Showing papers in "Journal of Criminal Law & Criminology in 2011"

Understanding the Antecedents of the "School-to-Jail" Link: The Relationship Between Race and School Discipline

Abstract: the relationship between a lack of school success, school disengagement, and involvement in the criminal justice system. This link has been deemed the "school-to-jail pipeline." To date, research has not clarified the antecedents or origins of this school failure and disengagement, although it is known that it occurs at relatively young ages. This study examines one possible source: racial bias in school discipline experienced during the elementary school years. Using a multi-level analysis, we examine whether African-American elementary school students are more likely to receive disciplinary infractions while controlling for individual-level, classroom level, and school-level factors. Our findings, robust across several models, show that African-American children receive more disciplinary infractions than children from other racial categories. Classroom factors, school factors, and student behavior are not sufficient to account for this finding. We also find that school-level characteristics (e.g., percentage of black students) are related to overall discipline levels, consistent with a racial threat hypothesis. These findings have important implications for the school-to-jail literature and may point to one explanation for why minority

American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative

Abstract: As victimization rates have fallen, public preoccupation with policing and its crime-control impact has receded. Terrorism has become the new focal point of concern. But satisfaction with ordinary police practices hides deep problems. The time is therefore ripe for rethinking the assumptions that have guided American police for most of the past two decades. This Article proposes an empirically-grounded shift to what we call a procedural justice model of policing. When law enforcement moves toward this approach, it can be more effective at lower cost and without the negative side effects that currently hamper responses to terrorism and conventional crime. This Article describes the procedural justice model, explains its theoretical and empirical foundations, and discusses its policy implications, both for ordinary policing and for efforts to combat international terrorism.

Sex Trafficking and the Sex Industry: The Need for Evidence-Based Theory and Legislation

Abstract: The author focuses on the need for evidence requirements for sex trafficking crimes in U.S. criminal justice administration. The article discusses the oppression paradigm perpetuated by the 'mythology of sex trafficking' and the polymorphous paradigm of sexual commerce. Topics include the domination and exploitation of women, the structural conditions that facilitate sex trafficking, and oppression theories of prostitution. Information is provided on the classification of sex trafficking as a pandemic in the U.S. Keywords: Human trafficking

"No" Still Means "Yes": The Failure of the "Non-Consent" Reform Movement in American Rape and Sexual Assault Law

Abstract: New Haven, Conn. Yale fraternity’s sexist chants A Yale University fraternity that counts both Bush presidents among its alumni has apologized after a video surfaced on YouTube showing prospective fraternity members marching through campus chanting obscenities in what a woman’s group called “an active call for sexual violence.” Pledges to Delta Kappa Epsilon (DKE), which boasts “the maintenance of gentlemanly dignity” as one of its founding objectives, chanted phrases including “No means yes, yes means anal” during the campus march. DKE later publicly apologized in a forum arranged by

Mental Disorder and Criminal Law

Abstract: Mental disorder among criminal defendants affects every stage of the criminal justice process, from investigational issues to competence to be executed. As in all other areas of mental health law, at least some people with mental disorders, are treated specially. The underlying thesis of this Article is that people with mental disorder should, as far as is practicable and consistent with justice, be treated just like everyone else. In some areas, the law is relatively sensible and just. In others, too often the opposite is true and the laws sweep too broadly. I believe, however, that special rules to deal with at least some people with mental disorder are justified because they substantially lack rational capacity. Treating people with mental disorder specially is a two-edged sword. Failing to do so when it is appropriate is unjust, but the opposite is demeaning, stigmatizing, and paternalistic. The central normative question is when special treatment is justified.This Article will focus mainly on United States Supreme Court cases to review the current state of the law, with special attention to the contexts in which preventive detention is an issue. It makes no pretense to covering every issue, to providing a complete analysis of these cases, or to comprehensive coverage of all the arguments concerning the issues raised. The Court’s cases are simply a vehicle for organizing the overview. The goal is to explore what I consider the most just approach in each area. In some cases, my preferences are foreclosed by constitutional constraints; in others, the preferred approach could be achieved by statute or by state supreme court decisions.

Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship

Abstract: When judges sentence people to prison, and when prison administrators determine visitation policies, minor children are often ignored.1 This is not an obscure issue but rather has significant, daily ramifications for a generation of American youth. As incarceration rates have spiraled by over 500% in the last thirty years,2 so have the number of children who have lost parents to the prison system.3 In fact, in the United States, there are more children with incarcerated parents than there are people in prison.4 Incarcerating parents of minor children is not just an issue for those sentenced to prison; the practice also generates third party harms for the children, their caregivers, the welfare apparatus of the state,

The Devastating Impact of Prior Crimes Evidence and Other Myths of the Criminal Justice Process

Abstract: We concur in the general opinion of courts, textwriters and the profession that much of this law [concerning exclusion of evidence of prior crimes] is archaic, paradoxical and full of compromises and compensations by which an irrational advantage to one side is offset by a poorly reasoned counterprivilege to the other. . . . [Nonetheless] [t]o pull one misshapen stone out of the grotesque structure is more likely simply to upset its present balance between adverse interests than to establish a rational edifice.

Sex Offender Exceptionalism and Preventative Detention

Abstract: At the end of his thirty-seven-month prison sentence for possessing child pornography, Graydon Earl Comstock, Jr. expected to be released back into society. However, the federal government had other plans. It decided to test its newly authorized power to detain indefinitely persons designated as "sexually dangerous" who were already in federal custody.' Comstock's lawyers acted quickly to block the Government's efforts to essentially add a second period of incarceration to Comstock's prison term.2 A federal district judge held that the new statute was beyond the scope of the Constitution's enumerated powers and the established procedures for determining Comstock's future dangerousness were constitutionally inadequate.3 The Fourth Circuit reviewed the Government's appeal and unanimously affirmed the district court's judgment concerning the scope of federal power (while not reaching the due process question).4 During this entire period of time, Comstock remained in federal prison even though his sentence was completed and not a single judge who had reviewed the case had found the government was constitutionally authorized to detain him via the new civil commitment statute. While the United States Attorneys waited for the Supreme Court to issue a writ of certiorari to hear the case, they sought a special order from the Court.5 The Government's lawyers

Policing the Ratings Agencies: The Case for Stronger Criminal Disincentives in the Credit Rating Market

Abstract: The purpose of this Comment is to evaluate how criminal disincentives affect the credit ratings agencies. The Comment explores how the criminal law influenced the behavior of the ratings agencies before and during the subprime collapse and the credit crisis. The failures of the ratings agencies have led to a widespread push for regulatory reform, but the possibility of a targeted criminal law has been largely absent from the scholarly and political discourse. This Comment examines why there have been no criminal prosecutions against actors at the ratings agencies, particularly in light of their heavily criticized role in the credit crisis. In finding criminal liability difficult to establish under the existing law, this Comment suggests that a tailored criminal law targeting the ratings agencies would provide a justifiable and powerful control mechanism for high-risk misconduct. Although strict civil laws could similarly deter misconduct, compliance with and enforcement of civil regulations would be inefficient and expensive.

Racial Discrimination in the Administration of the Death Penalty: the Experience of the United States Armed Forces (1984-2005)

Abstract: This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period. Over the last thirty years, studies of state death-penalty systems have documented three types of evidence of racial disparities in the treatment of similarly situated death-eligible offenders. The most common disparity or “race effect” is that capital charging and sentencing decisions are applied more punitively in cases involving one or more white victims than they are in similar cases with no white victims. These disparities are generally viewed as evidence of “race of victim” discrimination in the system. The next most common race-based disparity is the more punitive treatment of cases involving a black or minority defendant and one or more white victims compared to the treatment of cases involving all other similarly situated defendant/victim racial combinations. These disparities are viewed as evidence of “minority-defendant/white-victim” discrimination in the system. The least common racially based disparity is the more punitive treatment of cases involving black and minority defendants compared to the treatment of similarly situated white-defendant cases, regardless of the race of the victim involved in the case. These race effects are usually referred to as evidence of “independent” or “main effect” racial discrimination. The data in this study document white-victim and minority-accused/white-victim disparities in charging and sentencing outcomes that are consistent with these findings. The data also document independent minority-accused disparities of a magnitude that is rarely seen in state court systems. The principal source of the white-victim disparities in the system is the combined effect of convening authority charging decisions and court-martial panel findings of guilt at trial — decisions that advance death-eligible cases to capital sentencing hearings. The principal source of the independent minority-accused disparities in the system is the death-sentencing decisions of panel members in capital sentencing hearings.

