Saturday, August 10, 2013
In the same way that the market supply and demand for a given good or service depend on individual supply and demand curves, corruption, while reflecting – and often reinforcing – broad, even systemic, institutional deficiencies within societies, also represents the amalgamation of the choices, priorities, and actions of individual actors. This paper argues that, in order to identify the social, economic, and political factors that contribute to the forms, magnitude, and character of corruption in a given context, it is critical to consider why and how individuals in that environment choose to act corruptly. It examines the complex, dynamic nature and causes of various forms of corruption by focusing on the conditions and incentives that either encourage or deter individuals from engaging in such illicit behaviors. Expanding on the rational choice model of criminal behavior, this paper considers how individuals assess expected costs and benefits when contemplating corrupt acts, including how heuristics and biases may produce predictable errors in perception, evaluation, and judgment that impact their ultimate decisions and behaviors. Recognizing the role of social factors in shaping individuals’ perceptions of both the magnitude and probability of related costs and benefits, it also analyzes the incidence of corruption as a frequency-dependent equilibrium. Specifically, it presents a dynamic, path-dependent model of corruption in which the decision of an individual to engage in such illicit behaviors is driven not only by her own personal experiences, values, and expectations, but also by her perceptions concerning the beliefs and behaviors of other members of her community. Interwoven throughout the paper are analyses of how such insights into individual decision-making can and should inform legal and non-legal initiatives to combat various forms of corruption.
Friday, August 9, 2013
. . .
What's missing from the Indictment? Any reference to what the two told the FBI during their early interviews. Did DOJ conclude their statements were inadmissible? The Complaint against them had alleged: [More...]
Gabriela Jara has posted Comparative Perspectives: German and Italian Systems of Negotiated Justice on SSRN. Here is the abstract:
In light of the growing importance of negotiated justice or alternatives to trial across jurisdictions, this comment on the papers of Carduck and of Iovene in this collection, addresses the nuances of continental European developments but also critically re-examines the American tradition of plea-bargaining.
The two papers draw on salient themes related to the process of understanding and reworking the legal transplant of plea bargaining within a larger body of a criminal law. Italy and Germany are both characterized by a deliberate approach to plea bargaining where public authorities have grappled with the objectives and dangers of negotiated justice.
Amitai Aviram (University of Illinois College of Law) has posted Allocating Regulatory Resources (Journal of Corporation Law, Vol. 37, No. 4 (2012)) on SSRN. Here is the abstract:
This article analyzes how law enforcers (with particular emphasis on securities regulators) should allocate their limited resources among multiple targets, as well as how they are likely to allocate these resources. It modifies existing models in one significant way: it considers the effect of regulation not only on the behavior of those subject to it (potential wrongdoers), but also on the perceptions – and as a result, on the behavior – of those whom regulation seeks to protect (potential victims).
Normatively, the article challenges the view of regulation as a two-way tradeoff between enforcement costs and deterrence of wrongdoing (i.e., the effect of regulation on potential wrongdoers’ risk perception), because it ignores the effect of regulation on potential victims’ risk perception.
Thursday, August 8, 2013
The Italian Senate on Thursday approved a measure to ease some of the worst prison overcrowding in Europe by cutting pre-trial detentions and using alternative punishments for minor offenses. In January the European Court of Human Rights (ECHR) [official website] ordered Italy to address the problem [JURIST report] within a year, ruling [judgment, in French] that overcrowding had violated the rights of seven inmates who brought a test case. Italian jails are the most crowded in the EU, with close to 67,000 detainees held in jails built for 45,000, and some prisons at over 250 percent of capacity, according to prison rights group Antigone.
Anthony M. Ruiz has posted Why Arizona v. Gant Matters and How the Search Incident to Arrest Doctrine Should Change in its Wake (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
In the wake of Arizona v. Gant, lower courts struggle with Gant's effect on searches incident to arrest outside the vehicle context. Some courts find that Gant applies while others do not, restricting the Court's holding to vehicle searches only. But more importantly, many courts that do apply Gant to non-vehicle searches incident to arrest do so in ways that are at odds with Gant's rationales. This Note examines this lower court confusion, highlighting lower courts' unwillingness to abandon the notion of searches incident to arrest as a police entitlement. Gant requires courts to find that the rationales underlying Chimel v. California -- relied upon for the Gant Court's holding -- are present at the time of the search. This interpretation of Gant will restrict non-vehicle searches incident to arrest, better protecting defendants' rights without sacrificing clarity of the rule or officer safety.
