December 17, 2011
Joffee on Compensating Victims of Child Pornography
Steven Joffee has posted Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259 (Whittier Journal of Child and Family Advocacy, Vol. 10, No. 2, p. 201, 2011) on SSRN. Here is the abstract:
Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society. In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259. Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.
Although Congress intended for Section 2259 to apply in any case in which a victim has “suffered harm” as a result of a defendant’s conduct, its inclusion of the term “proximate result” in the Act’s catchall loss provision has created much confusion amongst federal courts. As a result of this confusion, several courts have simply ignored the mandatory language of Section 2259 and have flatly refused to award victims of child pornography with restitution, ultimately rendering the Act mere rhetoric.
To resolve this debate, and to end the further victimization of child pornography victims by courts refusing to grant restitution, the United States Supreme Court should grant certiorari to resolve this issue, or alternatively, Congress should amend the Act to make the requisite level of causation more clear. Only by resolving this issue will Congress’ intent to provide all victims harmed by child pornography with full compensation be achieved, ensuring that those who harm the “Amys” of this world will be held fully responsible for their abhorrent conduct.
December 16, 2011
Rickert on FRE 609 and Past Sex Crime Convictions
Julia Rickert has posted Denying Defendants the Benefit of a Reasonable Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions (Journal of Criminal Law and Criminology, Vol. 100, No. 1, 2010) on SSRN. Here is the abstract:
The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions. This past crime evidence is admitted solely to show that the defendant may lack credibility. It is not admitted to show that the defendant has a tendency to commit crimes in general or that he or she is a bad, dangerous person. Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. For this reason, judges are required to compare the prejudicial effect of past crimes evidence to its probative value before it is admitted. If the evidence is even slightly more prejudicial than probative of credibility, it is to be excluded.
Sex offense convictions are extraordinarily prejudicial — overwhelming evidence shows that sex offenders are the most feared and despised group in this country — and these convictions are not particularly probative of credibility. Yet judges rarely acknowledge this when comparing the probative value of past sex crime convictions to their prejudicial effect on jurors. This failure undermines evidentiary principles that are fundamental to our system of criminal justice. A defendant who previously was convicted of a sex offense is left with three bad choices: he or she can accept a plea bargain regardless of actual guilt; go to trial but decline to testify; or testify, but lose the jury’s goodwill when the sex crime conviction is presented. An acquittal based on valid reasonable doubt becomes much less likely.
For jurors in a criminal trial to fulfill their duty of determining whether a person is guilty of a particular act beyond a reasonable doubt, they must not be diverted from that task by intense dislike for a defendant who has previously been convicted of a sex crime. Legislatures and courts should adopt a rule that prior sex crime convictions are presumptively inadmissible to impeach credibility.
"Bonds Avoids Prison Time for Giving Evasive Testimony"
From the New York Times:
SAN FRANCISCO — Barry Bonds, baseball’s home run champion, avoided a prison term Friday when Judge Susan Illston sentenced him to 30 days of house arrest, 2 years of probation, 250 hours of community service with youth groups and a $4,000 fine for providing evasive testimony to a federal grand jury eight years ago.
Bonds’s lawyers stated their intention to appeal, and Illston agreed to stay the sentence through the appeal process.
Eisenberg, Fisher & Rosen-Zvi on judicial identity and criminal defendants
Theodore Eisenberg , Talia Fisher and Issachar Rosen-Zvi (Cornell University - School of Law , Tel Aviv University - Buchmann Faculty of Law and Tel Aviv University - Buchmann Faculty of Law) have posted Does the Judge Matter? Exploiting Random Assignment on a Court of Last Resort to Assess Judge and Case Selection Effects (Journal of Empirical Legal Studies, 2012) on SSRN. Here is the abstract:
We study 1410 criminal law cases appealed to the Israel Supreme Court in 2006 and 2007 to assess influences on case outcomes. A methodological innovation is accounting for factors — case specialization, seniority, and workload — that modify random case assignment. To the extent one accounts for nonrandom assignment, one can infer that case outcome differences are judge effects. Individual justices cast 3986 votes and differed by as much as 15 percent in the probability of casting a vote favoring defendants. Female justices were about two to three percent more likely than male justices to vote for defendants but this effect is sensitive to including one justice. Defendant gender was associated with outcome, with female defendants about 17 percent more likely than male defendants to receive a favorable vote on appeal. Our data’s full samples of mandatory and discretionary jurisdiction cases allow us to show that studies limited to discretionary jurisdiction case outcomes can distort perceptions of judges’ preferences. Justices’ ordinal rank in rate of voting for defendants or the State was uncorrelated across mandatory and discretionary jurisdiction cases. For example, the justice who sat on the most criminal cases was the fourth (of 16 justices) most favorable to the State in mandatory jurisdiction cases but the twelfth most favorable in discretionary jurisdiction cases. This result casts doubt on studies of judges on discretionary jurisdiction courts, such as the U.S. Supreme Court, in which votes in the selection process are not observed.
