CrimProf Blog

Yale/Stanford Junior Faculty Forum

will be held June 18-19 in New Haven this year. Paper submissions are due by March 19, and papers on criminal law or procedure might fit under some of this year's topics. Details are here.

Alexandre on Consent, Rape Law, and Non-Traditional Victims

Michele Alexandre  (University of Mississippi) has posted 'Girls Gone Wild' and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of 'Reasonable Doubt' When the Victims is Non-Traditional (American University Journal of Gender, Social Policy & the Law, Vol. 17, No. 1, 2009) on SSRN. Here is the abstract:

This article . . . argues that the traditional contractual standard for consent applied in rape cases is erroneous and particularly harmful to non-traditional rape victims. It, therefore, proposes a change to what is coined by the author as a “continuum-based” standard of consent. Courts’ treatment of non-traditional rape victims when applying the traditional contractual consent standard perpetuates gender biases that nullify the very purpose of the rape shield laws. These decisions are full of sexist assumptions and inferences about the victim’s sexual behavior, which courts use to justify their decisions to allow evidence of the victim’s past sexual conduct. This type of evidence unfailingly permeates the jury’s decision as to whether or not the alleged victim’s behavior and past acts are worthy of protection.

Siddique on Domestic Violence and Mandatory Arrest Policies

Zahra Siddique  (Institute for the Study of Labor) has posted Partially Identified Treatment Effects Under Imperfect Compliance: The Case of Domestic Violence on SSRN. Here is the abstract:

During the 1980s a set of randomized experiments were carried out to determine the usefulness of a mandatory arrest policy for domestic assault offenders. The first of these was the Minneapolis Domestic Violence experiment (MDVE), which was carried out in 1981. This paper re-examines the data from the MDVE and uses the recent literature on partial identification to determine the implications for a mandatory arrest policy for domestic assault offenders today. I find support for a mandatory arrest policy for domestic assault offenders, even under a set of minimal assumptions on offender and police behavior.

"Brief: 'Honest services' law beyond saving"

Lyle Denniston at ScotusBlog caps a big week for the issue by summarizing arguments made in the just-filed U.S. Supreme Court merits brief by Jeffrey Skilling's lawyers:

One way to salvage the law, “if the Court were inclined to complete Congress’s work and define the conduct criminalized” by so-called Section 1346, the brief argued, would be to make it apply only to two forms of dishonesty: bribes and kickbacks “received from a third party as a quid pro quo for some advantage from the employer.”  Other kinds of dishonesty can be dealt with under traditional laws against fraud in money or property dealings, it said.

Recaps of the arguments on the "honest services" issue this week can be found here.

Barak-Erez & Waxman on Secret Evidence and Terrorist Detentions

Daphne Barak-Erez (Tel Aviv University) and Matthew C. Waxman  (Columbia Law School) have posted  Secret Evidence and the Due Process of Terrorist Detentions (Columbia Journal of Transnational Law, Vol. 48, No. 003, 2009) on SSRN. Here is the abstract:

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the “special advocate” model employed by Britain and Canada, and the “judicial management” model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of “fundamental fairness” or “due process,” and their effectiveness in each system depends on the special institutional features of each national court system. This Article examines the secret evidence dilemma in a manner relevant to foreseeable reforms in the United States, as courts and Congress wrestle with questions left open by Boumediene v. Bush.

Capers on Unintentional Rapists

I. Bennett Capers  (Hofstra University - School of Law) has posted The Unintentional Rapist (Washington University Law Review, Vol. 87, 2010)  on SSRN. Here is the abstract:

Rape law is replete with troubling cases. Using as a case in point McQuirter v. State, in which a black man was convicted of attempt to commit assault with intent to rape one Mrs. Ted Allen, a white woman, this Article argues that much of this trouble is traceable not to the black letter law of rape, but to what this Article terms the white letter law of rape. Though rarely made explicit, this white letter law of rape is decidedly color-coded, and promulgates the sexualization of race and the racialization of rape. Even more problematic, the reforms advocated by feminist scholars to eliminate sexism in rape law have in fact entrenched racism in rape law. This Article then asks what it means to be an unintentional rapist, i.e., to be wrongly perceived as a rapist, especially when that perception is informed by race. Is it possible to recast the unintentional rapists not as a suspect or defendant, but as a crime victim? Put differently, can we reframe McQuirter v. State into a hypothetical State v. Allen? Should we? The answers to these questions have profound implications for reforming the law of rape. They also have profound implications for the law of not rape.

