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Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, February 2, 2013

Sheldon-Sherman on Restitution in Child Pornography Possession Cases

Jennifer A.L. Sheldon-Sherman has posted Rethinking Restitution in Cases of Child Pornography Possession (Lewis & Clark Law Review, 2013, Forthcoming) on SSRN. Here is the abstract:

Child pornography is increasingly prevalent in today’s society and is now one of the fastest growing Internet activities. Unlike producers, possessors of child pornography do not actively engage in the physical and sexual abuse of children. However, possessors are viewers of this documented abuse and rape, and can be, therefore, similarly responsible for the perpetual victimization of innocent youth. In 1994, Congress sought to protect victims of sexual exploitation and child pornography with the passage of the Mandatory Restitution Provision, 18 U.S.C. § 2259. While the meaning of § 2259 seems to unambiguously require restitution from defendants convicted of production, distribution, and possession of child pornography, courts’ interpretation of the provision have been less clear. Courts unhesitatingly order restitution in cases where the offender is responsible for the production of child pornography and is, therefore, directly linked to identifiable victim harm. More problematic, however, are cases where a victim seeks restitution against a defendant who did not produce the pornography but rather possessed it. In these cases, courts confront the issue of whether a victim must prove a causal connection between the defendant’s possession of the pornography and the victim’s alleged harm. To date, the literature has focused on whether § 2259 contains a proximate cause requirement. I seek to advance this discussion, arguing that regardless of the interpretation of § 2259, the statute is not an appropriate means of compensating victims while also ensuring fairness for defendants. Accordingly, the statute as it currently operates is inefficient and unjust. This Article addresses that injustice, evaluating the underlying controversy regarding restitution for victims of child pornography possession under § 2259, discussing the judiciary’s approach to the issue, analyzing the difficulty in awarding restitution under § 2259 in cases of child pornography possession, and advocating a reformed system for issuing restitution in these cases.

February 2, 2013 | Permalink | Comments (0)

Dolovich on Two Models of the Prison

Dolovich sharonSharon Dolovich (University of California, Los Angeles - School of Law)has posted Two Models of the Prison: Accidental Humanity and Hypermasculinity in the L.A. County Jail (105 Journal of Criminal Law & Criminology 965 (2012)) on SSRN. Here is the abstract:

This Article considers what can be learned about humanizing the modern American prison from studying a small and unorthodox unit inside L.A. County’s Men’s Central Jail. This unit, known as K6G, has an inmate culture that contrasts dramatically with that of the Jail’s general population (GP) units. Most notably, whereas life in the Jail’s GP is governed by rules created and violently enforced by powerful inmate gangs, K6G is wholly free of gang politics and the threat of violence gang control brings. In addition, unlike residents of GP, who must take care in most instances to perform a hypermasculine identity or risk victimization, residents of K6G face no pressure to “be hard and tough, and [not] show weakness” and thus can just be themselves - a safer and less stressful posture. The K6G unit is also relatively free of sexual assault, no small thing given that K6G exclusively houses gay and transgender prisoners, who would otherwise be among the Jail’s most vulnerable residents. This Article draws on original research to provide an in-depth account of life in both K6G and the Jail’s GP, with the aim of explaining K6G’s distinctive character. The most obvious explanation may seem to lie in the sexual identity of K6G’s residents, and this feature does help to account for many positive aspects of the K6G experience. But this Article argues that the primary explanation is far more basic: thanks to a variety of unrelated and almost accidental developments, residents experience K6G as a relatively safe space. They thus feel no need to resort to the self-help of gang membership or hypermasculine posturing and are able to forego the hypervigilance that often defines life in GP. As a consequence, life in K6G is less dehumanizing than life in GP and is even in some key respects affirmatively humanizing, providing space for residents to retain, express, and develop their personal identity and sense of self in a way that is psychologically healthier than the typical carceral experience. Understanding the implications of these differences and how they arose has much to offer those committed to making carceral conditions safer and more humane not only in L.A. County, but in prisons and jails all over the country.

February 2, 2013 | Permalink | Comments (0)

Berger on the Right to Silence in Hague International Criminal Courts

Berger markMark Berger (University of Missouri at Kansas City - School of Law) has posted The Right to Silence in the Hague International Criminal Courts (University of San Francisco Law Review, Vol. 47, No. 1, 2012) on SSRN. Here is the abstract:

The War Crimes Tribunals and the International Criminal Court were established as international judicial institutions charged with the task of prosecuting individuals responsible for committing such human rights offenses as genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and violations of the laws or customs of war. These judicial bodies function in much the same way as domestic criminal courts and as such they have had to balance the institutional goal of prosecuting human rights offenders with the need to respect appropriate limits on the exercise of their authority. This article explores how that balance has been achieved with respect to the privilege of silence, a right which is widely recognized as a necessary restraint on the exercise of criminal law enforcement authority. It looks at limitations developed for the questioning of suspects, use of adverse inferences against those who maintain their silence, limitations on the authority to compel the production of non-testimonial evidence, application of the privilege of silence to witnesses, restraints on the imposition of discovery and disclosure requirements on suspects, and the use of the exclusion remedy where applicable standards have been violated.

