Tuesday, January 10, 2017
From The New York Times:
The jury of nine whites and three blacks, who last month found Mr. Roof guilty of 33 counts for the attack at Emanuel African Methodist Episcopal Church in downtown Charleston, S.C., returned their unanimous verdict after about three hours of deliberations in the penalty phase of a heart-rending and often legally confounding trial.
. . .
Carol S. Steiker, a Harvard law professor who has written extensively about the death penalty, said that the two narratives about Mr. Roof were not necessarily inconsistent, and that a concealed psychological defect could have left Mr. Roof susceptible to a disconnected worldview. “It’s pretty hard to tell the difference between bad and mad, between evil and crazy,” she said, “and that’s why we need the investigation needed to present a mitigating case.”
Jennifer L. Doleac (University of Virginia - Frank Batten School of Leadership and Public Policy) has posted How do State Crime Policies Affect Other States? The Externalities of State DNA Database Laws on SSRN. Here is the abstract:
State and local governments control most criminal justice policy in the United States, without regard for potential effects on other states. Lenient state policies might draw in criminals from other states, whereas harsh state policies might drive criminals away to other states. Alternatively, harsh policies might deter or incapacitate criminals who would otherwise migrate to neighboring states and commit crimes there. Thus the effects of a state’s policies extend beyond its borders, but these effects could be positive or negative. This paper estimates the externalities of DNA databases. I exploit variation in the timing of database expansions as exogenous shocks to the sizes of state databases, to measure the cross-state effect of database size. The federal government seems to think externalities are positive, since it subsidizes state-level database expansions. I find instead that externalities are negative: increasing the number of other-state profiles increases own-state crime, so that approximately 10 percent of DNA databases’ crime-reducing effect is due to states’ displacing crime to other states. Effects are larger for nearby states. This result is consistent with the hypothesis that offenders respond rationally to state policies by moving to places where they are less likely to get caught for their crimes.
Monday, January 9, 2017
From The New York Times:
“It is not fair to allow that much testimony to be heard by the jury when I am not presenting any evidence — from my family or anyone else — in mitigation,” Mr. Roof argued on Wednesday in a motion that Judge Gergel denied. “If I don’t present any mitigation evidence, the victim-impact evidence will take over the whole sentencing trial and guarantee that I get the death penalty.
Found guilty in December on 33 counts, including 18 that carry a potential death sentence, Mr. Roof has rejected Mr. Bruck’s strategy of presenting evidence about his background and mental health that might mitigate against his execution. The lawyer has been relegated to the role of standby counsel, allowed to sit beside Mr. Roof and offer guidance but not to question witnesses or to object to the government’s evidence.
The usually soft-spoken Mr. Bruck has not been able to contain his frustration. At several points last week, with the jury out of the courtroom, he pleaded with Judge Gergel to rein in the prosecution and to empower him to object to testimony. “This is sentencing; it is not a memorial service,” said Mr. Bruck, who has often expressed his admiration for the victims and his sorrow for their families. “It has become a runaway freight train.”
Dorie Klein (St. Mary's University School of Law) has posted The Costs of Delay: Incompetent Criminal Defendants, Involuntary Antipsychotic Medications, and the Question of Who Decides (University of Pennsylvania Journal of Law and Social Change, Vol. 16, 2013) on SSRN. Here is the abstract:
Whether an incompetent pretrial detainee is entitled to a judicial hearing before he may be administered involuntary antipsychotic medication is a matter of contention. The question of the constitutionality, with regard to the Due Process clause, of involuntary medication to diminish a detainee’s dangerousness is one that arises at the intersection of two United States Supreme Court cases, Washington v. Harper and Sell v. United States.
In Harper, the Court ruled that a convicted prisoner is not entitled to a judicial hearing before he may be administered involuntary antipsychotic medications when the medications are necessary to diminish the prisoner’s dangerousness to himself or others. In Sell, the Court implied that an incompetent pretrial detainee is entitled to a judicial hearing, when the medications are necessary to render the detainee competent to stand trial.
