CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Wednesday, August 12, 2015

Park on Gender-Based Violence

Sandra S. Park (ACLU Women's Rights Project) has posted Equal Protection for Survivors of Gender-Based Violence: From Criminalization to Law Enforcement Accountability (5 U. Miami Race & Soc. Just. L. Rev. 401 (2015)) on SSRN. Here is the abstract:

In this essay, I argue that strengthening the accountability of law enforcement to survivors of abuse and violence, such as survivors of domestic and sexual violence, is a necessary step toward ending gender-based violence and ensuring justice for survivors. 

While reforms often have focused on criminalizing domestic and sexual violence and investigating and punishing perpetrators, law enforcement accountability for their responses to gender-based violence serves as an important complement and counterpoint. Advocacy to hold law enforcement accountable acts as a check on misconduct and impunity by: 1) connecting state-perpetrated, state-created, and state-condoned violence; 2) preserving criminal justice responses for survivors who seek them; and 3) building survivors’ power. I also describe how tools and strategies from the civil and human rights frameworks can be used to enhance law enforcement oversight and community engagement.

August 12, 2015 | Permalink | Comments (0)

Tuesday, August 11, 2015

Treyger on Collateral Incentives to Arrest

Treyger_elina_11_smElina Treyger (George Mason University School of Law) has posted Collateral Incentives to Arrest (Kansas Law Review, Vol. 63, No. 3, pp. 557-631, 2015) on SSRN. Here is the abstract:

In the 1960s, criminal procedure experts such as Wayne LaFave documented the use of custodial arrests for all sorts of purposes, from arrests of gamblers to disrupt their activities to arrests of prostitutes for medical examinations. The same experts also claimed that arrests made for purposes other than prosecution are illegitimate. Today, police arrest in pursuit of a comparably broad set of aims and are influenced by a variety of considerations in that decision. This Article draws attention to a problematic subset of influences on arrest decisions, which arise as a result of “collateral incentives.” Incentives to arrest are “collateral” when they lead police to arrest on the basis of factors irrelevant to the suspect’s likely guilt of the crime of arrest, and when police may reap the full benefits offered by these incentives irrespective of the suspect’s guilt of, or prosecution for, the crime of arrest. Collateral incentives may be created by a variety of policies: this Article focuses on two on-arrest biometric screening regime as examples, one set up by the federal government’s Secure Communities program and another regime set up by the state and federal laws authorizing the collection of DNA from arrestees. These policies create incentives to target likely immigration violators and likely criminal recidivists, respectively. 

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August 11, 2015 | Permalink | Comments (0)

Diamantis on Corporate Criminal Minds

Mihailis Evangelos Diamantis has posted Corporate Criminal Minds on SSRN. Here is the abstract:

If they can commit the vast majority of crimes, corporations must have mental states. Lawmakers and scholars assume that factfinders need fundamentally different procedures for attributing mental states to corporations and individuals. But recent advances in cognitive science cast doubt on this assumption by revealing similarities in how people attribute mental states to groups and individuals.

The standard doctrine — which attributes to corporations all and only the mental states of their employees — illustrates the difficulties of trying to find a wholly separate theory of corporate mens rea. At this stage in corporate history, the standard approach regularly leads to acquittals and convictions out of synch with any sensible notion of criminal justice.

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August 11, 2015 | Permalink | Comments (0)

Bradford & Loader on Police and Stop and Search

Ben Bradford and Ian Loader (University of Oxford - Centre for Criminology and University of Oxford - Faculty of Law) have posted Police, Crime and Order: The Case of Stop and Search (Ben Bradford, Beatrice Jauregui, Ian Loader and Jonny Steinberg (eds.) The SAGE Handbook of Global Policing. London: SAGE, summer 2016) on SSRN. Here is the abstract:

In this chapter we revisit and extend discussion about the relation of the police to the key political concepts of ‘crime’ and ‘order’ using the case of the police power of stop and search/frisk. We select this power as a case study because its exercise is laden with implications for how we understand the overarching purpose of the police and seek to control and govern police work. Using evidence on the social and spatial distribution of stop and search from several jurisdictions, we contest two legitimating fictions about this power – that it is a tool of crime detection and that it can be subject to effective legal regulation. The evidence, we argue, suggests that stop and search is about control and the assertion of order and the effort to do this implicates not only ‘fighting crime’ but also regulating and disciplining populations based on who they are, not how they behave. Given this, we argue, stop and search is best understood as an aspect of The Police Power recently theorized by Markus Dubber (2005) – a potentially limitless, uncontrollable, extra-legal power to do what is necessary to monitor and control marginal populations. In conclusion, we spell out the regulatory implications of understanding stop and search in these terms.

