March 31, 2012
Herzog-Evans on Emulating American Inventiveness in French Judicial Practice
Martine Herzog-Evans (University of Reims, Law Faculty, France) has posted Reforming Judicial Pactice in France by Emulating American Inventiveness (Révolutionner La Pratique Judiciaire: S'Inspirer De L'Inventivité Américaine) (Recueil Dalloz, No. 44, pp. 3016-3022, 2011) on SSRN. Here is the abstract:
The United States have gone through a series of legal and procedural revolutions, in criminal law as well as in other fields, such as family law, torts, labour law, and so forth. These reforms were necessary in view of some of their well-known excesses such as mass incarceration, factory-line processing of offenders, and, last but not least, adversarial types of procedures and hearings. This has led, inter alia, to the creation of 'problem solving courts'. Empirical evidence shows that this has produced remarkable results both in terms of reoffending, cost and impact on the community. The United States have also created 'therapeutic jurisprudence', which endeavors to think of the law and its implementation, courts functioning and lawyers' practice, in terms of their 'therapeutic' or 'antitherapeutic' effects on people. Such innovative models, which fascinate the rest of the western world and beyond, and have been imported and emulated elsewhere, also allow to revisit French 'juges de l'application des peines' (sentence's implementation judges and courts) and to realize that their creation, sixty years ago, may well have constituted a remarkable intuition.
Note: Downloadable document is in French.
Walker on Social Democracy and Security
The aim of this paper is to account for the dilemmas and difficulties a social democratic approach to crime and security has always faced in the context of the modern state, to examine the historical solutions sought to these difficulties, to identify some of the new challenges to have emerged over the past 30 years or so - in particular the challenges posed by neo-liberalism and globalization, and to assess the prospects of a new wave of social democratic crime and security policy in the face of the combination of new and old challenges. Just as social democracy has always been ambiguously poised between reformism and more radical forms of socialism, social democratic crime and security policy has also always been uneasily located between its reformist premise - stressing consent, rehabilitation and cultural inclusion and its radical premise - stressing the material basis of any genuine programme of societal security. This tension, amplified by the recent challenges posed by neo-liberalism and globalization, underpins the explanation and the prognosis offered by the paper.
March 30, 2012
Taslitz on Why Court and Legislatures Ignore Rotten Social Background
Andrew E. Taslitz (American University, Washington College of Law) has posted The Rule of Criminal Law: Why Courts and Legislatures Ignore Richard Delgado’s Rotten Social Background (Alabama Civil Rights & Civil Liberties Law Review, Vol. 2, p. 79, 2011) on SSRN. Here is the abstract:
This article was written in connection with the 25th anniversary of the publication of Professor Richard Delgado's piece on the rotten social background defense. That defense seeks to mitigate punishment for a crime that stems from a defendant's growing up, and continuing to live, in an area of poverty, crime, and violence. Rather than taking a position on the defense's ultimate wisdom, this article asks a different question: Why has the defense, as articulated in Delgado's article, proven of such interest to academics but been virtually ignored by courts and legislatures? The article answers by exploring the cultural and subject-matter specificity of the idea of the "rule of law." In particular, the article explains that notions of the rule of law in the area of criminal justice in the United States reflect a dominant ideology reflecting three basic assumptions: first, criminal responsibility may not be comparatively apportioned between an offender and society; second, entity liability -- such as the liability of a "people" for a crime -- is disfavored; and, third, compassion must be reserved for those "like us," "us" being the judgers of culpability in a society -- a description assuredly not fitting persons from rotten social backgrounds. Some aspects of this ideology are overt, other aspects implicit or unconscious. Exploring this ideology through the lens of its inconsistency with the rotten social background defense allows us to imagine alternative, perhaps more defensible, rule-of-criminal-law ideologies. What matters more than the policy wisdom of the rotten social background defense is, therefore, the door it opens to a wider ideological imagination.
St. Eve & Zuckerman on Impartial Juries and Social Media
Amy J. St. Eve and Michael A. Zuckerman (U.S. District Court Judge and U.S. District Court) have posted Ensuring an Impartial Jury in the Age of Social Media (Duke Law & Technology Review, Vol. 11, 2012) on SSRN. Here is the abstract:
The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions — the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.
