November 10, 2012
Diab on Terrorism Sentencing
Robert Diab (Thompson Rivers University - Faculty of Law) has posted Sentencing of Terrorism Offences after 9/11: A Comparative Review of Early Case Law (TERRORISM, LAW AND DEMOCRACY, Canadian Institute for the Administration of Justice, p. 347, 2013) on SSRN. Here is the abstract:
This paper provides an overview of an emerging jurisprudence on terrorism sentencing under post-9/11 law in Canada, the UK, and Australia. It seeks to advance three objectives. One is to highlight similarities and differences in approach among these jurisdictions. Another is to lend context to a set of Ontario Court of Appeal decisions calling for stiffer sentences, and to show why future sentences may often be longer as a result — but not always. Finally, the paper seeks to demonstrate how prosecutorial discretion on sentence limits can result in widely divergent outcomes at both the high and low end of the spectrum of culpability.
"Intriguing accounts of how California's three-strikes reform will be implemented"
Friday's criminal law/procedure cert grants
Issue summary is from ScotusBlog:
- Maryland v. King: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
- Peugh v. United States: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.
Johnson et al. on Police Power and Legitimacy
Jonathan Jackson , Mike Hough , Ben Bradford , Katrin Hohl and Jouni Kuha (London School of Economics & Political Science: Department of Methodology , University of London - Institute for Criminal Policy Research , University of Oxford - Centre for Criminology , London School of Economics & Political Science (LSE) and London School of Economics and Political Science) have posted Policing by Consent: Understanding the Dynamics of Police Power and Legitimacy (European Social Survey, 2012) on SSRN. Here is the abstract:
This is the first of the country-specific European Social Survey topline results reports. Focusing on UK data from the Round 5 module entitled ‘trust in justice,' we link people’s perceptions of police legitimacy to their compliance with the law and their willingness to cooperate with the police and criminal courts. We also extend the existing literature by addressing wider forms of trust and people’s attachment to order and security. Framing the findings in the context of a long and rich history of policing by consent, we show the value of the European Social Survey in shaping public policy, practice and debate.
Tang on the Perverse Logic of Teen Sexting Prosecutions
Xiyin Tang has posted The Perverse Logic of Teen Sexting Prosecutions (and How to Stop it) (Boston University journal of Science and Technology Law, Forthcoming) on SSRN. Here is the abstract:
The recent spate of child pornography prosecutions for teenagers engaging in a little harmless fun (in other words, “sexting,” where seductive, partially-nude or fully-nude images of one teen is transmitted to a lover, who might in turn send it to some friends) has called for one seemingly inarguable conclusion: such prosecutions are unconstitutional, in contravention of a teen’s First Amendment rights, and do not fall into the concerns the child pornography statute was meant to address. However, this essay examines both the Court’s child pornography jurisprudence and First Amendment doctrine as it relates to minors, arguing that a synthesis of the two would strongly suggest that sexting is both unprotected by the First Amendment as it also presents many of the same problems inherent in child pornography. However, threatening teens with lengthy jail sentences and criminal prosecutions under a statute designed for sex perverts does not seem equitable, either. Therefore, I propose a compromise that is perfectly in line with the Court’s harm-based approach to child pornography: a Romeo and Juliet carve-out within the child pornography statute that would exempt teenagers who can legally have consensual sex under applicable state law. By creating a rule that affirmatively reduces a prosecutor’s power to press charges, this carve-out nonetheless keeps the possibility of a child pornography charge open at the outer edges of sexting behavior while foreclosing such opportunities for prosecutorial evangelism in the normative range. This essay hopes that by reframing the dialogue away from First Amendment rights and keeping some sexting on the books as a crime, we are sending the appropriate message about sex — that it is intimate, not to be traded for entertainment value or as social currency.
