October 22, 2011
Ocen on the Shackling of Pregnant Prisoners, Race, Gender, and the 8th Amendment
Priscilla A. Ocen (University of California, Los Angeles - School of Law) has posted Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners (California Law Review, Vol. 100, 2012) on SSRN. Here is the abstract:
The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States. This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation. At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use. More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South. The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners.
Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level. This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices. Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause. This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.
Megale on Sex Offender Registries, Over-criminalization, and Social Death
Elizabeth Berenguer Megale (Barry University School of Law) has posted The Invisible Man: How the Sex Offender Registry Results in Social Death (The Journal of Law and Social Deviance, Forthcoming) on SSRN. Here is the abstract:
This Article establishes that over-criminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits which arise when over-criminalization exists, and further shows how these characteristics and traits are present with respect to the sex offender registry. This Article offers critical insight into the relationship between over-criminalization and repressive control systems and concludes that over-criminalization exists when repressive governmental controls seize power and render non-existent informal social controls. It follows that the sex offender registry is a repressive governmental control that has concentrated power in the government and criminal laws while shifting power away from informal social controls to result in the social death of those unwanted, those labeled sex offender.
October 21, 2011
Sokol on Detection and Compliance in Cartel Policy and Corporate Crimes
In the past few years, companies around the world have spent an increasing amount of resources addressing issues broadly classified as compliance. In the area of bribery there has been significant enforcement with strong financial and behavioral penalties under the U.S. Foreign Corrupt Practices Act ("FCPA"). The United Kingdom has introduced a new anti-bribery regime this year, which has increased companies' awareness of the possible negative impact from breaking the law. Similarly, corporate governance legislative initiatives, such as Sarbanes-Oxley and Dodd-Frank, have transformed the compliance landscape for many companies.
During this same period, there have been significant theoretical and empirical contributions as to the effects on a firm's performance of various corporate governance measures designed to reduce criminal behavior on the part of firms and individual managers. Quite a bit of this literature has focused on improved detection of wrong-doing. Given these changes, it is surprising that U.S. antitrust has not been on the cutting edge of compliance and detection.
Antitrust's primary contribution has been the introduction of leniency programs around the world. In many ways leniency is effective in destabilizing existing cartels. However, it may be, in some cases, that leniency may actually strengthen certain cartels. Moreover, leniency may not be going after the right kinds of cartels - the worst offenders in terms of overcharges - and may instead be going after the cartels that are easy to find. Recent work suggests that the U.S. leniency program has not led to optimal deterrence.
If we take these critiques of leniency and cartel detection seriously (especially relative to detection of other types of corporate crimes) antitrust needs to come up with additional ways to promote cartel detection. This article focuses on some suggestions to improve detection and compliance for antitrust with regard to cartels.
Hafemeister on Restorative and Procedural Justice for Criminal Defendants with Mental Disorders
Thomas L. Hafemeister (University of Virginia School of Law, pictured), Sharon G. Garner, and Veronica E. Bath have posted Letting Justice Ring: Applying the Principles of Restorative and Procedural Justice to Better Respond to Criminal Offenders with a Mental Disorder (Buffalo Law Review, Vol. 60, No. 1) on SSRN. Here is the abstract:
For almost as long as there has been a criminal justice system, society has struggled with how to respond to offenders with a mental disorder whose criminal behavior - largely through no fault of their own - has been shaped and driven by their mental disorder. Virtually everyone who works with this population, including criminal justice officials, believes that society’s current response is woefully inadequate. As prisons and jails have become the de facto mental health system, a costly and inappropriate approach, this concern has grown. Governmental entities, driven by fiscal crises, humanitarian concerns, and a recent Supreme Court ruling condemning the status quo, are in desperate need of alternative means to respond to this population. At the same time, there has been a general lack of thematic principles to guide the development of possible alternatives. The principles of restorative and procedural justice, however, can furnish valuable lenses for constructing such alternatives. Drawing on these principles and associated research, this Article proposes an approach providing a better response for all of the parties affected by these crimes, including the victims of these crimes as well as the offenders themselves.
