Monday, March 6, 2017
Michelle Madden Dempsey (Villanova University School of Law) has posted Smith and Hogan at Villanova: Reflections on Anglo-American Criminal Law, the Definition of Rape, and What America Still Needs to Learn from England (Villanova Law Review, Vol. 61, No. 3, 2016) on SSRN. Here is the abstract:
This essay was presented at the Norman J. Shachoy Symposium in September 2015, commemorating the 60th anniversary of the Villanova Law Review. Primarily, it is a comment on two articles published in the Villanova Law Review: John C. Smith, “Subjective or Objective? Ups and Downs of the Test of Criminal Liability in England” (1981-1982) and T. Brian Hogan, “Crime, Punishment and Responsibility.” (1978-1979). The essays, authored by two of England’s most influential criminal law theorists, take up the broad issue of criminal responsibility. Moreover, in Smith’s contribution, he offers insights regarding how to think about the specific issue of mens rea in rape. In addition to engaging and honoring the work of Smith and Hogan as it appeared in the Villanova Law Review, this essay will defend two claims concerning comparative Anglo-American criminal law. First, English criminal law has long had a more salutary approach than many American jurisdictions when it comes to asking the right kind of questions regarding the mens rea of rape. Second, when it comes to substantive answers regarding what the mens rea of rape should be, American jurisdictions still have much to learn from England’s example.
Liz McCurry Johnson (Wake Forest University - School of Law) has posted The Practical Obscurity of the Green Screen Terminal: A Case Study on Accessing Jury Selection Data on SSRN. Here is the abstract:
Who should care more about who jury members are – the criminal defendant facing one or the public who is the watchful eyes over the government prosecutions? The answer is both, and equally. This Article is part of a series of papers that fill a substantial gap in the literature of jury selection by providing a positive, personal account with field data on how litigates pick a jury – the building of a robust and immense data set of jury selections for felony charges disposed of by jury verdict. One reason that litigates and scholars have not previously marshaled a clear understanding of jury selection realities is that the data has been surprisingly amorphous. A series of obstacles – legal, technological, organizational – meet at a crosshair to block researchers and obscure careful analysis. This Article describes the surprising challenges that scholars face from courthouse failings in office policies to the ongoing use of out-of-date technology and litigation that flies in the face of open access. It further explains novel research techniques innovated to meet those challenges and reflects on why it might be that our government generally lets this particular public record information go dormant.
Weimin Zuo (Sichuan University) has posted An Empirical Study of the Chinese Criminal Dossier System on SSRN. Here is the abstract:
Both the operations of Chinese criminal proceedings and the making of judicial decisions are based on various types of evidence and written materials found in their primary vehicle -- the dossier. The unique characteristics of the Chinese criminal dossier system can be explained through its judicial power structure type, judicial purpose, and procedural structure. With the development of these structurally-related factors, most of the characteristics of the Chinese criminal dossier system will remain intact for quite some time. However, changes will occur in its form and use.
Opinion concluding that Sixth Amendment requires exception to no-impeachment rule when juror's statement indicates reliance on racial bias or animus
Sunday, March 5, 2017
This chapter deals with three main themes: the paradoxes of criminalization, which questions the convenience of the use of criminal law and of the punitive power of the state to achieve women’s emancipation. This subject is illustrated with the presentation of two regional pressing problems: femicide and rape as torture. Secondly, the chapter deals with the problems of criminal technique inherent in the definition of the crimes of violence against women. The Chapter analyzes the use of force, the lack of consent, and the use of objective criteria to determine self-defense in cases of sexual violence. The chapter also deals with restrictions to women’s autonomy derived from the penalization of the conducts that victimize them. The chapter argues that claims of legal feminism, especially its radical version, have penetrated with great strength and have triggered greater consensus in the normative field than in other areas. Regional case law has appropriated a discourse of protection of women against the persistent violence that characterizes social and family relations in Latin America.
