Law Commons^™

Submission To The Queensland Taskforce On Organised Crime Legislation (Inquiry Area 5), Terry Goldsworthy

Terry Goldsworthy

In response to a request from the Executive Director of the Commission the following submissions provide Dr. Goldsworthy’s responses as they relate to each term of reference:

1. If provisions in the 2013 legislation are effectively facilitating the successful detection, investigation, prevention and deterrence of organised crime

2. If provisions in the 2013 legislation are effectively facilitating the successful prosecution of individuals

3. If the 2013 legislation strikes an appropriate balance between ensuring the safety, welfare and good order of the community and protecting individual civil liberties, including in relation to the anti‐association provisions in the 2013 legislation

4. How …

Penal Culture And Hyperincarceration: The Revival Of The Prison, Alex Steel, Chris Cunneen, David Brown, Eileen Baldry, Melanie Schwartz, Mark Brown

David C. Brown

What are the various forces influencing the role of the prison in late modern societies? What changes have there been in penality and use of the prison over the past 40 years that have led to the re-valorization of the prison? Using penal culture as a conceptual and theoretical vehicle, and Australia as a case study, this book analyses international developments in penality and imprisonment. Authored by some of Australia’s leading penal theorists, the book examines the historical and contemporary influences on the use of the prison, with analyses of colonialism, post colonialism, race, and what they term the ‘penal/colonial …

How The Justice System Fails Us After Police Shootings, Caren Morrison

Caren Myers Morrison

No abstract provided.

The Law Of Asset Forfeiture, Jimmy Gurule

Jimmy Gurule

The Law of Asset Forfeiture distinguishes the materials applicable to civil and criminal forfeiture. Attention is also paid to the most important affirmative defenses, many of a constitutional nature, as well as the non-judicial forms of relief available to property owners. There is an update feature on the LexisNexis site.

Confronting Cops In Immigration Court, Mary Holper

Mary Holper

Immigration Surveillance, Anil Kalhan

Anil Kalhan

In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information …

Neighborhood Differences In Attitudes Toward Policing: Evidence For A Mixed-Strategy Model Of Policing In A Multi-Ethnic Setting, Roger Dunham, Geoffrey Alpert

Roger G. Dunham Dr.

No abstract provided.

To Honor Hoffman, Focus On Prevention, Not The Drug War, Leo Beletsky

Leo Beletsky

No abstract provided.

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel Gross, Barbara O'Brien, Chen Hu, Edward Kennedy

Edward H. Kennedy

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

Justice For Girls: Are We Making Progress?, Francine Sherman

Francine T. Sherman

Social expectations that girls behave obediently, modestly, and cautiously result in the detention and incarceration of girls who fight back at home or in intimate relationships and who are victims of sexual exploitation. The structural discrimination that supports detaining and incarcerating girls for violating these norms is both hard to see and hard to challenge. It is often hidden behind outward good will toward girls and legitimate expressions of concern for their vulnerability and possible victimization; and it is facilitated by the many opportunities for multifactored, "best interests" -based discretionary decisions built into the juvenile justice and child welfare systems. …

The Innocent Defendant’S Dilemma: An Innovative Empirical Study Of Plea Bargaining’S Innocence Problem, Lucian Dervan, Vanessa Edkins

Lucian E Dervan

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 …

Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado

Richard Delgado

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases. In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own legitimacy? Professor Delgado examines …

Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan

Lucian E Dervan

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are …

Hearing On Stolen Or Counterfeit Goods Legislation, Lucian Dervan

Lucian E Dervan

On March 28, 2012, Professor Dervan was called to testify before the Subcommittee on Crime, Terrorism, and Homeland Security (Judiciary Committee, U.S. House of Representatives) and offer his thoughts regarding proposed counterfeit goods legislation (The Safe Doses Act (H.R. 4223) and the Counterfeit Drug Penalty Enhancement Act of 2011 (H.R. 3668)). In his prepared statement, Professor Dervan examines the phenomenon of overcriminalization, the collapse of mens rea, the true impact of increased statutory maximums, plea bargaining, and the continued deterioration of our constitutionally protected right to trial by jury. His closing remarks to the Committee offer a poignant critique of …

