November 12, 2011
Dore on Greenlighting American Citizens
Philip Dore (Student, Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Greenlighting American Citizens: Proceed with Caution (Louisiana Law Review, Vol. 72, p. 255, 2011) on SSRN. Here is the abstract:
Name-calling is hurtful. But when the Obama Administration labeled Anwar al-Awlaki as a “global terrorist,” it was a death sentence. According to various media reports, the Obama Administration authorized the C.I.A. to use lethal force against al-Awlaki, a dual U.S.-Yemeni citizen. A U.S. drone attack targeted but missed al-Awlaki in May 2011. Approximately four months later, armed drones operated by the C.I.A. fired a barrage of Hellfire missiles at a car carrying him and at least one other person. Al-Awlaki and another American citizen, Samir Khan, were killed.
This Comment argues that the C.I.A.’s targeted killing of al-Awlaki is prohibited under 18 U.S.C. § 1119, commonly known as the foreign-murder statute. Although the Obama Administration might seek to avoid this prohibition by relying on the laws of war, this Comment concludes that any such reliance is misplaced for two reasons: (1) the particular laws of war on which the Administration must rely are non-self-executing, and (2) those laws have not been incorporated in domestic legislation. Consequently, the Administration must rely on the Authorization for Use of Military Force (AUMF) to justify violating the foreign-murder statute. The AUMF does not, however, provide the needed justification.
Part I of this Comment explores the background of the President’s authorization to target al-Awlaki and the federal and international law relevant to that decision. It concludes with a discussion of Al-Bihani v. Obama, the judiciary’s latest ruling regarding the relationship between international and domestic law. Part II begins with a discussion of the status of treaties in the United States before and after Medellin v. Texas, a pivotal Supreme Court decision.The domestic status of relevant provisions of the laws of war is then considered in light of Medellin. Part II next discusses whether those laws of war have been incorporated through a federal statute, specifically, the Uniform Code of Military Justice (UCMJ), or the AUMF.This section is followed by a discussion of whether the AUMF supersedes the foreign-murder statute.
The Comment concludes that the foreign-murder statute prohibits the targeted killing of al-Awlaki. Thus it is difficult to avoid the conclusion that any C.I.A. operative that executed President Obama’s order to kill al-Awlaki is guilty of murder under the foreign-murder statute. An equally unavoidable conclusion is that certain high-ranking executive officials, including the President, would share in that criminal culpability.
Giannini on Procedural Justice, the Crime Victims‘ Rights Act, and the Victim‘s Right to Be Reasonably Protected from the Accused
Mary Margaret Giannini (Associate Professor of Law, Florida Coastal School of Law) has posted Redeeming an Empty Promise: Procedural Justice, the Crime Victims‘ Rights Act, and the Victim‘s Right to Be Reasonably Protected from the Accused (Tennessee Law Review, Vol. 78, 2010) on SSRN. Here is the abstract:
The federal Crime Victims‘ Rights Act (CVRA) provides victims with a host of rights, including reasonable protection from the accused. However, the current protection language in the CVRA offers very little to victims in the form of a meaningful, substantive, and enforceable right. Constitutional principles, tort immunity concepts, as well as other statutory limits within the CVRA itself, constrain the extent to which victims can rely on or enforce a right to protection. While the victim‘s CVRA right to protection may currently represent an empty promise, this article asserts that the right can be redeemed if it is interpreted and redefined by procedural justice principles. Many of the other rights granted to victims under the CVRA are naturally grounded in procedural justice theory. When framed in this manner, the CVRA affords victims a meaningful role in the prosecution of the offender, while also providing a tangible process by which to enforce their rights. This article proposes ways to bring the victim‘s protection right into alignment with procedural justice theory as well as with the other rights granted to victims under the CVRA. Viewing the CVRA‘s right to protection through procedural justice principles, the CVRA will cease to be an empty promise and instead, can serve crime victims in a meaningful way.
November 11, 2011
Murray on Marriage as Punishment
Popular discourse portrays marriage as a source of innumerable public and private benefits, happiness, companionship, financial security, and even good health. Complementing this view, our legal discourse frames the right to marry as a right of access, the exercise of which is an act of autonomy and free will. However, a closer look at marriage’s past reveals a more complicated portrait. Marriage has been used - and importantly, continues to be used - as state-imposed sexual discipline.
Until the mid-twentieth century, marriage played an important role in the crime of seduction. Enacted in a majority of U.S. jurisdictions in the nineteenth century, seduction statutes punished those who 'seduced and had sexual intercourse with an unmarried female of previously chaste character' under a 'promise of marriage.' Seduction statutes routinely prescribed a bar to prosecution for the offense: marriage. The defendant could simply marry the victim and avoid liability for the crime. However, marriage did more than serve as a bar to prosecution. It also was understood as a punishment for the crime. Just as incarceration promoted the internalization of discipline and reform of the inmate, marriage’s attendant legal and social obligations imposed upon defendant and victim a new disciplined identity, transforming them from sexual outlaws into in-laws.
