Saturday, September 15, 2012
Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted Execution by Accident: Evidentiary and Constitutional Problems with the 'Childhood Onset' Requirement in Atkins Claims on SSRN. Here is the abstract:
The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the defendant also suffers from mental illness, incorrectly supposing that such illness can be singled out as the sole cause of intellectual deficits. The article suggests several rules regarding burden-shifting and admissibility to address these problems.
Friday, September 14, 2012
The US Department of Justice [official website] on Friday filed an appeal of this week's order by the US District Court for the Southern District of New York [official website] thatpermanently enjoined [opinion, PDF; JURIST report] a law allowing US authorities to detain indefinitely anyone suspected of having aided known terrorist organizations. Section 1021(b)(2) of the National Defense Authorization Act (NDAA) [text, PDF] affirms the authority of the president under the Authorization for Use of Military Force (AUMF) to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."
Lawrence Kornreich and Alexander I. Platt have posted The Temptation of Martinez v. Ryan: Legal Ethics for the Habeas Bar (Criminal Law Brief, Vol. 8, 2012) on SSRN. Here is the abstract:
After the Supreme Court’s decision in Martinez v. Ryan, some defendants whose first-tier state habeas counsel failed to adequately challenge the ineffectiveness of trial counsel will now be able to raise the ineffectiveness claim in a subsequent federal habeas proceeding. By introducing a new category of claims in federal habeas, however, the Court has also introduced a new and difficult choice for certain convicted defendants as their cases move along the procedural path from state to federal habeas review. Because lawyers must adhere to ethical rules that prohibit conflicts of interest in their representation, each client must choose whether (a) to retain his state habeas counsel through subsequent post-conviction appeals and forego a possible Martinez claim; or (b) to pursue a federal habeas Martinez claim with new counsel. To a habeas bar already burdened by resource scarcity and exacting procedural and timing requirements Martinez adds another potential source of friction between effective representation and professional ethical responsibilities. Because of the additional costs entailed in complying with ethical standards, individual lawyers and those who set the rules that govern them may be tempted to loosen these rules in the name of access to justice. This would be a mistake. To preserve the integrity and autonomy of the legal profession, this temptation must be resisted. This Essay aims to alert the habeas bar to the ethical responsibilities implicated by the Martinez decision, and to provide guidance for what counsel must do in order to comply with his or her professional ethical obligations.
Daniel D. Langleben and Jane Campbell Moriarty (pictured) (University of Pennsylvania - School of Medicine and Duquesne University - School of Law) have posted Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide (Psychology, Public Policy, and Law, September 2012) on SSRN. Here is the abstract:
Progress in the
use of functional magnetic resonance imaging (fMRI) of the brain to
differentiate lying from truth-telling has created an expectation of a
breakthrough in the search for objective methods of lie detection. In the last
few years, litigants have attempted to introduce fMRI-based lie detection
evidence in courts. Both the science and its possible use as courtroom evidence
have spawned much scholarly discussion. This article contributes to the
interdisciplinary debate by identifying the missing pieces of the scientific
puzzle that need to be completed if fMRI-based lie detection is to meet the
standards of either legal reliability or general acceptance. The article
provides a balanced analysis of the current science and the cases in which
litigants have sought to introduce fMRI-based lie detection. Identifying the key
limitations of the science as expert evidence, the article explores the problems
that arise from using scientific evidence before it is proven valid and
reliable. We conclude that the Daubert’s “known error rate” is the key concept
linking the legal and scientific standards. We suggest that properly controlled
clinical trials are the most convincing means to confirm or disprove the
relevance of this promising laboratory research. Given the controversial nature
and potential societal impact of this technology, collaboration of several
government agencies may be required to sponsor impartial and comprehensive
clinical trials that will guide the development of forensic fMRI technology.
