September 9, 2011
Barrozo on the Jurisprudence of Cruelty
This article identifies and explains four conceptions of cruelty in criminal law and reconstructs the models of practical reason they inhabit. It advances conceptual, historical, and normative arguments. Conceptually, it articulates distinct notions of cruelty according to the types of agency, victimhood, values, and causality they employ. Historically, it argues that these conceptions belong with three models of practical reason which the article reconstructs in their evolution. Normatively, it argues that the rejection of cruelty is one of the fundamental achievements of practical reason in criminal law. More generally, the article indicates how the operation of reflectivity in the context of ideas about cruelty serves as a model of legal reasoning to be emulated.
Klingele & Love on Sentence Reduction Provisions of the Model Penal Code
Cecelia M. Klingele (pictured) and Margaret Colgate Love (University of Wisconsin Law School and Law Office of Margaret Love) have posted First Thoughts About 'Second Look' and Other Sentence Reduction Provisions of the Model Penal Code: Sentencing Revision (University of Toledo Law Review, 2011) on SSRN. Here is the abstract;
The financial cost of mass incarceration has prompted states to pass legislation providing for early release of prisoners. Although early release laws are frequently in tension with principles underlying sentencing systems, most have been passed without any discussion of how they might be justified in theory. This lack of explicit theoretical foundation leaves the new laws vulnerable to criticism. By contrast, the American Law Institute's ongoing revision of the Model Penal Code: Sentencing has resulted in the development of three model sentence reduction provisions, each providing a means of reducing an already-imposed sentence based upon a distinctive theoretical justification. This Article discusses each provision and argues that by confronting many of the difficult structural and theoretical questions underlying the practice of early release, the Model Penal Code's sentence reduction proposals provide a framework for resolving normative concerns when designing ways to mitigate the severity of already-imposed sentences.
Morse on Genetics and Criminal Responsibility
Some believe that genetics threatens privacy and autonomy and will eviscerate the concept of human nature. Despite the astonishing research advances, however, none of these dire predictions and no radical transformation of the law have occurred.
September 8, 2011
Dervan on The Symbiotic Relationship Between Plea Bargaining and Overcriminalization
Lucian E. Dervan (Southern Illinois University School of Law) has posted Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization (Journal of Law, Economics and Policy, Vol. 7, No. 4, 2011) on SSRN. Here is the abstract:
In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of overcriminalization. In fact, this article argues that a symbiotic relationship exists between plea bargaining and overcriminalization because these legal phenomena do not merely occupy the same space in our justice system, but also rely on each other for their very existence.
September 7, 2011
Hamilton on Child Pornography
Melissa Hamilton (University of South Carolina - School of Law) has posted The Child Pornography Crusade and its Net Widening Effect (Cardozo Law Review, Vol. 33, No.1, 2012) on SSRN. Here is the abstract:
The criminal justice system’s effort to combat child sexual exploitation has taken on a primary and aggressive focus toward prosecuting those who violate child pornography laws. The deontological policy labels all child pornography offenders, whether they are producers or merely viewers, as morally bankrupt and a threat to the nation’s children. Yet the basis for the policy bears fundamental flaws, and this article explores them. The article first summarizes legislative efforts to bolster child pornography laws and lengthen sentences for violators. It then provides a synthesis of criminal justice initiatives that are expending substantial resources targeted toward investigating, prosecuting, and punishing child pornography offenders. The policy and the initiative rely on a presumption that child pornography consumers are in reality undetected pedophiles and child molesters who are at high risk of sexually abusing children.
This article challenges the presumption by comprehensively analyzing certain of the most commonly cited studies that purport to empirically support correlations between child pornography, pedophilia, and child molestation. It also highlights other empirical evidence, as well as some practical considerations, that instead tend to show that most child pornography offenders are at low risk of committing contact sexual offenses. In sum, the concentration on child pornography crimes appears to be a misinformed policy that fails to directly protect real children from harm.
Chiao on Ex Ante Fairness in Criminal Law and Procedure
In Furman v. Georgia, the United States Supreme Court announced that it would not tolerate a capital sentencing regime that imposed death sentences in a seriously arbitrary fashion. The question I ask in this paper is whether we should in fact object to arbitrariness in punishment. The answer I propose is that under plausibly adverse conditions, we might not object to arbitrary penal outcomes, because under those conditions a fair distribution of punishment would be one equalizes chances across a class of similarly situated criminals. In particular, fairness may require no more than a rough equalization of ex ante chances under conditions of resource scarcity, an inability to reliably rank claims by comparative desert, and a pressing need for punishment to be imposed. I call this an ex ante theory of fairness.
The central virtue of ex ante fairness is that it is capable of reconciling parsimony in punishment with equity in its distribution, even when claims about who deserves what are deeply contested. Adopting an ex ante standard of fairness means that a concern for fair treatment of the guilty need not blind us to the realities of the severe resource constraints faced by American criminal justice, and vice versa.
After laying out the argument for ex ante fairness in general terms, I proceed to show how several prominent features of American criminal law and procedure - the Supreme Court’s capital jurisprudence, prosecutorial discretion, non-capital sentencing post-Booker, and “strict” criminal liability - all exhibit an implicit commitment to an equalization of chances rather than of outcomes.
September 6, 2011
Dubber on Preventive Justice
In this essay, I sketch a critical analysis of doctrines and practices commonly identified as instances of “preventive justice.” In Part I, after rehearsing briefly the distinction between law and police as alternative modes of governance best viewed in contradistinction to one another, I argue that preventive justice is neither new, nor different, being instead a long familiar instance of penal police. Part II moves from analysis to critique, considering briefly various criticisms of “preventive justice” raised, or implied, and concluding that they miss the mark, either because they are inapposite (from the perspective of police) or unfounded (from the perspective of law).
