Tuesday, September 9, 2014
Judith Cashmore and Rita Shackel (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted Introduction: Responding to Historical Child Sexual Abuse and the Needs of Survivors (Current Issues in Criminal Justice, Vol. 24, No. 1, pp. 1-4, 2014) on SSRN. Here is the abstract:
The aim of this Special Issue of Current Issues in Criminal Justice is to engage authors and the Journal’s readership in reflection on how the needs of victims and survivors of child sexual abuse can be better recognised and their justice needs responded to appropriately. The articles included in this issue canvass a range of issues from different professional and personal perspectives, and, importantly, brings together insights from both research and practice. The focus is on responses to historical cases of child sexual abuse, that is, cases involving allegations of abuse perpetrated many years earlier - a category of cases that is notoriously difficult to prosecute and for which redress or justice commonly remain elusive.
From The New York Times:
On Monday, Mr. Bratton, surrounded by much of his top leadership, delved into the details of his plan. Every officer would go through a three-day retraining course, on how to talk to an “uncooperative person” in a way that does not escalate into a physical conflict; how to subdue a suspect if the encounter does escalate or if a suspect resists arrest; and how to be sensitive to cultural differences. It would also include a leadership workshop called Blue Courage.
Mr. Bratton said that officers would be expected to retrain regularly in these techniques, as they do with the use of firearms, and that the course would likely evolve over time.
Monday, September 8, 2014
Joelle Lockwood, 30, went missing on July 9 and was apparently held in a residence in Indiana's Posey County, the Evansville Police Department said in a statement. Lockwood had last been seen in Evansville before disappearing.
She was freed after a man visiting the suspects got her out of the residence and brought her to Evansville, where detectives interviewed her then went to the residence and arrested the suspects, police said.
Robert P. Burns (Northwestern University - School of Law) has posted Preface for: Kafka's Law: 'The Trial' and American Criminal Justice (University of Chicago Press, 2014) on SSRN. Here is the abstract:
Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.
Jeffrey Bellin (William & Mary Law School) has this op-ed piece in the Washington Post. In part:
The guilty verdicts in the trial of former Virginia governor — and Republican sinking star — Robert McDonnell highlight an ugly tension between America’s politics and its public corruption laws. Beyond the pricey gifts, unraveling marriage and throw-your-wife-under-the-bus defense that dominated the media coverage lies a more important story. The real stars of this drama were the vague public corruption statutes that took down the former governor and the elusive distinction they draw between “politics as usual” and criminality.
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Big Data Distortions: Exploring the Limits of the ABA LEATPR Standards (66 Oklahoma Law Review 831 (2014)) on SSRN. Here is the abstract:
This article examines the American Bar Associations’ Standards for Criminal Justice proposed Law Enforcement Access to Third Party Records (LEATPR). The article was written to be part of an Oklahoma Law Review Symposium on the subject of the LEATPR Standards. The article explores how the ABA LEATPR Standards can survive the impact of big data policing. Big data policing, as described here, involves utilizing vast, networked databases to investigate and also predict criminal activity. Big data policing involves the use of not just third party, but "fourth party" commercial aggregators as well as de-identified data sets, that eventually can be re-identified. Without doubt, the LEATPR standards acknowledge these issues, and arguably cover them, but as set forth in this article, big data distorts the traditional Fourth Amendment analysis and, thus, the LEATPR standards may require a few modifications to be useful in the future.
Sunday, September 7, 2014
|1||377||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||323||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014
|3||302||Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Scott Cunningham andManisha Shah
Baylor University and UCLA School of Public Affairs
Date posted to database: 19 Jul 2014
|4||208||Why on Earth Do People Use Bitcoin?