Franco on Deterring Complicity in Securities Law Violations
Joseph A. Franco (Suffolk University Law School) has posted Of Complicity and Compliance: A Rules-Based Anti-Complicity Strategy Under Federal Securities Law (University of Pennsylvania Journal of Business Law, Vol. 14, Fall 2011) on SSRN. Here is the abstract:
Most policy analyses aimed at deterring complicity in securities law violations implicitly assume that a standards-based regime (such as liability standards for aiding and abetting) represents the best strategy for accomplishing that objective. Moreover, many commentators regard the restoration of private damage remedies against complicit secondary actors as essential to the success of any anti-complicity regime. These concerns are linked to the Supreme Court’s Central Bank trilogy – Central Bank, Stoneridge Investment Partners and Janus Capital Corp. – decisions that mechanically constrain a principled understanding of the relationship between primary and secondary liability standards. This article offers a fundamentally different policy approach in thinking about the problem of complicity in securities violations. It uses the concept of anti-complicity policies – i.e., policies designed to deter secondary participants from providing assistance to, or to make such participants accountable in monitoring or preventing, more fundamental forms of misconduct – as a rubric to compare the effectiveness of two different classes of strategies: standards-based policies and rules-based policies.
The article then argues that enforcement objectives would be better served by refocusing anti-complicity policies on a rules-based regime. First, a rules-based regime may be more effective in a wide variety of contexts than a standards-based regime. Second, while a rules-based regime is not inconsistent with private liability for aiding and abetting, the combination of publicly-enforced standards and robust anti-complicity rules may be more socially efficient than a regime that relies almost exclusively on public sanctions and private remedies for aiding and abetting. Third, a rules-based regime (even if not explicitly conceived of as such) has already begun taking shape within federal securities law on an ad hoc basis that gives some sense of the potential feasibility of a more robust rules-based approach. This article acknowledges two significant caveats. It does not recommend eliminating anti-complicity standards (such as aiding and abetting principles) because such standards provide a powerful and necessary backstop to the inevitable gaps and interstices of a rules-based regime. Furthermore, the article does not argue that the emerging use of rules-based strategies has produced a fully adequate anti-complicity regime. Instead, the article urges continued movement toward a more robust rules-based anti-complicity regime, a result that at a minimum would require a much broader grant of rulemaking authority to the SEC.
October 20, 2011
Metze on Capital Punishment and the Violation of Due Process in Texas
Professor Metze takes a critical look at Texas's substantive capital murder statute, Texas Penal Code § 19.03, the current state of the law, the available constitutional history of each paragraph, the Texas Legislature's expansive growth of death eligible crimes, and the Court of Criminal Appeals' complicity in this development, arguing that the statute has become violative of due process as unconstitutionally vague in its application, returning Texas capital jurisprudence to its genesis, exposing virtually all that commit murder in Texas to a system that once again has become arbitrary, capricious, and discriminatory in its application to minorities and in particular to African Americans.
"Judges cautioned against reliance on overstated ballistics testimony"
From Grits for Breakfast:
Recently, thanks to contributions from readers, Grits purchased a copy of the brand spanking new third edition of the "Reference Manual on Scientific Evidence" produced by the Federal Judicial Center and the National Research Council of the National Academies of Science - the first update of the manual in more than a decade . . . .
As with other comparative forensic techniques from fingerprints to bitemarks to microscopic hair examination, essentially, all ballistics experts are really saying is "After looking at them closely, I think these two things look alike." It strikes this writer that it's quite a big leap from "reasonable scientific certainty" to "more likely than not." Basically it's the leap from "beyond a reasonable doubt" to having "substantial doubt." I wonder how many past convictions hinged on testimony where experts used phrases like "reasonable scientific certainty" or "to the exclusion of all other firearms in the world"? And I wonder how many times those experts were simply wrong?
"UN torture expert condemns solitary confinement for juveniles, mentally disabled"
Governments should ban solitary confinement [press release] for juveniles and prisoners with mental disabilities, a UN torture expert said Tuesday in a report to the UN General Assembly [official website]. UN Special Rapporteur on torture Juan Mendez [official website] told the assembly members that governments should impose solitary confinement only in exceptional circumstances and for short periods of time. Mendez reported that solitary confinement, which he defined as "any regime where an inmate is held in isolation from others (except guards) for at least twenty-two hours a day," is subject to widespread abuse, and described instances of extreme isolation practices in countries such as Kazakhstan, China and the US.