In this Article, we present informal survey data from actual jurors on their use of social networking during trial. We discuss the rise of web-based social networks like Facebook and Twitter, and the concerns that arise when jurors communicate about a case through social media before returning a verdict. After surveying how courts have responded to jurors’ social media use, we describe the results of the informal survey. The results support a growing consensus in the legal profession that courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about trial. Although others have stressed the importance of jury instructions in this area, we hope that the informal survey data will further the dialogue by providing an important perspective — that of actual jurors.
Harcourt on Laissez Faire and Mass Incarceration
Bernard E. Harcourt (University of Chicago - Law School) has posted On the American Paradox of Laissez Faire and Mass Incarceration (Harvard Law Review Forum, Forthcoming) on SSRN. Here is the abstract:
In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth centuries.
Professor James Q. Whitman’s book review in the Harvard Law Review criticizes The Illusion of Free Markets for engaging the writings of Michel Foucault on punishment, and for being surprisingly callous about the problem of mass incarceration. In this response to Professor Whitman’s review, Professor Harcourt clarifies the theoretical stakes of the debate in order to demonstrate, first, that the book represents an attempt to get beyond both the Chicago School and Foucault’s concept of discipline. Second, Harcourt returns to the problem of mass institutionalization to argue that a more nuanced reading of the available data is necessary. Overall, Professor Harcourt stresses the importance of questioning what so often passes as received wisdom.
Fan on Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance
Mary D. Fan (University of Washington - School of Law) has posted Panopticism for Police: Structural Reform Bargaining and Police Regulation by Data-Driven Surveillance (Washington Law Review, Vol. 87, p. 93, 2012) on SSRN. Here is the abstract:
Spurred by civil rights investigations, police departments across the nation, including in Washington State, are engaging in structural reform bargaining and collaborative design of institutional reforms. Often before any complaint is filed in court or a judge makes any findings of unconstitutionality, police — and the groups threatening to sue the police — are cooperating to fashion remedies for the biggest concerns that have shadowed the law of criminal procedure, such as excessive force and the disproportionate targeting of people of color. Prominent scholars have expressed concern over settlement of civil rights suits outside the arena of the courtroom and without legal clarification. This Article argues, however, that bargaining in the shadow of law and outside the courthouse may yield smarter and farther-reaching reforms and remedies based on data-driven surveillance than could be achieved through litigation and judicial decision.
This Article argues that the remedies being fashioned “off the books” — that is, outside the doctrine in the case law reporters — offer important insights for the future of police governance and reform. The primary engine of police regulation — the exclusionary rule, which deters rights violations through the remedy of exclusion of improperly obtained evidence — is increasingly eroding and becoming the last resort rather than first instinct. The question becomes: what regulatory and remedial model should arise to fill the vacuum? The Article contends that a promising paradigm being refined by structural reform bargaining is regulation by data-driven surveillance — what this Article dubs “panopticism for police.” Panopticism is efficient internalized regulation by surveillance. The term comes from the metaphor of Jeremy Bentham’s Panopticon, in which prisoners in a state of perfect visibility positioned around an opaque watch tower self-regulate because at any time the guard may be watching. The goal of police panopticism is leveraging data-driven surveillance from multiple institutional vantages. The state of “conscious and permanent visibility” reduces monitoring and remedial costs and triggers self-regulation and institutional culture change.
March 29, 2012
Risinger on Aspects of Forensic Bayesianism
D. Michael Risinger (Seton Hall University School of Law) has posted Some Reservations About Likelihood Ratios (and Some Other Aspects of Forensic Bayesianism) on SSRN. Here is the abstract:
This paper is an expansion of a talk given at the 8th International Conference on Forensic Inference and Statistics in Seattle, July 19, 2011. The focus of the paper is the application of modern Bayesianism in the context of forensic science, as advocated by many in England and Europe. The paper reviews the many aspects of modern Bayesianism that extend well beyond the analytic truth of Bayes’s Theorem, and focuses, among other things, on the limits of what can be accomplished by the invocation of “subjective” probabilities. In a sense, all probabilities are subjective, since they are all mind dependent. However, the important issue in forensic contexts, as in others, is not the subjective nature of invoked probabilities, but the characteristics of the belief warrant to be required for them in different decisional contexts. In the end, I find myself drawn to forensic Bayesianism, but not fully converted.