Sharon G. Finegan (South Texas College of Law) has posted Watching the Watchers: The Growing Privatization of Criminal Law and the Need for Limits on Neighborhood Watch Associations on SSRN. Here is he abstract:
On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida when he spotted Trayvon Martin, a 17-year-old African-American high school student, walking through the neighborhood. Zimmerman called 911 and indicated that he was following "a real suspicious guy." Zimmerman then disregarded the police dispatcher's request that he discontinue following Martin and approached the teenager. In the resulting confrontation, Zimmerman used his legally-owned semi-automatic handgun to shoot and kill Martin. Martin had been returning from a local convenience store to his father's fiancée's house, where he was spending the night. He was unarmed.
Thursday, September 13, 2012
Laura Donohue (Georgetown University Law Center) has posted Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition — much less the pairing of facial recognition with video surveillance — in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy.
Colin Miller (University of South Carolina School of Law) has posted Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause on SSRN. Here is the abstract:
In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”
Sherod Thaxton (University of Chicago Law School) has posted Leveraging Death (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
Empirical research addressing the use of the death penalty as leverage in plea negotiations is virtually nonexistent. This is particularly surprising given the fact that both plea bargaining and capital punishment have been the focus of much scholarly attention. The U.S. Supreme Court has explicitly approved guilty pleas induced out of fear of the death penalty, yet the impact of the threat of the death penalty on the likelihood of parties reaching a plea agreement is far from obvious. On the one hand, prosecutors, defense attorneys, and defendants may have especially strong incentives to plea-bargain in death-eligible cases. On the other hand, many of these advantages may be offset by forces pushing against compromise on both sides of the aisle precisely because the death penalty is an option, so the role the death penalty is playing in plea negotiations in the aggregate remains ambiguous.
Wednesday, September 12, 2012
Adam J. Kolber (Brooklyn Law School) has posted Criminalizing Cognitive Enhancement at the Blackjack Table (Memory and Law, p. 307, L. Nadel & W. Sinnott-Armstrong, eds., Oxford University Press, 2012) on SSRN. Here is the abstract:
Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though casinos try to eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. By contrast, if players use a “device” to help them count cards, like a calculator or smartphone, they have committed a serious crime.
Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted Death is Different No Longer: Abolishing the Insanity Defense is Cruel and Unusual Under Graham v. Florida (DePaul Law Review, Vol. 61, pp. 1-56, 2011) on SSRN. Here is the abstract:
The U.S. Supreme Court's obliteration of the "death is different" doctrine in Graham v. Florida (2010) has opened the door for Eighth Amendment-based categorical protections from punishments beyond death. Among the first through that door should be this nation's severely mentally ill -- beginning with categorical protection from any criminal punishment for those who did not understand the nature of their actions, did not understand the wrongfulness of their actions, or could not control their actions at the time of their alleged crimes. Such constitutional protection of insanity defenses is logically required by Graham and would be an important first step in stemming the insanity of some American insanity laws.
Tuesday, September 11, 2012
Valena Elizabeth Beety (West Virginia University - College of Law) has posted Mississippi Initiative 26: Personhood and the Criminalization of Intentional and Unintentional Acts by Pregnant Women (Mississippi Law Journal, Vol. 81, p. 55, 2011) on SSRN. Here is the abstract:
The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life — and rights of citizenship — as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns.
Douglas Colbert (University of Maryland Francis King Carey School of Law) has posted When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings (The Champion, June 2012, p. 10-14) on SSRN. Here is the abstract:
suggests that the absence of representation at the beginning of a State criminal
prosecution must come to a screeching halt. The criminal defense bar should take
a leadership role and dedicate Gideon's anniversary to making certain that an
accused's right to the effective assistance of counsel begins at the initial
bail hearing. Indeed, guaranteeing vigorous representation should be the defense
bar's number one priority.
Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Habeas Verite (Tulsa Law Review, Vol. 47, No. 1, 2011, p. 13) on SSRN. Here is the abstract:
books from varied academic disciplines demonstrate that habeas is as much about
power as it is about liberty - the power of some judges over other magistrates,
the power of the judiciary over coordinating governing institutions, and the
power of dominant political coalitions over the opposition.
Monday, September 10, 2012
The FBI's $1 billion Next Generation Identification (NGI) programme is proceeding on schedule and should be fully launched by 2014. It's already in use in several states as test pilots, including Michigan, Hawaii, Maryland, and possibly Oregon.
