January 19, 2013
O'Hear on Restitution and Sentencing Commissions
Michael M. O'Hear (Marquette University - Law School) has posted two encyclopedia entries on SSRN: Restitution and Sentencing Commissions (Encyclopedia of Criminology and Criminal Justice, E. Gerben Bruinsma & David Weisburd, eds., Springer, 2013, Forthcoming).
January 18, 2013
Sacco et al. on Anti-Bullying Legislation
Dena Sacco , Katharine Baird Silbaugh , Felipe Corredor , June Casey and Davis Doherty (Harvard University - Berkman Center for Internet & Society , Boston University - School of Law , Harvard University , Harvard Law School Library and Harvard University) have posted An Overview of State Anti-Bullying Legislation and Other Related Laws (Berkman Center Research Publication No. 2013-4) on SSRN. Here is the abstract:
As a part of its collaboration with the Born This Way Foundation, the Berkman Center is publishing a series of papers that synthesize existing peer-reviewed research or equivalent scholarship and provide research-grounded insight to the variety of stakeholders working on issues related to youth empowerment and action towards creating a kinder, braver world. This series, called the The Kinder & Braver World Project: Research Series (Danah Boyd and John Palfrey, editors), is presented by the Born This Way Foundation & the Berkman Center for Internet and Society at Harvard University, and supported by the John D. & Catherine T. MacArthur Foundation. The first set of papers, which were intended to provide insights to the new foundation, involved topics related to Youth Meanness and Cruelty.
This document provides an overview, as of January 2012, of existing state anti-bullying laws, pending state and federal anti-bullying legislation, and other relevant federal and state laws. It is meant to inform the discussion of legal policy issues around bullying, in particular at the Symposium on Youth Meanness and Cruelty being held at Harvard Law School on February 29, 2012 as part of the Kinder & Braver World Project.
This document, including the Tables in Appendix 1, was created by analyzing the anti-bullying laws of the 48 states with such laws, as well as reviewing pending legislation and related laws. The document and tables break out provisions of the state statutes that the authors consider important to engender positive cross-disciplinary discussion at the Symposium. The language in the state statutes is incredibly varied and complex, and this area of the law is constantly evolving. Many additional areas of inquiry are sure to arise at the Symposium and beyond. Thus, this document is a working draft.
Brooks on Punishment
Punishment is a topic of increasing importance for citizens and policymakers. Why should we punish criminals? Which theory of punishment is most compelling? Is the death penalty ever justified? These questions and many others are addressed in this highly engaging guide.
Punishment is a critical introduction to the philosophy of punishment, offering a new and refreshing approach that will benefit readers of all backgrounds and interests. The first critical guide to examine all leading contemporary theories of punishment, this book explores – among others – the communicative theory of punishment, restorative justice, and the unified theory of punishment. Thom Brooks examines several case studies in detail, including capital punishment, juvenile offending, and domestic abuse. Punishment highlights the problems and prospects of different approaches in order to argue for a more pluralistic and compelling perspective that is novel and groundbreaking.
January 17, 2013
Baker on Encouraging One's Own Murder
Dennis J. Baker (King's College London - School of Law) has posted Liability for Encouraging One's Own Murder, Victims, and Other Exempt Parties ((2012) 23(3) King’s Law Journal 257–285) on SSRN. Here is the abstract:
This paper considers three major issues in the law of complicity: (1) the role of oblique intention in complicity; (2) complicity liability for those who engage in mutual gun- fights in public streets; and (3) the scope of the ‘exempt party’ rule. All of these issues arose in R v Gnango, but unfortunately the UK Supreme Court’s treatment of those issues was wholly unsatisfactory. Nonetheless, that decision provides us with a perfect backdrop for exploring these issues. I aim to demonstrate that the Lords got the law wrong. I will put forward an alternative interpretation of the law. I rely extensively on American law, but I am not aiming to carry out a full comparative study. Instead, the aim is to shed light on how the law might be reformed, interpreted and developed in the UK. The American case law is useful for highlighting some of the legal misconceptions drawn by the Lords in R v Gnango.
