Colorado Prosecutors, Race, and the Death Penalty in the Early Part of the 21st Century

Meg Beardsley, Washington and Lee University School of Law, Sam Kamin and Justin F. Marceau, both of the University of Denver College of Law, and Scott Phillips, University of Denver, University of Denver, are publishing Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century in volume 92 of the Denver University Law Review (2015). Here is the abstract.

This Article demonstrates through original statistical research that prosecutors in Colorado were more likely to seek the death penalty against minority defendants than against white defendants. Moreover, defendants in Colorado’s Eighteenth Judicial District were more likely to face a death prosecution than defendants elsewhere in the state. Our empirical analysis demonstrates that even when one controls for the differential rates at which different groups commit statutorily death-eligible murders, non-white defendants and defendants in the Eighteenth Judicial District were still more likely than others to face a death penalty prosecution. Even when the heinousness of the crime is accounted for, the race of the accused and the place of the crime are statistically significant predictors of whether prosecutors will seek the death penalty. We discuss the implications of this disparate impact on the constitutionality of Colorado’s death penalty regime, concluding that the Colorado statute does not meet the dictates of the Eighth Amendment to the Constitution.

Download the article from SSRN at the link.

Law and the Body

Theodore Bennett, University of Western Australia, has published Cuts and Criminality: Body Alteration in Legal Discourse (Ashgate, 2015). Here is a description of the contents from the publisher's website.

This book investigates how and why the criminal law differentiates between different types of body alterations, with particular reference to how they are conceptualised within legal discourse. By drawing connections between types of body alteration that have traditionally been considered separately and discretely, the book allows analytical conclusions to be made about the law's treatment of the general category of 'body alteration' rather than merely about specific types of body alteration. Taking legal discourse as its analytical focus, the author critically examines a number of case studies to determine the techniques and processes by which some body alterations are discursively constructed as legitimate and legally approved, and by which other body alterations are discursively constructed as illegitimate and legally sanctioned. Specifically, the body alterations that are addressed include sadomasochistic injuries; female genital modification and male circumcision; cosmetic surgery, body modification and healthy limb amputation; and sex reassignment surgery and genital 'normalisation' surgery. International in scope, the discursive analysis in the book will be of interest to academics and researchers working in the areas of socio-legal and cultural studies.

Moral Responsibility and Criminal Sanctions

Ken Levy, Louisiana State University Law Center, is publishing Does Situationism Excuse? The Implications of Situationism for Moral Responsibility and Criminal Responsibility in volume 68 of the Arkansas Law Review (2015). Here is the abstract.

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: (a) the psychological factors that motivate the individual’s behavior are environmentally determined and (b) her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted.

To get to this conclusion, I will proceed in four steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption (that moral responsibility is necessary for just blame and punishment) ultimately because we sympathize with agents who lack responsibility for their actions.

Third, in Part IV, I aim to show that even if moral responsibility is not conceptually — only “emotionally” — necessary for just blame and punishment, the traditionally recognized criminal excuses (automatism, duress, entrapment, hypnosis, infancy, insanity, involuntary intoxication, mistake of fact, and mistake of law) are not at risk because, contrary to popular wisdom, they do not really rely on this assumption to begin with. Instead, they stand less for the metaphysical proposition that we should refrain from blaming and punishing the non-responsible and more for the normative/ethical proposition that we should refrain from blaming and punishing those whom we cannot reasonably expect to have acted better. I will further argue that the latter proposition does not necessarily reduce to the former.

Fourth, once I have defended my account of the excuses, I will question in Parts V and VI the increasingly popular notion that we should add certain conditions or circumstances to the list of recognized excuses. I will focus on one in particular — the psychological theory of “situationism” — and will argue that, despite its initial plausibility, it should be kept off the list. While situationism arguably does negate moral responsibility, it does not negate criminal responsibility.

Of course, this is a controversial point. Criminal responsibility is almost universally thought to require moral responsibility. But in a previous article, "Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment And to Preventive Detention," 48 San Diego L. Rev. 1299 (2011), I used personality psychology to drive a wedge between the two. In this article, I will use the opposite end of the psychological spectrum — social psychology — to drive the same important wedge.

