Thursday, July 17, 2014
Brennan T. Hughes has posted A Statutory Element in Exile: The Crucial 'Corrupt Intent' Element in Federal Bribery Laws on SSRN. Here is the abstract:
This article focuses on the word "corruptly" found in many bribery statutes, including 18 U.S.C. § 201. I argue that the adverb constitutes an independent element of the crime, and its presence requires the jury to summon its moral intuition to determine whether the behavior that satisfies the other elements of the statutory crime was performed with evil intent. I pay special attention to the problem of campaign contributions as bribes.
It is unfortunate that many courts have effectively read the word "corruptly" out of the statute. The culprit is the Supreme Court’s opinion in Sun-Diamond.
Wednesday, July 16, 2014
Radley Balko has this piece at The Washington Post, providing several examples of the use of the "past exonerative” tense that are silly enough to make you wonder how even a PR person could think they made things better. In part:
Contrast that with how the LAPD has described a few recent shootings by LAPD officers:
When the officers arrived they were confronted by a Hispanic male armed with a sword. The officers attempted to take the suspect into custody by using a taser but it was ineffective. The suspect then ran towards the officers still armed with the sword and an officer-involved-shooting occurred.
There was a particularly egregious example of this with the L.A. Sheriff’s Department last April. While responding to reports of a stabbing, LASD deputies shot and killed 30-year-old John Winkler. In an initial press release, the department said Winkler “aggressed the deputies and a deputy-involved shooting occurred.” Note that Winkler’s actions were put in the active voice, while the officers’ actions were put in the passive.
The post is at Real Clear Policy. In part:
[W]hat's most shocking is the incredible spike in the rate at which black men with no high-school degree are incarcerated. And two other things stood out to me on a closer inspection: One, the ratio of black to white incarceration seems to have grown over the years, at least in some measures, and two, at every single point in time represented in every one of these six charts, a white male high-school dropout was less likely to be incarcerated than the average black man.
Kim Shayo Buchanan (USC Gould School of Law) has posted When Is HIV a Crime? Sexuality, Gender and Consent (99 Minnesota Law Review, Issue 4, 2014, Forthcoming) on SSRN. Here is the abstract:
HIV criminalization is difficult to justify on the grounds advanced for it: public health and moral retribution. This Article engages with a third, underexamined rationale for HIV criminalization: sexual autonomy. Nondisclosure prosecutions purport to ensure “informed consent” to sex. However, almost all other forms of sexual deception — including deceptions that may jeopardize the partner’s health — are lawful; rape law expressly accommodates an expectation that men may lie to get sex from women. Neither public health nor retributive considerations adequately justify singling out HIV from other, permitted forms of sexual deception. Moreover, most HIV transmission and nondisclosure takes place between men, but a large majority of prosecutions involve men accused of nondisclosing to women. The inconsistency of HIV laws with their ostensible rationales, their arbitrary inclusions and exclusions, and the striking disparities in HIV prosecutions all tend to raise suspicion that discriminatory impulses may be at work.
Marie-Eve Sylvestre (University of Ottawa - Civil Law Section) has posted Narratives of Punishment: Neoliberalism, Class Interests and the Politics of Social Exclusion (7(2) European Journal of Homelessness 363-369, 2013) on SSRN. Here is the abstract:
This is a response piece to Eoin O'Sullivan's article "Varieties of Punitiveness in Europe: Homeless and Urban Marginality" in which O'Sullivan challenges the grand narrative according to which the punitive turn in Europe can be explained by reference to neoliberal policies originating from the United States or to socio-economic and cultural changes associated with late modernity. Instead, O'Sullivan suggests that we should rather speak of varieties of punitiveness based on “distinctive cultural, historical, constitutional and political conditions” in Europe (p. 75) and that the adoption of punitive measures developed alongside more inclusionary measures adopted by a majority of EU member States relying on relatively generous social democratic welfare regimes. While I agree with most of O'Sullivan's analysis, I make two arguments in response. First, although neoliberalism and theories such as broken windows cannot directly explain the creation and enforcement of punitive measures, they certainly have been used as legitimating discourses to justify existing repressive practices worldwide. Moreover, structural constructivits explanations to the management of homelessness and urban marginality remain useful to build local relationships and see how they interact with global narratives. Second, we should acknowledge the existence of relief programmes and public welfare policies historically and in the modern era, but we should also remember that they are often neutralized by counterproductive punitive strategies.The tensions and ambivalence between inclusiveness and exclusiveness may be explained by reference to the distinction between the deserving and underserving poor.
Tuesday, July 15, 2014
"Better that ten guilty persons escape, than that one innocent suffer," William Blackstone’s famous adage, stands for a powerful idea in the criminal law: that it’s essential to minimize wrongly convicting the innocent even at the expense of overall accuracy. This "Blackstone principle" accords with most people’s deeply felt intuitions about criminal justice.
