Thursday, February 26, 2015
David B. Kopel , Clayton E. Cramer and Carolyn J. Dobbins (Independence Institute , College of Western Idaho and Independent) have posted Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill (Howard Law Journal, Forthcoming) on SSRN. Here is the abstract:
How to reduce gun violence, while respecting civil rights, including the Second Amendment? One such means is to provide much more help to people who suffer from severe mental illness. The biggest violence-reductive effect would be in diminishing the number of crimes against the mentally ill, who are disproportionately victimized.
Only a small minority of seriously mentally people commit violent crimes; but people with serious mentally illness people are significantly more likely to commit violent crimes than are people who are not seriously mentally ill. However, closer examination shows that seriously mental illness as a crime risk is mainly when that illness is accompanied by other risk factors, such as alcoholism, or unemployment. So helping seriously mental ill people improve their lives — such as by holding a steady job — will also have large crime-reducing effects. Helping people with untreated serious mental illness is a particularly relevant to reducing homicide and even more so for reducing mass attacks against strangers.
Brian M. Murray (Temple University, Beasley School of Law) has posted Beyond the Right to Counsel: Increasing Notice of Collateral Consequences (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:
In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities. In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel. These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction. This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel.
Wednesday, February 25, 2015
Kevin Bennardo (Indiana University Robert H. McKinney School of Law) has posted United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements (71 Washington and Lee Law Review Online 160 (2014)) on SSRN. Here is the abstract:
Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.
R. Kyle Alagood has posted Parole Release Hearings: The Fallacy of Discretion (Thurgood Marshall School of Law Journal on Gender, Race & Justice, Vol. 5, 2015, Forthcoming) on SSRN. Here is the abstract:
Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process. The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally. This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States.
David B. Wexler (University of Puerto Rico - School of Law) has posted Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law (Essays on Therapeutic Jurisprudence in New Zealand (Warren Brookbanks ed., 2015 Forthcoming)) on SSRN. Here is the abstract:
This Foreword is a chapter in a book entitled Essays on Therapeutic Jurisprudence in New Zealand, prepared for the 4th International Conference on Therapeutic Jurisprudence, Auckland, Aotearoa, New Zealand, 2015. The Foreword forms the basis of a keynote address at that conference.
Justice Ginsburg announced the judgment of the Court in Yates v. United States in an opinion joined by the Chief Justice and Justices Breyer and Sotomayor. Justice Alito concurred in the judgment. Justice Kagan dissented, joined by Justices Scalia, Kennedy, and Thomas.
Tuesday, February 24, 2015
Libor Dusek (CERGE-EI (Center for Economic Research and Graduate Education - Economics Institute)) has posted The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data on SSRN. Here is the abstract:
The paper estimates the effects of a simpler criminal procedure on case durations and the probabilities that the defendant is charged and convicted. The identification strategy exploits a policy reform in the Czech Republic as a quasi-natural experiment. The reform allowed petty offenses to be prosecuted via a simplified (fast-track) procedure but its actual implementation varied substantially across districts. The fast-track procedure reduced the average duration of the police/prosecutor phase of the criminal procedure by 27 days on average for the petty offenses. It increased the probability that the suspect is charged by 6 percentage points. The fast-track procedure released resources that could potentially be spent on prosecuting serious crimes; I therefore investigate for spillover effects. I find only weak evidence of such spillover effects on the probability that the suspect is charged and no evidence of spillover effects on other case outcomes.
Jalila Jefferson-Bullock (Arizona Summit Law School) has posted The Time is Ripe to Include Considerations of the Effects on Families and Communities of Excessively Long Sentences on SSRN. Here is the abstract:
It is well established that the United States incarcerates more people per capita than any other country in the world. The fundamental cause of this incarceration mania is that the United States unjustifiably doles out scores of excessively lengthy prison terms. Comparatively, United States citizenry are not convicted of worse crimes, and thereby well-deserving of more protracted sentences than those living in other countries. Rather, our federal criminal justice system has historically manifested the belief, more than do our neighbors around the globe, that longer terms of incarceration will benefit society by reducing crime and effectively sanctioning immoral behaviors. The time is ripe for reconsideration of this ill-advised creed.
Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness (California Law Review, Forthcoming) on SSRN. Here is the abstract:
As the marijuana legalization movement lurches forward, states face a jurisprudential dilemma in addressing the burgeoning public health issue of “drugged driving.” Zero-tolerance laws targeting driving with any illegal drug in one’s system, justified under a “jurisprudence of prohibition” based on the blameworthiness of the drug itself, are no longer a good fit. Instead, states have attempted to treat marijuana like alcohol, and have imported drunk driving’s “jurisprudence of dangerousness,” by enacting “per se” driving-under-the-influence-of (DUI) marijuana laws redefining DUI as driving with a certain amount of THC, marijuana’s main psychoactive compound, in one’s blood. These laws are legitimate, we are told, because they are analogous to “per se” .08% blood-alcohol concentration (BAC) impairment laws. What lawmakers have forgotten, and what legal scholars have largely neglected, is the buried and colorful history of drunk driving’s jurisprudence of dangerousness, and the scientific framework established by the country’s first “traffic czar,” William Haddon Jr., for proving the link between specific BACs and crash risk. Under this framework – which focuses first and foremost on fatal single-car crashes and case-control studies with a randomly selected control group – the illegitimacy of the new wave of DUI marijuana laws is painfully obvious. In fact, the few single-car crash and case-control studies that have been conducted have found no relationship between THC blood levels and increased relative risk of crash. Properly understood, the history of drunk driving offers what is still the only valid scientific framework for using the criminal law as an instrument of public safety.
Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment. Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required.
Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.
Simon Chang (Central University of Finance and Economics - China Center for Human Capital and Labor Market Research) has posted Criminalization of Homosexuality and Sex Ratios on SSRN. Here is the abstract:
Sexual activities between consenting adults of the same sex are still criminalized in more than one third of the countries in the world despite a global wave of decriminalization in the past sixty years. This paper empirically investigates the effect of sex ratios, i.e. relative number of men to women, on the criminalization of same-sex sexual conducts. At the individual level, people in high sex ratio countries are found to be more hostile against homosexuality and the homosexuals than their counterparts in low sex ratio countries. At the country level, sex ratios have a positive effect on criminalization. In particular, the two-stage least squares estimate using temperature as instrumental variable suggests that adding another man per 100 women in a country would increase the probability of criminalization by nearly three percentage points. Moreover, the fixed-effect estimate based on a US state-level panel data show that adding another man per 100 women in a state would have lowered the probability of revoking the state sodomy law by nearly two percentage points. These findings suggest that a high sex ratio creates a homophobic social environment that facilitates (hampers) the criminalization (decriminalization) of homosexuality.
Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Fatal Flaws of the 'Sneak and Peek' Statute and How to Fix it (Case Western Reserve Law Review, Vol. 65, 2014) on SSRN. Here is the abstract:
In the USA PATRIOT Act, Congress authorized delayed notice search warrants — warrants authorizing a “sneak and peek” search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures — a “sneak and steal” search — in which investigators seize evidence, often staging the scene to look like a burglary.
Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine — “exigent circumstances” — that does not make logical sense when applied to covert searching of physical spaces because it permits investigators to manufacture a justification for a covert search in almost any case. Covert searches without sufficient justification run afoul of the Fourth Amendment’s “rule requiring notice” and are constitutionally unreasonable.
Monday, February 23, 2015
Suzanne E. Scoggins and Kevin J. O'Brien (University of California, Berkeley - Charles and Louise Travers Department of Political Science and University of California, Berkeley - Charles and Louise Travers Department of Political Science) have posted China's Unhappy Police (Asian Survey, Forthcoming) on SSRN. Here is the abstract:
China’s street-level police are frustrated. Facing heavy caseloads, administrative drudgery, and low pay, front-line officers find it difficult to focus on tasks they find worthwhile. Discontent often sets in when young recruits’ dreams of being respected and powerful run up against the realities of life on patrol and does not disappear after they advance to station leadership positions, where they cannot easily make changes that improve operations or ease the pressures of the job. Even older officers are dissatisfied with recent procedural reforms and their inability to command the respect they once did. These grievances lead to low morale and much more. In interviews conducted in Hunan, Hebei, Shaanxi, and Beijing from 2010-2013, local police report that discontent encourages shirking, corruption, and waste. Although the Ministry of Public Security has acknowledged police dissatisfaction and the low productivity it causes, reforms so far do little more than treat symptoms and, in some cases, make the situation worse. Interviewing disgruntled cops reveals a life filled with uncertainty, hardship and feelings of powerlessness. It also explains why officers are often seen as lazy and corrupt, and gives us cause to rethink the image of police as effective arms of a highly securitized state.
Douglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted A Framework for Punishment: What is the Insight of Hart’s Prolegomenon? on SSRN. Here is the abstract:
I try to identify what H.L.A. Hart got right in his seminal article about punishment. Inter alia, I challenge the adequacy of his celebrated definition and question whether he is correct to separate issues of general justifying aim from those of distribution.
Alec D. Walen (Rutgers School of Law, Camden) has posted Proof Beyond a Reasonable Doubt: A Balanced Retributive Account on SSRN. Here is the abstract:
The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.
Sunday, February 22, 2015
|1||1,018||Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence
Kent Roach and Craig Forcese
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section
Date posted to database: 5 Feb 2015
|2||305||Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence
Craig Forcese and Kent Roach
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law
Date posted to database: 9 Jan 2015
|3||253||Can the International Criminal Court Deter Atrocity?
Hyeran Jo and Beth A. Simmons
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government
Date posted to database: 21 Jan 2015
|4||226||California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State
Marina Fisher, Nathaniel Miller, Lindsay Walter andJeffrey Selbin
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law
Date posted to database: 4 Feb 2015 [new to top ten]
|5||193||The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act
Kenneth C. Kettering
Visiting Professor at Large
Date posted to database: 24 Dec 2014 [4th last week]
|6||150||A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar
John H. Blume, Sheri Lynn Johnson, Paul Marcus andEmily C. Paavola
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School
Date posted to database: 16 Jan 2015 [5th last week]
|7||145||Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005
Atif R. Mian and Amir Sufi
Princeton University - Department of Economics and University of Chicago - Booth School of Business
Date posted to database: 8 Feb 2015 [new to top ten]
|8||134||Beyond a Reasonable Disagreement: Judging Habeas Corpus
Date posted to database: 25 Jan 2015 [7th last week]
|9||131||Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform
Allegra M. McLeod
Georgetown University Law Center
Date posted to database: 18 Dec 2014 [6th last week]
|10||123||Arrests as Regulation
Georgetown University Law Center
Date posted to database: 19 Dec 2014 [8th last week]
Saturday, February 21, 2015
Issue summary is from ScotusBlog, which also links to papers:
- Henderson v. U.S.: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
Friday, February 20, 2015
Lawrence B. Solum (Georgetown University Law Center) has posted Virtue as the End of Law: An Aretaic Theory of Legislation (Jurisprudence, Forthcoming) on SSRN. Here is the abstract:
This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.
Andrew Ingram (Department of Philosophy UT Austin) has posted Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing (Berkeley Criminal Law Journal, Vol. 19, No. 2, 2014). Here is the abstract:
Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of civil liberty by such departments could be reduced if the departments looked at law more as a good to be served for its own sake and less as an instrument for the promotion of order. In other words, a shot of legalism is the correct medicine to reduce police misconduct that pierces the law’s protections of citizen freedom.
Melvin L Otey (Faulkner University - Thomas Goode Jones School of Law) have posted Why Rico's Extraterritorial Reach is Properly Coextensive with the Reach of its Predicates (Hofstra Journal of International Business and Law, 2015) on SSRN. Here is the abstract:
Advocates and courts have historically adopted an unnecessarily dualistic approach to the extraterritorial application of RICO. At one poll are those suggesting the statute absolutely cannot be applied extraterritorially because it does not announce congressional intention for such application. At the other, there are those suggesting that Congress has manifested clear intention that the statute be applied extraterritorially in a wholesale fashion. As is so often the case, neither extreme is merited, and the truth is in the middle.