September 22, 2012
Gazal-Ayal, Turjeman & Fishman on Sentencing Guidelines and Prosecutorial Power
Oren Gazal-Ayal , Hagit Turjeman and Gideon Fishman (University of Haifa - Faculty of Law , University of Haifa - Department of Sociology & Anthropology and University of Haifa - Department of Sociology & Anthropology) have posted Do Sentencing Guidelines Increase Prosecutorial Power? – An Empirical Study (Law and Contemporary Problems, Vol. 76, No. 1, 2012) on SSRN. Here is the abstract:
Sentencing guidelines have been enacted across the United States and are currently being considered in other countries, including Israel. However, researchers argue that the new sentencing structures shift too much power to prosecutors. A unique set of data from Israel allows for a controlled examination of sentencing outcomes for people accused of aiding illegal aliens during three time periods: before the imposition of strict judicial sentencing guidelines, after this change was made, and then following the court’s mitigation of those guidelines. We find that prosecutors did not gain direct sentencing power from the guidelines. In fact, judges were often willing to depart from the guidelines even when prosecutors asked them to follow them. The guidelines might have had an effect on defendants, leading them to believe that they better plea bargain with the prosecutors. But when defendants did not bargain, they, in most cases, managed to convince the court not to follow the harsh guideline, even if prosecutors objected to the departure. It seems that judges, more than prosecutors, are willing to depart from harsh guidelines even when they are supposed to be bound by them. Hence we did not find support to the transfer of sentencing power theory.
Shannon & Scarano on Incompetency to Be Executed
Brian D. Shannon (pictured) and Victor R. Scarano (Texas Tech University School of Law and University of Houston - Health Law & Policy Institute) have posted Incompetency to Be Executed: Continuing Ethical Challenges & Time for a Change in Texas (Texas Tech Law Review, Vol. 45, 2013) on SSRN. Here is the abstract:
This Article focuses on a small, but unique group of death row inmates who have largely exhausted their post-conviction procedural rights and have a date set for execution, but while awaiting execution have become incompetent to be executed because of serious mental illness. The United States Supreme Court has determined that it is unconstitutional to execute an individual who is mentally incompetent. The Court has not, however, ruled as to whether it is constitutionally permissible for a state to order a death row inmate to be medicated forcibly for the purpose of restoring that inmate’s competency to allow an execution to proceed. This Article discusses the scope of the serious ethical concerns related to this very challenging scenario, and reviews state and lower federal court decisions that have considered the issue, as well as United States Supreme Court opinions that have considered other, related medication issues concerning offenders with mental disorders. In particular, however, the Article offers and discuss a possible legislative solution that the Texas Legislature could enact that would avoid the thorny ethical and legal issues that are at stake in such cases.
September 21, 2012
"Prosecutors in Shooting Abandon Bid for Notebook"
From The New York Times:
CENTENNIAL, Colo. — James E. Holmes, accused of killing 12 people in a Colorado movie theater, appeared in court on Thursday, his shaggy hair now shorn and brown rather than neon orange, as prosecutors, saying they did not want to delay proceedings, abandoned their fight to see a notebook he sent to a university psychiatrist.
. . .
Public defenders for Mr. Holmes have argued that the notebook cannot be made public or shared with prosecutors because it is privileged communication between Mr. Holmes and Dr. Lynne Fenton, a psychiatrist at the University of Colorado Denver, who saw Mr. Holmes briefly in June.
"Ninth Circuit hears arguments on California DNA collection law"
The US Court of Appeals for the Ninth Circuit [official website] heard arguments Wednesday regarding the constitutionality of a voter-approved California law[Proposition 69, PDF] that requires police officers to take DNA samples of arrested persons suspected of committing a felony. Sitting en banc, the judges questioned CaliforniaAttorney General Kamala Harris [official website], raising concerns [San Francisco Chronicle report] that the law may be an unconstitutional government invasion of individuals' privacy. Harris retorted that the law contains safeguards against malicious use, including penalties for state officials who misuse DNA material. In February a three-judge panel of the Ninth Circuit ruled [opinion, PDF; JURIST report] that Proposition 69 does not violate Fourth Amendment [LII backgrounder] protections against unlawful searches and seizures.
