Monday, May 14, 2007
From internetjournalcriminology.com: Saint Louis University CrimProf M. Dyan McGuire recently published Self-Help as an Explanation for Violence Among Female Inmates: A Preliminary Assesment. By M. Dyan McGuire, Assistant Professor, Department of Sociology and Criminal Justice, Saint Louis University, USA.
Data were gathered from 52 female inmates residing in two women’s prisons located in Missouri, USA, through semi-structured interviews in order to document the existence of violence among female inmates and to evaluate causes of such violence. Donald Black’s self help theory was used as a paradigm for evaluating causes of violence among female inmates. The results of this study suggest that violence among female inmates is more common than typically assumed.
The results also suggest that Black’s theory may account for the large amount of violence associated with homosexual relationships but is unable to explain the existence of predatory violence aimed at forcibly acquiring property or accomplishing sexual assault. Prison policies including those prohibiting homosexual conduct and the apparent de facto policy of punishing everyone involved in a fight may be unwittingly contributing to the problem of violence among female inmates. Possible reforms that might be helpful are discussed and analyzed. [Mark Godsey]
Sunday, April 22, 2007
New Article Spotlight: Magistrates' Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century"
From SSRN.com: Widener University School of Law CrimProf Wes Oliver recently released "Magistrates' Examinations, Police Interrogations, and Miranda-Like Rules in the Nineteenth Century." Here is the abstract:
The New York legislature in the early-nineteenth century began to require interrogators to warn suspects of their right to silence and counsel. The Warren Court, in Miranda v. Arizona, did not invent the language of the warnings; rather, it resurrected the warnings that were no longer given in New York after the latter half of the nineteenth century.
The confessions rule, a judicially created rule of evidence much like the modern voluntariness rule, excluded many statements if any threat or inducement was made to the suspect. Courts in the early-nineteenth century, however, were willing to accept confessions notwithstanding an improper inducement if the suspect had been given the now-famous warnings.
The warnings remained in place until the newly elected New York judiciary began to retreat from the strict version of the confessions rule that prompted interrogators to give those warnings. The threat of losing statements to the confessions rule was greater than the threat that suspects would exercise the rights of which police advised them - at least until the judiciary substantially weakened the confessions rule.
Monday, April 16, 2007
The thesis of this article is that the unique nature of terrorist crime requires a tweaking of the entrapment rules. The entrapment defense is our legal system's primary mechanism for regulating government sting operations.
I argue that sting operations and surveillance are conceptually distinct (or rival) methods of law enforcement, which compete for resource allocation. If an enforcement agency favors one method, it shifts resources away from the other. To the extent that we dislike panoptic government surveillance, we can steer enforcement agencies away from it by encouraging targeted stings; and we can achieve this, in part, by adapting the rules for the entrapment defense as applied to terrorism prosecutions.
Due to the unique nature of terror-related crimes, combating them with surveillance necessitates non-specific, panoptic surveillance, something much more invasive than was necessary with traditional victimless crimes like trafficking in drugs or sex, etc. This changed circumstance results from the greater emphasis on prevention, as opposed to punishment, and the nature of the organizations involved.
In order to be effective against terrorism, surveillance would have to be so intrusive, expansive, and expensive that it warrants a consideration of alternative methods in this context. Adapting the legal rules surrounding entrapment would facilitate a beneficial and efficient shift in methodologies. [Mark Godsey]
Thursday, April 12, 2007
From nybooks.com: New York Book Review Editor Jason DeParle recently published an article titled "The American Nightmare", in which he reviewed the following three books that focus on U.S. Prisons' Problems.
- Punishment and Inequality in America, by Bruce Western at the Russell Sage Foundation
- Confronting Confinement: A Report of the Commission on Safety and Abuse in America's Prisons, by John J. Gibbons and Nicholas de B. Katzenbach, co-chairs of Vera Institute of Justice.
