Friday, November 15, 2013
Here's how the opinion starts:
In 2011 a Commissioner of Dixon, Illinois, the childhood home of President Reagan, lauded Rita Crundwell, the City’s Comptroller since 1983, because “she looks after every tax dollar as if it were her own.” How right he was. The next year Crundwell pleaded guilty to embezzling approximately $53 million from the City between 1990 and 2012.
Hat tip: How Appealing.
To assess the adequacy of criminal pretrial procedure, this paper compares its development to that of its American common law sibling, civil procedure. This comparison reveals that the criminal model has abandoned common law aspirations. As Lawrence Friedman observed, "trial is the ideological core of the common law." It is in trial where our notions of due process are situated"that parties have parity (equal powers to call witnesses) and that rules of evidence ensure that competing narratives have factual integrity. But as trial has become an ever more rare event, parties risk losing access to these trial aspirations. Legislative reforms to civil procedure, however, have imported features of the trial into the pretrial phase. Civil procedure puts subpoena power in the hands of litigants before trial, integrates rules of evidence to improve the factual integrity of the pretrial record, and invites courts to review pretrial facts and claims. Reforms to criminal procedure, however, have remained indifferent to these trial aspirations.
Briana Rosenbaum (University of Tennessee College of Law) has posted Sentence Appeals in England: Promoting Consistent Sentencing through Robust Appellate Review (4 J. App. Prac. & Process 81 (2013)) on SSRN. Here is the abstract:
Unlike in most areas of the law, federal courts of appeals in the United States defer to trial courts on many issues of sentencing law and policy. As a result, the power to decide sentencing law and policy is often at the discretion of individual district court judges. Law reform scholars have long decried the disparity, lack of transparency, and legitimization concerns that this practice raises. These concerns are heightened in the post-Booker sentencing regime, where the advisory nature of the Federal Sentencing Guidelines undermines those Guidelines’ ability to further sentencing consistency. The deferential approach to federal sentence appeals is in sharp contrast to the approach in England, where the appellate court conducts de novo review of sentencing law and policy to develop a common law of sentencing that is independent of the English sentencing guidelines.
Thursday, November 14, 2013
Hillary B. Farber (University of Massachusetts School of Law at Dartmouth) has posted Eyes in the Sky: Constitutional and Regulatory Approaches to Domestic Drone Deployment (Syracuse Law Review, Vol. 64, No. 1, 2013) on SSRN. Here is the abstract:
By the end of this decade it is estimated that 30,000 drones will occupy national airspace. President Obama has set a deadline of September 2015 for the Federal Aviation Administration to promulgate new regulations for safely integrating drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. On June 19, 2013, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use.
The very essence of drone surveillance is that it is less expensive and more efficient than conventional aircraft at tracking the movements of large numbers of people without their knowledge. The capabilities of onboard instruments like high-resolution cameras, infrared devices, facial recognition systems, and other sensory enhancing technologies will make it virtually impossible to shield oneself from government watch.
Dan Terzian has posted Rethinking the Fifth Amendment and Encryption: A Call to Consider Constitutional Values on SSRN. Here is the abstract:
This essay considers whether the Fifth Amendment’s Self-Incrimination Clause bars the government from compelling the production of passwords or unencrypted data. In particular, it focuses on one aspect of the amendment that has been largely ignored: the Fifth Amendment’s aim to achieve a fair balance between the state’s interest and the individual’s. With encryption, achieving this fair balance requires permitting the compelled production of passwords or unencrypted data. Correspondingly, this need to achieve a fair balance should guide courts in their interpretation of Supreme Court doctrine, leading them to favor the interpretation permitting compulsion.
Wednesday, November 13, 2013
Alcohol occupies an important place in Western societies. It is difficult to imagine a return to prohibition as popularity or even possible. Nevertheless, alcohol is often present in crime. Or stated differently, many crimes are committed by persons that have consumed alcohol and perhaps while under its influence. Alcohol might be considered a double-edged sword as something we use when celebrating positive achievements, such as a new job or marriage, but also something used where others engage in crime. Perhaps alcohol should be permitted, but its use brings risks that may bear on public policy makers.
This chapter examines the relation of risks and public policy through the lens of alcohol and crime.
Christopher Slobogin (Vanderbilt University - Law School) has posted Treating Juveniles Like Juveniles: Getting Rid of Transfer and Expanded Adult Court Jurisdiction (Texas Tech Law Review, Vol. 46, 2013) on SSRN. Here is the abstract:
The number of juveniles transferred to adult court has skyrocketed in the past two decades and has only recently begun to level off. This symposium article argues that, because it wastes resources, damages juveniles, and decreases public safety, transfer should be abolished. It also argues that the diminished culpability rationale that has had much-deserved success at eliminating the juvenile death penalty and mandatory life without parole for juveniles is not likely to have a major impact on the much more prevalent practices of transferring mid- and older-adolescents to adult court and expanding adult court jurisdiction to adolescents; neither the law nor developmental science justifies the conclusion that juvenile offenders deserve significant mitigation in the non-capital context.
