Saturday, November 13, 2010
Larsen on Bargaining Inside the Black Box
Alli Orr Larsen (College of William and Mary) has posted Bargaining Inside the Black Box (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise – that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of the jury process. Conventional wisdom clings to the notion that criminal verdicts reflect a jury’s unanimous factual assessment. That notion is thwarted when a juror votes for a verdict as a compromise, as a second choice to the one he thinks best reflects reality. To date, therefore, compromise verdicts are typically dismissed as examples of maverick jurors dishonoring their oath to apply the law and seek the truth.
November 13, 2010 | Permalink | Comments (0)
Friday, November 12, 2010
“Happy Birthday, Dear Murder Victim”
Eugene Volokh at The Volokh Conspiracy notes this recent Georgia Supreme Court case addressing the propriety of a prosecutor's producing a birthday cake and singing "Happy Birthday" to the child victim in a murder case. All the justices agreed that the performance was improper, but the majority concluded that defense counsel's failure to object was a "strategic decision" that precluded reversal.
November 12, 2010 | Permalink | Comments (0)
Veterans’ Courts: The Return of the Abuse Excuse? (Dripps)
Writing in the Veteran’s Day edition of the New York Times, Ronald D. Castille, Chief Justice of the Pennsylvania Supreme Court, and a Viet Nam veteran himself, celebrates the growing movement to provide specialized courts for offenders with a record of military service.
Justice Castile writes that “too many proud veterans resist” assistance from the VA and allied private organizations, and “as a result, find themselves on the wrong side of the law, for reasons related more to their experience in service to country than to criminal intent.” As Justice Castille notes, the first such court in recent memory was established through the efforts of Judge Robert T. Russell, Jr. in Buffalo, New York. According to Justice Castille, Judge Russell’s program has been completed by 90% of those who enter it, without any case of recidivism. Similar courts are being experimented with throughout the country, including in Orange County, just up the road here in Southern California.
In general I applaud anyone who dares to attempt less punitive experiments in American criminal justice. But I find this particular experiment troubling, because:
(1) It sounds to me very like the “abuse excuse” long rejected by the law, and denounced with particular certitude by conservatives. Are veterans responsible for criminal conduct or are they not? If the answer is “sometimes” or “kind of sort of”, what then of the cases like State v. Norman, where if defendant’s evidence were believed she had a much rougher time than many whose, undeniably admirable, military service included noncombat roles even in active theaters of war?
November 12, 2010 | Permalink | Comments (0)
Wright on Crime Predictions
Ronald F. Wright (Wake Forest University - School of Law) has posted Fragmented Users of Crime Predictions (Arizona Law Review, Vol. 52, No. 1, 2009) on SSRN. Here is the abstract:
In this commentary on an article by Henderson, Wolfers, and Zitzewitz, proposing the use of open markets for the prediction of crime, I explore a few implications stemming from one fact. The prediction market concept — an effort to coordinate decentralized sources of information — would operate in an exceptionally decentralized world of users, a world where the institutional users of crime predictions are fragmented among many different locations and levels of government.
November 12, 2010 | Permalink | Comments (0)
Thursday, November 11, 2010
"Internet Stings & Modern Victims"
Crime and Consequences has this post on a current impossibility case from the Washington Supreme Court, upholding the conviction.
November 11, 2010 | Permalink | Comments (0)
"A Quantiative Look at Reasonable Doubt"
Eugene Volokh at The Volokh Conspiracy notes this post by Steve Landsburg at The Big Questions. After setting forth a hypo that might be fruitfully used in class to show how bad most folks are at estimating likelihood, Landsburg offers some thoughts on the probabality he might offer as proof beyond a reasonable doubt:
70-74% certainty sounds like roughly the right standard to me in a world where the police can be counted on not to take advantage of that standard by falsifying evidence against people they don’t like. Given that prospect, though, I think I prefer something a little tougher — though not as tough as 98%.
November 11, 2010 | Permalink | Comments (0)
Benforado on Weapons and the Increasingly Dangerous Right to Self Defense
Adam Benforado (Drexel University - Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:
African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us - our friends, family, and neighbors - who show no animus toward African Americans and who profess genuine commitments to equality.
November 11, 2010 | Permalink | Comments (4)
Wednesday, November 10, 2010
Goodman, Caldwell & Chase on Transparency in Death Penalty Decisions
Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University - School of Law , Pepperdine University - School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:
In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.
After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court's decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors' report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.
November 10, 2010 | Permalink | Comments (0)
Slobogin on Citizens United and Corporate and Human Crime
Christopher Slobogin (Vanderbilt Law School) has posted Citizens United and Corporate and Human Crime (The Green Bag, Forthcoming) on SSRN. Here is the abstract:
Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster the case for expanding corporate criminal procedure rights. Finally, if the latter three developments come to pass, Citizens United might also have a significant impact on how the criminal justice system treats street criminals. After all, the courts can hardly withhold from human offenders and suspects the dispositional breaks and procedural rights they have granted non-human corporations. Right?
November 10, 2010 | Permalink | Comments (0)
Tuesday, November 9, 2010
Transcript of oral argument in federal case challenging state conviction based on facts not raised in state court
The transcript in Cullen v. Pinholster is here.
November 9, 2010 | Permalink | Comments (1)
Waldron on Vagueness and the Guidance of Action
Jeremy Waldron (New York University - School of Law) has posted Vagueness and the Guidance of Action on SSRN. Here is the abstract:
This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz's conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.