Gastwirth on Assessing the Accuracy of Drug-Sniffing Dogs
Joseph L. Gastwirth (George Washington University - Columbian College of Arts and Sciences) has posted The Need to Carefully Interpret the Statistics Reporting the Accuracy of a Narcotics Detection Dog: Application to South Dakota v. Nguyen, State of Florida v. Harris and Similar Cases on SSRN. Here is the abstract:
Before carrying out a warrantless search of a person or their property, police officers need to have sufficient information concerning involvement in possible criminal activity to meet the “probable cause” criteria. In U.S. v. Place, the Court held that dog sniffs of vehicles, stopped for lawful purposes, were not a search. Courts have allowed police to search a vehicle or item after a trained narcotics dog indicates that it contains contraband as the positive indication establishes “probable cause”. The criteria many courts use to assess the reliability of the dog, the fraction of positive identifications in which drugs were found, however, is the predictive value of a positive test (PVP). While related to the two proper measures of the accuracy of a screening technique, the PVP also depends on the prevalence of contraband in the places the dog has examined. It is will be seen that the same PVP can arise in situations where an accurate dog sniffs items with a low prevalence of contraband or when a much less reliable dog examines items with a high prevalence of drugs. It will be seen that it is mathematically impossible to estimate the two accuracy rates of a narcotics dog from the data typically submitted by the state to show the narcotics dog is reliable.The problem arises because one needs three equations to estimate the prevalence and the two accuracy rates but the data only provides two. These issues will be illustrated on data from actual cases. Rather than continuing to rely on an inappropriate measure of the accuracy of dog sniffs, courts should require more information concerning the accuracy of dogs in their training sessions and in the field as well as better information on the prevalence of drugs in commonly occurring settings, e.g. vehicles stopped for routine traffic violations or items examined after police have received a “tip”. Then the legal system would have sufficient information to estimate both measures of accuracy of a narcotics dog and its PVP, which would assist courts in determining whether the police had “probable cause”.
Haque on Tadros and Retributivism
Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Retributivism: The Right and the Good (Law and Philosophy, Vol. 31, 2012) on SSRN. Here is the abstract:
Victor Tadros claims that punishment must be justified either instrumentally or on the grounds that deserved punishment is intrinisically good. However, if we have deontic reasons to punish wrongdoers then these reasons could justify punishment non-instrumentally. Morever, even if the punishment of wrongdoers is intrinsically good this fact cannot contribute to the justication of punishment because goodness is not a reason-giving property. It follows that retributivism is both true and important only if we have deontic reasons to punish.
Tadros also claims that the constitutive aim of punishment is to inflict harm or suffering on offenders. On the contrary, the constitutive aim of retributive punishment is to inflict (justified) wrongs on offenders that are proportionate to the (unjustified) wrongs they commit. Indeed, punishment should involve the least harmful wrong that is proportionate to the wrongfulness of the offense, adequate to facilitate recognition, and (perhaps) conducive to deterrence.
November 8, 2012
Braverman on Policing American Cities Through Animals
Irus Braverman (State University of New York at Buffalo - Law School) has posted Legal Tails: Policing American Cities Through Animals (Urban Policing, Securitization, and Regulation, Randy K. Lippert and Kevin Walby, eds., Routledge, 2012) on SSRN. Here is the abstract:
“I don’t worry about the four-legged animals,” Officer Armatys tells me as I scramble to catch up when he enters a backyard with a fierce-looking dog. “It’s the two-legged animals I am concerned about.” I interviewed Officer Armatys twice, first in his office in the Erie County’s Society for the Protection of Animals (ESPCA) and, a few months later, on a ride-along during a routine workday. Based on these encounters and numerous others with members of the ESPCA and with city administrators of animal control, this essay conveys bits and pieces of the story of how the City of Buffalo polices its nonhuman population. Specifically, I focus on the regulation and enforcement of dog laws in the city, what I refer to as “legal tails.” I argue that although seemingly enacted to control dogs, animal laws and ordinances are very much a way to monitor and control the conduct of humans. In the city, human-animal relations are expressed, regulated, and surveilled more closely than anywhere else. Animal laws instruct us which animals are allowed into the city and under what conditions. More than regulating the everyday of urban life as it pertains to animals, humans, and the interrelations thereof, such laws and their enforcement help define the very essence of the city. Indeed, such regulations and systems of surveillance define not only the limits of human conduct, but also the limits of the city itself. Through its distinct matrix of animal-human relationships, the city is distinguished from its significant other, the country, where a different set of animal-human relations is permitted to take place.
