February 9, 2013
Wexler on the "Last Best Offer" Approach in Criminal Settlement Conferences
David B. Wexler (pictured) and Michael D. Jones (University of Puerto Rico - School of Law and Phoenix School of Law) have posted Employing the 'Last Best Offer' Approach in Criminal Settlement Conferences: The Therapeutic Application of an Arbitration Technique in Judicial Mediation (Phoenix Law Review, Vol. 6, 2013) on SSRN. Here is the abstract:
This brief essay, co-authored by a legal academic and by an experienced trial judge-turned-academic, looks at a state criminal procedure rule allowing for "criminal settlement conferences." Such conferences, not universally recognized, are basically a form of judicial mediation. This essay shows how the criminal settlement conference procedure can be improved in its implementation by infusing it with judicial practices and techniques of therapeutic jurisprudence (TJ), techniques one of the authors has already used in conferences at which he has presided. Here, the essay goes a step beyond and proposes, with the full consent of the participants, the therapeutic use of an arbitration technique -- the "last best offer" (LBO) approach -- to motivate the parties (defendant, victim, and state) better to see and appreciate all the positions involved -- and to increase the chances of an agreed-upon settlement. The essay closes with a recommendation that other jurisdictions consider the adoption of the legal structure permitting such conferences and that such conferences be implemented with a robust use of therapeutic techniques, including the LBO approach.
February 8, 2013
Cammett on Felony Disenfranchisement and the Criminalization of Debt
Ann Cammett (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Shadow Citizens: Felony Disenfranchisement and the Criminalization of Debt (Penn State Law Review, Vol. 117, No. 2, p. 349, 2012) on SSRN. Here is the abstract:
The disenfranchisement of felons has long been challenged as anti-democratic and disproportionately harmful to communities of color. Critiques of this practice have led to the gradual liberalization of state laws that expand voting rights for those who have served their sentences. Despite these legal developments, ex-felons face an increasingly difficult path to regaining the franchise. This article argues that, for ex-felons in particular, criminal justice debt can serve as an insurmountable obstacle to the resumption of voting rights and broader participation in society. This article uses the term “carceral debt” to identify criminal justice penalties levied on prisoners, “user fees” assessed to recoup the operating costs of the justice system, and debt incurred during incarceration, including mounting child support obligations.
In recent years, another disturbing voting rights challenge has emerged that has received little attention from scholars. State appellate and federal courts across the country have affirmed the constitutionality of statutes that require ex-felons to satisfy the payment of all carceral debts in order to resume voting privileges. Such a paradigm has a clearly differential impact on the poor: if only those who can pay their debts after a criminal conviction can regain the right to vote, those who cannot will remain perpetually disenfranchised, rendering them “shadow citizens” and raising a host of policy and constitutional questions.
"Case overturned against crack-carrying man who told cop off"
The story is at How Appealing. In part:
The Rochester Democrat and Chronicle contains an article that begins, "The F-word isn't always a fighting word, and carrying copious amounts of crack cocaine isn't always a crime. So says the state's highest court, which ruled Thursday that a Rochester man should never have been charged with disorderly conduct for uttering the four-letter profanity at police."
Alfieri on Race Trials Revisited
Anthony Victor Alfieri (University of Miami School of Law) has posted 'He is the Darkey with the Glasses On': Race Trials Revisited (North Carolina Law Review, Vol. 91, 2013) on SSRN. Here is the abstract:
Despite the advent of a new “post-racial” century, civil rights and criminal defense lawyers continue to construct racialized cultural and social narratives of minority inferiority and stigma. They do so in part because of a lack of shared professional guidelines regulating the use of race talk in courtrooms and in advocacy more generally. The absence of descriptive and prescriptive guidance in the regulation of race talk raises critical questions: When should trial lawyers normatively object to race talk? When should trial lawyers strategically exploit race talk? When should trial lawyers procedurally and substantively reintegrate race talk into the spoken and written texts of the courtroom? Built on the assembled work of a distinguished group of academics in the fields of criminal law, legal history, race and ethnic studies, trial advocacy, and outsider jurisprudence, this Essay extends work started elsewhere addressing the normative concerns, strategic and tactical considerations, and procedural and substantive rules relevant to race talk. That body of work alters previous efforts to map the contours of race trials and charts new research directions for the study of race trials. Both pedagogically and practically, the collective task is to rediscover the pain and the promise in the words we use for race.
