Saturday, May 11, 2013
Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted A Right to Remain Psychotic? A New Standard for Involuntary Treatment in Light of Current Science (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:
Mass shootings, such as the killing of school children and staff in Newtown, Connecticut, have provided brutal reminders of inadequacies in our nation’s mental health system. In the wake of these shootings, President Obama asserted that “[w]e are going to need to work on making access to mental health care as easy as access to a gun.” But what should society do when the person needing mental health treatment refuses care — when the problem is not rooted in access but in free will? When is involuntary treatment justified? In deciding whether to forcibly medicate, multiple interests come into play, including patient autonomy, public safety, and the patient’s medical welfare. As a society, we have overemphasized patient autonomy and underemphasized patient welfare to the detriment not only of the patient’s well being but also of public safety — and even to the detriment of patient autonomy itself.
Friday, May 10, 2013
From the Blog of LegalTimes:
The Justice Department wants to keep secret an internal legal memo that addresses the scope of the authority under which the FBI can seek records from telecommunications companies.
DOJ lawyers have asked the U.S. Court of Appeals for the D.C. Circuit to protect the Office of Legal Counsel memo from disclosure in an ongoing public records suit. The government contends the document is protected by the deliberative process privilege.
"Mandatory disclosure of OLC's opinions would chill deliberative discussions within the Executive Branch," Daniel Tenny, a Justice Department appellate lawyer, said in a brief filed in the appeals court May 7.
Justin Roth Muehlmeyer has posted Losing the Polestar of Legislative Intent in Double Jeopardy Multiple Punishment: Adopting a Modification to Blockburger’s Abstract Elements Test on SSRN. Here is the abstract:
As the United States Supreme Court continues to apply Blockburger ambiguously in the context of vague statutes to determine whether two offenses are the “same offense” under the Fifth Amendment, a rift in multiple punishment jurisprudence is developing amongst state supreme and federal circuit courts as to whether Blockburger has been modified. The modified Blockburger approach takes the position that Blockburger should not be applied so strictly in the context of vague statutes, and that resort must be had to the prosecution’s legal theory of the case, which includes facts or evidence as alleged, to determine whether one offense requires proof of evidence the other does not. When courts realize that the modification is an exception to Blockburger and not a replacement, it is clear that the modification is not a deviation from federal law, but a solution to it that is implicit in U.S. Supreme Court jurisprudence. More importantly, the modified approach puts the analysis back on its proper track of determining legislative intent, rather than turning on mere accidents of words. The states should follow New Mexico’s adoption of the modification as a shining example of how to interpret the federal jurisprudence, and federal courts should expressly recognize that their jurisprudence does lead to the conclusion that the abstract elements test of Blockburger, without using the legal theory of the prosecution for vague statutes, is not logically or practically sound. This article clarifies the debate surrounding the scope of Blockburger and argues that the modification fits comfortably with Blockburger and the principles of the Fifth Amendment.
Erik James Girvan , Robert J. Cramer , Caroline Titcomb , Tess M.S. Neal and Stanley Brodsky (University of Oregon School of Law , Sam Houston State University , University of Alabama , University of Massachusetts at Worcester - University of Massachusetts Medical School and University of Alabama) has posted The Propriety of Peremptory Challenges for Perceived Personality Traits (Law & Psychology Review, Vol. 37, 47, 2013) on SSRN. Here is the abstract:
There is substantial controversy over the extent to which social science should be used in jury selection. Underlying the debate are two competing interests in the make-up of a jury: a privilege to strike prospective jurors on subjective grounds, which supports scientific jury selection, and a collective interest of citizens to be free from exclusion from jury service, which does not. While the incommensurability of the interests precludes resolution of the controversy in the abstract, specific solutions are possible. Using the example of selection of jurors based upon their respective levels of extraversion, we describe how the competing interests frequently do not apply to concrete cases. In the subsequent analysis, we show that, rhetoric notwithstanding, a normative preference for adhering to tradition and institutional inertia are the primary instrumental considerations for determining whether peremptory challenges based upon personality traits like extraversion ought to be allowed. Consistent with this analysis, we conclude that the practice of striking jurors based upon estimates of such personality traits is appropriate.
