Tuesday, May 10, 2016
Kelsey Heilman has posted Why Vague Sentencing Guidelines Violate the Due Process Clause (Oregon Law Review, Forthcoming) on SSRN. Here is the abstract:
The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year. Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice. Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act. In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges. In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.
Brandon Garrett’s book, Too Big to Jail: How Prosecutors Compromise with Corporations, serves as a stinging indictment of the ways in which deferred prosecution agreements, the federal government’s preferred way for dealing with publicly-held corporate offenders, fail multiple tests of good governance. As Garrett argues, they arise out of an opaque process and over the long run, they may be falling short of securing meaningful compliance among corporate offenders and similarly situated organizations.
To cure this problem, Garrett proposes a straightforward but far-reaching restructuring of corporate criminal practice: prosecutors should presumptively indict corporate offenders, and judges should intervene in corporate affairs more often and more intensely to bring about credible compliance and governance changes. Thus, the core of Garrett’s proposal is to wrest power from the federal prosecutor and place it instead with the federal judge, who will employ her power to effect more lasting reforms that serve the public’s interest and reduce the incidence of corporate misconduct.
Notwithstanding the risks of injustice posed by a no-means-no rule in sexual assault law, I have commended the ALI sexual assault drafts for adopting the position. True, some nonculpable actors may be punished under the rule even though they don’t know about it. And as with many rules, defining the boundaries will pose difficulties. But the alternative is unattractive. A nontrivial number of persons whose “no’s” are ignored will accede to sex out of fear, or out of a belief that continued resistance will simply be overcome by a more physically powerful partner. These reactions may not be known by the person ignoring the “no’s,” and if they are suspected, proving the defendant’s suspicions beyond a reasonable doubt may be difficult. Accordingly, it seems worth the effort to educate the public that the law will require “no” to be taken as an answer. We can’t expect the public to learn too many proxy rules—usually we should simply criminalize conscious risking of widely recognized social harms. But this particular rule is important enough to be high on the list.
But the ALI’s draft no-means-no rule has changed radically. The definition of “consent” now makes a verbal refusal irrevocable if it occurs before the partner indicates a willingness to be penetrated—probably the typical case:
A clear verbal refusal—such as “No,” “Stop,” or “Don’t”—suffices to establish the lack of consent. A clear verbal refusal also suffices to withdraw previously communicated willingness in the absence of subsequent behavior that communicates willingness before the sexual act occurs.
The definition in the draft considered at the ALI’s 2015 annual meeting placed no such limit on revoking a “no.” It imposed liability if the partner
has expressed by words or conduct his or her refusal to consent to the act of sexual penetration; a verbally expressed refusal establishes such refusal in the absence of subsequent words or actions indicating positive agreement.
Eric R. Carpenter (FIU College of Law) has posted Patriarchy, Not Hierarchy: Rethinking the Effect of Cultural Attitudes in Acquaintance Rape Cases (68 Hastings L.J., 2016, Forthcoming) on SSRN. Here is the abstract:
Do certain people view acquaintance rape cases in ways that favor the man? The answer to that question is important. If certain people do, and those people form a disproportionately large percentage of the people in the institutions that process these cases, then those institutions may process these cases in ways that favor the man.
In 2010, Dan Kahan published Culture, Cognition, and Consent, a study on how people evaluate a dorm room rape scenario. He found that those who endorsed a stratified, hierarchical social order were more likely to find that the man should not be found guilty of rape.
If Kahan is right, radical change may be necessary. The institutions responsible for handling sexual assault complaints – law enforcement communities, the military, and university and college administrations – are stratified and hierarchical, and are likely over-populated by people who are attracted to hierarchical institutions and who hold hierarchical world views. These institutions may need to be overhauled – or even replaced.
However, the study has a methodological flaw: it uses the Hierarchy-Egalitarianism Scale to measure those hierarchical world views, and as this article demonstrates, this scale has reliability and validity issues.
Monday, May 9, 2016
I have previously applauded the drafters of the ALI’s draft sexual assault provisions for eschewing open-ended notions like “voluntariness” and “freely given consent” in assessing whether sexual activity is criminal. The latest version reaffirms that intention. Some curious aspects of the commentary of the most recent draft, however, raise questions about whether the definition of “consent” offered in Section 213.0(3) is truly exhaustive. Though there are other examples, the most significant involves how the draft treats intoxication.
