Friday, February 21, 2014
Scholarship on prosecutorial discretion is almost entirely preoccupied with crafting regulations that promote prosecutorial accountability. Accountability, however, is a two-way street. Existing scholarship does not recognize prosecutors' unique capacity to hold legislators and citizens accountable for their preferences, biases, and blind spots. Drawing on political theory, this essay proposes a novel framework for conceptualizing the prosecutor's role in a pluralist, democratic society. The choice to prosecute or decline a case can produce significant social and political meaning: e.g., affirming the value of a victim's life, validating a community's sense of loss, or highlighting an offender's depravity. Hate-crime and "stand-your-ground" laws illustrate prosecutors' broad discretionary power to generate social and political meaning. These laws were often controversial when enacted. Enactment, however, did not exhaust the basis for controversy. Rather, vague statutory language simply left it to prosecutors to decide when and how the laws should apply. The furor that erupted after George Zimmerman shot Trayvon Martin reveals how fraught those choices can be. While Zimmerman's acquittal might appear to vindicate prosecutors' initial choice to decline the case, that view is incorrect. I argue that prosecutors should use their expressive power towards pedagogical ends; prosecuting Zimmerman was consistent with that ideal, the acquittal notwithstanding.
Thursday, February 20, 2014
From the Washington Post:
Two years ago, the Federal Bureau of Investigation announced that it was changing the definition of rape that had been in place since 1927. It took effect for last year’s violent crime count, and, under that new definition, rapes were up in most cities.
. . .
The nearly 90-year-old definition described “forcible rape” as “the carnal knowledge of a female, forcibly and against her will.” Under the new definition, the agency stopped calling it “forcible rape” instead simply referring to the crime as rape. It was also changed to drop reference to gender and is no longer limited to penile penetration of a vagina. The new description for rape is:
“The penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”
A. T. H. Smith (Victoria University of Wellington - Faculty of Law) has posted Assessing the Public Interest in Cases Affecting the Media - The Prosecution Guidelines ((2013) Criminal Law Reporter at 449) on SSRN. Here is the abstract:
This article outlines the various inquiries that have recently been conducted into journalism in England and focuses on the tension between the public interest and the use of illegal methods to acquire information relevant to the public interest. It considers the merits of the two possible responses to that tension which are creation of a general public interest defence and publication of guidelines, the latter option has been followed. An analysis is then provided of the Director of Public Prosecutions’ published guidelines which involve assessment of the public interest served, assessing the overall criminality, and the weighing up of those two considerations.
Claire Stamm has posted Defining the Destruction of Evidence Exigency Exception: Why Courts Should Adopt a Strict Probable Cause Standard in the Wake of Kentucky v. King (Mississippi Law Journal, Vol. 82, No. 7, 2013) on SSRN. Here is the abstract:
The Fourth Amendment exigency exception allows law enforcement to enter a building without a warrant due to an exigent circumstance. Exigent circumstances range from threats to public safety to the destruction of evidence. Post Kentucky v. King, courts can no longer consider the subjective intent of the officer to create or not create an exigency. Therefore, courts need a clear way to define a destruction of evidence exigency. This comment presents a double probable clause test to objectively and effectively define a destruction of evidence exigency. Since a destruction of evidence exigency falls under the broader category of an evidence gathering exigency, it does not offer a threat to public safety. Therefore, the quantum of suspicion for a destruction of evidence exigency should be higher to ensure the protection and privacy of the innocent and to ensure no abuse of the exigency.
The new test requires probable cause that drugs are present and probable cause plus articulable facts that drugs are in imminent danger of destruction.
Wednesday, February 19, 2014
Alex F. Sarch (University of Southern California - Center for Law and Philosophy) has posted Willful Ignorance, Culpability and the Criminal Law on SSRN. Here is the abstract:
When conviction of a given crime requires knowledge of some fact, courts commonly allow the defendant’s willful ignorance to satisfy the knowledge requirement. However, because willful ignorance is not actually a form of knowledge, the practice of allowing willful ignorance to substitute for knowledge calls out for justification. Why is it that some willfully ignorant defendants may be treated as if they possessed knowledge — even when they in fact do not? The traditional answer relies on the so-called “equal culpability thesis,” which provides that willful ignorance is just as culpable as knowing misconduct.
