October 29, 2011
Moore on Full Open File Discovery Reform in Criminal Cases
Janet Moore (University of Cincinnati College of Law) has posted Opening the Black Box: Democracy and Criminal Discovery Reform after Connick v. Thompson and Garcetti v. Ceballos (Brooklyn Law Review, Vol. 77, 2012) on SSRN. Here is the abstract:
A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light.
Connick and Garcetti illustrate the unfairness and inefficiency caused by subordination of Due Process disclosure duties to other interests. The cases also point toward a solution. Available empirical evidence indicates that full open file discovery statutes are a model for nationwide reform. The statutes restrict the prosecutorial discretion inherent in Brady. They mandate disclosure by the prosecution to the defense of all information obtained in the investigation of a criminal case. As a model for substantive reform, the successful implementation of full open file discovery also vindicates litigation and legislation as complements to internal agency reform, which some scholars view as the sole effective strategy for regulating prosecutorial decision-making. Taken in this light, the investigation and litigation that led to the Connick and Garcetti rulings can open chapters in a similar reform story. The cases underscore Brady’s weak enforceability and the intolerable ensuing cost in wasted lives, trampled liberty, and squandered criminal justice resources. Their holdings should motivate broader adoption of full open file discovery rules as a prerequisite – a necessary, although not a sufficient condition – for improving efficiency, fairness, and finality in the resolution of criminal cases.
Mosteller on the Prosecutor's Ethical Duty to "Do Justice"
Robert P. Mosteller (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the Prosecutor’s Duty to 'Do Justice' in Extraordinary and Ordinary Miscarriages of Justice (The Prosecutor in Transnational Perspective, Erik Luna & Marianne Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
This essay discusses both the highly publicized extraordinary miscarriages of justice and unfortunately the much too frequent ordinary variety. It begins with the Duke Lacrosse and Central Park Jogger cases, which were extraordinary. Sometimes in cases of both varieties outrageous ethical errors by prosecutors were at the core of the injustice, but more frequently the prosecution error was in quickly reaching an expected result relying on apparently persuasive but questionable sources of evidence. The cases often involve the use of informants who received substantial benefits for testimony that incriminates the defendant and scientific evidence that did not actually establish what it appeared to prove. Another type of scientific evidence - exonerating DNA evidence - typically rectified the error, apparently promising clear answers to questions of innocence. Unfortunately, such certainty is often missing in problematic cases. Indeed, scientific evidence may give us the false sense of an ability to determine clearly when errors have been made and divert attention from the often inherent impossibility of knowing whether justice has been done.
To be sure major ethical failures by prosecutors do occur, but the message of this essay is that they are not central to erroneous convictions. Instead, the more common and persistent problem lies in institutional weaknesses that give prosecutors a narrow focus to their task as it relates to the innocent. The key relevant ethical command is that the prosecutor “do justice,” which is sometimes explicitly violated or callously ignored but is more commonly given insufficient attention. As a result, the essential problem common to these cases is not likely to be rectified by the creation or enforcement of ethical commands. Instead, critical reforms are likely to appear mundane and to be forward-looking rather than attention-grabbing and remedial. They entail institutional redesign and the implementation of standard practices, such as broad discovery, which may appear far removed from lofty pronouncements in ethical rules.
October 28, 2011
Simon on Determining the Liability of a Defendant Under the Felony-Murder Doctrine
Michelle S. Simon (Dean Pace University, School of Law) has posted Whose Crime is it Anyway? Liability for the Lethal Acts of Nonparticipants in the Felony University of Detroit Mercy Law Review, Vol. 71, No. 2, 1994 on SSRN. Here is the abstract:
This Article explores the methodology that courts should employ when determining the liability of a defendant under the felony-murder doctrine, where the perpetration of a felony results in the death of - a nonparticipant in the crime by another nonparticipant. Part I of the Article addresses the history of the doctrine, the policies that have sustained it throughout history, and the modern statutory promulgations of the rule. Part II explores not only how courts have handled the doctrine's causation requirement, but also how legislatures have responded to this requirement. Further, Part II discusses the court created theories of agency and proximate cause. Part III addresses the need for a consistent analytical framework and demonstrates the current confusion that has resulted from courts construing a statute to require different causation approaches. Part III submits that the courts' reliance on the agency theory, which requires an initial determination that a felon shot the fatal bullet, is inconsistent with both society's view towards crime and principles of statutory analysis. By applying the agency theory, the courts are using causation to restrict the application of the felony-murder doctrine, a responsibility that should be left to the legislature. Part IV proposes a methodology that is consistent with both principles of statutory interpretation and society's view toward crime. This approach uses the ordinary rules of causation and modifies them to apply to felony-murder. As an example, the proposed methodology is applied to various factual scenarios where the person who does the killing is unknown, or is someone other than the defendant, and the victim is a nonparticipant in the felony. Under this analysis, courts can not only interpret the causation requirement of the felony-murder doctrine consistently, but can also ensure the uniform administration of justice.
