August 13, 2011
Skeel & Longman on Mosaic Law and Criminal Law
When Jesus spoke of fulfilling the law and the prophets, he was referring to the Mosaic law, nearly all of which is in the four books we consider in this Article: Exodus, Leviticus, Numbers and Deuteronomy. In an effort to discern the Mosaic law’s guidance for contemporary secular law, we first place it in covenantal perspective and identify three of its key concerns: God’s nature, as revealed in Scripture; the nature of Israel; and the role of the land. After summarizing the regulation in the four books under consideration and noting a few of its characteristics, we conclude by discussing a few possible implications of a Christian perspective on the Mosaic law for contemporary criminal law; economic and commercial law; and the fraught issues of marriage, divorce and sexuality.
August 12, 2011
"In Los Angeles, a Police Force Transformed"
From The New York Times:
LOS ANGELES — It had all the makings of another turbulent moment for the Los Angeles Police Department, an agency once notorious for an “L.A. Confidential” style of heavy-handed policing, hostile relations with minorities and corruption. Two months after triumphantly announcing the arrest of a suspect in a brutal beating at Dodger Stadium, the police admitted that they had arrested the wrong man, and charged two other people with the crime.
But unlike other potentially explosive episodes that have rocked this department over the decades, there were no indignant denials or attacks on critics. Instead, the police chief, Charlie Beck, wrote an op-ed article in The Los Angeles Times explaining what had gone wrong and expressing regret at some of his own public comments. “We can do much better,” Chief Beck wrote.
. . . .
The turnaround reflects initiatives that have changed the way the department looks, how it battles crime and how it relates to the community. It reflects the considerable success of the last police chief, William J. Bratton, who took over at a time of turmoil and imposed many of the reforms that he had brought as New York’s police commissioner, among them statistical models to track crime and establishing personal relationships between police officers and residents.
"Convicted Nazi unlikely to serve sentence due to ill health"
Convicted Nazi commander Josef Scheungraber, 93, will likely not serve his life sentence [JURIST report] due to mental health issues [Sueddeutsche Zeitung report, in German]. Scheungraber has consistently claimed innocence, and his lawyer, Gunter Widmaier, has been appealing his conviction since 2009. It was only recently that claims of mental inability to grasp the penal system surfaced, with the prosecutor ordering an independent medical review, which has convinced many in the office that Scheungraber is unfit to serve his sentence in Germany. Scheungraber is reportedly suffering from calcification of the brain, and his health will deteriorate drastically in prison. . . .
Despite the ages of the accused, prosecutions of Nazis continue around the world.
Shemtob & Lat on Televising Executions
Zachary Baron Shemtob (pictured) and David Lat (Central Connecticut State University and affiliation not provided to SSRN) have posted The Execution Should Be Televised: An Amendment Making Executions Public (Tennessee Law Review, Vol. 78, No. 3, p. 859, Spring 2011) on SSRN. Here is the abstract:
At the time of the American Revolution, executions were conducted in public. Our proposed constitutional amendment would make them public once again. Making executions public might seem intuitively troubling or even morally archaic. Reinstating public executions, however, would offer a profound affirmation of democratic transparency and accountability.
Klarman, Skeel & Steiker on Bill Stuntz
Michael J. Klarman , David A. Skeel Jr. and Carol S. Steiker (Harvard University , University of Pennsylvania Law School and Harvard Law School) have posted Introduction: Appreciating Bill Stuntz
(THE POLITICAL HEART OF CRIMINAL PROCEDURE: ESSAYS ON THEMES OF WILLIAM J. STUNTZ, Cambridge University Press, 2012) on SSRN. Here is the abstract:
The past several decades have seen a renaissance in criminal procedure as a cutting edge discipline, and as one inseparably linked to substantive criminal law. The renaissance can be traced in no small part to the work of a single scholar: William Stuntz. This essay is the introductory chapter to The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz (forthcoming, Cambridge University Press, 2012), which brings together twelve leading American criminal justice scholars whose own writings have been profoundly influenced by Stuntz and his work. After briefly chronicling the arc of Stuntz’s career, the essay provides a detailed overview of his criminal justice scholarship, from his first major articles and his classic work on the political economy of criminal law to The Collapse of American Criminal Justice, the magisterial, posthumous book that brings together many of the themes that preoccupied his scholarly life. The essay also surveys Stuntz’s writings on Christianity and about his physical pain and the cancer that ultimately killed him. The essay concludes by describing each of the book’s chapters, including a brief epilogue by Stuntz himself.
