CrimProf Blog

Davis & Anderson on Therapeutic Opioids

Corey S. Davis and Evan D. Anderson (Gillings School of Global Public Health and Temple University - James E. Beasley School of Law) have posted Breaking the Cycle of Preventable Suffering: Fulfilling the Principle of Balance (Temple International & Comparative Law Journal, Vol. 24, No. 2, p. 329, 2010) on SSRN.  Here is the abstract: 

Therapeutic opioids are essential for anesthesia and palliative care and have proven highly effective in reducing the harms associated with use of illicit drugs. Yet, access to therapeutic opioids remains strikingly inadequate in much of the world, resulting in preventable suffering on a vast scale. Many of the impediments to access are found in overly restrictive law, policy and regulation at the national level. Although countries are required by international conventions to place certain controls on opioids, many national regulatory regimes far exceed the requirements of international law. This paper supports that model by illustrating the considerable latitude that countries have to adopt national laws that fulfill the requirements of international drug law.

Natapoff on Misdemeanors

Alexandra Natapoff (Loyola Law School Los Angeles) has posted Misdemeanors (Southern California Law Review, Vol. 85, 2012) on SSRN.  Here is the abstract: 

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

 

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., “criminalized,” with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system’s dynamics and dysfunctions.

Volokh on Prisons and Privatization

Alexander Volokh (Emory University School of Law) has posted Prisons, Privatization, and the Elusive Employee-Contractor Distinction on SSRN. Here is the abstract:

Does it matter whether prisons are managed publicly or privately — that is, whether prisoners are kept by state employees or by private contractors?

Yes, for all sorts of empirical reasons. Chiefly, we reasonably expect and observe and public and private providers will act differently and otherwise affect the real world.

But is there any inherent, normatively relevant difference between employee- and contractor-managed prisons, independent of such data-driven concerns?

No.

The state is an abstract set of relationships; therefore, to act, the state must use agents of some sorts. Both employees and private contractors are private individuals; both do things for the state in exchange for money; both have private purposes, as well as the discretion to follow those purposes sometimes, even contrary to the desires of the state. Private contractors can be unaccountable, but so can public employees; private contractors can lack legitimacy in the eyes of the public; but so can public employees.

The extent to which the public and private sector differ is an empirical, contingent question. It makes sense to favor or oppose privatization, and to treat the public and private sectors differently in the law, but the reasons for doing so must be based not on any inherent difference between sectors but rather on the empirical — and hotly contested — difference in how the two sectors will act in the real world.

Bibas on The Machinery of Criminal Justice

Stephanos Bibas (University of Pennsylvania Law School) has posted The Machinery of Criminal Justice (THE MACHINERY OF CRIMINAL JUSTICE, S. Bibas, Oxford University Press, 2012) on SSRN. Here is the abstract:

Two centuries ago, the American criminal justice system was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers.

In The Machinery of Criminal Justice, author Stephanos Bibas surveys these developments over the last two centuries, considers what we have lost in our quest for efficient punishment, and suggests ways to include victims, defendants, and the public once again. These ideas range from requiring convicts to work or serve in the military, to moving power from prosecutors to restorative sentencing juries. Bibas argues that doing so might cost more, but it would better serve criminal procedure's interests in denouncing crime, vindicating victims, reforming wrongdoers, and healing the relationships torn by crime.

The Introduction to the book is attached.

Traps on Release-Dismissal Asymmetry and Interplay Plea Bargaining

Leonid Traps has posted A Tilted Playing Field? The Release-Dismissal Asymmetry and Interplay Plea Bargaining on SSRN. Here is the abstract:

