Wednesday, September 16, 2015
Craig Forcese and Kent Roach (University of Ottawa - Common Law Section and University of Toronto - Faculty of Law) have posted Preface (False Security: The Radicalization of Canadian Anti-Terrorism) (Toronto: Irwin Law, 2015) on SSRN. Here is the abstract:
Preface for the following book: On 20 October 2014, a terrorist drove his car into two members of the Canadian Armed Forces, killing Warrant Officer Patrice Vincent. Two days later, another terrorist murdered Corporal Nathan Cirillo before storming Parliament. In the aftermath of these attacks, Parliament enacted Bill C-51 — the most radical national security law in generations. This new law ignored hard lessons on how Canada both over- and underreacted to terrorism in the past. It also ignored evidence and urgent recommendations about how to avoid these dangers in the future.
For much of 2015, Craig Forcese and Kent Roach have provided, as Maclean’s put it, the “intellectual core of what’s emerged as surprisingly vigorous push-back” to Bill C-51. In this book, they show that our terror laws now make a false promise of security even as they present a radical challenge to rights and liberties. They trace how our laws repeat past mistakes of institutionalized illegality while failing to address problems that weaken the accountability of security agencies and impair Canada’s ability to defend against terrorism.
Tuesday, September 15, 2015
A Ferguson, Missouri, reform panel on Monday released a report[text, PDF] calling for the consolidation of police departments and municipal courts. The 16-member Ferguson Commission [official website], established by Missouri Governor Jay Nixon [official website] following the shooting death of Michael Brown, an African American teenager, by a white police officer, is supported by Nixon but lacks power to enact its proposals. The 198-page report, titled "Forward through Ferguson, a Path toward Racial Equity," calls for reform [St. Louis Post-Dispatchreport] in numerous areas, including criminal justice, housing, education and economics. Its proposals include establishing a statewide, publicly available use-of-force database to track police shootings, ending predatory lending and establishing healing centers to address behavioral and health issues in schools.
Fifty years after Miranda v. Arizona, significant numbers of innocent suspects are falsely confessing to crimes while subject to police custodial interrogation. Critics on the left and right have proposed reforms to Miranda, but few such proposals are appropriately targeted to the problem of false confessions. Using rigorous psychological evidence of the causes of false confessions, this article analyzes the range of proposals and develops a realistic set of reforms directed specifically at this foundational challenge to the justice system. Miranda 2.0 is long overdue; it should require: warning suspects how long they can be interrogated for; delivering the warnings via a non-police intermediary, preferably a pre-approved audio-visual recording; recording all interrogations; varying the strength of warnings according to characteristics that make suspects differently susceptible; and reforming and simplifying the rules of waiver. This article establishes why each of these proposals most effectively combats the problem of false confessions and how they can be realistically implemented, without overly burdening police efficiency and efficacy.
Kit Johnson (University of Oklahoma - College of Law) has posted A Cost-Benefit Analysis of the Federal Prosecution of Immigration Crimes (Denver University Law Review, Vol. 92, No. 4, 2014) on SSRN. Here is the abstract:
Immigration crimes are the most prosecuted federal crimes in America. This Article examines the benefits of the federal prosecution of immigration crimes (training, deterrence, and signaling/expression) and balances those benefits against the costs of such prosecutions (court-house costs, alternative prosecution, and incarceration). I conclude that deportation immediately following a conviction for an immigration crime appears to capture the key benefit of this system (signaling/expression) while alleviating its greatest expense (incarceration).
This Article explores the role of race in the prostitution and sex trafficking of people of color, particularly minority youth, and the evolving legal and social responses in the United States. Child sex trafficking has become a vital topic of discussion among scholars and advocates, and public outcry has led to safe harbor legislation aimed at shifting the legal paradigm away punishing prostituted minors and toward greater protections for this vulnerable population. Yet, policymakers have ignored the connection between race and other root factors that push people of color into America’s commercial sex trade.
This Article argues that race and racism have played a role in creating the epidemic of sex trafficking in the United States and have undermined effective legal and policy responses.
Peter A. Joy (Washington University in Saint Louis - School of Law) has posted Unequal Assistance of Counsel (Kansas Journal of Law & Pubic Policy, Vol. 24, No. 3, 2015) on SSRN. Here is the abstract:
There is now, and has always been, a double standard when it comes to the criminal justice system in the United States. The system is stacked against you if you are a person of color or are poor, and is doubly unjust if you are both a person of color and poor. The potential counterweight to such a system, a lawyer by one’s side, is unequal as well. In reality, the right to counsel is a right to the unequal assistance of counsel in the United States.
The unequal treatment based on the color of one’s skin is reflected by the racial disparity throughout the criminal justice system in which minority racial groups are involved in the criminal justice system as suspects and defendants at rates greater than their proportion of the general population. This is illustrated by the “driving while black” phenomenon in which law enforcement officers initiate traffic stops against persons of color and subject them to searches at a higher rate than whites, even though law enforcement is more likely to find contraband on white drivers than persons of color.
Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness present in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant.
Monday, September 14, 2015
Graham Mayeda (University of Ottawa - Common Law Section) has posted Privacy in the Age of the Internet: Lawful Access Provisions and Access to ISP and OSP Subscriber Information (Alberta Law Review, Vol. 53, No. 3, 2016) on SSRN. Here is the abstract:
Bill C-30 (the Protecting Children from Internet Predators Act) and the Protecting Canadians from Online Crime Act are two recent attempts by the Canadian government to create incentives for Internet Service Providers (ISPs) and Online Service Providers (OSPs) to disclose the subscriber information of Internet users to government agencies. In this article, I argue that while such provisions may not violate s 8 of the Charter based on current judicial interpretation, they ought to be found unconstitutional. To date, the Supreme Court of Canada’s search and seizure jurisprudence uses a normative framework that does not distinguish between defining the right to privacy and justifying limitations of it. This approach is not consistent with that for other Charter rights. The recent decisions of the Supreme Court in R v Spencer and R v Fearon may signal a slight shift, but they do not go far enough. If Courts defined privacy interests more broadly than under current law and required the government to justify restrictions on these interests under s 1, this would create a legal regime that achieves a better balance between competing privacy and security interests.
Chris Jenks (Southern Methodist University - Dedman School of Law) has posted State Labs of Federalism and Law Enforcement 'Drone' Use (Washington and Lee Law Review, Vol. 72, 2015) on SSRN. Here is the abstract:
This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law enforcement UAS use. The current state legislation regulating law enforcement UAS use is but the first round of experiments. But it is important to take stock of what state legislation would currently allow law enforcement to do with UAS. This article examines these state labs of federalism to identify at what point, and which state UAS experiments, the Supreme Court may rule constitute a search in violation of the Fourth Amendment.
This paper argues that it’s time for a détente between the opposing camps in federalism debates. Its core claim is that the emergence of what I’ve called the “nationalist school of federalism” has unsettled traditional federalism debates and created the conditions for a détente. That’s because the work of these “new nationalists” destabilizes the fundamental premise undergirding both camps — that decentralization always furthers state-centered aims, and that centralization always furthers nationalist ones.
Simon N. M. Young (Faculty of Law, University of Hong Kong) has posted Sentencing (Wing Hong Chui and T Wing Lo (eds), Understanding Criminal Justice in Hong Kong, 2nd edition, (Routledge, 2016 Forthcoming)) on SSRN. Here is the abstract:
Constitutional norms, statutory rules and common law principles govern the art and science of sentencing in Hong Kong. Death penalty and corporal punishments are sentencing measures of the past. As reflected in a 2014 law reform report on suspended sentences, the emphasis now is on discretionary sentencing, although murder still carries a mandatory life imprisonment. Hong Kong courts have a full range of sentencing options to ensure that the punishment fits the crime and offender. Sentencing decisions are informed by traditional purposes of punishment including public protection, deterrence, retribution, rehabilitation and reparation for victims. The purpose of denunciation has been cited by judges more frequently in recent years. Restorative justice, however, is not commonly referred to. Hong Kong’s Court of Appeal provides guideline sentences for specific offences; such guidelines assist courts in setting the starting point sentence in a particular case. Aggravating and mitigating factors serve respectively to move the sentence marker up and down. While proportionality is an applied constitutional principle of sentencing, courts still enhance sentences in cases of prevalent organised crime and routinely give sentencing discounts on pleas of guilty or for assistance given to the authorities.
Marc A. Rodwin (Suffolk University Law School) has posted Do We Need Stronger Sanctions to Ensure Legal Compliance by Pharmaceutical Firms? (Food and Drug Law Journal, Vol. 70, No. 3, Fall 2015) on SSRN. Here is the abstract:
The increasing number of enforcement lawsuits against pharmaceutical firms and the large size of settlement payments suggest that misconduct is widespread and even risks slipping into the banalities of ordinary business practices. It also raises questions as to whether current sanctions are an effective means to ensure compliance. This article explores the causes of the frequent illegal conduct, why prosecutors rarely use the strongest sanctions in their arsenal — criminal penalties and debarment from participation in public programs — and asks whether the use of the strongest sanctions would be desirable. Prosecutors might not use the strongest penalties available because of divided enforcement authority or because they prefer to seek monetary penalties to support their budgets. Moreover, strong sanctions might be perceived as imposing steep collateral damages on the general public and being politically costly.