February 2, 2013 | Permalink | Comments (0)

Thursday, January 31, 2013

Smith on Overcriminalization

Stephen F. Smith (Notre Dame Law School) has posted Overcoming Overcriminalization (Journal of Criminal Law and Criminology, Vol. 102, No. 3, 2012) on SSRN. Here is the abstract:

The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable — its enormous scope and its severity — and made them considerably worse. By changing how they interpret criminal statutes, the federal courts can help overcome overcriminalization even if Congress continues to be unrestrained in its use of the criminal sanction.

January 31, 2013 | Permalink | Comments (0)

Kuennen on Domestic Violence and the Right to Petition

Kuennen tamaraTamara L. Kuennen (University of Denver Sturm College of Law) has posted Recognizing the Right to Petition for Victims of Domestic Violence (Fordham Law Review, Vol. 81, p. 837, 2012) on SSRN. Here is the abstract:

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide-protection from harm. That right, recently described by the Supreme Court as "essential to freedom," is the right "to petition the Government for a redress of grievances" guaranteed by the First Amendment.

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January 31, 2013 | Permalink | Comments (0)

Wednesday, January 30, 2013

"Montana lawmaker offers pain instead of prison"

Doug Berman at Sentencing Law & Policy has this post excerpting an article about a new sentencing proposal. In part:

A Montana lawmaker says convicts should be allowed to get out of prison time if they instead agree to the "infliction of physical pain" — an idea that so far is receiving a cool reception.

Republican Rep. Jerry O'Neil is drafting a bill that would allow those convicted of misdemeanors or felonies to negotiate corporal punishment instead of another sentence. The method used to inflict the pain would be decided by a judge.

January 30, 2013 | Permalink | Comments (0)

Lerner on Miller v. Alabama

Lerner_craigCraig S. Lerner (George Mason University School of Law) has posted Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases (George Mason Law Review, Vol. 20, No. 1, Fall 2012, pp. 25-40) on SSRN. Here is the abstract:

In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held unconstitutional roughly 2,000 life-without-parole (LWOP) sentences, which had been imposed on juveniles by twenty-eight states and the federal government. The Miller Court held that the Eighth Amendment permits the imposition of LWOP on juveniles, but only after what it airily calls an “individualized sentencing.” Justice Kagan, writing for the majority, presents the decision as a modest one, and as an exercise of the judicial craft she is successful in deflecting some of the criticisms of the dissenting Justices, and in portraying the majority opinion as following ineluctably from precedent, principally Graham v. Florida, 130 S. Ct. 2011 (2010). Yet Graham suffers from the faulty premises that juveniles who commit heinous crimes are typical juveniles, and that they are categorically less culpable than young adult offenders. The Miller Court adopts and then compounds these errors. The Essay questions whether LWOP, as opposed to other harsh sentences, and juveniles, as opposed to young adult offenders, are really so distinct as to merit special constitutional treatment. The Essay also draws attention to some of the potential areas of uncertainty after Miller: the ambiguity as to what qualifies as “individualized sentencing”; the possible expansion of Miller’s exemption from mandatory sentencing to offenders who are not juveniles; and unresolved questions about the constitutionality of long prison sentences that are the practical equivalent of LWOP.

January 30, 2013 | Permalink | Comments (0)

Flanders on DeGirolami, Stephen, and Punishment Theory

Flanders chadChad Flanders (Saint Louis University - School of Law) has posted In Defense of Punishment Theory, and Contra Stephen: A Reply to DeGirolami (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:

Marc DeGirolami’s searching recent essay in this Journal is — appropriately enough — hard to categorize, or even to summarize. It aims to criticize the rise of “theory” in the academic study of criminal punishment, but it does not stop at merely being critical. Rather, it attempts to revive the thought of James Fitzjames Stephen, and also to urge a better way of looking at the study of punishment: one that is more historically oriented as well as more pluralist. Stephen’s thought, DeGirolami complains, has been misunderstood and flattened, and it is our loss. We have lost not only the views of a surprising, and surprisingly relevant, historical figure, but more importantly we have lost a kind of sensitivity that is missing in much of contemporary philosophy of punishment.

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January 30, 2013 | Permalink | Comments (0)

Tuesday, January 29, 2013

Shoebotham on Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs

Shoebotham leslieLeslie A. Shoebotham (Loyola University New Orleans College of Law) has posted Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs (Loyola Journal of Public Interest Law, 2013) on SSRN. Here is the abstract:

After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a “well-trained” detection dog - which most courts equated with “reliability” for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida’s assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records.

