Thursday, September 8, 2016
Adolfo Sachsida, Mario Jorge Cardoso Mendonca, Tito Belchior Silva Moreira and Paulo R. A. Loureiro (Catholic University of Brasilia, Institute of Applied Economic Research (IPEA) - Directory of Macroeconomic Policy & Studies (DIMAC), Catholic University of Brasilia and University of Brasília- UnB) have posted Evolution and Determining Factors of Homicide Rate in Brazil on SSRN. Here is the abstract:
The main objective of this study is to analyze the effect of crime repression policies on the homicide rate in Brazil. Two main types of crime repression policies can be highlighted: policies of incapacitation and policies of detention. In terms of public policies, the incapacitation policies are translated as a higher incarceration rate and the detention policies as higher police officers rate. In general, our results prove that putting more criminals away and increasing the number of police officers are valid strategies to reduce the homicide rate, regardless of other social-economic variables.
Because the United States government will neither immediately protect nor immediately release its prisoners under threat of harm, others must act. These other individuals, defined by law as “rescuers,” would be those who both free prisoners and accept legal responsibility for the necessary acts of deliverance. Fortunately, rescuers may raise the defense of third-party duress if prosecuted for freeing prisoners. Rescuers can, and should, use this as a defense to their alleged crimes — and should also use it deliver the whole of the U.S. penal population from captivity. In this article, I present my argument for this position.
Kathleen M. Knudsen (Regent University - School of Law) has posted The Juror's Sacred Oath: Is There a Constitutional Right to a Properly Sworn Jury? (32 TOURO L. REV. 489) on SSRN. Here is the abstract:
On August 12, 2012, in United States v. Turrietta the Tenth Circuit upheld a conviction by an unsworn jury under the doctrine of harmless error. By contrast, in 2007, in Spencer v. State, the Georgia Supreme Court held that a verdict by an unsworn jury was invalid, and because jeopardy never attached, the prosecution could re-prosecute a claim on which the defendant had been previously acquitted by an unsworn jury. The concept that an unsworn jury could convict but could not acquit runs fundamentally contrary to constitutional criminal procedural protections. This article argues that Federal Circuit Courts and the United States Supreme Court should rule on this issue and provide a clear precedent because district courts have denied that defendants have a constitutional right to a properly sworn jury due to the lack of clear precedential cases on this issue.
Jason P. Nance (University of Florida Levin College of Law) has posted Student Surveillance, Racial Inequalities, and Implicit Racial Bias (66 Emory Law Journal (Forthcoming)) on SSRN. Here is the abstract:
In the wake of high-profile incidents of school violence, school officials have increased their reliance on a host of surveillance measures to maintain order and control in their schools. Paradoxically, such practices can foster hostile environments that may lead to even more disorder and dysfunction. These practices may also contribute to the so-called “school-to-prison pipeline” by pushing more students out of school and into the juvenile justice system. However, not all students experience the same level of surveillance. This Article presents data on school surveillance practices, including an original empirical analysis of restricted data recently released by the U.S. Department of Education after the shootings at Sandy Hook Elementary School. Paralleling other disturbing trends of inequality in our public school system, these results and other empirical analyses reveal that schools serving primarily students of color are more likely to rely on more intense surveillance measures than other schools. Further, the empirical evidence suggests that these racial disparities may not be justified by legitimate safety concerns. This Article then turns to a discussion of the role that implicit racial bias may have in school officials’ decisions to rely on intense surveillance methods. Finally, it proposes legislation and strategies that federal lawmakers, state lawmakers, and school officials should adopt to counteract the effect of implicit racial bias on school officials’ decisions to implement strict security measures (and other decisions school officials make). Implementing these recommendations will help create better learning environments that benefit students of all races.
Wednesday, September 7, 2016
This interesting story is at The Crime Report, addressing the extent to which the case was built on recovery of "repressed memories" and the problems with that approach, which of course are not limited to the Sandusky case. Hat tip: Wrongful Convictions Blog.
