CrimProf Blog

Spring Forward, Fall Back, and Happy Halloween from CrimProf!

and my niece.

KC

"Can Our Shameful Prisons Be Reformed?"

Doug Berman at Sentencing Law and Policy excerpts this new piece by David Cole (Georgetown University Law Center) in the New York Review of Books.discussing Race, Incarceration, and American Values by Glenn C. Loury, with Pamela S. Karlan, Tommie Shelby, and Loïc Wacquant; Let's Get Free: A Hip-Hop Theory of Justice by Paul Butler; and Releasing Prisoners, Redeeming Communities: Reentry, Race, and Politics by Anthony C. Thompson. 

Bronsteen on Retribution's Role

John Bronsteen (Loyola Chicago School of Law) has published Retribution's Role in the Indiana Law Journal. Here is the abstract:

Two main types of principle, retributive and consequentialist, have long been identified as the main approaches to justifying criminal punishment. Retributivists deem punishment justified by the wrongdoing of the offender, whereas utilitarians deem it justified by its good consequences such as deterring future crime. Over the past fifty years, each has spent decades as the dominant theory, and many hybrid theories have also been advanced. But few, if any, of the hybrid approaches have valued heavily both retributive and consequentialist considerations while locating the particular justificatory role each category plays. This Article points in that direction by reframing the central question of punishment justification as two questions: Why does the state have a right to punish, and why does it choose to exercise that right?
The first question is answered most naturally by retributive considerations, whereas the second identifies the most natural space for utilitarian values. This framing device, it is hoped, resolves some of the disputes between retributivists and utilitarians while sharpening the focus on those that remain.

Wils on EU Antitrust Fines

Wouter P. J. Wils has posted The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights (World Competition: Law and Economics Review, Vol. 33, No. 1, March 2010) on SSRN. Here is the abstract:

Some lawyers and businesses have claimed that, because of an increase in the level of antitrust fines imposed by the European Commission in recent years, these fines have become criminal in nature, and that the current institutional and procedural framework in which fines are imposed by the European Commission, with subsequent judicial review by the EU Courts, is no longer compatible with the European Convention on Human Rights. This paper critically examines those claims. The main point to be retained is that the case-law of the European Court of Human Rights distinguishes between, on the one hand, the hard core of criminal law, and, on the other hand, cases which are "criminal" within the autonomous meaning of the European Convention on Human Rights but which do not belong to the hard core of criminal law. Irrespective of any increase in their level, the antitrust fines imposed by the European Commission only belong to the second, broader category of criminal penalties, and the European Court of Human Rights has consistently held that it is compatible with the European Convention on Human Rights for such penalties to be imposed, in the first instance, by an administrative or non-judicial body such as the European Commission.

Forman on Mass Incarceration

James Forman Jr.  (Georgetown University Law Center) has posted Why Care About Mass Incarceration? (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

The United States incarcerates more of its citizens than any other nation in the world. Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result. Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers. His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest. This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population. Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

Robinson on Doing Justice as Controlling Crime

Paul H. Robinson  (University of Pennsylvania Law School) has posted The Ongoing Revolution in Punishment Theory: Doing Justice as Controlling Crime on SSRN. Here is the abstract:

This lecture offers a broad review of current punishment theory debates and the alternative distributive principles for criminal liability and punishment that they suggest. This broader perspective attempts to explain in part the Model Penal Code's recent shift to reliance upon desert and accompanying limitation on the principles of deterrence, incapacitation, and rehabilitation.

Notice to Email Account Holder Not Required for Search Warrant to ISP

FourthAmendment.com collects commentary and excerpts the opinion from the federal district court in Oregon, which you can find here.

Robert and Saunders on Pre-Trial Witness Interviews

Paul Roberts (University of Nottingham) and Candida Saunders have posted Pre-Trial Witness Interviews and the 'Justice Gap' - A Plea for Sophistication in Criminal Procedure Reform on SSRN. Here is the abstract:

Drawing extensively on new empirical data, this article presents pre-trial witness interviewing by Crown Prosecutors (PTWI) as an illuminating case-study in criminal procedure reform and its evaluation. Various rationales for PTWI are canvassed and compared against documented experience during its Pilot Evaluation. Proceeding from the deceptively simple instrumental objective of increasing convictions, the discussion broadens out into a more comprehensive evaluation of the intrinsic merits and limitations of PTWI. Having indicated the wider implications of this case-study for policies aimed at tackling ‘the justice gap’, the article concludes by advancing a general argument for greater sophistication in the planning, execution and ongoing evaluation of criminal procedure reform.