|1||349||Law and Moral Dilemmas
Bert I. Huang
Columbia Law School
Date posted to database: 9 Jan 2017
|2||126||From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe
University College London, Centre for Law, Economics and Society
Date posted to database: 9 Jan 2017
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [new to top ten]
|4||88||Punishment and Moral Risk
Adam J. Kolber
Brooklyn Law School
Date posted to database: 10 Jan 2017 [3rd last week]
|5||81||McDonnell and the Criminalization of Politics
George D. Brown
Boston College Law School
Date posted to database: 2 Feb 2017 [4th last week]
|6||73||Strict Liability's Criminogenic Effect
Paul H. Robinson
University of Pennsylvania Law School
Date posted to database: 7 Jan 2017 [5th last week]
|7||73||Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs
Sahar F. Aziz
Texas A&M University School of Law
Date posted to database: 9 Feb 2017
|8||70||Rape, Truth, and Hearsay
I. Bennett Capers
Brooklyn Law School
Date posted to database: 9 Jan 2017
|9||69||Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip
University of Toronto - Faculty of Law
Date posted to database: 5 Jan 2017 [6th last week]
|10||61||Fairness, Equality, Proportionality, and Parsimony: Towards a Comprehensive Jurisprudence of Just Punishment
University of Minnesota - Twin Cities - School of Law
Date posted to database: 7 Feb 2017 [new to top ten]
Saturday, March 4, 2017
Jo J. Carrillo (UC, Hastings College of the Law) has posted Financial Intimate Partner Violence: When Assets and Transactions Become Weapons (22:2 Domestic Violence Report 17 (2017)) on SSRN. Here is the abstract:
Financial Intimate Partner Violence: When Assets and Transactions Become Weapons introduces the concept of financial intimate partner violence. The article compares Alaska's criminal law based domestic violence prevention approach with California's civil law based domestic violence prevention approach. The focus is on how each state system adjudges property management and control rights in a divorce, dissolution, or break-up; and on how domestic violence restraining orders are and can be effectively used to prevent or address financial domestic violence.
Suzanne Vergnolle (Georgia Institute of Technology - Scheller College of Business) has posted Understanding the French Criminal Justice System as a Tool for Reforming International Legal Cooperation and Cross-Border Data Requests on SSRN. Here is the abstract:
In an increasingly interconnected world, where communications can happen anywhere and at any time, law enforcement agencies may need access to evidence stored overseas. To help national law enforcement agencies work together more effectively, a large number of Mutual Legal Assistance Treaties (“MLATs”) have been signed from 1970 onwards. MLATs have become an area of international dispute, with states becoming increasingly frustrated with the length and complication of the process for requesting electronic evidence. Indeed, access to evidence is a time-sensitive issue for not only the solving and prevention of crimes but also as part of the individual’s right to a fair trial.
As part of a larger project on reforming international legal cooperation, a large number of works and projects have emerged, including the Georgia Tech Cross-Border Data Requests Project of which this paper is a part. This paper begins with a description of the current French criminal process, as an example of a mature EU legal system. Then, it explains the steps required for French investigating authorities to access evidence located in the U.S. under the current MLAT rules. Finally, it illustrates that each legal system maintains different checks and balances that have to be carefully considered in reforming any multilateral legal cooperation.
Saul Levmore and Frank Fagan (University of Chicago Law School and EDHEC Business School) has posted Semi-Confidential Settlements in Civil, Criminal, and Sexual Assault Cases (103 Cornell Law Review, 2017 Forthcoming) on SSRN. Here is the abstract:
Settlement is more likely if parties are free to set its terms, including a promise that these terms will remain secret between them. State sunshine-in-litigation laws work to defeat this incentive for confidentiality in order to protect third parties from otherwise unknown hazards. The intuition is that a wrongdoer should not be able to pay one plaintiff for silence at the expense of other victims. This Article begins by showing that the intuition is often wrong or overstated. A plaintiff who can assess defendant’s vulnerability to future claims can extract a large enough settlement to provide substantial deterrence, and at much lower cost to the legal system. The argument does not transfer well to most criminal cases, where the defendant might pay not to avoid other claims but to avoid incarceration, which offers no direct benefit to the settling victim. It is further complicated in sexual assault cases, where the plaintiff might settle too quickly in order to protect her privacy. The discussion works toward the idea that in some settings semi-confidentiality – the disclosure of the substance of settlement but not the magnitude of monetary payments – is superior to both secrecy and transparency. The right amount of confidentiality is a function of the parties’ interest in privacy, the likelihood that the wrongdoing is part of a pattern unknown to the settling plaintiff, and the accuracy of the litigation process that settlement seeks to bypass. We are able to identify cases where law ought to allow (even) criminal cases to be settled privately and confidentially, and also cases where even sexual assault victims should be steered away from confidential settlement and toward translucency.