DeBacker on the Influence of Imported Cultural Norms on Tax Evasion in the U.S.
Jason Matthew DeBacker (U.S. Department of the Treasury), Bradley T. Heim, and Anh Tran have posted Importing Corruption Culture from Overseas: Evidence from Corporate Tax Evasion in the United States on SSRN. Here is the abstract:
This paper studies how cultural norms and enforcement policies influence illicit corporate activities. Using confidential IRS audit data, we show that corporations with owners from countries with higher corruption norms engage in higher amounts of tax evasion in the U.S. This effect is strong for small corporations and decreases as the size of the corporation increases. In the mid-2000s, the United States implemented several enforcement measures which significantly increased tax compliance. However, we find that these enforcement efforts were less effective in reducing tax evasion by corporations whose owners are from countries with higher corruption norms. This suggests that cultural norms can be a challenge to legal enforcement.
October 27, 2011
Fincham on Defining Art Crime
Art, like any other object of value is often the target of criminal actions, from theft to forgery and even vandalism. These crimes are breaches of laws or norms prescribing how humans ought to behave. Art, generally speaking, is the process of arranging sounds, colors or elements in a way, which appeals to senses, thought or emotion. Art is created for a number of reasons: it is a basic human impulse, it allows us to experience the mysterious and sublime, it conveys the inner-workings of the human imagination, allows for communications, it entertains us, attempts to create political or societal change, or even questions basic assumptions. But the term “art” also applies to judgments of value; it is a measure of value or quality determined by an individual. In this way the deﬁnition of art and crime may be subjective, but also subject to the same kind of norms and value judgments we attach to crimes.
Eastman on the Jurisdictional Reach of Federal Treaties in Domestic Criminal Cases
Carol Anne Bond assaulted her former best friend with some chemicals she took from her workplace when she discovered the former friend was carrying her husband's baby. She was prosecuted not by the local district attorney for the simple assault, but by the U.S. Attorney for violating the federal statute that implements the international treaty against the use of chemical weapons. Mrs. Bond claimed that the federal statute under which she was convicted was an unconstitutional overreach of federal power, intruding into areas of core state sovereignty. The Third Circuit held that Mrs. Bond did not even have standing to raise that constitutional challenge. The U.S. Surpreme Court unanimously reversed. This article explores both the Supreme Court's jurisdictional holding and the merits of Mrs. Bond's constitutional challenge that will now be considered on remand to the lower courts. Essentially, the issue is whether the federal government can expand its own constitutional powers by use of the Treaty Clause, and this Article argues that it cannot.
October 26, 2011
Lipton on the Criminal Liability and Property Rights of the Corporate Person in the Wake of Citizens United
Daniel Lipton has posted Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century (Virginia Law Review, Vol. 96, 2010) on SSRN. Here is the abstract:
Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.
After 1905, Congress and state legislatures passed laws banning corporate political expenditures. Around the same time, lawmakers enacted groundbreaking statutes subjecting entire corporations to criminal liability. The American judiciary reacted favorably to both legislative movements, contemporaneously citing elements of artificial entity theory to justify bans against political contributions, and real entity theory to rationalize corporate criminal liability. This suggests that the real entity and artificial entity theories were more instrumental than foundational concepts in the courts.
The judiciary, however, was not without doctrinal ballast. It defined corporate personhood and constitutional rights through the property interests entangled in the corporation. Corporate personhood thus emerged in the decades preceding and following the turn of the twentieth century through the substantive due process analysis that characterized much of the Lochner Era jurisprudence. This concept of corporations as repositories of property interests ultimately explains why courts were willing to uphold bans on corporate political contributions and recognize corporate criminal liability.
