Saturday, October 6, 2012
Issue summaries are from ScotusBlog:
Tuesday, Oct. 9
- Ryan v. Gonzales: Does 18 U.S.C. § 3599(a)(2) “which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" entitle a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel?
- Tibbals v. Carter: 1) Whether capital prisoners possess a “right to competence” in federal habeas proceedings under Rees v. Peyton; and 2) whether a federal district court can order an indefinite stay of a federal habeas proceeding under Rees.
Wednesday, Oct. 10
- Moncrieffe v. Holder: Whether a conviction under a provision of state law that encompasses but is not limited to the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, notwithstanding that the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony.
Issue summaries are from ScotusBlog:
- Alleyne v. U.S.: Whether this Court’s decision in Harris v. United States, holding that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled.
Friday, October 5, 2012
Eugene R. Milhizer (Ave Maria School of Law) has posted Debunking Five Great Myths About the Fourth Amendment Exclusionary Rule (Military Law Review Vol. 211, pp. 211-262) on SSRN. Here is the abstract:
In this article, I undertake to debunk five great myths about the Fourth Amendment Exclusionary Rule. First, I debunk the myth that the contemporary exclusionary rule is constitutionally required in order to achieve several objectives, which include but are not limited to deterring future police misconduct. Second, I discredit the assertion that even if the rule is intended only to deter future police misconduct, it is justified because it efficiently accomplishes this objective. Third, I disagree with the contention that even if the present rule is too inefficient in deterring future police to justify its continuation, it can be sufficiently improved by a modification that accounts for the seriousness of the crime or the dangerousness of the criminal. Fourth, I oppose the argument that even if deterrence is insufficient to justify the rule, the rule’s objectives can be expanded to encompass and promote noble aspirations beyond police deterrence, which thereby justify the rule. Fifth and finally, I dispute the moral claim that even if none of the utilitarian justifications for the rule are sufficient, the rule is needed to preserve the integrity of the criminal justice system. Based on all the foregoing, I conclude that the exclusionary rule should be rescinded and replaced with an approach that punishes those who violate the Fourth Amendment while avoiding actions, such as suppression, which can frustrate justice by undermining the efficacy and legitimacy and the criminal trials.
Monu Singh Bedi (DePaul University College of Law) has posted Facebook and Interpersonal Privacy: Why the Third Party Doctrine Should Not Apply (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
Do communications over social networking sites such as Facebook merit Fourth Amendment protection? The Supreme Court has not directly answered this question and lower courts are not in agreement. The hurdle is the Third Party Doctrine, which states that a person does not have a reasonable expectation of privacy to any communication she voluntarily discloses to a person or entity. All internet communications (e.g. status updates, photos, emails) are stored on third party servers or internet service providers (ISPs) and thus would seemingly lose Fourth Amendment protection, allowing the government to obtain the information from the server without first securing a warrant supported by probable cause.
Tamara Rice Lave (University of Miami, School of Law) has posted Inevitable Recidivism: The Origin and Centrality of an Urban Legend (International Journal of Law and Psychiatry, Vol. 34, p. 186, April 2011) on SSRN. Here is the abstract:
This paper examines the pervasive conviction that sex offenders – particularly child molesters – will continue to re-offend. This belief in inevitable recidivism turns out to be absolutely essential to both the justification for, and the structure of, the sexually violent predator laws. When actual evidence of sex offender recidivism is examined, however, a huge gap exists between what is assumed and what the data actually show because most sex offenders do not in fact re-offend. Thus there is a galaxy of sexually violent predator laws and an entire branch of Supreme Court jurisprudence that is founded upon a demonstrable urban legend.
Thursday, October 4, 2012
Geoffrey Schotter has posted Prisons for Profit: A Look at Prison Privatization (American Civil Liberties Union of Ohio, April 2011) on SSRN. Here is the abstract:
The economic downturn has resulted in a budget crisis for Ohio, as it has for other states, and out-of-control prison costs have emerged as a key concern. The ACLU of Ohio has been a forceful proponent of sentencing reform where policymakers may save taxpayer dollars and help create a more just society. Governor John Kasich’s new budget plan includes a sweeping overhaul of Ohio’s Department of Rehabilitation & Correction. The proposal includes common-sense sentencing reforms that would help ease our overcrowded prison system. Unfortunately, the proposed budget also includes a plan to sell five state correctional facilities to “prison for profit” operators like Corrections Corporation of America and contract with those companies to house inmates in them. Privatizing state prisons may in fact undermine sentencing reform’s goal to remove low- level offenders from the justice system.
