CrimProf Blog

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday, Nov. 28

• Henderson v. U.S.: Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should applyJohnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.
  

Lawson on the Trayvon Martin Killing

Tamara Francita Lawson (St. Thomas University School of Law) has posted A Fresh Cut in an Old Wound – A Critical Analysis of the Trayvon Martin Killing: The Public Outcry, the Prosecutors’ Discretion, and the Stand Your Ground Law (University of Florida Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, a victim of a dark(er) hue. It acknowledges the implanted counter-narrative that dehumanized “Trayvon the victim” and, instead, labeled him, “Trayvon the thug,” even though he was not a criminal, and unarmed when he was shot. The mixture of these specific facts in the case represented a shared trigger point in the Black community that generated a visceral reaction based on its relation-back to past and systematic injustices.

This essay identifies both the race-neutral as well as the racialized factors that may have influenced the Sanford prosecutor’s initial decision not to file criminal charges in this case. Based on the breadth, intensity, and duration of the local, national, and international outcry, the atmosphere surrounding the case became increasingly tense and, as a result, a special prosecutor was appointed to re-evaluate the charging decision. By applying Derrick Bell’s “interest convergence theory” to the analysis, this essay provides a reasoned explanation for the special prosecutor’s decision to charge George Zimmerman with murder and identifies the combined role that law and politics play in the exercise of prosecutorial discretion. Further, this essay analyzes the unique contours of Florida’s Stand Your Ground Law as it applies to the Martin killing and how the law may have influenced the initial decision not to charge Zimmerman. Also, the broader policy ramifications of the law will be addressed. This essay will query whether The Stand Your Ground Law wrongly condones lethal force by prematurely bestowing immunity from prosecution upon otherwise suspect criminal conduct.

Wils on Antitrust Compliance and Enforcement

Wouter P. J. Wils (King's College London - School of Law) has posted Antitrust Compliance Programmes & Optimal Antitrust Enforcement (Journal of Antitrust Enforcement, Volume 1, Issue 1, April 2013, Forthcoming) on SSRN. Here is the abstract:

Should companies that have antitrust compliance programmes be granted a reduction in the amount of fines or even immunity from fines when they are found to have committed antitrust infringements? Should the absence of a compliance programme constitute an aggravating factor leading to higher fines for antitrust infringements? Should the adoption of a compliance programme be imposed as part of infringement decisions or settlements? These are the questions which this paper examines, on the basis of an analysis of the nature of antitrust infringements, the rationale of company liability for antitrust infringements, and the possible positive and possible negative effects of compliance programmes.

Gilchrist on Expressivism and Corporate Liability

Gregory M. Gilchrist (University of Toledo College of Law) has posted Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

This is the second of two articles on the expressive aspects of corporate criminal liability. The first article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions, and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. The article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat superior liability – holding corporations criminally liable where there is no basis to condemn the corporate qua corporation – is the most significant expressive failure. It is also the easiest to fix: allow corporations a good faith defense against criminal liability. Good faith defenses have been proposed before, but this is the first proposal based on the expressive impact of the defense. A good faith defense will limit the application of corporate criminal liability to those instances where there is a basis to condemn the corporation as a whole, thus realigning the expression inherent in criminal punishment with commonly-held views about blaming corporations.

Cooper on Traumatization of Child Witnesses

Tanya Asim Cooper (University of Alabama - School of Law) has posted Sacrificing the Child to Convict the Defendant: Secondary Traumatization of Child Witnesses by Prosecutors, Their Inherent Conflict of Interest, and the Need for Child Witness Counsel (Cardozo Public Law, Policy and Ethics Journal, Vol. 9, Page 239, 2011) on SSRN. Here is the abstract:

In criminal cases, prosecutors often compound the trauma child witnesses endure. That secondary traumatization — the intimidation and disregard of child witnesses by authorities — threatens the integrity of the entire criminal justice system. While unfortunate, perhaps secondary traumatization of child witnesses by prosecutors is inevitable because prosecutors have multiple duties to juggle besides attending to the child. Prosecutors must protect society and even respect the rights of the accused. Fulfilling these other prosecutorial duties might conflict with the needs and wishes of the child witnesses. Because prosecutors have multiple roles and responsibilities, which they interpret differently, and because the Supreme Court has recently made prosecuting crimes against children more difficult, the potential for prosecutors to mistreat their complaining child witnesses, even unwittingly, has increased. To combat this problem, child witnesses need lawyers. The need for independent counsel with clearly defined roles for representing child witnesses in criminal cases is timely, and for children’s rights advocates, it is the “next frontier.”

