May 7, 2011
Faure on the Economics of Criminal Liability for Oil Pollution
Michael G. Faure (University of Maastricht - Faculty of Law, Metro) has posted Criminal Liability for Oil Pollution Damage: An Economic Analysis (MARITIME POLLUTION LIABILITY AND POLICY - CHINA, EUROPE AND THE US, Chapter 10, pp. 161-192, Michael G. Faure, Han Lixin & Shan Hongjun, eds., Kluwer Law International, Alphen a/d Rijn, 2010) on SSRN. Here is the abstract:
This paper constitutes a chapter in a book on maritime pollution liability and policy in China, Europe and the U.S. and deals with criminal liability for oil pollution damage from an economic perspective. After an introduction first the economic theory of criminalisation is applied to oil pollution damage, discussing why criminal law may be needed for oil pollution damage. Next optimal sanctions for marine pollution are discussed, also paying attention to alternative sanctions such as restoration, forfeiture of illegal gains and confiscation. The question is also addressed whether there should be corporate criminal liability for oil pollution and criminal liability for oil pollution is also discussed from a practical perspective. Recent evolutions concerning ship source pollution in the EU are discussed as well as the well-known Erika case. Attention is also paid to the empirical evidence concerning the effectiveness of criminal law in preventing oil pollution damage.
Nadler & McDonnell on Moral Character, Motive, and Blame
Janice Nadler (pictured)(Northwestern University School of Law) and Mary-Hunter McDonnell have posted Moral Character, Motive, and the Psychology of Blame (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:
Blameworthiness, in the criminal law context, is conceived as the carefully calculated end product of discrete judgments about a transgressor’s intentionality, causal proximity to harm, and the harm’s foreseeability. Research in social psychology, on the other hand, suggests that blaming is often intuitive and automatic, driven by a natural impulsive desire to express and defend social values and expectations. The motivational processes that underlie psychological blame suggest that judgments of legal blame are influenced by factors the law does not always explicitly recognize or encourage. In this Article we focus on two highly related motivational processes – the desire to blame bad people and the desire to blame people whose motive for acting was bad. We report three original experiments that suggest that an actor’s bad motive and bad moral character can increase not only perceived blame and responsibility, but also perceived causal influence and intentionality. We show that people are motivated to think of an action as blameworthy, causal, and intentional when they are confronted with a person who they think has a bad character, even when the character information is totally unrelated to the action under scrutiny. We discuss implications for doctrines of mens rea definitions, felony murder, inchoate crimes, rules of evidence, and proximate cause.
May 6, 2011
Pennsylvania's Chief Justice attacks Federal Defender's role in state collateral proceedings in capital cases
Chief Justice Castille's concurring opinion in Commonwealth v. Spotz is here. In part:
[T]he cumulative effect of the Defender's strategy has taken a substantial and unwarranted toll on state courts. . . . The pleadings do not disclose or focus upon the primary cause of the delays, which very often is the prolix and abusive pleadings filed by the Defender in their many cases, as well as the Defender's ethically dubious strategies and activities in other Pennsylvania capital cases.
Slobogin on Dripps on the Substance-Procedure Relationship
Christopher Slobogin (Vanderbilt Law School) has this thoughtful post at Jotwell on Don Dripps' chapter entitled The Substance-Procedure Relationship in Criminal Law, in Philosophical Foundations of Criminal Law (Anthony Duff & Stuart Green eds., Oxford University Press, 2011).
May 4, 2011
Findley on Defining Innocence
The DNA exonerations of the past 20 years have heightened awareness of the problem of wrongful convictions. As the number of exonerations expands, and increasingly includes exonerations in cases with no DNA evidence, just what counts as an "exoneration," and who can legitimately claim to be "innocent," becomes increasingly important and controversial. The definitions are important for research and policy reasons, for they define the pool of cases that can be studied to learn about the causes of error and to generate reform proposals. They are also important at the individual case level, both for defining who is entitled to relief from a conviction, and the extent to which such individuals are entitled to reclaim their good names in full.
But innocence, it turns out, is a complex concept. The purity and simplicity of the story of the clear DNA exoneration continues to have power, but that story alone cannot sustain the Innocence Movement. It is too narrow. It fails to accommodate the vast majority of innocent people in our justice system. It fails to embrace innocence in its full complexity.
