Friday, January 31, 2014
Michael Pinard (University of Maryland Francis King Carey School of Law) has posted Criminal Records, Race and Redemption (New York University Journal of Legislation and Public Policy, Vol. 16, No. 4, 2013, p. 963) on SSRN. Here is the abstract:
Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.
Should the jury have acquitted George Zimmerman of murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding “no.” Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy. According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest sanctions available. Equality is thus achieved by ratcheting up punishment. There is a similar bias in assessment of the death penalty, where those who kill racial minorities are treated more leniently than those who kill whites and are often spared execution. But the typical liberal response here is to call for abolition rather than more frequent executions. Equality is thus achieved by ratcheting down punishment.
Thursday, January 30, 2014
Eric Schab , Paolo Annino and Ashley Marie Nellis (Florida State University - College of Law , Florida State University - College of Law and The Sentencing Project) has posted Miller Resentencing Project Report on SSRN. Here is the abstract:
In June of 2012, the United States Supreme Court issued two cases, Miller v. Alabama and Jackson v. Hobbs, which prohibited the imposition of mandatory sentences of life without parole on juvenile offenders convicted of homicide offenses. As part of its holding, the Court stressed that life without parole sentences are to be reserved for "the rare juvenile offender whose crime reflects irreparable corruption." This language leaves open the question, just how rare is it for a Miller inmate’s crime to be a reflection of irreparable corruption?
This report is focused exclusively on Miller inmates, which we have defined as juvenile offenders serving mandatory sentences of life without parole for homicide offenses, in the State of Florida.
Michael H. Graham (University of Miami - School of Law) has posted Confrontation Clause: Williams Creates 'Significant Confusion' Prompting California Avoidance; Bryant's Dual Perspective Primary Purpose Approach; 2013 Application Summary (Criminal Law Bulletin, Vol. 49, No. 6, p.1533 (2013)) on SSRN. Here is the abstract:
Confrontation clause analysis took still one more step backward with the United States Supreme Court decision in Williams v. Illinois — U.S. — 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). In Williams, a four justice plurality, with really only three of the four justices aligning principally with an “accusing a targeted individual of engaging in criminal activity” definition of testimonial, combined with a concurrence by Justice Thomas described by Justice Kagan dissenting as adopted by no other member of the Member of the Court. Justice Kagan also said of Justice Thomas’s concurrence that it is “ — to be frank — who knows what” “formality and solemnity” approach. Combined the Williams opinions “have left significant confusion in their wake”. Id. at 2277 (emphasis added).
From The New York Times:
Prosecutors explained their decision in an eight-page document filed in federal court in Boston.
. . .
Massachusetts abolished the death penalty at the state level in 1984 and has not executed a prisoner since 1947. Since the federal government reinstated its death penalty in 1988, it has executed just three people, including [Timothy] McVeigh, the Oklahoma City bomber.
David A. Harris (University of Pittsburgh - School of Law) has posted Across the Hudson: Taking the Stop and Frisk Debate Beyond New York City (N.Y.U. Journal of Legislation and Public Policy, 2014, Forthcoming) on SSRN. Here is the abstract:
This article presents the results of a survey conducted by the author of 56 police departments across the country concerning the practice of data collection on stop and frisk practices of those police departments. These results are discussed against the backdrop of the debate on stop and frisk, examined in this article through a review of the legal basis for the practice and its use by police departments. The article then argues that greater data collection efforts in places other than New York City, where such efforts have been more robust than elsewhere, could broaden and deepen the debate on stop and frisk and better inform the larger debates over the impact of race on criminal justice, particularly with respect to the question of whether stop and frisk necessarily has a disparate impact on racial and ethnic minorities, as New York City data indicates.
Wednesday, January 29, 2014
Melissa Hamilton (University of Houston Law Center) has posted Prison-By-Default: Challenging the Federal Sentencing Policy's Presumption of Incarceration (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States has earned its nickname as a mass incarceration nation. The federal criminal justice system has contributed to this status with its own increasing rate of incarceration. The federal system now ranks as the largest population of sentenced prisoners in the country; it is even larger than the national prisoner populations among all European countries, save one. This is a recent phenomenon. This Article ties the increase in the federal incarceration rate to policies adopted by the United States Sentencing Commission since its inception that presume imprisonment as the default sentence. Since the Sentencing Commission’s creation in 1984, the proportion of federal sentences requiring incarceration increased from under fifty percent to over ninety percent. This Article provides evidence that the prison-by-default position by the Sentencing Commission is contrary to Congressional intent when the legislature passed sentencing reform laws in the 1980s, has contributed to a federal prison system that is operating over capacity, and wastes resources. The increasing rate of imprisonment at the federal level conflicts with the downward trend in national crime rates and with the states’ sentencing experiences in which probation sentences continue to be preferred. Potential alternative explanations for the significant trend toward the affirmative use of imprisonment in federal sentences are outlined, yet the available statistical evidence generally rules them out. Finally, suggestions on changes to the sentencing guidelines and to judicial sentencing practices are offered.
