{"title":"JUVENILE JUSTICE AND STRATEGIES TO CONTROL YOUTH VIOLENCE : IS THERE A CONFLICT ?","authors":"Thomas F. Geraghty","doi":"10.2307/3491377","DOIUrl":"https://doi.org/10.2307/3491377","url":null,"abstract":"","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2017-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/3491377","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"69210183","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn Cameras affect police–public interactions in large police departments remains unknown, as does their effect on other outcomes, such as arrests. With one Denver police district serving as the treatment area and five other districts within a large metropolitan area serving as comparisons, we offer mixed findings as in the Rialto Experiment, not least in terms of effect magnitudes. Adjusted odds-ratios suggest a significant 35% lower odds for citizens’ complaints against the police use of force, but 14% greater odds for a complaint against misconduct, when Body Worn Cameras are used. No discernable effect was detected on the odds of use of force at the aggregate, compared to control conditions (OR=0.928; p>0.1). Finally, arrest rates dropped significantly, with the odds of an arrest when Body Worn Cameras not present is 18% higher than the odds under treatment conditions. The outcomes are contextualized within the framework of reactive emergency calls for service rather than proactive policing. We further discuss officers’ decisions and the degree of the necessity of arrest in policing more broadly, because the burden of proof for tangible evidence necessary for making a legal arrest can be challenged with the evidence produced by Body Worn Cameras: officers become “cautious” about arresting suspects when Body Worn Cameras are present. Limitations associated with the lack of randomly assigned comparison units are discussed, as well, with practical recommendations for future research on Body Worn Cameras.
{"title":"Police Body Cameras in Large Police Departments","authors":"B. Ariel","doi":"10.17863/CAM.12683","DOIUrl":"https://doi.org/10.17863/CAM.12683","url":null,"abstract":"Body Worn Cameras are spreading worldwide, under the assumption that police performance, conduct, accountability, and legitimacy, in the eyes of the public, are enhanced as a result of using these devices. In addition, suspects’ demeanor during police–public engagements is hypothesized to change as a result of the video-recording of the encounter. For both parties—officers and suspects—the theoretical mechanism that underpins these behavioral changes is deterrence theory, self-awareness theory, or both. Yet evidence on the efficacy of Body Worn Cameras remains largely anecdotal, with only one rigorous study, from a small force in Rialto, California, validating the hypotheses. How Body Worn Cameras affect police–public interactions in large police departments remains unknown, as does their effect on other outcomes, such as arrests. With one Denver police district serving as the treatment area and five other districts within a large metropolitan area serving as comparisons, we offer mixed findings as in the Rialto Experiment, not least in terms of effect magnitudes. \u0000 \u0000Adjusted odds-ratios suggest a significant 35% lower odds for citizens’ complaints against the police use of force, but 14% greater odds for a complaint against misconduct, when Body Worn Cameras are used. No discernable effect was detected on the odds of use of force at the aggregate, compared to control conditions (OR=0.928; p>0.1). Finally, arrest rates dropped significantly, with the odds of an arrest when Body Worn Cameras not present is 18% higher than the odds under treatment conditions. The outcomes are contextualized within the framework of reactive emergency calls for service rather than proactive policing. We further discuss officers’ decisions and the degree of the necessity of arrest in policing more broadly, because the burden of proof for tangible evidence necessary for making a legal arrest can be challenged with the evidence produced by Body Worn Cameras: officers become “cautious” about arresting suspects when Body Worn Cameras are present. Limitations associated with the lack of randomly assigned comparison units are discussed, as well, with practical recommendations for future research on Body Worn Cameras.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2016-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67572180","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Inspired by the Innocence Movement, the American Bar Association has approved an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new Standard imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent or wrongfully convicted. The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in innocence cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel’s obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads. In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?This Article - the first scholarship to discuss the Innocence Standard - examines how the innocence movement’s influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges and juries: defense counsel’s primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.
