August 27, 2011
Denno on Neuroscience, Fairness and Effectiveness in Punishment
Deborah W. Denno (Fordham University School of Law) has posted Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (CHANGING LAW'S MIND: HOW NEUROSCIENCE CAN HELP US PUNISH CRIMINALS MORE FAIRLY AND EFFECTIVELY, Oxford University Press, Forthcoming, Fordham Law Legal Studies Research Paper) on SSRN. Here is the abstract:
A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.
The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change - either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.
August 26, 2011
Mnookin on the West Memphis Three
Jennifer Mnookin has this piece in the L.A. Times, posed at Statesman.com. In part:
So what produces wrongful convictions? At least three of the often-seen causes were present here: dubious forensic science evidence, false confessions, and evidence from unreliable jailhouse informants who often have a strong incentive to tell law enforcers what they want to hear.
Hat tip: Claudio Giusti.
"U.S. Widens Role in Mexican Fight"
From the New York Times. In part:
WASHINGTON — The Obama administration has expanded its role in Mexico’s fight against organized crime by allowing the Mexican police to stage cross-border drug raids from inside the United States, according to senior administration and military officials.
Mexican commandos have discreetly traveled to the United States, assembled at designated areas and dispatched helicopter missions back across the border aimed at suspected drug traffickers. The Drug Enforcement Administration provides logistical support on the American side of the border, officials said, arranging staging areas and sharing intelligence that helps guide Mexico’s decisions about targets and tactics.
Officials said these so-called boomerang operations were intended to evade the surveillance — and corrupting influences — of the criminal organizations that closely monitor the movements of security forces inside Mexico. And they said the efforts were meant to provide settings with tight security for American and Mexican law enforcement officers to collaborate in their pursuit of criminals who operate on both sides of the border.
Chin on Pre-Sentence Report after Padilla
Gabriel J. Chin (University of California, Davis, School of Law) has posted Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky
(St. Louis University Public Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.
PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence. The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made. Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea. This means that all parties are pleading in the dark – they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts. While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded. Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.
This essay also suggests that, in accordance with existing law, PSRs should identify collateral consequences and other legal restrictions which are not nominally part of the criminal sentence, in order to provide a guide for a defendant's conduct (18 U.S.C. 3563(d)), and to establish the defendant's post-release financial condition for purposes of calculating restitution and fines. (Fed. R. Crim. P. 32(D)(2)(A)(ii).).
Mannheimer on the Federal Death Penalty and Michael Jacques
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques (Vermont Law Review, Vol. 36, 2011) on SSRN. Here is the abstract:
In prior work I have argued that the Cruel and Unusual Punishments Clause of the Eighth Amendment should be read to prohibit the federal government from imposing the death penalty for crimes occurring within States that do not authorize capital punishment. This Article elaborates upon that argument and situates it within the particular context of the case of United States v. Michael Jacques. Jacques is being prosecuted for the kidnapping, rape, and murder of his twelve-year old niece, alleged to have taken place entirely within the State of Vermont, which does not authorize the death penalty. Because Jacques allegedly used text messages and a social networking website to facilitate the kidnapping, however, his crime constitutes a federal kidnapping, punishable by death because the victim was killed.
This Article suggests that the Anti-Federalist insistence in the founding period on local control of criminal justice, of which Cruel and Unusual Punishments Clause was one aspect, is easily translatable into modern notions of the complementarity of political power, political responsibility, and political accountability. The Anti-Federalists believed that political power was best exercised at the local level. To the extent they were willing to abide a delegation of that power, they demanded that the locus of political power not be too far from the people so that the political decision-makers be held accountable to their constituents. Only in that way can the people take on the benefits and burdens of self-government. The chief benefit of localized self-government is that localized decisions most accurately reflect the needs and sentiments of the community, and are, in that sense, “better” than decisions made by more distant political actors. But this benefit comes at a price: the burden of making difficult decisions. Among the most difficult decisions a polity can make is whether to authorize, seek, and impose the ultimate penalty for the worst criminal offenses. The value of self-government is diminished when those decisions are of no real-world consequence because other, more distant and less accountable officials ultimately decide whether the worst offenders should forfeit their lives. The result is a degradation of political power and the concomitant evaporation of political responsibility. Such is the case where a State feels no need to visit or re-visit the difficult question of capital punishment because the federal government can be relied upon to handle the very worst cases.