Simons on the Application of Noncriminal Law Standards to Criminal Law Culpability
Kenneth W. Simons (Boston University - School of Law) has posted Ignorance and Mistake of Criminal Law, Noncriminal Law, and Fact (Ohio State Journal of Criminal Law, 2011) on SSRN. Here is the abstract:
After clarifying the distinction between mistakes of fact and mistakes of law, this article explores in detail an important distinction within the category of mistake of law, between mistake about the criminal law itself and mistake about noncriminal law norms that the criminal law makes relevant - for example, about the civil law of property (in a theft prosecution) or of divorce (in a bigamy prosecution). The Model Penal Code seems to endorse the view that mistakes about noncriminal law norms should presumptively be treated as exculpatory in the same way as analogous mistakes about facts. Case law on the matter is more ambiguous.
As a matter of policy, when should mistakes of noncriminal law exculpate? Should they always be treated in the same manner as an analogous mistake of fact? Sometimes? Answering these questions is a complex matter; the article identifies some relevant factors.
Conversely, when should a mistake of noncriminal law inculpate, creating attempt liability? In the parallel scenario of factually impossible attempts, liability is frequently imposed. But I suggest caution before recognizing attempt liability here.
Classifying a mistake as one of criminal or noncriminal law is especially difficult in three scenarios: the incorporation of a civil schedule of prohibited items within a criminal law, the criminalization of acts that violate a civil regulatory prohibition, and criminal law terms whose meaning draws from both criminal law and civil law.
A final section questions the view that we should always give symmetrical treatment to (1) exculpatory mistake and ignorance (precluding liability for the completed crime) and (2) inculpatory mistake and ignorance (producing liability for the attempt). This view is especially implausible when applied to categories of mens rea other than belief or knowledge. Ignorance, for example, will often exculpate, but it will rarely inculpate.
Chettiar and Gupta on Sentencing and Incarceration Reform
Inimai Chettiar and Vanita Gupta (American Civil Liberties Union) have posted Smart Reform is Possible: States Reducing Incarceration Rates and Costs While Protecting Communities on SSRN. Here is the abstract:
Since President Richard Nixon first announced the "War on Drugs" 40 years ago, the United States has adopted "tough on crime" criminal justice policies that have given it the dubious distinction of having the highest incarceration rate in the world. These past 40 years of criminal justice policymaking have been characterized by overcriminalization, increasingly draconian sentencing and parole regimes, mass incarceration of impoverished communities of color, and rapid prison building. These policies have also come at a great expense to taxpayers. But budget shortfalls of historic proportions are finally prompting states across the country to realize that less punitive approaches to criminal justice not only make more fiscal sense but also better protect our communities.
This report highlights six traditionally "tough on crime" states – Texas, Mississippi, Kansas, South Carolina, Kentucky, and Ohio – that recently passed significant bipartisan reforms to reduce their prison populations and budgets. These states experienced declines in their crime rates while these new policies were in place. The report also highlights national trends in criminal justice legislation and offers a number of recommended ways that lawmakers in other states can reform their pre-trial, sentencing, parole, and probation systems. Smart Reform is Possible serves as an exciting and essential blueprint for states on the cusp of considering the reform of their corrections systems.
October 19, 2011
Leshem on the Benefits of a Right to Silence for Criminal Defendants
Shmuel Leshem (USC Gould School of Law) has posted The Benefits of a Right to Silence for the Innocent (RAND Journal of Economics, Vol. 41, No. 2, pp. 398-416, 2010) on SSRN. Here is the abstract:
This article shows that innocent suspects benefit from exercising their right to silence during criminal proceedings. We present a model in which a criminal suspect can either make a statement or remain silent during police interrogation. At trial, the jury observes informative but imperfect signals about the suspect's guilt and the truthfulness of the suspect's statement. We show that a right to silence benefits innocent suspects by providing them with a safer alternative to speech, as well as by reducing the probability of wrongful conviction for suspects who remain silent with and without a right to silence.
Expert testimony that Conrad Murray was grossly negligent
Colin Miller at EvidenceProf Blog has this assessment of whether this evidence would have been excluded if it had been objected to. Bottom line: "While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California."
"U.S. Urges Opening Up Old Grand Jury Records"
From the New York Times:
WASHINGTON — The Obama administration, in a move that could open up more transcripts of historically significant grand jury testimony from many years ago, is proposing to change a rule that imposes strict and permanent secrecy requirements on such records.
In a letter to a committee of judges who shape the Federal Rules for Criminal Procedure, Attorney General Eric H. Holder Jr. wrote that the rule making it a crime to disclose grand jury information should be amended to allow courts to lift the veil of secrecy from transcripts that are at least 30 years old if their disclosure would not affect any still-living witness or investigative target. Mr. Holder also proposed allowing all grand jury materials that are deemed historically significant and that are at least 75 years old to be made public through the National Archives, without any need for a court review.
