Saturday, January 22, 2011
Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.
Friday, January 21, 2011
Paul H. Robinson (University of Pennsylvania Law School) and several students from the University of Pennsylvania Law School (Rebecca Levenson , Nicholas Feltham , Andrew Sperl , Kristen-Elise Brooks , Agatha Koprowski , Jessica Peake , Benjamin Probber and Brian Trainor) have posted Report on Offense Grading in New Jersey on SSRN. Here is the abstract:
The University of Pennsylvania Criminal Law Research Group was commissioned to do a study of offense grading in New Jersey. After an examination of New Jersey criminal law and a survey of New Jersey residents, the CLRG issued this Final Report. (For the report of a similar project for Pennsylvania, see Report on Offense Grading in Pennsylvania, http://ssrn.com/abstract=1527149, and for an article about the grading project, see The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading, http://ssrn.com/abstract=1539083, Journal of Criminal Law and Criminology (forthcoming 2011).)
The New Jersey study found serious conflicts between the relative grading judgments of New Jersey residents and those contained in existing New Jersey criminal law, as well as instances where mandatory minimum sentences often require sentences that exceed the maximum appropriate punishment, inconsistencies among the grading of similar offenses, overly broad offenses that impose similar grades on conduct of importantly different seriousness, and a flawed grading structure that provides too few grading categories, thereby assuring pervasive problems in failing to distinguish conduct of importantly different seriousness.
Yesterday, the New York Times ran a story about a popular new show on MTV called "Skins." Apparently, the show's producers "are particularly concerned about the third episode of the series, which is to be broadcast Jan. 31. In an early version, a naked 17-year-old actor is shown from behind as he runs down a street." They are concerned that the episode may violate child pornography laws:
It is unclear when MTV first realized that the show may be vulnerable to child pornography charges. On Tuesday, a flurry of meetings took place at the network’s headquarters in New York, according to an executive who attended some of the meetings and spoke only on the condition of anonymity. In one of the meetings, the executives wondered aloud who could possibly face criminal prosecution and jail time if the episodes were broadcast without changes.
One imagines that these meetings are especially uncomfortable: If they are worried about criminal prosecution for broadcasting the episode, then perhaps they also have to worry about the knowing possession of the media containing the episode.
Thursday, January 20, 2011
Opinion reversing ineffectiveness determination where counsel did not review blood evidence in planning strategy
The case is Harrington v. Richter. Here is the syllabus:
In 1994, deputies called to drug dealer Johnson’s California home found Johnson wounded and Klein fatally wounded. Johnson claimed that he was shot in his bedroom by respondent Richter’s codefendant, Branscombe; that he found Klein on the living room couch; and that his gun safe, a pistol, and cash were missing. His account was corroborated by evidence at the scene, including, relevant here, spent shell casings, blood spatters, and blood pooled in the bedroom doorway. Investigators took a blood sample from a wall near the bedroom door, but not from the blood pool. A search of Richter’s home turned up the safe and ammunition matching evidence at the scene. After his arrest on murder and other charges, Richter initially denied his involvement, but later admitted disposing of Johnson’s and Branscombe’s guns. The prosecution initially built its case on Johnson’s testimony and the circumstantial evidence, but it adjusted its approach after Richter’s counsel, in his opening statement, outlined the theory that Branscombe shot Johnson in self-defense and that Klein was killed in the crossfire in the bedroom doorway, and stressed the lack of forensic support for the prosecution’s case.
The case is Premo v. Moore. Here is the syllabus:
Respondent Moore and two accomplices attacked and bloodied Kenneth Rogers, tied him up, and threw him in the trunk of a car before driving into the Oregon countryside, where Moore fatally shot him. Afterwards, Moore and one accomplice told Moore’s brother and the accomplice’s girlfriend that they had intended to scare Rogers, but that Moore had accidentally shot him. Moore and the accomplice repeated this account to the police. On the advice of counsel, Moore agreed to plead no contest to felony murder in exchange for the minimum sentence for that offense. He later sought postconviction relief in state court, claiming that he had been denied effective assistance of counsel. He complained that his lawyer had not moved to suppress his confession to police in advance of the lawyer’s advice that Moore considered before accepting the plea offer. The court concluded the suppression motion would have been fruitless in light of Moore’s other admissible confession to two witnesses. Counsel gave that as his reason for not making the motion. He added that he had advised Moore that, because of the abuse Rogers suffered before the shooting, Moore could be charged with aggravated murder. That crime was punishable by death or life in prison without parole. These facts led the state court to conclude Moore had not established ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668.
This interesting piece is in the New York Times. In part:
The arrests, including one expected in Italy, were based on 16 unrelated indictments handed up in federal courts in four jurisdictions. Taken together, they amounted to the largest such sweep of organized crime figures conducted in recent history by federal authorities.
. . .
By taking out the leadership of the Colombos and charging large numbers of reputed crime figures from the other families, the F.B.I. and federal prosecutors hoped the case would have a significant impact on organized crime. But one official noted that senior prosecutors and F.B.I. officials have declared victory or sought to write the mob’s epitaph many times in the past. Yet many tenacious and formidable organized crime families have endured, albeit weaker and with less influence, using violence and the threat of violence to amass wealth and influence.
. . .
A dozen of the indictments naming more than 80 defendants were handed up in Brooklyn. They charged members of all five of New York’s crime families — Genovese, Gambino, Colombo, Luchese and Bonanno — along with members of the New Jersey-based DeCavalcante family.
