Condoning Bad Behavior
William Damon is a professor of education and director of the Center on Adolescence at Stanford University. His books include “The Moral Child,” “The Youth Charter” and, most recently, “The Path to Purpose.”
Parents who sanction teenage drinking parties are making a huge mistake. These parents are encouraging the very behavior they are attempting to control. Even worse, they are communicating disrespect for legal authority to young people who are just forming their attitudes about how to behave in society.
A parent’s first message must be that we are obliged to obey the law.
Laws on underage drinking in this country are clear. A parent certainly has the right to disagree with these laws; and discussions about such disagreements with children can foster critical thinking and civic awareness. But the parent’s first message to a child must be that we are obliged to obey our society’s laws even when we disagree with them.
At the same time, legal enforcement of social host laws should be used sparingly as a last resort. It’s heavy-handed, intrusive, and risks undermining relations between parents and children.
Green on Possession of Stolen Property
Stuart P. Green (Rutgers Law School-Newark) has posted Thieving and Receiving: (Over)Criminalizing the Possession of Stolen Property (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:
Historically, Anglo-American law has treated the offense of receiving stolen property in a surprisingly diverse number of ways, including treating it as no crime at all, subjecting it to accessory-after- the-fact liability, and treating it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, and greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. In order to avoid such disproportionality in punishment, various reforms in the law of receiving are recommended.
June 17, 2010 | Permalink
“Governor Rebuffs Clemency Board in Murder Case”
Adam Liptak’s column in the New York Times is here. In part:
Mr. Kempfert is now certain that his father, William Macumber, is innocent. Arizona’s clemency board, citing Mr. Kempfert’s “very moving testimony” and saying there had been “a miscarriage of justice,” unanimously recommended last year that Mr. Macumber be freed. But Mr. Macumber remains in prison, and Gov. Jan Brewer has refused to explain why.
Robbins on Ghostwriting for Pro Se Prisoners
Ira P. Robbins (American University – Washington College of Law) has posted Ghostwriting: Filling in the Gaps of Pro Se Prisoners’ Access to the Courts (Georgetown Journal of Legal Ethics, Vol. 23, No. 2, pp. 271-321, 2010) on SSRN. Here is the abstract:
Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits.
This Article argues that, in order to provide pro se prisoners with the access to the courts that law and justice require, attorneys (and sometimes non-attorneys) should be permitted to ghostwrite pleadings for them – that is, to draft pleadings that prisoners will then file pro se. Attorneys who may otherwise be reluctant to represent prisoner litigants as counsel of record might still be amenable to providing services in this limited way. Limited-scope representation – or “unbundled legal services” – is not an anomaly. Indeed, most states accept the practice in at least some contexts, and the American Bar Association recently gave its stamp of approval to ghostwriting. Nevertheless, many courts and commentators contend that ghostwriting by attorneys is unethical, that it gives pro se litigants an unfair advantage (because their pleadings are entitled to judicial benevolence), and that it encourages the unauthorized practice of law. Addressing these concerns, this Article considers the various forms that ghostwriting could take – i.e., whether ghostwriting attorneys should be required to disclose their names, the fact of their assistance, or the nature of their assistance – and concludes that ghostwriting should be allowed without any disclosure of attorney assistance at all. Indeed, disclosing such assistance may, in some instances, actually violate ethical rules. While ghostwriting likely constitutes the practice of law and might justifiably be rejected in other contexts, this Article recommends that courts and bar associations endorse the practice of ghostwriting for pro se prisoners, to give these disadvantaged litigants a more even playing field on which to challenge alleged violations of their constitutional rights.
Dov Fox has posted The Right to Silence Protects Mental Control (LAW AND NEUROSCIENCE, CURRENT LEGAL ISSUES, Vol. 13, M. Freeman, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:
This chapter argues that a right of mental control prohibits the state either from extracting a suspect’s thoughts without her meaningful consent or from making use of a suspect’s compelled recall or recognition to lay criminal blame upon her. Existing accounts of the constitutional privilege against self-incrimination are ill-equipped to address the doctrinal implications of safe and reliable forensic neuroscience. Brain imaging is importantly different, for Fifth Amendment purposes, from all other forms of evidence, because it enables state officials to obtain information directly from a suspect’s brain, in a way that affords her no opportunity to control the transmission of that information. The physical/testimonial distinction in right-to-silence jurisprudence presupposes a flawed conception of mind/body dualism. Exposing this dualism reveals that the normative significance we confer to a suspect’s control over his thoughts against unwanted use by the government. The use of compelled neuroscientific evidence is illegitimate when it deprives the accused of control over her mental life. Prosecutors may not comment on a suspect’s decision to decline the testing, and judges should instruct jurors not to draw adverse inferences from a choice to decline testing. Instructions against drawing adverse inferences are likely to be effective, however, only if jurors come to recognize legitimate reasons to decline testing.
June 5, 2010 | Permalink
Gould & Leo on Wrongful Convictions
Jon B. Gould and Richard A. Leo (pictured) (George Mason University – School of Public Policy and University of San Francisco – School of Law) have posted One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:
In this article the authors analyze a century of research on the causes and consequences of wrongful convictions in the American criminal justice system while explaining the many lessons of this body of work. This article chronicles the range of research that has been conducted on wrongful convictions; examines the common sources of error in the criminal justice system and their effects; suggests where additional research and attention are needed; and discusses methodological strategies for improving the quality of research on wrongful convictions. The authors argue that traditional sources of error (eyewitness misidentification, false confessions, perjured testimony, forensic error, tunnel vision, prosecutorial misconduct, ineffective assistance of counsel, etc.) are contributing sources, not exclusive causes, of wrongful conviction. They also argue that the research on wrongful convictions during the last hundred years has uncovered a great deal about how these sources operate and what might prevent their effects. Finally, the authors urge criminal justice professionals and policy-makers to take this research more seriously and apply the lessons learned from a century of research into wrongful convictions.
Stern on Homes and the Fourth Amendment
Stephanie Stern (Chicago-Kent College of Law) has posted The Inviolate Home: Housing Exceptionalism in the Fourth Amendment (Cornell Law Review, Vol. 95, 2010) on SSRN. Here is the abstract:
This Article challenges Fourth Amendment housing exceptionalism. Specifically, I critique two hallmarks of housing exceptionalism: first, the extension of protection to residential spaces unlikely to shelter intimate association or implicate other key privacy interests; and second, the prohibition of searches that impinge on core living spaces but do not harm interpersonal and domestic privacy. Contrary to claims in the case law and commentary, there is little evidence to support the broad territorial conception of privacy inherent to the “sanctity of the home,” a vital personhood interest in the physical home, or even uniformly robust subjective privacy expectations in varying residential contexts. Similarly, closer examination of the political and historical rationales for housing exceptionalism reveals a nuanced, and equivocal, view of common justifications for privileging the home. This Article advocates replacing the broad sweep of housing exceptionalism, and its emphasis on the physical home, with a narrower set of residential privacy interests that are more attentive to substantive privacy and intimate association.