{"title":"The Long Goodbye: After the Innocence Movement, Does the Attorney-Client Relationship Ever End?","authors":"L. Bazelon","doi":"10.2139/ssrn.2764499","DOIUrl":"https://doi.org/10.2139/ssrn.2764499","url":null,"abstract":"Inspired by the Innocence Movement, the American Bar Association has approved an unprecedented new obligation on defense counsel in the form of an “Innocence Standard.” This new Standard imposes an affirmative “duty to act” upon criminal defense attorneys who learn of newly discovered evidence that a former client may be innocent or wrongfully convicted. The new Standard, while well-intentioned, reconceives the traditional defense attorney function, creating an ethical parity between prosecutors and defense attorneys in innocence cases while overlooking the fact that the two sides play distinct and incompatible roles in our adversarial system. While prosecutors must to seek the truth and administer justice, defense counsel’s obligation is to zealously defend her current client. The Innocence Standard has the unintended effect of potentially destabilizing that primary and paramount relationship. It may require counsel to place the interests of a former client above those of a current client. It may expose counsel to allegations of ineffective assistance in the representation of the former client. And, perhaps most importantly, it may require labor-intensive, complex work that will draw scarce resources away from current clients because most defense attorneys are already under-resourced and staggering under excessive caseloads. In an ideal world, every defense attorney would embrace the work of freeing a wrongfully convicted former client, but in the real world, is it practicable to demand that they do so and fair to suggest that they are unethical if they do not?This Article - the first scholarship to discuss the Innocence Standard - examines how the innocence movement’s influential emphasis on accuracy may be eroding other important values and aims served by the adversarial process. The Innocence Standard asks defense counsel to serve two masters, her client and the truth. The creation of this dual obligation conflicts with centuries of defense tradition and decades of well-established doctrine. The truth-seeking function has traditionally rested with prosecutors, judges and juries: defense counsel’s primary obligation has always been to zealously represent her present-day client. Shifting the truth-seeking burden onto defense counsel after her representation of a client has ended threatens to erode the adversarial system, the historical loyalties of defense counsel, and the meaning of zealous advocacy.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2016-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68301769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment demands neither that federal officers generally use warrants for searching and seizing nor that federal officers act pursuant to a general reasonableness standard. Rather, the Local Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures.
{"title":"The Local-Control Model of the Fourth Amendment","authors":"M. Mannheimer","doi":"10.2139/SSRN.2721014","DOIUrl":"https://doi.org/10.2139/SSRN.2721014","url":null,"abstract":"Fourth Amendment doctrine has been home to two competing models: the Warrant Model and the Reasonableness Model. The Warrant Model, emphasizing the Amendment’s Warrant Clause, holds that search and arrest via warrant is the preferred method and the default rule, though allowing for exceptions when obtaining a warrant is impracticable. The Reasonableness Model, which stresses the Amendment’s Reasonableness Clause, holds that the Amendment imposes a generalized reasonableness standard on searches and seizures by which the question is not whether dispensing with a warrant is reasonable but whether the search or seizure itself is reasonable. These polar positions have been replicated in the scholarly literature on the history surrounding the adoption of the Fourth Amendment. Some adhere to a reading of the historical record that roughly supports the Warrant Model while others have found that history more strongly supports the Reasonableness Model.This Article interprets the historical record differently than either of the two dominant schools, and introduces a third model of the Fourth Amendment: the Local-Control Model. It situates the Fourth Amendment as the culmination of a decades-long, continent-wide struggle by Americans for local control over search-and-seizure policy as against central authority. And it posits the Fourth Amendment as the result of an effort on the part of the Anti-Federalists, those who demanded a Bill of Rights, to maintain local control over search-and-seizure policy. On this view, the Fourth Amendment demands neither that federal officers generally use warrants for searching and seizing nor that federal officers act pursuant to a general reasonableness standard. Rather, the Local Control Model supports the view that federal officers must generally follow state law in conducting searches and seizures.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2016-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68273210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Parental incarceration has been found to be associated with a wide range of negative outcomes in both childhood and adolescence. This Article uses data from the National Longitudinal Study of Adolescent Health (Add Health) to focus on the conditions under which associations of paternal incarceration with adolescent delinquency and depression are strongest. Paternal incarceration is most consistently and positively associated with adolescent delinquency. Associations of paternal incarceration with adolescent depression are weaker and more contingent on gender and other moderating factors. One important moderator is the respondent's retrospective reports that he or she was physically or sexually abused by a parent or other adult caregiver during childhood. For example, in the absence of sexual abuse, paternal incarceration is associated with higher depression among girls. When coupled with reports of sexual abuse, in contrast, paternal incarceration is not associated with girls' depression, suggesting a potential protective effect. The child having ever coresided with his or her father is also found to moderate associations, with paternal incarceration most strongly associated with delinquency and depression among girls who had ever coresided with their fathers. Examination of the duration and timing of paternal incarceration also pointed to gender differences.