Sunday, January 8, 2017
Brooklyn Law School
Date posted to database: 5 Dec 2016 [2nd last week]
|2||160||Extreme Prison Sentences: Legal and Normative Consequences
University of Houston Law Center
Date posted to database: 7 Nov 2016 [1st last week]
|3||118||How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence
Deborah W. Denno
Fordham University School of Law
Date posted to database: 7 Nov 2016
University of San Diego School of Law
Date posted to database: 5 Dec 2016 [5th last week]
|5||62||TRAGEDY, OUTRAGE & REFORM Crimes That Changed Our World: 1911 – Triangle Factory Fire – Building Safety Codes
Paul H. Robinson and Sarah M. Robinson
University of Pennsylvania Law School and Independent
Date posted to database: 3 Dec 2016 [8th last week]
|6||61||Applying Analytic Reasoning to Clarify Intention and Responsibilityin Joint Criminal Enterprise Cases
Middlesex University - School of Law
Date posted to database: 18 Nov 2016 [7th last week]
|7||51||Kriminalomsorgen: A Look at the World's Most Humane Prison System in Norway
Ryan Alexander Berger
Duke University, School of Law, Students
Date posted to database: 11 Dec 2016 [10th last week]
|8||40||The Relevance of Intention to Criminal Wrongdoing
Dana Kay Nelkin and Samuel C. Rickless
University of California, San Diego and University of California San Diego
Date posted to database: 7 Nov 2016 [new to top ten]
|9||39||Sex and the Single Malt Girl: How Voluntary Intoxication Affects Consent
University of San Diego School of Law
Date posted to database: 4 Nov 2016 [new to top ten]
|10||37||The Canadian Charter and Criminal Justice
Queen's University, Faculty of Law
Date posted to database: 18 Nov 2016 [new to top ten]
Saturday, January 7, 2017
Issue summaries are from ScotusBlog, which also links to papers:
- Nelson v. Colorado: Whether Colorado’s requirement that defendants must prove their innocence by clear and convincing evidence to get their money back, after reversal of conviction of a crime entailing various monetary penalties, is consistent with due process.
- Goodyear Tire & Rubber Co. v. Haeger: Whether a federal court is required to tailor compensatory civil sanctions imposed under inherent powers to harm directly caused by sanctionable misconduct when the court does not afford sanctioned parties the protections of criminal due process.
|1||3,819||Do White Police Officers Unfairly Target Black Suspects?
John R. Lott and Carlisle E. Moody
Crime Prevention Research Center and College of William and Mary - Department of Economics
Date posted to database: 16 Nov 2016
|2||183||Forensics and Fallibility: Comparing the Views of Lawyers and Judges
Brandon L. Garrett and Gregory Mitchell
University of Virginia School of Law and University of Virginia School of Law
Date posted to database: 7 Nov 2016
Brooklyn Law School
Date posted to database: 5 Dec 2016
|4||94||The Structure of Federal Public Defense: A Call for Independence
Federal Defenders of New York
Date posted to database: 19 Dec 2016 [new to top ten]
|5||87||Adversarial Asymmetry in the Criminal Process
Washington University in St. Louis
Date posted to database: 1 Dec 2016 [6th last week]
|6||85||The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing
Julian A. Cook
University of Georgia Law School
Date posted to database: 5 Nov 2016 [7th last week]
|7||70||Apple and the American Revolution: Remembering Why We Have the Fourth Amendment
Clark D. Cunningham
Georgia State University College of Law
Date posted to database: 6 Dec 2016 [10th last week]
|8||69||Critical Perspectives on Police, Policing, and Mass Incarceration
Richard Delgado and Jean Stefancic
University of Alabama - School of Law and University of Alabama - School of Law
Date posted to database: 30 Nov 2016 [new to top ten]
|9||69||The Right to Redemption: Juvenile Dispositions and Sentences
Katherine Hunt Federle
Ohio State University Moritz College of Law
Date posted to database: 30 Nov 2016 [new to top ten]
