July 2, 2011
Radice on Prisoners' Reentry into Society
Joy Radice (New York University (NYU) - School of Law) has posted Administering Justice: Removing Statutory Barriers to Reentry (University of Colorado Law Review, Vol. 83, 2012) on SSRN. Here is the abstract:
After years of swelling prison populations, the reentry into society of people with criminal convictions has become a central criminal justice issue. Scholars, advocates, judges, and lawmakers have repeatedly emphasized that, even after prison, punishment continues from severe civil penalties that are imposed by federal and state statutes on anyone with a conviction. To alleviate the impact of these punishments, they have increasingly endorsed state legislation that creates certificates of rehabilitation. Seven states offer these post- conviction certificates, and six others proposed such legislation in 2011. Many look to New York’s statute as the best model because it is the oldest and most robust. Yet no article has examined New York’s experience with Certificates of Rehabilitation.
This Article draws lessons from the fifty-year history of New York’s Certificates of Rehabilitation to describe features of an ideal administrative mechanism that removes statutory barriers to reentry. I argue that a model Certificate of Rehabilitation statute will have a strong enforcement mechanism and clear directives for administering authorities. Successful implementation also requires committed administrative leadership and an effective means for making certificates accessible to the population they serve. Certificates of Rehabilitation do not erase a person’s criminal history, but they offer legal and social recognition that after a criminal conviction, a person deserves a second chance.
Lippard on Hypnosis and Voluntary Action
The Model Penal Code identifies, "conduct during hypnosis or resulting from hypnotic suggestion," as an exception to a, "voluntary act," that is a requirement for responsibility for a crime, on the basis that such cases are involuntary and thus not the responsibility of the actor involved. This paper argues that this exception is not sufficiently well grounded in experimental evidence or known instances of criminal activity under the influence of hypnosis to justify such a general exception in the law, and that allowing such an exception has the potential to create a moral hazard by making hypnosis an excuse for criminal conduct. While such cases may occur, the circumstances under which it may occur are narrower than the exception describes. This paper summarizes the empirical evidence from studies of hypnosis and past cases in the criminal law where hypnosis was alleged to have produced involuntary criminal actions.
Siegel on the Supreme Court and Juvenile Sentencing
David M. Siegel (New England Law - Boston) has posted The Supreme Court and the Sentencing of Juveniles in the United States: Reaffirming the Distinctiveness of Youth (Child and Adolescent Psychiatry Clinics of North America, Vol. 20, No. 3, pp. 431-445, July 2011) on SSRN. Here is the abstract:
In the 21st century’s first decade, the U.S. Supreme Court has set two key constitutionally-based limits to punishment of juveniles. In Roper v. Simmons (2005) the Court barred imposition of the death penalty for crimes committed by juveniles, and in Graham v. Florida (2010) it forbade life imprisonment without possibility of parole (LWOP) for juveniles who commit non-homicide offenses. Both decisions held these penalties violated the Eight Amendment’s prohibition on cruel and unusual punishment because they were disproportionate given juveniles’ distinctive cognitive, psychosocial and neuroanatomical characteristics. Roper and Graham reflect two decades’ long trends, one legal and one clinical, whose interaction will control the legal system’s approach to juvenile justice for some time. Since 1980 more children, at younger ages, became legally susceptible to much harsher punishments (through trial as adults), yet over the same period clinical skepticism concerning the cognitive, psychosocial, and neuroanatomical development of youth that was required for the legal process, and the appropriateness of these sentences, grew. In Roper and Graham the Court resolved this paradox by siding clearly with clinicians. The Court’s adoption of a developmental model of culpability, with heavy reliance on cognitive psychological research concerning risk-taking, susceptibility to peer pressure and mutability of character, as well as MRI and fMRI studies of adolescent and young adult brain development, may produce future challenges to lengthy juvenile sentences, to broad provisions allowing transfer of juveniles for trial as adults and even possibly to younger juveniles’ competence to stand trial.
