CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, April 13, 2017

Pascoe on Comparative Death Penalty Clemency

Daniel Pascoe (City University of Hong Kong (CityUHK) - School of Law) has posted The Functions of Death Penalty Clemency in Southeast Asia: Comparative Lessons for Vietnam on SSRN. Here is the abstract:

As the final procedural barrier separating life and death in capital cases, executive clemency has traditionally not received the attention it deserves from comparative law and comparative criminal justice scholars. This article aims to build upon my previous scholarship on death penalty clemency in Southeast Asia in two ways: by focusing on the ‘who’ question in clemency awards in the region rather than on ‘how many’ prisoners benefit, and also by updating my previous empirical findings in light of any new clemency data available since 2013. Part B introduces the clemency power and describes its four modern functions, according to the academic literature. Part C relays the contemporary and possible future clemency practice of each ‘actively retentionist’ Southeast Asian nation. Finally, Part D provides brief reflections on what this regional use of clemency might mean for Vietnam’s future clemency policy.

April 13, 2017 | Permalink | Comments (0)

Wednesday, April 12, 2017

Leary on Affirmative Consent

Mary Leary (Catholic University of America (CUA)) has posted Affirmatively Replacing Rape Culture with Consent Culture (Texas Tech Law Review, Vol. 49, Pp. 1-56, 2016) on SSRN. Here is the abstract:

The debate concerning affirmative consent consists of two camps: those who assert people must affirmatively establish a desire to engage in sexual contact and those who believe this is an unattainable standard. However, this is not where the debate should start and end. This paper argues that the movement towards affirmative consent in sexual contact will reduce the occurrence of sexual assault. Criminal law sets the backdrop for this paper, but the author recognizes the limits of criminal law. In order to combat sexual assault, there must be a multidisciplinary response. By providing a comprehensive definition of affirmative consent and examining the social harm of sexual assault that the criminal law seeks to rectify, the author will establish that the creation of an affirmative consent culture, rather than simply an affirmative consent law, will enhance protections for women. Affirmative consent means more than “yes means yes.” This paper responds to the many critiques of the affirmative consent model including that it will not eliminate sexual assault, that this standard criminalizes sex, and that it shifts the burden to a defendant. Rather, the author proposes a three pronged approach to affirmative consent which mirrors that of the anti-drunk driving methodology of the 20th Century: education, social stigma, and criminal law adjustments.

April 12, 2017 | Permalink | Comments (0)

Schwartz on Punishment in Shakespeare

Regina Schwartz has posted Rethinking Crime and Punishment, Rebuke and Love (Published as “Revenge, Forgiveness, and Love in Shakespeare,” in Love and Forgiveness for a More Just World, eds. Hent de Vries and Nils F. Schott, Columbia University Press, 2015) on SSRN. Here is the abstract:

Why do we punish so hard and so much? What are the justifications for punishment? There is rampant confusion between wrongful behavior and the idea of “a bad person.” Our system of retribution denies the offender dignity. To Plato, it makes no sense to add further injury to injury, to hurt the hurter. His model is not of a bad person who needs to be punished but of a hurting person who needs healing. Shakespeare associates retribution with the onset of madness in Lear and Othello, and in Hamlet he writes an anti-revenge drama. And in this anti-revenge play where daggers are futile, rebuke is not futile. ” In Leviticus 19:17-18, along with the injunctions against vengeance, against hating, and even against bearing a grudge, all alongside the command to love the neighbor, is the injunction : “You shall surely rebuke your neighbor.” The story of Jonah in the Bible mocks the idea of strict retributive justice: the inhabitants of the wickedest city on earth are rebuked, repent, and then are forgiven by God, who defies Jonah’s demand that justice requires their punishment. The Joseph story takes up retribution again, and again rebuke is restorative for perpetrators and for the victim. In not leaving the offense unrecognized, rebuke also restores justice for the community, the tribes of Israel. Rebuke and forgiveness, rather than ignoring the culpability of the offender, are designed to make it explicit. Forgiveness is relational, between someone who harms and someone harmed; and because their relation is broken, initiatives and responses are required from both for their relation to heal. From the side of the injured issues recognition of offense and rebuke, from the injurer, acknowledgement and confession, from the injured, an offering of help, from the injurer, remorse, from the injured, recognition of that remorse, from the injurer apology, from the injured, forgiveness. Forgiveness is a process, and its unfolding is not unlike narrative or theater: we see it at work in The Tempest.

