Thursday, August 21, 2014
Wesley Oliver (Duquesne Law School) has posted Charles Lindbergh, Caryl Chessman, and the Exception Proving the (Potentially Waning) Rule of Broad Prosecutorial Discretion on SSRN. Here is the abstract:
Broad prosecutorial discretion is generally accepted by courts and legislatures and is widely blamed by academics for the explosion in the American prison population. Statutory revisions and judicial interpretations of kidnapping law, however, provide an exception to the deference generally given to prosecutors. The very high-profile execution of Caryl Chessman quite publicly raised the question of whether kidnapping, then a capital crime in California, was defined so broadly as to permit a prosecutor to obtain the death penalty for a number of non-capital crimes, such as robbery and rape. Chessman’s case raised widespread concern about the unchecked power of prosecutors and prompted reform of the specific law that led to his execution – kidnapping. For roughly the past two decades, academics have renewed concerns about unlimited prosecutorial discretion, but no single case has drawn attention to the cause. The more generalized problem in our prison system, however, has not escaped the public’s notice. This country’s epidemic of incarceration has raised considerable alarm, something academics attribute to the broad scope of criminal laws empowering prosecutors to seek prison sentences of ever-increasing lengths. This last term, in two virtually unnoticed cases, the Supreme Court appeared to take up the invitation of the academy to rein in the power of prosecutors by limiting the scope of traditional forms of criminal liability. Whether the Supreme Court’s recent incursion into traditionally state doctrines of criminal liability is a bell weather event or not remains to be seen, but the Court has traditionally avoided considering long-existing doctrines of criminal law and the academic criticism of criminal law’s broad scope extends far beyond the aspects of complicity and felony murder the Court considered last term.
Andrew E. Taslitz and Stephen E. Henderson (American University - Washington College of Law and University of Oklahoma College of Law) has posted Protecting Privacy in Third Party Records: Can the Grand Jury Help? (American University Law Review, Forthcoming) on SSRN. Here is the abstract:
The newly enacted American Bar Association Standards for Criminal Justice on Law Enforcement Access to Third Party Records (LEATPR) fill a constitutional hole in privacy protection by rejecting the third party doctrine. In place of that historic federal constitutional void, LEATPR implements four methods. First, some level of justification is required for law enforcement access to records. This level of justification is not uniform, but instead varies with the degree of privacy of the desired record. Second, where obtained records have a relatively high degree of privacy, LEATPR requires providing notice to the focus of those records. Third, LEATPR requires that obtained records be protected against unauthorized access and distribution. And, fourth, the legislature must create accountability mechanisms to guarantee these substantive protections. But LEATPR exempts from its requirements access to records via a grand jury subpoena, and, perhaps more surprisingly, potentially exempts access via a “functionally equivalent prosecutorial subpoena.” The impetus for this exemption was a concern that applying LEATPR’s requirements to the grand jury, or even to its functional equivalent, is unnecessary and might radically undermine longstanding systems of criminal investigation in perhaps unforeseeable ways. This essay addresses whether this exception can be justified by reviewing each of the four main regulatory mechanisms of LEATPR and questioning whether grand jury procedures provide an adequate substitute. In finding that they do not, the essay indicates how to improve the grand jury process.
Doug Berman at Sentencing Law & Policy excerpts a newspaper article on this recent phenomenon. From the excerpt:
Authorities say the higher numbers are primarily the result of a state Supreme Court decision in 2008 that set a new legal standard for the Board of Parole Hearings and the Governor’s Office to use when determining who is suitable for parole. That standard is focused not just on the circumstances of the inmate’s offense, but whether he or she poses a current threat to public safety. If not, the inmate may be released.
Despite speculation to the contrary, Gov. Jerry Brown’s office has stressed that lifer parole grants during his current administration have had nothing to do with a federal court mandate to reduce overcrowding in California’s prisons. “The prison population has no bearing on the governor’s decision to reverse or not act on a parole grant,” said Evan Westrup, a spokesman for Brown
Kent Roach (University of Toronto - Faculty of Law) has posted Terrorism (in Markus Dubber and Tatjana Hornle, eds., Oxford Handbook of Criminal Law (2015) ch 36, Forthcoming) on SSRN. Here is the abstract:
This chapter examines how criminal law has expanded to deal with the challenges of terrorism and whether in doing so it has sacrificed its fundamental values. The first part of this chapter outlines a variety of less restrained alternatives to the criminal law that have been used to respond to terrorism including military and administrative detention and targeted killing in order to place the expansion of the criminal law in context. he bulk of the chapter will examine how criminal law has expanded to deal with the challenges of preventing terrorism and how this may undermine the integrity of the criminal law. Topics examined include definitions of terrorism, extra-territorial jurisdiction and the integration of administrative blacklists into the criminal law. The understandable desire to prevent terrorism has created an incentive for legislatures to stretch the prohibited act of criminal laws so that they apply well before traditional inchoate forms of liability such as attempts, conspiracy and incitement. The chapter will also examine the limited capacity of fault requirements to restrain broad definitions of the criminal law. The limited role of defences, especially entrapment, will be examined as well the pressures that broad terrorism offences place on principles of proportionate punishment. Criminal laws against terrorism reveal more general weaknesses in modern criminal law especially with respect to the legislature’s ability to define criminal acts broadly and fault requirements narrowly.