Deadly Dilemmas III: Some Kind Words for Preventive Detention

Abstract: "Preventive detention" is a phrase guaranteed to provoke moral indignation on the part of many citizens and legal experts alike, leading to charges that it is un-American and caustic to our traditional legal and moral values.1 Preventive detention appears to its critics to involve, among other things, an egregious short-circuiting of the traditional legal doctrine that the state is justified in apprehending and incarcerating its citizens only when there is probable cause to believe that such persons have either harmed others, or come very close to doing so, with only a small space for restraining someone preventively. By contrast, preventive detention envisages the arrest, conviction, and punishment of persons, not because of grievous harms they have actually committed or risks of grievous harm they have already imposed on others but because of suspicions that—left to their

A Law of Passion, Not of Principle, Nor Even Purpose: A Call to Repeal or Revise the Adam Walsh Act Amendments to the Bail Reform Act of 1984

Abstract: The Bail Reform Act of 1984 lays out the rules and procedures for federal pretrial release and detention. In 2006, as part of the Adam Walsh Child Protection and Safety Act, Congress amended the Bail Reform Act. Before the Adam Walsh Act Amendments (A WA Amendments) were passed, a judicial officer decided whether to release a defendant, whether to impose pretrial release conditions, and what pretrial release conditions to impose on a case-by-case basis. The AW A Amendments, in contrast, impose mandatory pretrial release conditions, including electronic monitoring and curfew, on all defendants charged with certain enumerated sexual offenses against children. Many district courts have found mandatory imposition of pretrial release conditions unconstitutional and refuse to apply the AWA Amendments when setting bail. This Comment argues that Congress must repeal or revise the AWA Amendments to the Bail Reform Act of 1984 because they are unconstitutional under the Excessive Bail and Due Process Clauses, are completely inconsistent with the Bail Reform Act's core principle of individualized judicial determination of bail, and come at a great cost to the defendant at little or no additional benefit to the public. This Comment proposes that the AWA Amendments be revised so that certain pretrial release conditions are imposed based on a rebuttable presumption instead

Ten Angry Men: Unanimous Jury Verdicts in Criminal Trials and Incorporation after McDonald

Abstract: Any American who has watched a legal drama on television or in film would assume that a criminal conviction can occur only if a jury of twelve persons votes unanimously' But, as with most assumptions about the legal world, this one is incorrect; it is wholly constitutional for an accused to be convicted of a crime without twelve guilty votes2 In criminal trials, the Constitution requires neither that the jury be comprised of twelve persons3 nor that the vote be unanimous4

The Criminalization of Lying: Under What Circumstances, If Any, Should Lies Be Made Criminal?

Abstract: This paper argues that lying should be a crime. In doing so we propose the creation of a wholly new category of crime, which we term “egregious lying causing serious harm.” The paper has two broad objectives: the first is to make the case why such a crime should even exist, and the second is to flesh out how this crime might be constructed. The main contribution of the paper lies in the radical nature of its stated aim: the outright criminalization of certain kinds of lies. To our knowledge, such a proposal has not previously been made. The analysis also contributes to a broader discussion regarding the issue of overcriminalization. We conclude that while criminalizing certain forms of lies might at first blush appear fanciful, the case for doing so is not only plausible, it is indeed necessary. BOCCONI SCHOOL OF LAW STUDENT-EDITED PAPERS PAPER NO. 2011-06/EN THIS PAPER CAN BE DOWNLOADED WITHOUT CHARGE FROM BOCCONI LEGAL PAPERS WWW.BOCCONILEGALPAPERS.ORG *This paper was originally published in 101 JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 529 (2011) BOCCONI SCH. L. STUDENT-ED. PAPERS, PAPER NO. 2011-06/EN 2 2 THE CRIMINALIZATION OF LYING: UNDER WHAT CIRCUMSTANCES, IF ANY, SHOULD LIES BE MADE CRIMINAL?

