Friday, May 3, 2013
Since the beginning of recorded history societies have punished offenders while at the same time trying to justify the practice on moral and rational grounds and to clarify the relationship between punishment and justice. Traditionally, deontological justifications, utilitarian justifications, or a mix of the two have been advanced to justify the imposition of punishment upon wrongdoers. In this article, I advance a new conceptual spin on the mixed theorist approach to criminal punishment – one that can hopefully resonate not just among legal philosophers, but also among ordinary citizens,i.e. the people who are most affected by the criminal law. Distancing myself from previous scholarship, which has used utilitarian arguments to point out the shortcomings of retributivism and vice-versa, on the one hand I attack the philosophical foundations of retributivism (currently the predominant rationale for punishment) on deontological grounds; on the other hand I attack the consequentialist rationales on consequentialist grounds. Concluding that neither approach – as they all fail under their own standards – is sufficient per se to justify criminal punishment in a liberal democracy, I argue that a mixed theory approach, which is usually presented as a matter of preference, is instead a matter of necessity if we want a criminal justice system that, while still not perfect, can be defended on both rational and moral grounds. In this sense, retributive considerations are meant to serve as the normative check on a system that aims at rationality and efficiency, and it is thus strongly utilitarian in character. I conclude by arguing that something more than punishment is required if we want to implement a system that really pursues justice, and I suggest that a path worth exploring in that regard is the one laid down by restorative justice. If nothing else, hopefully my blistering attack on retributivism will serve the purpose of rekindling a debate that seems to have accepted the dominance of retributivist positions.
Whitney T. Martin has posted From the Police Precinct to Your Neighbor's Coffee Table: Limiting Public Dissemination of Mug Shots During an Ongoing Criminal Proceeding Under the Freedom of Information Act (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
The Freedom of Information Act provides for public access to government agency records. Agencies have discretion, however, to withhold any information that falls under one of the Act’s exemptions, including, in some instances, private individual records. While the Supreme Court has recognized that criminal detainees have a privacy interest in restricted dissemination of their criminal records, it has yet to rule on whether the same privacy interest exists in mug shots. Currently, there is a circuit split over this issue. This Note analyzes the split in light of the purpose and history of the Freedom of Information Act, and argues that future courts that entertain the issue should adopt the reasoning employed by the Tenth Circuit — namely, recognizing a privacy right in detainees’ mug shots in ongoing criminal proceedings. The Supreme Court has already recognized the detrimental and lasting stigma on the not-yet convicted detainee. In holding that such a privacy interest exists, the Court will maintain consistency in tending towards increased privacy protection under the Act, minimize negative stigma, and still adhere to the Act’s purpose.
Francine T. Sherman (Boston College - Law School) has posted Making Detention Reform Work for Girls: A Guide to Juvenile Detention Reform (Annie E. Casey Foundation Juvenile Detention Alternatives Practice Guides, No. 5, 2013) on SSRN. Here is the abstract:
Throughout the nation, court-involved girls frequently pose minimal risk to public safety but suffer with significant social service needs. Data on detention utilization show that girls are being disproportionately detained for misdemeanors, status offenses and technical violations of probation and parole. In short, many girls enter detention for the wrong reasons and many remain in detention for extended periods harmful to them and contrary to best practice.
This practice guide responds to a call from both mature and new sites from within the Juvenile Detention Alternatives Initiative (JDAI) network, which continue to find that effectively serving and supervising girls is among the most difficult issues in detention reform.
Elizabeth Rapaport (University of New Mexico - School of Law) has posted You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy on SSRN. Here is the abstract:
The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth. Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase. By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs. This impression does not withstand scrutiny.
Ian P. Farrell and Justin F. Marceau (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Taking Voluntariness Seriously (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
The near-unanimous belief among courts and commentators that the criminal law contains a voluntary act requirement obscures deep disagreement about the meaning, scope, and application of that requirement. This Article explores these longstanding and vexing theoretical disagreements, identifies practical problems that result from these uncertainties, and suggests a novel framework for substantially resolving the confusion. The resolution of these questions is no mere academic exercise. The difference in many cases, particularly strict liability prosecutions, will be the difference between guilt and innocence.
Thursday, May 2, 2013
Yxta Maya Murray (Loyola Law School Los Angeles) has posted Punishment and the Costs of Knowledge (Hearing Heaney, Four Courts Press (2013/14)) on SSRN. Here is the abstract:
A too-bookish law professor doesn't know if literature has helped refine her position on the death penalty, or just turned her into an insufferable snob: An essay on elitism, bibliomania, confusion, and capital punishment.
