February 16, 2013
Nance on School Security, Race, and the Fourth Amendment
Jason P. Nance (University of Florida Levin College of Law) has posted Students, Security, and Race on SSRN. Here is the abstract:
In the wake of the terrible shootings in Newtown, Connecticut, our nation has turned its focus to school security. For example, several states have passed or are considering passing legislation that will provide funding to schools for security equipment and law enforcement officers. Strict security measures in schools certainly are not new. In response to prior acts of school violence, many public schools for years have relied on metal detectors, random sweeps for contraband, locked gates, surveillance cameras, and law enforcement officers to promote school safety. Before lawmakers and school officials invest more money in strict security measures, this Article provides two major points that should be considered.
First, drawing on recent, restricted data from the U.S. Department of Education’s School Survey on Crime and Safety, this Article presents an original empirical analysis measuring the use of strict security practices across the country during the 2009-10 school year. The analysis reveals that low-income students and minority students are much more likely to experience intense, prison-like conditions than other students, even when taking into account factors such as neighborhood crime, school crime, school disorder, school size, and school location. These findings raise concerns that such inequalities may continue or worsen as lawmakers provide additional funding for security measures. Second, this Article argues that school officials and lawmakers can curb violence more effectively in our schools and communities by investing in programs that build trust and collective responsibility than by using strict security measures.
Further, this Article offers recommendations to address the disproportionate use of strict security measures on low-income students and minority students. In addition to urging school officials and policymakers to adopt alternative, more effective methods to reduce violence, this Article encourages federal and state agencies to stop providing grants for strict security measures and, instead, to use those funds to motivate schools to implement alternative programs that prevent school crime without harming the learning environment. Additionally, this Article recommends that the Department of Education’s Office of Civil Rights and play a more active role in addressing the disproportionate use of strict security measures on minority students. Finally, this Article concludes by proposing an alternative test that courts should apply to evaluate students’ Fourth Amendment rights.
Cook on Plea Bargaining and Sentence Modification
Julian A. Cook (University of Georgia Law School) has posted Plea Bargaining, Sentence Modifications, and the Real World (Wake Forest Law Review, Vol. 48, p. 101, 2013) on SSRN. Here is the abstract:
This article examines the 2011 Supreme Court decision in United States v. Freeman. At issue was whether defendants, such as Freeman, who enter a guilty plea pursuant to a binding plea agreement, are entitled to seek a modification of their sentence when the guideline range applicable to their offense has subsequently been lowered by the United States Sentencing Commission. By a five-to-four vote, the Court found that Freeman was eligible to seek a sentence reduction. However, as the article explains, the concurring and controlling opinion of Justice Sotomayor may ultimately prove to be problematic for criminal defendants generally and for the Commission for many years to come. In her opinion, Sotomayor suggests, in dicta, that the government can preempt future sentencing reduction claims through the insertion in plea agreements of waiver clauses. Should the Department of Justice adopt such a policy, the article warns of (and describes) the long-term adverse consequences that such a decision would have for criminal defendants and for ability of the Commission to achieve equity through guideline sentencing. As part of its critique of Freeman, the article also explains why the Freeman Court erred in its analytical approach. In so doing, it illuminates the real world of plea bargaining in the Freeman context, and explains why this plea negotiation truism provides a sounder, firmer, and clearer foundation to decide not only Freeman-type cases but any such case involving a sentence reduction claim. The article also uses Freeman to highlight and correct a common misunderstanding about the nature of plea agreement contracts. It explains why plea agreements have been erroneously construed as unilateral arrangements between the prosecution and the defendant, and why they should properly be interpreted as bilateral contracts involving three parties — the prosecution, the defendant and the court.
Next week's criminal law/procedure argument
Issue summary is from ScotusBlog, which also links to papers:
- Millbrook v. U.S.: Whether 28 U.S.C. §§ 1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to "execute searches, to seize evidence, or to make arrests for violations of Federal law."
February 15, 2013
Townsend on Federal Tax Crimes
This is the 2013 01 edition of the Federal Tax Crimes book that I started many years ago for use in a Tax Fraud and Money Laundering course at the University of Houston Law School. With some colleagues, we substantially revised that earlier version into a separately targeted book, titled Tax Crimes published by LEXIS-NEXIS. The full title of the LEXIS-NEXIS book is John Townsend, Larry Campagna, Steve Johnson and Scott Schumacher, Tax Crimes (LEXIS-NEXIS Graduate Tax Series 2008).
This pdf text offered here is a self-published version of my original text that I have kept up since publication of the LEXIS-NEXIS book.