August 11, 2015 | Permalink | Comments (0)

Monday, August 10, 2015

Garrett on Convicting the Innocent Redux

Garrett brandonBrandon L. Garrett (University of Virginia School of Law) has posted Convicting the Innocent Redux (D. Medwed, Ed., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Cambridge University Press, Forthcoming)) on SSRN. Here is the abstract:

My book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” published in 2011, tells the story of the first 250 DNA exonerations in the United States. There have now been 330 DNA exonerations. There is no other country in the world in which such a large group of people have been exonerated by DNA evidence. This Chapter updates data collected when researching the book, and in many respects, the patterns remain the same. Many faced quite severe sentences. Twenty exonerees had been sentenced to death. Ninety-two were sentenced to life in prison, 12 of which were sentenced to life without parole. The vast majority, 80 percent of these DNA exonerees, were racial minorities. There have been some notable changes in the composition of the most recent set of DNA exonerations. The more recent DNA exonerations include far more murder convictions than the first 250 DNA exonerations. These changes have impacted the types of evidence prominent in the cases. Similarly high percentages of cases involve eyewitness misidentifications (70%) and forensics (69%). Most striking, more of the cases include false confessions (21%) and informant testimony (22%). Many of the most recent exonerations were particularly hard fought along the path to eventual exoneration. Often because prosecutors were swayed by confession evidence they continued to litigated cases for years, even despite DNA tests results. Indeed, 22 of the recent 80 cases involved DNA analysis, 18 of which DNA exclusions of individuals that were nevertheless convicted; 3 more of which involved DNA exclusions concealed from the defense, and one more case, which involved a sample mix-up leading to an error in DNA analysis. Of the 227 cases that involved forensic evidence, 46% or 105 cases, involved invalid, erroneous, or concealed forensics. Almost half of the cases with eyewitness identifications involved cross-racial identifications. Twenty-nine of these inmates received vacaturs during appeals or post-conviction occurring prior to their DNA exonerations, representing 14% of the 204 that had written decisions published by judges. These most recent exonerations are particularly troubling, because some of the same underlying practices that can lead to wrongful convictions are with us today, even if reforms are spreading and attitudes towards criminal justice are shifting.

August 10, 2015 | Permalink | Comments (0)

Coker & Macquoid on Hyper-Incarceration and Domestic Violence

Donna Coker and Ahjane Macquoid (University of Miami School of Law and Independent) have posted Why Opposing Hyper-Incarceration Should Be Central to the Work of the Anti-Domestic Violence Movement (5 U. Miami Race & Soc. Just. L. Rev. 585 (2015)) on SSRN. Here is the abstract:

We demonstrate that among the many negative results of hyper-incarceration is the risk of increased domestic violence. In Part I, we describe the growth of hyper-incarceration and its racial, class, and gender disparate character. This growth in criminalization has been fueled by racist ideologies and is part of a larger neoliberal project that also includes disinvestment in communities, diminishment of the welfare state, and harsh criminalization of immigration policy. We place the dominant crime-centered approach to domestic violence in this larger neoliberal context.

The well-documented harms of hyper-incarceration -- collateral consequences that limit the economic and civic opportunities of those with criminal convictions; the emotional and economic harms to families of incarcerated parents; prison trauma and the deepening of destructive masculinities; the weakening of a community’s social structure, economic viability, and political clout -- produce harms that research demonstrates are tied to increased risks for the occurrence of domestic violence. 

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August 10, 2015 | Permalink | Comments (0)

Harlow on Alternate Variance Sentences and the Federal Sentencing Guidelines

James Harlow has posted Does the Calculation Matter? The Federal Sentencing Guidelines and the Doctrine of Alternate Variance Sentences (South Carolina Law Review, Vol. 66, No. 4, 2015) on SSRN. Here is the abstract:

The Federal Sentencing Guidelines play a central role in the sentencing of federal criminal defendants. A decade ago, in United States v. Booker, the Supreme Court undercut the original purpose for the Guidelines — to bring binding structure to a previously discretionary sentencing scheme — by declaring that the Guidelines were advisory only.