"More Time, Less Crime"

That Kent Scheidegger's post at Crime and Consequences, discussing the new article by Emily G. Owens, More Time, Less Crime? Estimating the Incapacitative Effect of Sentence Enhancements, 52 J. Law & Econ. 551 (2009). Kent's conclusion: "Letting habitual criminals out to save money is penny wise and pound foolish." Here's the abstract from Kent's post:

Sentence enhancements may reduce crime both by deterring potential criminals and by incapacitating previous offenders, removing these possible recidivists from society for longer periods. I estimate the incapacitative effect of longer sentences by exploiting a 2001 change in Maryland's sentencing guidelines that reduced the sentences of 23‐, 24‐, and 25‐year‐olds with juvenile delinquent records by a mean of 222 days. I find that, during this sentence disenhancement, offenders were, on average, arrested for 2.8 criminal acts and were involved in 1.4-1.6 serious crimes per person during the period when they would have otherwise been incarcerated. Although my findings are significantly lower than previous estimates of incapacitation, I find that, on the margin, the social benefit of the crimes averted by incapacitation is slightly higher than the marginal cost to the state of imposing a 1‐year sentence enhancement.

Bradley on "Knock and Talk"

Craig M. Bradley (Indiana University Maurer School of Law--Bloomington) has published "Knock and Talk" and the Fourth Amendment in the Indiana Law Journal. Here is an excerpt from the introduction:

Under “knock and talk,” police go to people’s residences, with or without probable cause, and knock on the door to obtain plain views of the interior of the house, to question the residents, to seek consent to search, and/or to arrest without a warrant, often based on what they discover during the “knock and talk.” When combined with such other exceptions to the warrant requirement as “plain view,” consent, and search incident to arrest, “knock and talk” is a powerful investigative technique.

This Article explains how “knock and talk,” as approved by numerous United States courts of appeal as well as many state courts, has severely limited the Fourth Amendment protection afforded to homes, despite the Supreme Court’s stance that homes are heavily protected. Indeed, even though considerable disagreement exists among lower courts as to the extent of the “knock and talk” doctrine, it has never been directly discussed by the Court. However, what was essentially a “knock and talk” was considered and disapproved of in the often quoted, but no longer fully adhered to, 1948 case of Johnson v. United States.

This Article argues that the lower courts, as well as the Supreme Court, should return to the principles that Johnson announced. It proposes three possible solutions to the intrusiveness that the “knock and talk” technique imposes on the home in descending order of severity. The first is to ban “knock and talk” entirely when a particular home or suspect is the focus of police investigation. The second is to allow “knock and talk,” but to forbid police from using it as a means of avoiding the search and arrest warrant requirements. The third is to require warnings before police can seek consent to search homes or to arrest people at home without a warrant. The details and relative merits of these proposals are discussed in the last Part.

"Washington Post editorial argues against completely eliminating crack/powder sentencing disparity"

That's the title of Doug Berman's post at Sentencing Law and Policy on this Washington Post editorial. I am somewhat less distressed by this piece than Doug seems--I do think there is an arguable case for a modest crack "premium," though far less than the historical ratio (but the subjectivist case for the gap is weaker). Still, I agree that equalizing the penalties is better than doing nothing.

KC

A Subjectivist's Caution on Hate Crimes (Alexander and Cole)

The passage of the new federal hate-crime legislation, noted in a FindLaw article here, calls to mind the longstanding debates about such legislation. Much of it has focused on the constitutionality of such provisions. Hate crimes also raise sometimes overlooked questions of criminal law theory, and especially interesting ones for those who are subjectivists about punishment.

Much of the debate about hate crimes has centered on whether such crimes cause special social harms—perhaps an increased sense of isolation and fear among those within the protected group. These claims are subject to dispute, of course, but they are not clearly unreasonable.

For a subjectivist about punishment, however, an additional question remains. Even if hate crimes carry these extra harms, was the wrongdoer cognizant of those harms? A wrongdoer can be motivated by factors that society declares to carry special social harms without being conscious of those harms.