Nancy J. King (Vanderbilt University - Law School) has posted Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye (Duquesne University Law Review, Vol. 51, 2013) on SSRN. Here is the abstract:
This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.
Michelle Madden Dempsey (Villanova University School of Law) has posted Book Review of Michael J. Zimmerman's The Immorality of Punishment (Law and Philosophy, Vol. 32, p. 333, 2013) on SSRN. Here is the abstract:
This short essay reviews Michael Zimmerman’s recent book, in which he argues that legal punishment lacks moral justification. While sympathetic to Zimmerman’s project, the essay critiques the account of moral responsibility that underpins Zimmerman’s argument.
This Essay asks whether federal criminal defendants receive fairer process today than they did in 1963, when Gideon v. Wainwright was decided. It concludes that in many situations they do not; indeed, they often receive far worse. Although Gideon and the Criminal Justice Act of 1964 undoubtedly improved the quality and availability of counsel in the federal courts, extraordinary damage has been done since then to the aspect of the criminal justice system that makes lawyers so valuable: the adversary process. Sentencing severity, the control of that severity by prosecutors rather than judges or juries, and high rates of pretrial detention have greatly limited defendants’ ability to challenge the government’s version of the facts and the law. This Essay briefly describes federal criminal practice as it existed in 1963 and illustrates the shifts that have occurred by discussing current practice in the federal public defender office in New York City.
Thursday, May 9, 2013
Orin Kerr, no fan of the "mosiac theory" of the Fourth Amendment, has this helpful post at The Volokh Conspiracy. In part:
The Supreme Court has consistently rejected having special kinds of probable cause in discrete settings, most recently in its unanimous decision this February in Florida v. Harris. See also United States v. Grubbs. Given that refusal to adopt special kinds of probable cause requirements, it seems a bit jarring for Judge Murphy to announce that warrants for location tracking have special requirements. Perhaps such special requirements are a good idea as a matter of policy. But it seems difficult to justify special rules of probable cause as a matter of Supreme Court doctrine in light of Harris and Grubbs.
From the New York Times:
On Thursday, federal prosecutors in Brooklyn unsealed an indictment charging eight members of the New York crew – including their suspected ringleader who was found dead in the Dominican Republic on April 27 — offering a glimpse into what the authorities said was one of the most sophisticated and effective cybercrime attacks ever uncovered.
. . .
“New technologies and the rapid growth of the Internet have eliminated the traditional borders of financial crimes and provided new opportunities for the criminal element to threaten the world’s financial systems,” said Steven Hughes, a Secret Service special agent, who participated in the investigation. “However, as demonstrated by the charges and arrests announced today, the Secret Service and its law enforcement partners have adapted to these technological advancements and utilized cutting edge investigative techniques to thwart this cybercriminal activity.”
L. Song Richardson (pictured) and Phillip Atiba Goff (University of Iowa - College of Law and UCLA Department of Psychology) have posted Implicit Racial Bias in Public Defender Triage (Yale Law Journal, Vol. 122, 2013) on SSRN. Here is the abstract:
Despite the promise of Gideon, providing “the guiding hand of counsel” to indigent defendants remains unmanageable, largely because the nation’s public defender offices are overworked and underfunded. Faced with overwhelming caseloads and inadequate resources, public defenders must engage in triage, deciding which cases deserve attention and which do not. Although scholars have recognized the need to develop standards for making these difficult judgments, they have paid little attention to how implicit, i.e., unconscious, biases may affect those decisions. There is reason to suspect that unconscious biases will influence public defender decisionmaking due to generations of racial stereotypes specific to stigmatized groups and crime. This Essay urges legal scholars and practitioners to consider how implicit biases may influence the rationing of defense entitlements and suggests ways to safeguard against the effects of these unconscious forces.