This Article challenges that fundamental precept. It begins by situating the Blackstone principle in the history of Anglo-American criminal law. That history shows how the principle gained prominence — most notably, because in Blackstone’s time and earlier death was the exclusive penalty for many crimes — but provides no compelling justification today.
From the Wall Street Journal:
A loophole in Rhode Island law that effectively decriminalized indoor prostitution in 2003 also led to significant decreases in rape and gonorrhea in the state, according to a new analysis published by the National Bureau of Economic Research.
“The results suggest that decriminalization could have potentially large social benefits for the population at large – not just sex market participants,” wrote economists Scott Cunningham of Baylor University and Manisha Shah of the University of California, Los Angeles, in a working paper issued this month.
This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject matter expertise will generate appropriate enforcement choices. Similarly, the Supreme Court has strongly deferred to agency enforcement because it sees it as intimately intertwined with other agency regulatory decisions. Scholars have also generally taken for granted that specialist agencies will be enforcement experts because they are experts in their industry. We assume enforcement expertise follows regulatory expertise.
Does it? This Article argues, contrary to the conventional wisdom, that enforcement itself is a specialization. While enforcement choices have aspects that are subject-matter specific, other components, particularly the effective exercise of prosecutorial discretion, are independent of the industry regulated.
Monday, July 14, 2014
[H]ere are four ideas around which Christians – and non-Christians – from both the left and right are coming together.
Reform makes good financial sense. ...
Reform reduces government’s role in our lives. ...
Second Chances are Biblical. ...
Thinking on “paying our debt to society” is shifting....
Jeffrey Omar Usman (Belmont University - College of Law) has posted Capital Punishment, Cultural Competency, and Litigating Intellectual Disability (University of Memphis Law Review, Vol. 42, No. 4, 2012) on SSRN. Here is the abstract:
In an illuminating 2008 article in the Hofstra Law Review, Scharlette Holdman and Christopher Seeds helped to bring the concept of culturally competency much needed attention in the field of capital litigation. They presented a view of cultural competency as “at root a collection of knowledge, abilities, and skills.” Because cultural competency allows for translation across cultures, Holdman and Seeds took the position that this skill is a prerequisite for a capital defense attorney who is representing a client of a different ethnicity, nationality, social group, or subgroup in the mitigation phase of a capital case.
While cultural competency discourse often focuses upon the relationship between a professional and his or her client, it is important to recognize that the concept extends beyond the client to “the level of the organization/system” in which the client must function. In the world of a capital defendant, this system incorporates a diverse array of people, including judges, juries, court personnel, attorneys, psychologists, investigators, prison guards, and fellow inmates, among others. Drawing upon Holdman and Seeds’ work, Michael L. Perlin and Valerie McClain explained that “culturally competent people can grasp, reason, and behave effectively when faced with culturally diverse situations, where assumptions, values, and traditions differ from those to which they are accustomed.” By employing the same skills used to communicate effectively with a client, a culturally competent attorney may communicate more effectively with the judge, jury, and any others with whom the client will have significant interactions.
Sunday, July 13, 2014
The story is at the Sun-Sentinel:
This is the conflict the Florida Supreme Court recently agreed to examine in an unresolved Palm Beach County case. The justices will decide if felons are eligible for immunity from prosecution under the Stand Your Ground self-defense law.
. . .
What is in focus now is a portion of the Stand Your Ground law that says it doesn't apply to a person "engaged in an unlawful activity."
That clearly was meant to prevent a defendant from using Stand Your Ground, if, for example, he shot and killed someone while breaking into a house, Peaden explained.
But prosecutors also contend that felons using guns similarly would be restricted from adopting Stand Your Ground as a defense. This is because it's illegal for felons to possess guns — meaning the "unlawful activity" rule applies.
Saturday, July 12, 2014
The story is at Reuters:
Lawyers defending James Holmes argued in a motion filed on Friday that they were not notified that the latest sanity exam sessions would be recorded and insisted the taping could violate his constitutional right against self-incrimination.
. . .
In Friday’s motion, public defenders argued that Holmes was not informed that as a consequence of an insanity plea he could be subjected to a videotaped examination, and there is no provision in Colorado law for the procedure.
Additionally, they argued, the presence of a camera could affect the “integrity” of the psychiatric testing because it will record Holmes’ demeanor, expressions and body language.
Vanessa Edkins and Lucian E. Dervan (Florida Institute of Technology and Southern Illinois University School of Law) have posted Pleading Innocents: Laboratory Evidence of Plea Bargaining's Innocence Problem (21 Current Research in Social Psychology 14 (2013)) on SSRN. Here is the abstract:
We investigated plea bargaining by making students actually guilty or innocent of a cheating offense and varying the sentence that they would face if found ‘guilty’ by a review board. As hypothesized, guilty students were more likely than innocent students to accept a plea deal (i.e., admit guilt and lose credit; akin to accepting a sentence of probation) (Chi-square=8.63, p<.01) but we did not find an effect of sentence severity. Innocent students, though not as likely to plead as guilty students, showed an overall preference (56% across conditions) for accepting a plea deal. Implications and future directions are discussed.
