Friday, February 17, 2017
From The New York Times:
The detectives told a sergeant in the 33rd Precinct that they had encountered a man standing in a hallway holding a gun, according to court records. Detective Cordoba told an assistant district attorney that she then pulled a gun from the man’s waistband and handed it to Detective Desormeau, who removed several bullets.
. . .
But prosecutors said that the gun had been found in another room in the apartment, not in the man’s waistband. An investigation by the Police Department’s Internal Affairs Bureau found witness interviews, surveillance camera footage and text messages from Detective Desormeau that conflicted with the detectives’ account.
Allen D. Madison (University of South Dakota Law School) has posted The Legal Consequences of Noncompliance with Federal Tax Laws (Tax Lawyer, Vol. 70, No. 1, p. 367, 2016) on SSRN. Here is the abstract:
This Article addresses the legal consequences a taxpayer should consider when deciding whether to comply with the basic requirements of the federal income tax laws. A taxpayer considering noncompliance should consider the government’s authority to assert criminal liability, impose civil tax penalties, and forcibly collect any unpaid tax. Although there are numerous criminal tax offenses, the potential offenses that may affect a taxpayer’s decision whether to comply are the failure to file and failure to pay misdemeanors, tax perjury felony, and attempted tax evasion felony. Similarly, the civil tax penalties that are intended to deter basic noncompliance are the failure to file addition to tax, failure to pay addition to tax, and civil fraud penalty. The remaining penalties (over 100 of them) target various types of behavior engaged in by people other than the taxpayer or that occur after a taxpayer has already decided to file a tax return. Thus, a taxpayer deciding whether to file a tax return or attempt to defraud the government need only consider these three. A taxpayer must also consider that the government is authorized, after satisfying certain procedural requirements, to forcibly collect the tax the taxpayer owes.
Christopher Slobogin (Vanderbilt University - Law School) has posted Manipulation of Suspects and Unrecorded Questioning: After 50 Years of Miranda Jurisprudence, Still Two (or Maybe Three) Burning Issues (Boston University Law Review, 2017) on SSRN. Here is the abstract:
Fifty years after Miranda, courts still do not have clear guidance on the types of techniques police may use during interrogation. While first generation tactics (a.k.a. the third degree) are banned, second generation tactics such as those found in the famous Reid manual continue to be used by interrogators. The Supreme Court has sent only vague signals as to which of these second generation techniques, if any, are impermissible, and has made no mention of newly developed third generation tactics that are much less reliant on manipulation. This article divides second generation techniques into four categories: impersonation, rationalization, fabrication and negotiation. After concluding, based on a review of field and laboratory research, that these techniques might well have superior “diagnosticity” to third generation techniques — and thus that police might rationally want to continue using them — it argues that the Court’s Fifth Amendment and due process jurisprudence prohibits negotiation but permits impersonation, rationalization and fabrication. At the same time, the article recognizes that these techniques can produce false confessions; accordingly, it develops evidentiary principles for determining how courts might make use of expert testimony about factors that reduce the probative value of statements obtained during interrogation (although it also questions the methodology of much of the research that might form the basis for such testimony).
Thursday, February 16, 2017
From Minnesota Public Radio, via NACDL news scan:
In upholding that decision Wednesday, the Minnesota Supreme Court said the woman, who was suspected of possessing meth, had no greater expectation of privacy when visiting another home than in her own home. [Updated]
The court noted, however, the U.S. Supreme Court has never directly addressed the issue of whether a guest can assert privacy rights in someone else’s home.
Hate crimes rose by 50 percent in some areas England and Wales between July 2015 and July 2016, according to a newreport by the Press Association [BBC report] Wednesday. The new analysis supplements a report [text, PDF] from the Home Office, released in October, that showed an increase in hate crimes. The report defined hate crime to be any crime including "any group defined by race, colour, nationality or ethnic or national origin, including countries within the UK, and Gypsy or Irish Travellers. It automatically includes a person who is targeted because they are an asylum seeker or refugee as this is intrinsically linked to their ethnicity and origins." The most hate crimes were reported in to the London, Manchester, West Yorkshire, and West Midlands police departments, but Dorset and Nottinghamshire faced the largest increases, 100 percent and 75 percent, respectively. Annex A of the October report states that the June decision of the UK to leave the EU [JURIST report] saw a spike in hate crimes.