Smith on the Geography of the Death Penalty
Robert J. Smith (DePaul University College of Law) has posted The Geography of the Death Penalty and its Ramifications (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
One hundred and twenty four people were sentenced to death in 2009; the fewest since the United States Supreme Court re-authorized capital punishment in 1976. This is not an aberration. Death sentences have dropped precipitously over the past fifteen years. The distribution of death sentences nationally demonstrates that a fragmented few counties sentence people to death while the vast majority of jurisdictions largely have abandoned capital punishment. There is nothing to suggest that the murders committed in those active death-sentencing counties are more heinous than murders committed in other counties. Nor is there evidence to suggest that the offenders in those counties are more incorrigible than those who commit crimes in other counties. For those interested in driving down the total number of death sentences or finding a practical way to gauge the level of arbitrariness that exists in the administration of a death penalty scheme, however, the clustering of death sentences around an isolated few counties provides the opportunity for targeted doctrinal, litigation and advocacy strategies.
This Essay proceeds in three parts. In Part I, I detail the geography of the death penalty. We traditionally gauge death penalty activity at the state level, but the county-level distribution of death sentences and executions between 2004-2009 is more revealing. Just 10% of counties nationally returned even a single death sentence. Even with the busiest death penalty states, the vast majority of counties did not return any death verdicts. The distribution of death sentences reveals a clustering of sentences around a narrow band of counties: roughly 1% of counties in the United States returned death sentences at a rate of one or more sentences per year. Similarly, less than 1% of counties in the country sentenced anyone to death (at any point since 1976) whom their respective state executed between 2004-2009. After exploring the distribution of both death-sentences and executions separately, I consider those (very few) counties that both sentence people to death regularly and are situated in states that regularly perform executions. This part concludes by briefly considering possible explanations for why the top death-sentencing counties are the top death-sentencing counties.
Part II addresses the doctrinal, litigation, and advocacy ramifications. The first section discusses the doctrinal implications that result from a focus on county-level death sentencing. The section begins by discussing the Eighth Amendment’s command that the death penalty not be imposed arbitrarily. Special attention is paid to the choice between heightened procedural regulation of capital trials (the path chosen by the Court) and outcome-based approaches (the path not taken). The purpose of the procedural regulation approach was the belief that such changes would result in consistently imposed punishment. The skewed geography of the death penalty suggests that it has not. This section next discusses two alternative methods for presenting challenges that seek to limit capital punishment or render its administration more equitable. It begins with the categorical exclusion approach (e.g. death-ineligibility for juveniles) and its limits, and then proposes a data-driven approach to presenting claims of arbitrariness that focus primarily on comparative sentencing within a single county.
In the second section, I discuss how litigants (as well as other interested parties) might take advantage of the clustering of death sentences around a narrow band of counties. Poor trial representation - brought on by over-burdened, under-resourced and under-trained defenders - is a hallmark of capital representation. New models of representation - including trial consulting offices and data-driven remedies to what I refer to as the “fire-hose” problem - are demonstrating the ability to drastically reduce new death sentences (even in places like Harris County, Texas). Given limited resources, interested parties might prioritize recreating these models in the counties with the highest absolute number of death sentences rather than focusing limited resources on state-based litigation campaigns.
The third section details how the geography of the death penalty might influence abolitionist advocacy strategies. Many of the counties that return the most death sentences are in locations where the state-level government is unlikely to repeal the death penalty. Rather than funneling limited resources to statewide efforts or ignoring these locations altogether, this section explores the benefits of focusing advocacy efforts on county-level actors. County-residents are the ones most affected by the decision to sentence someone to death. In many instances, these are not just moral questions, but also public safety questions that impact how counties spend scarce resources to make their residents safe. Also, local residents are able to wield more influence over local prosecutors or county-level government officials than with state-level officials. This is an especially important consideration where the local population contains a higher percentage of minority group members than in the state population generally.
In Part III, I offer concluding thoughts.
September 5, 2011
Carbado & Harris on Undocumented Criminal Procedure
Devon W. Carbado (pictured) and Cheryl I. Harris (University of California, Los Angeles (UCLA) - School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted Undocumented Criminal Procedure (UCLA Law Review, Vol. 58, p. 1543, 2011) on SSRN. Here is the abstract:
For more than two decades, criminal procedure scholars have debated what role, if any, race should play in the context of policing. Although a significant part of this debate has focused on racial profiling, or the practice of employing race as basis for suspicion, criminal procedure scholars have paid little attention to the fact that the U.S. Supreme Court has sanctioned this practice in a number of cases at the intersection of immigration law and criminal procedure. Notwithstanding that these cases raise similar questions to those at the heart of legal and policy debates about racial profiling, they are largely overlooked in the criminal procedure scholarship on race and policing. We refer to these cases as the undocumented cases. While there are a number of doctrinal and conceptual reasons that explain their marginalization, none of these reasons are satisfying given the importance of the undocumented cases to debates about race, racial profiling, and the Fourth Amendment. The undocumented cases import a pernicious aspect of immigration exceptionalism into Fourth Amendment doctrine - namely, that the government can legitimately employ race when it is enforcing immigration laws. In so doing, the cases constitutionalize racial profiling against Latinos and unduly expand governmental power and discretion beyond the borders of immigration enforcement. This weakens the Fourth Amendment and enables racial profiling in the context of ordinary police investigations.
September 4, 2011
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