The Center for Law, Society, and Culture (http://www.law.indiana.edu/centers/lawsociety/) is sponsored by the Indiana University Maurer School of Law. The Center actively supports and promotes multidisciplinary understanding of law and legal problems through scholarship, teaching, and discussion. The Center is located in the School of Law on the Bloomington campus of Indiana University, but produces, presents and coordinates research conducted by more than 70 scholars from schools and departments across Indiana University. The Center's affiliated scholars hold appointments in African-American studies, business, criminal justice, journalism, history, economics, English, law, and gender studies, among others, and are dedicated to an interdisciplinary approach to the study of the role of law in society and culture. The Center supports research related to the law in a broad sense, including the cultural aspects of law expressed through political theory and scientific aspects of law expressed through technological advances in biotechnology, environmental science and information technology.
LAW & SOCIETY: PUBLIC LAW - CRIME, CRIMINAL LAW, & PUNISHMENT eJOURNAL
Sponsored by: Indiana University Maurer School of Law
"Modern-Day Inquisition: A Report on Criminal Persecution, Exposure of Intimacy and Violation of Rights in Brazil"
SUR - International Journal On Human Rights, v. 10, n. 19, Dec. 2013
ALEXANDRA LOPES DA COSTA, Universidade Federal do Mato Grosso
In April 2007, Brazilian media reported the existence of a â€śFamily Planning Clinicâ€? that allegedly performed abortions in the city of Campo Grande (in the state of Mato Grosso do Sul). Three days later, the police raided the establishment and seized nearly 10,000 medical files, violating the privacy of women who had dared to exercise the freedom to make decisions and control their own lives. The article tells this story, known as the â€ścase of the 10,000 womenâ€?, so as to reflect on the restrictions on womenâ€™s reproductive rights and to comment on the coercion resulting from the law that bans the voluntary termination of pregnancy in Brazil.
"The Failure of Mitigation?"
Hastings Law Journal, Vol. 65, 2014
ROBERT J. SMITH, University of North Carolina School of Law
SOPHIE CULL, Independent
ZOE ROBINSON, DePaul University College of Law
A vast literature details the crimes that condemned inmates commit, but very little is known about the social histories of these capital offenders. For example, how many offenders possessed mitigating characteristics that demonstrate intellectual or psychological deficits comparable to those shared by classes of offenders categorically excluded from capital punishment? Did these executed offenders suffer from intellectual disability, youthfulness, mental illness, or childhood trauma? The problem with this state of affairs is that the personal characteristics of the defendant can render the death penalty an excessive punishment regardless of the characteristics of the crime. This Article begins to fill the mitigation knowledge gap by describing the social histories of the last hundred offenders executed in America. Scouring state and federal court records, this Article documents the presence of significant mitigation evidence for eighty-seven percent of executed offenders. Though only a first step, our findings suggest the failure of the Supreme Courtâ€™s mitigation project to ensure the only offenders subjected to a death sentence are those with â€śa consciousness materially more depravedâ€? than that of the typical murderer. Indeed, the inverse appears to be true: the vast majority of executed offenders possess significant functional deficits that rival â€” and perhaps outpace â€” those associated with intellectual impairment and juvenile status; defendants that the Court has categorically excluded from death eligibility.
"Rising Waters, Rising Threats: The Human Trafficking of Indigenous Women in the Circumpolar Region of the United States and Canada"
The Yearbook of Polar Law, Vol. 6, Gudmundur Alfredsson, ed., Brill, 2014
VICTORIA SWEET, Michigan State University - College of Law
Among indigenous people around the world, human trafficking is taking a tremendous toll. While trafficking is not an exclusively indigenous issue, disproportionately large numbers of indigenous people, particularly women, are modern trafficking victims. In Canada, several groups concerned about human trafficking have conducted studies primarily focused on the sex trade because many sex workers are actually trafficking victims under both domestic and international legal standards. These studies found that First Nations women represent approximately 70% of the visible sex trade in areas where the Aboriginal population is less than 10%. Very few comparable studies have been conducted in the United States, but studies in both Minnesota and Alaska found similar statistics among U.S. indigenous women.
With the current interest in resource extraction, and other opportunities in the warming Arctic, people from outside regions are traveling north in growing numbers. This rise in outside interactions increases the risk that the indigenous women may be trafficked. Recent crime reports from areas that have had an influx of outsiders such as Williston, North Dakota, U.S. and Fort McMurray, Alberta, Canada, both part of the new oil boom, demonstrate the potential risks that any group faces when people with no community accountability enter an area. The combination of development in rural locations, the demographic shift of outsiders moving to the north, and the lack of close monitoring in this circumpolar area is a potential recipe for disaster for indigenous women in the region. This paper suggests that in order to protect indigenous women, countries and indigenous nations must acknowledge this risk and plan for ways to mitigate risk factors.
