In "Are Police the Key to Public Safety?: The Case of the Unhoused," Barry Friedman argues that one of the problems with policing in the United States is that it encompasses too narrow a view of public safety. In the case of homelessness, this narrow view fails to understand that providing shelter and subsistence to the unhoused is providing them with a basic form of safety as well. By this view, enforcing most laws against the behaviors associated with homelessness is unjust because it penalizes people for seeking a form of personal security that the government should have provided them with. This Essay argues that while this concern should guide police conduct in many cases, it does not mean the police have no legitimate reason to regulate the behavior of homeless people using discretionary enforcement of the criminal law. Police are not only tasked with providing some conception of safety but have a mandate to equitably broker and enforce the cooperative use of a community's public spaces, which is a critical feature of democratic equality for both housed and unhoused people. Enforcing laws against the behaviors associated with homelessness should therefore be a balance between ensuring everyone has access to public spaces for various conceptions of recreation, transportation, expression, and commerce, and an awareness that even the most disruptive and uncooperative uses of public space by homeless people are a product of duress rather than choice. Both the housed and the unhoused have a legitimate claim on the commons, and while one is more urgent than the other, this does not mean the more urgent claim is an unrestricted one. Requirements of social cooperation may still apply to unhoused citizens, and when they do, it is the criminal law that empowers the police to broker and enforce them as necessary.1.
{"title":"\"ARREST ALL STREET MENDICANTS AND BEGGARS:\" HOMELESSNESS, SOCIAL COOPERATION, AND THE COMMITMENTS OF DEMOCRATIC POLICING.","authors":"Brandon Del Pozo","doi":"","DOIUrl":"","url":null,"abstract":"<p><p>In \"Are Police the Key to Public Safety?: The Case of the Unhoused,\" Barry Friedman argues that one of the problems with policing in the United States is that it encompasses too narrow a view of public safety. In the case of homelessness, this narrow view fails to understand that providing shelter and subsistence to the unhoused is providing them with a basic form of safety as well. By this view, enforcing most laws against the behaviors associated with homelessness is unjust because it penalizes people for seeking a form of personal security that the government should have provided them with. This Essay argues that while this concern should guide police conduct in many cases, it does not mean the police have no legitimate reason to regulate the behavior of homeless people using discretionary enforcement of the criminal law. Police are not only tasked with providing some conception of safety but have a mandate to equitably broker and enforce the cooperative use of a community's public spaces, which is a critical feature of democratic equality for both housed and unhoused people. Enforcing laws against the behaviors associated with homelessness should therefore be a balance between ensuring everyone has access to public spaces for various conceptions of recreation, transportation, expression, and commerce, and an awareness that even the most disruptive and uncooperative uses of public space by homeless people are a product of duress rather than choice. Both the housed and the unhoused have a legitimate claim on the commons, and while one is more urgent than the other, this does not mean the more urgent claim is an unrestricted one. Requirements of social cooperation may still apply to unhoused citizens, and when they do, it is the criminal law that empowers the police to broker and enforce them as necessary.<sup>1</sup>.</p>","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"54 4","pages":"1681-1696"},"PeriodicalIF":0.4,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9161507/pdf/","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"142127200","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"OA","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues. All of these issues, plus other significant issues, arose in Paroline v. United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images. In this article we critique the Justices’ opinions in Paroline as part of a broader discussion that is intended to clarify and distinguish the causation, injury, legal responsibility and allocation of liability issues in general and as applied in particular to situations involving mass sexual abuse, while also criticizing the Court’s ill-considered dicta that would make any compensatory award in civil as well as criminal cases subject to the Constitutional restrictions on criminal punishment.
