March 23, 2013
Buell on Liability and Admissions of Wrongdoing
Samuel W. Buell (Duke University School of Law) has posted Liability and Admissions of Wrongdoing in Public Enforcement of Law (University of Cincinnati Law Review, Vol. 81, 2013) on SSRN. Here is the abstract:
Some judges and scholars have questioned the social value of the standard form in which the Securities and Exchange Commission settles its corporate enforcement actions, including the agency’s use of essentially unreviewed consent decrees that include no admission of liability or wrongdoing. This essay for a symposium on SEC enforcement provides an analysis of the deterrent effects of the three main components of settlements in public enforcement of law: liability, admission, and remedy. The conclusions are the following. All three components have beneficial deterrent effects. Cost considerations nonetheless justify some settlements that dispense with liability or admission, or even both. But a practice like the SEC’s of uniformly institutionalizing settlements without admissions, such that the deterrent effects of admissions are never realized, even for bargaining leverage, is not justified. Further, there is reason to believe that some form of judicial review of enforcement settlements would contribute to deterrence. To put the argument another way, the SEC and other agencies engaged in public civil enforcement could learn something from contemplating why the federal criminal justice system strongly disfavors nolo contendere pleas and why a plea bargaining system dominated by nolo pleas would be so undesirable as to be unthinkable.
Klingele on Community Supervision
Cecelia M. Klingele (University of Wisconsin Law School) has posted Rethinking the Use of Community Supervision on SSRN. Here is the abstract:
Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration. For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration. Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole. It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it. This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment.While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation. To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways. First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.
March 22, 2013
Oliver on Plea Bargaining
Wesley Oliver (Duquesne Law School) has posted Toward a Common Law of Plea Bargaining on SSRN. Here is the abstract:
This article contends that Missouri v. Frye and Lafler v. Cooper, holding that defendants have a right to an effective criminal negotiator, are landmark decisions, but not because they will cause the reversal of any substantial number of convictions. These opinions could have a far greater impact than that. These opinions may cause criminal defense lawyers to embrace their role as negotiators. The recognition that negotiation is as central to their duty under the Sixth Amendment as litigation should cause them to study the negotiation tactics and experiences of their colleagues just as they now very effectively learn from their trial and appellate skills. The opinions also encourage trial courts, in crafting remedies for ineffective assistance of counsel during plea bargaining, to inquire into a reasonable prosecutor’s motives for offering a plea lost by counsel’s ineffectiveness.In so doing, post-conviction courts would be crafting advisory guidelines for the exercise of prosecutorial discretion. Plea bargaining has become an unregulated process, with enormous power vesting in the hands of prosecutors, over the forty years since the Supreme Court acknowledged the existence of criminal negotiations. Separation of powers concerns and respect for the power of parties to contract have caused academic proposals for direct judicial regulation of the plea bargaining process to be largely ignored. By nudging defense lawyers to re-envision their role in the system and giving post-conviction courts an opportunity, as they are crafting remedies, to comment on the appropriate exercise of prosecutorial discretion, the Supreme Court has created circumstances permitting the indirect regulation of plea bargaining. Decades of cases from the Supreme Court have made limitations on prosecutors in this process seem constitutionally impossible. In a decision appearing to relate only the role of defense counsel, the Court may have found a way, consistent with long-standing constitutional principles, to impose some oversight on the previously unchecked prosecutor.
Dwyer on Jailing Black Babies
James G. Dwyer (William & Mary Law School) has posted Jailing Black Babies (Utah Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:
In many situations of family dysfunction stemming from poverty, the interests of parents are in conflict with the interests of their offspring. This presents a dilemma for liberals. We want to mitigate the harsh consequences and suffering that conditions we deem unjust have caused some adults, especially adults of minority race. But we are also concerned about the welfare of children born into impoverished and troubled communities. The predominant liberal response to this dilemma has been to sidestep it by ignoring or denying the conflict and to then take positions aimed at protecting parents’ interests, without giving serious attention to the impact on children.The result is a set of liberal polies that effectively imprison black children in dysfunctional families and communities and so ensure that they fall into the inter-generational cycle of poverty, addiction, and criminality.Epitomizing this phenomenon is the fast-growing phenomenon of states’ placing newborn children, predominantly of minority race, into prison to live for months or years with their incarcerated mothers. Advocates for incarcerated women, not advocates for children, have promoted prison nurseries, and they have done so with no research support for any hope of positive child welfare outcomes. Conservative legislators and prison officials agree to experiment with such programs when convinced they will reduce recidivism among female convicts, a supposition that also lacks empirical support. Remarkably, states have placed babies in prisons without anyone undertaking an analysis of the constitutionality of doing so.
