October 8, 2011
Griffin & Caplow on Relationships Between Prosecutors and Defense Counsel
Lissa Griffin (pictured) and Stacy Caplow (Pace University School of Law and Brooklyn Law School) have posted Changes to the Culture of Adversarialness: Endorsing Candor, Cooperation and Civility in Relationships between Prosecutors and Defense Counsel (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011) on SSRN. Here is the abstract:
Following a brief history of prior versions of the relevant Standards in Part I, Part II describes the current draft of the proposed Prosecution and Defense Functions, focusing on new requirements for candor, civility, and cooperation. The article concludes that the proposed revisions represent a healthy step toward a more reliable, trustworthy, and efficient criminal justice system. The revisions explicitly recognize the central, powerful, and multidimensional role of the prosecutor and attempt to respond accurately and realistically to the needs and demands of that role. As the drafting and approval process continues, certain specific areas need greater clarification and thus should be discussed and contextualized in accompanying commentary. This would better inform prosecutors and defense counsel about how the Standards apply to specific circumstances.
Vorenberg on Searches of Students' Cell Phones
Amy Vorenberg (University of New Hampsire School of Law) has posted Indecent Exposure: Do Warrantless Searches of a Student’s Cell Phone Violate the Fourth Amendment? on SSRN. Here is the abstract:
This article argues that searches of student’s cell phone should require a warrant in most circumstances. The amount and personal nature of information on a smart phone warrants special Fourth Amendment protection. This issue is particularly relevant in the public school setting where administrators routinely confiscate phones from students caught using them in school. With more frequency, administrators are looking at the phones, scrolling through text messages and photos, and on some occasions, responding to text messages.
The U.S. Supreme Court in Safford v. Redding, acknowledges the special considerations that school children should be afforded in part because of the unique subjective view they have of their own privacy. This same unique perspective should similarly be applied to the contents of a student’s cell phone. Over 75% of teenagers carry a cell phone on a daily basis, and many use the device as a private diary and portal for personal data and information. Teens appear willing to capture in their phone’s text or photos their most private world, and this might seem to signal a renunciation of their privacy. However it is because teens are so willing to expose themselves in a world that they think is private that their expectation of privacy in their phones should be accorded substantial protection. Cell phones in and of themselves are not dangerous. They cannot hold drugs or weapons - only information about drugs or weapons. Given that a cell phone contains highly private information, poses no imminent danger, and its contents can be preserved while a warrant is obtained, school officials should be required to get a warrant unless there are exigent circumstances such as immediate, apparent threat to student safety.
October 7, 2011
"A Judge’s Education, a Sentence at a Time"
The New York Times has this interesting article, in which U.S. District Court Judge Denny Chin discusses his approach to sentencing and several particularly difficult cases, and the reporter follows up with several defendants who have completed their sentences.
Krause on Skilling and Health Care Fraud
Joan H. Krause (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Skilling and the Pursuit of Health Care Fraud (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
In the summer of 2010, the Supreme Court used the case of former Enron CEO Jeffrey Skilling to announce significant limits on the reach of the intangible rights/honest services theory of mail and wire fraud. In rejecting Skilling’s vagueness challenge to the honest services wire fraud theory underlying his conspiracy conviction, the Court read the statute in a very narrow way that focuses such prosecutions squarely on bribery and kickbacks - activities that turn out to have particular salience in health care. As a result, while Skilling is widely considered to have narrowed the scope of honest services fraud overall, it may turn out to have the paradoxical effect of inviting additional prosecutions of physicians and others in the health care industry.
October 6, 2011
Dekel on Damages for the Acquitted
Omer Dekel (Academic Center of Law and Business) has posted Should the Acquitted Recover Damages? The Right of an Acquitted Defendant to Receive Compensation for the Injury He Has Suffered (Criminal Law Bulletin, Vol. 47, p. 474, 2011) on SSRN. Here is the abstract:
The article addresses the question of who should bear the costs of a criminal proceeding resulting in an acquittal. A criminal proceeding involves a large number of costs - both financial and emotional, generally born by the defendant, regardless of the trial’s outcome. This article argues that barring a small number of exceptions, the prosecution should bear the various costs of an acquitted defendant’s trial process.
October 5, 2011
Investigation of Puerto Rico Police Department (Dripps)
The DOJ report of its investigation of the Puerto Rico Police Department under the Rodney King Law, 42 U.S.C. 14141, is available online. Here’s a link to the executive summary in English.
The full report is also online, and both documents are available in Spanish as well as English.
