Wednesday, July 23, 2014
Mark Levin (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Considering Japanese Criminal Justice from an Original Position (「無知のヴェール」から日本の刑事司法を考える) (世界 SEKAI, no. 857, pp. 112-121, June 2014) on SSRN. Here is the abstract:
The criminal justice systems of the United States and Japan are both severely flawed. While some have worked hard to present these deep-seated problems to the public, the overall situation in either country is of stalled reform initiatives and ongoing injustices.
Race underlies a difference in how reform discussions proceed in the two nations. It is at the core of what ails the system in the U.S., as authors such as Professor Michelle Alexander have powerfully demonstrated. On the other hand, Japan’s would-be reformers operate in an atmosphere of widespread race obliviousness despite there being meaningful racial dynamics at play in Japan today.
This article, published in a leading Japanese public policy journal, offers that differences in public awareness of race in the two nations are salient.
Tuesday, July 22, 2014
Scott Shimick (SUNY at Geneseo) has posted Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:
Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.
In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.
Howard Bergman and D. Daniel Sokol (Howard J. Bergman Consulting and University of Florida - Levin College of Law) have posted The Air Cargo Cartel: Lessons for Compliance (ANTI-CARTEL ENFORCEMENT IN A CONTEMPORARY AGE - LENIENCY RELIGION (Caron Beaton-Wells, editor), Forthcoming) on SSRN. Here is the abstract:
Cartel enforcement and leniency are issues of increased academic attention. Most of the academic work in this area focuses on scholarship regarding formal modeling of leniency, empirical work, and analyses of broader legal theories, analytical trends and specific decisions. Scholarship has not focused on how leniency works in practice to detect wrongdoing and how robust and effective compliance programs may be used as a tool to take advantage of leniency. This chapter fills in the gap by offering a case study of an effective compliance program that uncovered what was at the time the largest ever international cartel. To do so, the authors undertook interviews with the legal team of Lufthansa, the leniency applicant in the air cargo conspiracy.
Monday, July 21, 2014
From The New York Times:
In the case that ended on Monday, prosecutors said that after Mr. Tazhayakov and another friend, Dias Kadyrbayev, realized Mr. Tsarnaev was a suspect in the bombing, they removed items including a backpack and a laptop from Mr. Tsarnaev’s dorm room, and agreed to throw out the backpack. The men attended the University of Massachusetts Dartmouth. The jury found Mr. Tazhayakov guilty in connection with the removal of the backpack, but not the laptop.
. . .
Prosecutors asserted that he was contacted by Mr. Kadyrbayev shortly after surveillance photos of the Tsarnaev brothers were released by the F.B.I. on April 18 — three days after the bombing. The government contended that the two met and looked at those photos on Mr. Kadyrbayev’s phone, and that Mr. Kadyrbayev showed Mr. Tazhayakov a text message from Mr. Tsarnaev imploring him to “go to my room and take what’s there.”
|1||791||Not an 'Ebay for Drugs': The Cryptomarket 'Silk Road' as a Paradigm Shifting Criminal Innovation
Judith Aldridge and David Décary-Hétu
University of Manchester - School of Law and University of Montreal - School of Criminology
Date posted to database: 15 May 2014 [first two weeks ago]
|2||318||Katz Has Only One Step: The Irrelevance of Subjective Expectations
Orin S. Kerr
George Washington University - Law School
Date posted to database: 13 Jun 2014
|3||234||Sales Suppression as a Service (SSaaS) & the Apple Store Solution
Richard Thompson Ainsworth
Boston University - School of Law
Date posted to database: 6 Jun 2014 [5th last time]
|4||230||The Brave New World of Cell-Site Simulators
Albany Law School
Date posted to database: 24 May 2014 [3rd last time]
|5||202||The Failure of Mitigation?
Robert J. Smith, Sophie Cull and Zoe Robinson
University of North Carolina School of Law, Independent and DePaul University College of Law
Date posted to database: 8 Jun 2014 [7th last time]
|6||185||Group Agency and Legal Proof; or, Why the Jury is an 'It'
Michael S. Pardo
University of Alabama School of Law
Date posted to database: 18 May 2014 [9th last time]
|7||137||Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System
CUNY School of Law
Date posted to database: 16 May 2014 [new to top ten]
|8||129||Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law
Markus D. Dubber
University of Toronto - Faculty of Law
Date posted to database: 14 May 2014 [new to top ten]
|9||128||Psychological Perspectives: Cognition and Decision Making
Keith A. Findley and Barbara O'Brien
University of Wisconsin Law School and Michigan State University - College of Law
Date posted to database: 20 May 2014 [new to top ten]
|10||124||When Do State Laws Determine ERISA Plan Benefit Rights?
