January 6, 2012
Perlin on Pathological Altruism
Michael L. Perlin (New York Law School) has posted Considering Pathological Altruism in the Law from Therapeutic Jurisprudence and Neuroscience Perspectives (PATHOLOGICAL ALTRUISM, Barbara Oakley, Ariel Knafo, Guruprasad Madhavan, David Sloan Wilson, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:
One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). TJ presents a new model by which we can assess the ultimate impact of case law and legislation that affects mentally disabled individuals, studying the role of the law as a therapeutic agent, recognizing that substantive rules, legal procedures and lawyers' roles may have either therapeutic or anti-therapeutic consequences, and questioning whether such rules, procedures, and roles can or should be reshaped so as to enhance their therapeutic potential, while not subordinating due process principles. In recent years, scholars have considered a vast range of topics through a TJ lens, including, but not limited to, all aspects of mental disability law, domestic relations law, criminal law and procedure, employment law, gay rights law, and tort law. At the same time, legal scholars have also turned their attention to the relationship between neuroscience and the law, mostly, but not exclusively, in the contexts of criminal law and procedure.
A significant amount of the legal attention paid to altruism-related issues has come in the area of organ donation law and the potential exculpatory impact of certain clusters of behavior ('syndromes') on criminal responsibility (e.g., battered spouse; cultural defense), both of which potentially pose questions of pathological altruism. In this chapter, I consider both of these topics from a TJ perspective, and will also speculate on the potential of recent neuroscience-and-the-law findings on future legal developments in these areas. I conclude that TJ and neuroimaging are valuable tools in this consideration: TJ gives us a benchmark by which we can assess whether the pathological altruist (if, indeed, the altruist is pathological) has sacrificed her dignity to do the putatively pathologically altruistic act, an assessment process that can also illuminate whether the underlying behavior is irrational or self-harming. Neuroimaging and neuroscience give us new tools to potentially assess whether the pathological altruist is a rational moral agent in doing such acts. These tools may help illuminate our further and deeper understanding of these issues, and may give us new insights into why people do engage in such actions even when they appear to be self-defeating as well as self-destructive.
Schneider on Sentencing Proportionality
It seems axiomatic in a “society of laws and not of men” that a sentence ought to be generally proportioned in degree to the underlying criminal offense. Extreme sentences, when they appear disproportionate to the underlying offense, undermine public confidence in the justice system, are ineffectual as deterrents to an angry public who perceive them as unjust, and are not useful in reforming the criminal who can see no fairness in such an extreme sentence. This Note explores the principles and analytical tools several states’ judiciaries have expounded to analyze the proportionality of sentences, and concludes that these states have formulated a coherent and workable system of review that other jurisdictions can take advantage of by either legislative or judicial action.
January 5, 2012
Cole on Reforms to Reduce Mass Incarceration
For the first time in forty years, the national incarceration rate is flattening out, even falling in state prisons. For the first time in three decades, the number of adults under any kind of correctional supervision — in prison or jail or on probation or parole — fell in 2009. At the same time, legal reforms that might have seemed impossible in prior years have increasingly been adopted, reducing penalties for certain crimes, eliminating mandatory sentencing for others, and increasing expenditures for reintegration of prisoners into society. And racial disparities, a persistent and deep-rooted problem in the American criminal justice system, after rising for decades, have begun to drop from their highest levels.
This essay examines these trends and asks what might be done to accelerate them. I survey the reforms that states and Congress have adopted and look at the interplay of such reforms with the historic racial disparities that have characterized the criminal justice system. I then speculate about the forces that have contributed to these developments, including drops in crime rates, budget pressures, and, paradoxically, the war on terror.
We still have a long way to go. If we are to reduce incarceration in any significant measure, it is essential that legislatures (1) authorize more non-incarceration responses to low-level crimes, especially drug offenses; (2) shorten sentences substantially for crimes generally, to bring them more in line with those of other industrialized nations; and (3) invest in inner-city communities where children face the biggest barriers to achieving law-abiding, productive careers. In the essay’s final section, I discuss strategies that might encourage such developments.
Schneider and Chin on the Double Jeopardy Clause
Gregory S. Schneider and Gabriel J. Chin (University of Arizona - James E. Rogers College of Law and University of California, Davis - School of Law) has posted Double Trouble: Double Jeopardy's Dual Sovereignty Exception and State Immigration Statutes (Arizona Journal of International and Comparative Law, Vol. 28, p. 353, 2011) on SSRN. Here is the abstract:
Arizona, along with other states, has begun enacting laws attempting to control the movement of undocumented non-citizens within and across its borders. This extraordinary new wave of legislation creates a serious vertical separation of powers problem, risking frustration of federal immigration policy. Although there are a number of reasons that the state action may be unconstitutional, this article focuses on the heretofore unexplored role of the Double Jeopardy Clause.
The dual sovereignty exception to the Double Jeopardy Clause of the United States Constitution allows for successive prosecutions for the same offense, so long as each prosecuting jurisdiction bases the prosecution on its own authority. Two jurisdictions may not prosecute the same offense if each is drawing from the same source of power. States do not have their own authority to enact laws that regulate immigration. Defenders of state regulation do not deny federal primacy in the immigration area, but propose that states have been implicitly invited to assist in carrying out federal policy by enacting state laws.
This article suggests that courts should be slow to conclude that the federal government has invited the states to enact legislation. If states have the authority to prosecute immigration cases, that means that the federal government is divested of its power to act in any case where the state prosecutes first. A court, therefore, should uphold state immigration prosecutions only if it is convinced not only that the law is not preempted or unconstitutional for some other reason, but also that the United States intentionally decided to give the states authority to override federal decision making in the immigration arena.