|1||476||Judge Gorsuch and Johnson Resentencing (This is Not a Joke)
Leah M. Litman
University of California, Irvine School of Law
Date posted to database: 24 Jan 2017
|2||194||The Progressive Prosecutor's Handbook
David Alan Sklansky
Date posted to database: 15 Feb 2017 [4th last week]
|3||170||In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes
Date posted to database: 10 Jan 2017
|4||150||The Battle over the Burden of Proof: A Report from the Trenches
Michael D. Cicchini
Date posted to database: 14 Feb 2017 [5th last week]
|5||134||When Interviewing Children: A Review and Update
Karen J. Saywitz, Thomas D. Lyonand Gail S. Goodman
University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis
Date posted to database: 5 Jan 2017 [7th last week]
|6||133||The Structure of Federal Public Defense: A Call for Independence
Federal Defenders of New York
Date posted to database: 19 Dec 2016
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 7 Jan 2017 [8th last week]
Brandon L. Garrett
University of Virginia School of Law
Date posted to database: 23 Jan 2017 [9th last week]
|9||97||The American Death Penalty Decline
Brandon L. Garrett, Alexander Jakubow and Ankur Desai
University of Virginia School of Law, University of Virginia - School of Law and University of Virginia School of Law
Date posted to database: 4 Feb 2017 [new to top ten]
University of Pennsylvania Law School
Date posted to database: 16 Feb 2017 [new to top ten]
Friday, March 3, 2017
Margo Schlanger (University of Michigan Law School) has posted The Constitutional Law of Incarceration, Reconfigured on SSRN. Here is the abstract:
As American incarcerated populations grew starting in the 1970s, so too did court oversight of prisons. In the late 1980s, however, as incarceration continued to boom, federal court oversight shrank. This Article addresses the most central doctrinal limit on oversight of jails and prisons, the Supreme Court’s restrictive reading of the constitutional provisions governing treatment of prisoners — the Cruel and Unusual Punishments Clause and the Due Process Clause, which regulate, respectively, post-conviction imprisonment and pretrial detention. The Court’s interpretation of the Eighth Amendment’s ban of cruel and unusual punishment, in particular, radically undermined prison officials’ accountability for tragedies behind bars — allowing, even encouraging, them to avoid constitutional accountability. And lower courts compounded the error by importing that reading into Due Process doctrine as well. In 2015, in Kingsley v. Hendrickson, a jail use of force case, the Court relied on 1970s precedent, not subsequent caselaw that had placed undue emphasis on the subjective culpability of prison and jail officials as the crucial source of constitutional concern. The Kingsley Court returned to a more appropriate objective analysis. In finding for the plaintiff, the Supreme Court unsettled the law far past Kingsley’s direct factual setting of pretrial detention, expressly inviting post-conviction challenges to restrictive — and incoherent — Eighth Amendment caselaw. The Court rejected not only the defendants’ position, but the logic that underlies 25 years of pro-government outcomes in prisoners’ rights cases. But commentary and developing caselaw since Kingsley has not fully recognized its implications. I argue that both doctrinal logic and justice dictate that constitutional litigation should center on the experience of incarcerated prisoners, rather than the culpability of their keepers. The takeaway of my analysis is that the Constitution is best read to impose governmental liability for harm caused to prisoners — whether pretrial or post-conviction — by unreasonably dangerous conditions of confinement and unjustified uses of force. In this era of mass incarceration, our jails and prisons should not be shielded from accountability by legal standards that lack both doctrinal and normative warrant.
