization would yield tax revenue of $46.7 billion annually, assuming legal drugs were taxed at rates comparable to those on alcohol and tobacco. Approximately $8.7 billion of this revenue would result from legalization of marijuana and $38.0 billion from legalization of other drugs.
Schulhofer & Friedman on Indigent Defense and Free Market Principles
Stephen Schulhofer and David D. Friedman (New York University (NYU) - School of Law and affiliation not provided to SSRN) have posted Reforming Indigent Defense How Free Market Principles Can Help to Fix a Broken System on SSRN. Here is the abstract:
Criminal defense systems are in a state of perpetual crisis, routinely described as "scandalous." Public defender offices around the country face crushing caseloads that necessarily compromise the quality of the legal representation they provide. The inadequacy of existing methods for serving the indigent is widely acknowledged, and President Obama has recently taken steps to give the problem a higher priority on the national agenda.
Proposals for improvement commonly stress the need for more resources and, somewhat less often, the importance of giving indigent defense providers legal independence from the government that funds them. Yet virtually every suggestion for reform takes for granted the feature of the current American system that is most problematic and least defensible — the fact that the indigent defendant is never permitted to select the attorney who will represent him.
The uniform refusal of American jurisdictions to allow freedom of choice in indigent defense creates the conditions for a double disaster. In violation of free-market principles that are honored almost everywhere else, the person who has the most at stake is allowed no say in choosing the professional who will provide him one of the most important services he will ever need. The situation is comparable to what would occur if senior citizens suffering from serious illness could receive treatment under Medicare only if they accepted a particular doctor designated by a government bureaucrat. In fact, the situation of the indigent defendant is far worse, because the government's refusal to honor the defendant's own preferences is compounded by an acute conflict of interest: the official who selects his defense attorney is tied, directly or indirectly, to the same authority that is seeking to convict the defendant.
We see this situation as the source of grave problems. As a corrective, we propose a free market for defense services, one that would, so far as possible, function in the same way that the existing market functions for affluent defendants who are able to retain their own counsel. Though we do not doubt the importance of resource levels, we see budgetary vulnerability and implicit conflicts of interest as inherent in any system where the defendant's attorney is chosen for him by the state. We seek to show that at any level of resources, freedom of choice for the indigent defendant can produce gains for both himself and for the public at large. We also discuss in detail how such a system could be implemented and why it can be expected to provide a practical and effective cure for many of the major ills of indigent defense organization.
November 30, 2010
Boudin on Children of Incarcerated Parents
Chesa Boudin has posted Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
This Article describes the vast population of children with incarcerated parents. The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights. It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest. The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.
Leo & Koenig on Kamisar
Richard A. Leo (pictured) and Alexa Koenig (University of San Francisco - School of Law; University of California, Berkeley - School of Law and University of San Francisco) have posted The Gatehouses and Mansions: Fifty Years Later (Annual Review of Law and Social Science, Vol. 6, pp. 323-339, 2010) on SSRN. Here is the abstract:
In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that came to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court's most important criminal-procedure decisions” ( White 2003–2004 ), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50 years of legal developments and social science research.
Opinion in case regarding prospective relief against local governments
The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index),where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individuals to challenge their inclusion in the Index, and neither California nor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create amechanism through which they could contest inclusion in the Index.The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its "policy or custom" caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.
Held: Monell’s "policy or custom" requirement applies in §1983 cases irrespective of whether the relief sought is monetary or prospective. Pp. 4–10.
(a) In Monroe v. Pape, 365 U. S. 167, this Court based its holding that municipal entities were not "person[s]" under §1983 on the provision’s legislative history, particularly Congress’ rejection of the so called Sherman amendment, which would have made municipalities liable for damages done by private persons " ‘riotously and tumultuously assembled,’ " id., at 188–190, and n. 38. Reexamining this legislative history in Monell, the Court overruled Monroe. It concluded that Congress had rejected the Sherman amendment, not because it would have imposed liability on municipalities, but because it would have imposed such liability solely based on the acts of others. The Court, on the basis of the statutory text and the legislative history, went on to explain what acts are the municipality’s own for purposes of liability. The Court held that "a municipality cannot be held liable" solely for the acts of others, e.g., "solely because it employs a tortfeasor," 436 U. S., at 691, but it may be held liable "when execution of a government’s policy or custom . . . inflicts the injury," id., at 694. Pp. 4–7.
(b) Section 1983, read in light of Monell’s understanding of the legislative history, explains why claims for prospective relief, like claims for money damages, fall within the scope of the "policy or custom" requirement. Nothing in §1983 suggests that the causation requirement should change with the form of relief sought. In fact, the text suggests the opposite when it provides that a person who meets §1983’s elements "shall be liable . . . in an action at law, suit in equity, or other proper proceeding for redress." Thus, as Monell explicitly stated, "local governing bodies . . . can be sued directly under §1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes" a policy or custom. 436 U. S., at 690. To find the "policy or custom" requirement inapplicable in prospective relief cases would also undermine Monell’s logic. For whether an action or omission is a municipality’s "own" has to do with the nature of the action or omission, not with the nature of the relief that is later sought in court. Pp. 7–8.
(c) Respondents’ arguments to the contrary are unconvincing. Pp. 8–9.
Reversed and remanded.
BREYER, J., delivered the opinion of the Court, in which all other Members joined, except KAGAN, J., who took no part in the consideration or decision of the case.
Transcript of argument in prison crowding case
The transcript from the oral argument in Schwarzenegger v. Plata is here.
November 29, 2010
Justice Sotomayor advises California on burden of proving harmless error
Argument transcript in delayed habeas case
The transcript in Walker v. Martin is here.
Argument transcript in case involving tolling of habeas time limits
The transcript in Wall v. Kholi is here.
November 28, 2010
"F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack"
From The New York Times:
PORTLAND, Ore. — A Somali-born teenager who thought he was detonating a car bomb at a packed Christmas tree-lighting ceremony downtown here was arrested by the authorities on Friday night after federal agents said that they had spent nearly six months setting up a sting operation.
. . .
The F.B.I.’s surveillance started in August 2009 after agents intercepted his e-mails with a man he had met in Oregon who had returned to the Middle East, according to a law enforcement official who described the man as a recruiter for terrorism. According to the affidavit, the man had moved to Yemen and then northwest Pakistan, a center of terrorism activity.
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American University - Washington College of Law,
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Georgia State University - College of Law,
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