The Model Penal Code already includes a provision on “consent.” Section 2.11 creates a general defense to criminal liability in many cases involving consent, depending on the nature of the harm to which consent was given. Throughout the various drafts of the new sexual assault recommendations, one might have assumed that the new “consent” provisions displaced the more general consent defense (which, incidentally, played only a small role in the MPC’s definition of sexual assault). In many respects, the early drafts were flatly inconsistent with the approach taken by the general MPC defense. For example, the MPC consent defense applies to “conduct and injury [that] are reasonably foreseeable hazards of joint participation in . . . concerted activity not forbidden by law”—an approach that would be in considerable tension with an affirmative consent provision, or even with the current, “contextual consent” approach that requires assessment of whether a person consents to “a specific act” of sexual penetration.
Mike Koehler (Southern Illinois University School of Law) has posted Grading the DOJ's Foreign Corrupt Practices Act 'Pilot Program' (11 Bloomberg BNA White Collar Crime Report 353, 2016) on SSRN. Here is the abstract:
In April 2016, the Department of Justice issued a policy document titled “The Fraud Section’s FCPA Enforcement Plan and Guidance.” The document outlined various steps in the DOJ’s “enhanced FCPA enforcement strategy” including a “pilot program” intended to “encourage companies to disclose FCPA misconduct to permit the prosecution of individuals whose criminal wrongdoing might otherwise never be uncovered or disclosed to law enforcement.”
This article grades the pilot program by addressing the following issues: the obvious logical gap in the pilot program; how the pilot program, both in terms of rhetoric and substance, is really nothing new; why the corporate community should take the pilot program with a grain of salt; and how the pilot program falls short of accomplishing the laudable goals articulated by the DOJ compared to other alternatives previously advanced.
Debra Horner and Thomas M. Ivacko (University of Michigan at Ann Arbor - Gerald R. Ford School of Public Policy and University of Michigan at Ann Arbor - Gerald R. Ford School of Public Policy) have posted Most Local Officials are Satisfied with Law Enforcement Services, But Almost Half from Largest Jurisdictions Say Their Funding is Insufficient on SSRN. Here is the abstract:
This report examines Michigan local government leaders’ opinions on law enforcement services in their community, including the perception of problems with crime in the community, satisfaction with law enforcement performance, and funding of law enforcement at the local level. The findings are based on statewide surveys of local government leaders in the Fall 2015 wave of the Michigan Public Policy Survey (MPPS).
Mauro Costantini , Iris Meco and Antonio Paradiso (Brunel University London , Brunel University London and Ca Foscari University of Venice - Dipartimento di Economia) have posted Common Trends in the US State-Level Crime. What Do Panel Data Say? on SSRN. Here is the abstract:
This paper aims to investigate the long-run relationship between crime, inequality, unemployment and deterrence using state-level data for the US over the period 1978-2013. The novelty of the paper is to use non-stationary panels with factor structures. The results show that: i) a simple crime model well fits the long run relationship; ii) income inequality and unemployment have a positive impact on crime, whereas deterrence displays a negative sign; iii) the effect of income inequality on crime is large in magnitude; iv) property crime is generally highly sensitive to deterrence measures based upon police activities.
Alessandro Moro (Ca Foscari University of Venice - Dipartimento di Economia) has posted Distribution Dynamics of Property Crime Rates in the United States on SSRN. Here is the abstract:
Using crime data for the 48 continental and conterminous US states and the distribution dynamics approach, this paper detects two distinct phases in the evolution of the property crime distribution: a period of strong convergence (1971-1980) is followed by a tendency towards divergence and bi-modality (1981-2010). Moreover, the analysis reveals that differences in income per capita and police can explain the emergence of a bi-modal shape in the distribution of property crime: in fact, after conditioning on these variables, the bi-modality completely disappears. This empirical evidence is consistent with the predictions of a two region model, that stresses the importance of income inequality in determining the dynamics of the property crime distribution.
Ethan Thomas has posted The Privacy Case for Body Cameras: The Need for a Privacy-Centric Approach to Body Camera Policymaking (Columbia Journal of Law & Social Problems, Vol. 50, 2016) on SSRN. Here is the abstract:
Body-mounted cameras for law enforcement are proliferating throughout the United States, with calls from government leaders and advocacy groups to further increase their presence. As the technology becomes more common in availability and use, however, concerns arise as to how interests in privacy and official accountability are affected by policy.
This Note advocates for a privacy-centric approach to body camera policymaking, positing that such a framework will best serve the public’s multifaceted privacy interests without compromising the ability of body cameras to monitor law-enforcement misconduct. Part I surveys the existing technology and the prevailing view of privacy and accountability. Part II examines the unique privacy risks imposed by the technology as well as the countervailing potential for privacy enhancement, demonstrating the value of an approach oriented around privacy interests. Part III assesses how the failure to adopt this approach has resulted in storage policies for body camera footage that inhibit the technology’s ability to best serve the public, and Part IV examines this same flaw with respect to policies for accessing footage.