{"title":"Liability for Mass Sexual Abuse","authors":"T. Keren-Paz, R. W. Wright","doi":"10.2139/SSRN.3141016","DOIUrl":"https://doi.org/10.2139/SSRN.3141016","url":null,"abstract":"When harm is caused to victims by multiple injurers, difficult issues arise in determining causation of, legal responsibility for, and allocation of liability for those harms. Nowhere is this more true than in child pornography and sex trafficking cases, in which individuals have been victimized over extended periods of time by hundreds or even many thousands of injurers, with multiple and often overlapping victims of each injurer. Courts (and lawyers) struggle with these situations for a simple reason: they insist on applying tests of causation that fail when the effect was over-determined by multiple conditions. The failure to properly understand the causation issue has exacerbated failures to properly understand and distinguish the injury, legal responsibility and allocation of liability issues. \u0000 \u0000All of these issues, plus other significant issues, arose in Paroline v. United States (2014), in which the Supreme Court considered the statutory liability of a convicted possessor of child pornography to a victim whose images he possessed for the pecuniary losses that she suffered due to her knowledge of the widespread viewing of those images. In this article we critique the Justices’ opinions in Paroline as part of a broader discussion that is intended to clarify and distinguish the causation, injury, legal responsibility and allocation of liability issues in general and as applied in particular to situations involving mass sexual abuse, while also criticizing the Court’s ill-considered dicta that would make any compensatory award in civil as well as criminal cases subject to the Constitutional restrictions on criminal punishment.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"56 1","pages":"185-233"},"PeriodicalIF":0.4,"publicationDate":"2018-03-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.3141016","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43601176","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful convictions: official misconduct in the form of police lies, aggressive policing tactics, and prosecutorial malfeasance; the mislabeling of a non-criminal event as a crime; and outright fabrications by informants and non-governmental witnesses with motivations to lie. This Article then provides an empirical analysis of existing data from the National Registry of Exonerations about no-crime exonerations and compares data between no-crime exonerations and actual-crime exonerations in terms of contributing factors, crime types, and race and gender distinctions. In doing so, this Article demonstrates that no-crime wrongful convictions, where a person is convicted of a crime that did not occur, are materially different from actual-crime wrongful convictions, where the wrong person is convicted of a crime that did occur but was committed by another. Finally, this Article concludes with policy reform recommendations that specifically seek to reduce the incidence of no-crime wrongful convictions.
{"title":"Smoke but No Fire","authors":"J. Henry","doi":"10.2307/j.ctv128fpjd","DOIUrl":"https://doi.org/10.2307/j.ctv128fpjd","url":null,"abstract":"Nearly one-third of exonerations involve the wrongful conviction of an innocent person for a crime that never actually happened, such as when the police plant drugs on an innocent person, a scorned lover invents a false accusation, or an expert mislabels a suicide as a murder. Despite the frequency with which no-crime convictions take place, little scholarship has been devoted to the subject. This Article seeks to fill that gap in the literature by exploring no-crime wrongful convictions as a discrete and unique phenomenon within the wrongful convictions universe. This Article considers three main factors that contribute to no-crime wrongful convictions: official misconduct in the form of police lies, aggressive policing tactics, and prosecutorial malfeasance; the mislabeling of a non-criminal event as a crime; and outright fabrications by informants and non-governmental witnesses with motivations to lie. This Article then provides an empirical analysis of existing data from the National Registry of Exonerations about no-crime exonerations and compares data between no-crime exonerations and actual-crime exonerations in terms of contributing factors, crime types, and race and gender distinctions. In doing so, this Article demonstrates that no-crime wrongful convictions, where a person is convicted of a crime that did not occur, are materially different from actual-crime wrongful convictions, where the wrong person is convicted of a crime that did occur but was committed by another. Finally, this Article concludes with policy reform recommendations that specifically seek to reduce the incidence of no-crime wrongful convictions.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"1 1","pages":""},"PeriodicalIF":0.4,"publicationDate":"2018-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47340886","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Our understanding of violent encounters between the police and civilians is now primarily mediated by video images. With surprising rapidity, recording these encounters has become an integral part of modern policing, sparking the current body camera bonanza. When these recordings are used as evidence in police use-of-force cases, the factfinders must decide whether the police officer’s actions were “reasonable” under the Fourth Amendment. But there is an unrecognized fault line between “police video” (video recorded by the police in the course of their official duties) and “eyewitness video” (recorded by bystander-witnesses). Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, eyewitness videos typically offer the counter-narrative of an abusive state. These images have evidentiary value, but also cultural currency. They reflect back to us our feelings about violence, race, masculinity, and the law. This article proposes a descriptive critique of the use of video evidence in assessing the lawfulness of police violence. Using insights from semiotics, film criticism, cultural theory, and cognitive psychology, it attempts to sketch out a more nuanced way of approaching video evidence in the context of these cases.