Struve on Conditions on Pretrial Detention
Catherine T. Struve (University of Pennsylvania Law School) has posted The Conditions of Pretrial Detention (University of Pennsylvania Law Review, Vol. 161, 2013) on SSRN. Here is the abstract:
Court has set forth in detail the standards that govern convicted prisoners’
Eighth Amendment claims concerning their conditions of confinement, but has left
undefined the standards for comparable claims by pretrial detainees. The law in
the lower courts is unclear and inconsistent, but shows a trend toward
assimilating pretrial detainees’ claims to those of convicted prisoners. Based
on a review of Supreme Court caselaw concerning related questions, this Article
argues that, for claims arising after a judicial determination of probable
cause, the tests prevailing in the lower courts should be replaced by a
substantive Due Process framework that requires a plaintiff to show, at most,
either punitive intent or objective deliberate indifference on the part of the
defendant. For claims arising after a warrantless arrest and before a judicial
determination of probable cause, the Fourth Amendment’s objective reasonableness
standard should govern; moreover, the Article notes a strong argument that this
objective reasonableness standard should govern prior to arraignment, even when
the arrest took place upon a warrant.
Appell & Davis on Mass Incarceration and Masculinity through a Black Feminist Lens
Annette Ruth Appell (pictured) and Adrienne D. Davis (Washington University in Saint Louis - School of Law and Washington University in Saint Louis - School of Law) have poosted Access to Justice: Mass Incarceration and Masculinity through a Black Feminist Lens (Washington University Journal of Law and Policy, Vol. 37, No. 1, 2011) on SSRN. Here is the abstract:
Introduction to the Symposium, Race to Justice: Mass Incarceration and
Masculinity through a Black Feminist Lens, rehearses the animating forces that
led to a colloquium and a series of papers that explore the question of mass
incarceration and the negative state engagement surrounding it through gendered
and feminist lenses. The Introduction explains how an analysis of mass
incarceration through the lens of gender complicates what is often conceived as
a story about race. Instead mass incarceration can be more deeply understood
through its gendered effects on men and the women and children connected to
those men. These connections include the social and economic conditions of the
community, new forms of sexuality experienced in prison, and resulting changes
in identity. Building on the work of Angela Davis and Beth Ritchie, this
symposium and its papers provide new insights and frameworks for mass
incarceration. Symposium authors include Angela Harris, Frank Rudy Cooper,
SpearIt, Kimberly Bailey, Jessica Dixon Weaver.
Becker, Ewald & Harcourt on Foucault and Neoliberalism
Gary S. Becker (pictured), Francois Ewald and Bernard E. Harcourt (University of Chicago - Department of Economics , Conservatoire National des Arts et Métiers and University of Chicago - Department of Political Science) have posted 'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures on SSRN. Here is the abstract:
In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; Professor Bernard Harcourt offers a different reading of Foucault’s views on neoliberalism; and Professor Becker responds to Foucault’s lectures and to possible critical readings of his work on human capital. Apology or critique — that is the motivating question in this rich encounter between contemporary French philosophy and American economic theory.
September 20, 2012
Deise & Paternoster on Victim Impact Evidence and Death Sentencing
Jerome E. Deise and Raymond Paternoster (University of Maryland Francis King Carey School of Law and University of Maryland) have posted More than a 'Quick Glimpse in the Life?': The Relationship between Victim Impact Evidence and Death Sentencing (Hastings Constitutional Law Quarterly, Vol. 40, 2013) on SSRN. Here is the abstract:
In striking down the use of victim impact evidence (VIE) during the penalty phase of a capital trial, the Supreme Court in Booth v. Maryland and South Carolina v. Gathers argued that such testimony would appeal to the emotions of jurors with the consequence that death sentences would not be based upon a reasoned consideration of the blameworthiness of the offender. After a change in personnel, the Court overturned both decisions in Payne v. Tennessee, decided just two years after Gathers. The majority in Payne were decidedly less concerned with the emotional appeal of VIE, arguing that it would only present a “quick glimpse of the life” taken by the offender, and that such testimony would provide the sentencer with a fuller account of the harm done by the offense and therefore a more accurate picture of the offender’s culpability. In this paper we present the results of an experiment using potential jurors selected from a jury registration list of a large city. Subjects were “death qualified” and voir dired so that they would be eligible for jury service in a capital case, provided with a written summary of a real murder case involving the killing of a police officer, and randomly assigned to watch a videotape of the actual capital penalty trial. All subjects then completed a questionnaire which among other things asked them what sentence they would have imposed in the case if they were a juror. We found that those who viewed the victim impact testimony were more likely to feel empathy and sympathy for the victim and victim’s family, were more likely to state that empathy and sympathy for the victim and victim’s family were important considerations in their sentence, more likely to believe that the victim’s family was coping poorly with their loss, more likely to believe that a death sentence would provide comfort and closure for the family, and more likely to impose a sentence of death.
