Saturday, August 17, 2013
Colin P. Starger (University of Baltimore - School of Law) has posted Fifty Years Before Brady (37 Champion 34 (2013)) on SSRN. Here is the abstract:
In marking the fiftieth anniversary of Brady v. Maryland, a fitting way to appreciate the historic significance of Justice Douglas’ opinion for the Court is to turn back the pages another fifty years. Brady’s profound contribution to our criminal justice system becomes apparent by considering the impoverished state of the Supreme Court’s due process doctrine as it stood a century ago. In the fifty years that led up to Brady, the Court confronted a series of racially and politically charged cases that forced constitutional soul searching about due process in the face of rank injustice. The story of the Court’s fractious opinions in these dramatic cases – Frank v. Magnum, Moore v. Dempsey, and Mooney v. Holohan – is thus the story of what made Brady’s soaring vision of justice and fairness both possible and necessary. This Essay tells that story.
This piece at The New Republic opines that the debate over the latest NSA revelations has focused in the wrong places. In part:
I think more troubling is that the NSA deliberately fed international communications (which it is permitted to monitor in certain ways) through U.S. fiber-optic cables, commingling those kosher foreign emails with domestic ones—which the secret Foreign Intelligence Surveillance Court (or FISC, and it is generally a rubber stamp) ruled unconstitutional.
I also think more troubling is that last year, the NSA retained more than 3,000 files of telephone call records in defiance of an FISC order (!). How many calls involving how many people were on each file is unknown, by the way.
Friday, August 16, 2013
Justin D. Levinson , Robert J. Smith and Danielle Young (University of Hawaii at Manoa - William S. Richardson School of Law , University of North Carolina School of Law and University of Hawaii at Manoa - Department of Psychology) have posted Devaluing Death: An Empirical Study of Implicit Racial Bias on Jury-Eligible Citizens in Six Death Penalty States (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
Stark racial disparities define America’s relationship with the death penalty. Though commentators have scrutinized a range of possible causes for this uneven racial distribution of death sentences, no convincing evidence suggests that any one of these factors consistently account for the unjustified racial disparities at play in the administration of capital punishment. We propose that a unifying current running through each of these partial plausible explanations is the notion that the human mind may unwittingly contribute bias into the seemingly neutral concepts and processes of death penalty administration.
Stephanie Roberts Hartung (Suffolk University Law School) has posted Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases on SSRN. Here is the abstract:
The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a façade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.
From the New York Times:
WASHINGTON — The National Security Agency violated privacy rules protecting the communications of Americans and others on domestic soil 2,776 times over a one-year period, according to an internal audit leaked by the former N.S.A. contractor Edward J. Snowden and made public on Thursday night.
The violations, according to the May 2012 audit, stemmed largely from operator and system errors like “inadequate or insufficient research” when selecting wiretap targets.
Thursday, August 15, 2013
Christopher J. Buccafusco and Jonathan S. Masur (Illinois Institute of Technology - Chicago-Kent College of Law and University of Chicago - Law School) have posted Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law (Southern California Law Review (2014, Forthcoming)) on SSRN. Here is the abstract:
The scope and enforcement of intellectual property (IP) laws are becoming salient, for the first time, to a wide cohort of U.S. and international communities. National and international legislation, including the Stop Online Piracy Act (SOPA), the PROTECT IP Act (PIPA), and the Anti-Counterfeiting Trade Agreement (ACTA), have generated protests online and in the streets by people who are concerned about the expansion of IP rights. Common to each of these proposals was an expansion in the use of criminal sanctions to deter IP violations. Many copyright owners and the associations that represent them support criminal enforcement of IP, including the use of imprisonment, to combat the threat of increased IP piracy on the internet and throughout a globalized economy. Others, including a heterogeneous coalition of scholars, activists, and internet based companies like Google and Wikipedia, fear that using criminal sanctions to protect IP will expand already overgrown rights and chill valuable expressive and inventive behavior.