Lennan & Williams on the Death Penalty in Australia
Jo Lennan and George Williams (University of New South Wales (UNSW) - Faculty of Law and University of New South Wales) have posted The Death Penalty in Australian Law ((2012) Sydney Law Review, Vol 34, pp.659-94) on SSRN. Here is the abstract:
This article undertakes a comprehensive review of Australian legislation on the death penalty. It charts the legal progress towards abolition, detailing the successive moves by colonial, state, territory and Commonwealth legislatures to restrict and then completely abolish capital punishment. Most recently, the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act 2010 (Cth) blocks any state or territory attempt to reinstate the death penalty. The article examines whether any action now remains to be taken in Australia in this area. It considers the extent to which laws and practices on extradition and policing might involve Australian authorities in processes leading to the imposition of the death penalty abroad. It is suggested that while the 2010 Act represents the last necessary step (save for constitutional entrenchment) to abolish the death penalty in Australia, action can still be taken as a matter of principled opposition to the death penalty to ensure that Australian officials are not involved in the imposition of capital punishment elsewhere.
Plaxton on Police Powers in Canada
In a series of cases in the Charter era, the Supreme Court of Canada has broadened police powers – sometimes through resort to the ancillary powers doctrine, sometimes through an expansive interpretation of legislative grants of authority, and sometimes by interpreting legislation that appears to authorize rights infringements in such a way that they survive Charter scrutiny. These lines of authority have been criticized, notably by James Stribopoulos, as incompatible with the rule of law. His argument, which I believe reflects the views of other critics of the Court’s police powers jurisprudence, rests on the premise that we should understand the rule of law in the terms set out by AV Dicey.
In this paper, I argue that Dicey provides an inappropriate lens through which to examine the Court’s approach to police powers. We gain a better understanding of that line of authority, I argue, by abandoning Dicey and instead proceeding on the basis that police officers, as administrative actors, have discretion to determine the extent to which Charter rights should yield to public interest considerations. To a degree, I want to make that point simply by carrying forward the very analysis undertaken by Stribopoulos and others; i.e., by showing that the Supreme Court’s approach to police powers cannot be reconciled with the Diceyan model. Rather than use that analysis to show that the jurisprudence is wrong, however, I use it to support the claim that the Diceyan conception of the rule of law is not as central to the Canadian legal order as the Court’s critics suppose, and that we should scrutinize the cases through an altogether different lens.
February 14, 2013
"Class Action Granted in Second of Three Stop-and-Frisk Cases"
The second of three major cases alleging the New York City Police Department engages in an unconstitutional pattern of stopping and frisking people without a reasonable suspicion that they are engaged in criminal activity has been deemed a class action.
Southern District Judge Shira Scheindlin on Feb. 11 certified a class in Ligon v. City of New York, 12-2274, a case where black and Latino citizens in the Bronx allege police have been illegally stopping and frisking them as they enter and exit buildings that take part in a police crime-fighting program.
"Rights groups urge India to reject new sexual violence law"
Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called Tuesday for significant alterations [press release] to India's new criminal law on violence against women. The new law [text] was signed [JURIST report] by President Pranab Mukherjee [official website] in early February. The rights groups contend that the new law fails to meet current international human rights standards, noting it does not "criminalize the full range of sexual violence with appropriate punishments in accordance with international human rights law." According to HRW, the law fails to draw distinctions between different levels of sexual misconduct and assault. The press release also criticized the ordinance claiming certain provisions effectively grant immunity to members of police and military forces accused of sexual violence.
Takahashi on Molecular Neuroeconomics of Crime and Punishment
Taiki Takahashi (Hokkaido University) has posted Molecular Neuroeconomics of Crime and Punishment: Implications for Neurolaw (NeuroEndocrinology Letters, Forthcoming) on SSRN. Here is the abstract:
Criminal behaviors have been associated with risk, time and social preferences in economics (Becker, 1968; Davis, 1988), criminology (Chamlin and Cochran, 1997), and neurolaw (Goodenough and Tucker, 2010). This study proposes a molecular neuroeconomic framework for the investigation into crime and punishment. Neuroeconomic parameters (e.g., risk-attitude, probability weighting, time discounting in intertemporal choice, loss aversion, and social discounting) are predicted to be related to criminal behavior. Neurobiological and neuroendocrinological substrates such as serotonin, dopamine, norepinephrine, cortisol (a stress hormone), sex hormones (e.g., testosterone), and oxytocin in brain regions such as the orbitofrontal cortex, the amygdala, and the cingulate may be related to the neuroeconomic parameters governing criminal behaviors. The present framework may help us develop “neurolaw” based on molecular neuroeconomics of criminal and antisocial decision-making processes.