Benton C. Martin and Jeremiah Robert Newhall (Emory University School of Law and Independent) have posted Technology and the Guilty Mind: When Do Technology Providers Become Criminal Accomplices? on SSRN. Here is the abstract:
The creators of today’s most successful technologies share an important willingness to push the envelope — a drive that propels digital industry forward. This same drive, however, can lead some technology purveyors to push the limits of legality or even become scofflaws in their pursuant of innovation or (more often) profit. The United States must figure out how to harness the important creative force at the heart of the hacker ethic while still deterring destructive criminal wrongdoers. Because it is often courts that must answer this question, it is essential to examine the legal doctrines prosecutors use to sweep up technology providers.
This Article focuses on one type of criminal liability — accomplice liability — that can act as a dragnet on technology that lends itself to criminal use.
Valerie said the 12-member jury realized within its first hour of deliberations that it would not be able to reach a unanimous verdict on the first-degree murder charge because two jurors initially, and three in the final vote, believed Dunn was justified in shooting under Florida's self-defense laws.
. . .
"We all believed there was another way out. Another option," Valerie said.
Dunn could have avoided the altercation by rolling up his car window, ignoring the taunting or moving his car to another parking space, she added.
National and international criminal law systems are continually seeking doctrinal and theoretical frameworks to help them impose individual liability on collective perpetrators of crime. The two systems move in parallel and draw on each other. Historically, it has been mostly international criminal law that leaned on domestic legal systems for its collective modes of liability. Currently, however, it is the emerging jurisprudence of the ICC that is at the forefront of innovation, with the doctrine of indirect co-perpetration taking the lead in international prosecutions. The article assesses the potential contribution as well as the limits of this compound doctrine to domestic criminal law jurisprudence, particularly with regard to small-group criminality. Four modes of indirect co-perpetration are discussed, namely shared control, concerted control, controlling board, and flawed triangle perpetration. A doctrine of indirect co-perpetration would enable liability in these modes of perpetration, perhaps with the exception of the latter, which marks the limits of its applicability.
Tuesday, February 18, 2014
Allegra M. McLeod (Georgetown University Law Center) has posted Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law (Georgetown Law Journal, Vol. 100, No. 1587, 2012) on SSRN. Here is the abstract:
A widely decried crisis confronts U.S. criminal law. Jails and prisons are overcrowded and violence plagued. Additional causes for alarm include the rate of increase of incarcerated populations, their historically and internationally unprecedented size, their racial disproportionality, and exorbitant associated costs. Although disagreement remains over the precise degree by which incarceration ought to be reduced, there is a growing consensus that some measure of decarceration is desirable.
With hopes of reducing reliance on conventional criminal supervision and incarceration, specialized criminal courts proliferated dramatically over the past two decades. There are approximately 3,000 specialized criminal courts in the United States, including drug courts, mental health courts, veterans courts, and reentry courts.
"Searching a cell phone incident to arrest: Possible Fourth Amendment rules that the Supreme Court might consider in Riley and Wurie"
The WYFF report says Finley was at the county sheriff's office on another matter when an active warrant for her arrest was discovered. Chief Deputy Creed Hashe told the station that the store's owner had asked a Pickens County judge for the warrant years ago when Finley didn't return her video.
Hashe said Finley had been sent several certified letters asking her to turn herself in.
Finley spent the night in jail because her bond hearing couldn't be held until Friday morning. A judge released her on $2,000 bond.
Scholars from a variety of disciples have begun to map the contours of crimmigration law, the convergence of criminal law and immigration law, in the United States. None, however, has explained why these two bodies of law, long operating mostly independently of each other, began to intersect with increasing frequency and severity in the closing decades of the twentieth century and not earlier. This Article unravels the political and legal shifts that occurred in the United States during this period to provide a historically contextualized explanation of crimmigration law’s creation. Specifically, this Article contends that, in the aftermath of the civil rights movement, overt racism became culturally disdained and facially racist laws impermissible. Derision of people of color, however, did not cease. Instead, racism hid behind a veneer of facially neutral rhetoric to find a new outlet in laws penalizing criminal activity. A few years later when immigration became a national political concern for the first time since the civil rights era, policymakers turned to criminal law and procedure to do what race had done in earlier generations: sort the desirable newcomers from the undesirable.
Joshua D. Blank (New York University School of Law) has posted Tax Privacy and Tax Compliance in the United States (Transparencia Fiscal e Desenvolvimento (Eurico Marcos Diniz de Santi, Fiscosoft/Thomson Reuters, 2013)) on SSRN. Here is the abstract:
This paper addresses the relationship between tax privacy and tax compliance in the United States and was prepared for a keynote presentation at a conference titled "Taxation, Transparency, Democracy and Development: Building a Positive Agenda Between Treasury and Tax" hosted by the Center for Fiscal Studies at the Fundação Getúlio Vargas (FGV) in São Paulo, Brazil on November 27, 2013. The paper was published in Portuguese and English as a chapter in Transparencia Fiscal e Desenvolvimento (Eurico Marcos Diniz de Santi, Fiscosoft/Thomson Reuters, 2013). Portions of the paper were originally published in Joshua D. Blank, In Defense of Individual Tax Privacy, 61 Emory L.J. 61 265 (2011).
