December 1, 2012
Second Annual NACDL White Collar Criminal Defense College at Stetson
If you have former students who are new to the white collar defense world, they may be interested in this "boot-camp" program for practitioners wishing to gain key advocacy skills and learn substantive white collar law. The program will be held from January 9-13th in Gulfport, Florida. For more information, click here or contact Ellen S. Podgor at email@example.com.
November 30, 2012
Lasch on Federal Immigration Detainers After Arizona v. United States
Christopher N. Lasch (University of Denver Sturm College of Law) has posted Federal Immigration Detainers After Arizona v. United States (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:
The Court’s June 25, 2012 decision in Arizona v. United States struck down three of the four challenged sections of Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act,” colloquially known simply as “S.B. 1070.” Two of these provisions created state crimes to punish immigrants for not carrying federally required registration documents and for seeking work without authorization; the third provision expanded state arrest authority to allow police to arrest suspected immigration violators. The Court held that these legislative efforts were preempted by comprehensive federal regulation of immigration enforcement. The Court additionally left open the possibility that the fourth challenged provision of S.B. 1070, requiring Arizona police officers to run immigration status checks on suspected immigration violators, might be held unconstitutional or preempted, depending on how the law is actually applied.
This Article explores a less obvious consequence of Arizona: its implications for the continuing viability of a critical federal enforcement mechanism, the immigration detainer. The Arizona decision saps the vitality out of this mechanism, and exposes it as far exceeding any Congressional grant of authority and as conflicting with the Fourth Amendment principles discussed in the opinion.
I begin in Part II with a discussion of the context in which S.B. 1070 was passed, a brief history of the litigation over S.B. 1070, and the Arizona decision. The ongoing civil rights battle over immigration brought to the fore issues of racial profiling and the debate over whether states possess “inherent authority” to enforce the immigration laws. Arizona failed to put these issues to rest and the Court’s silence ensures ongoing controversy and litigation. Digesting the Arizona opinion, I address in turn: (1) the majority’s preemption analysis (and its failure to address the civil rights issues) with respect to the four challenged provisions of S.B. 1070; (2) the Fourth Amendment discussion among the Justices, attendant to the question of whether state officials may subject suspected immigration violators to prolonged detention; and (3) the omission by the Justices — except for Justice Scalia — of any discussion of a state’s “inherent authority” or police power with respect to immigration enforcement.
The remainder of the Article assesses the effect Arizona will have on the federal government’s use of immigration detainers to obtain custody over prisoners held by other law enforcement agencies. Ironically, while Arizona trumpets the supremacy of the federal government in the field of immigration, the opinion has negative implications for the federal government’s central enforcement mechanism for obtaining custody of suspected immigration violators. The legality of the immigration detainer system put in place by the executive branch can be analyzed through the same doctrinal frames seen in Arizona — preemption and the Fourth Amendment concerns with prolonged detention.
I proceed to that analysis in Part III, addressing Arizona’s impact on federal authority to issue immigration detainers requiring other law enforcement officials to prolong the detention of their prisoners. I conclude that the detainer regulation purporting to allow this is ultra vires for the same reason the Arizona Court held parts of S.B. 1070 preempted — the executive branch’s detainer regulation is flatly inconsistent with the comprehensive enforcement regime established by Congress. Additionally, there are substantial Fourth Amendment problems with the immigration detainer regulation that are illuminated by the Fourth Amendment discussion in Arizona. The regulation is invalid because of these substantial constitutional questions.
Papke on Capital Punishment in Cinema
David Ray Papke (Marquette University - Law School) has posted Muted Message: Capital Punishment in the Hollywood Cinema on SSRN. Here is the abstract:
Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.
November 29, 2012
Sundby on McClesky v. Kemp
Scott E. Sundby (University of Miami School of Law) has posted The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure on SSRN. Here is the abstract:
Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice.
Justice Powell’s opinion, especially the final section of the decision, also provides important lessons about how a judicial opinion communicates messages that reach beyond the holding itself. Indeed, the Article compares Powell’s opinion to the concurrence that Justice Scalia proposed but never wrote – a concurrence that would have acknowledged that “irrational sympathies and antipathies including racial” inevitably enter a capital jury’s decision, but then would have found no constitutional violation. The Article ultimately asks: although Scalia’s position might have provoked outrage, might not its candor in the long run have produced a more constructive response than Powell’s opinion which appeared to adopt a position of willful blindness towards the existence of racial bias?
