Friday, September 26, 2014
Daniel S. Medwed (Northeastern University - School of Law) has posted Under Pressure: The Hazards of Maintaining Innocence after Conviction (Vilified: Wrongful Allegations of Sexual and Child Abuse, Ros Burnett, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
Innocent people convicted of child abuse or sexual offenses face a classic “Catch-22” situation that has ramifications on their prospects for parole and for exoneration in court. If prisoners continue to maintain their innocence while imprisoned, then corrections officials may interpret this behaviour as demonstrating a key trait of sex offenders — “denial” — and make them ineligible for treatment programs that are a prerequisite for parole in many jurisdictions. Even if they are technically eligible to apply for parole, inmates who claim innocence before parole boards harm their chances for release based on the belief that those unable to admit guilt are likely to re-offend; they are perceived as lacking in remorse and failing to address their offending behaviour. Prisoners who pursue their innocence through post-conviction litigation also face an uphill climb. This is attributable in part to cognitive biases that affect how prosecutors treat innocence claims in the aftermath of conviction and all too often lead them to discount their potential legitimacy. Considering the hazards that inmates encounter in maintaining their innocence in parole and post-conviction litigation settings, there is reason to think that many of them are not in denial, but rather the victims of profound miscarriages of justice. This Book Chapter will explore this conundrum in these two settings before concluding with some thoughts on reform.
From The Washington Post:
Under departmental policy described by Lanier on Wednesday, officers will be required to turn on the camera as soon as they receive a call for service or other request for assistance and will leave the camera rolling until they finish the call. Video that is not retained for a criminal or administrative investigation will be deleted after 90 days, Lanier said.
. . .
This month, New York City police began a test program involving 60 officers after a federal judge ordered the agency to begin using body cameras to address concerns about racial profiling. Los Angeles police are conducting similar tests with two types of cameras.
John Burkoff (University of Pittsburgh - School of Law) has posted Law Enforcement Use of Drones & Privacy Rights in the United States (In Festschrift in Honor of Professor Doctor Feridun Yenisey (Beta Publishers, Istanbul, 2014)) on SSRN. Here is the abstract:
Professor Burkoff discusses the constitutional, statutory, and regulatory law applicable to domestic law enforcement agents’ use of unmanned aerial vehicles (“drones”) in the United States. The use of drones by private citizens and law enforcement agencies has been increasing dramatically, raising the specter of unconstrained and unregulated invasions of individual privacy from the sky. The Federal Aviation Administration (FAA) regulates airspace in the U.S. and currently has adopted very strict constraints on the use of drones, except for their use by private hobbyists at low levels and away from heavily populated areas or airports. However, these FAA regulations are in the process of changing to be much more permissive and, in any event, they are ineffectively enforced. Some states, moreover, concerned about privacy issues, have recently enacted statutes restricting the use of drones by law enforcement agencies except in prescribed circumstances, e.g. after obtaining a warrant based upon probable cause. Many more states are considering the enactment of similar legislation.
The important question remains whether or not the Fourth Amendment, the constitutional provision creating constraints on governmental searches and seizures, applies to law enforcement’s use of drones.
Miriam H. Baer (Brooklyn Law School) has posted Secrecy, Intimacy and Workable Rules: Justice Sotomayor Stakes Out the Middle in United States V. Jones (123 Yale Law Journal Forum 323) on SSRN. Here is the abstract:
This Essay was written for the Yale Law Journal Forum’s symposium, The Early Jurisprudence of Justice Sotomayor. The Essay analyzes Justice Sotomayor’s already oft-discussed concurrence in United States v. Jones, which exemplifies her attempt to stake out a “middle ground” approach to Fourth Amendment debates over surveillance and technology, and foregrounds intimacy and common-sense rules as guiding principles.
American legislatures generally delegate primary control over sentencing policy to one of two actors – trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values, individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity. In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines. They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.
Thursday, September 25, 2014
Steven P. Grossman (University of Baltimore - School of Law) has posted Separate But Equal: Miranda's Right to Silence and Counsel (Marquette Law Review, Vol. 96, No. 1, Fall 2012, pp. 151-203) on SSRN. Here is the abstract:
Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. The article does so by demonstrating that the distinction is unsupportable either theoretically or pragmatically. It then shows that two recent holdings of the Court have paved the way for abolishing the distinction and developing an approach that both reflects the reality of custodial interrogation and is consistent with the principles behind the Fifth Amendment and the holding in Miranda.
John F. Pfaff (Fordham University School of Law) has posted The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options (Harvard Journal on Legislation, Forthcoming) on SSRN. Here is the abstract:
Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing. The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.
