Friday, December 12, 2014
Prosecutors in a murder case against Aaron Hernandez won't be allowed to tell a jury about two other killings with which the ex-New England Patriot is charged or the final text messages the victim sent to his sister, a judge ruled Friday.
. . .
Prosecutors have said Hernandez may have showed Lloyd the spot where the double shooting allegedly took place, and suggested that was a possible motive for killing Lloyd.
. . .
Garsh also said Friday she would not admit the final text messages sent by Lloyd to his sister, including one sent just minutes before he was shot to death at an industrial park near Hernandez's North Attleborough home.
Prosecutors say Lloyd sent the messages while in a car with Hernandez and suggested they showed he had become fearful. One said, "U saw who I'm with" and another indicated the person was "NFL," referring to Hernandez, adding "just so u know."
"78-year-old Iowa legislator is prosecuted for having sex with his wife, who was suffering from Alzheimer’s"
Eugene Volokh has this post at The Volokh Conspiracy. In part:
The question of how to deal with sex by those who aren’t mentally competent is quite complex; it also arises, of course, with regard to those who are mentally disabled all their lives (see, e.g., this post 10 years ago about an interesting Ninth Circuit decision on this and this follow-up). But I think, in cases like the Rayhons case, the key is to consider the nature of the parties’ past relationship, something Iowa law does to some extent but not enough.
. . .
At the same time, it seems to me equally obvious that we must consider the parties’ past and unrevoked consent as relevant in some situations where there’s neither a “no” or a “yes.” If A starts caressing B’s genitals while B is sleeping, that’s generally a serious crime. But if A and B are sexually involved, it seems to me it shouldn’t be a crime at all — especially if this has happened before and both parties were quite happy about it — unless B wakes up and says no, or has indicated lack of consent to such behavior in the past.
Scott E. Sundby (University of Miami School of Law) has posted The True Legacy of Atkins and Roper: The Unreliability Principle, Mentally Ill Defendants, and the Death Penalty's Unraveling (William & Mary Bill of Rights, Vol. 23, (2014 Forthcoming)) on SSRN. Here is the abstract:
In striking down the death penalty for intellectually disabled and juvenile defendants, Atkins v. Virginia and Roper v. Simmons have been understandably heralded as important holdings under the Court's Eighth Amendment jurisprudence that has found the death penalty "disproportional" for certain types of defendants and crimes. This Article argues, however, that the cases have a far more revolutionary reach than their conventional understanding. In both cases the Court went one step beyond its usual two-step analysis of assessing whether imposing the death penalty violated "evolving standards of decency." This extra step looked at why even though intellectual disability and youth were powerful mitigators, juries were not able to reliably use them in their decision making. The Court thus articulated expressly for the first time what this Article calls the "unreliability principle:" if too great a risk exists that constitutionally protected mitigation cannot be reliably assessed, the unreliability means that the death penalty cannot be constitutionally imposed. In recognizing the unreliability principle, the Court has called into serious question the death penalty for other offenders to whom the principle applies, such as mentally ill defendants. And, unlike with the "evolving standards" analysis, the unreliability principle does not depend on whether a national consensus exists against the practice.
Ninety-seven percent of federal defendants plead guilty, and they rely on prosecutors for much of the information about the government’s case on which the decision to plead is based. Although federal prosecutors routinely turn over most necessary discovery to the defense, the law does not require them to turn over any discovery before the guilty plea. This can lead to innocent defendants pleading guilty and to guilty defendants pleading guilty without information that could have affected the agreed-upon sentence.
This article argues that the lack of a judicially enforceable pre-plea discovery regime flouts structural protections that due process is supposed to provide.
Thursday, December 11, 2014
Criticism of California opinion admitting statement notwithstanding officer's promise that it would not be used
Shaun Martin at California Appellate Report says:
The Court of Appeal affirms the conviction notwithstanding the promises on the basis of wiggle room in the officer's representations to the kid. So, yeah, the officer repeatedly promised that whatever was said would stay "between us right here". But he also said that he would eventually "have to write everything down." A caveat that I'm certain the 16-year old understood meant that the "promise" had absolutely no significance and that any admission would be played out in front of his gang member friends in a public trial. Because 16-year olds are incredibly, incredibly smart. Especially 16-year old gang members.
The Supreme Court allows officers to deliberately lie to suspects. So that's the law. But cases like this demonstrate that there's nonetheless a downside -- both public relations and otherwise -- to this permitted (and routine) practice.
There are two kinds of culpability at work in the criminal law, corresponding to two different senses of mens rea or guilty mind. An older tradition conceives of mens rea broadly as signifying blameworthiness. However, mens rea often has a narrower sense, signifying the mental elements of an offense, such as whether the agent intended harm, foresaw harm, recklessly caused harm, or negligently caused harm. On this elemental view, mens rea is the mental dimension of the offense, complementing the objective dimension contributed by the specification of actus reus.
Whereas the narrower sense of culpability associated with elemental mens rea is well understood, the broader sense of culpability as blameworthiness and especially the relationship between the two kinds of culpability are not always clearly articulated. In this essay I offer an account of these two kinds of culpability and explain their relationship to each other.