Courts are notoriously skeptical of recantation evidence, in part because of finality concerns, but also because they tend to treat such statements as less reliable than the original, in-court testimony that is being recanted. This essay argues that such skepticism is blind to what the essay refers to as the “perjury sword” – credible threats by police and prosecutors to bring perjury charges against witnesses who wish to recant prior statements. As illustrated in numerous cases, including many that resulted in formal exonerations, state use of the perjury sword can all-too-easily induce false testimony and contribute to wrongful convictions.
This essay argues for reforming our approach to recantation evidence.
Bradley X. Barbour (Fordham University, School of Law, Students) has posted Big Budget Productions with Limited Release: Video Retention Issues with Body-Worn Cameras (Fordham Law Review, Vol. 85, No. 4, 2017) on SSRN. Here is the abstract:
Since 2013, there has been growing support for police body-worn cameras in the wake of several high profile and controversial encounters between citizens and law enforcement. The federal government has justified budgetary measures funding body-worn camera programs as a means to facilitate trust between law enforcement and the public through the objectivity of video footage — a sentiment supported by many lawmakers advocating for implementation of this technology.
These policy goals, however, are stymied by a deficiency of police department policies and state statutes regulating the retention of footage, and close adherence of states to the precedent of Arizona v. Youngblood, which holds that the destruction of potentially exculpatory evidence by the government not committed in “bad faith” does not violate due process. This Note analyzes the current landscape of body-worn camera video retention, and argues for reform at the judicial and statutory level on how footage is preserved.
Marvin Zalman (Wayne State University) has posted Qualitatively Estimating the Incidence of Wrongful Convictions (Criminal Law Bulletin, Vol. 48, No. 2, pp. 221-279) on SSRN. Here is the abstract:
The article provides a qualitative methodology and estimate for a plausible incidence of wrongful convictions at between one-half-of one percent and two percent of all felony convictions in the United States.
Wednesday, February 15, 2017
A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories. The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified. We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.
Michael L. Perlin and Alison J. Lynch (New York Law School and Disability Rights New York) have posted 'She's Nobody's Child/The Law Can't Touch Her at All': Seeking to Bring Dignity to Legal Proceedings Involving Juveniles on SSRN. Here is the abstract:
Recent Supreme Court decisions declaring unconstitutional both capital punishment (Roper v. Simmons, 2005) and life without parole (Graham v. Florida, 2010) in cases involving juveniles might lead a casual observer to think that we are now in an era in which dignity of juveniles is privileged in the legal system and in which humiliation and shame are subordinated. This observation, sadly, would be wrong.
Inquiries into a range of issues involving juveniles – commitment to psychiatric institutions; trials in juvenile courts; aspects of criminal procedure that, in many jurisdictions, bar juveniles from raising the incompetency status or the insanity defense; waivers that allow juveniles (some younger than 14) to be tried as adults; caselaw that has developed on the question of the validity of Miranda waivers in juvenile cases; conditions in juvenile punishment facilities – reveal that, regularly, juveniles are subject to shame and humiliation in all aspects of the legal system that relate to arrest, trial, conviction and institutionalization, shame and humiliation that are often exacerbated in cases involving racial minorities and those who are economically impoverished.
Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment (Penal Censure (Anthony E. Bottoms & Antje Bois-Pedain, eds., Oxford: Hart, Forthcoming)) on SSRN. Here is the abstract:
The retributive conception of punishment as a process for censuring blameworthy conduct is an important component of a complete theory of punitive justice, but by itself is not enough. Nor are ‘mixed’ theories that incorporate traditional retributive ideas as constraints on pursuit of consequentialist crime prevention goals. If punishment were unidimensional, involved only first offenders convicted of a single offence, and based solely on censuring blameworthy behaviour, theorizing would be easier: offenders should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of others convicted of the same and different offences. In mixed theories, punishments of individuals should never exceed what is deserved relative to the punishments of others. All that would be needed is a sufficiently discriminant ordinal scale of offence seriousness tied to proportionate punishments. Theories of punitive justice, however, cannot be unidimensional. Nor can they be premised on the situations of first offenders, on single offences, or on a single overriding value such as censure. More is at stake. A complete theory of punitive justice must also satisfy the requirements of independently important principles of fairness, equal treatment, and human dignity.
