Sunday, September 14, 2014
|1||384||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||344||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014
|3||344||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
|4||223||Why on Earth Do People Use Bitcoin?
Catherine Martin Christopher
Texas Tech University School of Law
Date posted to database: 25 Jul 2014
|5||198||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
|6||189||Intellectual Property Infringement as Vandalism
Irina D. Manta and Robert E. Wagner
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law
Date posted to database: 24 Aug 2014 [new to top ten]
|7||167||Waking the Furman Giant
Sam Kamin and Justin F. Marceau
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 5 Aug 2014 [10th last week]
|8||160||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 [9th last week]
|9||144||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 [8th last week]
Saturday, September 13, 2014
From The New York Times:
In the criminal justice system, however, many of those who routinely handle domestic violence cases say the episode is simply a highly public example of a well-known fact: Violent domestic assaults rarely lead to jail time or serious legal consequences, especially when they involve offenders like Rice, who had no prior record. . . .
Despite decades of increased public attention on domestic violence, many first-time assault cases are still handled as noncriminal matters across the country, legal experts say. Even in New Jersey, one of the states with the most stringent laws and court rules, offenders often walk away with little more than court-ordered counseling in the small percentage of cases that are elevated to involve felony charges, as Rice’s case was.
Body-worn cameras on police officers can increase accountability of police and improve evidence gathering, but if departments are going to use them they must address concerns of officers and the community, according to guidance released by the Justice Department Friday.
. . .
The report makes 33 recommendations to police agencies on implementing body-worn cameras, including determining which officers will wear the cameras, when and where they will record, how to communicate to the community and subjects of the recording, what kind of discretion officers have in recording and what the storage procedures are.
Friday, September 12, 2014
Zane Umsted has posted Deterring Racial Bias in Criminal Justice Through Sentencing (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
In 2013, the American Civil Liberties Union (“ACLU”) published a report revealing stark racial disparities in the national enforcement of marijuana laws. The report suggested that police officers often use their law enforcement discretion to selectively patrol predominantly African American communities. This Note examines this and other methods by which police officers — and prosecutors — can, and frequently do, use their discretionary powers in a racially selective manner. Because the criminal justice system currently provides little institutional protection against discriminatory exercise of police and prosecutorial discretion, this Note proposes a two-step revision to federal sentencing practices to empower federal judges to combat racially biased law enforcement. By removing a provision from the Federal Sentencing Guidelines and adding a component to presentence reports, sentencing judges will gain the discretion necessary to issue lighter sentences to offenders subjected to racially biased law enforcement, which will effectively limit and deter racial bias in the future.
From The New York Times:
The murder trial of the Paralympic star Oscar Pistorius lurched to a close on Friday when he was convicted of culpable homicide in the shooting death last year of his girlfriend, Reeva Steenkamp. But in a case that reflected South Africa’s complicated obsession with race, crime and celebrity, many South Africans found understanding the verdict to be as difficult as trying to fathom exactly what was in Mr. Pistorius’s mind the night he pulled the trigger.
It is unclear yet whether Mr. Pistorius, who was acquitted of the two more serious murder charges against him, will do time in jail. The sentence for culpable homicide, a crime roughly commensurate with involuntary manslaughter, is left to the discretion of the judge and can range from no jail time to, in the most extreme cases, 15 years in prison. Lawyers say that often the sentences are very light.
Murat C. Mungan and Jonathan Klick (Florida State University - College of Law and University of Pennsylvania Law School) have posted Reducing Guilty Pleas Through Exoneree Compensations on SSRN. Here is the abstract:
A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals' plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals' incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.
Elisabeth A. Archer has posted Establishing Principled Interpretation Standards in Iowa's Cruel and Unusual Punishment Jurisprudence (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:
In 2009, the Iowa Supreme Court decided State v. Bruegger, dramatically changing the court’s cruel and unusual punishment precedent under article I, section 17 of the Iowa Constitution. Prior to Bruegger, the court interpreted article I, section 17 in lockstep with federal Eighth Amendment interpretation, deeming the two provisions identical in scope, import, and purpose. However, Bruegger inexplicably altered this precedent by applying article I, section 17 more stringently than the Eighth Amendment. Defendants in Iowa began seeking heightened protection under the Iowa Constitution — protection Bruegger’s new interpretation seemingly afforded. When the Iowa Supreme Court decided State v. Null and State v. Pearson on August 16, 2013, and State v. Lyle on July 18, 2014, it solidified Bruegger’s standardless interpretation and again failed to enunciate a principled basis for interpreting article I, section 17 independent of the Eighth Amendment. These recent cases do not explain what in the Iowa Constitution justifies the new interpretation, or how the new interpretation will be applied to future cases. By evaluating the problems resulting from Null, Pearson, and Lyle, demonstrating several bases supporting adherence to federal interpretation, and suggesting alternative methods of interpretation, this Note demonstrates why the Iowa Supreme Court should reject Null, Pearson, and Lyle’s standardless interpretation and adopt a principled basis for independent interpretation of article I, section 17 in the future.
