September 23, 2011
Criminal Law and Criminal Justice Books website
James Finckenauer (Rutgers School of Criminal Justice) and Stuart P. Green (Rutgers School of Law–Newark)(pictured) are the co-editors of what promises to be a highly useful new website here. The free site will offer online reviews of books in criminal law, criminal procedure, and criminal justice, and readers can subscribe to get email updates when new material is added. The distinguished advisory board is here.
Kaye on the Expected Value Fallacy in DNA Source-Attribution Testimony
In State v. Wright, 253 P.3d 838 (Mont. 2011), the Montana Supreme Court rejected a defendant's claim that allegedly false and misleading expert testimony and closing argument about the number of individuals with a particular DNA profile who lived in the state amounted to a violation of due process of law. However, the opinion does not adequately articulate the nature of the error in the testimony and is ambiguous in its discussion of the appropriate limits on the admission of DNA source-attribution testimony. This essay explains that the expert's testimony is an instance of an "expected value fallacy." This fallacy consists of thinking that the expected number of matching DNA profiles necessarily is the only plausible number of such profiles.
September 22, 2011
Place on Pennsylvania Ineffectiveness Claims
Thomas M. Place (The Pennsylvania State University) has posted Closing Direct Appeal to Ineffectiveness Claims: The Pennsylvania Supreme Court's Denial of State Constitutional Rights on SSRN. Here is the abstract:
The article addresses an important issue involving rights protected by the Pennsylvania Constitution. Today, thousands of defendants in Pennsylvania are denied any opportunity to challenge their convictions on the grounds that their trial lawyer was ineffective. This occurs even though the Pennsylvania Constitution guarantees every defendant the right to direct appeal. The fact that an increasingly large number of defendants are without a remedy to protect their right to effective assistance of counsel at trial is the result of the Pennsylvania Supreme Court’s decision to bar direct appeals of claims of trial counsel ineffectiveness and instead, defer such claims to the statutory post-conviction process which is closed to defendants who are no longer in custody. If a defendant receives a sentence of short duration, increasingly common in Pennsylvania (more than 14,000 sentences imposed in 2009 were for less than one year), and the defendant completes his sentence while direct appeal or the post-conviction process is pending, the defendant has no remedy to challenge the effectiveness of trial counsel.
The attached article argues that the Pennsylvania Supreme Court’s decision in O’Berg to reject an exception to the rule closing direct appeal to ineffectiveness claims for defendants who receive sentences of short duration unconstitutionally denies such defendants their rights under the Pennsylvania Constitution to direct appeal and to due process and equal protection of the laws. Simply put, the judiciary exceeds its rule making authority under the Pennsylvania Constitution when it deprives defendants with short sentences of the constitutional right to appeal if there is no alternative procedure for review of ineffectiveness claims available.
Because defendants with short sentences have a constitutional right to a post-trial forum to present their claims of trial counsel ineffectiveness, the article argues that until a short-sentence exception to the deferral rule is recognized, defendants with short sentences are entitled to present their ineffectiveness claims to the trial court by petition for writ of coram nobis. The article further argues that defendants unable to obtain state court review of their ineffectiveness claims should seek declaratory relief in a civil rights action on grounds that Pennsylvania Supreme Court’s rule of deferral unconstitutionally restricts their right under the Pennsylvania Constitution to direct appeal.
Meidinger on Prosecutorial Decision-Making, Queer Youth, and Statutory Rape
Michael H. Meidinger has posted Peeking Under the Covers: Taking A Closer Look at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape (Boston College Third World Law Journal, Vol. 1, 2011) on SSRN. Here is the abstract:
Queer youth are in a precarious position today. In comparison to their heterosexual peers, queer youth are disproportionately punished in the criminal justice system, and they may be more vulnerable to being prosecuted for statutory rape. Queer youth may be selectively prosecuted for statutory rape because prosecutors are given broad discretion in whom they prosecute and heterosexual intimacy norms may be part of their decision‐making process. In light of the significant barriers before a defendant alleging selective prosecution, especially for juvenile defenders, limited discovery orders like the one at issue in Commonwealth v. Washington may be a pragmatic way to make equitable change.
Stumpf on Crimmigration and Haste
Juliet P. Stumpf (Lewis & Clark Law School) has posted Doing Time: Crimmigration Law and the Perils of Haste (UCLA Law Review, Vol. 58, No. 1705, 2011) on SSRN. Here is the abstract:
Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen.