Scott E. Sundby (University of Miami School of Law) has posted Everyman's Exclusionary Rule: The Exclusionary Rule and the Rule of Law (or Why Conservatives Should Embrace the Exclusionary Rule) (Ohio State Journal of Criminal Law, Vol. 10, No. 2, Spring 2013) on SSRN. Here is the abstract:
It should come as little surprise that the exclusionary rule has been the continual target of strong criticism for a very long time. The rule appears to run head-on into a basic principle of justice learned as early as one’s playground days: "Two wrongs don’t make a right." Justice Cardozo expressed the same sentiment in one of the most famous judicial lines ever penned, "The criminal is to go free because the constable has blundered." Far more of a surprise, then, given such an entrenched critique from a variety of quarters, is that the exclusionary rule has continued to remain a centerpiece of Fourth Amendment jurisprudence for almost a century. The rule’s lengthy reign suggests that the exclusionary rule, like its critique, also draws upon some basic wellspring of justice. This Essay searches for that wellspring and argues that when rule-of-law principles are used as the prism through which the exclusionary rule is viewed, the exclusionary rule’s fundamental value to our criminal justice system becomes far more compelling.
Wednesday, August 14, 2013
From The New York Times:
A federal judge this week threw out the conviction of a 66-year-old Long Island man found guilty in 2008 of molesting his granddaughter and two of her friends after defense lawyers investigated a serial number on the back of a photograph that refuted a key portion of the prosecution’s case.
. . .
First, [habeas counsel] Salpeter found a serial number on the back of the Coney Island photo and learned from Polaroid, which manufactured the film, that it had been taken in 2000, despite B.M.’s testimony and the date on the souvenir frame. In the Halloween photo, one of the girls was wearing a sweatshirt with a logo reading “Princess University.” Mr. Salpeter determined that the brand had not been trademarked until 2000.
Moreover, Mr. Salpeter figured out that the educational toy, Turbo Twister Spelling, was not produced until at least a year after B.M. had claimed to have received one from Mr. Green. He finally determined, with a simple phone call to the show’s producers, that “Law & Order: SVU” was not on the air when B.M. claimed to have seen it.
Jennifer A. Quaid (University of Ottawa - Civil Law Section) has posted Making Sense of the Shift in Paradigm on Cartel Enforcement: The Case for Applying a Desert Perspective (McGill Law Journal, Vol. 58, No. 1, 2012) on SSRN. Here is the abstract:
Soon after the coming into force of changes to the criminal provisions in the Competition Act, the commissioner of competition signalled that cartel enforcement would start to reflect a new mindset, one that treats cartels as truly criminal. But while the impetus for this shift in paradigm is well-intentioned — to give effect to a stronger criminal law mandate following the amendments — it is poorly explained, because its defenders continue to refer to the predominant deterrence rationale used in competition law, even though applying a harm-based view of crime and punishment to cartels fails to explain why criminal enforcement is needed.
Allard Ringnalda and Renée S.B. Kool (Department of Legal Theory and Utrecht University, Department Criminal Law; Utrecht Centre for Accountability & Liability Law) have posted The Prosecution of Bias Crime in the Netherlands and the Problem of Net-Widening: Fundamental Limits to Criminal Liability (Crime Law Soc Change, DOI 10.1007/s10611-012-9369-y) on SSRN. Here is the abstract:
Crimes that are committed with bias motives are categorized as ‘hate’ or bias crimes and are punished more severely than non bias crimes. However, bias crime laws are often applied to offenses where there is no clear evidence of a bias motive. Based on the results of 318 case studies into bias crime prosecutions in the Netherlands, this paper demonstrates that the causes of net-widening should be sought in the action-oriented nature of criminal law reasoning. Decision makers rely on objective behavioral indicators such as bias speech to infer motives, but these are rarely reliable. We argue that this process results in a transformation of bias crime laws. They are no longer used to punish harmful motives. Rather, they are used to combat behavior that is considered socially harmful on account of its perceived intolerant, racist or xenophobic message. This forces us to reconsider the justification behind trying to punish motive.