- Locked Out: Felon Disenfranchisement and American Democracy by Jeff Manza and Christopher Uggen. Oxford University Press
Read the Review. . . [Mark Godsey]
From SSRN.com: Ohio State University Moritz College of Law CrimProf Joshua Dressler recently released "Reforming Complicity Law: Trivial Assistance as a Lesser Offense." Here is the abstract:
American accomplice law is a disgrace. It treats the accomplice in terms of guilt and, potentially, punishment, as if she were the perpetrator, even when her culpability is often less than that of the perpetrator and/or her involvement in the crime is tangential.
The subject of accomplice liability has received little scholarly attention in the United States except, coincidentally, for a flurry of intellectual activity in the mid-1980s. One of these articles, my own, proposed reform of complicity law in the form of what may be characterized as the "causation approach." The thesis of that article was that the criminal law fails to adequately distinguish between accomplices who are critical parties in a crime and those whose involvement is trivial. To alleviate this problem, the article recommended a statutory distinction between "causal" and "non-causal" accomplices: causal accomplices (persons but for whose assistance the offense would not have occurred) could continue to be convicted of the offense committed by the principal; non-causal accomplices would be convicted of a lesser offense and punished accordingly.
In this article I consider Professor Kadish's approach to complicity, which sees no place for causation in the analysis, and other criticisms directed at the causation approach. I argue here that, notwithstanding the criticisms, the causation approach to accomplice liability is conceptually justifiable and would still make for good legislative reform. However, the causation approach, although preferable to current law, does not go far enough to distinguish between parties and does not express community sentiment as well as it could. Therefore, I now suggest variations on the causation approach, which would also result in a more just system than the present one. [Mark Godsey]
Tuesday, March 27, 2007
CrimProf Orin Kerr has posted Four Models of Fourth Amendment Protection on SSRN. Here's the abstract:
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has repeatedly refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court's refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer. It shows that there are four different tests for what makes an expectation of privacy reasonable, not one, and it argues that the Supreme Court has declined to give a single answer because the reasonable expectation of privacy framework is a bottom-up rather than top-down regulatory system. The exclusionary rule requires hundreds and even thousands of narrow rules explaining when an expectation of privacy is reasonable, and the Supreme Court hears too few cases to generate them. The Supreme Court must delegate the process of rule-creation to decentralized lower courts, and the lower courts must announce rules case-by-case. No one top-down approach can regulate this decentralized, bottom-up system, which means that the Supreme Court cannot provide a single answer to what makes an expectation of privacy reasonable. On the other hand, the existing four models reflect the needs of the bottom-up system far better than any single test. The four models provide the tools lower courts need to create localized Fourth Amendment rules that accurately identify reasonable police practices.
Obtain paper here.
Thursday, March 22, 2007
Lisa Kern Griffin of UCLA has posted Compelled Cooperation and the New Corporate Criminal Procedure on SSRN. Here's the abstract:
In response to the broad scope of the Enron-era frauds, the federal government has adopted novel strategies to manage the complexity of corporate criminal investigations. Chief among these innovations are the cooperation requirements set forth in the Department of Justice's (DOJ) Thompson Memorandum (along with its successor, the McNulty Memorandum) and the increased use of deferred prosecution agreements (DPAs) between prosecutors and corporations. Under these current practices, the federal government has declined or deferred charges against firms themselves and has shifted liability to the employee level, indicting and convicting over one thousand individuals since the July 2002 creation of the Corporate Fraud Task Force. This Article explores a gap in the constitutional protections afforded those individual defendants. Prosecutors' dependence on compelled cooperation is expedient but has unexamined consequences: a bypass around corporate employees' Fifth Amendment privilege against self-incrimination and the potential to degrade self-regulation. These costs arise, in part, from the merger of public governmental investigations and private corporate compliance efforts.
