Saturday, June 1, 2013
This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not a bright-line rule derived from history, but a flexible approach that is workable today. Notwithstanding the press’s assumptions about him as a swing Justice, his approach is remarkably consistent and principled.
Christoph Engel (Max Planck Institute for Research on Collective Goods) has posted Deterrence by Imperfect Sanctions – A Public Good Experiment on SSRN. Here is the abstract:
Sanctions are often so weak that a money maximizing individual would not be deterred. In this paper I show that they may nonetheless serve a forward looking purpose if sufficiently many individuals are averse against advantageous inequity. Using the Fehr/Schmidt model (QJE 1999) I define three alternative channels: (a) identical preferences are common knowledge, but inequity is not pronounced enough to sustain cooperation; (b) heterogeneous preferences are common knowledge; (c) there is preference uncertainty. In a linear public good with punishment meted out by a disinterested participant, I test two implications of the model: (a) participants increase contributions in reaction to imperfect punishment; (b) imperfect punishment helps sustain cooperation if participants experience free-riding.
Friday, May 31, 2013
David H. Kaye (Penn State Law) has posted Associational Privacy, the Presumption of Innocence, and 'Corruption of Blood' as Constitutional Metaphors in the Debate on 'Familial Searching' (American Criminal Law Review, November 2012) on SSRN. Here is the abstract:
This essay analyzes three constitutional claims about the emerging practice of trawling DNA databases for “near misses” to crime-scene samples that might reflect the fact that the DNA came from a first-degree relative of the nearly matching (but excluded) individual. These claims are that this type of “outer-directed” trawling (which casts suspicion on individual outside the database) is an infringement of constitutionally protected familial privacy, an affront to the presumption of innocence, and an unconstitutional “corruption of blood.” Upon inspection, the relevant constitutional provisions lend no more than metaphorical support to these objections to “familial searching.”
Natalia Antolak-Saper (Monash University - Faculty of Law) has posted The Role of Directed Verdicts in the Criminal Trial ((2012) 21 Journal of Judicial Administration 146-167) on SSRN. Here is the abstract:
In Australia, the right to a trial by jury is central to preserving the liberty of an accused against oppression and injustice. A right that is typically retained for serious criminal offences, it is accorded protection at a federal level through the Australian Constitution. Where the right to a trial by jury is exercised, the jury acts as the trier of fact, and the judge acts as the trier of law. However, in limited circumstances, a trial judge is permitted to direct the jury to return a particular verdict. Although such a direction undermines the clear demarcation of judge and jury, it is currently permissible under Australian law. This article discusses the purpose, regularity and practice of judicially directed verdicts in Australia. It primarily draws upon recent developments in the United Kingdom and Canada for the purpose of considering relevant policy arguments and reform options. It is suggested that judicially directed convictions should be abolished in Australia, whereas judicially directed acquittals should be appropriately reformed, in order to establish an appropriate framework for directed verdicts.
Caren Myers Morrison (Georgia State University - College of Law) has posted Negotiating Peremptory Challenges (Journal of Criminal Law and Criminology, 2013, Forthcoming) on SSRN. Here is the abstract:
Peremptory challenges enable litigants to remove otherwise qualified prospective jurors from the jury panel without any showing of cause, and accordingly are often exercised on the basis of race. In Batson v. Kentucky, the Supreme Court tried to remedy the most obvious abuses by requiring that strike proponents give a “race neutral” reason for the strike, and directing trial courts to assess the credibility of the explanation. But the Batson regime has proved spectacularly unsuccessful. It has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors.
Thursday, May 30, 2013
According to the Third-Party Doctrine, a person has no reasonable expectation of privacy in information that has been shared with others – including a bank, a phone company, or a credit card company. The doctrine got its start through an appeal to a locatable observer who corresponds, in literary terms, to a narrator with a limited perspective. This is the kind of perspective that courts have traditionally emphasized when explaining how to assess probable cause. The Third-Party Doctrine turns the limited perspective into an omniscient one. The doctrine takes apparently private conduct and classifies it as public, effectively treating the perspective of the “arresting officer” as if it could encompass large quantities of information, widely distributed in space and time.