Jillian B Carr and Jennifer L. Doleac (Purdue University - Krannert School of Management and University of Virginia - Frank Batten School of Leadership and Public Policy) have posted The Geography, Incidence, and Underreporting of Gun Violence: New Evidence Using Shotspotter Data on SSRN. Here is the abstract:
This paper provides new evidence on the extent of underreporting of gun violence. Criminal activity is often selectively underreported – that is, underreported in a non-random manner. This can make it difficult to understand public safety problems and devise effective policy strategies to address them. However, new surveillance technologies are facilitating the collection of more accurate data on crime. In this paper, we describe data on gunfire incidents, recorded using a tool called ShotSpotter. We compare those data with previously-available data on gun violence (reported crime and 911 calls) to estimate baseline correlations between these measures as well as the causal effect of gunfire incidents on reporting. Using data from Washington, DC, and Oakland, CA, we find that only 12% of gunfire incidents result in a 911 call to report gunshots, and only 2-7% of incidents result in a reported assault with a dangerous weapon. These extremely low reporting rates have important implications for research on gun violence. The characteristics and research potential of ShotSpotter data are relevant to surveillance data more broadly; while such data have not yet been exploited by social scientists, they could be extremely valuable for crime research and policy.
Sunday, May 8, 2016
I previously argued that the ALI draft on sexual assault makes its intended point about the perils of coy sex while making an unintended point about the perils of coy legislation. In my view, the draft convincingly advocates for a “no-means-no” rule, even though adopting such a rule might frustrate some people who prefer to offer feigned resistance to sex. But the draft is itself coy when it comes to its approach to mens rea.
That is because “consent,” in all the forms it has taken in the drafting process, embraces both historical facts and the interpretative/normative question of whether those facts satisfy the legal standard of “consent.” Clearly, the drafts exculpate actors who nonculpably believe their partners said “go” when in fact they said “no.” But the most likely interpretation of the draft is that the actor’s mistake about whether historical facts satisfy the “consent” standard—i.e., whether they constitute “behavior . . . that communicates . . . willingness”—involves a legal question about which the actor’s mental state is irrelevant. These interpretative/normative questions are likely to be the most important source of mistakes in sexual encounters. Accordingly, solicitude about the actor’s view of historical facts will be only partial protection for actors who are not consciously aware that they have misunderstood their partners’ wishes. A fuller explication of these ideas can be found here, here, and here.
Last week, however, a member of the advisory group to the ALI project, in response to one of my blog posts, appeared to disagree with my reading of the draft. She stated that the standard under the draft is “don’t have sex with a person if you are aware of a substantial risk they don’t want sex.” And she continued, “The actus reus element requires evidence that the complainant did not engage in behavior demonstrating willingness, and the mens rea element requires the state to prove beyond a reasonable doubt that the defendant was aware of a substantial risk that there was this lack of willingness.”
|1||426||The Federal Circuits’ Second Amendment Doctrines
David B. Kopel and Joseph G.S. Greenlee
Independence Institute and Independent
Date posted to database: 21 Apr 2016
|2||296||Like Snow to the Eskimos and Trump to the Republican Party: The Ali's Many Words for, and Shifting Pronouncements About, 'Affirmative Consent'
University of San Diego School of Law
Date posted to database: 24 Mar 2016
|3||137||Causation in the Law: Philosophy, Doctrine and Practice
Ingeborg Puppe and Richard W. Wright
University of Bonn - Department of Law and Illinois Institute of Technology - Chicago-Kent College of Law
Date posted to database: 15 Mar 2016
|4||125||A Tactical Fourth Amendment
Brandon L. Garrett and Seth W. Stoughton
University of Virginia School of Law and University of South Carolina School of Law
Date posted to database: 25 Mar 2016
|5||122||Campus Sexual Assault Adjudication and Resistance to Reform
Michelle J. Anderson
CUNY School of Law
Date posted to database: 21 Apr 2016 [6th last week]
|6||101||Causation: Linguistic, Philosophical, Legal and Economic
Richard W. Wright and Ingeborg Puppe
Illinois Institute of Technology - Chicago-Kent College of Law and University of Bonn - Department of Law
Date posted to database: 22 Apr 2016 [7th last week]
Corey Rayburn Yung
University of Kansas School of Law
Date posted to database: 8 Mar 2016 [5th last week]
|8||67||Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016 [new to top ten]
|9||64||The Common Law of War