Even though advisory, the Guidelines remain at the procedural heart of the sentencing process and provide “the framework for sentencing.” All sentencing proceedings in the district court begin with the proper calculation of the advisory Guidelines range. Similarly, on review, the courts of appeals initially determine whether the sentencing process was free of procedural errors, including whether the advisory Guidelines range was correctly calculated. 

However, the Guidelines are no longer the beginning and end of a sentencing hearing. A defendant’s advisory Guidelines range is but one of several important factors enumerated in 18 U.S.C. § 3553(a) that a sentencing court must consider. In a case when other, non-Guidelines considerations clearly steered the sentencing court’s discretion, should it matter whether the advisory Guidelines range was correctly calculated in the first place? 

This Article examines the Fourth Circuit’s emergent and evolving doctrine of alternate variance sentences. Under this doctrine, a sentence will not be vacated even if the sentencing court may have erred when calculating the advisory Guidelines range. If it is clear from the record that an advisory Guidelines issue did not influence the ultimate sentence, the appellate panel will assume any Guidelines errors are harmless and proceed to evaluate whether the sentence is substantively reasonable. The doctrine's increasingly frequent application has a significant impact on all actors in the federal criminal sentencing process — prosecutors, defense counsel, defendants, and judges. Moreover, the doctrine implicates important debates about the meaning and effect of the Guidelines after Booker, the distribution of power between district and appellate judges in sentencing, and judicial efficiency.

August 10, 2015 | Permalink | Comments (0)

Sunday, August 9, 2015

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 1,992 Concealed Carry Permit Holders Across the United States 
John R. LottJohn E Whitleyand Rebekah C. Riley 
Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center 
Date posted to database: 20 Jul 2015 
2 585 Constitutional Malware 
Jonathan Mayer 
Stanford University 
Date posted to database: 21 Jul 2015 
3 394 '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 
4 308 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 
5 262 Gideon's Servants and the Criminalization of Poverty 
Alexandra Natapoff 
Loyola Law School Los Angeles 
Date posted to database: 28 Jun 2015 
6 239 Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 9 Jul 2015 
7 227 An Economic Understanding of Search and Seizure Law 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 21 Jul 2015 [10th last week]
8 169 Invisible Women: Mass Incarceration's Forgotten Casualties 
Michele Goodwin 
University of California, Irvine School of Law 
Date posted to database: 10 Jun 2015 [7th last week]
9 162 Prison Abolition and Grounded Justice 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 2 Jul 2015 
10 160 Riders on the Storm: An Analysis of Credit Card Fraud Cases 
Ioana Vasiu and Lucian Vasiu 
Babes-Bolyai University - Faculty of Law and Independent 
Date posted to database: 4 Jun 2015 [8th last week]

August 9, 2015 | Permalink | Comments (0)

Saturday, August 8, 2015

Zhong on Remorse in Criminal Law

Rocksheng Zhong Madelon Baranoski Neal Feigenson Larry Davidson Alec Buchanan andHoward Zonana (University of Pennsylvania , Yale University , Quinnipiac University - School of Law , Yale University , Yale University and Yale University) have posted So You're Sorry? the Role of Remorse in Criminal Law (Journal of the American Academy of Psychiatry and the Law, 42, 39-48 (2014)) on SSRN. Here is the abstract:

The role of remorse in judicial decisions in the criminal justice system has been addressed in scholarship and remains controversial. The purpose of this qualitative research was to examine the views of sitting criminal judges on remorse, its assessment, and its relevance in their decision-making. After approval of the study design by the institutional review board, 23 judges were interviewed in an open-ended format. Transcriptions of these audio-recorded sessions were analyzed phenomenologically by the research team, using the method of narrative summary. The results showed that the judges varied widely in their opinions on the way remorse should be assessed and its relevance in judicial decision-making. They agreed that the relevance of remorse varied by type of crime and the stage of the proceedings. The indicators of remorse for some judges were the same as those that indicated the lack of remorse for others. All the judges recognized that assessment of remorse, as well as judicial decision-making in general, must be altered for defendants with mental illness. The judges varied in their views of the relevance of psychiatric assessments in determining remorse, although most acknowledged a role for forensic psychiatrists.