Global Bribery: The Foreign Corrupt Practices Act, Lucian Dervan

Lucian E Dervan

Written for a European publication focusing on internal investigations, this piece seeks to introduce the reader to the fundamental elements of the American FCPA, including discussion of available defenses under the statute. Further, this piece discusses some of the collateral considerations that must be made during the investigation of an FCPA matter, particularly given the existence of overlapping anti-bribery provisions in various countries throughout the world and the likelihood of concurrent parallel proceedings both in the United States and abroad during the pendency of any international bribery matter. Finally, this piece offers some thoughts regarding FCPA compliance programs.

Information Warfare And Civilian Populations: How The Law Of War Addresses A Fear Of The Unknown, Lucian Dervan

Lucian E Dervan

Imagine a civilian communications system is being temporarily relied upon by an opposing military force for vital operations. If one launches a computer network attack against the communications system, the operation may disable the opposing force’s ability to function adequately and, as a result, prompt their surrender. The alternative course of action is to launch a traditional kinetic weapons attack in the hopes of inflicting enough casualties on the troops to induce surrender. Given these options, the law of war would encourage the utilization of the computer network attack because it would result in less unnecessary suffering. But is the …

American Prison Culture In An International Context: An Examination Of Prisons In America, The Netherlands, And Israel, Lucian Dervan

Lucian E Dervan

In 2004, British authorities arrested Abu Hamza al-Masri, an Egyptian born cleric sought by the United States for his involvement in instigating terrorist attacks. As authorities prepared to extradite him in July 2010, the European Court of Human Rights issued a stay. According to the court, al-Masri’s claims that maximum-security prisons in the United States violate European human rights laws prohibiting torture and degrading treatment warranted further examination. Regardless of the eventual resolution of the al-Masri case, the European Court of Human Rights’ inability to summarily dismiss these assertions demonstrates something quite troubling. At a minimum, the court’s actions indicate …

Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining And Overcriminalization, Lucian Dervan

Lucian E Dervan

In discussing imperfections in the adversarial system, Professor Ribstein notes in his article entitled Agents Prosecuting Agents, that “prosecutors can avoid the need to test their theories at trial by using significant leverage to virtually force even innocent, or at least questionably guilty, defendants to plead guilty.” If this is true, then there is an enormous problem with plea bargaining, particularly given that over 95% of defendants in the federal criminal justice system succumb to the power of bargained justice. As such, this piece provides a detailed analysis of modern-day plea bargaining and its role in spurring the rise of …

The Surprising Lessons From Plea Bargaining In The Shadow Of Terror, Lucian Dervan

Lucian E Dervan

Since September 11, 2001, several hundred individuals have been convicted of terrorism related charges. Of these convictions, over 80% resulted from a plea of guilty. It is surprising and counterintuitive that such a large percentage of these cases are resolved in this manner, yet, even when prosecuting suspected terrorists caught attempting suicide attacks, the power of the plea bargaining machine exerts a striking influence. As a result, a close examination of these extraordinary cases offers important insights into the forces that drive the plea bargaining system. Utilizing these insights, this article critiques two divergent and dominant theories of plea bargaining …

Reflections Regarding Place Of Damage In Relation To Keyword Advertising, Ulf Maunsbach

Ulf Maunsbach

No abstract provided.

Re-Evaluating Corporate Criminal Liability: The Doj's Internal Moral Culpability Standard For Corporate Criminal Liability, Lucian Dervan

Lucian E Dervan

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own …

Prisoners In 2009, Heather C. West, William J. Sabol, Sarah J. Greenman

Sarah Greenman

No abstract provided.

