Thursday, June 13, 2013
Spencer & Petersilia on California Victims' Rights in a Post-Realignment World
Jessica Spencer and Joan Petersilia (Stanford Law School and Stanford University) have posted Voices from the Field: California Victims’ Rights in A Post-Realignment World (Federal Sentencing Reporter, Vol. 25, No. 4, 2013) on SSRN. Here is the abstract:
On October 2, 2011, Assembly Bill 109, the 2011 Public Safety Realignment, went into effect and comprehensively changed the way California manages its criminal justice system. AB 109 shifted the primary responsibility for managing non-serious, non-sexual, non-violent offenses to the counties, meaning that thousands of offenders are now serving their time in county jail rather than state prison. Nearly every county and state level criminal justice agency was involved in the design and implementation of Realignment, in order to ensure that every need was met. Victims, however, were not at the table.
This article attempts to bring victim service providers back into the conversation surrounding Realignment. We conducted interviews with victim service providers on the ground to find out how Realignment has affected their jobs, and we got two resounding answers.
Saks et al. on the Impact of Neuroimages in Capital Sentencing
Michael J. Saks , N. J. Schweitzer , Eyal Aharoni and Kent Kiehl (Arizona State University (ASU) - Sandra Day O'Connor College of Law , Arizona State University , Department of Psychology and University of New Mexico) have posted The Impact of Neuroimages in the Sentencing Phase of Capital Trials (Forthcoming, Journal of Empirical Legal Studies) on SSRN. Here is the abstract:
Although recent research has found that neurological expert testimony is more persuasive than other kinds of expert and non-expert evidence, no impact has been found for neuroimages beyond that of neurological evidence sans images. Those findings hold true in the context of a mens rea defense and various forms of insanity defenses. The present studies test whether neuroimages afford heightened impact in the penalty phase of capital murder trials.
Opinion rejecting per se reversal when judge participates in plea bargainingJustice Ginsburg delivered the opinion for the Court in United States v. Davila. Justice Scalia, joined by Justice Thomas, concurred in part and concurred in the judgment.
Wednesday, June 12, 2013
Armstrong on Lippke on the Ethics of Plea Bargaining
Sarah Armstrong (Glasgow University) has posted Capacity as Philosophy: A Review of Richard Lippke’s, The Ethics of Plea Bargaining on SSRN. Here is the abstract:
Plea bargaining is a response to capacity overload in the criminal justice system. It both preserves and belies the right to trial, making possible its glorious display but only by denying it in most cases. While plea bargaining has been documented and analyzed copiously in historical, sociological and legal terms, its ethical status as an institutional practice are hazy. Richard Lippke offers an account of plea bargaining that draws on the normative debates over responsibility, culpability and desert, in aid of a holistic proposal for a morally defensible system of pre-trial adjudication. In proposing an ethical system of plea bargaining, and working through the normative challenges to this, two bigger questions become visible. These are: what are the implications of developing, in essence, an ethics of efficiency, and, how should the criminal justice system be held to account for the inequalities (and iniquities) that exist before and outside it? In this review essay, I show how these questions are constructed in the book and make some attempt at analysing them, thus engaging with the more urgent and general issue of the complicated relationship of the ideal to the real when it comes to penal practice.
Dubber on the MPC, Legal Process, and the Alegitimacy of American Penality
Markus D. Dubber (University of Toronto - Faculty of Law) has posted The Model Penal Code, Legal Process, and the Alegitimacy of American Penality on SSRN. Here is the abstract:
The Model Penal Code, drafted under the auspices of Herbert Wechsler, is the most significant text in the history of American criminal law. Yet, in an important and revealing sense, it is not a foundational text in modern criminal law. What’s more, it is significant precisely because it is not foundational.
In this essay, I try to capture the significance of the Model Penal Code — or to call it by its full name, the Model Penal and Correctional Code — by explaining why it is not foundational.
Tuesday, June 11, 2013
Findley on Judicial Gatekeeping of Suspect Evidence
Keith A. Findley (University of Wisconsin Law School) has posted Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence (Georgia Law Review, Vol. 47, No. 723, 2013) on SSRN. Here is the abstract:
The growing number of wrongful convictions exposed over the past two-and-a-half decades, and the research that points to a few recurring types of flawed evidence in those cases, raise questions about the effectiveness of the rules of evidence and the constitutional admissibility standards that are designed to guard against unreliable evidence. Drawing on emerging empirical data, this Article concludes that the system can and should be adjusted to do a better job of guarding against undue reliance on flawed evidence. The Article first considers the role of reliability screening as a constitutional concern. The wrongful convictions data identify what might be called “suspect evidentiary categories” — a few types of evidence (eyewitness identifications, confessions, forensic science, and snitch testimony) that are both recurring features of wrongful convictions and not otherwise susceptible to correction through traditional trial mechanisms and that, therefore, can and should be subjected to heightened scrutiny for reliability under the Due Process Clause.