Though Judge Learned Hand famously wrote in 1923 that “[u]nder our criminal procedure the accused has every advantage,” more recent scholarship has persuasively argued that the playing field in a criminal prosecution is tilted against, rather than for, the defendant. In federal criminal prosecutions where there is, beyond the immediate criminal liability risk, a future threat of the government also bringing civil claims against the same defendant, the defendant faces increased uncertainty and vulnerability. This vulnerability is made worse by an asymmetry in options available to the parties in a criminal prosecution, an asymmetry that has been hesitantly but repeatedly ratified in the case law and by prosecutors themselves. In particular, while the defendant can and may be compelled to give up any of his future meritorious civil claims arising out of the prosecution and thus assure the government the finality it might seek, federal prosecutors often cannot assure the defendant that the government will not pursue future civil claims against the defendant. This limit on the prosecutor’s power to bind the government from bringing future civil charges against the defendant, and its effect on the plea process in criminal cases, are both illustrated vividly in the tax interplay and immigration interplay contexts. The ultimate effect of this power imbalance within the contractual model of plea bargaining is to increase the defendant’s vulnerability during the plea process, to strengthen the government’s already substantial leverage, and to create a harsh trap for the unwary and unsophisticated defendant who erroneously thinks he has bargained for finality.

Ryan & Whelan on Mental Health Courts

Sarah Ryan and Darius Whelan (affiliation not provided to SSRN and University College Cork - Faculty and Department of Law) have posted Diversion of Offenders with Mental Disorders: Mental Health Courts (Web Journal of Current Legal Issues, No. 1, 2012) on SSRN. Here is the abstract:

At present, if people with mental disorders appear before the criminal courts in Ireland, unless they are unfit for trial or not guilty by reason of insanity, the system governing their case will be the general one which applies to all criminal cases. In recent decades, a number of other common law jurisdictions have begun to set up mental health courts as a means of diverting some people with mental disorders from the criminal justice system and into more appropriate treatment. This article begins with a review of the background to mental health courts, focusing on the concept of diversion from the criminal justice system and the role of Therapeutic Jurisprudence theory as an inspiration for the establishment of mental health courts. The main features of mental health courts are identified and the features of those in existence in the United States are contrasted with those in Canada and England and Wales. Some of the main arguments against the use of these courts will be discussed, including the contentions that defendants' participation may not be truly voluntary and that their due process rights are not adequately protected. The question of whether a mental health court should be established in Ireland is considered.

Morgan on the Residual Clause of the Armed Career Criminal Act

Mark R. Morganhas posted Rising from the Ashes, But Not High Enough: Sykes’ Clear-but-Failed Remedy for the Vague Residual Clause of the Armed Career Criminal Act on SSRN.  Here is the abstract: 

This case note provides background information on the ACCA and analyzes the differences among the past approaches taken by the Court when interpreting the residual clause of the ACCA. This note continues by examining the changes in the approach and philosophy of the Court toward the residual clause, as articulated in Sykes. Next, it predicts how the Court will rule in future cases by analyzing the Court’s opinion and predicting how the Court has solidified its methods of approach using a modified-closest analog approach. Additionally, this note addresses the criticisms by the concurring and dissenting opinions in Sykes. Further, this note argues that the ACCA should be rendered void for vagueness and ambiguity. While the Sykes Court clarified its approach for future cases, ambiguity and vagueness still run rampant in the interpretation and language of the residual clause.

Ganong on Rehabilitation, Incapacitation, and Aging

Peter Ganong has posted Rehabilitation, Incapacitation, and Aging: Evidence from Georgia on SSRN.  Here is the abstract: 

In April 1993, Georgia instituted new parole guidelines that led to longer prison terms for parole-eligible offenders. This paper shows that an extra year of prison reduces the three-year recidivism rate by 6 percentage points (14 percent); and the benefits of preventing this crime are likely outweighed by the costs of this additional incarceration. 

I develop a new econometric framework to jointly estimate the effects of rehabilitation, incapacitation, and aging in reducing crime. Estimates of incapacitation effects using existing methodologies are biased upward by at least a factor of two because they focus on a short time horizon.

