January 26, 2013
van Ours & Vollaard on Strengthening Victim Precaution
Jan C. van Ours and Ben Vollaard (Tilburg University - Department of Economics and TILEC, Tilburg University) have posted The Engine Immobilizer: A Non-Starter for Car Thieves on SSRN. Here is the abstract:
We provide evidence for a beneficial welfare impact of a crime policy that is targeted at strenghtening victim precaution. Regulation made application of the electronic engine immobilizer, a simple and low-cost anti-theft device, mandatory for all new cars sold within the European Union as of 1998. We exploit the regulation as source of exogenous variation in use of the device by year of manufacture of cars. Based on detailed data at the level of car models, we find that uniform application of the security device reduced the probability of car theft by an estimated 50 percent on average in the Netherlands during 1995-2008, accounting for both the protective effect on cars with the device and the displacement effect on cars without the device. The costs per prevented theft equal some 1,500 Euro; a fraction of the social benefits of a prevented car theft.
January 25, 2013
Derrick on Qualified Immunity and Recording Police
Geoffrey J. Derrick has posted Qualified Immunity and the First Amendment Right to Record Police (Boston University Public Interest Law Journal, Forthcoming) on SSRN. Here is the abstract:
This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.
The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public.
Sacharoff on the Relational Nature of Privacy
Laurent Sacharoff (University of Arkansas - School of Law) has posted The Relational Nature of Privacy (Lewis & Clark Law Review, Vol. 16, No. 4, p. 1249, 2012) on SSRN. Here is the abstract:
The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search”; if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.
But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage left curbside, this conduct does not amount to a search. The Court reasoned that a person does not expect privacy in his garbage in relation to animals, scavengers, or children, and therefore has no privacy in his garbage with respect to anyone, including the police.
This Article argues that in assessing the Fourth Amendment, the Court should take into account the relational nature of privacy, and acknowledge that we have a greater expectation of privacy as against the government than we do as against our neighbors and friends. In fact, we desire and expect the highest level of privacy when the government pursues a criminal investigation, and it is here the Fourth Amendment should play its greatest role. This follows based upon the relational nature of privacy, certain lines of Supreme Court precedent, such as the inventory and administrative search cases, and the history of the Fourth Amendment, rooted especially in the seminal John Wilkes cases, which were initiated as a criminal case.
Grant on Consent by the Civilly Committed
Isabel Grant (University of British Columbia - Faculty of Law) has posted 'The Normal Ones Take Time': Civil Commitment and Sexual Assault in R. v. Alsadi ((2012), 24:2 Canadian Journal of Women and the Law 439-457) on SSRN. Here is the abstract:
This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be given by the woman involved.
January 24, 2013
"Google Report on Increase in Law Enforcement Requests for Data"
From TalkLeft. In part:
Google has issued a transparency report detailing requests by law enforcement for user data. For the first time, the report includes a breakdown of the types of legal process used to compel companies to hand over user data.
Requests for user data are up 70% from 2009.
Caldwell on Coercive Plea Bargaining
Harry M. Caldwell (Pepperdine University - School of Law) has posted Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System (Catholic University Law Review, Vol. 61, No. 829, 2011) on SSRN. Here is the abstract:
Part I of this Article briefly sets forth the ethical and professional duties of prosecutors. Part II examines the game-theory concepts at play in plea-and sentence-bargaining negotiations. For perspective, Part III explores the evolution of plea bargaining from common law and elucidates the problem of coercive plea bargaining. Part VI analyzes how other scholars' approaches fail to address the problem adequately and hence have not been implemented. Finally, in Part V, the Article concludes by offering a viable approach for limiting prosecutorial abuse in the charging process -- an approach that governments, both state and federal, can implement without disrupting the justice system and without significant costs.
Wells & Loftus on Eyewitness Memory for People and Events
Gary L Wells and Elizabeth F. Loftus (Department of Psychology and University of California, Irvine - Department of Psychology and Social Behavior) has posted Eyewitness Memory for People and Events (Chapter 25) (Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.) on SSRN. Here is the abstract:
This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.
January 23, 2013
"Stop and Frisk' May Be Working—But Is It Racist?"
"I just got stopped like two blocks ago," said a frustrated Harlem teenager to the two police officers who approached him.
This is the first recorded audio of a New York City "stop and frisk" recorded surreptitiously by a 16-year-old brown-skinned high schooler identified only as "Alvin." Soon after, the encounter escalates into shouting.