Here’s the gist of the executive summary:
Many hard working and dedicated PRPD officers serve the public with distinction under often challenging conditions. Unfortunately, PRPD is broken in a number of critical and fundamental respects that are clearly actionable under the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14141 (“Section 14141”). Based on our extensive investigation, we find reasonable cause to believe that PRPD officers engage in a pattern and practice of:
• excessive force in violation of the Fourth Amendment;
• unreasonable force and other misconduct designed to suppress the exercise of protected First Amendment rights; and
• unlawful searches and seizures in violation of the Fourth Amendment.
Today’s New York Times reports that reform efforts, hobbled by starkly limited resources, have been undertaken.
The DOJ has not yet filed suit; presumably there are negotiations over a consent decree of the sort ultimately filed in Detroit and now in the works in New Orleans, discussed here.
I am confident that institutional reform litigation offers a more comprehensive solution to police misconduct than either individual tort suits or suppression motions. But if a force must be outrageously bad before it gets investigated (the Detroit, New Orleans, and Puerto Rico forces were all notorious for years before federal action) 14141 actions are a welcome supplement, not a replacement, for damage actions and the e-rule.
The mystery deepens: Crime rates fall as the economy tanks (Dripps)
Link to the latest victimization numbers here.
Reckless Conduct and Battery for "Party Punch" (Kolber)
At a party, a guy offers $5 to anyone willing to take a punch from Tiffany Startz. A guy named John Powell accepts. Here's what happens next:
Powell . . . stood, put his arms behind his back and leaned forward, turning his face to the right as Startz threw a punch, his friend Alison Tomczak, 21, of Frankfort testified Monday.
A mobile phone recording shows Powell stagger back several steps after being hit as some of the roughly 20 spectators smile.
Powell collected his winnings, complimented Startz on her punching ability and collapsed.
"I saw his eyes roll back in the back of his head and I threw up," Tomczak testified, her voice breaking.
Authorities said Powell died minutes later from an artery that burst in his neck.
. . .
Startz, who is charged with reckless conduct and battery, wasn't there by the time police arrived, Tomczak testified.
While Tomczak testified that Startz hit Powell with "full force," Lowdermilk gave a somewhat different account.
"To me, it didn't look like she hit him that hard," she testified.
To make the story even eerier, here's the context:
The September 25, 2010, gathering was to celebrate the birthday of a young woman who killed herself earlier that month. There was music, alcohol, even a cake.
(Hat tip: Nicole Vincent)
Alexander on Moore on Causation
Larry Alexander (University of San Diego School of Law) has posted Michael Moore and the Mysteries of Causation in the Law (Rutgers Law Journal, Forthcoming) on SSRN. Here is the abstract:
Michael Moore believes that causation of harm is central to criminal desert, and he believes that whether or not a criminal defendant has caused a harm is a metaphysical question rather than a matter of policy. I do not believe in the materiality of causation to criminal desert, but in this article I assume that causation is material and asked whether Moore has satisfactorily resolved the stock vexing questions by recourse to metaphysics. I conclude that he has not, and his scalar notion of causation, and his substitution of counterfactual dependence for causation in cases of omissions and prevention, produces counterintuitive results.
October 4, 2011
Lipschits & Kitai on Repentance and Retributive Sentencing
Itay E. Lipschits and Rinat Kitai (Academic Center of Law and Business and Academic Center of Law and Business) have posted The Place of Repentance in Retributive Sentencing (International Journal of Punishment and Sentencing, Forthcoming) on SSRN. Here is the abstract:
This manuscript sets forth the normative reasons for taking repentance into account in the frame of criminal retributive sentencing. It claims that change that takes place in people should be recognized as a relevant measure for our attitude toward them. The web of social relations among offender, victim, and society needs to permeate the criminal justice system and the considerations of punishment that it includes. Moreover, repentance may change not only one's future but also illuminate her past. If a person has a right to be punished as a consequence from her being a rational moral agent she may also repent her offense as an autonomous person.
