Wednesday, September 10, 2014
Doug Berman has this post at Sentencing Law & Policy, excerpting an A.P. article. In part:
The Global Commission on Drug Policy said traditional measures in the "war on drugs" such as eradicating acres of illicit crops, seizing large quantities of illegal drugs, and arresting and jailing violators of drug laws have failed. The commission's 45-page report pointed to rising drug production and use, citing the U.N. Office on Drugs and Crime's estimate that the number of users rose from 203 million in 2008 to 243 million in 2012.
The commission includes former U.N. Secretary-General Kofi Annan; the former presidents of Brazil, Chile, Colombia, Mexico, Poland, Portugal and Switzerland; British tycoon Richard Branson and former U.S. Federal Reserve chief Paul Volcker. It was established in 2010 with a stated purpose of promoting "science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies."
Owen D. Jones , Richard J. Bonnie , BJ Casey , Andre Davis , David L. Faigman , Morris B. Hoffman , Read Montague , Stephen Morse , Marcus E. Raichle , Jennifer A. Richeson , Elizabeth S. Scott , Laurence Steinberg , Kim A. Taylor-Thompson , Anthony D. Wagner and Gideon Yaffe (Vanderbilt University - Law School & Dept. of Biological Sciences , University of Virginia - School of Law , Sackler Institute for Developmental Psychobiology , US Court of Appeals - Fourth Circuit , University of California Hastings College of the Law , Second Judicial District Court Judge, State of Colorado , Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute , University of Pennsylvania Law School , Washington University School of Medicine , Northwestern University - Department of Psychology , Columbia University - Law School , Temple University , New York University School of Law , Stanford University - Psychology and Yale Law School) have posted Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission on SSRN. Here is the abstract:
President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations.
The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent can the capacity of neurotechnologies to aid in the administration of criminal justice be enhanced through research?; and 3) in what additional ways might important ethical issues at the intersection of neuroscience and criminal justice be addressed?
Jens David Ohlin (Cornell University - School of Law) has posted Cyber-Causation (CYBERWAR: LAW & ETHICS FOR VIRTUAL CONFLICTS, Jens David Ohlin, Claire Finkelstein, and Kevin Govern, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.
Megan Quattlebaum has this post at The Huffington Post. In part:
In the criminal justice reform arena, states have taken the lead. From rolling back harsh mandatory minimum sentences (at least 29 states have done so since 2000) to decreasing their prisons' populations (New York's declined 26 percent between 1999 and 2012, and violent crime rates fell) states are taking steps to be smart on crime.
Once a leader, the federal government now lags behind the states in criminal justice innovation. Congress has passed some laudable initiatives in recent years, including the Fair Sentencing Act, which reduced the disparity in sentencing for crack and powder cocaine offenses, and the Second Chance Act, which provided funding for reentry services. But the federal prison population nonetheless continues its seemingly inexorable rise, from 25,000 inmates in 1980 to about 219,000 today.
Tuesday, September 9, 2014
This article argues that repeated criminal misconduct, at least in some areas, has the characteristics of a habit or addiction. Curiosity or a transient attraction can lead an offender to commit her first crime. This first infraction will give her a sense of how much she enjoyed it, and whether she has the talent, and stomach, to continue down a path of repeated misconduct. If the feedback is sufficiently positive, the offender may commit a second crime, and possibly a third. At some point, the offender will find herself with the opportunity to commit yet another crime, and realize that the immediate disutility of stopping, of going back into a life as a law-abiding citizen, is too great: she may find that the immediate disutility of foregoing a criminal opportunity is too high. Once the habit takes hold, the offender may continue to commit crimes, even if doing so leads her to suffer large aggregate negative internalities. An offender is thus “addicted to criminal misconduct” if her previous history of misconduct increases the marginal utility of committing a crime in the current period by a sufficient amount; that is, if the immediate disutility from stopping has reached a cut-off point, such that she violates the law notwithstanding the fact that but-for the addiction she would have obeyed the law. The addicted criminal trades off the heightened immediate disutility from obeying the law against the reduction in total utility due to the negative internalities—including expected sanctions. After setting forth the rational criminal addiction theory, the article develops a number of legal implications that follow from the theory.
Florida's ban on texting while driving specifically notes that "a motor vehicle that is stationary is not being operated and is not subject to the prohibition." As The Northwest Florida Daily News has explained, the law "allows texting while stopped at a red light, in a traffic jam or reporting criminal activity."
In other states, the law is less clear. For example, California's texting while driving prohibition merely states "a person shall not drive a motor vehicle" while writing or reading a text message (except if using a hand's free operation). So is being stopped at a stoplight "driving" for purposes of this law? The California Highway Patrol seems to think so, telling San Francisco's KGO-TV that it's not OK to check email or read text messages while at a stoplight or in bumper-to-bumper traffic.
And even in states that explicitly allow or have a stoplight loophole in their texting-while-driving laws, any time being distracted by your phone causes you to impede traffic in a way that creates a dangerous condition for other drivers, such as not going on a green light, you can potentially be cited for distracted driving or even reckless driving.