Download the article from SSRN at the link.

2 Broke Girls and the Statutory Rape Question

On the May 4, 2015 episode of "2 Broke Girls," Nash's mother accuses Max of having sex with her "underaged" son, and nearly everyone in the episode, including Max and Caroline, seems to agree that Max has some kind of legal issue. However, there's only one problem with this analysis of the situation. As the mother admits, Nash is "just now 18." Even if Max and Nash began their affair when Nash was seventeen, under New York state law, their affair is perfectly legal. The authorities cannot arrest Max for statutory rape. Here are the relevant parts of the NY statute.

New York Penal Law

  § 130.35 Rape in the first degree.
    A  person is guilty of rape in the first degree when he or she engages
  in sexual intercourse with another person:
    1. By forcible compulsion; or
    2. Who is incapable of consent by reason of being physically helpless;
  or
    3. Who is less than eleven years old; or
    4. Who is less than thirteen years old and the actor is eighteen years
  old or more.
    Rape in the first degree is a class B felony.


130.30 Rape in the second degree.

 A person is guilty of rape in the second degree when:
  1. being eighteen years old or more, he or she engages in sexual
intercourse with another person less than fifteen years old; or
  2. he or she engages in sexual intercourse with another person who is
incapable of consent by reason of being mentally disabled or mentally
incapacitated.
  It shall be an affirmative defense to the crime of rape in the second
degree as defined in subdivision one of this section that the defendant
was less than four years older than the victim at the time of the act.

S 130.25 Rape in the third degree.
  A person is guilty of rape in the third degree when:
  1. He or she engages in sexual intercourse with another person who is
incapable of consent by reason of some factor other than being less than
seventeen years old;
  2. Being twenty-one years old or more, he or she engages in sexual
intercourse with another person less than seventeen years old; or
  3. He or she engages in sexual intercourse with another person without
such person`s consent where such lack of consent is by reason of some
factor other than incapacity to consent.
  Rape in the third degree is a class E felony.

Similarly, none of the provisions covering criminal sexual conduct apply either. We have no reason to believe that Nash does not consent to the relationship and he is of age (he was seventeen and is now eighteen). Nor can his mother object to his working as a model. He cannot void his modeling contract, since he seems to have entered into it as an adult (although it's not clear from the episode when he turned eighteen; if it was after he entered in the contract with the agency, he would need to enter into another contract).

Max and Caroline's continuing problem, however, is that they still don't have a talent agent's license; thus, they cannot represent Nash.

The Ups and Downs of U.S. State Criminal Codes

Paul H. Robinson, University of Pennsylvania Law School, has published The Rise and Fall and Resurrection of American Criminal Codes as University of Pennsylvania Law School Public Law Research Paper No. 14-38. Here is the abstract.

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

Download the paper from SSRN at the link. 

The Condemned Woman In Sir Walter Scott's Writings

Erin L. Sheley, George Washington University School of Law, has published Doubled Jeopardy: The Condemned Woman as Historical Relic at 24 Law and Literature 211 (2014). Here is the abstract. 

This article explores how Sir Walter Scott's fictional condemned women serve as relics through which a history of evolving British legal authority becomes present and legible. It argues that Scott's treatment of gender aestheticizes a particular concept of and reaction to the condemned woman in the context of the common law tradition generally. Using the backdrop of eighteenth century penal practice, it also shows how Scott establishes the female condemned body as an object necessarily fixed in time in order to contemplate legal change through a historically controlled process. The first part of the article considers the late eighteenth century movement to abolish the punishment of burning at the stake for women convicted of treason, and the extent to which competing understandings of chivalry reified an entire history of penal practice into the body of the burned woman. The second part argues that the interrelations between archaic practice and evolved norm which characterize the precedent-based common law system are dramatized in the fixed, idealized bodies of Constance de Beverly and Rebecca of York through which Scott acknowledges the implicit need for legal change over time, while simultaneously legitimizing adherence to a chivalric tradition.

Download the article from SSRN at the link. 