Tress on Collateral Consequences and the Early Definition of "Felony"

Will Tress  (University of Baltimore - School of Law) has posted Unintended Collateral Consequences: Defining Felony in the Early American Republic (Cleveland State Law Review, Vol. 57, No. 3, pp. 461-491, Fall 2009)  on SSRN. Here is the abstract:

At common law a felony was a crime that led to forfeiture of the convict’s property. In contemporary American law, a felony is usually defined as a crime that is punished by death, or imprisonment in a specially designated place (prison or penitentiary) or for a designated period of time (more than one year). The attached article examines how that change came about, and fixes the time and place of the re-definition: New York in 1828, during a revision of that state’s statutes. The choice made by the revisors, a compromise between radical reform and adherence to the common law tradition, is placed in the context of two early 19th century reform movements: Codification of the common law, and the founding of the penitentiaries.

How felony is defined - creating more or fewer felonies - gains greater importance in light of the current concern over the collateral consequences of a felony conviction. Looking at how the line between felonies and lesser crimes was originally drawn can offer insight as to where it should be drawn today.

King & Hoffman on Habeas Corpus

Nancy J. King (Vanderbilt University School of Law) and Joseph L. Hoffmann  (Indiana University-Bloomington, Maurer School of Law) have posted Habeas Corpus for the Twenty-First Century, Chapter One on SSRN. Here is the abstract:

This is the introductory chapter of a forthcoming book, presently under contract with the University of Chicago Press, about the future of the federal writ of habeas corpus. The book provides a compact, accessible, yet comprehensive history and analysis of habeas corpus in all of its diverse applications, an analysis that is based on the latest empirical research of habeas litigation in federal courts, and that includes specific recommendations for reform. By examining how habeas has been applied to review pretrial detention, civil commitment, immigration and military detention, capital and non-capital state convictions and sentences, federal criminal judgments, and administrative decisions by prison and parole officials, the book exposes striking patterns that are not easily seen when the writ is viewed only in a single context or at a single moment in time. Two principles emerge to guide future modifications of the habeas remedy: Habeas must remain a flexible remedy so that it will be available, whenever it is needed, to provide judicial review that can rectify imbalances in government power during times of crisis; and habeas must be exercised prudently as a tool of last resort, used only so long as is absolutely necessary, until alternative review mechanisms take shape. This introductory chapter contrasts the remarkable story of the writ’s liberation of a Guantanamo detainee with the unremarkable saga of habeas litigation by a typical state prisoner, and previews some of the book’s specific proposals for reform.

Levenson on Prosecutorial Soundbites

Laurie L. Levenson  (Loyola Law School Los Angeles) has posted Prosecutorial Soundbites: When Do They Cross the Line? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:

Even good prosecutors can cross the line with media soundbites. Especially in high-profile cases, prosecutors must assess if their pretrial remarks about a case meet their ethical obligations. In Gentile v. Nevada State Bar, 501 U.S. 1030 (1991), the United States Supreme Court held that while lawyers have the First Amendment right to make comments to the press, they do not have the right to make comments that have a “substantial likelihood of materially prejudicing an adjudicative proceeding.” Although ethical codes have adopted this broad standard, many have failed to identify more specifically when a prosecutor’s remarks pose a substantial likelihood of having such a prejudicial effect. Using 28 C.F.R. § 50.2 as a guide, this article seeks to identify those “hot-button” areas. It identifies topics that are most likely to pose the greatest ethical problems for prosecutors. These topics relate directly to practices and evidentiary problems that have long led to wrongful convictions. In particular, this article focuses on why prosecutors should generally refrain from discussing a defendant’s character and race, confessions and admissions, scientific tests and DNA testing, and eyewitness identifications and witness credibility. It also discusses why prosecutors should depersonalize their involvement in cases and refrain from offering personal opinions regarding a defendant or the case. Finally, the article suggests that prosecutors should look to other professions’ ethical codes, including those of journalists, to set aspirational standards that will help guide prosecutors’ extrajudicial remarks.