This Article presents a compelling child welfare case against prison nurseries, based on rigorous examination of the available empirical evidence, and it presents the first published analysis of how constitutional and statutory rules governing incarceration and civil commitment apply to housing of children in prisons. It shows that prison nursery programs harm the great majority of children who begin life in them, and it argues that placing infants in prison violates their Fourteenth Amendment substantive and procedural due process rights as well as federal and state legislation prohibiting placement of minors in adult prisons.
This Article further challenges liberal family policy more generally. Its final Part describes other policy contexts in which liberal advocacy and scholarship relating to persons who are poor or of minority race consistently favors the interests of adults in this population over the interests of children. It offers a diagnosis of why this occurs, and it explains why this is both morally untenable and ultimately self-defeating for liberals committed to racial equality and social justice. The Article’s broader thesis is that liberals bear a large share of the responsibility for perpetuation of blacks’ subordination.
March 19, 2013
"Manufactured Evidence, the Defense Bar's Reaction"
The post is at Crime & Consequences. In part:
I noted here the case of prominent Washington, DC defense attorney Charles Daum, who recently received a 63-month prison sentence for faking evidence and suborning perjury. I have looked a bit more into the case. The reaction of members of the defense bar is revealing.
. . .
His defense colleagues see nothing he should regret. The only thing the public should be worried about are the prosecutors -- the ones who decline to be bullied into giving a free pass to this sort of behavior.
Gould et al. on Predicting Erroneous Convictions
Jon Gould , Julia Carrano , Richard A. Leo and Katie Hail-Jares (American University - School of Public Affairs , American University , University of San Francisco - School of Law and American University) have posted Predicting Erroneous Convictions (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
The last thirty years have seen an enormous increase not only in the exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This article reports results from the first large scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The article closes with a series of policy reforms to address these failings.
Morris on Congress and US v Jones
Ebony Morris has posted Always Eyes Watching You: United States v. Jones and Congress's Attempts to Stop Warrantless Government Surveillance (40 S.U.L. Rev. ___ (2013) (forthcoming)) on SSRN. Here is the abstract:
In recent years, technology has advanced to new levels. Technology that was exclusively used by government officials is now available to the general public. Unfortunately, law enforcement officials have taken advantage of technology's availability to prey on unsuspecting citizens and invade privacy protected by the Fourth Amendment. Governmental use of Global Positioning System (GPS) tracking devices has invaded the privacy of unsuspecting citizens, and in the absence of precedent, officials have continued to invade privacy. In United States v. Jones, the United States Supreme Court got its opportunity to halt governmental abuse of technology; however, the Court only addressed the physical element of Fourth Amendment searches instead of its presence through the use of GPS tracking devices without a physical trespass. As Associate Justice Samuel Alito suggests, Congress is an appropriate body to address the issue.
Currently, the Senate Judiciary Committee is considering the Geolocational Privacy and Surveillance Act (GPS) Act. In 2011, Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) introduced the bill to require officials to show probable cause before obtaining a GPS tracking device. This article will explore the jurisprudence leading up to the Court's decision in Jones while emphasizing the Court's failure to fully address an expectation of privacy concerning abuse of GPS tracking devices. This article will also discuss the GPS Act and government officials' response to the Act. The article will analyze the strength and weaknesses of the Act and how Congress can address the Act's weaknesses before enactment. The author concludes by suggesting that Congress must act now to enact a law that not only strikes a balance between effective law enforcement investigations and privacy expectations, but also provides guidance for future cases involving governmental abuse of advancing technology.
Shen on Rape Law Reform
Francis X. Shen (University of Minnesota Law School) has posted How We Still Fail Rape Victims: Reflecting on Responsibility and Legal Reform (Columbia Journal of Gender and Law, Vol. 22, No. 1, 2011) on SSRN. Here is the abstract:
Despite over thirty years of rape law reform, rape remains too prevalent, and successful convictions of rapists remain too rare. I argue in this Article that we continue to fail rape victims because we are too quick to give in to our instinct to blame and less willing to engage in the careful reflection that would lead us to see more profoundly our collective responsibility for this failure.
The Article proceeds in five sections. In Section I, I review a number of studies and argue that rape reforms to date, while significant, have nonetheless been inadequate. I then discuss the pervasiveness of rape myths about blame, both over time and in the present day. In Section II, I extend my analysis to rape in the tort system. Drawing on a recent empirical analysis of jury verdicts and settlements, as well as interviews with practicing plaintiffs’ attorneys, I argue that unless harm is concrete and visible, we tend to devalue it.