Manuel A. Utset (Florida State University College of Law) has posted Inchoate Crimes Revisited: A Behavioral Economics Perspective (University of Richmond Law Review, Vol. 47, p. 1205, 2013) on SSRN. Here is the abstract:
This article develops a behavioral theory of inchoate offenses - criminal attempt, conspiracy, and solicitation. The theory helps explain why inchoate crimes exist and why they are punished less severely than the underlying offense. The article identifies an important aspect of criminal misconduct (including inchoate crimes) that has been overlooked by commentators: in making a cost-benefit analysis, an offender will take into account not just the net benefits from the crime, but also the value of the “real option” embedded in the decision. The real option derives from three characteristics of criminal misconduct. First, offenders make irreversible (or costly to reverse) decisions when they plan a crime - their investment in time, effort, and out of pocket expenses - and when they execute it - once criminal liability is triggered, it cannot be undone. Second, offenders face uncertainty regarding the returns from a crime, the likelihood of detection, and magnitude of the sanctions. Third, in most instances, offenders have flexibility regarding the timing of a crime. All other things being equal, the greater the uncertainty regarding a crime, the greater the value of the option to delay.
Doug Berman has this post at Sentencing Law & Policy on a dispute about crime rates in Denver. In part, his excerpt of the Denver Post article:
Denver's top two law enforcement officials disagree on the answer to what ought to be a simple question: Is violent crime up or down?
Police Chief Robert White and District Attorney Mitch Morrissey aren't quibbling over minor details; they have a nearly 18 percentage-point difference in opinion about the way crime is trending. Experts say their disagreement underscores the complexities of measuring and interpreting crime trends in a major city.
Rakhi Ruparelia (University of Ottawa - Common Law Section) has posted All that Glitters is Not Gold: The False Promise of Victim Impact Statements (in Elizabeth Sheehy, ed. Sexual Assault in Canada: Law, Legal Practice and Women’s Activism. Ottawa: University of Ottawa Press, 2012, pp 665-700) on SSRN. Here is the abstract:
This chapter interrogates whether or not the criminal justice system holds potential for fairly representing women’s experiences of harm while affirming their dignity, equality, and autonomy. Specifically, Rakhi Ruparelia questions the opportunity to present a "victim impact statement" (VIS) to the judge who is sentencing a sex offender. While not opposing a criminalization strategy, as do Alison Symington and Julie Desrosiers in the specific contexts discussed in their respective chapters, Rakhi expresses similar skepticism that the law permitting the filing of a VIS is actually premised on deeply conservative ideologies regarding who are "real victims" and what their proper role in the criminal justice system is. Like the Sexual Assault Evidence Kit originally touted as a positive development for women, the VIS is more likely to be used to discredit women’s claims than to validate them when it comes to sexual assault.
Tuesday, January 28, 2014
Stephen E. Henderson (University of Oklahoma College of Law) has posted Our Records Panopticon and the American Bar Association Standards for Criminal Justice (Oklahoma Law Review, Forthcoming) on SSRN. Here is the abstract:
"Secrets are lies. Sharing is caring. Privacy is theft." So concludes the main character in Dave Egger’s novel The Circle, in which a single company that unites Google, Facebook, and Twitter – and on steroids – has the ambition not only to know, but also to share, all of the world's information. It is telling that a current dystopian novel features not the government in the first instance, but instead a private third party that, through no act of overt coercion, knows so much about us. This is indeed the greatest risk to privacy in our day, both the unprecedented and massive collection and retention by third parties of private information, and then secondarily the access to that information by others including law enforcement. For the past seven years, from 2006 to 2013, I served as the Reporter in drafting the black letter and commentary to what is now the twenty-fifth volume of the American Bar Association Standards for Criminal Justice, this volume relating to law enforcement access to third party records. Considering the talent that served on the Task Force and Standards Committee, and the significant vetting of the ABA process, it would be surprising if the Standards did not get many things right, and hopefully that is evident in the Standards themselves. But inevitably any first-of-its-kind project of this magnitude will be imperfect and incomplete, and continuing to move the conversation forward was my purpose in organizing this Symposium. The articles in this volume are a testament to its success, and here I explain the drafting of the Standards, including a few substantive highlights, and place the Standards in their unique historic context.