|10||61||Encountering Resistance: Contesting Policing and Procedural Justice
Eric J. Miller
Loyola Law School Los Angeles
Date posted to database: 12 Dec 2016 [new to top ten]
Friday, January 6, 2017
Suzanne Lenon (University of Lethbridge) has posted Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference (Oñati Socio-Legal Series, Vol. 6. no. 6, 2016) on SSRN. Here is the abstract:
In November 2011, the British Columbia Supreme Court released its judgement in Reference re: s. 293 of the Criminal Code of Canada, upholding the prohibition on polygamy as constitutional. The Polygamy Reference, as it is known, concluded that the pressing and substantial objective of s. 293 is the prevention of harm to women, to children, and to the institution of monogamous marriage. This paper analyzes the submissions made by the feminist legal education organization, West Coast LEAF, one of the few feminist 'voices' taken seriously by the court. The apprehension of polygamy's harms was central to the Reference case. West Coast LEAF offered one of the most nuanced interpretations of how the criminal prohibition on polygamy should be interpreted with respect to harm. Yet as this paper argues, its position conceals and is underpinned by racialized relations of power that, however unwittingly, give weight to and indeed require the racial logic of white settler state sovereignty articulated in the Polygamy References' overall narrative.
Ummni Khan (Carleton University) has posted Take My Breath Away: Competing Contexts between Domestic Violence, Kink and the Criminal Justice System in R. v. J.A. (Oñati Socio-Legal Series, Vol. 6, No. 6, 2016) on SSRN. Here is the abstract:
In the R. v. J.A. case, a man was criminally convicted for performing sexual activities on his partner while she was rendered unconscious through erotic asphyxiation. Evaluating the legal and ethical stakes of the case is challenging because the complainant changed her testimony from non-consent to consent at trial, and the couple’s history includes both kinky sex and domestic violence. In this paper, I problematize the legal reasoning of the trial judgment (R. v .A.(J.) 2008 ONCJ 195), the Supreme Court of Canada’s majority decision ( 2 S.C.R. 440), as well as the LEAF factum, and some of the feminist commentary. I argue that both the legal and the feminist discourses privilege domestic and sexual violence as the preeminent context in this case, erase or gloss over kinky eroticism and subjectivity, and advance a carceral politics that privileges the criminal justice system as an articulator of truth, and a vehicle for gender justice.
Thursday, January 5, 2017
Jennifer Koshan (University of Calgary - Faculty of Law) has posted Marriage and Advance Consent to Sex: A Feminist Judgment in R v. JA (Oñati Socio-Legal Series, Vol. 6, No. 6, 2016) on SSRN. Here is the abstract:
This paper is a feminist judgment in R v. JA (Supreme Court of Canada 2011), a spousal sexual assault case involving the issue of whether parties can consent in advance to sexual activity that will occur while they are asleep or unconscious. The Supreme Court’s ruling in JA has generated critique and debate amongst feminist and law and sexuality scholars that pits women's equality and security interests against their affirmative sexual autonomy. Using the methodology of a feminist judgment, I endeavour to analyze whether it is possible to adopt an approach to advance consent that protects or at least balances all of these interests. My particular focus is the spousal context, where courts have often interpreted the sexual assault provisions of the Criminal Code to the detriment of women’s sexual integrity and equality, yet where arguments about affirmative sexual autonomy have also predominated. Taking a harm-based approach to criminality that considers both negative and positive sexual autonomy, the judgment concludes that advance consent should not be considered valid without certain legal safeguards being put into place.
