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1.  Disentangling Child Pornography from Child Sex Abuse

Carissa Byrne Hessick , Arizona State, Sandra Day O’Connor College of Law, Washington University Law Review, Vol. 88, 2010

Recent years have seen a significant increase in the criminal penalties associated with possession of child pornography. The new severity appears to be premised on arguments that blur the distinction between those who possess images of child pornography and those who sexually abuse children. In particular, sentences have been increased based on arguments that possession of pornography is equivalent to or worse than child sex abuse, arguments that viewing child pornography increases the risk that an individual will sexually abuse a child, and arguments that those who possess child pornography are abusing children undetected. This Article identifies instances where possession of child pornography and child sex abuse have been conflated, critically evaluates the arguments that promote such conflation, and identifies independent concerns with conflation. Specifically, it argues that blurring the distinction between the two crimes allows us to continue to misperceive child sex abuse as a stranger-danger issue, and that when law enforcement statistics aggregate possession and child sex abuse, then the public may be misled into believing that law enforcement is successfully battling child sex abuse, when that is not the case. The Article concludes that the modern trend of increasing sentences for possession of child pornography ought to be reviewed, and it suggests several possible areas of reform.


2.  Judging Police Lies: An Empirical Perspective

Melanie D. Wilson
University of Kansas – School of Law, January 10, 2010

This article presents findings from an empirical study of judicial orders in one Midwestern federal district court over a twenty-four-month period. The study analyzes trial court decisions to determine whether, as scholars often contend, judges consistently side with the prosecution when a defendant claims that the police lied during the criminal investigation of her case.
While analyzing judges’ receptiveness to police dishonesty arguments, the study also looks at the frequency with which defendants make such arguments, the types of cases in which defendants claim police lies, and the indicators that appear to persuade trial judges that the police have lied. For instance, the study finds that the defense accuses officers of lying in about 7% of formal pleadings and hearings and that when the defense argues police dishonesty, 84% of the time the arguments are made in the context of challenging a search or seizure.
Ultimately the article concludes that trial judges are perpetuating police perjury by failing to denounce police dishonesty with their rulings.


3.  Recognizing Constitutional Rights at Sentencing (Note, CAAF has held that there is no constitutional right of confrontation at sentencing.)

F. Andrew Hessick III, Arizona State University – Sandra Day O’Connor College of Law
Carissa Byrne Hessick, Arizona State, Sandra Day O’Connor College of Law
California Law Review, Forthcoming

There are a number of traditional sentencing factors, which judges use when selecting the precise sentence within the statutory sentencing range, that appear to infringe on the constitutional rights of criminal defendants. Yet courts have not engaged in traditional constitutional analysis when permitting the use of these factors. Instead, they have rejected constitutional challenges to sentencing factors on the grounds that recognizing substantive constitutional limits on sentencing considerations would be inconsistent with historical practice and would interfere with the judiciary’s ability to impose a proper sentence. This Article challenges these claims. It demonstrates both that there is not a historical practice of disregarded rights at sentencing, that constitutional rights frequently impair the government’s ability to accomplish its goals, and that there is nothing unique about sentencing that warrants the judiciary’s disregard of constitutional rights because of these impediments. It further argues that recognizing constitutional limits on sentencing considerations is particularly important given that sentencing is the means by which the government restricts individual liberty.


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