CrimProf Blog

New Article Spotlight: Challenging the Practical Importance of the Justification/Excuse Distinction

Arizona CrimProf Jack Chin has posted  The Justification/Excuse Distinction: An Argument for its Practical Irrelevance on SSRN.  The abstract: "For decades, Joshua Dressler, Paul Robinson, Reid Fontaine and others have debated the distinction between justification and excuse defenses. "Justifications" represent good behavior, while "excuses" relieve criminal liability for socially undesirable behavior for policy reasons. Building on the critiques of Kent Greenawalt and Mitchell Berman, this essay proposes that claims for the practical importance of the debate have not succeeded.  The best argument is Joshua Dressler's claim that a robust justification/excuse distinction will send clear moral messages about acquittals. But because acquittals are intrinsically ambiguous, they cannot be used to derive moral judgments. First, because clear cases of innocence or meritorious defense are disproportionately screened out before trial, acquittals disproportionately represent near-convictions. Also, even replacement of opaque not guilty verdicts with special verdicts would send clear messages only if the new verdicts are morally precise. However, "excuse" defenses can be satisfied by "justified" conduct and vice versa, e.g., the Model Penal Code's "justification" of erroneous uses of force based on simple but less than gross negligence. In addition, there are seemingly intractable debates about categorization of defenses. Assigning acquittals to pigeonholes that even specialists dispute cannot send clear moral messages. Other rationales for the practical importance of the distinction, such effects on accomplice or aider and abettor liability of third parties, do not reflect the law under the Model Penal Code or other modern approaches. This essay is part of a symposium at the University of Michigan Journal of Law Reform on Reid Fontaine's work." Full Text here.

ABA Releases New Criminal Mental Health Reference Manual

New: Criminal Mental Health and Disability Law, Evidence and Testimony: A Comprehensive Reference Manual for Lawyer, Judges and Criminal Justice Professionals
Pre-order now with a 15% discount (January 2009)
This Comprehensive Reference Manual examines both criminal mental health and disability discrimination law from the points of view of lawyers, judges and other professionals within the criminal justice system. The manual builds on established resources within the ABA, including the Mental & Physical Disability Law Reporter, Mental Disability Law, Evidence and Testimony and Disability Discrimination Law, Evidence and Testimony. It synthesizes the best and most recent information at the ABA on mental health and discrimination law that specifically pertains to criminal justice matters. It also references the ABA's Criminal Justice Mental Health Standards. Regular: $110; $93.50 discounted. 458 pages. View contents. Order today

CrimProf Richard Leo Comes Out With New Book

CrimProf Richard Leo (University of San Francisco Law School), with co-author Tom Wells, has just published THE WRONG GUYS: MURDER, FALSE CONFESSIONS, AND THE NORFOLK FOUR (The New Press).
On July 8, 1997, nineteen-year-old sailor Billy Bosko returned from a naval cruise to his home in Norfolk, Virginia, to find his wife on the floor of their bedroom in a pool of blood. Michelle, eighteen, had been raped and stabbed to death the night before. In this gripping tale of justice gone awry, four innocent men
separately confess, under intense police pressure, to a heinous crime that none of them actually committed. As this enthralling story unfolds, the real perpetrator is matched to DNA evidence and convicted, yet three of the men known as the Norfolk Four remain in prison today. The controversy over this case continues to simmer, with the victim's family still convinced of the men's guilt even as growing media attention has exposed the questionable treatment they received at the hands of police officers, prosecutors, and even their own defense attorneys. Barry Scheck has described THE WRONGF GUYS as “a harrowing tale of how four innocent men were wrongly convicted by a deepley flawed legal system that failed to find the truth or dispense justice at virtually every turn.” The Washington Post and the New York Times have both recently written op-eds calling for the Governor of Virgnia to pardon the Norfolk Four.

Leo is also the author of the recently published (2008) POLICE INTERROGATION AND AMERICAN JUSTICE (Harvard University Press), which CrimProf Yale Kamisar (University of Michigan and University of San Diego) has called “the best book on police interrogation I have ever read.”