Drinan on Graham v. Florida
In Graham v. Florida, the Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. What has yet to be examined are the thorny legal issues raised by Graham that judges and lawmakers need to address in the very short term. To whom does the Graham decision apply? What is the appropriate remedy for those inmates? What affirmative obligations does the Graham decision impose upon the states? These and other pressing questions are before judges and legislators today, and in this Article I endeavor to answer them. In Part I, I briefly describe the Graham opinion and survey what scholars to date have identified as salient aspects of the decision. In Part II, I seek to provide a blueprint for lower courts and legislatures implementing the Graham decision. Specifically, I argue that: 1) Graham is retroactively applicable to all inmates who received a life-without-parole sentence for a non-homicide juvenile crime; 2) those inmates entitled to relief under Graham require effective representation at their resentencing hearings; 3) judges presiding over resentencing hearings should err in favor of rehabilitation over retribution to comport with the spirit of Graham; and 4) long-term legislative and executive action are necessary in order to make the promise of Graham a reality. Finally, in Part III, I situate Graham in the context of our nation’s ongoing criminal justice failings. While the sentence challenged in Graham ought to be viewed as a symptom of such failings, the Graham decision may offer a window of hope for reform on that same front.
August 11, 2011
McMunigal on Investigative Deceit
Is it ever ethical for a lawyer to ask or assist another person to lie on behalf of a client? Despite ethical rules categorically banning both personal and vicarious deceit, prosecutors routinely supervise police officers and informants who use deceit in investigating drug and sex offenses, organized crime, and terrorism. May defense lawyers make use of investigative deceit in criminal investigations? In this Essay, the Author examines this issue, the ethical rules bearing on it, and the recent trend in a number of jurisdictions allowing the use of investigative deceit by the defense. Drawing on his participation in a series of roundtable discussions sponsored by the Criminal Justice Section of the American Bar Association, the Author canvasses the various arguments that are marshaled both for and against allowing criminal defense lawyers to use investigative deceit.
"The Informant!: Ohio Court Finds Confidential Informant's Statement Was a Nontestimonial Present Sense Impression"
EvidenceProf Blog has an interesting discussion of this Confrontation Clause case. In part:
So, let's say that a detective drives a confidential informant to a controlled drug buy. After leaving the undercover car, the informant approaches the co-defendant and engages him in conversation. The informant then returns to the detective and tells him that the co-defendant "had a gun." Is this statement a present sense impression under Rule 803(1)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District in State v. Bulger, 2011 WL 3359861 (Ohio App. 8 Dist. 2011), the answer is "yes," and I agree. But is the statement "testimonial" for Confrontation Clause purposes?
. . .
Didn't the CRI "expect his statement to be used as evidence at trial?" Wasn't that the whole purpose of him taking part in the controlled buy? Now, I think that it is clear from the above facts that the primary purpose of the CRI's statement was to enable police assistance to meet an ongoing emergency, which would mean that the statement was not "testimonial" under Davis.
August 10, 2011
Mason & Lesowitz on Prior Convictions Post-Booker
Caleb E. Mason and Scott Lesowitz (Southwestern Law School and United States Attorney's Office) have posted A Rational Post-Booker Proposal for Reform of Federal Sentencing Enhancements for Prior Convictions (North Illinois University Law Review, Vol. 31, No. 2, 2011) on SSRN. Here is the abstract:
In this article we propose a solution to one of the more vexing problems in current federal sentencing jurisprudence: applying the sentencing enhancements for one of the most commonly-prosecuted federal crimes – re-entry after deportation, in violation of 8 U.S.C. Section 1326. We argue that the current categorical approach to classifying crimes for purposes of applying the enhancements is unnecessary, creates absurd results, and contravenes the Sentencing Commission’s mandate to promulgate empirically-grounded real-offense guidelines. We urge a systematic classification of state crimes based on empirical surveys of state caselaw and charging practices, and a revised enhancement guideline that recognizes differences in relative severity. We give examples of the kind of surveys that would be required, and set out proposed guidelines revisions.