April 12, 2017 | Permalink | Comments (0)

Tuesday, April 11, 2017

Berry & Ryan on Cruel and Unusual Punishments

William W. Berry III and Meghan J. Ryan (University of Mississippi School of Law and Southern Methodist University - Dedman School of Law) have posted Cruel Techniques, Unusual Secrets (Ohio State Law Journal, Vol. 78, 2017) on SSRN. Here is the abstract:

In the recent case of Glossip v. Gross, the Supreme Court denied a death row petitioner’s challenge to Oklahoma’s lethal injection protocol. An important part of Justice Alito’s majority opinion highlighted the existence of a relationship between the constitutionality of a punishment and the requirement of a constitutional technique available to administer the punishment.

Far from foreclosing future challenges, this principle ironically highlights the failure of the Court to describe the relationship under the Eighth Amendment between three distinct categories of punishment: (1) the type of punishment imposed by the court — i.e., death penalty, life without parole, life with parole, (2) the method of punishment — the tool by which the state administers the punishment, and (3) the technique of punishment — the manner in which the state administers the punishment. Because, as Justice Alito insists, a constitutional method and technique must exist for a constitutionally approved punishment, there is a constitutional relationship between these categories.

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April 11, 2017 | Permalink | Comments (0)

Levin on Criminal Employment Law

Benjamin Levin has posted Criminal Employment Law (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system. But private employers act without constitutional or significant structural checks. Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment. Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market. And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 11, 2017 | Permalink | Comments (0)

Hsiao on Comparative Corporate Manslaughter

Mark W. H. Hsiao (Leicester Law School, University of Leicester) has posted The Shift in China from Corporate Crime to Corporate Manslaughter Crime: Comparisons with the UK and Australia ([2015] (1) Journal of Business Law 68-83) on SSRN. Here is the abstract:

The Chinese Criminal Law 19971 (CL 1997) recognises that corporations can be guilty of committing crimes: in other words, that they can exhibit a legal personality. However, there have been few comparative studies which have the aim of conceptualising the value and benefits that this criminal liability has actually brought to China. The author seeks to find out how this corporate criminal liability was incorporated into the Chinese drafting, and suggests that provisions of corporate criminal liability extend to regulate the crime of "corporate manslaughter". Through comparisons with Australia and the United Kingdom, this article shows the similarities in the adoption of "negligence" for regulating the crime of corporate manslaughter. This negligence standard is inherently an objective standard that represents the corporate intent. In addition, the author argues that much like the United Kingdom’s Health and Safety at Work Act 1974, the Chinese Work Safety Law is an alternative means of regulating the crime of corporate manslaughter, apart from the fact that it is derived from the socialist principle of workers’ rights.

April 11, 2017 | Permalink | Comments (0)

Sarch on Unmanifested Mental States

Alex F. Sarch (University of Surrey School of Law) has posted Who Cares What You Think? Criminal Culpability and the Irrelevance of Unmanifested Mental States (Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

The criminal law declines to punish merely for bad attitudes that are not properly manifested in action. One might try to explain this on practical grounds, but these attempts do not justify the law’s commitment to never punishing unmanifested mental states in worlds relevantly similar to ours. Instead, a principled explanation is needed.

A more promising explanation thus is that one cannot be criminally culpable merely for unmanifested bad attitudes. However, the leading theory of criminal culpability has trouble making good on this claim. This is the theory that an action is criminally culpable to the extent that it manifests insufficient regard for legally protected interests. The trouble is that this theory’s defenders have not adequately explained what it is for an action to manifest insufficient regard.

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April 11, 2017 | Permalink | Comments (0)

Monday, April 10, 2017

Hanna on Drunk Driving and Autonomous Vehicles

Katherine Hanna has posted Old Laws New Tricks: Drunk Driving and Autonomous Vehicles (Jurimetrics, Vol. 55, 2015) on SSRN. Here is the abstract:

Drunk driving, or driving under the influence (DUI), is a major public health problem in the United States. Despite attempts to educate drivers on the dangers of drunk driving and deter such behavior through criminal punishment, there are still thousands of deaths attributable to drunk driving every year and billions of dollars spent on damage from auto accidents, loss of life, injuries, deterrence, and punishment. Recent developments in autonomous vehicle technology could reduce or eliminate DUI-related accidents within the next decade. However, even in future autonomous vehicle systems that will ave the potential to drive themselves in most circumstances, human intervention will sometimes be necessary. This article applies current DUI laws to autonomous vehicles and proposes a legislative change to clarify DUI laws and enhance the public safety.

