February 12, 2011
Simon on Factfinding in Criminal Trials
A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions?
The Article applies a body of experimental psychology to examine the ability of factfinders to assess the evidence and draw correct inferences from it. The psychological research indicates that the mental processes involved in determining facts in criminal trials are more complex and fickle than generally believed.
In sum, the accuracy of the criminal trial falls short of the system’s high epistemic demands and the certitude it exudes. The findings contribute to our understanding of the causes of mistaken verdicts, particularly wrongful convictions. The Article proposes ways to improve the diagnosticity of the process.
February 11, 2011
Ryan on Total Retribution
An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by offenders’ conduct, such as the effects of their offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this neglected issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms would better reflect the basic tenets of retributivism. The Article acknowledges some of the challenges of embracing the totality of the theory of retribution and concludes that a legal limitation akin to the theory of proximate causation is necessary to reign in criminal liability under the theory.
Featured download: Barry on Actual Innocence and Double Jeopardy
My colleague, Jordan Barry, has posted his interesting paper, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause, on SSRN. Here is the abstract:
In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.
February 10, 2011
Nelson on Policing Race and Mental Status
Camille Nelson has posted Racializing Disability, Disabling Race: Policing Race and Mental Status (Berkeley Journal of Criminal Law, Vol. 15, p. 1, 2010) on SSRN. Here is the abstract:
This article focuses on police practices in arresting and detaining criminal suspects who have mental illnesses. It identifies three modalities police may adopt when detaining a mentally ill suspect: medical modality (and its subset the family mode), the criminal modality, and the disciplinary modality. This article examines archetypal cases in which harsher treatment of a suspect may be meted out by the police against mentally ill persons of color.
To illustrate the different modalities, this article examines the case study of Donald Winters. Mr. Winters was a Caucasian male who was diagnosed with Delusional Disorder. He had threatened to kill the police officers when they attempted to apprehend him. Police understood they were dealing with a mentally ill suspect, and they restrained themselves from using violence in order to subdue him. In Coghlan v. Phillips, Mr. Coghlan, a white male known to have a criminal record and a history of mental illness, fired four to ten shots at police officers when they initially attempted to arrest him. The police officers did not return fire, but returned with a bullhorn and told Mr. Coghlan they wished to take him to a doctor. These cases are illustrative of the medical and criminal modalities and represent more appropriate police responses to mentally ill suspects. However, police seemingly demonstrate far less tolerance for suspects whose Suspect Identity Construction (“SIC”) is both a minority and mentally ill.
In Banks ex rel. Banks v. Modesto City Schools District, Rosie Banks was a thirteen year old, autistic, African American girl attending a junior high school. Rosie entered a new school and at first behaved in an aggressive manner. She was taken to the principal’s office where an officer confronted Rosie as she became more aggressive and pepper sprayed her in the face. In Reynolds v. City of Little Rock, John Willie Reeves, an African American man known by police to be mentally ill, was shot to death by several officers after waving a pocket knife. In Ali v. City of Louisville, Mr. Marlby was a homeless African American man who was known by several officers to be mentally ill. He was shot to death after an encounter with police. In each of these cases, police officers often chose the disciplinary modality, and often without prior utilization of a lesser modalities.
In these and other cases, the police do not utilize lesser modalities despite their knowledge that the suspect is mentally ill. This article explores the intersection of race and mental status as one that attracts heightened police scrutiny and which disparately leads to excessive use of force. It appears from the case law that the selection of the modality often depends on the racialization of the alleged offender.
Hubachek on the Sixth Amendment and the Parsimony Provision
Steven F. Hubachek (Federal Defenders of San Diego, Inc.) has posted The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision (American Journal of Trial Advocacy, Vol. 33, No. 521, 2010) on SSRN. Here is the abstract:
The parsimony provision contained in 18 U.S.C. section 3553(a) directs district courts to impose a sentence sufficient, but not greater than necessary, to effectuate the statutory goals contained in section 3553(a)(2). The parsimony limitation and the substantive reasonableness review analyzed by Justice Scalia in Rita make clear that district courts do not have the unfettered discretion to sentence within the statutory range that they enjoyed prior to the passage of the Sentencing Reform Act. If a non-elemental fact is significant enough to effect an increase in the sentence that would be parsimonious as to the offense simpliciter, the Sixth Amendment applies to it.
