Sunday, April 13, 2014
|1||669||Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing
Mark W. Bennett and Ira P. Robbins
U.S. District Court (Northern District of Iowa) and American University - Washington College of Law
Date posted to database: 13 Mar 2014
|2||379||The Due Process Exclusionary Rule
Richard M. Re
Yale Law School
Date posted to database: 28 Feb 2014
|3||307||Thinking Slow About Sexual Assault in the Military
Matthew David Burris
United States Airforce
Date posted to database: 26 Mar 2014 [new to top ten]
|4||264||Law and Neuroscience
Owen D. Jones, Jeffrey D. Schall andFrancis X. Shen
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School
Date posted to database: 19 Mar 2014
|5||260||Will There Be a Neurolaw Revolution?
Adam J. Kolber
Brooklyn Law School
Date posted to database: 19 Feb 2014
|6||260||Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction
DePaul University - College of Law
Date posted to database: 3 Mar 2014[new to top ten]
|7||209||Intellectual Property and the Presumption of Innocence
Irina D. Manta
Hofstra University - Maurice A. Deane School of Law
Date posted to database: 5 Feb 2014 [6th last week]
|8||207||The Illusory Eighth Amendment
John F. Stinneford
University of Florida Levin College of Law
Date posted to database: 7 Feb 2014 [7th last week]
Joshua D. Blank and Ruth Mason
New York University School of Law and University of Virginia School of Law
Date posted to database: 2 Feb 2014 [8th last week]
|10||187||A Perfect Storm Brewing for Fire Investigators in Court
Terry-Dawn Hewitt and Wayne J. McKenna
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 9 Mar 2014 [new to top ten]
Saturday, April 12, 2014
Paul H. Robinson (University of Pennsylvania Law School) has posted Murder Mitigation in the Fifty-Two American Jurisdictions: A Case Study in Doctrinal Interrelation Analysis on SSRN. Here is the abstract:
The essay surveys the law in the fifty-two American jurisdictions with regard to the three doctrines that commonly provide a mitigation or defense to murder liability: common law provocation and its modern counterpart, extreme mental or emotional disturbance; the so-called diminished capacity defense and its modern counterpart, mental illness negating an offense element; and the insanity defense. The essay then examines the patterns among the jurisdictions in the particular formulation they adopt for the three doctrines, and the combinations in which those formulations commonly appear in different jurisdictions. After this review, the essay steps back to see what kinds of general conclusions can be drawn from the patterns that the survey reveals. The methodology offers a case study in the kinds of insights to be gained from such doctrinal interrelation analysis, insights about not only the doctrines at hand but also about the law-making process that produced them.
Felony murder is a much-maligned and much-misunderstood doctrine. At its broadest, it is indefensible. Guyora Binder and David Crump have compellingly shown that this broad felony murder never really existed and that the limitations that jurisdictions have placed on the doctrine largely make it normatively acceptable.
Vicarious felony murder, however, has not been so defended. This article provides such a defense, drawing from philosophy and psychology work on joint shared intention, action and omission, and imputation of culpability. It concludes that, to the extent that underlying felony murder is normatively appropriate and methods of proof are reliable, vicarious felony murder is also eminently defensible because it reliably functions to discern culpability and impose condign punishment.
Orin Kerr has this timely post at The Volokh Conspiracy. In part;
The cell phone search cases currently pending at the Supreme Court, Wurie and Riley, offer the Justices three basic choices for when the Fourth Amendment allows a warrantless search of a cell phone at the time of arrest under the search incident to arrest exception to the warrant requirement. The answer could be “always,” underUnited States v. Robinson; “sometimes,” primarily under Arizona v. Gant; or “never,” under Chimel v. California. In this post, I want to explain why I think the answer shouldn’t be “always.” In my next post, I’ll explain why I think that both “sometimes” and “never” are plausible answers, and I’ll try to mark out the parameters of the choice between them.
From The Crime Report:
Texas Gov. Rick Perry’s dramatic rejection last month of the federal Prison Rape Elimination Act(PREA) called attention to the fact that many states are having trouble complying with 288 regulations required to follow the 11-year-old law.
On March 28, Perry said that his state would not comply with new federal standards aimed at preventing sexual assaults in prisons, calling them a “burden” and “ill-conceived” in a letter to Attorney General Eric Holder.