Tuesday, November 12, 2013
From the L.A. Times:
Crime lab officials said the "human error" occurred over nearly five months and led to mistakes in the forensic examination of blood alcohol content. But they insist the miscalculations were so few that they affect only about 200 cases. As few as 20 people could see their blood alcohol test levels drop below 0.08%, California's legal definition of DUI impairment.
But veteran DUI attorneys across Orange County said flaws with the lab's basic testing probably will affect many more cases because sentence enhancements and negotiations are often based on how far over the legal limit a motorist was determined to be.
. . .
Orange County Crime Lab Director Bruce Houlihan said the facility, which serves the entire county, discovered flaws in its analysis Oct. 10 while conducting an audit.
"It was a human error that led to an instrument to be wrongly calibrated," he said.
Anne R. Traum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Using Outcomes to Reframe Guilty Plea Adjudication (Florida Law Review, Vol. 65, 2014 Forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s 2012 decisions in Lafler v. Cooper and Frye v. Missouri lay the groundwork for a new approach to judicial oversight of guilty pleas that considers outcomes. These cases confirm that courts possess robust authority to protect defendants’ Sixth Amendment right to effective counsel and that plea outcomes are particularly relevant to identifying and remedying prejudicial ineffective assistance in plea bargaining. The Court’s reliance on outcome-based prejudice analysis and suggestions for trial court level reforms to prevent Sixth Amendment violations set the stage for trial courts to take a more active, substantive role in regulating guilty pleas.
Russell D. Covey (Georgia State University College of Law) has posted Police Misconduct as a Cause of Wrongful Convictions (Washington University Law Review, Vol. 90, 2013) on SSRN. Here is the abstract:
This study gathers data from two mass exonerations resulting from major police scandals, one involving the Rampart division of the L.A.P.D., and the other occurring in Tulia, Texas. To date, these cases have received little systematic attention by wrongful convictions scholars. Study of these cases, however, reveals important differences among subgroups of wrongful convictions. Whereas eyewitness misidentification, faulty forensic evidence, jailhouse informants, and false confessions have been identified as the main contributing factors leading to many wrongful convictions, the Rampart and Tulia exonerees were wrongfully convicted almost exclusively as a result of police perjury. In addition, unlike other exonerated persons, actually innocent individuals charged as a result of police wrongdoing in Rampart or Tulia only rarely contested their guilt at trial. As is the case in the justice system generally, the great majority pleaded guilty. Accordingly, these cases stand in sharp contrast to the conventional wrongful conviction story. Study of these groups of wrongful convictions sheds new light on the mechanisms that lead to the conviction of actually innocent individuals.
Monday, November 11, 2013
Wayne A. Logan (Florida State University - College of Law) has posted Informal Collateral Consequences (88 Washington Law Review 1103 (2013)) on SSRN. Here is the abstract:
This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law. Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.
The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law. This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.
Crystal S. Yang (University of Chicago - Law School) has posted Have Inter-Judge Sentencing Disparities Increased in an Advisory Guidelines Regime? Evidence from Booker (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
The Federal Sentencing Guidelines were promulgated in response to concerns of widespread disparities in sentencing. After almost two decades of determinate sentencing, the Guidelines were rendered advisory in United States v. Booker. What has been the result of reintroducing greater judicial discretion on inter-judge disparities, or differences in sentencing outcomes that are attributable to the mere happenstance of the sentencing judge assigned? This Article utilizes new data covering over 600,000 criminal defendants linked to sentencing judge to undertake the first national empirical analysis of interjudge disparities post Booker. The results are striking: inter-judge sentencing disparities have doubled since the Guidelines became advisory. Some of the recent increase in disparities can be attributed to differential sentencing behavior associated with judge demographic characteristics, with Democratic and female judges being more likely to exercise their enhanced discretion after Booker. Newer judges appointed after Booker also appear less anchored to the Guidelines than judges with experience sentencing under the mandatory Guidelines regime. Disentangling the effect of various actors on sentencing disparities, I find that prosecutorial charging is a prominent source of disparities. Rather than charge mandatory minimums uniformly across eligible cases, prosecutors appear to selectively apply mandatory minimums in response to the identity of sentencing judge, potentially through superseding indictments. Drawing on this empirical evidence, the Article suggests that recent sentencing proposals that call for a reduction in judicial discretion in order to reduce disparities may overlook the substantial contribution of prosecutors.
