Friday, March 17, 2017
Christopher Slobogin (Vanderbilt University - Law School) has posted Legislative Regulation of Surveillance (The Cambridge Handbook of Surveillance Law (David Gray & Stephen E. Henderson, eds., 2017 Forthcoming)) on SSRN. Here is the abstract:
Most of the law governing technological surveillance by law enforcement is found in legislation. This chapter first outlines the most important federal surveillance statutes in the United States and a sampling of representative state legislation, organized under three categories: interception of communications; physical surveillance; and accessing of surveillance records. It then discusses the advantages and disadvantages of regulating surveillance through legislation rather than judicial decision, and through state or local laws rather than through federal legislation. Finally, it contends that, if legislation is to be the principal means of regulating the government’s surveillance activities, law enforcement agencies should also have to adhere to administrative law principles in implementing that legislation.
Jeffrey Bellin (William & Mary Law School) have posted Reassessing Prosecutorial Power Through the Lens of Mass Incarceration on SSRN. Here is the abstract:
Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff's highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration – and How to Achieve Real Reform." The book concludes that police, legislators, and judges are not to blame for Mass Incarceration. Instead, "the most powerful actors in the entire criminal justice system" (prosecutors) have used their "almost unfettered, unreviewable power to determine who gets sent to prison and for how long."
Michael L. Perlin (New York Law School) has posted 'I've Got My Mind Made Up': How Judicial Teleology in Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence on SSRN. Here is the abstract:
Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.
In this paper, I will consider what the implications of this behavior are for future criminal procedure developments, and will show how this behavior violates the basic precepts of therapeutic jurisprudence.
Thursday, March 16, 2017
Mike Koehler (Southern Illinois University School of Law) has posted JPMorgan - A Trifecta of Off-the-Rails FCPA Enforcement (12 Bloomberg Law White Collar Crime Report 201) on SSRN. Here is the abstract:
The Foreign Corrupt Practices Act has specific elements that must be met in order for there to be a violation. However, with increasing frequency it appears that the Department of Justice and Securities and Exchange Commission have transformed FCPA enforcement into a free-for-all corporate ethics statute in which any conduct the enforcement agencies find objectionable is fair game to extract a multi-million dollar settlement from a risk-averse corporation.
An example is the $202.6 million FCPA enforcement action against JPMorgan Chase & Co. based on alleged improper hiring and internship practices in the Asia-Pacific region. After discussing the main features of the problematic enforcement action, this article highlights why the SEC’s enforcement action finding violations of the FCPA’s anti-bribery, books and records and internal controls provisions represents a trifecta of off-the-rails FCPA enforcement and why anyone who values the rule of law should be alarmed.
The use of the term and/or is pervasive in legal language. Lawyers use it in all types of legal contexts — including statutes, contracts, and pleadings. Beginning in the 1930s, however, many judges decided that the term and/or should never be used in legal drafting. Ardent attacks on the term included charges that it was vague, if not meaningless, with some authorities declaring it to be a “Janus-faced verbal monstrosity,” an “inexcusable barbarism,” a “mongrel expression,” an “abominable invention,” a “crutch of sloppy thinkers,” and “senseless jargon.” Still today, critics maintain that the construct and/or is inherently ambiguous and should be avoided whenever possible — which, many detractors would argue, is always.
And/or, however, is not ambiguous at all. It has a definite, agreed-upon meaning: when used properly, the construct means “A or B or both.” In most areas of law, there simply is no compelling reason to avoid using and/or. The term is clear and concise. It derives criticism mainly from the inability of people to use it correctly. Pleadings, contracts, statutes, and patent claims all allow for a cogent use of and/or. Conversely, some legal areas — such as jury instructions, search warrants, and jury verdicts — do not typically allow a drafter to provide options, making and/or unsuitable.
This Article argues that we should not imprison people who commit crimes. This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system. Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong. Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses. It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs. The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently. It concludes that there exist economically superior alternatives to prison available right now. The alternatives are practicable. They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.
The objective of the legality principle is to promote autonomy by providing individuals with opportunities to plan courses of conduct free from state intrusion. If precise rules are not prescribed in advance, individuals may lack notice of what is prohibited and may be subjected to arbitrary treatment. Thus, the Constitution commands that legal officials honor formal terms of engagement and limit enforcement efforts to narrowly defined crimes. But, under pressing conditions, the prevailing rules may prove too rigid, compelling courts to carve post-hoc exceptions. As a matter of practice, these exceptions tend to operate asymmetrically — benefiting the state only. This Article uses Fourth Amendment doctrine to examine that asymmetry.
Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade. Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case. The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity. The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.
This Article is the first to propose a system—data-driven appellate review—that curbs sentencing disparity without re-introducing unwarranted uniformity.
Wednesday, March 15, 2017
Amy J. Cohen and Aya Gruber (Ohio State University (OSU) - Michael E. Moritz College of Law and University of Colorado Law School) have posted Governance Feminism in New York's Alternative 'Human Trafficking Intervention Courts' (GOVERNANCE FEMINISM: A HANDBOOK (eds. Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir (University of Minnesota Press) (with Aya Gruber), Forthcoming) on SSRN. Here is the abstract:
In New York’s new Human Trafficking Intervention Courts (HTICs), mostly female defendants are prosecuted for prostitution-related offenses and then offered social services in lieu of more traditional criminal justice sentences. These alternative problem-solving courts represent a reconceptualization of the status of prostitution defendants in the New York criminal court system: formerly regarded as low priority, quality-of-life offenders, they are perceived by the HTICs as presumptive victims of gender-based violence. This chapter explores the role that feminists, holding a range of views on commercial sex, played in the creation of these new courts even as it argues that virtually no feminist position — liberal, abolitionist, sex worker — should condone the arrest of women for selling sex. It explores how some feminists embraced the courts as depoliticized providers of services while others made strategic decisions to work with the new courts despite clear ideological misgivings. As such, the chapter argues, the HTICs raise questions endemic to all governance feminism projects: when and why is it worth it to compromise feminist aims?
Lisa Kern Griffin (Duke University School of Law) has posted Criminal Adjudication, Error Correction, and Hindsight Blind Spots (73 Wash. & Lee L. Rev. 165 (2016)) on SSRN. Here is the abstract:
Concerns about hindsight in the law typically arise with regard to the bias that outcome knowledge can produce. But a more difficult problem than the clear view that hindsight appears to provide is the blind spot that it actually has. Because of the conventional wisdom about error review, there is a missed opportunity to ensure meaningful scrutiny. Beyond the confirmation biases that make convictions seem inevitable lies the question whether courts can see what they are meant to assess when they do look closely for error. Standards that require a retrospective showing of materiality, prejudice, or harm turn on what a judge imagines would have happened at trial under different circumstances. The interactive nature of the fact-finding process, however, means that the effect of error can rarely be assessed with confidence. Moreover, changing paradigms in criminal procedure scholarship make accuracy and error correction newly paramount. The empirical evidence of known innocents found guilty in the criminal justice system is mounting, and many of those wrongful convictions endured because errors were reviewed under hindsight standards. New insights about the cognitive psychology of decision-making, taken together with this heightened awareness of error, suggest that it is time to reevaluate some thresholds for reversal. The problem of hindsight blindness is particularly evident in the rules concerning the discovery of exculpatory evidence, the adequacy of defense counsel, and the harmfulness of erroneous rulings at trial. The standards applied in each of those contexts share a common flaw: a barrier between the mechanism for evaluation and the source of error. This essay concludes that reviewing courts should consider the trial that actually occurred rather than what “might have been” in a different proceeding and proposes some new vocabulary for weighing error.
Peter Leasure and Tia Stevens Andersen (University of South Carolina, College of Arts and Sciences, Students and University of South Carolina) have posted The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study (Yale Law and Policy Review Inter Alia, Vol. 35, No. 11, 2016) on SSRN. Here is the abstract:
Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record. In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis. The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates. This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.
A substantial body of research shows that people’s legal attitudes can have wide-ranging behavioral consequences. In this paper, I use original survey data to examine long-term immigrant detainees’ legal attitudes. I find that the majority of detainees express a felt obligation to obey the law, and do so at a significantly higher rate than other U.S. sample populations. I also find that the detainees’ perceived obligation to obey U.S. immigration authorities is significantly related to their evaluations of procedural justice, as measured by their assessments of fair treatment while in detention. This finding remains robust controlling for a variety of instrumental and detainee background factors, including the detainees’ experiences with the legal system and legal authorities in their countries of origin. Finally, I find that vicarious procedural justice evaluations based on detainees’ assessments of how others are treated are as important to detainees’ perceived obligation to obey U.S. immigration authorities as their personal experiences of fair or unfair treatment. I discuss the broader implications of these findings and their contributions to research on procedural justice and legal compliance, and research on legal attitudes of noncitizens.
