Saturday, June 8, 2013
Jonathan Jackson , Jouni Kuha , Mike Hough , Ben Bradford , Katrin Hohl and Monica M. Gerber (London School of Economics & Political Science: Department of Methodology , London School of Economics and Political Science , University of London - Institute for Criminal Policy Research , University of Oxford - Centre for Criminology , City University London and London School of Economics & Political Science - Methodology Institute) have posted Trust and Legitimacy Across Europe: A FIDUCIA Report on Comparative Public Attitudes Towards Legal Authority on SSRN. Here is the abstract:
FIDUCIA (New European Crimes and Trust-based Policy) seeks to shed light on a number of distinctively ‘new European’ criminal behaviours which have emerged in the last decade as a consequence of both technology developments and the increased mobility of populations across Europe. A key objective of FIDUCIA is to propose and proof a ‘trust-based’ policy model in relation to emerging forms of criminality – to explore the idea that public trust and institutional legitimacy are important for the social regulation of the trafficking of human beings, the trafficking of goods, the criminalisation of migration and ethnic minorities, and cybercrimes. In this paper we detail levels of trust and legitimacy in the 26 countries, drawing on data from Round 5 of the European Social Survey. We also conduct a sensitivity analysis that investigates the effect of a lack of measurement equivalence on national estimates.
Friday, June 7, 2013
William A. Schroeder (Southern Illinois University at Carbondale - School of Law) has posted Factoring the Seriousness of the Offense into Fourth Amendment Equations: Strip Searches in Detention Facilities -- Atwater Strikes Again (Akron Law Review, Vol. 46, No. 2, 2013) on SSRN. Here is the abstract:
This article uses the Court's 2012 decision in Florence v. Board of Chosen Freeholders to discuss the impact of the Supreme Court's decision in Atwater v. City of Lago Vista on other areas of search and seizure law. In allowing the police to make custodial arrests for any offense however minor, the Atwater Court reached a result that was contrary to the intentions of the Framers, and which, in a very real sense, totally nullified the Fourth Amendment in most settings outside the home. Much of what is wrong with the Court's decision in Atwater is its failure to recognize the profound consequences of custodial arrest. If a person charged with a minor crime is subjected to custodial arrest, that arrest will, in most cases, be the most significant consequence suffered by the arrestee as a result of that offense. A custodial arrest is an awesome and frightening experience. Florence allows the police to add another major consequence — a strip search — to that experience.
Steven B. Duke (Yale Law School) has posted The Future of Marijuana in the United States (Oregon Law Review, Vol. 91, 2013) on SSRN. Here is the abstract:
There are striking similarities in the failed movement to repeal marijuana prohibition in the 1970s and the efforts underway today. A major difference is that the merits of repeal are far clearer today than they were forty years ago. This article discusses some of the reasons why marijuana prohibition cannot be justified, including the myriad ways in which marijuana prohibition encourages serious crime against victims having no connection to marijuana. It explains the limited long-term value of decriminalization versus regulated legalization, which should be the ultimate objective of reformers. Possible treaty constraints on federal reforms are explored. The limitations and uncertainties inherent in the incompatibility of state-level permissiveness and federal prohibition are also addressed. Reformers are advised to intensify their efforts to replace prohibition with regulation at both state and federal levels.
Mohammad Fadel (University of Toronto - Faculty of Law) has posted Theology, Torture and the United States: Do Abrahamic Religions Have Anything Meaningful to Say? (The Muslim World. Volume 103, Issue 2, pages 223–228, April 2013) on SSRN. Here is the abstract:
Despite the strong normative commitments of the US legal system to the prohibition of torture, the events of 9/11 and the subsequent declaration of a war on terror quickly made short shrift of this consensus; torture became an acceptable tool of statecraft and even popular culture embraced torture as an acceptable tool to be used in the battle against terrorists. This essay shows that this is not the first time that US practice has deviated in substantial measure from its professed ideals, and argues that Abrahamic religion – by refusing cooptation at the hand of the state – has a particularly important role to play in ensuring that states adhere to their moral commitments, even when it may be convenient not to do so.
Vermont Governor Peter Shumlin [official website] signed a bill[H.200, PDF] on Thursday decriminalizing possession of small amounts of marijuana. Vermont became the seventeenth state in the US [Reuters report] to decriminalize marijuana, adding to a growing trend of more lenient drug laws and regulations. Under the new legislation possession of less than one ounce of marijuana (28.3 grams) would be treated as a civil penalty, replacing jail time with a fine similar to one for a traffic ticket. Additionally anyone under the age of 21 caught with small amounts of marijuana would be treated the same as if they were in possession of alcohol. Upon signing the bill Shumlin emphasized the importance of shifting state resources [press release] from drugs such as marijuana to more addictive and harmful opiates like heroin and meth.
