Monday, July 13, 2015
Kathryn M. Campbell and Clive Walker (University of Ottawa and University of Leeds - Centre for Criminal Justice Studies (CCJS)) have posted Pathological Error: Reacting to the Limits of Expertise in Legal Process (Law & Justice Review, Year III, Issue 5) on SSRN. Here is the abstract:
The application of medical expertise within a legal context presents a number of difficulties that demand consideration if the courts are to continue to rely upon complex medico-scientific evidence in criminal cases. Using examples from England and Wales, this article examines how miscarriages of justice have systematically resulted from the expert testimonies of paediatric forensic pathologists in criminal cases involving Sudden Infant Death Syndrome (SIDS). Although there are regulatory bodies in place to ensure that forensic pathologists conduct themselves professionally, we argue that the courts must also recognize the intrinsic limits to their expertise. Paediatric forensic pathologists are ‘gate-keepers’ who determine how medical and legal institutions will deal with child fatalities when the cause of death is suspicious or unascertained. Over the course of their infant death investigations, paediatric forensic pathologists will make what are often subjective interpretations of complex data concerning the child’s medical, social, and familial histories. Such interpretation is open to dispute, so over-reliance upon a particular expert witness increases the likelihood that a verdict will be declared unsafe upon review. Comparisons will be made to the recent province of Ontario experience with the Goudge Commission of Inquiry into Paediatric Forensic Pathology and its subsequent recommendations.
Jacek Czabanski (Polish Association of Law and Economics) has posted Why Consequentionalists Should Be Retributivists Too? on SSRN. Here is the abstract:
The author argues that it is fully rational for consequentionalist to be retributivists too. When there is no public law enforcement, rational victims will not be likely to punish the offenders, because the costs of punishment are higher then the potential deterrent gains for an individual. Therefore, rational offenders will not treat the threat of punishment as a credible one, and will continue to offend. Rational solution for potential victims is either to claim that it is retributive principle that they will follow, or to pay for the process of punishment in advance in order to avoid the temptation to save some money on the cost of general deterrence. In either way, it is a retribution principle that will be followed, although for consequentialist reasons. The author claims that both conseqentionalism and retributivism have their place within the theory of punishment, and one cannot be considered to be better than the other.
This article provides motivation for examining small geographic units of analysis based on a causal logic framework. Local, spatial, and contextual effects are confounded when using larger units of analysis, as well as treatment effect heterogeneity. I relate these types of confounds to all types of aggregation problems, including temporal aggregation, and aggregation of dependent or explanatory variables. Unlike prior literature critiquing the use of aggregate level data, examples are provided where aggregation is unlikely to hinder the goals of the particular research design, and how heterogeneity of measures in smaller units of analysis is not a sufficient motivation to examine small geographic units. Examples of these confounds are presented using simulation with a dataset of crime at micro place street units (i.e. street segments and intersections) in Washington, D.C.
Sunday, July 12, 2015
|1||319||Brain Science and the Theory of Juvenile Mens Rea
Jenny E. Carroll
University of Alabama - School of Law
Date posted to database: 8 May 2015 [5th last week]
|2||317||'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics
Ira Mark Ellman and Tara Ellman
Arizona State University College of Law and Independent
Date posted to database: 9 Jun 2015 [4th last week]
|3||263||Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students
Date posted to database: 23 May 2015 [6th last week]
|4||244||Ten Years of Commitment Decisions Under Article 9 of Regulation 1/2003: Too Much of a Good Thing?