David Greenglass, Prosecution Witness In Rosenberg Trial, Dies

The New York Times has published an obituary of David Greenglass, the brother of Ethel Rosenberg. Mr. Greenglass provided crucial testimony during the trial of Julius and Ethel Rosenberg that ended in their convictions for conspiracy and espionage. They were executed in 1953. Fifty years later, Mr. Greenglass, who served nearly ten years in prison for his role in the conspiracy, admitted to reporter Sam Roberts that he lied on the witness stand.

Mr. Roberts published a book about Mr. Greenglass and the trial, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair  (2001). Other books on the topic include Michael and Robert Meeropol, We Are Your Sons: The Legacy of Ethel and Julius Rosenberg (1975),

The Rosenbergs figure in E. L. Doctorow's novel The Book of Daniel (1971), a fictionalized version of the trial which is based on the Rosenberg trial (filmed as Daniel (1983)), which stars Timothy Hutton, and in Robert Coover's The Public Burning (1977). Ethel Rosenberg appears as a character in Tony Kushner's play Angels in America: Millennium Approaches (1993) (revised 2014).

More about the trial here at Professor Douglas Linder's Famous Trial website.

See Walter Run

Scott Shimick, SUNY, Geneseo, is publishing Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero, in the Tulsa Law Review. Here is the abstract. 

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.
In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

Download the article from SSRN at the link. 

Shakespeare As Therapist?

Herschel Prins, Loughborough University & University of Birmingham, has published Mental Disorder, Criminality and the Literary Imagination at 53 Howard Journal of Criminal Justice 290 (2014).

This contribution attempts to explore the use of a variety of literary sources as aids or ‘prompts’ to understanding those offenders and offender‐patients whose mental states often raise considerable anxieties in those charged with their management. The word ‘prompt’ is borrowed from the work of my friend, the late doctor Murray Cox, and his co‐worker Alice Theilgaard in their seminal work Shakespeare as Prompter (1994). The author of the present article hopes that its content will enable readers to focus more clearly on why we sometimes fail our offenders and offender‐patients; in particular, through the mechanism of denial. The use of dramatic presentation when proffered with a unique blend of force and sensitivity can permit us to view puzzlement and horror from a safe distance and, at the same time, encourage us to increase our empathic understanding and professional practice. Most of the examples cited are brief allusions but, because her history is so compellingly applicable to our concerns in the present contribution, the ‘case’ of Lady Macbeth is considered in more detail. Finally, I would note some very wise words by Cox and Theilgaard (1994) in a caveat note to the reader: ‘Should the focus on therapy ever become occluded by preoccupation with poetic association, clinical skills would be diminished, distraction ensue and therapeutic contact deteriorate’ (not numbered). In the material that follows readers should bear such a cautionary note in mind.

The full text is not available from SSRN. 

Legal History and Criminal Law

Markus D. Dubber, University of Toronto Faculty of Law, is publishing Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law in the Oxford Handbook of the History of Crime and Criminal Justice (Paul Knepper & Anja Johansen eds.; Forthcoming). Here is the abstract.

This essay reflects on the relationship between the history of crime, the history of criminal justice, and the history of criminal law. It suggests an account of the historical analysis of criminal law that locates it within the general project of critical analysis of law (CAL).

Download the essay from SSRN at the link. 

Blackstone, Law, and Emotion

Simon Stern, University of Toronto Faculty of Law, is publishing Blackstone's Legal Actors: The Passions of a Rational Jurist in Impassioned Jurisprudence: Law, Literature and Emotion, 1660-1800 (Nancy Johnson, ed., Bucknell University Press, 2014) (Aperçus Series). Here is the abstract.

The success of Blackstone’s Commentaries is usually attributed to the ambition of his project: to give a synthetic and integrated overview of the common law. Blackstone’s effort, however strained, to display the law’s coherence, helps to explain why the Commentaries were taken up by so many generations of avid readers, but the book’s success also owes something to Blackstone’s method of showcasing this coherence and soliciting the reader’s enthusiasm for it. Blackstone does not simply methodize the law; he also personifies the law as an active force that produces consistency, and he similarly casts the reader as someone who partakes of the same sensibility and appreciates the same virtues. Blackstone places both the law and the law student in an affective relation to the rationalizing aims promoted in the Commentaries. By positing, within the text, a reader who attaches to the law in this fashion, Blackstone encourages his reader to take it for granted that this sense of attachment is part and parcel of the study of law.