Part I details the policies and practices of the "war on corporate crime," with a particular focus on the factors set forth in the Thompson and McNulty Memoranda and the terms of current DPAs. Part II discusses how the convergence of cooperation doctrine with the shift to individual targets results in significant unfairness for the individual employees compelled to incriminate themselves in the context of internal investigations directed by the government. That normative burden may not be offset by enforcement benefits. Although effective corporate crime prevention often requires the cooperation of insiders, the means used to obtain it may actually increase the difficulty of detecting fraud by discouraging oversight and minimizing recordkeeping. Part III argues that the government's pursuit of DPAs and application of a civil regulatory model to criminal enforcement creates distortions because individual liberty rather than a financial sanction is at stake, prosecutors do not engage in negotiated governance, and judicial oversight at the investigative stage is minimal.
Part IV addresses the constitutional implications of outsourcing corporate criminal investigations. Employees interviewed by internal investigators pursuant to the terms of a pending deferred prosecution agreement should enjoy immunity analogous to the Garrity shield that protects public employees. Several strands of Fifth Amendment theory are consistent with the argument that economic pressure such as the threat of job loss can rise to the level of constitutionally significant coercion. That pressure, although delegated to corporations to apply, may be attributed to the government as state action when a DPA is pending. As a practical matter, extending immunity may also enhance compliance investigations by privileging truthful information and the interests of good-faith employees.
Download the article here. [Mark Godsey]
Wednesday, March 7, 2007
From NYTimes.com: Similar to aspects of Alcoholics Anonymous, relapse prevention has sex offenders own up to wrongdoing and resign themselves to a lifelong day-to-day struggle with temptation. But one of the few authoritative studies of the method, conducted in California from 1985 to 2001, found that those who entered relapse prevention treatment were slightly more likely to offend again than those who got no therapy at all.
Clinicians who work with sex offenders cling to relapse prevention nonetheless, and its durability speaks volumes about the troubled, politically fraught science of treating sex offenders. Not only is relapse prevention of questionable value, but so are the tests to gauge whether sex offenders in treatment still get inappropriately aroused, the drugs used for so-called chemical castration and the methods of predicting risk of reoffending.
Treatment methods have become particularly topical as thousands of sex offenders are confined or restricted beyond their prison terms under civil commitment laws on the books in 19 states. The laws have been found constitutional in part because they aim to provide treatment if possible; New York legislators announced last week that the state would soon allow civil confinement.
On average, the civil commitment programs cost four times more than keeping sex offenders in prison. But too little research has been conducted into how to treat sex offenders, experts say, putting psychotherapists and others working in civil commitment centers at a distinct disadvantage.
“It has never been regarded as a legitimate and recognized topic for research by psychologists,” said Robert A. Prentky, director of research at the Justice Research Institute in Boston. “There is a very strong undercurrent of disrespect for this area of research and perhaps even skepticism, frankly.” Rest of Article. . . [Mark Godsey]
Saturday, February 17, 2007
From DPIC.org: The Fairer Death: Executing Women in Ohio is a new book by Ohio Northern University CrimProf Victor Streib. The book explores Ohio’s use of the death penalty for women and examines the implications for women on death row throughout the country. Streib carefully describes the cases of all four women executed by Ohio in its history and those of the 11 women sentenced to death in the state during the modern death penalty era (1973-present).
Professor Streib’s analysis of two centuries of Ohio’s use of the death penalty reveals no clear intent to exclude women, but, nonetheless, shows the strong possibility of gender bias. The book provides insight into the national experience of applying the death penalty, invoking questions about the rationale for the death penalty and the many disparities in its administration. National reviewers have characterized the book as a "magnificent work" with "richly detailed" and "vivid portraits" of Ohio's condemned women. [Mark Godsey]
Wednesday, February 14, 2007
New Article Spotlight: THe Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty
From SSRN.com: University of Arizona CrimProf Jack Chin, fresh of his Daily Show debut, is back to work with more of his cutting edge scholarship with his new piece "The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty" Here is the abstract:
When analyzing the consequences of and remedies for discrimination against African Americans, courts and scholars characterize African Americans as a minority. This Article shows that the traditional approach is wrong: When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule. African Americans and their white allies were stripped of their electoral majority through fraud, violence and illegal disenfranchisement.