"Why are you carrying an empty book bag?" the police ask Alvin.
"Because I had my hoodie in there. It was cold."
"You want me to smack you?"
"Why you gonna smack me?"
"Who the fuck do you think you're talking to? Shut your fucking mouth."
Quick clicks of tightening handcuffs are heard on the recording as Alvin frantically asks, "What am I getting arrested for?"
One of the policemen responds, "For being a fucking mutt."
"That's against the law, being a mutt?" Alvin asks.
"I will break your fucking arm off right now," the policeman answers.
Journalist Todd Pitock has this article at the Saturday Evening Post. In part:
We are facing a crisis in America. The crisis is largely hidden from view, but like a cancer, it threatens the very health of society. We have become a superpower of incarceration. Today we warehouse 2.2 million inmates according to the most recent U.S. Bureau of Justice Statistics report.
That’s more than the entire population of Houston. More than two-thirds that of Chicago.
China, with more than four times the U.S. population, is a distant second with 1.5 million inmates. The United States imprisons 760 people per 100,000. The number for France is 96, Germany 90, and Japan 63. As an NAACP advertisement points out, we are 5 percent of the world’s population and we house 25 percent of the world’s prisoners.
Sankoff on Intention, Purpose and Desire
Peter Sankoff (University of Alberta - Faculty of Law) has posted Khawaja: Mixed Messages on the Meaning of Intention, Purpose and Desire ((2013) Criminal Reports, Forthcoming) on SSRN. Here is the abstract:
In a recent decision reviewing Canada’s terrorism legislation, the Supreme Court made a number of controversial statements on the fault element of certain terrorism offences. In this commentary, I review these statements and consider their impact on the future of mens rea in Canadian criminal law in general, and the crime of participating in a terrorist offence in particular.
Stinneford on Punishment Without Culpability
John F. Stinneford (University of Florida Levin College of Law) has posted Punishment Without Culpability (Journal of Criminal Law & Criminology, Vol. 102, No. 3) on SSRN. Here is the abstract:
For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor.
The Supreme Court’s inability to place meaningful constitutional limits on this aspect of legislative power is often described as a failure of courage or will. This Article will demonstrate that it is actually a failure of memory. Prior to the turn of the twentieth century, the Supreme Court’s jurisprudence was animated by two traditional common law ideas: (1) that there are real moral limits to what the government can do, and (2) that the most reliable way to tell whether the government has transgressed those limits is to analyze the challenged action in light of longstanding practice. In the first half of the twentieth century, the Supreme Court rejected these ideas in favor of instrumentalism, an approach to jurisprudence that sees law as a mere instrument through which government experts can solve social problems in light of new scientific insights. As a result, for several decades the Court seemed to approve a limitless legislative power to define and punish crime, which the Court treated as just another form of regulation.
This approach did not last. Criminal law does not merely regulate: it imposes moral condemnation on the offender in the name of the community. In recent decades, the Supreme Court’s constitutional criminal jurisprudence has moved toward reassertion of the old common law constraints, imposing either moral or precedential limits on the power of the legislature to define and punish crime. But because the Court no longer understands the relationship between morality and tradition, these efforts have mostly failed. This Article will suggest that the only way to develop a constitutional criminal jurisprudence that is coherent, just, and duly respectful of the legislature’s primacy in defining and punishing crime is to return to the common law synthesis of morality and tradition that underlies the constitutional law of crime.
January 22, 2013
An interesting new vagueness case
From the Blog of Legal Times:
Fourth Circuit to Hear Dispute Over Cell Phone Contraband Conviction
In the world of prisoner contraband, there's the usual stuff—drugs, weapons and cash. In 2010, Congress added mobile phones to the list of items considered "prohibited objects" in the hands of inmates.
There was a catch-all provision in the law, before the changes, that banned any object that threatens the "order, discipline and security" of federal prison. Sound a little vague? That's the argument a lawyer representing a former inmate—charged with possession of a mobile phone—is making in a federal appeals court.
The ex-inmate, Johnny Beason, was caught with a mobile phone before congressional changes, via the Cell Phone Contraband Act, went into effect in late 2010.
Carissa Byrne Hessick and F. Andrew Hessick (both of Sandra Day O’Connor College of Law, Arizona State University) have published Double Jeopardy as a Limit on Punishment at The Legal Workshop. It is based on their article at 97 Cornell L. Rev. 45 (2011).