From the New York Times:
The aggressive era of stop-and-frisk policing in New York City is, in every sense of the word, on trial: the subject of a high-stakes federal court case, scorching denunciations from civil rights leaders and emotional calls for its dismantlement by liberal lawmakers.
But in a stand that is surprising black leaders and worrying some allies, William C. Thompson Jr., the sole African-American candidate for mayor, is steadfastly unwilling to join the tear-it-down chorus.
. . .
Mr. Thompson is now bucking the left wing of his party on three fronts: by pledging to keep stop-and-frisk operations as a crime-fighting tool; proposing an inspector general who operates within the Police Department, rather than outside of it (“I don’t want to create additional bureaucracy,” he said); and opposing a City Council bill that would open state courts to legal claims of racial profiling by the Police Department. (He said it would divert precious city finances to endless legal bills.)
From Reuters, a look at some implemention issues related to legalization:
Governor John Hickenlooper on Tuesday signed into law measures to regulate the recreational use of marijuana in Colorado, including blood-level limits for motorists and setting up a voter referendum to impose a tax on the non-medical sale of cannabis.
. . .
In Washington state, the Liquor Control Board is required to establish regulations for the state's recreational marijuana industry. Earlier this month the agency released a set of draft rules that said marijuana must be grown indoors and tested for contaminants and potency. Licenses to grow, process and sell the drug would each cost $1,000 per year on top of a $250 application fee under the proposed guidelines.
From TalkLeft, more on the Colorado law:
The "driving while stoned" bill: Instead of 5 nanograms being per se against the law, or even a rebuttable presumption, it's now just a "permissible inference" which can be challenged. Blood tests can be refused, although a refusal will result in revocation of driving privileges.
Stephanos Bibas (University of Pennsylvania Law School) has posted Sacrificing Quality for Quantity: Better Focusing Prosecutors' Scarce Resources (Northwestern University Law Review Colloquy, Vol. 106, Pg. 138, 2011) on SSRN. Here is the abstract:
This short essay responds to Adam Gershowitz’s and Laura Killinger’s article The State (Never) Rests: How Excessive Prosecutorial Caseloads Harm Criminal Defendants. The authors rightly argue that prosecutorial overwork harms justice in any number of ways: it delays cases, frustrates victims, makes it harder to spot and free innocent defendants, and impedes lowering punishments for sympathetic defendants. The root problem, however, is less about underfunding than about skewed priorities and metrics of success. Too often, prosecutors do not think strategically about using their discretion to proactively set priorities and focus on system-wide tradeoffs. Throwing money at the problem would only pour fuel on the fire, encouraging prosecutors to widen their nets in the inexhaustible sea of potential cases. A surer solution is to refocus on making the best use of limited money, to change from worshipping quantity to prizing quality. Prosecutors need to focus not just on what to do but also how to do it: fairly, respectfully, and effectively.
Carvalho Salo (Federal University of Santa Maria (UFSM)) has posted On the Possibilities of a Queer Criminology: Homophobia as the Object of Study in the Criminal Sciences -- A Perspective Based on the Brazilian Reality on SSRN. Here is the abstract:
The purpose of this article is to approach queer theories and the critical perspectives of criminology in Brazil by analyzing both the conditions of possibility and the implications of a queer criminology. Homophobic violence is seen here as the object of study of a queer criminological perspective, whose ambition is the construction of a qualified perspective that is aware of diversity, concerned with human rights and, above all, non-discriminating towards the (positive and negative) political demands of social movements represented by gays, lesbians, bisexuals and transsexuals.