Ratcliffe, Taniguchi, Groff & Wood on Police Patrol Effectiveness in Violent Crime Hotspots

Jerry H. Ratcliffe , T. Taniguchi , E. E. Groff and J. Wood (Temple University , affiliation not provided to SSRN , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted The Philadelphia Foot Patrol Experiment: A Randomized Controlled Trial of Police Patrol Effectiveness in Violent Crime Hotspots (Criminology, Vol. 49, No. 3, pp. 795-831, 2011) on SSRN.  Here is the abstract: 

Originating with the Newark foot patrol experiment, research has found police foot patrols improve community perception of the police and reduce fear of crime, but are generally unable to reduce the incidence of crime. Previous tests of foot patrol have, however, suffered from statistical and measurement issues and have not fully explored potential dynamics of deterrence within micro-spatial settings. In this paper we report on the efforts of over 200 foot patrol officers during the summer of 2009 in Philadelphia. GIS analysis was the basis for a randomized controlled trial of police effectiveness across 60 violent crime hotspots. Results identified a significant reduction in the level of treatment area violent crime after 12 weeks. A linear regression model with separate slopes fitted for treatment and control groups clarified the relationship further. Even after accounting for natural regression to the mean, target areas in the top 40% on pre-treatment violent crime counts had significantly less violent crime during the operational period. Target areas outperformed the control sites by 23 percent, resulting in a total net effect (once displacement was considered) of 53 violent crimes prevented. The results suggest that targeted foot patrols in violent crime hotspots can significantly reduce violent crime levels as long as a threshold level of violence exists initially. The findings contribute to a growing body of evidence on the contribution of hotspots and place-based policing to the reduction of crime, and especially violent crime, a significant public health threat in the United States. We suggest that intensive foot patrol efforts in violent hotspots may achieve deterrence at a micro-spatial level, primarily by increasing the certainty of disruption, apprehension and arrest. The theoretical and practical implications for violence reduction are discussed.

Raban on Constitutionalizing Corruption

Ofer Raban (University of Oregon - School of Law) has posted Constitutionalizing Corruption: Citizens United, its Conceptions of Political Corruption, and the Implications for Judicial Elections Campaigns (University of San Francisco Law Review, Vol. 46, p. 479, 2012) on SSRN.  Here is the abstract: 

CITIZENS UNITED V. FEC invalidated a provision of the Bipartisan Campaign Reform Act (“BCRA”) that prohibited corporations and unions from spending money on “electioneering communication.” The decision — which was written by Justice Anthony Kennedy, a former lobbyist — was based on an exceedingly narrow definition of political corruption. This Article argues that the Court’s definition flies in the face of federal bribery laws, and that it fails to draw a meaningful distinction between corrupt and permissible political action. The Court’s poor reasoning is all the more unfortunate since, as this Article also explains, the Citizens United decision appears to be applicable to judicial elections as well.

Tuerkheimer on Rape and Sexuality in Legal Theory and Practice

Deborah Tuerkheimer (DePaul University - College of Law) has posted SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice on SSRN.  Here is the abstract: 

This article observes the convergence of two seemingly contradictory developments. One is the widespread rape of women by acquaintances, dates, and intimates, mostly without legal recourse. The other is the emergence of a generation of women who embrace a pro-sex orientation and define their sexualities accordingly. Legal theorists have not yet reconciled this move toward sex positivity with the ubiquity of non-stranger rape. SlutWalk – the grassroots initiative that protests rape by embracing sex – provides a vehicle for first exploring tensions that arise when sexual agency is asserted against a backdrop of pervasive sexual violation. On analysis, sexual agency must be reconceived. The resulting framework provides a different perspective on rape law and, in particular, how it constructs female sexuality. The article concludes by offering a new approach to rape law reform – one that accounts for women’s sexual agency, thereby furthering the same.

Morrison on United States v. Jones

Caren Myers Morrison (Georgia State University - College of Law) has posted The Drug Dealer, the Narc, and the Very Tiny Constable: Reflections on United States v. Jones (California Law Review Circuit, Forthcoming) on SSRN.  Here is the abstract: 

This past January, the Supreme Court held unanimously in United States v. Jones that the installation and use of a GPS tracker on a suspected drug dealer’s Jeep constituted a search under the Fourth Amendment. The outcome had been fairly well foreshadowed: at oral argument, the Justices had seemed perturbed by the thought that police could put trackers on cars — even the Justices’s own cars — seemingly at will, and there was a clear thread running through the questions that the practice smacked a little too much of George Orwell’s 1984.

