Saturday, March 10, 2012
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.
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.
Friday, March 9, 2012
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?
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.
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.
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.
Thursday, March 8, 2012
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.
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.
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.
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.
Wednesday, March 7, 2012
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.
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.
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.
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.
Ken Simons (Boston University) has this post at PrawfsBlawg, for those seeking alternatives or supplements to the trolley problem. In part:
Tuesday, March 6, 2012
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.
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.
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.
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.
Monday, March 5, 2012
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.