October 8, 2009
Padmanabhan on Trials of DetaineesNorm internalization is an objective for trials for violations of international law, which seeks to use the trial to demonstrate to a target audience, usually the community of the defendant, the costs of violating international law, and the stigma of being a violator. The purpose of this exercise is to internalize in that audience a respect for international law and for the norm in question that drives the audience not to repeat the violation in the future. Some scholars have argued that this purpose should be the primary purpose behind international criminal trials. Others have argued that it should, at minimum, be the primary objective of trials for those detained at Guantanamo Bay, with the goal of internalizing an anti-terrorism norm in the Islamic world. Despite the prominence of norm internalization in the literature of international criminal law, however, trials for violations of international law have generally failed to internalize norms in the community of the defendant.
October 7, 2009
"Pot legalization gains momentum in California"
That's the headline on the A.P. story in the Washington Post. The lead:
SAN FRANCISCO -- Marijuana advocates are gathering signatures to get at least three pot-legalization measures on the ballot in 2010 in California, setting up what could be a groundbreaking clash with the federal government over U.S. drug policy.
At least one poll shows voters would support lifting the pot prohibition, which would make the state of 40 million the first in the nation to legalize marijuana.
Featured Download: Chiao on Intention and Attempt
Anglo-American criminal law traditionally demands a criminal purpose for an attempt conviction, even when the crime attempted requires only foresight or recklessness. Some legal philosophers have defended this rule by appeal to an alleged difference in the ‘‘moral character’’ or ‘‘intentional structure’’ of intended versus non-intended harms. I argue that there are reasons to be skeptical of any such differences; and that even if conceded, it is only on the basis of an unworkable view of criminal responsibility that such a distinction would support a rule restricting attempts to criminal purpose. I defend instead the ‘‘continuity thesis,’’ according to which attempts are functionally continuous with endangerment offenses: both are legal efforts to regulate unreasonably dangerous conduct. The upshot of the continuity thesis is that there is little substantive difference between attempt and endangerment in principle, no matter how they are labeled in law.
The piece does a nice job responding to some of the defenses of the traditional approach. It also notes that the purpose requirement is more easily defended in the case of incomplete attempts, where it serves to screen out truly innocent conduct.
Procedural Default Through Fleeing the Jurisdiction
Kent Scheidegger at Crime and Consequences comments on Beard v. Kindler, scheduled for argument before the Court on November 2. His view of the case:
It is common in that the federal court cavalierly brushed aside the state default rule as "inadequate" with its own inadequate analysis of that issue. The case is unusual, though, in that the default is not some omission by defendant's lawyer in arguing his case but rather defendant's own action in escaping from custody and fleeing to Canada.
ScotusWiki has briefs and the opinion below here.
Communicative Retributivism and Life Without Parole for JuvenilesDan Markel (Florida State University College of Law) has an interesting post on this over at PrawfsBlawg. The issue will be argued this term in the Sullivan and Graham cases, previewed here and here.
Logan on Federal Constitutional Rights and State & Local Criminal Laws
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of incorporation doctrine and the nation’s mythic sense of shared constitutional commitment.
O'Malley on Risk
Pat O'Malley (University of Sydney - Faculty of Law) has posted two manuscripts on SSRN: Governmentality and Risk (SOCIAL THEORIES OF RISK AND UNCERTAINTY, pp. 52-75, J. Zinn, ed., Oxford, 2008) and Experiments in Risk and Justice (Theoretical Criminology, Vol. 12, No. 4., pp. 451-470, 2008). Here is the abstract for the first piece:
Governmentality provides one of the most influential analyses of the nature and development of risk-based techniques in government over the past thirty years. In contrast to Beck's 'risk society' theory, which sees risk as a unity, governmentality emphasises the diversity of forms that risk takes as a governmental technique, and stresses their very different implications for those who are governed. In contrast to cultural analyses of risk, that concern themselves with the sociological ways risk is associated with particular congeries of social meanings and group processes, governmentality focuses overwhelmingly on governmental plans and programs. A governmental approach to risk is thus little interested in explaining the rise of risk in terms of some grand theory under which all risk is subordinated as an effect of epiphenomenon, nor in how widespread is the social acceptance of governmental plans. This chapter outlines the advantages and disadvantages of such an approach, what its impact has been, and examines how far governmentality can be integrated with risk society and cultural approaches to risk in contemporary life.