But the reasoning of the case was hotly disputed, with Justice Scalia and Justice Alito penning sparring opinions, and Justice Sotomayor contributing a separate concurrence. Justice Scalia’s opinion for the Court held that monitoring a suspect with a GPS device was a search because, by attaching the device to the car in the first place, the government had committed an act that would have constituted a trespass at common law. Justice Alito argued that the four-week monitoring was a search because it went on for too long. 

Amid this confusion, I wish to advance two critiques: First, that the majority opinion’s reliance on common law trespass norms enabled it to avoid making a reasoned normative pronouncement in the inadequately theorized area of electronic surveillance, and second, that its opinion, though claiming to adhere to precedent, did nothing of the kind.

Instead, Justice Scalia formulated a new, trespassory test: a government intrusion constitutes a search under the Fourth Amendment if the intrusion: (a) would have qualified as a trespass at common law, (b) invaded a constitutionally protected area enumerated in the Fourth Amendment, and (c) was committed for the purpose of gathering information. The Katz “reasonable expectation of privacy” inquiry was relegated to back-up status. 

But by insisting that the Court need look no further than his trespassory test, Justice Scalia avoided the only important question raised in this case — whether, in today's society, the actions of the police in the Jones case would have constituted a search, regardless of whether there was a trespass.

Mindlin on The Quiet Recasting of Abatement

Alexander F. Mindlin has posted 'Abatement Means What it Says' : The Quiet Recasting of Abatement (NYU Annual Survey of American Law, Vol. 67, p. 195) on SSRN.  Here is the abstract: 

This paper argues that the modern practice of abatement ab initio, in which courts erase the conviction of one who dies pending a first appeal, lacks the firm historical basis that is often claimed for it by those who see in it an ancient recognition of the right to one appeal. Examining early cases of abatement, the author finds that they lacked any connection to the protection of a supposed appellate right, and simply reflected the brute fact that a dead person cannot be punished. Accordingly, traditional abatement neither exonerated the defendant, nor closed off avenues of restitution for the victims.

Campbell on Federalism and Capital Punishment

Michele Martinez Campbell (Vermont Law School) has posted Federalism and Capitol Punishment: New England Stories (Vermont Law Review, Vol. 36, p. 81, Fall 2011) on SSRN.  Here is the abstract: 

Application of the federal death penalty to crimes committed in states that have abolished capital punishment is a tiny problem with a disproportionately powerful scholarly impact. Federal death sentences represent only 0.53% of death sentences imposed in the United States. Even more striking, only six individuals, out of 3,242 on death row nationwide, currently await execution on federal capital charges for crimes committed in states that have abolished capital punishment. Yet, in an era of alarmism over the federal government’s role in enforcing criminal laws, an increasing body of scholarly literature has focused on the federalism concerns posed by this rare capital punishment practice.

Overwhelmingly, scholars have argued that federal death sentences should be constitutionally impermissible for crimes committed within the borders of abolitionist states strictly on federalism grounds. This Article examines the prevailing scholarly view that federalism concerns trump Supremacy Clause arguments and render the federal death penalty unconstitutional when applied within the boundaries of abolitionist states and offers a different view. It argues that, contrary to prevailing scholarly wisdom, courts have correctly permitted the federal government to dictate its own sentencing practices given prevailing Supremacy Clause precedent; and moreover that there are two major policy advantages in having federal authorities bring capital charges when particularly egregious cases arise in abolitionist states. First, federal capital prosecution can serve as a “safety valve,” insulating local communities from political pressures that might otherwise lead to more widespread application of capital punishment or derail state abolitionist movements. And second, federal capital charges provide opportunities for uniformity of application that may address longstanding concerns regarding racial inequities in the imposition of death sentences.