Arlen on Corporate Criminal Liability
Jennifer Arlen (New York University School of Law) has posted Corporate Criminal Liability: Theory and Evidence (RESEARCH HANDBOOK ON CRIMINAL LAW, Keith Hylton and Alon Harel, eds., Forthcoming) on SSRN. Here is the abstract:
This Chapter examines the existing structure of corporate criminal liability, providing empirical evidence on the types of firms convicted and the magnitude and nature of the sanctions imposed. It then examines whether existing U.S. enforcement practice is consistent with optimal corporate liability, especially for firms where ownership is separated from day-to-day control. The first part of this analysis determines the optimal structure of corporate liability. It shows that optimal corporate liability has different purposes, and thus a different structure, from individual criminal liability (Becker, 1968) whenever the optimal deterrence requires expenditures to detect and investigate corporate wrongdoing. This chapter also shows that the core purposes of corporate liability and optimal structure differ fundamentally from those articulated by the classic economic models of vicarious liability (Kornhauser, 1982; Sykes, 1984) and from analyses of corporate criminal liability that employ a similar model (Polinsky and Shavell, 1993). In contrast with these analyses, firms should not be strictly criminally liable for their employees’ crimes. Instead, corporate criminal liability should be duty-based, in that firms should be able to avoid criminal liability if they engage in optimal policing (monitoring, self-reporting, and cooperating). This structure is consistent with the current regime. Moreover, in contrast with classic analysis which holds that the state should reduce corporate criminal liability to reflect individual criminal liability and market sanctions, this Chapter shows, the state should not reduce the duty-based criminal sanction to reflect either sanctions imposed on individual wrongdoers or market-sanctions. The state generally should impose residual civil liability on all firms, even those that undertake optimal policing; the state should reduce (or eliminate) the residual civil sanction to the extent that the firm otherwise bears the full expected cost of crime as a result of individual liability or market sanctions. Finally, this Chapter examines the federal government’s current practice of using deferred and non-prosecution agreements to impose structural reforms on firms and discusses analysis showing that this practice can be consistent with optimal deterrence when corporate policing decisions are distorted by agency costs.
August 9, 2011
"Court Rules That Police Cannot Use Warrants to Obtain Cell Phone Location of Person Who is Subject of Arrest Warrant"
Orin Kerr discusses the opinion at The Volokh Conspiracy. In part:
My own view is that Judge Gauvey is pretty clearly wrong. Most fundamentally, I don’t think location information of phones is protected by the Fourth Amendment under Smith v. Maryland, for all the reasons I have explained at length. Part of the problem is that the Fourth Amendment does not deal in abstractions, with categories such as the right to privacy in “location” or right to privacy in “movement.” The Fourth Amendment is much more granular: The relevant question is whether the particular data stored in a particular place on a particular server is protected by the Fourth Amendment, and if so, who is it who has those rights and under what circumstances can that particular information be accessed and disclosed. Given that, Judge Gauvey’s abstract categories produce more heat than light. It doesn’t help that Judge Gauvey relies significantly on the “mosaic theory” opinion that the Supreme Court recently agreed to review.
"DNA Profile of Ted Bundy Gives Hope to Old Cases"
From the New York Times:
The serial killer Ted Bundy confessed to 30 murders before he was executed in Florida in 1989, but he hinted that the true body count was far higher.
Now a DNA profile of Mr. Bundy — extracted from a vial of blood discovered in a courthouse where it had been stored for three decades — may help investigators around the country figure out if he was responsible for any of their unsolved cases.
Chiu on Disclosing Domestic Violence History
Elaine Chiu (Saint John's University - School of Law) has posted That Guy's a Batterer!: A Scarlet Letter Approach to Domestic Violence in the Information Age (Family Law Quarterly, Vol. 44, p. 255, 2010) on SSRN. Here is the abstract:
Today we use the Internet to do everything: buy groceries, make vacation plans, download music, catch up on the news, etc. It comes as no surprise then that we also use the Internet to find love. There are Internet dating sites, social networking sites, personals on Craigslist and Yahoo, etc. There is even a booming dating security industry online that provides identity and background checks. So, if a person can learn the hobbies and favourite colors of a prospective romantic interest from their Facebook page, why shouldn’t they also be able to know if there is a history of domestic violence?
This article proposes that states open up their databases to allow private individuals to find out whether a person of interest has ever had a final order of protection issued against them for domestic violence. The goal is to empower potential victims of domestic violence with this critical information so that they can avoid an intimate relationship that may lead to years of suffering and abuse.