The Note concludes by examining the continued relevance of property interests with regard to corporate personhood in the recent and controversial Citizens United decision. In particular, without directly challenging the First Amendment policies of the present Court, this Note seeks to add historical depth to the debate in Citizens United and demonstrate that affording corporations the right to political expenditures was neither doctrinally mandated nor historically inevitable.
Kuzma on the Distinctions Between U.S. Military and State Victim Compensation Programs
Margaret Rose Kuzma has posted Taking Care of its Own: Comparing the United States Military's Transitional Compensation Program with State Victim Compensation Programs (DePaul Journal of Women, Gender & the Law, Vol. 1, p. 77, 2011) on SSRN. Here is the abstract:
The U.S. Army prides itself on its commitment to “take care of its own.” This ethos signifies that service members and their families all comprise a larger “Army Family,” in which members protect one another. Accordingly, a service member’s family is as much a part of the “Military Family” as the service member. But how does this ethical standard endure when the service member is committing acts of domestic violence against his family? In 1994, part of the National Defense Authorization Act implemented a program through which the military continues to pay a former service member’s dependents if he is discharged from the military for domestic abuse. How does this compensation program measure up to states’ efforts to compensate victims of crimes? By detailing the specifics of the military’s Transitional Compensation program and by taking a broad look at state victim compensation programs, this article sets out to investigate who takes better care of whom, and whether the two systems can learn from each other.
October 25, 2011
West on Post-verdict Evidence of Juror Bias
Jessica L. West (Vermont Law School) has posted 12 Racist Men: Post-Verdict Evidence of Juror Bias (Harvard Journal of Racial & Ethnic Justice, Vol. 27, p. 165, 2011) on SSRN. Here is the abstract:
Federal Evidence Rule 606(b) and similar state rules prohibit post-verdict admission of juror statements, including racist or biased remarks, made during deliberations. The roots of the evidentiary prohibition are historically deep and the interests underlying the Rule implicate the very existence of the jury system. Constitutionality of the post-verdict evidentiary exclusion is based upon the presumption that pre-trial and trial mechanisms exist to discern juror bias prior to deliberations. Empirical studies and recent cases indicate, however, that these mechanisms do not currently operate to adequately expose or remove juror biases. This article argues that the expansion of these mechanisms, including more diverse jury venires, more robust and effective juror voir dire, less discretion for parties to remove jurors on the basis of race, and the development of jury admonitions directly addressing bias, will reduce juror expressions of bias during deliberations.
Even with these reforms, however, not all juror bias will be disclosed and, whether for reasons of embarrassment, inattention or intent, some jurors will misrepresent material biases during voir dire. To address juror misrepresentations during voir dire, the article proposes a narrow exception to Rule 606(b) permitting inquiry into juror bias for the purpose of showing juror misrepresentation. The article’s unique approach of combining enhanced pre-trial and trial mechanisms with a narrow exception to the rule to address juror misrepresentations strikes a balance between upholding the goals underlying Rule 606(b) and the right to a fair trial by an impartial jury.
Walker on Rethinking the Frameworks of the Model Penal Code and Common Law
Anders Walker (Saint Louis University School of Law) has posted The New Common Law: Courts, Culture, and the Localization of the Model Penal Code (Hastings Law Journal, Vol. 62, No. 6, 2011) on SSRN. Here is the abstract:
Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this article proposes a radical update, emphasizing two objectives: 1) the need to stress the interplay between individual state cases and codes, and 2) the need to abandon the position that the MPC represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.
Taussig-Rubbo on the Nature of the Death Penalty
Mateo Taussig-Rubbo (University at Buffalo Law School, SUNY) has posted The Unsacrificeable Subject? (Who Deserves to Die?, p. 131, Austin Sarat & Karl Shoemaker, eds., University of Massachusetts Press) on SSRN. Here is the abstract:
Formalized, legalized and ritualized killing by political and religious authorities has been central to the maintenance, transformation and regeneration of a vast range of human societies. Whether the destruction was of human beings, other animals or vegetable life, these actions were very often forms of sacrifice to sovereign powers conceived of as partial outsiders to whom/which offerings could be made. Sacrifice mediated between sovereign and subject.
The rejection of sacrificial action is at the heart of many conceptions of political modernity (for instance those of Rene Girard and Giorgio Agamben). My essay reflects on whether these forms of action and meaning have resonance with the role of the death penalty in contemporary states, or whether the points of similarity are superficial and overwhelmed by the many obvious differences. Can thinking about sacrifice offer insight into the continued support for the death penalty in the United States, China and many other nations and its rejection in Western Europe?
