November 26, 2011
Next week's criminal law/procedure oral argument
Issue summary is from ScotusBlog, which also links to papers:
- Setser v. U.S.: Whether the district court erred by directing that petitioner's federal sentence be served consecutively to a state sentence that had not yet been imposed.
November 25, 2011
Maddali on Recognizing the Punitive Nature of Deportations and the Need for Procedural Protections under Padilla v. Kentucky
Anita Ortiz Maddali (Northern Illinois University College of Law) has posted Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents? (American University Law Review, Vol. 61, No. 1, 2011) on SSRN. Here is the abstract:
In this Article, I argue that the deportation of lawful permanent residents on account of a criminal conviction is punitive, and therefore enhanced constitutional protections must be afforded to lawful permanent residents during removal proceedings. To support this argument I rely, in part, on the Supreme Court’s recent decision in Padilla v. Kentucky. The Padilla Court held that counsel must inform a client when a plea carries the risk of deportation. The Court’s analysis throughout the decision is groundbreaking in its recognition of the modern day realities of deportation - specifically the growing relationship between the immigration and criminal justice systems and the ways in which criminal convictions and deportation have become enmeshed over the years. The Court’s language provides support for the argument that deportation may not be a remedial exercise by the government to enforce immigration laws - as the Court has held for over a century - but may in fact constitute punishment. If deportation is recognized as punishment, then additional constitutional protections, like the right to counsel, must be afforded to lawful permanent residents who are in removal proceedings on account of criminal convictions.
This Article is novel in two respects. First, it offers a fresh look at the punitive nature of deportation, using the Padilla decision, and other case law, to bolster this argument. Second, this Article suggests that the analytical approach used by the Supreme Court in its juvenile delinquency jurisprudence, which extended greater constitutional protections to juveniles during the adjudicative stage of delinquency proceedings, could provide the framework for determining which protections should be afforded to lawful permanent residents who are in removal proceedings on account of a criminal conviction. Like deportation, juvenile delinquency proceedings have been labeled civil, but the Court has recognized that because a finding of delinquency could result in incarceration, the Due Process Clause requires additional protections during these proceedings. Similarly, lawful permanent residents face the risk of being removed from their country of permanent residence—this results in separation from family and removal from a person’s home. As such, due process requires the need for additional protections.
November 24, 2011
"Hate crime charges filed in Amish beard cutting"
From CNN.com. A little different from your typical hate crime--it seems the attacks were not motivated by the Amish status of the victims (unless the theory is that they held to the wrong strand of Amish views), but that the form of the attack too advantage of the special significance of beard cutting to Amish men:
(CNN) -- Seven members of a breakaway Amish group in eastern Ohio were arrested on federal hate crime charges for allegedly shaving the beards and cutting the hair of individuals who refused to support their leader, according to a criminal complaint released Wednesday.
. . .
The men charged are said to have carried out "a series of assaults against fellow Amish individuals with whom they were having a religiously based dispute," according to the Justice Department.
The Amish who were attacked are believed to be former members of Mullet's group who left over various disagreements. Mullet wanted to "seek revenge and punish the departing families," the federal documents said
November 23, 2011
Tetelbaum on Incentives for Post-Conviction Relief for the Wrongly Convicted
Elina Tetelbaum has posted Remedying a Lose-Lose Situation: How 'No Win, No Fee' Can Incentivize Post-Conviction Relief for the Wrongly Convicted (Connecticut Public Interest Law Journal, Vol. 9, No. 2, p. 301, 2010) on SSRN. Here is the abstract:
This Article proposes a policy measure that will likely lead to an increase in exonerations by creating economic incentives for attorneys to represent clients post-conviction.
Slobogin on Indeterminate Sentencing
Christopher Slobogin (Vanderbilt Law School) has posted Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases (San Diego Law Review, Vol. 48, 2011) on SSRN. Here is the abstract:
Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the legislature. The territory covered in this Article, particularly as it addresses the debate between deontological retributivists and utilitarians, is well-trodden. But this Article seeks to provide new perspectives on the morality, legality, and practicality of indeterminate sentencing. It starts with an outline of what a properly constituted indeterminate sentencing regime would look like. It then defends this regime against numerous objections.