April M. Zeoli , Hannah Brenner and Alexis Norris (Michigan State University - School of Criminal Justice, Michigan State University - College of Law and Michigan State University) have posted A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:
In the United States in 2005, more than 60% of the more than 564,000 nonfatal, violent incidents perpetrated by intimate partners were reported to the police. Whether police arrested the alleged perpetrators of domestic violence in response to these reports varied widely, based in part on state law governing the ability or duty of an officer to make a warrantless arrest. Although all 50 states and the District of Columbia currently allow officers to make warrantless arrests for domestic violence, state laws differ from one another in multiple, important ways. This article details, compares, and analyzes differences between state domestic violence warrantless arrest laws.
Joan Petersilia and Jessica Snyder (Stanford University and Stanford Law School) have posted Looking Past the Hype: 10 Questions Everyone Should Ask About California's Prison Realignment (California Journal of Politics and Policy. Volume 5, Issue 2, Pages 266–306, ISSN (Online) 1944-4370, ISSN (Print) 2194-6132, DOI: 10.1515/cjpp-2013-0011, April 2013) on SSRN. Here is the abstract:
California’s Criminal Justice Realignment Act passed in 2011 shifted vast discretion for managing lower-level offenders from the state to the county, allocated over $2 billion in the first 2 years for local programs, and altered sentences for more than 100,000 offenders. Despite the fact that it is the biggest penal experiment in modern history, the state provided no funding to evaluate its overall effect on crime, incarceration, justice agencies, or recidivism. We provide a framework for a comprehensive evaluation by raising 10 essential questions: (1) Have prison populations been reduced and care sufficiently improved to bring prison medical care up to a Constitutional standard? (2) What is the impact on victim rights and safety? (3) Will more offenders participate in treatment programs, and will recidivism be reduced? (4) Will there be equitable sentencing and treatment across counties? (5) What is the impact on jail crowding, conditions, and litigation? (6) What is the impact on police, prosecution, defense, and judges? (7) What is the impact on probation and parole? (8) What is the impact on crime rates and community life? (9) How much will realignment cost? Who pays? (10) Have we increased the number of people under criminal justice supervision?
Kaaryn Gustafson (University of Connecticut - School of Law) has posted Degradation Ceremonies and the Criminalization of Low-Income Women (3 U.C. Irvine Law Review, Vol. 3, 2013, Forthcoming) on SSRN. Here is the abstract:
This article, a call for both empirical social scientists and critical race theorists to engage with each other in careful interpretive analysis, applies sociologist Harold Garfinkel’s concept of ceremonial degradation to policies, practices, and proposals targeting low-income women of color in the United States. This article offers several examples of degradation ceremonies, including: excessive penalties and extrajudicial public shaming for women convicted of welfare fraud; mandatory drug testing of welfare recipients; high-publicity criminal prosecutions of mothers who violate school district residency requirements to enroll their children in more affluent schools; and tough criminal penalties for those who possess stolen infant formula or other necessities low-income Americans have difficulty obtaining. This article also describes some of the functions served by degradation ceremonies, including: the legitimation of material inequality, the perpetuation of social and economic myths, the policing of status quo distributions of property, and the satisfaction of the public’s emotional desire for sadomasochistic ritual. The article’s final section calls upon policy makers and scholars to acknowledge the degradation of low-income women that now occurs through policy and practice and offers broader suggestions for subverting the ceremonial degradation of the poor.
Jenny Roberts (American University, Washington College of Law) has posted Effective Plea Bargaining Counsel (Yale Law Journal, Vol. 122, No. 100, 2013) on SSRN. Here is the abstract:
Fifty years ago, Clarence Earl Gideon needed an effective trial attorney. The Supreme Court agreed with Gideon that the Sixth Amendment guaranteed him the right to counsel at trial. Recently, Galin Frye and Anthony Cooper also needed effective representation. These two men, unlike Gideon, wanted to plead guilty and thus needed effective plea bargaining counsel. However, their attorneys failed to represent them effectively, and the Supreme Court - recognizing the reality that ninety-five percent of all convictions follow guilty pleas and not trials - ruled in favor of Frye and Cooper.
