CrimProf Blog

Wexler on Therapeutic Jurisprudence

David B. Wexler  (University of Arizona - James E. Rogers College of Law) has posted Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development on SSRN. Here is the abstract:

This essay, based on the 3rd Annual Martin Tansey Memorial Lecture, delivered May 26, 2010, at the Criminal Courts of Justice in Dublin, and sponsored by the Association of Criminal Justice Research and Development, introduces the perspective of therapeutic jurisprudence (TJ) and applies the perspective to several criminal justice issues, such as sentencing, probation, and parole. It calls for an academic-practitioner interdisciplinary and international partnership to enable the field to grow and flourish.

Chmura et al on an Experimental Measure of Selfishness as a Criminological Tool

Thorsten Chmura , Christoph Engel , Markus Englerth and Thomas Pitz  (University of Bonn - Faculty of Law & Economics , Max Planck Institute for Research on Collective Goods , affiliation not provided to SSRN and University of Bonn) have posted At the Mercy of the Prisoner Next Door: Using an Experimental Measure of Selfishness as a Criminological Tool (MPI Collective Goods Preprint, No. 2010/27) on SSRN. Here is the abstract:

Do criminals maximise money? Are criminals more or less selfish than the average subject? Can prisons apply measures that reduce the degree of selfishness of their inmates? Using a tried and tested tool from experimental economics, we cast new light on these old criminological questions. In a standard dictator game, prisoners give a substantial amount, which calls for more refined versions of utility in rational choice theories of crime. Prisoners do not give less than average subjects, not even than subjects from other closely knit communities. This speaks against the idea that people commit crimes because they are excessively selfish. Finally those who receive better marks at prison school give more, as do those who improve their marks over time. This suggests that this correctional intervention also reduces selfishness.

"Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits"

Doug Berman has this interesting post at Sentencing Law and Policy on yesterday's Supreme Court decision.

Yesterday's criminal law/procedure cert grant

The Court granted review in Pepper v. United States, described by ScotusBlog as involving "whether a convicted individual’s rehabilitation after sentencing can support a lowering of the sentence under federal Guidelines."

Opinion striking down Chicago handgun ban

McDonald v. City of Chicago is here. Here is the syllabus:

Two years ago, in District of Columbia v. Heller, 554 U. S. ___, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense and struck down a District of Columbia law that banned the possession of handguns in the home. Chicago (hereinafter City) and the village of Oak Park, a Chicago suburb, have laws effectively banning handgun possession by almost all private citizens. After Heller, petitioners filed this federal suit against the City, which was consolidated with two related actions, alleging that the City’s handgun ban has left them vulnerable to criminals. They sought a declaration that the ban and several related City ordinances violate the Second and Fourteenth Amendments. Rejecting petitioners’ argument that the ordinances are unconstitutional, the court noted that the Seventh Circuit previously had upheld the constitutionality of a handgun ban, that Heller had explicitly refrained from opining on whether the Second Amendment applied to the States, and that the court had a duty to follow established Circuit precedent. The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542, Presser v. Illinois, 116 U. S. 252, and Miller v. Texas, 153 U. S. 535— which were decided in the wake of this Court’s interpretation of the Fourteenth Amendment’s Privileges or Immunities Clause in the Slaughter-House Cases, 16 Wall. 36.

Held: The judgment is reversed, and the case is remanded.

567 F. 3d 856, reversed and remanded.

JUSTICE ALITO delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, concluding that the Fourteenth Amendment incorporates the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense. Pp. 5–9, 11–19, 19–33.

(a) Petitioners base their case on two submissions. Primarily, they argue that the right to keep and bear arms is protected by the Privileges or Immunities Clause of the Fourteenth Amendment and that the Slaughter-House Cases’ narrow interpretation of the Clause should now be rejected. As a secondary argument, they contend that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right. Chicago and Oak Park (municipal respondents) maintain that a right set out in the Bill of Rights applies to the States only when it is an indispensable attribute of any “ ‘civilized’ ” legal system. If it is possible to imagine a civilized country that does not recognize the right, municipal respondents assert, that right is not protected by due process. And since there are civilized countries that ban or strictly regulate the private possession of handguns, they maintain that due process does not preclude such measures. Pp. 4–5.

(b) The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court held in the Slaughter-House Cases, that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116 U.S. 252, and Miller, 153 U. S. 535, the decisions on which the Seventh Circuit relied in this case. Pp. 5–9.

(c) Whether the Second Amendment right to keep and bear arms applies to the States is considered in light of the Court’s precedents applying the Bill of Rights’ protections to the States. Pp. 11–19.