Green on Developing Standards for Prosecutors and Defense Lawyers
Bruce A. Green (Fordham University School of Law) has posted Developing Standards of Conduct for Prosecutors and Criminal Defense Lawyers (Hastings Law Journal, Vol. 62, p. 1093, 2011) on SSRN. Here is the abstract:
In the Fall of 2010, in conjunction with the ABA Criminal Justice Section, more than a dozen law schools hosted conversations among lawyers, academics and judges regarding prosecutors’ and defense lawyers’ professional conduct. The conversations took, as their starting point, proposed revisions to the ABA Criminal Justice Standards for Prosecution and Defense Functions. As background to the discussions, law professors prepared sixteen papers addressing different aspects of lawyers’ professional conduct in criminal cases. Two journals, the Hastings Law Review and the Hastings Constitutional Law Quarterly, are publishing them. This foreword to the collections begins by offering some thoughts on the nature of the questions of professional conduct encountered by prosecutors and defense lawyers and the value of developing sets of national standards like those of the ABA to offer these lawyers guidance. It also describes the project that led to the development of the sixteen articles and the objectives of the project, and offers some reflections about the value of viewing individual Standards in relationship to the underlying law, lawyers’ differing roles, and each other.
July 1, 2011
Taslitz on Prosecutors and the Press
Andrew E. Taslitz (Howard University - School of Law) has posted The Incautious Media, Free Speech, and the Unfair Trial: Why Prosecutors Need More Realistic Guidance in Dealing with the Press (Hastings Law Journal, Vol. 62, No. 5, 2011) on SSRN. Here is the abstract:
The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience's negative emotions while compromising their critical faculties. Audience members thus are enraged at accused offenders and ill-equipped to judge the accuracy and completeness of media crime stories. All media in such cases therefore raise the substantial risks that the proposal prohibits. On the other hand, prosecutors' commentary to the press serves important free speech and political purposes, which this Article details. This Article weighs this balance to come up with an alternative series of guiding ethical principles, including, centrally, the principle that the prosecutor's statements shall not aggravate the unavoidable risks to trial fairness. The remaining principles detail how to give this non-aggravation rule greater specificity in channeling prosecutors' ethical decision making in communicating with the media.
Moohr on Strengthening Federal Mens Rea Standards
Geraldine Szott Moohr (University of Houston Law Center) has posted Playing with the Rules: An Effort to Strengthen the Mens Rea Standards of Federal Criminal Laws (Journal of Law, Economics and Policy, Forthcoming) on SSRN. Here is the abstract:
This essay, focusing on regulatory and white collar crimes, reviews the role of the current mens rea standards in the federal trend to overcriminalize. In the federal system, the combination of passing more criminal laws and deferential judicial interpretation has, over time, weakened the role of mens rea in determining guilt. Strengthening the mens rea standards so the element properly identifies those who merit punishment would eliminate one cause of overcriminalization. In three parts, this article reviews the congressional propensity to criminalize conduct, reviews the significance of mens rea in criminal law doctrine, and analyzes new proposals aimed at strengthening mens rea standards.
Owens on the Temperance Movement and Market-Based Violence
Emily Greene Owens (Cornell University) has posted The Birth of the Organized Crime? The American Temperance Movement and Market-Based Violence on SSRN. Here is the abstract:
Economic theory and anecdotal evidence suggest that the absence of formal contract enforcement increases systemic, or market-based, violence in illegal markets. Lack of substantial variation in market legality has prevented empirical evaluation of the strength of this association. Using a state-level panel of age-specific homicide rates between 1900 and 1940, I demonstrate that criminalization of alcohol markets led to a compression of the age distribution of homicide victims. Specifically, homicide rates for individuals between the ages of 20 and 30 increased relative to homicide rates for individuals under 20 and over 30. The compression of the age distribution of homicide victims was most evident in northern states and in states with large immigrant and urban populations. Using modern homicide data, I show that this age specific change in homicide rates is consistent with an increase in systemic violence, supporting the argument that the temperance movement contributed to the rise of organized crime in the United States. Banning the commercial sale of alcohol appears to have had a protective effect for children and mature adults, but this came at the expense of increasing the rate of violence among young adults.
Harris on Police Reform and the Relationship Between Prosecutors and Police
David A. Harris (University of Pittsburgh - School of Law) has posted The Interaction and Relationship between Prosecutors and Police Officers in the U.S., and How this Affects Police Reform Efforts (THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, Erik Luna and Marianne Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
This chapter, part of a larger effort to examine the prosecutorial role in different legal systems, examines the interaction and relationship between American prosecutors and police departments, and the consequences of these arrangements for police misconduct and efforts to reform police agencies. It begins with a description of how these disparate but interlocking parts of the American criminal justice system function together, with particular emphasis on two signal characteristics of the American prosecutorial function: the two-tiered (national and state) nature of prosecution in the U.S., and the popular election of the vast majority of American prosecutors at the state level. With these characteristics in mind, the chapter then describes their implications for the issue of police misconduct and suggests possibilities for reforming deficient police practices. The potential for police reform through the efforts of prosecutors may appear bleak, but a relatively new federal statute has begun to make a difference. This new law, known as the, “pattern or practice,” statute, holds the key to making progress in American police practices.