{"title":"Paternal Incarceration and Adolescent Well-Being: Life Course Contingencies and Other Moderators.","authors":"Raymond R Swisher, Unique R Shaw-Smith","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>Parental incarceration has been found to be associated with a wide range of negative outcomes in both childhood and adolescence. This Article uses data from the National Longitudinal Study of Adolescent Health (Add Health) to focus on the conditions under which associations of paternal incarceration with adolescent delinquency and depression are strongest. Paternal incarceration is most consistently and positively associated with adolescent delinquency. Associations of paternal incarceration with adolescent depression are weaker and more contingent on gender and other moderating factors. One important moderator is the respondent's retrospective reports that he or she was physically or sexually abused by a parent or other adult caregiver during childhood. For example, in the absence of sexual abuse, paternal incarceration is associated with higher depression among girls. When coupled with reports of sexual abuse, in contrast, paternal incarceration is not associated with girls' depression, suggesting a potential protective effect. The child having ever coresided with his or her father is also found to moderate associations, with paternal incarceration most strongly associated with delinquency and depression among girls who had ever coresided with their fathers. Examination of the duration and timing of paternal incarceration also pointed to gender differences.</p>","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2015-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4883585/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"34528263","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration. For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration. Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole. It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it. This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment. While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation. To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways. First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.
{"title":"Rethinking the Use of Community Supervision","authors":"Cecelia M. Klingele","doi":"10.2139/SSRN.2232078","DOIUrl":"https://doi.org/10.2139/SSRN.2232078","url":null,"abstract":"Community supervision, whether in the form of probation or post-release supervision, is ordinarily framed as an alternative to incarceration. For this reason, legal reformers intent on reducing America's disproportionately high incarceration rates often urge lawmakers to expand the use of community supervision, confident that diverting offenders to the community will significantly reduce over-reliance on incarceration. Yet, on any given day, a significant percentage of new prisoners arrive at the prison gates not as a result of sentencing for a new crime, but because they have been revoked from probation or parole. It is therefore fair to say that in many cases community supervision is not an alternative to imprisonment, but only a delayed form of it. This Article examines the reasons why community supervision so often fails, and challenges popular assumptions about the role community supervision should play in efforts to reduce over-reliance on imprisonment. While probation and post-release supervision serve important purposes in many cases, they are often imposed on the wrong people, and executed in ways that predictably lead to revocation. To decrease the overuse of imprisonment, sentencing and correctional practices should therefore limit, rather than expand, the use of community supervision in three important ways. First, terms of community supervision should be imposed in fewer cases, with alternatives ranging from fines to unconditional discharge to short jail terms imposed instead. Second, conditions of probation and post-release supervision should be imposed sparingly, and only when they directly correspond to a risk of re-offense. Finally, terms of community supervision should be limited in duration, extending only long enough to facilitate a period of structured re-integration after sentencing or following a term of incarceration.