{"title":"Body Camera Obscura: The Semiotics of Police Video","authors":"C. Morrison","doi":"10.2139/SSRN.2826747","DOIUrl":"https://doi.org/10.2139/SSRN.2826747","url":null,"abstract":"Our understanding of violent encounters between the police and civilians is now primarily mediated by video images. With surprising rapidity, recording these encounters has become an integral part of modern policing, sparking the current body camera bonanza. When these recordings are used as evidence in police use-of-force cases, the factfinders must decide whether the police officer’s actions were “reasonable” under the Fourth Amendment. But there is an unrecognized fault line between “police video” (video recorded by the police in the course of their official duties) and “eyewitness video” (recorded by bystander-witnesses). Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, eyewitness videos typically offer the counter-narrative of an abusive state. These images have evidentiary value, but also cultural currency. They reflect back to us our feelings about violence, race, masculinity, and the law. This article proposes a descriptive critique of the use of video evidence in assessing the lawfulness of police violence. Using insights from semiotics, film criticism, cultural theory, and cognitive psychology, it attempts to sketch out a more nuanced way of approaching video evidence in the context of these cases.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"54 1","pages":"791-841"},"PeriodicalIF":0.4,"publicationDate":"2016-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68360819","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Michael Brown’s 2014 death in Ferguson, Missouri thrust police-officer-involved homicides into the popular consciousness. A series of subsequent officer-involved homicides has kept the issue politically and legally salient. Despite this, official data sources are thin and unreliable. This article presents original analysis of 259 police shooting incidents that occurred in Chicago between 2006 and 2014. The study, based upon publicly available information, suggests a more complex relationship between race, policing, and violence than one might expect from high-profile, officer-involved shootings. As in other large cities, shooting victims are overwhelmingly minorities, with Black persons constituting over 80% of victims. Contrary to intuition, many of the officer shooters are minorities as well. The analysis here suggests that neither racist malevolence nor unconscious bias afford complete explanations for why officer-involved shootings occur. Both of these explanatory frameworks focus too intensively upon individual officers’ decision-making at the expense of institutional and situational dynamics. Scholars and policy makers should focus far more intensively on regulating bad practices, rather than just on disciplining bad officers following egregious incidents. Shifting focus in this way will help identify connections between everyday policing tactics in minority neighborhoods – such as plainclothes policing and aggressive stop and frisk – and officer-involved shootings. The article also concludes that evidentiary challenges mar post hoc review of officer-involved shootings, whether it is in the form of judicial or civilian review. This also underscores the importance of preventive regulation.