Roach on Liberty, Proportionality, and Human Dignity
Kent Roach (University of Toronto - Faculty of Law) has posted The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control ((2011) Israel Law Review, Vol. 44:91, pp. 91-113) on SSRN. Here is the abstract:
This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state’s limits on those rights provides the best foundation for constitutional control of the criminal law.
Treyger on Migration and Violent Crime
Elina Treyger (George Mason University School of Law) has posted Migration and Violent Crime: Lessons from the Russian Experience (Georgetown Immigration Law Review, Forthcoming) on SSRN. Here is the abstract:
The relationship between migration, both internal and international, and crime is not a matter of merely academic interest. Many laws and public policies directly and profoundly affect migration within and across national borders. At a time when international migration is attracting increasing attention of policy makers, courts, and legislators, there is a real need to better understand and predict the public-order consequences of laws affecting population movements. This article exploits the Russian experience to further that aim.
The relationship between population movements and crime has been the subject of a growing social science literature. That literature yields but one clear conclusion: that the relationship defies generalization. In some contexts, a concentration of newcomers (whether native or foreign) in communities correlate with higher, and in other contexts, with lower, violent crime rates across space. Some population movements appear to improve, and others to erode, the social capacity for informal control over crime. In this article, I marshal evidence for one promising explanation for the disparate consequences of different population movements, emphasizing the role of social ties and networks. That explanation suggests that where migrations destroy social networks among the migrants or in receiving communities, the social capacity for informal control over violent behaviors is undermined, and public order is liable to suffer. By contrast, where social networks drive migrations and are preserved or reconstituted in areas of settlement, no comparable disruptive effects ensue. Russia’s experience under Soviet rule furnishes a singularly fitting example of population movements that definitively disrupted preexisting social structures and obstructed formation of new ones. I make use of statistical analysis to demonstrate that the Russian post-communist geography of homicide was shaped profoundly by communist-era migration and settlement patterns. In this way, it offers evidence for the proposition that network-disrupting migrations are strongly associated with higher violent crime rates, and that state laws and policies that produce these sorts of movements come at a high social cost. The idiosyncratic character of Russia’s migration history makes it an empirically convenient case – the proverbial “natural experiment” – to explore the full effects of specifically network-disrupting population movements. Its idiosyncrasy notwithstanding, the Russian experience yields generalizable implications for our understanding of the migration-crime relationship, and our ability to identify those policies that are most likely to disrupt the social processes of informal control and contribute to violent crime.
January 16, 2013
Bennardo on Decoupling Sentencing Guidelines from Statutory Limits
Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing on SSRN. Here is the abstract:
When incorporating statutorily-mandated minimum and maximum sentences into offense guideline, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience. This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the Guidelines ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme. Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the so-called “safety valve” or, in some circuits, because the government failed to plead the triggering drug quantity in the indictment or prove it beyond a reasonable doubt. To achieve actual fairness for these offenders, the Commission should apply a controlled substance offense guideline that takes no account of statutory limits on sentencing. By amending offense guidelines that incorporate mandatory minimums to more closely reflect its own research and expertise, the Commission will better achieve offense guidelines that produce Guidelines ranges that the Commission views as actually fair.
Orton, Alva & Endicott-Popovsky on Cloud Forensic Investigations
Ivan Orton , Aaron Alva and Barbara Endicott-Popovsky (King County Prosecuting Attorney’s Office , University of Washington and University of Washington) have posted Legal Process and Requirements for Cloud Forensic Investigations (Cybercrime and Cloud Forensics: Applications for Investigation Processes, ed. Keyun Ruan, IGI Global, Forthcoming) on SSRN. Here is the abstract:
For the emerging field of cloud forensics, the development of validated and repeatable scientific processes for conducting cloud forensic investigations should include requirements that establish evidence collected as legally admissible. There is currently an uncertainty in the legal requirements for cloud forensics. Forensic investigations in the cloud introduce unique issues that must be addressed, and the legal environment of the cloud must be considered. The authors will detail the process in criminal cloud forensic investigations for commanding production from cloud providers including constitutional and statutory limitations, and the civil and criminal admissibility processes. Decisions in court cases rely on the authenticity and reliability of the evidence presented. Ensuring cases involving cloud forensics follow the proper legal process and requirements will be beneficial for validating evidence when presented in court. Further, understanding of legal requirements will aid in the research and development of cloud forensics tools to aid investigations.