Ryan on Breakthrough Science and the New Rehabilitation
Breakthroughs in pharmacology, genetics, and neuroscience are transforming how society views criminals and thus how society should respond to criminal behavior. Although the criminal law has long been based on notions of culpability, science is undercutting the assumption that offenders are actually responsible for their criminal actions. Further, scientific advances have suggested that criminals can be changed at the biochemical level. The public has become well aware of these advances largely due to pervasive media reporting on these issues and also as a result of the pharmaceutical industry’s incessant advertising of products designed to transform individuals by treating everything from depression to sexual dysfunction. This public familiarity with and expectation of scientific advances has set into motion the resurrection of the penological theory of rehabilitation that has lain dormant since the mid-1970s. The New Rehabilitation that is surfacing, however, differs in form from the rehabilitation of the earlier era by effecting change through biochemical interventions rather than through attempting to change an offender’s character. This raises novel concerns about this New Rehabilitation that must be examined in light of the science that has sparked its revival.
Murray on a Color-Conscious Professional Ethic for Prosecutors
Justin S. Murray has posted Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors on SSRN. Here is the abstract:
Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans.
In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties. Color consciousness is complex and multi-dimensional. It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime. It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal. Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law. Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more.
Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury.
Prosecutors are different. They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice. Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations. This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.
March 28, 2012
McLain on Hearsay and Confrontation Clause Analysis
Lynn McLain (University of Baltimore - School of Law) has posted Hearsay and Confrontation Clause Analysis and Significant Recent Developments in Maryland Regarding Character Evidence and Impeachment on SSRN. Here is the abstract:
This paper is being made available in conjunction with a presentation by the author to the Prince George‘s County Bar Association at Upper Marlboro, MD in late March of 2012. The paper includes a flow-chart for hearsay and confrontation clause analysis, and goes on to cover this in more detail and with case references, as well as doing the same in regard to character evidence and impeachment.
"Prof. Jennifer Laurin previews forum on prosecutorial oversight"
The post is at Grits for Breakfast, including a podcast interview.
Johnson, Blume, Eisenberg, Hans & Wells on The Delaware Death Penalty: An Empirical Study
Sheri Lynn Johnson , John H. Blume , Theodore Eisenberg , Valerie P. Hans and Martin T. Wells (Cornell Law School , Cornell Law School , Cornell University - School of Law , Cornell University - School of Law and Cornell University - School of Law) have posted The Delaware Death Penalty: An Empirical Study on SSRN. Here is the abstract:
This article is part of a symposium that honors David Baldus, a great scholar and great man, a quiet man with a strong passion for justice. We study the operation of Delaware’s death penalty in the modern era of capital punishment. Our conclusions consist of three main observations. First, Delaware’s reversal rate in capital cases, 44 %, while substantial, is also substantially less than that of other jurisdictions. This may not be surprising, given Delaware’s emphasis for much of the time period on judge sentencing and that jury verdicts offer more opportunities for reversal. Indeed, reversal rates during the jury sentencing period approximate the national average. Second, judge sentencing in Delaware results in more death sentences, a result consistent with greater harshness being the motivation behind the statutory change to judge sentencing. This effect, is more pronounced in Delaware than in other states. Third, we find a dramatic disparity of death sentencing rates by race, one substantially more pronounced than in other jurisdictions. Race matters in capital sentencing, as David Baldus told us more than a quarter of century ago, and we need to continue to pursue knowledge about where, when, and how it matters.
Barnett on The Harmful Side Effects of Drug Prohibition
Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Advocating drug prohibition makes some people feel good because they think they are “doing something” about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side effects so destructive that they argue against ever using legal institutions in this manner.