The chapter begins by examining Blackstone’s figuration of the law and its passions, and the pattern in which he attributes the same dispositions to the reader. Next, the chapter considers Blackstone’s treatment of emotion in the criminal law, which describes the violent impulses of passionate actors – now presented as objects rather than subjects of legal thought – whose feelings are distinguished from the emotions that inform the law’s operations and that animate the law’s human exponent. Finally, the discussion turns to the place of emotion in Blackstone’s often-quoted paean to the imaginative power of the property right – a tribute that also positions the property-owner and his “affections” as the objects of legal thought. When this passage is considered in relation to Blackstone’s other accounts of legal passion, the property-owner emerges as a figure whose feelings might themselves be the product of a Blackstonian legal education.

Download the essay from SSRN at the link. 

Prosecuting Dorian Gray

Simon Stern, University of Toronto Faculty of Law, is publishing The Trial of Dorian Gray in Dorian Gray in the Twenty-First Century (Richard Kaye, ed.; Oxford University Press, forthcoming). Here is the abstract.

Wilde’s three trials in 1895 served, in effect, as an obscenity prosecution of The Picture of Dorian Gray (1890/91). Though the novel was not formally charged with obscenity, Dorian Gray’s first reviewers suggested that it was obscene, and the book remained unavailable in England for nearly two decades after Wilde’s trials. The novel's relation to Wilde's trials thus raises a number of questions about the use of fiction as legal evidence and about the ways in which a criminal prosecution might be taken to reveal the meaning of the defendant's writings. This essay discusses the late Victorian campaign against obscene literature and the victims of that campaign; the reviews of the original version of Dorian Gray (in Lippincott's Magazine, 1890); the oblique manner in which the innuendo about its obscenity functioned during Wilde's three trials (1895); Wilde's own ironic engagement, at several key points in the novel, with the conception of influence at work in the legal test governing the evaluation of obscenity (R. v. Hicklin, 1868); the relation of the painting itself, and of the notorious French novel that Dorian borrows from Lord Henry, to that conception of influence; and Wilde's reenactment of his ironic perspective at the narrative level.

Download the essay from SSRN at the link. 

Criminology and Reform in the Early 20th Century

Michele Pifferi, University of Ferrara, Faculty of Law, has published Global Criminology and National Tradition. The Impact of Reform Movements on Criminal Systems at the Beginning of the 20th Century in Entanglements in Legal History: Conceptual Approaches (Thomas Duve, ed.; Max Planck INstitute for European Legal History Open Access Publications, 2013).

This article focuses on the international movement towards individualization of punishment between the 1870s and the 1930s as a model to study how legal theories developed in a global scientific dialogue have been differently shaped according to national traditions. Even if interpreted in different ways, the common idea shared by prison reformers, exponents of the new criminological science and a large part of public opinion in Europe, United States and Latin America necessitated a radical change from repression to prevention. The main focus shifted from crime as an abstract entity to criminals as natural, social human beings immersed in a complex network of environmental, social, economic conditions which affected their behavior. Nonetheless, the ‘criminological wave’ between the 1880s and the 1930s was not a uniform international parenthesis, but reflected in its variety the differences between American and European legal cultures and their notion of the principle of legality.

Download the essay from SSRN at the link.

Law and Literature and Criminal Law

Simon Stern, University of Toronto Faculty of Law, is publishing Law & Literature (As an Approach to Criminal Law in The Oxford Handbook of Criminal Law (Markus Dubber & Tatjana Hoemle, eds., Oxford University Press, 2014). Here is the abstract.

This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell's "A Jury of Her Peers" and Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.