Ip on Reform of Counterterrorism Stop and Search

John Ip (University of Auckland - Faculty of Law) has posted The Reform of Counterterrorism Stop and Search after Gillan v. United Kingdom on SSRN. Here is the abstract:

This paper considers the reform of the power to stop and search originally conferred by sections 44 to 47 of the Terrorism Act 2000. These sections permitted executive branch actors to authorise stops and searches of vehicles and pedestrians within a broad geographical area for up to 28 days. Police officers could then employ this power to search for any articles which could be used in connection with terrorism, irrespective of whether they had grounds for suspecting the presence of articles of that kind. These sections essentially created two broad discretions: a “front-end discretion” of a senior police officer and the Secretary of State as to whether to make an authorisation and confirm an authorisation, and a “back-end discretion” of an individual officer as to whom to target for a stop and search. 

In Gillan & Quinton v United Kingdom [2010] ECHR 28, the European Court of Human Rights ruled that the stop and search power under sections 44 to 47 of the Terrorism Act violated Article 8 of the ECHR. This precipitated a series of changes to counterterrorism stop and search in the United Kingdom. This paper details those changes, and considers whether they are sufficient to ensure compliance with the Gillan decision. Next, the paper discusses the role that various political and legal institutions have played in scrutinising the operation of this particular counterterrorism power and how they have contributed to its eventual reform. The argument here is that the reform of counterterrorism stop and search suggests that courts, legislative bodies, and other mechanisms of oversight and review all have important and complementary roles to play in ensuring appropriate governance of executive counterterrorism activities.

"Senate bill rewrite lets feds read your e-mail without warrants"

From FourthAmendment.com:

Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.

"San Francisco Officials Approve a Ban on Public Nudity"

From the New York Times:

Under the new ordinance, public nudity will be subject to a series of fines. A first-time violation would result in a fine of up to $100. A second citation in the same year would cost up to $200, and a third would result in a fine of up to $500 or a misdemeanor and up to one year in jail.

. . .

As long as it is not lewd or offensive, public nudity is legal under state law. But on Tuesday, San Francisco joined many other cities that prohibit it, including nearby San Jose and Berkeley.

. . .

Preschoolers can still go bare, women can still go topless and public nudity will continue to be allowed at events permitted by the city, including the annual gay pride parade and the Folsom Street Fair, a street party billed as the largest leather and fetish event in the world.

Bouhours & Broadhurst on Violence Against Women in Hong Kong

Brigitte Bouhours and Roderic Broadhurst (Australian National University (ANU) and Australian National University (ANU)) have posted Violence Against Women in Hong Kong: Results of the International Violence Against Women Survey on SSRN. Here is the abstract:

The International Violence Against Women Survey (IVAWS) was conducted in Hong Kong in 2006 and nearly 1,300 women took part in the telephone survey. One in five respondents experienced at least one incident of violence since age 16. Sexual violence (13.4%) was more frequently reported than physical violence (11.7%). Women were more likely to be abused by intimate partners and other known men (13.5%) than by strangers (8%). Compared to other countries surveyed by the IVAWS, Hong Kong recorded among the lowest rates of violence by both intimate partners and non-partners. These results suggest that cultural influences linked to the interaction of modernization and some protective factors found in the adherence to traditional Chinese values may be at play.