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January 29, 2013 | Permalink | Comments (0)

Clark on Jurors and the Presumption of Innocence

Clark shermanSherman J. Clark (University of Michigan Law School) has posted The Juror, The Citizen, and The Human Being: The Presumptions of Innocence and the Burden of Judgment (Criminal Law and Philosophy, 2013) on SSRN. Here is the abstract:

In this essay, I suggest that the criminal trial is not only about the guilt or innocence of the defendant, but also about the character and growth of the jurors and the communities they represent. In earlier work, I have considered the potential impact of law and politics on the character of citizens, and thus on the capacity of citizens to thrive – to live full and rich human lives. Regarding the jury, I have argued that aspects of criminal trial procedure work to fix in jurors a sense of agency in and responsibility for verdicts of conviction. Here, I draw on those ideas with respect to the presumption of innocence. I suggest that the presumption of innocence works not primarily as legal rule, but rather as a moral framing device – a sort of moral discomfort device – encouraging jurors to feel and bear the weight of what they do. I offer an account of character development in which virtues are conceived of not merely as modes of conduct developed through habituation and practice, but also as capacities and ways of being developed in part through understanding and experience. The criminal trial, framed by the presumption of innocence, can be an experience through which jurors and their communities, by learning what it means and feels like to carry a certain sort of moral weight, may engender a certain set of moral strengths – strengths valuable to them not just as jurors, but also as citizens, and as human beings.

January 29, 2013 | Permalink | Comments (0)

"Judge Approves BP Criminal Settlement"

From the New York Times:

HOUSTON — A federal judge in New Orleans on Tuesday approved an agreement between BP and the Justice Department for the company to plead guilty to manslaughter and pay $4 billion in criminal penalties for the 2010 oil well blowout and spill in the Gulf of Mexico that left 11 workers dead.

. . .

Several dozen people submitted letters to Judge Sarah S. Vance, of Federal District Court in New Orleans, requesting that she reject the plea agreement. Some wanted additional financial compensation, while others requested stronger punishment for BP supervisors or a more powerful apology.

January 29, 2013 | Permalink | Comments (0)

Monday, January 28, 2013

Reynolds on Charging Discretion

Reynolds glennGlenn Harlan Reynolds (University of Tennessee College of Law) has posted Ham Sandwich Nation: Due Process When Everything is a Crime on SSRN. Here is the abstract:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

January 28, 2013 | Permalink | Comments (0)

Primus on Effective Trial Counsel after Martinez v. Ryan

Primus eve brensikeEve Brensike Primus (University of Michigan Law School) has posted Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

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January 28, 2013 | Permalink | Comments (0)

Nadler on Consent, Dignity, and Scattershot Policing

Nadler janiceJanice Nadler (Northwestern University School of Law) has posted Consent, Dignity, and the Failure of Scattershot Policing (The Constitution and the Future of Criminal Justice in America, Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:

Law enforcement officers often work under conditions that afford them a great deal of individual discretion about how to exercise their power to police. In this chapter, I explore how Fourth Amendment doctrine, as formulated by the US Supreme Court, and as interpreted and applied by lower courts, influences law enforcement policy and individual officers’ exercise of this discretion. It does so not only by articulating specific rules for conduct, but by expressing opinions and values about the power relationships between law enforcement officers and those they police. I argue that the Court’s Fourth Amendment jurisprudence has encouraged the aggressive targeting of large numbers of people for stops and searches, the vast majority of whom are innocent of any crime. Many of these searches are premised on the highly questionable notion that the individuals targeted have freely consented to a search of their persons, vehicles, or belongings.

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January 28, 2013 | Permalink | Comments (0)

Sunday, January 27, 2013

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 929 Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study 
Dan M. Kahan
Yale University - Law School, 
Date posted to database: November 30, 2012 
2 398 Grading the Foreign Corrupt Practices Act Guidance 
Mike Koehler
Southern Illinois University School of Law, 
Date posted to database: December 14, 2012
3 204 Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras 
James J. BrudneyLawrence Baum
Fordham University - School of Law, Ohio State University (OSU) - Department of Political Science, 
Date posted to database: January 2, 2013 [5th last week]
4 200 Peeking Behind the Plea Bargaining Process
Laurie L. Levenson
Loyola Law School Los Angeles, 
Date posted to database: December 11, 2012 
5 199 Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents 
Bruce A. GreenEllen S. Podgor
Fordham University School of Law, Stetson University College of Law, 
Date posted to database: December 6, 2012 [6th last week]
6 153 What is Philosophy of Criminal Law? 
Youngjae Lee
Fordham University School of Law, 
Date posted to database: December 16, 2012 [7th last week]
7 139 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 [8th last week}
8 136 Prison, Foster Care, and the Systemic Punishment of Black Mothers 
Dorothy E. Roberts
University of Pennsylvania - Law School - Faculty, 
Date posted to database: December 4, 2012 [new to top ten]
9 120 Review of Patricia S. Churchland, 'Braintrust: What Neuroscience Tells Us About Morality' 
John Mikhail
Georgetown University - Law Center, 
Date posted to database: December 29, 2012 [new to top ten]
10 117 Narrative, Truth & Trial 
Lisa Kern Griffin
Duke University - School of Law, 
Date posted to database: December 16, 2012 [new to top ten]

 

January 27, 2013 | Permalink | Comments (0)