Rebecca Wexler (Data & Society Research Institute) has posted Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System on SSRN. Here is the abstract:
From policing to evidence to parole, data-driven algorithmic systems and other automated software programs are being adopted throughout the criminal justice system. The developers of these technologies often claim that the details about how the programs work are trade secrets and, as a result, cannot be disclosed in criminal cases. This Article turns to evidence law to examine the conflict between transparency and trade secrecy in the criminal justice system. It is the first comprehensive account of trade secret evidence in criminal cases. I argue that recognizing a trade secrets evidentiary privilege in criminal proceedings is harmful, ahistorical, and unnecessary. Withholding information from the accused because it is a trade secret mischaracterizes due process as a business competition.
Thursday, March 2, 2017
Robert A. Beattey and Mark R. Fondacaro, J.D., Ph.D. (CUNY, John Jay College of Criminal Justice and John Jay College - CUNY) have posted The Misjudgment of Criminal Responsibility (Behavioral Sciences & the Law, Forthcoming) on SSRN. Here is the abstract:
Generally, a criminal statute must consist of two essential elements: a description of the forbidden act (actus reus) and a designation of a guilty mental state (mens rea). For a crime to be committed, an individual must commit the forbidden act with the culpable mental state. For any criminal act, both criminal liability and the possible punishment turn largely on retrospective judgments by legal decision-makers about what a defendant was or was not thinking at the time of committing the forbidden act. Given the central and foundational nature of this legal judgment, there is surprisingly little empirical study of how the mens rea construct functions. Shen and colleagues have studied the reliability of mock jurors’ ability to distinguish between the various mental state categories defined in the Model Penal Code and have identified some support for jurors’ ability to reliably sort “guilty minds” into their “correct” categories (Shen et al. 2011). The present study builds on this work by examining mock jurors’ ability to reliably and “accurately” judge a defendant’s mens rea at the time of an offense under conditions reflecting how criminal jurors are tasked with judging a defendant’s mens rea. It was hypothesized that folk psychology models of human behavior that generally presume a high degree of personal control and responsibility would bias individuals’ judgments of others’ criminal behavior as reflecting intentional and purposeful conduct. Overall, results demonstrate that in a surprisingly high percentage of cases across many conditions, individual decision-makers are indeed likely to attribute the most culpable mental state (purpose) to defendants, even when the facts on the record are judged by legal experts to depict no more than negligent or reckless conduct.
Peter Swire, Justin D. Hemmings and Suzanne Vergnolle (Georgia Institute of Technology - Scheller College of Business, Alston & Bird LLP and Georgia Institute of Technology - Scheller College of Business) have posted A Mutual Legal Assistance Case Study: The United States and France on SSRN. Here is the abstract:
This article provides a case study involving France and the United States for a topic of growing importance – how to reform the outdated system of “Mutual Legal Assistance” (MLA). Mutual Legal Assistance occurs when one country (such as France) requests evidence held in another country (such as the US) for criminal prosecution, frequently pursuant to a Mutual Legal Assistance Treaty.
The article is part of the broader Georgia Tech Cross-Border Requests for Data Project, addressing MLA reform. The topic has reached a new level of prominence driven by two technological developments: (1) globalized communications, with data often stored abroad by a cloud service provider; and (2) increased use of encrypted communications, so many local wiretaps are ineffective.
Darryl K. Brown (University of Virginia School of Law) has posted What's the Matter with Kansas — And Utah?: Explaining Judicial Interventions in Plea Bargaining (Forthcoming in Texas Law Review See Also, vol. 95 (February 2017)) on SSRN. Here is the abstract:
This short piece suggests explanations for an apparent increase in a certain kind of “managerial judging” among state criminal court judges. In a recent study of ten states that authorize their trial court judges to play a role in the plea bargaining process, Nancy King and Ronald Wright found evidence that judges in eight states have indeed have become more involved in facilitating negotiated pleas. I suggest that an important likely reason for this development is that the eight states with active judges all have broad regimes of pretrial discovery. The two states in which judges have not moved into more active role — Kansas and Utah — are the two jurisdictions with much more limited pretrial discovery rules. Broad discovery was a key explanation the “managerial judging” that Resnik described in her classic account of federal civil litigation. Discovery — rather than simply rules authorizing a judicial role in the plea process — seems likely, for various reasons, to be an important factor in the somewhat analogous development of the judicial role in state criminal courts. I also consider the possible effects of other factors that make Kansas and Utah distinctive — they are the most rural states in the King-Wright study, and they have consistently had the lowest state incarceration rates.
