Saturday, May 27, 2017
Orin S. Kerr and Bruce Schneier
The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society
Date posted to database: 22 Mar 2017
|2||207||The Use of Risk Assessment at Sentencing: Implications for Research and Policy
Jordan M. Hyatt and Steven L. Chanenson
Drexel University and Villanova University School of Law
Date posted to database: 2 May 2017 [5th last week]
|3||169||Government Hacking to Light the Dark Web: What Risks to International Relations and International Law?
Orin S. Kerr and Sean D. Murphy
The George Washington University Law School and George Washington University - Law School
Date posted to database: 24 Apr 2017 [6th last week]
|4||162||Making Families Pay: The Harmful, Unlawful, and Costly Practice of Charging Juvenile Administrative Fees in California
Stephanie Campos-Bui, Jeffrey Selbin,Hamza Jaka, Tim Kline, Ahmed Lavalais, Alynia Phillips and Abby Ridley-Kerr
University of California, Berkeley - School of Law, University of California, Berkeley - School of Law, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley, School of Law, Students
Date posted to database: 5 Apr 2017 [7th last week]
|5||150||Applying The Racial Profiling Correspondence Test
David M Tanovich
University of Windsor - Faculty of Law
Date posted to database: 22 Mar 2017 [8th last week]
Wayne A. Logan
Florida State University - College of Law
Date posted to database: 27 Mar 2017 [9th last week]
|7||132||Police Interrogation and Suspect Confessions: Social Science, Law and Public Policy
Richard A. Leo
University of San Francisco - School of Law
Date posted to database: 22 Mar 2017 [10th last week]
|8||125||Regulating Inductive Reasoning In Sexual Assault Cases
David M Tanovich
University of Windsor - Faculty of Law
Date posted to database: 11 Apr 2017 [new to top ten]
|9||121||'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence
Michael L. Perlin
New York Law School
Date posted to database: 7 Apr 2017 [[new to top ten]
|10||109||Rethinking Federal Diversion: The Rise of Specialized Criminal Courts
Christine S. Scott-Hayward
California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management
Date posted to database: 28 Apr 2017 [new to top ten]
Friday, May 26, 2017
Recent Supreme Court jurisprudence has reaffirmed the viability of the void-for-vagueness doctrine, including the use of facial challenges. This Article demonstrates that, under prevailing doctrine, the Sherman Act could not survive such a challenge. Although previous high-profile attempts to invalidate this core statute of antitrust law as unconstitutionally vague were unsuccessful, the landscape has changed considerably since then. Longstanding deficiencies in the statutory text in terms of notice and consistency have been exacerbated by a pattern of judicial gloss that tolerates and maintains ambiguity — both categorical and substantive. The Sherman Act’s penalties and enforcement, moreover, have been enhanced and increased, making the cost of good-faith missteps particularly high. Additionally, the Sherman Act’s tension with activities protected by the First Amendment has increased considerably, not only directly, but indirectly through the proliferation of information and communication markets. Finally, the attempt to incorporate a limiting mens rea requirement into the law — a saving grace in other vague statutory schemes — has proved unworkable and incomplete, if not entirely mooted in this context. In light of these trends, the Sherman Act requires some form of alteration to maintain constitutionality moving forward. This Article concludes by briefly exploring such potential solutions, and likely outcomes with respect to antitrust law’s vagueness problem for the years ahead.
A. Mitchell Polinsky and Paul N. Riskind (Stanford Law School and Stanford Law School) have posted Deterrence and the Optimal Use of Prison, Parole, and Probation on SSRN. Here is the abstract:
In this article we derive the sentence — choosing among the sanctions of prison, parole, and probation — that achieves a target level of deterrence at least cost. Potential offenders discount the future disutility of sanctions and the state discounts the future costs of sanctions. Prison has higher disutility and higher cost per unit time than parole and probation, but the cost of prison per unit of disutility can be lower or higher than the cost of parole and probation per unit of disutility. The optimal order of sanctions depends on the relative discount rates of potential offenders and the state, and the optimal duration of sanctions depends on the relative costs per unit of disutility among the sanctions and on the target level of deterrence. We focus on the case in which potential offenders discount the disutility of sanctions at a higher rate than the state discounts the costs of sanctions. In this case, if prison is more cost-effective than parole and probation — that is, has a lower cost per unit of disutility — prison should be used exclusively. If prison is less cost-effective than parole and probation, probation should be used if the deterrence target is low enough, and prison followed by parole should be used if the deterrence target is relatively high. Notably, it may be optimal to employ a prison term even if prison is less cost-effective than parole and probation and even if prison is not needed to achieve the target level of deterrence, because of what we refer to as the front-loading advantage of imprisonment.