Chemerinsky on Gideon
Erwin Chemerinsky (University of California, Irvine School of Law) has posted Lessons from Gideon (Yale Law Journal, Vol. 122, 2013, Forthcoming) on SSRN. Here is the abstract:
Why has the promise of Gideon gone largely unfulfilled and what can be learned from this? Gideon was an unfunded mandate to state governments, requiring them to provide the money to ensure competent counsel for all criminal defendants facing possible prison sentences. Gideon failed to provide any enforcement mechanism to ensure adequate funding and no subsequent cases have done so. Nor did Gideon recognize that providing an attorney is not sufficient; it must be a competent lawyer. The Supreme Court has made it so difficult to demonstrate ineffective assistance of counsel that those who cannot afford an attorney often are saddled with incompetent counsel and are left with no remedy. Simply put, money matters in fulfilling Gideon’s promise and the Court provided no way of ensuring adequate funding.
Adelman on Mass Incarceration and the Sentencing Commission
Lynn Adelman (U.S. District Court - Eastern District of WI) has posted What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration (Michigan Journal of Race & Law, Forthcoming) on SSRN. Here is the abstract:
The United States presently incarcerates about 2.3 million people. We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners. Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.
Monday, June 10, 2013
Bibas on Shrinking Gideon and Expanding Alternatives to Lawyers
Stephanos Bibas (University of Pennsylvania Law School) has posted Shrinking Gideon and Expanding Alternatives to Lawyers (Washington and Lee Law Review, Vol. 70, p. 1287, 2013) on SSRN. Here is the abstract:
This essay, written as part of a symposium at Washington and Lee Law School entitled Gideonat 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for the middle class, let alone the poor.
Leonard & Dieter on Unconvicted Conduct in Federal Sentencing
Gerald Leonard and Christine Dieter (Boston University School of Law and Boston University) have posted Punishment Without Conviction: Controlling The Use of Unconvicted Conduct In Federal Sentencing (Berkeley Journal of Criminal Law 17:2 Fall 2012) on SSRN. Here is the abstract:
Federal sentencing law is widely applied to punish offenders not only for the offenses of which they have been convicted, but also, in the same proceeding, for offenses of which they have not been convicted. Unlike many scholars, we accept that federal courts can, in the right circumstances, legitimately enhance sentences for facts and conduct found at sentencing, even when those facts and conduct constitute uncharged offenses or even charges on which the defendant actually won an acquittal. But we argue that in identifiable cases, the use of such sentencing facts does cross the line from appropriate contextualization of the offense of conviction to punishment for a separate offense of which the defendant has never been convicted. We demonstrate that crossing this line contravenes the Sentencing Reform Act, the Federal Sentencing Guidelines, and the Constitution. We then offer a principle and a mode of analysis for ensuring that courts punish only for offenses of conviction, even as they do substantial fact-finding at sentencing. We examine cases of federal sentencing for second-degree murder to explain how this principle works and then explain the benefits and challenges of applying the principle more generally.
Opinion finding ex post facto clause violation in change of discretionary federal sentencing guidelinesJustice Kagan delivered the opinion for the Court in Peugh v. United States. Justice Thomas dissented, joined by the Chief Justice and Justices Scalia and Alito. Justice Alito dissented in an opinion joined by Justice Scalia.