Friday, April 11, 2014
Paul J. Larkin Jr. (The Heritage Foundation) has posted Funding Favored Sons and Daughters: Nonprosecution Agreements and 'Extraordinary Restitution' in Environmental Criminal Cases (Loyola Law Review, New Orleans, Vol. 47, 2014, Forthcoming) on SSRN. Here is the abstract:
Over the past eight years, the federal government has entered into more than two hundred nonprosecution agreements with corporations in white-collar crime cases. In such agreements the government promises to cease its investigation and forego any potential charges so long as the corporation agrees to certain terms. And there’s the rub: given the economic realities of just being charged with a white-collar crime these days, corporations are more than willing to accept nonprosecution agreements. Prosecutors are cognizant of this willingness, as well as of the fact that these agreements are practically insulated from judicial review. This results in the prosecution possessing a seemingly unfettered discretion in choosing the terms of a nonprosecution agreement. The breadth of this discretion is nowhere more apparent than in environmental criminal cases. Nonprosecution agreements in such cases have begun to require corporations to donate monetarily to a nonprofit of the government’s choosing. Indeed, in 2012 British Petroleum agreed to pay more than $2.394 billion to nonprofit agencies. This Article critiques this practice by highlighting the inconsistencies between nonprosecution agreements and plea bargaining — the latter are subject to judicial review while the former are not — and unearthing the differences between these payments and any common-law understanding of restitutionary principles. The Article then suggests that the practical result of these nonprosecution agreements is that prosecutors are diverting money that ought to be paid to the Treasury to government-chosen nonprofit agencies, a power constitutionally granted to legislative actors. Finally, the Article concludes by suggesting a modest reform: judicial review by a United States magistrate judge, so as not to run into any Article III concerns, to ensure that prosecutors do not take advantage of the nonprosecution-agreement process.
Kevin M. Barry (Quinnipiac University - School of Law) has posted From Wolves, Lambs (Part 2): The Fourteenth Amendment Case for Gradual Abolition of the Death Penalty on SSRN. Here is the abstract:
Can a state abolish its death penalty for future crimes while retaining it for those already on death row? This turns out to be a novel question in modern death penalty law, one that has not been answered in nearly a century. In 2014, in the case of State v. Santiago, the Connecticut Supreme Court will be the first court in modern times to answer the question. This Article predicts that the answer to the question will be yes.
Although the Connecticut Supreme Court will be the first court to answer this question in almost one hundred years, it will not be the last. Two inmates remain on death row in New Mexico following that state’s prospective-only repeal in 2009, five inmates remain on death row in Maryland following that state’s prospective-only repeal in 2013, and Kansas and Delaware, with a total of twenty-eight inmates on death row, are poised to abolish their death penalties prospective-only in the near future.
Thursday, April 10, 2014
Eugene Volokh has this post at The Volokh Conspiracy. In part:
I’ve blogged before about the danger of criminal harassment laws, when they are extended beyond offensive speech to one particular unwilling person — the traditional telephone harassment example — and apply instead to speech about a person. (See posts here and here, as well as this law review article, which starts by concrete examples of how such laws have been used.) And the prosecutor’s statement in this argument helps illustrate just how broadly prosecutors can read such laws.
Manuel A. Utset (Florida State University College of Law) has posted two pieces on SSRN. The first is Corporate Actors, Corporate Crimes and Time-Inconsistent Preferences (1 Virginia Journal of Criminal Law, No. 2, p. 265 (2013)). Here is the abstract:
This article examines criminal misconduct by corporations and their agents. It allows for the possibility that corporate agents systematically mispredict their future willpower — their ability to withstand the transient pull of immediate gratification. The article shows that even relatively small mispredictions about their willpower can lead agents to engage in repeated misconduct, notwithstanding a long-term preference to obey the law — “time-inconsistent (TI) misconduct.” As a result, in most criminal law scenarios, the optimal sanctions for corporate actors with perfect self-control will under-deter TI actors. But the article also shows that, to the extent that the immediate costs of committing a crime are sufficiently high, a TI actor may repeatedly procrastinate following through with misconduct that, from a long-term perspective, made economic sense — i.e., the expected benefits exceeded the expected sanctions. In scenarios involving this sort of “time-inconsistent obedience,” the standard optimal sanctions will under-deter. The TI misconduct theory allows for a more intuitive explanation of repeated violations of securities, banking, and environmental laws by corporations and their agents. The theory also predicts that corporate governance problems will be more severe, to the extent that gatekeepers and regulators exhibit TI preferences, and as the immediate costs of acquiring information increases.
