Monday, March 31, 2014
Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment (Indiana Law Journal, Forthcoming) on SSRN. From the abstract:
The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand. Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework. Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency. Both the scientific and policy data suggest possible avenues for effective reform.
FourthAmendment.com links to this piece at the Washington Post, discussing the ease with which police can stop cars that they suspect might be carrying drugs. Among the most interesting aspects is the discussion of cases in which cops in moving cars with closed windows claim to smell pot in other moving cars with closed windows. In part:
In 2012, a stop of two women in Irving, Tex., made national news. The women were stopped for allegedly tossing cigarette butts out a car window. But because the officer claimed to have smelled marijuana coming from the car, the women were subjected to a thorough search of their car, and then a humiliating roadside cavity search. There was no pot.
In Virginia, a judge recently upheld the stop and search of a car in which an officer claimed he could smell pot coming from a car he was following, even though the windows in the suspect’s car and the police car were rolled up, and even though a subsequent search turned up no pot. Last October, another judge in the same statethrew out a search in which an officer made a similar claim. There have been several other recent incidents in which cops have made questionable claims about smelling the waft of pot. See here, here, here, and here.)
Doug Berman has this post at Sentencing Law & Policy. In part:
Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.
Beth Cohen and Pat Newcombe (Western New England University School of Law and Western New England University School of Law) have posted The Hanging Judge by Michael A. Ponsor -- A Book Review: Capital Punishment -- Is the Death Penalty Worth the Price? (Cleveland State Law Review, Vol. 55, 2014) on SSRN. Here is the abstract:
The Authors review the novel, The Hanging Judge, written by Judge Michael A. Ponsor, a U.S. District Court Judge in Massachusetts.
In 2000-2001, Judge Ponsor presided over the first death penalty case in Massachusetts in nearly 50 years, United States v. Gilbert. Gilbert’s trial marked only the third time that a federal capital case had gone to trial in a state without the death penalty. Ponsor felt a particularly heavy responsibility to ensure that both the government and the defense got a fair trial. In fact, in 2001, after the conclusion of the trial, Ponsor did something somewhat unusual for a judge; he wrote a lengthy editorial about the death penalty. He wrote: “The simple question - not for me as a judge, but for all of us as citizens - is: Is the penalty worth the price?”
Jonathan S. Masur and Lisa Larrimore Ouellette (University of Chicago - Law School and Yale Law School - Information Society Project) has posted Deference Mistakes (University of Chicago Law Review, Vol. 82 (2015 Forthcoming)) on SSRN. Here is the abstract:
This Article begins with what should seem a relatively straightforward proposition: it is impossible to fully understand the holding of a case without understanding its “deference regime” — the standard of review or burden of proof that governs the case. If a court holds in the context of a habeas petition that a constitutional right was not “clearly established,” that does not mean that the court would hold that the right does not exist were it writing on a blank slate. If a court refuses to invalidate a granted patent, which is presumed valid and can only be held invalid upon a showing of clear and convincing evidence, that does not mean that the court believes the patent should have been granted in the first place. And if an appellate court holds that a trial court’s ruling was not “plain error,” that does not mean that the appellate court believes the trial court necessarily reached the correct result or would have affirmed the ruling if the review were more searching.
Nekima Levy-Pounds (University of St. Thomas School of Law) has posted Going Up in Smoke: The Impacts of the Drug War on Young Black Men (6 Albany Government Law Review 560 (2014)) on SSRN. Here is the abstract:
This paper seeks to shed light on the impacts of drug war policies and marijuana suppression efforts on African American men, and to explore recent changes within the law that may affect this segment of the population. Although discourse regarding the war on drugs is becoming more prevalent, it is important for policy makers, law enforcement, and scholars to recognize the unique circumstances that African American men face in light of the historical discrimination and oppression they have experienced, and to craft narrowly tailored solutions to address the myriad issues they encounter. Unless deliberate action is taken to address these concerns, these men will continue to be systematically excluded from mainstream society, and are at grave risk of cycling in-and-out of the revolving doors of the criminal justice system.
Sunday, March 30, 2014
|1||601||Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing
Mark W. Bennett and Ira P. Robbins
U.S. District Court (Northern District of Iowa) and American University - Washington College of Law
Date posted to database: 13 Mar 2014
|2||353||The Due Process Exclusionary Rule
Richard M. Re
Yale Law School
Date posted to database: 28 Feb 2014
|3||236||Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction
DePaul University - College of Law
Date posted to database: 3 Mar 2014 [4th last week]
|4||235||Will There Be a Neurolaw Revolution?