Tyler & Jackson on Legitimacy and Criminal Justice
Tom Tyler (pictured) and Jonathan Jackson (Yale University - Law School and London School of Economics & Political Science - Methodology Institute) have posted Future Challenges in the Study of Legitimacy and Criminal Justice on SSRN. Here is the abstract:
Studies conducted over the last several decades have established that legitimacy shapes law-related behavior. They also make it clear that we should broaden our framework for understanding both how to conceptualize and measure legitimacy and for exploring its antecedents and consequences. This chapter reviews recent efforts to address these questions.
September 19, 2012
Ball & Weisbert on Justice Information Sharing
W. David Ball (pictured) and Robert Weisberg (Santa Clara School of Law and Stanford Law School) have posted Justice Information Sharing: A Legal Primer for Criminal Justice Practitioners in California on SSRN. Here is the abstract:
California criminal justice agencies need access to data in order to provide security, health care treatment, and appropriate programming, as well as to coordinate these activities with other agencies. By the same token, outside agencies — whether criminal, social service, or non-governmental — could often do their jobs more effectively with access to information generated or retained within particular criminal justice agencies. Criminal justice realignment under AB 109 has only heightened the need for inter-agency data sharing and cooperation, yet there continue to be misunderstandings about the legal framework surrounding information exchange.
This article aims to provide a basic, practical background on the legal rules relevant to information exchange, highlighting under what circumstances — and with whom — criminal justice agencies may share, must share, or must not share their information. The Article’s basic conclusion is that criminal justice data sharing is enabled by the existing legal regime.
Williams on Reporting Laws after Sandusky
Starla J. Williams (Widener University School of Law) has posted Reforming Mandated Reporting Laws After Sandusky (Kansas Journal of Law & Public Policy, Forthcoming) on SSRN. Here is the abstract:
This article explores the intersection of poverty, power, and privilege in the child protection system that contributed to the child sexual abuse scandal at Penn State University. The article first reviews the facts underlying the case of former Penn State football coach Gerald A. Sandusky, who was convicted on forty-five counts of child sexual abuse. It also offers insight into the actions of former University leaders whose nondisclosure and active roles in the cover up of child sexual abuse resulted in disgrace to one of the nation’s premier college athletic programs. Next, the article considers the irony in the failure to report child sex abuse involving disadvantaged youth at Penn State when children living in poverty are generally over-reported for suspected child abuse; hence, former Penn State leaders created invisible victims of underprivileged youth who are typically overly visible to child protective services. The article sets forth the rationale for mandated reporting laws by drawing a correlation between moral, social, and economic forces within the child protection system.Examples of inequities in the child protection system which underscore the maltreatment of underprivileged youth at the heart of the Penn State scandal are also presented. The article identifies numerous shortfalls in Pennsylvania’s mandated reporting law that are relevant to the defense of two ex-Penn State officials who were indicted for perjury and failure to report allegations against Sandusky. The article proposes viable legislative reform to address these statutory shortfalls and concludes with a call to action to ensure accountability for mandated reporters and create equity in systems protecting children and youth.
Braverman on Police Dog Sniffs
Irus Braverman (State University of New York at Buffalo - Law School) has posted Passing the Sniff Test: Police Dogs as Surveillance Technology (Buffalo Law Review, Forthcoming) on SSRN. Here is the abstract:
In October 2012, the Supreme Court of the United States will review the case of Florida v. Jardines, which revolves around the constitutionality of police canine Franky’s sniff outside a private residence. Essentially, the Court will need to decide whether or not the sniff constitutes a “search” for Fourth Amendment purposes. This Article presents a review of the often-contradictory case law that exists on this question to suggest that underlying the various cases is the Courts’ assumption of a juxtaposed relationship between nature and technology. Where dog sniffs are perceived as a technology, the courts have been inclined to also define them as “searches,” thereby triggering Fourth Amendment protections. Conversely, when perceived as extensions of the officer’s natural sense of smell, dogs, like nature, are viewed with “superstitious awe” and spared constitutional scrutiny.
Rather than use the dominant judicial classification of police dogs as either “natural entities” or “advancing technologies” — each of which triggering its own, usually opposite, chain of legal events — I rely on the scholarship of Science and Technology Studies (STS) to suggest treating police dogs as “biotechnologies”: co-produced human-animal hybrids. I argue that although a dog seems to have limited development capacity in comparison to a nonorganic machine, the police dog’s various breeding, improved training, increased application, and machine augmentation render it both a biological entity and an advancing technology. I also argue that despite the common use of dogs as pets, a work dog — and a police detection dog in particular — is clearly not “in public use.” Specifically, the high cost of breeding, training, and maintaining K-9s, the professional training required, the unique human-animal relationship that develops in the highly volatile police setting, and the status of K-9s as full members of the police force — all demonstrate that K-9 Franky is not, and will probably never be, Spot or Rover. Finally, I claim that such novel categorization of police dogs as both a “bio” and a “technology” should at least trigger the same constitutional protections as an infrared device. Under no circumstances should any technology go a-priori unprotected by the Fourth Amendment, even when such technology is an eight-year-old chocolate Labrador retriever named Franky.