New Courses at New York Law School

This fall, New York Law School will be offering four courses from the  nine-course array of  its online, distance learning curriculum. Courses combine streaming videos, readings, weekly synchronous chat rooms (meaning, class meets at 8:45 on Monday night, say, but you can be home in your pajamas or at a coffee shop, not in Room A 602), asynchronous message boards and two full day live face-to-face seminars (in which skills issues are always emphasized). We've been offering these courses since 2000, and have grown the program this year from six to nine courses (about which we are very excited). Courses to be offered this fall (with chat room times listed) are these:

Survey of Mental Disability Law (Monday, 8:45-10 pm)

Sex Offenders (Tuesday, 8:45-10 pm)

Therapeutic Jurisprudence (Wednesday, 8:45-10 pm)

Americans with Disabilities Act: Law, Policy and Procedure (Thursday, 8:45-10 pm)

The courses are open to law students and to attorneys (CLE is available), and are also appropriate for mental health professionals, advocates, and activists. Currently, NYLS has formal partnerships with Southern University Law Center, Gonzaga Law School, Concord Law School, and McGeorge Law School; however, students from other law schools are encouraged to enroll for these courses as well.

For more information, please visit the website: www.nyls.edu/mdl <https://owa.nyls.edu/exchweb/bin/redir.asp?URL=http://www.nyls.edu/mdl>  (scope notes for each course can be found at http://www.nyls.edu/pages/167.asp), <https://owa.nyls.edu/exchweb/bin/redir.asp?URL=http://www.nyls.edu/pages/167.asp),>  or write for details to Liane Bass, Esq., senior administrator of the program ([email protected]). Registration is now open for all courses. [From Michael Perlin][Mark Godsey]

Childhood lead exposure linked to adult crime

In what may be the strongest link yet between lead exposure and crime rates, researchers at the University of Cincinnati on Tuesday released new evidence, spanning more than 20 years, that draws a direct relationship between the amount of lead in a child's blood and the likelihood he or she will commit crimes as an adult.

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New Article Spotlight: Initiating a New Constitutional Dialogue: The Increased Importance under AEDPA of Seeking Certiorari from Judgments of State Courts

Western New England CrimProf Giovanna Shay has published Initiating a New Constitutional Dialogue: The Increased Importance under AEDPA of Seeking Certiorari from Judgments of State Courts on SSRN; it will be published in the William and Mary Law Review.  The abstract:  The Anti-Terrorism and Effective Death Penalty Act (AEDPA) contains a provision restricting federal courts from considering any authority other than holdings of the Supreme Court in determining whether to grant a state prisoner's petition for habeas corpus. Through an empirical study of cert filings and cases decided by the Supreme Court, we assess this provision's impact on the development of federal constitutional criminal doctrine.

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The Middle Finger and the Law

American University CrimProf Ira Robbins has posted Digitus Impudicus: The Middle Finger and the Law on SSRN.  Here's the abstract:

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of peace statutes and ordinances.

This Article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm, but use of the middle finger simply does not raise these concerns.

Article here.  Be sure to read footnote 34.........

New Article Spotlight: The Political Economies of Criminal Justice

Stanford CrimProf Mariano-Florentino Cuellar has published The Political Economies of Criminal Justice on SSRN.  The Abstract: "Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control. This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice - including some beyond the scope of Simon's project - and considers their effects. Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime - including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention - draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state." Full text here. [Jack Chin]

New Article Spotlight: A Reentry-Centered Vision of Criminal Justice

Maryland CrimProf Michael Pinard has posted this abstract on SSRN: "In recent years, record numbers of individuals have been released from U.S. correctional facilities and have reentered their communities. At present, approximately 650,000 individuals are released annually from U.S. federal and state prisons, while an estimated additional 7 million are released from its jails. In addition, the number of individuals with criminal records - whether or not they were incarcerated - continues to climb. At present, approximately 20 percent of adults in the United States have criminal records.

Part I [of this article] details the shortcomings of current reentry practice. Part II sets forth a reentry-centered vision of criminal justice that recasts the roles of defense attorneys, prosecutors, and judges. Part III sets out a couple of ways in which the reentry-centered model differs from models that, at first blush, appear to be similar and then explains that broader reforms are necessary to fully realize the reentry-centered vision." Full text here. [Jack Chin]

New Article Spotlight: Victims, 'Closure', and the Sociology of Emotion

Highly Cited DePaul CrimProf Susan Bandes (visiting at Chicago) presented this paper at Arizona last week; a very persuasive and perceptive piece of work. The abstract:

"The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on whether any of these institutional processes or outcomes can actually contribute to a state of closure for survivors.