. . .
Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, said that it was important to preserve general secrecy around the grand jury so witnesses would testify “freely and without fear,” but that there was a need to balance that concern with the public interest in eventual disclosure of historically significant information.
Perry on Whether Capital Punishment is "Cruel and Unusual"
Michael J. Perry (Emory University School of Law) has posted Is Capital Punishment ‘Cruel and Unusual’? (The Constitutional Morality of the United States: Human Rights and Judicial Review, Forthcoming) on SSRN. Here is the abstract:
The right of every human being – every human being without exception – not to be subjected to any punishment that is “cruel, inhuman or degrading” is an international human right. A version of that right is entrenched in the constitutional law of the United States: the right of every human being – again, without exception – not to be subjected to any punishment that is “cruel and unusual”. In this paper, I inquire both whether capital punishment is “cruel, inhuman or degrading” and, next, whether capital punishment is “cruel and unusual”.
Johnson on the Financial Inability Defense to Tax Crimes
Steve R. Johnson (Florida State University - College of Law) has posted The Financial Inability Defense to Tax Crimes (ABA Section of Taxation News Quarterly, Vol. 23, No. 3, p. 6, Forthcoming) on SSRN. Here is the abstract:
Your client files an income tax return correctly stating her tax liability, but she does not pay the reported liability. Usually, this is a civil matter, implicating the failure-to-pay penalty of section 665l(a)(2). In aggravated circumstances, it can become criminal under either section 7201 or section 7203.
October 18, 2011
"A New Reason for the Drop in Crime"
Yes, the article does begin with a mumbled admission that the reasons for the generation-long drop in crime are already fairly well understood. It even admits, albeit quickly and quietly, that increased incarceration and more aggressive policing are in the mix. But the real reason, you see, is that Obama's election has "given the government more legitimacy."
Ferzan on the Fit Between Causation and Criminal Liability
Kimberly Kessler Ferzan (Rutgers School of Law - Camden) has posted The Unsolved Mysteries of Causation and Responsibility (Rutgers Law Journal, Forthcoming) on SSRN. Here is the abstract:
This article is part of a symposium on Michael Moore's Causation and Responsibility. In Causation and Responsibility, Moore adopts a scalar approach to factual causation, with counterfactual dependency serving as an independent desert basis. Moore’s theory of causation does not include proximate causation. The problem with Moore's argument is that the problems with which proximate causation dealt - how and when to limit cause in fact - remain unresolved.
In this paper, I focus on two sets of problems. The first set is the “fit” or categorization problems within the criminal law. I focus on three matches: (1) the fit between what the defendant intended and what the law forbids; (2) the fit between the result the defendant intended and the harm actually caused; and (3) the fit between the way the defendant foresaw the causal mechanism working and the actual route that occurred. Although the first question was always a culpability question, Moore shifts the latter two inquiries from causation to culpability. I will argue that relocating the questions does not resolve them and that to the extent Moore offers some preliminary answers, they are insufficient. The second part of this paper turns to the role that counterfactual dependence plays. Moore argues that counterfactual dependence is not a form of causation but is its own independent desert basis, a basis that plays an important role in omission liability. Here, too, because Moore shifts the question outside of causation, he does not fully resolve the very problems he identifies. Hence, even if these questions have found their proper homes, they have not found answers.
Griffin on the Federal Common Law Crime of Corruption in Government and Public Services
This contribution to the North Carolina Law Review’s 2010 symposium, Adaptation and Resiliency in Legal Systems, considers the compatibility between the common law nature of honest services fraud and the dynamic quality of public integrity offenses. Corruption enforcement became a focal point of recent debates about overcriminalization because it typifies expansive legislative mandates for prosecutors and implicit delegations to courts. Federal prosecutions of political corruption have relied primarily on an open-textured provision: 18 U.S.C. § 1346, the honest services extension of the mail fraud statute. Section 1346 raises notice concerns because it contains few self-limiting terms, but it has also acquired some principled contours through common law rulemaking. Those boundaries are consistent with an animating principle of public corruption prosecutions: ensuring detached decisionmaking in the public interest. The distortive potential of significant personal financial gain may best distinguish actionable corruption from ordinary political dealings.