Sheehy, Stubbs & Tolmie on Defences to Homicide for Battered Women
Elizabeth A. Sheehy , Julie Stubbs and Julia Tolmie (University of Ottawa - Faculty of Law (Common Law) , University of New South Wales (UNSW, Australia) - Faculty of Law and University of Auckland) have posted Defences to Homicide for Battered Women: A Comparative Analysis of Laws in Australia, Canada and New Zealand ((2012) 34 Sydney Law Review 467) on SSRN. Here is the abstract:
This article takes stock of what is happening in the defence of battered women who are charged with homicide across three jurisdictions – Australia, Canada and New Zealand. In Part 1 the current legal requirements for the most relevant defences in all three jurisdictions are briefly outlined, with a focus on those legal developments that are likely to assist in the defence of battered women. In Part 2 general trends in how homicide cases involving accused battered women were resolved from 2000 to 2010 in the three jurisdictions are examined. This analysis suggests that further work is needed to improve the legal response to these kinds of cases, but that the changes needed are not necessarily in the area of statutory reform.
February 13, 2013
de Jong on Shifting Conceptions of Criminal Justice Legitimacy
Ferry de Jong (Utrecht University School of Law) has posted A Reciprocal Turn in Criminal Justice? Shifting Conceptions of Legitimate Authority (Utrecht Law Review, Vol. 9, No. 1, p. 1-23, January 2013) on SSRN. Here is the abstract:
The past decade has seen the rise of a fierce, ongoing controversy concerning the authority of criminal courts and the legitimacy of the criminal justice system as such. This article aims to provide some much needed conceptual clarity regarding the primal subjects under discussion: To what do we actually refer when we are using the words 'authority' and 'legitimacy'? What is 'legitimate authority'? For an answer to this question, reference is made to a number of theoretical developments within (political) philosophy. The article investigates how developments within the doctrines of the general part of substantive criminal law are related to shifting contemporary views on the general conditions for a legitimate exercise of practical authority. An account of a number of interlocking developments within the doctrinal system of Dutch substantive criminal law serves as a starting point for the subsequent inquiry. It is argued that these developments exemplify shifts in the way authority is distributed over various agents involved in criminal proceedings. It is further argued that these shifts in the distribution of authority parallel notable movements within the philosophical literature on the concept of legitimate authority, that is: a movement from a rationalistic and top-down approach toward a reciprocal, bottom-up approach.
Kolber on Proportional Punishment
Adam J. Kolber (Brooklyn Law School) has posted Against Proportional Punishment (66 Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court has held that pretrial detainees are presumed innocent and that their detention does not constitute punishment. If convicted, however, detainees usually receive credit at sentencing for the time they spent in detention. We reduce their punishment by time spent unpunished.
Crediting time served conflicts with the commonly-held view that punishment should be proportional to blame. Offenders who deserve to be punished by one year in prison but are detained for a year before trial may be released immediately upon conviction and technically receive no punishment at all.
One way to solve the mystery of credit for time served is to recognize that people don’t care about proportional “punishment” in the narrow way the Supreme Court and many theorists use the term. Rather, they seek to dispense proportional “harsh treatment.” Even though pretrial detention is technically not punishment, it is harsh treatment inflicted by the state, and most believe offenders deserve credit for it.
Shifting our focus to proportional harsh treatment, however, solves one problem at the expense of several others. For once we broaden the notion of proportionality to encompass the harsh treatment of detention, we must consider other harsh treatment we inflict that, like detention, may not technically be considered punishment. Such harsh treatment depends on: (1) the particular facilities to which inmates are assigned; (2) how inmates experience those facilities; (3) how confinement harms them relative to their unpunished baselines; and (4) how they are affected by the collateral consequences of incarceration for decades to come. While we could try to salvage proportionality by better measuring all of this harsh treatment, I explain the sometimes absurd consequences of doing so.
Even though retributivist notions of proportionality are central to sentencing systems around the world and are widely thought to undergird core notions of criminal justice, when looked at closely, both proportional punishment and proportional harsh treatment have profoundly counterintuitive implications. Revealing the weaknesses in retributivist proportionality makes consequentialist punishment theories look correspondingly more appealing.