As  current research in disciplines including cognitive neuroscience, sociology, psychology, and political science suggests, emotions are dynamic processes that evolve in a reciprocal relationship with social structures. As the legal system becomes increasingly invested in helping victims and survivors achieve closure, we need to take a hard look at the emotional content of this concept, and at how it affects, and is affected by, the institutional framework in which it operates." Full text here.                       

New Article Spotlight: Correcting Search and Seizure History

Tennessee CrimProf Thomas Davies has posted Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law on SSRN.  The abstract: "The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities."  Full text Here.   [Jack Chin]

Yale Law School Pocket Part Calls For Papers

The Yale Law Journal Pocket Part is soliciting commentaries and essays related to the legal issues presented by virtual worlds and economies. Submissions may address, but need not be limited to, the overlap with and implications for real-world institutions.

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New Article Spotlight: Revisiting the Imperial Scholar: Market Failure on Law Review?

UNLV LawProf Rachel Anderson has published a very interesting draft on SSRN; though not specifically about criminal law, it will be of interest to many CrimProfs.  The abstract: This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process. Further it calls for institutional retraining to support the implementation of new criteria and standards and facilitate more accurate evaluation of scholarship.

The evaluation of legal scholarship is often based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. Nor is it reasonable to expect them to do so. No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate. The reforms suggested in this article are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.

This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics. It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Garry Becker utilizing the tools of economic analysis in non-market contexts. Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform. [Jack Chin]

Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia

SSRN.com Recent published University of Berkeley School of Law CrimProf Ty Apler's article "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia."  Here is the abstract:

Lawyers challenging lethal injection on behalf of death row inmates have frequently argued that lethal injection protocols do not comport with standard practices for the euthanasia of animals. This article studies state laws governing animal euthanasia and concludes that many more states than have previously been recognized ban the use of paralyzing agents in animal euthanasia. In fact, 97.6% of lethal injection executions in this country have taken place in states that have banned, for use in animal euthanasia, the same drugs that are used in those states during executions.

Moreover, a study of the legislative history of state euthanasia laws reveals that the concerns raised about paralyzing drugs in the animal euthanasia context are identical in many ways to the concerns that lawyers for death row inmates are currently raising about the use of those drugs in the lethal injection executions of human beings.

This article takes an in depth look at animal euthanasia and its relationship to lethal injection by examining in Part I the history and origins of the paralyzing drugs that veterinarians and animal welfare experts refuse to allow in animal euthanasia; in Part II the standards of professional conduct for veterinary and animal shelter professionals; in Part III, the state laws and regulations governing animal euthanasia; and finally in Part IV, the legislative history that led to the enactment of the various states' animal euthanasia laws and regulations.

Spring Issue of Ohio State Journal of Criminal Law is Now Available

Spring 2008 issue of Ohio State Journal of Criminal Law is now available.

The main symposium says it all: "Toward a Just and Rational Body of Substantive Criminal Law: A Symposium in Honor of Sanford H. Kadish."  Sandy Kadish is probably the twentieth century's foremost and most influential American substantive criminal law scholar.  His casebook itself is a classic, which influenced countless thousands of future lawyers, judges, law professors (and subsequent casebooks). 

NYU professor and casebook co-author Stephen Schulhofer served as Guest Editor of the Kadish symposium.  Besides Professor Schulhofer's Introduction, the symposium includes articles by:

• Larry Alexander & Kim Ferzan ("Culpable Acts of Risk Creation");
• Andrew Ashworth ("Conceptions of Overcriminalization");
• Joshua Dressler ("Reforming Complicity Law: Trivial Assistance as a Lesser Offense?");
• Kim Ferzan ("Self-Defense and the State");
• Claire Finkelstein & Leo Katz ("Contrived Defenses and Deterrent Threats: Two Facets of One Problem");
• Stephen Morse ("Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility"); and
• Peter Westen ("Impossibility Attempts: A Speculative Thesis"). 

The issue has much more:

1.  The Justice Harry A. Blackmun Lecture by Professor David Sklansky: "Is the Exclusionary Rule Obsolete?" 

2. The Walter C. Reckless Memorial Lecture:  John Hagan & Wenona Raymond-Richmond, "The Disturbing Case of the British Advertising Standards Authority, the New York Times, and the State Department's Low Estimate of the Death Toll in Darfur."