Anna Roberts (Seattle University School of Law) has posted Asymmetry as Fairness: Reversing a Peremptory Trend (Washington University Law Review, Vol. 92, No. 6, (2015 Forthcoming)) on SSRN. Here is the abstract:
A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical solution is more appropriate. Second, the states historically adopted an asymmetrical solution — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, declaring that there are no reasons not to. This Article supplies those reasons, demonstrating that asymmetrical allocation of peremptory challenges not only brings benefits in the jury selection context, but also helps resist tendencies elsewhere in the criminal justice system to equate asymmetry with unfairness, and thus to erode foundational protections.
Wednesday, April 9, 2014
A wide range of commentators have raked through the ruins of the 2008 financial collapse confident that there were significant criminal prosecutions to bring against individuals and that the Justice Department should be faulted for its failure to have brought them. Their confidence that blockbuster criminal cases could have been made and were not rests on shaky grounds however. So too does their faith that the hunting of heads is a socially productive response to the collapse. All too frequently missing from current debates has been sustained engagement with realities of federal criminal law enforcement. The goal of this essay is to bring somewhat prosaic considerations of law and institutional capacity back into the conversation. While I offer little in the way of regulatory or architectural reform, I simply seek to clear away broad rhetoric that can only impede such efforts.
From the Chicago Tribune:
Chicago police did not report about a quarter of the aggravated assault and aggravated battery victims in its crime statistics in 2012, an audit by the city's top watchdog found.
The department failed to follow state guidelines by counting each aggravated assault or battery as one incident, not each victim as it should have, leading to the underreporting because of all the incidents that involved multiple victims, according to the inspector general's office.
. . .
John Eterno, a former New York City police captain who now researches how police departments keep track of crime data, said he found the IG audit superficial but said it pointed to what could be even more widespread crime reporting errors. Eterno, who read the report, suggested that Chicago's other crime categories be reviewed more thoroughly.
Jennifer Llewellyn , Bruce P. Archibald , Donald Clairmont and Diane Crocker (Schulich School of Law, Dalhousie University , Dalhousie University - Schulich School of Law , Dalhousie University and Saint Mary's University, Canada) have posted Imagining Success for a Restorative Approach to Justice: Implications for Measurement and Evaluation (36:2 Dalhousie Law Journal 281) on SSRN. Here is the abstract:
Whether restorative justice is “successful,” or not, is a complex question. Attempts to answer this question by practitioners, professionals, and scholars have often been bounded by common notions of success in standard criminal justice terms. The authors of this paper suggest that if restorative justice is properly understood in terms of its focus on relationship, success should be measured on new and different dimensions. This paper seeks to bring a relational imagination to the scholarly effort of capturing the essence of restorative justice and figuring out how to assess its successes and failures. The authors offer a foundation and agenda for future research and development of a relational approach to assessment.
Michael M. O'Hear and Darren Wheelock (Marquette University - Law School and Marquette University Department of Social and Cultural Sciences) has posted Imprisonment Inertia and Public Attitudes Toward 'Truth in Sentencing' (Brigham Young University Law Review, Forthcoming (2015)) on SSRN. Here is the abstract:
In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.
Christopher Slobogin (Vanderbilt University - Law School) has posted Empirical Desert and Preventive Justice: A Comment (New Criminal Law Review, Vol. 17, Number 2, pps 376–403, 2014) on SSRN. Here is the abstract:
This essay is a response to an article by Paul Robinson, Joshua Barton and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in its Place, which was itself an analysis of several works published by Robinson and various co-authors making the case for “empirical desert.” Robinson’s suggestion that utility can be optimized by a focus on desert as it is viewed by the average citizen opens up a new line of inquiry that could lead to a better appreciation of the influence desert should have on the criminal law. Where we disagree is how much utility a system founded on empirical desert is likely to have. Robinson appears to hold that failing to subscribe to empirical desert in most cases will result in noticeable disutility, whereas I am inclined to believe, consistent with the studies in Putting Desert in Its Place, that only significant, continuous and highly-publicized departures from lay views will occasion the loss of compliance and cooperation that Robinson describes. This article also defends the punishment scheme that I have called “preventive justice” against some of the claims made by Robinson, Barton and Lister.
