Saturday, March 16, 2013
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.
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.
Friday, March 15, 2013
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 If you file motions, all offers are withdrawn and there will be no future offers.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.
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.
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.
Thursday, March 14, 2013
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.
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.
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.
Wednesday, March 13, 2013
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.
Tuesday, March 12, 2013
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.
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.”
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?
Monday, March 11, 2013
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.
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.
|1||14278||Ham Sandwich Nation: Due Process When Everything is a Crime
Glenn Harlan Reynolds,
University of Tennessee College of Law,
Date posted to database: January 20, 2013
|2||314||Federal Tax Crimes, 2013
John A. Townsend, John A. Townsend,
University of Houston School of Law, Townsend and Jones, LLP,
Date posted to database: February 7, 2013 [4th lasts week]
|3||263||Eyewitness Memory for People and Events (Chapter 25)
Gary L. Wells, Elizabeth F. Loftus,
Iowa State University, Department of Psychology , University of California, Irvine - Department of Psychology and Social Behavior,
Date posted to database: January 17, 2013 [5th last week]
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Columbia Law School,
Date posted to database: February 25, 2013 [new to top ten]
|5||226||The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez
Bill Ong Hing,
University of San Francisco - School of Law,
Date posted to database: February 13, 2013 [new to top ten]
|6||164||Targeting and the Concept of Intent
Jens David Ohlin,
Cornell University - School of Law,
Date posted to database: February 12, 2013 [9th last week]
|7||151||David Baldus and the Legacy of McCleskey v. Kemp
Samuel R. Gross,
University of Michigan Law School,
Date posted to database: January 15, 2013 [10th last week]
Adam B. Cox, Thomas J. Miles,
New York University (NYU) - School of Law, University of Chicago - Law School,
Date posted to database: July 17, 2012 [new to top ten]
|9||135||Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures
Eve Brensike Primus,
University of Michigan at Ann Arbor - Law School - Faculty,
Date posted to database: January 20, 2013 [new to top ten]
|10||133||Manson and its Progeny: An Empirical Analysis of American Eyewitness Law
Nicholas Alden Kahn-Fogel,
University of Arkansas at Little Rock - William H. Bowen School of Law,
Date posted to database: January 5, 2013 [new to top ten]