Adam J. Kolber
Brooklyn Law School
Date posted to database: 19 Feb 2014 [3rd last week]
|5||212||Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism
Robert J. Smith, Justin D. Levinsonand Zoe Robinson
University of North Carolina School of Law, University of Hawaii at Manoa - William S. Richardson School of Law and DePaul University College of Law
Date posted to database: 27 Jan 2014
|6||206||Intellectual Property and the Presumption of Innocence
Irina D. Manta
Hofstra University - Maurice A. Deane School of Law
Date posted to database: 5 Feb 2014
|7||201||The Illusory Eighth Amendment
John F. Stinneford
University of Florida Levin College of Law
Date posted to database: 7 Feb 2014
|8||171||Willful Blindness, Plausible Deniability and Tippee Liability: SAC, Steven Cohen, and the Court's Opinion in Dirks
Joan MacLeod Heminway
University of Tennessee College of Law
Date posted to database: 9 Feb 2014 [9th last week]
|9||166||Putting the Trial Penalty on Trial
University of Pennsylvania Law School
Date posted to database: 4 Feb 2014 [10thlast week\
|10||223||Law and Neuroscience
Owen D. Jones, Jeffrey D. Schall andFrancis X. Shen
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School
Date posted to database: 19 Mar 2014 [8th last week]
The motion, which seeks a lot of information about Tamerlan and the family's history, is an attempt to get the Government to turn over documents that could be used as mitigation evidence in the death penalty phase to show Dzhokhar fell under the spell of his over-powering brother.
From EvidenceProf Blog:
A couple of years ago, New Hampshire became, as far as I know, the first state that allows jurors to be informed of the right of jury nullification: the power of jurors to render a verdict inconsistent with the evidence (e.g., finding a defendant "not guilty" of possessing a small amount of marijuana despite the evidence proving his guilt beyond a reasonable doubt). Now, it looks like Alaska might follow suit.
In most states, if a suspect caused the death of a person while committing a dangerous felony, that person can be charged with a crime called "felony murder." In states like Colorado, these dangerous felonies include arson, robbery, burglary, kidnapping, sexual assault, or fleeing from police.
Even if a fatal DUI is not eligible for a felony murder charge, it could potentially qualify as conduct that is extremely indifferent to human life. Drivers deemed to have acted so recklessly and with indifference to the risk to human life can also be charged with murder.
Saturday, March 29, 2014
Friday, March 28, 2014
This essay discusses the advantages of using movies about white collar crime in white collar and property crime courses. Films (e.g. Quiz Show) offer deeper insights into the causes and effects of such crimes than the summary of facts found in cases. Movies (e.g. Catch Me if You Can) illustrate that motives are often more complex than the greed narrative that is commonly attributed to white collar defendants. Others (e.g. Margin Call) show the inherent risk of unlawful conduct in large, profit-driven firms. The essay offers a plan for using movies in white collar classes and seminars and provides a list of appropriate movies.
A defining feature of criminal federalism is extreme disparities in case outcomes across state and federal forums. All else being equal, prosecution in the federal forum entails a significantly higher likelihood of conviction, and a higher penalty. But why do such disparities exist? Conventional explanations point to differences among sovereigns’ legal rules, resources and dockets. These understandings, while valid, neglect to account for a less tangible source of federal criminal power: legitimacy. “Legitimacy” refers to the concept, refined through decades of empirical research, that citizens comply with the law, and defer to and cooperate with legal authority, when they perceive both the laws and the authorities to be fair. A legitimacy-based exploration of the federal criminal justice system significantly enriches our understanding of the sources of federal criminal power. Distilling those sources, moreover, reveals surprising and counterintuitive implications: to emulate the sources of federal legitimacy in local systems, we need more localized criminal justice.
Thursday, March 27, 2014
Jacqueline McMurtrie (University of Washington - School of Law) has posted Introduction: Third Annual Public Defense Conference (Seattle Journal of Social Justice, Vol. 11, No. 3, pp. 853-66 (2013)) on SSRN. Here is the abstract:
The Third Annual Conference on Public Defense, sponsored by Seattle University School of Law's Defender Initiative, was held in spring 2013 — the 50th anniversary of Gideon v. Wainwright. And thus many of the papers in this issue, most drawn from the conference, address what has been accomplished in that half century.
The need for change resounds throughout the series of SJSJGideon's anniversary. The authors also express hope that our justice system can achieve Gideon's promise of fundamental fairness for indigent defendants. These excellent additions to the scholarly discourse are a significant contribution to ensuring what Gideon's Trumpet heralded: In the future, the name 'Gideon' will stand for the great principle that the poor are entitled to the same type of justice as those who are able to afford counsel.
