Saturday, July 20, 2013
Carissa Byrne Hessick and Judith M. Stinson (University of Utah - S.J. Quinney College of Law and Arizona State University (ASU) - Sandra Day O'Connor College of Law) have posted Juveniles, Sex Offenses, and the Scope of Substantive Law (46 Texas Tech L. Rev. (2013), Forthcoming) on SSRN. Here is the abstract:
Substantive criminal law is an important factor in determining whether a juvenile will be tried as a juvenile or transferred to adult court. In particular, the gravity of the offense with which the juvenile is charged is a key component of most states’ discretionary waiver statutes, and it disproportionately influences judges when deciding whether to transfer juveniles. As a general matter, sex offenses are considered serious crimes. And a number of serious sex offenses are criminalized because of the victim’s age. These severe penalties reflect a policy determination on the part of legislatures that when sexual activity is illegal, either in whole or in part, because of the age of one of the participants — a category of crimes that we refer to as "age-determinative sex offenses" — participation in that activity is a serious crime.
The question we seek to answer in this Article is whether the justice system ought to distinguish between adult and juvenile offenders for these age-determinative sex offenses when assessing the seriousness or gravity of these crimes.
Friday, July 19, 2013
From the Washington Post:
An unprecedented federal review of old criminal cases has uncovered as many as 27 death penalty convictions in which FBI forensic experts may have mistakenly linked defendants to crimes with exaggerated scientific testimony, U.S. officials said.
. . .
FBI officials discussed the review’s scope as they prepare to disclose its first results later this summer. The death row cases are among the first 120 convictions identified as potentially problematic among more than 21,700 FBI Laboratory files being examined. The review was announced last July by the FBI and the Justice Department, in consultation with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL).
The unusual collaboration came after The Washington Post reported last year that authorities had known for years that flawed forensic work by FBI hair examiners may have led to convictions of potentially innocent people, but officials had not aggressively investigated problems or notified defendants.
Todd Archibald , Ken Jull and Kent Roach (Osgoode Hall Law School - York University , Baker & McKenzie and University of Toronto - Faculty of Law) have posted Critical Developments in Corporate Criminal Liability: Senior Officers, Wilful Blindness, and Agents in Foreign Jurisdictions (Criminal Law Quarterly, Vol. 60. pp. 92-127 (2013)) on SSRN. Here is the abstract:
This article updates the authors work on the 2003 changes to corporate criminal liability in Canada. In 2003, Parliament replaced the traditional legal concept of corporate liability based on the fault of the corporation’s “directing mind(s)” with a broader concept of “senior officers”. This case examines a 2012 decision in R. v. Pétroles Global Inc.,  J.Q. No 5437 and an Ontario case in which a corporation was found liable for the actions of its contractors and argues that both decisions accord with Parliament’s intent to expand corporate criminal liability. The article also examines how recent decisions equating willful blindness with knowledge and decisions under Canada’s Corruption of Foreign Public Officials Act also have the effect of broadening corporate criminal liability. It also explores relates issues of risk management for corporations.
Stephen E. Henderson and American Bar Association, Criminal Justice Standards Committee (University of Oklahoma College of Law and www.americanbar.org) have posted ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records (ABA Standards for Criminal Justice: Third Edition, 2013) on SSRN. Here is the abstract:
I served as Reporter drafting these Standards over the past six years; the black letter was adopted by the American Bar Association (ABA) House of Delegates in February, 2012. These Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when to permit law enforcement access to medical records, location records, communications records, and myriad other information, and these Standards provide a framework via which they can bring greater consistency to existing law, and, where necessary, frame new law that accounts for changing technologies and social norms, the needs of law enforcement, and the interests of privacy, freedom of expression, and social participation.