Thursday, September 11, 2014
Richard W. Wright (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Moore on Causation and Responsibility: Metaphysics or Intuition? (LEGAL, MORAL, AND METAPHYSICAL TRUTHS: THE PHILOSOPHY OF MICHAEL MOORE (Kimberly Ferzan & Stephen Morse, eds., Oxford University Press, 2015 Forthcoming)) on SSRN. Here is the abstract:
This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.
However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.
From Legal Newsline:
Gov. Walker, a Republican, is at the center of a sweeping and secretive four-year criminal investigation by Milwaukee District Attorney John Chisholm, a Democrat, and other prosecutors, that is now focused on alleged “illegal coordination” of campaign funding by the governor and 29 independent nonprofits — virtually the entire conservative movement in Wisconsin.
Those conservatives say that the long-running criminal investigation has unconstitutionally prevented them and their allies from participating in politics and tilted the political field to favor Democrats, whose campaign practices are almost identical to the Republicans’ but largely ignored by the prosecutors. The probe, conservatives say, has forced them to pay hundreds of thousands of dollars in legal bills and harassed some of them with pre-dawn raids on their suburban homes that seized cell phones and computers of all family members, including a child’s iPad. Prosecutors imposed “gag orders” to prevent the investigation’s targets from publicly complaining.
. . .
A “John Doe” is a legal proceeding under Wisconsin law that allows prosecutors, with a judge’s approval, to require complete secrecy from any one involved. This “gag order” provision, almost unique in American law, effectively disables targets or witnesses from publicly defending themselves or responding to damaging leaks.
Mark William Osler and Mark W. Bennett (University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)) have posted A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion (7 DePaul Journal for Social Justice 117 (2014)) on SSRN. Here is the abstract:
Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.
Kit Kinports (Penn State Law) has posted Rosemond, Mens Rea, and the Elements of Complicity (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:
The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. This Article attempts to fill the gap in the law and academic literature, analyzing the competing ways in which the elements of the crime in question in Rosemond can be classified. Moving beyond the confines of Rosemond, the Article proposes generally that the mens rea of purpose traditionally required for accomplice liability extend to every conduct element of a crime, as well as to circumstance elements if criminal law narrowly defines the concept of conduct as the defendant’s willed movements. If, however, the line between conduct and circumstance elements is drawn such that conduct is more broadly conceived, this Article would attach the same mens rea vis-a-vis attendant circumstances to both the principal and her accessories. This approach, the Article concludes, appropriately limits accomplice liability to those demonstrating sufficient culpability with respect to the gravamen of the crime and thus preserves the rationales underlying complicity law’s imposition of a relatively onerous mens rea burden on the prosecution.
Wednesday, September 10, 2014
Doug Berman has this post at Sentencing Law & Policy, excerpting an A.P. article. In part:
The Global Commission on Drug Policy said traditional measures in the "war on drugs" such as eradicating acres of illicit crops, seizing large quantities of illegal drugs, and arresting and jailing violators of drug laws have failed. The commission's 45-page report pointed to rising drug production and use, citing the U.N. Office on Drugs and Crime's estimate that the number of users rose from 203 million in 2008 to 243 million in 2012.
The commission includes former U.N. Secretary-General Kofi Annan; the former presidents of Brazil, Chile, Colombia, Mexico, Poland, Portugal and Switzerland; British tycoon Richard Branson and former U.S. Federal Reserve chief Paul Volcker. It was established in 2010 with a stated purpose of promoting "science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies."
Owen D. Jones , Richard J. Bonnie , BJ Casey , Andre Davis , David L. Faigman , Morris B. Hoffman , Read Montague , Stephen Morse , Marcus E. Raichle , Jennifer A. Richeson , Elizabeth S. Scott , Laurence Steinberg , Kim A. Taylor-Thompson , Anthony D. Wagner and Gideon Yaffe (Vanderbilt University - Law School & Dept. of Biological Sciences , University of Virginia - School of Law , Sackler Institute for Developmental Psychobiology , US Court of Appeals - Fourth Circuit , University of California Hastings College of the Law , Second Judicial District Court Judge, State of Colorado , Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute , University of Pennsylvania Law School , Washington University School of Medicine , Northwestern University - Department of Psychology , Columbia University - Law School , Temple University , New York University School of Law , Stanford University - Psychology and Yale Law School) have posted Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission on SSRN. Here is the abstract:
President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations.
The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent can the capacity of neurotechnologies to aid in the administration of criminal justice be enhanced through research?; and 3) in what additional ways might important ethical issues at the intersection of neuroscience and criminal justice be addressed?
