Friday, April 4, 2014
John F. Pfaff (Fordham University School of Law) has posted Escaping from the Standard Story: Why the Conventional Wisdom on Prison Growth is Wrong, and Where We Can Go from Here (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:
Whether as a result of low crime rates, the financial pressures of the 2008 credit crunch, or other factors, policymakers on both sides of the aisle are trying to rein or even reduce the US incarceration rate after an unprecedented forty-year expansion. Unfortunately, reforms are hampered by the fact that we do not have a solid empirical understanding of what caused the explosion in the first place. In fact, the "Standard Story" of prison growth generally overemphasizes less important factors and overlooks more important ones. This essay thus does two things. First, it points out the flaws in five key aspects of the Standard Story: its argument that the War on Drugs is of central importance, that trends in violent and property crimes are relatively unimportant, that longer sentence lengths drive growth, that the "criminal justice system" is a fairly coherent entity advancing specific goals, and that the “politics of crime control” is uniquely dysfunctional. And second, it argues that an increased willingness of the part of prosecutors to file charges — a causal factor almost completely overlooked by the Standard Story — is likely the most important force behind prison growth, at least for the past two decades.
Matthew David Burris has posted Thinking Slow About Sexual Assault in the Military (22 Buff. J. Gender, L., & Soc. Pol’y ___ (2014-2015), Forthcoming) on SSRN. Here is the abstract:
This article examines the current public discourse on sexual assault in the military through the complementary lenses of behavioral economics and the law. The article evaluates the "crisis" narrative central to this discourse and suggests it is not supportable by the best available data. Moreover, the article suggests that in driving potentially counterproductive public policy initiatives, this narrative is harmful to victims of sexual assault. The article recommends several practical steps the Department of Defense might take in the near-term to expose and rebut this harmful narrative and forestall these potentially counterproductive public policy initiatives. These steps include a reappraisal of the rhetoric senior DoD officials employ when speaking publically about the very real problem of sexual assault in the military, as well as advocating for a "whole of government" approach to gathering data on sexual assault and its victims. The article suggests the evidence-based prevention and response solutions impelled by these data hold out the best hope for reducing the incidence of sexual assault in the military.
Thursday, April 3, 2014
Doug Berman at Sentencing Law & P0licy excerpts and discusses a news report. His concluding remarks:
This story is already getting coverage in national newspapers, and it will now be interesting to see whether and how opponents of marijuana reform might actively use this sad development in support of their arguments against reform efforts. Notably, at age 19, Levy Thamba was technically underage and thus his recreation marijuana use was not legal. But that fact itself reinforces the arguments of opponents of marijuana reform that legalization makes it easier and more likely that underage persons will have access and be eager to try marijuana products.
Manuel Utset presents a new approach for thinking about corporate criminal sanction. He examines the effect of criminal sanction on corporate actors with time inconsistent ("TI") preferences and shows that traditional approaches to deterrence will under-deter these corporate actors. He concludes that "TI corporate actors-and thus corporations-will be systematically under-deterred by the sanctions that are optimal for TC actors [i.e., actors with time consistent preferences]."
Caisa E. Royer , Amelia Courtney Hritz , Valerie P. Hans , Theodore Eisenberg , Martin T. Wells , John H. Blume III and Sheri Lynn Johnson (Cornell University , Cornell University , Cornell University - School of Law , Cornell University - Law School , Cornell University - School of Law , Cornell University - Law School and Cornell Law School) have posted Victim Gender and the Death Penalty (University of Missouri-Kansas City Law Review, Vol. 82, No. 2, 2014) on SSRN. Here is the abstract:
Previous research suggests that cases involving female victims are more likely to result in death sentences. The current study examines possible reasons for this relationship using capital punishment data from the state of Delaware. Death was sought much more for murders of either male or female white victims compared to murders of black male victims. Analyzing capital sentencing hearings in Delaware from 1977-2007 decided by judges or juries, we found that both characteristics of the victims and characteristics of the murders differentiated male and female victim cases. The presence of sexual victimization, the method of killing, the relationship between the victim and the defendant, and whether or not the victim had family responsibilities all predicted the likelihood of a death sentence and help to explain why cases with female victims are more likely to be punished with a death sentence.