Tom Tyler and Jonathan Jackson (Yale University - Law School and London School of Economics & Political Science: Department of Methodology) have posted Popular Legitimacy and the Exercise of Legal Authority: Motivating Compliance, Cooperation and Engagement on SSRN. Here is the abstract:
The traditional goal of legal authorities has been to obtain widespread public compliance with the law and legal directives. Empirical research findings have shown that legitimacy – typically operationalized as felt obligation to obey authorizes and trust and confidence in the relevant institutions – plays an important role in achieving such compliance. But over time the goals of legal authorities have broadened in two ways. First, they increasingly include the desire to motivate willing cooperation between legal authorities and members of the public working together to produce social order. This willing cooperation includes public willingness to authorize legal authorities to manage issues of order in the community, as well as a public motivation to aid the police and courts by reporting crime and criminals and working with the legal system in furthering their prosecution. Second, conceptions of the goals of the legal system have broadened to include the importance of promoting public engagement in communities in efforts to build social, political and economic vitality. Drawing on these broader goals – and building upon recent conceptual and methodological advances in the meaning and measurement of legitimacy – we report findings from a major new national survey of US citizens. We examine the role that legitimacy plays in achieving each of these goals of law and in defining the policies and practices of the police and courts which influence legitimacy. Importantly, we also consider whether a focus on achieving this broader set of goals leads to a need to reexamine the traditional theoretical conception of legitimacy. Our findings support the utility of a multidimensional conception of legitimacy that differentiates between consent to authority and normative justifiability of power.
Kenworthey Bilz and Janice Nadler (University of Illinois College of Law and Northwestern University School of Law) have posted Law, Moral Attitudes, and Behavioral Change (Oxford Handbook of Behavioral Economics & the Law, Forthcoming) on SSRN. Here is the abstract:
The fear of sanction or desire for rewards is the most straightforward way that law influences behavior, but it might not always be the most effective. More indirectly, law can change moral attitudes underlying behaviors, and this mechanism is potentially extremely efficient by being self-enforcing. Law can influence moral attitudes by recharacterizing behavior previously thought of as harmless, by signaling moral approval for behaviors previously thought of as outside the domain of morality, or by developing a general reputation for doing what justice requires and by providing high quality treatment to citizens. Laws sometimes affect moral attitudes in the intended ways, but sometimes they do not. We argue that the success of legal regulation in changing moral attitudes will depend on a number of variables. We focus specifically on: 1) whether the regulation aims to change attitudes which are important to individuals’ cultural identities; 2) whether there is underlying dissensus about the behavior or attitude; 3) whether the law is attempting to change the underlying meaning of behaviors, rather than trying to change the behaviors itself. We examine the influence of law through various mechanisms, including physical architecture, social meaning, attitude change, and consensus. Throughout the discussion of these mechanisms, we focus on factors that lead to success, failure, or even perverse effects.
Thursday, July 18, 2013
Rachel Harmon (University of Virginia School of Law) has posted Limited Leverage: Federal Remedies and Policing Reform (32 St. Louis U. Pub. L. Rev. 33 (2012)) on SSRN. Here is the abstract:
With respect to deterring police misconduct, federal remedies are almost as good as they are ever going to get. Federal remedies for police misconduct, and most other remedies for misconduct, promote change by making misconduct costly for police departments and municipalities. Improving federal remedies would encourage some additional departments to seek the positive expected return on reform measures likely to reduce misconduct. But existing federal remedies all focus on either increasing the cost of misconduct or reducing its benefits. The problem is that even if existing federal remedies are altered to maximize deterrence, they cannot be employed to impose a substantially greater price for misconduct because, by their nature, the costs imposed by existing remedies are relatively fixed. As a result, federal remedies for misconduct will never prevent bad policing much more than they do now.
Sital Kalantry (University of Chicago) has posted Women in Prison in Argentina: Causes, Conditions, and Consequences on SSRN. Here is the abstract:
In many countries around the world, including Argentina, the number of women who are deprived of their liberty has risen over time and has increased disproportionately in comparison to male prisoners. In Argentina, the number of female prisoners within the federal system increased 193%, while the male population rose 111% from 1990 to 2012. Nonetheless, little research has been done to understand why there has been such a dramatic increase in women’s incarceration. At the same time, international and domestic laws governing prisons and prison policies and practices have traditionally been designed for men. In 2010, however, the United Nations adopted the first international standards relating specifically to women prisoners – the Standard Minimum Rules for the Treatment of Female Prisoners and Non-Custodial Measures for Women Offenders (Bangkok Rules). The Bangkok Rules specifically call for research to be conducted on (among other things) the causes of women’s imprisonment, the characteristics of women in prison, and the impact on children.
Michele Alexandre (University of Mississippi - School of Law) has posted First Comes Legalization, then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing on SSRN. Here is the abstract:
The recent modifications of drug laws in Colorado and Washington risk duplicating the pattern of subjugation created by current drug laws. Portions of the Washington statute, in particular, threaten to maintain the status quo and to perpetuate stereotypes of African Americans and Latinos. The states’ approaches to marijuana legalization signal that it is time now, more than ever, to reevaluate and restructure our current drug laws to prevent selective prosecution as well as the disproportionate incarceration of men and women of color. In reforming current laws, however, states must avoid incorporating terms and limitations that might trigger new forms of profiling.