Bowers on Fundamental Fairness and Guilty Pleas
Joshua Bowers (University of Virginia School of Law) has posted Fundamental Fairness & the Path from Santobello to Padilla: A Response to Professor Bibas (California Law Review, Forthcoming) on SSRN. Here is the abstract:
Almost no one in the legal academy has written more (or better) about guilty pleas and plea bargains than Stephanos Bibas. In a forthcoming article, entitled "Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection," Bibas turns his attention to the Court’s recent decision in Padilla v. Kentucky. In Padilla, the Court held that a constitutionally effective defense attorney must advise her non-citizen client of the immigration risks and consequences of pleading guilty. In his article, Bibas casts the Padilla decision as a radical departure from the Court’s conventional laissez-faire approach to plea-bargaining and guilty pleas. In this response, I explain why he is mistaken to view the decision as a change of constitutional course. Padilla is not, as Bibas claims, “the Court’s first case to treat plea bargaining as a subject worthy of constitutional regulation in its own right and on its own terms.” In fact, the Court has regulated plea-bargaining on its own terms for decades. Indeed, Padilla’s roots can be traced to the Court’s earliest plea-bargaining decisions - cases in which the Court applied a constitutional interpretive method distinct from the method it has applied typically to constitutional questions of trial procedure. Specifically, in almost all of the seminal pre-Padilla cases, the court invoked fairness principles - most notably, the notion of unfair surprise - to decide whether the procedures that produced the guilty pleas were constitutional. Padilla is of the same pedigree. The thrust of the Court’s holding in Padilla is that it is fundamentally unfair to leave a defendant in the dark about the deportation consequences of his guilty plea. Bibas fails to perceive that the fairness principles that animate the Court’s decision in Padilla are the same principles that have animated its guilty-plea and plea-bargaining jurisprudence all along. Thus, Bibas takes Padilla to represent a course correction when, in fact, it represents only an unfamiliar result reached through conventional means. This is not to say that the Padilla decision is insignificant - just that it represents a substantial step down a well-worn path.
Mikhail on Moral Grammar, Cognitive Science, and Enlightment Rationalism
John Mikhail (Georgetown University Law Center) has posted Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism (UNDERSTANDING SOCIAL ACTION, PROMOTING HUMAN RIGHTS, Ryan Goodman, Derek Jinks, & Andrew K. Woods, eds) on SSRN. Here is the abstract:
A striking feature of contemporary human rights scholarship is the extent to which it has turned its back on the idea that human rights can grounded in a theory of human nature. Philosophers, social scientists, and political and legal theorists thus frequently assert that the classical Enlightenment project of supplying a naturalistic foundation for human rights is dead. The main purpose of this contribution to a new book of essays on human rights is to rebut this pervasive skepticism. Drawing on recent work in the cognitive science of moral judgment, I defend one of the critical premises of ancient philosophy, Enlightenment Rationalism and the modern human rights movement alike: that human beings are moral and political animals, who are endowed with a moral faculty or sense of justice. The chapter thereby seeks to offer a new perspective on an old and venerable argument about the naturalistic foundation of human rights.
This new perspective begins from the observation that whether human beings possess a common moral faculty is not primarily a philosophical, political, or theological question, but an empirical question that belongs in principle in the cognitive and brain sciences, broadly construed. The confident assertions of skeptics such as Michael Ignatieff, Richard Rorty, Gilbert Ryle, Alasdair MacIntyre, Sigmund Freud, Ruth Benedict, Richard Posner, Robert Bork, and many other writers notwithstanding, one cannot therefore simply decide the matter from the armchair. On the contrary, probative evidence and sound scientific argument must be brought to bear. This new paradigm also begins from the recognition that two of the most significant intellectual developments of the past fifty years are the cognitive revolution in the sciences of mind, brain, and behavior and the human rights revolution in constitutional and international law. The former displaced the narrow forms of positivism and behaviorism that dominated academic philosophy and psychology during the first part of the twentieth century and prevented researchers from formulating coherent theories of the "distinct and original powers of the human mind" that had formed the basis of much Enlightenment jurisprudence, moral philosophy, and political theory. For its part, motivated by the unspeakable horrors of the Holocaust and other familiar atrocities, the human rights revolution in constitutional and international law has dramatically extended the reach and application of basic moral and legal precepts to every corner of the globe.
The central aim of the chapter is to bring these two influential movements into fruitful contact with one another by describing how researchers from a variety of disciplines (including experimental philosophy, developmental and social psychology, cognitive neuroscience, primatology, anthropology, comparative criminal law, and other fields) have begun to converge on a scientific theory of human moral cognition that, at least in its broad contours, bears a striking resemblance to the classical accounts of moral philosophy, natural jurisprudence, and the law of nations that reverberate throughout the ages. These classical accounts typically rest on the claim that an innate moral faculty and with it principles of justice, fairness, empathy, and solidarity are written into the very frame of human nature. These themes were particularly influential during the Enlightenment, when the modern human rights movement first emerged. It is precisely this set of ideas that modern cognitive science, liberated from the crippling methodological restrictions of positivism, behaviorism, historicism, and other discredited theoretical frameworks, has recently begun to explicate and to a substantial extent verify. This new trend in the science of human nature, I suggest, has potentially profound implications for the theory and practice of universal human rights.
