April 14, 2012
Ferzan on Provocateurs
When a provocateur intentionally provokes a deadly affray, the law of self-defense holds that the provocateur may not use deadly force to defend himself. Why is this so?
Provocateurs are often seen as just one example of the problem of actio libera in causa, the causing of the conditions of one’s defense. This article rejects theories that maintain a one-size-fits-all approach to actio libera in causa, and argues that provocateurs need specific rules about why they forfeit their defensive rights. This article further claims that provocateurs need to be distinguished from their cousins, initial aggressors, as initial aggressors engage in conduct that grounds the permissibility of the defender’s behavior whereas the provocateur’s behavior does not justify the respondent’s use of force against him. In addition, this article rejects that the basis of this forfeiture can be found in the doctrines surrounding when and why mitigation for provocation is appropriate for the respondent.
Provocateurs forfeit their defensive rights for the very simple reason that they start the fight. This forfeiture occurs when they behave culpably, meaning that they subjectively appreciate that they are running the risk of causing force to be used against them and they engage in this behavior without justification or excuse. The question of when the provocateur’s behavior is justified is incredibly complex. It requires analysis of when it is that one is justified in increasing the risk of another’s wrongdoing. Any analysis of this justification must take seriously the liberty rights of the potential provocateur to engage in otherwise permissible behavior. Moreover, the determination of whether the provocateur is justified will turn on whether the later acts that he puts into motion are themselves justified. Thus, when Charles Bronson in the movie Death Wish presents himself as a victim so that muggers will attack him, the justifiability of his conduct in appearing as a vulnerable victim will turn on whether he is entitled to engage in this conduct, intending to later defend himself. This article argues that in Death Wish-type cases, the reason that the provocateur is not justified is because he becomes a vigilante, thereby usurping the role of the state and undermining rule of law values.
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog, which also links to papers:
Tuesday, April 17
- Dorsey v. U.S.: Did the Seventh Circuit err when, in conflict with the First and Third Circuits, it held that the Fair Sentencing Act of 2010 does not apply to all defendants sentenced after its enactment?
- Hill v. U.S.: Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.
April 13, 2012
Yockey on FCPA Settlements and the Culture of Compliance
Joseph W. Yockey (University of Iowa College of Law) has posted FCPA Settlement, Internal Strife, and the 'Culture of Compliance' (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:
Most enforcement actions brought against firms under the U.S. Foreign Corrupt Practices Act (FCPA) are resolved via a deferred prosecution agreement (DPA) or non-prosecution agreement (NPA). But before federal regulators will consider negotiating over these types of settlement vehicles, they typically weigh a firm's willingness to cooperate with the underlying investigation and whether it promoted a "culture of compliance." As this paper shows, these two factors do not always intersect in ways that serve the best interests of firms at risk for FCPA scrutiny. Cooperation often means asking company counsel to identify individual agents responsible for the alleged wrongdoing. If these agents are then disciplined or prosecuted in separate actions, the resulting dynamic can lead to distrust between agents and counsel, a breakdown in internal communications, feelings of unfair treatment, and inappropriate levels of risk aversion - all of which are undesirable from a firm's perspective and can hinder efforts to maintain a law-abiding culture. These issues are not all new, but they take on particular significance in the FCPA context due to the often expansive way regulators interpret the FCPA, the complexities associated with the transnational nature of the underlying conduct, and the frequently blurry lines between permissible competitive activity and impermissible bribery. Though many firms may ultimately decide that the potentially negative effects of cooperation are worth the upside of settlement, it is essential that they and their counsel remain cognizant of these issues when designing internal compliance programs. Regulators, too, need to be aware of how their enforcement policies could hinder efforts at corporate self-policing.
Melish & Konefsky on Justice Jackson and Nuremberg
Tara J. Melish and Alfred S. Konefsky (State University of New York at Buffalo - Law School Faculty and SUNY Buffalo Law School) have posted Justice Jackson's 1946 Nuremberg Reflections at Buffalo: An Introduction (Buffalo Law Review, Vol. 60, p. 255, April 2012) on SSRN. Here is the abstract:
This Essay introduces the 2011 James McCormick Mitchell Lecture, “From Nuremberg to Buffalo: Justice Jackson’s Enduring Lessons of Morality and Law in a World at War,” a commemoration of Jackson’s 1946 centennial convocation speech at the University of Buffalo. It discusses Jackson’s speech, breaks down its thematic components, and situates the distinguished Mitchell Lecturers’ responses to it in context. Unlike Justice Jackson’s commanding and historic opening and closing statements as U.S. chief prosecutor at Nuremberg, Jackson’s 1946 speech, delivered just days after his return from Germany where he heard the Nuremberg Tribunal deliver its final judgment and verdicts, has largely been lost to historical memory. The Mitchell Lecture symposium — held on October 4, 2011, 65 years to the day from Jackson’s speech — was an attempt to restore that memory, providing an opportunity to assess Nuremberg through the eyes of Justice Jackson immediately after the event, while the images and experiences were still fresh in his consciousness. Long lost to history, the speech and its lessons deserve renewed attention today.