Barry on Gradual Abolition of the Death Penalty
Kevin M. Barry (Quinnipiac University - School of Law) has posted From Wolves, Lambs: The Case for Gradual Abolition of the Death Penalty on SSRN. Here is the abstract:
This spring, the Connecticut Supreme Court will decide a novel issue in all of modern death penalty jurisprudence. The issue is this: Can a state gradually abolish its death penalty, that is, can it leave in place the sentences of those currently on death row but abolish the death penalty going forward? This Article argues that it can. As a matter of statutory construction, “prospective-only” repeals of death penalty legislation are construed as such. Although constitutional questions are admittedly less straightforward, prospective-only repeal does not offend either the Eighth or Fourteenth Amendments. The death penalty remains constitutional per se under the Eight Amendment, and “as applied” challenges under Atkins and Furman fare no better. Under the Fourteenth Amendment’s Equal Protection and Due Process Clauses, rational reasons abound for abolishing the death penalty while maintaining death row intact.
Apart from the thorny legal question before the Connecticut Supreme Court, prospective-only repeal gives rise to two other difficult questions. The first is a pragmatic one: From the perspective of the abolition movement, is it wise to abolish prospective-only? The second is a moral one: Is it right to tell those who committed murder on Day 1 that they must remain on death row, while eliminating the death penalty for those who commit murder on Day 2? This Article answers both questions in the affirmative. Prospective-only death penalty repeal promises both retraction of the death penalty and preservation of the status quo and is therefore a useful tool for winning states with inmates on death row to the cause of abolition. Furthermore, by retaining the death penalty for some so that no others will ever face a similar fate, legislators transform an immoral punishment into an arguably moral sacrifice. This is the uneasy morality of gradual abolition; from wolves, lambs.
January 15, 2013
Capers on Crime, Surveillance, and Communities
I. Bennett Capers (Brooklyn Law School) has posted Crime, Surveillance, and Communities (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:
Quite simply, we have become a surveillance state. Cameras — both those controlled by the state, and those installed by private entities — watch our every move, at least in public. For the most part, this public surveillance is unregulated, beyond the purview of the Fourth Amendment, and to many civil libertarians, should signal alarm. This Article challenges these assumptions, and suggests that in thinking about surveillance cameras and other technologies, we must listen to communities. For many communities, public surveillance not only has the benefit for deterring crime and aiding in the apprehension of criminals. In these communities, public surveillance can also function to monitor the police, reduce racial profiling, curb police brutality, and ultimately increase perceptions of legitimacy. The question thus becomes, not how we can use the Fourth Amendment to limit public surveillance, but rather how can we use the Fourth Amendment to harness public surveillance’s full potential.
MacDonnell on the Pretrial Right to Counsel in Canada
Vanessa MacDonnell (University of Ottawa - Faculty of Law (Common Law)) has posted R v. Sinclair: Balancing Individual Rights and Societal Interests outside of Section 1 of the Charter (Queen's Law Journal, Vol. 38, No. 1, 2012, pp. 137-64) on SSRN. Here is the abstract:
The majority judgment in R v Sinclair reflects what the author sees as a problematic trend in the Supreme Court of Canada’s pre-trial legal rights jurisprudence under the Canadian Charter of Rights and Freedoms. In Sinclair, the Court took the novel step of holding that society’s interest in “the investigation and solving of crimes” should be taken into account in determining the scope of the right to counsel under section 10(b). The author explains that such interests are usually left to the justification stage under section 1 of the Charter, but that section 1 is functionally unavailable in the context of many pre-trial legal rights claims. This is because in cases of alleged police misconduct, the state action in question is not authorized either by statute or by common law, so the section 1 requirement that the limits on rights be prescribed by law cannot be met. For this reason, the author argues, courts have sought other ways to incorporate interest balancing into Charter analysis. In some cases they have done so under the “fundamental justice” proviso to section 7, and in others by expanding police authority under the “ancillary powers doctrine”.