Constance B. Backhouse (University of Ottawa - Faculty of Law (Common Law)) has posted A Feminist Remedy for Sexual Assault: A Quest for Answers (Sexual Assault Law, Practice, and Activism in a Post Jane Doe Era, pp. 725-739, Elizabeth Sheehy, ed., University of Ottawa Press, 2012) on SSRN. Here is the abstract:
In this final chapter (chapter 28 of "Sexual Assault Law, Practice, and Activism in a Post Jane Doe Era"), Constance Backhouse returns to the very questions posed by Jane Doe’s activism and the Garneau Sisters who followed her: what is a feminist response to sexual assault? As a historian, Constance looks back at harsh sentencing laws for convicted rapists, revealing how embedded they were and remain in racial fear of and hatred directed at Africans and African-Canadians. She argues that feminists should not support prisons and should continue to explore restorative justice options, advocating more, not less, delegation of self-governance to offenders, in contrast, perhaps, to the directions identified by Gillian Balfour and Janice Du Mont. Constance points to a 1974 Ontario decision that awarded compensation to the complainant as a criminal remedy as an example of how to ensure restitution for women. She urges us to divest from criminal law responses and instead invest in the creative possibilities for recognizing and reimagining the harm of rape that feminist artists and authors can offer.
Jonathan Clough (Monash University - Faculty of Law) has posted Lawful Acts, Unlawful Images: The Problematic Definition of 'Child' Pornography (38 (3) Monash University Law Review, (2012), pp. 213-245) on SSRN. Here is the abstract:
Recent decades have seen increased national and international efforts to prosecute child pornography offenses. This increasing criminalization has been given greater urgency by the advent of digital technology, which allows offenders to produce and distribute such material with relative ease and anonymity. The interconnected nature of the Internet means that this is a global problem, and many jurisdictions have moved to strengthen their laws to punish each link in the chain, from production and distribution to possession. Central to these offenses is the definition of ‘child’. While internationally ‘child’ is generally defined as a person under the age of eighteen, the age of consent to sexual activity varies considerably between jurisdictions.
Michael M. O'Hear (Marquette University - Law School) has posted Not Just Kid Stuff? Extending Graham and Miller to Adults (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States Supreme Court has recently recognized new constitutional limitations on the use of life-without-parole (LWOP) sentences for juvenile offenders, but has not clearly indicated whether analogous limitations apply to the sentencing of adults. However, the Court’s treatment of LWOP as a qualitatively different and intrinsically more troubling punishment than any other sentence of incarceration does provide a plausible basis for adults to challenge their LWOP sentences, particularly when they have been imposed for nonviolent offenses or on a mandatory basis. At the same time, the Court’s Eighth Amendment reasoning suggests some reluctance to overturn sentencing practices that are in widespread use or otherwise seem to reflect deliberate, majoritarian decisionmaking. This Essay thus suggests a balancing test of sorts that may help to account for the Court’s varied Eighth Amendment decisions in noncapital cases since 1991. The Essay concludes by considering how this balancing approach might apply to the mandatory LWOP sentence established by 21 U.S.C. §841(b)(1)(A) for repeat drug offenders.
Wednesday, May 29, 2013
E. Lea Johnston (University of Florida - Fredric G. Levin College of Law) has posted Humane Punishment for Seriously Disordered Offenders: Sentencing Departures and Judicial Control Over Conditions of Confinement on SSRN. Here is the abstract:
At sentencing, a judge may foresee that an individual with a major mental disorder will experience serious psychological or physical harm in prison. In light of this reality and offenders’ other potential vulnerabilities, a number of jurisdictions currently allow judges to treat undue offender hardship as a mitigating factor at sentencing. In these jurisdictions, vulnerability to harm may militate toward an order of probation or a reduced term of confinement. Since these measures do not affect offenders’ day-to-day experience in confinement, these expressions of mitigation fail to protect adequately those vulnerable offenders who must serve time in prison. This article argues that judges should possess the authority to tailor the conditions of vulnerable, disordered offenders’ carceral sentences to ensure that sentences are humane, proportionate, and appropriate for serving the intended aims of punishment. To equalize, at least in part, conditions of confinement for this population, judges should consider ordering timely and periodic mental health evaluations by qualified professionals, disqualifying facilities with insufficient mental health or protective resources, specifying the facility or unit where an offender will serve or begin his sentence, and mandating certain treatment in prison. Allowing judges to exercise power over correctional conditions in this way will allow judges to fulfill better their institutional function of meting out appropriate, humane, and proportionate punishments, subject prison conditions to public scrutiny and debate, and help reform the image and reality of the criminal justice system for some of society’s most vulnerable individuals.