Gerber & Jackson on Retribution
Monica M. Gerber and Jonathan Jackson (London School of Economics & Political Science - Methodology Institute and London School of Economics & Political Science - Methodology Institute) have posted Retribution as Revenge and Retribution as Just Deserts on SSRN. Here is the abstract:
Public attitudes towards law-breakers shape the tone and tenor of crime-control policy. The desire for retribution seems to be the main motivation underpinning punitive attitudes towards sentencing, yet there is some confusion in the research literature over what retribution really means. In this paper we distinguish between retribution as revenge (as the desire to punish criminal offenders to retaliate a past wrong by making the offender suffer) and retribution as just deserts (as the preference to restore justice through proportional compensation from the offender). Results from an online survey (n=176) provide evidence of two distinct dimensions of retribution, but we also show that these two dimensions have different ideological and motivational antecedents, and have different consequences in terms of the treatment of criminal offender. We find that retribution as revenge is associated with the motivation to enforce status boundaries with criminal offenders, as well as ideological preferences for power and dominance (as expressed by social dominance orientation) and in-group conformity (as expressed by right-wing authoritarianism). Endorsement of retribution as revenge also predicts the support of harsh punishment and the willingness to deny fair procedures. By contrast, retribution as just deserts is mainly predicted by a value restoration motive and by right-wing authoritarianism. After controlling for revenge, retribution as just deserts predicts support for procedural justice in the criminal courts. We conclude with the idea that beliefs about proportionality and compensation work as a buffer against the negative effects of revenge.
September 18, 2012
"Big Brother is in your car"
Salon.com has this article discussing license plate readers:
Once used mostly by local cops to catch car thieves and unregistered drivers, LPR systems have morphed into what privacy activists call an increasingly pervasive network of mass surveillance. Databases all over the country maintained by local police departments – and now federal agencies too — contain hundreds of millions of location scans, and provide a searchable record of the movements of all kinds of drivers, from murderers to pizza delivery guys, and from soccer moms to serial rapists.
The inconspicuous devices are sometimes installed at fixed points, as the DEA has been doing in several border states, but they’re most often mounted on local police cruisers, where they automatically scan and record every license plate that comes within range of their optical sensor.
Hat tip: FourthAmendment.com.
"Europe rights court rules England, Wales indeterminate sentences unlawful"
The European Court of Human Rights [official website] ruled [judgment] Tuesday that England and Wales' indeterminate sentences for protection of the public (IPP) [BBC backgrounder] without the means for inmates to prove their rehabilitation are arbitrary and unlawful. The IPP requires an inmate to demonstrate to the Parole Board [official website] that he or she is no longer a threat to society to become eligible for release after serving a minimum sentence.
Yung on Preventive Detention and Sex Offender Exceptionalism
Corey Rayburn Yung (University of Kansas School of Law) has posted Symposium: Preventative Detention: Sex Offender Exceptionalism and Preventive Detention (Journal of Criminal Law and Criminology, Vol. 101, No. 3, July 2011) on SSRN. Here is the abstract:
The emerging war on sex offenders, as typical of wartime mentality, has been marked by substantial deviations from established legal doctrine, constitutional protections, and the rule of law. Because of a high level of panic among the general population about sex offenders the use of preventative detention for sex offenders has received little attention or scrutiny. While the population of the detention facility at Guantanamo Bay has slowly decreased, the number of persons in state and federal detention centers dedicated to sex offenders has continued to climb. With the courts largely rubber stamping the federal civil commitment of sex offenders allowed under the Adam Walsh Child Protection and Safety Act (AWA) in 2006, the path has been cleared for an enormous expansion of sex offender detention.