3.  Three Commentaries: Stanley Goldman on "In Defense of the Damned"; Ethan Lieb's "A Comparison of Criminal Jury Decision Rules in Democratic Countries"; and Sandra Guerra Thompson, "Immigration Law and Long Term Residents: A Missing Chapter in American Criminal Law."

4.  A review by Bruce Smith of Andy Taslitz's book,  Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (NYU Press 2006).

5.  A one-time reprint of the inaugural articles from our new online "journal": OSJCL Amici: Views from the Field,.  The essays:

• Judge Richard Kopf ("The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall");
• Judge Gerard Lynch ("Letting Guidelines Be Guidelines (and Judges Be Judges)");
• Judge Lynne Adelman & Jon Deitrich ("Gall, Kimbrough and Crack Retroactivity: Positive but Incomplete Steps in the Evolution of Federal Sentencing"); and
• Judge Nancy Gertner ("Gall, Kimbrough, and Me").

"Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

SSRN.com recently published S.J Quinney College of Law CrimProf Amos N. Guiora and Lewis and Clark College of Law CrimProf John T. Parry's piece Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists.  Here is the abstract:

Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance[] the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice. [Mark Godsey]

Yale Law School CrimProf James Whitman Writes "What are the Origins of 'Reasonable Doubt'?"

Yale Law School Ford Foundation CrimProf James Whitman recently wrote "What are the the Origins of Reasonable Doubt?"  Here is an excerpt:

As everybody knows, no person in the United States of America can be convicted of a crime unless that person’s guilt is proven “beyond a reasonable doubt.” It would be hard to name a legal doctrine more familiar to the general public. For that matter, it would be hard to name a legal doctrine more basic to the American sense of justice. American criminal law would be unimaginable without the reasonable doubt standard. Indeed, the requirement of proof “beyond a reasonable doubt” is so fundamental that the Supreme Court has read it into our constitutional law, even though the phrase “reasonable doubt” appears nowhere in the Constitution.

But what exactly is proof “beyond a reasonable doubt”? Anyone who has served as a criminal juror knows that the rule is not easy to understand. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal “doubt”? Exactly when are legal “doubts” about the guilt of the accused “reasonable”? Jurors are sometimes understandably baffled. Even the some of the most sophisticated members of the legal profession find the question too difficult to answer.

The result is a troubling situation indeed. Once a jury has determined a person to be guilty “beyond a reasonable doubt,” that person’s fate is almost always sealed. Even the emergence of new evidence, like the evidence of DNA testing, may not be enough to reopen a criminal case. Yet judges and legal scholars have come to the conclusion that the phrase “reasonable doubt” can be assigned no definitive meaning. A moral philosopher might raise disturbing questions indeed about this state of affairs. How you can send somebody to prison, or even to death, on the strength of a rule that nobody understands?

Rest of Article. . . [Mark Godsey]

New Article Spotlight: Regulating the New Regulators: Current Trends in Deferred Prosecution Agreements

From SSRN.com: Peter Spivack and Sujit Raman of Hogan & Hartson LLP recently published Regulating the "New Regulators": Current Trends in Deferred Prosecution Agreements. Here is the abstract:

Deferred prosecution and non-prosecution agreements are proliferating. Prosecutors and major corporations entered into twice as many of these agreements between 2002 and 2005 as in the previous ten years combined; thirty-seven such agreements were concluded in 2007 alone. As pretrial diversion becomes the standard means for concluding corporate criminal investigations, it is becoming increasingly clear that a fundamental shift in the purpose and function of the criminal law in the corporate context has quietly taken place. In a post-Enron world, Department of Justice (DOJ) officials appear to believe that the principal role of corporate criminal enforcement is to reform corrupt corporate cultures - that is, to effect widespread structural reform - rather than to indict, to prosecute, and to punish. By focusing more on prospective questions of corporate governance and compliance, and less on the retrospective question of the entity's criminal liability, federal prosecutors have fashioned a new role for themselves in policing, and supervising, corporate America. They have become the New Regulators.

Remarkably, this important policy shift has occurred in the absence of any public guidance from DOJ leadership. Even more remarkably, this signficant shift has sparked little discussion in the nation's broader policy discourse - until now.

As Congress actively considers legislation that would direct DOJ leadership to issue appropriate guidance regarding DPAs and NPAs, this Essay provides an introduction to many of the key issues, offers a background history of the rise of corporate pretrial diversion, and explores several of the significant trends that emerged in 2007. While recent legislative interest is focused on the selection and payment of DPA-imposed federal monitors, this Essay suggests that pretrial diversion in fact impacts a range of important legal concepts, including federal-state relations, the separation of powers, and the basic role of the prosecutor.