In recent decades, criminal records have proliferated and come to be more consequential than ever. James B. Jacobs’s new book, THE ETERNAL CRIMINAL RECORD (2015), documents their broad scope, wide availability, and the long, devastating shadow that criminal records cast. In this Review, I organize the material in this challenging book into three different claims about American criminal record policy: that in the United States, criminal records are exceptionally public, exceptionally punitive, and exceptionally permanent. I explain how this results in an inexpensive means of sorting and inflicting punishment by devolving a great portion of the work to private actors and the general public. It also presents a public policy conundrum for American criminal justice: the more information we collect and share about suspected criminals and actual offenders, the easier it is to identify and discriminate against those marked individuals. This, it turns out, increases recidivism, therefore undermining the public safety goal at the heart of comprehensive, accessible criminal records. To counter this perverse outcome, I marshal evidence and optimism for reforms that Jacobs considers either unattainable or unwarranted, including the possibility of juvenile justice policy serving as a blueprint for a more redemptive criminal record policy for all.
Sunday, September 13, 2015
The job of prosecuting police officers who commit crimes falls on local prosecutors, as it has in the wakes of the recent killings of Michael Brown and Eric Garner. Although prosecutors officially represent “the people,” there is no group more closely linked to prosecutors than the officers they work with daily. This article focuses on the undertheorized but critically important role that conflict of interest law plays in supporting the now-popular conclusion that local prosecutors should not handle cases against police suspects. Surprisingly, scholars have paid little attention to the policies and practices of local district attorneys who are tasked with investigating and charging cases against officers who commit crimes. This article argues that a structural conflict of interest arises when local prosecutors are given the discretion and responsibility to investigate and lead cases against the police.
Saturday, September 12, 2015
In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.
Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark. This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it. Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline. I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.
Friday, September 11, 2015
From The New York Times:
The California bill is modeled on the law in Oregon, with several notable changes. The California law would expire after 10 years and have to be re-approved, and doctors would have to consult in private with the patient desiring to die, as part of an effort to ensure that no one was being coerced to end his or her own life — a primary concern for opponents of the law.
In spite of that provision, Dr. Aaron Kheriaty, director of the medical ethics program at the University of California, Irvine, School of Medicine, said that low-income and underinsured patients would inevitably feel pressure to end their own lives in some cases, when the cost of continued treatment would be astronomical compared with the cost of a few lethal pills.
. . .
“As soon as this is introduced, it immediately becomes the cheapest and most expedient way to deal with complicated end-of-life situations,” Dr. Kheriaty said. “You’re seeing the push for assisted suicide from generally white, upper-middle-class people, who are least likely to be pressured. You’re not seeing support from the underinsured and economically marginalized. Those people want access to better health care.”
California Governor Jerry Brown [official website] on Wednesday vetoed [veto message, PDF] a bill that would have banned individuals from flying drones lower than 350 feet over private property without permission from a landowner. The stated purpose of the bill was to protect privacy rights of landowners from unforeseen surveillance from drones, but in his veto message, Brown said, "[t]his bill, however, while well-intentioned, could expose the occasional hobbyist and the FAA-approved commercial user alike to burdensome litigation and new causes of action." The California Assembly had approved [JURIST report] the bill [SB 142] last month.
Korea's experience with its new jury system offers many lessons for those interested in juries and jury reform worldwide. Aiming for a unique jury system that was ideally suited to Korean citizens and their legal system, those who crafted Korea's jury incorporated elements of both classic jury systems and mixed tribunals. Initially, the jury deliberates on guilt independently of the judge, but the procedure includes optional as well as mandatory opportunities for the presiding judge to advise the jury during its deliberation. The Korean jury delivers an advisory rather than binding jury verdict. These and other features of the Korean jury system are analyzed and contrasted with practices elsewhere. The unique procedures associated with Korean jury trials offer a natural experiment and deserve continuing serious study.
Sam Kamin (University of Denver Sturm College of Law) has posted Marijuana Legalization in Colorado -- Lessons for Colombia on SSRN. Here is the abstract:
In 2012 Colorado became the first jurisdiction anywhere in the world to legalize marijuana possession and use for all adults. The regulated and taxed marijuana industry that arose in Colorado following legalization was also the first of its kind and stands a model for other states considering marijuana law reform. In this brief article I discuss the results of the Colorado experiment; I demonstrate that while Colorado’s regulatory model was largely successful, it also demonstrates the limits of generating revenue through taxing and regulating marijuana. I then discuss the implications of this conclusion for post-conflict Colombia, drawing a comparison to the situation California confronts as it considers legalizing marijuana for adult use.
Welcomes the Court of Appeal ruling in R. v GAC on whether a woman who had suffered from acts of violence at the hands of a man she had been in a relationship with could belatedly rely on the defence of duress because of battered woman syndrome. Comments on the circumstances in which a defendant might raise the defence of duress in relation to criminal conduct for which they might be otherwise liable and considers whether the defendant met the high threshold needed to rely on the defence of duress.