January 4, 2012
Cafaro on Drugged Driving
Tina Cafaro (Western New England University School of Law) has posted Slipping Through the Cracks: Why Can't We Stop Drugged Driving? (Western New England Law Review, Vol. 32, p. 33, 2010) on SSRN. Here is the abstract:
Part I of this Article briefly explains the history of impaired driving laws, with respect to both alcohol and drugs. It then sets forth the various frameworks currently in place to establish that an individual is OUI drugs and evaluates the effectiveness of each standard. Part II discusses the impediments to detecting and prosecuting OUI drug cases. This section details the difficulties associated with the science behind drugged driving, including determining the effect a drug may have on an individual as well as the validity of tests used to determine if one has a drug in their system. Part II highlights the issues pertaining to laws that regulate OUI licit (prescription or over-the-counter) drugs. This section also discusses the impact that lack of funding and inadequate training for law enforcement officers and prosecutors has on combating this crime. Finally, Part III recognizes that targeting drugged driving is more complicated than fighting OUI alcohol and suggests what is needed to combat this problem.
Leavens on State Constitutional Expansion of Criminal Procedure Protections
Arthur Leavens (Western New England University School of Law) has posted State Constitutionalism: State-Court Deference or Dissonance? (Western New England Law Review, Vol. 33, p. 81, 2011) on SSRN. Here is the abstract:
This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what deference if any does a state court owe the Supreme Court in interpreting state constitutional provisions protecting against unreasonable searches and seizures and affording the criminally accused the right to counsel?
This Article explores the question of deference in the context of a particular state, Massachusetts, employing that focus for three reasons. First, the Commonwealth’s Declaration of Rights — which has remained virtually unchanged since its adoption in 1780 — served as a principal model for the federal Bill of Rights, leaving no doubt but that textually and historically the federal and state provisions at issue here are essentially the same. This poses the interpretive question most starkly; in each case, we are considering federal and state versions of what was to their respective framers the same normative protection. Second, unlike most state court judges, the justices of the Massachusetts Supreme Judicial Court are appointed and have lifetime tenure, putting them in the same, politically-insulated position as their federal counterparts. This poses the issue of decisional legitimacy in bold relief, forcing consideration of the counter-majoritarian aspects of judicial review. Finally, the Supreme Judicial Court has been quite active over the past three decades in this area of state constitutionalism, much of this activity in the area of criminal procedure. Its jurisprudence in state constitutionalism is thus well rehearsed and provides a good backdrop for this discussion of such state-court decision making.
January 3, 2012
SpearIt on Child Pornography Sentencing and Demographic Data
SpearIt (Saint Louis University School of Law) has posted Child Pornography Sentencing and Demographic Data: Reforming Through Research (Federal Sentencing Reporter, Vol. 24, p. 102, 2011, Saint Louis U. Legal Studies Research Paper No. 2011-32) on SSRN. Here is the abstract:
This article examines demographic research on child pornography offenders and considers its utility for sentencing reform. It begins by tracing the history of the internet and federal possession law, detailing particularly how public and political panic about child pornography evolved within a growing fear of the internet itself. The article continues by surveying current demographic research on possession offenders. Drawing on this data and related research, the article considers what the literature can contribute to sentencing policy, simultaneously showcasing vast differences between the type of offender Congress intended to punish and those actually receiving the harsh punishment. Taken wholly, this article explains why child pornography guidelines represent a departure from the normal process of creating Federal Sentencing Guidelines; it tells how law succumbed to the forces of fear and stacked the scale against child pornography offenders.
Epstein on an Ethical Issue When Examining the Child Witness
Jules Epstein (Widener University - School of Law) has posted Ruminations on an Ethical Issue When Examining the Child Witness: Zealous Advocacy or Destroying Evidence (Widener Law Review, Forthcoming, Widener Law School Legal Studies Research Paper No. 11-53) on SSRN. Here is the abstract:
The prosecution of Earl Bradley, based on a cache of videotape evidence confirming horrific abuse of children by their pediatrician, resolved without testimony from a single child victim/witness. Yet the spectre of a possible trial in a case such as this brings with it significant questions of professional responsibility regarding the questioning of child witnesses. In a symposium devoted to the Bradley case, a hypothetical was posed to the audience asking whether defense counsel may ‘trigger’ a child witness’ fear, rendering her unavailable to testify. The precise hypothetical asked whether, when a client tells counsel “just mention the words ‘Nightmare on Elm Street’ and the child will freeze and not say a word,” counsel may then use that phrase in a question at a pre-trial competence hearing or at trial (ensuring the child’s inability to testify).
Because the audience participation discussion failed to answer the question, this rumination on the problem followed. It examines the Model Rules, and determines, ultimately, that it is only by informing those rules with criminal law provisions [particular witness tampering statutes] and considerations of evidentiary relevance that a conclusive resolution can be made. Whether a concussive physical act or a concussive question, when there is no evidentiary relevance and the intent is to procure unavailability, the conduct is banned. That this leaves tremendous opportunity for zealous advocacy, even with the heightened stakes in a trial for charges of child abuse, is without doubt. But an attack on the right to testify based on extra-legal matters has no place in the courtroom, or in any lawyer’s arsenal.
January 2, 2012
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Wouter P. J. Wils,
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University of Pennsylvania - Law School - Faculty,
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