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 18 Apr 2016 [10th last week]
|10||61||Chapter One. Two Models of Criminal Justice
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 6 Apr 2016 [8th last week]
Michelle Edgely (University of New England (Australia) - School of Law) has posted Addressing the Solution-Focused Sceptics: Moving Beyond Punitivity in the Sentencing of Drug-Addicted and Mentally Impaired Offenders (University of New South Wales Law Journal, Vol. 39, No. 1, 2016) on SSRN. Here is the abstract:
The contextual backdrop of this article is the 2012 closure of solution-focused courts in Queensland and NSW and, more generally, the willingness of governments across Australia to implement policies in the criminal justice sphere without regard to the evidence of efficacy, if any, of those policies. This article uses solution-focused courts as a case study to examine the coherence of those closure decisions. Solution-focused courts present an interesting case study because their successes have confounded so many sceptics. This article first backgrounds the traditional role of the courts in rehabilitating offenders and then briefly outlines the development and operation of solution-focused courts, focusing particularly on drug courts and mental health courts. The article then presents a synopsis of the results of the most rigorous of the recidivism-reduction efficacy and cost-effectiveness studies of the courts. It is argued that there is an abundance of evidence that properly designed solution-focused courts are efficacious and cost-effective, especially in comparison to imprisonment. This article then considers whether a putatively punitive Australian public would be likely to support solution-focused courts for sentencing drug-addicted and mentally impaired offenders. The research into punitive attitudes among Australians in examined and critiqued. It is argued that the research supporting claims that the public is highly punitive is methodologically flawed and based on widespread misconceptions about crime and criminal justice. Another body of research was designed to overcome the limitations of decontextualized top-of-the-head responses to survey questions about sentencing. That research reveals that Australians are capable of more nuanced responses to crime and punishment. It is argued that presented with the relevant facts, many Australians would be likely to support solution-focused courts as an appropriate rehabilitative sentencing option for drug-addicted and mentally impaired offenders.
Saturday, May 7, 2016
Michael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Chapter Two. Retribution and the Limits of Criminal Justice on SSRN. Here is the abstract:
Those who claim that retributivism is a morally defensible position point to two things in support of that claim: retribution is said to justify the deliberate imposition of suffering as a way of controlling crime, and it is said to limit that imposition by the boundaries it sets. First of all, assuming that what we seek from punishment is to deter wrongdoers, we still need some way to justify the heaping of pain upon past wrongdoers as a means to that end. Desert, says the retributivist, solves this problem: what justifies harming the wrongdoer is that he brought it on himself. But the second thing is that although the fact that they have committed crimes in the past means that we are entitled to punish them, retribution sets down limits. The punishment the wrongdoer deserves is limited by his culpability and by the seriousness of his crime. If the punishment exceeds what is deserved, it is not justified. That at least is the story that the retributivist tells.
The second part of this argument is important in its own right. There are those who would argue that whether or not retribution and desert have any foundation in fact it is important that we act as though they do, especially in connection with the criminal law, because the consequences of abandoning them are too dire to be born. We would lose the limits that come with retribution. Regardless, then, of whether in fact human beings actually have free will, regardless of whether they are responsible for what they do, regardless of whether anyone actually deserves to be punished, regardless of whether retribution is ever justified, it is still morally desirable to insist on desert and retribution because without them we are bereft of the principles that limit the state’s use of the coercive machinery of criminal justice. The idea is that if we do not pretend human beings have free will and responsibility, the law will not know where to draw the line in its use of the instruments of the criminal justice system against wrongdoers.
My aim in this Chapter is to devalue retributivism as a boundary-setter and to show that even if retribution were an acceptable aim, even if some individuals did deserve punishment and even if punishment had to be limited to what those individuals deserve, that would not limit state’s use of coercive force and in particular its use of the preventive methods of quarantine in any way.