Catherine Martin Christopher
Texas Tech University School of Law
Date posted to database: 25 Jul 2014 [10th last week]
|5||180||The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
University of Pennsylvania Law School
Date posted to database: 19 Jul 2014 [4th last week]
|6||142||Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons
Joan Petersilia and Francis T. Cullen
Stanford University and University of Cincinnati
Date posted to database: 24 Jun 2014 [5th last week]
|7||137||White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence
Lucian E. Dervan
Southern Illinois University School of Law
Date posted to database: 28 Jun 2014 [8th last week]
Dawinder S. Sidhu
University of New Mexico - School of Law
Date posted to database: 12 Jul 2014 [7th last week]
|9||151||Morse, Mind, and Mental Causation
Michael S. Pardo and Dennis Patterson
University of Alabama School of Law and European University Institute
Date posted to database: 17 Jul 2014 [6th last week]
|10||157||Waking the Furman Giant
Sam Kamin and Justin F. Marceau
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 5 Aug 2014 [new to top ten]
Saturday, September 6, 2014
My concern is not with those who produce or distribute child pornography for financial gain. Such individuals willfully do serious injury to the most vulnerable members of our society and deserve whatever punishment the law provides. Certainly no one can have much sympathy with those who prey upon young children in order to benefit themselves. Those individuals are ordinarily motivated by wholly selfish interests that they are perfectly capable of controlling. In contrast, those who only view child pornography, including those who exchange video computer files, are in all likelihood the victims of a form of mental illness that prevents them from controlling what they would otherwise understand to be not only unhealthy impulses but impulses that result in great harm to the most innocent members of our society.
Friday, September 5, 2014
The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.
Felonies are serious crimes, such as murder, rape, or arson, for which the typical consequence is capital punishment or imprisonment for over a year. Etymologically, the word felony originally connoted wickedness or evil. The category of felony derives from the English common law, in which a felony conviction traditionally resulted in forfeiture of land and movables, as well as the death penalty. The possible consequences of a felony conviction continue to be monumental today, including disenfranchisement, termination of parental rights, and ineligibility for jury service. Some jurisdictions have done away with the felony/misdemeanor distinction, opting instead for more neutral categories such as indictable and summary offenses.
Immigration judges routinely use police reports to make life-altering decisions in noncitizens’ lives. The word of the police officer prevents a detainee from being released on bond, leads to negative discretionary decisions in relief from removal, and can prove that a past crime fits within a ground of removability. Yet the police officers who write these reports rarely step foot in immigration court; immigration judges rely on the hearsay document to make such critical decisions. This practice is especially troubling when the same police reports cannot be used against the noncitizen in a criminal case without the officer testifying, due to both the Sixth Amendment’s Confrontation Clause and Federal Rules of Evidence, neither of which apply in immigration court. In these days of the increasing criminalization of immigration law and prioritization of deporting so-called “criminal aliens,” the police report problem is salient, and impacts thousands of noncitizens every year.
Mark A. Cohen (Vanderbilt University - Owen Graduate School of Management) has posted Willingness to Pay to Reduce White Collar and Corporate Crime on SSRN. Here is the abstract:
Consumer protection and financial regulatory agencies such as the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), and the Consumer Financial Protection Bureau (CFPB) regulate various types of consumer, investor and financial frauds. Whether required or not, rulemaking proceedings oftentimes include some form of cost-benefit analysis. Thus, the benefits of proposed regulations – whether fully quantified or not – are an increasingly important component of rulemaking decisions. Anecdotal evidence suggests that the impact on victims in some cases include significant time and financial hardships and even pain, suffering and reduced quality of life. Further, the existence of these offenses causes non-victims to take costly precautionary behavior and might even inhibit legitimate business activities. Yet, little is known about the true costs of consumer and financial crimes other than the out-of-pocket monetary losses incurred by victims. To the extent society wishes to optimally deter such crimes, without better data on nonmonetary costs, any cost-benefit analyses of criminal justice or prevention programs designed to reduce these crimes will inevitably underestimate program benefits. This paper provides an initial framework and empirical estimates of the willingness-to-pay to reduce four types of white collar and corporate offenses – consumer fraud, financial fraud, corporate crime and corporate financial crime.
Thursday, September 4, 2014
From The Washington Post:
Prosecutors put on a compelling case, showing jurors several instances in which gifts and loans were provided in close proximity to the McDonnells’ efforts to assist Williams and his company. But defense attorneys noted, accurately, that even Williams himself did not describe an explicit, corrupt bargain he had with the governor. And they noted that Williams was testifying with generous immunity agreements, which they said motivated him to lie about his relationship with the McDonnells.