The author situates the Sinclair decision within the overall jurisprudence on section 10(b), and argues that the Court wrongly imposes an internal limit on section 10(b) in a manner that avoids the rigorous constraints that the Oakes test imposes on the section 1 analysis. The author’s overall conclusion is that Sinclair reflects a judicial encroachment on the role of the legislature and a weakening of the role of the courts as defenders of fundamental rights.
O'Hear on the PLRA and AEDPA
Michael M. O'Hear (Marquette University - Law School) has posted Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA (Federal Sentencing Reporter, Vol. 24, No. 4, April 2012) on SSRN. Here is the abstract:
In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.
Al-Hakim on Hate Crimes in Liberal Societies
Mohamad Al-Hakim (Florida Gulf Coast University) has posted Making Room for Hate Crime Legislation in Liberal Societies (Criminal Law and Philosophy 4:3 (2010), pp. 341-358) on SSRN. Here is the abstract:
There is a divide within political and legal theory concerning the justification of hate-crime legislation in liberal states. Opponents of Hate-Crime Legislation have recently argued that enhanced punishment for hate-motivated crimes cannot be justified within political liberal states. More specifically, Heidi Hurd argues that criminal sanction which target character dispositions unfairly target individuals for characteristics not readily under their control. She further argues that a 'character' based approach in criminal law is necessarily illiberal and violates the state's commitment to political neutrality. In the current paper, I attempt to show the difficulties and absurdity that follows from Hurd's characterization of hate-crimes. I aim to show that punishment for undesirable character traits is consistent with western conceptions of criminal law. Upon doing so, I then go on to construct a positive argument for the justifiability of punishing for character traits as well as for the enhanced punishment associated with hate-motivated crimes.
Transcript of sentencing facts argumentThe transcript in Alleyne v. United States is here.
Transcript of argument about speedy trial actThe transcript in Boyer v. Louisiana is here.
January 14, 2013
Kahn-Fogel on an Empirical Analysis of American Eyewitness Law
Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Manson and its Progeny: An Empirical Analysis of American Eyewitness Law (Alabama Civil Rights & Civil Liberties Law Review, Vol. 3, No. 1, 2012) on SSRN. Here is the abstract:
Since the Supreme Court established the current constitutional framework for determining the admissibility of eyewitness identification evidence in Manson v. Brathwaite in 1977, scientists and scholars who have evaluated the opinion have uniformly criticized it as insufficient to deter police from using flawed identification procedures and inconsistent with scientific evidence of the best ways to assess the reliability of evidence tainted by such procedures. Until now, however, the work of these scientists and scholars has been based primarily on simulation experiments and on a selective assortment of easily criticized judicial decisions applying Manson. This study provides the first systematic analysis of judicial treatment of eyewitness identification evidence under Manson, including examination of all federal criminal cases and habeas corpus decisions available on Westlaw that cited the opinion in considering the admissibility of eyewitness evidence through January 31, 2010.Data from the 1,471 cases in the final data set confirms much of what scientists and legal academics have been saying for the last 34 years and reinforces past critiques with significant empirical data, including a time-trend analysis of the quality of judicial decision-making since Manson. Specifically, federal courts evaluating the admissibility of eyewitness evidence under Manson rarely suppress in-court identifications, and they frequently analyze the evidence before them in ways that are inconsistent with the science. In the cases in the data set, courts regularly held clearly unnecessarily suggestive identification procedures to be acceptable or failed to make definitive determinations on whether such procedures were improper, and they often analyzed Manson’s reliability factors in a manner that undermines the integrity of the inquiry. The study shows that courts evaluating the reliability of evidence from flawed identification procedures frequently relied on witnesses’ certainty after exposure to suggestion, even though science shows that such exposure is likely to enhance that confidence; in fact, a large number of the opinions reveal increases in witness confidence after witnesses viewed suggestive procedures. Time-trend analysis shows that in the 33 years after Manson, while scientific data relevant to the Manson standard was published and accepted in scientific communities, the quality of judicial analysis did not improve in response to the new generation of scientific developments, and federal courts became significantly less likely to use Manson to suppress eyewitness identification evidence.