Tuesday, March 14, 2017
Class counsel and prosecutors have a lot more in common than scholars realize. These lawyers have clients, but their clients are diffuse and lack a formal decisionmaking structure. Because of the nature of their clients, class counsel and prosecutors have to make decisions for their clients that one would ordinarily expect clients to make—and indeed that legal ethics rules would expressly require clients to make in other contexts—such as decisions concerning objectives of representation or whether to settle or plead guilty. Both complex litigation and criminal law scholars recognize that these lawyers’ self-interests diverge from their clients’ interests. But the complex litigation and criminal law literatures discuss the ensuing accountability problem solely in their own spheres. This article considers the insights about accountability that complex litigation can learn from criminal law.
More specifically, the article argues that although there are real differences between the two systems, these differences do not justify the completely different approaches to accountability that the two contexts employ. Rather, the comparison suggests that internal checks within class counsel’s firm, between plaintiffs’ firms, or between third-party funders and class counsel can improve accountability, much as internal checks improve accountability within some prosecutors’ offices.
William Knight, Caroline Cooper and David B. Wexler (St. Tammany Parish Government, Justice Consultant, Researcher and University of Puerto Rico - School of Law) have posted Louisiana Reentry Court Promotes Seamless Transition between Sentencing, Incarceration and Post Release Services – Some Potential Exportable Elements on SSRN. Here is the abstract:
This article describes a reentry court program with a number of unusual and “exportable” features that was first established in Louisiana’s 22nd Judicial District (St. Tammany and Washington Parishes) and now being implemented statewide. Under the leadership of Judge William Knight, the program targets “high risk/high needs” offenders with multiple prior felony convictions for nonviolent property and substance abuse offenses who often face prison sentences of 10-25 years but, pursuant to specially enacted legislation, are released after serving two years in prison to then participate in the community-based reentry court program. Among the program’s noteworthy features include: (1) the use of “split sentencing” permitting the sentencing judge to retain jurisdiction following prison release, with the sentencing judge also serving as the reentry court judge retaining supervision authority and ability to support the defendant’s efforts to achieve post-release program goals; (2) seamless transition from institutional confinement to community based services, with the defendant being brought to the court and the sentencing/reentry judge upon release; (3) continuity of the participant/case management relationship from sentencing through incarceration with regular visits of the case manager while he/she is incarcerated; (4) on-going multi-agency collaboration to provide the sentencing, service delivery and supervisory framework for the program; (5) public/private partnerships to promote a continuum of care starting at sentencing through program completion and aftercare, including housing, education, job training, job placement, and family/community support; and (6) regular status hearings conducted by the sentencing/reentry court judge at the prison during the period of incarceration to establish clear expectations for the participant while he or she is incarcerated and to solidify the connection and relationships between the court and the participant prior to release.
Aliza B. Kaplan, Peter A. Collins and Venetia L. Mayhew (Lewis & Clark Law School, Seattle University and Lewis & Clark College, Law School, Students) have posted Oregon's Death Penalty: A Cost Analysis on SSRN. Here is the abstract:
The primary goal of this study was to estimate the economic costs associated with aggravated murder cases that result in death sentences and compare those costs to other aggravated murder cases, the majority of which resulted in some form of a life sentence, in the state of Oregon. Importantly, Oregon law does not require the prosecution to file a formal notice indicating whether or not the state will seek the death penalty in aggravated murder cases. Therefore, all aggravated murder cases are treated as death penalty cases, likely inflating the average cost of aggravated murder cases that do not result in a death sentence. In order to provide a bit more context, we include costs for non-aggravated cases where defendants were charged with a lesser charge of murder, in categories where data were both available and reliable. The following are the main findings from the study, presented by total (includes all cost categories), then by individual cost category.