Law Offices of Albert Feuer
Date posted to database: 22 May 2014 [new to top ten]
From The Washington Post:
According to prosecutors, the company knew the shipping services it provided to two Internet pharmacies ran afoul of the law.
“FedEx knew that it was delivering drugs to dealers and addicts,” said a press release from the U.S. Attorney’s Office of the Northern District of California.
The company didn’t just deny the charges — it said that monitoring packages for illegal substances isn’t its job.
Saturday, July 19, 2014
This post at Crime & Consequences seems to infer that deterrence arguments are always correct from the fact that deterrence arguments are sometimes correct, but it does report on an interesting example from the Christian Science Monitor:
In 2011, 237 ships were attacked by pirates around northeast Africa. So far this year there have been seven attacks which all failed. What happened? Warships were dispatched to patrol the area and the shipping companies hired armed security guards to repel the pirates. The pirates who have been captured have been prosecuted and imprisoned. Interviews with gang leaders who had previously managed the pirates and the pirates themselves reveal that, due to the increased consequences for piracy, it is no longer worth the risk.
Friday, July 18, 2014
Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.
Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence. This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.
Adam Lamparello and Charles E. MacLean (Indiana Tech - Law School and Indiana Tech Law School) have posted Riley v. California: Privacy Still Matters, but How Much and In what Contexts? on SSRN. Here is the abstract:
Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand — and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private.
We are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of citizens who have done nothing wrong, who are driving to work while talking to their spouses, or who are using their cell phones to call a loved one in the hospital. And the Government has the power to know where you are — and record the numbers you are calling. Unless it has a good reason for doing so — often referred to as probable cause or reasonable suspicion — this practice should have no place in a society that values civil liberties.
Noah Buckley , Timothy Frye , Scott Gehlbach and Lauren McCarthy (Columbia University - Department of Political Science , Columbia University - Department of Political Science , University of Wisconsin-Madison and University of Massachusetts at Amherst) have posted Cooperating with the State: Evidence from Survey Experiments on Policing in Russia and Georgia on SSRN. Here is the abstract:
What factors affect citizens' willingness to cooperate with the state? We explore this question through a study of citizens' willingness to report crimes to the police, a quintessential form of cooperation with the state apparatus, using data from survey experiments conducted in Russia in December 2012 and Georgia in June 2013. We find that citizens' willingness to cooperate with the police is strongly influenced by the nature of the crime in both countries but not generally by instruments that might be manipulated to encourage greater reporting. Moreover, notwithstanding large differences in the nature and success of police reform in Russia and Georgia, we find few systematic cross-country differences in treatment effects. These results suggest skepticism about the ability of governments to easily engineer cooperation with the state. We do, however, find strong effects of one instrument under state control: the guarantee of anonymity to bystanders who report crimes.
Thursday, July 17, 2014
Jurist has the story:
A judge for the US District Court for the Central District of California [official website] on Wednesday struck down [order] California's death penalty, finding that it violates the Eighth Amendment [text] to the US Constitution. US District Judge Cormac Carney ruled on a petition by death row inmate Ernest Dewayne Jones, who was sentenced to death in 1995. Carney found that the lengthy delays create uncertainty for death row inmates, amounting to cruel and unusual punishment.
When a fatal traffic accident happens, we expect the local police and prosecutors to handle the investigation and criminal charges. When a fatal airplane crash occurs however, we turn instead to the National Transportation Safety Board. The reason is that air crashes are complicated and the NTSB has vast expertise. Without that expertise, investigations falter. We need look no further than the mess made by Malaysian authorities in the search for Flight 370 to see the importance of expertise in handling complicated investigations and processes. It is easy to point to a similar series of mistakes by local prosecutors and defense attorneys in many death-penalty cases around the country. If we are to continue utilizing capital punishment in the United States, the death-penalty system should follow air crash model, not the car crash model. Capital cases should be handled by an elite nationwide unit of prosecutors and investigators who travel to capital murder sites the way the NTSB travels to airplane and other catastrophic crashes. As the number of death sentences dwindles each year, states have incentive to enter into an NTSB model that allows them to continue using capital punishment without having to handle the complicated cases themselves. This symposium essay argues that capital punishment as currently conducted at the local level is failure, but that the death penalty can be justified if carried out by an elite, national team of lawyers and investigators.