DeGirolami on Sir James Fitzjames Stephen
Marc O. DeGirolami (St. John's University School of Law) has posted The Punishment Jurist (Foundational Texts in Modern Criminal Law, Markus Dubber, ed., Oxford University Press (Forthcoming)) on SSRN. Here is the abstract:
This is an essay on the critical history of the thought of the Victorian-era judge, Sir James Fitzjames Stephen. It discusses some of the themes in his major work, "The History of the Criminal Law of England." And it reflects on a cluster of questions involving criminal punishment: whether Stephen had a "theory" of punishment; if not how best to characterize his thought; and whether his views and understanding of the aims and functions of punishment remain relevant. The essay explores Stephen's positive and critical contributions, and it concludes that Stephen's major insight was methodological. His view is that the reasons for punishment cannot be separated from the obligations and the nature of the judicial office. He was neither a punishment retributivist nor a punishment consequentialist, but a punishment jurist.
Lopez on Hate Crimes Against Latino Immigrants
Maria Pabon Lopez (Loyola University New Orleans College of Law) has posted An Essay Examining the Murder of Luis Ramírez and the Emergence of Hate Crimes Against Latino Immigrants in the United States (44 Arizona State Law Journal 155 (2012)) on SSRN. Here is the abstract:
This essay discusses the brutal killing of Luis Ramírez, the state court trial that failed to produce a homicide conviction against the defendants, and the federal civil rights case brought against two of the assailants. Other recent hate crimes again Latinos and the trends such crimes contribute to are examined in the context of federal hate crime laws and the appropriateness of using such laws to address hate crimes perpetrated against Latino immigrants.
November 7, 2012
Transcript in conspiracy withdrawal caseThe transcript in Smith v. United States is here.
Transcript in double jeopardy argumentThe transcript in Evans v. Michigan is here.
Cooper on Hyper-Incarceration
Frank Rudy Cooper (Suffolk University Law School) has posted Hyper-Incarceration as a Multidimensional Attack: Replying to Angela Harris through The Wire (Washington University Journal of Law and Policy, Vol. 37, p. 67, 2011) on SSRN. Here is the abstract:
Angela Harris’s article in this symposium makes a valuable contribution to our understanding of hyper-incarceration. She argues, quite persuasively, that the term “gender violence” should be understood broadly to include men’s individual and structural violence against other men. She then considers what we ought to do about the incredible increase in incarceration, mostly of racial minority men, over the past 40 years. She terms this “mass incarceration” and argues that it is best dealt with by a shift from “restorative justice” to “transformative justice.” Whereas restorative justice emphasizes bringing together various elements of the community to repair the harm done by a crime, transformative justice goes further by emphasizing the racist and heteropatriarchal forces leading to the crime and preventing the healing of both the harm doer and communities.
It is hard to criticize Angela Harris. She is, after all, a founder of critical race theory and critical race feminism. Her article in this symposium demonstrates the depth of her insights and clarity of her expression. Nonetheless, I want to challenge Harris on one point and extend her analysis on another. First, for reasons I will explain, I believe it is crucial for scholars to start referring to so-called “mass incarceration” as “hyper-incarceration.” Second, I want to extend Harris’s analysis of the multidimensionality of identities by means of a case study of how class operates during the drug war era, as depicted in the critically acclaimed HBO drama The Wire.
To establish those arguments, this essay proceeds as follows. Part I explains the importance of the term “hyper-incarceration.” Part II defines a multidimensional masculinities approach to the relationships between identities, culture, and law. Part III uses an analysis of The Wire to argue that identity theorists should pay greater attention to capitalism. Part IV concludes that addressing hyper-incarceration requires simultaneously reducing the stigma attached to racial minority men and rebuilding economic structures in the inner-city.