{"title":"Blue on Black: An Empirical Assessment of Police Shootings","authors":"Nirej S. Sekhon","doi":"10.2139/SSRN.2700724","DOIUrl":"https://doi.org/10.2139/SSRN.2700724","url":null,"abstract":"Michael Brown’s 2014 death in Ferguson, Missouri thrust police-officer-involved homicides into the popular consciousness. A series of subsequent officer-involved homicides has kept the issue politically and legally salient. Despite this, official data sources are thin and unreliable. This article presents original analysis of 259 police shooting incidents that occurred in Chicago between 2006 and 2014. The study, based upon publicly available information, suggests a more complex relationship between race, policing, and violence than one might expect from high-profile, officer-involved shootings. As in other large cities, shooting victims are overwhelmingly minorities, with Black persons constituting over 80% of victims. Contrary to intuition, many of the officer shooters are minorities as well. The analysis here suggests that neither racist malevolence nor unconscious bias afford complete explanations for why officer-involved shootings occur. Both of these explanatory frameworks focus too intensively upon individual officers’ decision-making at the expense of institutional and situational dynamics. Scholars and policy makers should focus far more intensively on regulating bad practices, rather than just on disciplining bad officers following egregious incidents. Shifting focus in this way will help identify connections between everyday policing tactics in minority neighborhoods – such as plainclothes policing and aggressive stop and frisk – and officer-involved shootings. The article also concludes that evidentiary challenges mar post hoc review of officer-involved shootings, whether it is in the form of judicial or civilian review. This also underscores the importance of preventive regulation.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"54 1","pages":"189-232"},"PeriodicalIF":0.4,"publicationDate":"2016-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68262552","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been used successfully. Even if those shortcomings in the responsible corporate officer doctrine were overlooked due to the fact that it is a misdemeanor charge, the piling on of long periods of exclusion significantly raises the stakes for the executives. Part II of this Article sets forth the foundation for and justification of the responsible corporate officer doctrine. It also scrutinizes the shortcomings of the responsible corporate officer doctrine. Part III of this Article examines the collateral consequences of conviction as a responsible corporate officer. It uses the exclusion of Purdue Pharma executives as a case study to examine the justification for and problems with excluding executives who had no knowledge of wrongdoing. It argues that the collateral consequence of conviction - exclusion - is more devastating than the criminal sentence that an executive would face upon conviction. Part IV argues that a conviction as a responsible corporate officer does not demonstrate that the executive is morally blameworthy for the actions of subordinates. Further, it argues that despite the fact that exclusion is technically a civil remedy, it should be treated as a de facto criminal penalty in the context where it is the most serious consequence that responsible corporate officers face as a result of conviction. This Article concludes that the collateral consequences of holding "responsible corporate officers" criminally accountable for the misconduct of their subordinates are disproportionate to the crime of conviction and should not be imposed for longer than three years absent a showing of moral blameworthiness.
{"title":"The Crime of Being in Charge: Executive Culpability and Collateral Consequences","authors":"Katrice Bridges Copeland","doi":"10.7312/LYNC17118-011","DOIUrl":"https://doi.org/10.7312/LYNC17118-011","url":null,"abstract":"This Article argues that the government's exclusion of executives who have been convicted as \"responsible corporate officers\" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been used successfully. Even if those shortcomings in the responsible corporate officer doctrine were overlooked due to the fact that it is a misdemeanor charge, the piling on of long periods of exclusion significantly raises the stakes for the executives. Part II of this Article sets forth the foundation for and justification of the responsible corporate officer doctrine. It also scrutinizes the shortcomings of the responsible corporate officer doctrine. Part III of this Article examines the collateral consequences of conviction as a responsible corporate officer. It uses the exclusion of Purdue Pharma executives as a case study to examine the justification for and problems with excluding executives who had no knowledge of wrongdoing. It argues that the collateral consequence of conviction - exclusion - is more devastating than the criminal sentence that an executive would face upon conviction. Part IV argues that a conviction as a responsible corporate officer does not demonstrate that the executive is morally blameworthy for the actions of subordinates. Further, it argues that despite the fact that exclusion is technically a civil remedy, it should be treated as a de facto criminal penalty in the context where it is the most serious consequence that responsible corporate officers face as a result of conviction. This Article concludes that the collateral consequences of holding \"responsible corporate officers\" criminally accountable for the misconduct of their subordinates are disproportionate to the crime of conviction and should not be imposed for longer than three years absent a showing of moral blameworthiness.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"51 1","pages":"799-836"},"PeriodicalIF":0.4,"publicationDate":"2014-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71153592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history. Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.
