Wednesday, August 17, 2016
Richard E. Redding (Chapman University) has posted One Size Does Not Fit All: The Deterrent Effect of Transferring Juveniles to Criminal Court (Criminology & Public Policy, 15, 1-10) on SSRN. Here is the abstract:
All states transfer certain serious or repeat juvenile offenders from the juvenile court for adjudication in the adult criminal court in the hopes that doing so will reduce offender recidivism. Yet, clear empirical data on whether transfer achieves these results has been lacking. This essay discusses the implications for policy, practice, and future research of the findings of Zane et al.'s (2016) meta-analysis of the nine methodologically sound studies of the specific deterrent effects of juvenile transfer. The central take home message of the meta-analytic findings is that transfer likely has different effects depending upon the type of juvenile offender, type of transfer mechanism used, and the punishments and interventions meted out by the juvenile and criminal court systems. Thus, future research must be conducted across jurisdictions having different transfer mechanisms and sentencing options, and be of a level of sophistication that includes a host of offense and offender variables as well as court processing/sanction type, and employ methodologies that minimize or detect potential selection biases between comparison groups. Importantly, because one size of legal processing and sanction does not fit all offenders, judges and prosecutors should base their transfer decisions not primarily upon seriousness of the charge but on an individualized and nuanced evaluation of relevant case, offender, and local justice and social service system capabilities.
Tuesday, August 16, 2016
Se-shauna Wheatle (Durham Law School) has posted The Constitutionality of the ‘Homosexual Advance Defence’ in the Commonwealth Caribbean ((2016) 16 Equal Rights Review 38) on SSRN. Here is the abstract:
Defences to homicide have often been characterised as “concessions to human frailty”. The challenge for legislators and judges has been to determine the breadth of the permissible concessions and the categories of human frailty that ought to be accommodated by the law. A series of appellate decisions in the Commonwealth Caribbean in cases concerning the killing of gay men have ignited debate about the nature and application of defences to homicide. The main defences accepted by the courts in these decisions were justifiable homicide (a complete defence to murder which results in acquittal on the ground that the homicide was done in service of the state) and provocation (a partial defence to murder which results in a conviction of manslaughter on the ground that the defendant was provoked to lose his or her self-control). In each case, the basis of the defence was founded on a “homosexual advance defence”, that is, an allegation that the defendant killed the victim in response to an unwanted same-sex sexual advance. The success of such homosexual advance defences sits uneasily with the requirements of Commonwealth Caribbean constitutions, which mandate that the constitutions are “supreme law” and that all other laws must be modified, invalidated or abolished if they fall short of constitutional standards. At the centre of the debate over defences to homicides of gay men, particularly in the context of constitutional rights, is the question whether the human frailty accommodated by the law can, or ought, to include fear and stereotypes of same-sex sexuality.
This article presents a critical analysis of the homosexual advance defence in the Commonwealth Caribbean. It is argued, through a thematic presentation of the case law and comparative analysis, that the application of the defences of provocation and justifiable homicide in gay homicide cases is inconsistent with constitutional rights in Commonwealth Caribbean states. It is argued that continued reliance on a homosexual advance defence is inconsistent with the rights to life and equality in Commonwealth Caribbean constitutions.
"Should I be more troubled by drug dealers facing homicide charges after customers' overdose death?"
Doug Berman has this post at Sentencing Law & Policy, excerpting and commenting on a recent A.P. article which states, in part:
That's when Millette earned a dubious distinction: He became one of a growing number of dealers around the nation to face prosecution for the fatal heroin and fentanyl overdoses of their customers. He was charged not just with drug dealing, but with causing Martin's death. Maximum penalty: life behind bars.
In many states, including Ohio, Maine, West Virginia and New Jersey, authorities grappling with an alarming surge in opioid abuse are filing homicide, involuntary manslaughter or related charges against dealers. They argue the overdose deaths should be treated as crimes leading to stiff sentences that deter others — and deliver a measure of justice.
Their inquiries speak to a new trend noticed by law enforcement officials and victims advocates alike. These days, it is staggeringly routine for a rape, especially if it occurs in a social setting, to be accompanied by some form of digital trophy-taking. That could mean anything from a photo of a passed-out victim to a video chronicling the entire attack. Not evidence, but a memento.
As the culture has grown less tolerant of sexual assault, however, the appetite has increased to punish not only the rapists, but anyone who facilitated the crime.
. . .
How someone who records a sexual assault could be charged varies widely by jurisdiction. Most states impose a misdemeanor penalty for possessing photos or videos of someone engaged in a sexual act without that person’s knowledge. Aequitas has attempted to help several prosecutors go further, and charge video-takers as accomplices or co-conspirators. In a recent publication, Aequitas even argued that the state can charge someone who recorded an assault with the assault itself.
Jasmine Phillips has posted Black Girls and the (Im)Possibilities of a Victim Trope: The Intersectional Failures of Legal and Advocacy Interventions in the Commercial Sexual Exploitation of Minors in the United States (UCLA LAW REVIEW 62 UCLA L. Rev. 1642 (2015)) on SSRN. Here is the abstract:
The Trafficking Victims Protection Act (TVPA) considers all youth less than eighteen years of age trafficking victims without a showing of force, fraud, or coercion. The presumption is that minors cannot legally consent to sex and thus are always victims. Being characterized as a victim helps youth access support services and avoid prosecution in certain circumstances. However, local and state governments struggle to provide all youth with comprehensive resources. Additionally, legal and advocacy interventions fail to substantively engage racialized vulnerabilities that serve as pathways into the sex trade and the juvenile justice system.
Black girls are disproportionally prosecuted for prostitution offenses yet their narratives are seldom heard. Controlling images of Black womanhood, as unvirtuous, immoral, and blameworthy, impact interactions between Black girls and the juvenile justice system, as well as, service providers. By overlooking race, the TVPA and antitrafficking advocates do not anticipate and remedy the complexity of applying a victim standard to Black girls and other marginalized youth.
Orin S. Kerr (The George Washington University Law School) has posted The Effect of Legislation on Fourth Amendment Interpretation (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article addresses a recurring question that has divided courts: When judges interpret the Fourth Amendment, and privacy legislation regulates the government’s conduct, should the legislation affect the Fourth Amendment’s meaning? Courts presently are split three ways. Some courts argue that legislation provides the informed judgment of a co-equal branch that should influence Fourth Amendment interpretation. Some courts argue that the presence of legislation should displace Fourth Amendment protection to prevent constitutional rules from trumping the legislature’s handiwork. Finally, some courts treat legislation and the Fourth Amendment as independent and contend that the legislation should have no effect.
This Article argues that courts should favor interpreting the Fourth Amendment independently of legislation.
This book provides readers with an exploration of ways to reduce the rate of false convictions in the criminal justice system. The criminal justice system should be seen as a Safety-Critical System, specifically a system that deals with matters of life and death, where any error is likely to cause grave harm to both the individual and society. Implementing safety in criminal law is necessary, both morally and economically. Incorporating into the criminal justice system a modern safety theory that is commonly accepted in other areas, such as space, aviation, engineering, and transportation, is an idea that was developed jointly by myself and Dr. Mordechai Halpert and presented mainly in the coauthored article “A Safety Doctrine for the Criminal Justice System.” This is the starting point of the book. The book expands the preliminary proposition and engages in the application of the modern safety theory and methods in the criminal justice system. Thus, for example, the book demonstrates how the fundamentally important Identify-Analyze-Control method can and should be implemented in the system, using Nancy Leveson’s STAMP’s model (“System-Theoretic Accident Model and Processes”). This is the first book that proposes a general theory of safety for the criminal justice system. It provides specific safety rules for certain types of criminal evidence and criminal law procedures.
Monday, August 15, 2016
It is not hyperbolic to assert that our criminal justice system is in crisis. Just as important, this crisis is widely acknowledged outside of the legal academy. We see almost universal agreement throughout scholarly, popular, and political discourse: The criminal justice system needs fixing. This essay, written for a Journal of Legal Education symposium on "The Future of Legal Scholarship" considers the function of scholarship in, first, exposing the limits of criminal law as it operates on the ground and, next, generating a path forward.
Matthew P. Ponsford (McGill University, Faculty of Law, Students) has posted The Lawful Access Fallacy: Voluntary Warrantless Disclosures, Customer Privacy, and Government Requests for Subscriber Information (Canadian Journal of Law & Technology, 2016, Forthcoming) on SSRN. Here is the abstract:
Lawful access is a broad and complex field raising significant civil rights and privacy issues for Canadians. The concept refers to intercepting communications and the legal authority to engage in the search and seizure of sensitive information for lawful, investigative purposes. Authorities are increasingly accessing information from transmissions data or electronic interception of all telecommunications services, utilizing new Criminal Code powers to demand, order, and compel the preservation of electronic evidence. Legislation also expanded and streamlined the warrant process enabling authorities to intercept private communications. This analysis focuses on the relationship among lawful access, customer privacy, and the publication of government requests for subscriber information. Bill C-30, introduced in 2012, and later shelved following public outcry, forms the controversial backdrop to the discussion. This legislation would have “modernized the Criminal Code” by permitting warrantless powers; namely, obligatory disclosure of Internet subscriber information, including one’s name, address, telephone number, email address, and IP address. The Bill was widely condemned, yet unprecedented levels of warrantless requests continue. This paper explores recent legal, political, privacy, and communications developments surrounding warrantless government requests for basic subscriber information. I assert the current practice remains marred in secrecy and therefore poses a significant threat to Canadian civil liberties and privacy rights.
Cambridge University Press has published The Missing American Jury: Restoring the Fundamental Constitutional Role of the Criminal, Civil, and Grand Juries by Suja A. Thomas (University of Illinois College of Law). Here is a summary from the Cambridge website:
Criminal, civil, and grand juries have disappeared from the American legal system. Over time, despite their significant presence in the Constitution, juries have been robbed of their power by the federal government and the states. For example, leveraging harsher criminal penalties, executive officials have forced criminal defendants into plea bargains, eliminating juries. Capping money awards, legislatures have stripped juries of their power to fix damages. Ordering summary judgment, judges dispose of civil cases without sending them to a jury. This is not what the founders intended. Examining the Constitution's text and historical sources, the book explores how the jury's authority has been taken and how it can be restored to its rightful, co-equal position as a 'branch' of government. Discussing the value of juries beyond the Constitution's requirements, the book also discusses the significance of juries world-wide and argues jury decision-making should be preferred over determinations by other governmental bodies.
Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted The Certainty versus the Severity of Punishment, Repeat Offenders, and Stigmatization on SSRN. Here is the abstract:
There is a widely held presumption that the certainty of punishment (p) is a greater deterrent than the severity of punishment (s). This presumption is at odds with evidence from recent experimental work suggesting the contrary, and the implication of simple law enforcement models that risk-averse individuals must be deterred more by an increase in s than a comparable increase in p. This article demonstrates that this discrepancy may be the result of subtle differences in the effects being investigated. In particular, when repeat offenders are punished more severely than first time offenders, a change in p can have a greater effect than an increase in s on the aggregate offense level, even when each individual offender is more responsive to s than p. This is because an increase in p corresponds to moving some offenders from the first time offender category to the repeat offender category, which reduces the crime rate by causing a discrete increase in the sanctions that these individuals face. This effect is reversed when a first conviction results in stigma that more than off-sets the difference between the formal sanction for repeat offenders and first time offenders, because, then, the total sanction for repeat offenders is lower than the total sanction for first time offenders. In these cases, stigmatization can cause criminogenic effects. However, these negative effects are generally off-set by a second effect that emerges when stigmatization is present: an increase in p results in greater expected formal as well as informal sanctions, whereas an increase in s only affects the expected formal sanction. Finally, all results are derived by assuming that individuals are risk-neutral, implying that individuals need not be risk-seeking for deterrence to be more responsive to p than s, which is a point claimed in Becker (1968).
Sunday, August 14, 2016
|1||235||The Downstream Consequences of Misdemeanor Pretrial Detention
Paul Heaton, Sandra G. Mayson and Megan Stevenson
RAND Corporation, University of Pennsylvania Law School and University of Pennsylvania Law School
Date posted to database: 17 Jul 2016 [2nd last week]
|2||174||Some Clerical Contributions to Ex Parte Quirin
Ross E. Davies
George Mason University - Antonin Scalia Law School, Faculty
Date posted to database: 13 Jun 2016 [3rd last week]
|3||119||Prosecuting Collateral Consequences
University of North Carolina School of Law
Date posted to database: 7 Jul 2016 [4th last week]
|4||115||Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016 [new to top ten]
|5||113||Arresting Batson: How Striking Jurors Based on Arrests Violates Batson
Vida B. Johnson
Georgetown University Law Center
Date posted to database: 2 Jul 2016
|6||102||An Insurance-Based Typology of Police Misconduct
University of Chicago Law School
Date posted to database: 12 Jul 2016 [7th last week]
|7||99||Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016 [6th last week]
|8||90||Actions Speak Louder Than Images: The Use of Neuroscientific Evidence in Criminal Cases
University of Pennsylvania Law School
Date posted to database: 20 Jun 2016
|9||86||A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian M. Murray
Temple University, Beasley School of Law
Date posted to database: 27 Jul 2016 [new to top ten]
|10||86||The Economics of Rights: Does the Right to Counsel Increase Crime?
Itai Ater, Yehonatan Givati andOren Rigbi
Tel Aviv University - The Leon Recanati Graduate School of Business Administration, Hebrew University of Jerusalem - Faculty of Law and Ben-Gurion University of the Negev
Date posted to database: 17 Jul 2016 [new to top ten]
|1||219||Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016
|2||147||Public Attitudes toward Data Fraud and Selective Reporting in Science
Justin Tyler Pickett and Sean Patrick Roche
School of Criminal Justice, University at Albany, SUNY and University at Albany
Date posted to database: 12 Jul 2016
|3||114||Neuroethics and Criminal Responsibility – A Criminal Law Comment on Neil Levy's Consciousness and Moral Responsibility
University of Lisbon - School of Law
Date posted to database: 14 Jun 2016
|4||99||Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016
|5||88||Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016
|6||85||Privileging Professional Insider Trading
Yale Law School
Date posted to database: 18 Jul 2016
Last Revised: 20 Jul 2016
|7||82||The Offence of Knowingly Presenting False or Forged Evidence in the Rome Statute
Moscow State Institute of International Relations (MGIMO)
Date posted to database: 20 Jun 2016 [8th last week]
|8||78||Why Lenity Has No Place in the Income Tax Laws
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [7th last week]
|9||56||A Sure Bet? The Legal Status of Daily Fantasy Sports
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 22 Jun 2016 [10th last week]
|10||54||What Counts as Prostitution?
Stuart P. Green
Rutgers Law School
Date posted to database: 13 Jul 2016
Last Revised: 10 Aug 2016 [new to top ten]
Saturday, August 13, 2016
On Friday, August 12, 2016, U.S. Magistrate Judge William E. Duffin overturned the conviction of Brendan Dassey, one of the defendants highlighted in the documentary ‘Making A Murderer.’ The judge has given the state 90 days to either initiate proceedings to retry him or release him from prison.
In his 91-page decision, the judge concluded:
“The investigators repeatedly claimed to already know what happened on October 31 and assured Dassey that he had nothing to worry about. These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth Amendments.”
Lisa M. Schenck (George Washington University - Law School) has posted Just the Facts Ma’am: How Military Appellate Courts Rely on Factual Sufficiency Review to Overturn Sexual Assault Cases When Victims are 'Incapacitated' (45 Southwestern Law Review 522 (2016)) on SSRN. Here is the abstract:
This article contends that since sufficient protections are now in place in the military justice system, the military courts of criminal appeals no longer require factual sufficiency review authority to protect an accused tried by courts-martial, and furthermore, military criminal courts of appeals should have the same standard of review as other federal criminal courts, that is, a conviction should be tested for legal sufficiency.
Friday, August 12, 2016
In response to a crisis that threatens his tenure as Mayor of Chicago, Rahm Emanuel announced in December 2015 reform measures designed to curb aggressive police tactics by the Chicago Police Department (CPD). The reform measures are limited, but aim to reduce deadly police-citizen encounters by arming the police with more tasers, and by requiring that officers undergo deescalation training. Though allegations of excessive force have plagued the department for years, the death of Laquan McDonald, an African-American teenager who was fatally shot by Jason Van Dyke, a white officer with the CPD, was the impetus for the Mayor’s reforms. McDonald was shot sixteen times. Dash cam footage revealed that McDonald was holding a small knife and, in contravention of reports prepared by Van Dyke and several other police officers, was walking away from the officers at the time of the shooting.
Scott Y. Kim and Trudo Lemmens (National Institutes of Health and University of Toronto - Faculty of Law) have posted Should Assisted Dying for Psychiatric Disorders Be Legalized in Canada? (Canadian Medical Association Journal CMAJ, Forthcoming) on SSRN. Here is the abstract:
In the wake of the Supreme Court decision in Carter v Canada (AG), Canadian Parliament has legalized Medical Assistance in Dying (MAID) for people who are suffering from a grievous and irremediable medical condition. Access is restricted by the definition of grievous and irremediable, which includes being in an “advanced state of decline that cannot be reversed” and being at a point where the “natural death of the person has become reasonably foreseeable taking into account all medical circumstances.” Prior to the government's introduction of the new law, a Special Joint Parliamentary Committee had recommended that MAID should be available much more widely, including for those who request MAID for the suffering associated with mental illness. In this paper, the authors argue against providing access to MAID for mental illness. Discussing evidence from Belgium and the Netherlands, they point out that there is a gap between the idealized basis upon which MAID is advocated for patients with psychiatric conditions and the reality of its practice. The assumption that only patients with true irremediable depressive disorders would have access to assisted dying, after careful assessment of their decision-making capacity based on rigorous thresholds, is not supported by the evidence. Because of the necessarily broad criteria used to regulate assisted dying, legalizing the practice for psychiatric conditions will place already vulnerable patients at risk of premature death.
Thursday, August 11, 2016
Roger L. Goldman (Saint Louis University - School of Law) has posted Importance of State Law in Police Reform (Saint Louis University Law Journal, Vol. 60, No. 363, 2016) on SSRN. Here is the abstract:
Most articles on police reform concern the role of federal courts in enforcing constitutional rights under the fourth, fifth and sixth amendments through application of the exclusionary rule, criminal prosecution of law enforcement officers and pattern and practice suits brought against police departments. Additionally, much has been written about the need for civilian review of departmental discipline at the local level. In contrast, the focus of this article is on state law. On the one hand, state criminal prosecution of officers involved in shootings of unarmed, Black suspects has been shown to be ineffective because of the unwillingness of prosecutors to charge, grand juries to indict and petit juries to convict. On the other hand, the approach of some states to seek administrative remedies has proved somewhat effective, particularly revocation of state licenses of police officers for serious misconduct and, more recently, enactment of laws that provide for decertification of entire police departments.
While both men and women can, and do, use violence against each other, men’s violence against women is far more common, less justified, and more destructive than women’s violence against men. One of the reasons for this asymmetry is that men do not fear retaliation for violence against women, whereas women do fear retaliation for their use of violence against men. The distribution of violence between the genders, then, is suboptimal. Society would be better off as a whole if more women were willing to engage in justified violence against men, and fewer men were willing to engage in unjustified violence against women. To that end, women’s justified violence against men should be encouraged, protected, and publicized. This will require a reversal of the current trend in legal and social practices, which is to tolerate and encourage men’s unjustified violence against women while discouraging and legally restricting women’s violence against men. Even if encouraging an increase in women’s justified violence against men may sometimes result in unjustified or disproportionate violence in individual situations, the overall effects of the redistribution of violence will be preferable to the current asymmetry.
Mirko Bagaric, Marissa Florio and Brienna Marissa Bagaric (Deakin University, Geelong, Australia - Deakin Law School, Harvard University, Law School, Students and Deakin University, Geelong, Australia - Deakin Law School) have posted A Principled Approach to Separating the Fusion between Nursing Homes and Prisons (Pepperdine Law Review, Forthcoming) on SSRN. Here is the abstract:
Elderly people are a far lower risk to community safety than other individuals. Despite this, prisons are being increasingly filled by older offenders. The number of elderly prisoners in the United States has increased more than fifteen-fold over the past three decades – far greater than the general imprisonment rate. This trend is empirically and normatively flawed. Older offenders should be treated differently to other offenders. The key reasons for this are that elderly offenders reoffend at about half the rate of the total prisoner release cohort, and they cost us more than double the amount to incarcerate due to their more pressing health needs. The maturity and infirmity of most aged offenders means that they are a far lower risk to community safety than other offenders. The sentencing system should be reformed to properly accommodate the relevantly different situation of elderly offenders. In this Article, we argue that the incarceration levels of elderly offenders should be reduced by introducing specific mitigating factors into the sentencing calculus and expanding the use of progressive forms of punishment, especially electronic monitoring. These reforms will reduce the fiscal burden of the sentencing system, enhance the normative integrity of the process and make the community no less safe.