Two manuscripts have been posted on SSRN on this topic. One is Nathan Schaal Wilson and Gabriela Jara (Independent and Duke University - School of Law), Plea Bargaining and the Legislative Response. Here is the abstract:
Plea bargaining in the United States has been an issue of debate for years. Opponents argue that it unfairly coerces defendants into pleading guilty and undermines the rule of law. Supporters cite plea bargaining as a contract-like agreement between two parties which yields efficient results. These viewpoints tend to focus on plea bargaining primarily in the individual context, as a one-shot negotiation between a prosecutor and a defendant under the existing criminal law. This approach understates the importance of American plea bargaining as a system of policy making in the United States. A simple two party contract framework fails to account for the movement of the criminal law as a whole, which we envision as a response to omnipresent plea bargaining.
Wednesday, July 17, 2013
From the New York Times, a first-hand account:
I know something about solitary confinement, because I’ve been there. I spent a total of 12 years in various solitary confinement cells. And I can tell you that isolating a human being for years in a barren cell the size of a small bathroom is the cruelest thing you can do to a person.
Deprived of all human contact, you lose your feeling of connectedness to the world. You lose your ability to make small talk, even with the guard who shoves your meal through the slot in the door. You live entirely in your head, for there is nothing else. You talk to yourself, answer yourself. You become paranoid, depressed, sleepless. To ward off madness, you must give your mind something to do. In 1970, I counted the 358 rivets that held my steel cell together, over and over. Every time the walls seemed to be closing in on me, I counted them again, to give my mind something to fasten on to.
"Metadata, the NSA, and the Fourth Amendment: A Constitutional Analysis of Collecting and Querying Call Records Databases"
Orin Kerr has this post at The Volokh Conspiracy. In part:
In his recent Wall Street Journal op-ed, my co-blogger Randy Barnett argues that massive-scale collection of communications metadata by the NSA violates the Fourth Amendment because it is an unreasonable seizure. Randy’s colleague Laura K. Donohue recently argued in the Washington Post that such collection violates the Fourth Amendment as an unreasonable search. Jennifer Granick and Chris Sprigman made a similar argument in the New York Times.
Are they right? Does obtaining all telephony metadata under Section 215 — and then querying the database — violate the Fourth Amendment?
In this post, I’ll start with current law, and I’ll explain why current law supports the conclusion that massive-scale collection of communications meta-data by the NSA does not violate the Fourth Amendment rights of its customers. I’ll then consider alternate views of the Fourth Amendment and explain the prospects and challenges of using the mosaic theory to get to a contrary result.
Alex Reinert (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Revisiting 'Special Needs' Theory Via Airport Searches (Northwestern University Law Review, Vol. 106, No. 3, 2012) on SSRN. Here is the abstract:
Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context.
Juliet Horne (University of Warwick) has posted Plea Bargains, Guilty Pleas and the Consequences for Appeal in England and Wales on SSRN. Here is the abstract:
The vast majority of defendants in England & Wales are convicted by way of guilty plea. The criminal justice system provides significant incentives for defendants to plead guilty, which give rise to a risk that defendants who are innocent may be pressurised into pleading guilty. As a consequence, it is important that the criminal justice system provides an effective appeal mechanism that seeks to detect and remedy wrongful convictions through guilty pleas. This paper argues that, unfortunately, consideration of the current appeal provision and the approach of the Court of Appeal to guilty pleas reveals that this is unlikely to happen. Further, it is argued that a contributory factor in this failure to address the risk of wrongful conviction by way of guilty plea is the contradiction and lack of clarity in the meaning attributed to the guilty plea at different stages within the criminal justice process.