Although the Supreme Court granted certiorari in the Skilling, Black, and Weyhrauch trio of cases in part to consider the link between harm and liability for honest services fraud, the Court did not address the issue, instead simply limiting the statute to bribes and kickbacks. Recent public corruption prosecutions illustrate some shortcomings of that decision and indicate that the courts could better confine honest services fraud by building on the harm constraint that had begun to emerge through the common law. The concluding sections here explore both the way in which a purposive interpretation might limit honest services prosecutions and the extent to which unanswered questions in the Skilling decision still allow for development of the harm concept.
Baer on the Tension Between Corporate and Criminal Law
Miriam H. Baer (Brooklyn Law School) has posted Organizational Liability and the Tension between Corporate and Criminal Law (Journal of Law and Policy, Vol. 19, No. 1, 2010, Brooklyn Law School, Legal Studies Paper No. 251) on SSRN. Here is the abstract:
This Essay, written as part of the 2010 Hon. David G. Trager Public Policy Symposium, recasts the corporate criminal liability problem as a tension between corporate and criminal law. On one hand, we would like to use criminal law to exact retribution from corporate entities, express our moral condemnation for the acts that have taken place within and through those entities, and to impose structural reforms that prevent future wrongdoing. Where publicly held corporations are concerned, however, it is difficult to do to impose entity-level criminal liability without also invoking responses from shareholders and innocent employees, who argue quite forcefully that they are not the proper repositories of blame. In response to this critique, some proponents have suggested that shareholders ought to play a greater role in managing the corporation and that criminal liability is valuable insofar as it spurs shareholders to exercise greater oversight over corporate managers. But this question – the role that shareholders ought to play in the management of the publicly held corporation – is not ordinarily the province of criminal law. Rather, it is the preoccupation of corporate law, whose doctrines purposely leave shareholders with relatively little power to run the corporation’s daily affairs. It may be that there is reason to alter this balance of power, but if so, the issue is more appropriately left to the architects of corporate, and not criminal, law.
October 17, 2011
Semitsu on Constitutional Protections Against Unreasonable Searches and Seizures on Social Networks
Junichi P. Semitsu (University of San Diego School of Law) has posted Arresting Development: Facebook Searches and the Information Super Highway Patrol (Arkansas Law Review, Forthcoming) on SSRN. Here is the abstract:
Does the right of the police to search an arrestee’s person and vehicle include the right to rifle through and clone all the content on his smart phone’s Facebook account? As recent court decisions have largely given police officers carte blanche to search a person’s cellular device, I raise this question because of the additional privacy and speech concerns triggered when such searches extend to social networking sites.
Facebook may be the furthest thing from the minds of those placed under arrest — especially those booked for minor traffic offenses only punishable by fines. But for those handcuffed near their smart phone, the social networking site may seismically shift the balance between their privacy and the police. As the most frequented stop today on the information super highway, Facebook has both mushroomed civilian traffic and escalated the highway patrol policing it away from public view. However, the true genesis of any seismic shift lies with the Court’s outdated Fourth Amendment jurisprudence and Congress’s failure to update federal privacy laws to consider methods of modern communication tools.
I begin this Article by conducting an empirical analysis of the ways that lower courts have allowed or barred a government search of an arrestee’s cellular phone (or other mobile electronic device). I demonstrate that these decisions suggest little hope of suppressing a post-arrest Facebook search, despite running afoul of principles underlying any exceptions to Fourth Amendment search rules. I then analyze the federal privacy laws that may be implicated by such searches. I determine that even if a search triggers federal privacy laws or avoids the myriad holes in the Swiss cheese of Fourth Amendment jurisprudence, the digital architecture of social networking punctures any hope that such searches can be challenged under existing privacy grounds.
This Article thus concludes that a First Amendment theory of privacy is necessary to offset the ramifications that boundless social networking searches have on free expression. Such blanket surveillance — along with the digital technology to perfectly record and copy it — has the potential to chill so much speech that the First Amendment may be the more meaningful and faithful lens through which to consider such searches. After all, in a matter of minutes, a police duplication of an arrestee’s Facebook account could cast a net covering years of personal communications by the arrestee — as well as the speech of hundreds of others. The implications are just as staggering as the difficulties facing an arrestee who wishes to challenge these practices under existing laws. As such, only the overbreadth doctrine provides the proper remedy to fully safeguard online First Amendment activities from these warrantless government fishing expeditions.