December 10, 2011
Chang on Race and Washington's Criminal Justice System
Robert S. Chang (Seattle University School of Law) has posted Preliminary Report on Race and Washington's Criminal Justice System (Gonzaga Law Review, Forthcoming) on SSRN. Here is the abstract:
In this report, forthcoming in the law reviews of all three of Washington’s law schools (Gonzaga Law Review, Seattle University Law Review, and Washington Law Review), we present our findings on racial disproportionality in Washington’s criminal justice system. In 1980, of all states, Washington had the highest rate of disproportionate minority representation in its prisons. Today, minority racial and ethnic groups remain disproportionately represented in Washington State‘s court, prison, and jail populations, relative to their share of the state‘s general population. The fact of racial and ethnic disproportionality in our criminal justice system is indisputable. Following an assertion attributed to a justice on the Washington Supreme Court – that African Americans are overrepresented in the prison population because they commit a disproportionate number of crimes – a task force on race and the criminal justice system was convened. Its research working group focused on trying to answer why these disproportionalities exist. We examined differential commission rates, facially neutral policies, and bias as possible contributing causes. We reviewed research that focused on particular areas of Washington‘s criminal justice system, and our report concludes that much of the disproportionality is explained by facially neutral policies that have racially disparate effects. We also found that disproportionality also is explained in part by the prevalence of racial bias – whether explicit or implicit – and the influence of bias on decision-making within the criminal justice system.
December 9, 2011
Waltman on the Swedish Prostitution Law
Max Waltman (Stockholm University - Department of Political Science) has posted Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law (Michigan Journal of International Law, Vol. 33, pp. 133-157, 2011) on SSRN. Here is the abstract:
The Swedish prostitution law from 1999, now followed by Norway and Iceland, criminalized the purchaser and decriminalized the prostituted person. This is analyzed as a cogent state response under international trafficking law, particularly to the obligations set forth in the United Nation’s Trafficking Protocol from 2000. The Protocol states that a person is regarded a trafficking victim when, e.g., someone abuses her “position of vulnerability” in order to exploit her. International jurisprudence and social evidence strongly suggest that prostitution, as practiced in the world, usually satisfies this definition. Further, the Protocol urges states to reduce the demand for prostitution and to protect and assist victims, for instance by adopting laws deterring purchasers of sex, and by supporting those exploited in prostitution. Policy makers, such as the U.S. Department of State, are criticized for taking an inadequate position in face of the growing evidence from the Swedish law's impact.
The article shows that Sweden has significantly reduced the occurrence of trafficking in Sweden compared to neighboring countries. It also scrutinizes some misinformation of the law's impact, showing for instance that claims alleging a more dangerous situation for those still in prostitution after 1999 were unfounded. In addition, the article addresses remaining obstacles to the law's effective implementation, arguing that in order to realize the law's full potential to support escape from trafficking, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the purchasers for the harm to which they have contributed, and for the violation of the prostituted persons' equality and dignity - a position now recognized by the government to some extent by clarifying amendments made in 2011.
Forman on Racial Critiques of Mass Incarceration
James Forman Jr. (Yale University - Law School) has posted Racial Critiques of Mass Incarceration: Beyond the New Jim Crow (NYU Law Review, April 2012) on SSRN. Here is the abstract:
In the five decades since black Americans won their civil rights, hundreds of thousands have lost their liberty. Blacks now make up a larger portion of the prison population than they did at the time of Brown v. Board of Education, and their lifetime risk of incarceration has doubled. Mass incarceration’s racial dimensions have led an emerging group of scholars to call the American criminal justice system a new form of Jim Crow. his Article examines the New Jim Crow analogy. I begin by pointing out that the analogy is extraordinarily compelling in some respects — for example, the analogy effectively draws attention to the injustices created by a facially race-neutral system that severely ostracizes offenders and stigmatizes young, poor black men as criminals.
But despite its contributions, the Jim Crow analogy ultimately leads to a distorted view of mass incarceration. First, the Jim Crow analogy oversimplifies the origins of mass incarceration by highlighting the role of politicians seeking to exploit racial fears while minimizing other historical factors. Second, the analogy has too little to say about black attitudes towards crime and punishment, masking the nature and extent of black support for punitive crime policy. Third, the analogy’s exclusive focus on the War on Drugs diverts our attention from violent crime — a troubling oversight given the toll that violence takes on low-income black communities and the fact that violent offenders make up a plurality of the prison population. Fourth, the Jim Crow analogy obscures the fact that mass incarceration’s impact has been almost exclusively concentrated among the most disadvantaged African-Americans. Fifth, the analogy draws our attention away from the harms that mass incarceration inflicts on other racial groups, including whites and Hispanics. Finally, the analogy diminishes our understanding of the particular harms associated with the old Jim Crow.