Argument Transcripts in Today's "Honest Services" Cases

Black v. United States is here.

Weyhrauch v. United States is here.

Opinion in Alvarez v. Smith

is here. Here is the Court's syllabus:

Illinois law provides for forfeiture of movable personal property used to facilitate a drug crime, permits police to seize the property without a warrant, and allows the State to keep the property nearly five months before beginning judicial forfeiture proceedings.

Respondents, six individuals who had cars and cash seized under that law, brought this federal civil rights action, claiming that the failure of the State to provide a speedy postseizure hearing violated the federa lDue Process Clause. The District Court dismissed the case based on Circuit precedent, but, on appeal, the Seventh Circuit departed from that precedent and ruled for respondents. This Court granted certiorari to review the Seventh Circuit’s due process determination, but at oral argument the Court learned that all of the actual property disputes between the parties had been resolved.

Held:
1. The case is moot. The Constitution permits this Court to decide legal questions only in the context of actual “Cases” or “Controversies,” Art. III, §2, and an actual controversy must exist at all stages of review, not just when the complaint is filed, Preiser v. Newkirk, 422
U. S. 395, 401. Here there is no longer any actual controversy regarding ownership or possession of the underlying property. There is no claim for damages before this Court; there is no properly certified class or dispute over class certification; and this case does not fit within the category of cases that are “capable of repetition” while “evading review.” Only an abstract dispute about the law remains. Pp. 4–6.
2. The judgment below is vacated. In moot cases, this Court normally vacates the lower court judgment, which clears the path for re-litigation of the issues and preserves the rights of the parties, while prejudicing none by a preliminary decision. United States v. Munsingwear, Inc., 340 U. S. 36, 40. Where mootness is the result of settlement rather than happenstance, however, the losing party forfeits the equitable remedy of vacatur. U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 25. This case more closely resembles mootness through happenstance than through settlement.In Bancorp, the party seeking review caused the mootness by voluntarily settling the issue contested throughout the litigation. Here, the Court believes that the presence of the federal case played no significant role in the termination of plaintiffs’ state-court forfeiture proceedings. Plaintiffs’ forfeiture cases took place with no procedural link to the case before this Court; apparently terminated on substantive grounds in their ordinary course; and, to the Court’s knowledge,no one raised the procedural question at issue here in those cases.This Court therefore concludes that it should follow its ordinary practice and order vacatur. Pp. 6–9.
524 F. 3d 834, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, ALITO, and SO-TOMAYOR, JJ., joined, and in which STEVENS, J., joined as to Parts I and
II. STEVENS, J., filed an opinion concurring in part and dissenting in part.

Opinion in Beard v. Kindler

is here. Here is the Court's syllabus:

Respondent Kindler was convicted of capital murder in Pennsylvania state court, and the jury recommended a death sentence. Kindler filed postverdict motions challenging his conviction and sentence, but before the trial court could consider the motions or the jury’s death recommendation, Kindler escaped and fled to Canada. The state trial court subsequently dismissed Kindler’s postverdict motions because of his escape. Canadian authorities ultimately captured Kindler and held him in jail pending extradition. But before Kindler could be transferred from Canadian custody, he escaped again, this time re-maining at large for more than two years. He was eventually recaptured and transferred to the United States