August 8, 2015 | Permalink | Comments (0)

Friday, August 7, 2015

Marder on Social Media and Fair Trials

Marder nancyNancy S. Marder (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Jurors and Social Media: Is a Fair Trial Still Possible? (67 Southern Methodist University Law Review 617 (2014)) on SSRN. Here is the abstract:

Slowly but surely the Sixth Amendment's guarantee of a fair trial is being eroded as social media invades the jury room. Essential evidentiary rules control what jurors can learn about a case and what they can say about it during a trial. In just a decade, the rapid growth of easy online communication has threatened to dissolve the careful walls we have built around the jury. The key question is whether courts can now persuade jurors to resist the siren call of online communication when they serve as jurors. We cannot ignore this problem. Having jurors refrain from using the Internet and social media while they serve as jurors is likely to grow harder in the years ahead and will require taking what I call a "process view" of a juror's education. 

A process view of a juror's education recognizes that every stage at which the court interacts with jurors creates an opportunity to educate them. From start to finish -- from jury summons to jury verdict -- there are opportunities for the court to educate jurors about the need to avoid online communication about the trial. A comprehensive education should transform "uninformed jurors" into informed jurors. Admittedly, it will not reach "recalcitrant jurors." For recalcitrant jurors, who have no intention of following the prohibition, the best hope is for judges and lawyers to find new ways to identify and remove them during voir dire. This article explores what it means to take a process view of a juror's education in order to protect a defendant's Sixth Amendment right to a fair trial.

August 7, 2015 | Permalink | Comments (0)

Henderson & Thai on Teaching Criminal Procedure

Stephen E. Henderson and Joseph T. Thai (University of Oklahoma College of Law and University of Oklahoma - College of Law) has posted Teaching Criminal Procedure: Why Socrates Would Use YouTube (St. Louis University Law Journal, Forthcoming) on SSRN. Here is the abstract:

In this invited contribution to the Law Journal’s annual teaching volume, we pay some homage to the great philosopher whose spirit allegedly guides our classrooms, but in service of two concrete goals. One, we employ dialogue to describe the “nuts and bolts” of teaching criminal procedure, most of which are equally relevant to any doctrinal law school course (including course description, office hours, seating charts and attendance, class decorum and recording, student participation, laptops, textbooks, class preparation and presentation, and exams). Two, we explain the benefits of using multimedia in the classroom, including a few of the many modules found on our Crimprof Multipedia service. We organize its benefits into four “h’s” (humor, humanization, headlines, and hypotheticals), and we give several examples of each for a topic that pervades criminal procedure: racial (in)justice.

August 7, 2015 | Permalink | Comments (0)

Thursday, August 6, 2015

Marder & Hans on Juries and Lay Participation

Nancy S. Marder and Valerie P. Hans (Illinois Institute of Technology - Chicago-Kent College of Law and Cornell University - School of Law) have posted Introduction to Juries and Lay Participation: American Perspectives and Global Trends (90 Chicago-Kent Law Review 789 (2015)) on SSRN. Here is the abstract:

The jury in the United States is fraught with paradoxes. Even though the number of jury trials in the United States continues to decline, jury trials play a prominent role in American culture and continue to occupy headlines in newspapers and top stories on television. Americans might not always agree with the verdict that any given jury renders, but they continue to express their support for the jury system in poll after poll. This Symposium of the Chicago-Kent Law Review presents new theories and research, with a focus on the contemporary American jury. The Introduction begins by connecting discussions at two recent jury conferences. The conference held in Onati, Spain examined developments in jury systems worldwide and the conference held at IIT Chicago-Kent College of Law focused on the American jury. This Symposium includes several of the papers inspired by these conferences. This Introduction, in addition to describing issues raised at the conferences, provides an overview of the articles in this Symposium, and concludes by presenting an agenda for the next generation of jury research, with a recommendation for collaborative approaches to incorporate distinctive methods and perspectives.

August 6, 2015 | Permalink | Comments (0)

Jones on A Fourth Amendment Framework for Financial Warfare

Chris Jones has posted Caught in the Crosshairs: Developing a Fourth Amendment Framework for Financial Warfare (Stanford Law Review, Vol. 68, Forthcoming) on SSRN. Here is the abstract:

Historically, the Fourth Amendment and U.S. sanctions policy never interacted. Sanctions targeted foreign entities, which do not enjoy the protections of the Fourth Amendment. In the past couple of decades, however, the issue has become significantly more complicated. If, for instance, an organization in Oregon sends money to an organization in the Middle East that the United States has subjected to sanctions, should the government need a warrant to stop the transfer of funds? After all, it is a "seizure" of the entity's property, isn't it? This paper analyzes the disagreement among courts about whether the Treasury Department should be required to get a warrant when enforcing sanctions against U.S. persons and provides a new framework for answering this question.

