Saturday, January 8, 2011
From The New York Times:
Thirty years after Cornelius Dupree Jr. was imprisoned for rape and robbery, prosecutors in Dallas declared him innocent on Monday in light of new DNA evidence. Mr. Dupree, 51, has served more years in a Texas prison for a crime he did not commit than any of the other 41 people exonerated in the state in recent years.
Daphne Barak-Erez (pictured) and David Scharia (Tel Aviv University - Buchmann Faculty of Law and Counter Terrorism Committee Executive Directorate UN Security Council) have posted Freedom of Speech, Support for Terrorism, and the Challenge of Global Constitutional Law (Harvard National Security Journal, Vol. 2, 2011) on SSRN. Here is the abstract:
In the recent case of Holder v. Humanitarian Law Project, the Supreme court of the United States ruled that a criminal prohibition on advocacy carried out in coordination with, or at the direction of, a foreign terrorist organization is constitutionally permissible: it is not tantamount to an unconstitutional infringement of freedom of speech.
This Article aims to understand both the decision itself and its implications in the context of the global effort to define the limits of speech that aims to support or promote terrorism. More specifically, the Article compares the European approach, which focuses on whether the content of the speech tends to support terrorism, with the U.S. approach, which focuses on criminalizing speakers who have links to terrorist organizations. Both approaches are evaluated against the background of the adoption of Resolution 1624 by the United Nations Security Council in 2005, which called on states to prohibit by law incitement to commit terrorist acts. The Article then follows the implementation of the resolution by comparing the traditional American resistance to direct prohibitions of incitement that fail to meet the standard set by the Brandenburg v. Ohio precedent and European legislation that is open to such limitations subject to balancing tests. It then evaluates the potential advantages and threats each option pose to freedom of speech by examining them from the perspective of the controversy of candor within legal decision-making. Based on this analysis, the Article also articulates the challenge of balancing international norms regarding the limits of freedom of speech with different and even conflicting domestic traditions regarding the scope of protection of freedom of speech.
Friday, January 7, 2011
Frank O. Bowman III (University of Missouri School of Law) has posted Prolegomenon on the Status of the Hopey, Changey Thing in American Criminal Justice (Federal Sentencing Reporter, Vol. 23, No. 2, 2010) on SSRN. Here is the abstract:
This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008.
Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of the strictures of the Guidelines has begun to prove correct. However, the statistics also reveal that Booker has almost certainly increased geographical disparity in federal sentencing, and the available evidence suggests that inter-judge disparity has increased as well.
Thursday, January 6, 2011
The question is suggested by this CNN report:
(CNN) -- A now-retracted British study that linked autism to childhood vaccines is an "elaborate fraud," according to a medical journal -- a charge the physician behind the study vigorously denies.
The British medical journal BMJ, which published the results of its investigation, concluded Dr. Andrew Wakefield misrepresented or altered the medical histories of all 12 of the patients whose cases formed the basis of the 1998 study -- and that there was "no doubt" Wakefield was responsible. The journalist who wrote the BMJ articles said Thursday he believes Wakefield should face criminal charges.
However, Wakefield said his work has been "grossly distorted." Speaking on CNN's "Anderson Cooper 360," he said Wednesday he is the target of "a ruthless, pragmatic attempt to crush any attempt to investigate valid vaccine safety concerns."
Benjamin L. Berger (University of Victoria - Faculty of Law) has posted The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination (University of Toronto Law Journal, Vol. 61, No. 4, 2011) on SSRN. Here is the abstract:
Modern constitutional theory abhors the exception. In much contemporary constitutional thought the exercise of state power unbounded by or contrary to the law is nothing other than the failure of justice in the constitutional order. Yet it has not always been so. For a substantial period of common law legal history the exercise of judgment despite the law was viewed as essential to seeing that justice was done. After excavating the role of the positive exception in the genealogy of our constitutional imagination, this paper argues that attention to the imaginative architecture of our criminal justice system discloses the continued presence of the concept of the positive conscience-based exception as a dimension of modern constitutionalism. This paper looks at three features of the Canadian criminal justice system – jury nullification, the royal prerogative of mercy, and prosecutorial discretion – as abiding expressions of the idea that law and reason alone are insufficient to give full expression to our sense of state justice. The persistence of these sites for conscience-based decisions unbounded by the law ought to trouble prevailing theories modern constitutionalism based on the preeminence of reason-driven proportionality in which all decisions must be contained and regulated by the reason of law. Without denying the dangers of the exception, I suggest that the conscientious decision made against or in spite of the law remains an important component of the way in which we imagine criminal justice in the Canadian constitutional order. In the course of making this argument, this paper also advances the view that the criminal law is something of a crucible for constitutional theory. A constitutional theory that does not achieve “fit” with the practices of criminal law has missed something important about our legal and political culture. Accordingly, this paper is also an exercise in disciplining constitutional theory with careful attention to the workings of the criminal justice system.