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2013-03-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68011777","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases. Simply put, vague criminal statutes are not inherently ambiguous. Instead of offering a choice between two meanings, they are indefinite, uncertain, and unclear. And, it is not the potential meanings of the vague statute that create constitutional problems; there is only a constitutional problem if there is no ascertainable meaning. Part I of this article explores the justifications for the canon of constitutional avoidance. In Part II, this article describes the Court’s void-for-vagueness doctrine and its use of the avoidance canon to circumvent the vagueness question in Skilling. Part III argues that the use of the avoidance canon in Skilling was improper, and explains why it is not an appropriate vehicle to respond to void-for-vagueness constitutional challenges to federal criminal statutes. Part IV explores the negative theoretical and practical consequences of applying the avoidance canon to potentially vague statutes. Finally, Part V concludes the article by outlining a model for applying the avoidance canon to other constitutional questions involving criminal statutes,
就在两个任期前，在美国诉斯基林案(United States v. Skilling)中，最高法院在回应一项针对联邦刑事欺诈法的“因模糊而无效”的质疑时，使用了回避准则。如下文所述，法院严格限制了规约的含义，将其对“剥夺诚实服务”的禁止限于贿赂和回扣。本文认为，与法院在斯基林案中的判决相反，宪法回避的准则在因模糊而无效的案件中是不合适的。这是因为此类案件不存在法定歧义，需要在相互竞争的含义或解释之间进行选择。相反，“因模糊而无效”的挑战涉及的法规要么具有宪法上明确的含义(并且不是因模糊而无效)，要么没有宪法上明确的含义(并且因模糊而无效)。换句话说，该条声称，在“因模糊而无效”的案件中，没有法定模糊性- -一种解释符合宪法，另一种解释表明宪法的弱点- -使得在这种情况下使用回避准则是不恰当的。简单地说，模糊的刑事法规本身并不是模棱两可的。它们不是在两种意思之间提供选择，而是不确定、不确定和不清楚。而且，造成宪法问题的并不是模糊法规的潜在含义;如果没有可确定的意义，这只是一个宪法问题。本文第一部分探讨了宪法回避原则的正当性。在第二部分中，本文描述了法院对模糊的无效原则及其对回避准则的使用，以规避斯基林案中的模糊问题。第三部分认为，在斯基林案中使用回避准则是不恰当的，并解释了为什么它不是一个适当的工具，以回应宪法对联邦刑事法规的模糊无效的挑战。第四部分探讨了将回避准则应用于潜在模糊法规的消极理论和实践后果。最后，第五部分对文章进行总结，概述了将回避准则应用于涉及刑事法规的其他宪法问题的模式。
{"title":"Criminal Constitutional Avoidance","authors":"William W. Berry","doi":"10.2139/ssrn.2214807","DOIUrl":"https://doi.org/10.2139/ssrn.2214807","url":null,"abstract":"Just two terms ago in United States v. Skilling, the Supreme Court used the avoidance canon in response to a void-for-vagueness challenge to the federal criminal fraud statute. As explained below, the Court severely restricted the statute’s meaning, limiting its proscription against “deprivation of honest services” to bribery and kickbacks.This article argues that, contrary to the Court’s decision in Skilling, the canon of constitutional avoidance is inappropriate in void-for-vagueness cases. This is because such cases do not present a statutory ambiguity that requires choosing between competing meanings or interpretations. Instead, void-for-vagueness challenges concern statutes that either have a constitutionally clear meaning (and are not void-for-vagueness) or do not have a constitutionally clear meaning (and are void for vagueness). In other words, this article claims that the absence of statutory ambiguity — one interpretation that complies with the Constitution and one interpretation that indicates constitutional infirmities — in void-for-vagueness cases makes the use of the avoidance canon improper in such cases. Simply put, vague criminal statutes are not inherently ambiguous. Instead of offering a choice between two meanings, they are indefinite, uncertain, and unclear. And, it is not the potential meanings of the vague statute that create constitutional problems; there is only a constitutional problem if there is no ascertainable meaning. Part I of this article explores the justifications for the canon of constitutional avoidance. In Part II, this article describes the Court’s void-for-vagueness doctrine and its use of the avoidance canon to circumvent the vagueness question in Skilling. Part III argues that the use of the avoidance canon in Skilling was improper, and explains why it is not an appropriate vehicle to respond to void-for-vagueness constitutional challenges to federal criminal statutes. Part IV explores the negative theoretical and practical consequences of applying the avoidance canon to potentially vague statutes. Finally, Part V concludes the article by outlining a model for applying the avoidance canon to other constitutional questions involving criminal statutes,","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2013-02-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67998089","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance is for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, the Supreme Court unanimously rejected that position. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this Article develops a regulatory regime for law enforcement visual surveillance, technologically enhanced location surveillance, and access to historic location records (e.g., cell site data). The proposal handles the administrative difficulties inherent in so-called mosaic approaches via a generally permissive regime regulated through an abuse standard. Ideally, such a proposal would be legislatively enacted with the backdrop of constitutional judicial review, and the Article comments upon the need for constructive dialogue and initiative in that process by the law enforcement community, a view influenced by six years serving as Reporter for the ABA Standards.