Friday, July 11, 2014
Doug Berman has this post at Marijuana Law, Policy & Reform. In part:
The enduring problem posed by these divergent perspectives is that it become so much very harder for marijuana reform "agnostics" to know whether the sky is really falling or if in fact all is swell in the wake of recent reforms. Perhaps usefully, though, the divergent views may help ensure that we go a number of years with the on-going experiment before anyone should feel extra confident asserting great success or great failure in recent reforms.
The story is at Reuters:
California's highest court has softened implementation of the state's "three-strikes-and-you're-out" criminal sentencing law, marking the second time the rules for identifying and imprisoning career criminals have been loosened in recent years.
The judges made their ruling in the case of a woman who had been charged with two felonies - carjacking and robbery - for the same offense of stealing a car, saying that the legislature and the voters clearly intended for defendants to have three chances to redeem themselves before they are put away for life.
"The voting public would reasonably have understood the 'Three Strikes' baseball metaphor to mean that a person would have three chances - three swings of the bat if you will - before the harshest penalty could be imposed," Associate Justice Kathryn Werdegar wrote in the court's opinion, released late on Thursday. "The public also would have understood that no one can be called for two strikes on just one swing."
Andrew F. Daughety and Jennifer F. Reinganum (Vanderbilt University - College of Arts and Science - Department of Economics and Vanderbilt University - College of Arts and Science - Department of Economics) have posted Informal Sanctions on Prosecutors and Defendants and the Disposition of Criminal Cases on SSRN. Here is the abstract:
We model the strategic interaction between a prosecutor and a defendant when informal sanctions by outside observers (society) may be imposed on both the defendant and the prosecutor. Outside observers rationally use the disposition of the case (plea bargain, case drop, acquittal, or conviction) to impose these sanctions, but also recognize that errors in the legal process (as well as hidden information) means they may misclassify defendants and thereby erroneously impose sanctions on both defendants and prosecutors. If third parties prefer a legal system with minimal regret arising from classification errors, there is a unique equilibrium wherein the guilty defendant accepts the prosecutor’s proposed plea offer with positive (but fractional) probability, the innocent defendant rejects the proposed offer, and the prosecutor chooses to take all defendants who reject the offer to trial.
We also consider the effect of increasing the informativeness of the jury’s decision by extending the model to allow for a three-verdict outcome (not guilty, not proven, and guilty), sometimes referred to as the “Scottish” verdict.
This Essay considers whether the government can force a person to decrypt her computer. The only courts considering the issue limited their analyses to rote application of pre-digital doctrine and dicta. This is a mistake; they should instead seek to maintain the ex ante equilibrium of privacy and government power. This approach was just signaled appropriate by the Supreme Court in Riley v. California, a recent Fourth Amendment case. Riley’s rationale extends to the Fifth Amendment’s Self-Incrimination Clause, and maintaining equilibrium requires permitting forced decryption. Because current doctrine can be interpreted in a way that finds forced decryption constitutional, courts should therefore adopt that interpretation.
Thursday, July 10, 2014
Markus D. Dubber (University of Toronto - Faculty of Law) has posted New Legal Science: Toward Law as a Global Discipline on SSRN. Here is the abstract:
In Part 1, I consider the need for a new approach to the study of law beyond traditional parochial boundaries, explore how one might go about developing such an approach, and outline what such an approach might look like (New Legal Science). The point of the New Legal Science is to bridge the divide between the study of law in common law and civil law countries, marked by the abandonment of the project of legal science in the former and its continued pursuit in the latter, and thereby to facilitate the transformation of law from a parochial into a global discipline.
In Part 2, I briefly illustrate this approach by applying it to the study of penal law, as part of a comprehensive critical analysis of state penal power from the perspectives of law and police (the Dual Penal State).
Patrice A. Fulcher (Atlanta's John Marshall Law School) has posted The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex on SSRN. Here is the abstract:
Each year, the United States (“U.S.”) spends billions to house the country’s massive prison population. The need to board over 2.3 million incarcerated human beings has U.S. correctional departments looking for ways to increase revenues and offset costs. According to these correctional agencies, one major expense is prison visitation. In order to reduce spending and alleviate safety concerns, U.S. federal, state, and private correctional facilities have turned to video visitation as an alternative to in-person visits.
The use of prison video visitation systems started in 1995. Since then, many private telecommunications companies have professed to have the solution to correctional visitation problems. These companies promote video visitation as a cheap, safe, and easy alternative to in-person visits, as well as a profitable means of generating revenues.