Wednesday, January 5, 2011
The story is in the New York Times:
Facing questions over whether crime statistics have been manipulated to cast the New York Police Department in a more positive light, the police commissioner, Raymond W. Kelly, announced the creation of a panel consisting of former federal prosecutors to review the department’s internal crime-reporting system.
. . .
Critics have long charged that the department’s crime data has been undermined by a network of incentives that in many cases prompt those responsible for assessing, reporting and recording crimes — from patrol officers to precinct commanders — to downgrade offenses or discourage people from filing complaint reports.
Tuesday, January 4, 2011
There is a new vision of home that is beginning to gain ascendance, at least from the point of view of legal actors and doctrine in the criminal justice system. Under this vision, home is not always, or even usually, “sweet.” Under this new vision, the home is not a safe haven, inviolate and inviolable except for, perhaps, a burglar. Under this new vision, the home is a place of violence. And not violence perpetrated by intruders, but by co-habitants. The home, notionally a site of security, a place “safe” from outside intervention, now functions as a place that enables abuse, assault, and rape. It is the exemplary place of coercion. The home, in this re-vision, has metastasized into the scene of the crime. In short, home has become “where the crime is.”
Monday, January 3, 2011
"Abolish Drunk Driving Laws / If lawmakers are serious about saving lives, they should focus on impairment, not alcohol"
Austin Police Chief Art Acevedo wants to create a new criminal offense: “driving while ability impaired.” The problem with the current Texas law prohibiting “driving while intoxicated” (DWI), Acevedo explained to the Austin-American Statesman in October, is that it doesn’t allow him to arrest a driver whose blood-alcohol content (BAC) is below 0.08 percent unless there’s additional evidence of impairment.
Capital mitigation specialists are critical members of the capital defense team. Their job involves investigating the life history of the defendant in order to develop a comprehensive defense against execution at the sentencing phase of a capital trial. To develop the life history of the defendant, capital mitigation specialists must uncover as much information as they can about the defendant from the defendant’s family, friends, and virtually any other person in the defendant’s life. This Article examines the role of mitigation specialists who have formal social work training, exploring how legal ethics and world views they experience on capital defense teams interact with ethical norms and world views they learn as social workers. By understanding how ethical norms and world views from law and social work interact, this Article strives to ensure that interdisciplinary capital defense teams anticipate and resolve ethical conflicts in order to safeguard the capital defendant’s constitutional right to effective assistance of counsel.
"Strange Things Happening With the Exclusionary Rule: The Introduction of Case-by-Case Balancing After Herring v. United States"
Orin Kerr has this interesting post at The Volokh Conspiracy. The beginning:
When the Supreme Court handed down Herring v. United States, 555 U.S. 135 (2009), a case about the Fourth Amendment’s exclusionary rule, there was an interesting blog debate about how much it mattered. Tom Goldstein thought it was a revolutionary case; I thought it was not. Almost two years later, I think it’s fair to say that the disagreement has been shared by lower court judges. Some courts have interpreted Herring as changing very little. Others have seen it as drastically reshaping the exclusionary rule. I wanted to flag one of the latter readings of Herring that I think is pretty clearly wrong, but that some courts have adopted or strongly suggested: Weighing costs and benefits of the exclusionary rule on a case-by-case basis.
Sunday, January 2, 2011
The story is in the New York Times:
Perched above the prison yard, five cameras tracked the play-acting prisoners, and artificial-intelligence software analyzed the images to recognize faces, gestures and patterns of group behavior. When two groups of inmates moved toward each other, the experimental computer system sent an alert — a text message — to a corrections officer that warned of a potential incident and gave the location.
The computers cannot do anything more than officers who constantly watch surveillance monitors under ideal conditions. But in practice, officers are often distracted. When shifts change, an observation that is worth passing along may be forgotten. But machines do not blink or forget. They are tireless assistants.
|1||367||The Facade of FCPA Enforcement
Butler University College of Business,
Date posted to database: November 9, 2010
|2||316||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||302||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010
|4||277||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
|5||221||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
|6||200||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010
|7||198||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010
|8||196||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
|9||170||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
|10||159||Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy
Barak Y. Orbach, Kathleen S. Callahan, Lisa M. Lindemenn,
University of Arizona, University of Arizona - James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: October 23, 2010