April 10, 2017 | Permalink | Comments (0)

Leary on Sex Purchasers

Leary maryMary Leary (Catholic University of America (CUA)) has posted Dear John, You are a Human Trafficker (South Carolina Law Review, Vol. 68, Pp. 413-450, 2016) on SSRN. Here is the abstract:

Human trafficking finally presents a crime that appropriately shifts the culpability from the abused to the abuser. As the heinous world of human trafficking is studied and more is understood about its inner workings, we can no longer conflate victimization with over-criminalization. The purpose of this paper is to shine light on the force and fraud that perpetuates the enslavement of victims who are sexually trafficked. Beginning with the Mann Act passed by Congress and up until more recently, the Trafficking Victims Protection Act, this paper traces the historical and societal shifts that are necessary to situate Sex Purchasers in their proper place as the cause of so much victimization. It also calls for the need to refocus our methodology and law enforcement efforts to change previously held beliefs about the causes and effects of prostituting people. Sex trafficking is the use of force, fraud, coercion or the use of minors to in engage in a commercial sexual act. When Congress passed the Trafficking Victims Protection Act and finally identified sex trafficking as a standalone federal crime, this passage paved the way for an effective way to combat sex trafficking; prosecution of the sex purchasers. This recent legislation can be used to put purchasers in their proper place as integral components to the system of degradation that is sex trafficking. Such a tool can only be effective if utilized by prosecutors. Resistance to this effort has precluded this legislation from reaching its promise. This article proposes adjustments to the sentencing scheme of Purchasers of Sex convicted of sex trafficking. It calls for a graduated approach to sentencing determined by the level of knowledge of the purchaser to accurately reflect the gravity of the victimization.

April 10, 2017 | Permalink | Comments (0)

Coen & Doak on Explained Jury Verdicts

Mark Coen and Jonathan Doak (University College Dublin (UCD) and Nottingham Law School) have posted Embedding Explained Jury Verdicts in the English Criminal Trial on SSRN. Here is the abstract:

English juries do not provide reasons for their verdicts. This article argues that transparency is a fundamental value in modern decision-making, and that reform is needed to trial by jury so that verdicts are routinely accompanied by explanations. It examines the options that exist to incorporate explained verdicts in the English criminal trial and concludes that accountability and legitimacy would be enhanced through the use of a trained, independent lay facilitator to chair the deliberation process and draft an explained verdict.

April 10, 2017 | Permalink | Comments (0)

Gold et al. on Civilizing Criminal Settlements

Russell M. Gold, Carissa Byrne Hessick and F. Andrew Hessick (Wake Forest University - School of Law, University of North Carolina (UNC) at Chapel Hill - School of Law and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted Civilizing Criminal Settlements (Boston University Law Review, 2017) on SSRN. Here is the abstract:

Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.

This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements.

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April 10, 2017 | Permalink | Comments (0)

Sunday, April 9, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 668 Law, Virtual Reality, and Augmented Reality
Mark A. Lemley and Eugene Volokh
Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Mar 2017 
2 477 How Should Justice Policy Treat Young Offenders?
BJ Casey, Richard J. Bonnie, Andre Davis,David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim A. Taylor-Thompson and Anthony D. Wagner
Yale University - Department of Psychology, University of Virginia - School of Law, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Stanford University - Psychology
Date posted to database: 28 Feb 2017 
3 147 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 
4 121 Why Prison?: An Economic Critique
Peter N. Salib
University of Chicago
Date posted to database: 7 Mar 2017 
5 114 Neuroethics: Neurolaw
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 
6 106 Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs
Sahar F. Aziz
Texas A&M University School of Law
Date posted to database: 9 Feb 2017 
7 101 Resurrecting Labor
Richard A. Bales
Ohio Northern University - Pettit College of Law
Date posted to database: 28 Mar 2017 [new to top ten]
8 93 Incredible Women: Sexual Violence and the Credibility Discount
Deborah Tuerkheimer
Northwestern University - Pritzker School of Law
Date posted to database: 21 Feb 2017 
9 79 Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 7 Feb 2017 
10 70 The Legal Consequences of Noncompliance with Federal Tax Laws
Allen D. Madison
University of South Dakota Law School
Date posted to database: 10 Feb 2017 

April 9, 2017 | Permalink | Comments (0)