This Article argues that the most important harm African Americans suffered was something that the law has until now overlooked: Loss of the right to control the governments of several Southern states. This injury means that current African Americans disadvantage likely rests on a constitutional violation; Jim Crow could not have happened had democracy functioned as provided in the Constitution. Consideration of African American majority status also sheds new light on the counter-majoritarian difficulty. In reviewing measures oppressing African Americans, the Court did not have to balance majority rule against minority rights; instead, majority rule and constitutional rights both militated toward invalidation of laws passed by a minority to oppress the majority.
New Article Spotlight: When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong
From SSRN.com: Chapman University School of Law CrimProf Jeremy M. Miller recently published "When a Case Name (Miranda) Becomes Not Only a Household Word But a Chic Female Name, Something Went Wrong." Here is the abstract:
Miranda was judicial fiat, at its worst, it was ultra vires, it was a usurpation of the legislative function, it was illogical, it was - being complimentary - the second try at handling a social problem, it was verbose, it confused the Sixth Amendment Right to Counsel with the Fifth Amendment Self-Incrimination Clause, it was filled with dictum that was inexorably eroded from its birth to the present, it changed the long-held belief that the self-incrimination right attached at trial or trial-like proceedings, not in the street; but it was idealistic, it attempted to maximize the truth-finding function of trial, it maximized individual dignity and liberty. Additionally, it relied on the intrinsic equitable powers of the High Court to fashion appropriate remedies.
The Framers were not plagued by crime, nor did they have a massive police force. They were aware that uncorroborated confessions were unreliable; and thus the corpus delicti rule was and is part of our common and extant law. The rule precludes convicting an individual based solely on his or her own uncorroborated confession.
Then the High Court began an embarrassing set of stumbles. Correctly, it held the right to counsel of the Sixth Amendment, in Massiah, applied after formal charging. But it stumbled badly in Escobedo, in holding that the “target” of a criminal investigation must be told of his or her right to counsel - whether or not that person is arrested or formally charged.That case has been over-ruled.
The rule proved as impracticable as it was ridiculous, and has been riddled by exceptions. The Miranda opinion has been carved up, almost beyond recognition.
The simple rule should have been to mandate the arrestee be told of the right to silence, and that at jail or on the street, the arrestee be offered counsel—thus moving the Sixth Amendment Counsel right, also, to the pre-trial arena of jail or arrest.
A brief statement as to the historical background of this clause will be helpful for interpretation. Even in colonial times an inquisitorial, torture-laden, trial by ordeal method was not uncommon. Likewise there was hostility to the "ex officio" oath. The ex officio oath, was a badge of infamy on an often exemplary common law. It required the defendant place his or her hand on a Bible and promise to tell the truth to questions then asked him or her. After this point, incriminating answers were sought, and were punishable. Further, there was no right to refuse to answer. Perjury, incidentally, was a capital crime. Sir Edward Coke, an Elizabethan English lawyer and judge, placed his career on the line to have the ex officio oath ousted from the common law. In fact, King James did just that - he was removed from office for this stand. The Lilburne trial and tragedy, also in the 1600s in England, more than anything, cemented these procedural rights into the common law. Here, the rebel writer Lilburne was tortured and tried. He dramatically emphasized this lacking in the then English system, and by his eloquence and popular support, brought the safeguards we now have into their system, via the Self-Incrimination Clause.
Another source of the privilege was the 1689 Scottish Claim of Rights. It should be noted, however, that the right was not in the Magna Carta. James Madison, the principal author of the Amendment, purposefully used a broad drafting - so as to make the right, itself, broad.
