July 9, 2011
Strader on Lawrence's Criminal Law
In Lawrence v. Texas, the United States Supreme Court issued a potentially revolutionary criminal law decision. When overturning its earlier ruling in Bowers v. Hardwick and holding Texas’s sodomy statute unconstitutional, the Court plainly rejected majoritarian morality as the governing criminalization theory. Instead, the Court adopted the “harm principle,” requiring that governments justify criminal laws based upon a demonstrable showing of harm. The Court also required that the lower courts, when assessing criminal laws affecting sexual behavior, do so in a sexually neutral manner. In this way, the Court rejected the heteronormative paradigm that the Hardwick decision had constitutionalized.
When applying Lawrence, however, lower courts have been remarkably resistant to the decision’s substantive criminal law doctrine. Courts continue to justify criminal statutes based upon majoritarian morality. Moreover, courts continue to apply heteronormative principles to laws governing sexual behavior in ways that cast sexual minorities into effective sexual apartheid. This article analyzes Lawrence as the groundbreaking criminal law decision that it is. Focusing on sodomy and sex toy laws, the article uses Lawrence’s underlying rationale to conceptualize a harm-based, sexually neutral approach to criminalization. The article then constructs a framework for applying Lawrence’s substantive criminal law going forward, requiring that courts assess criminal statutes under the meaningful rational basis test that Lawrence requires.
Buell and Civil and Criminal Securities Fraud
As Rule 10b-5 approaches the age of 70, deep familiarity with this supremely potent and consequential provision of American administrative law obscures its lack of clear conceptual content. The rule, as written, interpreted, and enforced, is missing a straightforward connection to, of all things, fraud. Fraud is difficult to define. Several approaches are plausible. But the law of securities fraud, and much of the commentary about that body of law, have neither attempted such a definition nor acknowledged its necessity to the coherence and effectiveness of doctrine.
Securities fraud’s lack of mooring in the concept of fraud produces at least three costs: public and private actions are not brought on behalf of clearly specified regulatory objectives; the line between civil and criminal liability is not acceptably sharp; and the law provides an at best weak means of resolving vital public questions about wrongdoing in financial markets. The agenda of this article is to illuminate and clarify the relationship between securities fraud and fraud, and to structure a law reform discussion that promises to make more explicit the connection between securities fraud remedies and the purposes of a regime of securities regulation; brighten the line between civil and criminal liability; and produce better understanding of what is being asked when, as so often these days, we wonder whether to label an important matter of market failure, “fraud.”
July 8, 2011
Walen on Preventive Detention
Alec D. Walen (Rutgers School of Law, Camden) has posted A Punitive Precondition for Preventive Detention: Lost Status as a Foundation for a Lost Immunity (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
It is a core principle of liberal societies that an individual may not be deprived of his liberty unless the reasons for doing so respect his status as an autonomous person. This principle puts stringent limits on the use of preventive detention. I argue here that one use of preventive detention that is consistent with those limits is the long-term preventive detention (LTPD) of people who have been convicted either of a very serious crime or a string of serious crimes. These people can justifiably be subjected to LTPD because a justifiable part of their punishment is loss, for some period of time, of the normal immunity to LTPD. If this period of time extends beyond whatever period of time in which they have lost their liberty as a matter of punitive detention, then they may be subject to LTPD for the remainder of that period.
What makes stripping certain criminals of their immunity to LTPD for a period of time morally acceptable is that such a punishment fits their crimes. If they show sufficient disrespect for the law, then they no longer deserve to receive one of the benefits that normally flows from being an autonomous and accountable person. In particular, they no longer deserve to have the status of a person who must be presumed to be law abiding. A state must normally accord its autonomous and accountable citizens this presumption as a matter of basic respect for their autonomous moral agency. Rather than treat them as potentially dangerous animals, the state must treat them as free agents who can be trusted enough to do what is right to have the liberty to move freely in the society, and who can and should be held accountable if they choose instead to commit criminal acts. If, however, a particular actor demonstrates by his criminal acts that he does not deserve the presumption that he will be law abiding, then he has, at least for a while, lost the moral basis for claiming the right to benefit from the respect that grounds the immunity to LTPD. He remains an autonomous moral agent who can be held accountable for his future criminal choices, but he loses his status as a person who must be given the freedoms that come with the presumption that he will obey the law. For brevity, I will refer to this lost status account of the lost immunity to LTPD as the, “lost status view.”