This proposal is novel for two reasons. First, the existing discussion about public access to criminal or pseudo-criminal information considers only the business interests of employers and landlords, the First Amendment freedoms for the press and other media, the privacy rights of convicted individuals and the need for successful reentry of criminals back into society. What has not been articulated is how access to criminal records is critical to the vision of criminal justice as a compact amongst individuals that governs and guides behavior and choices. This proposal focuses on access to information about final orders of protection as a tool of empowerment for individuals to prevent the harm of future domestic violence. In so doing, it restores a vision of the criminal justice as a public social compact in this digital age of information.
Second, the proposal brings a new direction to domestic violence policy. For the past several years, there has been an earnest debate over whether the legal reforms of the 1970s, 1980s and 1990s have been effective at reducing harm to women or whether these reforms need to be reformed themselves. Both sides agree that the primary legal approach thus far has been to use the criminal justice system to combat intimate abuse. Opponents of this approach have focused on mandatory arrest and prosecution policies as state - sponsored violations of victims’ autonomy. This proposal gives victims or more accurately, prospective victims, an additional tool to avoid known batterers and intimate violence in their lives. It respects the autonomy of women because women can choose not to use the database or if they use it and discover negative information, women can also choose to ignore it and still have intimate relationships with known abusers. The choice is entirely up to them. If they are abused despite the availability of this information, other legal mechanisms such as mandatory arrest and custody presumptions will still be there for them. While optional, the proposal is still meaningful and carries consequences that are as serious and threatening as those in the original criminal justice approach. A public identity as a known batterer is no small matter. In fact, the severe nature of the consequences will lead to both general and specific deterrence of batterers.
In Part I, I begin with a discussion of the current stalemate in the movement against domestic violence and in particular, reflect on the effectiveness of orders of protection. I conclude with a look at the disturbing ramifications of the Supreme Court case, Castle Rock v. Gonzalez. Part II offers a detailed vision of why and how the proposal to grant broader access to information about final orders of protection will work with the realities of domestic violence. It is a preemptive measure that respects the autonomy of individual victims while also ensuring societal interests in public condemnation of domestic violence. Finally, Part III addresses the anticipated concerns of domestic violence victim advocates as well as those who are worried about the consequences for the reentry of criminals and individual privacy.
Yockey on Solicitation, Extortion, and the FCPA
The U.S. Foreign Corrupt Practices Act (FCPA) prohibits firms from paying bribes to foreign officials to obtain or retain business. It is one of the most significant and feared statutes for companies operating abroad. FCPA enforcement has never been higher and nine-figure monetary penalties are not uncommon. This makes the implementation of robust FCPA compliance programs of paramount importance. Unfortunately, regardless of whether they have compliance measures in place, many firms report that they face bribe requests and extortionate threats from foreign public officials on a daily basis. The implications of these demand-side pressures have gone largely unexplored in the FCPA context. This Article helps fill that gap. First, I describe the nature and frequency of bribe solicitation and extortion to illustrate the scope of the problem and the costs it imposes on firms and other market participants. I then argue that current FCPA enforcement policy in cases of solicitation and extortion raises several unique corporate governance and compliance challenges, and ultimately poses a risk of overdeterrence. Though these concerns can be partially addressed through enhanced statutory guidance, I conclude by urging regulators to shift some of their focus from bribe-paying firms in order to directly target bribe-seeking public officials. Confronting the market for bribe demands in this way will help reduce corruption in general while also allowing employees and agents to spend less time worrying about how to respond to bribe requests and more time on legitimate, value-enhancing transactions.
August 8, 2011
"Big Brother is tracking you: GPS and the 4th Amendment"
Judge Douglas Ginsburg, a Reagan appointee, in his summation of the D.C. court's unanimous decision, said the panel was persuaded that in fact Jones' movements during the month he was tracked by GPS were "not exposed to the public."
"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil," he wrote.
"Second, the whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more -- sometimes a great deal more -- than does the sum of its parts."
Abrams on Overlooked Authority in Kennedy v. Louisiana
Douglas E. Abrams (University of Missouri School of Law) has posted Lochner v. New York (1905) and Kennedy v. Louisiana (2008): Judicial Reliance on Adversary Argument (Hastings Constitutional Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
Chief Justice William H. Rehnquist called Lochner v. New York (1905) “one of the most ill-starred decisions that [the Supreme Court] ever rendered.” The Justices’ deliberations preceding the 5-4 decision demonstrate the courts’ reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state’s “incredibly sketchy” brief and Joseph Lochner’s sterling submission may have determined Lochner’s outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York’s maximum-hours law for bakery workers was a reasonable public health measure.