February 12, 2013
Capters on Defending LWOP as Alternative to Death
I. Bennett Capers (Brooklyn Law School) has posted Chapter 5: Defending Life (Life Without Parole: America's New Death Penalty? (Charles J. Ogletree, Jr. & Austin Sarat eds., NYU Press 2012)) on SSRN. Here is the abstract:
This chapter interrogates what it means to defend LWOP as an alternative to death. In demanding the abolition of the death penalty — as cruel and unusual, as violative of equal protection, as immoral, and as an inefficient deterrent — have abolitionists unwittingly erected another evil, another type of death, LWOP? One of the most visible flaws in the imposition of the death penalty has been its linkages, historically and now, to race. What does it mean that LWOP, by contrast, is largely invisible, rendering race largely invisible? What does it mean to defend LWOP, that other death, in a society where the resources to defend are miniscule compared to the resources to defend actual death? Finally, what does it mean to us as citizens to live in these new cities, newly configured, sanitized, and purged — again, often along racial lines, and almost always along class lines — via the tool of LWOP?
Conference on California Correctional Crisis: Realignment and ReformThe event will be held at the California State Building in San Francisco on March 21-22. The full program and registration is available here.
"The War on Drugs, Overcriminalization, and the Rise of Militarized Police Raids"
Overarmed federal officials increasingly employ military tactics as a first resort in routine law enforcement. From food-safety cases to mundane financial matters, battle-ready public employees are turning America into the United States of SWAT.
FBI agents and U.S. marshals understandably are well fortified, given their frequent run-ins with ruthless bad guys. However ... armed officers, if not Special Weapons and Tactics crews, populate these federal agencies: the National Park Service; the Postal Inspection Service; the Departments of Health and Human Services, Agriculture, Labor, and Veterans Affairs; the Bureaus of Land Management and Indian Affairs; the Environmental Protection Agency; and the Fish and Wildlife Service. Even Small Business Administration and Railroad Retirement Board staffers pack heat!
Broadhurst et al. on Crime in Cyberspace and Organized Crime
Roderic Broadhurst , Peter Grabosky , Mamoun Alazab , Brigitte Bouhours and Steve Ki-hong Chon (Australian National University (ANU) , Australian National University (ANU) - Research School of Social Sciences (RSSS) , Australian National University , Australian National University (ANU) and Australian National University) have posted Crime in Cyberspace: Offenders and the Role of Organized Crime Groups on SSRN. Here is the abstract:
This working paper summarizes what is currently known about cybercrime offenders and groups. The paper briefly outlines definition and scope of cybercrime, the theoretical and empirical challenges in addressing what is known about cyber offenders, and the likely role of organized crime groups (OCG). The paper gives examples of known cases that illustrate individual and group behaviour, profiles typical offenders, including online child exploitation offenders, and describes methods and techniques commonly used to identify crimeware and help trace offenders.
McLean on the Excessive Fines Clause
Nicholas M. McLean has posted Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause: Rediscovering the Eighth Amendment's 'Economic Survival' Norm (Hastings Constitutional Law Quarterly, Forthcoming) on SSRN. Here is the abstract:
Most modern courts that have been called upon to interpret and apply the Excessive Fines Clause of the Eighth Amendment have concluded that a fine or forfeiture can be unconstitutionally excessive only if it is grossly disproportionate to its associated offense. However, in light of its text, history, and purpose, the Excessive Fines Clause is appropriately understood as encoding both a proportionality principle and a further limiting principle linking penalties to the personal circumstances and economic status of the offender. This article seeks to address a significant and surprising gap in the extant literature by articulating and systematically developing an account of this second principle, known in traditional English law as salvo contenemento. This principle is properly understood as signifying an “economic survival” or “livelihood protection” norm inherent in Eighth Amendment jurisprudence.
An emerging academic literature has concluded that the practice of assessing criminal financial penalties without regard to offenders’ personal economic circumstances is both widespread and extremely harmful. Indeed, the burden of unpayable criminal justice debt can effectively destroy offenders’ capacity to reintegrate into society. I submit that such practices are not just bad policy, but may be properly seen as constitutionally infirm: a constitutional fines and forfeitures jurisprudence that reflected the original meaning of the Excessive Fines Clause would be significantly more sensitive to the plight of the indigent criminal defendant, and more conducive to the rehabilitative goals of the criminal law.