"Marijuana legalized for the first time in state ballot initiatives"
Marijuana will become legal in Colorado [Amendment 64, PDF] andWashington [Initiative 502, PDF] after voters passed ballot initiatives Tuesday to legalize marijuana for the first time on a statewide basis. In Washington voters approved an Initiative to the Legislature to allow the possession and distribution of marijuana through a state-licensing system of marijuana growers, processors and stores, whereadults can buy up to an ounce [AP report]. The Colorado initiative actually introduces an amendment to the state constitution, allowing adults over 21 to possess up to an ounce and to privately grow up to six plants, although public use will be banned. In nearby Oregon theCannabis Tax Act Initiative [Measure 80, PDF] failed by approximately 55-to-45 percent[Examiner.com report] of the vote.
Kinports on Culpability, Deterrence, and the Exclusionary Rule
Kit Kinports (Pennsylvania State University - Dickinson School of Law) has posted Culpability, Deterrence, and the Exclusionary Rule (William & Mary Bill of Rights Journal, Forthcoming) on SSRN. Here is the abstract:
This Article discusses the Supreme Court’s use of the concepts of culpability and deterrence in its Fourth Amendment jurisprudence, in particular, in the opinions applying the good-faith exception to the exclusionary rule. The contemporary Court sees deterrence as the exclusionary rule’s sole function, and the Article begins by taking the Court at its word, evaluating its exclusionary rule case law on its own terms. Drawing on three different theories of deterrence – economic rational choice theory, organizational theory, and the expressive account of punishment – the Article analyzes the mechanics by which the exclusionary rule deters unconstitutional searches and questions the Court’s recent decision to incorporate the culpability of the police officer into the deterrence calculus. Given the empirically speculative nature of the deterrence inquiry, the Article then pushes back on the Court’s one-dimensional emphasis on deterrence, comparing other areas where law has a deterrent aim and finding that they – like the Court’s earlier version of the exclusionary rule – are designed to serve other interests as well. The Article concludes that balancing other non-deterrence goals in determining the reach of the exclusionary rule would eliminate the need to focus exclusively on the intractable questions surrounding deterrence and thereby help inform the structuring of the remedy.
November 6, 2012
Davies on Mr. District Attorney and Other Fictional Lawyers in Legal Culture
Ross E. Davies (George Mason University School of Law) has posted The Popular Prosecutor: Mr. District Attorney and the Television Stars of American Law (Green Bag 2d, Vol. 16, No. 1, Autumn 2012, pp. 61-68) on SSRN. Here is the abstract:
What follows at pages 69-108 is the second installment of Mr. District Attorney on the Job (1941) – the only book of adventures of the fictional prosecutor who starred on radio from the late 1930s to the early 1950s. (He was known only as “Mr. District Attorney” until 1952, when he also became “Paul Garrett.”) He was tremendously popular with the listening public in those days, as leading modern scholars of law and popular culture have noted. Yet, unlike the heroes of some other golden-age radio dramas – Perry Mason, for example, or Joe Friday of Dragnet – Mr. District Attorney did not successfully transition to television. Moreover, in the years since television superseded radio, other fictional lawyers have come to the fore on-screen – Arnie Becker (of L.A. Law), Patty Hewes (of Damages), Charles Kingsfield (of The Paper Chase), Ben Matlock, Ally McBeal, Jack McCoy (of Law & Order), Horace Rumpole (of the Bailey), and the like. Thus, having survived and not thrived for only a few years on television, Mr. District Attorney has been largely forgotten and is today no more than a radio fossil. His place in the minds of lawyers has been taken over by the moderns. Or has it? Who are, really, the fictional television lawyers whose presence in our legal culture is so significant that it translates into appearances in the works of judges, practitioners, and legal scholars?The numbers presented on the following pages are not sufficient on their own to support unassailable answers to those questions, but they might be enough to prompt some preliminary thoughts. [NOTE: For a copy of the story referred to in this article (pages 69-108), please contact the author.]