That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.
From the New York Times:
The county district attorney, R. Michael Tantillo, asked a grand jury to determine if there was evidence to support a charge of manslaughter in the second degree or criminally negligent homicide against Stewart, but the panel found no “aberrational driving.”
Tantillo said a toxicology report revealed that Ward was under the influence of marijuana at the time of the accident — “enough to impair judgment.”
. . .
“The grand jury was never tasked with the responsibility of anything other than to determine whether there was enough evidence to file charges against Tony Stewart,” Tantillo said in a news conference. “They were not considering whether anybody else was at fault. However, I am sure from their deliberations and discussions that the fact that Kevin Ward was observed running basically down two-thirds of the track into a hot track in the middle of other cars that were still racing played a big, big factor in their decision.”
Tantillo said that Stewart did not change course as he passed Ward and that the fishtail movement of his racecar seen on a widely viewed video of the accident came at impact and was a result of his car’s hitting Ward.
Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Gideon, Miranda, and the Downside of Incorporation on SSRN. Here is the abstract:
The U.S. Supreme Court decisions in Gideon v. Wainwright and Miranda v. Arizona are cut from the same cloth. Each was the result of the Court’s frustration with the tedium of case-by-case analysis, and so each represents a broad, bright-line rule. Gideon dictated that in all serious criminal cases, the defendant is entitled to counsel, ending the muddled, multi-factor analysis of Betts v. Brady. Miranda dictated that in all custodial interrogations, the suspect is entitled to counsel and to be informed of that right and his right to remain silent, purporting to settle three decades of lack of clarity in the jurisprudence of coercive interrogations.
Wednesday, September 24, 2014
Paul H. Robinson , Matthew Kussmaul , Camber Stoddard , Ilya Rudyak and Andreas Kuersten (University of Pennsylvania Law School , University of Pennsylvania Law School - Student/Alumni/Adjunct , White & Case LLP , University of Pennsylvania Law School - Student/Alumni/Adjunct and Government of the United States of America - National Oceanic & Atmospheric Administration (NOAA)) have posted The American Criminal Code: General Defenses on SSRN. Here is the abstract:
There are fifty-two different bodies of criminal law at work in the United States, as diverse as they are many. Each one stakes out seemingly innumerable positions on a range of highly contested issues. So, how is one to know what the “American rule” is on any given matter of criminal law? This article takes the first step towards answering this question by presenting the first installment of the “American Criminal Code.”
This article is the result of an exhaustive research project that examined every contested issue relating to the general defenses to criminal liability, including all justification, excuse, and non-exculpatory defenses. With this foundation, the article determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects the majority American rule in all respects. The article also compares and contrasts the majority position on each issue to all significant minority positions, the Model Penal Code, and the National Commission’s proposed code.
John D. Bessler (University of Baltimore - School of Law) has posted Foreword: The Death Penalty in Decline: From Colonial America to the Present (Criminal Law Bulletin, Vol. 50, No 2, 2014, pp. 245-262) on SSRN. Here is the abstract:
This Article traces the history of capital punishment in America. It describes the death penalty's curtailment in colonial Pennsylvania by William Penn, and the substantial influence of the Italian philosopher Cesare Beccaria -- the first Enlightenment thinker to advocate the abolition of executions -- on the Founding Fathers' views. The Article also describes the transition away from "sanguinary" laws and punishments toward the "penitentiary system" and highlights the U.S. penal system's abandonment of non-lethal corporal punishments.
Ronen Perry and Tal Zarsky (University of Haifa - Faculty of Law and University of Haifa - Faculty of Law) have posted 'May the Odds Be Ever in Your Favor': Lotteries in Law on SSRN. Here is the abstract:
Throughout history, lotteries have been used in numerous legal contexts. However, legal theorists have rarely discussed the role of randomization in law, and have never done so systematically and comprehensively. Against this backdrop, the Article has three underlying goals. First, it fills the aforementioned gap by providing a theoretical framework for assessing lotteries’ role in legal resource allocation. It innovatively integrates fairness and efficiency concerns, critically evaluating and applying insights from various disciplines, including economics, philosophy, political science, psychology, and theology. This multidisciplinary framework — of unprecedented breadth and complexity — provides lawyers and policymakers with a powerful analytical tool for assessing the possible use of random allocation schemes. Second, the Article recognizes the importance and highlights the pervasiveness of lotteries in law. It does so by analyzing and appraising the historical and present role of lotteries in numerous legal contexts through the theoretical prism. It also advocates a cautious expansion of the use of lotteries in other contexts, a notion that runs counter to the basic intuition that the law must be committed to reason and certainty. Third, the Article substantiates a jurisprudentially provocative thesis: While random-based schemes can be and are employed in many settings, there is no consistent set of justifications for all applications. The rationalization is highly varied and context-specific.