This article explores what "exoneration" and "innocence" mean in the criminal justice system today. It concludes that there are many standards of innocence, dependent on whether innocence is being identified for research or litigation purposes, and depending on the jurisdiction and nature of the proceedings. But it argues that, in the end, for virtually all purposes, innocence must be understood under the objective rules that have long governed the criminal justice system. In the end, under those rules, the presumption of innocence fully defines innocence, absent proof of guilt established beyond a reasonable doubt in court. This article thus argues for a fuller embrace of the constitutional values embedded in the presumption of innocence.
Laudan on Doubts about Reasonable Doubt
Larry Laudan (Instituto de Investigaciones Filosoficas, UNAM) has posted Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? on SSRN. Here is the abstract:
This paper diagnoses several of the liabilities of proof beyond a reasonable doubt, including its subjectivity, its ambiguity, and its presumed universal applicability across all crimes and all defendants. It argues further that the Supreme Court's repeated claims that this standard follows logically from an acknowledgement that false convictions are worse than false acquittals is an unsound inference. Finally, it proposes that future discussions of the standard of proof should take place in an environment in which detailed empirical information about the error rates at trial should be the engine driving the re-formulation of the standard of proof.
Bradley on Confrontation and Bryant
This article analyzes the recent Supreme Court decision in Michigan v. Bryant. It concludes that the dissent is correct in concluding that the victim’s statement in this case was primarily for the purpose of developing a case against the defendant, not to defuse an emergency, and consequently was “testimonial” and shouldn’t have been admitted into evidence. More importantly, it argues that the Supreme Court’s “testimonial/non-testimonial” misses the point of the Sixth Amendment and should be abandoned, in favor of an approach that focuses on the defendant’s need to cross-examine.
Clopton on Extraterritorial Application of Criminal Law
Zachary D. Clopton (United States Attorney's Office – Northern District of Illinois) has posted Bowman Lives: The Extraterritorial Application of U.S. Criminal Law after Morrison v. National Australia Bank (NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract:
The presumption against extraterritoriality declares that, unless a contrary intent appears, courts should presume that statutes apply only within the territory of the United States. Repeatedly during the 20th Century, the Supreme Court applied the presumption to civil statutes. Over the last two decades, the Supreme Court has revisited the presumption in civil cases and issued decisions that appear to strengthen the presumption’s bite. The presumption against extraterritoriality supposedly applies in criminal cases as well, although the Supreme Court has not spoken to this issue in over a century. In 1922, the Court decided United States v. Bowman, professing an allegiance to the presumption for criminal cases, although it held that the criminal prohibition on defrauding government-owned entities should apply extraterritorially. Courts of appeals routinely cite favorably to Bowman in purportedly extraterritorial criminal cases. Yet these decisions tend to apply laws extraterritorially in a manner that goes beyond Bowman’s express holding. Moreover, while these courts of appeals frequently cite the civil-law precedents in their criminal decisions, the outcomes of these cases suggest that criminal law is treated differently – these courts have tended to expand the extraterritorial application of U.S. criminal law, in contrast to the trend of Supreme Court decisions in civil cases.
The Supreme Court recently returned to the presumption in the civil case Morrison v. National Australia Bank. Morrison forcefully asserted the presumption against extraterritoriality in the context of U.S. securities laws, but its “real motor” was the new rule that the presumption must be applied in light of the “focus” of the statute. The majority opinion asserted that, for purposes of assessing extraterritoriality, the court must look only at those facts comprising the “focus” of the statute. Although this view appears to strengthen the presumption and thus expand the range of situations insulated from U.S. law – territorial connections that are relevant to the case but outside the statute’s “focus” are insufficient to avoid the presumption – the “focus” inquiry opens a new path to reconcile Bowman and its progeny with the original presumption. If adopted, this approach could be justified by the same factors that the Supreme Court has invoked to justify its criminal- and civil-law pronouncements on the presumption against extraterritoriality.
May 3, 2011
Leo wins Guggenheim Fellowship
Richard Leo (University of San Francisco School of Law) has won a Guggenheim Fellowship for a book he is writing (with Tom Wells) on the history of the problem of wrongful conviction in America and the rise of the innocence movement, which is tentatively entitled, The Innocence Revolution.