At ScotusBlog, Jordan Steiker has a post titled Innocence exception survives, innocence claim does not.
At The Wrongful Convictions Blog, Mark Godsey has a post titled Why is Scalia So Angry About Protecting the Innocent?
Tuesday, May 28, 2013
From the New York Times:
MIAMI — Lawyers for George Zimmerman, who is charged with second-degree murder in the killing of Trayvon Martin, will be barred from mentioning Mr. Martin’s marijuana use, history of fights or high school suspension during opening statements in Mr. Zimmerman’s trial, which begins June 10.
. . .
Mark O’Mara, Mr. Zimmerman’s lawyer, argued that Mr. Martin’s drug use could have made him aggressive and paranoid, which the defense said might have prompted him to attack Mr. Zimmerman, 29, a neighborhood watch volunteer.
“All of that fits in squarely to what the defense is going to present: that George Zimmerman was put in the position that he had to act in self-defense,” Mr. O’Mara said. “How could you keep us from arguing that?”
Judge Nelson replied, “The rules of evidence keep you from doing it.”
Chauncee D. Smith (Fordham University School of Law) has posted Deconstructing the Pipeline: Evaluating School-to-Prison Pipeline Equal Protection Cases Through a Structural Racism Framework on SSRN. Here is the abstract:
This article posits that a wide range of U.S. education and criminal justice policies and practices -- such as zero tolerance regimes, academic sorting, and school district financing methods -- collectively result in students of color being disparately pushed out of school and into prison. Vast empirical and qualitative research indicates that this dynamic process, known as the "school-to-prison pipeline", wreaks havoc upon today's minority population. Both anti-pipeline legal scholarship and equal protection case law tend to examine school-to-prison pipeline problems through an isolated, or perhaps overly-restricted, lens which inhibits the development of a jurisprudence that allows the pipeline's systemic invidiousness to meaningfully redressed. This article attempts to advance normative viewpoints and legal doctrine by deconstructing the pipeline through a structural racism framework.
From the New York Times:
The operators of what the authorities described as one of the world’s largest online money laundering organizations, a central hub for criminals trafficking in everything from stolen identities to child pornography, were charged in an indictment unsealed by federal prosecutors on Tuesday.
. . .
The business operated with even more anonymity, law enforcement officials say, than Bitcoin, a payment network started in 2009 to offer a decentralized way to create and transfer electronic cash around the world. Bitcoin transactions are stored in a public ledger, making it possible to trace Bitcoin transactions even years after the fact.
. . .
Once an account was established, a user could send or receive money to other users.
H.L.A. Hart’s insight, that some people may be guided by an offence provision because they take it as authoritative and not merely to avoid sanctions, has had an enormous influence upon criminal law theory. Hart, however, did not claim that any person in any actual legal order in fact thinks like the “puzzled man”, and there is lingering doubt as to the extent to which we should place him at the center of our analysis as we try to make sense of moral problems in the criminal law. Instead, we might find that our understanding of at least some issues in criminal law theory is advanced when we look through the eyes of Holmes’ “bad man”. This becomes clear when we consider the respective works by Hart and Douglas Husak on overcriminalization, James Chalmers and Fiona Leverick’s recent discussion of fair labeling, and Meir Dan-Cohen’s classic analysis of acoustic separation. These works also suggest, in different ways, that an emphasis on the bad man can expose the role of discretion in criminal justice systems, and the rule of law problems it generates.
Issue summary is from ScotusBlog, which also links to papers:
- Rosemond v. United States: Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.