Gail L. Heriot and Alison Somin (University of San Diego School of Law and Independent) have posted Sleeping Giant?: Section Two of the Thirteenth Amendment, Hate Crimes Legislation, and Academia's Favorite New Vehicle for the Expansion of Federal Power (Engage: Volume 13, Issue 3) on SSRN. Here is the abstract:
This article examines Congress’s authority to enact legislation pursuant to its powers under Section Two of the Thirteenth Amendment, which prohibits slavery and involuntary servitude. Does that power enable Congress enact 18 U.S.C. § 249(1), which criminalizes certain violent crimes committed “because of the actual or perceived race, color, religion or national origin” of the victim or of some other person? Or must Congress’s authority to pass such legislation derive from some other part of the Constitution?
Mathilde Cohen (University of Connecticut - School of Law) has posted The French Prosecutor as Judge. The Carpenter's Mistake? (Prosecutors and Democracy: A Cross-National Study (Maximo Langer & David Alan Sklansky eds., Cambridge University Press, 2017, Forthcoming)) on SSRN. Here is the abstract:
In France as elsewhere, prosecutors and their offices are seldom seen as agents of democracy. A distinct theoretical framework is itself missing to conceptualize the prosecutorial function in democratic states committed to the rule of law. What makes prosecutors democratically legitimate? Can they be made accountable to the public? Combining democratic theory with original qualitative empirical data, my hypothesis is that in the French context, prosecutors’ professional status and identity as judges determines to a great extent whether and how they can be considered democratic figures.
The French judicial function is defined more broadly than in the United States, encompassing two types of “magistrats”: prosecutors and judges. Technically, prosecutors are judges, having attended the same national school for the judiciary, enjoying the same civil servant status, and being able to transfer back and forth throughout their career between judgeships and prosecutorial posts. As members of the judiciary, they share in a number of characteristics of the French bench but they enjoy far less autonomy than judges because of the pervasive role of the executive in their transfers and promotions as well as governmental interventions in prosecutorial decisions. The chapter suggests that despite these differences, prosecutors’ professional identity as judges may protect their independence.
Wednesday, January 4, 2017
Leona Deborah Jochnowitz (Hartwick College) has posted two articles on this subject. The first is Whether the Bright-Line Cut-Off Rule and the Adversarial Expert Evaluation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability. Here is the abstract:
This study explores the findings of the Capital Jury Project that intellectual disability cases were unique because jurors had difficulties with the adversarial mental proof and definitions. There was the greatest fall from principle to practice in appreciating the veracity of the diagnoses. Intellectual disability was defined numerically as IQ 50-70. Hall v. Florida (2014) recently clarified that an IQ score should take account of the test’s standard error of measurement (SEM), indicating a range of scores, rather than a fixed number, or bright line rule. The disability is a “condition and not a number” and information about defendant’s social and cultural adaptation may be presented. This article presents the results of an exploratory study of capital juror receptivity to mitigating intellectual disability (ID) evidence in 38 death penalty trials, comparing the trial transcripts and 1990s CJP post-trial juror interviews. The study tests the hypothesis that jurors’ receptivity to capital juror receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and definitions, as well as distractions from extralegal factors, unrelated to the evidence. These include jurors’ premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice. It also examines whether the bright line cut-off rule exacerbated their understanding of the disability. In Kentucky, a state with the bright line cut-off rule, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” This life and death dispute over a few points of IQ demonstrates that the bright line cut-off of 70 represents a misleading artificial statistical convention and is part of the “can of worms” and poor psychiatric thinking discussed.
The recent (and seemingly consistent) news of police abuses has lead to significant discussion on how best to curtail this conduct. Much of this work focuses on making sure that officers are subject to appropriate criminal sanctions for their behavior. This essay — while espousing a similar refrain — takes a step back and wrestles with a more fundamental question. Why are police officers — given their unique responsibilities and powers — subject to the same criminal code as non-officers?