Susan A. Bandes (DePaul University - College of Law) has posted The Challenges of 'Quality of Life' Policing for the Fourth Amendment (THE CONSTITUTION AND THE FUTURE OF CRIMINAL LAW, Cambridge University Press (Song Richardson & John Parry, Eds., 2013, Forthcoming)) on SSRN. Here is the abstract:
In New York City in the last several years, record numbers of people, overwhelmingly non-white, have been stopped and frisked by police. Only very rarely did those stops and frisks lead to discovery of a weapon or contraband. Only a small minority led to an arrest or summons. Even among those arrested, a miniscule number actually went to trial where the legality of the police conduct could be tested. In short, under the current Fourth Amendment framework, most of that police activity was never subjected to any judicial scrutiny, either before or after it occurred, to determine whether it was legally authorized or legally carried out.
Mitchell N. Berman (University of Texas School of Law) has posted Attempts, in Language and in Law on SSRN. Here is the abstract:
On what grounds does the law punish attempted offenses? The dominant answer is that the law punishes attempts to commit an offense precisely because they are attempts (extra-legally), and it is true as a general moral principle that if one should not X, one should not attempt to X. If this is right, then the proper contours of the law of attempts should track the contours of what are attempts (extra-legally). At least to a first approximation, that is, law should track metaphysics. Call this the “Attempt Theory” of attempt liability. Gideon Yaffe’s recent book, "Attempts," is a rigorous and philosophically sophisticated critical analysis of attempt law predicated on just this foundational assumption — the assumption, to repeat, that attempts to commit an offense should be criminalized because they are attempts as a pre-legal or extra-legal matter.
Wednesday, October 3, 2012
Peter J. Henning (Wayne State University Law School) has posted Making Sure 'The Buck Stops Here': Barring Executives for Corporate Violations (University of Chicago Legal Forum, Forthcoming) on SSRN. Here is the abstract:
There have been persistent complaints about managerial accountability since the advent of the financial crisis in 2008, especially the lack of criminal prosecutions of senior executives. In contrast, there is widespread criticism of “overcriminalization” and the use of criminal punishments to accomplish what are viewed as regulatory goals, such as corporate compliance. So while there is frustration at the lack of prosecutions, there are complaints that there are too many prosecutions. The criminal law is a poor means to engage in oversight of corporate governance, especially of senior managers who are largely insulated from day-to-day decision-making that often triggers violations. In this article, I offer a modest means to police management of public companies and large investment firms by enhancing the authority of the Securities and Exchange Commission to seek the removal of executives when the company has engage in persistent or serious misconduct, even if the individuals were not directly implicated in a violation. This authority already exists in a limited form in certain industries, and a wider application of it could be a way to address concerns about managerial accountability for corporate criminal conduct.
L. Song Richardson (University of Iowa - College of Law) have posted Police Efficiency and the Fourth Amendment (Indiana Law Journal, Vol. 87, p. 1143, 2011) on SSRN. Here is the abstract:
Much of our Fourth Amendment jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a “stop and frisk,” courts currently assume that, in any given case, the presence or absence of reasonable suspicion can be determined objectively simply by examining the factual circumstances that the officers confronted. This article rejects that proposition. Powerful new research in the behavioral sciences indicates that implicit, nonconscious biases affect the perceptions and judgments that are integral to our understanding of core Fourth Amendment principles. Studies reveal, for example, that many people regard ambiguous actions performed by non-Whites as suspicious, but regard Whites’ performance of those same actions as innocuous. Empirical evidence also demonstrates that officers vary in their ability to overcome implicit biases. Utilizing the behavioral realism framework, this article considers whether courts should supplement their objective, fact-centered approach to stop and-frisk cases with one that is more officer-centric. Rather than treat reasonable suspicion as something that either is or is not objectively provoked by a given case’s facts, this article explores whether courts should place a heavy emphasis on each officer’s “hit rate”— the rate at which an officer has successfully detected criminal activity when conducting stop and frisks in the past. This move, combined with a more robust articulation requirement, may better protect Fourth Amendment norms.