在“美国诉琼斯案”(United States v. Jones)中，政府采取了极端立场:就联邦宪法而言，执法部门可以在没有理由或限制的情况下，在整整一个月的时间里，秘密地用电子设备跟踪任何美国人的活动。根据政府的说法，无论监视是出于正当理由、令人反感的理由，还是没有理由，第四修正案都不受影响。幸运的是，最高法院一致否决了这一立场。然而，法院没有解决第四修正案对地点监视的限制或限制，这反映了在这一微妙和困难的领域中适当的司法限制。本文利用新颁布的美国律师协会(ABA)关于执法人员获取第三方记录的标准，为执法人员的视觉监视、技术增强的位置监视和访问历史位置记录(例如，手机站点数据)制定了监管制度。该建议通过一种普遍允许的制度，通过一项滥用标准加以管制，来处理所谓镶嵌方法所固有的行政困难。理想情况下，这样的建议将在宪法司法审查的背景下通过立法颁布，该条款评论了执法界在这一过程中进行建设性对话和主动行动的必要性，这一观点受到我担任美国律师协会标准记者六年的影响。
{"title":"Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach","authors":"S. Henderson","doi":"10.2139/SSRN.2195289","DOIUrl":"https://doi.org/10.2139/SSRN.2195289","url":null,"abstract":"In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance is for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, the Supreme Court unanimously rejected that position. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this Article develops a regulatory regime for law enforcement visual surveillance, technologically enhanced location surveillance, and access to historic location records (e.g., cell site data). The proposal handles the administrative difficulties inherent in so-called mosaic approaches via a generally permissive regime regulated through an abuse standard. Ideally, such a proposal would be legislatively enacted with the backdrop of constitutional judicial review, and the Article comments upon the need for constructive dialogue and initiative in that process by the law enforcement community, a view influenced by six years serving as Reporter for the ABA Standards.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67978926","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Despite the multi-dimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutor case handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience. In this article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps to produce. In addition to understanding the office’s explicit policies, new prosecutors must discover the unwritten social rules, norms and language of the profession. These informal instructions do more than simply define how a prosecutor acts; they define who a prosecutor is. Our account of prosecution also explains how different dimensions of the role interact. The structure of a prosecutor’s office helps determine the professional identity of the attorneys who work there; that identity, in turn, has the capacity to powerfully shape the prosecutor’s outputs. To investigate this third dimension of criminal prosecution at the state level, we conducted semi-structured interviews with misdemeanor and drug prosecutors in three offices during calendar year 2010. Our discussion here focuses on two particular features of office structure – the hierarchical shape of the organization’s workforce and the hiring preference for experience – to examine differences they can make in a prosecutor’s professional self-image, particularly her orientation towards autonomy. The prosecutor’s basic attitude toward autonomy (or, conversely, the team) produces ripple effects on her career trajectory, her relationships with other lawyers and police, and the value she places on achieving consistency across cases. By viewing prosecution through this lens, we hope to offer managers of a prosecutor’s office a greater understanding of their choices, and to give the public deeper insight about the work done in their name in the criminal courts.
{"title":"Prosecution in 3-D","authors":"Kay L. Levine, R. Wright","doi":"10.2139/SSRN.2013540","DOIUrl":"https://doi.org/10.2139/SSRN.2013540","url":null,"abstract":"Despite the multi-dimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutor case handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience. In this article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps to produce. In addition to understanding the office’s explicit policies, new prosecutors must discover the unwritten social rules, norms and language of the profession. These informal instructions do more than simply define how a prosecutor acts; they define who a prosecutor is. Our account of prosecution also explains how different dimensions of the role interact. The structure of a prosecutor’s office helps determine the professional identity of the attorneys who work there; that identity, in turn, has the capacity to powerfully shape the prosecutor’s outputs. To investigate this third dimension of criminal prosecution at the state level, we conducted semi-structured interviews with misdemeanor and drug prosecutors in three offices during calendar year 2010. Our discussion here focuses on two particular features of office structure – the hierarchical shape of the organization’s workforce and the hiring preference for experience – to examine differences they can make in a prosecutor’s professional self-image, particularly her orientation towards autonomy. The prosecutor’s basic attitude toward autonomy (or, conversely, the team) produces ripple effects on her career trajectory, her relationships with other lawyers and police, and the value she places on achieving consistency across cases. By viewing prosecution through this lens, we hope to offer managers of a prosecutor’s office a greater understanding of their choices, and to give the public deeper insight about the work done in their name in the criminal courts.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2012-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2013540","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67852497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. This article discusses the study, which involved dozens of college students and took place over several months. The study revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.
{"title":"The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem","authors":"Lucian E. Dervan, Vanessa A Edkins","doi":"10.2139/SSRN.2071397","DOIUrl":"https://doi.org/10.2139/SSRN.2071397","url":null,"abstract":"In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty. That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. This article discusses the study, which involved dozens of college students and took place over several months. The study revealed that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem. The article also discusses the history of bargained justice and examines the constitutional implications of the study’s results on plea bargaining, an institution the Supreme Court reluctantly approved in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.","PeriodicalId":47821,"journal":{"name":"Journal of Criminal Law & Criminology","volume":null,"pages":null},"PeriodicalIF":1.8,"publicationDate":"2012-05-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2071397","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67900895","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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