van der Knapp et al. on Inter-Rater Reliability in Offender Risk Assessment
Leontien van der Knaap , Marise Ph. Born , L. E. W. Leenarts and P. Oosterveld (INTERVICT, Tilburg University , affiliation not provided to SSRN , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Reevaluating Inter-Rater Reliability in Offender Risk Assessment (Crime & Delinquency, 2010) on SSRN. Here is the abstract:
Offender risk and needs assessment, one of the pillars of the Risk-Need-Responsivity model of offender rehabilitation, usually depends on raters assessing offender risk and needs. The few available studies of inter-rater reliability in offender risk assessment are, however, limited in the generalizability of their results. The present study examined inter-rater reliability in Dutch offender risk assessment of 38 raters who independently assessed 75 offenders. Results show substantial reliability (Tinsley & Weiss’ T value ≥ .61) for risk of reconviction and moderate (T value ≥ .41) to substantial reliability for offender needs, such as accommodation, finances, or education. These results are discussed in light of a recent British study on the inter-rater reliability of a comparable risk assessment instrument. Results from the present study show similar to better reliability, leading to the conclusion that greater external validity does not negatively influence inter-rater reliability results.
December 8, 2011
Grant on Prosecution of Non-Disclosure of HIV
Isabel Grant (UBC Faculty of Law) has posted The Prosecution of Non-Disclosure of HIV in Canada: Time to Rethink Cuerrier (McGill Journal of Law and Health, Vol. 5, No. 1, pp. 7-59, 2011) on SSRN. Here is the abstract:
The author of this article argues that Canada’s current approach to the criminalization of HIV transmission is deeply flawed and cries out for clarification. The article first considers the risk of transmission of HIV under various conditions, as determined by recent scientific studies, and concludes that HIV is not easily transmissible through sexual activity. It next examines several crucial factors that contribute to the significance, or lack of significance, of sexual activity by HIV-positive individuals, concluding that the current law creates a “numbers game” for triers of fact. The article then proceeds to a comparative analysis of other Commonwealth countries, demonstrating that Canada is unique in the scale of its prosecution of HIV transmission, as well its reliance on assault and sexual assault. The article concludes by examining several specific problems with the Cuerrier test, and proposes future directions which the Supreme Court could consider.
Buchanan on Race, Gender, and Prison Rape
Kim Shayo Buchanan (USC Gould School of Law) has posted E-Race-Ing Gender: The Racial Construction of Prison Rape (MULTIDIMENSIONAL MASCULINITIES AND LAW: FEMINIST AND CRITICAL RACE APPROACHES, Frank R. Cooper, Ann C. McGinley, eds., NYU Press, 2012)
Prison rape is a form of gender violence. Men’s prisons institutionalize a toxic form of masculinity when they foster homophobia, physical violence and an institutional culture that requires inmates to prove their masculinity by fighting. Staff and inmate abusers alike target small, young, effeminate, gay, bisexual and transgender inmates. According to recent nationwide survey data, the two factors that most strongly predict an inmate’s risk of sexual abuse are (1) prior sexual victimization, and (2) gay, bisexual or transgender identity. Nonetheless, prison rape continues to be understood in accordance with an inaccurate stereotype that it is typically black-on-white. The results of six recent nationwide surveys consistently refute the stereotype: there is no evidence that white prisoners are targeted for sexual abuse. The unsubstantiated racial rape myth obscures genuine racial disparities in sexual victimization that are revealed by survey after survey: inmate abusers disproportionately target multiracial prisoners, while staff abusers disproportionately target black prisoners. These counter-stereotypical racial disparities have been completely ignored in prison policy and prison-rape discourse. The stereotype may affect the institutional response to sexual abuse allegations: although most sexual abuse victims are nonwhite, an overwhelming majority of allegations that prison investigators find “substantiated” involve white victims. The racial rape myth deflects policy attention from the gendered institutional practices that foster prison rape. Most prison rapists are staff, not inmates; the factors that most affect an inmate’s risk of victimization are gendered, not racial. The persistence of the racial rape myth in the face of contradictory empirical data raises important questions about the rule of law at the intersection of race and gender. These are questions I explore and expand upon in the article I am currently working on, Engendering Race, 59 UCLA L. Rev. – (forthcoming, 2012).