Brennan T. Hughes has posted A Statutory Element in Exile: The Crucial 'Corrupt Intent' Element in Federal Bribery Laws on SSRN. Here is the abstract:
This article focuses on the word "corruptly" found in many bribery statutes, including 18 U.S.C. § 201. I argue that the adverb constitutes an independent element of the crime, and its presence requires the jury to summon its moral intuition to determine whether the behavior that satisfies the other elements of the statutory crime was performed with evil intent. I pay special attention to the problem of campaign contributions as bribes.
It is unfortunate that many courts have effectively read the word "corruptly" out of the statute. The culprit is the Supreme Court’s opinion in Sun-Diamond.
Wednesday, July 16, 2014
Radley Balko has this piece at The Washington Post, providing several examples of the use of the "past exonerative” tense that are silly enough to make you wonder how even a PR person could think they made things better. In part:
Contrast that with how the LAPD has described a few recent shootings by LAPD officers:
When the officers arrived they were confronted by a Hispanic male armed with a sword. The officers attempted to take the suspect into custody by using a taser but it was ineffective. The suspect then ran towards the officers still armed with the sword and an officer-involved-shooting occurred.
There was a particularly egregious example of this with the L.A. Sheriff’s Department last April. While responding to reports of a stabbing, LASD deputies shot and killed 30-year-old John Winkler. In an initial press release, the department said Winkler “aggressed the deputies and a deputy-involved shooting occurred.” Note that Winkler’s actions were put in the active voice, while the officers’ actions were put in the passive.
The post is at Real Clear Policy. In part:
[W]hat's most shocking is the incredible spike in the rate at which black men with no high-school degree are incarcerated. And two other things stood out to me on a closer inspection: One, the ratio of black to white incarceration seems to have grown over the years, at least in some measures, and two, at every single point in time represented in every one of these six charts, a white male high-school dropout was less likely to be incarcerated than the average black man.
Kim Shayo Buchanan (USC Gould School of Law) has posted When Is HIV a Crime? Sexuality, Gender and Consent (99 Minnesota Law Review, Issue 4, 2014, Forthcoming) on SSRN. Here is the abstract:
HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception — including deceptions that may jeopardize the partner’s health — are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justify singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The inconsistency of HIV laws with their ostensible rationales, their arbitrary inclusions and exclusions, and the striking disparities in HIV prosecutions all tend to raise suspicion that discriminatory impulses may be at work.
Marie-Eve Sylvestre (University of Ottawa - Civil Law Section) has posted Narratives of Punishment: Neoliberalism, Class Interests and the Politics of Social Exclusion (7(2) European Journal of Homelessness 363-369, 2013) on SSRN. Here is the abstract:
This is a response piece to Eoin O'Sullivan's article "Varieties of Punitiveness in Europe: Homeless and Urban Marginality" in which O'Sullivan challenges the grand narrative according to which the punitive turn in Europe can be explained by reference to neoliberal policies originating from the United States or to socio-economic and cultural changes associated with late modernity. Instead, O'Sullivan suggests that we should rather speak of varieties of punitiveness based on “distinctive cultural, historical, constitutional and political conditions” in Europe (p. 75) and that the adoption of punitive measures developed alongside more inclusionary measures adopted by a majority of EU member States relying on relatively generous social democratic welfare regimes. While I agree with most of O'Sullivan's analysis, I make two arguments in response. First, although neoliberalism and theories such as broken windows cannot directly explain the creation and enforcement of punitive measures, they certainly have been used as legitimating discourses to justify existing repressive practices worldwide. Moreover, structural constructivits explanations to the management of homelessness and urban marginality remain useful to build local relationships and see how they interact with global narratives. Second, we should acknowledge the existence of relief programmes and public welfare policies historically and in the modern era, but we should also remember that they are often neutralized by counterproductive punitive strategies.The tensions and ambivalence between inclusiveness and exclusiveness may be explained by reference to the distinction between the deserving and underserving poor.
Tuesday, July 15, 2014
"Better that ten guilty persons escape, than that one innocent suffer," William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This "Blackstone principle" accords with most people’s deeply felt intuitions about criminal justice.
This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.
From the Wall Street Journal:
A loophole in Rhode Island law that effectively decriminalized indoor prostitution in 2003 also led to significant decreases in rape and gonorrhea in the state, according to a new analysis published by the National Bureau of Economic Research.
“The results suggest that decriminalization could have potentially large social benefits for the population at large – not just sex market participants,” wrote economists Scott Cunningham of Baylor University and Manisha Shah of the University of California, Los Angeles, in a working paper issued this month.