November 4, 2009
Green and Winik on Recidivism and Drug Offenders
Donald P. Green (Yale University - Political Science; pictured) and Daniel Winik have posted Using Random Judge Assignments to Estimate the Effects of Incarceration and Probation on Recidivism Among Drug Offenders (Criminology, May 2010) on SSRN. Here is the abstract:
Most prior studies of recidivism have used observational data to estimate the causal effect of imprisonment or probation on the probability that a convicted individual is re-arrested after release. Very few studies have taken advantage of the fact that in some jurisdictions, defendants are randomly assigned to judges who vary in sentencing tendencies. The present study investigates whether defendants who are randomly assigned to more punitive judges have different recidivism probabilities than defendants who are assigned to relatively lenient judges. We track 1,003 defendants charged with drug-related offenses (and no non-drug-related offenses) who were randomly assigned to nine judicial calendars between June 1, 2002 and May 9, 2003. Judges on these calendars meted out sentences that varied substantially in terms of prison and probation time. We tracked defendants using court records over a four-year period following the disposition of their cases in order to determine whether they were subsequently re-arrested. Our results indicate that randomly-assigned variations in prison and probation time have no detectable effect on rates of re-arrest. The findings suggest that, at least among those facing drug-related charges, incarceration and supervision seem not to deter subsequent criminal behavior.
The New York Times has an article headlined Picked From a Lineup, on a Whiff of Evidence addressing concerns over this procedure:
Dogs’ noses have long proved useful to track people, and the police rely on them to detect drugs and explosives, and to find the bodies of victims of crime and disaster. A 2004 report by the F.B.I. states that use of scent dogs, properly conducted, “has become a proven tool that can establish a connection to the crime.”
Scent lineups, however, are different. Critics say that the possibilities of cross-contamination of scent are great, and that the procedures are rarely well controlled. Nonetheless, although some courts have rejected evidence from them, the technique has been used in many states, including Alaska, Florida, New York and Texas, said Lawrence J. Myers, an associate professor of animal behavior at the Auburn University College of Veterinary Medicine.
"SCOTUS Preview: Wood v. Allen"
Emily Garcia Uhrig (McGeorge School of Law) previews today's argument at ACSBlog. In part:
While the state courts' factual finding that defense counsel's decision not to investigate evidence of his mental deficiencies was tactical may qualify as "unreasonable" under § 2254(d)(2), it may be a more difficult task to rebut that finding by clear and convincing evidence under § 2254(e)(1), particularly where defense counsel, themselves no longer recall their own decision-making. Thus, for Mr. Wood and others like him, the availability of habeas relief - a literal matter of life or death - may ultimately turn on the level of deference given to state court factual findings, as articulated by the relationship between these two statutory provisions.
Featured Download: Bibas, Schanzenbach & Tiller on Policing Politics at Sentencing
Stephanos Bibas (University of Pennsylvania Law School; pictured), Max M. Schanzenbach (Northwestern University School of Law), and Emerson H. Tiller (Northwestern University School of Law) have published an interesting essay in the Northwestern University Law Review entitled Policing Politics at Sentencing. Here is an excerpt from the conclusion:
This Essay applied positive political theory and recent empirical evidence to critique the Supreme Court’s sentencing guidelines jurisprudence. We conclude that the Court’s jurisprudence is deeply misguided. Binding guidelines and searching appellate review are needed to make sentencing more consistent and legitimate. In addition, the Guidelines reflect a political bargain struck by legislators and sentencing commissioners, a compact that judges should honor. The Court’s new tack on sentencing undermines this process by reducing appellate court review for departures and creating a new ground for departures—the nebulous and hard-to-review policy departure. On the other hand, we endorse the trend toward more robust appellate review of sentencing adjustments, which judges can at times manipulate to alter sentences substantially. Stricter review of adjustments makes the review of sentences more symmetric and should rein in discretion. Of course, even this beneficial feature of Booker and its progeny could be undermined if judges are also freer to depart.
November 3, 2009
Monday's Orders in Criminal Law and Procedure Cases
Crime and Consequences covers them here. One criminal case was sent back for reconsideration in light of last term's Melendez-Diaz case on confrontation of witnesses. Justice Stevens, joined by Justice Scalia, dissented from the Court's decision not to
clarify a statute of limitations question in a 60s-era civil rights case, United States v. Seale. Under the Lindbergh Law in effect at the time of the crime, kidnapping in certain circumstances was a federal capital offense, and there was no statute of limitations (and still is not) on capital offenses. A later amendment removed the death penalty. Did that amendment impose the regular statute of limitations by implication, or do alleged perpetrators of crimes committed when they were capital remain subject to prosecution for life?