Wednesday, January 19, 2011
Andrew E. Taslitz (Howard University - School of Law) has posted Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right on SSRN. Here is the abstract:
Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.
Dan Markel (pictured), Chad Flanders and David C. Gray (Florida State University College of Law , Saint Louis University - School of Law and University of Maryland - School of Law) have posted this intriguing contribution to the recent controversy over the relevance of hedonic adaption to punishment theory,Beyond Experience: Getting Retributive Justice Right (California Law Review, Vol. 99, No. 2, April 2010). Professor Markel has a brief post at PrawfsBlawg that situates the new article in the recent debate. Here is the abstract:
How central should hedonic adaptation be to the establishment of sentencing policy?
In earlier work, Professors Bronsteen, Buccafusco, and Masur (BBM) drew some normative significance from the psychological studies of adaptability for punishment policy. In particular, they argued that retributivists and utilitarians alike are obliged on pain of inconsistency to take account of the fact that most prisoners, most of the time, adapt to imprisonment in fairly short order, and therefore suffer much less than most of us would expect. They also argued that ex-prisoners don't adapt well upon re-entry to society and that social planners should consider their post-release experiences as part of the suffering the state imposes as punishment.
Tuesday, January 18, 2011
Orin Kerr has this post at The Volokh Conspiracy discussing this "fascinating" recent Florida appellate court opinion raising concerns about the adequacy of judicial assessment of police testimony. From the opinion:
The judge may have punctiliously performed the duties of his office in this case, but, when considering the large number of “consent” cases that have come before us, the finding of “consent” in so many curious circumstances is a cause for concern.
Martin Guggenheim (New York University School of Law) has posted The People’s Right: Reimagining the Right to Counsel on SSRN. Here is the abstract:
This Article re-imagines the Sixth Amendment’s right to counsel, which has been treated exclusively as an individual right enforceable through the Due Process Clause, as a collective right of the People. Building on the writings of Anthony Amsterdam and Akhil Amar, this Article argues that there are vital structural protections inherent in the right to counsel that go well beyond an individual’s due process rights. In particular, the Founders of the Constitution, above all else, contemplated a robust system of checks and balances when executive power was exercised. Perhaps the paradigmatic example of the exercise of such power is the arrest and prosecution of an individual. In the world inhabited by the Founders, the primary means by which executive power was to be checked was through the jury system.
Monday, January 17, 2011
Tung Yin (Lewis & Clark Law School) has posted Independent Appellate Review of Knowledge of Falsity in Defamation and False Statements Cases (Berkeley Journal of Criminal Law, Vol. 15, pp. 330-392, 2011) on SSRN. Here is the abstract:
Although we are used to thinking that criminal defendants receive more procedural protections than civil defendants do, this notion turns out to be incorrect when it comes to appellate review of civil defamation verdicts versus criminal convictions for false statements, where the key issue is the defendant's knowledge of the falsity in question. The civil defendant gets the benefit of what the Supreme Court calls "independent appellate review" of the existence of actual malice in a defamation case, which is to say an aggressive standard exhibiting little to no deference toward the factfinder's determination. The criminal defendant, on the other hand, is saddled with a standard of review that is highly deferential toward the factfinder; the criminal defendant must show that no reasonable jury could have found that he knew the statement to be false. A person who is sued successfully for slander and convicted of making a false statement for the same utterance to a federal agent could therefore find himself in the odd situation of winning the appeal in the civil case and losing it in the criminal case, simply because in the former instance, the appellate court could more freely reject the jury's knowledge of falsity finding, whereas in the latter instance, the appellate court would be essentially bound to the jury's determination. In this Article, I ask whether the same duty of independent appellate review of the knowledge of falsity should apply in criminal cases that involve false statements. Answering that question requires an examination of the First Amendment principles underlying the actual malice rule and the independent appellate review doctrine to see if the same concerns arise in the criminal context. Ultimately, I conclude that in at least some instances, First Amendment values call for extending the independent appellate review doctrine to criminal cases.
Sunday, January 16, 2011
|1||324||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 [4th last week]
|2||309||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010 [3rd last week]
|3||204||Theorizing Mental Health Courts
E. Lea Johnston,
University of Florida - Fredric G. Levin College of Law,
Date posted to database: November 21, 2010 [6th last week]
|4||178||The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case
London School of Economics - Law Department,
Date posted to database: December 8, 2010 [new to top ten]
|5||169||The Substance-Procedure Relationship in Criminal Law
Donald W. Dripps,
University of San Diego - School of Law,
Date posted to database: December 8, 2010 [new to top ten]
|6||158||Retribution and the Experience of Punishment
John Bronsteen, Christopher J. Buccafusco, Jonathan S. Masur,
Loyola University Chicago School of Law, Chicago-Kent College of Law , University of Chicago - Law School,
Date posted to database: October 18, 2010 [new to top ten]
|7||158||Who May Be Held? Military Detention Through the Habeas Lens
University of Texas School of Law,
Date posted to database: December 16, 2010 [new to top ten]
|8||123||Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: November 15, 2010 [new to top ten]
|9||116||Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases
Stanley A. Goldman,
Loyola Marymount University - Loyola Law School Los Angeles,
Date posted to database: November 26, 2010 [new to top ten]
|10||113||The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure
Susan A. Bandes,
DePaul University - College of Law,
Date posted to database: November 19, 2010 [new to top ten]