Kubrin et al. on Proactive Policing and Robbery Rates
Charis E. Kubrin , Steven F. Messner , glenn deane , Kelly McGeever and Thomas D. Stucky (University of California, Irvine , State University of New York (SUNY) , affiliation not provided to SSRN , State University of New York (SUNY) and Indiana University Purdue University Indianapolis (IUPUI)) have posted Proactive Policing and Robbery Rates Across U.S. Cities (Criminology, Vol. 48, pp. 57-98, 2010) on SSRN. Here is the abstract:
In recent years, criminologists, as well as journalists, have devoted considerable attention to the potential deterrent effect of what is sometimes referred to as “proactive” policing. This style of policing entails the vigorous enforcement of laws against relatively minor or frequent offenses in order to prevent more serious crime. The current study examines the effect of proactive policing on robbery rates for a sample of large U.S. cities using an innovative measure developed by Sampson and Cohen (1988). We replicate their cross-sectional analyses using data from 2000-2003, a period during which proactive policing is likely to have become more common than the period of the original study — the early 1980s. We also extend their cross-sectional analyses by estimating a more comprehensive regression model that incorporates additional predictors thought to affect robbery. Finally, we estimate dynamic models to address the vexing issue of endogeneity. The results suggest that the cross-sectional relationship between proactive policing and robbery rates is quite robust. Further support for a relationship between proactive policing and robbery is found in dynamic models that account for endogeneity.
Morrison on Dangerousness and Conspiracy
Steven R. Morrison (University of North Dakota School of Law) has posted Requiring Dangerousness: An Idea Whose Time Has Come (Again) on SSRN. Here is the abstract:
It is overwhelmingly assumed that criminal conspiracies pose a “distinct evil,” which justifies criminalizing them and providing prosecution-friendly rules of evidence in their proof. Professor Neal Kumar Katyal’s excellent defense of conspiracy law rests on this assumption, but Professor Abraham S. Goldstein’s seminal critique notes that it has never been empirically shown to be true.
This Article rejects the distinct evil assumption by showing how Katyal’s and Goldstein’s respective frames lead to their divergent conclusions. It argues that to satisfy both commentators’ legitimate concerns, conspiracies must be shown to be dangerous before criminal liability can attach.
This requirement was included in the first Model Penal Code in 1962 and appears in statutes in Arkansas, Colorado, New Jersey, and Pennsylvania. Despite this initial legislative interest, attorneys in these states have largely never heard of these statutes. These laws do, however, hold out the promise of addressing conspiracy law’s legitimate concerns and upholding venerable criminal law norms.
This Article challenges the distinct evil assumption as a product of the rise of labor unions and corporations in the middle to late 19th century. It then discusses how the Model Penal Code and state legislatures have approached dangerousness. It then turns to why attorneys in these states may not be aware of these legislative moves, and also how these statutes may be useful. Finally, it prescribes four moves we should take to reform conspiracy law immediately and in the longer term.
April 12, 2012
Young on instructing the jury when defendant is the sole eyewitness
Stewart M. Young (University of Wyoming - College of Law) has posted Getting Away with Murder? Abolition of the Eagan Rule in Wyoming Domestic Violence/Murder Cases
(Wyoming Law Review, Vol. 12, No. 1, 2012) on SSRN. Here is the abstract:
This article argues that specific Wyoming jury instructions arising from the Wyoming Supreme Court’s decision in Eagan v. State are inappropriate because they force the jury to accept a defendant’s testimony. Specifically, defense counsel often request such instructions in murder cases (and, more importantly, domestic violence murder cases) when the defendant is the sole witness testifying about the events of the alleged murder. The Eagan rule requires the jury to “accept as true” the events testified to by the defendant if the defendant is the only witness to the crime and if the testimony is not impeached or found improbable.
Such an instruction, essentially removing a key determination by the jury, is surprising. This article examines the genesis of the instruction and the historical limitations the Wyoming Supreme Court placed on the instruction, while still keeping it on the books to this day. Further this article contends that, considering that other states do not use this type of instruction and given that the pattern instructions are much more useful, the Eagan rule should be abolished in Wyoming. Finally, this article argues the instruction is inconsistent with U.S. Supreme Court jurisprudence, as well as jurisprudence of the states upon which the Wyoming Supreme Court relied when it installed the Eagan rule in the first place. Following this article is an appendix discussing each case in Wyoming that has dealt with the Eagan rule.