This paper critically examines the potential of prisoner litigation in Canada to shed light on what U.S. Supreme Court Justice Anthony Kennedy has called “the hidden world of punishment.” It considers whether prisoner’s rights litigation can act as a meaningful legal check on the growing punishment agenda in Canada. The paper begins with a brief description of some aspects of the punishment agenda before moving on to consider case law under the section of the Canadian Charter of Rights and Freedoms which speaks directly to punishment and its limits, the section 12 right to be free from “cruel and unusual treatment or punishment.” A dominant strand in the section 12 case law has been the minimal impact the section has had in limiting the proliferation of mandatory minimum sentences in recent years. This paper considers another strand of section 12 case law which has received little attention and which presents a different kind of challenge to the punishment agenda, namely section 12 review of prison conditions and the treatment of prisoners. The paper concludes with some thoughts on the limitations and potential of Charter litigation in the prison context.
Judith Cashmore and Rita Shackel (University of Sydney - Faculty of Law and University of Sydney - Faculty of Law) have posted Introduction: Responding to Historical Child Sexual Abuse and the Needs of Survivors (Current Issues in Criminal Justice, Vol. 24, No. 1, pp. 1-4, 2014) on SSRN. Here is the abstract:
The aim of this Special Issue of Current Issues in Criminal Justice is to engage authors and the Journal’s readership in reflection on how the needs of victims and survivors of child sexual abuse can be better recognised and their justice needs responded to appropriately. The articles included in this issue canvass a range of issues from different professional and personal perspectives, and, importantly, brings together insights from both research and practice. The focus is on responses to historical cases of child sexual abuse, that is, cases involving allegations of abuse perpetrated many years earlier - a category of cases that is notoriously difficult to prosecute and for which redress or justice commonly remain elusive.
From The New York Times:
On Monday, Mr. Bratton, surrounded by much of his top leadership, delved into the details of his plan. Every officer would go through a three-day retraining course, on how to talk to an “uncooperative person” in a way that does not escalate into a physical conflict; how to subdue a suspect if the encounter does escalate or if a suspect resists arrest; and how to be sensitive to cultural differences. It would also include a leadership workshop called Blue Courage.
Mr. Bratton said that officers would be expected to retrain regularly in these techniques, as they do with the use of firearms, and that the course would likely evolve over time.
Monday, September 8, 2014
Joelle Lockwood, 30, went missing on July 9 and was apparently held in a residence in Indiana's Posey County, the Evansville Police Department said in a statement. Lockwood had last been seen in Evansville before disappearing.
She was freed after a man visiting the suspects got her out of the residence and brought her to Evansville, where detectives interviewed her then went to the residence and arrested the suspects, police said.
Robert P. Burns (Northwestern University - School of Law) has posted Preface for: Kafka's Law: 'The Trial' and American Criminal Justice (University of Chicago Press, 2014) on SSRN. Here is the abstract:
Justice Kennedy famously claimed that Kafka's great work, "The Trial," expressed the reality of the American criminal justice system, at least from the defendant's point of view. This essay, the first sections a book just released by the University of Chicago Press, first summarizes the book's argument that the Justice got it just right, and then provides a close reading of "The Trial." This reading agrees with Hannah Arendt's view that the novel is centrally about institutional issues of justice and that it provides an "organizational gothic" vision of contemporary bureaucratic governance in criminal procedure.
Jeffrey Bellin (William & Mary Law School) has this op-ed piece in the Washington Post. In part:
The guilty verdicts in the trial of former Virginia governor — and Republican sinking star — Robert McDonnell highlight an ugly tension between America’s politics and its public corruption laws. Beyond the pricey gifts, unraveling marriage and throw-your-wife-under-the-bus defense that dominated the media coverage lies a more important story. The real stars of this drama were the vague public corruption statutes that took down the former governor and the elusive distinction they draw between “politics as usual” and criminality.
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted Big Data Distortions: Exploring the Limits of the ABA LEATPR Standards (66 Oklahoma Law Review 831 (2014)) on SSRN. Here is the abstract:
This article examines the American Bar Associations’ Standards for Criminal Justice proposed Law Enforcement Access to Third Party Records (LEATPR). The article was written to be part of an Oklahoma Law Review Symposium on the subject of the LEATPR Standards. The article explores how the ABA LEATPR Standards can survive the impact of big data policing. Big data policing, as described here, involves utilizing vast, networked databases to investigate and also predict criminal activity. Big data policing involves the use of not just third party, but "fourth party" commercial aggregators as well as de-identified data sets, that eventually can be re-identified. Without doubt, the LEATPR standards acknowledge these issues, and arguably cover them, but as set forth in this article, big data distorts the traditional Fourth Amendment analysis and, thus, the LEATPR standards may require a few modifications to be useful in the future.
Sunday, September 7, 2014
|1||377||Gifts, Hospitality & the Government Contractor
The George Washington University Law School
Date posted to database: 18 Jul 2014
|2||323||The Consequences of Error in Criminal Justice
Harvard Law School
Date posted to database: 9 Jul 2014
|3||302||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
|4||208||Why on Earth Do People Use Bitcoin?