Orin Kerr has this post at The Volokh Conspiracy. In part:
I don’t know if the issue is important enough to grab the SG’s attention in light of Riley, but it seems like there’s a split on the broad issue of the timing of searches incident to arrest.
Second, the extension of Riley to the automobile exception is an important doctrinal development.
Third, the Ninth Circuit’s approach to the good-faith exception strikes me as odd. First, the Ninth Circuit’s standard seems to be a combination of Herring and Davis, without ever citing Davis.
Elena Kantorowicz (Erasmus University Rotterdam) has posted Cognitive Biases and Procedural Rules: Enhancing the Use of Alternative Sanctions on SSRN. Here is the abstract:
The practice of short-term imprisonment has been long criticised due to its criminogenic effect and costs. To minimise its use, many countries introduced alternative sanctions such as community service or home confinement with electronic monitoring. Unfortunately, in practice those sanctions are often imposed on non-prison bound offenders, a phenomenon termed “the net-widening problem”. Consequently, instead of reducing the prison population, the alternative sanctions substitute lighter punishments such as fine or conditional imprisonment. The discretion power whether to impose a prison sentence or its alternatives lies in the hands of the courts. Therefore, the way to enhance the use of alternative sanctions as a substitute to short-term imprisonment is to change the behaviour of judges. This paper adopts the unique approach of behavioural law and economics in order to discuss procedural rules that have the potential to achieve the above-mentioned goal. Each of the analysed procedural rules explains the cognitive biases, which judges are subject to when choosing between a prison sentence and an alternative punishment. Following that, this paper analyses how the suggested procedural rules overcome or use those biases in order to promote the use of alternative sanctions.
Elyse Methven (University of Technology Sydney, Faculty of Law) has posted 'A Very Expensive Lesson': Counting the Costs of Penalty Notices for Anti-Social Behaviour ((2014) 26(2) Current Issues in Criminal Justice 249) on SSRN. Here is the abstract:
In March 2014, the New South Wales Government dramatically increased penalty notice amounts for a number of summary offences. The fine increases were part of the Government’s alcohol- and drug-fuelled violence initiatives, introduced in response to recent ‘one-punch’ homicides. This comment examines the use of penalty notices, or ‘on-the-spot’ fines, for the minor offences of offensive conduct, offensive language and the continuation of intoxicated and disorderly behaviour following a move-on direction. It considers the potential impact of these new fines on vulnerable and minority groups, particularly Aboriginal Australians. The comment questions whether police, as opposed to judicial officers, are the appropriate arbitrators for complex (albeit minor) offences that involve ill-defined elements such as offensiveness, community standards and the reasonable person test. It also asks whether these measures will be effective in fulfilling their stated aim to decrease alcohol-fuelled violence.
The story is in The New York Times, with interesting information about Ms. Mapp's post-landmark run in with authorities:
In 1968, Ms. Mapp moved from Cleveland to Queens. Two years later she was charged with possession of narcotics. Convicted in 1971 with a co-defendant, Alan Lyons, she pursued a series of appeals, claiming that the search warrant used in her arrest had been wrongly issued and that the police had targeted her because of her role in Mapp v. Ohio.
The drugs seized in the case were found at an apartment that Mr. Lyons apparently rented from Ms. Mapp. She lived several miles away. The police searched her home and found rent receipts that prosecutors argued established her as having aided and abetted Mr. Lyons. The officer who had applied for the warrant to search Ms. Mapp’s home was later dismissed from the police force after he was determined to have accepted about $3,500 from a narcotics dealer.
Wednesday, December 10, 2014
ana aliverti (University of Warwick - School of Law) has posted Making People Criminal: The Role of the Criminal Law in Immigration Enforcement (Theoretical Criminology. 16 (4), November 2012) on SSRN. Here is the abstract:
This article analyses the recent expansion of immigration offences and the reasons for relying on the criminal law and its institutions for immigration enforcement. By relating the scholarship on (over) criminalisation with the growth of immigration offences, it explains the origins of the use of criminal law for regulatory purposes and their influence in the immigration control system in Britain. The great reliance on the criminal law to regulate immigration in the last two decades is distinctive of a period in which crime and immigration have been increasingly politicised. In immigration enforcement, criminal law serves both symbolic and practical purposes as many of these offences are used primarily as threats to enforce compliance and against those who cannot be removed.
Leo Beletsky (Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences) has posted Engaging Law Enforcement in Opioid Overdose Response: Frequently Asked Questions (Bureau of Justice Assistance, Law Enforcement Naloxone Toolkit (2014)) on SSRN. Here is the abstract:
Claiming nearly 120 American lives daily, drug overdose is a true national crisis. The main driver of this epidemic is opioid overdose (OOD), which cuts across class, race, and demographic characteristics. Certain groups, including veterans, residents of rural and tribal areas, recently-released inmates, and people completing drug treatment/detox programs are at an especially high risk of OOD.
The vast majority of OODs are accidental and result from taking inappropriate doses of opioids or mixing opioid drugs with other substances. These drug poisonings typically take 45-90 minutes to turn fatal, creating a critical window of opportunity for lifesaving intervention. Appropriate assistance, including administration of the antidote naloxone, can quickly and effectively reverse the OOD.
