Saturday, March 3, 2012
Robert J. Smith and Bidish Sarma (DePaul University College of Law and The Justice Center's Capital Appeals Project) have posted How and Why Race Continues to Influence the Administration of Criminal Justice in Louisiana (Louisiana Law Review, Vol. 72, p. 361, 2012) on SSRN. Here is the abstract:
"In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world. That is what I have done. And that is what I must continue to do."
Reed Walters, district attorney in LaSalle Parish responsible for prosecuting the Jena Six (Justice in Jena, N.Y. Times, Sept. 26, 2007).
"[These laws] do not on their face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them. It follows, therefore, that the judgment [upholding these laws] must be affirmed."
The Supreme Court’s retreat over the last thirty-plus years from the expansive Fourth Amendment and robust exclusionary rule of Katz and Mapp – the backwards march accompanied by the steady drumbeat of the threat of unsolved crimes and unpunished criminals – provides the narrative structure to criminal procedure classes everywhere. More recently and less obviously, the scope and enforcement of the Brady v. Maryland disclosure rule has been similarly curtailed. Connick v. Thompson, limiting municipal liability for Brady violations under § 1983, is the latest example; in the last ten years the Court has also called into serious doubt the application of Brady to the plea bargaining process and repeatedly adopted restrictive interpretations of the statute governing federal habeas for state prisoners, an important avenue for establishing Brady violations. This trend is more difficult to explain, at least at first glance.
Philip Rumney and Natalia Hanley (University of the West of England and University of Melbourne) have posted ‘The Mythology of Male Rape: Social Attitudes and Law Enforcement’ (RETHINKING RAPE LAW: NATIONAL, INTERNATIONAL AND EUROPEAN PERSPECTIVES, Chapter 20, pp. 295-307, C. McGlynn, V. Munro, eds., Routledge, 2010) on SSRN. Here is the abstract:
This chapter discusses findings resulting from focus group research which examined attitudes to male rape.
Friday, March 2, 2012
Owen D. Jones (pictured) and Francis X. Shen (Vanderbilt University - Law School & Dept. of Biological Sciences and Tulane University Law School & The Murphy Institute) have posted Law and Neuroscience in the United States (INTERNATIONAL NEUROLAW: A COMPARATIVE ANALYSIS, p. 349, T.M. Spranger, ed., Springer-Verlag, 2012) on SSRN. Here is the abstract:
Neuroscientific evidence is increasingly reaching United States courtrooms in a number of legal contexts. And the emerging field of Law and Neuroscience is being built on a foundation that joins: a) rapidly developing technologies and techniques of neuroscience; b) quickly expanding legal scholarship on the implications of neuroscience; and c) neuroscientific research designed specifically to explore legally relevant topics.
Eric Segall (Georgia State University College of Law) has posted The Internet as a Game Changer: Reevaluating the True Threats Doctrine (Texas Tech Law Review, Vol. 44, p. 183, 2011) on SSRN. Here is the abstract:
This essay, based on a presentation at the 2011 Criminal Law Symposium: Criminal Law & the First Amendment, held at Texas Tech University School of Law on April 8, 2011, addresses the problem of "true threats," on he internet. This paper argues that the Supreme Court generally overprotects speech as compared to other western democracies, and that the Court should be more concerned than prior cases would suggest with the harm caused by individually-directed threatening speech, especially when such threats are made over the internet. The essay also suggests that the lower courts are in disarray on the subject and need clearer guidance from the Supreme Court on what does and what does not constitute a "true threat."
Kyle Graham (Santa Clara University School of Law) has posted Crimes, Widgets, and Plea Bargaining: An Analysis of Charge Content, Pleas, and Trials (California Law Review, Forthcoming) on SSRN. Here is the abstract:
This article considers how the composition and gravamen of a charged crime can affect the parties’ willingness and ability to engage in plea bargaining. Most of the prevailing descriptions of plea bargaining ignore or discount the importance of charge content in plea negotiations. In fact, one leading commentator has likened crimes to widgets insofar as plea bargaining is concerned. In developing its counter-thesis, this article reviews seven years of federal conviction data, focusing on those crimes that produce the most and fewest trials relative to how often they are alleged; the most and fewest acquittals at trial; and the most and fewest plea bargains that involve a substantial alteration in charges.