Wouter P. J. Wils
King's College London
Date posted to database: 13 Jun 2015 [7th last week]
|5||215||Towards a Theory of Mitigation
Carissa Byrne Hessick andDouglas A. Berman
University of Utah - S.J. Quinney College of Law and Ohio State University (OSU) - Michael E. Moritz College of Law
Date posted to database: 14 May 2015 [9th last week]
|6||143||Invisible Women: Mass Incarceration's Forgotten Casualties
University of California, Irvine School of Law
Date posted to database: 10 Jun 2015 [new to top ten]
|7||140||Anti-Impunity and the Turn to Criminal Law in Human Rights
University of Texas at Austin - School of Law
Date posted to database: 15 May 2015 [new to top ten]
George Washington University
Date posted to database: 14 May 2015 [new to top ten]
|9||118||Implementing Just Mercy
William W. Berry
University of Mississippi School of Law
Date posted to database: 25 May 2015 [new to top ten]
|10||117||This is Your Brain on Human Rights: Moral Enhancement and Human Rights
I. Glenn Cohen
Harvard Law School
Date posted to database: 28 May 2015 [new to top ten]
Saturday, July 11, 2015
Rona Kaufman Kitchen (Duquesne University - School of Law) has posted Constrained Choice: Mothers, The State, and Domestic Violence (Temple Political & Civil Rights Law Review, Vol. 24, No. 4, 2015) on SSRN. Here is the abstract:
Mothers who are the victims of domestic violence face unique challenges in their quest for safety. The legal response to domestic violence requires that mothers respond to abuse in specific state-sanctioned manners. However, when mothers respond accordingly, such as by reporting abuse and leaving the abusive relationship, their safety and the safety of their children is not guaranteed. Moreover, by responding in state-sanctioned manners, mothers risk a host of negative consequences including increased threat to their immediate and long-term safety, the loss of their children, undesired financial, health, and social consequences, and criminal prosecution. On the other hand, when mothers respond to abuse in unsanctioned manners, such as by staying in abusive relationships, they face similarly hostile consequences including continued abuse, the loss of their children, and criminal prosecution. Thus, regardless of how mothers respond to domestic violence, they risk being harmed by their abuser and the state. As a result battered mothers’ choices are significantly constrained.
Friday, July 10, 2015
"Routinely asking people whether they’re carrying weapons, as part of ordinary traffic stops, violates Oregon Constitution"
Eugene Volokh has this post at The Volokh Conspiracy, excerpting the opinion. From the excerpt:
For a weapons inquiry conducted in the course of a traffic investigation to be reasonably related to that investigation and reasonably necessary to effectuate it, an officer must have reasonable, circumstance-specific concerns for the officer’s safety or the safety of other persons who are present. To justify an officer’s weapons inquiry, the officer’s safety concerns need not arise from facts particular to the detained individual; they can arise from the totality of the circumstances that the officer faces….
The story is in The New York Times:
Some New York City police officers have been stopping people for questioning but not documenting the encounters as required, calling into doubt the official accounting of a significant decline in stop-and-frisk activity, according to the first report of the federal monitor overseeing the Police Department.
The finding is included in an 87-page report that was filed on Thursday morning in Federal District Court in Manhattan by the monitor, Peter L. Zimroth, who was assigned to carry out the court’s orders after its 2013 decision finding the department’s stop-and-frisk tactics to be unconstitutional.
The report also addresses new training and revisions to the policies that guide how stops are used, as well as the court’s call for greater involvement of supervisors in making sure stops are constitutional and free of racial bias, and the use of body cameras.
Clare Frances Moran (University of Abertay Dundee) has posted Like Apples and Oranges: A Comparative Study of the Defence of Duress as Codified by the Rome Statute of the International Criminal Court on SSRN. Here is the abstract:
The Rome Statute of the International Criminal Court has created international law in the area of defences, by codifying a number of defences which are available at the domestic level. However, in creating the law it has disregarded the characterisation of the discipline as a ‘fusion’ between international law and domestic criminal law, as some of the defences codified are not available for serious crimes against the person at the national level. The defence of duress is one such contentious example, wherein domestic jurisdictions take different perspectives on the defence. This study examines those different perspectives from a number of influential jurisdictions and ascertains the current position of the defence generally at the national level.
This article examines whether any remedy should be available to accused persons who have been entrapped by the media. The argument presented here is that, contrary to the general flavour of the judicial decisions and academic commentary concerning this issue, a stay of proceedings for abuse of process should be available in media entrapment cases. Properly viewed, there is a breach of the accused’s human rights and/or the rule of law in such cases, warranting the provision of this remedy to him/her.
Thursday, July 9, 2015
R. A. Duff (University of Minnesota Law School) has posted Legal Reasoning, Good Citizens, and the Criminal Law on SSRN. Here is the abstract:
As part of a larger project on the various roles that citizens of a democratic polity may be called on to play in relation to the criminal law, I discuss the way in which the criminal law should figure in the practical reasoning of a good citizen, and the distinctive role of juror.