There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence — at times hidden in plain sight, at other times hidden below the surface — are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s “citizenship talk” also dictates how a good citizen should behave, move, and even speak. “Criminal Procedure and the Good Citizen” surfaces this aspect of the Court’s criminal procedure decisions to explore a series of questions about the nature of power, participation, and citizenship today, especially with respect to the police.
Lauren M. Ouziel (Temple University - James E. Beasley School of Law) has posted Ambition and Fruition in Federal Criminal Law: A Case Study (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article explores a recurrent puzzle in federal criminal law: why do the outcomes of a law — who ultimately gets prosecuted, and for what conduct — diverge, sometimes markedly, from lawmakers’ and enforcers’ aims? This disconnect between law’s ambition and fruition is particularly salient in federal drug enforcement, which has focused on capturing the most high-value offenders — large scale traffickers, violent dealers, and the worst recidivists — yet has imprisoned large numbers of offenders outside these categories. In this respect, federal drug enforcement is a case study in the ambition/fruition divide.
Among the divide’s contributing factors, I focus here on organizational dynamics in enforcement: the pressures and incentives among and within the organizations that collectively comprise the federal drug enforcement enterprise.
Thursday, May 25, 2017
Michael Serota has posted Proportional Mens Rea and the Future of Criminal Code Reform (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
This Essay argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies. I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course. The Essay is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Essay. Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark. Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.
This chapter, part of a larger book-length project titled Criminalizing Sex--A Unified Theory, offers a “normative reconstruction” of the law of incest, consisting of four parts: Part I looks at the concept of incest as a complex cultural taboo, one which has attracted the attention of a wide range of social scientists and theorists. Part II considers the striking multiplicity of ways in which incest has been dealt with across systems of criminal law, including the fact that a broad swath of “civilian” jurisdictions do not treat it as a crime at all. Part III considers instances in which adults have sex with closely related juveniles, arguing (on “fair labeling” grounds) that such cases should be treated as an aggravated form of statutory rape, rather than as a separate, free-standing offense of “juvenile incest.” Part IV looks at incestuous relationships between adults. In most such cases, it is argued, criminal sanctions are unjustifiable unless lack of consent can specifically be proved. Two possible exceptions exist, however, where the adult relationship is a continuation of one that began when one of the parties was a minor, or where the two parties are in a hierarchical relationship, such as that between parent and child. In such cases, lack of consent could be presumed, subject to rebuttal evidence that consent was genuinely given.
Cynthia Soohoo (City University of New York Law School) has posted You Have the Right to Remain a Child: The Right to Juvenile Treatment for Youth in Conflict with the Law on SSRN. Here is the abstract:
The growing criminalization of youth in the U.S. requires new legal approaches. This article proposes recognition of a substantive right to juvenile treatment to prevent or limit prosecutors from pushing youth into the adult criminal justice system. In making the case for a right to juvenile treatment, the article re-conceptualizes the Supreme Court’s children’s rights jurisprudence, provides a comparative international and foreign law perspective on the rights of youth and contributes to growing scholarship considering how the Court deals with difference.
More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.
First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.
Ioana Vasiu and Lucian Vasiu (Babes-Bolyai University - Faculty of Law and Independent) have posted Malicious Cyber Activity Distribution, Attribution, and Retribution (In "Advanced Cyberlaw and Electronic Security", Accent Publishing (2017, Forthcoming)) on SSRN. Here is the abstract:
Malicious activity in cyberspace comprises numerous forms, often resulting in significant consequences for the victims. According to the actual circumstances, a number of measures can be considered in response to such cases. In order to bring the perpetrators to justice, it is necessary to effectively address aspects concerning the assignment of criminal liability and the applicable jurisdiction. This paper discusses essential aspects of malicious cyber activity and outlines key attribution and jurisdiction challenges posed by such activity. Finally, the paper makes a number of recommendations for better responses to this phenomenon.