And here is the abstract for the second:
Risk has not been regarded positively in most social theory and critical criminology, especially in the light of Beck's 'risk society' thesis. This paper argues that such criticism is misplaced. Risk is an extremely variable governmental technology, and many of the targets of criticism are shaped by the contemporary political environment. The same environment has given a similar negative cast to other approaches to security. There are ways of deploying risk, such as drug harm minimization strategies, that offer considerable promise for linking risk and security, and more broadly to issues of social justice. However, abstract calls for harm minimizing security, suffer exactly the same problems that confront generalizing about risk-based security. This paper suggests that we could use a governmental analytic to construct a strategic knowledge of risk, both through the analysis of existing approaches (such as harm minimisation and restorative justice) and by using this to generate experiments in risk, security and justice.
October 6, 2009
Transcripts from Today's Oral Arguments
United States v. Stevens is here.
Johnson v. United States is here.
Bloate v. United States is here.
Does Candy Cause Crime?Hat tip to Crime and Consequences for spotting this article in US News and World Report addressing a study that found a correlation between daily consumption of candy and other sweets by children and their later conviction of violent crimes as adults. Both question the study's implication that the sweets cause the crimes--e.g., according to US News, "[a] possible explanation for the candy-violence association is that giving children sweets and chocolate regularly may prevent them from learning to delay gratification. That, in turn, may encourage impulsivity, which is linked to delinquency."
Oral Argument in Maryland v. ShatzerScotusBlog points to the Court's website, which has the transcript from yesterday's oral argument here. Susan Bandes (Depaul) blogs about the argument at ACSBlog in a post entitled Bright Line Fever: The Argument in Maryland v. Shatzer.
Koops on Law and Technology
Three power relations – law enforcement-citizen, employer-employee, and business-consumer – are analyzed on the basis of case descriptions and a general discussion. The analysis shows that with mushrooming databases and profiling technologies, power relations are changing in character and scope. Overarching trends are using digital personae as a basis for decision-making and creating panoptic risk-governing architectures that have a potentially self-disciplining effect on observed parties. Existing legal mechanisms are not sufficient to protect weak parties against errors in decision-making and the subtle and indirect uses of architectural power. Legal protection in criminal and administrative law, labor law, and consumer law should therefore be updated. This, however, is only part of the story. The different roles of individuals as citizens, employees, and consumers are becoming intertwined in the information society. Decisions are made about digital personae living in interconnected, context-crossing databases that are fed by pervasively monitoring architectures. On top of sector-specific legal protection, we therefore also need a comprehensive approach, which is most likely to be found in data protection: enforceable rules about who processes which data for which purposes. However, the jury is out on the question how data subjects can realistically be protected in the networked database age. The dominant, orthodox view favors the European approach of data limitation and user control, facilitated by privacy-enhancing technologies. A subsidiary, radical view favors user-generated data maximization and ubiquitous transparency. While proliferating databases and panoptic architectures play into the hands of strong parties, we will have to decide today upon a consistent approach to achieve effective data protection for tomorrow’s individuals. If the orthodox view does not prove successful soon, then we should perhaps collectively adopt the radical view. On that note, a postscript ends the article quoting Umberto Eco’s Anopticon as a welcome addition to the literature on panopticism and how to resist it.
In unequal power relations, the law controls the power of strong parties by providing weak parties with inequality-compensating rights. This classic account of inequality compensation in criminal law, labor law, and consumer law is challenged with the advent of information-related technologies: power relations start to change. Both strong and weak parties can improve their information position, causing power relations to shift in various ways. This article aims to map technology-related changes in power relations in law enforcement, labor, and commerce, and to assess the consequences of these changes for the legal protection of citizens, employees, and consumers. The analysis is illustrated by reference to American and Dutch law, comparing common-law and civil-law approaches to inequality compensation.
Rehabilitating Bentham's Theory of Excuses (Dripps)
Excuses furnish legal theory with one of its great mysteries. The two abiding families of punishment theory, the utilitarian and the retributive, offer quite different justifications. For retributivists, excusing conditions either break the link between the defendant's harmful conduct and any inference of bad character, or mitigate the guilt of a wrong choice because the right choice was, under the circumstances, also a hard choice. The case for excuses is thus practically built into the standard retributive accounts.
Explaining excuses poses more of a challenge for utilitarians. Jeremy Bentham argued that excuses follow logically from the principle of frugality in punishment. The frugality principle holds that punishment, which entails the deliberate infliction of pain on fellow creatures, is always an evil and so can only be justified by countervailing benefits. In cases of unexcused wrongdoing, society can expect to benefit from punishment by deterring similar conduct in the future.
Bentham argued that infancy, insanity, intoxication and duress made punishment inefficacious. These excusing conditions make the legal threat an ineffective deterrent, either because they make the actor less rational than a safe, sane and sober adult, or because the rational thing for the actor to do in the face of duress is to comply with the private rather than the public threat. The frugality principle then justifies the excuses. Punishing the undeterrable inflicts pain to no purpose and is prima facie wrong.