This article introduces to legal scholarship the first sustained discussion of prison abolition and what I will call a “prison abolitionist ethic.” Prisons and punitive policing produce tremendous brutality, violence, racial stratification, ideological rigidity, despair, and waste. Meanwhile, incarceration and prison-backed policing neither redress nor repair the very sorts of harms they are supposed to address — interpersonal violence, addiction, mental illness, and sexual abuse, among others. Yet despite persistent and increasing recognition of the deep problems that attend U.S. incarceration and prison-backed policing, criminal law scholarship has largely failed to consider how the goals of criminal law — principally deterrence, incapacitation, rehabilitation, and retributive justice — might be pursued by means entirely apart from criminal law enforcement. Abandoning prison-backed punishment and punitive policing remains generally unfathomable. This article argues that the general reluctance to engage seriously an abolitionist framework represents a failure of moral, legal, and political imagination.
Wednesday, July 8, 2015
The story is in The New York Times:
New York City officials announced a plan on Wednesday to change bail requirements for some low-level offenders in an effort to keep thousands of people accused of nonviolent crimes and misdemeanors out of the troubled Rikers Island jail complex.
The program, which is expected to cost nearly $18 million, will allow judges to release up to 3,000 low-risk defendants while placing them under court supervision as they await trial. Supporters of the program hope the initiative will help defendants who otherwise would remain jailed because they cannot afford bail.
A group of leading computer scientists at theComputer Science and Artificial Intelligence Laboratory at MIT[academic website] on Monday published a paper[text, PDF; press release] criticizing the US and UK governments for seeking the redesign of internet systems to allow governments to access information even if encrypted. The researchers claim that the governments' requirement of exceptional access to communications would cause several problems including making the internet less secure and increasing system complexity.
Sophie Stalla-Bourdillon , Evangelia Papadaki and Tim Chown (University of Southampton , University of Southampton and University of Southampton) have posted Metadata, Traffic Data, Communications Data, Service Use Information... What is the Difference? Does the Difference Matter? An Interdisciplinary View from the UK (Serge Gutwirth & Ronald Leenes, Data Protection on the Move, Springer 2015) on SSRN. Here is the abstract:
In the wake of the Snowden revelations, it has become standard practice to rely upon the dichotomies metadata/data or metadata/content of communications to delineate the remit of the surveillance and investigation power of law enforcement agencies as well as the range of data retention obligations imposed upon telecommunications operators and in particular Internet service providers (ISPs). There is however no consensual definition of what metadata is and different routes can be taken to describe what metadata really covers. The key question is whether or to which extent metadata should be treated akin to content data for the purposes of identifying the categories of data which shall actually be retained by telecommunications operators and to which law enforcement agencies can have access. In an attempt to answer the question, this paper provides an understanding of what metadata is and what their diversity is by following two steps. First, adopting an interdisciplinary approach, we argue that three types of metadata should be distinguished in relation to the nature of the activity of the service provider processing them and their level in a network communications - network-level, application-level metadata, and service-use metadata - and we identify three types of criteria to classify these metadata and determine whether they should be deemed as akin to content data. Second, we compare these categories with legal concepts and in particular UK legal concepts to assess to which extent law-makers have managed to treat content data and metadata differently.
Maureen E. Brady has posted The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:
Along with “persons, houses, and papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” Historically, “effects” have received less attention than the rest of the categories in the Fourth Amendment. However, in the last three years, Supreme Court opinions on Fourth Amendment searches have reintroduced the word “effects” in opinions without a definition of the word, an understanding of its history, or a clear approach to "effects" under the Fourth Amendment.
In the absence of a coherent approach to searches of “effects,” many lower courts apply the standard Fourth Amendment test for a search to personal property: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location.
Tuesday, July 7, 2015
From The New York Times:
In what appeared to be the first remarks on the issue by a federal legislator, Senator Chuck Schumer said Tuesday that sales of the cases might be illegal and urged online retailers, including Amazon and eBay, to immediately stop selling them.
. . .