andré douglas pond cummings (Indiana Tech - Law School) has posted ‘Lord Forgive Me, but He Tried to Kill Me’: Proposing Solutions to the United States’ Most Vexing Racial Challenges (13 Wash. & Lee J. Civ. Rts. & Soc. Just. 3 (2016)) on SSRN. Here is the abstract:
While great progress has been made in the United States in the past fifty years in connection with race relations, three critical issues continue to vex our nation. The United States, despite its progress, continues to struggle mightily with (a) the police killing of unarmed black men; (b) racially disproportionate mass incarceration; and (c) violent homicides of black men and boys. Nightly newscasts detail seemingly weekly killings of unarmed African American men by law enforcement officers. Mass incarceration, while plateauing in the last several years, continues to see millions of United States citizens incarcerated at rates unmatched by any other country in the world. Those incarcerated are disproportionately African American and Latino males jailed for non-violent drug and property crimes. Statistics show that African American citizens suffer 55 percent of all homicide deaths in the United States while making up just 13 percent of the population. In nearly every major city in the United States, African American males constitute 65 to 75 percent of those homicide deaths while often making up a small percentage of those cities’ populations. These homicide statistics are so dramatic, it appears that an epidemic is occurring in the U.S.
Monday, March 13, 2017
Clare McGlynn, Kelly Johnson and Nicole Westmarland (Durham Law School, Durham University, Durham University - School of Applied Social Sciences (SASS) and Durham University) have posted Under the Radar: The Widespread Use of ‘Out of Court Resolutions’ in Policing Domestic Violence and Abuse in the United Kingdom (2017) British Journal of Criminology ((2017) British Journal of Criminology) on SSRN. Here is the abstract:
The suitability of ‘out of court resolutions’ (restorative justice and community resolutions) in cases of domestic abuse is theoretically contentious and empirically under-researched. This study investigated the nature and extent of out of court resolutions for domestic abuse using the Freedom of Information Act. Out of court resolutions were used by every UK police force except Scotland to respond to over 5,000 domestic abuse incidents (including intimate partner abuse) in 2014. Some of these incidents related to offences with sentencing tariffs up to life imprisonment. Such widespread use has been taking place ‘under the radar’ in stark contrast to police guidance, has immediate implications for policy and practice, and fundamentally shifts the research terrain in this field.
Aliza B. Kaplan and Amy Saack (Lewis & Clark Law School and Lewis & Clark College, Law School, Students) have posted Overturning Apodaca v. Oregon Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System (Oregon Law Review, Vol. 95, No. 1, 2017) on SSRN. Here is the abstract:
This Article argues that criminal convictions in state courts should be subject to the same unanimity requirements that the Sixth Amendment imposes on federal criminal convictions. Part I of this Article provides an overview of the U.S. Supreme Court’s jurisprudence on jury size and nonunanimity. Part I includes a discussion of Apodaca v. Oregon and Johnson v. Louisiana, the Court’s 1972 decisions holding that the Sixth and Fourteenth Amendments did not require jury unanimity in state court criminal jury trials even though federal law requires that federal juries must reach criminal verdicts unanimously. This is followed by a summary of many of the recently denied certiorari petitions that have pressed the Court to reconsider the jury unanimity issue in light of changing Sixth Amendment jurisprudence and social science evidence. Part II explains how the Court’s recent jurisprudence contradicts its 1972 Apodaca and Johnson rulings under the doctrine of incorporation.
Melissa Hamilton (University of Houston Law Center) has posted Constitutional Law and the Role of Scientific Evidence (Boston College Law Review, Vol. 58, No. E. Supp., 2017) on SSRN. Here is the abstract:
In late 2016, U.S. Court of Appeals for the Sixth Circuit’s concluded in Does #1–5 v. Snyder that Michigan’s sex offender registry and residency restriction law constituted an ex post facto punishment in violation of the constitution. In its decision, the Sixth Circuit engaged with scientific evidence that refutes moralized judgments about sex offenders, specifically that they pose a unique and substantial risk of recidivism. This Essay is intended to highlight the importance of Snyder as an example of the appropriate use of scientific studies in constitutional law.
Sunday, March 12, 2017
Retributivism holds twin duties to punish all who are guilty and none who are innocent. This Article introduces a novel problem to the centuries-old debate on the retributivist justification of punishment. Using the problem of conjoined twins, where only one has committed a crime, this Article demonstrates retributivism’s inadequacy to serve as a comprehensive theory of punishment. Because the twins are conjoined, any punishment inflicted upon the guilty twin will necessarily be imposed upon the innocent. Applying retributivism’s core tenets to resolve the problem proves impossible. After considering all possible solutions to the problem, retributivists are left with no choice but to violate one of retributivism’s core duties. The retributivist must either punish the guilty and violate his negative duty not to punish the innocent, or forgo punishing the innocent and violate his positive duty to punish the guilty.