Stephen Morse (University of Pennsylvania Law School) has posted Protecting Liberty and Autonomy: Desert/Disease Jurisprudence (San Diego Law Review, Vol. 48, p. 1077, 2011) on SSRN. Here is the abstract:
This contribution to a symposium on the morality of preventive restriction on liberty begins by describing the positive law of preventive detention, which I term "desert/disease jurisprudence." Then it provides a brief excursus about risk prediction (estimation), which is at the heart of all preventive detention practices. Part IV considers whether proposed expansions of desert jurisprudence are consistent with retributive theories of justice, which ground desert jurisprudence. I conclude that this is a circle that cannot be squared. The following Part canvasses expansions of disease jurisprudence, especially the involuntary civil commitment of mentally abnormal, sexually violent predators, and the use of post-insanity acquittal involuntary commitment. This Part also considers whether disease jurisprudence might justifiably be extended to problematic classes of agents such as psychopaths. I argue that sexual predator commitments are blatantly punishment by other means despite the Supreme Court's approval of them as forms of civil commitment and that other attempts to expand disease jurisprudence are artificial or unworkable. Next, I consider frankly consequentialist approaches to preventive detention. I suggest that they are conceptually coherent but politically and practically unacceptable. A brief conclusion suggests that the respect for liberty and autonomy is best guaranteed by genuine desert and disease limitations on detention, although there will be a cost to public safety.
Thursday, March 1, 2012
Matthew Greenfield has this op-ed at Forbes, commenting on the lingering doubt in the Ryan Braun drug-use case. In part:
The Ryan Braun arbitration is more complicated—Braun, after all, maintains that he is innocent—but would benefit no less from a private remedy regime. Only the arbitration panel knows whether it was persuaded by the mere technical irregularity or whether it doubted the reliability of the test result. If the panel could throw out the test result only because of unreliability (from suspected tampering), then a ruling in Braun’s favor would mean he could play baseball with his reputation unvarnished, while a ruling against Braun would mean that the procedural hiccup was purely procedural, that it had not affected the accuracy of the test, and that although he had doped he could still seek 1983-style redress for the botched sampling process. Players would be unable to escape the consequences of drug use through technicalities, officials would know that procedural missteps result in sanctions, and fans would know which players play honestly.
Michael L. Perlin (New York Law School) has posted 'Justice's Beautiful Face': Bob Sadoff and the Redemptive Promise of Therapeutic Jurisprudence (Journal of Psychiatry and Law, 2012) on SSRN. Here is the abstract:
Dr. Robert Sadoff’s career is a reflection of his commitment - both as a scholar and as an expert witness - to the values of care, the avoidance of harm, and the well-being of those who come in contact with the forensic system. These are commitments that resonate in the therapeutic jurisprudence literature.
One of the most important legal theoretical developments of the past two decades has been the creation and dynamic growth of therapeutic jurisprudence (TJ). Initially employed in cases involving individuals with mental disabilities, but subsequently expanded far beyond that narrow area, therapeutic jurisprudence presents a new model for assessing the impact of case law and legislation, recognizing that, as a therapeutic agent, the law that can have therapeutic or anti‐therapeutic consequences. The ultimate aim of therapeutic jurisprudence is to determine whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. There is an inherent tension in this inquiry, but Professor David Wexler - one of TJ’s “founding fathers” - clearly identifies how it must be resolved: “the law's use of “mental health information to improve therapeutic functioning [cannot] impinge upon justice concerns.” As I have written elsewhere, “An inquiry into therapeutic outcomes does not mean that therapeutic concerns `trump’ civil rights and civil liberties.”
Benjamin Levin has posted American Gangsters: RICO, Criminal Syndicates, and Conspiracy Law as Market Control (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract:
In an effort to re-examine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have been used to quash informal markets and subdue non-state actors that have threatened the hegemony of the state-supporting and state-derived formal market actors.
The Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth century criminal policy. Enacted in 1970, RICO provides broad criminal sanctions for individuals engaged in unacceptable organized activities. The statute has been used to prosecute Wall Street power players, labor leaders, activists, and others whose concerted actions violated the codes of the marketplace. I depart from traditional RICO scholarship by re-situating the passage of RICO and subsequent RICO prosecutions in a broader cultural and historical context. In doing so, I insert the political economy of conspiracy into the equation by suggesting that RICO has created powerful socio-legal axes between lawful collectives and outlaws that map societal actors according to their adherence to a set of market-based norms.
Very few rights in the Bill of Rights have not been incorporated against the states. In McDonald v. Chicago, the Court recently held that the Second Amendment right to bear arms, which the Court previously had decided was not incorporated, was incorporated. This decision left only three, what this Article terms, “nonincorporated” rights — the Fifth Amendment grand jury right, the Sixth Amendment criminal jury unanimity requirement, and the Seventh Amendment civil jury trial right — rights that the Court previously decided were not incorporated that remain not incorporated.
Camille Gear Rich (USC Gould School of Law) has posted Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation Law on SSRN. Here is the abstract:
This Article explains why child molestation law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes increasingly are being used to regulate parents’ behavior as they engage in mundane childcare practices traditionally deemed the domain of civil law regulation. The article further shows how these child molestation statutes end up being interpreted and enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers providing seemingly mundane intimate care. The Article explains why child molestation statutes are interpreted in the intimate care cases in ways that enforce gendered parenting norms, showing that legal decision-makers turn to these stereotypes because the concepts of sexual injury at the heart of child molestation law are radically undertheorized. The Article considers the role feminist legal theory has played in this undertheorization problem, addresses the stumbling blocks to future feminist theorizing on this issue, and examines the material consequences of the current undertheorized concepts of sexual injury for the practice and experience of fatherhood.