David C. Gray , Danielle Keats Citron and Liz Clark Rinehart (University of Maryland-Francis King Carey School of Law , University of Maryland Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted Fighting Cyber-Crime After United States v. Jones (Journal of Criminal Law and Criminology, Vol. 103, No. 3, 2013) on SSRN. Here is the abstract:
In a landmark non-decision last term, five Justices of the United States Supreme Court would have held that citizens possess a Fourth Amendment right to expect that certain quantities of information about them will remain private, even if they have no such expectations with respect to any of the information or data constituting that whole. This quantitative approach to evaluating and protecting Fourth Amendment rights is certainly novel and raises serious conceptual, doctrinal, and practical challenges. In other works, we have met these challenges by engaging in a careful analysis of this “mosaic theory” and by proposing that courts focus on the technologies that make collecting and aggregating large quantities of information possible. In those efforts, we focused on reasonable expectations held by “the people” that they will not be subjected to broad and indiscriminate surveillance. These expectations are anchored in Founding-era concerns about the capacity for unfettered search powers to promote an authoritarian surveillance state. Although we also readily acknowledged that there are legitimate and competing governmental and law enforcement interests at stake in the deployment and use of surveillance technologies that implicate reasonable interests in quantitative privacy, we did little more. In this Article, we begin to address that omission by focusing on the legitimate governmental and law enforcement interests at stake in preventing, detecting, and prosecuting cyber-harassment and healthcare fraud.
Orin S. Kerr (George Washington University - Law School) has posted The Next Generation Communications Privacy Act (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely seen as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress repealed ECPA and enacted a new privacy statute to replace it.
Wednesday, August 7, 2013
Sit down with the attorney general to ask him about his priorities, as NPR did earlier this year, and he'll talk about voting rights and national security. But if you listen a bit longer, Eric Holder gets to this: "I think there are too many people in jail for too long, and for not necessarily good reasons."
This is the nation's top law enforcement officer calling for a sea change in the criminal justice system. And he's not alone.
. . .
"The war on drugs is now 30, 40 years old," Holder said. "There have been a lot of unintended consequences. There's been a decimation of certain communities, in particular communities of color."
That's one reason why the Justice Department has had a group of lawyers working behind the scenes for months on proposals the attorney general could present as early as next week in a speech to the American Bar Association in San Francisco.
Two pieces from the L.A. Times presenting different views. The first, by Jeffrey Beard, who heads the California Department of Corrections and Rehabilitation, states:
A few hundred inmates are continuing to take part in ahunger strike in California prisons. Some prisoners claim this strike is about living conditions in the Security Housing Units, commonly called SHUs, which house some of the most dangerous inmates in California. Don't be fooled. Many of those participating in the hunger strike are under extreme pressure to do so from violent prison gangs, which called the strike in an attempt to restore their ability to terrorize fellow prisoners, prison staff and communities throughout California.
The second, by the editorial board:
A hunger strike may be the only way inmates in solitary can reach us with their message of protest. We may find their complaints warranted. Or we may not. But if we care about justice, we should listen.
Gary Edmond and Kent Roach (University of New South Wales (UNSW) - Faculty of Law and University of Toronto - Faculty of Law) has posted Trial by Theory: A Response to Acharya's 'Law's Treatment of Science: From Idealization to Understanding' (Dalhousie Law Journal. Vol. 36:1. Spring 2013. pp. 57-91) on SSRN. Here is the abstract:
Adopting a pragmatic and empirically sensitive approach to the use of forensic science and medicine, this essay defends Edmond and Roach’s “A Contextual Approach to the Admissibility of the State’s Forensic Science and Medical Evidence.” The authors reiterate their concerns about idealized approaches to science and expertise and question the utility of philosophically-driven and essentialist models of science for legal practice. In detail the essay explains why privileging process over outcomes in the criminal process (and even perpetuating the dichotomy) is misguided.
Rachel Elizabeth VanLandingham (Stetson University College of Law) has posted Acoustic Separation in Military Justice: Filling the Decision Rule Vacuum with Ethical Standards (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
Commanders in the U.S. military justice system wield vast criminal prosecutorial authority, power largely unconstrained by formal standards, guiding principles, or training. While extensive regulatory guidance exists regarding most every other enterprise a military commander undertakes — from getting dressed to taking a hill — surprisingly little guides commanders as they decide which service members to prosecute for which crimes. Civilian federal prosecutors, in contrast, operate under a rubric of ethical standards, rules, and policy guidelines that at least channel, if not occasionally limit, their enormous criminal justice discretion. The absence of military professional guidelines, or standards of conduct, regarding command prosecutorial discretion contributes to the appearance of uneven treatment of sexual assault and other crimes in the military. This decisional vacuum does a grave disservice to commanders as they execute their disciplinary duties without clearly articulated decisional touchstones. This Article critically examines the lack of formal guidance regarding commanders’ exercise of their prosecutorial discretion.