Sunday, June 9, 2013
Top-Ten Recent SSRN Downloads
|1||408||Knives and the Second Amendment
David B. Kopel, Joseph Olson, Clayton E. Cramer,
Independence Institute, College of Western Idaho, Hamline University - School of Law,
Date posted to database: March 24, 2013 [2nd last week]
|2||375||Background Checks and Murder Rates
Clayton E. Cramer,
College of Western Idaho,
Date posted to database: April 12, 2013 [3rd last week]
|3||216||Antitrust Corporate Governance and Compliance
Rosa M. Abrantes-Metz, D. Daniel Sokol,
Global Economics Group, LLC, University of Florida - Levin College of Law,
Date posted to database: April 10, 2013 [5th last week]
|4||212||Discovery and Darkness: The Information Deficit in Criminal Disputes
University of Wisconsin Law School,
Date posted to database: May 9, 2013 [6th last week]
|5||176||Federal Public Defense in an Age of Inquisition
Federal Defenders of New York,
Date posted to database: May 2, 2013 [7th last week]
|6||152||Effective Plea Bargaining Counsel
American University, Washington College of Law,
Date posted to database: April 20, 2013 [8th last week]
|7||112||Crime in Cyberspace: Offenders and the Role of Organized Crime Groups
Peter Grabosky, Roderic Broadhurst,Brigitte Bouhours, Mamoun Alazab,Steve Chon, Chen Da,
Australian National University (ANU), Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University, Australian National University (ANU), Australian National University Cybercrime Observatory (ANU) - Regulatory Institutions Network (RegNet) , Australian National University (ANU) - School of Regulation, Justice and Diplomacy,
Date posted to database: February 4, 2013 [new to top ten]
|8||105||Rape Law in India: Problems in Prosecution Due to Loopholes in the Law
Amity Law School,Delhi(IP University),
Date posted to database: April 15, 2013 [new to top ten]
|9||105||Transplant Tourism: The Ethics and Regulation of International Markets for Organs
I. Glenn Cohen,
Harvard Law School,
Date posted to database: April 22, 2013 [new to top ten]
|10||103||Implicit Racial Bias in Public Defender Triage
L. Song Richardson, Phillip Atiba Goff,
University of Iowa - College of Law, UCLA Department of Psychology,
Date posted to database: May 3, 2013 [new to top ten]
Saturday, June 8, 2013
Jackson et al. on Trust and Legitimacy Across Europe
Jonathan Jackson , Jouni Kuha , Mike Hough , Ben Bradford , Katrin Hohl and Monica M. Gerber (London School of Economics & Political Science: Department of Methodology , London School of Economics and Political Science , University of London - Institute for Criminal Policy Research , University of Oxford - Centre for Criminology , City University London and London School of Economics & Political Science - Methodology Institute) have posted Trust and Legitimacy Across Europe: A FIDUCIA Report on Comparative Public Attitudes Towards Legal Authority on SSRN. Here is the abstract:
FIDUCIA (New European Crimes and Trust-based Policy) seeks to shed light on a number of distinctively ‘new European’ criminal behaviours which have emerged in the last decade as a consequence of both technology developments and the increased mobility of populations across Europe. A key objective of FIDUCIA is to propose and proof a ‘trust-based’ policy model in relation to emerging forms of criminality – to explore the idea that public trust and institutional legitimacy are important for the social regulation of the trafficking of human beings, the trafficking of goods, the criminalisation of migration and ethnic minorities, and cybercrimes. In this paper we detail levels of trust and legitimacy in the 26 countries, drawing on data from Round 5 of the European Social Survey. We also conduct a sensitivity analysis that investigates the effect of a lack of measurement equivalence on national estimates.
Friday, June 7, 2013
Schroeder on Factoring the Seriousness of the Offense into Fourth Amendment Equations
William A. Schroeder (Southern Illinois University at Carbondale - School of Law) has posted Factoring the Seriousness of the Offense into Fourth Amendment Equations: Strip Searches in Detention Facilities -- Atwater Strikes Again (Akron Law Review, Vol. 46, No. 2, 2013) on SSRN. Here is the abstract:
This article uses the Court's 2012 decision in Florence v. Board of Chosen Freeholders to discuss the impact of the Supreme Court's decision in Atwater v. City of Lago Vista on other areas of search and seizure law. In allowing the police to make custodial arrests for any offense however minor, the Atwater Court reached a result that was contrary to the intentions of the Framers, and which, in a very real sense, totally nullified the Fourth Amendment in most settings outside the home. Much of what is wrong with the Court's decision in Atwater is its failure to recognize the profound consequences of custodial arrest. If a person charged with a minor crime is subjected to custodial arrest, that arrest will, in most cases, be the most significant consequence suffered by the arrestee as a result of that offense. A custodial arrest is an awesome and frightening experience. Florence allows the police to add another major consequence — a strip search — to that experience.
Duke on the Future of Marijuana Regulation
Steven B. Duke (Yale Law School) has posted The Future of Marijuana in the United States (Oregon Law Review, Vol. 91, 2013) on SSRN. Here is the abstract:
There are striking similarities in the failed movement to repeal marijuana prohibition in the 1970s and the efforts underway today. A major difference is that the merits of repeal are far clearer today than they were forty years ago. This article discusses some of the reasons why marijuana prohibition cannot be justified, including the myriad ways in which marijuana prohibition encourages serious crime against victims having no connection to marijuana. It explains the limited long-term value of decriminalization versus regulated legalization, which should be the ultimate objective of reformers. Possible treaty constraints on federal reforms are explored. The limitations and uncertainties inherent in the incompatibility of state-level permissiveness and federal prohibition are also addressed. Reformers are advised to intensify their efforts to replace prohibition with regulation at both state and federal levels.