From AP, as reported in The New York Times:
TRENTON — Federal agents arrested the mayor of Trenton on Monday as part of a corruption investigation into bribery allegations related to a parking garage project that was concocted as part of an F.B.I. sting operation.
. . .
The sting was similar to the “Bid Rig” sting that resulted in criminal charges against 46 people — many of them local officials — in 2009. Then, bribes were attached to fictitious development projects. Prosecutors have had mixed success in winning convictions.
Montana's Lewis and Clark County District Court [official website] ruled[opinion, PDF] Thursday that the state's lethal injection method [technical manual, PDF] violates the provision of the Montana constitution [text, PDF] that forbids cruel and unusual punishment. The lawsuit was filed by the American Civil Liberties Union of Montana [advocacy website] on behalf of two death row inmates. Judge Jeffrey Sherlock held that Montana's execution procedure, which involves injections of three different drugs, is cruel and unusual under US Supreme Court [official website] precedent.
Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted Consequentialism, Responsibility and Retribution: Comments on Victor Tadros’ Theory of Punishment (Jerusalem Review of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
This paper considers some of the arguments in Victor Tadros’ book on the moral justification of criminal punishment. While the final end of the book is a theory of punishment, it discusses along the way also general topics in moral and political philosophy and considers the analogy between punishment and defensive force. Therefore, the book is of interest not only to people who are interested in the justification of punishment, but also to those who are interested in ethical theory more generally. In what follows, I first describe, very briefly, the main arguments in the book and then consider a few aspects of some of these arguments.
Francine T. Sherman (Boston College - Law School) has posted Justice for Girls: Are We Making Progress? (UCLA Law Review, Vol. 59, 2012) on SSRN. Here is the abstract:
Over the course of more than a century, structural gender bias has been a remarkably durable feature of United States juvenile justice systems. Consequently, as these systems have developed over the years, reducing gender bias and addressing girls in helpful, rather than harmful, ways has required specific and concerted efforts on the part of federal and state governments. Currently, there are a number of positive trends in juvenile justice, including policy and practice that is increasingly developmentally centered and data-driven. The question for those focused on girls in the juvenile justice system is how to ensure that girls are the beneficiaries of these positive trends.
Margo Schlanger (University of Michigan Law School) has posted Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 48, No. 1, 2013) on SSRN. Here is the abstract:
Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993. At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms.
Sunday, September 9, 2012
|1||428||Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps
Caleb E. Mason,
Southwestern Law School,
Date posted to database: August 13, 2012 [2nd last week]
|2||401||Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration
Heather Cucolo, Michael L. Perlin,
New York Law School, New York Law School,
Date posted to database: July 26, 2012 [1st last week]
|3||322||Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason
University of Windsor - Faculty of Law,
Date posted to database: July 13, 2012 [3rd last week]
|4||320||The Unexonerated: Factually Innocent Defendants Who Plead Guilty
John H. Blume, Rebecca K. Helm,
Cornell Law School, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: July 11, 2012
|5||165||Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury
Mona Lynch, Craig Haney,
University of California, Irvine - Department of Criminology, Law and Society, University of California, Santa Cruz - Department of Psychology,
Date posted to database: June 26, 2012
|6||156||Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, & Substantive Equality in Bedford v. Canada
Stockholm University - Department of Political Science,
Date posted to database: June 25, 2012 [7th last week]
|7||152||Does Corruption Pay in Indonesia? If so, Who are Benefited the Most?
Universitas Gadjah Mada,
Date posted to database: July 16, 2012 [6th last week]
|8||150||The Mandatory Meaning of Miller
William W. Berry,
University of Mississippi School of Law,
Date posted to database: July 19, 2012 [9th last week]
|9||149||The International Commission of Inquiry on Libya: A Critical Analysis
Kevin Jon Heller,
Melbourne Law School,
Date posted to database: August 5, 2012 [new to top ten]
|10||142||A Technology-Centered Approach to Quantitative Privacy
David C. Gray, Danielle Keats Citron,
University of Maryland-Francis King Carey School of Law, University of Maryland - Francis King Carey School of Law,
Date posted to database: August 15, 2012 [new to top ten]