Susan Dimock (York University) has posted Actio Libera in Causa (Criminal Law and Philosophy, 2013) on SSRN. Here is the abstract:
The actio libera in causa doctrine, as originally formulated by various Enlightenment philosophers, concerns the imputation of responsibility to actors for actions unfree in themselves, but free in their causes. Like our Enlightenment counterparts, contemporary philosophers of criminal law, as well as most Western legal systems (both common law and civil), allow that persons can be responsible for acts that are not free when performed, provided they were free in their causes. The actio libera doctrine allows us to impute unfree actions to persons, provided they were responsible for causing the conditions of unfreedom that characterizes those actions when performed. This doctrine seems to be instantiated in a great many actual legal practices. But I argue that we must distinguish between two importantly different understandings of the doctrine itself and its application in law. On the one hand, the actio libera doctrine allows us to waive the voluntariness requirement that is generally needed for criminal liability. On the other hand, it disallows defendants to appeal to defenses they would otherwise be entitled to use to block liability, if they culpably created the conditions of their own defense. The first case involves rules of imputation, while the second concerns culpability, and justifying the actio libera doctrine therefore faces different challenges in the two cases.
For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history. Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.
Tuesday, August 6, 2013
From the Blog of Legal Times:
A jury convicted Guandique in 2010. The case was reopened late last year when the government alerted Fisher to new, potentially impeaching information related to a key government witness at trial, Armando Morales. Morales, who shared a cell with Guandique, testified that Guandique confessed to him that he killed Levy. Guandique's lawyers say the new information contradicted Morales' trial testimony that he had never come forward to law enforcement in the past; prosecutors have downplayed its significance.
. . .
Guandique's lawyers were also looking for evidence Morales not only spoke with law enforcement, but also that he gave unreliable or false information. During the April hearing, according to the transcript, Klein called Morales "a liar."
From The New York Times:
With little fanfare, the agency best known for airport screenings has vastly expanded its reach to sporting events, music festivals, rodeos, highway weigh stations and train terminals. Not everyone is happy.
T.S.A. and local law enforcement officials say the teams are a critical component of the nation’s counterterrorism efforts, but some members of Congress, auditors at the Department of Homeland Security and civil liberties groups are sounding alarms. The teams are also raising hackles among passengers who call them unnecessary and intrusive.
From the Daily Caller:
A major conservative policy organization has endorsed criminal justice reform, lending further bipartisan support to a bill in Congress that would lessen mandatory minimum sentencing for nonviolent offenses.
The American Legislative Exchange Council, a free-market advocacy group that works with legislators and businesses to craft model legislation, gave its approval to the Justice Safety Valve Act on Monday.
The bill would allow judges to depart from imposing mandatory minimum sentences on nonviolent criminals when they believe different sentences are appropriate.
Read more: http://dailycaller.com/2013/08/05/conservative-group-advocates-sentencing-reform/#ixzz2bDuBg7lr
Amy P. Meek (Loyola University Chicago School of Law) has posted Street Vendors, Taxicabs, and Exclusion Zones: The Impact of Collateral Consequences of Criminal Convictions at the Local Level on SSRN. Here is the abstract:
Some of the most severe collateral consequences of criminal convictions are imposed through city and county ordinances and policies. This paper offers the first in-depth examination of these municipal policies, including permits and licensing ordinances, registration and exclusion zones, third-party background-check requirements, and local hiring policies. Some municipal ordinances, such as residential restrictions on sex offenders, impose far harsher sanctions than their state counterparts, effectively banishing certain individuals from the community. In addition, municipal licensing ordinances limit access to occupations – such as street vending, operating a food cart, or driving a taxicab – that offer valuable entrepreneurial opportunities to individuals with criminal convictions. Often invisible to defendants at the time of sentencing, these local policies have been used as a way to exile "undesirables" by effectively barring them from living, working, or participating in public life in their communities. This paper offers suggestions for legislative reform to address the patchwork of collateral consequences that can lead to exile at the local level. States may pass laws preempting municipal restrictions, or municipalities can lead the way by adopting collateral consequences ordinances (such as the one unanimously passed in New Haven, Connecticut) that mitigate the impact of these restrictions by setting uniform standards and informing attorneys and the public.
Toby S. Goldbach and Valerie P. Hans (Cornell University - Law School and Cornell University - School of Law) have posted Juries, Lay Judges, and Trials (Encyclopedia of Criminology and Criminal Justice (Gerben Bruinsma and David Weisburd, eds.). NY: Springer Science and Business Media, Forthcoming) on SSRN. Here is the abstract:
“Juries, Lay Judges, and Trials” describes the widespread practice of including ordinary citizens as legal decision makers in the criminal trial. In some countries, lay persons serve as jurors and determine the guilt and occasionally the punishment of the accused. In others, citizens decide cases together with professional judges in mixed decision-making bodies. What is more, a number of countries have introduced or reintroduced systems employing juries or lay judges, often as part of comprehensive reform in emerging democracies. Becoming familiar with the job of the juror or lay citizen in a criminal trial is thus essential for understanding contemporary criminal justice systems in many countries. This article reviews procedures for selecting jurors and lay judges and outlines lay participation in fact finding and in sentencing phases of the criminal trial. It also assesses the promises and challenges of lay participation in law. Reviewing and evaluating the effects of the different approaches that countries have taken to incorporating lay citizens, it reflects on whether the goals of democratic deliberation are being met in both jury and lay judge systems. It concludes with suggestions for future directions for research. The final publication is available at Springerlink.