The Doctrine of the Double Effect and the NFL Bounty Controversy

Ken Simons (Boston University) has this post at PrawfsBlawg, for those seeking alternatives or supplements to the trolley problem. In part:

I do not suggest that the purpose/ knowledge distinction is the only source of public outrage over the Saints' "bounty" system.  Another possible source is the egregiously quid-pro-quo nature of paying a bounty.  Any bounty system makes it uncomfortably clear how much the NFL rewards violence.  But I doubt that the payment of bounties is the whole explanation.  Suppose, for every "hard hit" or every successful sack of a quarterback, a player received a financial reward.  I doubt that serious outrage would be the reaction.

Todres on Maturity

Jonathan Todres (Georgia State University College of Law) has posted Maturity (Houston Law Review, Vol. 48, pp. 1105-1163, 2012, Georgia State University College of Law, Legal Studies Research Paper) on SSRN.  Here is the abstract: 

Across numerous areas of the law — including family law, criminal law, labor law, health law, and other fields — when children are involved, maturity determinations are pivotal to outcomes. Upon reaching maturity, an individual has access to a range of rights not previously available and is expected to fulfill certain duties. Despite the central importance of maturity, the law’s approach to it has been to consider the concept in a piecemeal and issue-specific fashion. The result is a legal construct of maturity that is anything but consistent or coherent. For example, every state has a minimum age below which a child is considered not mature enough to consent to sex. However, if money is involved, more than forty states deem that child mature enough to have consented to sex for money and be charged with the crime of prostitution (even if the money is paid to a pimp and the child never sees it). This Article seeks to undertake a holistic assessment of the law’s approach to maturity.

Markers of maturity in the law frequently occur at different points in time. Children are deemed mature enough to participate in the polity (e.g., vote) at a different age from when they are deemed mature enough to exercise independent economic power (e.g., work), control their own bodies (e.g., engage in consensual sex), or assume adult social responsibilities (e.g., drink alcohol in public places). In short, the law provides little clear guidance on how maturity should be understood and treated. Recent research on brain development and the work of cognitive psychologists provide some answers. To date, however, a significant consideration has been largely overlooked: cultural conceptions of maturity. Thus, this Article seeks to incorporate cultural perspectives on maturity into the dialogue. More broadly, this Article aims to bring some clarity to the issue of maturity and examine whether cultural practices can inform the legal, policy, and moral questions in the law’s approach to maturity.

Traps on Mens Rea Distribution in Federal Criminal Law after Flores-Figueroa

Leonid Traps has posted 'Knowingly' Ignorant: Mens Rea Distribution in Federal Criminal Law after Flores-Figueroa (Columbia Law Review, Vol. 112, No. 3, 2012) on SSRN.  Here is the abstract: 

The Supreme Court has repeatedly and emphatically disfavored applying strict liability to ambiguous elements of federal criminal statutes. This presumption against strict liability has been most pronounced where the statute at issue contains a mens rea or culpability term and the dispute is over which elements of the statute this term applies/extends to. In Flores-Figueroa v. United States, the Court culminated this line of cases by expounding an interpretive approach which applies the mens rea term in a statute to every subsequent element of the offense. This new framework was based on text and grammar rather than any particular substantive criminal law principles. The opinion’s textual logic appears to encompass many other federal criminal statutes with potentially strict liability elements. Lower federal courts, however, have not extended Flores-Figueroa’s reasoning to such analogous criminal statutes and have instead maintained strict liability applications in the contexts of offenses involving minors, firearm offenses, and immigration offenses. The lower court resistance to Flores-Figueroa has relied on prior Court precedent that only bars strict liability applications if the defendant would somehow be fundamentally 'innocent' but for the use of strict liability. This Note argues that the lower court resistance to extending Flores-Figueroa needs to be highlighted and addressed and that the Supreme Court’s new approach, which replaces an incoherent innocence-based distinction with a clear workable rule in the context of mens rea distribution, needs to be forcefully reaffirmed in other statutory contexts.