Tuesday, April 8, 2014
FourthAmendment.com excerpts and links to an article from Politico:
A federal magistrate who has refused or modified a slew of search warrants for email records in recent months out of concerns that they were overly broad has shot down a Justice Department proposal which appeared intended to allay his worries.
Magistrate Judge John Facciola of U.S. District Court in Washington said in a ruling issued Monday that prosecutors' proposal to seal information deemed beyond the scope of the warrant was inadequate to resolve the constitutional violation caused by seizing the contents of an entire email account.
"The government is unwilling—for whatever reason—to give up its policy of seizing large quantities of e-mails and other Fourth Amendment protected data even after this Court has repeatedly warned it against doing so," Facciola wrote Monday in a ruling rejecting prosecutors' request to seize data from an Apple (.mac) e-mail account. "Mere convenience does not allow the government to violate the Fourth Amendment and seize data wholesale."
From The New York Times:
A review of homicide convictions stemming from the work of Louis Scarcella, a Brooklyn detective accused of framing suspects, has turned up a stash of old handwritten police notes that could exonerate two men convicted of a murder in 1985. One of the men served 21 years in prison; the other died behind bars.
The notes were in a file tucked away at Police Headquarters and were written by the first detective assigned to the case. They show that two previously undisclosed eyewitnesses saw the September 1985 killing of a man named Ronnie Durant, but they named killers different from the two men who were convicted. The notebook could have affected the verdict; not turning it over to defense lawyers decades ago is a serious violation of the rules of criminal procedure, experts said.
The war on drugs has increased the United States prison population by tenfold. The foundation for the war on drugs and unparalleled increase in prisoners rely on the premise that drugs and violence are linked. Politicians, media, and scholars continue to advocate this view either explicitly or implicitly. This Article identifies the pervasiveness of this premise, and debunks the link between drugs and violence. It demonstrates that a connection between drugs and violence is not supported by historical arrest data, current research, or independent empirical evidence. That there is little evidence to support the assumption that drugs cause violence is an important insight, because the assumed causal link between drugs and violence forms the foundation of a significant amount of case law, statutes, and commentary.
Nancy J. King and Brynn E. Applebaum (Vanderbilt University - Law School and Vanderbilt University) have posted Alleyne on the Ground: Factfinding that Limits Eligibility for Probation or Parole Release (Forthcoming Federal Sentencing Reporter) on SSRN. Here is the abstract:
This article addresses the impact of Alleyne v. United States on statutes that restrict an offender’s eligibility for release on parole or probation. Alleyne is the latest of several Supreme Court decisions applying the rule announced in the Court’s 2000 ruling, Apprendi v. New Jersey. To apply Alleyne, courts must for the first time determine what constitutes a minimum sentence and when that minimum is mandatory. These questions have proven particularly challenging in states that authorize indeterminate sentences, when statutes that delay the timing of eligibility for release are keyed to judicial findings at sentencing. The same questions also arise, in both determinate and indeterminate sentencing jurisdictions, under statutes that limit the option of imposing either probation or a suspended sentence upon judicial fact finding. In this Article, we argue that Alleyne invalidates such statutes. We provide analyses that litigants and judges might find useful as these Alleyne challenges make their way through the courts, and offer a menu of options for state lawmakers who would prefer to amend their sentencing law proactively in order to minimize disruption of their criminal justice systems.
Michael Moore’s influence in criminal law theory is such that, when scholars speak of retributivism without modification or qualification, it is frequently Moore’s version of retributivism that they have in mind. That is, in the eyes of many, Moorean retributivism just is retributivism. This essay, prepared as a contribution to a festschrift for Moore, criticizes that common conflation. It argues that Moore attributes significantly greater normative force to the non-instrumental value or rightness of furnishing a wrongdoer with his negative desert than is necessary for a view to qualify as retributivist. We can fairly call Moore’s retributivism “robust retributivism.” A near-polar alternative may be labeled “modest retributivism.”