Wechsler's seminal article, Toward Neutral Principles of Constitutional Adjudication and the critical stage analysis of the Wade/Gilbert line of cases (extending the right to counsel to pre-trial line-ups, transcripts and the like) allowed the High Court to rule that police interrogation after arrrest is a critical stage - but under the SIXTH amendment (where it belongs). [Mark Godsey]
Saturday, February 10, 2007
New Article Spotlight: Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States
From SSRN.com: SSRN recently published CUNY School of Law CrimProf Jeffrey L. Kirchmeier's article "Casting a Wider Net: Another Decade of Legislative Expansion of the Death Penalty in the United States." Here is the abstract:
During the last decade, judges, politicians, scholars, and the general public have become troubled about problems with the death penalty in the United States. Also during this time, major studies of the death penalty have recommended a reduction in the number of statutory factors that make one eligible for the death penalty. Despite these concerns, legislatures continue to expand their capital punishment statutes to make more defendants eligible for the death penalty.
This Article examines how, during a time of growing concern about innocence and arbitrariness in the death penalty system, a number of legislatures have continued to expand their death penalty statutes, often in inadequate attempts to address other legitimate societal concerns. The ultimate impact of such an ever-expanding death penalty is that almost all murders become eligible for the death penalty, a result that is inconsistent with the Eighth Amendment.
The Article begins in Part One by giving a brief overview of the role of statutory eligibility factors in capital cases. This Part also discusses several recent studies that recommend that legislatures should be eliminating aggravating factors, not adding them. In Part Two, the Article lists and categorizes the large number of new eligibility factors that legislatures have added since 1995. In Part Three, the Article discusses some of the reasons for the new factors, and it considers the implications of the expanding death penalty statutes.
The Article discusses the inconsistencies between the recommendations to eliminate aggravating factors and the actual practice of adding aggravating factors. The Article concludes that although legislatures have slowed down their expansions of the death penalty in the last few years, many states have broader death penalty statutes than they had a decade ago. These ongoing expansions raise constitutional issues and have been an ineffective response to legitimate political concerns. Another article by the author compiles older capital eligibility and aggravating factors. [Mark Godsey]
Saturday, February 3, 2007
The University of Illinois Law Review recently published Kenneth C. Halcom's article titled "Illegal Predicate Searches and the Good Faith Exception." Here is the abstract:
In United States v. Leon, the U.S. Supreme Court created the good faith exception, which provides that the exclusionary rule does not bar evidence seized in reasonable reliance on a warrant issued by a detached and neutral magistrate in criminal trials. This note examines whether the good faith exception applies to evidence seized pursuant to a warrant that is itself the fruit of an illegal search.
After examining the ambiguities between the narrow holding and broad rationale of Leon and tracing the origins of the split of authority regarding illegal predicate searches, the author analyzes three different ways that courts have resolved the issue: extending the good faith exception, refusing to extend the exception, and making application of the exception contingent on the disclosure of facts concerning the predicate search to the magistrate.
The author explains why all three of these approaches are unsatisfactory before proposing a novel, three-step analysis. The author's proposed approach attempts to remain consistent with existing doctrine and to restore both the defendant and the government to the status quo ante.
Sunday, January 21, 2007
From jpost.com: Haifa University CrimProf Emmanuel Gross recently released his new book The Struggle of Democracy Against Terrorism, which was critiqued by Dan Izenberg in a current article of the online version of the Jerusalem Post. Here is what the critic had to say about the work:
"Emmanuel Gross's book is not an easy read and often raises more questions than it answers. It comes at a particularly timely moment in Israel's ongoing battle against terrorism, especially given its efforts over the past few months to cope with the threat from the Gaza Strip and Lebanon.
We will return to the question of how a democratic state, committed to human rights and the rule of law at home and in its international relations, is supposed to confront terrorists who deliberately embed themselves among the civilian population.