February 9, 2011
Siegler & Sullivan on Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler and Barry Sullivan (University of Chicago Law School and Loyola University Chicago School of Law) have posted 'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences (Supreme Court Review, 2011) on SSRN. Here is the abstract:
In Graham v Florida, a Florida state prisoner asked the Supreme Court to hold that the Cruel and Unusual Punishments Clause of the Eighth Amendment categorically precludes the imposition of life-without-parole sentences for any juvenile offender who has committed a nonhomicide offense. There was no Supreme Court precedent to support such a holding. Indeed, the relevant Supreme Court jurisprudence seemed clearly to preclude Graham’s argument. Remarkably, however, the Court accepted Graham’s invitation and left behind more than thirty years of consistent Supreme Court jurisprudence, seemingly without a second thought or backward glance. Indeed, the Court did not even acknowledge that the law had changed, still less that it had changed substantially and dramatically. The result reached in Graham was consistent with sound constitutional policy and could have been supported with many good reasons, but the Court failed to provide a candid explanation for its decision. Death was different no longer, but the Court did nothing to explain why that was the case.
The first Part of this article will discuss the evolution of the Court’s two lines of Eighth Amendment jurisprudence leading up to Graham, those relating to noncapital and capital cases, respectively, and will discuss the two distinct frameworks the Court has applied to the two categories: a balancing test for noncapital cases and a categorical approach for capital cases. It will also distill three factors that underlie both tests. The second Part will discuss the Court’s decision to apply the categorical approach to Graham, even though it was a noncapital case. The second Part will then analyze the Court’s holding and the principal alternative opinions (authored by Chief Justice Roberts and Justice Thomas) to determine why the Court was willing to break so fundamentally with its prior jurisprudence. The third Part will consider the ramifications of Graham and will make some predictions about where the doctrinal innovation of Graham may lead. In particular, the third Part will consider what Graham bodes for three subsets of offenders: mentally retarded defendants, juvenile offenders who commit homicides, and adult defendants who commit nonhomicides.
New law and biosciences blog
is here. A description:
The Law and Biosciences Daily Digest provides relevant summaries of legal opinions (civil and criminal) in which cognitive neuroscience or behavioral genetics evidence has been introduced. While there has been growing interest in the intersection of law & cognitive neuroscience or behavioral genetics, until now few are tracking or aware of the developing case law in this area. When individuals do become aware of a case, most assume it’s an interesting anomaly. I’ve been tracking these cases daily since 2004, and with the recent uptick in the past two years, at least 2-3 opinions per day are published in which cognitive neuroscience or behavioral genetics evidence has been used. The Daily Digest provides a daily summary of those opinions.
February 8, 2011
Wiseman on Innocence After Death
Despite the rapidly growing innocence movement, five unusual innocence cases have escaped the attention of most commentators: in Florida, Indiana, Massachusetts, and Texas, courts have recently exonerated wrongfully convicted defendants following their deaths in prison. This article identifies this extension of the innocence movement and argues that posthumous exonerations give courts a rare opportunity - seized upon in the 2009 posthumous exoneration of Timothy Cole in Texas - to make a detailed investigation of the causes leading to a defendant’s wrongful conviction. The article argues that these exonerations are important not only in providing justice for victims, communities, and the families of criminal defendants, but also because of their potential contribution to the effort to discover the causes of - and ultimately prevent - wrongful convictions. Legislatures should therefore expand the currently tenuous jurisdictional and procedural bases for posthumous exonerations, perhaps using the quasi-inquisitorial judicial model followed in Cole. This is particularly important in states without innocence commissions, which are the best suited institutions to conduct this sort of inquiry. Recognition of the errors that led to an innocent defendant’s conviction - whether the defendant is now alive or dead - is essential in preventing the future conviction of innocent defendants.
Dervan on Plea Bargaining in the Shadow of Terror at Georgia State
Lucian E. Dervan (Southern Illinois) will present his article, The Surprising Lessons from Plea Bargaining in the Shadow of Terror, 27 Georgia State University Law Review 239 (2011), at Georgia State on Friday. Registration information is here. Here is the abstract of the paper from SSRN:
Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining present in the current literature – the administrative theory and the shadow-of-trial theory. The article then offers a new theory of plea bargaining that both expands on these existing theories and combines relevant aspects of each into one overarching model. In doing so, this article provides for a greater understanding of the function of the plea bargaining machine in the criminal justice process, the roles played by its actors, and the factors influencing its operation.
Dutch "Giant" Denied Accommodation (Kolber)
This morning in the Netherlands, the 6'9'', 500+ pound inmate I discussed earlier here and here was denied further accommodations to his conditions of confinement. You can also see a drawing of the dimensions of his prison cell (below) made by the inmate's attorney. There's more information about the case here, but it's in Dutch.
The author of the piece, Stijn Bronzwaer, has given me the gist of what happened today. He tells me that, according to the judge, "Angelo M.’s treatment in prison was not proven to be ‘inhumane’. [Prison administrators] did things for him: they adjusted his bed with multiple mattresses, they had a special chair for him and he didn’t have to work like ‘normal’ prisoners do. That was enough, according to the Judge, to make his life in prison more humane. His physical complaints where already there, before he entered prison."