Gershowitz on Texting While Driving and Warrantless Cell Phone Searches
Adam M. Gershowitz (William & Mary Law School) has posted Texting While Driving Meets the Fourth Amendment: Deterring Both Texting and Warrantless Cell Phone Searches (Arizona Law Review, Vol. 54, No. 3, 2012) on SSRN. Here is the abstract:
Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones. Trading a confession for a search will encourage guilty pleas while reducing invasive, warrantless cell phone searches that are currently authorized under the Fourth Amendment.
February 7, 2013
"Statutory Rape of 13-Year-Old Yields No Jail Time, Because of Defendant’s Cultural Insularity"
Eugene Volokh has this post at The Volokh Conspiracy. His assessment, in part:
[W]hen the claim is “I didn’t know because I was raised in an insular community,” there is reason for punishment precisely to send a message to members of insular communities (and leaders of those communities) that they need to work harder to learn the important commands of the legal system. Conversely, cutting slack to people who don’t know the law because they grew up in an insular community — or to people who claim not to know the law for this reason — reinforces the tendency of many in insular communities to focus more on following the norms of their community than trying to learn and abide by the norms of society.
An Antiterrorism Sting
The article is in the New York Times:
Bangladeshi Admits Trying to Bomb Federal Reserve Bank
A Bangladeshi man who tried to blow up the Federal Reserve Bank of New York remotely only to find that the bomb was fake and his plot had been under the constant surveillance of federal agents pleaded guilty on Thursday to terrorism charges.
. . .
In response to criticism of the law enforcement approach — and the claim that men like Mr. Nafis could not pull off an attack without the government’s help — Loretta E. Lynch, the United States attorney for the Eastern District of New York, emphasized that Mr. Nafis had entered the United States with plans to carry out the attack and that the sting was the best way to stop him.
Marceau, Kamin & Foglia on Colorado Capital Punishment
Justin F. Marceau , Sam Kamin and Wanda Foglia (University of Denver Sturm College of Law , University of Denver Sturm College of Law and Rowan University) has posted Colorado Capital Punishment: An Empirical Study on SSRN. Here is the abstract:
This article reports the conclusions of an empirical study of every murder conviction in Colorado between January 1, 1999 and December 31, 2010. Our goal was to determine: 1) What percentage of first degree murderers in Colorado were eligible for the death penalty; and 2) How often the death penalty was sought against these killers. More importantly, our broader purpose was to determine whether Colorado’s statutory aggravating factors meaningfully narrow the class of death eligible offenders as required by the Constitution.
We discovered that while the death penalty was an option in approximately ninety two percent of all first degree murders, it was sought by the prosecution initially in only three percent of those killings, pursued all the way through sentencing in only one percent of those killings, and obtained in only 0.6 percent of all cases.
These numbers compel the conclusion that Colorado’s capital sentencing system fails to satisfy the constitutional imperative of creating clear, statutory standards for distinguishing between the few who are executed and the many who commit murder. The Eighth Amendment requires that these determinations of life and death be made at the level of reasoned legislative judgment, and not on an ad hoc basis by prosecutors. The Supreme Court has emphasized that a State’s capital sentencing statute must serve the “constitutionally necessary function . . . [of] circumscrib[ing] the class of persons eligible for the death penalty” such that only the very worst killers are eligible for the law’s ultimate punishment. Colorado’s system is unconstitutional under this standard because nearly all first degree murderers are statutorily eligible to be executed.