Tadros on Punishment and Duty

Victor Tadros (University of Warwick - School of Law) has posted Punishment and Duty (Chapter 12 'The Ends of Harm: The Moral Foundations of Criminal Law' (OUP, 2011)) on SSRN. Here is the abstract:

This chapter defends the Duty View of punishment. According to this view, the permissibility of punishing offenders for reasons of general deterrence are grounded in the enforceable duties that offenders incur as a result of their wrongdoing. This view is defended by examining the relationship between self-defence, compensatory harm, and punishment. The chapter aims to demonstrate that the main differences between self-defence and punishment do not provide morally compelling reasons against punishing offenders on defensive grounds. Harming offenders as a means to avert threats posed by others can be justified in virtue of the duties that offenders owe to their victims - duties that they incur by wronging their victims.

Dolovich on Teaching Prison Law

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Teaching Prison Law (62 Journal of Legal Education 218 (2012)) on SSRN. Here is the abstract:

To judge from the curriculum at most American law schools, the criminal justice process starts with the investigation of a crime and ends with a determination of guilt. But for many if not most defendants, the period from arrest to verdict (or plea) is only a preamble to an extended period under state control. It is during the administration of punishment that the state’s criminal justice power is at its zenith, and at this point that the laws constraining the exercise of that power become most crucial. Yet it is precisely at this point that the curriculum in most law schools falls silent. This essay argues that that silence is a problem, and that American law schools should expand their curricular offerings to include some class or classes covering the post-conviction period. There are innumerable arguments supporting this reform. These include the sheer number of people in custody, the extreme vulnerability of this population and its enormous unmet legal need, and the fact that any law student who is planning a career in criminal justice — and thus involved in the process by which people are sent to prison — should be exposed to the realities of the American penal system and its governing legal framework. This essay canvasses these and other reasons for the proposed reform, suggests what a course in Prison Law might cover, sketches the possible contents of a broader post-conviction curriculum, and argues that the current gap in the course offerings of most law schools only reinforces the invisibility of vast carceral system currently operating in the United States and the millions of Americans caught up in it.

Robbins on Disclosure of "Bad Juror" Lists

Ira P. Robbins (American University - Washington College of Law) has posted 'Bad Juror' Lists and the Prosecutor's Duty to Disclose (Cornell Journal of Law and Public Policy, Vol. 22, No. 1, 2012) on SSRN. Here is the abstract:

Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts. 

This Article addresses the prosecutor’s duty to disclose bad-juror lists.

It reviews the federal Freedom of Information Act, a variety of state open-records acts and their exemptions, the work-product doctrine, the fundamental-fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death-penalty cases). The Article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of bad-juror lists. 

The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	546	The Curious History of Fourth Amendment Searches  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: October 1, 2012
2	366	Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research  Keith A. Findley,  University of Wisconsin Law School,  Date posted to database: October 11, 2012 [3rd last week]
3	211	Prison Visitation Policies: A Fifty State Survey  Chesa Boudin, Trevor Stutz, Aaron Littman,  Yale University - Law School, Yale University - Law School, Yale University - Law School,  Date posted to database: November 6, 2012 [new to top ten]
4	203	The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law  Emad Hanzala Atiq,  Yale University, Law School,  Date posted to database: October 18, 2012
5	165	Standing Up for Mr. Nesbitt  Stephen W. Smith,  Texas Southern University - Thurgood Marshall School of Law,  Date posted to database: September 8, 2012
6	163	Judith Shklar on the Philosophy of International Criminal Law  Samuel Moyn,  Columbia University,  Date posted to database: September 20, 2012
7	154	If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law  Jan M. Smits, Andrei Ernst, Steven Iseger, Nida Riaz,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI), Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: October 10, 2012 [10th last week]
8	152	Social Networks and Risk of Homicide Victimization in an African American Community  Andrew V. Papachristos, Christopher Wildeman,  Yale University - Department of Sociology, Yale University - Department of Sociology,  Date posted to database: September 19, 2012 [7th last week]
9	152	Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases  Tigran Eldred,  New England Law | Boston,  Date posted to database: October 2, 2012
10	150	Overdetermined Atrocities  James G. Stewart,  University of British Columbia (UBC) - Faculty of Law,  Date posted to database: September 26, 2012 [new to top ten]