November 22, 2011
Minzner on Comparing Administrative Agency Punishment with Criminal Punishment
In addition to promulgating regulations, federal administrative agencies penalize entities that violate their rules. In 2010 alone, the National Highway Traffic Safety Administration imposed a statutory maximum $16.4 million penalty on Toyota and the Securities and Exchange Commission recovered $535 million from Goldman Sachs, the largest civil penalty a financial services firm has ever paid. The academic literature proposes two major theories explaining why agencies might seek these monetary penalties. First, agencies might seek to deter misconduct by using civil penalties to raise the expected cost of regulatory violations above the cost of compliance. Alternatively, agencies might use civil penalties as one step in an escalating series of enforcement responses to recalcitrant behavior by a regulated entity. Both of these theories assume that agencies punish in order to induce compliance with agency regulations. In the language of the criminal law, agencies are assumed to be consequentialists. Agency descriptions of their penalty policies support this assumption. Agencies claim to focus on deterrence, not retribution, when setting penalties.
This Article argues that consequentialist theories fail to explain the actual civil penalty policies in place at a range of federal administrative agencies. Instead, agency penalty policies are largely designed to achieve retributive ends. In short, agencies are more interested in desert than deterrence. The presence of widespread retribution in agency punishment raises serious concerns about legitimacy and competence. Administrative agency punishment lacks the transparency and structural protections that legitimize retribution in the criminal context. Additionally, agency subject matter expertise is unlikely to extend far enough to effectively implement retributive theories.
Bowers and Robinson on Legitimacy and Moral Credibility in the Criminal Justice System
Josh Bowers (University of Virginia School of Law, pictured) and Paul H. Robinson (University of Pennsylvania Law School) have posted Perceptions of Fairness and Justice: The Shared Aims & Occasional Conflicts of Legitimacy and Moral Credibility on SSRN. Here is the abstract:
A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the community it governs by adopting and implementing fair enforcement practices and adjudicative procedures. A separate literature suggests that there is practical value in enhancing the system's "moral credibility" with the community by distributing criminal liability and punishment according to principles that track the community's shared intuitions of justice. In this Article, we examine the shared aims and the similarities in the operation and effect of these two criminal justice dynamics as well as the occasional differences in effect and potential for conflict. By comparing the two dynamics, the article moves forward debates that – though rich and important – have grown stagnant. Specifically, legal scholars have tended to invoke the two dynamics too casually, to ignore one but not the other, or to conflate or confuse the two.
This article provides a useful and necessary analytic framework for further exploration into the advantages and limits of moral credibility and legitimacy. Finally, the article stakes out tentative positions within the on-going debates. That is, it endorses the prevailing view that moral credibility and legitimacy are promising – indeed, critical – systemic enterprises that may carry significant crime-control advantages, and the article concludes that – for empirical and theoretic reasons – moral credibility ought to be the principal objective in uncommon circumstances in which a system may effectively pursue only one.
November 21, 2011
Kinports on Feminist Prosecutors Fighting Domestic Violence Cases
In Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Dempsey focuses on the dilemma prosecutors face when domestic violence victims are unwilling to cooperate in the criminal prosecution of their abusive partners. Starting from the premise that the ultimate goal should be putting an end to domestic violence, Dempsey urges prosecutors to act as feminists in deciding how to proceed in such cases. Doing so, Dempsey argues, will tend to make the character of the prosecutor’s community and state less patriarchal and thus help stamp out domestic violence. This article analyzes two issues arising from Dempsey’s work: first, whether prosecutors can justifiably be viewed as representatives of their states and communities; and, second, how prosecutors committed to using their discretion to battle both domestic violence and patriarchy would go about determining in a particular case whether to pursue criminal charges against the wishes of a victim.
Rushin on the Judicial Response to Advanced Police Mass Surveillance
The increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.
Harmon on Moving Beyond the Conventional Paradigm of Constitutional Law in Regulating Police Procedure
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police.
First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm-efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full “law of the police,” the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of § 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of non-judicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.
November 20, 2011
Top-Ten Recent SSRN Downloads
|1||374||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 [2nd two weeks ago]
|2||264||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 [4th previously]
|3||244||A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights
Christopher R. Green,
University of Mississippi - School of Law,
Date posted to database: October 20, 2011 [new to top ten]
|4||205||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011 [9th previously]
|5||191||The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
The George Washington University Law School,
Date posted to database: September 8, 2011 [10th previously]
|6||159||Foreign Corrupt Practices Act Fundamentals
The George Washington University Law School,
Date posted to database: September 6, 2011 [new to top ten]
|7||151||The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism
Guy Padraic Hamilton-Smith, Matthew Vogel,
Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: August 31, 2011 [new to top ten]
|8||145||Regulation for the Sake of Appearance
University of Chicago - Law School,
Date posted to database: October 13, 2011 [new to top ten]
|9||137||Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis
Wouter P. J. Wils,
Date posted to database: November 9, 2011 [new to top ten]
|10||125||The Individual Risk Assessment of Terrorism
University of Virginia School of Law,
Date posted to database: September 20, 2011 [new to top ten]