Consider an example that helps show the appeal of a subjectivist account of retribution. Compare a wrongdoer who, angry with a coworker, smashes a crystal trinket on the coworker’s desk. Most of us would probably think it relevant to punishment to know that the wrongdoer was aware that the trinket was a cherished family heirloom, rather than some random keepsake from a recent trip to Disneyland, regardless of the price the trinket could fetch on the open market.

Usually, the harms that drive us to criminalize conduct will be apparent to a wrongdoer with the mens rea specified for the offense. A murderer knows that a life is, at the very least, being placed in extreme risk. Systemic effects more plausibly can escape a wrongdoer’s attention, whether at the time of the wrongful act or even during the pertinent preparatory stages. A murderer quite plausibly might not ever reflect on how the murder will impact the neighborhood in which it occurs, for example. Similarly, one who acts out of hatred for a member of a protected class, even if motivated by the victim’s membership in the class, might act without any awareness of how the hate crime impacts the class.

Of course, some hate-crime perpetrators will act with awareness of, or even the hope that, their crimes will cause special fear within the targeted group. And some who destroy trinkets will target trinkets that are more highly valued than an ordinary property-destruction statute might presuppose. A subjectivist might oppose a special statute to address the problem of heirloom destruction because it doesn’t happen often enough to justify the statute, and might oppose a higher maximum punishment for the ordinary statute as creating greater problems than occasional underpunishment (like frequent overpunishment). If hate crimes are thought to create special harms, and to occur often enough, a subjectivist might accept the statute but prefer an element that is usually missing—an element focused not just on the wrongdoer’s motive, but on the wrongdoer’s consciousness of the special harms caused by crimes so motivated.

LAA & KC

Radsan on the CIA

John Radsan  (William Mitchell College of Law) has posted When the Smoke Clears at CIA (Berkeley Journal of International Law Publicist, Vol. 3, No. 1, 2009) on SSRN. Here is the abstract:

In the new century, the CIA’s continued existence is not guaranteed. That is alarming because our country depends on its intelligence services for survival. CIA officers, while protecting us against real dangers, should help clear the smoke for all to see that the Justice Department’s investigation, whether or not it leads to criminal charges, is not part of a vast conspiracy against them. Understanding that the eagle in the CIA’s seal stands for both security and liberty, they should trust Leon Panetta to improve the Agency with more assertive roles from a new General Counsel, a new Inspector General, and better internal review boards. These internal checks are especially important for an agency that operates so much in the shadows. These checks have to be realistic, however, or else the case officers will no longer take their tough questions to the safe havens. Balance is vital.

"Loosening of F.B.I. Rules Stirs Privacy Concerns"

The New York Times article links to a recently released FBI manual that has "alarmed privacy advocates."

One section lays out a low threshold to start investigating a person or group as a potential security threat. Another allows agents to use ethnicity or religion as a factor — as long as it is not the only one — when selecting subjects for scrutiny.

“It raises fundamental questions about whether a domestic intelligence agency can protect civil liberties if they feel they have a right to collect broad personal information about people they don’t even suspect of wrongdoing,” said Mike German, a former F.B.I. agent who now works for the American Civil Liberties Union.

But Valerie Caproni, the F.B.I.’s general counsel, said the bureau has adequate safeguards to protect civil liberties as it looks for people who could pose a threat.

“Those who say the F.B.I. should not collect information on a person or group unless there is a specific reason to suspect that the target is up to no good seriously miss the mark,” Ms. Caproni said. “The F.B.I. has been told that we need to determine who poses a threat to the national security — not simply to investigate persons who have come onto our radar screen.”

Fisher on Bipolar Structure of Criminal Verdicts

Talia Fisher  (Tel Aviv University - Buchmann Faculty of Law) has posted Rethinking the Bipolar Structure of the Criminal Verdict on SSRN. Here is the abstract:

The criminal trial is conducted in two phases: The guilt-innocence phase, in which the issue of the defendant's culpability is addressed, and the sentencing phase, in which the punishment is determined. There is an underlying assumption of acoustic separation between the decision making processes in each of these phases, in the sense that the severity of the punishment is considered to be detached from the probative strength of the evidence underlying the conviction. The paper will challenge the acoustic separation ideal both descriptively and normatively, and will reconsider the derivative bipolar verdict regime: On the descriptive front, the paper will demonstrate that prevailing criminal law doctrines and practices effectively demolish the boundaries between the decision making processes in the two phases of the trial, creating a de facto correlation between certainty of guilt and severity of punishment.