在20世纪的大部分时间里，联邦政府在矫正过程的前端采用不确定量刑制度，在后端采用假释制度，以确定罪犯何时应该从监狱释放。1984年，国会试图彻底修改联邦判决和惩教程序。国会通过了强制性量刑准则制度，以限制联邦法院传统上享有的自由裁量量刑权。国会拒绝了咨询指导制度，因为国会认为这样的程序不会消除几十年来困扰联邦刑事司法系统的量刑差异。由于新的强制性指导方针将使量刑决定规范化，并决定何时释放囚犯，国会废除了联邦假释法，认为这是不必要的。最高法院在1989年的“米斯特塔诉美国案”(488 U.S. 361)中，维持了新制度的合宪性，假释似乎已经成为历史。然而，16年后，在美国诉布克案(543 U.S. 220(2005))中，最高法院认为，在米斯特塔案中维持的相同的强制性量刑指导制度侵犯了被告根据第六修正案陪审团审判条款享有的权利。布克和后来的决定使联邦量刑指南具有咨询意义。问题是，国会拒绝了咨询指导制度，如果联邦判决程序没有严格限制地方法院的量刑权力，国会就不会废除假释法。因此，布克案判决的后果之一是，现在的联邦量刑容易受到同样的差异的影响，而国会在1984年试图通过强制性确定量刑准则来补救这种差异。本文讨论的问题是，既然废除联邦假释法的先决条件——采用强制性量刑指导制度——不再有效，布克案的判决是否为联邦假释法注入了新的活力。
{"title":"Parole: Corpse or Phoenix?","authors":"P. Larkin","doi":"10.2139/SSRN.2302412","DOIUrl":"https://doi.org/10.2139/SSRN.2302412","url":null,"abstract":"For most of the twentieth century, the federal government used an indeterminate sentencing system at the front end of the correctional process and a parole system at the back end in order to determine when an offender should be released from prison. In 1984, Congress sought completely to revise the federal sentencing and correctional processes. Congress adopted a mandatory sentencing guidelines system in order to restrain the discretionary sentencing authority that federal courts traditionally had enjoyed. Congress rejected an advisory guidelines system because Congress believed that such a process would not eliminate the sentencing disparities that had plagued the federal criminal justice system for decades. Because the new mandatory guidelines would both regularize the sentencing decision and determine when a prisoner would be released, Congress repealed the federal parole laws as being unnecessary. The Supreme Court upheld the constitutionality of the new system over separation of challenges in Mistretta v. United States, 488 U.S. 361 (1989), and parole seemed to have passed into history. Sixteen years later in United States v. Booker, 543 U.S. 220 (2005), however, the Court held that the same mandatory sentencing guidelines system upheld in Mistretta violated a defendant’s rights under the Sixth Amendment Jury Trial Clause. Booker and later decisions have made the federal sentencing guidelines advisory. The problem is that Congress rejected an advisory guidelines system and would not have repealed the parole laws if the federal sentencing process did not strictly constrain district courts’ sentencing authority. One of the consequences of the Booker decision, accordingly, is that federal sentencing now is susceptible to the same disparities that Congress sought to remedy with mandatory determinate sentencing guidelines in 1984. The article discusses the question whether the Booker decision has breathed new life into the federal parole laws now that the condition precedent for their repeal, adoption of a mandatory sentencing guidelines system, is no longer in effect.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"50 1","pages":"303"},"PeriodicalIF":0.4,"publicationDate":"2013-07-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68081066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Hate crimes continue to persist in the United States and undermine the traditions and values to which our country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the 'HCPA'). The HCPA significantly expands the federal government’s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many hate crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim’s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward 'overfederalization' of the criminal law. This article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government’s authority to prosecute such crimes. Instead, this article refocuses the debate to address new issues regarding the federal government’s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this article proposes a model of prosecution that ensures the federal government’s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, among other things, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States.
