Showing papers in "Journal of Criminal Law & Criminology in 2006"

Not Your Father's Police Department: Making Sense of the New Demographics of Law Enforcement

Abstract: Several decades ago, when social scientists were discovering the police, and the Supreme Court was beginning to construct the modern law of criminal procedure, American law enforcement was structured roughly the same way it is today. Policing was largely a local responsibility. Departments were organized hierarchically and quasi-militarily. Line officers exercised wide discretion. Patrol and detective functions were separated, and most officers were assigned to patrol. Detectives, like supervisors, started out as patrol officers and were promoted from within. The critical operational unit was the squad: a handful of line officers supervised by a sergeant, or in the case of detectives, by a lieutenant. Officers generally began police work when young and made it their career. All of this remains true today. "As a legal and organizational entity," David Garland is right to observe, "the public police look much the same today as they did thirty years ago."1

Never going home: Does it make us safer? Does it make sense? Sex offenders, residency restrictions, and reforming risk management law

Abstract: One of the most hotly debated issues in criminal law today is how to manage the perceived risk of sex offenders loose in the community. Beyond mandatory registration and community notification, over a dozen states, including Illinois, have enacted residency restrictions that forbid sex offenders from living within a certain distance of schools, parks, day care centers, or even 'places where children normally congregate.' This Comment scrutinizes these laws to see if they make sense, and more importantly, if they make us safer. The answer to both questions appears to be no. After detailing the statistical, political, and constitutional problems that render these restrictions ineffective and unconstitutional, I shift my attention to envisioning a better system of risk management. I end by critically examining best practice methods of states across the country that more effectively allocate finite resources to identify and control high risk offenders to prevent them from harming again, while allowing the vast majority of offenders who are low risk to better re-integrate into and become productive members of society.

Assessing the Relative Effects of State Direct File Waiver Laws on Violent Juvenile Crime: Deterrence or Irrelevance?

Abstract: Juvenile waiver, or transfer, laws allow certain young offenders to be removed from juvenile court jurisdiction and prosecuted in criminal court, where the range of sanctions is presumably greater. In the past several decades, many states have modified their existing transfer statutes in order to streamline the waiver process and make it easier to prosecute juveniles in criminal court. In doing so, states have excluded certain offenses from juvenile court jurisdiction or added concurrent jurisdiction provisions to their existing waiver statutes. Concurrent jurisdiction, or direct file, statutes afford prosecutors the un-reviewable discretion to charge certain juveniles in either juvenile or criminal court. Although the increased legislation has generated a considerable amount of evaluations of the various effects of juvenile transfer laws, few studies have examined the deterrent effects of such laws on aggregate juvenile crime. In this study, we assess the general deterrent effects of direct file transfer laws in fourteen states which have such provisions. Findings reveal that direct file laws have little effect on violent juvenile crime.

Intimacy and Violence: Exploring the Role of Victim-Defendant Relationship in Criminal Law

Abstract: A review of the sociological and criminological literature on victim-defendant relationship and violence reveals common perspectives or assumptions about intimate violence A careful examination of these assumptions reveals that they support another common assumption-that the courts treat (and should treat) intimate violence more leniently than violence between those who share more distant relationships However, criminal justice researchers have yet to systematically examine the validity of these assumptions or the role they play in determining outcomes in violent crime Using the focal concerns framework, ten perspectives are described and linked to various explanations for criminal justice leniency in cases of intimate violence An exploratory analysis of one assumption highlights the need for future research to examine the validity of common assumptions as well as their impact on court outcomes in cases of violence