A second wave of false confessions is cresting. In the first twenty-one years of post-conviction DNA testing, 250 innocent people were exonerated, forty of which had falsely confessed. Those false confessions attracted sustained public attention from judges, law enforcement, policymakers, and the media. Those exonerations not only showed that false confessions can happen, but did more by shedding light on the problem of confession contamination, in which details of the crime are disclosed to suspects during the interrogation process. As a result, false confessions can appear deceptively rich, detailed, and accurate. In just the last five years, there has been a new surge in false confessions — a set of twenty-three more false confessions among DNA exonerations. All but two of these most recent confessions included crime scene details corroborated by crime scene information. Illustrating the power of contaminated false confessions, in nine of the cases, defendants were convicted despite DNA tests that excluded them at the time. As a result, this second wave of false confessions should cause even more alarm than the first. In the vast majority of cases there is no evidence to test using DNA. Unless a scientific framework is adopted to regulate interrogations, including by requiring recording of entire interrogations, overhauling interrogation methods, providing for judicial review of reliability at trial, and informing jurors with expert testimony, the insidious problems of confession contamination will persist.
A tearful judge on Wednesday sent a white Michigan man to prison for at least 17 years for fatally shooting an unarmed black teenager on his front porch in a racially charged case that sparked protests in the Detroit area.
. . .
"This one of the saddest cases," said Hathaway, who teared up as she delivered the sentence after an emotional hearing. "An unjustified fear is never an excuse to take someone's life."
. . .
Wafer told police his weapon went off by accident but prosecutors convinced a jury that not only did Wafer intend to kill, he had previous experience with firearms and had other options to resolve the situation.
Irina D. Manta and Robert E. Wagner (Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law) have posted Intellectual Property Infringement as Vandalism on SSRN. Here is the abstract:
Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.
Wednesday, September 3, 2014
From The Wall Street Journal:
The legality of the National Security Agency's bulk collection of phone records will be tested this week before a panel of federal judges, the first appeals court to address the controversial program amid efforts by Congress to rein it in.
The hearing scheduled for Tuesday at the Second U.S. Circuit Court of Appeals in New York stems from a lawsuit filed by the American Civil Liberties Union and its New York affiliate. It was filed in June 2013, days after the program was revealed in news reports, which relied largely on documents provided by former NSA contractor Edward Snowden.
Mark N. Gasson and Bert-Jaap Koops (University of Reading - Department of Cybernetics and Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)) have posted Attacking Human Implants: A New Generation of Cybercrime (5 Law, Innovation and Technology (2), p. 248-277) on SSRN. Here is the abstract:
Human ICT implants, such as RFID implants, cochlear implants, cardiac pacemakers, Deep Brain Stimulation, bionic limbs connected to the nervous system, and networked cognitive prostheses, are becoming increasingly complex. With ever-growing data processing functionalities in these implants, privacy and security become vital concerns. Electronic attacks on human ICT implants can cause significant harm, both to implant subjects and to their environment. This paper explores the vulnerabilities that human implants pose to crime victimisation in light of recent technological developments, and analyses how the law can deal with emerging challenges of what may well become the next generation of cybercrime: attacks targeted at technology implanted in the human body.
Karena Rahall (Seattle University School of Law) has posted The Green to Blue Pipeline: Defense Contractors and the Police Industrial Complex on SSRN. Here is the abstract:
Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, SWAT teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the “wars” on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into one of engaging and defeating. This Article is the first in legal scholarship to analyze the causes of police militarization and the obstacles to curbing it.
Tuesday, September 2, 2014
President Obama’s use of enforcement discretion to achieve important domestic policy initiatives – including in the field of criminal law – have sparked a vigorous debate about where the President’s duty under the Take Care Clause ends and legitimate enforcement discretion begins. But even with broad power to set enforcement charging policies, the President controls only the discretion of his or her agents at the front-end to achieve policy goals. What about enforcement decisions already made, either by his or her own agents or actors in previous administrations, with which the President disagrees? The Framers anticipated this issue in the context of criminal law and vested the President with broad and explicit back-end control through the constitutional pardon power. But while centralized authority over enforcement discretion at the front-end has grown, the clemency power finds itself falling into desuetude.