仇恨犯罪在美国继续存在，破坏了我们国家所追求的传统和价值观。然而，直到最近，现行联邦立法的严格管辖权限制使联邦政府难以起诉这些罪行。2009年10月，奥巴马总统签署了《Matthew Shepard James Byrd Jr.仇恨犯罪预防法案》(简称“HCPA”)。HCPA极大地扩大了联邦政府起诉被控仇恨犯罪的被告的权力，因为它废除了以前难以起诉许多仇恨犯罪的司法管辖要求。HCPA还代表了联邦权力的扩大，因为它比现有的联邦仇恨犯罪立法保护了更广泛的受害者群体。除了保护基于种族、肤色、宗教、国籍的暴力行为的受害者外，HCPA是第一部保护潜在动机是受害者的性取向、性别或性别认同的犯罪受害者的联邦立法。许多观察人士认为，这种广泛授予联邦权力的做法是民权运动取得的巨大胜利，而批评人士则认为，这是一种不必要的象征性措施，在他们看来，这是刑法“过度联邦化”持续趋势的一部分。这篇文章并不打算对专门研究仇恨犯罪立法的象征意义或联邦政府起诉此类犯罪的权力是否适当的广泛学术机构作出贡献。相反，本文将重新聚焦辩论，以解决有关联邦政府执法和实施该立法的新问题。根据合作联邦制的原则，本文提出了一种起诉模式，以确保联邦政府起诉仇恨犯罪的权力不仅是象征性的，而且在刑事司法背景下以尊重联邦制原则和界限的方式实施。为了实现这些目标，本文提出了一种依靠联邦-州合作来最大限度地分配仇恨犯罪起诉资源的制度。除其他事项外，该提案还包括允许州检察官接受特别任命，在联邦法院起诉这些案件。本文的结论是，要有效地解决美国的仇恨犯罪问题，有必要采取多司法管辖区的方法。
{"title":"Subverting Symbolism: The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act and Cooperative Federalism","authors":"Kami Chavis Simmons","doi":"10.2139/SSRN.2027632","DOIUrl":"https://doi.org/10.2139/SSRN.2027632","url":null,"abstract":"Hate crimes continue to persist in the United States and undermine the traditions and values to which our country aspires. Until recently, however, the stringent jurisdictional limitations of existing federal legislation made it difficult for the federal government to prosecute these crimes. In October 2009, President Obama signed into law the Matthew Shepard James Byrd Jr., Hate Crimes Prevention Act (the 'HCPA'). The HCPA significantly expands the federal government’s authority to prosecute defendants accused of hate crimes because it dispenses with a previous jurisdictional requirement that made it difficult to prosecute many hate crimes. The HCPA also represents an expansion of federal authority because it protects a broader class of victims than pre-existing federal hate crimes legislation. In addition to protecting victims of violent acts based upon race, color, religion, national origin, the HCPA is the first federal legislation to protect victims of crimes where the underlying motivation was the victim’s sexual orientation, gender, or gender identity. While many observers view this broad grant of federal authority as a monumental civil rights victory, critics view it as an unnecessary symbolic measure that is, in their view, part of a continuing trend toward 'overfederalization' of the criminal law. This article does not intend to contribute to the extensive body of scholarship devoted to the symbolism of hate crimes legislation or the propriety of the federal government’s authority to prosecute such crimes. Instead, this article refocuses the debate to address new issues regarding the federal government’s enforcement and implementation of this legislation. Drawing upon the principles of cooperative federalism, this article proposes a model of prosecution that ensures the federal government’s authority to prosecute hate crimes is not merely symbolic, but is implemented in a manner that respects the principles and boundaries of federalism in the criminal justice context. To accomplish these goals, this article proposes a regime that relies on federal-state collaboration to maximize resource allocation in the prosecution of hate crimes. This proposal also includes, among other things, allowing state prosecutors to receive special designations to prosecute these cases in federal court. This article concludes that a multi-jurisdictional approach is necessary to effectively address hate crimes in the United States.","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"49 1","pages":"1863"},"PeriodicalIF":0.4,"publicationDate":"2012-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67866201","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The central tension in any disputed Miranda waiver case is that the evaluation of a suspect’s knowing, intelligent, and voluntary waiver is conducted months after the relevant time of the interrogation. The tension exists because current Miranda practice fails to develop an adequate record of a suspect’s knowledge and understanding at the time of the waiver. Current Miranda practice involves essentially a one-way explanation of information. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. Usually this is done through a reading and signing of a pre-printed Miranda waiver card. As a result, courts cannot assess the extent to which a suspect knows, understands, and willingly relinquishes constitutional rights. This article proposes a new “dialogue approach” to resolve this tension and limit the ambiguity in disputed Miranda waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding of the rights and the consequences of the waiver by restating the rights in their own words at the time of the interrogation. In addition, it would require a brief interchange between the police and the suspect about the purpose of rights and roles of the participants in the interrogation. It changes the Miranda waiver process from a one-way communication to a two-way dialogue. This approach would give courts and experts more accurate data to make findings about the adequacy of waiver. The