Anglo-American Privacy and Surveillance

Abstract: The United States’ Terrorism Surveillance Program represents just one of many expansions in surveillance since 9/11, as legal controls previously introduced to protect citizens’ privacy and to prevent the misuse of surveillance powers have been relaxed. What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. The issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears to be losing privacy in its battle against terrorism. Part I of this article looks at the American institution of legal controls on the executive branch and their subsequent erosion post-9/11. It explores three changes incorporated in the USA PATRIOT Act: alterations to the Foreign Intelligence Surveillance Act; the introduction of Delayed Notice Search Warrants; and the expansion of National Security Letters. Outside of this legislation, the weakening of the Attorney General guidelines increased the FBI's ability to collect information. The article highlights the Department of Defense's ("DOD") movement into the domestic surveillance realm. It discusses a number of operations both inside and outside the DOD, such as TALON, Echelon, Carnivore, Magic Lantern, TIPS, and the use of watch lists. Part I concludes with a discussion of the data mining efforts underway. The article argues that Total Information Awareness, ADVISE, and other projects catapult surveillance into another realm. Moreover, while any one program, such as the NSA initiative, may be considered on narrow grounds, the sheer breadth of current powers raises important concerns. Part II notes that, until recently, no laws governed police and intelligence service information-gathering authorities in the UK. Extraordinary stop and search powers for terrorist-related offences, and warrants for police interference with property provided exceptions. But physical searches of property conducted by the intelligence services, the interception of communications by law enforcement and intelligence agencies, the use of covert surveillance or "electronic bugs," and the running of covert human intelligence sources operated under the legislative and judicial radars. Beginning in the mid-1980s, the European Court began to raise objections to the lack of safeguards and statutory framework. But each time the Court handed down a significant finding against the United Kingdom, the state responded not just by, at least on the surface, meeting the demands of the European Convention of Human Rights, but, it appears, by expanding executive surveillance authorities. Moreover, the warrant system introduced retained control within the executive branch. Not subject to judicial review, the standard applied is reasonable suspicion — considerably less robust than probable cause. Like the United States, Britain draws on new technologies; the country leads the world in its use of public surveillance systems. Having laid out legal developments on both sides of the Atlantic, Part III moves to policy concerns: it begins by briefly exploring the substantive, political, legal, social, and economic risks posed by such measures. It then considers six approaches that would help to mitigate the risks. First is the possibility of creating a property right in personal information. The second centers on the regulation of access, transfer, use, and retention of data. Such efforts would satisfy demands for accountability and transparency in both the public and private sector. A third possibility centers on scaling back the existing powers of the state. Fourth, both countries may contemplate placing limits on what constitutes national security. Fifth, alternative safeguards and oversight structures deserve attention — such as reporting requirements, random audits, the creation of ombudspersons, the insertion of the judiciary, and (in the UK) allowing intercepted communications to be used as evidence. Sixth, preventing countries from introducing ever greater powers of surveillance under the claim that they are only temporary in nature would force legislatures to consider the long-term impact of provisions beyond the immediate terrorist threat.

In Enron's Wake: Corporate Executives on Trial

Abstract: It was December, 2001 a few months after Enron CEO Ken Lay was warned of an "elaborate accounting hoax"3 that had disguised fraud on a magnificent scale, and not long after Enron had publicly disclosed record fourth quarter shortfalls. Notwithstanding these dire financial straits, Enron executives behaved like pigs at the trough, doling out more than $100 million in bonuses to themselves and delivering the checks by plane on the eve of the largest corporate bankruptcy filing in United States history.4 It soon became evident that Enron's collapse was only the first in a wave of accounting fraud scandals that would inflict huge financial losses and erode public confidence in the nation's financial markets. Fast forward to December, 2005. Ken Lay and two other top Enron executives, former President and CEO Jeff Skilling and Chief Accounting

Videotaping Investigative Interviews of Children in Cases of Child Sexual Abuse: One Community's Approach

Abstract: Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in con unction with videotaping to advance the interests the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks to consider the interests of the broader community in the debate about whether investigative interviews of children in cases of suspected child sexual abuse should be videotaped. Second, this Article presents both quantitative and qualitative data from a single county's longstanding use of a protocol for investigating these difficult cases. The author concludes that videotaping, when used as one element of an integrated protocol for investigating child sexual abuse, can serve the interests of the community.