Selling Confession: Setting The Stage With The "Sympathetic Detective With A Time-Limited Offer", Richard Leo, Deborah Davis, William C. Follette

Richard A. Leo

The effectiveness of an interrogation tactic dubbed the “sympathetic detective with a time limited offer” was tested. Participants read two versions of an interrogation transcript, with and without the tactic. Those who read the sympathetic detective version believed the detective had greater authority to determine whether and with what to charge the suspect, more beneficent intentions toward the suspect, and viewed confession as more wise. However, regression analyses indicated that for innocent suspects, only perceptions of the strength of evidence against the suspect and the detective’s beneficence and authority predicted the perceived wisdom of false confession. Interrogation tactics were generally …

Commentary On Predicting Crime, Tom Bell

Tom W. Bell

The market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box …

Commentary: Overcoming Judicial Preferences For Person- Versus Situation-Based Analyses Of Interrogation-Induced Confessions, Deborah Davis, Richard Leo

Richard A. Leo

This article identifies some fundamentally mistaken assumptions underlying admissibility decisions favoring disposition-related expert testimony regarding individual vulnerability to false confession over situation-based testimony describing how the context or nature of interrogation can promote false confessions. The authors argue that it is important to understand both the forces of influence within police interrogations and the individual differences that enhance vulnerability to these forces. Most false confessions occur in the context of interrogation and in response to the sources of distress and persuasive tactics of the interrogation. For this reason, this article suggests that experts asked to evaluate an interrogation-induced confession should …

One Hundred Years Later: Wrongful Convictions After A Century Of Research, Richard Leo

Richard A. Leo

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 …

Police-Induced Confessions: Risk Factors And Recommendations, Saul M. Kassin, Steven A. Drizin, Thomas Grisso, Gisli H. Gudjonsson, Richard A. Leo, Allison D. Redlich

Richard A. Leo

Recent DNA exonerations have shed light on the problem that people sometimes confess to crimes they did not commit. Drawing on police practices, laws concerning the admissibility of confession evidence, core principles of psychology, and forensic studies involving multiple methodologies, this White Paper summarizes what is known about police-induced confessions. In this review, we identify suspect characteristics (e.g., adolescence; intellectual disability; mental illness; and certain personality traits), interrogation tactics (e.g., excessive interrogation time; presentations of false evidence; and minimization), and the phenomenology of innocence (e.g., the tendency to waive Miranda rights) that influence confessions as well as their effects on …

Domain Names As Jurisdiction-Creating Property In Sweden, Ulf Maunsbach, Michael Bogdan

Ulf Maunsbach

No abstract provided.

Responding To Potential Employee Misconduct In The Age Of The Whistleblower: Foreseeing And Avoiding Hidden Dangers, Lucian E. Dervan

Lucian E Dervan

The number of law suits brought against corporations in the United States as a result of employee whistleblowers has risen in recent years. There are two predominant reasons for this trend. First, publicity surrounding cases such as Enron in the early 2000s have made employees more sensitive to potential misconduct in the workplace. For instance, a 2007 study found that 56% of employees reported that they had observed conduct that “violated company ethics standards, policy, or the law” in the previous twelve months. Second, employees are now more aware of the role of whistleblowers and are more likely to report …

Watching Your Step: Avoiding The Pitfalls And Perils Of Corporate Internal Investigations, Lucian E. Dervan

Lucian E Dervan

Since the creation of the Corporate Fraud Task Force in July 2002, the United States Department of Justice and the other member agencies have worked feverishly to ferret out corporate crime and punish wrongdoers. The Task Force, in the three years following the announcement of its formation by President Bush, has instituted hundreds of investigations, secured over five hundred corporate fraud convictions or guilty pleas, and charged over nine hundred defendants. Not to be outdone by federal law enforcement authorities, some state attorneys general have followed suit, pursuing their own well-publicized probes of corporate practices. The stakes in these investigations …