Among the many controversial positions for which Monroe Freedman advocated during his illustrious career, the one that I find most surprising and uncharacteristic is his contention that lawyers who undertake morally questionable representations have a duty to explain or justify their choice of client. Specifically, in 1993 Professor Freedman penned a well-known column in the Legal Times — titled “Must You Be the Devil’s Advocate?” — in which he took Professor Michael Tigar to task for his representation of reputed Nazi war criminal John Demjanjuk. Professor Freedman tacitly criticized Professor Tigar for his client choice and expressly called upon him to justify publicly why he was willing to dedicate his training, knowledge, and “extraordinary skills as a lawyer” to someone as universally reviled as Demjanjuk. Such an inquiry was appropriate, according to Professor Freedman, because a decision regarding whom a lawyer is willing to represent is one “for which the lawyer can properly be held morally accountable, in the sense of being under a burden of public justification.”
Risa L. Goluboff (University of Virginia School of Law) has posted Vagrant Nation: Police Power, Constitutional Change, and the Making of the 1960s (Oxford 2016) on SSRN. Here is the abstract:
In 1950s America, it was remarkably easy for police to arrest almost anyone for almost any reason. The criminal justice system — and especially the age-old law of vagrancy — served not only to maintain safety and order but also to enforce conventional standards of morality and propriety. A person could be arrested for sporting a beard, making a speech, or working too little. Yet by the end of the 1960s, vagrancy laws were discredited and American society was fundamentally transformed. What happened?
Vagrant Nation answers that question by showing how constitutional challenges to vagrancy laws shaped the multiple movements that made "the 1960s." Vagrancy laws were so broad and flexible that they made it possible for the police to arrest anyone out of place: Beats and hippies; Communists and Vietnam War protestors; racial minorities and civil rights activists; gays, single women, and prostitutes. As hundreds of these "vagrants" and their lawyers challenged vagrancy laws in court, the laws became a flashpoint for debates about radically different visions of order and freedom.
Tuesday, September 6, 2016
Leah M Litman and Shakeer Rahman (University of California, Irvine School of Law and affiliation not provided to SSRN) have posted What Lurks Below Beckles (Northwestern University Law Review, Vol. 111, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court will soon decide if Travis Beckles’s prison sentence is illegal. Mr. Beckles was sentenced years ago, and his appeal to the Supreme Court is on post-conviction review. Normally when the Supreme Court invalidates a prison sentence in a post-conviction case, the Court’s holding applies to all other post-conviction cases as well. But the way Mr. Beckles’s lawyers are arguing his case, relief for Mr. Beckles will mean nothing for prisoners in certain circuits whose sentences would be illegal for the same reason as Mr. Beckles’s. This is due to a number of a circuit splits that the Supreme Court may not get an opportunity to address after the Beckles case.
The Court should both be aware of these lurking issues and use Beckles as the vehicle to weigh in on them. Doing so may be the only way to ensure that prisoners — particularly those in the Eleventh Circuit — will have a remedy for their unlawful sentences and to ensure that any right announced in Beckles applies uniformly across the country. While the Court typically limits itself to analyzing questions that are directly raised in the petition for certiorari, AEDPA is a reason the Court should depart from that practice here. Two decades ago, when the Supreme Court upheld AEDPA’s restrictions post-conviction review, several Justices warned that circuit splits related to successive motions might re-open the question of whether AEDPA’s restrictions are constitutional. As we show below, the aftermath of Johnson and Welch in the lower courts is what those Justices warned about. These constitutional concerns are a reason for the Court to depart from its usual reluctance to analyze questions that are not directly raised in a petition for certiorari and frame the analysis in Beckles in a way that avoids a repeat of the mess that ensued after Johnson and Welch.