Wednesday, March 1, 2017
Russell Miller (Washington and Lee University - School of Law) has posted A Pantomime of Privacy: Terror and Investigative Powers in German Constitutional Law on SSRN. Here is the abstract:
Germany is widely regarded as a global model for the privacy protection its constitutional regime offers against intrusive intelligence-gathering and law enforcement surveillance. There is some basis for Germany’s privacy “exceptionalism,” especially as the text of the German constitution (Basic Law) provides explicit textual protections that America’s 18th Century constitution lacks. The German Federal Constitutional Court has added to those doctrines with an expansive interpretation of the more general rights to dignity (Article 1 of the Basic Law) and the free development of one’s personality (Article 2 of the Basic Law). This jurisprudence includes constitutional liberty guarantees such as the absolute protection of a “core area of privacy,” a “right to informational self-determination,” and a right to the “security and integrity of information-technology systems.” On closer examination, however, Germany’s burnished privacy reputation may not be so well-deserved. The Constitutional Court’s assessment of challenged intelligence-gathering or investigative powers through the framework of the proportionality principle means, more often than not, that the intrusive measures survive constitutional scrutiny so long as they are adapted to accommodate an array of detailed, finely-tuned safeguards that are meant to minimize and mitigate infringements on privacy. Armed with a close analysis of its recent, seminal decision in the BKA-Act Case, in this article I argue that this adds up to a mere pantomime of privacy – a privacy of precise data retention and deletion timelines, for example – but not the robust “right to be let alone” that contemporary privacy advocates demand.
Carla Edmondson (Calcasieu Parish Public Defender’s Office) has posted Nothing is Certain but Death: Why Future Dangerousness Mandates Abolition of the Death Penalty (Lewis & Clark Law Review, Vol. 20, No. 3, 2016) on SSRN. Here is the abstract:
More than 40 years after the Supreme Court issued its terse, one paragraph opinion in Furman v. Georgia, which effectively invalidated death-penalty schemes across the country, the problem of arbitrary and capricious decision-making persists. Attempts to cabin juror discretion, by narrowing eligible offenses and delineating specific aggravating factors, have largely failed. Among the variety of aggravating factors, perhaps none exercises more influence over the death penalty decision than a defendant’s perceived future dangerousness. This Article examines the constitutionality of capital punishment through the lens of a defendant’s future dangerousness and concludes that erroneous predictions of future behavior result in arbitrary and capricious death sentences contrary to the mandate of Furman v. Georgia. Surveying case law from all states that permit some form of a future-dangerousness argument, this Article uncovers the dominant and insidious influence an individual’s perceived future dangerousness has on the penalty decision. In many jurisdictions, a jury may decide whether death is the appropriate punishment based solely on its prediction of future behavior. Relying on comparisons of juror predictions of future violence and longitudinal studies of actual violence among death-sentenced inmates, this Article demonstrates that the future dangerousness question is a fundamentally flawed inquiry and argues that abolition is the only viable solution for addressing the problem of arbitrary and capricious death sentences.
Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Community Punishments in a Rational Society (Scholarship and Criminal Justice Reform (Erik Luna, ed., 2017)) on SSRN. Here is the abstract:
Reduction of mass incarceration in the United States will require substantial increases and substantial decreases in use of community punishments. Compared with other developed countries, American jurisdictions overuse community punishments as much as they overuse imprisonment, but mostly for minor and low risk offenders for whom they are often not necessary. That is a waste of money and an unjust intrusion into peoples’ lives. In most developed countries, 5 to 20 percent of convicted offenders are sentenced to confinement and the rest receive community punishments, fines, and suspended prison sentences. Compared with jail or prison terms, community punishments are less expensive, less criminogenic, and more humane. They do less collateral damage to the lives and futures of offenders and their loved ones. They can be scaled to the seriousness of crimes. Well managed, well targeted, and adequately funded programs result in lower reoffending rates. If American sentencing policies and practices were rational and evidence-based, community punishments would be imposed much more often than they now are for mid-level and serious crimes, and imprisonment much less.