Multi-Jurisdictional and Successive Prosecution of Environmental Crimes: The Case for a Consistent Approach

Abstract: One of the most important policy issues facing the federal environmental criminal enforcement program is how the Department of Justice ("Department") should coordinate the prosecution of corporations for violations of law that occur in several judicial districts and thus fall within the jurisdiction of multiple United States Attorneys. The pattern of prosecutions in the multi-district cases of the last decade demonstrates that in some cases, the standing Department policy governing successive prosecutions has not been followed, resulting in a substantial waste of scarce prosecutorial resources and unfairness to corporate defendants. In important corporate criminal cases outside the environmental area, such as the highly visible prosecutions against Enron and WorldCom coordinated by the Department's Corporate Fraud Task Force,1 all crimes against the company have been charged in a single corporate prosecution. This Article examines whether there are features of environmental criminal

Law and the Parameters of Acceptable Deviance

Abstract: It can be useful to think of law as a standard, around which we construct parameters of acceptable deviance (PADs). Behavior that occurs within PADs usually is not sanctioned, despite its illegality; behavior that occurs outside PADs is often sanctioned, regardless of its legality. This article examines the construction of PADs arguing that they are the product of continuous interplay between formal law and the normative sensibilities of the regulated and their regulators. The article then attempts to explain why institutions of regulation and enforcement cannot formally acknowledge PADs without altering them. Finally, it demonstrates the explanatory power of PADs applied to a range of otherwise puzzling or bedeviling legal phenomena, such as racial profiling, jury nullification, and even the Supreme Court's controversial decision in Bush v. Gore.

Investigation of Halliburton Co./TSKJ's Nigerian Business Practices: Model for Analysis of the Current Anti-Corruption Environment on Foreign Corrupt Practices Act Enforcement

Abstract: The U.S. stood alone in its anti-bribery legislation from 1977, when the Foreign Corrupt Practices Act ("FCPA")1 was initially passed, until the Organization for Economic Cooperation and Development (the "OECD") adopted the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions ("OECD Convention") in 1997, resulting in OECD signatory nations adopting implementing legislation.2 France's adoption of implementing legislation in 2002 provided the basis for the investigation by one of its magistrates into the allegations that a

Desert, Democracy, and Sentencing Reform

Abstract: Exactly how much punishment an offender deserves is something of a metaphysical mystery, or so it has appeared to be in the past. A new discourse of desert seeks to close the gap between philosophical theories and everyday intuitions of deserved punishment, using the former to guide and the latter to legitimize sentencing policies that embrace desert as a limiting principle. This Article examines the operation of desert and finds that in practice, desert has proven more illimitable than limiting. Conceptions of desert are, first, elastic: they easily stretch to accommodate and approve increasingly severe sentences. Desert judgments are also opaque: they appear to be influenced in some cases by racial bias or other extralegal considerations, but such bias is cloaked by the moral authority of desert claims. A better strategy for sentencing reform would be to scrutinize desert claims in the criminal law realm in the same way that post-Rawlsian discussions of distributive justice have scrutinized claims of deserved wealth. We will not and need not eliminate the rhetoric of desert, but we can and should treat it with greater skepticism.

Health Care Fraud Under the New Medicare Part D Prescription Drug Program

Abstract: The investigation and prosecution of health care fraud over the last several years has resulted in significant recoveries and settlements by the government. The United States recovered approximately $1.5 billion in fraud settlements and judgments for the fiscal year ending September 30, 2005, the Department of Justice ("DOJ") announced on November 7, 2005. "As in the last several years, health care accounted for the lion's share of fraud settlements and judgments," amounting to $1.1 billion, according to a DOJ press release.1 The DOJ stated that the Department of Health and Human Services' ("HHS") biggest recoveries were largely attributable to the Medicare and Medicaid programs.2 According to the Health Care Fraud and Abuse Control ("HCFAC") program report released October 27, 2005 by the HHS Office of Inspector General ("OIG"), the federal government won or negotiated $605 million in judgments and settlements in 2004 related to the Medicare and Medicaid programs.3