This article will not attempt to identify and “weigh” the costs of drug use against the costs of drug laws. Instead, it will focus exclusively on identifying the harmful side effects of drug law enforcement and showing why these effects are unavoidable. So one-sided a treatment is justified for two reasons. First, a cost-benefit or cost-cost analysis may simply be impossible. Second, discussions by persons who support illegalizing drugs usually emphasize only the harmful effects of drug use while largely ignoring the serious costs of such policies. By exclusively relating the other side of the story, this article is intended to inject some balance into the normal debate.
The harmful side-effects of drug laws have long been noted by a number of commentators, although among the general public the facts are not as well known as they should be. More importantly, even people who agree about the facts fail to grasp that it is the nature of the means — coercion — chosen to pursue the suppression of voluntary consumptive activity that makes these effects unavoidable. This vital and overlooked connection is the main subject of this article.
Opinion permitting federal sentence to commence after anticipated state sentence
Justice Scalia authored the opinion for the Court in Setser v. United States. Justice Breyer filed a dissenting opinion, in which Justices Kennedy and Ginsburg joined.
March 27, 2012
Gabel & Champion on Regulating the Science of Forensic Evidence
Jessica D. Gabel (pictured) and Ashley D. Champion (Georgia State University - College of Law and Georgia State University - College of Law) have posted Regulating the Science of Forensic Evidence: A Broken System Requires a New Federal Agency (Texas Law Review, See Also, Vol. 90, p. 19, 2011) on SSRN. Here is the abstract:
Professor Gabel and Ms. Champion agree with Mr. Goldstein's argument that serious validity and reliability problems plague forensic science, but, using the recent Troy Davis case in Georgia as an illustration, they argue for federal rather than state oversight. Gabel and Champion assert that many states lack the funding to construct an adequate system and that the fragmentation caused by different state systems would be a significant impediment to reform. They suggest a federal agency that, like the Environmental Protection Agency, would set minimum standards but allow states to experiment with enhanced regulation.
Lee on Treason, Espionage, and Transgression of Political Boundaries
Youngjae Lee (Fordham University School of Law) has posted Punishing Disloyalty?: Treason, Espionage, and Transgression of Political Boundaries (Law and Philosophy, Vol. 31, 2012) on SSRN. Here is the abstract:
This Article examines the idea of betraying or being disloyal to one’s own country as a matter of criminal law. First, the Article defines crimes of disloyalty as involving failures to prioritize one’s own country’s interests through participating in efforts to directly undermine core institutional resources the country requires to protect itself or otherwise advance its interests by force. Second, this Article canvasses various potential arguments for the existence of a duty not to be disloyal to one’s own country and argues that they fail. Finally, this Article argues that we should interpret the wrong of disloyalty crimes as involving not betrayal or infidelity, but transgression of political boundaries. That is, the relevant wrong here is rooted in the ideas of separation of powers and assignments of roles between citizens and the state, and we should thus conceive crimes of disloyalty as crimes of usurpation and evaluate the moral rights and wrongs of such crimes accordingly.
Price on Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming's Confrontation Clause Loopholes
Tara R. Price has posted 'Bull' Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes (Florida State University Law Review, Forthcoming) on SSRN. Here is the abstract:
Numerous juries have convicted defendants based on second-hand (or hearsay) expert witness testimony about laboratory reports performed and certified by other analysts who never appeared at trial.
On June 23, 2011, however, the Supreme Court put this practice to a stop in Bullcoming v. New Mexico. Or did it? In perhaps the closest majority in recent Confrontation Clause history, the Supreme Court affirmed that the protections of the Sixth Amendment extend to the admission of scientific evidence against a defendant, so long as the evidence consists of a written report admitted at trial.
Despite the sound foundations of the majority’s reasoning, however, the Court failed to create a clear rule in Bullcoming, giving states multiple loopholes to use to avoid implicating Confrontation Clause requirements. The Court may move to close one of these four loopholes relatively quickly: the Court granted certiorari in Williams v. Illinois five days after deciding Bullcoming, ensuring we have not heard the Court’s “last word” on the Confrontation Clause as it applies to the admission of scientific evidence against defendants.
