Showing papers in "Journal of Criminal Law & Criminology in 2004"

Sentencing the Green-Collar Offender: Punishment, Culpability, and Environmental Crime

Abstract: The federal sentencing guidelines for environmental crimes reflect an ad hoc, largely incoherent approach to guidelines development. In some cases of minimal culpability, the guidelines recommend sentences far in excess of what seems theoretically justifiable. This article develops a new culpability-based approach to environmental sentencing and proposes specific reforms to the federal guidelines based on the theoretical model.

Community Policing and Youth as Assets

Abstract: Community policing is the most important innovation in American policing today. It receives broad political support and is endorsed by a diverse cross-section of the legal academy. Among community policing's underappreciated virtues is that it provides a better way to regulate police conduct than does the traditional model of judicial enforcement of the Fourth Amendment. But although there is much to be said for community policing, it has not reached its potential. The most important group from a public safety standpoint - inner-city youth and young adults - has largely been left out of the new policing model. This group is still policed under the discredited warrior approach to policing, which views the young exclusively as threats to public order. But despite the powerful image of urban youth as threats, most inner-city young people are law-abiders. They are also the principal victims of the law-breaking minority. They therefore have a profound stake in both ensuring public safety and in reducing police abuse and harassment. Building on lessons from policing experiments in Boston and Chicago, this Article will advocate a model of community policing that allows young people to join other citizens in regular group deliberations with neighbors and local officers to set policing priorities.

The Paradox of Private Policing

Abstract: Those who fear the social and political effects by the war on terrorism focus on the increased powers of public police, but they ignore another powerful group: the private police. It is often difficult to distinguish private from public police officers. Yet the law sees matters differently, by recognizing an absolute distinction between the two groups. This separation also leaves largely unregulated the private police, who are by far the largest provider of policing services in the United States. While the law multiplies distinctions between private and public police, the functions, responsibilities, and appearance of the two are increasingly difficult to tell apart. This is the paradox of private policing. Courts have not developed comprehensive rules governing private police, and statutory regulation is minimal. Legal scholars have paid them hardly any attention. This article begins to remedy that ignorance, by drawing a contrast between the rigid legal conception of the private police, on the one hand, and their increasingly complicated and shifting social role on the other. Drawing upon materials from ethnographic observation, this article argues that private police participate in much of the policing work that their public counterparts do. Exactly what constitutes policing and who may legitimately call themselves police are now contested issues. As a consequence, the Article argues that the regulatory framework governing the police, by giving insufficient consideration to these increasingly unsettled questions, creates legal distinctions at odds with actual police work. Furthermore, the contemporary proposition that private police ought to serve as partners with public police in a common enterprise of crime prevention must be met with caution, for these partnerships carry unresolved questions as to the proper balance of burdens, benefits, and controls that are distributed between the public and private sectors.

Learning Lessons from India: The Recent History of Antiterrorist Legislation on the Subcontinent

Abstract: On October 26, 2001, one month after the most deadly terrorist attack to ever be carried out on U.S. soil,' the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 20012 became law. Prior to the enactment of the PATRIOT Act, the United States had minimal legislation specifically targeted at terrorist activity.3 However, two years after the