Denk on The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse

Kurt M. Denk (Boston College Law School) has posted Jurisprudence that Necessarily Embodies Moral Judgment: The Eighth Amendment, Catholic Teaching, and Death Penalty Discourse (Notre Dame Law Review, Vol. 88, 2012-2013) on SSRN. Here is the abstract: 

Despite obvious differences, certain historical and conceptual underpinnings of Catholic death penalty teaching parallel core elements of U.S. death penalty jurisprudence, particularly given the Supreme Court’s expansive yet contested moral reasoning in Kennedy v. Louisiana, which stressed that Eighth Amendment analysis "necessarily embodies a moral judgment." This Article compares that jurisprudence with the Catholic Church’s present, near-absolute opposition to capital punishment, assessing how the death penalty, as a quintessential law and morality question, implicates overlapping sources of moral reasoning. It then identifies substantive concepts that permit Eighth Amendment jurisprudence and the Catholic perspective to be mutually translated, presenting this approach as a means to advance death penalty discourse.

Rogers on How Technology is Redefining Child Pornography Laws

Audrey Rogers (Pace University - School of Law) has posted From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws on SSRN.  Here is the abstract: 

Child pornography circulating in cyberspace has ballooned into the millions. To punish this flood, the law must accurately delineate culpable conduct. Technology such as peer-to-peer networks has erased the divisions among traders of child pornography, and, therefore, the differentials in punishment have lost their underpinnings. The current sentencing controversy surrounding child pornographers is merely the tip of the iceberg of the larger need to revamp the offenses themselves.

This paper provides a framework for a normative critique of the offenses and their sentences. It suggests the law could better reflect technology by comporting with a refined harm rationale that rests on the fundamental injury to the victim’s dignity and privacy. Drawing on comparisons to diverse laws such as the Geneva Convention’s ban on photographs of prisoners of war, this paper states all traders in child pornography violate the rights of the children depicted and therefore inflict harm, albeit at different levels. Accordingly, the paper proposes three categories: producers, traders, and seekers of child pornography with base sentences varying accordingly. Starting at the same base level, the Sentencing Commission could then propose enhancements or departures to distinguish among the traders and their individual culpability.

Gordon on Incitement Law

Gregory Gordon (University of North Dakota - School of Law) has posted Music and Genocide: Harmonizing Coherence, Freedom and Nonviolence in Incitement Law on SSRN.  Here is the abstract: 

Can singing a song constitute incitement to genocide? A 2009 decision by the International Criminal Tribunal for Rwanda (ICTR) in the case of Hutu extremist pop singer Simon Bikindi said it can. But in convicting Bikindi, it failed to apply, much less develop, the incitement law framework it had established, albeit in a piecemeal fashion, through a string of prior opinions (most notably in the famous 'Media Case'). That framework asks judges to consider the purpose, text, context, and relationship between the speaker and subject to determine if a speech constitutes criminal incitement. Critics have pointed to the test's piecemeal development, its supple contours, and the Tribunal's desultory application of it and proposed replacing it with an entirely new test. As African dictators have supposedly cited the ICTR framework to justify stifling legitimate dissent, such a drastic solution is necessary, they argue, to promote freedom of speech and prevent genocide.

 This Article acknowledges these concerns but proposes a middle-ground approach instead. Given doctrinal glitches in the proposed new tests, the existing framework should be preserved but elements of the new tests should be incorporated as 'evaluative factors' within the 'context' analysis. At the same time, additional contextual reference points (such as the outbreak of war and the personal history of the speaker) should be appended to the existing test. An entirely new element, 'channels of communication,' should be tacked on as well to help distinguish between written versus broadcast media (given that the latter is more effective at provoking imminent lawless violence). Similarly, as suggested by the Bikindi decision, two additional elements - temporality (was the speech uttered within the proper contextual time frame?) and instrumentality (was the speaker responsible for the speech's dissemination) - should be appended to the existing framework. Finally, an incitement-technique typology, which would explicitly recognize various indirect incitement methods (such as 'accusation in a mirror' and 'victim-sympathizer conflation'), should also be integrated into the analysis. This compromise approach will provide the necessary flexibility to permit nuanced incitement analysis while insuring greater degrees of normative coherence, free expression and, most importantly, effective genocide prevention.