Sarah French Russell (Quinnipiac University School of Law) has posted Review for Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment (Indiana Law Journal, Vol. 89, No. 1, 2014) on SSRN. Here is the abstract:
State parole boards have historically operated free from constitutional constraints when making decisions about whether to release prisoners. Recent Supreme Court decisions subject states to a new constitutional requirement to provide a “meaningful opportunity to obtain release” for at least some categories of juvenile offenders. Using original data collected through a survey, this Article provides the first comprehensive description of existing parole board release procedures nationwide and explores whether these practices comply with the Court's Eighth Amendment mandate.
Michael L. Perlin and Naomi Weinstein (New York Law School and New York State Unified Court System - Mental Hygiene Legal Service) have posted 'Friend to the Martyr, a Friend to the Woman of Shame': Thinking About the Law, Shame and Humiliation on SSRN. Here is the abstract:
This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the basis of disability [as] a violation of the inherent dignity and worth of the human person..."
Humiliation and shaming, we believe, contravene basic fundamental human rights and raise important constitutional questions implicating the due process and equal protection clauses. Humiliation and shaming practices include “scarlet letter”-like criminal sanctions, police stop-and-frisk practices, the treatment of persons with mental disabilities in the justice system, and the use of sex offender registries.
Monday, January 27, 2014
Lorana Bartels and Patricia L. Easteal (University of Canberra - School of Law and Justice and University of Canberra - Faculty of law) have posted Mothers Who Kill: The Forensic Use and Judicial Reception of Evidence of Postnatal Depression and Other Psychiatric Disorders in Australian Filicide Cases ((2013) Melbourne University Law Review 37: 297-341) on SSRN. Here is the abstract:
This article examines Australian legal responses to filicide in circumstances where mothers have killed their young children. We consider the potential legal defences that may be raised where postnatal depression (‘PND’) and other psychiatric disorders are present in cases of filicide: insanity/mental impairment, diminished responsibility/substantial impairment by abnormality of mind, and infanticide. We then examine 28 cases of filicide, including both cases where PND evidence was adduced, and cases where no PND evidence was adduced but other mental health issues were considered. We look at the forensic use of and judicial responses to PND and other evidence of mental illness: how do medical practitioners and judicial officers present impairment of the defendant’s mental capacity? We also speculate on differences in sentencing outcomes and consider the policy and research implications of our findings.
Hannah Sybil Laqueur , Stephen Rushin and Jonathan Steven Simon (University of California, Berkeley - School of Law , University of Illinois College of Law and University of California, Berkeley, Boalt Hall, School of Law) have posted Wrongful Convictions, Policing, and the 'Wars on Crime and Drugs' (Examining Wrongful Convictions: Stepping Back and Moving Forward, 2014, Forthcoming) on SSRN. Here is the abstract:
Wrongful conviction ought to be an aberration for any system of criminal punishment tied to legal adjudication; certainly in a system such as we have in the United States, premised on the constitutional bedrock of requiring a jury to find guilt beyond a reasonable doubt (Sandstrom v. Montana). We suggest, however, that during the so-called wars on crime and drugs, wrongful convictions are no longer mere aberrations, any more than is holding to the end of hostilities captured members of an enemy army. Specifically, we hypothesize that these two "fronts" in two parallel national "wars" have transformed police practices in such a way that both homicide and drug crimes have become likely centers of concentration of some form of wrongful conviction.
Jonathan Rapping (Atlanta's John Marshall Law School) has posted Implicitly Unjust: How Defenders Can Affect Systemic Racist Assumptions on SSRN. Here is the abstract:
This paper discusses the power of implicit racial bias (IRB) in driving unjust, racially disparate outcomes in our criminal justice system and examines the role of the defender committed to racial equality. The paper examines how IRB influences the decision making of every player in the system, including the defense lawyer, and offers strategies for how defense counsel can address IRB while simultaneously living up to his or her obligations to each client. The paper suggests a three prong approach for the defender: 1) working to overcome his or her own biases, 2) developing strategies to educate others in the system about their biases at every stage of the process, and 3) finding ways to sustain him/herself in the face of intolerable injustice in order to help build a more just system.
Justice Scalia wrote the opinion of the Court in Burrage v. United States, concluding that the heroin use must be the but-for cause of death or serious bodily injury, unless the use of the drug is an independently sufficient cause. Justice Ginsburg, joined by Justice Sotomayor, concurred in the judgment.
Sunday, January 26, 2014
From Kent Scheidegger at Crime & Consequences, commenting on and excerpting an article from USA Today. His comments:
Opponents of the death penalty never tire of telling us how other countries have rejected it. That rejection, though, is usually by a fiat from above, not by the people. Nowhere is the disconnect between the government position and popular opinion greater than south of our border.