The Self-Incrimination Clause Explained and Its Future Predicted

Abstract: Like many areas of the law, the Fifth Amendment has defied theoretical explanation by scholars. We examine whether the fifth amendment cases can be explained with a relatively simple theory, and find that they can. The key to that theory is the recognition that, although never acknowledged by the Court, its cases make plain that "testimony" is the substantive content of cognition - the propositions with truth-value that people hold or generate (as distinct from the ability to hold or generate propositions with truth-value). This observation leads to a comprehensive positive theory of the Fifth Amendment right: the government may not compel disclosure of the incriminating substantive results of cognition that themselves (the substantive results) are the product of state action. As we demonstrate in this article, this theory explains all of the cases, a feat not accomplished under any other scholarly or judicial theory; it even explains the most obvious datum that might be advanced against it - the sixth birthday question in Muniz. There remain two sources of ambiguity in Fifth Amendment adjudications. First, compulsion and incrimination are both continuous variables - questions of degree. The Court has recognized this and set about defining the amount of compulsion and incrimination necessary to a Fifth Amendment violation. The result is a common law of both topics rather than a precise metric of either. These two variables are independent and do not interact, which reduces the complexity of decision making. Compulsion, in other words, is in no way determined by the extent to which the results are incriminating. Compulsion is determined on its own, as is the sufficiency of incrimination. The second source of ambiguity arises from the Court not explicitly equating "testimony" with cognition, though that is precisely what has controlled its decisions. Given that the Court's opinions have not focused on substantive cognition as the third element of a Fifth Amendment violation, it is not surprising that the Court has not clarified whether cognition, too, is a continuous or discontinuous variable. This is where the future lies. The Court will have to clarify two matters: first, whether the extent of cognition matters, and second, the derivative consequences of cognition. In addition, the Court will have to determine whether these two issues are, like compulsion and incrimination, independent. Does the extensiveness of the compelled cognition determine how far its causal effect will be traced? We then note that this "theory" does not look like a standard academic theory with its attendant emphasis on normative analysis. We examine whether the normal meaning of "normative justification" is a very useful one in any field of law with the range of the fifth amendment, point out that it is quite similar to the fourth amendment in this regard, and that scholarly efforts to discover its "true" justification may be doomed to failure. This does not mean that fields of law are unjustified, but perhaps that the justification must come in other terms. The terms plainly applicable to these two areas are the traditional ones of the rule of law. The Court has strived to make sense of ambiguous directives through creating and sustaining relatively clear legal categories and by responding to new situations through analogies to prior cases. We think it plausible that, however dull this may appear to the legal theorist, the legal system may be better off as a result. The article thus adds to the growing literature concerning the nature of legal theorizing by demonstrating yet another area where legal theorizing in its modern conventional sense (involving the search for the moral or philosophical theory that justifies an area of law) has been completely ineffectual, whereas explanations that are informed by the presently neglected values of legality (clarity, precision, consistency, fidelity to authority) have considerable promise.

The Feeney Amendment and the Continuing Rise of Prosecutorial Power to Plea Bargain

Abstract: Congress has come close to a drive-by rewrite of sentencing law, and a sentencing revolution may still be in the works. On April 10, 2003, Congress passed the PROTECT bill (popularly known as Amber Alert), which creates a national notification system for child kidnappings. On March 26, while the bill was pending, the House of Representatives passed the Feeney Amendment to the bill.' The original amendment was an unprecedented attempt by Congress to rewrite the Sentencing Guidelines by itself without the input or expertise of the Sentencing Commission. The House-Senate Conference Committee narrowed the amendment, limiting many of its changes to child pornography and child sex cases. The revised amendment nonetheless changes the Sentencing Guidelines substantially, and it instructs the Sentencing Commission to make many more changes within the next six months. The likely result is many fewer Guideline departures, less judicial discretion, and more prosecutorial control. The losers are defendants and judges, and the winners are prosecutors. Prosecutorial leverage to plea bargain will be at an all-time high, resulting in fewer trials, more bargains, and higher sentences. Judges used to check prosecutorial harshness, but now they are increasingly powerless unless prosecutors deign to grant leniency.

Unraveling Unlawful Entrapment

Abstract: Those who engage in unlawful conduct because they have been induced to do so by a government agent may enjoy the defense of entrapment. But why? Such individuals seem no more justified in or excused for their unlawful acts than persons who have been induced by a private party. This is the puzzle of entrapment. To solve this puzzle, this article introduces and defends a new theory of entrapment – entrapment as unfairness. According to this theory, entrapment is fatally unfair to its target in the following sense: For society to impose criminal sanctions on an entrapped person would be to place on her a disproportionate share of the cost of general crime prevention and control, violating the well-established norm of distributive justice that, to the extent possible, the cost of a beneficial activity should be shared among all its beneficiaries. After elaborating this thesis, the Article considers and responds to a number of potential objections to entrapment as unfairness, and then applies the theory to a number of current controversies concerning entrapment.