But this issue is only one of the many that Gross addresses. Others include the interrogation of terrorist suspects, the use of administrative measures such as administrative arrests, house demolitions, imposition of curfews, closures and roadblocks, the incarceration of "illegal fighters," intelligence-gathering techniques that invade privacy, the use of civilians as human shields, targeted assassinations and how to cope with the terrorists' use of their own people as human shields.
Gross calls for moderation and balance between the state's obligation to protect the lives of its citizens and the social and political structure that enables them to enjoy their liberties, and its obligation to safeguard those very liberties at the same time. In several cases, he compares the way Israel deals with some of the problems with the way it is done in the US and Britain."
Rest of Article. . . [Mark Godsey]
Monday, January 15, 2007
New Article Spotlight: Pay Now, Execute Later: Why Counties Should Be Required to Post a Bond To Seek the Death Penalty
South Texas College of Law CrimProf Adam M. Gershowitz recently published Pay Now, Execute Later: Why Counties Should Be Required To Post a Bond To Seek the Death Penalty. Here is the abstract:
When death sentences are reversed – and many of them are reversed for prosecutorial misconduct, ineffective assistance of counsel, and other reasons – local prosecutors are not forced to fully internalize the costs of their failed prosecutions. While counties make the decision to seek the death penalty, they do not have to fund the very expensive appellate and post-conviction stages of capital cases that are typically handled by state attorneys general's offices. This paper proposes that state legislatures could improve the functioning of the death-penalty system, while simultaneously acting out of financial self-interest, by requiring counties to post (and possibly forfeit) a bond to seek the death penalty. Faced with the prospect of losing a bond if the capital prosecution fails at trial or on appeal, local prosecutors would have an incentive to choose their capital cases more carefully and to avoid any type of misconduct that might lead to reversal on appeal. The prospect of forfeiting a bond also would create secondary benefits, such as encouraging prosecutors to protest the appointment of unqualified defense lawyers in order to stave off ineffective assistance of counsel claims. As a financial matter, the bond proposal should be appealing to state legislators because it would shift the exorbitant costs of failed capital prosecutions away from state budgets and into the hands of the county actors who instigated the failed prosecutions.
Monday, January 8, 2007
New Article Spotlight: The Scarlet Gene: Behavioral Genetics, Criminal Law, and Racial and Ethnic Stigma
University of Maryland School of Law Dean Karen H. Rothenberg and DC Public Defender Alice Wang recently published "The Scarlet Gene: Behaviorial Genetics, Criminal Law, and Racial and Ethnic Stigma." Here is the Abstract:
Imagine that a scientist from the state university asks you and your family to participate in a study on a particular gene variant associated with alcoholism. The project focuses on your ethnic group, the Tracy Islanders, who have a higher incidence of alcoholism, as well as a higher incidence of the gene variant, than the general population. You will not be informed whether you have the gene variant, but your participation in the study might help scientists develop drugs to help individuals control their addiction to alcohol. You have a family history of alcoholism, and you are concerned that your twenty-one-year-old son may be susceptible to the condition as well. Do you agree to participate in the study?
Now imagine that, with your participation, the study concludes that Tracy Islanders with the particular gene variant have a ten percent chance of becoming alcoholics, whereas Tracy Islanders without the gene variant have only a five percent chance. Although the scientists are careful to note that the gene variant exists in the general population and is not the cause of alcoholism, the sound-bite reported by the media is that Tracy Islanders are hardwired to become alcoholics.
That same day, your son gets drunk at a bar and pushes an off-duty police officer through a window, killing him. Your son is charged with murder, and his lawyer wants to use his genetic predisposition toward alcoholism as a defense. Some members of your family and community are concerned that this approach will only further stigmatize Tracy Islanders as alcoholics. How do you advise your son and his lawyer?
