Saturday, June 23, 2012
From the New York Times. In part:
Harper said there was little debate and even less doubt in the jury room about Sandusky’s guilt. As emotional and wrenching as the accounts were from the eight victims who testified, Harper said the grimmest and most significant testimony came from Mike McQueary, then a graduate assistant, who said he interrupted a sexual assault by his former coach against a young boy in the showers at the university’s football center.
Friday, June 22, 2012
Caroline Anne Forell (University of Oregon - School of Law) has posted Convicts, Thieves, Domestics, and Wives in Colonial Australia: The Rebellious Lives of Ellen Murphy and Jane New on SSRN. Here is the abstract:
This Article examines the lives of two female convicts who rebelled against the law and the Australian penal system in the early nineteenth century. It follows Ellen Murphy and Jane New from their first arrests through their experiences with and exits from the penal system. As thieves, convicts, domestics, and wives, Ellen and Jane interacted repeatedly with the law. Both the notorious Jane (who was the subject of a habeas corpus action in In re Jane New), and the more representative Ellen, began thieving as young teenagers in the teeming cities of England. The law arrested, tried, and convicted them. Next it transported them to Van Diemen’s Land (now, Tasmania). It then unsuccessfully attempted to manage their lives.
Jonathan Rapping (Atlanta's John Marshall Law School) has posted Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect (Washburn Law Journal, Vol. 51, 2012) on SSRN. Here is the abstract:
Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice. With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes.
Thursday, June 21, 2012
Tamar Birckhead at UNC School of Law has created a juvenile justice blog. She writes, "The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States."
Wednesday, June 20, 2012
Rebecca E. Hollander-Blumoff (Washington University in Saint Louis - School of Law) has posted Crime, Punishment, and the Psychology of Self-Control (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN. Here is the abstract:
Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.
Russell D. Covey (Georgia State University College of Law) has posted Death in Prison: The Right Death Penalty Compromise (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:
The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide. In this paper, I argue for a compromise position that promises to better serve penal purposes and that will save states money at the same time: abandon the current dysfunctional death penalty in favor of a new ultimate sentence: death-in-prison.
Tuesday, June 19, 2012
The American Civil Liberties Union [advocacy website] on Tuesday released areport [text, PDF; press release] alleging widespread abuses by the Puerto Rico Police Department (PRPD) [official website, in Spanish]. The report documents numerous instances excessive force, sometimes deadly, to suppress speech, subdue protesters, and target ethnic and racial minorities. It also alleges a culture of impunity among the police and a failure to police crimes of abuse and sexual assault.
Kent Scheidegger has this post at Crime and Consequences:
Parts II and III of Justice Alito's plurality opinion are actively opposed by a majority of the Court, so relying on them to get evidence in is risky, to put it mildly. Let's focus on Part IV. For the proposition that the report in this case is not "testimonial," the plurality says the report was not testimonial because it was not focused on a particular suspect, while Justice Thomas's concurrence says it is not testimonial because it lacked the formality associated with such things as depositions, affidavits, or certificates of fact.
Which of these is the narrower grounds? I have no idea.
Eugene Volokh has this post at The Volokh Conspiracy. In part:
That was the order in today’s N.G. v. J.P. (N.J. Super. Ct. App. Div. June 18, 2012); the appellate court upheld it, though it sent the case back down to trial court to carve out exceptions for “church attendance and doctor’s visits.” The defendant seemed to be rather disturbed, and to have done disturbing things; and he has shown an unwillingness to comply with earlier, narrower orders. Still, it seems to me that this sort of injunction is going rather further than restraining orders ought to go.
A Lavaca County, Texas, grand jury did not return an indictment against a father who killed a man he found allegedly sexually abusing his daughter, officials said Tuesday at a press conference in Hallettsville, Texas.
. . .
The father stopped the alleged abuser, and then pounded him repeatedly in the head, killing him, authorities said.
Cara H. Drinan (Catholic University of America) has posted Clemency in a Time of Crisis (28 Georgia State L. Rev. 1123 (2012), Georgia State University Law Review, Forthcoming) on SSRN. Here is the abstract:
At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.
Monday, June 18, 2012
Famed baseball pitcher Roger Clemens was found not guilty Monday of lying to Congress during an investigation of steroid use among major league players.
The case against Clemens involved one count of obstruction of Congress, three counts of making false statements and two counts of perjury. He was found not guilty on all counts.
In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was "sick to death of things like the presumption of innocence. After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ("MADD") issued a press release classifying the "murders as 'insignificant' compared to those killed in alcohol-related traffic accidents.
What do these two announcements have in common? This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system.
The case is Williams v. Illinois. Justice Alito wrote for a four-Justice plurality. Justice Breyer joined that opinion and also wrote a concurring opinion. Justice Thomas concurred in the result. Justice Kagan filed a dissenting opinion, joined by Justices Scalia, Ginsburg, and Sotomayor.
Sunday, June 17, 2012
|1||907||From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud
Peter P. Swire,
Ohio State University (OSU) - Michael E. Moritz College of Law,
Date posted to database: April 12, 2012 [new to top ten]
|2||628||The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: March 29, 2012 [1st last week]
|3||542||The Harmful Side Effects of Drug Prohibition
Randy E. Barnett,
Georgetown University Law Center,
Date posted to database: March 13, 2012 [2nd last week]
|4||518||Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right
Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,
University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,
Date posted to database: April 30, 2012 [new to top ten]
Joshua D. Blank, Nancy C. Staudt,
New York University School of Law, USC Law School,
Date posted to database: April 5, 2012 [3rd last week]
|6||364||The Mosaic Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: April 3, 2012 [4th last week]
|7||194||American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz
Vanderbilt University - Law School,
Date posted to database: March 28, 2012 [5th last week]
|8||139||The 2009 NAS Forensic Science Report: A Literature Review
Paul C. Giannelli,
Case Western Reserve University - School of Law,
Date posted to database: April 12, 2012
|9||155||Predictive Policing: The Future of Reasonable Suspicion
Andrew Guthrie Ferguson,
UDC David A. Clarke School of Law,
Date posted to database: May 2, 2012 [new to top ten]
|10||145||Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn'
University of Baltimore - School of Law,
Date posted to database: March 29, 2012 [9th last week]