Dutton on Virtual Witness Confrontation in Piracy Trials
Yvonne Dutton (Indiana University Robert H. McKinney School of Law) has posted Virtual Witness Confrontation in Criminal Cases: A Proposal to Use Videoconferencing Technology in Maritime Piracy Trials (Vanderbilt Journal of Transnational Law, Vol. 45, p. 1283, 2012) on SSRN. Here is the abstract:
Maritime piracy is a serious problem, yet states are not prosecuting captured pirates with any regularity. One of the many reasons cited to explain this phenomenon focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. In an effort to help close the impunity gap that surrounds piracy, this Article offers a potential solution to the difficulties associated with obtaining live witness testimony. It proposes a rule to allow witnesses under some circumstances to testify remotely by way of two-way, live videoconferencing technology. While remote testimony need not become the norm in maritime piracy cases, the proposed rule is carefully structured to balance both the public’s and the defendant’s interest in a fair trial.
Cassell & Goodwin on Preliminary Hearings for Misdemeanors
Paul G. Cassell (pictured) and Thomas E. Goodwin (University of Utah - S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law) have posted Protecting Taxpayers and Crime Victims: The Case for Restricting Utah's Preliminary Hearings to Felony Offenses (Utah Law Review, Vol. 2011, No. 4, 2011) on SSRN. Here is the abstract:
Recently Utah became the only state in the nation to interpret its constitution to require preliminary hearings for certain classes of misdemeanors. In State v. Hernandez, the Utah Supreme Court held that for “Class A” misdemeanors (misdemeanors punishable by up to a year in jail), article I, section 13 of the Utah Constitution required preliminary hearings. Article I, section 13 provides for preliminary hearings for “[o]ffenses heretofore required to be prosecuted by indictment.” The court concluded that the phrase “offenses heretofore required to be prosecuted by indictment” referred not only to felony offenses but under Utah’s modern classification of offenses, to Class A misdemeanors as well.
This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy.
November 28, 2012
Cohen on McCleskey's Omission
G. Ben Cohen (The Justice Center's Capital Appeals Project) has posted McCleskey's Omission: The Racial Geography of Retribution (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was.
This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment. A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level. The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution.
Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty.
The United States Supreme Court decision in Kennedy v. Louisiana, calls for further inquiry concerning the role of retribution in supporting the validity of the capital punishment. In Kennedy, the Court warned that “retribution” “most often can contradict the law’s own ends . . . When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.”
Argument on applicability of plain error standard to unsettled issues as of time of trialThe transcript in Henderson v. United States is here.
Yaroshefsky on Prosecutorial Disclosure in Practice
Ellen Yaroshefsky (Yeshiva University - Benjamin N. Cardozo School of Law) has posted New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson (Georgetown Journal of Legal Ethics, Vol. 25, No. 913, 2012) on SSRN. Here is the abstract:
The New Orleans Prosecutor's office under the 30 year leadership of Harry Connick was notorious for its failures to comply with constitutional requirements to disclose favorable information to the defense. The Supreme court in a range of cases including its 2011 decision in Connick v. Thompson, excoriated the prosecutor's office for its failures.
Leon Cannizzaro, elected as New Orleans prosecutor in 2008, made significant changes in that office. This article, the result of in depth interviews with key stakeholders in the New Orleans criminal justice system, including former prosecutors, examines the extent and effect of the policy and practice changes. It concludes with a series of proposals to improve disclosure practices in New Orleans that are applicable to other jurisdictions.
November 27, 2012
Barnes on Responses to Lone Wolf Terrorism
Beau Barnes has posted Confronting the One-Man Wolf Pack: Adapting Law Enforcement and Prosecution Responses to the Threat of Lone Wolf Terrorism (Boston University Law Review, Vol. 92, No. 1613, 2012) on SSRN. Here is the abstract:
In recent years, a new type of terrorist threat has emerged: the "lone wolf." Lone Wolves present a challenge for current law enforcement and prosecutorial approaches to combating terrorism because these individuals are radicalized without significant contact with others and operate alone. The tools currently available to law enforcement and prosecutors focus on exploiting the vulnerabilities and liabilities created through group interactions, a "preventive" approach to terrorism that is inapplicable to the solitary terrorist.