Fadel on Theology and Torture
Mohammad Fadel (University of Toronto - Faculty of Law) has posted Theology, Torture and the United States: Do Abrahamic Religions Have Anything Meaningful to Say? (The Muslim World. Volume 103, Issue 2, pages 223–228, April 2013) on SSRN. Here is the abstract:
Despite the strong normative commitments of the US legal system to the prohibition of torture, the events of 9/11 and the subsequent declaration of a war on terror quickly made short shrift of this consensus; torture became an acceptable tool of statecraft and even popular culture embraced torture as an acceptable tool to be used in the battle against terrorists. This essay shows that this is not the first time that US practice has deviated in substantial measure from its professed ideals, and argues that Abrahamic religion – by refusing cooptation at the hand of the state – has a particularly important role to play in ensuring that states adhere to their moral commitments, even when it may be convenient not to do so.
"Vermont decriminalizes marijuana possession"
Vermont Governor Peter Shumlin [official website] signed a bill[H.200, PDF] on Thursday decriminalizing possession of small amounts of marijuana. Vermont became the seventeenth state in the US [Reuters report] to decriminalize marijuana, adding to a growing trend of more lenient drug laws and regulations. Under the new legislation possession of less than one ounce of marijuana (28.3 grams) would be treated as a civil penalty, replacing jail time with a fine similar to one for a traffic ticket. Additionally anyone under the age of 21 caught with small amounts of marijuana would be treated the same as if they were in possession of alcohol. Upon signing the bill Shumlin emphasized the importance of shifting state resources [press release] from drugs such as marijuana to more addictive and harmful opiates like heroin and meth.
"Obama Calls Surveillance Programs Legal and Limited"
From the New York Times, summarizing this week's revelations and reporting on the President's defense of the system. In part:
WASHINGTON — President Obama on Friday offered a robust defense of the government surveillance programs revealed this week, and sought to reassure the public that his administration has not become a Big Brother with eyes and ears throughout the world of online communications.
“Nobody is listening to your telephone calls,” Mr. Obama said, delivering a 14-minute answer to two questions about the surveillance programs at an event that was initially supposed to be devoted to the health care law. “That’s not what this program is about.”
. . .
Under the classified program revealed Thursday, the federal government has been secretly collecting information on foreigners overseas for nearly six years from the nation’s largest Internet companies in search of national security threats. The revelation came just hours after government officials acknowledged a separate seven-year effort to sweep up records of telephone calls inside the United States.
Thursday, June 6, 2013
Blenkinsopp on Dangerousness, the Civil-Criminal Distinction, and Sex Offenders
Alexander J. Blenkinsopp has posted Dangerousness and the Civil-Criminal Distinction: Another Reason to Rethink the Indefinite Detention of Sex Offenders (Connecticut Law Review, Vol. 45, CONNtemplations, 2012) on SSRN. Here is the abstract:
This Essay builds upon the conclusions of Professor Vars in his Article, "Rethinking the Indefinite Detention of Sex Offenders." Focusing on the faultiness of an actuarial tool often used to assess dangerousness, Vars argues convincingly that the predictions of future dangerousness in sex offender civil commitment hearings are deeply flawed. This Essay contends that Vars’s findings also undermine the "civil" label attached to those proceedings. Without that label, it becomes much more difficult to justify lower procedural safeguards in sex offender civil commitment hearings than in criminal trials. This Essay also suggests that scholars such as Vars who focus on the scientific dimension of civil commitment would be well-served to bear in mind how legislatures and courts have long exploited the "civil" classification as part of a longstanding and problematic "legal labeling game."
Levin on De-Naturalizing Criminal Law
Benjamin Levin has posted De-Naturalizing Criminal Law: Of Public Perceptions and Procedural Protections (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:
In this essay, I examine and challenge the rhetorical trope of the guilty going free by emphasizing the institutional and political intricacies that comprise the criminal justice system and necessarily under-gird a determination of “guilt”. My goal, at its essence, is to de-naturalize the criminal law and discussions of the criminal justice system in the context of this symposium. I aim to emphasize that a guilty verdict is the result of a series of (politically-inflected) decisions about how to draft criminal statutes, how to structure a trial, and how to select a jury. De-naturalizing criminal law is, of course, a massive project and is in many ways at the core of much work being done by criminologists and others approaching criminal law from interdisciplinary perspectives, not to mention those generally concerned with the lessons of American legal realism and later post-realist critical methodologies. Ultimately, in this essay, I argue that our expanding police state and culture of criminalization are rooted in a misguided view of the criminal law — a view that ignores the political economy and institutional dynamics of the criminal justice system and instead imagines a space of moral clarity and emotional vindication where guilt and innocence exist independently of legislative compromise and where criminality exists independent of state, politics, or law.