In light of the considerable inconsistencies in current prosecutorial practice, this Essay argues that DOJ leadership should take appropriate action and issue much-needed guidance. Failing that, DPAs and NPAs may be a ripe and necessary area for legislative intervention. [Mark Godsey]

New Article Spotlight: Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship

SSRN recently published Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Wake Forest University School of Law CrimProf Jennifer M. Collins.  Here is the Abstract:

This Article is an attempt to begin a conversation about the way children who have been victimized by their parents are treated by the criminal justice system. I suggest that even though as a society we are obsessed with our children, that obsession has not translated into criminal justice policies that adequately protect them. Parental offenders are systematically treated better by the criminal justice system than are extrafamilial offenders, and we need to grapple with whether that preferential treatment is appropriate. I suggest that in many instances it is not, and I therefore propose some principles that I hope provide some guidance for the future formulation of criminal justice policy.

The Article unfolds in five Parts. Part I describes the romanticization phenomenon, drawing on sources both from law and from popular culture to demonstrate how we idealize the parent-child bond. As a result, we have come to believe that we can ordinarily rely upon the strength of that bond, without messy interference from the criminal justice system, to protect our children from harm. In other words, the belief that love, not law, is sufficient to protect our children permeates our approach to family violence.

Part II gives concrete examples of the adverse consequences of this phenomenon and demonstrates how this phenomenon has harmed children. I have chosen in this Part to focus on the most serious crimes that parents can commit against their children: the crimes of murder and rape. These crimes are the focus of the Article because the conduct at issue without question can be characterized as criminal; indeed, these crimes receive our greatest wrath outside the realm of the family. Unfortunately, the romanticization phenomenon affects the criminal justice system's treatment of even these most serious of crimes. This Part also includes a discussion of the parental discipline defense, both because defendants often raise that issue in child homicide cases and because I believe that our continued willingness to endorse the use of corporal punishment against children is contributing to the larger problems discussed in this Article.

Part III addresses some of the objections raised to using the criminal justice system more vigorously to protect children from parental violence. For example, perhaps parental offenders simply are less dangerous than stranger offenders. Other objections include the idea that we do not need the incentives of the criminal law to protect children because the fear of losing a child is incentive enough to induce appropriate parental behavior, or that parents who have lost a child are suffering enough and the infliction of additional punishment through the criminal justice system is simply gratuitous and cruel. This Part also grapples with the very real harms that greater use of the criminal justice system could potentially create, such as disruption of families or a disproportionate impact on families of color.

Part IV sets forth some principles that hopefully can better guide policymakers and practitioners in the future as they grapple with how best to protect our children from harm. This Part argues that if we are serious about protecting children as a class from physical injury, we must reorient our thinking about criminal justice policy toward the home, rather than away from it. This Part also addresses some of the particular issues related to motherhood and child abuse. Finally, Part V offers some brief concluding thoughts. [Mark Godsey]

UH LawProf Michael Olivas on Hernandez v. Texas, the "Criminal Law Companion to Brown"

Michael Olivas, William B. Bates Distinguished Chair of Law at Houston, has posted Colored Men and Hombres Aqui, Hernandez v. Texas and the Emergence of Mexican American Lawyering on SSRN.  The abstract:

An important case was decided by a unanimous United State Supreme Court in May, 1954, in an opinion written by Chief Justice Warren. It invoked race, which had been employed by the State in a way to marginalize a discrete racial group, and formulated Equal Protection. The term Colored Men figured in it. Brown v. Board of Education? No - the case was Hernandez v. Texas, written at the same time as Brown, by the same Court, and was published in the 1954 Supreme Court Reports just before Brown. This criminal law companion to Brown involved all white juries in Mexican-Jim Crow Texas, and has been all-but-forgotten in the bright light accorded Brown. But its anti-subordination language, small town sociology, and bathroom signage (the men's room sign, invoked by Justice Warren, read Colored Men and Hombres Aqui (Men Here). The case was also the first case argued by Mexican American lawyers before the Supreme Court. This study draws upon previously-unexamined archival materials and newspaper accounts, as well as information from the lawyers who tried the 1954 case.

Full text here.

Jack Chin