This essay is the first to propose that police officers should be subject to a separate set of criminal rules, much like we’ve already done with military personnel under the Uniform Code of Military Justice (“UCMJ”). We, as a society, recognize that military personnel have special role to play. They are a fighting force tasked to defend the country. While we honor their service, we recognize the need for special obligations commensurate with their duties. So goes the rationale for promulgating the UCMJ and its unique criminal provisions. Police officers too are uniquely positioned in our society.
Tuesday, January 3, 2017
“Conviction Integrity Unit” has become a brand name that has good public relations value for an elected official. But what does it really mean? Is it just a fashion accessory, a flashy but empty appellation intended to convey the idea that the office is extremely serious about correcting wrongful convictions and holding its own members accountable for errors or acts of misconduct, but really is not? Is conviction integrity nothing more than a passing fad, a nebulous slogan without real meaning that is good for propaganda purposes, but will not bring about any serious change in the way business is done in American criminal justice system?
Or does the interest in “conviction integrity” signal something qualitatively different: a movement toward a post-conviction non-adversarial process for reinvestigating potential miscarriages of justice, which involves prosecutors, innocence organizations, and defense lawyers working together in a joint search for the truth; a recognition of ethical and ultimately constitutional obligations to disclose material evidence of innocence post-conviction; and an adoption of procedures, such as “root cause analysis” and “sentinel review,” that are hallmarks of a “just culture” approach to organizational management?
Ioannis Iglezakis (Aristotle University of Thessaloniki - Law, Economic and Political Sciences) has posted The Legal Regulation of Hate Speech on the Internet and its Conflict with Freedom of Expression on SSRN. Here is the abstract:
The Internet with its unique ability of communication of one-to-many and many-to-many and its potential for anonymous and mobile interaction has become the new frontier for the dissemination of hate speech. To deal with this issue, many countries have enacted legislation criminalizing hate speech, but also international legal acts have been introduced for the harmonization of national legislations. In this paper, the regulations of hate speech on the Internet on an international level are presented and its conflict with the right to freedom of expression is explored.
Chris Cunneen, David Bentley Brown, Melanie Schwartz, Julie Stubbs and Courtney Young (University of New South Wales (UNSW) - Faculty of Arts and Social Sciences and Faculty of Law, University of New South Wales (UNSW) - Faculty of Law, University of New South Wales (UNSW), University of New South Wales (UNSW, Australia) - Faculty of Law and University of New South Wales (UNSW) - Faculty of Law) have posted Justice Reinvestment as Social Justice (Weber, L., Fishwick, E. and M. Marmo, (Eds) The Routledge International Handbook of Criminology and Human Rights, Routledge, Milton Park. 2017 ISBN 9781138931176, Pp 309-318) on SSRN. Here is the abstract:
This chapter draws on the work of the Australian Justice Reinvestment Project (AJRP) (Brown et al., 2015). The AJRP examined the development of justice reinvestment particularly in the context of it’s alignment with broad social justice values. We are also specifically interested in how and whether justice reinvestment can meet the needs of those social groups that have been adversely affected by mass imprisonment and hyper-incarceration, particularly racial and Indigenous minorities, women and people with mental health issues and cognitive impairment (Cunneen et al., 2013). We argue that justice reinvestment was in its early development strongly tied to civil rights, particularly with the focus on imprisonment and racialization, and social justice for communities where large numbers of residents were recycled in and out of prison.
In this paper, the author considers the case of Lecretia Seales, a senior legal and policy advisor to the New Zealand Law Commission who passed away from a cancerous brain tumour in Wellington on 3 June 2015. In particular, the author traverses the issues that arise in the debate this case has raised. This is achieved through a discussion of the development of the New Zealand criminal law on suicide, an examination of certain philosophical considerations and human rights issues, and a consideration of possible policy directions that reforming legislation could take. It is asserted that the nation’s central democratic institution must not fail in their responsibility to respond to new social developments. The author subsequently concludes that the right of people enduring fatal illness to choose to eliminate suffering and to die with dignity, subject to appropriate protections, should be part of New Zealand law.