October 3, 2011
Mannheimer on Proportionality and Federalism
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Proportionality and Federalism: a Response to Professor Stinneford (Virginia Law Review In Brief, Vol. 97, p. 51, 2011) on SSRN. Here is the abstract:
John Stinneford’s latest article, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause, sheds fresh light on the original public meaning of the Eighth Amendment. Stinneford provides the most cogent rejoinder to date to Justice Scalia’s position that the Cruel and Unusual Punishments Clause contains no proportionality principle. Stinneford demonstrates the unlikelihood of this claim by showing that (1) the best reading of the Clause’s English ancestor was that it encompassed a proportionality requirement and (2) the nearly contemporaneous uses of the term “cruel and unusual punishments” in other areas of the law implicated proportionality requirements.
But to show that the Clause contains some proportionality requirement gets us only part of the way to an understanding of what that proportionality principle demands. Where Stinneford’s work falters is in its articulation of the proportionality requirement of the Cruel and Unusual Punishments Clause as understood in 1791. He claims, in essence, that the Clause was understood as generally constraining Congress from inflicting punishments that were significantly harsher than those imposed at common law for the same offense. While Stinneford’s assertion that the Clause imposed common-law constraints on Congress’ power to punish is well supported, he incorrectly assumes that there was universal agreement in 1791 that the common law was of the pre-realist, brooding-omnipresence-in-the-sky variety. To the contrary, the conceptions of the common law in 1791 were far from homogenous. To be sure, some during the framing period took the pre-realist view that the common law was uniform and obligatory irrespective of sovereignty. Yet, many others asserted, as the Legal Realists later would, that the content of the common law was simply a matter of public policy that differed from state to state, especially as regards the law of crime and punishment. More importantly, it was generally the Anti-federalists, who conditioned ratification of the Constitution on the inclusion of a Bill of Rights, who propounded this more modern, realist notion of the common law of crime. Nothing shows this better than the debate over the existence of a general federal criminal common law that took place during the first twenty years of the Republic.
In short, while Stinneford is probably correct that the Cruel and Unusual Punishments Clause was widely understood in 1791 as imposing common-law constraints on the federal government’s power to punish, it is unlikely that there was any consensus as to what that meant. In particular, the Anti-federalists took a more state-centered approach than Stinneford would allow. Under such an approach, the federal government would generally be barred from imposing any punishment harsher than that authorized for the same offense conduct by the State where the conduct took place.
"Amanda Knox Freed After Appeal in Italian Court"
From the New York Times:
PERUGIA, Italy — A court here overturned the homicide convictions of the American college student Amanda Knox and her Italian co-defendant on Monday and ordered them freed after nearly four years in prison, ending a sensationally lurid trial of murder and rough sex that had made Ms. Knox notorious on both sides of the Atlantic.
. . .
The decision overturns the December 2009 ruling that convicted Ms. Knox to 26 years in prison and her co-defendant, Raffaele Sollecito, a former boyfriend, to 25 years in prison for the 2007 stabbing murder of 21-year-old Meredith Kercher, a Briton who shared an apartment with Ms. Knox. The case was built largely on DNA evidence that legal experts called flimsy and suspect.
Decision in Amanda Knox Appeal (Kolber)
MSNBC reports that the Amanda Knox murder conviction has been overturned.
October 2, 2011
Top-Ten Recent SSRN Downloads
University of San Diego School of Law,
Date posted to database: September 8, 2011
|2||324||Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization
Lucian E. Dervan,
Southern Illinois University School of Law,
Date posted to database: August 24, 2011
|3||208||Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011 [5th last week]
|4||201||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011 [3rd last week]
|5||173||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 [7th last week]
|6||171||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 [8th last week]
|7||165||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 [9th last week]
|8||143||Transitional Justice in Kenya: An Assessment of the Accountability Process in Light of Domestic Politics and Security Concerns
Thomas Obel Hansen,
United States International University (USIU),
Date posted to database: July 28, 2011 [new to top ten]
|9||143||Lost in Translation?: An Essay on Law and Neuroscience
University of Pennsylvania Law School,
Date posted to database: August 4, 2011 [10th last week]
|10||142||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011 [new to top ten]