Holland on Leong on the Open Road and the Traffic Stop
Brooks Holland (Gonzaga University School of Law) has posted Imagining the Open Road (Florida Law Review Forum, Vol. 1, No. 1, 2012) on SSRN. Here is the abstract:
This essay reviews Nancy Leong, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream, 64 Fla. L. Rev. 305 (2012).
Gross on Baldus and McCleskey v. Kemp
Samuel R. Gross (University of Michigan Law School) has posted David Baldus and the Legacy of McCleskey v. Kemp (Iowa Law Review, Vol. 97, No. 6, 2012) on SSRN. Here is the abstract:
In McCleskey v. Kemp, 481 U.S. 279 (1987), the Supreme Court rejected a challenge to racial discrimination in the use of the death penalty. That challenge was based on a landmark study of race and capital sentencing in the state of Georgia by the late Professor David Baldus and colleagues. The legal holding in McCleskey stands, despite the fact that the author of the opinion, Justice Lewis Powell, later renounced it in retirement. It is sometimes described as the Dred Scott decision of the twentieth century. But on the empirical question that was as stake in McCleskey, Baldus has prevailed. Neither the Court in McCleskey, nor any justice at the time or since, has disputed his factual conclusion that many defendants in Georgia were sentenced to death because of their race, and especially because of the race of the victims of the crimes for which they were convicted. This was a remarkable achievement. It fundamentally changed our understanding of the role of race in criminal justice in the United States.
January 21, 2013
"Asset Forfeiture Abuse Revisited"Ilya Somin at The Volokh Conspiracy excerpts this article from Reason.
"US declines to withdraw conspiracy charge against accused 9/11 plotters"
From Jurist. In part:
The US Department of Defense (DOD) [official website] announced [press release] Friday that it will not withdraw charges of conspiracy against five accused plotters of the 9/11 terrorist attacks, including Khalid Shaikh Mohammed [JURIST news archive]. Chief Guantanamo prosecutor, Brigadier General Mark Martins asked the DOD's appointee, Retired Admiral Bruce MacDonald [DOD backgrounders] to dismiss the prosecution charge in order to avoid uncertainty that could delay the case [Reuters report]. In the press release, the DOD declared that it would refuse to drop the conspiracy charge because it was waiting for appellate courts to determine whether military commissions can recognize conspiracy as valid charge.
Kirchmeier on Advising Guilty Client About Saving an Innocent Defendant
Jeffrey L. Kirchmeier (CUNY School of Law) has posted Confession for the Soul?: A Lawyer's Moral Advice to a Guilty Client About Saving an Innocent Defendant (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
This article considers what a lawyer should do when a client asks for moral advice after revealing that someone else is about to be punished for a crime committed by the client. Prof. Kirchmeier considers the practical, moral, and ethical issues that arise when an attorney considers giving moral, as opposed to legal, advice. This piece is part of a symposium featuring a hypothetical addressed by lawyers, psychologists, and members of the clergy.
Skibine on Hot Pursuit into Indian Country
Alexander Tallchief Skibine (University of Utah - S.J. Quinney College of Law) has posted Hot Pursuit into Indian Country: What Are the Limits? on SSRN. Here is the abstract:
This paper analyzes the extent of state officers' power to engage in hot pursuit of tribal members alleged to have committed crimes off the reservation.
January 20, 2013
Top-Ten Recent SSRN Downloads
|1||910||Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study
Dan M. Kahan,
Yale University - Law School,
Date posted to database: November 30, 2012
|2||391||Grading the Foreign Corrupt Practices Act Guidance
Southern Illinois University School of Law,
Date posted to database: December 14, 2012
|3||223||Prosecutors and Professional Regulation
Bruce A. Green,
Fordham University School of Law,
Date posted to database: November 17, 2012
|4||191||Peeking Behind the Plea Bargaining Process
Laurie L. Levenson,
Loyola Law School Los Angeles,
Date posted to database: December 11, 2012 [6th last week]
|5||190||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 [7th last week]
|6||186||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 [5th last week]
|7||147||What is Philosophy of Criminal Law?
Fordham University School of Law,
Date posted to database: December 16, 2012 [9th last week]
|8||137||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
|9||128||New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson
Yeshiva University - Benjamin N. Cardozo School of Law,
Date posted to database: November 20, 2012 [new to top ten]
|10||127||Punishment and Duty
University of Warwick - School of Law,
Date posted to database: November 13, 2012 [new to top ten]