This Note examines the modern history of the Confrontation Clause, beginning with the Court’s decision to overturn more than two decades of Confrontation Clause jurisprudence in Crawford v. Washington and continuing with Melendez-Diaz v. Massachusetts’ requirements for the admission of testimonial scientific evidence. Second, this Note examines the Court’s recent decision in Bullcoming, particularly Justice Sotomayor’s concurrence. This Note argues that Justice Sotomayor’s four limitations on Bullcoming’s holding provide lower courts with a series of loopholes they may continue to use to avoid Confrontation Clause requirements, at least until the Court directly addresses each of the loopholes. Finally, this Note urges the Court to close one of Justice Sotomayor’s Bullcoming loopholes by reversing the Illinois Supreme Court’s decision in People v. Williams. The Supreme Court should not tolerate prosecutors’ attempts to avoid Confrontation Clause requirements by introducing otherwise testimonial evidence through surrogate witnesses under the guise of Federal Rule of Evidence 703.
Murray on Veiled Muslim Witnesses and the Confrontation Clause
Brian M. Murray has posted Confronting Religion: Veiled Muslim Witnesses and the Confrontation Clause (Notre Dame Law Review, Vol. 85, p. 1727, 2010) on SSRN. Here is the abstract:
This note analyzes the competing constitutional interests that are at play when a veiled Muslim witness seeks an exemption under the Free Exercise Clause from general court procedures regarding witness attire. Is the liberty interest found in the Free Exercise Clause stronger than that found in the Confrontation Clause? In such a situation, which constitutional right takes precedence? The government is caught in the middle because it has an interest in upholding both constitutional rights. Protecting religious freedom seems just as important as ensuring that criminal defendants receive a fair trial, especially given the explicit guarantees of both the First and Sixth Amendments. This scenario is likely to occur in a post-9/11 world given the heightened awareness of the place of Muslims in American society and an increasing interest in the intersection of religious practice and the law. This is especially true considering the increase in the number of U.S. residents that identify as Muslims.
Part I acknowledges the various interests held by the witness, the defendant, and the State. Part II discusses current doctrine regarding the Confrontation Clause as well as religious exemptions analysis under the Free Exercise Clause. Part III demonstrates why the witness could plausibly argue for an exemption given current doctrine for both constitutional provisions. Part IV recognizes the potential problems with granting such an exemption. Finally, this note proposes two possible solutions to the constitutional conflict and analyzes each solution’s shortcomings.
March 26, 2012
Henderson on Expectations of Privacy in Social Media
This article, which largely tracks my remarks at Mississippi College's Social Media Symposium, examines expectations of privacy in social media such as weblogs (blogs), Facebook pages, and Twitter tweets. Social media is diverse and ever-diversifying, and while I address some of that complexity, I focus on the core functionality, which provides the groundwork for further conversation as the technology and related social norms develop. As one would expect, just as with our offline communications and other online communications, in some we have an expectation of privacy that is recognized by current law, in some we have an expectation of privacy that should be recognized by current law, and in some we have no legitimate expectation of privacy. The article begins with a short (and personal) history of social media and then discusses the theory of information privacy, after which follows an explanation of, and then application of, the governing constitutional law. This is an area in which statutes should, and to some extent do, expand upon the constitutional floor, and the article ends with a consideration of those statutes and needs for improvements therein, including via statutory frameworks like that recently adopted by the American Bar Association.
Krause on Kickbacks, Honest Services, and Health Care Fraud after Skilling
Joan H. Krause (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Kickbacks, Honest Services, and Health Care Fraud after Skilling (Annals of Health Law, Vol. 21, No. 1, 2012) on SSRN. Here is the abstract:
This essay considers how the 2010 Supreme Court decision in Skilling v. United States, which limited the situations in which mail and wire fraud cases may be premised on violations of the “intangible right to honest services,” has the potential to alter the future of health care fraud litigation. While Skilling is widely perceived to have closed the door to several types of common mail and wire fraud prosecutions, this may not turn out to be the case in health care. In health care, the renewed focus on kickbacks as evidence of an honest services breach instead may dovetail nicely with both the Obama Administration’s emphasis on criminal health care fraud enforcement and the jurisprudence of the Medicare & Medicaid Anti-Kickback Statute. This kind of leverage may prove very difficult for prosecutors to resist, and most certainly will require changes in the way the health law bar approaches common Anti-Kickback concerns.