Jack I. Lerner and Rom Bar-Nissim (University of California, Irvine School of Law and Independent) have posted Law Enforcement Investigations Involving Journalists (Chapter 10, IN: Whistleblowers, Leaks and the Media: The First Amendment and National Security, 2014) on SSRN. Here is the abstract:
How is the government able to investigate former National Security Agency employee Thomas A. Drake and former CIA employee Jeffrey Alexander Sterling for their leaks to journalists? What legal tools can federal law enforcement use to obtain the identity of a leaker and reveal information about the leak? What constitutional and statutory safeguards exist to protect media recipients of the leak, like the reporters James Risen of The New York Times and James Rosen of Fox News? Do internal guidelines at the Department of Justice shape its behavior? This chapter will answer these questions.
Tuesday, December 9, 2014
"Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform"
Doug Berman has this post at Sentencing Law & Policy. In part:
Today's must-read for all sentencing fans is this lengthy new post by Bill Otis, amusingly titled "Should I Feel Lonely?". The piece is a fun read in part because Bill is an effective writer and advocate, but it is a must read because it highlights that (1) while many in the media now struggle to find pundits other than Bill to speak actively and vocally in support of severe sentencing laws and mass incarceration, (2) efforts in Congress to significantly reform federal sentencing laws and "on the ground" developments to reduce incarceration levels are still failing to gain much traction.
In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft. In a growing number of jurisdictions, advocates have persuaded lawmakers to pass laws imposing criminal sanctions — hefty fines and the possibility of imprisonment — onto employers for engaging in these bad acts. In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor.
Niccolo Leo Caldararo (San Francisco State University - Department of Anthropology) has posted Inequalities, Fraud and Caste Punishments: An American Saga on SSRN. Here is the abstract:
What is the nature of equality under the law? How should someone be treated who has created a confusion and caused people to lose millions as opposed to someone who cheats others of goods or services by deception? What is the difference in intent when one person executes a fraud on an- other but the value of that fraud is in billions of dollars as opposed to one carried out that has the value of hundreds or thousands of dollars? There appears to be a wall in our society between those crimes that are defined as such and those acts where are deceptive but cheat others of their property. An examination of this phenomenon provides an insight into the special caste people in the financial world have created for themselves. Banks claim that regulation of the Dodd-Frank legislation is ruining the financial system. The implication is that banks and bankers are exempt from fraud.
Doug Berman at Sentencing Law & Policy has this post. From one excerpt:
There are a lot of great things about decriminalization. But it has a surprisingly punitive and racially charged dark side, and it doesn’t always work the way people think it does. The “non-jailable misdemeanor” — popular in many states — is still a crime that triggers arrest, probation and fines, criminal records and other collateral consequences. Even the gold standard of decriminalization — the “non-arrestable” civil infraction — can derail a defendant’s employment, education and immigration status, while the failure to pay noncriminal fines can lead to contempt citations and incarceration. And while decriminalization sounds egalitarian — after all, it’s a promise not to lock up people who would usually get locked up — sometimes it might actually make things worse for the poor and people of color....
And from the otheer:
The saga of Proposition 47 and its troublesome implications is a crime story in which everybody left fingerprints except the real villains. The villains are California legislators, who kept their hands off the crucial challenge of criminal sentencing reform despite the need to address the state’s big problems with prison overcrowding and overly harsh policies that favor punishment over rehabilitation.
With lawmakers unwilling or unable to touch the issue, advocates picked it up and handed over the complex topic of sentencing reform to the public in the form of last month’s ballot initiative. Voters were asked to say yes or no to reducing felony sentences to misdemeanor penalties for many drug-possession and other criminal convictions.
Monday, December 8, 2014
Ben Bradford , Katrin Hohl , Jonathan Jackson and Sarah MacQueen (University of Oxford - Centre for Criminology , City University London , London School of Economics & Political Science - Department of Methodology and University of Edinburgh - School of Law) have posted Obeying the Rules of the Road: Procedural Justice, Social Identity and Normative Compliance on SSRN. Here is the abstract:
Why do people comply with traffic laws and regulations? Road traffic policing tends to be premised on the idea that people comply when they are presented with a credible risk of sanction in the event of non-compliance. Such an instrumental model of compliance contrasts with the normative account offered by procedural justice theory, in which compliance is encouraged by legitimate legal authorities. Comparing these two accounts, we find evidence that both instrumental and normative factors explain variance in motorists’ self-reported propensity to offend. Extending the standard procedural justice account, we also find that it is social identity – not legitimacy – that forms the ‘bridge’ linking procedural fairness and compliance, at least according to a definition of legitimacy that combines felt obligation and moral endorsement. Fair treatment at the hands of police officers seems to enhance identification with the social group the police represent, and in turn, identification seems to motivate adherence to rules (laws) governing social behavior. These findings have implications not only for understandings of legal compliance, but also our understanding of why procedural justice motivates compliance, and the role of procedural justice in promoting social cohesion.