Friday, September 9, 2011
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.
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.
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.
Thursday, September 8, 2011
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.
Wednesday, September 7, 2011
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.
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.
Tuesday, September 6, 2011
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).
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.
Monday, September 5, 2011
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.
Sunday, September 4, 2011
|1||442||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
|2||326||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
|3||232||Re-Thinking Illegal Entry and Re-Entry
Georgetown University Law Center ,
Date posted to database: July 14, 2011
|4||182||The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011
|5||170||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
|6||159||Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011
|7||142||Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice'
Georgetown University - Law Center,
Date posted to database: July 21, 2011
|8||134||Mental Disorder and Criminal Law
University of Pennsylvania Law School,
Date posted to database: July 24, 2011
|9||129||Last Chance on Death Row
Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP,
Date posted to database: July 11, 2011
|10||122||Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively
Deborah W. Denno,
Fordham University School of Law,
Date posted to database: August 15, 2011 [new to top ten]