Catherine Martin Christopher
Texas Tech University School of Law
Date posted to database: 25 Jul 2014 [10th last week]
|5||180||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 [4th last week]
|6||142||Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons
Joan Petersilia and Francis T. Cullen
Stanford University and University of Cincinnati
Date posted to database: 24 Jun 2014 [5th last week]
|7||137||White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence
Lucian E. Dervan
Southern Illinois University School of Law
Date posted to database: 28 Jun 2014 [8th last week]
Dawinder S. Sidhu
University of New Mexico - School of Law
Date posted to database: 12 Jul 2014 [7th last week]
|9||151||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 [6th last week]
|10||157||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 [new to top ten]
Saturday, September 6, 2014
My concern is not with those who produce or distribute child pornography for financial gain. Such individuals willfully do serious injury to the most vulnerable members of our society and deserve whatever punishment the law provides. Certainly no one can have much sympathy with those who prey upon young children in order to benefit themselves. Those individuals are ordinarily motivated by wholly selfish interests that they are perfectly capable of controlling. In contrast, those who only view child pornography, including those who exchange video computer files, are in all likelihood the victims of a form of mental illness that prevents them from controlling what they would otherwise understand to be not only unhealthy impulses but impulses that result in great harm to the most innocent members of our society.
Friday, September 5, 2014
The notion that criminal defendants are put to an all-or-nothing choice between the guilty plea and full-blown jury trial is both pervasive and wrong. Defendants can, and sometimes do, “unbundle” their jury-trial rights and trade them piecemeal, consenting to streamlined trial procedures to reduce their sentencing exposure. This Article explores what happens if, once and for all, we eschew the all-or-nothing framework and actually encourage these “unbundled bargains.” The parties could then tailor court procedures by agreement. Defendants, for example, could bargain for sentencing leniency by consenting to a six-person jury. Or the parties could agree to submit a case to private arbitration. Would such a world be better or worse than the one we have now? This Article takes a first cut at this question, making the uneasy case that the benefits of unbundled bargaining plausibly outweigh the costs.
Felonies are serious crimes, such as murder, rape, or arson, for which the typical consequence is capital punishment or imprisonment for over a year. Etymologically, the word felony originally connoted wickedness or evil. The category of felony derives from the English common law, in which a felony conviction traditionally resulted in forfeiture of land and movables, as well as the death penalty. The possible consequences of a felony conviction continue to be monumental today, including disenfranchisement, termination of parental rights, and ineligibility for jury service. Some jurisdictions have done away with the felony/misdemeanor distinction, opting instead for more neutral categories such as indictable and summary offenses.
Immigration judges routinely use police reports to make life-altering decisions in noncitizens’ lives. The word of the police officer prevents a detainee from being released on bond, leads to negative discretionary decisions in relief from removal, and can prove that a past crime fits within a ground of removability. Yet the police officers who write these reports rarely step foot in immigration court; immigration judges rely on the hearsay document to make such critical decisions. This practice is especially troubling when the same police reports cannot be used against the noncitizen in a criminal case without the officer testifying, due to both the Sixth Amendment’s Confrontation Clause and Federal Rules of Evidence, neither of which apply in immigration court. In these days of the increasing criminalization of immigration law and prioritization of deporting so-called “criminal aliens,” the police report problem is salient, and impacts thousands of noncitizens every year.
Mark A. Cohen (Vanderbilt University - Owen Graduate School of Management) has posted Willingness to Pay to Reduce White Collar and Corporate Crime on SSRN. Here is the abstract:
Consumer protection and financial regulatory agencies such as the Federal Trade Commission (FTC), the Securities and Exchange Commission (SEC), and the Consumer Financial Protection Bureau (CFPB) regulate various types of consumer, investor and financial frauds. Whether required or not, rulemaking proceedings oftentimes include some form of cost-benefit analysis. Thus, the benefits of proposed regulations – whether fully quantified or not – are an increasingly important component of rulemaking decisions. Anecdotal evidence suggests that the impact on victims in some cases include significant time and financial hardships and even pain, suffering and reduced quality of life. Further, the existence of these offenses causes non-victims to take costly precautionary behavior and might even inhibit legitimate business activities. Yet, little is known about the true costs of consumer and financial crimes other than the out-of-pocket monetary losses incurred by victims. To the extent society wishes to optimally deter such crimes, without better data on nonmonetary costs, any cost-benefit analyses of criminal justice or prevention programs designed to reduce these crimes will inevitably underestimate program benefits. This paper provides an initial framework and empirical estimates of the willingness-to-pay to reduce four types of white collar and corporate offenses – consumer fraud, financial fraud, corporate crime and corporate financial crime.
Thursday, September 4, 2014
From The Washington Post:
Prosecutors put on a compelling case, showing jurors several instances in which gifts and loans were provided in close proximity to the McDonnells’ efforts to assist Williams and his company. But defense attorneys noted, accurately, that even Williams himself did not describe an explicit, corrupt bargain he had with the governor. And they noted that Williams was testifying with generous immunity agreements, which they said motivated him to lie about his relationship with the McDonnells.