Branham on Cost and Recidivism Data at Sentencing
Lynn S. Branham (Saint Louis University - School of Law) has posted Follow the Leader: The Advisability and Propriety of Considering Cost and Recidivism Data at Sentencing (Federal Sentencing Reporter, 2012) on SSRN. Here is the abstract:
The Missouri Sentencing Advisory Commission has begun to provide judges with information that enables them, before imposing a sentence, to compare the financial costs of several different sentencing options and the recidivism risks they pose. Although this initiative has sparked controversy, I, for one, favor taking steps like this one to help extricate us from the “same ole, same ole” sentencing box in which uninformed, and sometimes misinformed, sentencing decision making is the norm.
This article provides an overview of six of the primary reasons why providing judges some very basic facts about the financial cost of several sentencing options they are mulling over and their effects, in terms of recidivism reduction, is not only appropriate, but laudable. First, judges already engage in cost-benefit assessments, though typically crude ones, when imposing sentences. Second, judges should engage in cost-benefit assessments as part of the sentencing decision-making process. Third, it is advisable and efficient for the financial costs and recidivism risks of various sentencing options to be calculated by experts who then transmit this information to a sentencing judge. Fourth, the consideration by judges of the costs and risks of the varied sanctions that they could impose on a defendant comports with, and indeed furthers, sentencing objectives, including retribution. Fifth, judges’ consideration, at the time of sentencing, of reliable data about the financial costs and recidivism risks of various sentencing alternatives does not usurp legislative prerogatives. And sixth, the open dissemination of information to judges about the financial costs and recidivism risks of differing sentencing options in a case will bring more transparency and accountability into the sentencing process.
December 7, 2011
Rubenstein on AEDPA and Miranda
David S Rubenstein has posted AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act (Washington Law Review, Vol. 86, No. 4, 2011) on SSRN. Here is the abstract:
In Davis v. United States, the Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an ‘objectively unreasonable’ application of Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.
Breslin on Florida's crime of flight from law enforcement
Theresa Nolan Breslin has posted Fleeing Time Below the Poverty Line - Is it a Crime? C.E.L. v. State and its Impact on Indigent Defense and Police-Citizen Relations (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
This paper discusses the legal basis for the Florida Supreme Court’s decision in C.E.L. v. State (C.E.L. II), which criminalizes the act of “continued flight” from law enforcement. The case is controversial in light of the community-police tensions in high-crime, low-income areas of Florida. This paper argues that the Florida legislature should take steps to protect certain individuals who may unwittingly find themselves caught in the broad net of this crime.
Part II of this paper begins by discussing the statute at issue, found in section 843.02 of the Florida Statues. This note also discusses basic Fourth Amendment principles, including consensual encounters, the investigatory stop, and probable cause for a lawful arrest. In Part II–A, this paper analyzes the U.S. Supreme Court precedent Terry v. Ohio and Illinois v. Wardlow, interpreting the reasonableness of warrantless seizures and pat-downs under the Fourth Amendment. Part II–B discusses the conflicting case law in the Florida District Courts of Appeal leading to the decision in C.E.L. II, including an in-depth analysis of the lower court C.E.L. v. State (C.E.L. I) decision, much of which the Florida Supreme Court adopts.
Part III–A will offer an analysis of the C.E.L. II decision itself, as its reasoning is constrained by the Florida Constitution. In Part III–B, this paper focuses on Justice Pariente’s concurrence, which highlights defenses in the criminal attorney’s arsenal. These include (1) disputing the existence of reasonable articulable suspicion to justify the investigatory stop, (2) arguing the defendant’s flight was not “unprovoked” or “headlong,” and (3) disputing the site of arrest as a “high-crime area.” Part III–C briefly mentions suppression cases decided after C.E.L. II and considers where this area of the law may be heading.
Part IV concludes this note by offering political solutions to the problems presented by the current state of the law, both legislative and executive. This paper recommends adding additional language to section 843.02 in an approach borrowed from the “community caretaking” model. Here, this paper proposes that as a condition to a warrantless arrest under the statute, the officer must have reasonable grounds to believe that some emergency exists. This proposal brings the statute in line with the initial bases for allowing such stops from Terry v. Ohio and Illinois v. Wardlow. Also, this solution takes into account the concerns of the lower district courts of appeal giving rise to the legal conflict.
Roberts on Effective Advocacy in Misdemeanors
Jenny Roberts (American University, Washington College of Law) has posted Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts (UC Davis Law Review, Vol. 45, 2011) on SSRN. Here is the abstract:
Most individuals accused in our nation’s criminal courts are not charged with murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the lower courts, for misdemeanors such as marijuana possession, driving with a license suspension for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor adjudications have exploded in recent years, with one recent study estimating that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006. At the same time, violent crime and the number of felony cases across the country have decreased markedly.