I. Bennett Capers (Brooklyn Law School) has posted Real Women, Real Rape (UCLA Law Review, Vol. 60, 2013) on SSRN. Here is the abstract:
There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak, and are so riddled with exceptions that they amount to little more than sieves. “Real Women, Real Rape” calls attention to two other problems with rape shield laws, problems which can be traced to the very enactment of rape shield laws, but for the most part have remained hidden, unnoticed, and unremarked upon. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a “good girl” and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws, feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, and occurs when a rape shield’s message conflicts with pre-existing rape scripts, those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The article sketches out solutions to these specific problems, and gestures towards a broader solution to tackle other flaws with rape shield laws.
Jennifer E. Laurin (University of Texas School of Law) has posted Remapping the Path Forward: Toward a Systemic View of Forensic Science Reform and Oversight (Texas Law Review, 2013) on SSRN. Here is the abstract:
The 2009 report of the National Academy of Sciences on the state of forensic science in the American criminal justice system has fundamentally altered the landscape for scientific evidence in the criminal process, and is now setting the terms for the future of forensic science reform and practice. But the accomplishments of the Report must not obscure the vast terrain that remains untouched by the path of reform that it charts. This Article aims to illuminate a critical and currently neglected feature of that territory, namely, the manner in which police and prosecutors, as upstream users of forensic science, select priorities, initiate investigations, collect and submit evidence, choose investigative techniques, and charge and plead cases in ways that have critical and systematic, though poorly understood, influences on the accuracy of forensic analysis and the integrity of its application in criminal cases. By broadening our understanding of how forensic science is created and used in criminal cases -- by adopting a systemic perspective -- the Article points to a raft of yet unaddressed issues concerning the meaning of scientific integrity and reliability in the context of investigative decisions that are by in large committed to the discretion of decidedly unscientific actors. Critically, the Article demonstrates that systemic dynamics affecting upstream use of forensic science might well undermine the reliability-enhancing goals of the reforms advocated by the National Academy Report. As the NAS Report begins to set the agenda for active conversations around legislative and executive action to reform forensic science, it is critical to consider these questions. Moreover, the Article suggests that the embrace of science as a unique evidentiary contributor within the criminal justice system problematizes some of the bedrock assumptions of American criminal procedure that have, to date, prevented more robust doctrinal intervention in the investigative stages and decisions that the Article explores.
Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted A Biblical Value in the Constitution: Mercy, Clemency, Faith, and History (University of St. Thomas Law Journal, 2013, Forthcoming) on SSRN. Here is the abstract:
The United States Constitution is a strikingly secular document, and claims that the United States was founded as a “Christian Nation” find little support there. However, the majority of Americans are Christian, and it should not be surprising that many of them look for a reflection of their faith’s values in the government that is structured by that secular Constitution.
This article urges that those who seek Christian values in the government processes allowed by the secular Constitution pay greater attention to the neglected pardon clause.
Tuesday, October 2, 2012
Kevin Bennardo (LSU Paul M. Hebert Law Center) has posted A Quantity-Driven Solution to Aggregate Grouping under the U.S. Sentencing Guidelines Manual on SSRN. Here is the abstract:
The United States Sentencing Guidelines Manual mandates the grouping of many multiple counts of conviction on an aggregate basis. In these instances, the Guidelines aggregate a specific quality of the multiple counts — often the amount of drugs or money — and determine the punishment based on the aggregated quantity.
This article first undertakes a review of the purposes of grouping under the Guidelines and concludes that grouping under the Guidelines’ other grouping provisions should precede grouping on an aggregate basis in order to minimize the influence of prosecutorial charging decisions.
Peter H. Schuck (Yale University - Law School) has posted Immigrant Criminals in Overcrowded Prisons: Rethinking an Anachronistic Policy on SSRN. Here is the abstract:
Under an Immigration and Nationality Act provision dating to 1917, deportable immigrant criminals must serve their entire sentences in the U.S. before being removed from the country. (Exceptions, enacted in 1996, are seldom used). At the same time, federal and state prisons are dangerously overcrowded, with the Supreme Court soon to rule on the constitutionality of overcrowded conditions in the California system. The paper shows that the most common proposals for reducing overcrowding are either politically difficult (e.g., shorter sentences) or numerically insignificant (e.g., decriminalizing drug possession for use). The paper proposes instead, or in addition, to facilitate the earlier removal of deportable criminals and analyzes the legal, policy, and diplomatic changes that would be necessary to implement this approach.
