March 16, 2013
Inside baseball, criminal style
Some interesting tidbits from a New York Times story about a band of thieves who've been taking tires off of cars:
The thieves work in the rain, which tempers whatever noise they make, striking around 1 a.m. . . . Ms. Adams said her house’s motion-detector spotlights — “My house lights up like a runway as soon as you step on my property” — had been disabled. A friend who installs alarms said a device like a laser pointer aimed at the light’s sensor would disarm it.
Blakesley on Law, Language, Crime, and Culture
Christopher L. Blakesley (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Law, Language, Crime, and Culture: The Value and Risks of Comparative Law (49 Crim. L. Bull. Forthcoming) on SSRN. Here is the abstract:
Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems.
Comparative law also serves as a springboard from which to ponder law and philosophy in the context of a basic or advanced criminal procedure course. International criminal courts provide a useful example of the value and challenges of comparative law because they are actually experiments in mixing legal systems and procedures as they function in the arena of international law. Although wholesale or simplistic borrowing is wrong and often harmful, carefully comparing how disparate systems resolve similar problems is most helpful. To elucidate this, I use the examples of “verdict” and “to represent.” They look the same on paper, but manifest quite differently in practice in America and in Europe — prime examples of why comparative analysis can be so illuminating.
It should not be surprising that comparative analysis is crucial to courses or parts of courses in international or transnational criminal law, as functionally, those are mixed systems — requiring a mixture of international law and domestic law or of international law and that of two or more domestic legal systems. This is especially so in international law, which functions as a mixed jurisdiction essentially comprised of Romano-Germanic and Common Law elements and approaches. Those who understand and can work with both the Romano-Germanic and the Common Law systems will be more able to understand the nuances of international law, its methods, analytical style, and sources. This will help them succeed in practice, scholarship and teaching.
This article and the benefits of comparative analysis apply to the study of most subjects in any legal system. My points apply to practitioners, students, policy makers, judges, human rights activists, and many more professions, especially as the world shrinks. Comparative analysis of the sort I suggest herein provides a deeper understanding of the subject, in addition to some understanding of foreign systems. Law is at least partially a form of language; it arises from the culture and language of the various nations and peoples of the world. Comparative study is more than a leisure activity. It provides insight into law (even one’s own, in its deepest cultural sense) and a more transparent prism through which to understand law, culture, and language, including one’s own law, culture, and language, acting like a perfect prism through which we perceive not merely a white light (a country’s legal system), but all the colors that are essential parts (culture and language) of that white light. Revealing those colors — those essential parts — allows us to analyze and compare them and gain a far deeper understanding of a country’s legal system.
To be sure, law is more than just language, but its essence has many of the characteristics and fullness, including the cultural imprint, that a language has. Perhaps, too, there is a spiritual or cosmological element to law, language, and scholarship. I use the term "language" not only its usual sense of the words we use to speak and write, but also as a metaphor for law as language which includes all the cultural depth that imbues language with its soul or spirit.
March 15, 2013
"Aaron Swartz Lawyers Seek Misconduct Review Against Prosecutor"
From TalkLeft. In part:
Which is why I'd like to see a independent review ofDOJ's use of the “hammer” nationally. I think people would be shocked at the number of cases in which the prosecutor tells the defense:
- Take the deal now, or the offers will only get worse
- Take the deal now, or we’ll supersede with more charges. (In drug cases, it is often, plead now, or we’ll file an enhancement notice for your prior drug conviction and double the mandatory minimum sentence from 10 years to 20 years.)
- This offer is only open until the motions due date. If you file motions, all offers are withdrawn and there will be no future offers.
- If you don’t plead before the pre-trial motions hearing, you are going to trial.
- No offer unless you cooperate
- Here’s the offer, but you have to waive your right to appeal
- Here’s the offer, but you have to agree to a sentence of X and you can’t request a lesser or non-guideline sentence.
- If you take the offer, we’ll agree not to prosecute your wife (or husband or child or parent). If you don’t, they are fair game and we aren’t threatening them, but we think we have a good case against them.
"Maryland Lawmakers Vote to Repeal Death Penalty"
From The New York Times:
ANNAPOLIS, Md. (AP) — Maryland lawmakers approved a measure abolishing the death penalty on Friday and sent the bill to Gov. Martin O'Malley, who has long supported banning capital punishment.