A Patient-Centered Approach to Health Care Fraud Recovery

Abstract: This Article begins with a simple premise: Health care fraud hurts patients. From that premise fiows a simple corollary: efforts to combat health care fraud should, if possible, remedy this patient harm. Despite its intuitive appeal, this syllogism does not represent current practice. Funds recovered through health care fraud enforcement are distributed to the Medicare Tmst Fund, to the federal agencies that investigate and prosecute health care fraud, and to private parties who initiate suits on the govemment's behalf under the civil False Claims Act'—^but rarely to patients who may have been harmed by the conduct. While focusing enforcement efforts on retuming funds to the Federal Treasury clearly helps to assure that the federal health care programs^ remain solvent and continue to provide care to beneficiaries in the aggregate, it offers little solace to injured individuals. This approach stands in marked contrast to efforts to make the United States health care system more "patient-centered." In 2001, the Institute of Medicine's Committee on Quality of Health Care in America identified "patient-centeredness" as one of the six health care aims for the next century, "focus[ing] on the patient's experience of illness and health care and on the systems that work or fail to work to meet individual patients'

The Decline of the Attorney-Client Privilege in the Corporate Setting

Abstract: Beginning in 2001, the American corporate landscape experienced the first of numerous scandals involving accounting irregularities, financial fraud, and other instances of misconduct. In response, law enforcement officials began an intensive effort to root out corporate fraud and to restore public confidence in our capital markets. That effort—and the accompanying demands by law enforcement agencies that the corporations involved waive their attorney-client privilege—is itself beginning to raise profound issues for how corporations conduct business. There are several issues to be considered as we evaluate the government’s recent heightened level of aggression in seeking privilege waivers. First, over the last several years, cooperation with government investigations—more often than not measured by whether the corporation has waived its attorney-client privilege—has become increasingly critical as law enforcement agencies have sought to restore public confidence in our capital markets. Second, internal investigations conducted by corporate

Deportation and driving: felony DUI and reckless driving as crimes of violence following Leocal v. Ashcroft

Abstract: Every thirty-one minutes, someone is killed in the United States as a result of an alcohol-related motor vehicle crash. Because of the high societal costs, it is hardly surprising that states impose severe penalties for driving under the influence (DUI) of alcohol as a method of deterrence. But how far these penalties can extend has serious implications on other areas of law; particularly in the arena of immigration law, the classification of DUI convictions has far-reaching consequences. Some circuit courts have ruled that aliens can be deported for multiple DUI offenses based on U.S. immigration law, stating that aliens can be removed from the United States for committing an "aggravated felony." An aggravated felony is a "crime of violence" in which the imprisonment term is at least one year. Therefore, whether DUI is a crime of violence has significant impact on immigration law. Circuit courts that ruled DUI convictions were deportable offenses based their rulings on the determination that DUI is a crime of violence. Other circuit courts disagreed and held that DUI is not a crime of violence. The Supreme Court attempted to cure this circuit split in Leocal v. Ashcroft, holding that DUI is not a crime of violence, and therefore is not an aggravated felony that warrants deportation. Language: en

Bucking Conventional Wisdom: The Montana Public Defender Act

Abstract: Since Gideon v. Wainwright, the United States Supreme Court has held that indigent defendants have a constitutional right to legal representation in state felony prosecutions. Forty years after Gideon, many indigent defense systems are in a state of crisis. Therefore, this Comment will examine one state 's complete overhaul of its indigent defense system from a disparate, locally controlled system to a statewide system based on nationally recognized standards of indigent defense. By examining the factors that led the Montana legislature to pass a Public Defender Act, this Comment will shed light on ways activists concerned with indigent defense should use their limited resources. It will show that while litigation alone is not enough to bring transformative change, litigation can be the catalyst for change.