Binford on Criminal Capacity and the Teenage Brain
Warren Binford (Willamette University College of Law) has posted Criminal Capacity and the Teenage Brain: Insights from Neurological Research (The Dynamics of Youth Justice & the Convention on the Rights of the Child in South Africa, Vol. 14, No. 3, December 2012) on SSRN. Here is the abstract:
Recent advances have been made in magnetic resonance imaging (‘MRI’) that allow researchers to create and study three dimensional images of the brain without using radiation. This technological development allows scientists to safely monitor children’s neurological development over the years. The information culled from this groundbreaking research tells not just how, but why, adolescents act the way they do from the perspective of neuroscience.
Does a neuroscience perspective matter more than civilization’s collective wisdom in persuading jurists to treat adolescents differently than adults in criminal matters? Apparently, it does, at least in the United States Supreme Court, which recently struck down a series of controversial sentencing practices involving children, including the death penalty and mandatory life imprisonment without the possibility of parole. In issuing these decisions, the U.S. Supreme Court expressly cited the recent findings of neuroscientists as a reason for their decisions. This article summarizes recent neurological research on teen brain development and briefly highlights recent U.S. Supreme Court decisions that appear to have been influenced by the latest neuroscientific research.
February 6, 2013
"Top Judge Says Bail in New York Isn’t Safe or Fair"
From The New York Times:
Castigating the bail process in New York as unfair to the poor and susceptible to allowing dangerous suspects to be set free, the state’s top judge called on Tuesday for an overhaul of the bail system that would bring the state closer in line with the rest of the country.
. . . Jonathan Lippman, said New York was one of only four states that did not allow judges to consider public safety when making a bail determination. The main criterion used by judges is the risk of the defendant’s not returning to court for trial.
. . .
Conversely, Judge Lippman said the bail system was stacked against those accused of minor crimes, keeping them in jail at great personal hardship and weakening their resolve in plea negotiations.
Drinan on Lafler and Frye
Cara H. Drinan (Catholic University of America (CUA)) has posted Lafler and Frye: Good News for Public Defense Litigation (Federal Sentencing Reporter, Vol. 25, No. 2, 2012) on SSRN. Here is the abstract:
In Missouri v. Frye and Lafler v. Cooper, the Supreme Court confirmed that the Sixth Amendment right to counsel applies to the plea negotiation process and held that prejudicial error can flow from ineffective plea advice. The defense community has applauded these decisions for recognizing the pivotal role that guilty pleas play in our criminal justice system and for requiring a minimum level of efficacy in plea lawyering. In this brief essay, I suggest that Frye and Lafler are victories for the defense community in yet another way. The decisions reflect judicial realism, and in this respect, they are especially important cases for systemic public defense litigation. Courts confronted with these suits in the past have stymied reform efforts by approaching these suits in a formalistic way, sending plaintiffs either to seek a post-conviction remedy or legislative redress, neither of which are practical options. Frye and Lafler, because they are grounded in the reality of today's criminal justice system, may provide critical leverage to lawyers asking courts for systemic relief.
Koenig on Cruel Conditions of Confinement
Alexa Koenig (University of California, Berkeley - School of Law) has posted The 'Worst': A Closer Look at Cruel, Inhuman and Degrading Treatment on SSRN. Here is the abstract:
Both international and domestic laws have long forbidden the abuse and torture of prisoners. Specifically, international law forbids 'cruel, inhuman and degrading treatment,' a form of illegal abuse that has no codified definition in international law. In this dissertation chapter, I argue that many courts and scholars have failed to adequately conceptualize this prohibition, mistakenly lumping inhuman and degrading treatment under the category of cruelty. I conclude that because of this blurring of the distinction between cruel, inhuman and degrading treatment, the scope of the treatment that is understood to be legally prohibited has been unnecessarily narrowed, permitting many forms of institutional abuse to remain unrecognized by courts. I also conclude that this narrow approach overlooks many forms of institutional treatment that should be prohibited, in part for legal consistency, and in part to safeguard the wellbeing of prisoners. Drawing on 78 interviews with former Guantánamo detainees, I demonstrate that “the worst” prison treatment, for many prisoners, is not physical cruelty as often assumed, but treatment that can be categorized as inhuman and/or degrading, and thus that these phenomena are necessarily distinct. Based on this finding, I make the normative argument that society’s understanding of the prohibition against cruel, inhuman and degrading treatment must be refined and reconsidered, if some of the worst prison-based atrocities are to be avoided.