. . .
Kirk Bloodsworth, the first person in the United States freed because of DNA evidence after being convicted in a death penalty case, watched the vote from the House gallery. He pumped his arms toward the ceiling when he saw the vote count.
. . .
Bloodsworth was twice wrongly convicted of a 9-year-old girl's murder, and he spent two years on death row following his first trial. A second trial brought another conviction, although he received a life sentence instead of capital punishment. He was cleared in 1993.
Sokol on Policing the Firm
D. Daniel Sokol (University of Florida - Levin College of Law) has posted Policing the Firm (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:
Criminal price fixing cartels are a serious problem for consumers. Cartels are hard to both find and punish. Research into other kinds of corporate wrongdoing suggests that enforcers should pay increased attention to incentives within the firm to deter wrong-doing. Thus far, antitrust scholarship and policy have ignored this insight. This article suggests how to improve antitrust enforcement by focusing its efforts on changing the incentives of internal firm compliance.
March 14, 2013
Frase on Just Sentencing
Richard S. Frase (University of Minnesota Law School) has posted Preface and Introduction - Just Sentencing: Principles and Procedures for a Workable System )R. Frase, Just Sentencing: Principles and Procedures for a Workable System, Oxford University Press, 2013) on SSRN. Here is the abstract:
This book presents a hybrid sentencing model that combines clearly-stated normative principles with procedures that have proven successful in practice. The theoretical structure is an expanded version of limiting retributivism that sets desert-based limits on sentence severity, within which crime control and other non-retributive purposes and limitations of punishment are applied. The latter include: expressive sentencing goals; parsimony (least restrictive alternative); utilitarian proportionality; social (and especially, racial) equality; retention of substantial judicial sentencing discretion and control; and front-end, system-wide management of correctional resources. The model’s procedures are inspired by the best American state sentencing guidelines systems.A hybrid sentencing theory is normatively superior and practically necessary. Any purely retributive or purely crime-control model would fail to recognize widely-shared competing values, and would not succeed in practice. Sentencing procedures must likewise achieve an acceptable balance, especially between two competing procedural ideals – rule versus discretion – each of which has important advantages. Rules promote consistency and predictability; discretion promotes flexibility and efficiency. Procedures must also strike a workable balance in the use of custodial and non-custodial sentencing options, and in the powers of systemic policy makers (the legislature and sentencing commission) and case-level decision makers (judges, attorneys, and correctional officials). Although sentencing guidelines are often seen as reflecting strong preferences for rules over discretion, and for system-wide over case-level policy making, that is not how the best state guidelines systems actually work. Like the proposed model, these systems structure sentencing discretion but leave judges and other officials with a substantial degree of discretion to tailor the form and severity of sanctions to the facts of particular cases. This book shows how the core principles and procedures of the proposed model have been implemented in Minnesota and several other states, and endorsed in the revised Model Penal Code and other model codes and standards.
Fan on Immigration Criminalization Reform
Mary Fan (University of Washington - School of Law) has posted Money, Demography and Immigration Criminalization Reform (Volume 92, Issue 1, North Carolina Law Review (2013)) on SSRN. Here is the abstract:
The nation is at a tipping point for immigration reform. The two groups most targeted by immigration control law over the last century, Asians and Hispanics, have increased in numbers and political power. Immigration reform now looms as an offering to rising minority groups rather than a strategy to keep their numbers down. Controversies over investigation, surveillance and suspicion with spillover harms for Americans perceived as immigrants have galvanized these rising voter groups. Alarms are also sounding about the expense and waste of criminally processing immigrants and the cost of rampant civil incarceration, which has made Immigration and Customs Enforcement the nation’s largest jailor.
Yet as in the past, the political and scholarly debate over immigration reform continues to be dominated by the seemingly impassable divide between clashing worldviews. The central cleavage is between hierarchist and egalitarian orientations. Valuing order, hierarchs are concerned about deterring law-breakers who jump the lines and gates necessary to preserve America’s limited resources and standard of living. Valuing equality, egalitarians are concerned about a vast racially-associated underclass without legal protections or recognition. Hierarchs say that egalitarians are dangerous bleeding hearts and egalitarians say hierarchs lack heart. Renewed focus on paths to legalization for unauthorized immigrants, also termed amnesty, has revived the conflicts that doomed reform proposals in 2005, 2006, 2007 and 2010.