Robert M. Sanger (Santa Barbara College of Law) has posted Fourteen Years Later: The Capital Punishment System in California on SSRN. Here is the abstract:
Fourteen years ago, the Illinois Commission on Capital Punishment issued a Report recommending 85 reforms in the criminal justice system in that state to help minimize the possibility that an innocent person would be executed. The following year, this author conducted an empirical study, later published in the Santa Clara Law Review, to determine if California’s system was in need of the same reforms. The study concluded that over ninety-two percent of the same reforms were needed in California. In addition, the study showed that the California system had additional weaknesses beyond those of Illinois that also could lead to the execution of the innocent.
This article is an effort, fourteen years later, to determine what has transpired in California during the last fourteen years. It will survey of the major scholarly and judicial work that has been published in the last fourteen years on the death penalty nationally and specifically with regard to California as well as on the progress, if any, to meet the unmet recommendations for the Illinois Commission.
Seth W. Stoughton (University of South Carolina School of Law) has posted Principled Policing: Warrior Cops and Guardian Officers (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
Policing in the United States is in crisis. Public confidence in policing is at the lowest point since the Rodney King beating. A bare majority of Americans still report confidence in the police, and an unprecedented number of people report no or very little confidence in policing. A long history of poor police/community relations in minority and low-income neighborhoods has been exacerbated by egregious acts of misconduct, some of which have been captured on video and shared on social media. Activists, politicians, and police officials themselves have called for better education and equipment, from de-escalation training to body-worn camera systems. But while training and equipment can marginally improve policing practices and public perceptions of the profession, and while both may prove to be necessary components of meaningful, long-term reform, they will not be sufficient. Law enforcement’s problems are, in large part, the result of principles that underlie policing. Resolving the crisis requires acknowledging and changing those principles.
Annie Cossins, Amanda Jayakody, Christine Norrie and Patrick Parkinson (University of New South Wales (UNSW) - Faculty of Law, University of Newcastle (Australia) - School of Medicine and Public Health, Childrens Hospital Westmead and University of Sydney - Faculty of Law) have posted The Role of Photographic and Video Documentation in the Investigation and Prosecution of Child Sexual Assault (Journal of Law and Medicine, Vol. 23, No. 4, pp. 925-937, 2016) on SSRN. Here is the abstract:
Photographic documentation of the ano-genital region is an established aspect of practice in the medical assessment of children and young people where there is a suspicion of child sexual abuse. Such photo-documentation is normally collected by means of a colposcope. This provides a non-intrusive means of magnification and photographic documentation of the genital and perianal area.
In spite of its widespread acceptance by medical investigators, the use of colposcopy has attracted some controversy. Concerns have been expressed about potential negative aspects arising from the use of photo-documentation. How does the child experience the photographing or videotaping of his or her ano-genital area? Are there particular issues when children have been photographed for pornographic purposes by the alleged perpetrator? Will the defendant be prejudiced if those photographs are shown to the jury? What is the impact on the victim if those photographs are made available to the accused for the purposes of his/her defence? This article reviews the available research evidence in order to answer these questions and consider whether legal reforms are needed to better protect children from the unnecessary use, or misuse, of intimate photographic evidence in the criminal justice process.
Eve Brensike Primus (University of Michigan Law School) has posted Federal Review of State Criminal Convictions: A Structural Approach to Adequacy Doctrine (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
Modern state postconviction review systems feature procedural labyrinths so complicated and confusing that indigent defendants have no realistic prospect of complying with the rules. When defendants predictably fail to navigate these mazes, state and federal courts deem their claims procedurally defaulted and refuse to consider those claims on their merits. As a result, systemic violations of criminal procedure rights – like the right to effective counsel – persist without judicial correction.
But the law contains a tool which, if properly adapted, could bring these systemic problems to the attention of federal courts: procedural adequacy. Procedural adequacy doctrine gives federal courts the power to ignore procedural defaults and declare state procedural rules inadequate when those rules unduly burden defendants’ abilities to assert violations their federal rights.