December 15, 2011
Levy & Sinnott-Armstrong on Insanity Defenses
Ken Levy and Walter Sinnott-Armstrong (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center and affiliation not provided to SSRN) have posted Insanity Defenses (OXFORD HANDBOOK ON THE PHILOSOPHY OF THE CRIMINAL LAW, p. 299, John Deigh & David Dolinko, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
We explicate and evaluate arguments both for and against the insanity defense itself, different versions of the insanity defense (M'Naghten, Model Penal Code, and Durham (or Product)), the Irresistible Impulse rule, and various reform proposals.
Brown on Padilla's applicability to public house eligibility
Deirdre P. Brown has posted One Strike and You're Out: Padilla Advisement About Public Housing Eligibility on SSRN. Here is the abstract:
Post Padilla an attorney has an affirmative duty under the Sixth Amendment to advise a client about the loss of public housing eligibility as a consequence of a criminal conviction or plea. This collateral consequence is even more severe than civil commitments, loss of pension, sex offender registry and parole eligibility in that it not only punishes the offender but the offender’s entire family. No other collateral consequence directly affects innocent bystanders in such a direct and punitive way. Attorneys must begin to recognize that there already exist an ethical and moral duty to advise clients of the collateral consequence of the loss of public housing eligibility and that this duty to advise meets the Sixth Amendment requirement for effective assistance to counsel. Moving forward attorneys must become aware and be more vigilant about collateral consequence advice if they want to successfully avoid Sixth Amendment ineffective assistance of counsel claims especially when it comes to a well-established federal law such as the One Strike Policy.
Halliburton on Race, Brain Science, and Criminal Procedure
Christian Halliburton (Seattle University School of Law) has posted Race, Brain Science, and Critical Decision-Making in the Context of Constitutional Criminal Procedure (Gonzaga Law Review, Forthcoming) on SSRN. Here is the abstract:
This article surveys current and emerging neuroscience research that is uncovering deep cognitive-level and unconscious connections between race or racial constructs, perception, and decision making. Using those findings as a platform for consideration, the article addresses several implications that these cognitive patterns might have for the particular kinds of perceptual experiences and decision making opportunities that are relevant in the context of criminal law enforcement and police procedure, and begins to evaluate the influence that these cognitive trends may have on the development of specific legal regulatory mechanisms and their application to the larger law enforcement complex.
December 14, 2011
van Ours on Cannabis Legalization
Jan C. van Ours (Tilburg University - Department of Economics) has posted The Long and Winding Road to Cannabis Legalization on SSRN. Here is the abstract:
In almost all countries supply, distribution and use of cannabis is prohibited. Nevertheless, cannabis is the most popular illicit drug. Prohibition does not seem to work. The debate on legalization of cannabis is often emotional with strong views of both proponents and opponents but ignorance prevails. There are supposedly detrimental health effects of cannabis use but researchers debate whether they are causal or mere associations. As long as nowhere in the world cannabis is legalized it is difficult to get a clear idea about the effects of legalization. Rather than muddling through for several decades it would be wise to start moving on the long and winding road to cannabis legalization.
December 13, 2011
Graham on the Confrontation Clause
Michael H. Graham (University of Miami - School of Law) has posted 'Returning' the Confrontation Clause to 'Solid Ground': Can Williams v. Illinois Garner a Fifth Vote? (Criminal Law Bulletin, No. 28, November 2011) on SSRN. Here is the abstract:
"Because Crawford and Davis concerned typical witnesses, the Court should have done the sensible thing and limited its holding to witnesses as so defined. Indeed, as Justice Thomas warned in his opinion in Davis, the Court’s approach has become ‘disconnected from history and unnecessary to prevent abuse.’ 547 U.S. at 838, 126 S.Ct. 2266. The Court’s reliance on the word ‘testimonial’ is of little help, of course, for that word does not appear in the text of the Clause.” Justice Kennedy, with whom the Chief Justice, Justice Breyer, and Justice Alito join, dissenting in Melendez-Diaz v. Massachusetts, – U.S – , 129 S.Ct. 2527, 2543-44, 174 L.Ed.2d 314 (2009).
“Seven years after its initiation, it bears remembering that the Crawford [testimonial/nontestimonial] approach was not preordained. This Court’s missteps have produced an interpretation of the word ‘witness’ at odds with its meaning elsewhere in the constitution, including elsewhere in the Sixth Amendment, see Amar, Sixth Amendment First Principles, 84 Geo. L.J. 641, 647, 691-696 (1996), and at odds with the sound administration of justice. It is time to return to solid ground.” Justice Kennedy, with whom the Chief Justice, Justice Breyer and Justice Alito join, dissenting in Bullcoming v. New Mexico, – U.S. – , 131 S.Ct. 2705, 2723, 180 L.Ed.2d 610 (2011).