Wednesday, February 29, 2012
Featured download: Dripps on Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure
My colleage, Donald A. Dripps, has posted a piece that should interest originalists and nonoriginalists alike:
'Dearest Property': Digital Evidence and the History of Private 'Papers' as Special Objects of Search and Seizure. Highly recommended. Here is the abstract:
Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.
From the Times-Picayune, this piece by former Louisianna Chief Justice Pascal F. Calogero, Jr. "The problem," writes Calogero, "is not rogue prosecutors; it's a system that heavily incentivizes the winning of convictions at any cost, and provides no penalty for breaking the rules." The remedy, writes Chief Justice Calogero, is legislative. Advocating reforms to the discovery phase of the criminal trial process, Calogero supports making open file discovery a mandated statewide practice. Calogero also suggests that the legislature limit the use of snitch testimony, particularly in capital cases, and disclose all deals. Calogero writes, "jailhouse testimony is a commodity on an unregulated market, where prosecutors are encouraged to secure the least reliable evidence from individuals with the greatest incentive to lie."
Tuesday, February 28, 2012
Samuel J. Levine (Touro Law Center) has posted Rethinking Self-Incrimination, Voluntariness, and Coercion, Through a Perspective of Jewish Law and Legal Theory (Journal of Law in Society, Vol. 12, p. 72, 2011) on SSRN. Here is the abstract:
This essay briefly explores the relevance of Jewish law and legal theory in an analysis of the American law of criminal confessions.
Christine S. Scott-Hayward (Columbia Law School) has posted The Failure of Parole: Rethinking the Role of the State in Reentry (New Mexico Law Review, Vol. 41, No. 2, Fall 2011) on SSRN. Here is the abstract:
In this paper, I analyze the effect of parole on reentry and challenge the dominant governmental approach to post-release reentry. One of the features of current reentry policy is that many states rely on their parole or post-prison supervision agencies to provide post-release reentry services. In the paper, I argue that the changing nature of parole supervision over the last forty years, specifically the shift from a casework approach to a surveillance approach, should lead policymakers to rethink this approach. Relying on interviews I conducted with people on parole in New York City as well as prior research on parole outcomes, I examine the effect of parole on reentry. Jeremy Travis has argued that reentry has two goals — promoting public safety and promoting reintegration of former prisoners. I conclude that parole fails at both of these goals and in fact can sometimes hinder the reentry process. Accordingly, I argue that parole agencies should not be providing post-release reentry services and suggest an alternative approach for states to consider. In particular, I suggest that reentry outcomes could be improved by separating the surveillance and monitoring aspects of parole from its reentry aspects.
Darryl K. Brown (University of Virginia School of Law) has posted Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance (Law and Contemporary Problems, Spring 2012) on SSRN. Here is the abstract:
This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of offenses is widespread, and sometimes non-controversial. Yet courts lack reliable interpretive practices to determine which elements do not carry mens rea requirements in accord both with congressional intent and criminal law’s normative commitments to culpability as a prerequisite for punishment In a survey of recent federal court decisions, I identify two competing understandings of the culpability required to justify criminal punishment, especially with regard to distinctions in punishment between less and more serious wrongdoing.
Monday, February 27, 2012
Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted The Revolution and the Criminal Law (Criminal Law and Philosophy, Vol. 6, 2012) on SSRN. Here is the abstract:
Egyptians had many reasons to overthrow the government of Hosni Mubarak, and have many reasons to challenge the legitimacy of the interim military government. Strikingly, among the leading reasons for the uprising and for continued protest are reasons grounded in criminal justice. Reflection on this dimension of the Egyptian uprising invites a broader examination of the relationship between criminal justice and political legitimacy.
This article explodes standard interpretations of the exclusionary rule, relying on archival sources to demonstrate that the Warren Court’s incorporation of the rule to the states did not professionalize police so much as worsen their conduct, increasing tensions between beat patrolmen and racial minorities. By the mid-sixties, such tensions escalated to the point that both white police and black activists derided the Court’s criminal procedure revolution as an effort not to ameliorate inequality so much as to contain the poor in urban ghettos. Rather than counter this charge, the Court proceeded to turn against urban protesters, upholding the convictions of a string of black demonstrators including national civil rights leaders like Martin Luther King, Jr. By 1968, such cases provided an odd corollary to the Court’s criminal procedure decisions, pointing to a little recognized drama of control aimed not at helping minorities so much as containing radical protest in the United States.