The Supreme Court’s reliance on adversary argument assumed the spotlight most recently in 2008, when Kennedy v. Louisiana held that the Eighth Amendment prohibits capital punishment for non-fatal rape of a child. Kennedy found a “national consensus” against such punishment by surveying the landscape of American law. The Court, however, overlooked a 2006 congressional enactment and a 2007 Presidential executive order that no party or amicus had briefed.
Amid the sheer complexity of contemporary American law, the institutional challenges that followed the brief writers’ lapse in Kennedy reinforce the Justices’ own longtime recognition of the central place of lawyers’ advocacy in the adversary system of civil and criminal justice. “The law is made by the Bar, even more than by the Bench,” said then-Judge Oliver Wendell Holmes in 1885. “A judge rarely performs his functions adequately,” added Justice Louis D. Brandeis, “unless the case before him is adequately presented.” Justice Felix Frankfurter reported that in the Supreme Court and lower courts alike, “the judicial process [is] at its best” when courts receive “comprehensive briefs and powerful arguments on both sides.”
"Dog Helps a Witness Testify, and Legal Questions Follow"
From the New York Times:
POUGHKEEPSIE, N.Y. — Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
. . .
Prosecutors here noted that she is also in the vanguard of a growing trial trend: in Arizona, Hawaii, Idaho, Indiana and some other states in the last few years, courts have allowed such trained dogs to offer children and other vulnerable witnesses nuzzling solace in front of juries.
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
Green & Kugler on Public Perceptions of White Collar Crime Culpability
Stuart P. Green (pictured) and Matthew B. Kugler (Rutgers Law School-Newark and Lehigh University) have posted Public Perceptions of White Collar Crime Culpability: Drawing Lines Amid Moral Ambiguity (Law and Contemporary Problems, Vol. 74, No. 4, 2011) on SSRN. Here is the abstract:
Although we are accustomed to thinking of “crime” as involving the most unambiguously blameworthy sorts of conduct in which citizens can engage, the reality is more complex, especially when we look at certain kinds of “white collar” behavior. In this set of empirical studies, participants were asked to assess a series of scenarios that presented potentially criminal white collar behavior. Lay persons made fairly fine-grained distinctions when deciding which behaviors they thought worthy of criminalization. In some cases, the distinctions made by respondents were consistent with current law. For example, in the case of fraud, participants distinguished between misrepresentations that went to the heart of the bargain and misrepresentations that were extraneous. In other cases, however, there were significant divergences between lay subjects’ views and current law. In the case of perjury, for example, participants drew a weaker distinction between lying in court under oath and lying to police while not under oath, and between literally false statements and literally true but misleading statements, than does the law. There are also divergences with respect to bribery: respondents sought to criminalize both commercial bribery and payments accepted by an office-holder in return for performing a non-official act, while American federal law criminalizes neither.
August 7, 2011
Top-Ten Recent SSRN Downloads
|1||2798||Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement
Morgan Leigh Manning,
University of Tennessee, Knoxville, College of Law ,
Date posted to database: June 10, 2011
|2||366||Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes
Thomas H. Cohen,
U.S. Bureau of Justice Statistics,
Date posted to database: July 1, 2011
|3||265||Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should
W. David Ball,
Santa Clara School of Law,
Date posted to database: June 28, 2011 [4th last week]
|4||229||Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’
Bernard E. Harcourt,
University of Chicago - Law School,
Date posted to database: June 19, 2011 [3rd last week]
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Georgetown University Law Center ,
Date posted to database: July 14, 2011
|6||175||Confined, Crammed, and Inextricable: What The Wire Gets Right
David Alan Sklansky,
University of California, Berkeley - School of Law,
Date posted to database: June 3, 2011
|7||158||The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties
Martin H. Pritikin, Ezra Ross,
Whittier College - Whittier Law School, UCLA School of Law,
Date posted to database: June 10, 2011 [8th last week]
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John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011 [10th last week]
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Samuel W. Buell,
Duke University School of Law,
Date posted to database: June 27, 2011
|10||146||Mass Exoneration Data and the Causes of Wrongful Convictions
Russell D. Covey,
Georgia State University College of Law,
Date posted to database: July 8, 2011 [new to top ten]