Moriarty on Plea Bargaining and Competent Representation
Jane Campbell Moriarty (University of Akron School of Law) has posted 'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex obligations of criminal defense attorneys to investigate their cases and give competent advice to their clients in the shadow of proffers and pleas. It concludes that attorneys in this role face an almost insoluble dilemma and hopes that the Proposed Standards provide an important first step to resolving it.
May 2, 2011
Melcher on Comstock and the Adam Walsh Act
Ryan K. Melcher has posted There Ain’t No End for the ‘Wicked’: Implications of and Recommendations for § 4248 of the Adam Walsh Act after United States v. Comstock (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
The civil commitment of “sexually dangerous persons” is not a new concept. States first began doing so in the mid-20th century, based then on “sexual psychopathy.” Since that time, concepts of “sexually dangerous predators” have evolved and the laws have evolved with them. It was not until 2006, however, that Congress created federal laws to mirror those of the States. The Adam Walsh Act, named after the son of television host John Walsh, was created to “protect children” and “make communities safer.” The Supreme Court in United States v. Comstock held the Act constitutional under the Necessary and Proper Clause. While Congress had good intentions behind the Act, Comstock’s ruling created a veritable “blank check” for Congress and paved the way for exorbitant costs to the States, in a time when fiscal pressures make simply implementing the law nearly impossible. This Note explores the rationale behind Comstock and the Adam Walsh Act, highlights the damaging implications behind the decision and the good intentions of Congress, and makes recommendations for the future of both the case and the Act itself.
Huigens on Provocation
To take provocation at face value – that is, to plead and prove it as a manslaughter offense, as it is defined in most criminal codes – seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter, because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, then set out to prove a lesser crime than the crime for which it already has a conviction? However, this article will demonstrate that we are obligated to treat provocation manslaughter as an offense as a normative-theoretical matter, and that it is possible to do this as a practical matter.
The argument is a conceptual argument in the normative theory of punishment. The best theoretical description of provocation manslaughter is as an offense, and not as a partial justification defense or as a partial excuse premised a partial loss of responsible agency. Once we distinguish three things that are usually conflated – intentions, intentional actions, and intent elements – we can see that provocation manslaughter depends on proof of a particular intentional act of killing, and that this proof brings a particular set of the defendant’s intentions to the fore for purposes of determining his desert for punishment. This set of intentions is different from the set of intentions that proof of a killing with intent, murder, brings to the fore for purposes of determining desert. Regardless of any reference to an intent to kill in the definition of provocation manslaughter, this kind of manslaughter is logically and normatively different from, and exclusive of, murder – in just the same way that a reckless manslaughter is. If a reckless manslaughter is an offense, then provocation manslaughter is an offense as well – and should be proved as one – because there is no conceptual difference between the two kinds of manslaughter, relative to the other homicides.
In the normative theory of punishment, a correct description of criminal law is taken to be a reason to make the law so as a positive matter. This article invokes that principle. But we have other reasons to take provocation at face value. For historical reasons that are beyond the scope of this article, one of the homicide offenses came to be at odds with modern proof procedures under prevailing court rules and constitutional doctrine. We chose, in effect, to deal with this conflict by treating provocation manslaughter as a defense instead of as an offense. In doing so, however, we took the easy way out. We failed to live up to the rule of law values that require proof of offenses beyond a reasonable doubt. This article shows how we can treat provocation manslaughter as an offense as a practical matter. We should adopt a set of rules that provide discovery to the prosecution, that obligate it to make a prima facie case on pain of a mistrial and bar to reprosecution, and that reverse the ordinary order of jury deliberations so that provocation manslaughter is considered first and murder is considered second – or not at all, if the jury has convicted the defendant of provocation manslaughter. These rules provide an incentive for the prosecution to prove provocation manslaughter, and a disincentive to sandbagging that proof in an attempt to obtain a murder conviction instead. More importantly, the proposed rules enable us to live up to our rule of law ideals – including the principle of lenity as well as the requirement of proof beyond a reasonable doubt – in a way that treating provocation as a partial defense does not. If we take provocation at face value, then we can better preserve criminal law’s constitutional principles, theoretical consistency, and moral integrity.