Jens David Ohlin (Cornell University - School of Law) has posted Cyber-Causation (CYBERWAR: LAW & ETHICS FOR VIRTUAL CONFLICTS, Jens David Ohlin, Claire Finkelstein, and Kevin Govern, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.
Megan Quattlebaum has this post at The Huffington Post. In part:
In the criminal justice reform arena, states have taken the lead. From rolling back harsh mandatory minimum sentences (at least 29 states have done so since 2000) to decreasing their prisons' populations (New York's declined 26 percent between 1999 and 2012, and violent crime rates fell) states are taking steps to be smart on crime.
Once a leader, the federal government now lags behind the states in criminal justice innovation. Congress has passed some laudable initiatives in recent years, including the Fair Sentencing Act, which reduced the disparity in sentencing for crack and powder cocaine offenses, and the Second Chance Act, which provided funding for reentry services. But the federal prison population nonetheless continues its seemingly inexorable rise, from 25,000 inmates in 1980 to about 219,000 today.
Tuesday, September 9, 2014
This article argues that repeated criminal misconduct, at least in some areas, has the characteristics of a habit or addiction. Curiosity or a transient attraction can lead an offender to commit her first crime. This first infraction will give her a sense of how much she enjoyed it, and whether she has the talent, and stomach, to continue down a path of repeated misconduct. If the feedback is sufficiently positive, the offender may commit a second crime, and possibly a third. At some point, the offender will find herself with the opportunity to commit yet another crime, and realize that the immediate disutility of stopping, of going back into a life as a law-abiding citizen, is too great: she may find that the immediate disutility of foregoing a criminal opportunity is too high. Once the habit takes hold, the offender may continue to commit crimes, even if doing so leads her to suffer large aggregate negative internalities. An offender is thus “addicted to criminal misconduct” if her previous history of misconduct increases the marginal utility of committing a crime in the current period by a sufficient amount; that is, if the immediate disutility from stopping has reached a cut-off point, such that she violates the law notwithstanding the fact that but-for the addiction she would have obeyed the law. The addicted criminal trades off the heightened immediate disutility from obeying the law against the reduction in total utility due to the negative internalities—including expected sanctions. After setting forth the rational criminal addiction theory, the article develops a number of legal implications that follow from the theory.
Florida's ban on texting while driving specifically notes that "a motor vehicle that is stationary is not being operated and is not subject to the prohibition." As The Northwest Florida Daily News has explained, the law "allows texting while stopped at a red light, in a traffic jam or reporting criminal activity."
In other states, the law is less clear. For example, California's texting while driving prohibition merely states "a person shall not drive a motor vehicle" while writing or reading a text message (except if using a hand's free operation). So is being stopped at a stoplight "driving" for purposes of this law? The California Highway Patrol seems to think so, telling San Francisco's KGO-TV that it's not OK to check email or read text messages while at a stoplight or in bumper-to-bumper traffic.
And even in states that explicitly allow or have a stoplight loophole in their texting-while-driving laws, any time being distracted by your phone causes you to impede traffic in a way that creates a dangerous condition for other drivers, such as not going on a green light, you can potentially be cited for distracted driving or even reckless driving.
This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual treatment or punishment.” A dominant strand in the section 12 case law has been the minimal impact the section has had in limiting the proliferation of mandatory minimum sentences in recent years. This paper considers another strand of section 12 case law which has received little attention and which presents a different kind of challenge to the punishment agenda, namely section 12 review of prison conditions and the treatment of prisoners. The paper concludes with some thoughts on the limitations and potential of Charter litigation in the prison context.
Judith Cashmore and Rita Shackel (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted Introduction: Responding to Historical Child Sexual Abuse and the Needs of Survivors (Current Issues in Criminal Justice, Vol. 24, No. 1, pp. 1-4, 2014) on SSRN. Here is the abstract:
The aim of this Special Issue of Current Issues in Criminal Justice is to engage authors and the Journal’s readership in reflection on how the needs of victims and survivors of child sexual abuse can be better recognised and their justice needs responded to appropriately. The articles included in this issue canvass a range of issues from different professional and personal perspectives, and, importantly, brings together insights from both research and practice. The focus is on responses to historical cases of child sexual abuse, that is, cases involving allegations of abuse perpetrated many years earlier - a category of cases that is notoriously difficult to prosecute and for which redress or justice commonly remain elusive.
From The New York Times:
On Monday, Mr. Bratton, surrounded by much of his top leadership, delved into the details of his plan. Every officer would go through a three-day retraining course, on how to talk to an “uncooperative person” in a way that does not escalate into a physical conflict; how to subdue a suspect if the encounter does escalate or if a suspect resists arrest; and how to be sensitive to cultural differences. It would also include a leadership workshop called Blue Courage.
Mr. Bratton said that officers would be expected to retrain regularly in these techniques, as they do with the use of firearms, and that the course would likely evolve over time.