result would be a real-time test of waiver that can inform the court’s ultimate legal conclusion about the knowing, intelligent, and voluntary waiver of constitutional rights. Two recent developments in law and forensic psychology frame this proposal. First, in three recent opinions, the Supreme Court has re-conceptualized the contours of how police officers should give Miranda warnings. In Florida v. Powell, the Supreme Court held that Miranda warnings need not be universally formalized, so long as the officer reasonably communicates the rights to the suspect. In Berghuis v. Thompkins, and Montejo v. Louisiana, the Supreme Court required the suspect affirmatively to invoke the right to silence and the right to counsel. Prior to Berghuis, it would have been unnecessary for a suspect to say anything, let alone communicate (invoke) his understanding of his right to silence. Taken together, these cases allow for a more informal process that requires communication between the defendant and the interrogating officers. Significantly, these legal decisions have developed in parallel with a scientific consensus on psychological research about interrogations and confessions. The 2010 White Paper on Police Induced Confessions: Risk Factors and Recommendations sets forth the accepted scientific understanding of the issues surrounding disputed confessions. Among other subjects, the report addresses the centrality of understanding Miranda rights prior to waiver. The studies analyzed
{"title":"The Dialogue Approach to Miranda Warnings and Waiver","authors":"A. Ferguson","doi":"10.2139/SSRN.1872051","DOIUrl":"https://doi.org/10.2139/SSRN.1872051","url":null,"abstract":"The central tension in any disputed Miranda waiver case is that the evaluation of a suspect’s knowing, intelligent, and voluntary waiver is conducted months after the relevant time of the interrogation. The tension exists because current Miranda practice fails to develop an adequate record of a suspect’s knowledge and understanding at the time of the waiver. Current Miranda practice involves essentially a one-way explanation of information. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. Usually this is done through a reading and signing of a pre-printed Miranda waiver card. As a result, courts cannot assess the extent to which a suspect knows, understands, and willingly relinquishes constitutional rights. This article proposes a new “dialogue approach” to resolve this tension and limit the ambiguity in disputed Miranda waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding of the rights and the consequences of the waiver by restating the rights in their own words at the time of the interrogation. In addition, it would require a brief interchange between the police and the suspect about the purpose of rights and roles of the participants in the interrogation. It changes the Miranda waiver process from a one-way communication to a two-way dialogue. This approach would give courts and experts more accurate data to make findings about the adequacy of waiver. The result would be a real-time test of waiver that can inform the court’s ultimate legal conclusion about the knowing, intelligent, and voluntary waiver of constitutional rights. Two recent developments in law and forensic psychology frame this proposal. First, in three recent opinions, the Supreme Court has re-conceptualized the contours of how police officers should give Miranda warnings. In Florida v. Powell, the Supreme Court held that Miranda warnings need not be universally formalized, so long as the officer reasonably communicates the rights to the suspect. In Berghuis v. Thompkins, and Montejo v. Louisiana, the Supreme Court required the suspect affirmatively to invoke the right to silence and the right to counsel. Prior to Berghuis, it would have been unnecessary for a suspect to say anything, let alone communicate (invoke) his understanding of his right to silence. Taken together, these cases allow for a more informal process that requires communication between the defendant and the interrogating officers. Significantly, these legal decisions have developed in parallel with a scientific consensus on psychological research about interrogations and confessions. The 2010 White Paper on Police Induced Confessions: Risk Factors and Recommendations sets forth the accepted scientific understanding of the issues surrounding disputed confessions. Among other subjects, the report addresses the centrality of understanding Miranda rights prior to waiver. The studies analyzed","PeriodicalId":51824,"journal":{"name":"AMERICAN CRIMINAL LAW REVIEW","volume":"49 1","pages":"1437"},"PeriodicalIF":0.4,"publicationDate":"2011-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.1872051","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67766867","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"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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