Simmons on Hate Crimes and Cooperative Federalism
Kami Chavis Simmons (Wake Forest University Law School) has posted Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Hate crimes continue to persist in the United States and undermine the traditions and values to which our country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the 'HCPA'). The HCPA significantly expands the federal government’s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many hate crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim’s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward 'overfederalization' of the criminal law.This article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government’s authority to prosecute such crimes. Instead, this article refocuses the debate to address new issues regarding the federal government’s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this article proposes a model of prosecution that ensures the federal government’s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, among other things, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States.
Green on Theft Law in the Information Age
Stuart P. Green (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction) (Stuart P. Green, THIRTEEN WAYS TO STEAL A BICYCLE: THEFT LAW IN THE INFORMATION AGE, Harvard University Press, 2012) on SSRN. Here is the abstract:
Theft claims more victims and causes greater economic injury than any other criminal offense. Yet theft law is enigmatic, and fundamental questions about what should count as stealing remain unresolved — especially misappropriations of intellectual property, information, ideas, identities, and virtual property.
In Thirteen Ways to Steal a Bicycle, Stuart Green assesses our current legal framework at a time when our economy increasingly commodifies intangibles and when the means of committing theft and fraud grow ever more sophisticated. Was it theft for the editor of a technology blog to buy a prototype iPhone he allegedly knew had been lost by an Apple engineer in a Silicon Valley bar? Was it theft for doctors to use a patient’s tissue without permission in order to harvest a valuable cell line? For an Internet activist to publish tens of thousands of State Department documents on his website?
In this full-scale critique, Green reveals that the last major reforms in Anglophone theft law, which took place almost fifty years ago, flattened moral distinctions, so that the same punishments are now assigned to vastly different offenses. Unreflective of community attitudes toward theft, which favor gradations in blameworthiness according to what is stolen and under what circumstances, and uninfluenced by advancements in criminal law theory, theft law cries out for another reformation — and soon.
Koehler on the Acceptable Level of DOJ FCPA Losses
Mike Koehler (Butler University College of Business) has posted What Percentage of DOJ FCPA Losses is Acceptable? (The Criminal Law Reporter, Vol. 90, No. 823, March 21, 2012) on SSRN. Here is the abstract:
Bringing criminal charges and marshalling the full resources of law enforcement agencies against an individual is an awesome power that our government possess. Because that power alters the lives of real people and their families, sidetracks real careers, empties real bank accounts in mounting a defense, and causes often irreversible damage to real reputations, it ought to be exercised with real discipline and prudence.
While it is unrealistic (and probably not desirable from a policy perspective) to expect the Justice Department to win 100 percent of its Foreign Corrupt Practices Act prosecutions against individuals when put to its burden of proof, given the above referenced dynamics, it is realistic (and desirable from a policy perspective) to expect the department to win a very high percentage of its FCPA prosecution against individuals. However, several recent DOJ FCPA prosecutions against individuals have fallen short of this desirable objective, often in spectacular ways. This raises the question - what percentage of DOJ FCPA losses is acceptable?
To borrow from Justice Potter Stewart's classic reasoning in Jacobellis v. Ohio, I don't know what level of DOJ FCPA losses is acceptable and the answer may be indefinable. But I know it when I see it, and the number and magnitude of DOJ's recent FCPA losses is unacceptable.
Information charging George Zimmerman with the murder of Trayvon Martin
The document is here. The Florida Stand Your Ground Law is here. Section 776.013(3) eliminates any duty to retreat before using deadly force even in public space. But it does not eliminate the requirement of reasonable belief that deadly force is necessary to prevent death, great bodily harm, or the commission of a forcible felony.
April 11, 2012
Recent Guest Posts at Prawfsblawg (Kolber)
I recently guest blogged about a variety of subjects at Prawfsblawg. In case you're interested, here are links to the posts most relevant to criminal law:
April 10, 2012
Goold & Hadfield on Cultural Diversity and the Police in the US
Benjamin J. Goold and Karyn Hadfield (University of British Columbia - Faculty of Law and affiliation not provided to SSRN) have posted Cultural Diversity and the Police in the United States: Understanding Problems and Finding Solutions on SSRN. Here is the abstract:
For over 150 years, there has been a history of tension and conflict between the police and minority communities in the United States. In principle, the police exist to enforce the law and protect all citizens regardless of race or ethnic background, yet police departments across the country have been repeatedly accused of targeting and harassing racial minorities, and of failing to root out racist attitudes and practices within their ranks. Recent, high profile cases of beatings by police have only served to heighten concerns over the mistreatment of minorities by the police, resulting in widespread calls for major legal and institutional reforms.
In the absence of a coordinated national strategy, state and local police departments have largely been left to develop their own solutions to the problems of policing minority communities and improving cultural sensitivity amongst their officers, with mixed results. Almost forty years after the stinging criticisms of the Kerner Commission Report on Policing, there is still a pressing need for more to be done.