Stribopoulos on Canadian Criminal Justice Reform
James Stribopoulos (York University - Osgoode Hall Law School) has posted Criminal Law Reform: Stealing a Page from the American Playbook (Act for Freedom, Canadian Civil Liberties Association, p. 36, 2010) on SSRN. Here is the abstract:
Criminal justice law reform is a major component of the Federal Government’s current legislative agenda. Unfortunately, instead of basing reforms on criminological research or the advice of experts, our current Government, by its own admission, is far more interested in what ordinary Canadians think about the criminal justice system.
July 7, 2011
Podgor on the ABA Prosecution and Defense Function Standards
Ellen S. Podgor (Stetson University College of Law) has posted The Role of the Prosecution and Defense Function Standards: Stagnant or Progressive? (Hastings Law Journal, Vol. 62, p. 1159, May 2011) on SSRN. Here is the abstract:
This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process?
Placing the question of the role of the Standards in a specific context, this Essay examines the drafters’ approach to jury selection and specifically to peremptory strikes based on sexual orientation. The drafters’ failure to explicitly include “sexual orientation” as an impermissible category for peremptory strikes of jurors, leaves the Standards merely endorsing existing constitutional criteria, which raises the question of whether the Standards have any purpose. This Essay advocates against the approach taken by the drafters, as it offers little advancement in the law and perpetuates existing bias. As hortatory standards, it is unnecessary to limit the rules to existing law. More importantly, by failing to expand the category of impermissible peremptory challenges, it is a missed opportunity to offer progressive legal reform.
"Casey Anthony to Be Released Next Week"
From the New York Times:
Casey Anthony, who earlier this week was found not guilty of killing her daughter, was sentenced on Thursday to four years in jail for lying to investigators, but will be released next Wednesday after getting credit for time served.
. . .
Ms. Anthony was fined $1,000 and sentenced to the maximum term of four years for each of the misdemeanor counts of lying to law enforcement officers investigating Caylee’s disappearance and death. Ms. Anthony showed no visible emotion Thursday as her sentence was being read, but had been smiling and talking to her lawyers beforehand.
July 6, 2011
Unah & Coggins on Mass Incarceration in the American States
Isaac Unah and Elizabeth Coggins (University of North Carolina (UNC) at Chapel Hill - Department of Political Science and University of North Carolina (UNC) at Chapel Hill) has posted Punishment Politics: Gubernatorial Rhetoric, Political Conflict, and the Instrumental Explanation of Mass Incarceration in the American States on SSRN. Here is the abstract:
The tension created by the drop in violent crime and the sustained increase in mass incarceration in the American states represents a phenomenon of great theoretical and policy relevance. Previous accounts of that tension have centered on theories of group conflict and instrumentalism. We argue here that the use of aggressive political rhetoric by state governors to communicate the crime problem is an important correlate of mass incarceration boom. Using data derived from content analysis of state-of-the-state addresses of governors from all 50 states, we test this rhetoric theory and evaluate its implications alongside instrumental and conflict-based explanations of mass incarceration. We find that gubernatorial rhetoric has strong effect on mass incarceration but that this effect is moderated by the institutional power of the governor. Instrumentalism is not supported. The key implication of our findings is that mass incarceration is overwhelmingly a policy consequence of the punitive political rhetoric employed by state leaders to exploit the crime problem and mobilize political support.
Garrett on Globalized Corporate Prosecutions
In the past, domestic prosecutions of foreign corporations were not noteworthy. This has changed dramatically. Federal prosecutors now advertise a muscular approach targeting major foreign firms and even entire industries. High-profile prosecutions of foreign firms have shaken the international business community. Not only is the approach federal prosecutors have taken novel, but corporate criminal liability is itself a form of American Exceptionalism, and few other countries hold corporations broadly criminally accountable. To study U.S. prosecutions of foreign firms, I assembled a database of publicly reported corporate guilty plea agreements from the past decade. I analyzed U.S. Sentencing Commission data archives on federal corporate prosecutions and also data concerning federal deferred and non-prosecution agreements with corporations. Not only are large foreign firms prosecuted with some frequency, but they typically plead guilty and are convicted. In this Article, I develop how foreign corporate convictions have become common in distinct substantive criminal areas, but the trends and types of foreign corporate prosecutions share important features in common. The prosecutions are concentrated in crimes prosecuted by Main Justice, and international treaties and cooperation agreements have facilitated extraterritorial prosecutions. Larger and public foreign firms are prosecuted, and the typical resolution involves not only higher than average fines, but also a guilty plea and not pre-indictment leniency. I argue that due to their new prominence, we should consider foreign corporation prosecutions as a group so that we can better evaluate and define the emerging prosecution approach.