Mr. Schumer said a federal law requires toy or imitation guns to feature a highly visible orange mark at the end of the barrel to identify them as harmless. Since the phone case does not have the marker, he said, he would work with customs officials to block its import and sale.
Prosecutors have asked for three and a half years imprisonment for Oskar Groening, who is charged with 300,000 counts of acting as an accessory to murder in Auschwitz before theLüneberg District Court[official website, in German]. Groening, 94-year-old former S.S. sergeant and Auschwitz guard, has been dubbed [Süddeutsche Zeitung report] the "Accountant of Auschwitz" for his duties of guarding, collecting and tallying possessions taken from the prisoners upon arrival at the concentration camp. During opening statements, Groening admitted feeling moral guilt [JURIST report] for his actions at Auschwitz, but has left it to the court to determine his legal guilt.
Copyright law undergoes a criminalization process. Since the birth of criminal copyright in the 19th century, there has been a substantial increase in criminal copyright legislation. Copyright criminalization could lead to a paradigm shift toward a criminal-oriented law. However, legislation alone is insufficient to change the perception of copyright to a criminal-oriented law, as it also depends on practice. Thus, if enforcement is sporadic and relatively low, an increase of criminal legislation in copyright law does not mark a paradigmatic change towards a criminal copyright perception. Analyzing statistical data regarding criminal copyright prosecutions reveals that criminal prosecutions are still relatively rare. Although the massive increase of criminal copyright legislation should have led to a higher scale of enforcement, the current reality is that criminal prosecutions are scant, leading to a criminal copyright gap between legislation and enforcement.
Marilyn McMahon (Deakin University) has posted Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule Against Double Jeopardy ((2014) 38 Criminal Law Journal 159-184) on SSRN. Here is the abstract:
The rule against double jeopardy comprises a core rule of criminal procedure, and was significantly expanded in the mid-20th century. However, by the beginning of the 21st century legislatures in many common law jurisdictions had enacted reforms that significantly limit the operation of the rule. In England and several States in Australia, the reforms have restricted the scope of the plea of autrefois acquit and the exercise of the courts abuse of process power by creating exceptions to the rule against double jeopardy. The reforms have also invested prosecutors with a right to appeal certain acquittals. There are two grounds on which the prosecution can apply to have a person’s acquittal quashed and a new trial ordered: where the acquittal was “tainted”, and here “fresh and compelling evidence” exists.The accused may also be charged with an “administration of justice offence” arising from the original trial. Courts must also consider the interests of justice and whether the accused could obtain a fair trial; no such principles guide courts when considering whether to order a retrial following a successful prosecution appeal. This articles analyses the applications made to have an acquittal quashed and a new trial ordered in both England and Australia, as well as prosecution appeals against acquittal under the new legislation. The analysis suggests that a key task for the future will be to determine how considerations of finality, fairness and freedom from oppressive re-litigation – key principles underlying the rule against double jeopardy – should inform such decision-making.
Alexandra Natapoff (Loyola Law School Los Angeles) has posted Gideon's Servants and the Criminalization of Poverty (12 Ohio State Journal of Criminal Law, Vol. 445 (2015)) on SSRN. Here is the abstract:
In ways that slip beneath the doctrinal radar, public defenders often behave like social workers. They find drug treatment and jobs for their clients, and intervene with landlords and employers. Conversely — and ironically — many civil welfare service providers act increasingly like law enforcement officials. Teachers call the police on their students, while welfare case workers often refer their clients for prosecution. This role-switching — by criminal lawyers and civil servants alike — is a function of the tight connection between criminalization and poverty: poor people tend to get swept up in the criminal system and such encounters tend to make people poor. This nexus is particularly powerful in the world of minor offenses and urban policing in which crime, unemployment, racial segregation, and lack of social infrastructure swirl around in one large, nearly inextricable mass. As a result, criminal justice actors are heavily preoccupied with defendants’ social welfare even as the welfare state routinely treats its clients as presumptive criminals. These hydraulic forces affect every official actor — from police officers to prosecutors to emergency room nurses and public school teachers. But public defenders play a special role. Their multi-faceted service commitments to both criminal and welfarist outcomes reveal deep features of the criminal system itself and its conflicted governance relationship to its most vulnerable constituents.