In the clash, both camps miss opportunities for progress on issues sorely in need of redress that endanger values important to each side. Progressing beyond the usual intractable conflicts, this article explores how demographic change and fiscal responsibility can help bridge worldviews and illuminate the need to reform immigration criminalization and civil incarceration. It demonstrates that immigration criminalization and incarceration reform needs to be on the agenda. Reform need not mean unrealistic radical abolition. Achievable results can start with addressing spillover costs and harm from immigration criminalization and incarceration overbreadth embedded in the structure of current laws bearing the imprint of a repudiated past.
Schaffzin on the Return of the Rule in Queen Caroline's Case
Katharine Traylor Schaffzin (University of Memphis - Cecil C. Humphreys School of Law) has posted Sweet Caroline: The Backslide from Federal Rule of Evidence 613(b) to the Rule in Queen Caroline's Case on SSRN. Here is the abstract:
Since 1975, Rule 613(b) of the Federal Rules of Evidence has governed the admission of extrinsic evidence of a prior inconsistent statement in federal court. Rule 613(b) requires the proponent of the prior inconsistent statement to provide the declarant an opportunity to explain or deny it. There is no requirement that the proponent provide that opportunity at any particular time or in any particular sequence.
Rule 613 reflected a change from the common law that had fallen out of fashion in the federal courts. That common law rule, known as the Rule in Queen Caroline’s Case required the proponent of a prior inconsistent statement to confront the declarant witness with the statement on cross-examination before introducing any extrinsic evidence of the prior statement.
Despite the plain meaning of Rule 613(b), as further evidenced by the Advisory Committee’s Note, a number of federal courts have continued to apply the common law Rule in Queen Caroline’s Case citing assorted rationales for doing so. Their actions have caught the attention of the Advisory Committee on Evidence Rules which has entertained the idea of amending Rule 613(b) to reflect the common law Rule in Queen Caroline’s Case.
All things considered, amending Rule 613(b) to adopt the common law of thirty-five years ago is unwise. The English history behind the Rule in Queen Caroline’s Case undermines its credibility. Besides, Rule 613(b) accomplishes nearly all of the legitimate policy goals of that common law rule without hindering cross-examination. While there does exist a split among United States Courts of Appeals, most circuit courts apply Rule 613(b) as intended and only a minority of circuit courts apply the superseded Rule in Queen Caroline’s Case. Rather than amend Rule 613(b) to return to the common law Rule in Queen Caroline’s Case, the Advisory Committee should consider amending the Rule to make uniform the application of the Rule as originally intended. At the very least, the Advisory Committee should not amend Rule 613(b) to return Queen Caroline to her throne.
March 13, 2013
Aberdeen on Act, Circumstance, and Event
John M. Aberdeen has posted Act, Circumstance, and Event: Austinian Action Theory Under the Griffith Criminal Code ((2011) 12 The Journal Jurisprudence 727) on SSRN. Here is the abstract:
Legal history and Sir Samuel Griffith’s Criminal Code do not always sit comfortably together. This is due in a substantial degree to accepted doctrine concerning the interpretation of the Griffith Code (the Brennan-Vagliano rule ), which deflects attention away from the Code’s historical antecedents, and instead concentrates focus upon the terms of the Code to the general exclusion of that history. Only in “exceptional circumstances” should the Court resort to pre-Code law in interpreting the provisions of the Code. It is arguable that this canon of interpretation somewhat over-simplifies what is in reality a substantially more complex question. This short paper does not, however, enter into the broader question of interpretation of the Code generally, but confines itself instead to one narrow issue: the significance of the words “act or omission,” an expression which appears in the Code, in that form, on numerous occasions, and which represents one of the foundation stones upon which the Code was erected. The expression, it is suggested, has a substantial historical pedigree, an appreciation of which can only assist to advance the modern articulation of criminal law theory under the Code. “Act” has long been recognised as an inherently ambiguous term; but it is probable that, by the time Griffith came to write the Code, “act,” as a juristic concept, had taken on a recognised content based predominantly upon Austin’s simple action theory. The accurate determination of this original meaning takes on an added significance when, as is the case with the Code, the term in question underpins fundamental concepts of liability, in respect of which even a minor shift in meaning may substantially impact upon the daily application of basic tenets of criminal responsibility.