Certain sacrificial rites, such as those of purification, atonement, expiation or scapegoating, seem deeply salient for thinking about the death penalty. These capture dimensions of the social reality of the death penalty not grasped by our usual vocabulary of deterrence, retribution and justice. A theoretically explicit and conceptually grounded examination of these forms of sacrifice, then, may prove illuminating. On the other hand, other ritual elements found in many examples of sacrifice involve a giving of the self and a transformation of profane into sacred that are perhaps less resonant. In exploring the nature of the executable subject, I ask whether the killing that takes place as a result of the imposition of the death penalty is neither sacrificial nor homicidal and whether the subjectivity at issue is that of the unsacrificeable.
October 24, 2011
Broughton on States' Interests in Criminal Prosecution Versus Competing Federal Interests
J. Richard Broughton (University of Detroit Mercy School of Law) has posted Federalism, Harm, and the Politics of Leal v. Texas (Syracuse Law Review, Forthcoming) on SSRN. Here is the abstract:
Humberto Leal Garcia, a Mexican national who had lived in the United States since the age of two, was convicted and sentenced to death in Texas for brutally raping and killing sixteen-year-old Adria Sauceda in 1994. In 2011, he asked the United States Supreme Court to stay his execution because Texas officials had not given him access to the Mexican Consulate, in violation of an international treaty. His case ignited a brief but powerful storm of controversy that went beyond his legal claims and ventured into the arena of politics, placing even some conservative instincts about constitutional politics at odds with each other – notably, presidential claims of American foreign policy interests against federalism-based claims about the ability of States to administer their own criminal justice system without federal interference. In this short article, I endeavor to explain why, although the President’s political claims were legitimate, the Court’s ultimate decision to deny Leal relief correctly rejected reliance on a hypothetical legislative enactment and properly weighed the competing assertions of harm by vindicating the strength of the State’s capital prosecution. The weight of the guilt and punishment phase evidence proved significant, even in light of the asserted federal interests, and consular access would not have altered the outcome of Leal’s trial or sentencing. This weighing of the competing harms is consistent with both the pending legislation upon which Leal relied and with existing jurisprudence that protects State criminal law authority and interests.
Kirk, Papchristos, Fagan, and Tyler on the Conflict Between Criminal Law Enforcement and Immigration Law
David Kirk, Andrew V. Papachristos, Jeffrey Fagan (Columbia Law School, pictured) and Tom Tyler (New York University - School of Law) have posted The Paradox of Law Enforcement in Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety? (Columbia Public Law Research Paper No. 11-281) on SSRN. Here is the abstract:
Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities - even law abiding, cooperative individuals - from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that laws are enforced fairly. In contrast, research reveals that cynicism of the police and the legal system undermines individuals’ willingness to cooperate with the police and engage in the collective actions necessary to socially control crime. By implication, recent trends toward strict local enforcement of immigration laws may actually undercut public safety by creating a cynicism of the law in immigrant communities. Using data from a 2002 survey of New York City residents, this study explores the implications of perceived injustices perpetrated by the criminal justice system for resident willingness to cooperate with the police in immigrant communities.
Casebeer on the Criminalization of Organized Labor
Kenneth M. Casebeer (University of Miami - School of Law) has posted 'The Law is a Gun Thug in a Big Automobile': Criminalizing Labor in American History (University of Miami Legal Studies Research Paper No. 2011-30) on SSRN. Here is the abstract:
As documented in the newly published book - Kenneth Casebeer, American Labor Struggles and Law Histories - criminal law has been continually deployed to discourage or destroy collective action. Prosecuting cartage haulers in the 1760's, criminal conspiracy in early journeymen strikes, Police riot and martyrdom at Haymarket, Debs' contempt incarceration, trespass, murder prosecution in Gastonia, and in Elaine, Arkansas, Vagrancy in Free Speech fights, the Bisbee Deportation, arrests in steel, the Chicago Memorial Day Massacre, arrests and kangaroo trials on the Docks, outlawing the sit-downs and mutiny for sit-downs on ships in ports. Labor organization has always been some kind of crime in America and thus a critical lever of economic inequality and suppressing mobilization against it.
October 23, 2011
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