The piece also states that, "professor Gerard de Jonge [of] Maastricht University says the idea that Dutch prisons are ‘luxu[ry] resorts’ is a stereotype. There is a lot of discussion about this here: some people think prison life should be ‘harder’, while UN reports still say there is still a lot wrong with the Dutch prison system. For example: there can be two prisoners in one cell, even though we have too MANY cells here: some prisons are empty."
Of course, the fact that this inmate failed to demonstrate, as a matter of law, that his conditions of confinement are inhumane does not speak directly to the question of whether we ought to consider various sensitivities of prisoners when sentencing or confining them. Indeed, the inmate in this case already received some accommodations that were, apparently, deemed sufficient.
February 7, 2011
Harcourt on Reducing Mass Incarceration
Bernard E. Harcourt (University of Chicago - Law School) has posted Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s on SSRN. Here is the abstract:
In 1963, President Kennedy outlined a federal program designed to reduce by half the number of persons in custody in mental hospitals. What followed was the biggest deinstitutionalization this country has ever seen. The historical record is complex and the contributing factors are several, but one simple fact remains: This country has deinstitutionalized before. As we think about reducing mass incarceration today, it may be useful to recall some lessons from the past. After tracing the historical background, this essay explores three potential avenues to reduce mass incarceration: First, improving mental health treatment to inmates and exploring the increased use of medication, on a voluntary basis, as an alternative to incarceration; in a similar vein, increasing the use of GPS monitoring and other biometric monitoring, and moving toward the legalization of lesser controlled substances. Second, encouraging federal leadership to create funding incentives for diversionary programs that would give states a financial motive to move prisoners out of the penitentiary and into community-based programs. Third, encouraging impact litigation of prison overcrowding, as well as documentaries of prison life, as a way to influence the public perception of prisoners. With regard to each of these strategies, however, it is crucial to avoid the further racialization of the prison population and merely transferring prisoners to equally problematic institutions.
Bird Kills Man
From AP, courtesy of the San Diego Union-Tribune:
An autopsy concluded Ochoa died of an accidental "sharp force injury" to his right calf.
Sampsell-Jones on Preventive Detention, Character Evidence, and the New Criminal Law
Ted Sampsell-Jones (William Mitchell College of Law) has posted Preventive Detention, Character Evidence, and the New Criminal Law (Utah Law Review, Vol. 2010, No. 3, 2010) on SSRN. Here is the abstract:
A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice.
These changes have been subtle, but they have also been both radical and fairly rapid. There is no indication that the law will reverse course. Indeed, the law's response to the threat of terrorism has only accelerated the move toward the new criminal law. In coming years, the Supreme Court will be forced to address a variety of difficult constitutional questions that the new criminal law presents.
Ironically, the safest solution may be to embrace preventive detention as an accepted function of the criminal law. Doing so would alter the Supreme Court doctrines which distinguish the civil from the criminal-doctrines that limit the reach of the Bill of Rights. The procedural protections guaranteed by the Bill of Rights should be extended to more citizens faced with incarceration regardless of whether the purpose of incarceration is incapacitation rather than punishment or deterrence. As the new criminal law remakes the American justice system, the Court must recognize that preventive detention is now a core function of the criminal law. That recognition will have the counter-intuitive effect of expanding the constitutional protections given to citizens facing imprisonment.
February 6, 2011
Top-Ten Recent SSRN Downloads
|1||259||Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011
|2||245||Is the Fourth Amendment Relevant in a Technological Age?
Vanderbilt University - Law School,
Date posted to database: January 10, 2011 [4th last week]
|3||225||An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011 [new to top ten]
|4||197||The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case
London School of Economics - Law Department,
Date posted to database: December 8, 2010 [3rd last week]
|5||190||The Substance-Procedure Relationship in Criminal Law
Donald W. Dripps,
University of San Diego - School of Law,
Date posted to database: December 8, 2010
|6||177||Who May Be Held? Military Detention Through the Habeas Lens
University of Texas School of Law,
Date posted to database: December 16, 2010
|7||151||Must Virtue Be Particular?
University of Virginia School of Law,
Date posted to database: January 14, 2011
|8||148||'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011 [new to top ten]
|9||126||Torture, Suicide, and Determinatio
New York University (NYU) - School of Law,
Date posted to database: December 11, 2010
|10||117||International Crimes and the Principle 'Nullum Crimen, Nulla Poena Sine Lege' (Crimes de Droit International et Principe 'Nullum Crimen, Nulla Poena Sine Lege') (French)
Hélène Tigroudja, Hélène Tigroudja,
Magna Carta Institute, Artois University - Law School,
Date posted to database: December 6, 2010 [new to top ten]