The chapter also serves as a bibliography for scholars seeking further resources that examine criminal law through the lens of literature. These resources include bibliographies of primary texts (such as crime-based fiction, "dying confessions" circulated at executions, and movies), secondary texts (discussing law and criminal behavior in relation to fiction, drama, and poetry), and web-based resources (such as the Old Bailey Sessions Papers Online). In that spirit, the chapter also discusses some research that is often overlooked in discussions of criminal law and literature – such as Todd Herzog’s research on Weimar-era true-crime narratives that were created from actual case files; Jonathan Eburne’s research on crime in the work of the French surrealists; Lorna Hutson’s research on civic plots of detection in renaissance drama and their relation to the development of evidence law; and Lisa Rodensky’s work on narrative modes in Victorian fiction and their relation to the treatment of mens rea in contemporaneous legal thought.

The chapter closes with some brief reflections on the potential for current work in cognitive literary studies to change the way we think about literature's relation to law, and, in particular, the way we impose narrative templates on the events we experience.

Download the essay from SSRN at the link.

Creating Art Out of Crime

Katherine Biber, University of Technology, Sydney, Faculty of Law, is publishing In Crime's Archive: The Cultural Afterlife of Criminal Evidence in the British Journal of Criminology. Here is the abstract.

This article explores the cultural afterlife of criminal evidence. During the criminal trial, strict rules govern the collection, admission and interpretation of evidence at trial. However, after the conclusion of the trial, this material returns to a notional ‘archive’ and is sometimes used by artists, scholars, curators and others, but subject to no rules nor standards. This article examines a range of instances in which criminal evidence has been used post-trial, and proposes a jurisprudence of sensitivity for responding to the harm that is sometimes done when criminal evidence leads a cultural afterlife.

Download the article from SSRN at the link. 

History of Some Principles of the German Criminal Law

Markus D. Dubber, University of Toronto, Faculty of Law, has published Ultima Ratio as Caveat Dominus: Legal Principles, Police Maxims, and the Critical Analysis of Law. Here is the abstract.

A comparative and historical analysis of the so-called ultima ratio principle reveals that, despite its Latinate veneer, it is neither ancient nor universal, but a recent addition to the German criminal law canon. Upon further inquiry, ultima ratio also turns out to be ill-defined, undermotivated, and toothless, a fundamental legal principle and distinctive feature of criminal law honored in its ubiquitous breach. In the end, the iron legal principle of ultima ratio may appear more like the flexible police maxim of caveat dominus. Its frequent invocation suggests the need to reconceive legal science as a critical analysis of law in general, and of law's supposed principles in particular. 

Download the full text of the paper from SSRN at the link. 

Picture It

The ABA Journal highlights the work of Nathaniel Burney, author of the Illustrated Guide to Criminal Law. Mr. Burney practices criminal law in New York, and wants to make law more accessible, particularly to high school students. More here.

Dostoyevsky's Legacy

Brian Christopher Jones sends me this post from the blog Misleading Law of the Week. It discusses the Crime and Punishment (Scotland) Act, 1997. Dr. Jones points out that the name of the Act recalls the title of Fyodor Dostoyevsky's classic work Crime and Punishment. Notes Dr. Jones:

When Fyodor Dostoyevsky penned his classic text Crime and Punishment in 1866, he probably never thought that its title would be attached to pieces of legislation or be so culturally prevalent. Over a century later, however, the Westminster Parliament enacted the Crime and Punishment (Scotland) Act 1997, thus inscribing the provocative name of the author's novel into the UK statute book. While the phrase "crime and punishment" has become ubiquitous in popular culture throughout the years, placing it as the title of an official piece of legislation is much different than putting the label on a video game or as the title to a Dawson's Creek episode...or, so it would seem. 

Hollywood and the Death Penalty

David Ray Papke, Marquette Law School, has published Muted Message: Capital Punishment in the Hollywood Cinema as Marquette Law School Legal Studies Paper No. 12-25. Here is the abstract.

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

Download the paper from SSRN at the link.

Hans Kelsen and Modern Law

Christoph Kletzer, King's College London School of Law, has published Primitive Law. Here is the abstract.

This paper discusses the nature and functioning of modern law along Kelsenian lines, starting from a very instructive example of Ancient Germanic Law regulating the legal effects of murder.

Download the paper from SSRN at the link.