This Review of Courting Death offers a different take on two of Professor Carol Steiker and Professor Jordan Steiker's major themes: (1) the tension between effecting meaningful reform and legitimatizing legal façades, and (2) the future of the American death penalty. The Review argues several points, one being that the Model Penal Code may have had a larger pre-Furman impact than the Steikers acknowledge. In addition, the Review expands on some key contributors to the death penalty’s decline that may have been obscured by the all-encompassing nature of the Steikers’ regulation argument — for example, the emergence of unforeseeable exogenous variables (similar to the introduction of DNA evidence into criminal trials in the 1980s), as well as pressure points that exist largely outside of the constitutional regulatory framework, such as lethal injection litigation. Despite these influences, the Review finds the Steikers’ prediction — that, when abolition seems right, it will come by way of a “Furman II” Supreme Court decision — to readily comport with the death penalty’s trajectory over the last fifty years.
Robert James Conrad Jr. and Katy Lynn Clements (United States District Court Western District of North Carolina and University of North Carolina (UNC) at Chapel Hill - School of Law) have posted The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges on SSRN. Here is the abstract:
Federal criminal jury trials are dying. Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of federal criminal jury trials decreased by more than 50 percent. During the same ten-year span, the portion of cases disposed of by trial similarly declined by 46 percent. Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see. The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.
This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s. Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate. Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline. This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results. Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a recent prosecutorial push to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice.
Sandra Guerra Thompson and Nicole B. Casarez (University of Houston Law Center and University of St. Thomas) have posted Building the Infrastructure for 'Justice Through Science': The Texas Model (West Virginia Law Review, Vol. 119, 2016) on SSRN. Here is the abstract:
This article surveys the important reforms adopted by the Texas legislature to advance the quality of forensic science that form what we call the "infrastructure" of forensic science in the state. In all, the legislature put into place six key components that now form the Texas forensic science infrastructure: (1) the Texas Forensic Science Commission; (2) the Texas Criminal Justice Integrity Unit (a stakeholder committee that hosts discussion meetings and training programs); (3) the Michael Morton Act, which instituted expansive prosecutorial disclosure from pre-plea to post-conviction; (4) the "junk science" writ, a habeas petition that allows challenges to the forensic science used to obtain a conviction if new evidence undermines the validity of the evidence, (5) the Office of Capital and Forensic Writs, a statewide public defender for habeas petitions; and (6) state laws requiring the preservation and testing of biological evidence.
The article also describes two local innovations that have transformed the roles each institution plays in the criminal justice system and have become national models.
Wednesday, May 24, 2017
Brandon L. Garrett, Nan Li and Shivaram Rajgopal (University of Virginia School of Law, Columbia University - Columbia Business School and Columbia Business School) have posted Do Heads Roll? An Empirical Analysis of CEO Turnover and Pay When the Corporation is Federally Prosecuted on SSRN. Here is the abstract:
Does the criminal prosecution of a corporation affect the CEO? Or do criminal actions directed at the organization itself pose few consequences for the individuals at the top, and the CEO in particular? While CEO’s are rarely themselves prosecuted, organizations could discipline CEO’s through paycuts or outright replacing the CEO in response to a criminal prosecution. We sought to examine whether and how that occurs. We focus our analysis on a dataset of public companies that settled criminal cases brought by federal prosecutors from 2001-2015. We compared those companies to the larger set of companies in the Execucomp database of S&P 1500 firms, focusing on CEO compensation and turnover during the same time period. We examined the time period before and after prosecution, and the year that the company resolved the criminal charges against the company. We found that in the year that the company settled its prosecution, through a guilty plea or a deferred or non-prosecution agreement, there was a significantly higher level of CEO turnover. However, there was little evidence of any CEO pay cut. Second, for the prosecuted firms that did not have CEO turnover after prosecution, there is little evidence of a reduction in compensation. Indeed, we observed a spike in CEO bonuses in the year of prosecution—confirming concerns expressed by judges, prosecutors, lawmakers, and academics that corporate prosecutions do not sufficiently impact high-level decision-makers like CEOs. For the prosecuted firms that did have CEO turnover after prosecution, there is some evidence of a pay cut, both to salary and bonus, prior to the replacement of the CEO. These results raise larger questions whether federal prosecutors targeting the most serious corporate crimes sufficiently incentivize accountability at the top.