Chacon on Overcriminalizing Immigration
Jennifer M. Chacón (University of California, Irvine School of Law) has posted Overcriminalizing Immigration (Journal of Criminal Law and Criminology, Vol. 102, No. 3, 2012) on SSRN. Here is the abstract:
This Article argues that contemporary immigration policy is a site of overcriminalization. Part I discusses the apparent decline of federal exclusivity in immigration regulation and the rise of state and local legislation — particularly state criminal laws — aimed at controlling migration. Part II discusses the significant expansion of federal immigration enforcement efforts and, in particular, the recent dramatic rise in the use of federal criminal sanctions as a means of enforcing immigration laws. Part III discusses the rise of state and local participation in the enforcement of federal immigration laws and the consequent increase in the policing of low-level state criminal offenses in certain communities. The final section of the paper explains why the resulting policies constitute overcriminalization. Overcriminalization occurs when a legislature defines too many different activities as “crime,” when the system excessively punishes offenses, or both. In a system characterized by overcriminalization, law enforcement operates with an undesirable degree of unchecked discretion, procedural protections are undercut, and scarce resources are misallocated in crime control efforts. All of the major problems associated with overcriminalization appear in contemporary immigration enforcement. The article therefore urges a move away from the criminalization of labor migration.
February 11, 2013
Manta on the High Cost of Low Sanctions
Irina D. Manta (Hofstra University - Maurice A. Deane School of Law) has posted The High Cost of Low Sanctions on SSRN. Here is the abstract:
It appears better for unjust or inefficient laws to impose only low sanctions in case of breach. Yet, this intuition is likely wrong. My essay will argue that low sanctions may have a pernicious effect on the democratic process and on legislative rule-making because, as both public choice theory and historical precedent suggest, the accompanying laws are more likely to perpetuate themselves and become part of the unquestioned background fabric of society.I will focus on intellectual property law, and in particular copyright, to examine the progression of sub-optimal laws through widespread low sanctions that may have mostly escaped the public eye until sanctions grew to more significant size. In intellectual property, as elsewhere, low-level sanctions coupled with problematic laws are less likely to attract the attention of the media and lead to political action than their high-sanction counterparts. This essay will make several claims about low sanctions. The first is that low sanctions increase the likelihood that a problematic law will be passed. Second, low sanctions decrease the odds that such a law will be repealed. Third, unjust laws with low sanctions bear the risk that the sanctions will (sometimes gradually) rise, thus reducing any upsides that accompany the initial low level of the sanctions. By the time this occurs, it may be irreversible due to the likely enhanced difficulties of abolishing laws over preventing their passage in the first place. The media plays a key role in these processes when it focuses on the identifiable victims of high sanctions and fails to pay attention to the statistical victims of low sanctions. Last, whether sanctions for single offenses are high or low, prosecutors can accumulate counts such as to significantly intimidate alleged offenders with sometimes tragic consequences, as recently seen in the stories about coder and Internet activist’s Aaron Swartz’s prosecution and suicide. Examples from intellectual property and other legal areas should encourage us to take a closer look at existing or proposed legislation that appears 'harmless enough' at first glance due to its low sanctions or lack of enforcement.
Schauer & Spellman on Overvaluation of Experts
Frederick Schauer (pictured) and Barbara A. Spellman (University of Virginia School of Law and University of Virginia School of Law) have posted Is Expert Evidence Really Different? on SSRN. Here is the abstract:
Daubert v. Merrell Dow Pharmaceuticals, which along with its successor cases has imposed demanding standards of reliability on the admission of scientific and other expert evidence, has transformed much of American evidence law. The Daubert revolution has been subject to strong endorsement and equally strong criticism, but few critics, and none since Daubert, have asked why expert evidence is treated differently in the first place. The common assumption, going back over a century, is that expert evidence is treated differently because of the risk that juries (and judges), not themselves possessed of the relevant expertise, will systematically overvalue such evidence. The overvaluation may be based on ignorance, or on novices being overly impressed by expert credentials and trappings, but the belief in overvaluation as the primary foundation for the distinct treatment of expert evidence persists, generating not only Daubert but also a long history of treating expert evidence specially. It turns out, however, that the longstanding assumption of overvaluation is unsupported by the research. Several decades of research, mostly by psychologists, shows the common assumptions of jury overvaluation of expert evidence to be large unfounded. Indeed, modern research shows that it is eyewitness and other so-called direct evidence that is overvalued.By relying on the erroneous assumption of jury overvaluation of expert testimony and the equally erroneous assumption of non-overvaluation of direct testimony, the law of evidence has drawn a distinction that rests on a false empirical basis. Moreover, insofar as the distinction between expert and other evidence also rests on a distinction between the facts that lay witnesses offer and the inferences (opinions) that come from experts, this distinction is undercut not only by the modern treatment of lay opinion, but by a great deal of philosophical work on the expert-dependence of the judgments that ordinary people make in all aspects of their lives.