Hakan Inal (Izmir University) has posted Impossibility of the Existence of Opposite Equilibrium Preferences on Law Enforcement on SSRN. Here is the abstract:
Law enforcement is among the key elements of a civil society that ensures the achievement of a higher social welfare. An enforcement authority determines the level of public enforcement of law. In this paper, I show that in a standard model of law enforcement in the literature, it is impossible to have agents with “opposite equilibrium preferences” over the level of public enforcement of law in the same society.
I started out my [current guest blogging stint at Prawfsblawg] by discussing the mystery of credit for time served. I just saw most of today's Lindsey Lohan hearing, and it raises what is at least a related issue. Some time ago, Lohan's lawyer and the prosecution reached a plea deal for Lohan to spend 90 days in rehabiltation. There was also a set of conditions attached to the kind of rehabilitation facility that would be acceptable to the prosecution. At the last minute, Lohan decided to check into a different facility than the one the prosecution anticipated. (According to TMZ, she wanted a facility that permitted her to smoke.)
It is unclear whether or not the California facility where she is currently enrolled satisfies the requirements of the plea deal. Today the court simply acknowledged the potential dispute. If the prosecution is not satisfied with the facility, the court will hold a hearing to interpret the plea agreement. If the facility does not satisfy the plea agreement, will Lohan receive credit toward her 90 days for the time she is already spending in her current facility? Perhaps we'll find out, and maybe some California lawyers who have seen similar disputes will weigh in.
There is at least some evidence that Lohan was not taking her agreement with prosecutors very seriously. Perhaps that would bear on the outcome. And maybe it's important in rehab to stick with the same therapist for a sustained period of time. Otherwise, however, I have argued that courts and legislatures should be more open-minded about giving offenders partial credit for time served.
[Originally posted at Prawfsblawg]
UPDATE: TMZ reports that Lohan was not at rehab when her lawyer said she was.
Corey S. Davis , Damika Webb and Scott Burris (Network for Public Health Law , Temple University - James E. Beasley School of Law and Temple University - James E. Beasley School of Law) have posted Changing Law from Barrier to Facilitator of Opioid Overdose Prevention on SSRN. Here is the abstract:
Evidence shows that overdose bystanders are willing and able to safely administer naloxone in an overdose situation. However, since bystanders often do not have the drug, they must call 911 to summon the first responders who do. Unfortunately, they often refrain from doing so because they fear arrest and prosecution — a fear that evidence suggests may be justified. When first responders are summoned, it is often too late: a review of medical examiner data in North Carolina showed that over half of accidental overdose victims died by the time paramedics arrived. These legal barriers are unintended consequences of attempts to address other problems. The public interest is, in general, served by regulatory control of prescription medications, which may include criminal sanctions to deter unauthorized distribution and use. However, laws directed towards that end have an extraordinarily severe side effect: thousands of preventable deaths every year. These laws can be modified to remove their negative effect while sustaining their original intent, and doing so presents a critical opportunity to save many lives at little or no cost.
Wednesday, May 1, 2013
Susan R. Klein and Ingrid B. Grobey (University of Texas School of Law and University of Texas at Austin - School of Law) have posted Overfederalization of Criminal Law: It's a Myth on SSRN. Here is the abstract:
We will proceed here in three parts. First, we will compare federal and state court caseloads, to determine whether the feds are encroaching on traditional state crimes, and whether the feds’ share of the national criminal caseload is increasing. Next, we will review whether there are any injustices associated with federal strict liability regulatory offenses. Are the feds targeting innocent citizens and corporations, and are the number of regulatory prosecutions increasing? Did the United States attorney in North Dakota or elsewhere unfairly target oil-drilling corporations? Finally, we will explore the issue of concurrent jurisdiction. Our federalism permits the states, as independent sovereigns, to enact different procedures and sentences to combat crime committed within their jurisdictions. Federal law enforcement “selects” defendants for federal prosecution for good reasons — state requests for help, defendant recidivism, and conduct that transcends state lines. As one example of concurrent jurisdiction, we examine states with different moral norms than the feds, focusing on the recent legalization of marijuana in Colorado and Washington. Are the feds hindering independent state norms in these and other areas, or fostering them? We conclude that none of the above-listed federalism critiques have much merit, and that the federal criminal justice system is handling itself quite well in these areas.