July 5, 2011
Jones on Bias-Based Policing in Vermont
Police officers conduct investigations and law enforcement with significant discretion. Accordingly, this allows officers to utilize unique policing styles. While most officers exercise utmost professionalism, some officers allow bias to influence their investigative and enforcement actions. Vermont has taken steps to address this issue, which continues to dominate conversations about the scope of proper police authority. Briefings before the Vermont Advisory Committee to the United States Commission on Civil Rights culminated in the release of findings and recommendations in its report, “Racial Profiling in Vermont.” This Article examines components of those recommendations. In particular, the Article provides analysis of traffic stop data reporting, its methodology, and dissemination. It also evaluates law enforcement officer training related to discriminatory police practices. Additionally, the Article addresses the broad misuse of the term “racial profiling” and the struggle to appropriately define this issue, which has implications far beyond Vermont. This work advances a vital discussion about law enforcement credibility, public trust and confidence, and the critical need to protect civil rights.
Henning on Perceptions of Corporate Punishment
Peter J. Henning (Wayne State University Law School) has posted Should the Perception of Corporate Punishment Matter? on SSRN. Here is the abstract:
Corporations are a part of the community and accorded a range of rights similar - although certainly not identical - to those enjoyed by individual members, and so it is natural that they are understood as being bound by the same laws and social norms as any other individual. Yet corporate criminal liability has been criticized because no one individual can be held morally accountable for its misconduct, and therefore the argument has been made that an organization should not be subject to criminal sanctions. Perhaps the most cogent criticism of corporate criminal liability is that the only real punishment available against a corporation is a fine, which can be much more easily calibrated to redress any harm through a civil proceeding that does not require all the protections usually afforded in a criminal prosecution. In this article, presented at the David G. Trager Public Policy Symposium at Brooklyn Law School on “Sharing the Blame: the Law and Morality of Punishing Collective Entities”, I argue that criminal sanctions are appropriate for a corporation when the goal of the criminal prosecution is rehabilitation of the organization to change its corporate culture so that it can more effectively prevent future violations.
"Casey Anthony Not Guilty in Slaying of Daughter"
From the New York Times:
ORLANDO, Fla. — Casey Anthony, the young mother whose seeming heartlessness at the disappearance of her daughter transfixed America for three years, was found not guilty on Tuesday of killing the girl, Caylee Marie.
. . .
After nearly six weeks of testimony, a panel of seven women and five men decided that Ms. Anthony did not murder Caylee by dosing her with chloroform, suffocating her with duct tape and dumping her in a wooded area, as prosecutors claimed. They also did, however, find her guilty of lesser charges, of providing false information to law enforcement officers. The jury did not ask to review any evidence.
July 4, 2011
Kraft-Stolar et al on Justice for Domestic Violence Survivor-Defendants
Tamar Kraft-Stolar , Elizabeth Brundige , Sital Kalantry (pictured) and Jocelyn E. Getgen (affiliation not provided to SSRN , affiliation not provided to SSRN , Cornell University - School of Law and Cornell University - School of Law) have posted From Protection to Punishment: Post-Conviction Barriers to Justice for Domestic Violence Survivor-Defendants in New York State on SSRN. Here is the abstract:
Over the past 30 years, domestic violence has been increasingly recognized as a national epidemic. Although significant reforms are still needed, New York, along with many other states, has made important advances in the fight against domestic abuse. These advances, however, have stopped short of reforming the way the criminal justice system responds to survivors who engage in illegal acts to protect themselves from an abuser. Too often, the system responds to such women solely as perpetrators – not survivors – of violence, sending them to prison for long periods of time with little chance for early release. In the cruelest of ironies, these punishments are inflicted on survivors by the very system that should have helped protect them in the first place. As efforts to eliminate domestic violence move forward, it is critical that the experiences of survivor-defendants are heard and respected, and that the challenges they face are not overlooked. This report analyzes those challenges and presents concrete suggestions for reform.