These scenarios were presented to a panel of scientists, legal experts, journalists, and community leaders in a recent PBS television program entitled [*pg 344] Genes on Trial: Genetics, Behavior, and the Law. This article uses the television program as a framework for exploring the implications of behavioral genetics research for the individual, family, community, and society. In particular, it focuses on the unique potential for behavioral genetics research, when placed in the context of criminal law, to stigmatize racial and ethnic minority groups through the blame-shifting mechanisms of genetic reductionism and genetic determinism. Like the scarlet A in Nathaniel Hawthorne's famous novel, DNA associated with criminal or antisocial behavior might become a scarlet gene that marks the individual, his family, and his racial or ethnic community as flawed, compromised, and somehow less than fully human.
This article proceeds in six parts. The remainder of Part I summarizes the Genes on Trial program and introduces the issues raised by it. Part II explains why behavioral genetics research tends to focus on discrete and insular populations that overlap with socially constructed racial or ethnic groups. Part III locates behavioral genetics research on a spectrum spanning from single-gene disorders to complex behavioral traits, positing that the behavioral end of the spectrum carries the most potential for stigma. Part IV explores how the blame-shifting mechanisms of genetic reductionism and genetic determinism affect the individual, family, community, and society when genetics research focuses on criminal or antisocial behavior. Part V analyzes how racial and ethnic stigma arise from behavioral genetics research and perpetuate inequality. Part VI concludes by considering the ethical dilemmas that geneticists face when choosing who and what to study. [Mark Godsey]
Friday, December 15, 2006
Yale Kamisar has posted On the Fortieth Anniversary of Miranda: Why We Needed it, How We Got it - and What Happened to It on SSRN. Here's the abstract:
The pre-Miranda test for the admissibility of confessions was known as the due process voluntariness test. Given the courts' inability to articulate clear and predictable definitions of voluntary or involuntary confessions and the fact that the pre-Miranda test was too amorphous, too subjective and too time-consuming to administer, it seemed inevitable that the Supreme Court would seek a better way to deal with the confession problem. That way turned out to be Miranda.
At first, Miranda was widely and harshly criticized. It is now widely agreed, however, that Miranda was a compromise between those who liked the voluntariness test and those who wanted to abolish police interrogation as we have long known it.
Miranda does not condition police questioning on the presence of counsel (as many feared the Court would do). Rather, it conditions it on the giving of certain warnings of rights and the waiver of those rights. Miranda allows the police to obtain these waivers without the advice or presence of defense counsel. (Numerous studies establish that most suspects waive their rights.)
When it became clear that Miranda was having little impact on the confession rate, most commentators stopped criticizing the famous case for going too far and many began criticizing it for not going far enough. This article explores why Miranda has had only a negligible impact on law enforcement. It also maintains that the right question is not What good does Miranda do?, but at this point in time, how much harm would it cause to abolish Miranda?
To obtain the article, click here. [Mark Godsey]
Tuesday, December 12, 2006
Loyola-LA CrimProf Alexandra Natapoff has posted Underenforcement on SSRN. The abstract states: In numerous U.S. communities and institutions, the government openly and systematically fails to enforce the criminal law. Law enforcement officials know they will not enforce certain laws; victims expect to be unprotected; violators realize they will go unpunished. In these “underenforcement zones,” such official practices can generate violence, social decay, and often represent distinct forms of discrimination and democratic failure. And yet, underenforcement remains underappreciated. Unlike “overenforcement,” which has become an infamous symbol of racial bias and undemocratic policing, the role of underenforcement in shaping the criminal justice landscape has largely escaped scrutiny. This Article conceptualizes underenforcement as a powerful socio-legal phenomenon in its own right. It documents widespread underenforcement practices and describes the kinds of harms it can cause to vulnerable groups and communities. Not all underenforcement is pernicious: it can, for example, reflect appropriate governmental restraint, or the necessities of overbroad codes. This Article thus proposes a descriptive framework for distinguishing between the appropriate and the problematic. It also relocates underenforcement within three ongoing scholarly debates over: law enforcement discretion, democratic policing, and the state's constitutional obligation to provide minimal law enforcement protection. Underenforcement not only poses significant theoretical challenges in these arenas, but is a major contributor to some of the most dysfunctional aspects of the criminal system.