A common misperception is that misdemeanor charges might lead to a night in jail and the punishment of going through the process - often requiring a number of court appearances - culminating in dismissal, deferred adjudication, or a quick guilty plea with community service, a fine, or perhaps some small amount of jail time. Yet the consequences of even the most “minor” misdemeanor conviction can be far reaching, and include deportation, sex offender registration, and loss of public housing and student loans. In addition, criminal records are now widely available electronically and employers, landlords, and others log on to check them. These “collateral consequences” of a misdemeanor conviction are often more dire than any direct criminal penalty.
What often stands between an individual and an avoidable misdemeanor conviction, with its harsh effects, is a good lawyer. Yet a profound crisis exists in the lower courts, brought about by a widespread lack of zealous representation for indigent people charged with misdemeanors. Many individuals charged with low-level crimes receive representation from defense attorneys with overwhelming caseloads, in a criminal justice system singularly focused on rapid finality in the large numbers of docketed cases. Despite this urgent situation, the body of scholarship on the right to effective representation and the indigent defense crisis has largely ignored misdemeanors. This Article describes how ineffective-assistance jurisprudence is undeveloped for misdemeanors and how published professional standards for defense advocacy have failed to address misdemeanors. There is almost no guidance about proper norms for this distinct category of cases. This Article calls for responses to the misdemeanor representation crisis from the three groups situated to make a difference in this area, based on their particular institutional competencies: the judiciary, the defender community, and professional organizations that draft standards for practice. Without proper administration, including effective defense representation, the current approach to mass misdemeanor processing and prosecution significantly impedes substantive justice for the individual, public perception of justice, and public safety.
December 6, 2011
Flanders on Cost and Sentencing
Chad Flanders (Saint Louis University - School of Law) has posted Cost and Sentencing: Some Pragmatic and Institutional Doubts (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
In 2010, the Missouri Sentencing Commission recommended that, in addition to offense and offender characteristics, the pre-sentencing reports prepared for the sentencing judges should also include the costs of various possible sentences. In this brief essay, I focus mainly the pragmatic case for considering cost as a factor in judicial sentencing, asking about what goals adding cost is supposed to achieve, and whether it will in fact achieve those goals. I ask three questions in particular: (1) Will including cost in the Missouri Sentencing Assessment Reports (SARs) actually change judicial behavior in the ways supporters of the reform favor? (2) Will judges use cost as a factor in a consistent and uniform way? and (3) Are judges in the best position to make cost decisions in sentencing, or should this be left to the legislature?
The motivation for including cost in sentencing is in one way inarguable: sentences should at some level be determined by taking into account all the relevant information, and should be done in a way that is the most cost effective. But it is a separate question which institution – the legislature, the executive, or the judiciary -- should be making decisions about cost. There are difficulties in getting legislatures to act in ways that are cost effective, especially when dealing with punishment. Still, things are starting to change, and we might hope that sentencing reform from the top down will happen, and happen sooner rather than later. Sentencing commissions should push them to take this responsibility, and not, as is the case with giving judges the power to decide sentencing decisions, give them a way to shirk their responsibility.
Wexler on Therapeutic Jurisprudence and Clients with Mental Illness
David B. Wexler (University of Puerto Rico - School of Law) has posted That’s What Friends Are For: Mentors, LAP Lawyers, Therapeutic Jurisprudence, and Clients with Mental Illness on SSRN. Here is the abstract:
This essay has been prepared for a University of Nebraska-Lincoln Law-Psychology conference on "Justice, Conflict, and Well-Being." It draws on and extends an earlier paper, "Lawyer-Assistance-Program Attorneys and the Practice of Therapeutic Jurisprudence," which dealt primarily with how lawyers themselves in long-term substance abuse recovery possess knowledge, insights, and other strengths that can be profitably used in counseling and representing clients with substance abuse issues. The present paper, inspired largely by some recent stories from the legal academy penned by law professors who have had their own struggles with serious mental illness, extends the proposal to lawyers with mental health struggles and to the counseling and representation of clients with mental health issues. The paper suggests several different practice and pro bono settings (civil commitment cases, mental health court, veterans court, post-traumatice stress disorder issues) and opens a discussion of logistical steps that should be taken to bring this idea to fruition.
Argument transcript from Confrontation Clause case
The transcript from Williams v. Illinois is here.
