Wednesday, September 24, 2014
John D. Bessler (University of Baltimore - School of Law) has posted Foreword: The Death Penalty in Decline: From Colonial America to the Present (Criminal Law Bulletin, Vol. 50, No 2, 2014, pp. 245-262) on SSRN. Here is the abstract:
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
Ronen Perry and Tal Zarsky (University of Haifa - Faculty of Law and University of Haifa - Faculty of Law) have posted 'May the Odds Be Ever in Your Favor': Lotteries in Law on SSRN. Here is the abstract:
Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of lotteries in numerous legal contexts through the theoretical prism. It also advocates a cautious expansion of the use of lotteries in other contexts, a notion that runs counter to the basic intuition that the law must be committed to reason and certainty. Third, the Article substantiates a jurisprudentially provocative thesis: While random-based schemes can be and are employed in many settings, there is no consistent set of justifications for all applications. The rationalization is highly varied and context-specific.
Tuesday, September 23, 2014
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.
In the recent case of Commonwealth of Pennsylvania v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.
Because the intracorporate conspiracy doctrine prohibits it, the state — as is now typical of both state and federal jurisdictions around the country — was unable to prosecute Monsignor Lynn and the Archdiocese for their involvement in the conspiracy. This failure illustrates the misalignment of current conspiracy law with the way the law should be designed to incentivize employees and organizations to prevent harm from both the commission and the cover-up of crimes.
Monday, September 22, 2014
From Fox News:
The Justice Department on Thursday filed a brief in the case of a male student accused of raping a girl who was allegedly used as bait by an Alabama school to catch the boy after repeated sexual offenses, The Huntsville Times reported.
According to the paper, court records show the girl, 14, was sexually assaulted at Sparkman Middle School in January 2010 after teacher’s aide June Simpson told her to go into the boys’ restroom with the 16-year-old male student, who had reportedly been harassing several girls and asking them to have sex with him.
Simpson reportedly told the girl that the school administration could punish the boy if someone could “catch him in the act.”
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections.
Sunday, September 21, 2014
|1||403||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||376||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 [3rd last week]
|3||359||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014 [2nd last week]
|4||297||A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion
Mark William Osler and Mark W. Bennett
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)
Date posted to database: 1 Sep 2014 [new to top ten]
|5||232||Why on Earth Do People Use Bitcoin?
Catherine Martin Christopher
Texas Tech University School of Law
Date posted to database: 25 Jul 2014 [4th last week]
|6||226||Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team
Stanford Law School - Constitutional Law Center
Date posted to database: 27 Aug 2014 [new to top ten]
|7||222||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 [5th last week]
|8||200||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 [6th last week]
|9||174||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 [7th last week]
|10||164||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 [8th last week]
Saturday, September 20, 2014
Orin Kerr has this post at The Volokh Conspiracy. In part:
Friday, September 19, 2014
SpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Spectacular or Specious? A Critical Review of the Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat (39 T. Marshall L. Rev. 225 (2014)) on SSRN. Here is the abstract:
In the post-9/11 era, debates about the role American prisons play in contributing to “homegrown" or domestic terrorism grow with each passing year. However, much of the debate has been premised on alarmist rationales, political distortions, and plainly faulty analyses. The book, The Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat by criminologist Mark Hamm is an attempt to assess the situation in the United States. As this book represents the first that tackles the question of prisoner radicalization, it is important on that count alone, for it has great potential to influence scholarship, law, and policy. This review critiques the book’s main thesis, which posits that prison conditions are the main cause of prisoner radicalization. Furthermore, it critiques the methods and samples used to substantiate this and other claims. Specifically, the critique shows how lack of proper method and rigorous analysis serves to propagate unfounded beliefs, including that prisons are breeding grounds for jihadist recruitment and for foreign networks like al-Qaeda. Hence, as a primary study of the issue, the book frustrates a better understanding of prisoner radicalization and its implications for institutional and national security. A proper review of the book’s successes and failures helps clarify key concepts and the scope of the problem, and hopefully, lead to better policies and more justice in the correctional context.