From the New York Times, summarizing this week's revelations and reporting on the President's defense of the system. In part:
WASHINGTON — President Obama on Friday offered a robust defense of the government surveillance programs revealed this week, and sought to reassure the public that his administration has not become a Big Brother with eyes and ears throughout the world of online communications.
“Nobody is listening to your telephone calls,” Mr. Obama said, delivering a 14-minute answer to two questions about the surveillance programs at an event that was initially supposed to be devoted to the health care law. “That’s not what this program is about.”
. . .
Under the classified program revealed Thursday, the federal government has been secretly collecting information on foreigners overseas for nearly six years from the nation’s largest Internet companies in search of national security threats. The revelation came just hours after government officials acknowledged a separate seven-year effort to sweep up records of telephone calls inside the United States.
Thursday, June 6, 2013
Alexander J. Blenkinsopp has posted Dangerousness and the Civil-Criminal Distinction: Another Reason to Rethink the Indefinite Detention of Sex Offenders (Connecticut Law Review, Vol. 45, CONNtemplations, 2012) on SSRN. Here is the abstract:
This Essay builds upon the conclusions of Professor Vars in his Article, "Rethinking the Indefinite Detention of Sex Offenders." Focusing on the faultiness of an actuarial tool often used to assess dangerousness, Vars argues convincingly that the predictions of future dangerousness in sex offender civil commitment hearings are deeply flawed. This Essay contends that Vars’s findings also undermine the "civil" label attached to those proceedings. Without that label, it becomes much more difficult to justify lower procedural safeguards in sex offender civil commitment hearings than in criminal trials. This Essay also suggests that scholars such as Vars who focus on the scientific dimension of civil commitment would be well-served to bear in mind how legislatures and courts have long exploited the "civil" classification as part of a longstanding and problematic "legal labeling game."
Benjamin Levin has posted De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:
In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a massive project and is in many ways at the core of much work being done by criminologists and others approaching criminal law from interdisciplinary perspectives, not to mention those generally concerned with the lessons of American legal realism and later post-realist critical methodologies. Ultimately, in this essay, I argue that our expanding police state and culture of criminalization are rooted in a misguided view of the criminal law — a view that ignores the political economy and institutional dynamics of the criminal justice system and instead imagines a space of moral clarity and emotional vindication where guilt and innocence exist independently of legislative compromise and where criminality exists independent of state, politics, or law.
Aidan Taft Grano has posted Casual or Coercive? Retention of Identification in Police-Citizen Encounters (Columbia Law Review, Vol. 113, No. 5, 2013) on SSRN. Here is the abstract:
In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, “Would a reasonable citizen feel free to leave?” But when, if ever, can one factor in a pedestrian encounter with police be so inherently coercive that it becomes dispositive? The D.C. and Fourth Circuits explicitly disagree over whether police retention of identification documents constitutes such a factor. The D.C. Circuit has held that such retention is a per se seizure because a citizen cannot feel free to leave when her documents are in police hands. In contrast, the Fourth Circuit rejected this reasoning on the grounds that a citizen can always demand the return of her documents.
Wednesday, June 5, 2013
Giovanna Shay (Western New England University School of Law) has posted The New State Post-Conviction (Akron Law Review, Vol. 46, pp. 473-488, 2013) on SSRN. Here is the abstract:
This article examines two 2011 Supreme Court cases – Maples versus Thomas and Martinez versus Ryan – which have a significant impact on the provision of counsel in state post-conviction proceedings. In Maples and Martinez, the Court expanded the circumstances in which deficient performance by state post-conviction counsel can overcome procedural default, to permit the prisoner to litigate defaulted claims on the merits in Federal Habeas. The author argues that, given the increased significance of state post-conviction under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Maples and Martinez could have a salutary effect on the development of the federal constitutional criminal procedure litigated in those proceedings. Furthermore, because these cases coincide with other important developments that make state post-conviction more important, they could have critical synergistic effects. Maples and Martinez create incentive for states to provide effective counsel in state post-conviction at a moment when these proceeding are being forced to assume a new role in the development of federal constitutional criminal procedure. The confluence of these events could produce a new era in state post-conviction.
Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted What Exactly is 'Extraterritorial Application' of a Statute? (Jurist Forum, May 2013) on SSRN. Here is the abstract:
Much comment has been devoted to the recent US Supreme Court decisions in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum concering the "presumption against extraterritorial application" of United States statutes. Very little has been devoted to the problem of defining "extraterritorial application of a statute" for the purpose of deciding when the presumption applies, and needs to be overcome.
After addressing the problem of extraterritoriality of crimes and civil cause of action in common law and US history, this piece proposes the following template for defining when a crime or cause of action is "extraterritorial" for purposes of bringing the presumption into play, and when the presumption should be overcome.
US President Barack Obama on Monday signed into law amendments to the Stolen Valor Act of 2013 (SVA) [HR 258, PDF], which makes it a federal crime to lie about having received a military medal or honor. The amendments narrowed the law's proscriptive scope, prohibiting only persons who, "with intent to obtain money, property, or other tangible benefit," fraudulently hold themselves out to be recipients of certain military honors. . . . The law as originally enacted set forth a blanket ban on all false military representations. However, the Supreme Court invalidated the law, holding that the government cannot punish statements merely because they are knowingly false, which would effectively grant the government authority to "compile a list of subjects about which false statements are punishable" in violation of the First Amendment. The court found that such a governmental power would have "no clear limiting principle." The court's dissenting opinion, however, would have upheld the law as originally enacted in keeping with the tradition of barring other serious untruths, including fraud, perjury and defamation.
Barry Friedman (NYU Law) has this post at Slate.com. In part:
The rule should be that the government must have a really, really good reason to subject a particular group to a regulatory search—for example to collect DNA from arrestees rather than from everyone. The DNA test of King couldn’t survive as an investigative search because there was no reason to believe, at the time his cheek was swabbed, that he’d committed the rape for which he ultimately was convicted. Could the DNA collection be justified on a regulatory basis? The right question is this: Did the fact that Alonzo King was accused (not convicted) of pulling a shotgun on some folks provide a better reason to believe he’d committed an unrelated rape than that anyone else walking the streets had done so? Hardly. And that is why the justices got Maryland v. King wrong.
Hat tip: How Appealing.
Tammy R. Pettinato (University of North Dakota - School of Law) has posted The Custody Catch-22: Post-Interrogation Release as a Factor in Determining Miranda Custody (65 Arkansas Law Review 799 (2013)) on SSRN. Here is the abstract:
This article addresses the anomalous use of post- interrogation release as a factor in determining whether a suspect was in custody for purposes of Miranda when interrogated without a formal arrest. The standard for custody is whether a reasonable person would have felt free to terminate the interrogation and leave. Yet several courts, including the Supreme Court, continue to consider the end result of the interrogation in making a finding of custody without explaining why a post-interrogation event should matter to the analysis of what occurs during the interrogation. Part I of this article introduces the issue. Part II provides a brief overview of the history of confessions jurisprudence leading up to Miranda. Part III explains the current standard for determining custody as articulated by both the Supreme Court and the circuit courts. Part IV is the heart of the article; it examines cases in which post- interrogation arrest or release has been used as a factor in making custody determinations and argues that these considerations represent leftover fragments from former incarnations of the custody test. It further shows that the consideration of post-interrogation arrest may be worth retaining for its usefulness in providing crucial evidence of police misconduct. In contrast, the consideration of post- interrogation release offers no such probative value, and instead creates a catch-22 for suspects: cooperate to obtain release only to have that very release used as evidence that cooperation was not required. The article concludes by arguing that the courts should reject post-interrogation release as a factor in Miranda custody analyses.
Tuesday, June 4, 2013
Michael Salter , Thomas Crofts and Murray Lee (University of Western Sydney , University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted Beyond Criminalisation and Responsibilisation: Sexting, Gender and Young People (Current Issues in Criminal Justice, Vol. 24, No. 3, pp. 301-316, 2013) on SSRN. Here is the abstract:
In recent years, the prosecution of teenagers who use digital and online technology to produce and circulate erotic imagery (‘sexts’) under child pornography statutes has been the subject of sustained controversy. Debates over sexting have foregrounded the harms of criminalisation as well as the role of sexts in cyber-bullying and online child solicitation. While acknowledging the problematic dimensions of legal interventions in sexting, this article notes that patterns of relational coercion often begin in adolescence and that malicious sexting cases follow patterns similar to other forms of technologically facilitated gendered victimisation. The gendered dimensions of sexting are often overlooked in education campaigns that position girls and young women in ways that responsibilise them to reduce their own risk of victimisation. It is argued that efforts to prevent or intervene in the harms of sexting should consider the broader sociocultural role of digital and online technology in coercive control and dating abuse and also avoid a simplistic responsibilisation of potential victims.
Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Amoral Numbers and Narcotics Sentencing (Valparaiso University Law Review, 2013, Forthcoming) on SSRN. Here is the abstract:
Americans are fascinated with lists and rankings. Magazines catch the eye with covers promising “92 Cute Summer Looks,” college football fans anxiously await the release of pre-season rankings, and law schools have reshaped themselves in reaction to the rankings released by U.S. News and World Report. With each of these, though, the lists often do more to create a reality than to reflect one, with distinct negative effects. The same problem plagues federal narcotics sentencing, where rankings of the relative seriousness of crimes are embedded in sentencing guidelines and minimum sentences required by statutes, though they are rooted neither in empirical evidence nor a consistent theory of problem-solving.
Monday, June 3, 2013
Doug Berman at Sentencing Law & Policy has this post, excerpting a New York Times editorial. In part:
Nearly two dozen states have softened their disenfranchisement policies since the late 1990s, with several states repealing or scaling back lifetime bans.
But the practice of barring offenders from the polls remains a pronounced and malignant problem in the South, where it was used starting in the late 19th and early 20th centuries to curtail the political power of African-Americans.
From Orin Kerr at The Volokh Conspiracy. In part:
For the majority, per Justice Kennedy, taking and analyzing DNA samples upon arrest is okay because taking DNA is generally about identifying the person under arrest, which is a very important government interest and renders the search constitutional. For the dissent, per Justice Scalia, taking DNA isn’t okay in this case because it really had nothing to do with identifying the person and was just about collecting evidence of other crimes.
There are some interesting issues lurking in there about how you determine the purpose of a search to know whether to trigger general reasonableness balancing or the default warrant standard. But that’s an issue that tends to lurk in cases at the border of the special needs exception, Cf. Al-Kidd, and I don’t think the opinions in King shed much light on that. So while King is very important from a practical standpoint, there isn’t a whole lot of academically-interesting stuff happening in the King opinions.
Stephanos Bibas (University of Pennsylvania Law School) has posted Incompetent Plea Bargaining and Extrajudicial Reforms (Harvard Law Review, Vol. 126, p. 150, 2012) on SSRN. Here is the abstract:
Last year, in Lafler v. Cooper and Missouri v. Frye, a five-to-four majority of the Supreme Court held that incompetent lawyering that causes a defendant to reject a plea offer can constitute deficient performance, and the resulting loss of a favorable plea bargain can constitute cognizable prejudice, under the Sixth Amendment. This commentary, published as part of the Harvard Law Review’s Supreme Court issue, analyzes both decisions. The majority and dissenting opinions almost talked past each other, reaching starkly different conclusions because they started from opposing premises: contemporary and pragmatic versus historical and formalist. Belatedly, the Court noticed that “ours ‘is for the most part a system of pleas, not a system of trials.’” Now the big question is which institutions can and will ameliorate poor defense lawyering retrospectively or prospectively. The upshot, I predict, will depend on semiprivate ordering: few reversals in court, but much more prospective extrajudicial reform.
David H. Kaye (Penn State Law) has posted Likelihoodism, Bayesianism, and a Pair of Shoes (Jurimetrics, Vol. 53, No. 1, Fall 2012) on SSRN. Here is the abstract:
In R v. T,  EWCA (Crim) 2439, a footwear analyst followed recommendations of the Forensic Science Service in testifying to the weight of the evidence according to a standardized table for characterizing likelihood ratios, reporting that the evidence established “a moderate degree of scientific evidence to support the view that the [Nike trainers recovered from the appellant] had made the footwear marks” in question. The Court of Appeal for England and Wales offered a variety of reasons for holding that this testimony should not have been received. Although the opinion can and should be read narrowly, the apparent preference for traditional opinion testimony about the source of such trace evidence is unfortunate. This essay adds to previous criticism of that aspect of the opinion by distinguishing between likelihood and Bayesian theories of inference. It argues that courts should receptive to the efforts of forensic analysts, guided by either of these theories, to avoid source attributions and to direct their testimony to the strength of the evidence with respect to competing hypotheses.