. Once back in this country, Kindler sought to reinstate his postverdict motions, but the trial court denied relief, holding that the judge who had dismissed the motions had not abused his discretion under Pennsylvania’s fugitive forfeiture law. Kindler argued on direct appeal that the trial court erred in declining to address the merits of his postverdict motions,but the Pennsylvania Supreme Court affirmed. Kindler’s claims were rejected on state habeas, and he sought federal habeas relief.Under the adequate state ground doctrine, a federal habeas court will not review a claim rejected by a state court “if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment.” Coleman v. Thompson, 501 U. S. 722, 729. The District Court nonetheless granted Kindler’s habeas petition, determining that the state fugitive forfeiture rule did not provide an adequate basis to bar federal review of Kindler’s habeas claims. The Third Circuit affirmed, and the Commonwealth petitioned for certiorari. It argued that the Third Circuit had held the state fugitive forfeiture rule automatically inadequate because the state courts had discretion in applying it, and the Commonwealth sought review of that holding. The Court granted that petition.
Held: A state procedural rule is not automatically “inadequate” under the adequate state ground doctrine—and therefore unenforceable on federal habeas review—because the state rule is discretionary rather than mandatory. The question whether a state procedural ruling is adequate is itself a question of federal law. Lee v. Kemna, 534 U. S. 362, 375. This Court has framed the adequacy inquiry by asking whether the state rule was “firmly established and regularly followed.” Id., at 376. A discretionary state procedural rule can serve as an adequate ground to bar federal habeas review even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others. A contrary holding would pose an unnecessary dilemma for the States: They could preserve flexibility by granting courts discretion to excuse procedural errors, but only at the cost of undermining the finality of state-court judgments. Or States could preserve the finality of their judgments by withholding such discretion, but only at the cost of precluding any flexibility in applying the rules. If forced to choose, many States would opt for mandatory rules to avoid the high costs of plenary federal review. That would be unfortunate in many cases, as discretionary rules are often desirable. The federal system, for example, often grants the trial judge broad discretion when his ringside perspective at the main event offers him a comparative advantage in decisionmaking. The States have followed suit. Given the federalism and comity concerns motivating the adequate state ground doctrine in the habeas context, see Coleman, supra, at 730, this Court should not disregard discretionary state procedural rules that are in place in nearly every State and are substantially similar to those given full force in federal courts. Cf. Francis v. Henderson, 425 U. S. 536, 541–542. Pp. 7–9.
542 F. 3d 70, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which all other Members joined, except ALITO, J., who took no part in the consideration or decision of the case. KENNEDY, J., filed a concurring opinion, in which THOMAS, J., joined.

Argument Transcript from Florida v. Powell

is here.

Cert Granted in Sentencing Case

The case is Dillon v. United States, summarized as follows at ScotusBlog:

That case tests whether the federal Sentencing Guidelines are binding when a federal judge imposes a new sentence.  The case will test whether the Supreme Court’s 2005 ruling in U.S. v. Booker, making the Guidelines advisory only, applies in a sentence modification proceeding.  Review was granted even though the Court had previously refused to hear the same issue in a number of cases.  The U.S. Solicitor General recommended a denial in this case, too.

ScotusBlog has links to the opinion below and the cert petition here.

Thompson on Eyewitness Misidentification

Sandra Guerra Thompson  (University of Houston Law Center) has posted Judicial Blindness to Eyewitness Misidentification (Marquette Law Review, Forthcoming) on SSRN. Here is the abstract:

Many studies of exonerations find that erroneous eyewitness identifications play a part in over 75% of all wrongful convictions. These studies have led to numerous proposals for reform of police procedures, yet we see surprisingly little progress toward minimizing eyewitness-identification error, a major cause of failure in the criminal justice systems of this country.

This Article presents the findings of an empirical study of recent case law in which defendants challenge the legality of the eyewitness identification procedures. The study involved a review of all cases within the calendar year ending in April 8, 2009 in which state appellate courts issued opinions and in which the suggestiveness of eyewitness identification procedures were challenged. In the cases surveyed, only a small percentage of the police investigations followed any of the recommended procedures and usually not the most critical procedures. The overwhelming majority of departments in the cases surveyed followed the same suggestive procedures that have contributed to misidentifications and wrongful convictions in the past.

This survey does not tell us much about the universe of cases in which eyewitness identification plays a role. It tells us nothing, for example, about the procedures actually followed in departments throughout the country. Thus, we cannot draw any sweeping conclusions about overall police practices from what effectively is just a small sample. To obtain such information, one would have to conduct a massive survey of the tens of thousands of independent police agencies throughout the country. What this survey does provide, however, is a glimpse at a relatively small number of cases in which defense lawyers have asserted mistaken eyewitness identification both at trial and on appeal. Even this limited view is not encouraging. As this Article will demonstrate, many of the same problems and practices that have contributed to erroneous identifications in the past continue to present themselves in cases decided within the past year.