February 5, 2013
Bambauer on Privacy Versus Security
Legal scholarship tends to conflate privacy and security. However, security and privacy can, and should, be treated as distinct concerns. Privacy discourse involves difficult normative decisions about competing claims to legitimate access to, use of, and alteration of information. It is about selecting among different philosophies, and choosing how various rights and entitlements ought to be ordered. Security implements those choices – it intermediates between information and privacy selections. This Article argues separating privacy from security has important practical consequences. Security failings should be penalized more readily, and more heavily, than privacy ones, because there are no competing moral claims to resolve, and because security flaws make all parties worse off. Currently, security flaws are penalized too rarely, and privacy ones too readily. The Article closes with a set of policy questions highlighted by the privacy versus security distinction that deserve further research.
Ling on Private Defence in India
Cheah Wui Ling (National University of Singapore - Faculty of Law) has posted Private Defence (Wing-Cheong Chan, Barry Wright & Stanley Yeo (eds), Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Recform (Ashgate 2011)) on SSRN. Here is the abstract:
This chapter examines the right to private defence in the Indian Penal Code (IPC) using a historical lens and argues for its legislative reconsideration in light of post-colonial developments. By situating this defence against British India’s colonial landscape, it is argued that private defence was primarily viewed by Macaulay as a ‘law and order’ tool of governance. For Macaulay, private defence was to contribute to colonial law enforcement efforts and build a ‘manly’ character in the natives. Today, while the text of these provisions has remained remarkably stable, its content has been significantly reshaped by judicial interpretation. Unfortunately, these judicial developments do not advance a coherent, alternative approach to Macaulay’s ‘law and order’ conceptualization of private defence. However, in some instances, they do reflect inconsistencies with that conceptualization. The chapter concludes by suggesting how private defence can be reformulated in the IPC to reflect a more modern rights-based approach to private defence.
February 4, 2013
MacMahon on Self-Service Search Warrants and International Terrorism
Paul MacMahon (Harvard Law School) has posted Self-Service Search Warrants and International Terrorism: Lessons from Damache v. DPP (Irish Law Journal, Vol. 1, p. 2, 2012) on SSRN. Here is the abstract:
In February 2012, the Supreme Court of Ireland invalidated a long-standing statutory provision that allowed the police to "help themselves" to search warrants in terrorism cases. Though the case has far-reaching practical consequences and theoretical implications, the Supreme Court’s written decision was relatively spare. The aim of this comment is to deepen the discussion. To that end, I examine the purposes of search warrant requirements as part of a legal regime for protecting privacy against government intrusion. I also discuss the judicial power to reject counterterrorism measures approved by the elected branches of government. Finally, I connect the Supreme Court’s decision to fundamental and recurring questions about the Irish judiciary’s level of trust in law enforcement authorities.
Graham on "Other Crimes" Evidence
Michael H. Graham (University of Miami - School of Law) has posted two articles on "other crimes" evidence under Federal Rule of Evidence 404(b) on SSRN. The first is Other Crimes, Wrongs, or Culpable Acts, Fed.R.Evid. 404(B): 'Defining' a New Paradigm (Criminal Law Bulletin, Vol. 47, p. 998, 2011). Here is the abstract:
Commentators addressing the incredible theoretical and functional difficulties surrounding the long accepted general principal that while other crimes, wrongs, or culpable acts are not admissible to prove the character of a person in order to show action in conformity therewith, such evidence may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” Fed.R.Evid. 404(b), have more or less thrown in the towel reverting to the bromide that fundamentally it all is a question of proper application of discretionary balancing, basically some version or another of Fed.R.Evid. 403. Such an approach is recommended by those adopting a totally theoretical approach to the enterprise as well not surprisingly also by the two commentators, Imwinkelried and Leonard, who have authored treatises devoted solely to the subject.Application of discretionary balancing approach represented by Fed.R.Evid 403 is and has also been the principle approach adopted by trial and appellate courts alike.