The dissent can be found at the end of the orders list here.
Grove on the Structural Case for Vertical Maximalism
Tara Leigh Grove (Florida State University College of Law) has posted The Structural Case for Vertical Maximalism at The Legal Workshop. It previews her forthcoming article by the same name in the Cornell Law Review and addresses several of the Supreme Court's opinions in criminal procedure cases in arriving at the following conclusion:
I argue that minimalism is the wrong approach for the current Supreme Court. The Court should instead aim to issue broad precedents that help clarify the law and provide guidance to lower courts in the many cases that it lacks the capacity to review. In other words, to serve its constitutional role in this judicial hierarchy, the Court should adopt a presumption in favor of vertical maximalism.
"Duties to Rescue (or Report) and the Anticooperative Effects of Law"Eugene Volokh has this interesting post at The Volokh Conspiracy, prompted by the recent Richmond gang rape incident, and considering one argument against laws compelling assistance of crime victims. He canvasses statutes addressing the issue here.
Dolovich on Prison Conditions and the Eighth Amendment
Sharon Dolovich (Professor at University of California, Los Angeles School of Law/Visiting Professor at Georgetown University Law Center) has posted Cruelty, Prison Conditions, and the Eighth Amendment (New York University Law Review, Vol. 84, No. 4, 2009) on SSRN. Here is the abstract:
The Eighth Amendment prohibits cruel and unusual punishment, but its normative force derives chiefly from its use of the word cruel. For this prohibition to be meaningful in a society where incarceration is the primary mode of criminal punishment, it is necessary to determine when prison conditions are cruel. Yet the Supreme Court has thus far avoided this question, instead holding in Farmer v. Brennan that unless some prison official actually knew of and disregarded a substantial risk of serious harm to prisoners, prison conditions are not “punishment” within the meaning of the Eighth Amendment. Farmer’s reasoning, however, does not withstand scrutiny. As this Article shows, all state-created prison conditions should be understood to constitute punishment for Eighth Amendment purposes.With this in mind, this Article first addresses the question of when prison conditions are cruel, by considering as a normative matter what the state is doing when it incarcerates convicted offenders as punishment and what obligations it thereby incurs toward its prisoners. This Article then turns to the question of constitutional implementation and considers what doctrinal standards would best capture this understanding of cruel conditions.
At the heart of the argument is the recognition that the state, when it puts people in prison, places them in potentially dangerous conditions while depriving them of the capacity to provide for their own care and protection. For this reason, the state has an affirmative obligation to protect prisoners from serious physical and psychological harm. This obligation, which amounts to an ongoing duty to provide for prisoners’ basic human needs, may be understood as the state’s carceral burden. This, at its core, is the problem with Farmer’s recklessness standard: It holds officers liable only for those risks they happen to notice - and thereby creates incentives for officers not to notice - despite the fact that when prison officials do not pay attention, prisoners may be exposed to the worst forms of suffering and abuse. As this Article shows, either a heightened negligence standard on which a lesser burden would attach to those claims alleging macro-level failures of care or a modified strict liability approach would be far more consistent with the possibility of meaningful Eighth Amendment enforcement. Unfortunately, by encouraging judges to deny the existence of cruel treatment in the prisons, the prevailing doctrinal regime instead makes the judiciary into yet another cruel institution vis-à-vis society’s prisoners.
November 2, 2009
Argument Transcript from Beard v. Kindleris here.
"When Texting Kills, Britain Offers Path to Prison"
In the New York Times. Here is the lead:
OXFORD, England — Inside the imposing British Crown Court here, Phillipa Curtis, 22, and her parents cried as she was remanded for 21 months to a high-security women’s prison, for killing someone much like herself. The victim was Victoria McBryde, an up-and-coming university-trained fashion designer.
Ms. Curtis had plowed her Peugeot into the rear end of Ms. McBryde’s neon yellow fiat, which had broken down on the A40 Motorway, killing Ms. McBryde, 24, instantly.
The crash might once have been written off as a tragic accident. Ms. Curtis’s alcohol level was zero. But her phone, which had flown onto the road and was handed to the police by a witness, told a story that — under new British sentencing guidelines — would send its owner to jail.
This Week's Criminal Law and Procedure Arguments
Summary of issue is from ScotusWiki:
Beard v. Kindler (08-992) — Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?