The history of marriage as punishment offers important insights for contemporary discussions of marriage. It reveals the way in which our current discourses of marriage are naïve and incomplete, emphasizing marriage’s many attributes while downplaying its role as a vehicle of state-imposed sexual discipline. In view of this history, our contemporary jurisprudence on the right to marry can be reread to reveal the disciplinary strains that continue to undergird marriage and the right to marry. Most importantly, this history reveals that state regulation of sex and sexuality has been a totalizing endeavor, relying on marriage and criminal law as two essential domains for disciplining and regulating sexuality.
With this in mind, the recent struggle for marriage equality seems unduly narrow. While achieving marriage equality is important, this history underscores an equally important interest in defining and preserving spaces for sexual liberty that exist beyond the disciplining domains of the state.
Tinto on Waiver of the Sixth Amendment Right to Counsel
Katie Tinto (New York University (NYU) - School of Law) has posted Wavering on Waiver: Montejo v. Louisiana and the Sixth Amendment Right to Counsel (American Criminal Law Review, Vol. 48, p. 1335, 2011) on SSRN. Here is the abstract:
This Article analyzes the future of the Sixth Amendment right to counsel following the United States Supreme Court case of Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Court overturned a long-standing prohibition on the interrogation of a represented defendant without his counsel present. Now, following Montejo, the police may approach a criminal defendant and ask him, outside the presence of his lawyer, to waive his Sixth Amendment right to have counsel present during an interrogation.
This significant change in Sixth Amendment law raises many new questions regarding the scope and procedure of a waiver of the Sixth Amendment right to counsel. In addressing these questions, this Article first critiques the Montejo decision for its conflation of the Sixth Amendment right to counsel with the Fifth Amendment right to counsel. This Article posits that the Court wrongly grafted Fifth Amendment notions of voluntariness and coercion onto its Sixth Amendment analysis, thereby ignoring traditional Sixth Amendment concerns, such as fairness in the adversarial process and the provision of counsel as an intermediary between the defendant and the State. This Article then considers several questions that arise in the wake of Montejo, including: whether a formal waiver is still needed to waive the Sixth Amendment right to counsel; if it is, what language constitutes a valid waiver; and what police conduct will invalidate a waiver? In answering each of these questions, this Article discusses the inherent limitations of the Montejo Court’s conclusion that the protections afforded by the Fifth Amendment right to counsel, namely those of Miranda and its progeny, offer sufficient protection of a defendant’s Sixth Amendment right to counsel. Finally, this Article argues that these Fifth Amendment-based protections are, in fact, insufficient, and courts should answer these post-Montejo questions by reaffirming the distinct fundamental principles that underlie the Court’s traditional Sixth Amendment right to counsel jurisprudence.
November 10, 2011
Rychlak and Hinshaw on Therapeutic Justice and the Gaming Industry's Impact on Law
Ronald J. Rychlak and Corey Hinshaw (University of Mississippi, School of Law, pictured, and affiliation not provided to SSRN) have posted From the Classroom to the Courtroom: Therapeutic Justice and the Gaming Industry's Impact on Law (Mississippi Law Journal, Vol. 74, No. 3, Winter 2005) on SSRN. Here is the abstract:
Gambling is increasing in our society, and the courts cannot ignore the medically recognized mental disorder of pathological gambling that is likely the root cause of a number of crimes and social ills. Therapeutic justice can be an important way for society to look at these problems. Incarcerating compulsive gamblers without identification of their problems does not help the criminal or society as a whole. Drug courts throughout the nation and the gambling court in NY can serve as models for future gambling courts.
Markel on Making Punishment Safe for Democracy
Dan Markel (Florida State University College of Law) has posted Making Punishment Safe for Democracy: A Reply to Professors Bowers, Cahill & Duff (Virginia Journal Criminal Law, Vol. 1, 2012) on SSRN. Here is the abstract:
Professors Josh Bowers, Michael Cahill, and Antony Duff have each penned subtle and thoughtful response essays to my article, Retributive Justice and the Demands of Democratic Citizenship (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1930443). In this essay, I try to offer some initial thoughts that I hope will adequately address their separate challenges and queries. With respect to the challenges they offer, I should say that, in a few places, I offer some concessions. In most others, however, I decline their invitations to reconsider my arguments about our moral obligations to conform to or to enforce what I call permissibly dumb but not illiberal laws. Comments on this draft are welcomed and invited.