Saturday, April 8, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 4,256 Encryption Workarounds
Orin S. Kerr and Bruce Schneier
The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society
Date posted to database: 22 Mar 2017 
2 289 Surveillance Intermediaries
Alan Z. Rozenshtein
Georgetown University Law Center
Date posted to database: 20 Mar 2017 [5th last week]
3 272 The Progressive Prosecutor's Handbook
David Alan Sklansky
Stanford University
Date posted to database: 15 Feb 2017 
4 241 The Undue Influence of Surveillance Technology Companies on Policing
Elizabeth E. Joh
University of California, Davis - School of Law
Date posted to database: 28 Feb 2017 
5 187 Reassessing Prosecutorial Power Through the Lens of Mass Incarceration
Jeffrey Bellin
William & Mary Law School
Date posted to database: 9 Mar 2017 [7th last week]
6 175 The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Independent
Date posted to database: 14 Feb 2017 
7 147 Predicting the Knowledge-Recklessness Distinction in the Human Brain
Iris Vilares, Michael Wesley, Woo-Young Ahn,Richard J. Bonnie, Morris B. Hoffman, Owen D. Jones, Stephen Morse, Gideon Yaffe, Terry Lohrenz and Read Montague
University College London - Wellcome Trust Center for Neuroimaging, University of Kentucky - Behavioral Science, Ohio State University (OSU) - Department of Psychology, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, University of Pennsylvania Law School, Yale Law School, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute
Date posted to database: 16 Mar 2017 [10th last week]
8 137 Due Process Abroad
Nathan S. Chapman
University of Georgia School of Law
Date posted to database: 21 Feb 2017 
9 128 The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow andAnkur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 
10 128 Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System
Rebecca Wexler
Data & Society Research Institute
Date posted to database: 21 Feb 2017 [new to top ten]

April 8, 2017 | Permalink | Comments (0)

Friday, April 7, 2017

Buskey & Lucas on Counsel in Misdemeanor Cases

Brandon Buskey and Lauren Sudeall Lucas (ACLU and Georgia State University College of Law) have posted Keeping Gideon's Promise: Using Equal Protection to Address the Denial of Counsel in Misdemeanor Cases (85 Fordham Law Review 2299 (2017)) on SSRN. Here is the abstract:

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants the right to counsel, and the U.S. Supreme Court has made clear that right is applicable to all defendants in felony cases, even those unable to afford a lawyer. Yet, for defendants facing misdemeanor charges, only those defendants whose convictions result in incarceration are entitled to the assistance of counsel.

The number of misdemeanor prosecutions has increased dramatically in recent years, as have the volume and severity of collateral consequences attached to such convictions; yet, the Court’s right to counsel jurisprudence in this area has remained stagnant. Critics of the doctrinal and pragmatic problems created by the Court’s actual incarceration standard have advocated for various reforms to better protect people accused of misdemeanors, including redefinition or expansion of the right to counsel and legislative changes that would cut back on incarceration and allow states to better apportion their limited resources among defendants.

This Article offers a novel perspective, grounded in due process and equal protection and a line of Supreme Court cases that guarantee equal access to the courts.

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April 7, 2017 | Permalink | Comments (0)

Kolber on Smoothing Vague Laws

KolberAdam J. Kolber (Brooklyn Law School) has posted Smoothing Vague Laws (Vagueness and Law: Philosophical and Legal Perspectives (Geert Keil & Ralf Poscher eds., 2016) (Oxford University Press)) on SSRN. Here is the abstract:

Laws often draw sharp distinctions along properties that spread across spectra. For example, a person might use force in self-defense in a manner that is very reasonable, borderline reasonable, somewhat unreasonable, or very unreasonable. Courts typically focus, however, on whether a defendant was sufficiently reasonable and not how reasonable he was. Such legal distinctions can have dramatic implications. One person acting in reasonable self-defense may have a complete legal justification for killing someone, while another using just a bit less caution may be imprisoned for many years for murder. Though the reasonableness of two people purporting to act in self-defense may only vary slightly, their legal treatment may radically differ, even if we all agree about precisely how reasonable each was.

I argue that we can ameliorate some of these harsh effects by “smoothing” the law. Namely, we can make the consequences of violating a law depend not on crossing some sharp boundary but on a feature that varies along a spectrum. While there are costs to smoothing the law that must be weighed against the benefits, we ought to look for good opportunities to make the law smoother than it is now.

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April 7, 2017 | Permalink | Comments (1)

Thursday, April 6, 2017

Rivera on Due Process and Speedy Extradition

Artemio Rivera has posted A Case for the Due Process Right to a Speedy Extradition (50 Creighton Law Review 249 (2017)) on SSRN. Here is the abstract:

Some lower courts have held that there is no due process right to a speedy extradition. Courts ground this conclusion on categorical and formalistic arguments that ignore the current realities of extradition proceedings and the modern jurisprudence on procedural due process. These arguments are also similar to doctrines in immigration and national security law that have fallen out of favor with the Court.