Pottawattamie County v. McGhee (08-1065) —Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial.
Wood v. Allen (08-9156) —Whether the state court’s conclusion–that during the sentencing phase of a capital case the defense attorney’s failure to present the defendant’s impaired mental functioning did not constitute ineffective counsel–was based on an unreasonable determination of the facts and whether the circuit court erred in its application of the Antiterrorism and Effective Death Penalty Act (AEDPA) to the review of the state court decision.
Featured Download: Markel on Panetti, Retributive Theory, and the Eighth Amendment
Dan Markel (Florida State University College of Law) has published a thoughtful and nuanced article in the Northwestern University Law Review, Executing Retributivism: Panetti and the Future of Eighth Amendment. He argues that the version of retributivism that led to the Court's limits on executing the mentally incompetent have far more extensive implications. Here is an excerpt from the conclusion:
First, because a communicative rationale for retribution is inconsistent with the death penalty for the reasons offered above, the Court ought to realize that its belated but wise embrace of the defendant-
centered goal leaves it with no available conceptual resources upon which to draw in trying to justify continued use of the death penalty. Panetti should augur, in other words, a new period in which the Court’s “execution of retributivism” entails general grounds for optimism among death penalty skeptics.
Second, the Court’s retributivist reasoning in Panetti requires a commitment to punishing only those who are both guilty and presently competent, with punishments that are not excessive to the defendant’s crime and culpability. Together those conditions create a “negative retributivist” set of restraints on the state’s punitive activities such that an offender’s claim of actual innocence, present incompetence, or excessive punishment must be heard with greater sympathy and effect. Importantly, after Panetti, negative retributivism supervenes on all other penal purposes, contrary to the refrain that the Eighth Amendment is indifferent among penal purposes.
CrimProf posts you may have missed over the weekend.
- Bradley on "Knock and Talk"
- "More Time, Less Crime"
- Robert and Saunders on Pre-Trial Witness Interviews
- Notice to Email Account Holder Not Required for Search Warrant to ISP
- Robinson on Doing Justice as Controlling Crime
- Forman on Mass Incarceration
- Wils on EU Antitrust Fines
- Bronsteen on Retribution's Role
- "Can Our Shameful Prisons Be Reformed?"
- Top-Ten Recent SSRN Downloads
- Mitsilegas on EU Criminal Justice
- A Different View on ALI Withdrawal of Death Penalty Provision
- "L.A. is seeing its police officers in a new light"
- Comino on Corporate Criminal Law in Australia
- "Reforming the State Secrets Privilege"
- "Supreme Court Should Apply Roper Reasoning to Upcoming Juvenile Life-Without-Parole Cases"
November 1, 2009
"Supreme Court Should Apply Roper Reasoning to Upcoming Juvenile Life-Without-Parole Cases"Title of the post by Charles Ogletree (Harvard Law School) at ACSBlog.
"Reforming the State Secrets Privilege"
That's the title of a short piece at The Legal Workshop summarizing a forthcoming note in the New York University Law Review An excerpt:
My Note builds the case that administrative law-based reforms, like the ones proposed by the Obama administration, will deter executive branch abuse more effectively than judicial review alone by discouraging invocation of the privilege in the first place. I argue that administrative law mechanisms have been used effectively in other areas of national security law to deter abuse. By making invocation of the privilege more administratively burdensome and by putting the professional credibility of officials who will not benefit personally from the invocation of the privilege on the line, the reforms proposed in my Note would more effectively discourage over-reaching in the state secrets privilege context.
Comino on Corporate Criminal Law in Australia
V. Comino (The University of Queensland - T.C. Beirne School of Law) has posted The Challenge of Corporate Law Enforcement in Australia (Australian Journal of Corporate Law, Vol. 23, No. 3) on SSRN. Here is the abstract:
The introduction on 24 July 2009 of the long-awaited amendments to the Trade Practices Act 1974 (Cth) criminalising serious cartel conduct focuses attention on the important role of the criminal justice system to deal with cases of serious wrongdoing. In 1993, major reforms were made to the law relating to enforcement of the statutory duties of company officers by the introduction of the civil penalty regime found in Pt 9.4B of the Corporations Act 2001 (Cth). These reforms arose from recommendations of the Senate Standing Committee on Legal and Constitutional Affairs (the ‘Cooney Committee’) and implemented what has become known as “strategic regulation theory”. This theory provides insights on how regulatory compliance can be achieved most effectively, contending that sanctions in the enforcement pyramid should escalate as contraventions of the law become more serious and that criminal liability should apply only for continued non-compliance or for serious breaches of the law. By following this approach, the hope was that ASIC could more effectively cope with corporate misconduct. This article discusses strategic regulation theory to explore, firstly, its capacity to guide ASIC to fulfil its regulatory obligations, and, secondly, the desirability of that approach. It argues that it is not pyramidal enforcement that is inadequate, but ASIC’s perceived failure to use criminal sanctions in cases of serious corporate misconduct, and contends that this threatens to undermine its reputation as an effective regulator.