Jasmine Phillips has posted Mapping the Blank: Centering Black Women's Vulnerability to Police Sexual Violence to Upend Mainstream Police Reform (Howard Law Journal, Forthcoming) on SSRN. Here is the abstract:
Police sexual violence is not a recent phenomenon. Historically, police officers have abused their authority, and with sexual violence in particular, Black women are hypervulnerable due to pejorative stereotypes about our sexuality and disproportionate interactions with the criminal legal system. Yet there is a pervasive silence around sexual violence, which obscures its frequency and gravity. Mainstream advocacy has challenged rape culture in a variety of contexts, especially sexual assault on college campuses. However, these efforts have failed to take up the issue of police sexual violence. Similarly, mainstream efforts to combat racial profiling and police brutality have not centered Black women’s experiences with structural violence, including sexual assault, resulting in reforms that legitimize the presence of police in marginalized communities under the guise of public safety and community-police collaboration. Thus, this Article advocates for an intersectional, rights-based antiviolence platform in order to advance comprehensive, survivor-centered solutions and institutional accountability.
Aziza Ahmed (Northeastern University - School of Law) has posted Adjudicating Risk: AIDS, Crime, and Culpability (Wisconsin Law Review, Vol. 2016, No. 3, pp. 627-653 (2016)) on SSRN. Here is the abstract:
The AIDS epidemic continues to pose significant public health challenges, especially given that the spread of the virus outpaces the AIDS response. Importantly, HIV continues to disproportionately impact socially and economically marginalized communities. In countries with concentrated epidemics, it is racial minorities, sex workers, men who have sex with men, and drug users who face the brunt of the epidemic. In the United States, the data is startling: 44% of new infections were among African-Americans, and among African-Americans contracting HIV, 57% were among gay and bisexual men. In 2016, the CDC found that one in two Black men who have sex with men (MSM), one in four Hispanic MSM, and one in eleven White MSM will contract HIV.
One of the many tools mobilized to curb the spread of HIV is the criminal law. In particular, the criminalization of HIV transmission and exposure sets out to penalize individuals who expose or transmit HIV to another person. New advancements in the science of HIV transmission suggest, however, that individuals on anti-retroviral therapy (ART) that have a low viral load are significantly less infectious. This new data, in turn, impacts the potential culpability of the individual living with HIV accused of exposing another to HIV.
Monday, September 5, 2016
David Alan Sklansky (Stanford University) has posted The Changing Political Landscape for Elected Prosecutors (Ohio State Journal of Criminal Law, Vol. 14, No. 2, Forthcoming) on SSRN. Here is the abstract:
For years the only serious question about district attorney elections was whether they were pernicious or merely a charade. One view was that running for reelection turned prosecutors into politicians, and that politics demanded that prosecutors appear tough, unforgiving, and staunchly pro-police. The rival view was that prosecutorial elections were meaningless, because incumbents hardly ever lost, and campaigns focused on personalities, not on policies. Recently, though, a surprising number of district attorneys have won office by promising some combination of less aggressive charging, more vigilance against wrongful convictions, and greater scrutiny of the police. This essay examines these results and draws three tentative lessons. First, claims about the inexorable logic of criminal justice politics should be greeted with skepticism. Second, there is room for guarded optimism about electoral democracy as a tool for reforming prosecutors’ offices, but voters need better tools for evaluating how those offices are performing. Third, as reformers increase their focus on prosecutorial elections, there is a danger worth bearing in mind: the risk that prosecutorial decision-making will become inappropriately politicized, especially when elections focus on the handling or the outcome of particular cases.