Piercing the Prison Uniform of Invisibility for Black Female Inmates

Abstract: For professionals working with the issues of women and criminality, the lean years of working without the support of solid empirical data are coming to an end. In the past, professionals working on women and crime toiled in the dark as there were few studies which focused specifically on women's criminality, and little empirical data existed to support theoretical approaches. Lawyers and women's advocates sensed that crime committed by women was different from crime committed by men and that each type of crime affected society in different ways. However, the only information available to support these beliefs was anecdotal stories. Today, a combination of factors gives women's advocates new tools to support their arguments that crimes committed by women are different than those committed by men. Not only do men and women follow different paths into crime,' but their crimes also cause different types of harm to society.2

Sentencing Reform Lessons: From the Sentencing Reform Act of 1984 to the Feeney Amendment

Abstract: For more than two decades, Congress has been on a mission to obtain uniformity in the federal sentencing system. What began with the Sentencing Reform Act of 1984 ("SRA"), and was soon followed by the Sentencing Guidelines, has been continually criticized by both the judiciary and the legislature.' In the spring of 2003, in what caught many interested parties off guard, Congress abruptly responded to the perceived inadequacies of the federal sentencing system by enacting the Feeney Amendment to the PROTECT Act ("The Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003"), signed into law by President Bush on April 30, 2003.2 The Act implemented sweeping reforms focused on eliminating trial judges' discretion to deviate from congressionally mandated sentences.3

Prisons and after Prison

Abstract: I was in court the other day, waiting for my client's case to be called, when a middle-aged man was brought out from the lock-up to face the judge. I took notice because of the fact that he was older than the usual pretrial detainee in the Cook County Jail. His lawyer began to argue for a reduction in bail. During the course of the hearing before the judge, it was revealed that this man allegedly committed three armed robberies in 1990. After being released on bail in 1990, he failed to return to court, probably because he was facing a minimum six years in the penitentiary for his crimes (and probably longer because judges in Cook County do not always impose minimum sentences for crimes of violence). Instead, he lived in his

Reforming the Jury Override: Protecting Capital Defendants' Rights by Returning to the System's Original Purpose

Abstract: The death penalty has been justified as the "community's judgment ... [of] the defendant's outrageous affront to humanity."' In Alabama and Florida,2 the two states that use the so-called "jury override"3 in capital cases, the ultimate decision of life or death is left to the trial judge, not to the jury, as the best reflection of the "community's judgment." After the guilt phase of the trial, the jury issues only an advisory sentence of life or death, which the trial judge has the authority to override.4 In Alabama and Florida, judges have used their override power eighty-three and 167 times respectively, to sentence a defendant to death after a jury recommended

Securing our children's future: New approaches to juvenile justice and youth violence

Abstract: Some time ago, I represented a thirteen-year-old boy charged with murder. I represented him in an unsuccessful effort to keep his case in juvenile court. I was his lawyer in criminal court. He was convicted and sentenced to a long prison term. This boy was identified in the popular press as one of the dangerous "super-predators" plaguing our inner-cities. Our investigation of the case revealed that the murder with which our client was charged was ordered by the higher-ups in a gang. Our investigation also revealed the names of those gang leaders. That information was shared with the prosecution, but it was clear that prosecutors and police already knew, as did local community members, who was ultimately responsible. This wasn't a "juvenile" or a "super-predator" case, it was a case in which an entire community was being intimidated by a gang. Had some of the strategies described in Securing Our Children's Future: New Approaches to Juvenile Justice and Youth Violence been in place at the time my young client was arrested, the older gang members might have been discouraged or prevented from terrorizing their community through violence and the threat of violence. A murder might have been avoided, and a young person might not have had his best years taken from him as the result of a long period of incarceration.

Foreword: You Are Entering a Gay and Lesbian Free Zone: On the Radical Dissents of Justice Scalia and Other (Post-) Queers - [Raising Questions about Lawrence, Sex Wars, and the Criminal Law]

Abstract: The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court’s ruling is the coup de grâce to legal moralism

From Nike V. Kasky to Martha Stewart: First Amendment Protection for Corporate Speakers' Denials of Public Criminal Allegations

Abstract: Richard Epstein once said that "[i]t is difficult to conceive of ... a defense of freedom of speech so pure as to countenance securities fraud ... ."' The regulation of false or misleading statements of material fact under the securities laws,2 like other regulations of false or misleading commercial speech, has been upheld under First Amendment analysis, despite the fact that such regulations necessarily curtail speech.3 This rubric is problematic, however, when applied to certain types of corporate speech that have become prevalent in today's climate of overlapping legal, political, social, economic, and popular culture.