As is hopefully clear to every reasonable person at all familiar with current confrontation clause jurisprudence, Crawford and its now many progeny collectively comprise an incredibly complex, unworkable, and totally theoretically unsound approach to the Sixth Amendment provision that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with witnesses against him.” Four Justices of the United States Supreme Court have now called for a “return to solid ground.”
Returning the confrontation clause to solid ground will require a recognition that the Crawford and progeny testimonial approach effectuated by the primary purpose test simply fails to properly reflect the core meaning of the confrontation clause, assuming there is a core meaning and it is worth reflecting. According to Justice Scalia in Crawford, the core meaning of the confrontation clause is abhorrence of the civil law mode of criminal procedure’s use of uncross-examined ex parte examinations of nongovernment declarants as evidence against the accused. In place of the testimonial approach effectuated by the primary purpose test, this article suggests that the confrontation clause core meaning is best effectuated by excluding admissibility of solely government “elicited” statements of nongovernment declarants.
Returning the confrontation clause to solid ground also requires a return to recognizing that the criminal defendant should not be faced with hearsay statements, absent the opportunity for cross-examination, that have not be subjected to the crucible of indicia of reliability testing as enunciated and developed by the United States Supreme Court in Ohio v. Roberts and its progeny. Forensic experts’ records, along with other hearsay statements, should be admitted against the criminal defendant, absent cross-examination, only if the indicia of reliability substitute for cross-examination standard is satisfied.
Implementing the core meaning value of the confrontation clause as stated in Crawford in the narrow manner suggested above requires abandonment of the terms “testimonial” as well as “primary purpose” thus effectively overruling both Davis and Bryant. Reintroducing the Roberts indicia of reliability prong of the confrontation clause requires overruling both Melendez-Diaz and Bullcoming as well. In its place this article argues that the “elicited” hearsay statement from a nongovernment declarant implementation of the confrontation clause’s core meaning recognizes that introduction of such a noncross-examined statement constitutes structural error – error that “seriously affects the fairness, integrity or public reputation of judicial proceedings” – regardless, as correctly pointed out by Justice Scalia dissenting in Bryant, of the reliability or lack of reliability of the hearsay statement itself. In addition, reintroduction of the indicia of reliability test of Roberts once again recognizes the confrontation clause right of the criminal defendant not to be convicted on the basis of unreliable uncross-examined hearsay statements.
As illustrated by the hypothetical contained in this article, current confrontation clause doctrine is in utter shambles. Four Justices of the United States Supreme Court have declared the current confrontation clause doctrine “at odds with sound administration of justice” and have called for a “return to solid ground”. The dual approach of “elicited statement” and “indicia of reliability” accomplishes the task and does so without abandoning Crawford’s recognition of the core meaning of the confrontation clause. This article asserts that maintaining the Crawford’s core meaning, whether meritorious or not, will very much further the effort to obtain a fifth vote to abandon the testimonial approach effectuated by the primary purpose test of Crawford and its progeny.
Death Penalty and LWOP Conference at the University of Miami
The 2012 University of Miami Law Review Symposium will focus on the death penalty and life without parole, and will feature Jordan Steiker of the University of Texas Law School as keynote speaker. The symposium is scheduled for the afternoon of Friday, February 17, 2012 and the morning of Saturday, February 18, 2012 at the University of Miami campus in Coral Gables, Florida. It will explore (1) whether the death penalty is near its end in the United States; (2) the debate over new lethal injection protocols (3) the debate about life without parole as an alternative to the death penalty, and (4) the role of social science in examining the death penalty. Panelists include Deborah Denno of Fordham, Robert Blecker of New York Law School, Mona Lynch of the University of California at Irvine, Corinna Lain of the University of Richmond, Adam Kolber of Brooklyn Law School, Douglas Berman of Ohio State, Cynthia Brown of the University of Central Florida, Ashley Nellis of The Sentencing Project, The Honorable Adalberto Jordan (Federal District Court, S.D. Fla), and University of Miami law professors Susan Bandes, Mary Anne Franks, Tamara Lave, Sarah Mourer and Scott Sundby. For more information and to register in advance, please contact Farah Barquero at firstname.lastname@example.org or (305) 284-2464.
December 12, 2011
Court grants review in Arizona immigration case
The four provisions at issue are:
** A requirement that police in making any stop or arrest to try to determine the individual’s legal right to be in the U.S., if the officer has a “reasonable suspicion” of illegality. If arrested, the individual cannot be released until his legal status is verified by the federal government. That is the law’s Section 2(B).
** A provision making it a crime under state law for an individual to intentionally fail to obtain and carry legal immigrant papers with him while in Arizona (Section 3).
** A provision making it a misdemeanor for an undocumented immigrant to apply for a job, publicly solicit a job, or actually work in Arizona (Section 5[C]).
** And, a provision that allows police to arrest without a warrant any person for whom the officer has “probable cause to believe” that the individual has committed any crime, anywhere, that would make that individual subject to being deported (Section 6).