Tuesday, September 23, 2014
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.
Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.
In the recent case of Commonwealth of Pennsylvania v. Lynn, Pennsylvania prosecuted a Roman Catholic priest who had not abused children himself but who, to protect the archdiocese that employed him, covered up information about priests who had abused children and reassigned the priests to new parishes. This case was the first of its kind to bring criminal charges against an official of the Church solely for how he supervised the careers of priests to protect his employer.
Because the intracorporate conspiracy doctrine prohibits it, the state — as is now typical of both state and federal jurisdictions around the country — was unable to prosecute Monsignor Lynn and the Archdiocese for their involvement in the conspiracy. This failure illustrates the misalignment of current conspiracy law with the way the law should be designed to incentivize employees and organizations to prevent harm from both the commission and the cover-up of crimes.
Monday, September 22, 2014
From Fox News:
The Justice Department on Thursday filed a brief in the case of a male student accused of raping a girl who was allegedly used as bait by an Alabama school to catch the boy after repeated sexual offenses, The Huntsville Times reported.
According to the paper, court records show the girl, 14, was sexually assaulted at Sparkman Middle School in January 2010 after teacher’s aide June Simpson told her to go into the boys’ restroom with the 16-year-old male student, who had reportedly been harassing several girls and asking them to have sex with him.
Simpson reportedly told the girl that the school administration could punish the boy if someone could “catch him in the act.”
As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections.
Sunday, September 21, 2014
|1||403||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||376||Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health
Scott Cunningham andManisha Shah
Baylor University and UCLA School of Public Affairs
Date posted to database: 19 Jul 2014 [3rd last week]
|3||359||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014 [2nd last week]
|4||297||A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion
Mark William Osler and Mark W. Bennett
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)
Date posted to database: 1 Sep 2014 [new to top ten]
|5||232||Why on Earth Do People Use Bitcoin?
Catherine Martin Christopher
Texas Tech University School of Law
Date posted to database: 25 Jul 2014 [4th last week]
|6||226||Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team
Stanford Law School - Constitutional Law Center
Date posted to database: 27 Aug 2014 [new to top ten]
|7||222||The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
University of Pennsylvania Law School
Date posted to database: 19 Jul 2014 [5th last week]
|8||200||Intellectual Property Infringement as Vandalism
Irina D. Manta and Robert E. Wagner
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law
Date posted to database: 24 Aug 2014 [6th last week]
|9||174||Waking the Furman Giant
Sam Kamin and Justin F. Marceau
University of Denver Sturm College of Law and University of Denver Sturm College of Law
Date posted to database: 5 Aug 2014 [7th last week]
|10||164||Morse, Mind, and Mental Causation
Michael S. Pardo and Dennis Patterson
University of Alabama School of Law and European University Institute
Date posted to database: 17 Jul 2014 [8th last week]
Saturday, September 20, 2014
Orin Kerr has this post at The Volokh Conspiracy. In part:
Friday, September 19, 2014
SpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Spectacular or Specious? A Critical Review of the Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat (39 T. Marshall L. Rev. 225 (2014)) on SSRN. Here is the abstract:
In the post-9/11 era, debates about the role American prisons play in contributing to “homegrown" or domestic terrorism grow with each passing year. However, much of the debate has been premised on alarmist rationales, political distortions, and plainly faulty analyses. The book, The Spectacular Few: Prisoner Radicalization and the Evolving Terrorist Threat by criminologist Mark Hamm is an attempt to assess the situation in the United States. As this book represents the first that tackles the question of prisoner radicalization, it is important on that count alone, for it has great potential to influence scholarship, law, and policy. This review critiques the book’s main thesis, which posits that prison conditions are the main cause of prisoner radicalization. Furthermore, it critiques the methods and samples used to substantiate this and other claims. Specifically, the critique shows how lack of proper method and rigorous analysis serves to propagate unfounded beliefs, including that prisons are breeding grounds for jihadist recruitment and for foreign networks like al-Qaeda. Hence, as a primary study of the issue, the book frustrates a better understanding of prisoner radicalization and its implications for institutional and national security. A proper review of the book’s successes and failures helps clarify key concepts and the scope of the problem, and hopefully, lead to better policies and more justice in the correctional context.