Swisher on Prosecutorial Conflicts in Post-Conviction Practice
Keith Swisher (Phoenix School of Law) has posted Prosecutorial Conflicts of Interest in Post-Conviction Practice (Hofstra Law Review, Vol. 41, No. 1, 2013) on SSRN. Here is the abstract:
Prosecutors, our ministers of justice, do not play by the same conflict of interest rules. Other attorneys should not, and cannot, attack their prior work in transactional or litigation matters; nor should other attorneys represent clients in matters in which the attorneys themselves face disciplinary, civil, or criminal liability. When prosecutors have likely convicted an innocent person, however, prosecutors are asked to review their own prior work objectively and then to undo it. But they suffer from a conflict between their duty to justice and their duty to themselves - their duty to seek the release of the innocent person and their interest in avoiding embarrassment and liability for themselves and their offices. After I show a variety of ways these conflicts cause problems, I show that they can be solved or mitigated by simply restructuring the post-conviction review process.
Cannon et al. on Antisocial Personality Disorder and Therapeutic Justice Court Programs
Andrew J. Cannon , Rebekah Doley , Claire Ferguson and Jonathan Brooks (affiliation not provided to SSRN , affiliation not provided to SSRN , affiliation not provided to SSRN and Organization for Economic Co-Operation and Development (OECD)) have posted Antisocial Personality Disorder and Therapeutic Justice Court Programs (Journal of Judicial Administration, Vol. 22, No. 2, pp. 99, October 2012) on SSRN. Here is the abstract:
It has become commonplace for courts to supervise an offender as part of the sentencing process. Many of them have Anti Social Personality Disorder (ASPD). The focus of this article is how the work of specialist and/or problem solving courts can be informed by the insights of the psychology profession into the best practice in the treatment and management of people with ASPD. It is a legitimate purpose of legal work to consider and improve the well-being of the participants in the legal process. Programs designed specifically to deal with those with ASPD could be incorporated into existing Drug Courts, or implemented separately by courts to aid with reforming offenders with ASPD and in managing the re-entry of offenders into the community as part of their sentence. For the success of this initiative on the part of the court, ASPD will need to be specifically diagnosed and treated. Close co-operation between courts and psychologists is required to improve the effectiveness of court programs to treat people with ASPD and to evaluate their success.
November 5, 2012
Myers on Challenges to Terry
Richard Myers (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Challenges to Terry for the Twenty-First Century (Mississippi Law Journal, Vol. 81, No. 5, 2012) on SSRN. Here is the abstract:
In this Article, the author argues that the Terry regime has a range of costs that may not be fully appreciated. It may cost us information in situations where probable cause does exist, because inarticulate police officers do not do a good job at recounting fast-moving events on the ground. Moreover, recasting the event in Terry terms may lead to memory contamination. The author argues that the rise of body-worn video will help the courts find a way forward, and that the constitutional regime needs the flexibility to allow courts to consider Fourth Amendment reasonableness based on all available information.
Kleinfeld on Criminal Victimization
Joshua Kleinfeld (Northwestern University - Northwestern University school of law) has posted A Theory of Criminal Victimization (Stanford Law Review, Vol. 65, 2013, Forthcoming) on SSRN. Here is the abstract:
Criminal punishment is systematically harsher, given a fixed crime, where victims are vulnerable or innocent, and systematically less harsh where victims are powerful or culpable. We make a distinction between one gangster attacking another and a gangster attacking a bystander (though the assaults might be formally identical), or between selling drugs to an adult and selling them to a child (though the penal code might treat the two as the same). Yet this pattern in blame and punishment has been overlooked. Criminal scholarship and moral philosophy have offered no theory by which to explain it. And, lacking a theory, the pattern itself has been missed or misunderstood empirically.
This Article sets forth the concept of “victimization” — the idea that the moral status of a wrongful act turns in part on the degree to which the wrong’s victim is vulnerable or innocent and the wrongdoer preys upon that vulnerability or innocence. It shows the concept to be implicit in both the doctrine and practice of criminal law. And it argues normatively that victimization is at the same time essential to criminal justice and peculiarly prone to illiberal distortions, and should therefore be at once preserved and constrained.
A concluding section reflects methodologically on the paper’s approach to moral philosophy in law — an approach in which the law is not just a tool with which to implement the conclusions of an extralegal philosophical inquiry, but an object of study with a certain immanent moral content already in place, which philosophy can help bring to light and expose to question.