This Article argues that the categorical distinctions used to consider due process challenges in extradition proceedings are inconsistent with current developments in the law of due process. It also argues that courts should apply the balancing test of Mathews v. Eldridge when considering procedural safeguards in international extradition just as the Court has done in recent immigration and national security cases. Applying Mathews to issues of extradition delay shows that procedural safeguards similar to those the Court has adopted for criminal cases in Barker v. Wingo and United States v. Lovasco are appropriate in international extradition.

April 6, 2017 | Permalink | Comments (0)

Shen on Law and Neuroscience

Shen francisFrancis X. Shen (University of Minnesota Law School) has posted Law and Neuroscience 2.0 (48 ARIZ. ST. L.J. 1043 (2017) (Symposium issue: Evolutionary Analysis in Law)) on SSRN. Here is the abstract:

Law and neuroscience is approaching an inflection point. It has been roughly ten years since the New York Times Magazine put neurolaw on its cover, since Stanford neuroscientist Robert Sapolsky wrote his seminal article, “The Frontal Cortex and the Criminal Justice System”; and since law professor Adam Kolber taught the first law and neuroscience course. The MacArthur Foundation Research Network on Law and Neuroscience, which has been one of the epicenters of the field over this same period, will wind down its primary research projects soon.

So what comes next?

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April 6, 2017 | Permalink | Comments (0)

Dripps on Miranda

DrippsMy colleague and blog contributing editor, Donald A. Dripps, has posted a new manuscript on SSRN, Miranda for the next Fifty Years: Why the Fifth Amendment Should Go Fourth (Boston University Law Review, Forthcoming). As always with Don, the piece is well worth reading.

Here is the abstract:

This Article addresses the enduring controversy over the Miranda rules by comparing the Miranda jurisprudence with the Fourth Amendment jurisprudence. The Fourth Amendment cases express a strong preference for articulating doctrine in the form of rules. The critique of Miranda as judicial legislation therefore calls into question central elements of modern Fourth Amendment law, i.e., the warrant requirement, the deterrence-based exclusionary rule, and institutional reform injunctions aimed at preventing future, rather than remedying past, constitutional violations.

In contrast to the Miranda doctrine, Fourth Amendment law has been dynamic, adjusting to technological, social and doctrinal changes. The sweeping changes in law, technology and society since 1966 have made solving crimes without confessions more feasible. They also have prompted fresh concern about unreliable, as distinct from compelled, confessions. The Supreme Court should bring the Fourth Amendment’s preference for rules and sensitivity to change into Fifth Amendment doctrine. It can do this by mandating a recording requirement, but there are other promising alternatives. The Court might adjust the Edwards doctrine, and/or the Miranda exclusionary rule, to encourage police adoption of Miranda-plus safeguards such as recording requirements, time limits, and reliability-based questioning tactics. Articulating the law of interrogation in the form of dynamic rules would improve Fifth Amendment doctrine by aligning it with Fourth Amendment doctrine.

--KC

 

April 6, 2017 | Permalink | Comments (0)

Wednesday, April 5, 2017

Mueller on Mezzanatto Waivers

Mueller christopherChristopher B. Mueller (University of Colorado Law School) has posted ‘Make Him an Offer He Can't Refuse’ – Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach (82 U. Mo. L. Rev. ____ (Forthcoming)) on SSRN. Here is the abstract:

Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say in negotiations with prosecutors can be admitted against them if a trial ensues, despite Evidence Rule 410, which provides that such statements are inadmissible. These waivers, which are largely overlooked in the vast literature that criticizes plea bargaining, are in fact lynchpins in a system that is horrifying to contemplate.

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April 5, 2017 | Permalink | Comments (0)

Buonanno et al. on Comparative Crime Statistics

Paolo Buonanno, Francesco Drago, Roberto Galbiati and Pietro Vertova (University of Bergamo, University of Messina, CSEF & CEPR, CEVIPOF, Centre de recherches politiques, Sciences Po and CNRS and University of Siena - Department of Economics) have posted How Much Should We Trust Crime Statistics? A Comparison between EU and US on SSRN. Here is the abstract:

We discuss measurement issues in crime rates in a cross-country comparative perspective. We show that while homicide and general crime rates follow quite similar patterns in the US this is not always the case in Europe. We provide an explanation of the observed patterns based on the use of fire harms.

April 5, 2017 | Permalink | Comments (0)