Because of the limited attention given to these detentions, they represent a particularly dire threat to American liberties. The normal societal and institutional checks against government abuse embodied in the media, public, Constitution, and courts have essentially been removed. We authorize government to detain indefinitely those who are deemed “sexually dangerous” at our peril. Instead of waiting for someone to commit a wrong, the government acts to restrict liberty of persons who have yet to commit a wrong (but the government believes will likely do so in the future). The criminal justice system offers plenty of opportunities for the government to prosecute someone before harm is done using inchoate and conspiracy crimes. To go beyond those already broad tools, the circumstances should be highly exceptional, the danger should be real and imminent, and the net should be cast narrowly. In the case of sex offender civil commitment, the circumstances are no more dangerous than for other serious crimes, the risk is speculative based upon pseudo-science, and the net is far too broad. Because of these aspects of sex offender civil commitment laws, America should fundamentally reconsider its approach to fighting sexual violence. Laws like AWA, premised on myths that allocate substantial resources in a never ending war, do not create a just or better society.
Cohen on the Slayer Rule.
The nowadays universal 'slayer rule' is based on considerations of autonomy and public policy. It is the subject of the detailed and thoughtful section 45 of Restatement Third Restitution. Different answers were given in different periods, among them biblical times, to the question whether a slayer could inherit the testator he had killed. The complexity of the matter is rooted in the different perceptions regarding the limits of law, the relations between the legislator and the judiciary, the tensions between text and context; rules and standards; public and private spheres and criminal and private sanctions. The contradictory considerations behind the rule lead to conflicting proposals either to expand or to restrict its application. But the whole question is much wider. It concerns the proper scope of the principle of 'ex turpi causa' in private law and the need to regulate by rules some intriguing questions of corrective, distributive and retributive justice.
Maguire on Bullying and the Legislative Response
James Maguire has posted 'Everyone Does it to Everyone': An Epidemic of Bullying and the Legislation of Transgression in American Schools (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
This article scrutinizes the emergence and transformation of bullying as a novel form of legally cognizable transgression in twenty-first century America with the goal of highlighting an incipient shift away from the logic of individual action and intent that dominated twentieth-century criminological thinking. Through a survey of bullying definitions employed in various state statutes and an intensive examination of the genealogy of a seminal 2010 Massachusetts law, the article explores the shifting relationship between competing modes of carving out a determinate legal offense from the formerly colloquial concept of bullying. Specifically, it demonstrates that bullying legislation may be divided into laws focused on the culpability of individual offenders and those structured around broader, but less personal, social and institutional conditions. Massachusetts’ antibullying legislation in turn serves as an illustration of a broad trend marking the ascendency of this second, depersonalized, mode of defining transgression. The article concludes by considering the larger implications for criminal law of this new legislative attitude, which displaces the subjective individual as the central figure of morally salient transgression and legal intervention.
September 17, 2012
Kohn on the Criminalization of Elder Abuse
Nina A. Kohn (Syracuse University - College of Law) has posted Elder (In)Justice: A Critique of the Criminalization of Elder Abuse (American Criminal Law Review, Vol. 49, No. 1, 2012) on SSRN. Here is the abstract:
The past two decades have seen a rapid proliferation of laws and policies that facilitate a criminal justice response to elder abuse. Drawing on feminist critiques of the criminal justice response to domestic violence, this Article argues that the criminalization of elder abuse can protect elder abuse victims and improve public attitudes toward elder mistreatment. However, it warns that by failing to engage elder abuse victims in the punishment process and criminalizing certain consensual interactions involving older adults, the current criminal justice system response to elder abuse threatens to oppress victims, perpetuate negative stereotypes about older adults, and undermine the delivery of victim services. It therefore posits that the debate over how to address elder abuse must move beyond the question of whether the criminal justice system should respond to elder abuse to thinking critically about how the system should do so. Finally, it suggests that the criminal justice system response to elder abuse could be improved by being informed by those working in parallel domains, including domestic violence.
Frampton on the Variance of Jury Trial Rates by State
T. Ward Frampton has posted The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State (California Law Review, Vol. 100, No. 1, 2012) on SSRN. Here is the abstract:
Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice,” jury trial rates (the prevalence of jury trials relative to bench trials) in American criminal adjudication actually vary dramatically by state. A sizable body of scholarship has generally explored the decrease in criminal trials, but this “Vanishing Trial” literature has largely ignored the notable state-by-state disparities in jury trial rates. After reviewing the historic role the Framers expected the jury trial to play in criminal adjudication, this Comment analyzes the existing data on jury trial rates and identifies surprising disparities from one jurisdiction to the next. The Comment then explores various state practices that may be sources of these variations, often pushing the jury trial to the margins of criminal adjudication and disadvantaging those accused of wrongdoing. The Comment concludes by contrasting the Supreme Court’s recent jurisprudence celebrating the centrality of the jury trial with the lived experiences of criminal defendants, and argues for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.