Wednesday, August 20, 2014
Christopher Slobogin (Vanderbilt University - Law School) has posted Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis' (William & Mary Bill of Rights, Vol. 23, 2014) on SSRN. Here is the abstract:
The Supreme Court’s decision in Hall v. Florida holds that “clinical definitions” control the meaning of intellectual disability in the death penalty context. In other words, the Court “scientized” the definition of intellectual disability. This article discusses the implications of this unprecedented move. It also introduces the idea of scientific stare decisis — a requirement that groups that are scientifically alike be treated similarly for culpability purposes — as a means of implementing the scientization process.
Paul Cassell has this post at The Volokh Conspiracy. In part:
Some commentators have assumed that the officer could be charged federally if he was negligent or reckless in assessing the need to use deadly force. For a federal civil rights prosecution, that is untrue. A federal civil rights prosecution in the Brown shooting will only be successful if the defendant acted with specific intent to deprive Brown of his rights.
This essay reviews the economics of criminal procedure, proceeding through four topics in the literature. First, I review the implications of substantive criminal law theories for criminal procedure. The second part discusses the error cost model of criminal procedure, which is the dominant framework and posits that criminal procedure rules are designed to minimize the sum of error and administrative costs. The third part reviews the public choice model of criminal procedure. Under this model, criminal procedure rules are designed largely to regulate rent seeking activity. The last part of this paper is a brief discussion of some of the empirical work on procedure that bears directly on deterrence and welfare effects.
Doug Berman at Sentencing Law & Policy excerpts a newspaper article. In part:
“The Pittsburgh police department was absolutely the most condescending and aggressively uncooperative agency I have encountered,” he said. “They would not share information; they would not provide information. They would not allow any outsiders in.” It made no difference that PIRC was a mayoral initiative with hundreds of thousands of dollars in City Council funding. “They actively rejected it and made no secret of that,” Mr. Kennedy said. “My read on this was the police bureau saying, ‘City Hall is trying to tell us what to do, and we’re not going to do it.’ And they won that fight.”
Tuesday, August 19, 2014
Mark Walters (University of Sussex Law School) has posted Why the Rochdale Gang Should Have Been Sentenced as 'Hate Crime' Offenders (Criminal Law Review (2). pp. 131-144, 2013) on SSRN. Here is the abstract:
This article examines the case of the Rochdale Gang (a group of Asian Muslim men recently convicted of a number of sexual offences against young white girls) by analysing whether the Gang’s offences could and should have been prosecuted as “hate crimes.” The article argues that sufficient scope exists under s.28 of the Crime and Disorder Act 1998 and s.145 of the Criminal Justice Act 2003 for the Gang’s actions to be pursued by the authorities, not only as sexual offences, but as offences aggravated by racial and religious “hostility”. The article posits that the authorities’ denial that the Gang’s actions were partly motivated by prejudice was likely to be the result of a narrowly construed conception of hate crime. In particular, it is argued that the authorities failed to acknowledge the symbiotic relationship that existed between the perceived vulnerability of the victims and the intersecting hostilities that such vulnerabilities gave rise to. The article concludes that the police and CPS should have gathered evidence of “hostility” and adduced this for consideration by the court at sentencing.
Will Baude has this interesting post at The Volokh Conspiracy, offering but not endorsing the following arguments:
1, sometimes police officers are doing sensitive tasks that would be undermined by publicity, like meeting with confidential informants.
2, bystanders with cameras might try to get too close to a dangerous situation increasing the risk of accidental collateral injury.
3, being recorded might “overdeter” officers from acting quickly in emergencies, analogous to the overdeterrence arguments made in favor of qualified immunity.
4, immunity from being recorded is important to officers, which is why police unions lobby for it, and we would have to raise their salaries a lot if we got rid of it.
Ensuring that prosecutors comply with their ethical and due process disclosure requirements has been a particularly vexing problem for the criminal justice system, particularly in light of the frequency of wrongful convictions caused by prosecutorial misconduct. The problem stems from the shortcomings of the Brady doctrine and institutional forces that make it difficult to hold prosecutors accountable when they commit misconduct. In response to these challenges, commentators have offered numerous reforms to increase compliance with prosecutors’ disclosure requirements; however, many of these proposals are complex, would impose considerable burdens on the system, and/or would require new legislation or regulations. Instead, this Essay calls for a short Brady colloquy during which a judge would question the prosecutor on the record about her disclosure obligations. Such a colloquy would provide judges an additional tool to enforce Brady, nudge prosecutors to comply with their disclosure obligations, and make it easier to punish prosecutors who commit misconduct. Most importantly, a Brady colloquy could be implemented by judges today without the need for additional legislation or ethical rules.