This Note argues, however, that lone wolves - poorly trained individuals operating alone with minimal equipment against relatively unimportant targets - do not pose a significant threat to the United States. Indeed, the very traits that make lone wolves difficult to apprehend mitigate the damage lone wolves can effect. Therefore, a heavy-handed policy response is unnecessary and, in light of a proper understanding of the concept of "national security," ultimately counterproductive. Because of lone wolves' isolation, no readily available set of policies is likely to have a significant effect. Even if it were feasible to completely eliminate lone wolf terrorism, such an effort would not be worth the inevitably high cost, both in the allocation of scarce resources and the necessary infringements on civil liberties.
Kim on Proof of International Sex Crimes
Sangkul Kim (Korea University - Law School) has posted The Means of Proof of International Sex Crimes (Understanding and Proving International Sex Crimes, Morten Bergsmo, Alf Butenschon and Elizabeth J. Wood, eds., FICHL Publication Series, no. 12, pp. 225-265, 2012) on SSRN. Here is the abstract:
This paper is about proving international sex crimes (in particular, rape, forced marriage and sexual slavery) provided in the statutes of international criminal courts such as the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the Special Court of Sierra Leone. On the basis of a careful review of the relevant case law of those international courts, this paper sets out the means of proof (specific facts) discussed, analyzed and accepted as fulfilling each element of international sex crimes. The term ‘means of proof’ indicates evidence in respect of which a positive evaluation has been completed by adjudicators — ‘positive’ in the sense of substantively supporting the establishment of an element of a crime. For instance, as to the contextual element of crimes against humanity, the element of the ‘widespread or systematic attack’ can be proved by the means of proof of the ‘scale of the attack,’ the ‘pattern of the attack’ and the ‘organized nature of the attack.’ This paper is composed of four main sections: (i) Rape; (ii) Forced Marriage as Other Inhumane Act; (iii) Sexual Slavery in the Jurisprudence of the Special Court of Sierra Leone; and (iv) Enslavement Based on Rape in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia. For the purpose of this paper, means of proof of material elements (as opposed to the mental elements) are the main object of research.
November 26, 2012
Green on Prosecutors and Professional Regulation
Bruce A. Green (Fordham University School of Law) has posted Prosecutors and Professional Regulation (Georgetown Journal of Legal Ethics, Vol. 25, p. 873, 2012) on SSRN. Here is the abstract:
Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, then considering three recent examples: the NDAA’s opposition to a broad reading of Model Rule 3.8(d)’s disclosure obligation; some prosecutors’ opposition to states’ adoption of the post-conviction obligations of Model Rules 3.8(g) and (h); and the Queens County, NY, district attorney’s opposition to a trial court’s consideration of the ethical propriety of his office’s post-arrest interrogation practices. The article argues that prosecutors’ anti-regulatory rhetoric undermines the culture of prosecutors’ offices and is contrary to the public interest in other ways.
Jacobs & Blitsa on Employment Vetting of Sex Offenders
James Jacobs (pictured) and Dimitra Blitsa (New York University School of Law) have posted US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children (European Journal on Crime, Criminal Law & Criminal Justice) on SSRN. Here is the abstract:
Fear and anxiety about sexual predators who target children has stimulated legal initiatives in the US, EU and UK to encourage/require background screening for public and private sector job applicants and volunteers for positions that afford access to children. This Article examines the political, legal and logistical challenges that such initiatives have and are facing in three important legal regimes.
November 25, 2012
Top-Ten Recent SSRN Downloads
|1||565||The Curious History of Fourth Amendment Searches
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: October 1, 2012
|2||376||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
|3||283||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
|4||207||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
James G. Stewart,
University of British Columbia (UBC) - Faculty of Law,
Date posted to database: September 26, 2012 [10th last week]
|6||163||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 [7th last week]
|7||162||Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases
New England Law | Boston,
Date posted to database: October 2, 2012 [9th last week]
|8||157||The Crime and Punishment of States
Harvard Law School,
Date posted to database: October 22, 2012 [new to top ten]
|9||136||Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories
Leiden University - Grotius Centre for International Legal Studies,
Date posted to database: September 27, 2012 [new to top ten]
|10||135||Exclusion and Control in the Carceral State
University of California, Los Angeles - School of Law,
Date posted to database: November 6, 2012 [new to top ten]