Darryl K. Brown (University of Virginia School of Law) has posted Lafler's Remedial Uncertainty: Why Prosecutors Can Rest Easy (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:
Some prosecutors are dismayed by the U.S. Supreme Court's decision in Lafler v. Cooper. This very brief (2,000 words) comment responds to a recent version of that concern. Lafler held that a defendant who declined a plea bargain offer due to his attorney's incompetent advice, and was later convicted at trial, must be reoffered the original bargain as the first step in a remedy for denial of his right to effective counsel. Some prosecutors worry that defendants will exploit Lafler to take a shot at trial while still keeping the plea bargain in reserve. In four pages, I explain why they should not worry. Lafler does not guarantee defendants a sentence based on the bargain, only a chance to present that bargain to a trial court that now knows (from the intervening trial) a great deal more about a defendant's case, and which has clear authority, after Lafler, not to vacate the post-trial conviction and sentence. Further, few defendants will find it as easy as Mr. Cooper did to prove that his lawyer provided ineffective representation. And in any case defendants will have to wait years, in prison, after a trial conviction to win a Lafler claim (usually in habeas litigation) and a chance to convince a judge to resentence on the bargain's terms.
A new study has found a relationship between cortisol levels in our hair and prevalence of metabolic syndrome (a cluster of abnormalities that increase the likelihood of developing diabetes and heart disease). Here’s how the New York Times describes the study:
High levels of cortisol — the so-called stress hormone — have been associated with
cardiovascular disease in some studies, but not in others. This may be because
measuring cortisol in blood or saliva at one point in time may pick up acute
stress, but it fails to account for long-term stress. . . . Now Dutch
researchers have assessed cortisol levels over several months by analyzing
scalp hair samples. . . . The researchers measured the cortisol content in hair
samples corresponding to roughly three months of growth from 283 older men and
women, average age 75. They also gathered self-reported data about coronary
heart disease, stroke, peripheral artery disease, Type 2 diabetes, lung
disease, cancer and osteoporosis. . . . Compared with those in the lowest quarter
for cortisol, those in the highest quarter had about three times the risk for
cardiovascular disease and diabetes.
In the actual paper, the researchers say little or nothing about “stress,” and if I recall correctly, the relationship between cortisol and stress can be complicated. But the research raises the
possibility that we will someday identify reliable measurements of chronic stress over time. Of course, we may need more than just your hair. But in what I call the experiential future, such evidence—combined perhaps with other physiological, neurological, and psychiatric data—may enable us to make better assessments of chronic stress levels than we can now.
Better measurements of chronic stress could transform the way we measure damages in tort cases and measure punishment severity in criminal cases. Billions of dollars change hands every year based on difficult-to-verify assertions about pain and stress. Similarly, we adjust the severity of incarceration by changing the duration of sentences and pay almost no attention to the very different ways in which prisoners experience confinement. Measurements of stress levels could also help determine when an interrogation tactic constitutes torture.
Of course, forensic techniques encourage people to use countermeasures. In the cortisol-hair study, for example, one measurement was apparently affected by rates of shampooing while another was not. So I’m not suggesting there will be a silver bullet that solves all measurement problems. When evaluating the scientific research, however, it is important to remember just how bad we are at measuring stress levels now, despite the fact that we make such assessments every day. The technology need hardly be perfect to represent an improvement.
[Originally posted at Harvard Law School's Petrie-Flom Blog]
Wednesday, May 8, 2013
William W. Berry III (University of Mississippi School of Law) has posted Eighth Amendment Differentness (Missouri Law Review (Symposium), Forthcoming) on SSRN. Here is the abstract:
This symposium article is part of a broader discussion framed by the question of whether the United States Supreme Court’s recent decision in Miller v. Alabama was a “bombshell” or a “baby step.” Miller held that the Eighth Amendment barred the use of mandatory juvenile life-without-parole (JLWOP) sentences.
As the fifth case in a decade to expand the scope of the Eighth Amendment and the second to broaden its application to juvenile life-without-parole, Miller may be no more than another incremental step within a broader line of cases. On the other hand, Miller suggests a number of possible avenues for considering how to broaden the Eighth Amendment.
From The New York Times:
Jeffrey K. Skilling, imprisoned for the last six years because of his role in the fraud that caused the collapse of Enron, has reached a deal that could reduce his sentence by more than a decade.
As part of the agreement with the Justice Department, the former chief executive of the energy giant will waive his rights to any further appeals. In addition, he has agreed to allow more than $40 million of assets that were seized from him to be distributed to victims of Enron’s failure.