Simon Stern (University of Toronto - Faculty of Law) has posted Narratives of Criminal Procedure from Doyle to Chandler to Burke (New England Law Review, Vol. 51, No. 2, 2017) on SSRN. Here is the abstract:
Despite the considerable body of work aimed at showing that law is a form of narrative, these efforts have not found many adherents for the view that legal briefs and judicial opinions make better bedtime reading than mystery novels or courtroom dramas. This well-attested preference for fictional narrative suggests that the kind of satisfaction it offers is very different from the pleasures to be had from the genres of professional writing that we associate with forensic advocacy and decision-making. In the latter case, narrative serves the purpose of persuasion. Fiction may also seek to persuade, but more fundamentally it seeks to engage readers in the characters and the events, encouraging a kind of immersion in the story that is hardly necessary, and is rarely attainable, in legal writing.
Cynthia Godsoe (Brooklyn Law School) has posted Recasting Vagueness: The Case of Teen Sex Statutes (Washington and Lee Law Review, Vol. 74, pg. 173, 2017) on SSRN. Here is the abstract:
When two minors below the age of consent have sex, who is the victim and who is the offender? Statutory rape law makes consensual sex among minors illegal in almost every state. Where half of high school students have had intercourse, the law’s immense scope and inevitable underenforcement allow prosecutors to virtually define the crime by the tiny percentage of cases they choose. Through the lens of peer statutory rape, this Article introduces and critiques “vaguenets” — broad, under-defined laws that punish widespread and largely harmless conduct, and invite selective enforcement. Like problematic police dragnet searches, the immense sweep of these statutes ensnares much innocent conduct in an effort to root out societal undesirables. For sexually active adolescents, this means disproportionately those breaching heterocentric or racialized gender norms.
This Article brings juveniles into an overcriminalization conversation that has largely ignored them.
Robert A. Mikos (Vanderbilt University - Law School) has posted Risky Business? The Trump Administration and the State-Licensed Marijuana Industry (2017 U. Ill. L. Rev. Online (April 29, 2017)) on SSRN. Here is the abstract:
Attorney General Jeff Sessions has made it clear that he opposes legalization of marijuana, a drug he considers “only slightly less awful” than heroin. Such comments have fueled speculation that the Trump Administration might soon launch a new war on weed. In this short essay, however, Professor Mikos suggests that the Trump Administration’s impact on state reforms and the state-licensed marijuana industry is likely to be tempered by three potent forces: (1) political support for state reforms; (2) practical limits on the DOJ’s enforcement capacity; and (3) legal doctrines that weaken the DOJ’s ability to turn back the clock on state reforms. The essay discusses each of these constraints in turn and ultimately suggests that the Attorney General might pursue less draconian tactics, like anti-marijuana media campaigns, to curb the rise of the marijuana industry and the harms he attributes to it.
Commentary on Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment (2016).
The press release is available at the ALI website. In part:
Launched in 2001, under Reporter Kevin R. Reitz of the University of Minnesota Law School who was joined in 2012 by Associate Reporter Cecelia M. Klingele of the University of Wisconsin, the project reexamines the sentencing provisions of the 1962 Model Penal Code in light of the many changes in sentencing philosophy and practice that have taken place since its original publication.
“Over the last 15 years, the Reporters, aided by their Advisers and Members Consultative Group, have done a prodigious amount of work and deserve our collective gratitude,” said ALI Director Richard L. Revesz. “During this period, the subject matter of this project has also received sustained attention in the public policy arena, which has focused on the outlier status of the United States in terms of the proportion of individuals who are incarcerated and on the significant racial disparities that make this statistic even more troubling. Mass incarceration has emerged as one of the few issues in our divided political discourse in which liberals and conservatives can find common ground.”