Heather Douglas (The University of Queensland - TC Beirne School of Law) has posted Do We Need a Specific Domestic Violence Offence? (39 (2) Melbourne University Law Review 434-471) on SSRN. Here is the abstract:
This article considers whether a specific domestic violence offence is needed in Australian criminal law that can recognise the ongoing, controlling and coercive nature of domestic violence. The recent introduction into English and Welsh law of a ‘controlling or coercive’ behaviour offence that is designed to apply to offences committed in the context of domestic violence provides a good opportunity to extend the discussion in Australia. After a brief overview of the difficulties and concerns associated with prosecuting domestic violence as a criminal offence, this article reflects on recent law reform processes and outcomes in England and Wales. The article then considers the approach to the criminalisation of domestic violence in the United States of America before turning to examine criminal law offences in Australia. The article concludes by proposing the introduction of a new offence.
|1||554||Defending the Indefensible? The Increasingly Difficult Job of Defending Soldiers Accused of Sexual Assault
Mason S. Weiss
Government of the United States of America - Army
Date posted to database: 7 Mar 2016 [2nd last week]
|2||502||Policing Hoover's Ghost: The Privilege for Law Enforcement Techniques
Stephen W. Smith
Texas Southern University - Thurgood Marshall School of Law
Date posted to database: 2 Mar 2016 [3rd last week]
|3||362||Searching Places Unknown: Law Enforcement Jurisdiction on the Dark Web
UC Hastings College of the Law
Date posted to database: 7 Mar 2016 [4th last week]
Stephen Rushin and Griffin Sims Edwards
University of Alabama - School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics
Date posted to database: 3 Apr 2016 [5th last week]
|5||278||'They Have All the Power': Youth/Police Encounters on Chicago's South Side
Craig B. Futterman, Chaclyn Hunt andJamie Kalven
University of Chicago Law School, Invisible Institute and Invisible Institute
Date posted to database: 27 Mar 2016 [6th last week]
|6||267||Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court
Mark Denbeaux, Kelley Kearns andMichael J. Ricciardelli
Seton Hall University, School of Law, Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08
Date posted to database: 9 Apr 2016 [8th last week]
|7||254||Trial by Machine
Andrea L. Roth
University of California, Berkeley - School of Law
Date posted to database: 9 Mar 2016
|8||200||Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution
Harry M. Caldwell
Pepperdine University - School of Law
Date posted to database: 10 Apr 2016 [9th last week]
|9||177||Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy
Bryce Clayton Newell
Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT)
Date posted to database: 4 Mar 2016 [10th last week]
|10||158||High Pain, No Gain: How Juvenile Administrative Fees Harm Low-Income Families in Alameda County, California
Jeffrey Selbin and Stephanie Campos
University of California, Berkeley - School of Law and University of California, Berkeley - School of Law
Date posted to database: 29 Feb 2016 [new to top ten]
Christopher Joseph has posted Find My Criminals: Fourth Amendment Implications of the Universal Cell Phone 'App' That Every Cell Phone User Has But No Criminal Wants (Barry Law Review, Forthcoming) on SSRN. Here is the abstract:
The current state of the law with regard to the collection and use of cell site location information (CSLI) varies from state to state, and even between federal and state jurisdictions; not to mention that the rules can change depending on whether the information sought is historical or prospective. In light of Supreme Court precedent related to the topic, a court order should be sufficient to obtain this information, despite the fact that several jurisdictions demand a search warrant in order for members of law enforcement to obtain and use this information. However, even if a search warrant is required, exceptions to the warrant requirement can be applied to allow the police to obtain and use this information without first obtaining a search warrant.
Friday, May 6, 2016
Sara Gordon (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Crossing the Line: Daubert, Dual Roles, and the Admissibility of Forensic Mental Health Testimony (Cardozo Law Review, Vol. 37, No. 4, p. 1345, 2016) on SSRN. Here is the abstract:
Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient — a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, and she has an obligation to give objective and truthful testimony. But this testimony can result in the patient’s detention or punishment, a legal outcome that implicates the mental health professional’s corresponding obligation to “do no harm” to the patient. Moreover, the conflict of interest created by a dual relationship can affect the objectivity and reliability of forensic testimony.
Vincent Chiao (University of Toronto - Faculty of Law) has posted A Response to Professor Kleinfeld's 'Reconstructivism: The Place of Criminal Law in Ethical Life' (Harvard Law Review Forum, Vol. 129, p. 258, April 2016) on SSRN. Here is the abstract:
This short paper is a response to Josh Kleinfeld's recent defense of a reconstructivist theory of the criminal law. I argue that reconstructivism cannot explain why the expressive nullification of crime is "the" central role for criminal justice institutions, nor why it is so important that this role take the specific form of criminal punishment. Second, I argue that Kleinfeld vacillates between two different claims – that the criminal law is constitutive of a society's way of life and the quite different claim that the criminal law is a means of protecting it. Third, I raise some concerns about the relation of reconstructivism to the historical and contemporary literature. Finally, I suggest that reconstructivism serves to effectively insulate a society's potentially oppressive use of the criminal law from criticism.