This Article critiques crimmigration law’s uniquely cabined approach to the temporal aspects of decisions about membership. It explores how crimmigration law wastes the potential for time to usefully evaluate a noncitizen’s connection to the community, the advisability of expulsion, and the potential for inclusion. By establishing permanent expulsion as the default consequence, crimmigration law ignores the potential for reintroduction into the community that criminal sentencing and relief from deportation contemplate. Instead, it combines and heightens the exclusionary power of criminal and immigration law. Focus on that moment has the effect of flattening the hierarchy of immigration status - from permanent resident to unauthorized migrant - that has traditionally informed the level of constitutional and statutory rights granted to individual noncitizens. The Article explores solutions to this temporal stasis, examining the benefits and costs of resurrecting a statute of limitations for crimmigration law.
September 21, 2011
Perlin on Bob Dylan on Criminal Law
A a careful examination of Bob Dylan’s lyrics reveals a writer - a scholar - with a well-developed jurisprudence, ranging over a broad array of topics that relate to civil and criminal law, public and private law. His lyrics reflect the work of a thinker who takes “the law” seriously in multiple iterations - the role of lawyers, the role of judges, the disparities between the ways the law treats the rich and the poor, the inequality of the criminal and civil justice systems, the corruption of government, the police, and the judiciary, and more. In this paper, I seek to create a topography of Dylan-as-jurisprudential scholar, and will seek to do this by looking at selected Dylan songs in these discrete areas of law (and law-and-society):
• Civil rights
• Inequality of the criminal justice system
• Governmental/judicial corruption
• Equality and emancipation (political and economic)
• Poverty, the environment, and Inequality of the civil justice system, and
• The role of lawyers and the legal process.
Thomas on Avoiding Conviction of Innocents
George C. Thomas III (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Two Windows into Innocence (Ohio State Journal of Criminal Law, Vol. 7, p. 575, Spring 2010) on SSRN. Here is the abstract:
Stories about innocent defendants who serve many years in prison before they are conclusively exonerated by DNA testing are by now sadly familiar. Although the reaction of policy makers has so far been strangely muted, there are concrete steps that can be taken to reduce the risk of wrongful convictions at an acceptable cost. This essay examines two relatively modest but important changes that some states have made and recommends that they be made more broadly. According to the Cardozo Innocence Project, the single most common cause of wrongful convictions is mistaken eyewitness identifications. States like New Jersey and North Carolina have implemented fundamental changes in eyewitness procedures that include keeping records of the procedure and requiring the eyewitness to indicate the degree of certainty. The essay recommends these and other reforms that will help protect innocent defendants. The other “window into innocence” is to permit criminal defendants to discover the State’s case in much the same manner as civil litigants are permitted to discover the other party’s case. Florida has had a liberal criminal discovery policy since 1972 without evidence of undue burdens on victims or costs to administer the process. Ten other states permit criminal discovery either as a matter of right or by leave of the court. Though liberal criminal discovery does potentially burden victims, there are ways of ameliorating that burden. One can argue that all defendants have a right to discover the State’s case but that argument has particular cogency when the defendant is factually innocent of the crime charged when defendants. When defendants make a threshold showing of innocence, the paper argues, the State should pay the defense lawyer’s time to take depositions of the State’s witnesses.
September 20, 2011
Earthquake Manslaughter Trial Begins in Italy (Kolber)
Proceedings began today in Italy in the trial of seven earthquake experts accused of manslaughter. The experts allegedly gave reassurances that tremors in the L'Aquila region in Central Italy were not expected to lead to an imminent, major earthquake. Over three hundred people died in the earthquake that later occured in April 2009.
All of the commentary from seismologists that I have read emphasizes how difficult (or virtually impossible) it is to predict earthquakes with any precision. I give some reasons here why a case like this would be highly unlikely in the United States. Based on this AP article, it sounds like more important hearings will commence on October 1.
All of the news articles I have read describe the crime at issue as "manslaughter," though one commenter to an earlier post on this blog (see here) suggests that the crime "omicidio colposo" might be translated as a kind of "negligent or involuntary manslaughter." Further clarifications are welcome in the comments.
Call for papers: "Smartphones and the Fourth Amendment:"
The conference, at the University of the District of Columbia, David A. Clarke School of Law, will be held in spring 2012. Further info after the jump.
The University of the District of Columbia, David A. Clarke School of Law seeks submissions for its 2012 Annual Law Review Symposium. This year’s theme is “Smartphones and the Fourth Amendment: The Future of Privacy in Our Hands” The conference date is to be determined, but will be in the Spring of 2012. For more information about the conference, please visit http://www.udclawreview.com
This Symposium seeks to explore the constitutional implications of smartphone technology, focused on the Fourth Amendment to the United States Constitution. The smartphone as currently developed implicates existing Fourth Amendment doctrine involving data privacy, email privacy, phone privacy, photo privacy, workplace, privacy, GPS tracking technology, cloud technology, social media, the Third Party doctrine, and generalized expectations of privacy. Participants in the Symposium will address how existing Fourth Amendment protections can be applied to this new technology. Panels will address discrete issues arising from current law enforcement practice of warrantless GPS tracking, subpoenas to third party providers such as cell phone companies, work email privacy after the Supreme Court’s decision in Quon, cloning of cell phone hardrives during traffic stops, and the expectation of privacy on information stored on cloud computing systems and smartphone systems. In addition, the Symposium seeks to synthesize a working metaphor to analyze Fourth Amendment issues for future information technology developments.