Professor Bowers' essay can be found at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1945743
Professor Cahill's essay can be found at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1950660
November 8, 2011
Baradaran on the Issues of "Predictive Justice" and Pretrial Detentions
Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted The State of Pretrial Detention (The State of Criminal Justice, American Bar Association, 2011) on SSRN. Here is the abstract:
While under the common law judges presumed that most defendants would be released on bail before trial, now only some defendants are guaranteed pretrial release. Historically, due process and the presumption of innocence guaranteed criminal defendants the right to release before trial unless there was a serious risk of flight. The evolution of bail law has rendered this former guarantee meaningless. Now judges use various factors to determine release based on a prediction of whether the defendant is guilty and how dangerous he will be if released pretrial. Two problems result from the new “predictive” state of pretrial detention: 1) the failure of judges to accurately predict which defendants pose a threat to the community and 2) over-detention of defendants that can safely be released.
This chapter discusses a few solutions to dealing with the new state of predictive justice. While ideally judges would return to common law notions and presume bail for most defendants, this is unlikely with the state of federal and state statutory law. Given the legal reality, there are two recent approaches that address the problem of excessive pretrial detention and prejudice resulting for defendants incarcerated pretrial. First, judges could rely on empirical methods to better predict which defendants will commit crimes while on release. Using this evidence-based approach, judges could look at county-specific data and safely release more defendants, according to a recent study. Second, targeting a budget-conscious public, states and local governments can increase pretrial release supervision programs by demonstrating that it is less costly and sometimes even safer for the public. By incorporating alternatives to detention and increasing pretrial release programs, some states have shown that they can reduce the costs of the pretrial detention system, reduce pretrial crime, and eliminate the prejudice defendants often face with detention.
Part I of this chapter overviews the history and evolution of the U.S. system of predictive justice pretrial. Without an understanding of historical expectations that guaranteed bail for most defendants, it is difficult to understand how limited our current notions of pretrial release are and how current U.S. law has abandoned basic due process protections. Part II discusses the problems with past judicial predictions of pretrial crime and demonstrates how judges can release more defendants safely with empirical modeling. Using evidence-based modeling of county-specific data, according to a recent study, judges can release up to 25% more defendants while reducing overall pretrial crime. Part III discusses the new wave of bail reform, including a discussion of the American Bar Association (ABA) Standards on Pretrial Release. This part discusses how some states implementing reforms in line with these standards have increased pretrial release supervision programs by emphasizing fiscal responsibility. Demonstrating that pretrial release programs cost the public less than incarceration and better protect defendants’ rights is another way to increase pretrial release while maintaining community safety.
"Conrad Murray defense team had little chance, experts say"
From the Los Angeles Times:
The lawyers had to overcome an incriminating interview their client gave detectives; contend with a victim loved by millions around the globe; and deal with a series of court rulings that limited their attempts to point the finger at another possible culprit: The King of Pop himself.
Jurors were not allowed to hear evidence that Dr. Conrad Murray's defense team hoped would bolster their argument that Jackson was so drug-addled and starved for sleep that he accidentally overdosed on a surgical anesthetic as he prepared for a long-awaited comeback tour.
Opinion on date for determining whether law is clearly established under AEDPA
Argument transcript from case involving potentially exculpatory evidence and eyewitness identification
The transcript from Smith v. Cain is here.
Transcript from argument in GPS tracking case
The transcript from United States v. Jones is here.
November 7, 2011
Argument transcript in case discussing "aggravated felonies involving fraud and deceit"
The argument transcript from Kawashima v. Holder is here.
Statements regarding cert denial in capital case involving expert's opinion on correlation of race to crime
Justice Alito's statement in support of denying review, joined by Justices Scalia and Breyer, in Buck v. Thaler is here, stating that the statements "would provide a basis for reversal of petitioner's sentence if the prosecution were responsible for presenting that testimony to the jury. Justice Sotomayor's dissent from denial of cert, joined by Justice Kagan, is here.
Today's criminal law/procedure cert grants
Issue summaries are from ScotusBlog:
- Jackson v. Hobbs and Miller v. Alabama: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Summary reversal in habeas case involving confessions
November 6, 2011
Top-Ten Recent SSRN Downloads
University of San Diego School of Law,
Date posted to database: September 8, 2011
|2||360||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||253||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011
|4||247||The Invisible Man: How the Sex Offender Registry Results in Social Death
Elizabeth Berenguer Megale,
Barry University School of Law,
Date posted to database: October 4, 2011 [5th last week]
|5||238||Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011 [4th last week]
|6||226||Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism
Georgetown University - Law Center,
Date posted to database: September 9, 2011
|7||216||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
|8||197||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
|9||190||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011
|10||183||The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
The George Washington University Law School,
Date posted to database: September 8, 2011