Monday, October 1, 2012
Barbara O'Brien and Catherine M. Grosso (Michigan State University - College of Law and Michigan State University - College of Law) have posted Confronting Race: How a Confluence of Social Movements Convinced North Carolina to Go Where the McCleskey Court Wouldn’t (Michigan State Law Review, Vol. 2011, No. 3, 2011) on SSRN. Here is the abstract:
In McCleskey v. Kemp, the United States Supreme Court rejected the use of statistical evidence of racism in the criminal justice system to show a violation of the Equal Protection Clause. If states are seeking or imposing the death penalty in a racially disparate manner, the Court noted, that is a matter for state legislatures to address. More than twenty years later, North Carolina heeded this suggestion and passed the Racial Justice Act of 2009 (RJA). North Carolina was only the second state to pass legislation in response to the McCleskey decision despite numerous local and federal efforts to pass a racial justice act. Kentucky passed similar legislation in 1998, but the Kentucky law provides for only an almost fatally narrow claim. In this respect, North Carolina stands alone in providing capital defendants a strong claim for relief based on statistical evidence that “race was a significant factor in decisions to seek or impose the sentence of death in the county, the prosecutorial district, the judicial division, or the State at the time the death sentence was sought or imposed.”
The paper considers why North Carolina passed the RJA when it did.
John P. Anderson (Mississippi College School of Law)has posted Greed, Envy, and the Criminalization of Insider Trading on SSRN. Here is the abstract:
In October 2011, a U.S. District Court sentenced Raj Rajaratnam to 11 years in federal prison for insider trading. This was the longest sentence for insider trading in U.S. history, but it was significantly less than the 19 to 24-year term requested by the government. Such harsh prison terms (equal in some cases to those meted out for murder or rape) require sound justification in a liberal society. Yet jurists, politicians and scholars have failed to offer a clear articulation of either the economic harm or the moral wrong committed by the insider trader.
This article looks to fill this gap by offering a rigorous analysis of insider trading, its criminalization, and its punishment from multiple economic and moral perspectives. This analysis reveals that of the three forms of insider trading currently proscribed under Section 10(b) of the Securities Exchange Act, two are economically harmful and morally impermissible, but surprisingly one is not (Classical Non-Promissory Insider Trading, where the insider trades on material non-public information while having made no promise not to trade).
Andrew V. Papachristos and Christopher Wildeman (Yale University - Department of Sociology and Yale University - Department of Sociology) have posted Social Networks and Risk of Homicide Victimization in an African American Community on SSRN. Here is the abstract:
This study estimates the association of an individual’s position in a social network with their risk of homicide victimization across a high crime African American community in Chicago. Data are drawn from five years of arrest and victimization incidents from the Chicago Police Department. Results indicate that the risk of homicide is highly concentrated within the study community: 41 percent of all gun homicides in the study community occurred within a social network containing less than 4 percent of the neighborhood’s population. Logistic regression models demonstrate that network-level indicators reduce the association between individual-level risk factors and the risk of homicide victimization, as well as improve overall prediction of individual victimization. In particular, social distance to a homicide victim is negatively and strongly associated with individual victimization: each social tie removed from a homicide victim decreases one’s odds of being a homicide victim by approximately 57 percent. Findings suggest that understanding the social networks of offenders can allow researchers to more precisely predict individual homicide victimization within high crime communities.
Kevin E. Davis (New York University (NYU) - School of Law) has posted Why Does the United States Regulate Foreign Bribery: Moralism, Self-Interest, or Altruism? (NYU Annual Survey of American Law, Vol. 67, No. 3, 2012) on SSRN. Here is the abstract:
This short essay
traces the legislative history of the Foreign Corrupt Practices Act and its
amendments to examine the influence of three distinct motivations: moralism,
(economic) self-interest and altruism. The legislative history suggests that
moralism and self-interest played the most significant roles in influencing the
provisions of the original Act and its 1988 Amendments. Since then altruism has
played a more prominent role in shaping the FCPA and other initiatives aimed at
foreign bribery. The essay concludes by discussing the potential tension between
self-interest and altruism and ways in which it might be resolved.