A Lie is a Lie: An Argument for Strict Protection Against a Prosecutor’s Knowing Use of Perjured Testimony

Abstract: Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden servant of the law to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction in court. 1

Criminalizing Statements of Terrorist Intent: How to Understand the Law Governing Terrorist Threats, and Why It Should Be Used Instead of Long-Term Preventive Detention

Abstract: What ought we, as a liberal society, to do with members of our society who have stated their intention to commit terrorist attacks? Preventively detain them to ensure that they don’t have the opportunity to act on that intention? Monitor them with the goal of catching them, hopefully before they do any harm, in a criminal act for which they can be prosecuted and, if convicted, imprisoned? Or prosecute them for having stated that intention? I argue for the last option, which can be pursued by prosecuting them for threatening to commit terrorist acts.This is not legally controversial, but it is nonetheless philosophically problematic. The doctrine concerning threat law is a mess, and has failed to clearly distinguish the crime that concerns causing fear and disruption from the crime that concerns having the intention to commit the ultimate crime. But the distinction can be made and defended. Forming the intention to commit a criminal act is at the core of all criminal liability, especially inchoate crimes. And while the crime of stating the intention to commit unlawful, violent acts pushes the outer limits of the idea of an inchoate crime, it does not surpass those limits. As long as the ultimate crime is sufficiently serious, and the prospects for deterrence sufficiently low, there is reason to have such an inchoate crime. Those conditions are met when dealing with politically or religiously motivated terrorist crime.

Everybody's Got a Price: Why Orange County's Practice of Taking DNA Samples from Misdemeanor Arrestees Is an Excessive Fine

Abstract: Charlie Wolcott was citcd in May 2009 for allegedly trespassing on railroad property in Orange County, California.' Mr. Wolcott, a war veteran, had no prior arrests.2 At his hearing, he hoped to tell the judge that the "No Trespassing" sign was yards away and that he was simply walking through the property as a shortcut.3 Moments before his hearing, however, a deputy district attorney pulled him into a soundproof room and offered him a deal: the county would drop the charges if Wolcott agreed to submit a DNA sample.4 Orange County is the only county in California to maintain its own DNA database aside from the official California state DNA database.5 This independence allows the county to work outside of the rules in place governing the federal and state DNA databases/' Unlike the state and federal DNA databases, which were created by statute and contain various procedural safeguards, the county database was created and is managed by the district attorney's office.7

Contemporary Prosecutions of Civil Rights Era Crimes: An Argument Against Retroactive Application of Statute of Limitations Amendments

Abstract: Racial tensions in the South and especially those in Mississippi boiled over in the summer of 1964, partly as a result of the convergence of the Freedom Summer volunteers on the state and the imminent passage of the Civil Rights Act of 1964.' One newspaper account described Mississippi as a "besieged fortress" where "[cjrosses were burned in 64 of the state's 82 counties the night of April 24."2 Pervasive racism also infiltrated many levels of state government, which included both non-violent, silent support and violent, public support of racial segregation in public schools and public accommodations.3 Partially as a response to the perceived equalization of the races, the Ku Klux Klan received significant support not just from ordinary citizens, but also from sympathizers entrenched within certain state and local law enforcement agencies. These embedded Klan sympathizers "provided both protection against prosecution and the appearance that Klan activities—to some extent—were conducted under color of state law."4

Bark with No Bite: How the Inevitable Discovery Rule Is Undermining the Supreme Court's Decision in Arizona V. Gant

Abstract: In 2009, the Supreme Court issued its decision in Arizona v. Gant, in which it significantly limited the search incident to arrest exception in the automobile search context. Despite what many experts predicted, Gant did not open the floodgates of evidence suppression. This is because the Gant holding is substantially undermined by the inevitable discovery rule, under which otherwise illegally-seized evidence is deemed admissible under certain circumstances. This article discusses why the Court's decision in Gant lacks real-world, practical effect, and how the Court can close the loophole in its Gant holding.

Representing Noncitizens in Criminal Proceedings: Resolving Unanswered Questions in Padilla V. Kentucky

Abstract: In Padilla v. Kentucky, the U.S. Supreme Court decided that an attorney is obligated to tell a noncitizen client that pleading guilty to a crime may result in the client's forced removal from the United States.1 The defendant, Jose Padilla, claimed that his counsel failed to advise him that choosing to plead guilty might result in his deportation. This failure, Padilla argued, violated his Sixth Amendment right to effective assistance of counsel.2 The Court agreed: "constitutionally competent counsel would have advised him that his conviction for drug distribution made him subject to automatic deportation."3 In reaching this conclusion, the Court reasoned that "[o]ur longstanding Sixth Amendment precedents, the seriousness of deportation as a risk of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less."4 Two major issues remain unresolved in the wake of this pivotal opinion. First, the Supreme Court did not say whether its decision should apply retroactively to cases on collateral review. To date, only three federal circuit courts have decided whether defendants whose convictions are final should be able to seek relief based on Padilla,5 As a result, most lower

