Saturday, April 27, 2013
Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted The Indeterminate International Law of Jurisdiction, the Presumption Against Extraterritorial Effect of Statutes, and Certainty in U.S. Criminal Law on SSRN. Here is the abstract:
It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state's courts do not allow challenges to jurisdiction based on international law, and the state of the outsider's nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of jurisdiction.
Jamila Jefferson-Jones (Barry University School of Law) has posted The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate on SSRN. Here is the abstract:
Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010. This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery. The price of their liberty: Gladys’ kidney.
The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” – a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong.
What happens, then if the Scott Sisters’ story is replicated – if it is multiplied across prison populations?
Christopher Slobogin (Vanderbilt University - Law School) has posted A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases on SSRN. Here is the abstract:
The modern United States Supreme Court views the exclusionary rule as a means of deterring police conduct that unduly infringes privacy or autonomy interests. But in years past the Court also proffered two other reasons for exclusion: the importance of ensuring the integrity of the legal system (primarily by avoiding judicial complicity with police illegality) and the need to vindicate constitutional guarantees. Some version of one or both of the latter two rationales also appears to be the primary motivation behind the exclusionary rules in other countries. In contrast to the United States, however, in most of these countries exclusion is not very common. Those countries that focus on systemic integrity take into account not only the de-legitimizing impact of failing to exclude illegally seized evidence but also the truth-denigrating effect of excluding evidence. Those countries that focus on vindicating fundamental rights tend to define those rights narrowly, or undercut the vindication rationale in various other ways. After describing these developments, this paper examines, from both empirical and theoretical perspectives, the difficulties that arise in applying the deterrence, systemic integrity,and rights vindication models of the rule and concludes with thoughts about the possible alternatives to exclusion, the ways in which the exclusionary remedy can be refined, and the interaction of the exclusionary rule with substantive search and seizure law.
Friday, April 26, 2013
Geoffrey S. Corn (South Texas College of Law) has posted Miranda, Surreptitious Questioning, and the Right to Counsel on SSRN. Here is the abstract:
This article analyzes police surreptitious questioning of a suspect following invocation of the Miranda right to counsel. I conclude that although never addressed by the Supreme Court, this tactic should be permissible. The article focuses on the intersection of the rule established by Illinois v. Perkins, where the Supreme Court held surreptitious questioning of a suspect prior to Miranda invocation does not implicate the Miranda warning and waiver requirement, and the Edwards/Minnick rule, where the court held as per se invalid any Miranda waiver resulting from police re-initiation of questioning following an invocation of the Miranda right to counsel. This brings into focus the question of which of these two rules takes precedence in the post-invocation surreptitious questioning situation?
Brian Gallini (University of Arkansas School of Law) has posted Rethinking Schneckloth v. Bustamonte (Search & Seizure Law Report, Vol. 40, No. 2, p. 9, February 2013) on SSRN. Here is the abstract:
Why provide warnings to criminal suspects subject to custodial interrogation, but decline to require that citizens be informed of their right to refuse consent? And a related question: why did the Schneckloth majority opinion’s author, Justice Stewart, go so far as to assert that administering a right to refuse consent warning would be “thoroughly impractical”? This piece argues that Schneckloth should be overruled in light of dramatic changes in politics and our factual understanding of consent searches.
Steven L. Chanenson (Villanova University School of Law) has posted Sentencing Guidelines in the United States (Encyclopedia of Criminology and Criminal Justice, E. Gerben Bruinsma & David Weisburd, eds., Springer, 2013) on SSRN. Here is the abstract:
This essay surveys the history, features and future of sentencing guidelines in the United States.
Thursday, April 25, 2013
From the New York Times:
On Wednesday, the Department of Justice issued new national guidelines for forensic medical examinations in cases of sexual assault.
. . .
The guidelines emphasize that the rape victim’s physical and emotional needs should take precedence over criminal justice considerations.
. . .
“Research shows that once victims get support, they’re more likely to cooperate with the criminal justice system,” [said Bea Hanson, acting director of the Justice Department’s Office on Violence Against Women].
Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process on SSRN. Here is the abstract:
Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform. This short statement acknowledges that consensus, and lays out a framework for change. The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective. We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.
Eric M. Freedman (Hofstra University - School of Law) has posted Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings after Martinez and Pinholster (41 Hofstra L.Rev. (2013 Forthcoming)) on SSRN. Here is the abstract:
This piece, to be published in Part 1 of Hofstra Law Review’s forthcoming symposium marking the tenth anniversary of the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, considers the converging pressures now impelling the states to provide the effective assistance of counsel in state capital post-conviction proceedings. On the one hand, Martinez v. Ryan, 132 S. Ct. 1309 (2012) - a case that will likely be expanded to a number of additional procedural and substantive contexts - warns the states that if they fail to provide such counsel, their capital convictions will be subject to searching federal review. On the other hand, Cullen v. Pinholster, 131 S.Ct. 1388 (2011), offers the states the promise that if they do provide such counsel their capital convictions will be very deferentially treated on federal review. Thus, the forces of federalism may cause the states to adopt a beneficial reform that the Supreme Court has been unwilling to mandate under the Constitution.
Wednesday, April 24, 2013
Zachary D. Clopton (United States Attorney's Office – Northern District of Illinois) has posted Replacing the Presumption Against Extraterritoriality (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
The presumption against extraterritoriality tells courts to read a territorial limit into statutes that are ambiguous about their geographic reach. This canon of construction has deep roots in Anglo-American law, and the U.S. Supreme Court recently reaffirmed this principle of statutory interpretation in Morrison v. National Australia Bank. Yet the presumption’s continual invocation belies a deeper reality — none of the purported justifications for the presumption against extraterritoriality hold water. Older decisions look to international law or conflict-of-laws principles, but these bodies of law have changed such that they no longer support a territorial rule. Modern courts suggest that the presumption avoids conflicts with foreign states and approximates legislative attention, yet these same decisions show the presumption is poorly attuned to either of these laudable goals. And while separation of powers, due process, and predictability are superficially served by this rule, they too crumble in the face of serious scrutiny.