Tuesday, February 14, 2017
Marvin Zalman (Wayne State University) has posted Wrongful Convictions and Criminal Justice: A Challenge and Invitation (Published in ACJS Today The Newsletter of the Academy of Criminal Justice Sciences Volume XLII, Issue 1, (2017)) on SSRN. Here is the abstract:
This article asks: (1) Should criminal justice and criminological research related to wrongful conviction be more extensive?; (2) What is innocence scholarship?; and (3) How have criminologists and criminal justice researchers contributed to the study of wrongful convictions and what are the paths forward? This article is framed by the observation that crime scholars play a small role in innocence scholarship hence the challenge and invitation.
Several theorists argue that blackmail is morally wrong because the blackmail proposal is coercive. These coercion-based views are promising but incomplete. A full explanation of blackmail’s immorality must address both the blackmail proposal and the blackmail agreement. I defend what I call the complex account, on which blackmail is morally wrong because blackmail proposals are coercive and blackmail agreements are fraudulent. The complex account avoids difficulties that beset other coercion-based views and provides a stronger case for why blackmail should be criminalized.
Steven Penney (University of Alberta - Faculty of Law) has posted ‘Chartering’ in the Shadow of Lochner: Guindon, Goodwin and the Criminal-Administrative Distinction at the Supreme Court of Canada (Supreme Court Law Review (2d), Vol. 76, pp. 307-328 (2016)) on SSRN. Here is the abstract:
As a principle of statutory and constitutional interpretation, the state is presumptively entitled to more favourable procedures for establishing administrative wrongdoing than criminal offending. Though this distinction has long been criticized as inflexible and unjust, the Court’s decisions in Guindon v Canada and Goodwin v. British Columbia (Superintendent of Motor Vehicles) further entrenched it. The author argues that the distinction stems from an anachronistic fear that providing adjudicative fairness protections in administrative proceedings would frustrate governments’ ability to regulate economic activity in the public interest. This fear originated in the reaction to the infamous Lochner era when U.S. courts often blocked state efforts to enact and enforce progressive economic legislation. But as legislatures have increasingly relied on administrative and civil enforcement regimes to address forms of wrongdoing previously left to the criminal law, the fear of Lochner has caused undue harm to individual liberty. The author consequently proposes replacing the Court’s rigid and formalistic interpretation of “charged with an offence” in s. 11 of the Charter with one that is more flexible, functional, and purposive and places a greater burden on government to justify elisions of adjudicative fairness norms.
Brandon L. Garrett, Alexander Jakubow and Ankur Desai (University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law) have posted The American Death Penalty Decline (Journal of Criminal Law and Criminology, Vol. 105, 2017) on SSRN. Here is the abstract:
American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer argued today’s death penalty is unconstitutional, noting that from 2004 to 2006, “just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide.” That decline has become more dramatic. Just fifty-one defendants were sentenced to death in 2015 in thirty-eight counties. In 2016, just thirty defendants were sentenced to death in twenty-seven counties. In the mid-1990s, by way of contrast, over three hundred people were sentenced to death in as many as two hundred counties per year. While scholars and journalists have increasingly commented on this decline and speculated as to what might be causing it, empirical research has not examined it. This Article reports the results of statistical analysis of data hand-collected on all death sentencing, by county, for the entire modern era of capital punishment, from 1990 to 2016.