Roger Magnusson (University of Sydney - Faculty of Law) has posted Law's Role in Promoting Sexual Health in Australia on SSRN. Here is the abstract:
This paper explains some of the principle ways in which public health laws seek to influence sexual behaviour and rates of transmission of STIs (sexually transmissible infections), with particular reference to HIV. It then presents two competing models for identifying, evaluating and debating the values inherent in legal and policy responses to STIs in Australia. These are, firstly, the “contain and control” model inherited from historical responses to contagious diseases, and secondly, a “human rights” model, which seeks to implement a harm minimization approach to STIs and assumes a happy alignment, in most circumstances, between the public health interest and individual rights and interests. Elements of both approaches are evident in Australian laws responding to HIV and other STIs. Despite the acknowledged success of Australia’s response to HIV, the rate of new infections is rising, contributing to debate about the appropriate limits of a human rights-focused approach. The paper evaluates, in particular, debates about the persistent criminalization of HIV and STI transmission as a public health tool; the policy challenges posed by risk-seeking behavior; and the challenge to “HIV exceptionalism” posed by the “test and treat” strategy in the United States, which emphasizes opt-out HIV testing and wider use of HIV test data.
Tuesday, July 16, 2013
In some states, however, police officers in unmarked cars have specific rules they must follow. These differ from the rules for other police vehicles, both at the state and city levels.
"The troopers that are issued unmarked cars are given extra instructions on just that thing," a veteran trooper with the Iowa State Patrol told USA Today. Such special restrictions may include only using the unmarked cars during daylight hours.
Other states like New York place few, if any, restrictions on the use of unmarked police cars. States like Ohio, on the other hand, require all police vehicles to be "marked in some distinctive manner" and equipped with a flashing or rotating colored light.
. . .
The use of unmarked cars for traffic stops has produced unintended, and quite tragic, results. A number of cases have cropped up of criminals posing as policemen in unmarked cars.
Eugene Volokh has a post on this topic at The Volokh Conspiracy:
This is an interesting and complicated question, which Prof. Alafair Burke (Huffington Post)discusses in some detail; I thought I’d also discuss it, with some overlap with Prof. Burke’s analysis.
. . .
But what if D does something that’s noncriminal, but nonetheless foreseeably triggers a violent reaction by V, and then D uses deadly force to protect himself against that reaction?
. . .
The general answer in most states, as best I can tell, is that the law tends to conclude that D loses his right to lethal self-defense on grounds of provocation only if he had the specific purpose of provoking V into threatening D with death or serious bodily injury, so that D would have an opportunity to kill or seriously injure V. If D simply knew that it was very likely that V would react violently, that is not enough.
Richard A. Bierschbach and Stephanos Bibas (Yeshiva University - Benjamin N. Cardozo School of Law and University of Pennsylvania Law School) have posted Constitutionally Tailoring Punishment (Michigan Law Review, Vol. 112, No. 3, 2013, Forthcoming) on SSRN. Here is the abstract:
Since the turn of the century, the Supreme Court has begun to regulate non-capital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Though both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate lines of doctrine respond to structural imbalances in non-capital sentencing by promoting morally appropriate punishment judgments that are based on retail, individualized input and reflect the views and perspectives of multiple institutional actors. This new understanding illuminates how both doctrines relate to the Court’s earlier regulation of capital sentencing and how checks and balances can promote just punishment in a pluralistic system. It also underscores the need for other actors to complete the Court’s work outside the confines of rights-based judicial doctrines, by experimenting with a broader range of reforms that are not constitutionally required but rather are constitutionally inspired.
This article examines the Australian jurisprudence of silence in the context of the ‘right to silence’ claimed by some criminal defendants during trial, and advances the position that, despite arduous effort to describe, classify, evaluate and protect silence, the law makes a lot of noise about a silence that isn’t really there. But a re‐examination of Weissensteiner illustrates what is evident in so much of the case law: in criminal enterprises and in criminal procedure, speech and silence exist on a spectrum, and in shifting contexts. There are times when silence is impossible, and times where it is irresistible. The law is rarely sensitive to the contexts in which silence falls and those in which silence is broken. This article contributes to the emerging jurisprudence of silence. It argues that silence must be heard and interpreted, and it calls for silence to be distinguished from noise, sound, utterance and inadmissible speech.
Ann Fordham and Alex Stevens (International Drug Policy Consortium (IDPC) and University of Kent) have posted Applying Harm Reduction Principles to the Policing of Retail Drug Markets on SSRN. Here is the abstract:
The policing of drug markets is usually conceptualised primarily as a matter of law enforcement – drug dealers and people who use drugs are breaking the law, and the role of the police is to reduce such law breaking. However, the wider purpose of policing is to ensure the safety of the community by reducing harms to its members.
This report examines the interaction between law enforcement and harm reduction in the policing of retail level drug markets.