Aurelie Ouss and Alexander Peysakhovich (Harvard University and Harvard University - Program for Evolutionary Dynamics) have posted When Punishment Doesn't Pay: 'Cold Glow' and Decisions to Punish on SSRN. Here is the abstract:
Economic theories of punishment focus on determining the levels of punishment that will provide maximal social material payoffs. In calculating these levels, several parameters are important: total social costs, total social benefits and the probability that defectors are apprehended. However, often times social levels of punishment are determined by aggregates of individual decisions. Research in behavioral economics, psychology and neuroscience shows that individuals appear to treat punishment as a private good ("cold glow") and so individual decisions may be inappropriately responsive to the above parameters. This means that, depending on environment, aggregate punishment levels can be predictably above or below optimally deterring benchmarks and final social outcomes (e.g.. levels of cooperation and total social costs incurred) can be highly inefficient. We confirm these predictions in a series of experiments. Our research highlights the importance of understanding the psychology of punishment for understanding economically important outcomes and for designing social mechanisms.
Justin F. Marceau (University of Denver Sturm College of Law) has posted Gideon's Shadow (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
The right to counsel is regarded as a right without peer, even in a field of litigation saturated with constitutional protections. But from this elevated, elite-right status, the right to counsel casts a shadow over the other, less prominent criminal procedure rights. Elaborating on this paradoxical aspect of the Gideon right – that the very prominence of the right tends to dilute other rights, or at least justify limitations on non-Gideon rights – this essay analyzes the judicial and scholarly practice of employing the counsel right as a cudgel to curb other rights.
Tuesday, April 23, 2013
Ingrid V. Eagly (University of California, Los Angeles (UCLA) - School of Law) has posted Gideon's Migration (122 Yale Law Journal 101 (2013)) on SSRN. Here is the abstract:
For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright’s legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon’s migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum.
Jessica L. West (Vermont Law School) has posted Is Injustice Relevant? Narrative and Blameworthiness in Protester Trials (Temple Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article examines application of the doctrine of relevance to exclude evidence of the motivations underlying the actions of civilly disobedient criminal defendants. While not constitutionally protected, civil disobedience plays an important role in the political, social and legal history of the United States. Though acts of civil disobedience involve violations of law, actions of protest differ from actions of non-protest crime in a number of important respects. Civilly disobedient protesters undertake their action openly, motivated by the desire to call public attention to an injustice. Their motivation is distinct from that of non-protester criminal defendants who seek to promote individual goals. Despite the importance of protester motivation in distinguishing the civilly disobedient defendant, courts routinely exclude evidence of protester motivations as not relevant in criminal proceedings. Applied broadly in many contexts, the doctrine of relevance is applied narrowly in the context of motivations of protesters. The constrained application utilized in protester trials overlooks evolving understandings of evidentiary relevance. The most important of these evolving concepts are narrative relevance and blameworthiness. Evidence of underlying motivation provides an essential piece of a cohesive narrative explaining a protester’s actions and intentions. The evidence also permits a fact finder to conduct the evaluation of blameworthiness required for a determination of criminal culpability. Ultimately, the article concludes that courts should recognize the admissibility of protester motivation within criminal trials of civilly disobedient protesters.
Monday, April 22, 2013
From the New York Times:
BOSTON — The surviving suspect in the Boston Marathon bombings was charged on Monday with using a “weapon of mass destruction” that resulted in three deaths and more than 200 injuries, as law enforcement officials provided the most detailed account of the bombing to date.
. . .
The White House said earlier Monday that Dzhokhar Tsarnaev would not be tried as an enemy combatant. “We will prosecute this terrorist through our civilian system of justice,” said Jay Carney, the White House press secretary.
Mr. Carney noted that it was illegal to try an American citizen in a military commission, and that a number of high-profile terrorism cases were handled in the civilian court system, including that of the would-be bomber who tried to bring down a passenger jet around Christmas 2009 with explosives in his underwear.
Jacqueline Hodgson (University of Warwick - School of Law) has posted The Impact of Salduz in France: Making Custodial Legal Advice More Effective (92 Criminal Justice Matters 14-15 (Forthcoming)) on SSRN. Here is the abstract:
Like many other jurisdictions, France was reluctant to consider the ruling in Salduz v Turkey (2008) as applicable to its own criminal procedure, given the regime of safeguards in place, most notably judicial supervision. However, after defence lawyers litigated successfully in the criminal and appeal courts, as well as the constitutional council (Conseil constitutionnel), in 2011 France was finally obliged to make provision, for the first time, for lawyers to be present during the police interrogation of suspects. This is a significant change in the pre-trial investigation regime. The public prosecutor’s responsibility to oversee the police detention and interrogation of suspects is no longer regarded as justification for the exclusion of defence lawyers from this phase of the investigation. However, although the presence of the lawyer during the garde à vue is a significant improvement to defence rights, there are still concerns that the right can be delayed and that the lawyer's role is constrained to that of passive observer.
Hannah Brenner (Michigan State University - College of Law) has posted Transcending the Criminal Law's 'One Size Fits All' Response to Domestic Violence (William & Mary Journal of Women and the Law, Vol. 19, 2013) on SSRN. Here is the abstract:
Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.