August 6, 2015 | Permalink | Comments (0)

Wednesday, August 5, 2015

Schehr on The Unconstitutionality of Plea Bargaining

Robert Schehr (Northern Arizona University) has posted The Emperor's New Clothes: Intellectual Dishonesty and the Unconstitutionality of Plea-Bargaining on SSRN. Here is the abstract:

United States Supreme Court and jurisprudential rationalizations for the constitutionality, centrality, and finality of plea-bargaining signify intellectual dishonesty, ignorance of human behavior and decision-making, and a state-sanctioned threat to personhood and liberty in the United States of America. It is the Author’s purpose to expose the imperious practice of plea-bargaining for what it is — a cynical and intellectually dishonest institutional remedy for an unwieldy judicial system that has knowingly rationalized the practice to facilitate expedient resolution of ever-increasing caseloads. In order to establish plea practice as constitutional, the Supreme Court was forced to employ a jurisprudential discourse that shifted from the due-process language found in criminal law, especially the protections afforded by the Fifth and Sixth Amendments, towards contract law where defendants personifying homo economicus are “free” to negotiate away their rights. Beginning in 1930, and again in 1970, the Supreme Court applied an entirely novel standard to the adjudication of criminal cases, and it rationalized its decision on the need for efficiency. What is at stake is nothing less than the integrity of the Constitution, the Bill of Rights, and whatever still remains of an American sense of personhood under the law. The erosion of our rights that are so intimately associated with freedom due to plea-bargaining is an unprecedented injustice that cannot continue.

August 5, 2015 | Permalink | Comments (2)

Clermont on Standard of Proof

Clermont kevinKevin M. Clermont (Cornell Law School) has posted Trial by Traditional Probability, Relative Plausibility, or Belief Function? on SSRN. Here is the abstract:

Almost incredible is that no one has ever formulated an adequate model for applying the standard of proof. What does the law call for? The usual formulation is that the factfinder must roughly test the finding on a scale of likelihood. So, the finding in a civil case must at least be more likely than not or, for the theoretically adventuresome, more than 50% probable. Yet everyone concedes that this formulation captures neither how human factfinders actually work nor, more surprisingly, how theory tells us that factfinders should work.

An emerging notion that the factfinder should compare the plaintiff’s story to the defendant’s story might be a step forward, but this relative plausibility conjecture has its problems. I contend instead that the mathematical theory of belief functions provides an alternative without those problems, and that the law in fact conforms to this theory. Under it, the standards of proof reveal themselves as instructions for the factfinder to compare the affirmative belief in the finding to any belief in its contradiction, but only after setting aside the range of belief that imperfect evidence leaves uncommitted. Accordingly, rather than requiring a civil case’s elements to exceed 50% or comparing best stories, belief functions focus on whether the perhaps smallish imprecise belief exceeds its smallish imprecise contradiction. Belief functions extend easily to the other standards of proof. Moreover, belief functions nicely clarify the workings of burdens of persuasion and production.

August 5, 2015 | Permalink | Comments (0)

Tuesday, August 4, 2015

Mazza, Lederman & Johnson on Surcharges and Penalties in Tax Law

Stephen W. Mazza Leandra Lederman and Steve R. Johnson (University of Kansas - School of Law , Indiana University Maurer School of Law and Florida State University - College of Law) have posted Surcharges and Penalties in Tax Law: United States (Indiana Legal Studies Research Paper No. 319, Annual Congress Milan 2015, IBFD Amsterdam (2016 Forthcoming)) on SSRN. Here is the abstract:

This is the General Report for the United States on the theme of “Surcharges and Penalties in Tax Law” for the 2015 meeting of the European Association of Tax Law Professors in Milan, Italy. The Report addresses questions relating to the treatment of civil penalties, criminal penalties and interest charges imposed on taxpayers under the U.S. federal income tax. In so doing, the Report explains the basics of federal tax procedure. It also includes some government statistics on U.S. Tax Court cases and criminal tax prosecutions.