The Supreme Court's Love-Hate Relationship with Miranda

Abstract: In recent years, the Supreme Court has enjoyed a love-hate relationship with its landmark decision in Miranda v. Arizona. While the Court has not hesitated to narrow Miranda’s reach, it has also been wary of deliberate efforts to circumvent it. This pragmatic approach to Miranda can be doctrinally unsatisfying and even incoherent at times, but it basically maintains the core structure of Miranda as the police have come to know and adapt to it. Last Term provided the first glimpse of the Roberts Court’s views on Miranda, as the Court considered three Miranda cases: Maryland v. Shatzer, Florida v. Powell, and Berghuis v. Thompkins. This Article examines each opinion through a pragmatic lens, with an eye towards ascertaining whether the Roberts Court remains committed to the pragmatic approach taken by its predecessors. While the government prevailed on every issue raised by the three cases, the opinions vary in their fidelity to pragmatic norms. The Article concludes that, even if Shatzer and Powell can be dismissed as effecting only incremental changes in the law – in the rules protecting those who invoke their Miranda rights, defining custody, and requiring that the warnings reasonably convey each of the rights Miranda guarantees – Thompkins cannot be defended on pragmatic grounds. In effect, the decision in Thompkins allows the police to begin interrogating a suspect immediately after reading the Miranda warnings, without first securing a waiver of the suspect’s Miranda rights, and then to use anything she says – even hours later – to demonstrate that she impliedly waived her rights. Thompkins thus essentially reduces Miranda to a mere formality, requiring that warnings be read and otherwise leaving criminal defendants with the same voluntariness due process test that Miranda was designed to replace. To the extent Thompkins signals a change in the Court’s attitude towards Miranda, it comes at a particularly critical time given reports that the Obama administration is considering proposing an exception to Miranda for terrorism suspects.

Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim's Role

Abstract: Scholars have long debated the best way to classify the affirmative defenses of necessity and duress. Necessity typically involves a defendant arguing that he committed the crime in order to avoid a greater evil created by natural forces. Duress usually entails a defendant arguing that he committed the crime in order to avoid unlawful physical threats made by a third party. Most scholars categorize duress as an excuse (wrongful conduct where the defendant is still found not culpable based upon mitigating circumstances) and necessity as a justification (warranted or encouraged conduct where the defendant is found not culpable), but their focus has been on state law and related jurisprudence. This Article makes an original contribution to the literature by presenting a theory for classifying these defenses that focuses entirely on the role of the victim in the criminal act and ultimately categorizes both defenses as excused acts. The Article consists of two parts. First, it surveys how federal courts have treated duress and necessity. They have applied similar standards both during the liability and sentencing phases of trial. Some courts actually have adopted a consolidated definition for these affirmative defenses. This treatment suggests that duress and necessity should be classified in the same way. The second part of the Article focuses on the conceptual framework behind classifying these defenses. In light of federal jurisprudence, we need to reexamine the methods criminal theorists have used to distinguish necessity and duress. Scholars typically focus their attention on the defendant and what he does. The prominent theories include appealing tothe type of harm the defendant causes, his particular state of mind, whether he deserves aid from another, whether his behavior conforms to a public norm, or whether his actions are warranted. However, none of these five approaches provides a comprehensive methodology that accurately captures the nature of duress and necessity. Nor do any of them preserve our intuitions when applied to other affirmative defenses such as self- defense and insanity. The problem is that theorists have focused too heavily on the defendant. In doing so, they have left out the victim—the central figure who suffers the harm. This Article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. The final part of the Article outlines an alternative theory that focuses entirely on the victim’s role in the crime. As the person who was harmed by the defendant’s conduct, the victim should be our focus when deciding whether the defendant’s conduct constitutes an excused or justified act. Where the victim played a direct role in what happened, the defendant’s action is better classified as a justification, and where the victim innocently suffered, the defendant’s action is better classified as an excuse. This focus on the victim’s culpability more accurately captures the intuitive difference between excuse and justification and explains why duress and necessity (particularly as used by federal courts) should be classified together as excused acts.