The criminal procedure protections of the Bill of Rights represent an effort by the Anti-Federalists, those who most strongly pushed for the Bill, to retain localized control over criminal justice, thereby ensuring that the States would enjoy the benefits and burdens of self-government at least in that narrow but critically important realm. These protections should be read as embracing the requirement that the most difficult questions faced by the polity, those of crime and punishment, generally be reserved for the States. In particular, the Cruel and Unusual Punishments Clause should be read as generally preserving state control of the outer bounds of criminal punishment.
August 25, 2011
"No Pardons in ‘West Memphis Three’ Case"
From A.P., via the New York Times:
Gov. Mike Beebe said Tuesday that he did not plan to grant pardons in the “West Memphis Three” case unless evidence showed that someone else was to blame for the murders of three young boys in 1993. The three men who were convicted, Damien Echols, Jason Baldwin and Jessie Misskelley Jr., now have 10 years of what amounts to unsupervised probation after being released from custody on Friday in a swiftly arranged plea deal. Mr. Beebe said he did not consider pardons until all sentences were completed, and his term will have expired long before the probation ends. After an HBO documentary detailed their case in 1996, the men garnered celebrity support and hefty donations. The original murder convictions were set aside amid doubts about the evidence. The three pleaded guilty to lesser charges on Friday in exchange for sentences of the 18 years that they had already served.
Funk on Electronic Surveillance of Terrorism
William Funk (Lewis & Clark Law School) has posted Electronic Surveillance of Terrorism in the United States (Mississippi Law Journal, Vol. 80, No. 4, 2011) on SSRN. Here is the abstract:
This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.
Perlin on Mental Disabilities and the Competence to Have Sex
Michael L. Perlin (New York Law School) has posted 'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex on SSRN. Here is the abstract:
Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.
To seek to formulate even a tentative answer to this question, it is necessary to examine overlapping areas of civil and criminal law, including: definitions of “statutory rape,” including: the use of dyadic “blanket” statutory categories of exclusion based on age; the use of indeterminate (both statutory and caselaw-derived) categories of exclusion based on mental status; the right of persons with mental disability to engage in consensual sexual relations in: outpatient facilities, halfway houses, group homes, civil hospitals, forensic facilities, and the resolution of liability issues arising from tort suits alleging incompetence to consent (most frequently arising in cases in which the plaintiff alleges that an inebriated state robbed him or her of the power to consent).
Case examples will illustrate critical issues involved in determining competency to consent to sexual relations in individuals involved in both criminal and civil matters including those diagnosed with intellectual disabilities. Specific emphasis will be placed on utilizing assessment strategies that correctly identify cognitive, neuropsychological and psychiatric disorders which could influence competency.
This presentation will consider these questions, will seek to identify the factors that must be considered in determining “sexual competence,” will learn why this is such an underdiscussed area of discourse in the legal and behavioral communities, and will assess whether it is good law, mental health and/or policy to attempt to craft a unitary standard in this area of social behavior.
August 24, 2011
"Involuntary Manslaughter Conviction for Asking Jealous and Dangerous Ex-Boyfriend to Drive You to the House of the New Boyfriend?"
Eugene Volokh reports on this interesting case at The Volokh Conspiracy.
"F.B.I. Focusing on Security Over Ordinary Crime"
The story is in the New York Times:
WASHINGTON — Agents of the Federal Bureau of Investigation have been more likely to be hunting for potential threats to national security than for ordinary criminals in recent years, but much of the time found neither, according to newly disclosed internal information.
Data from a recent two-year period showed that the bureau opened 82,325 assessments of people and groups in search for signs of wrongdoing. Agents closed out most of the assessments, the lowest-level of F.B.I. investigation, without finding information that justified a more intensive inquiry.
. . .
Michael German, a former F.B.I. agent who is now with the American Civil Liberties Union, said the high number of assessments relative to the number that developed into more intensive investigations was cause for concern. He noted that the F.B.I. retained the data it collects about a target, even if the person or group turns out to be innocent.
. . .