"Dangerous Diagnoses, Risky Assumptions, and the Failed Experiment of 'Sexually Violent Predator' Commitment"
Oklahoma Law Review, Forthcoming
DEIRDRE M. SMITH, University of Maine School of Law
In the 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that presented a new model of civil commitment. The targets of these new commitment laws were dubbed â€śSexually Violent Predators,â€? and the Court upheld this form of indefinite detention on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true â€śpredators,â€? those for whom this unusual and extraordinary deprivation of liberty is appropriate and legitimate, with the aid of testimony from mental health professionals. This Article evaluates the extent to which those assumptions were correct and concludes that they were seriously flawed and, therefore, the due process rationale used to uphold the SVP laws is invalid. The category of the â€śSexually Violent Predatorâ€? is a political and moral construct, not a medical classification. The implementation of the laws has resulted in dangerous distortions of both psychiatric expertise and important legal principles, and such distortions reveal an urgent need to re-examine the Supreme Courtâ€™s core rationale in upholding the SVP commitment experiment.
"The (Re)Discovery of the Proportionality Principle in Sentencing in Ipeelee: Constitutionalization and the Emergence of Collective Responsibility"
SUPREME COURT LAW REVIEW (2013), 63 S.C.L.R. (2d)
MARIE-EVE SYLVESTRE, University of Ottawa - Civil Law Section
This paper discusses two important developments following the Supreme Court's decisions in Ipeelee/Ladue. First, it suggests that the Court's first-time recognition of the proportionality principle in sentencing as a principle of fundamental justice under section 7 of the Charter is likely to have tremendous impact on sentencing theory and practice by offering new constitutional grounds to challenge mandatory minimal sentences and arbitrarily disproportionate sentences. Second, this paper builds on the Court's development around the notion of degree of responsibility to propose a new conception of shared and collective responsibility that include the responsibility of state agents and of the state in the perpetration of the crime and allows sentencing judges to reduce or nullify offender's sentences accordingly.
"Sentencing Terrorist Crimes"
Ohio State Law Journal, Vol. 75, No. 3, 2014
WADIE E. SAID, University of South Carolina School of Law
The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Courtâ€™s sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.
Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature â€” airplane hijacking being the prime example â€” sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed â€śa federal crime of terrorism.â€? Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. Â§ 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Courtâ€™s Sixth Amendment jurisprudence.
The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Courtâ€™s instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.
About this eJournal
Sponsored by: Indiana University Maurer School of Law.
This eJournal distributes working and accepted paper abstracts of empirical or theoretical scholarship on topics related to crime, criminal law, and criminal punishment (including the death penalty), from any disciplinary perspective. Covered topics include victims' rights, criminal sentencing rules, criminal sentencing procedures, criminal punishment, theories of criminal punishment, alternatives to traditional criminal punishment, criminal law doctrine, and administration of criminal justice.
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Law & Society: Public Law - Crime, Criminal Law, & Punishment eJournal
ALFRED C. AMAN
Roscoe C. O'Byrne Professor of Law, Indiana University-Bloomington, Maurer School of Law
Professor of Law, Indiana University Maurer School of Law
PETER C. CARSTENSEN
George H. Young-Bascom Professor of Law, University of Wisconsin Law School
KENNETH GLENN DAU-SCHMIDT
Willard and Margaret Carr Professor of Labor and Employment Law, Indiana University Maurer School of Law
LAUREN B. EDELMAN
Director, Center for the Study of Law and Society, Agnes Roddy Robb Professor of Law and Professor of Sociology, University of California, Berkeley - Jurisprudence & Social Policy Program and Center for the Study of Law and Society
SALLY ENGLE MERRY
Marion Butler McLean Professor in the History of Ideas, Wellesley College - Department of Anthropology
HOWARD S. ERLANGER
Voss-Bascom Professor of Law, Professor of Sociology, President, Law and Society Association, Review Section Editor - Law & Social Inquiry, Director - Institute for Legal Studies, University of Wisconsin Law School
LUIS E. FUENTES-ROHWER
Professor of Law, Adjunct Professor of Latino Studies, Adjunct Professor of Political Science, Indiana University Maurer School of Law
MARC S. GALANTER
John & Rylla Bosshard Professor of Law, University of Wisconsin Law School, Madison
Co-Director, Center for Law, Society and Culture, Professor of History & Law, Indiana University-Bloomington, Maurer School of Law
WILLIAM D. HENDERSON
Professor of Law, Indiana University Maurer School of Law
Editorial Advisory Board, Law and Society Review, Assistant Professor, University of Illinois at Urbana-Champaign - Department of Sociology
Professor of Law and Political Science, SUNY Buffalo Law School
JOYCE S. STERLING
Professor of Law, University of Denver Sturm College of Law