June 30, 2011
Wittlin on Extrapolating from Jurors to Juries
Social scientists have used mock juror studies to produce a vast body of literature showing how different variables influence juror decision-making. This paper presents a computer model that extrapolates findings about jurors to juries, showing how variables of interest affect the decisions not only of individuals but also of deliberative bodies. The computer model simulates jurors from a specified community, imputes initial votes to them conditional on a user-specified model, and uses Robert MacCoun’s new “social burden of proof” framework to predict the likelihood that the jury will come out for either side, given those initial votes. The paper then demonstrates the usefulness of the model by applying it to the Cultural Cognition Project’s study of the factors that influence the verdict in acquaintance rape cases. I argue that by extrapolating findings about jurors to juries, this model could prove useful to prosecutors, policy-makers, and legal scholars.
MacCoun on the Dutch Cannabis Experience
Robert MacCoun (University of California, Berkeley - Jurisprudence and Social Policy Program) has posted What Can We Learn from the Dutch Cannabis Coffeeshop System? on SSRN. Here is the abstract:
Aims: To examine the empirical consequences of officially tolerated retail sales of cannabis in the Netherlands, and possible implications for the legalization debate.
Methods: Available Dutch data on the prevalence and patterns of use, treatment, sanctioning, prices, and purity for cannabis dating back to the 1970s are compared to similar indicators in Europe and the USA.
Results: The available evidence suggests that the commercialization of cannabis probably increased the prevalence of use, but only modestly, and it does not appear to encourage escalation into heavier use or the use of other drugs.
Conclusions: Perhaps because the Dutch maintain a prohibition at the production level, prices have remained high. This may have kept consumption lower than what might be expected in an unrestricted market. Thus, the Dutch system serves as a nuanced alternative to both full prohibition and full legalization.
Uphoff on Physical Evidence of Cime and the ABA Standards
Rodney J. Uphoff (University of Missouri School of Law) has posted The Physical Evidence Dilemma: Does ABA Standard 4-4.6 Offer Appropriate Guidance? (Hastings Law Journal, Vol. 62, p. 1177, 2011) on SSRN. Here is the abstract:
Since 1966, when criminal defense lawyer Richard Ryder was disciplined for retaining physical evidence that connected his client to a bank robbery, lawyers and courts have struggled with the ethical dilemma of how defense lawyers should deal with physical evidence that potentially incriminates one of their clients. When a lawyer takes possession of an evidentiary item, must she always turn it over to the authorities, as required by most courts that have addressed this dilemma? Or, can defense counsel return the evidence to the source from whom counsel received it as recommended by Standard 4-4.6 of the ABA Criminal Justice Standards for Prosecution and Defense Functions?
This Article explores three scenarios that present variations of the physical evidence conundrum and explores the extent to which existing authority provides clear guidance when lawyers find themselves wrestling with a physical evidence quandary. The Article concludes that Standard 4-4.6’s more nuanced return-to-the-source rule strikes a better balance between defense counsel’s duty as an officer of the court and her duties as a zealous advocate than the mandatory turnover rule championed by most courts and by section 119 of Restatement (Third) of the Laws Governing Lawyers. Finally, the Article urges those revising Standard 4-4.6 to retain its basic approach, but to address some of the weaknesses of the Standard.
Criminal Liability for Unusual Art Forger? (Kolber)
Originally posted to Prawfs:
According to this NYT article, Mark Landis has repeatedly forged artwork and presented it to museums as the real thing. The tricky issue for legal scholars is that he donates his paintings:
Mr. Landis — often under his own name, though more recently as Father Scott or as a collector named Steven Gardiner — has indeed done a lot of traveling over the past two decades, but not for the church. He has been one of the most prolific forgers American museums have encountered in years, writing, calling and presenting himself at their doors, where he tells well-concocted stories about his family’s collection and donates small, expertly faked works, sometimes in honor of nonexistent relatives.
Unlike most forgers, he does not seem to be in it for the money, but for a kind of satisfaction at seeing his works accepted as authentic. He takes nothing more in return for them than an occasional lunch or a few tchotchkes from the gift shop. He turns down tax write-off forms, and it’s unclear whether he has broken any laws. But his activities have nonetheless cost museums, which have had to pay for analysis of the works, for research to figure out if more of his fakes are hiding in their collections and for legal advice. (The Hilliard said it discovered the forgery within hours, using a microscope to find a printed template beneath the paint.)