Monday, February 17, 2014
From The New York Times:
In a 2012 study published in the journal Psychopharmacology, only 30 percent of people under the influence of THC, the active ingredient in marijuana, failed the field test. And its ability to identify a stoned driver seems to depend heavily on whether the driver is accustomed to being stoned.
A 21-year-old on his first bender and a hardened alcoholic will both wobble on one foot. But the same is not necessarily true of a driver who just smoked his first joint and the stoner who is high five days a week. In another study, 50 percent of the less frequent smokers failed the field test.
As more states legalize medical and recreational marijuana, distinctions like these will grow more and more important. But science’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public.
Jennifer A. Chandler , A. Mogyoros , T. Martin Rubio and E. Racine (University of Ottawa - Common Law Section , Independent , Independent and Independent) have posted Another Look at the Legal and Ethical Consequences of Pharmacological Dampening: The Case of Sexual Assault (Journal of Law, Medicine and Ethics, Vol. 41, No. 4, 2013) on SSRN. Here is the abstract:
Research on the use of propranolol as a pharmacological memory dampening treatment for post-traumatic stress disorder is continuing and justifies another look at the legal and ethical issues raised in the past. We summarize the general ethical and legal issues raised in the literature so far, and we select two for in-depth reconsideration. We address the concern that a traumatized witness may be less effective in a prosecution emerging from the traumatic event after memory dampening treatment. We analyze this issue in relation to sexual assault, where the suggestion that corroborating evidence may remedy any memory defects is less likely to be helpful. We also consider the clinical ethical question about a physician’s obligation to discuss potential legal consequences of memory dampening treatment. We conclude that that this latter question reflects a general problem related to novel medical treatments where the broader socio-legal consequences may be poorly understood, and suggest that issues of this sort could usefully be addressed through the promulgation of practice guidelines.
In criminal proceedings across the U.S., rap music lyrics are being introduced as evidence of a defendant’s guilt. In this essay we draw attention to this disturbing practice, what we call “rap on trial,” and explore its context, describe its elements and contours, and consider its broader significance. We first offer historical context, demonstrating that although the widespread use of rap lyrics in criminal trials may be a relatively recent phenomenon, it resides within a long tradition of antagonism between the legal establishment and hip hop culture, one that can be traced back to hip hop’s earliest roots. We then offer examples of recent cases in which rap music has been used as evidence in trials against amateur rappers, almost all of whom are young men of color, in order to illustrate the specific ways that prosecutors present the music to judges and juries, as well as to highlight the devastating effects it can have on defendants. In the final section, we consider the elements of rap music that leave it vulnerable to judicial abuse, as well as the artistic, racial, and legal ramifications of using this particular genre of music to put people in jail. We conclude with recommendations for further research in this area, pointing out specific areas where scholarship would most effectively expose what it means to put rap on trial.
The FBI said on Sunday it was in contact with local police in the case of Miranda Barbour, who is charged with murdering a Pennsylvania man she lured via the website Craigslist and reportedly admits to the killing and at least 22 other slayings.
. . .
In a jailhouse interview, Barbour said she was part of a satanic cult and had no remorse for her victims, according to an article published in Saturday's edition of the Daily Item newspaper in Sunbury, Pennsylvania.
William S. Dodge (University of California Hastings College of the Law) has posted The Penal and Revenue Rules, State Law, and Federal Preemption on SSRN. Here is the abstract:
Under two longstanding rules, U.S. courts will not enforce the penal and revenue laws of foreign nations, nor the judgments of foreign courts based upon such laws. Both the penal and revenue rules are rules of common law. But are they rules of state common law or federal common law? Some federal courts have held that the revenue rule is federal common law and preempts inconsistent state law. This essay argues, to the contrary, that the penal and revenue rules — like other rules concerning the conflict of laws and the enforcement of foreign judgments — are rules of state law. Building on Justice Harlan’s concurrence in Zschernig v. Miller, I offer a narrower theory of preemption based on clear federal policies expressed in U.S. treaties. Under this theory, States would be precluded from enforcing foreign tax claims, for example, but could recognize foreign convictions as bars to subsequent prosecutions for the same offense, as some state double-jeopardy statutes have done.