Jeffrey Bellin (William & Mary Law School) has posted The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk' (Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
Wednesday, April 2, 2014
Tonja Jacobi and Jonah Kind (Northwestern University - School of Law and Northwestern University - School of Law) have posted Criminal Innovation and the Warrant Requirement: Reconsidering the Rights-Police Efficiency Trade-Off (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:
It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale for lowering Fourth Amendment rights is often inapt. We analyze how this impacts both criminal activity and innocent communications that individuals seek to keep private in the digital age. We show that both law enforcement and non-criminal privacy concerns may be better promoted by maintaining the warrant requirement.
Adam Lamparello (Indiana Tech Law School) has posted Unreasonable Doubt: Warren Hill, AEDPA, and Georgia's Unconstitutional Burden of Proof on SSRN. Here is the abstract:
Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd — and arbitrary — result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts — and the court — deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical, ban. It also highlights a deeper problem: the process for determining who faces execution resides in an abyss of arbitrariness where death is not “different,” and “individualized consideration” is illusory.
Though I sincerely hope I am very wrong, I take away one fundamental message from this story (aided, in part, by reading between the lines): the real chance of passage of any significant federal sentencing or prison reform legislation this year seems slim, at best.
The recent dramatic convergence of immigration and criminal law is transforming the immigration and criminal justice system. While scholars have begun to examine some of the structural implications of this convergence, this Article breaks new ground by examining judicial responses and specifically the lens of Miranda v. Arizona. This Article examines the divergent and largely aberrant approaches that federal appellate courts have taken to determine whether Miranda warnings and rights apply to custodial inquiries about immigration status that have clear criminal and civil implications.
David W. Frank has posted Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration (Berkeley Journal of Gender, Law & Justice, Vol. 29, No. 1, p. 101, 2014) on SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem. Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
Tuesday, April 1, 2014
Megan Annitto (Charlotte School of Law) has posted Consent Searches of Minors (New York University Review of Law and Social Change, Vol. 38, No. 1, p.1, 2014, Forthcoming) on SSRN. Here is the abstract:
Despite the imbalance of power between police officers and citizens, courts rarely find that a search by a police officer based upon consent was involuntary. Modern courts condone this legal fiction when dealing with adults, but it is less clear what the law requires when courts weigh the voluntariness of consent to a search against the risk of coercion inherent in police encounters with minors — however subtle or overt it may be.
When considering the voluntariness of a minor’s consent to a search, courts are dramatically inconsistent about the role of a minor’s age in that decision.
Antonio M. Hernandez has posted Florida — America's First Death Warrant Fulfilment Center?: Timely Justice Act of 2013's Death Warrant Issuance Provision and a Proposed Holding for Abdool v. Bondi (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:
Florida’s Timely Justice Act of 2013 attempts to fulfil death warrants with the assembly-line like efficiency of a giant retailer’s order distribution network. The law aims to eliminate backlogs — the telltale sign of a flawed distribution system. As of January 11, 2014, Florida’s death row roster has 401 inmates — second most in the nation. The Republican controlled Florida Legislature seemingly assaulted this backlog when it sent the Timely Justice Act of 2013 on June 14, 2013, to the state’s CEO, Republican Governor Rick Scott for signing into law. The Timely Justice Act attempts to expedite the fulfillment of death warrants by reducing appeal and collateral claim litigation time and ineffective assistance of counsel claims through stringent timetables for death warrant issuance, signing, and execution, among other provisions. The law is one of first impression.
Gideon Parchomovsky and Alex Stein (University of Pennsylvania Law School and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Catalogs (Columbia Law Review, Vol. 114, Forthcoming 2014) on SSRN. Here is the abstract:
It is a virtual axiom in the world of law that legal norms come in two prototypes: rules and standards. The accepted lore suggests that rules should be formulated to regulate recurrent and frequent behaviors, whose contours can be defined with sufficient precision. Standards, by contrast, should be employed to address complex, variegated, behaviors that require the weighing of multiple variables. Rules rely on an ex ante perspective and are therefore considered the domain of the legislator; standards embody a preference for ex post, ad-hoc, analysis and are therefore considered the domain of courts. The rules/standards dichotomy has become a staple in economic analysis of the law, as well as in legal theory in general.