In Section III, I turn my attention to policymaking. Based on a series of empirical studies, I discuss the role of the media and legislators in shaping policy response to sex crimes. I argue that the policy response has often been driven by moral panic rather than careful reflection. In Section IV, I evaluate why reform has failed and suggest that the impulse to blame all men or all men in fraternities is overly simplistic. In Section V, I conclude the paper with a reflection on the deeper meanings of rape myths and rape law reform. I argue that to find lasting solutions for the problems of sexual violence we must first look inward. Reflection, leading to collective responsibility and collective action, is the best path to reform.
Baradaran et al. on Funding Terrorism
Shima Baradaran , Michael Findley , Daniel Nielson and J. C. Sharman (Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin , Brigham Young University and Griffith University) have posted Funding Terror (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
The events of September 11 forever changed the political and legal response to terrorism. After more than ten years, two wars, several targeted military strikes, and significantly increased surveillance, we still have not succeeded in stopping the growth of Al-Qaeda and other terrorist organizations. The war on terror has not just been a military one. To stop terrorism, it is imperative to cut off the flow of terrorism financing. To this end, a number of nations have created financial laws that prohibit the formation of anonymous companies and monitor suspicious bank transfers. These laws have been touted as evidence that we are winning the war on terrorism. This Article questions their efficacy. In particular, this Article proves how easy it is to form a terrorist finance network and exploits the impotence of both international and domestic financial regulations that have been passed in this area. The Article presents findings from the largest global randomized controlled trial to date. In our experiment, we acted as customers seeking to form anonymous shell companies in a variety of scenarios resulting in either greater risk or greater reward. On the whole, forming an anonymous shell company is as easy as ever, despite increased regulations following 9/11. The results are disconcerting and demonstrate that we are much too far from a world that is safe from terror.
Rich on the Preventive State
Michael Rich (Elon University School of Law) has posted Limits on the Perfect Preventive State on SSRN. Here is the abstract:
Traditional methods of crime prevention — the punishment of the culpable and the preventive restraint of the dangerous — are slowly being supplemented and supplanted by technologies that seek to perfectly prevent crime by making criminal conduct practically impossible. For instance, the federal government is developing in-car technology that would prevent vehicle operation when a driver has a blood alcohol level in excess of the legal limit. Less directly, the anti-circumvention provisions of the Digital Millennium Copyright Act of 1998 try to prevent copyright infringement by eliminating technologies that enable such infringement. Such structural regulation of private conduct is not new, but few scholars have focused on its use to prevent crime, and fewer still have examined how structural methods to fight crime fit within legal theory.This Article begins that discussion with three aims. First, I argue that perfect prevention — the use of technology by the State to make criminal conduct practically impossible — is a novel approach to crime prevention that requires separate scrutiny from punishment and prevention. Second, I identify concerns with the use of perfect prevention and propose limitations on the perfect preventive state responsive to those concerns. Specifically, I address the impact of perfect prevention on individual autonomy, concerns raised by the blanket application of perfect prevention on all people, and the question of whether and when perfect prevention should be the preferred approach from preventing certain criminal conduct. Third, I highlight areas for future discussion of perfect prevention by scholars.
March 18, 2013
"My View of How the Fourth Amendment Should Apply to Searching A Cell Phone Incident to Arrest"
From Orin Kerr at The Volokh Conspiracy, addressing an issue that has divided the Circuits. He excerpts an essay on the topic in part as follows:
It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a full search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, the Court should adopt the standard introduced in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.
"Hacker Case Leads to Calls for Better Law"
From the New York Times:
Matthew Keys, the 26-year-old deputy social media editor at Reuters charged with assisting computer hackers, has emerged as the latest lightning rod in the continuing battle between proponents of Internet freedom and the Justice Department.
. . .
In Mr. Keys’s case, the scale of the potential punishment relative to the actual harm caused — the vandalism to the Web site was quickly fixed — raised comparisons to the potential sentence in the indictment of Aaron Swartz, a 26-year-old computer programmer and Internet freedom advocate. Accused of breaking into a university system to download an archive of scholarly papers, Mr. Swartzcommitted suicide in January.
“Anyone horrified by the amount of jail time” Mr. Keys faced should join in calling for Congressional reform of the computer fraud act, Trevor Timm, an advocate and blogger at the Electronic Frontier Foundation, a nonprofit that supports an open Internet, wrote in a Twitter post on Thursday.
