December 23, 2010
Waldron on Torture, Suicide, and Natural Law
In natural law theory, "determinatio" is the process by which natural law is made into determinate positicve law. A lot of discussion of "determinatio" in natural law jurisprudence is just the repetition of tired formulas from Aquinas. In this paper, I try to bring the subject to life by considering the case that can be made for more more detailed elaboration of laws prohibiting (a) assisted suicide and (b) torture. I assume that "determinatio" can be a multi-step process by which we move first from a natural law ideal to a particular formulation of positive law and then from that particular positive law formulation to more precise formulations and applications. I assume also that the demand for greater and greater precision is not always healthy or wholesome in law. (a) John Finnis thinks this about the demand for more precise guidelines relating to possible prosecutions for assusted suicide in the House of Lords' last case: R. (on the application of Purdy) v DPP  1 A.C. 345. (b) I have argued elsewhere that the demand for more precise guidance concerning the application of the prohibition on torture is often vicious and unwholesome - as abusive interrogators demand a precise envelope whose boundaries they can push. In this paper, I explore why I do not agree with Finnis about (a) and why Finnis does not seem to be in wholehearted agreement with me about (b). I think that exploring these cross-cutting antagonisms casts useful light on all three topics: the law relating to assisted suicide, the law relating to torture, and the naturla law idea of "determinatio."
December 22, 2010
Joy on Safeguards Against Informant Perjury
Peter A. Joy (Washington University School of Law) has posted Constructing Systemic Safeguards Against Informant Perjury (Ohio State Journal of Criminal Law, Vol. 7, p. 677, 2010) on SSRN. Here is the abstract:
Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.
The focus on the ethical, and perhaps moral, obligations of Lawyer representing a potentially perjurious Client begs larger questions. Are there safeguards the prosecutor's office could employ to ensure that the trial prosecutor, who is focused on convicting Kingpin, has not been manipulated by Client or has not consciously or unconsciously supplied the facts necessary for Client to manufacture the testimony required to convict Kingpin? What criminal justice reforms would help to prevent or discredit such perjury and make a wrongful conviction less likely? These are some of the additional questions we should be exploring. In my comment, I first illustrate why focusing solely on defense counsel ethics is not wholly sufficient and next briefly discuss some criminal justice system reforms that would better safeguard the accused.
"Drunk driver who killed Angels' Nick Adenhart sentenced to 51 years in prison"
The L.A. Times has the story:
An Orange County judge handed down the sentence for Andrew Thomas Gallo, 23, on Wednesday morning.
. . .
Gallo had been convicted of driving under the influence three years before the crash and was still on probation when it happened.
When his blood-alcohol level was tested a couple of hours after the crash, it was 0.19%, more than twice the legal limit for driving, officials said.
Hughes on Innocence Unmodified
The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence. In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.” Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary—prioritizing “actual” innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all—innocent or guilty alike.
December 21, 2010
Said on the Terrorist Informant
A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.
ScotusBlog highlights Miranda petition
as one of its Petitions of the Day. The issue:
Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.
The petition and the Sixth Circuit's opinion are available at the site.
December 20, 2010
Risinger on the NAS Report and Error in Forensic Science
D. Michael Risinger (Seton Hall University School of Law) has posted Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
The notion of "error" and "error rates" is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.
Boyne on Prosecuting Low-Level Crime in Germany
Shawn Marie Boyne (Indiana University School of Law-Indianapolis) has posted Is the Journey from the 'In Box' to the 'Out Box' a Straight Line: The Prosecution of Low Level Criminality in Germany on SSRN. Here is the abstract:
The defining challenge facing German prosecution offices today is reconciling the tension that exists between prosecutors’ historical mandate to serve as “guardians of the law” and their institutional position as members of an institution with limited resources. During the past three decades, the tension between the prosecution service’s normative mission to objectively investigate and prosecute criminal activity and increasingly severe resource constraints has transformed the law and practice of German criminal procedure. Although German legal scholars have long championed the system’s commitment to restricting prosecutorial discretion, in recent years the scope of prosecutors’ discretionary decision-making authority has widened dramatically. This development is particularly stark with respect to low-level crimes where prosecutors perform a critical gate keeping role.
Since the mid-1970’s, prosecutors and judges have struggled to find ways to manage high criminal case loads while maintaining their fidelity to the core principles of an inquisitorial “truth” finding process. To prevent backlogs, German prosecutors have developed case processing processes that conserve resources and promote efficiency. In a world with finite resources, strategies that privilege case processing efficiency theoretically enable prosecution offices to reserve the full truth finding case investigation and prosecution process for the most serious cases. In this chapter I argue that, this drive for efficiency, when coupled with a corresponding increase in prosecutorial discretion, currently threatens to irrevocably undermine the guiding principles of German criminal procedure.
December 19, 2010
Top-Ten Recent SSRN Downloads
|1||356||The Facade of FCPA Enforcement
Butler University College of Business,
Date posted to database: November 9, 2010
|2||310||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
|3||300||The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law
New York University School of Law Immigrant Rights Clinic,
Date posted to database: October 17, 2010
|4||289||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010
|5||252||Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts
Gray Proctor, Nancy J. King,
Fourth Circuit Court of Appeals, Vanderbilt University - Law School,
Date posted to database: November 11, 2010
|6||207||The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?
University of South Carolina - School of Law,
Date posted to database: October 11, 2010
|7||195||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010 [10th last week]
|8||194||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010
|9||191||Is the Rome Statute Binding on Individuals? (And Why We Should Care)
University of Nottingham School of Law,
Date posted to database: October 12, 2010
|10||158||And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System
Susan A. Bandes,
DePaul University - College of Law,
Date posted to database: October 5, 2010 [new to top ten]