Jens David Ohlin (Cornell University - School of Law) has posted The One or the Many (Criminal Law & Philosophy, Forthcoming) on SSRN. Here is the abstract:
The following Review Essay, inspired by Tracy Isaacs’ new book, Moral Responsibility in Collective Contexts, connects the philosophical literature on group agency with recent trends in international criminal law. Part I of the Essay sketches out the relevant philosophical positions, including collectivist and individualist accounts of group agency. Particular attention is paid to Kornhauser and Sager’s development of the doctrinal paradox, Philip Pettit’s deployment of the paradox towards a general argument for group rationality, and Michael Bratman’s account of shared or joint intentions.
Jula Hughes (University of New Brunswick Faculty of Law) has posted Codification - Recodification: The Stephen Code and the Fate of Criminal Law Reform in Canada on SSRN. Here is the abstract:
This paper discusses the adoption of the Stephen Code as Canada’s criminal law and its implications for subsequent criminal law reform initiatives in Canada. It argues that systematic law reform has been unsuccessful because of certain features of the Stephen Code, despite theoretical assumptions that codification should facilitate law reform. This suggests that codification must meet certain additional criteria in order to fulfil the promise of enabling future change. At the same time, it becomes apparent that the Stephen Code was well positioned to be acceptable to political and judicial constituencies who had an on-going commitment to the common law. Thus, it is appropriate to characterize the Stephen Code as a politically successful codification attempt, but an attempt which ultimately fails to deliver on some of the theoretical promises of codification.
Mary Leary (Catholic University of America (CUA)) has posted Katz on a Hot Tin Roof - Saving the Fourth Amendment from Commercial Conditioning by Reviving Voluntariness in Disclosures to Third Parties on SSRN. Here is the abstract:
In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past.
In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed reframing the issue away from conventional commentary. The Missed Opportunity of United States v. Jones: Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World, 15 PENN. J. CON. L. 331, 333 (2012). That article posits that society has reached the point about which Justice Blackmun cautioned - the point at which privacy “expectations [have] been ‘conditioned’ by influences alien to well-recognized Fourth Amendment freedoms.” Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept the article defined as “commercial conditioning.” That proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made.
Mary Sigler (Arizona State University - College of Law) has posted Restoring the Moral Landscape: Character and Blame in Stuart Green's 'Thirteen Ways to Steal a Bicycle' on SSRN. Here is the abstract:
Stuart Green’s "Thirteen Ways to Steal a Bicycle" is a thoughtful and comprehensive analysis of the law and morality of theft that sets the terms of a long-overdue debate about the shift toward consolidation in Anglo-American theft law. Despite Green’s considerable achievement, however, I argue that his mixed approach — adopting a mixed theory of criminal responsibility and a mixed methodological approach — neglects relevant moral distinctions. In particular, I suggest that attention to motive and character may broaden the range of considerations relevant to the moral analysis that underlies Green’s legal prescriptions and provide an added dimension to the normative assessment of popular opinion.
Elaine Craig (Dalhousie University - Schulich School of Law) has posted The Ethical Obligations of Defence Counsel in Sexual Assault Cases (Forthcoming (2014) 51(2) Osgoode Hall Law Journal) on SSRN. Here is the abstract:
The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position.
This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case (including the evidence they seek to admit, the lines of examination and cross-examination they pursue and the closing arguments they submit) to conduct that supports finding of facts within the bounds of law. Put another way, defence counsel are ethically precluded from using strategies and advancing arguments that rely for their probative value on three social assumptions about sexual violence that have been legally rejected as baseless and irrelevant.
Tuesday, April 30, 2013
The news release announcing this new site states:
NACDL President Steven D. Benjamin said, “NACDL’s Domestic Drone Information Center will serve as a comprehensive source of cutting-edge information on the proliferation of drones.” Benjamin sees the DDIC as filling a critical public need: “At the moment, people’s concerns about how drones will be used domestically are increasing, but information online remains scattered. The Domestic Drone Information Center aims to put everything in one place.”
To that end, the Domestic Drone Information Center aggregates news from leading publications across the nation. It features a comprehensive listing of legislative developments – federally, in each of the 50 states, and in select municipalities. It contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The DDIC also aggregates existing material, providing the public with a launching pad to additional information on domestic drones. For example, the DDIC features links to other leaders in this field, such as the Electronic Frontier Foundation and the documents it has compiled through an aggressive Freedom of Information Act lawsuit. As the status of domestic drones in America changes and new resources become available, the DDIC will continually offer the latest updates.