Saturday, October 22, 2011
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.
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.
Friday, October 21, 2011
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.
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.
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.
Thursday, October 20, 2011
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.
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?
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.
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.
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.
Wednesday, October 19, 2011
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.
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.
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”.
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.
Tuesday, October 18, 2011
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."
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.
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.
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.
Monday, October 17, 2011
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.