Loaded *Cannon* in Central Park (Kolber)
A loaded cannon was recently found in Central Park. It was in a storage area but had been on display (loaded but capped with concrete) from the 1860s until 1996:
Monroe on Stuntz on the Collapse of American Criminal Justice
Albert Monroe (Thomas Jefferson School of Law) has posted Rebuilding Justice: A Review of the Collapse of American Criminal Justice, by William J. Stuntz (3 Wm. & Mary Pol'y Rev. 333 (2012)) on SSRN. Here is the abstract:
America’s criminal justice system has led to extremely high incarceration and crime rates in many poor and working-class neighborhoods. William Stuntz’s final book, The Collapse of American Criminal Justice, suggests ways to improve America’s system of criminal justice. My review compares Stuntz’s view of American criminal justice with the views of empirical social scientists Mark Kleiman and David Kennedy, whose work is used around the country in successful social experiments to reduce crime. Stuntz believed that changes in law and society delegate too much power to prosecutors and not enough to judges, juries, and average citizens. Accordingly, reform in America’s criminal justice system needs to focus on rebuilding the rule of law and local democracy. In contrast, Kennedy and Kleiman believe that criminal justice reform should focus on increasing the swiftness and certainty of punishment. Kennedy and Kleiman’s ideas have been used to combat gang violence, eliminate open-air drug sales, and increase the effectiveness of probation for drug-using probationers. Overall, The Collapse of American Criminal Justice is a well-written, insightful, and important book, but a comparison with the empirical work of Kennedy and Kleiman strongly suggests that several of Stuntz’s recommendations to improve American criminal justice are impractical or unwise. Reforms in policing and probation are likely to be more successful than Stuntz’s proposed changes to criminal law and procedure.
January 13, 2013
Top-Ten Recent SSRN Downloads
|1||888||Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study
Dan M. Kahan,
Yale University - Law School,
Date posted to database: November 30, 2012
|2||376||Grading the Foreign Corrupt Practices Act Guidance
Southern Illinois University School of Law,
Date posted to database: December 14, 2012 [new to top ten]
|3||214||Prosecutors and Professional Regulation
Bruce A. Green,
Fordham University School of Law,
Date posted to database: November 17, 2012 [4th last week]
|4||176||Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis
Paul R. Williams, J. Trevor Ulbrick, Jonathan Worboys,
American University - Washington College of Law, Public International Law & Policy Group, Public International Law & Policy Group,
Date posted to database: November 13, 2012 [6th last week]
|5||174||Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents
Bruce A. Green, Ellen S. Podgor,
Fordham University School of Law, Stetson University College of Law,
Date posted to database: December 6, 2012 [8th last week]
|6||173||Peeking Behind the Plea Bargaining Process
Laurie L. Levenson,
Loyola Law School Los Angeles,
Date posted to database: December 11, 2012 [7th last week]
|7||152||Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras
James J. Brudney, Lawrence Baum,
Fordham University - School of Law, Ohio State University (OSU) - Department of Political Science,
Date posted to database: January 2, 2013 [new to top ten]
|8||132||Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280
Robert T. Anderson,
University of Washington School of Law,
Date posted to database: December 6, 2012 [10th last week]
|9||131||What is Philosophy of Criminal Law?
Fordham University School of Law,
Date posted to database: December 16, 2012 [new to top ten]
|10||120||Rationing Legal Services
I. Glenn Cohen,
Harvard Law School,
Date posted to database: November 25, 2012 [new to top ten]
Friday's criminal law/procedure cert grants
Post from Friday corrected and reposted:
Issue summaries from ScotusBlog, which also links to papers:
- Salinas v. Texas: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.
- Sekhar v. United States: Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951 (a)(the Hobbs Act) and 18 U.S.C. §875(d).
- United States v. Kebodeaux: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.