How did the appellate courts respond to the challenges to the eyewitness identification evidence in these cases? In this study, none of the courts invoked state constitutional law or evidentiary rules to reject the suggestive practices decried by reformers. The courts do not exclude eyewitness identification testimony, even when it is obtained under circumstances that have been shown scientifically to be prone to error, nor do they find such testimony insufficient to support a verdict without additional corroborating evidence. Indeed, many of the appellate opinions continue to view the eyewitness’s degree of certainty as an indicator of reliability, despite the fact that social science research proves otherwise. Meanwhile, the courts often overlook other indicia of unreliability. Just as in the days before the reform was proposed, the study shows that dubious eyewitness identification evidence continues to be admitted, and appellate courts continue to turn a blind eye to defense challenges based on suggestiveness and unreliability of such evidence. If one read only the recent case law challenging suggestive identification procedures, one might get the impression that the innocence reform movement – and the exoneration of hundreds of innocent persons – never happened.

Per Curiam Reversal in Warrantless Entry Case

The Court approved police entry into a dwelling under the "emergency aid" exception to the warrant requirement in Michigan v. Fisher, which you can find at the end of today's order list. Justice Stevens, joined by Justice Sotomayor, dissented on the grounds that the trial court's assessment of the officer's testimony provided sufficient basis for invalidating the warrantless entry.

Weekend Roundup

CrimProf posts you may have missed over the weekend:

Friday

• Next Week's Criminal Law and Procedure Arguments
• Green on Retributive Justice for Unjustly Disadvantaged Offenders
• Frase on Racial Disproportionality in Prisons and Jails
• Winer on Medellin

Saturday

• Dubber on Legalizing Drug Criminal Law
• Bailey on Polygamy
• "Interesting take on SCOTUS Porter and Van Hook rulings and 'selective empathy'"
• "Texas executes death row prisoner despite mental impairment defense"

Sunday

• Top-Ten Recent SSRN Downloads
• Fenner on Today's Confrontation Clause
• Armstrong on Metaphor in Criminal Justice Policy
• "A Cincinnati experiment has changed the way police deal with gang violence"
• "Kentucky Halts Lethal Injections Until Hearings"

"Kentucky Halts Lethal Injections Until Hearings"

The A.P. story is on the New York Times website here:

Executions are suspended in Kentucky after the state said Friday that it would not appeal a ruling that found it had failed to follow proper administrative procedures when it adopted its lethal injection method.

. . . .

The Kentucky Supreme Court’s 4-to-3 ruling last month did not challenge the technique that has been upheld in the nation’s highest court and is used by dozens of states. It said the state did not use the proper process for putting it into place.

"A Cincinnati experiment has changed the way police deal with gang violence"

The Crime Report has this interesting story here. In part:

The Cincinnati study provides a detailed account of how the city’s police force  implemented the anti-violence strategy, which is based essentially on identifying gang members and then calling them in for a meeting, or a series of meetings,  attended by both law enforcement and community representatives. There, they are told that they have two choices: they can continue their lawbreaking activities and face severe punishment; or they can agree to accept counseling or other services aimed at dealing with  the problems that contributed to their gang participation.

The deep involvement of community leaders ,  parents and pastors, whose moral authority carries a powerful impact, combined with the threat of punishment acts as a form of focused deterrence, say adherents of the model.  Similar strategies directed at gang members or drug dealers in cities like High Point, NC,  Providence, RI and Hempstead, NY have resulted in a marked falloff in gang violence and the disappearance of open-air narcotics markets.

Hat tip: ACSBlog.

Armstrong on Metaphor in Criminal Justice Policy

Sarah Armstrong  (Glasgow University) has posted Managing Meaning: The Use of Metaphor in Criminal Justice Policy on SSRN. Here is the abstract:

This paper takes an unorthodox approach to the study of policy, by analysing the use of metaphors in policy documents. Policy language presents an important topic of study because the policy text is an increasingly important technique of governance, aiming at one level to satisfy desires for transparency and public consultation, and, at another, to translate law and norms into technical rules of everyday practice. Conceptual Metaphor Theory (CMT) provides the methodology for exploring the role metaphors play in policy texts. While metaphor is, outside of linguistics, commonly treated as an optional linguistic ornament used to convey an unfamiliar concept in terms of a familiar one, CMT claims metaphors are ever present features of language and fundamental to knowing. Analysis of metaphors in a key (Scottish) criminal justice policy text provides a case study for analysing how metaphors assist understanding a new category of offender – the serious violent and sexual offender. Equally important, the paper considers the possibility that the means of controlling such offenders – risk management – is itself a metaphor.