Tuesday, August 13, 2013
From the New York Times:
Critics have long contended that draconian mandatory minimum sentence laws for low-level drug offenses, as well as stop-and-frisk police policies that target higher-crime and minority neighborhoods, have a disproportionate impact on members of minority groups. On Monday, Mr. Holder announced that federal prosecutors would no longer invoke the sentencing laws, and a judge found that stop-and-frisk practices in New York were unconstitutional racial profiling.
. . .
Michelle Alexander, an Ohio State University law professor who wrote “The New Jim Crow: Mass Incarceration in the Age of Colorblindness,” an influential 2010 book about the racial impact of policies like stop-and-frisk and mandatory minimum drug sentences, said the two developments gave her a sense of “cautious optimism.”
. . .
But not everyone was celebrating. William G. Otis, a former federal prosecutor and an adjunct professor at Georgetown Law School, described Mr. Holder’s move as a victory for drug dealers that would incentivize greater sales of addictive contraband, and he suggested that the stop-and-frisk ruling could be overturned on appeal.
Stuart P. Green (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Vice Crimes and Preventive Justice (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
This symposium contribution offers a reconsideration of a range of "vice crime" legislation from late 19th and early 20th century American law, involving matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons' liberty or autonomy supposedly for their own good); and it was only later, in the late 20th century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms. This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales -- similar to those that underlie modern, technocratic, "preventive justice" legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.
Michelle Madden Dempsey (Villanova University School of Law) has posted Prosecuting Rape: Toward a Normative View of Evidential Sufficiency on SSRN. Here is the abstract:
This is a working draft of a paper I presented at a conference on "Rethinking Sexual Offenses," hosted by the University of Minnesota Law School's Robina Institute of Criminal Law & Criminal Justice in April 2013. The main thesis of the paper is that rape prosecutors should not evaluate evidential sufficiency according to how likely an actual judge or jury is to convict the defendant (a "predictive view" of evidential sufficiency -- but rather according to whether a reasonable judge or jury should convict the defendant, given the evidence (a "normative view" of evidential sufficiency). I am still developing and refining the ideas set out in this draft. Comments are most welcome.
Andrea Cann Chandrasekher (University of California, Davis - School of Law) has posted Police Labor Unrest and Lengthy Contract Negotiations: Does Police Misconduct Increase with Time Spent Out of Contract? on SSRN. Here is the abstract:
This paper presents evidence of the effect of labor unrest on labor production in the policing context using data from New York City. When contract negotiations last for an extended period, old contracts can expire before new ones are approved. Working under an expired contract, or being "out of contract," can be costly for police officers both monetarily and psychologically. This paper studies the effect of time spent out of contract on police misconduct using new data and a research design that exploits the fact that different ranks of officers are out of contract at different points in time and for different lengths of time. I find evidence that incidents of police misconduct increase with the amount of time spent out of contract.
Beth A. Colgan has posted Teaching a Prisoner to Fish: Getting Tough on Crime by Preparing Prisoners to Reenter Society (Seattle Journal for Social Justice: Vol. 5: Iss. 1, Article 19) on SSRN. Here is the abstract:
This article investigates how a return to meaningful prison programs related to education, training, and mental health and chemical dependency treatment are an effective means of reducing recidivism and improving the likelihood of prisoner success upon reentry, using Washington State as an example.
George Bach (University of New Mexico - School of Law) has posted Defining 'Sufficiently Serious' in Claims of Cruel and Unusual Punishment on SSRN. Here is the abstract:
When analyzing inmate claims brought under Eighth Amendment’s ban on cruel and unusual punishment that arise from conditions of confinement, the courts employ a two-prong approach, asking: 1) whether the injury was “objectively, sufficiently serious,” and 2) whether the prison official was “deliberately indifferent” to the inmate’s needs. Although wide-ranging examples of deprivations of adequate food, clothing, shelter, medical care and safety can be found that do or do not satisfy the “objectively, sufficiently serious” standard, no consistent definition or articulated factors have been universally adopted in such cases. While a sodomy allegation meets the “objectively, sufficiently serious,” standard, a denial of food due to an inmate’s failure to comply with prison policy may not. Where a particular inmate claim of deprivation falls on the resulting spectrum is any court’s guess.
Monday, August 12, 2013