On the normative plane, the paper will point to the sub-optimality of the bipolar all-or-nothing regime, which dictates the uniformity of punishment in the epistemic space above the reasonable doubt threshold, and the absence of any punishment below this threshold. The paper will show that correlating the size of the punishment with the certainty of guilt is preferable to uniform punishment in the epistemic space above the reasonable doubt threshold. It will also demonstrate that when the certitude level as to the defendant's guilt does not reach the beyond reasonable doubt standard of proof, the imposition of partial punishment, reflective of the epistemic doubt, can also lead -in certain circumstances- to better outcomes than the existing alternative of full acquittal and no punishment.

Deadline Nears for CrimProf Junior Scholar Paper "Competition"

Submissions are due by 5 p.m. Pacific Time Monday. (I hadn't realized that Oct. 31 was a Saturday when I first posted the deadline.) The original announcement follows:

After extensive negotiations with my dean, I am glad to announce that CrimProf is holding a “competition” for junior scholars with a paper in the areas of criminal law or criminal procedure. The “winner” will be transported, at our expense, to the University of San Diego at a mutually agreeable time during the spring semester to deliver the paper to our faculty. We will also webcast the audio and video of the presentation live for full-time academics (we’re pretty sure we can handle at least 100 live viewers), who will have the opportunity to ask questions during the presentation. For those who cannot participate live, we will place a podcast of the presentation on our website.

I put “competition” in quotation marks because, while we will seek to present a very good paper, we will not feel obligated to select the “best” paper, even if we can agree on what it is, if we believe a different paper might have more appeal for the criminal law and procedure professoriate. In addition, we will not be reviewing the papers blind to the author’s identity.

In this week after Bruce Springsteen’s 60th birthday, I am tempted to say that a “junior” scholar is anyone under the age of 55. Instead, we will track the definition used by the Criminal Justice Section in its paper competition: submissions will be accepted from full-time law faculty who have held full-time appointments for ten years or less. Papers cannot have been accepted for publication at the time of submission. Submissions are due by October 31.

If you have a paper to submit, or would like to nominate the paper of another, please let us know at crimprofblog@gmail.com. Ideally, the initial submission would include an abstract and a link to a place we can find the full paper, but if necessary, you can attach the entire paper to your email.

Every time I stand in line at airport security, I become more convinced that remote participation in conferences is an option that must increasingly be made available. This “competition” is one way for us to start down that path and to measure its attractiveness. It is also a chance to showcase some of the excellent scholarship in our fields.

KC

"A Response to Delahunty’s 'The Fourth Amendment Goes to War'"

CrimProf blogged about the Delahunty draft here. Orin Kerr has an extended response at The Volokh Conspiracy.

"Push to Legalize Marijuana Gains Ground in California"

The article, in the New York Times, begins as follows:

SAN FRANCISCO — These are heady times for advocates of legalized marijuana in California — and only in small part because of the newly relaxed approach of the federal government toward medical marijuana.

State lawmakers are holding a hearing on Wednesday on the effects of a bill that would legalize, tax and regulate the drug — in what would be the first such law in the United States. Tax officials estimate the legislation could bring the struggling state about $1.4 billion a year, and though the bill’s fate in the Legislature is uncertain, Gov. Arnold Schwarzenegger, a Republican, has indicated he would be open to a “robust debate” on the issue.

California voters are also taking up legalization. Three separate initiatives are being circulated for signatures to appear on the ballot next year, all of which would permit adults to possess marijuana for personal use and allow local governments to tax it. Even opponents of legalization suggest that an initiative is likely to qualify for a statewide vote.