Monday, February 13, 2017
Bidish Sarma (University of California, Berkeley School of Law) has posted Using Deterrence Theory to Promote Prosecutorial Accountability (Lewis & Clark Law Review, Forthcoming) on SSRN. Here is the abstract:
Prosecutors — the most powerful actors in the American criminal justice system — largely avoid accountability for misconduct. To promote fairer processes and results, prosecutors must be held to account for violations of defendants’ due process and fair trial rights and the related ethical rules that help protect those rights. An important thread of scholarly work makes clear the need for effective methods of ensuring prosecutorial accountability. Yet, empirical evidence consistently suggests that prosecutors almost universally evade accountability for infringing upon defendants’ rights. No method seems to address the problem effectually, whether it be internal or external professional discipline, criminal liability, civil liability, electoral accountability, or an even broader conception of accountability — case-specific remedies provided to criminal defendants who fell victim to prosecutorial misconduct. While many have concluded that these modes of accountability have not been up to the task, it appears that few critiques explicitly draw on a reservoir of powerful explanatory and potentially curative tools hidden in plain sight: deterrence theory.
Albert W. Alschuler (University of Chicago Law School) has posted A Nearly Perfect System for Convicting the Innocent (79 Albany L. Rev. 919 (2016)) on SSRN. Here is the abstract:
The statements of lawyers engaged in plea bargaining, empirical scholarship, and economic theory all support the same conclusion: Our system of criminal justice makes it advantageous for almost every innocent defendant to plead guilty. Although a system in which a prosecutor could convict whomever he liked just by pointing might be even more effective than ours in convicting the innocent, ours is nearly perfect. This Article considers the “libertarian” or “freedom of contract” defense of this system — that it is appropriate to convict the innocent when the innocent themselves find it advantageous to enter bargained pleas. It also considers the devices that sometimes are thought to keep bargaining from having the effect it seems designed to produce. These devices include the reluctance of wrongly accused defendants to plead guilty, court rules requiring judges to find a factual basis for a guilty plea, the ethics of prosecutors who say they do not prosecute unless they are personally convinced of the defendant’s guilt, and the ethics of defense attorneys who say they do not permit guilty pleas when their clients maintain their innocence. In practice, defendants often may plead guilty when the offers they receive do not overbalance their chances of acquittal. Defense lawyers have strong personal interests in persuading them to do so, and the greatest pressures to plead guilty may come from these lawyers rather than from prosecutors or judges. The interests of criminal justice officials and practitioners, however, are aligned. In all probability, plea bargaining greatly multiplies the number of wrongful convictions.
Heather Cucolo and Michael L. Perlin (New York Law School and New York Law School) have posted Promoting Dignity and Preventing Shame and Humiliation by Improving the Quality and Education of Attorneys in Sexually Violent Predator (SVP) Civil Commitment Cases on SSRN. Here is the abstract:
In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.
In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity for clients. Effective and competent counsel must be cognizant of how shame and humiliation corrupts our legislation, court proceedings and subsequent management of the sex offender population.
Jonathan Rapping (Atlanta's John Marshall Law School) has posted The Power to Transform is Stronger than the Power to Punish: Public Defenders are the Key to Equal Justice (LOS ANGELES PUBLIC INTEREST LAW JOURNAL, Vol. 6) on SSRN. Here is the abstract:
Those of us who practice and teach in the field of criminal justice are frequently asked by law students interested in helping to reform the criminal justice system whether they can have a greater impact as a prosecutor or a public defender. Frequently they are already leaning towards the view that they can have more power as a prosecutor, for it is widely accepted that prosecutors are the most powerful players in the justice system. However, I think this view underestimates the incredible power public defenders have as the vehicle through which the voice of our most impacted communities can be heard in the system. if we continue to ignore the community voice, true justice cannot be achieved. In this "letter to a social justice attorney" I argue that transforming our justice system requires that these voices are heard and that, therefore, a community of public defenders committed to amplifying the stories of "otherized" communities is critical to systemic reform. This letter provides a counter argument for the student who has repeatedly heard that prosecutors are all-powerful and public defenders are relatively powerless.
Brandon L. Garrett (University of Virginia School of Law) has posted The Crime Lab in the Age of the Genetic Panopticon (Book Review) (Michigan Law Review, Vol. 114, 2017) on SSRN. Here is the abstract:
"Scientific evidence really nails this man to the wall," the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab being shut down and recreated. The Rodriguez case illustrates why the crime lab has entered a time of crisis. I will discuss that case and the larger story of the transformation of the Houston lab, to introduce the first of three wonderful new books that I review here: Sandra Guerra Thompson's Cops in "Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories."