Wednesday, April 20, 2016
Court reverses sentence based on improper guideline range even though sentence fell within correct range
Daniel J. Capra and Joseph Tartakovsky (Fordham University School of Law and Gibson, Dunn & Crutcher LLP) have posted Autopsy Reports and the Confrontation Clause: A Presumption of Admissibility (2 Virginia J. of Criminal Law 62 (2014)) on SSRN. Here is the abstract:
Courts nationwide are divided over whether autopsy reports are “testimonial” under the Sixth Amendment’s Confrontation Clause. Resolving that split will affect medical examiners as dramatically as Miranda did police. This article applies the latest Supreme Court jurisprudence to the work of modern medical examiners in a comprehensive inquiry. It argues that autopsy reports should be presumed non-testimonial — a presumption overcome only by a showing that law enforcement involvement materially influenced the examiner’s autopsy report.
Amelia Courtney Hritz has posted 'Voluntariness with a Vengeance' the Coerciveness of Police Lies in Interrogations on SSRN. Here is the abstract:
In this note, I analyze the philosophical, legal and psychological literature regarding police lies to suspects in interrogations. I argue that all forms of police lies to suspects in custody are coercive and all confessions resulting from these lies should not be admitted in court.
Tuesday, April 19, 2016
Wayne A. Logan and Andrew Guthrie Ferguson (Florida State University - College of Law and University of the District of Columbia - David A. Clarke School of Law) have posted Policing Criminal Justice Data (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
This article addresses a matter of fundamental importance to the criminal justice system: the presence of erroneous information in government databases and the limited government accountability and legal remedies for the harm that it causes individuals. While a substantial literature exists on the liberty and privacy perils of large multi-source data assemblage, often termed "big data," this article addresses the risks associated with the collection, generation and use of "small data" (i.e., individual-level, discrete data points). Because small data provides the building blocks for all data-driven systems, enhancing its quality will have a significant positive effect on the criminal justice system as a whole. The article examines the many contexts in which criminal justice data errors arise and offers institutional and legislative solutions designed both to lessen their occurrence and afford relief to those suffering the significant harms they cause.
David Wolitz (University of Tennessee College of Law) has posted Herbert Wechsler, Legal Process, and the Jurisprudential Roots of the Model Penal Code (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:
Herbert Wechsler shepherded the Model Penal Code to completion during the same decade (1952-1962) in which he wrote many of the canonical texts of Legal Process jurisprudence. Yet the connection between Wechsler’s work in criminal law and his Legal Process philosophy has received relatively little scholarly attention. In fact, as this article details, Wechsler’s approach to criminal law reform reflected all the core themes of Legal Process theory and accounts for both the Code’s overall structure and many of its doctrinal innovations.
Seeing the Model Penal Code as a product of Legal Process jurisprudence helps clear away significant misconceptions about the Model Penal Code and also recasts conventional understandings of Legal Process theory itself. Though the Model Penal Code has been caricatured as overly ambitious, thoroughly utilitarian, and technocratic-elitist, the Code actually represented the modest aims, value pluralism, and democratic commitments of Wechsler and the Legal Process School. Wechsler was committed to producing both a principled rationalization of criminal law and a prudent piece of social legislation. The healthy tension in the Code between principle and prudence — the two watchwords of Legal Process theory — account for the Code’s unparalleled impact on American criminal law.
John A. Richter (University of Iowa, College of Law, Students) has posted Pulling Over the United States Sentencing Guidelines: Defining 'Arrest' Under Section 4A1.2 (a) (2) (Iowa Law Review, Vol. 101, No. 1, 2015) on SSRN. Here is the abstract:
The United States Sentencing Commission (“Commission”) created the United States Sentencing Guidelines (“Guidelines”) to bring uniformity and fairness to criminal sentencing in the United States. Since their inception and application by judges in 1987, the Guidelines have lacked a definition for “arrest” in section 4A1.2(a)(2). This absence of a definition developed a circuit split over whether traffic citations fall within the meaning of “arrest” for purposes of determining a defendant’s criminal history, and thus, his criminal sentence. This Note argues that the United States Supreme Court should adopt the Ninth Circuit’s approach to defining “arrest” in the context of section 4A1.2(a)(2), because this approach aligns with current Supreme Court precedent (particularly with relevant Fourth Amendment case law); reflects the goals and purposes of the Guidelines; and matches a defendant’s culpability, likelihood of recidivating, and sentence while decreasing sentencing disparity among similarly situated defendants.
Harry M. Caldwell (Pepperdine University - School of Law) has posted Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution (U. Ill. L. Rev. (2016 Forthcoming)) on SSRN. Here is the abstract:
Prosecutors, whom we trust to carry out the demanding and essential business of presenting the People’s case against alleged law-breakers, are free to commit misconduct with impunity. They suffer no disciplinary repercussions for their misdeeds. The only adverse consequence facing an erring prosecutor is the extremely rare prospect of having a conviction overturned due to his misconduct. Even then the prosecutor will not be subject to any sanction: no citation for contempt, no suspension of license, no civil liability, no fine, not so much as a censure.
In an earlier article entitled The Prosecutor Prince, I proposed the creation of an independent commission empowered to investigate claims of alleged prosecutorial misconduct, and meter our discipline should the claims be warranted. As set forth in that article, the commission would be modeled after California’s Judicial Panel, which has proven effective in dealing with instances of judicial misconduct.
The purpose of this current article is not to once again make the case that prosecutorial misconduct is prevalent and represents a stain on the American justice system — that purpose has been thoroughly accomplished in the earlier article and by countless others. The two-fold purpose of this article is to revise the earlier proposal to make it more fiscally and politically viable, and to use the findings from our recently completed twenty-five-year survey of prosecutorial misconduct as support for the revised proposal.
Kelly McWilliams , Thomas D. Lyon and Jodi Quas (USC Gould School of Law , University of Southern California - Gould School of Law and University of California, Irvine - Department of Criminology, Law and Society) have posted Maltreated Children's Ability to Make Temporal Judgments Using a Recurring Landmark Event (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:
This study examined whether maltreated children are capable of judging the location and order of significant events with respect to a recurring landmark event. 167 6- to 10-year-old maltreated children were asked whether the current day, their last court visit, and their last change in placement were “near” their birthday and “before or after” their birthday. Children showed some understanding that the target event was “near” and “before” their birthday when their birthday was less than three months hence, but were relatively insensitive to preceding birthdays. Hence, children exhibited a prospective bias, preferentially answering with reference to a forthcoming birthday rather than a past birthday. The results demonstrate that the recurring nature of some landmark events make questions about them referentially ambiguous and children’s answers subject to misinterpretation.
Monday, April 18, 2016
Sounding the alarm about technology, policing, and privacy has become an almost daily occurrence. We are told that the government’s use of technology as a surveillance tool is an “insidious assault on our freedom.” That it is “nearly impossible to live today without generating thousands of records about what we watch, read, buy and do — and the government has access to them.” The message is clear. Big Brother is watching. And we should be afraid.
But the police use of technology does not have to be dystopian. “Policing, Technology, and Doctrinal Assists” challenges conventional thinking and offers an entirely new way to think about technology and policing. Deployed properly, techno-policing — from the use of simple smartphone applications like FaceTime and Google Hangout, to the deployment of high tech surveillance cameras, terahertz scanners, Big Data, and Automated Suspicion Algorithms — can enhance the warrant requirement and the goals of transparency and accuracy. And at this time when crime levels are relatively low and there are growing demands for police accountability — think Black Lives Matter — technology can enhance legitimacy. Most importantly, technology can provide much needed doctrinal assists where Fourth Amendment doctrine alone has proved inadequate, short-sighted, and unfair.
In the following Review, I analyze the leading criminal law casebooks on the market and describe the ways in which they do — and do not — respond to the needs of criminal law teachers. At least part of the issue is the changing nature of law teaching — what actually happens in the classroom has changed in the last three decades. Moreover, there may be less uniformity in classroom practice than in the past; in other words, what works in one law school might not work in another, due in part to the changing profile of law students, as well as the great diversity of intellectual perspectives that law teachers bring to the lectern. I then lay out a vision for a new casebook in criminal law that responds to some of these desiderata with a fresh yet flexible approach.
Uwe Steinhoff (The University of Hong Kong - Department of Politics and Public Administration) has posted Self-Defense as Claim Right, Liberty, and Act-Specific Agent-Relative Prerogative (Law and Philosophy, Vol. 35, No. 2, 2016) on SSRN. Here is the abstract:
This paper is not so much concerned with the question under which circumstances self-defense is justified (I use the term self-defense to include other-defense), but rather with other normative features of self-defense as well as with the source of the self-defense justification. I will argue (as has been done before) that the aggressor’s rights-forfeiture alone – and hence the liberty-right of the defender to defend himself – cannot explain the intuitively obvious fact that a prohibition on self-defense would wrong victims of attack. This can only be explained by conceiving of self-defense also as a claim-right. However, I will also argue (more innovatively) that a claim-right cannot ground the self-defense justification either. Rather, what grounds the self-defense justification and its particular strength and scope is the fact that self-defense is an act-specific agent-relative prerogative: a defender is allowed to give particularly grave weight to his interest in engaging in self-defense, which distinguishes self-defense from most other acts. This is not the same as saying that he has a right or a liberty to engage in self-defense. Thus, self-defense, understood as a normative concept, is a claim-right, a liberty-right, and an act-specific agent-relative prerogative.
Mark Denbeaux , Kelley Kearns and Michael J. Ricciardelli (Seton Hall University, School of Law , Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08) have posted Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court on SSRN. Here is the abstract:
Seton Hall Law School’s Center for Policy & Research selected Bloomfield, New Jersey as a setting for a study of potential racial profiling in its police practices. The results revealed a persistent and disproportionate representation of African Americans and Latinos in the courtroom as compared to their representation in either Bloomfield itself or in the State of New Jersey.
Bloomfield, New Jersey is, in many ways, demographically representative of New Jersey itself. According to the most recent census data available, its population of 47,315 is roughly 60% white, 18.5% African American, and 24.5% Latino. In comparison, New Jersey's population is 68.6% white, 13.7% African American, and 17.7% Latino.
Sunday, April 17, 2016
Sam Kamin (University of Denver Sturm College of Law) has posted Prosecutorial Discretion in the Context of Immigration and Marijuana Law Reform: The Search for a Limiting Principle (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This article compares the appropriateness of prosecutorial non-enforcement policy in the contexts of federal immigration and marijuana laws. I begin by discussing the ways in which the Obama administration has set policy in both areas through the use of memoranda directing prosecutors in the exercise of their discretion. I show that in both of these contexts the administration has turned to the exercise of prosecutorial discretion rather than legislative change to achieve its policy outcomes. I turn next to the Take Care Clause, the constitutional requirement that the president faithfully execute the laws of the United States. I demonstrate that, although the Supreme Court has painted only the broadest outlines of the clause’s meaning, there are certain core ideas that seem to implicate the core of the doctrine. Finally, I apply the Take Care Clause in the two contexts, finding that in both that the Obama administration has acted within the bounds of its constitutional authority. In neither context has the Obama administration re-written legislation or engaged in the kind of categorical refusal to prosecute that might be constitutionally suspect.
|1||274||Like Snow to the Eskimos and Trump to the Republican Party: The Ali's Many Words for, and Shifting Pronouncements About, 'Affirmative Consent'
University of San Diego School of Law
Date posted to database: 24 Mar 2016
|2||127||The Conflict between Open-Ended Access to Physician-Assisted Dying and the Protection of the Vulnerable: Lessons from Belgium's Euthanasia Regime for the Canadian Post-Carter Era
University of Toronto - Faculty of Law
Date posted to database: 26 Feb 2016 [4th last week]
|3||121||Causation in the Law: Philosophy, Doctrine and Practice
Ingeborg Puppe and Richard W. Wright
University of Bonn - Department of Law and Illinois Institute of Technology - Chicago-Kent College of Law
Date posted to database: 15 Mar 2016
|4||100||A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016 [6th last week]
Corey Rayburn Yung
University of Kansas School of Law
Date posted to database: 8 Mar 2016 [8th last week]
|6||54||Tort Concepts in Traffic Crimes
Noah M Kazis
Date posted to database: 20 Feb 2016 [10th last week]
|7||53||Equity, Not Mercy
Arizona State University - College of Law
Date posted to database: 20 Feb 2016 [9th last week]
|8||50||Old Laws, New Crimes: Challenges of Prosecuting Cybercrime in Ireland
Cork Institute of Technology
Date posted to database: 8 Feb 2016 [new to top ten]
|9||49||Authority, Freedom, and the Guilty Mind
Stephen P. Garvey
Cornell Law School
Date posted to database: 10 Feb 2016 [new to top ten]
|10||48||Rape Beyond Crime
Rutgers Law School
Date posted to database: 4 Mar 2016 [new to top ten]
Saturday, April 16, 2016
Issue summaries are from ScotusBlog, which also links to papers:
- U.S. v. Bryant: Whether reliance on valid uncounseled tribal-court misdemeanor convictions, in order to prove 18 U.S.C. § 117(a)’s predicate-offense element, violates the Constitution.
- Bernard v. Minnesota and related cases: Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
|1||498||Defending the Indefensible? The Increasingly Difficult Job of Defending Soldiers Accused of Sexual Assault
Mason S. Weiss
Government of the United States of America - Army
Date posted to database: 7 Mar 2016
|2||487||Policing Hoover's Ghost: The Privilege for Law Enforcement Techniques
Stephen W. Smith
Texas Southern University - Thurgood Marshall School of Law
Date posted to database: 2 Mar 2016
|3||471||How Private Insurers Regulate Public Police
University of Chicago Law School
Date posted to database: 19 Feb 2016
|4||378||A Revolution in Duty of Care?
University of Oxford - Faculty of Law
Date posted to database: 26 Feb 2016
|5||315||Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web
UC Hastings College of the Law
Date posted to database: 7 Mar 2016
|6||237||Trial by Machine
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 9 Mar 2016 [7th last week]
|7||217||'They Have All the Power': Youth/Police Encounters on Chicago's South Side
Craig B. Futterman, Chaclyn Hunt andJamie Kalven
University of Chicago Law School, Invisible Institute and Invisible Institute
Date posted to database: 27 Mar 2016 [8th last week]
|8||142||High Pain, No Gain: How Juvenile Administrative Fees Harm Low-Income Families in Alameda County, California
Jeffrey Selbin and Stephanie Campos
University of California, Berkeley - School of Law and University of California, Berkeley - School of Law
Date posted to database: 29 Feb 2016 [10th last week]
|9||141||Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy
Bryce Clayton Newell
Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)
Date posted to database: 4 Mar 2016
|10||154||Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court
Mark Denbeaux, Kelley Kearns andMichael J. Ricciardelli
Seton Hall University, School of Law, Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08
Date posted to database: 9 Apr 2016 [new to top ten]
Friday, April 15, 2016
Lynne Marie Kohm and Alison R. Haefner (Regent University - School of Law and Regent University, School of Law, Students) have posted Empowering Love and Respect for Child Offenders Through Therapeutic Jurisprudence: The Teen Courts Example (Sociology and Anthropology 4(4): 212-221 (2016)) on SSRN. Here is the abstract:
This article provides a viable alternative to traditional juvenile justice. A juvenile justice system essentially rests on the tradition of the best interest of the child standard, and is applied to the extent that the child is not transferred to adult criminal courts but sought to be rehabilitated in a court designed to meet the needs of children. Current juvenile justice systems, however, are in somewhat of a crisis. For example, for four decades the United States government has increased funding for incarcerating American youth, who are otherwise not a danger to public safety, in adult-like prisons. This trend has perpetuated juvenile crime into a lifestyle, and placed juvenile offenders at grave risk for abuse and a criminal future. Juvenile courts do not appear to be adequately handling juvenile crime, nor are they necessarily leaders in helping children in rehabilitation away from crime. In fact, the focus of the system is retributive, whether by intent or by caveat.
Jocelyn Simonson (Brooklyn Law School) has posted Beyond Body Cameras: Defending a Robust Right to Record the Police (Georgetown Law Journal, Vol. 104, 2016) on SSRN. Here is the abstract:
This symposium essay articulates and defends a robust First Amendment right to record the police, up to the point that the act of filming presents a concrete, physical impediment to a police officer or to public safety. To the extent that courts have identified the constitutional values behind the right to record, they have for the most part relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this essay contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.