Milligan on Stacking in Criminal Procedure Adjudication

Luke M. Milligan

 (University of Louisville - Louis D. Brandeis School of Law) has posted Stacking in Criminal Procedure Adjudication (Chicago-Kent Law Review, Forthcoming) on SSRN. Here is the abstract:

The institutionalist branch of “Law and Courts” studies how judges incorporate institutional constraints into their decisionmaking processes. Congressional constraints on judicial review, as the literature currently stands, fall into one of two general classes: overrides and Court-curbing measures. This taxonomy, however, is incomplete. Neither overrides nor curbing measures are needed to explain the not uncommon situation where a policy-oriented Justice deviates from a preferred vote based on the belief that such a vote will prompt Congress to alter an “insulated base rule” in a way that disrupts the Justice's larger policy agenda. An “insulated base rule” is a Congressional policy decision that cannot, as a legal or practical matter, be modified by the Court. (Examples include Congressional decisions to appropriate funds, to enact certain types of mitigating legislation, or to orient legislation in particular constitutional clauses.) A Justice’s consideration of this third constraint (i.e., how a vote will affect a particular “insulated base rule”) is a process I call “stacking.” Leaving more sophisticated theoretical models and large-scale empirical studies for a later time, this paper illustrates adjudicative “stacking” through close study of the Supreme Court’s recent opinions in Virginia v. Moore.

Featured Download: Alschuler on Punishing Corporations

Even when I've disagreed with him, I've always found Albert W. Alschuler (Northwestern University - School of Law) to be one of the most gifted and entertaining writers working in legal scholarship. He's even more fun when you agree with him, as I do with his recently posted work, Two Ways to Think About the Punishment of Corporations (American Criminal Law Review, 2009). He states his objections to corporate criminal liability with a withering clarity--the piece is worth reading just for his thought experiment about criminally prosecuting a barbershop quartet. Here is the abstract, which nicely summarizes the argument but comes nowhere close to capturing the engaging style of the piece:

This article compares the criminal punishment of corporations in the twenty-first century with two ancient legal practices - deodand (the punishment of animals and objects that have produced harm) and frankpledge (the punishment of all members of a group when one member of the group has avoided apprehension for a crime). It argues that corporate criminal punishment is a mistake but that viewing it as frankpledge is less ridiculous than viewing it as deodand. The article considers the implications of the choice between these concepts for standards of corporate guilt and for the sentencing of corporate offenders.

After a brief historical description of deodand and frankpledge, the article traces the history of corporate criminal liability from William Blackstone through Arthur Andersen. It emphasizes that this liability punishes the innocent, and it argues that the punishment of innocent shareholders and employees should not be regarded as “collateral” or “secondary.” The article notes that subjecting corporations and their officers to punishment for the same crimes creates sharp conflicts of interest. It reviews the history of the Justice Department’s efforts to exploit these conflicts - initially by encouraging corporate officers to deliver corporate guilty pleas to gain leniency for themselves and more recently by pressing corporations to gather and deliver information about their employees.

The article suggests that defenses of corporate criminal liability fall into two categories. Arguments in the first category are expressive and match those that once might have defended deodand. Arguments in the second category are instrumental and match those that once might have supported frankpledge. “Expressive retributivists” champion the deodand perspective. They blame mindless legal entities for crimes committed by their employees. This article considers the implications of their arguments. Other defenders of corporate criminal liability view it as frankpledge - a device for persuading everyone in an organization to monitor everyone else. This article questions the propriety of declaring some people guilty of other people’s crimes simply to encourage them to police one another. On the assumption that corporate liability is here to stay, however, the article argues that it is better regarded as a means to induce internal monitoring than as bona fide criminal punishment.

This article then considers the implications of the deodand and frankpledge positions. Neither of these positions justifies the federal rule of respondeat superior that authorizes the conviction of a corporation whenever an employee acting within the scope of his employment has committed a crime. The champions of both the deodand and frankpledge positions have in fact sought revision of this rule. Expressive retributivists propose replacing the rule with a “corporate ethos” standard. The article argues, however, that this standard is incoherent and unworkable.

The reform advocated by the frankpledge proponents is more sensible. If the goal of corporate criminal liability is to induce appropriate monitoring, the creation and maintenance of an appropriate corporate compliance program should provide a defense to liability. Proposals for such a defense have not fared well, and this article considers their prospects. It suggests that, although the respondeat superior standard is truly indefensible, it survives because it affords broad powers to prosecutors. The article examines how prosecutors have used and misused their extraordinary powers. A final section of this article considers the implications of the frankpledge perspective for sentencing corporate offenders. A judge’s goal in punishing a corporation should be to induce a level of monitoring that will prevent more criminal harm than the monitoring will cost.

KC