In working to develop the Cultural Diversity and the Police (CDAP) model as well as training and technical assistance materials for law enforcement agencies, John Jay College and the Bureau of Justice Administration (BJA) have drawn extensively on the work done by both the police and independent researchers in the field of police-minority relations. We have sought to ensure that our recommendations are informed by a broad range of perspectives on the issue of cultural diversity and the police. This paper provides an overview of the problems facing the police in their efforts to improve relations with minority communities in the United States, as well as a survey of previous research and existing literature on cultural diversity programs.
Katz on Driving Without the Fourth Amendment
Lewis R. Katz (Case Western Reserve University - School of Law) has posted 'Lonesome Road': Driving Without the Fourth Amendment (Seattle University Law Review, Forthcoming) on SSRN. Here is the abstract:
American states and municipalities have so many minor traffic regulations that every time a driver gets behind the wheel of a car he or she is likely to commit multiple violations. The violation of any traffic regulation empowers police officers to stop the vehicle, ticket and, in some states, arrest the motorist. Police are physically unable to stop and ticket, let alone arrest, every motorist committing a traffic violation. Instead, police are vested with unlimited discretion when choosing which motorists to stop, warn, ticket, or arrest. So long as there is probable cause for a traffic violation, courts will not entertain a challenge to the officer’s discretion to stop a specific motorist, even if the decision to stop is based on race. The same discretion applies to expanding a traffic stop into an inquiry about other more serious offenses. Consequently, the commission of a minor traffic or equipment offense exposes the motorist to questioning about serious offenses, especially drug offenses. These inquiries often lead to the officer seeking permission to search the vehicle. The Supreme Court’s failure to impose meaningful limitations upon traffic stops has ensured that police have unlimited discretion. This article suggests that the Supreme Court reconsider its uninterrupted line of cases over the past fifteen years that have stripped the Fourth Amendment of its meaningfulness on the roads and highways of America. The article proposes: (1) that police be limited in the stops that they can make, requiring that they serve a highway safety purpose; (2) that the commission of a minor traffic offense not be sufficient justification for a custodial arrest without a showing of additional need; (3) that police not be allowed to escalate every traffic stop into an inquiry about more serious offenses without reasonable suspicion; and (4) that police demonstrate a reason for requesting to search a minor traffic offender’s vehicle. Without such reform American motorists will continue to be subject to the whims of police officers every time they step foot in their cars.
April 9, 2012
Kang et al. on Implicit Bias in the Courtroom
Jerry Kang , Mark W. Bennett , Devon W. Carbado , Pamela Casey , Nilanjana Dasgupta , David L. Faigman , Rachel D. Godsil , Anthony G. Greenwald , Justin D. Levinson and Jennifer Mnookin (University of California, Los Angeles (UCLA) - School of Law , affiliation not provided to SSRN , University of California, Los Angeles (UCLA) - School of Law , affiliation not provided to SSRN , University of Massachusetts at Amherst - Psychology , UC Hastings College of the Law , Seton Hall University - School of Law , University of Washington - Graduate Department of Psychology , University of Hawaii at Manoa - William S. Richardson School of Law and University of California, Los Angeles (UCLA) - School of Law) have posted Implicit Bias in the Courtroom (UCLA Law Review, Vol. 59, No. 5, 2012) on SSRN. Here is the abstract:
Given the substantial and growing scientific literature on implicit bias, the time has now come to confront a critical question: What, if anything, should we do about implicit bias in the courtroom? The author team comprises legal academics, scientists, researchers, and even a sitting federal judge who seek to answer this question in accordance with “behavioral realism.” The Article first provides a succinct scientific introduction to implicit bias, with some important theoretical clarifications that distinguish between explicit, implicit, and structural forms of bias. Next, the article applies the science to two trajectories of bias relevant to the courtroom. One story follows a criminal defendant path; the other story follows a civil employment discrimination path. This application involves not only a focused scientific review but also a step-by-step examination of how criminal and civil trials proceed. Finally, the Article examines various concrete intervention strategies to counter implicit biases for key players in the justice system, such as the judge and jury.
Kolber on Memory-Altering Drugs
Several studies suggest that memories can be pharmaceutically dampened. For example, researchers recently showed that a drug called ZIP causes cocaine-addicted rats to forget the locations where they had regularly been receiving cocaine. Other drugs, already tested in humans, may ease the emotional pain associated with memories of traumatic events.
Many are alarmed by the prospect of pharmaceutical memory manipulation. In this brief comment, I argue that these fears are overblown. Thoughtful regulation may someday be appropriate, but excessive hand-wringing now over the ethics of tampering with memory could stall research into promising methods of preventing and treating post-traumatic stress.