But Valerie E. Caproni, the F.B.I. general counsel, said that the data showed that agents had been able to dispose of about 96 percent of the low-grade reasons they might have had for suspecting someone of wrongdoing, like a vague tip or some other ambiguous lead, using “low intrusion techniques” rather than by opening a potentially more invasive preliminary investigation.
Fontaine on Psychopathy and Culpability
Reid G. Fontaine (Florida State University - College of Law) has posted Psychopathy and Culpability: How Responsible is the Psychopath for Criminal Wrongdoing? (Law and Social Inquiry, Forthcoming) on SSRN. Here is the abstract:
Recent research into the psychological and neurobiological underpinnings of psychopathy has raised the question of whether, or to what degree, psychopaths should be considered morally and criminally responsible for their actions. In this article we review the current empirical literature on psychopathy, focusing particularly on deficits in moral reasoning, and consider several potential conclusions that could be drawn based on this evidence. Our analysis of the empirical evidence on psychopathy suggests that while psychopaths do not meet the criteria for full criminal responsibility, they nonetheless retain some criminal responsibility. We conclude, by introducing the notion of rights as correlative that even if psychopaths were to be fully non-responsible, it would still be warranted to impose some form of civil commitment.
Mauser on the Long-Gun Registry and Spousal Homicide
This paper is a brief analysis of a special request to Statistics Canada, made in July 2011, concerning female victims of spousal homicides (1995 - 2009). This study updates results from an earlier study I did in 2010 (SSRN #1599705). No support was found for the claim that the long-gun registry has been effective. As far as it can be determined, the long-gun registry has not saved a single woman’s life.
August 23, 2011
"Post-Skilling Government Approach - Depends on the Case"
The post is at White Collar Crime Prof:
Redzic raised issues of whether the accused had truly been advised under due process of the charges against the defendant since the government was using an uncharged basis for asking that the conviction be upheld. But now the government in Stinn is saying that it makes a difference whether the government charges a case under 1346. Is the government taking the opposite position in these two cases (Redzic and Stinn), and is this problematic?
Herbert on GPS Surveillance
Lenese C. Herbert (Albany Law School) has posted Challenging the (Un)Constitutionality of Governmental GPS Surveillance (Criminal Justice, Vol. 26, No. 2, Summer 2011) on SSRN. Here is the abstract:
Police departments across the country are relying upon Global Positioning System (GPS) devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement agents to collect continuous, detailed, and real-time location information, without incurring the commensurate costs in dedicated employee resources. With increasing frequency, federal, state, and municipal law enforcement agencies are attaching GPS devices to vehicles, often without a warrant, to obtain evidence.
Unsurprisingly, challenges to the practice are increasing as well, with challengers arguing that the government’s installation of GPS devices on motorists’ vehicles and subsequent around-the-clock monitoring -- often for weeks or months -- violates individual privacy rights under federal and state law. Motions to suppress GPS-enabled surveillance data in criminal prosecutions unanimously invoke the individual’s first line of defense in privacy protection: the U.S. Constitution’s Fourth Amendment prohibition against unreasonable governmental searches; some also invoke the amendment’s prohibition against unreasonable seizures.
This article proceeds step-by-step through the Fourth Amendment analysis of a GPS case and the issues of interpretation at each step. The U.S. Supreme Court has yet to speak on this issue and, thus far, federal circuits are split and state courts are divided based on their interpretations of the Fourth Amendment as well as their own precedent and state constitutional provisions.
"34 Years Later, Supreme Court Will Revisit Eyewitness IDs"
Adam Liptak's story is in the New York Times:
WASHINGTON — Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest.
. . .
In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.
Vincent & van de Poel on Moral Responsibility
Nicole A. Vincent and Ibo van de Poel (Department of Philosophy, Macquarie University and affiliation not provided to SSRN) have posted Introduction (MORAL RESPONSIBILITY: BEYOND FREE WILL & DETERMINISM, pp. 1-13, N. Vincent, I. van de Poel, J. van den Hoven, eds., Springer, 2011) on SSRN. Here is the abstract:
This is the introductory chapter to the book Moral Responsibility: Beyond Free Will & Determinism. It contains an overview of all of the chapters contained in this book, and it also explains the central themes that run through these chapters.