Bruce A. Green (Fordham University School of Law) has posted Federal Criminal Discovery Reform: A Legislative Approach (Mercer Law Review, Vol. 64, p. 639, 2013) on SSRN. Here is the abstract:
In general, discovery is far narrower in federal criminal cases than in federal civil litigation. Under current federal law, prosecutors do not have to disclose evidence and information that is favorable to the defense for its use in investigating, advising the defendant, plea negotiations or trial, unless the favorable evidence falls within one of several narrow categories or might be probative enough to produce an acquittal. Proponents of broader federal criminal discovery law express concern both that disclosure is too limited to ensure fair outcomes and provide a fair process in criminal cases and that prosecutors do not universally comply even with their existing obligations.
From the New York Times:
WASHINGTON — The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.
The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders. That proposal, however, bogged down amid concerns by other agencies, like the Commerce Department, about quashing Silicon Valley innovation.
Tuesday, May 7, 2013
Since the mid-1980’s the U.S. women prison population has increased by more than 430%. More than 66% of incarcerated women are mothers. It was estimated that in the U.S. alone more than 250,000 minor children suffer from maternal separation due to incarceration. Similar trends of a growing number of children affected by maternal incarceration are also identified in Europe and other regions. We argue that, in this reality, Prison Nursery Programs, which allow children to accompany their mothers to prison, provide a valuable alternative. These programs, if properly implemented, can benefit not only the best interests of the child, but also the mother, the state and the general public.
Anyone teaching crim pro/police who has not already seen Tracey Maclin’s new book, The Supreme Court and the Fourth Amendment Exclusionary Rule (OUP 2013) should do so before teaching Mapp, Linkletter, Alderman, Calandra and Leon. The book does not break new normative or empirical ground. Rather, it integrate Supreme Court history, both from the papers of the justices and the biographical literature, into the history of e-rule doctrine. The book is a goldmine for scholars and indispensable background for classroom teaching.
Erik James Girvan (University of Oregon School of Law) has posted Rethinking the Economic Model of Deterrence: How Insights from Empirical Social Science Could Affect Policies Towards Crime and Punishment (5 REV. LAW & ECON. 461 (2009)) on SSRN. Here is the abstract:
Game-theoretic models incorporating neo-classical economic assumptions can be a powerful tool for identifying and analyzing issues relevant to legal policy. In this paper I argue that, where those assumptions are deficient, the efficacy of and insights from such models can be improved by incorporating insights from experimental social sciences. Following this paradigm, I propose an expansion of the neo-classical deterrence model of criminal behavior to incorporate, as reputation effects, social scientific theory regarding the effects of in-group norms on behavior. Analysis of the expanded model shows that there are material differences between the classic and expanded models in predictions, the latter of which are more consistent with macro-level observations. I then discuss some substantive implications of the predictions of the expanded model for criminal legal policy.
John Sturgis has posted Help! I Need Somebody (or Do I?): A Discussion of Community Caretaking and 'Assistance Seizures' Under Iowa Law (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
Police officers often engage in activity that extends beyond their role as criminal investigators. Whether it is helping with a flat tire or providing directions, police officers serve as “community caretakers” by providing aid to individuals and the general public. Some police activities, however, are more invasive than others and constitute searches or seizures under the Fourth Amendment. Predominantly, state courts evaluate the reasonableness of these activities under the community caretaking doctrine. The formulation and application of this doctrine is far from uniform. In State v. Kurth, the Iowa Supreme Court suggested its willingness to address the community caretaking doctrine under Article I, Section 8 of the Iowa Constitution, which is identical to the Fourth Amendment in content. This Note argues that the Court should reevaluate its treatment of a specific type of community caretaking activity, the “assistance seizure,” which occurs when an officer stops a vehicle (therefore “seizing” it) for the purpose of providing aid. In determining the reasonableness of assistance seizures, this Note proposes two modifications to Iowa’s existing jurisprudence. First, the Court should adopt a requirement that an officer act with subjective good faith in providing aid, and that his actions be objectively reasonable. Second, it should adopt the view that seizures performed to help the subject of the seizure, as opposed to the general public, are presumptively unreasonable.