Sunday, November 10, 2013
Doug Berman at Sentencing Law & Policy excerpts this op-ed by Marc Osler (St. Thomas Law). In part:
At the root of this failure is a simple error: We have treated narcotics as an issue of morality rather than business. Our efforts have been focused on punishing relatively minor actors through mass incarceration rather than on the very different goal of shutting down drug businesses. A starting point as we reconsider our efforts should be the simple recognition that narcotics trafficking is first and foremost a business.
|1||7836||Motivated Numeracy and Enlightened Self-Government
Dan M. Kahan, Paul Slovic, Ellen Peters, Erica Cantrell Dawson,
Yale University - Law School, Ohio State University - Psychology Department, Cornell University, Decision Research,
Date posted to database: September 8, 2013
|2||1881||Evidence-Based Sentencing and the Scientific Rationalization of Discrimination
Sonja B. Starr,
University of Michigan Law School,
Date posted to database: September 1, 2013
|3||352||Becker and Foucault on Crime and Punishment
Gary S. Becker, Bernard E. Harcourt, Francois Ewald,
University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago,
Date posted to database: September 8, 2013
|4||236||Chemical Weapons Use in Syria: Implications for International Law
Gilbert Ajebe Akame,
European University Viadrina Frankfurt (Oder),
Date posted to database: August 29, 2013 [5th last week]
|5||226||Stupid Juror Questions?
Steven Lubet, Kevin Chang,
Northwestern University - School of Law, Unaffiliated Authors - Independent,
Date posted to database: October 5, 2013 [4th last week]
|6||181||License, Registration, Cheek Swab: DNA Testing and the Divided Court
New York University School of Law,
Date posted to database: September 29, 2013 [8th last week]
|7||173||On 'Red Lines' and 'Blurred Lines': Syria and the Semantics of Intervention, Aggression and Punishment
Leiden University - Grotius Centre for International Legal Studies,
Date posted to database: September 8, 2013 [9th last week]
|8||163||In God's Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities
University of Pennsylvania Law School,
Date posted to database: October 29, 2013 [new to top ten]
|9||197||Ripped from the Headlines: Juror Perceptions in the 'Law & Order' Era
Adam B. Shniderman,
University of California, Irvine - Department of Criminology, Law and Society,
Date posted to database: August 30, 2013 [7th last week]
|10||199||Risk Redux: The Resurgence of Risk Assessment in Criminal Sanctioning
John Monahan, Jennifer L. Skeem,
University of Virginia School of Law, University of California, Irvine,
Date posted to database: September 27, 2013 [6th last week]
Saturday, November 9, 2013
From FourthAmendment.com. In part:
I get a document dump from Lexis every morning. For the last two months, Tuesday-Saturday averages (just a guess) 35-40 new cases a day from all court sources that post to Lexis: U.S. District Courts, some state trial courts (more notably MA, NY, DE, RI, VI), and all the appellate courts in the U.S. Civil cases at the trial level aren't covered anymore because there are too many of them, and I have a day job. It's hard enough covering the criminal cases, and some weekday mornings I have court to prepare for.
But the sheer number of cases that come out shows that lawyers and courts have not given up on the Fourth Amendment. Yes, the limiting of the exclusionary rule and the growth of the good faith exception and qualified immunity make it harder to win, but we keep trying, and we keep winning some.
For what may be the first time on record, a former prosecutor in Texas is going to jail for failing to turn over exculpatory evidence in a murder trial. The 10-day jail sentence for the prosecutor, Ken Anderson, is insultingly short — the victim of his misconduct, Michael Morton, spent nearly 25 years in prison. But because prosecutors are so rarely held accountable for their misconduct, the sentence is remarkable nonetheless.
Issue summary is from ScotusBlog, which also links to papers:
Tuesday, Nov. 12
- Rosemond v. U.S.: Whether the offense of aiding and abetting the use of a firearm during and in relation to a crime of violence or drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2, requires proof of (i) intentional facilitation or encouragement of the use of the firearm, as held by the First, Second, Third, Fifth, Seventh, Eighth, Ninth, and Eleventh Circuits, or (ii) simple knowledge that the principal used a firearm during a crime of violence or drug trafficking crime in which the defendant also participated, as held by the Sixth, Tenth, and District of Columbia Circuits.
- Burrage v. U.S.: (1) Whether the crime of distribution of drugs causing death under 21 U.S.C. § 841 is a strict liability crime, without a foreseeability or proximate cause requirement; and (2) whether a person can be convicted for distribution of heroin causing death utilizing jury instructions which allow a conviction when the heroin that was distributed “contributed to,” death by “mixed drug intoxication,” but was not the sole cause of death of a person.
Wednesday, Nov. 13
- Fernandez v. California: Whether, under Georgia v. Randolph, a defendant must be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or whether a defendant’s previously stated objection, while physically present, to a warrantless search is a continuing assertion of Fourth Amendment rights which cannot be overridden by a co-tenant.
Friday, November 8, 2013