This symposium will attempt to address these and other questions from the prospective of advocates, practitioners, and scholars. The symposium will be an opportunity for participants and audience members to freely exchange ideas about the current state of the Fourth Amendment’s reasonable expectation of privacy and the smartphone. By expanding the boundaries of our exploration, we hope to develop a deeper understanding of how the Supreme Court should rule of various aspects of the operation of the smartphone through the Fourth Amendment lens of the reasonable expectation of privacy.
To submit a paper proposal, please submit an abstract by 5 p.m. on October 20, 2011 to Symposium Editor Tracy Jackson at firstname.lastname@example.org . In the subject line of your submission you must type: Abstract law review submission. Your submission must contain your full contact information, including, an email, phone number, and mailing address where you can be reached. Abstracts should be no longer than one page. All papers need to follow a strictly academic format, but all papers should address the symposium theme. We will notify presenters of selected papers in mid-October. All working drafts of papers will be due no later than February 13, 2012. All selected abstracts will be posted on the UDC Law Review Symposium website to be shared with other participants and attendees.
To be eligible for publication in the UDC Law Review, submissions must not be published elsewhere. Typically, the UDC Law Review publishes pieces ranging from 25-45 pages in length, using 12-point times new roman font and one-inch margins.
Finally, please note that money is not available to presenters for travel expenses. We look forward to your submissions. If you have any further questions, please contact Law Review Symposium Editor Tracy Jackson at email@example.com.
September 19, 2011
Flanders on Cost as a Sentencing Factor
Chad Flanders (Saint Louis University - School of Law) has posted Cost as a Sentencing Factor: A Theoretical Inquiry on SSRN. Here is the abstract:
In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy.
This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing. Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences. Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.
Bowman on Civil War Era Homicide Cases
Frank O. Bowman III (University of Missouri School of Law) has posted Getting Away with Murder (Most of the Time): A Sesquicentennial Analysis of Civil War Era Homicide Cases in Boone County, Missouri on SSRN. Here is the abstract:
In the quarter century centered on the Civil War, 1850-1875, fifty-three homicide cases came before the courts of Boone County, Missouri, of which Columbia, home of the University of Missouri, is the county seat. To remarkable degree, the story of these killings, told in this article, is a chronicle of the place and period.
The article’s method might be described as “murder as social history.” Its narrative thread is an effort to explain the remarkable fact that only twelve of the fifty-three defendants charged with murder were ever convicted of any form of criminal homicide. The explanation requires an introduction to Missouri history, economy, and geography, a reconstruction of the law enforcement and court systems of a state that had only recently been on the edge of the American frontier, an exploration of the law and politics of slavery in the period beginning with the Kansas-Missouri border war, an understanding of the operation of martial law during the guerilla conflict that plagued Missouri throughout the Civil War, and a primer on Reconstruction-era Missouri politics.
But the guts of the article are the murder cases themselves – the killers and victims, witnesses and jurors, judges and lawyers whose stories emerge from the original case files and yellowed newspaper accounts. The cases involving slaves and freedmen, as well as those directly related to the War, are especially poignant. This narrative recreates an era long gone, but stimulates reflection not merely on Missouri legal history, but on the legal and social development of modern America.
Top-Ten Recent SSRN Downloads
University of San Diego School of Law,
Date posted to database: September 8, 2011 [new to top ten]
|2||250||Re-Thinking Illegal Entry and Re-Entry
Georgetown University Law Center ,
Date posted to database: July 14, 2011 [3rd last week]
|3||189||The Causes of Growth in Prison Admissions and Populations
John F. Pfaff,
Fordham University - School of Law,
Date posted to database: July 15, 2011 [4th last week]
|4||178||Solicitation, Extortion, and the FCPA
Joseph W. Yockey,
University of Iowa College of Law,
Date posted to database: July 28, 2011 [6th last week]
|5||175||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011 [new to top ten]
|6||157||Mental Disorder and Criminal Law
University of Pennsylvania Law School,
Date posted to database: July 24, 2011 [8th last week]
|7||156||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||150||The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death
Paul C. Giannelli,
Case Western Reserve University - School of Law,
Date posted to database: August 26, 2011 [new to top ten]
|9||148||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
|10||133||Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: August 29, 2011 [new to top ten}