Obtain article here. [Mark Godsey]
Wednesday, November 15, 2006
Criminal defense representation faces two problems that may share one structural solution. First, there is no effective remedy for defendants whose trial attorneys are incompetent. Defendants typically must complete their appeals before being permitted to challenge their trial attorneys' performance on collateral review. With appeals often taking four or more years, most defendants have served their sentences and have little incentive to pursue collateral challenges.
There is no realistic opportunity of success, because defendants have no right to counsel on collateral review, and the delay makes it difficult to gather evidence of ineffectiveness. Thus, forcing defendants to wait until collateral review to challenge trial attorney performance creates a right to effective trial counsel that has no corresponding remedy.
A second structural problem arises at the appellate level. Appellate attorneys file briefs asking to withdraw from representation in over thirty percent of cases in some jurisdictions, because they cannot find issues worth raising.
Most jurisdictions confine appellate review to matters that appear on the face of the trial record. As a result, when trial attorneys fail to preserve issues, appellate attorneys do not have grounds for appeal. Because all defendants are constitutionally entitled to appellate counsel, defenders are often forced to file frivolous briefs or seek withdrawal. The result is an enormous waste of the funds that states invest in appellate representation.
In this Article, I analyze both problems and propose a structural solution – namely, a mechanism through which appellate attorneys may open the trial record in limited circumstances to raise ineffective assistance of trial counsel claims. In addition to ameliorating the trial problem by giving defendants a realistic opportunity to challenge trial attorney performance, such a restructuring would reduce the waste of public resources by assigning a more constructive role to appellate defenders now consigned to raising meritless issues. [Mark Godsey]
Sunday, November 12, 2006
New Article Spotlight: Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms
From SSRN.com: University of Pennsylvania Law School CrimProf Paul H. Robinson and others recently released "Codifying Shari'a: International Norms, Legality, and the Freedom to Invent New Forms." Here is the abstract:
The United Nations Development Program and the Republic of the Maldives, a small Muslim country with a constitutional democracy, commissioned this project to craft the country's first system of codified penal law and sentencing guidelines. This Article describes the special challenges and opportunities encountered while drafting a penal code based on Shari'a (Islamic law).
On the one hand, such comprehensive codification is more important and more likely to bring dramatic improvements in the quality of justice than in many other societies, due in large part to the problems of assuring fair notice and fair adjudication in the uncodified Shari'a-based system in present use.
On the other hand, the challenges of such a project are greater, due in part to special needs for clarity and simplicity that arise from the relative lack of codification experience and training. But there turned out to be perhaps unexpected advantages to undertaking a comprehensive codification project in the Maldives. While the lack of a codification tradition created difficulties, it also gave drafters the freedom to invent new codification forms that would be difficult to adopt in a society with an entrenched codification history.
While it was a concern that any Shari'a-based code could conflict with international norms, in practice it became apparent that the conflict was not as great as many would expect. Opportunities for accommodation were available, sometimes through interesting approaches by which the spirit of the Shari'a rule could be maintained without violating international norms. In the end, this Shari'a-based penal code drafting project yielded a Draft Code that can bring greater justice to Maldivians and also provide a useful starting point for modern penal code drafting in other Muslim countries.
However, the code drafting project also may have much to offer penal code reform in non-Muslim countries, for the structure and drafting forms invented here often solve problems that plague most penal codes, even codes of modern format such as those based upon the American Law Institute's Model Penal Code, which served as the model for most American penal codes. The challenges of accessible language and format, troublesome ambiguous acquittals, overlapping offenses, combination offenses, and penal code-integrated sentencing guidelines have all been addressed. [Mark Godsey]