March 12, 2013
"ProPublica: Everything We Know About What Data Brokers Know About You"
The piece is excerpted at FourthAmendment.com:
Data companies are scooping up enormous amounts of information about almost every American. They sell information about whether you're pregnant or divorced or trying to lose weight, about how rich you are and what kinds of cars you have.
Regulators and some in Congress have been taking a closer look at these so-called data brokers — and are beginning to push the companies to give consumers more information and control over what happens to their data.
"Serious Charges in Fatal Crashes Pose Challenge for Prosecutors"
From the New York Times:
[T]the state’s highest court, the Court of Appeals, recently reversed the convictions of drivers who were found guilty of criminally negligent homicide in the deaths of their passengers or others on the road. In doing so, the court ruled that the drivers’ actions did not rise to the level of “moral blameworthiness.”
. . .
New York appears to have gone further than other states in adding morality as a component of criminally negligent homicide in car-crash cases.
For example, in Oregon, a defendant argued last year that because the state had modeled its criminal-negligence law on New York’s, that state’s highest court should adopt the new language from the New York Court of Appeals and reverse his conviction. The Oregon Supreme Court rejected that argument, saying New York’s interpretation was too narrow.
Deena Ryerson, an Oregon prosecutor who deals extensively with vehicular crime, said the court found that injecting any kind of language of serious or moral blameworthiness “adds an additional element to what criminal negligence truly is.”
"What is the Ninth Circuit’s Standard for Border Searches Under United States v. Cotterman?"
Orin Kerr at The Volokh Conspiracy follows up on his earlier post about this case, raising a series of interesting questions. Here's one cluster:
Are there any limits on how much manual searching agents can conduct without reasonable suspicion? Can the agents do anything as long as they do it manually? Or are they limited to only “reasonable” manual searches? And if the latter, what is the line between a “reasonable” manual search and an “unreasonable” manual search? Does the amount of time taken matter? The type of files viewed using the manual search?
March 11, 2013
Gray & Citron on Quantitative Privacy
David C. Gray (pictured) and Danielle Keats Citron (University of Maryland-Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted The Right to Quantitative Privacy (Minnesota Law Review, Vol. 98, 2013) on SSRN. Here is the abstract:
We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in surveillance technology. Governments and their private sector agents continue to invest billions of dollars in massive data-mining projects, advanced analytics, fusion centers, and aerial drones, all without serious consideration of the constitutional issues that these technologies raise. In United States v. Jones, the Supreme Court signaled an end to its silent acquiescence in this expanding surveillance state. In that case, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the subject of hot debate on and off the courts. Among the most compelling challenges are questions about quantitative privacy’s constitutional pedigree, how it can be implemented in practice, and its doctrinal consequences. This Article takes up these challenges.
The conversation after Jones has been dominated by proposals that seek to assess and protect quantitative privacy by focusing on the informational “mosaics” assembled by law enforcement officers in the course of their investigations. We think that this case-by-case approach both misunderstands the Fourth Amendment issues at stake and begets serious practical challenges. Drawing on lessons from information privacy law, we propose as an alternative that legislatures and courts acting in the shadow of Jones focus on the technologies. Under this technology-centered approach, any technology that is capable of facilitating broad programs of continuous and indiscriminate surveillance would be subject to Fourth Amendment regulation. This does not mean that government would be barred from using these technologies. Rather, it would require that the terms of their deployment and use reflect a reasonable balance between privacy concerns and law enforcement’s interests in preventing, detecting, and prosecuting crime. This Article offers concrete proposals for how legislatures and courts might strike this balance while providing the clear guidance and predictability that critics of the mosaic theory rightly demand.
Dow & Ansari-Bayegan on Unconstitutional Executions in Texas
David R. Dow (pictured) and Safa Ansari-Bayegan (University of Houston Law Center and University of Houston) have posted How Many People Have Been Unconstitutionally Executed in Texas? on SSRN. Here is the abstract:
We examine life sentences in capital cases from 2007 until 2012 to determine how many death row inmates sentenced from 1977 to 1991 would have received sentences of life in prison rather than death had the Texas sentencing scheme not been unconstitutional.
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