"L.A. is seeing its police officers in a new light"
The article in the Los Angeles Times gives the retiring police chief high marks:
The progress the LAPD made under Police Chief William J. Bratton in the last seven years can be measured as much in the sweeping drop in crime as in the little interactions that reflect an easing of tensions.
Residents across the city say they hope the trend outlasts the personality as the mayor selects a new chief to replace Bratton, who officially stepped down Saturday.
From 2002 to now, the department's stats show dramatic drops in every major category of crime: drops of 53.1% for homicides, 38.6% for rapes, 66.9% for aggravated assaults, 28.6% for robbery.
A Different View on ALI Withdrawal of Death Penalty ProvisionKent Scheidegger at Crime and Consequences argues that the attempt by the Death Penalty Information Center to portray this action as a victory for abolitionists overlooks that the ALI took no position on the death penalty itself. He also faults the ALI's approach to the issue. The DPIC release is noted here.
Mitsilegas on EU Criminal Justice
Valsamis Mitsilegas (Queen Mary University of London, School of Law) has posted The Third Wave of Third Pillar Law: Which Direction for EU Criminal Justice? (European Law Review, Vol. 34, No. 4, 2009) on SSRN. Here is the abstract:
After a period of relative stagnation, the past few months witnessed the adoption of a plethora of legislative instruments under the third pillar. These instruments can be seen as the third wave of third-pillar law, following the first wave of measures adopted post-Maastricht and the second wave of measures adopted post-Amsterdam and Tampere. The third wave of third-pillar law extends to most major areas of European integration in criminal law. New legislation involves the harmonisation of substantive criminal law (including the fields of terrorism, organised crime and racism and xenophobia), mutual recognition (with measures such as the European Evidence Warrant and legislation on the recognition of probation decisions and the transfer of sentenced persons), the work of EU criminal justice bodies such as Europol and Eurojust, and the development of standards to regulate the proliferation of third pillar mechanisms to collect, analyse and exchange personal data. By analysing the background and content of these instruments, this article will assess their impact on the future development of EU criminal law and justice.
Top-Ten Recent SSRN Downloads
|1||217||The Torture Lawyers |
Jens David Ohlin,
Cornell Law School,
Date posted to database: September 10, 2009
|2||197||Blaming the Brain |
Steven K. Erickson,
University of Missouri at Columbia - School of Law,
Date posted to database: September 12, 2009
|3||159||Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended |
Frank O. Bowman III,
University of Missouri School of Law,
Date posted to database: September 10, 2009 [4th last week]
|4||147||Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms |
University of Virginia School of Law,
Date posted to database: August 13, 2009 [5th last week]
|5||147||Finding Bernie Madoff: Predicting Fraud by Investment Managers |
Stephen G. Dimmock, William Christopher Gerken,
Michigan State University - Department of Finance, Auburn University - Department of Finance,
Date posted to database: September 11, 2009 [7th last week]
|6||145||Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional |
John Marshall Law School,
Date posted to database: August 18, 2009
|7||144||The Future of the Attorney-Client Privilege in Corporate Criminal Investigations |
Cindy A. Schipani,
University of Michigan - Stephen M. Ross School of Business,
Date posted to database: August 10, 2009 [8th last week]
|8||128||Law, Legal Institutions, and the Criminalization of the Underclass |
David Ray Papke,
Marquette University - Law School,
Date posted to database: August 4, 2009 [9th last week]
|9||124||Governing Corporate Compliance |
Miriam H. Baer,
Brooklyn Law School,
Date posted to database: September 16, 2009 [10th last week]
|10||118||Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory |
Paul H. Robinson, Michael T. Cahill, Daniel M. Bartels,
University of Pennsylvania Law School, Brooklyn Law School, Center for Decision Research, University of Chicago GSB,
Date posted to database: September 23, 2009 [new to top ten]