Melissa Hamilton (University of Houston Law Center) has posted The Reliability of Assault Victims’ Immediate Accounts: Evidence from Trauma Studies (Stanford Law & Policy Review, Vol. 26, 2015, Forthcoming) on SSRN. Here is the abstract:
The admission of hearsay qualifying as excited utterances, present sense impressions, and statements about mental and bodily conditions are exceptions to the general rule of inadmissibility for hearsay statements. Evidence scholars explain them as being presumably reliable statements as they are generally contemporaneous with an event at issue such that faults with memory and time to lie are remedied. These three exceptions have been particularly depended upon in cases of interpersonal violence in which victims are considered to honestly complain during the occurrence of the assault and in its immediate aftermath. Nonetheless, much recent research in interdisciplinary circles highlights that the impact of trauma has varied consequences upon subjects’ abilities to accurately and fully articulate what just transpired to them. Concurrent neurophysiological reactions to traumatic stress can mediate, alter, or entirely thwart one’s capacity to conceptualize internally, and to clearly verbalize externally, the violent attack. Thus, unlike the hearsay exceptions’ presumption of accuracy, a surfeit of scientific knowledge now shows that violence victims may — or may not — issue in the near term holistic and reliable reports. On the other hand, empirical studies reject the notion that it takes more than a blink of an eye to fabricate a story.
Mary D. Fan (University of Washington - School of Law) has posted Extending Executioner Confidentiality to Lethal Injection Drug Suppliers (95 Boston University Law Review (2015), Forthcoming) on SSRN. Here is the abstract:
The strategy of taking the death penalty battle to the market by ferreting out and campaigning against lethal injection drug suppliers has been wildly successful in shriveling the execution drug supply. The supply-side strategy has not halted executions, however. Rather, the unintended consequences of shrinking execution drug supply are heightened risks of harm as states resort to alternative drugs and a surge of new state secrecy laws to protect remaining supply sources. The new secrecy laws are facing a barrage of legal challenges and a circuit split on how to resolve them. Yet despite the voluminous literature on the rights and wrongs of the death penalty, there is little study of the legal question now besetting the courts regarding execution drug supplier confidentiality. This article fills the need for a study of rise and propriety of the new lethal injection supplier confidentiality laws and the role of such laws in preventing worsening harms and unintended consequences.
Thursday, September 18, 2014
Benjamin L. Liebman (Columbia University - Law School) has posted Leniency in Chinese Criminal Law? Everyday Justice in Henan (Berkeley Journal of International Law (BJIL), Forthcoming) on SSRN. Here is the abstract:
This article examines one-year of publicly available criminal judgments from one basic-level rural county court and one intermediate court in Henan Province in order to better understand trends in routine criminal adjudication in China. I present an account of ordinary criminal justice in China that is both familiar and striking: a system that treats serious crimes, in particular those affecting state interests, harshly while at the same time acting leniently in routine cases. Most significantly, examination of more than five hundred court decisions shows the vital role that settlement plays in criminal cases in China today. Defendants who agree to compensate their victims receive strikingly lighter sentences than those who do not. Likewise, settlement plays a role in resolving even serious crimes, at times appearing to make the difference between life and death for criminal defendants. My account of ordinary cases in China contrasts with most western accounts of the Chinese criminal justice system, which focus on sensational cases of injustice and the prevalence of harsh punishments.