November 9, 2010 | Permalink | Comments (0)
Monday, November 8, 2010
"The New Miranda Warning"
Michael D. Cicchini, a criminal defense lawyer and author, has this post at the Marquette University Law School faculty blog, suggesting how the warning might be modified to capture Miranda's limiting case law.
November 8, 2010 | Permalink | Comments (0)
Court rejects habeas based on violation of state law
The per curiam opinion in Wilson v. Corcoran is here.
November 8, 2010 | Permalink | Comments (0)
Sunday, November 7, 2010
Top-Ten Recent SSRN Downloads
are here. The usual disclaimers apply.
Rank | Downloads | Paper Title |
---|---|---|
1 | 248 | Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010 [new to top ten] |
2 | 207 | The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes Maximo Langer, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: August 19, 2010 [1st last week] |
3 | 206 | An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [2nd last week] |
4 | 191 | Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010 [3rd last week] |
5 | 184 | Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010 |
6 | 181 | The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010 [4th last week] |
7 | 162 | Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [6th last week] |
8 | 152 | A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office Mike Koehler, Butler University College of Business, Date posted to database: October 5, 2010 [new to top ten] |
9 | 150 | Rethinking Proportionality Under the Cruel and Unusual Punishments Clause John F. Stinneford, University of Florida Levin College of Law, Date posted to database: August 20, 2010 [8th last week] |
10 | 140 | The Concept of Evil in American and German Criminal Punishment Joshua Kleinfeld, Goethe University Frankfurt - Cluster of Excellence Normative Orders, Date posted to database: August 30, 2010 [9th last week] |
November 7, 2010 | Permalink | Comments (0)
Saturday, November 6, 2010
Next week's criminal law/procedure argument
Issue summary is from ScotusBlog, which also links to briefs and opinions below:
Tuesday, Nov. 9
- Cullen v. Pinholster: Whether a federal court can overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court.
November 6, 2010 | Permalink | Comments (0)
Friday, November 5, 2010
Court overrides governor's veto of parole for murder convict who still protests innocence
From the San Francisco Chronicle:
The state parole board has approved Michael McDonald's release three times and Gov. Arnold Schwarzenegger has vetoed it each time, saying the convicted murderer showed a "lack of insight" into his crime because he still insisted he was innocent.
But a state appeals court says that neither the governor nor the board can insist on a confession before paroling a prisoner who, based on the evidence, is not dangerous.
State laws "prohibit requiring an admission of guilt as a condition for release on parole," the Second District Court of Appeal in Los Angeles said Tuesday. The court said McDonald's background, his behavior during 17 years in prison and psychological evaluations all indicate that he poses little risk of future violence.
November 5, 2010 | Permalink | Comments (0)
California recidivism news
Crime and Consequences links to and summarizes this report from the California Department of Corrections and Rehabilitation and the article reporting on it in the San Francisco Chronicle, which begins as follows:
More than two-thirds of paroled inmates in California are back in prison within three years, with the highest rates among younger inmates and those with shorter sentences, according to a new state report.
November 5, 2010 | Permalink | Comments (0)
Thursday, November 4, 2010
Clancy on the Framers' Intent and the Fourth Amendment
Thomas Clancy (University of Mississippi College of Law) has posted The Framers’ Intent: John Adams, His Era, and the Fourth Amendment (Indiana Law Journal, Vol. 86, 2010) on SSRN. Here is the abstract:
For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.
November 4, 2010 | Permalink | Comments (0)
"Call for a Response (CFR) in My Non-Unanimous Criminal Verdict Case"
From Eugene Volokh at The Volokh Conspiracy:
I’m glad to say that yesterday the Supreme Court asked the State of Oregon to file a response in Herrera v. Oregon, the case in which I filed a certiorari petition challenging Oregon’s practice of allowing criminal convictions by nonunanimous juries. (Louisiana is the only other state that allows such convictions in cases to which the Jury Trial Clause applies.)
Such a CFR is necessary but not sufficient for the Court to agree to hear the case. The CFR is a positive signal, since it shows that at least one Justice thought the case had enough possible merit to justify asking that the state respond; most unresponded-to petitions are denied without any response being requested. But of course the Court might well still deny even though it has asked for the response.
November 4, 2010 | Permalink | Comments (0)
Arya on Using Graham v. Florida to Challenge Juvenile Transfers
Neelum Arya, the Research and Policy Director at the Campaign for Youth Justice, has posted Using Graham v. Florida to Challenge Juvenile Transfer Laws (forthcoming in the Louisiana Law Review) on the organization's website. Here is an abstract:
The article suggests that the recent Supreme Court opinion in Graham v. Florida abolishing life without parole sentences for juveniles (JLWOP) convicted of nonhomicide crimes, may be used to challenge juvenile transfer laws. Part I provides a description and analysis of the Graham opinion and reviews the Court's Eighth Amendment jurisprudence through to their recent ruling declaring JLWOP sentences for nonhomicide crimes unconstitutional. In Part II, Arya argues that youth have a right to rehabilitation found under the state's police power. In addition, Graham discusses three types of difficulties that adult decisionmakers in the criminal justice system have with respect to youth that may be useful to challenge transfer laws. First, judges and experts have problems evaluating the culpability and maturity of youth. Second, adult perceptions of youth are biased by the severity and manner in which the crimes were conducted. Third, counsel have difficulty representing youth in the adult system. Arya suggests these factors apply to all youth prosecuted in the adult criminal system, regardless of offense charged or sentence imposed. Finally, in Part III, Arya encourages lawyers to revisit these prior challenges in both individual cases and as part of impact litigation strategies to declare all transfer statutes, or portions of them, unconstitutional.
November 4, 2010 | Permalink | Comments (0)