Monday, August 18, 2014
"Texas Gov Rick Perry facing two felony charges carrying significant mandatory minimum prison terms"
Doug Berman has this post at Sentencing Law & Policy, excerpting a newspaper account. In part:
Republican Rick Perry, becoming the first Texas governor indicted in almost a century, must spend the final five months of his historically long tenure fighting against felony charges and for his political future. A Travis County grand jury on Friday charged Perry with two felony counts, abuse of official capacity and coercion of a public servant, after he vetoed funding for a county office that investigates public corruption.
|1||335||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014 [3rd last week]
|2||255||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014 [5th last week]
|3||154||Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Scott Cunningham andManisha Shah
Baylor University and UCLA School of Public Affairs
Date posted to database: 19 Jul 2014 [new to top ten]
|4||126||Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons
Joan Petersilia and Francis T. Cullen
Stanford University and University of Cincinnati
Date posted to database: 24 Jun 2014 [6th last week]
Dawinder S. Sidhu
University of New Mexico - School of Law
Date posted to database: 12 Jul 2014 [7th last week]
|6||124||The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
University of Pennsylvania Law School
Date posted to database: 19 Jul 2014 [new to top ten]
|7||115||White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence
Lucian E. Dervan
Southern Illinois University School of Law
Date posted to database: 28 Jun 2014 [9th last week]
|8||115||State Law Reporting and Disclosure Mandates Under ERISA
Law Offices of Albert Feuer
Date posted to database: 16 Jul 2014
|9||109||Morse, Mind, and Mental Causation
Michael S. Pardo and Dennis Patterson
University of Alabama School of Law and European University Institute
Date posted to database: 17 Jul 2014 [10th last week]
|10||84||Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi
Nancy J. King
Vanderbilt University - Law School
Date posted to database: 28 Jun 2014 [new to top ten]
Sunday, August 17, 2014
"Rand Paul on Ferguson, police militarization, and racial disparities in the criminal justice system"
Ilya Somin has this post at The Volokh Conspiracy. In part:
The op ed should help put to rest the notion – never very plausible to begin with – that libertarians are ignoring these issues. Paul has not gone as far in opposing the War on Drugs and police militarization as I and many other libertarians would like. I would prefer to abolish the War on Drugs completely, not just cut it back and reduce sentences, as Paul has advocated. But he has gone much farther on both than the vast majority of other mainstream politicians, including most Democrats.
Friday, August 15, 2014
John D. Moore has posted Reasonable Provocation: Distinguishing the Vigilant from the Vigilante in Self-Defense Law (78 Brook. L. Rev. 1659 (Summer 2013)) on SSRN. Here is the abstract:
The right of self-defense is often viewed as a bedrock principle in the criminal law. That right, however, is subject to certain restrictions. Among those restrictions is the requirement in most jurisdictions that the individual claiming self-defense cannot have provoked the conflict. The precise contours of what constitutes provocation vary by jurisdiction. Each jurisdiction, to some extent, leaves unanswered the question of whether individuals can intentionally insert themselves into situations where violence is reasonably foreseeable and still maintain a claim of self-defense. The key problem in making these determinations is distinguishing between vigilant community members hoping to protect their communities and vigilantes seeking to mete out their own brand of extrajudicial law enforcement. While the former may be socially desirable, a society of laws can have little tolerance for the latter. Defining the boundary between these behaviors requires a carefully crafted rule that balances the interests of society and the needs of the individual.
Geoffrey Sant has posted 'Victimless Crime' Takes on a New Meaning: Did California's Victims' Rights Amendment Eliminate the Right to Be Recognized as a Victim? (Journal of Legislation, Vol. 39, No. 1, 2012-13) on SSRN. Here is the abstract:
In 2008, California voters passed Proposition 9, the Victim's Bill of Rights Act of 2008 ("Marsy's Law"), thereby amending the California Constitution. Marsy's Law has been described as "significantly reform[ing] California's criminal justice system." Supporters see Marsy's Law as a possible model for victims' rights amendments elsewhere, including a potential amendment to the US Constitution.
The definition of "victim" within Marsy's Law, arguably the most fundamental aspect of this constitutional amendment, has been criticized in passing in the Berkeley Journal of Criminal Law as "somewhat ambiguous" such that it "may therefore be difficult for courts to interpret." The article foresaw litigation over the definitional section of Marsy's Law, but unfortunately it provided no detailed analysis of the purported ambiguities. Meanwhile, others have argued that the definitional section of Marsy's Law created a "strange world" with perverse results, including that "some crime victims are no longer crime victims." It has been stated that this victims' rights law "[c]uriously...appears at first glance to narrow the scope of victims' rights."
Thursday, August 14, 2014
From The New York Times:
All crime has fallen, nationally and especially in New York. But there has also been a big shift in the economics of auto theft: Stealing cars is harder than it used to be, less lucrative and more likely to land you in jail. As such, people have found other things to do.
The most important factor is a technological advance: engine immobilizer systems, adopted by manufacturers in the late 1990s and early 2000s. These make it essentially impossible to start a car without the ignition key, which contains a microchip uniquely programmed by the dealer to match the car.
Criminals generally have not been able to circumvent the technology or make counterfeit keys.