Kami Chavis Simmons (Wake Forest University Law School) has posted Beginning to End Racial Profiling: Definitive Solutions to an Elusive Problem on SSRN. Here is the abstract:
Many Americans have had interactions with police officers and other law enforcement agents, and the majority of these police-citizen encounters occur in the context of traffic stops. Although mildly inconvenient, traffic stops are necessary not only for enforcing traffic rules and deterring traffic violations, but they are generally beneficial for broader public safety concerns. For many people, traffic stops are simply part of life. For many racial minorities, however, especially African-American and Latino men, even a routine traffic stop takes on an entirely different meaning. Historically, the relationship between racial minorities and police has been strained, and many members of racial minority groups believe that law enforcement officers unfairly target them because of their race or ethnicity. It is widely known that many Americans, especially minorities, believe that police officers use race as a "proxy" for criminal involvement. There is strong evidence that racial minorities believe law enforcement officers engage in racial profiling. African-Americans have long argued that police officers scrutinize their behavior more closely, and many report that they are fearful of arrest even if they have done nothing illegal. The majority of African-Americans believe that racial profiling is wrong, yet is pervasive within their communities.
An important takeaway from the study is something that survivor advocacy organizations have been trying to reinforce for years: domestic abusers are not just people we see on the news; they are not just the Ray Rices who get caught on tape. Twenty percent of American men report “pushing, grabbing, shoving, throwing something, slapping or hitting, kicking, biting, beating up, choking, burning or scalding, or threatening a partner with a knife or gun.” But no doubt more than 20 percent are responsible for the roughly 320,000 outpatient health visits and 1,200 deaths among women due to intimate partner violence that occur in the U.S. each year.
Wednesday, September 17, 2014
Michael Meltsner (Northeastern University - School of Law) has posted The Dilemmas of Excessive Sentencing: Death May Be Different But How Different? (Northeastern University Law Journal, Forthcoming) on SSRN. Here is the abstract:
This article is adapted from a speech given by the author in honor of Hugo Adams Bedau, inaugurating the Hugo Adam Bedau Memorial Lecture Series at Tufts University. The article explores the differences and substantial similarities of a prisoner being sentenced to death row versus being sentenced to life without parole.
The article strongly advocates granting parole eligibility to those with life sentences. It provides several examples detailing why this is so difficult politically, and highlights how Supreme Court rulings in Miller v. Alabama and Graham v. Florida, holding mandatory life without parole as unconstitutional for minors, implicate the same set of issues. The piece ends with a list of systemic reforms that would improve the criminal justice landscape.
Keith A. Findley and Barry Scheck (University of Wisconsin Law School and Benjamin N. Cardozo School of Law) have posted Book Review: Shaken Baby Syndrome on Trial (29 Criminal Justice #2 (Summer 2014), American Bar Association) on SSRN. Here is the abstract:
Tuesday, September 16, 2014
Despite growing concern regarding the problem of false confessions, including due to high profile DNA and death row exonerations, far too little is known about police interrogations in practice, including the written procedures that govern interrogations. This Essay provides a first study of police interrogation policies, focusing on written policies adopted by Virginia law enforcement agencies. Reviewing FOIA responses from over 180 agencies, the study found that few agencies require recording of entire interrogations as a matter of policy; nine did so. Over half, or 58 of 116 policies obtained, made recording an option, but did not encourage it or provide guidance on how to record. Only a handful of policies provided guidance on conducting juvenile interrogations. No policies contained guidance on interrogation of intellectually disabled individuals. Only a handful said anything about how to properly conduct an interview, or cautioning against feeding facts through leading questions. About one-third of the policies, or 41 of 116, were very brief and chiefly noted that the Miranda warnings must be given. In addition, 58 agencies lacked written policies on interrogations. A real overhaul of interrogation policy and practice is necessary in jurisdictions like Virginia, to safeguard evidence in the most serious cases, and in far more mundane cases, such as those involving vulnerable juveniles.
From The New York Times:
Breaking three consecutive years of decline, the number of people in state and federal prisons climbed slightly in 2013, according to a reportreleased Tuesday, a sign that deeper changes in sentencing practices will be necessary if the country’s enormous prison population is to be significantly reduced.
The report by the Justice Department put the prison population last year at 1,574,741, an increase of about 4,300 over the previous year, but below its high of 1,615,487 in 2009. In what criminologists called an encouraging sign, the number of federal prisoners showed a modest drop for the first time in years.