The result is the hodgepodge of decisions which the commentators bemoan while arguing for what is in fact limited and insufficient reform. The lack of clarity, consistency, predictable and very importantly acceptability as a matter of overall policy that results from the balancing approach of Fed.R.Evid. 403 with all of its common law subplots and nuances, in fact led to the enactment in the 1994 of Fed.R.Evid. 413 and 414. Rules 413 and 414 more or less made fully admissible evidence of the defendant’s commission of another offense or offenses of sexual assault and child molestation in spite of the continued theoretical applicability of the Rule 403 limiting balancing approach.
Further complicating rational analysis of admissibility of other crimes, wrongs, or culpable acts for another purpose is the lack of clarity and consistency along with the incredible flexibility and breadth as to the scope of the “other purposes” in fact listed in Rule 404(b), in particular motive, intent, and of course plan, sometimes referred to as common course or scheme.
What is needed is a fresh approach to the admissibility of other crimes, wrongs, or culpable acts evidence employing specific narrow analytically distinct and sound definitions with respect to several of the most commonly employed listed “other purposes.” In addition, what is needed is a clear recognition that in practice the subject matter of the other crimes, wrongs, or culpable acts evidence critically affects admissibility, such as domestic violence, sexual battery, child molestation, possession of recently stolen property, while in other situations other factors, such as same victim, may be in fact be controlling — controlling in the sense of making the other crimes, wrongs, or culpable acts evidence almost inevitably admissibility. A fresh approach should also contain detailed provisions dealing with burden of proof, notice, and distinguishing intrinsic from extrinsic evidence amongst others.
“Defining” into a new paradigm clearly breaks with traditional academic rhetoric. “Defining” into a new paradigm, it is suggested, stands the best chance of preserving the basic underlying common law principles as reflected in Michelson supra and Fed.R.Evid. 404(b), while facilitating more consistent, rational, predictable decisions with respect to the admissibility of other crimes, wrongs, or culpable acts evidence. Finally, clarity in definition accompanied by recognition that certain other crimes, wrongs, or culpable acts evidence are almost certainly going to be admitted will foster a more stringent approach to admissibility of other crimes, wrongs, or culpable acts evidence in those areas where unwarranted erosion of the general prohibition against character evidence for conformity has been taking place such as has occurred with respect to other crimes, wrongs, or culpable acts comprising merely unlinked plan evidence.
The second is Reconciling Inextricably Intertwined/Intricately Related Other Crimes, Wrongs, or Culpable Acts Evidence with Fed.R.Evid. 404(B): Don't Throw the Baby Out With the Bath Water (Criminal Law Bulletin, Vol. 47, p. 1258, 2011). Here is the abstract:
The concept of “inextricably intertwined/intricately related” has been given such universal recognition in the law of evidence for good reason. Other crimes, wrongs, or culpable acts sufficiently connected to the criminal event forming the basis of the prosecution should be admissible in evidence without the requirement of notice, enhanced burden of proof, limiting instructions, along with a real life realistic application of Rule 403. The prosecution should be able to present a cohesive, complete and comprehensible story of the events including crimes, wrongs, or acts other than those charged where closely linked in point of time and space to the criminal event free from any and all of the foregoing requirements. Retention of the concept of “inextricably intertwined/intricately related” maintains the proper balance with respect to disclosure between prosecution and defense.
The problem with “inextricably intertwined/intricately related” correctly perceived and discussed recently by both the Seventh and Third Circuits is its unacceptable breadth as applied in practice. The approach that should be taken is not the abandonment of the concept of “inextricably intertwined/intricately related”, but its reformation making “inextricably intertwined/intricately related” solely applicable in the areas in which it properly belongs. The Third Circuit saw this need in Green preferring the term “intrinsic” defined as either “directly proves” the charged offense or “uncharged acts performed contemporaneously with the charged crime if they facilitate the commission of the charged crime.” It is suggested that neither “contemporaneous” nor “facilitate” is broad enough to capture the utility that should be captured by a reformulated “inextricably intertwined/intricately related”. “Contemporaneous” is too rigid a time frame. Moreover, many other crimes, wrongs or culpable acts necessary to complete the story do not “facilitate” the charged crime but are rather ancillary.
The definition of “inextricably intertwined” should focus partially upon scope, not solely upon purpose. Prior focus solely on the purpose of “inextricably intertwined” lead to its unwarranted expansive breadth and lack of discriminating application rightly criticized in both the Seventh and Third Court opinions. The scope of “inextricably intertwined” being suggested is “closely linked in point of time and space to the criminal event”. The purpose of “inextricably intertwined” evidence is to complete the story, fill a chronological gap or conceptual void, or is so blended or connected that it incidentally involves or explains the circumstances surrounding the charged offense. “Inextricably intertwined” evidence along with direct evidence of the charged offense is intrinsic evidence not subject to Fed.R.Evid. 404(b) notice, limiting instruction, burden of proof requirements, and real application of Fed.R.Evid. 403. On the other hand, “background/context” evidence, i.e., evidence offered to show relationship, chronology, history, or mutual trust, is Fed.R.Evid. 404(b) evidence subject to each and every one of the foregoing requirements.
Vartkessian on Future Dangerousness in Capital Cases
Elizabeth Vartkessian (University at Albany - School of Criminal Justice) has posted What One Hand Giveth, the Other Taketh Away: How Future Dangerousness Corrupts Guilt Verdicts and Produces Premature Punishment Decisions in Capital Cases (Pace Law Review, Vol. 32, No. 2, 2012) on SSRN. Here is the abstract:
This article aims to further the discussion of the constitutionality of the Texas capital sentencing scheme by focusing on how the statutory focus on the defendant’s future dangerousness dismantles bifurcation and encourages early sentencing decisions. Using data from the Capital Jury Project (CJP), the article demonstrates the biasing effect of early exposure to the concept of dangerousness during voir dire. It traces how jurors use the concept of the defendant’s dangerousness in their guilt decisions and it parses out the ways in which the topic facilitates early sentencing decisions.
February 3, 2013
Spearit on Islam in Prison
SpearIt (Saint Louis University - School of Law) has posted Facts and Fictions About Islam in Prison: Assessing Prisoner Radicalization in Post-9/11 America (Institute for Social Policy and Understanding, January 2013) on SSRN. Here is the abstract:
This report assesses the radicalization of Muslim prisoners in post-9/11 America. In the last decade, Muslim prisoners have been scrutinized for ties to terrorist and other extremist organizations, not to mention characterized as both a “threat” and a “danger” to national security, due to the influence of foreign jihadist movements. However, closer scrutiny shows that these fears have failed to materialize — indeed, despite the existence of an estimated 350,000 Muslim prisoners, there is little evidence of widespread radicalization or successful foreign recruitment, and only one documented case of prison-based terrorist activity. Nonetheless, some prison systems have implemented an aggressive posture toward these inmates and have made suppressive tactics their bedrock policy. This approach unfortunately overlooks Islam’s long history of positive influence on prisoners, including supporting inmate rehabilitation for decades. Moreover, Muslim inmates have a long history of using the court system to establish and expand their rights to worship and improve their conditions of confinement. Hence, a closer look at “life on the ground” turns the prevailing discourse on its head by demonstrating that Islam generally brings peace to inmates and that the greatest “threat” posed by Muslim inmates is not violence, but lawsuits.
Reamey on Anticipatory Warrants
Gerald S. Reamey (St. Mary's University School of Law) has posted The Promise of Things to Come: Anticipatory Warrants in Texas on SSRN. Here is the abstract:
While the U.S. Supreme Court has settled the question of the constitutionality of anticipatory search warrants, Texas has no statutory provision regulating the issuance of such warrants. Similarly, state appellate courts have contributed almost nothing to the question of whether such warrants are acceptable under Texas procedural law or, if they are, under what circumstances. As the use of such warrants grows in the state, these issues require attention. This article begins that discussion, reviewing existing law and proposing interpretations of current statutes as well as proposing others.
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