Today Bentham's theory is famous chiefly because of the memorable phrase H.L.A. Hart used to dismiss it. Hart called Bentham's argument a "spectacular non sequitur" and the phrase has stuck. Hart argued that Bentham had confused the fact that the instant defendant was not deterred with the proposition that others facing similar or apparently similar situations are undeterrable. So Hart and other modern utilitarians, such as Richard Brandt, have defended the excuses by suggesting that a system that did not recognize them would produce negative consequences that, although long-term and diffuse, outweigh any immediate cost to general deterrence.
In an essay prepared for a symposium on excuses at the Texas Tech University School of Law, I defend Bentham's basic account of excuses against Hart's criticism. The essay makes two primary supporting arguments. The first is an appeal to what I call the pluralism constraint. Given a pluralistic political system that includes freedom of thought and expression, criminal justice policy will not long endure public perceptions of that policy as either very dangerous or very unfair. This is not to say that utilitarian and retributive theories are compatible. It is to say, rather, that both families of theories will have enough support in a liberal democracy of the modern type to make very grave offenses to either unsustainable.
It follows that if excuse doctrine imposes high costs on general deterrence excuse doctrine likely would be changed. Now if the long-term costs foreseen by writers like Hart and Brandt were obvious and substantial, society might bear a high cost indeed for retaining the excuses. The ill effects of denying excuses, however, are conjectural, even dubious. I suspect that utilitarians who reject Bentham's account are mollifying intuitions about fairness rather than constructing solid consequentialist arguments for the excuses.
If that is so, the pluralism constraint means that the excuses remain because Bentham was right. They don't threaten general deterrence, at least as they are presently constructed. Indeed, when it comes to the positive law, and at least in the United States to the trend of its reform, excuse doctrine makes more compromises about fairness than it does about efficiency. The pluralism constraint also means that modern systems cannot long survive perceptions of gross unfairness any more than they can survive the perception that public safety is gravely jeopardized. The law reflects a jumble of principles in very ragged equipoise. We recognize excuses in the core cases of very hard choices, and then limit the exemption from liability, sometimes quite unfairly, lest social control unduly suffer.
The second line of argument picks up where the first leaves off. If public safety can tolerate the excuses, why do the excuses cost so little in terms of general deterrence? Here I attempt to rehabilitate Bentham's argument directly, generally following hints left by Bentham himself, and a supplemental account given, then abandoned, by Glanville Williams. If the legal process can assess accurately the presence or absence of excusing facts, and these facts when present greatly reduce if not eliminate the behavioral influence of legal punishment on typical persons, Bentham's basic point holds good. The burden of my second argument, then, is to corroborate the presumption claimed by the first. We have excuses not because fairness requires us to endanger the public safety, but because the public safety permits us to be less unfair than modern utilitarians like Hart have thought the interest in general deterrence requires us to be.
Those wishing to read the extire manuscript can find it here.
October 5, 2009
ScotusBlog Coverage of Opening Day
With today's commencement of a new term of Court, the time is right to remind those who have forgotten, and to inform those who didn't know, about ScotusBlog, a wonderful source of information for those tracking cases before the U.S. Supreme Court. The site publishes the Court's order list--today's includes no cert grants but plenty of cert denials. ScotusWiki links to briefs and opinions in cases in which review has been granted and in selected pre-grant cases designated as "Petitions to Watch." ScotusBlog today covered media attention focused on several of the cert denials here; here is their summary of the coverage of some of the criminal law and procedure cases in which cert was denied:
Holmes v. Louisiana: The Court declined to hear an appeal from a death row inmate who has claimed that developmental disabilities caused by fetal alcohol syndrome should disqualify her from execution. CNN, UPI, and the AP all have coverage of the case.
Mikos v. United States: The LA Times, the Chicago Sun Times, NBC Chicago, and the AP report on the news that the Court will not hear an appeal of the conviction of a doctor who allegedly shot a nurse to prevent her from testifying against him in a Medicare fraud case. The defense has contended that prosecutors encouraged the jury to focus on the doctor’s failure to testify on his own behalf.
Nacchio v. United States: The AP, Reuters, the Wall Street Journal, WSJ Law Blog, the New York Times, the Denver Post, and the Huffington Post all have coverage of the Court’s refusal to hear former Qwest CEO Joseph Nacchio’s appeal of his conviction for insider trading. Nacchio’s attorneys had argued that he was not given a fair trial.
"From Polanski to "Big Love": Hollywood's Twisted View of Child Sex Abuse"The title of the column by Marci Hamilton (Cardozo School of Law) at FindLaw.
"NEWSFLASH: Ohio Governor puts all state executions on hold until at least 2010"Doug Berman has the story over at Sentencing Law and Policy.