August 4, 2015 | Permalink | Comments (0)

Hopwood on Mass Incarceration and Failure to Fix Sentencing Mistakes

Shon Hopwood has posted Preface for: Failing to Fix Sentencing Mistakes: How the System of Mass Incarceration May Have Hardened the Hearts of the Federal Judiciary (Georgetown Law Journal, Forthcoming, 43 Geo. L.J. Ann. Rev. Crim. Proc. iii (2014)) on SSRN. Here is the abstract:

When most people think about criminal procedure, they think about sexy issues like illegal searches and seizures or the rights to counsel and trial by jury. But what goes largely unnoticed, to all but criminal defendants, are issues related to sentencing and the later review of those sentences through the various habeas corpus and post-conviction remedies. Those issues have gained importance in the last decade and a half as federal courts have heard significantly more claims of sentencing error than at any time previously. And, at a time when more defendants press claims of sentencing error, courts have responded by making it harder for defendants to succeed in obtaining resentencing relief. This Article examines this new normal and its causes.

August 4, 2015 | Permalink | Comments (0)

Lippke on Attempts and Renunciation

Richard L. Lippke (Indiana University) has posted Attempts and Renunciations (Ohio State Journal of Criminal Law 12 (2015): 615-31) on SSRN. Here is the abstract:

Sometimes individuals come very close to acting on criminal intentions only to pull back from doing so. These cases raise two questions: How far toward acting on their criminal intentions must agents have to go before incurring attempt liability? And once they have incurred it, should they be permitted to raise renunciation defenses, according to which they contend that they do not deserve punishment because they abandoned their attempts before anyone was harmed? After briefly addressing the first question, I concentrate on the second. Close attention is paid to the variety of motives that might lead individuals to abandon criminal attempts and, in particular, whether a renunciation defense requires full moral abandonment of the agent’s criminal purpose. I argue that it does not, though concede that renunciation ought to be, in most cases, a ground for mitigating punishment, not excusing individuals from it.

August 4, 2015 | Permalink | Comments (0)

Monday, August 3, 2015

Caldwell on Miller v. Alabama as a Watershed Procedural Rule

Caldwell bethBeth Caldwell (Southwestern Law School) has posted Miller v. Alabama as a Watershed Procedural Rule: The Case for Retroactivity (Harvard Law & Policy Review, Vol. 9, 2015) on SSRN. Here is the abstract:

Three years ago, in Miller v. Alabama, the Supreme Court ruled that sentencing juveniles to life without parole (LWOP) under mandatory sentencing schemes amounts to cruel and unusual punishment in violation of the Eighth Amendment. Over the past few years, courts have reached conflicting conclusions regarding whether the rule the Supreme Court pronounced in Miller applies retroactively to the cases of over 2,100 prisoners whose convictions were final when the case was decided. The Supreme Court granted certiorari in Montgomery v. Louisiana and is now poised to decide whether Miller must apply retroactively. The issue has primarily been framed as a question of whether the Miller rule is substantive, and therefore retroactive, or procedural, and therefore not retroactive. Ten state supreme courts have concluded that Miller is retroactive because it created a new substantive rule. The four states that have determined Miller is not retroactive have done so on the basis that its rule is procedural, rather than substantive. However, Miller’s rule is not clearly substantive or procedural.

This Essay presents an alternative argument for concluding that Miller is retroactive — one that has been marginalized in the discourse thus far but was just relied upon by the Connecticut Supreme Court in Casiano v. Commissioner. I argue that even if the Supreme Court were to determine that Miller announced a new procedural rule, it should still apply retroactively because of its groundbreaking nature.

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August 3, 2015 | Permalink | Comments (0)

Kim on Underestimating the Trial Penalty

Kim andrew chongsehAndrew Chongseh Kim (Concordia University School of Law) has posted Underestimating the Trial Penalty: An Empirical Analysis of the Federal Trial Penalty and Critique of the Abrams Study (Mississippi Law Journal, Vol. 84, No. 5, 2015) on SSRN. Here is the abstract:

This Article reveals that the average federal defendant who goes to trial receives a sentence 64% longer than if she had instead plead guilty. In other words, federal defendants who exercise their Constitutional right to trial are penalized with sentences 64% longer for exercising that right. This Article is the first to demonstrate that federal defendants who currently go to trial would have been much better off if they had instead plead guilty, even after accounting for their chances for acquittal. It reveals also that federal defendants receive "discounts" for pleading guilty that are so large that extremely few could rationally ever go to trial. Under such a system, trial by jury becomes less of a right and more of a trap for fools. 

These findings and conclusions conflict with David Abrams’ recent study claiming that defendants can actually expect shorter sentences for going to trial.

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August 3, 2015 | Permalink | Comments (0)