The Essay seeks to contribute to the jurisprudential literature by unveiling a new form of legal command: the catalog. A catalog, as we define it, is a legal command comprising a specific enumeration of behaviors, prohibitions, or items that share a salient common denominator and a residual category — often denoted by the words “and the like” or “such as” — that empowers courts to add other unenumerated instances. We demonstrate that the catalog formation is often socially preferable to both rules and standards and can better enhance the foundational values of the legal system. In particular, catalogs are capable of providing certainty to actors at a lower cost than rules, while avoiding the costs of inconsistency and abuse of discretion inimical to standards. Moreover, the use of catalogs leads to a better institutional balance of powers between the legislator and the courts by preserving the integrity and autonomy of both institutions. We show that these results hold in a variety of legal contexts, including bankruptcy, torts, criminal law, intellectual property, constitutional law, and tax law — all discussed throughout the Essay.
Monday, March 31, 2014
Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted Banning the Bing: Why Extreme Solitary Confinement Is Cruel and Far Too Usual Punishment (Indiana Law Journal, Forthcoming) on SSRN. From the abstract:
The United States engages in extreme practices of solitary confinement that maximize isolation and sensory deprivation of prisoners. The length is often indefinite and can stretch for weeks, months, years, or decades. Under these conditions, both healthy prisoners and those with pre-existing mental health issues often severely deteriorate both mentally and physically. New science and data provide increased insight into why and how human beings (and other social animals) deteriorate and suffer in such environments. The science establishes that meaningful social contacts and some level of opportunity for sensory enrichment are minimum human necessities. When those necessities are denied, the high risks of serious harm apply to all prisoners, no matter how seemingly resilient beforehand. Given these facts, this Article argues that solitary confinement, as commonly practiced in the United States, is cruel and unusual punishment — whether analyzed under current Supreme Court standards or an improved framework. Furthermore, recently released data on states implementing reforms shows that extreme solitary confinement tactics are counterproductive to numerous policy interests, including public safety, institutional safety, prisoner welfare, and cost efficiency. Both the scientific and policy data suggest possible avenues for effective reform.
FourthAmendment.com links to this piece at the Washington Post, discussing the ease with which police can stop cars that they suspect might be carrying drugs. Among the most interesting aspects is the discussion of cases in which cops in moving cars with closed windows claim to smell pot in other moving cars with closed windows. In part:
In 2012, a stop of two women in Irving, Tex., made national news. The women were stopped for allegedly tossing cigarette butts out a car window. But because the officer claimed to have smelled marijuana coming from the car, the women were subjected to a thorough search of their car, and then a humiliating roadside cavity search. There was no pot.
In Virginia, a judge recently upheld the stop and search of a car in which an officer claimed he could smell pot coming from a car he was following, even though the windows in the suspect’s car and the police car were rolled up, and even though a subsequent search turned up no pot. Last October, another judge in the same statethrew out a search in which an officer made a similar claim. There have been several other recent incidents in which cops have made questionable claims about smelling the waft of pot. See here, here, here, and here.)
Doug Berman has this post at Sentencing Law & Policy. In part:
Though lots of reactions to this story are possible, I cannot help but highlight that a story which might seem like an example of a sentencing judge being surprisingly lenient proves to really be a story of prosecutors being surprisingly lenient through plea bargaining and sentencing recommendations. Without a lot more information about the evidence in the case, I am disinclined to robustly criticize either the prosecutors or the judge for how this du Pont heir was treated. But I am inclined to encourage everyone to appreciate how this story reveals yet again how prosecutorial charging, bargaining and sentencing decisions are never subject to transparency or formal review, while judicial sentencing decisions have to be made in open court, on the record, and can in some cases be appealed.
Beth Cohen and Pat Newcombe (Western New England University School of Law and Western New England University School of Law) have posted The Hanging Judge by Michael A. Ponsor -- A Book Review: Capital Punishment -- Is the Death Penalty Worth the Price? (Cleveland State Law Review, Vol. 55, 2014) on SSRN. Here is the abstract:
The Authors review the novel, The Hanging Judge, written by Judge Michael A. Ponsor, a U.S. District Court Judge in Massachusetts.
In 2000-2001, Judge Ponsor presided over the first death penalty case in Massachusetts in nearly 50 years, United States v. Gilbert. Gilbert’s trial marked only the third time that a federal capital case had gone to trial in a state without the death penalty. Ponsor felt a particularly heavy responsibility to ensure that both the government and the defense got a fair trial. In fact, in 2001, after the conclusion of the trial, Ponsor did something somewhat unusual for a judge; he wrote a lengthy editorial about the death penalty. He wrote: “The simple question - not for me as a judge, but for all of us as citizens - is: Is the penalty worth the price?”