"Fugitives Run Out of Places to Hide"The Wall Street Journal has the story here, jumping off from the Polanski case to discuss how the global response to terrorism has led to an increase in cooperation among countries and an increase in the number of fugitives returned to the United States for prosecution.
Lynch on Arizona and the Transformation of American Punishment
Mona Lynch (UC-Irvine, Department of Criminology, Law & Society) has published SunBelt Justice: Arizona and the Transformation of American Punishment with Stanford University Press. Here is a description from the publisher's website:
In the late 20th century, the United States experienced an incarceration explosion. Over the course of twenty years, the imprisonment rate quadrupled, and today more than than 1.5 million people are held in state and federal prisons. Arizona's Department of Corrections came of age just as this shift toward prison warehousing began, and soon led the pack in using punitive incarceration in response to crime. Sunbelt Justice looks at the development of Arizona's punishment politics, policies, and practices, and brings to light just how and why we have become a mass incarceration nation.
The table of contents and excerpts from the introduction are also available at the publisher's website.
Sarma on Proportionality Review in Capital Cases
Bidish Sarma (The Justice Center's Capital Appeals Project) has posted Furman‘s Resurrection: Proportionality Review and the Supreme Court's Second Chance to Fulfill Furman‘s Promise (Cardozo Law Review de novo, p. 238, 2009) on SSRN. Here is the abstract:
Last term, Justice Stevens‘ statement respecting the denial of certiorari in Walker v. Georgia resurrected the specter of Furman‘s unfulfilled promise-that the Court would not tolerate a death sentence based upon arbitrary or discriminatory factors. Stevens observed that "the likely result of such a truncated [proportionality] review . . . is the arbitrary or discriminatory imposition of death sentences in contravention of the Eighth Amendment." Not only has this statement sparked renewed interest in an area of death penalty jurisprudence many believed to be a dead letter, but it also may provide capital defendants with the opportunity to present the Court with pervasive evidence that death sentencing today is no less arbitrary than when the Court decided Furman.
After briefly revisiting Furman‘s holding, this article reviews the trajectory of the Court‘s proportionality review jurisprudence. It then explores how meaningful proportionality review can substantially decrease the risk that criminal defendants will suffer arbitrary death sentences. Finally, it argues that in the face of mounting evidence that the death penalty is as arbitrary now as it was when Furman was decided, challenges to deficient proportionality review practices provide the Court with a new and timely opportunity to fulfill a constitutional promise it recognized nearly forty years ago.
Featured Download: Ristroph on MPC Sentencing Reform
Alice Ristroph (Seton Hall University - School of Law) has posted on SSRN a provocative critique of the new MPC sentencing provisions, especially focusing on the role of retributivism in the proposal. Here is the abstract for How (Not) to Think Like a Punisher (Florida Law Review, Vol. 61, p. 727, 2009):
This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical analysis that may actually make American sentencing less arbitrary and, importantly, less severe. When the Code retreats to retributive or desert theory, it appeals to indeterminate and unpredictable principles that threaten to undermine the new provisions’ more salutary proposals.
Professor Ristroph's concern seems well founded that the MPC proposal might lead to political pushback if judges accept the invitation to second-guess political assessments of desert. I am more skeptical about the wisdom, and even the feasibility, of banishing retributive notions from sentencing discourse, and I am less sanguine than Professor Ristroph seems about the effects of utilitarianism unchecked by limiting retributive ideas. But one cannot dispute her position that retributive ideas have not always had a salutary effect on sentencing practices. Overall, a very interesting read.
Posts from CrimProf you may have missed over the weekend:
- Featured Download: Robinson, Cahill & Bartels on Blackmail
- South Carolina Seeks Crim Law/Evidence Visitor
- Exum Presents Sentencing Paper at Cincinnati
- Proposed Federal Cyberbullying Bill
- Kaye on McDaniel v. Brown
- Next Week's USSC Criminal Law/Procedure Arguments
- Levinson on Social Cognition Theory and Racial Bias in Capital Punishment
- "Major Supreme Court cases for the new term"
- O'Malley on Bentham's Evolution
- Moriarty on Reckless Encouragement to Reckless Wrongdoers
- Weissman and Weissman on Political Culture and Ordinary Crime in Cuba
- "Botched Executions"
- Top-Ten Recent SSRN Downloads
- Symposium and Call for Papers on Confronting Scientific Evidence
- The Number One Reason the Letterman Blackmail Case Will Annoy Criminal Law Professors
- "Does the Mere Existence of an Invalid Arrest Warrant Injure Its Target?"
- Suspect Still Seized While Fleeing After Being Pepper Sprayed
- "The 10 biggest cases to watch for sentencing fans in the new SCOTUS term"