Does anyone want to take a stab at his criminal liability in the comments, assuming the allegations are true? The article states that he received an "occasional lunch or a few tchotchkes," but you might also comment on his liability in cases where he received nothing at all. For example, is this criminal mischief?
June 29, 2011
Turkay on Evidence Disclosure and Severity of Punishment
The relationship between legal offenses and punishment is well studied by scholars of sociology, economics and law. Economists contend that punishment is a cost of committing an offense, hence an increase in the severity of punishments should decrease incentives to commit legal offenses. And the efficiency of legal punishments are studied generally from this perspective: giving efficient incentives to commit legal offense. This paper studies the relationship between punishment and evidence disclosure in a game theoretical model. A defendant is trying to persuade a judge by presenting evidence to take a favorable legal action rather than less favorable ones on his case. I show that the equilibrium disclosure of the defendant is not affected by a change in the scale of legal actions when there is no uncertainty on how the judge evaluates evidence. With uncertainty, however, the defendant can be induced to disclose more information by decreasing the severity ratio of the most unfavorable legal action to the most favorable one. This shows that in the more realistic case of uncertainty the severity of punishments has an effect on evidence disclosure and efficiency of punishment schedule should be analyzed by internalizing its effect on evidence disclosure as well.
Slobogin on Comparative Empiricism and Police Investigative Practices
Christopher Slobogin (Vanderbilt Law School) has posted Comparative Empiricism and Police Investigative Practices on SSRN. Here is the abstract:
Comparative empiricism is an empirical assessment of the relative effectiveness of different nations’ regulatory regimes. In the law enforcement context, this type of assessment might be the only realistic means of determining the combination of mechanisms that best protects against government over-reaching without unduly stymying good police-work. Domestic research that attempts to explore differing regulatory approaches either occurs in experimental settings that undermine generalizability or is constrained by national laws that prohibit or limit the ability to manipulate investigatory rules. In contrast, the significant country-by-country differences in approaches to police regulation, combined with the relatively consistent demands of police work across countries, provide a naturalistic setting for testing the effectiveness of a wide array of rules. In particular, comparative empirical work that uses the same metric for gauging effectiveness – this article proposes “hit rates” for searches and seizures and confession and clearance rates for interrogations – can provide a unique source of information to policymakers. After describing the law of search and seizure and interrogation in four European countries, Australia and the United States, this article examines the newest research studying the effects of these rules and lays out an empirical agenda.
Works-in-progress roundtable on criminal punishment
The formal call for submissions will come out later this summer for a works-in-progress roundtable to be held on the afternoon of Oct. 27 at the ABA-AALS joint conference "Reducing Our Reliance on Incarceration," October 27-28, in D.C. Those with questions now may contact Giovanna Shay at email@example.com.
The Experiential Gap Between Tort and Criminal Law (Kolber)
Tort law pays quite a bit of attention to bad experiences. Pain and suffering are taken seriously, both in terms of actual doctrine (we are instructed to compensate individual plaintiffs for the amount of pain and suffering they experience) and our justifications of doctrine (to provide corrective justice one must compensate for tortiously caused pain and suffering and to appropriately deter bad behavior, we need to consider the experiential harms those behaviors are likely to cause).
Granted, it is difficult to identify physiological markers of current or past experiences like pain and suffering, so it is not surprising that tort law often resorts to rough proxy measurements (by considering, for example, whether plaintiffs were in a zone of danger or had physical manifestations of distress). These inexact proxies for bad experiences reduce the likelihood that litigants will invent or exaggerate their symptoms. But at least in tort contexts, the law purports to care about individualized measurements of harm. If a person is falsely imprisoned, he can sue for the amount of harm that he experienced. There is no general formula that converts objective measurements, like the number of hours falsely imprisoned and the dimensions of confinement, into amounts of compensation (see here at 1574).
Though we frequently fail to recognize it, experiences also matter in criminal contexts. Technologies better able to assess experience can help us decide when a crime occurred, how blameworthy the perpetrator was, and how much punishment he should receive. If we can measure the harm of, say, false imprisonment to individual tort plaintiffs (who have incentives to lie), then we can calculate the severity of confinement experienced by particular prisoners. Moreover, we usually say that criminal defendants are entitled to more process than tort plaintiffs, not less. While we presumably don’t want to spend the money to make such assessments of prisoners, we should not pretend that rough subjective assessments are impossible: they just cost more than we are willing to spend.