Ryan on Remedying Wrongful Execution
Meghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Remedying Wrongful Execution (University of Michigan Journal of Law Reform, Vol. 45, No. 2, 2012) on SSRN. Here is the abstract:
The first legal determination of wrongful execution in the United States may very well be in the making in Texas. One of the state’s district courts was recently in the midst of investigating whether Cameron Todd Willingham, who was executed in 2004, was actually innocent. The court has been interrupted by objections from Texas prosecutors and the presiding judge’s retirement, but if the court proceeds, this may very well become a bona fide case of wrongful execution. Texas, just like other jurisdictions, is ill-equipped to provide any relief for such an egregious wrong, however. This Article identifies the difficulties that the heirs, families, and friends of wrongfully executed individuals face in attempting to obtain compensation for this wrong. The Article highlights that statutory compensation schemes overlook the issue of wrongful execution and the greater injustice it entails and urges that the statutes be amended in light of this grievous wrong that has come to the fore of American criminal justice systems.
August 22, 2011
Pustilnik on Pain Neuroimaging and Moral Dimensions of Law
Amanda C. Pustilnik (University of Maryland - School of Law) has posted Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law (Cornell Law Review, Vol. 97, No. 4, 2012) on SSRN. Here is the abstract:
Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been able to observe it directly.
Now, pain is about to become visible. Neuroimaging is rendering pain, and potentially myriad other subjective states, at least partly ascertainable and quantifiable. How will – and how should – pain neuroimaging influence areas of legal doctrine that turn on presence and degree of physical pain?
This emerging ability to ascertain and quantify subjective states is prompting a “hedonic” or a “subjectivist” turn in legal scholarship, which has sparked a vigorous debate among scholars as to whether, and why, the quantification of subjective states might affect legal theory and practice. Subjectivists argue that neuroimaging will lead to broad changes in legal theory: They contend that much values-talk in law has merely been a necessary but poor substitute for quantitative determinations of subjective states – determinations that will be possible in the law’s “experiential future.”
This Article argues the converse: that pain discourse in law frequently is a heuristic for values. Drawing on the author’s interviews and laboratory visits with pain neuroimaging researchers, this Article first shows the current and in-principle limitations of pain quantification through neuroimaging. It then presents close readings of statutes, case law, and treatises in two sets of case studies to show the heuristic role of pain discourse. The first set of case studies compares definitions of torture in criminal torture-murder and in state torture, while the second explores the role of pain rhetoric in recent Eighth Amendment challenges to execution by lethal injection and legislative restrictions on abortion based on putative fetal pain.
Attempting to solve normatively-freighted legal problems through simple quantification would be profoundly misguided. Instead, the Article proposes a novel theory, the theory of “embodied morality,” to explain why statements about physical pain in law often serve a heuristic function. In describing the relationship between pain and empathy, the Article shows how moral conceptions of rights and duties are necessarily informed by human physicality and constrained by the limits of empathic identification. Pain measurement thus serves as the archetypal example of why it is necessary to understand embodied morality within the law to properly understand if, when, and how to adapt the findings of brain imaging to bodies of legal doctrine. Attempting to resolve values-laden issues with hedonic measurement techniques would be to buy into a measurement fallacy; this in turn would produce policy prescriptions as morally unconvincing as they would be practically infeasible.
McDonald & Tinsley on Alternate Ways of Giving Evidence by Vulnerable Witnesses
Elisabeth McDonald and Yvette Tinsley (Victoria University of Wellington - Faculty of Law and Victoria University of Wellington - Faculty of Law) have posted Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges (Victoria University of Wellington Law Review, Forthcoming) on SSRN. Here is the abstract:
Fifteen years after the Law Commission’s rejection of pre-trial recording of cross-examination, it is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.
Developments related to sexual assault charges against Strauss-Kahn
New York (CNN) -- A New York district attorney plans to drop criminal charges against former International Monetary Fund chief Dominique Strauss-Kahn related to allegations that he sexually assaulted a hotel housekeeper, attorneys for both the housekeeper and Strauss-Kahn said Monday.
Kenneth Thompson, who represents alleged victim Nafissatou Diallo, addressed reporters after a meeting with prosecutors that lasted less than half an hour, and hours after filing a motion asking a judge to halt proceedings in the case and appoint a special prosecutor.
The New York Times also has coverage.