Miriam Gohara (NAACP Legal Defense and Educational Fund) has posted A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques (33 Fordham Urb. L.J. 791) on SSRN. Here is the abstract:
Exoneration cases and psychological studies have shown that deceptive interrogation tactics strongly encourage innocent people to confess to crimes they did not commit. Studies have shown that lying to suspects about the presence of objective incriminating evidence, such as eyewitness accounts, fingerprints, or other forensic evidence, dramatically changes the cost-benefit analysis even an innocent suspect will undertake before making an incriminating statement. It makes the cost seem much less severe and the benefit (leniency, being released from interrogation) seem much more attractive. What it does not do is enhance the reliability of confessions. Defense lawyers should challenge confessions obtained using deceptive interrogation tactics where no other objective evidence incriminates their clients. Courts and legislators should adopt rules curbing the use of deceptive interrogation tactics. In a criminal justice system whose goal is divining the truth, not conviction at all costs, it is bad public policy to allow law enforcement officers to lie to suspects during interrogations. In light of empirical data demonstrating that deceptive interrogation tactics are a major contributing factor to false confessions, it is time to reconsider their legality and bring police practices in line with the rest of the justice system’s principled reliance on truth.
Police in The Aloha State signaled this week that they’re willing to drop their objections to nixing a bizarre exemption to state law that allows officers to have sex with prostitutes in the course of investigations. The law was put in place in the 1970s to protect police from prosecution after undercover prostitution stings, but concerns that police may be abusing the exemption and raping prostitutes had advocates lobbying for a change. After a heated debate over the necessity of the law made national news late last week, supporters of the exemption agreed to throw in the towel on Tuesday, the Associated Press reports.
Owen D. Jones , Jeffrey D. Schall and Francis X. Shen (Vanderbilt University - Law School & Dept. of Biological Sciences , Vanderbilt University - Department of Psychology and University of Minnesota Law School) have posted Law and Neuroscience (Aspen 2014, Forthcoming) on SSRN. Here is the abstract:
This provides the Summary Table of Contents and Chapter 1 of our coursebook “Law and Neuroscience” (forthcoming April 2014, from Aspen Publishing). Designed for use in both law schools and beyond, the book provides user-friendly introductions, as well as detailed explorations, of the many current and emerging issues at the intersection of law and neuroscience.
One part of the book lays general foundations by exploring the relationships between law and science generally, and by comparing the views from law and from neuroscience regarding behavior and responsibility. A later part explains the basics of brain structure and function, the methods for investigating each, and both the promise and the limitations of modern neuroscience technologies.
Wednesday, March 26, 2014
Daniel Montolio and Simón Planells (University of Barcelona - Faculty of Economic Science and Business Studies and University of Barcelona) have posted When Police Patrols Matter. The Effect of Police Proximity on Citizens’ Crime Risk Perception on SSRN. Here is the abstract:
Crime risk perception is known to be an important determinant of individual well-being. It is therefore crucial that we understand the factors affecting this perception so that governments can identify the (public) policies that might reduce it. Among such policies, public resources devoted to policing emerge as a key instrument not only for tackling criminal activity but also for impacting on citizens’ crime risk perception. In this framework, the aim of this study is to analyze both the individual and neighbourhood determinants of citizens’ crime risk perception in the City of Barcelona (Spain) focusing on the effect of police proximity and taking into account the spatial aspects of neighbourhood characteristics. After controlling for the possible problems of the endogeneity of police forces and crime risk perception and the potential sorting of individuals across neighbourhoods, the results indicate that crime risk perception is reduced when non-victims exogenously interact with police forces. Moreover, neighbourhood variables, such as proxies of social capital and the level of incivilities, together with individual characteristics have an impact on citizens’ crime risk perception.
Gregory Scott Parks , Shayne E. Jones , Rashawn Ray , Matthew W. Hughey and Jonathan M Cox (Wake Forest University School of Law , University of South Florida , University of Maryland , University of Connecticut, Department of Sociology and University of Maryland) have posted '[A] Man and a Brother': Intersectionality, Violent Hazing, and the Law on SSRN. Here is the abstract:
In this article, my coauthors and I analyze hazing as a legal issue both within the civil and criminal context. We then posit that hazing is not the same across collegiate, Greek-letter organizations. Specifically, we contend that the intersection of race and gender should reveal differences in how hazing manifests itself. In an archival study of fraternity/sorority hazing incidents from 1980-2009, we find that white fraternities/sororities have greater issues with sexual hazing, alcohol-related hazing, prank hazing. White fraternities have greater issues with mental hazing and physical hazing involving calisthenics. Black fraternities/sororities have greater issues with violent hazing. In a second study, a survey of almost 1,400 black fraternity/sorority members, we find that hazing is more violent in black fraternities. Narrow conceptions of what constitutes “authentic” black masculinity, even among highly educated African Americans, may explain why black fraternity hazing is so violent. In two more studies, we find that some black fraternity chapters employ monikers — e.g., Bloody Beta, Deadly Delta, Killer Kappa — to describe their chapters. Such monikers may be consequential in litigation, as they may be admissible under the Federal Rules of Evidence, at least in federal court, under certain circumstances.