Opportunity for law students interested in prisoners' rights: Starting Out as a Prisoners' Rights Lawyer remote access/webinar
On Thursday, September 22 from 12:00-1:15pm Pacific Time, as part of the upcoming National Prisoners’ Advocates Conference, UCLA School of Law will host a panel geared to law students and recent law grads hoping to work in the field of prisoners’ rights. Details from UCLA's notice:
The panelists will include:
John Adcock, Law Offices of John Adcock
Michael Bien, Rosen Bien Galvan & Grunfeld
Mercedes Montagnes, Promise of Justice Initiative
Lori Rifkin, Hadsell & Stormer
Michelle Rutherford, Dechert LLP
Each panelist has had extensive experience litigating on behalf of prisoners, and each took a different pathway to the work. During the panel, they will each describe how they arrived where they are and offer advice for younger lawyers and law students interested in doing this work.
This panel will be broadcast as a webinar on Google Hangouts (or an equivalent platform) to allow people to attend and participate remotely. If you might want to host a watch party for your students, interns or younger associates, or if you know anyone who might be interested in participating remotely, please contact Sharon Dolovich at firstname.lastname@example.org for details.
This is an exciting opportunity for law students and young lawyers to join the conversation among prisoners’ rights advocates from across the country to will take place at UCLA Sept 22-24.
But there are some big differences between then and now. In the 1960s, the United States experienced rising murder rates, devastating urban riots and the assassinations of some of the era’s most prominent public figures. By contrast, despite this summer’s episodes of acute violence and unrest — the mass shooting at the Pulse nightclub in Orlando in June, Micah Johnson’s deadly assault on police in Dallas in July, the rioting and protests that followed a shooting by a police officer in Milwaukee in August — American society now looks almost pacific. In this context, Trump’s reheated language raises the question of why the Nixonian vision of a collapsing nation in need of “law and order” still has such political currency, and why, of all the shifting connotations the phrase has carried in American history, this is the one we still cling to.
The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules — such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians — and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for crimes that occur outside of Indian country, and how much authority and flexibility tribes have to address juvenile delinquency as they see fit.
Michal Alberstein and Nourit Zimerman (Bar-Ilan University - Faculty of Law and Bar-Ilan University) have posted Constructive Plea Bargaining; Towards Judicial Conflict Resolution on SSRN. Here is the abstract:
In today’s plea-bargaining reality, the role of judges in processing criminal legal conflicts has changed dramatically. Judges today preside over decreasing number of trials, and instead they are involved in various activities to promote – and approve, plea bargains. Such activities are not fully regulated and documented, but they can be studied, improved and refined by using methods and concepts from the field of conflict resolution. The major claim of this paper is that judges’ current role in approving plea-bargains (which is often criticized) offers a new terrain of decision-making. This new terrain opens a constructive landscape of judicial discretion, in which judges may integrate perceptions of reconstructive law with perceptions of reconstructive conflict, bring together elements of retributive justice and legalistic reasoning, with possibilities of inserting elements of restorative justice and problem solving into the legal domain.
Sunday, September 4, 2016
|1||248||Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016
|2||152||Public Attitudes toward Data Fraud and Selective Reporting in Science
Justin Tyler Pickett and Sean Patrick Roche
School of Criminal Justice, University at Albany, SUNY and University at Albany
Date posted to database: 12 Jul 2016
|3||102||Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016
|4||96||A Theory of Bribery
University of Virginia - School of Law
Date posted to database: 25 Aug 2016 [7th last week]
|5||91||Privileging Professional Insider Trading
affiliation not provided to SSRN
Date posted to database: 18 Jul 2016 [4th last week]
|6||85||The Place for Neuroscience in Criminal Law
Deborah W. Denno
Fordham Law School
Date posted to database: 18 Jul 2016
|7||78||Why Lenity Has No Place in the Income Tax Laws
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [5th last week]
|8||75||How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan andPeter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016 [new to top ten]
|9||64||What Counts as Prostitution?
Stuart P. Green
Rutgers Law School
Date posted to database: 13 Jul 2016 [8th last week]
|10||60||What Is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016 [9th last week]