June 28, 2011
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which links to papers and opinion below:
- Williams v. Illinois: Whether the Court should grant certiorari to review the Illinois Supreme Court's judgment that a testifying expert's reliance on the results of DNA analysis conducted at a private laboratory did not implicate the Confrontation Clause because references to the data generated by non-testifying analysts was offered not for the truth of the matter asserted, but rather for the non-hearsay purpose of explaining the basis of the expert's own, independent opinions.
Subjective Experience and the Federal Sentencing Guidelines (Kolber)
Originally posted to Prawfsblawg. Incidentally, the bleg at the end of this post is still a live one:
In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment. I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration. For example, the 2009 federal sentencing guidelines state that: “Age (including youth) is not ordinarily relevant in determining whether a departure is warranted,” U.S. Sentencing Guidelines Manual § 5H1.1 (2009); “[m]ental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted,” unless they affect culpability, id. § 5H1.3; and “[p]hysical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted,” id. § 5H1.4.
Just a few months ago, however, amendments to the guidelines took effect and now make it easier for judges to consider such offender characteristics. As I point out in this article (p. 638 (UPDATED)), the 2010 Federal Sentencing Guidelines state that: “Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.” U.S. Sentencing Guidelines Manual § 5H1.1 (2010) (emphasis added). Similar revisions were made to provisions covering other offender characteristics, including their “[m]ental and emotional conditions,” id. § 5H1.3, and “[p]hysical condition or appearance,” id. § 5H1.4.
I'm not suggesting that the guidelines were amended in order to allow judges to better take subjective experience into account. Nevertheless, I think that's a side effect of the amendments. Incidentally, if you know of any active cases that clearly or dramatically implicate concerns about the differential ways in which offenders experience punishment (like the recent case of a 6'9'', 500+ pound Dutch "giant"), I'd love to hear about them by email.
June 27, 2011
Bowers on Prosecutorial Caseloads
Joshua Bowers (University of Virginia (UVA), School of Law) has posted Physician, Heal Thyself: Discretion and the Problem of Excessive Prosecutorial Caseloads, a Response to Adam Gershowitz and Laura Killinger (Northwestern University Law Review Colloquy, Forthcoming) on SSRN. Here is the abstract:
In a forthcoming article, entitled "The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants," Adam Gershowitz and Laura Killinger identify and explore an almost unconsidered problem - excessive prosecutorial caseloads. In this response, I flag two significant shortcomings with their otherwise valuable contribution. First, the authors overstate the perceived problem. Specifically, their data do not demonstrate either endemic excessive prosecutorial caseloads or consequent harm to defendants’ interests. Second, the authors may miss the root problem altogether. Specifically, they fail to consider that excessive prosecutorial caseloads are partially a product of prosecutors’ inadequate exercise of charging discretion. On this reading, the caseload burden is more symptom than pathology, and the authors’ proposed solution - to better fund prosecution offices - may serve only to generate still higher prosecutorial caseloads.
Ferzan on Self-Defense, Permissions, and the Means Principle
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Self-Defense, Permissions, and the Means Principle: A Reply to Quong (Ohio State Journal of Criminal Law, Vol. 8, No. 2, 2011) on SSRN. Here is the abstract:
In “Killing in Self-Defense” (119 Ethics 507 (2009)), Jonathan Quong claims that one may kill innocent aggressors and threats in self-defense, but he denies that it follows from his position that innocent bystanders may also be killed when one acts defensively. Quong argues that defenders have an agent-relative permission to favor their own lives over others’. However, there are moral constraints, including that one may not “use someone as a mere means,” and Quong claims that it is this constraint that prohibits the killing of innocent bystanders. To reach this conclusion, Quong construes the “means principle” quite broadly to include not only the using of a person but also the using of that person's space. Quong therefore maintains that it is impermissible to shove a bystander out of an alcove so that you can squeeze into it, causing a runaway trolley to hit him instead of you, because you are using the bystander as a mere means when you use his space in the alcove.
This response raises a number of concerns with Quong’s argument. First, Quong overstates the relationship between an individual’s agency and the space he occupies. Second, and relatedly, Quong misconstrues the means principle – using an individual’s space is not using him. Third, there is an inherent tension between an agent-relative permission that looks to what morality can fairly ask of someone and the means principle’s constraint on behavior. That is, a person of reasonable firmness may yield to using others or their property now and then. Finally, this essay questions whether Quong’s claim can be cabined in a way that complies with our deep-seated moral commitments in other cases.