Transcript of argument in case involving replacement of counsel in capital habeas proceedings
The transcript from Martel v. Clair is here.
December 5, 2011
Skupski on Corporate Criminal Liability
George Skupski has posed The Senior Management Mens Rea: Another Stab at a Workable Integration of Organizational Culpability into Corporate Criminal Liability on SSRN. Here is the abstract:
As in civil lawsuits, corporate criminal liability at the federal level and in many states is imposed using a strict respondent superior standard: corporations are criminally liable for the wrongdoing of their agents committed within the scope of their authority for the benefit of the corporation. The remaining jurisdictions follow some variation of the Model Penal Code standard, a narrower approach than the federal rule, finding corporate liability only where the board of directors or other high-level managers “authorized, requested, commanded, performed or recklessly tolerated” the offense. These liability standards, which rely on imputing mental states to individual agents, are fatally over- and under- inclusive because they fail, without justification, to differentiate between the non-blameworthy organizations and those which are genuinely culpable. This Note contends that the disconnect between organizational blameworthiness and liability under the current individualistic liability scheme warrants overhauling the standard for holding organizations criminally liable.
That organizations demonstrate culpability independent of their individual agents has long been recognized both in other areas of the law and competing academic conceptualizations of organizational criminal liability. Accordingly, this Note builds from the existing academic models of genuine organizational culpability and suggests a standard that uses an approximation of the senior management mens rea (SMMR). This SMMR should be used as a proxy for the corporate mens rea by using both (1) subjective mental states of senior management and (2) reasonable inferences of senior management’s culpability derived from organizational variables commonly recognized as contributing to organizational culpability. These variables should serve as non-subjective circumstantial evidence of culpability. This model, which embodies the understanding of genuine organizational culpability and ensures true organizational blameworthiness, can be weaved seamlessly into the current criminal statutes in a form that courts can more consistently understand and apply than other academic proposals.
Part I of this Note explains the development and shortcomings of the present standards of corporate criminal liability. Part II discusses the theoretical underpinnings of independent organizational action and intention in organizational theory. Part II also outlines the means by which the law and legal scholars have incorporated the understanding of genuine organizational culpability into models assessing independent organizational culpability. Finally, Part II explores the shortcomings of the prevailing academic models. Specifically, it focuses on William Laufer’s model of constructive corporate fault, one of the most substantively sound and practical academic models to date. Part III advocates a new liability standard, the SMMR, and specifically examines its implementation-based utility over competing proposals.
Jones on Minority Youth in the Juvenile Justice System
Elizabeth N. Jones (Western State University College of Law) has posted Disproportionate Representation of Minority Youth in the Juvenile Justice System: A Lack of Clarity and Too Much Disparity Among States ‘Addressing’ the Issue (U.C. Davis Journal of Juvenile Law & Policy, Vol. 16, Winter 2012) on SSRN. Here is the abstract:
This article explores how states are struggling to reduce the overrepresentation of youth of color in their juvenile justice systems by complying with the federal Juvenile Justice and Delinquency Prevention Act. The JJDPA provides funding for states following its directive to identify, assess, and reduce the disproportionate contact by minority youth with the juvenile justice system. This article queries whether the JJDPA is an effective instrument with which to seek racial parity for minority youth who are already “in contact” with the juvenile justice system. It first provides a brief history and overview of the JJDPA, highlighting three areas of potential concern. This article then posits that these three focal points hinder, and may actually serve to undermine, the states from completing their mission of reducing, and eventually eliminating, the disproportionate representation of minority youth in the juvenile justice system. Various states are surveyed, and their limited successes in attempting to reduce disproportionate minority contact are noted. Finally, a strategy to catch children “pre-contact” through a continuum of school and community-based programs is discussed. President Obama’s projected 2012 budget proposes incentives for the states to remain in compliance with the JJDPA, though many of them appear to be in danger of falling out of conformity. With the JJDPA ripe for reauthorization, this issue is aptly timed for debate. This article supplies some ideas for consideration.
Argument transcript from case on qualified immunity and warrants
The transcript in Messerschmidt v. Millender is here.
December 4, 2011
"Examining flat-fee systems for indigent defense"
From Doug Berman at Sentencing Law and Policy Blog, summarizing a piece from Stateline.org. In part:
Flat-fee contracting for indigent defense is used in more than a dozen states around the country. Fixed-rate contracts negotiated by governments with private attorneys are a common way for counties and states to save money in hard fiscal times. But they have drawn criticism from a variety of quarters. Nevada, Idaho, Michigan and Pennsylvania have all established special commissions to look at indigent defense in general and flat fees in particular....