Carpenter on Juvenile Sex Offenders and Mandatory Registration
Catherine L. Carpenter (Southwestern Law School) has posted On Emotion, Juvenile Sex Offenders, and Mandatory Registration (3 Journal of Race, Gender, & Policy 1 (2013, Forthcoming)) on SSRN. Here is the abstract:
It is both unremarkable and true that juveniles are different from adults. United States Supreme Court decisions over the past decade have highlighted the extent of the differences. Yet, played out against the backdrop of sex offender registration laws, the conversation takes an abrupt turn. Rather than differentiating between adult and juvenile offenders, federal sex offender registration laws require juveniles convicted of certain sex offenses to face the same onerous registration and notification burdens as their adult counterparts.
Tracking the shift in sex offender registration models from “likely to reoffend” to “conviction-based" assessment, this article argues that “conviction-based” assessment is an unstable proposition when applied to child offenders for two fundamental reasons. First, juvenile offenders lack intentionality and purpose that adult offenders possess, thereby diminishing the value that a conviction carries. Further, and more importantly, studies reveal that the commission of juvenile sex crimes does not portend future predatory behavior, raising the question of the purpose of registration for this class of offenders.
Ultimately, the legislative push to require juvenile sex offenders to suffer serious register and notification burdens demonstrates convincingly the pitfall that impacts the entire debate over sex offender registration. Emotional rhetoric controls the legislative agenda, even in the face of compelling arguments to the contrary.
Ferguson on Sense-Enhancing Technologies in Public
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Personal Curtilage: Fourth Amendment Security in Public on SSRN. Here is the abstract:
Do citizens have any Fourth Amendment protection from sense-enhancing surveillance technologies in public? This article engages a timely question as new surveillance technologies have redefined expectations of privacy in public spaces.
This article proposes a new theory of Fourth Amendment security based on the ancient theory of curtilage protection for private property. Curtilage has long been understood as a legal fiction that expands the protection of the home beyond the formal structures of the house. Curtilage recognizes a buffer zone beyond the four corners of the home that deserves protection, even in public, even if accessible to public view. Based on custom and law protecting against both nosy neighbors and the government, curtilage was defined by the actions the property owner took to signal a protected space. In simple terms, by building a wall around one’s house, the property owner marked out an area of private control. So, too, the theory of personal curtilage turns on persons being able to control the protected areas of their lives in public by similarly signifying that an area is meant to be secure from others.
This article develops a theory of personal curtilage built on four overlapping foundational principles. First, persons can build a constitutional protected space secure from governmental surveillance in public. Second, to claim this space as secure from governmental surveillance, the person must affirmatively mark that space in some symbolic manner. Third, these spaces must be related to areas of personal autonomy or intimate connection, be it personal, familial, or associational. Fourth, these contested spaces – like traditional curtilage – will be evaluated by objectively balancing these factors to determine if a Fourth Amendment search has occurred. Adapting the framework of traditional trespass, an intrusion by sense-enhancing technologies into this protected personal curtilage would be a search for Fourth Amendment purposes.
The article concludes that the theory of personal curtilage improves and clarifies the existing Fourth Amendment doctrine and offers a new framework for future cases. It also addresses the need for a new vision of trespass to address omnipresent sense-enhancing surveillance technologies.
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers:
- Kaley v. U.S.: Whether, when a post-indictment, ex parte restraining order freezes assets needed by a criminal defendant to retain counsel of choice, the Fifth and Sixth Amendments require a pre-trial, adversarial hearing at which the defendant may challenge the evidentiary support and legal theory of the underlying charges.
March 17, 2013
Top-Ten Recent SSRN Downloads
|1||14700||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||435||The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information
Columbia Law School,
Date posted to database: February 25, 2013 [4th last week]
|3||326||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 [2nd last week]
|4||268||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 [3rd last week]
|5||236||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
|6||167||Targeting and the Concept of Intent
Jens David Ohlin,
Cornell University - School of Law,
Date posted to database: February 12, 2013
|7||153||David Baldus and the Legacy of McCleskey v. Kemp
Samuel R. Gross,
University of Michigan Law School,
Date posted to database: January 15, 2013
|8||149||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 [9th last week]
|9||120||Does International Law Matter?
Shima Baradaran, Michael Findley, Daniel Nielson, J. C. Sharman,
Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin, Brigham Young University, Griffith University,
Date posted to database: February 8, 2013 [new to top ten]
|10||119||Colorado Capital Punishment: An Empirical Study
Justin F. Marceau, Sam Kamin, Wanda Foglia,
University of Denver - Sturm College of Law, University of Denver Sturm College of Law, Rowan University,
Date posted to database: January 31, 2013 [new to top ten]