(1) In the late 19th century, the Court began to hold that the Due Process Clause prohibits the States from infringing Bill of Rights protections. See, e.g., Hurtado v. California, 110 U. S. 516. Five features of the approach taken during the ensuing era are noted. First, the Court viewed the due process question as entirely separate from the question whether a right was a privilege or immunity of national citizenship. See Twining v. New Jersey, 211 U. S. 78, 99. Second, the Court explained that the only rights due process protected against state infringement were those “of such a nature that they are included in the conception of due process of law.” Ibid. Third, some cases during this era “can be seen as having asked . . . if a civilized system could be imagined that would not accord the particular protection” asserted therein. Duncan v. Louisiana, 391 U. S. 145, 149, n.14. Fourth, the Court did not hesitate to hold that a Bill of Rights guarantee failed to meet the test for Due Process Clause protection, finding, e.g., that freedom of speech and press qualified, Gitlow v. New York, 268 U. S. 652, 666; Near v. Minnesota ex rel. Olson, 283 U.S. 697, but the grand jury indictment requirement did not, Hurtado, supra. Finally, even when such a right was held to fall within the conception of due process, the protection or remedies afforded against state infringement sometimes differed from those provided against abridgment by the Federal Government. Pp. 11–13.

(2) Justice Black championed the alternative theory that §1 of the Fourteenth Amendment totally incorporated all of the Bill of Rights’ provisions, see, e.g., Adamson v. California, 332 U. S. 46, 71– 72 (Black, J., dissenting), but the Court never has embraced that theory. Pp. 13–15.

(3) The Court eventually moved in the direction advocated by Justice Black, by adopting a theory of selective incorporation by which the Due Process Clause incorporates particular rights contained in the first eight Amendments. See, e.g., Gideon v. Wainright, 372 U. S. 335, 341. These decisions abandoned three of the characteristics of the earlier period. The Court clarified that the governing standard is whether a particular Bill of Rights protection is fundamental to our Nation’s particular scheme of ordered liberty and system of justice. Duncan, supra, at 149, n. 14. The Court eventually held that almost all of the Bill of Rights’ guarantees met the requirements for protection under the Due Process Clause. The Court also held that Bill of Rights protections must “all . . . be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U. S. 1, 10. Under this approach, the Court overruled earlier decisions holding that particular Bill of Rights guarantees or remedies did not apply to the States. See, e.g., Gideon, supra, which overruled Betts v. Brady, 316 U. S. 455. Pp. 15–19.

(d) The Fourteenth Amendment makes the Second Amendment right to keep and bear arms fully applicable to the States. Pp. 19–33.

(1) The Court must decide whether that right is fundamental to the Nation’s scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, or, as the Court has said in a related context, whether it is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 721. Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present, and the Heller Court held that individual self-defense is “the central component” of the Second Amendment right. 554 U. S., at ___, ___. Explaining that “the need for defense of self, family, and property is most acute” in the home, ibid., the Court found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___, ___–___. It thus concluded that citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___. Heller also clarifies that this right is “deeply rooted in this Nation’s history and traditions,” Glucksberg, supra, at 721. Heller explored the right’s origins in English law and noted the esteem with which the right was regarded during the colonial era and at the time of the ratification of the Bill of Rights. This is powerful evidence that the right was regarded as fundamental in the sense relevant here. That understanding persisted in the years immediately following the Bill of Rights’ ratification and is confirmed by the state constitutions of that era, which protected the right to keep and bear arms. Pp. 19–22.

(2) A survey of the contemporaneous history also demonstrates clearly that the Fourteenth Amendment’s Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation’s system of ordered liberty. Pp. 22–33.

(i) By the 1850’s, the fear that the National Government would disarm the universal militia had largely faded, but the right to keep and bear arms was highly valued for self-defense. Abolitionist authors wrote in support of the right, and attempts to disarm “Free-Soilers” in “Bloody Kansas,” met with outrage that the constitutional right to keep and bear arms had been taken from the people. After the Civil War, the Southern States engaged in systematic efforts to disarm and injure African Americans, see Heller, supra, at ___. These injustices prompted the 39th Congress to pass the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 to protect the right to keep and bear arms. Congress, however, ultimately deemed these legislative remedies insufficient, and approved the Fourteenth Amendment. Today, it is generally accepted that that Amendment was understood to provide a constitutional basis for protecting the rights set out in the Civil Rights Act. See General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 389. In Congressional debates on the proposed Amendment, its legislative proponents in the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Evidence from the period immediately following the Amendment’s ratification confirms that that right was considered fundamental. Pp. 22–31.

(ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause, it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33.

JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY, concluded, in Parts II–C, IV, and V, that the Fourteenth Amendment’s Due Process Clause incorporates the Second Amendment right recognized in Heller. Pp. 10–11, 33–44.

(a) Petitioners argue that that the Second Amendment right is one of the “privileges or immunities of citizens of the United States.” There is no need to reconsider the Court’s interpretation of the Privileges or Immunities Clause in the Slaughter-House Cases because, for many decades, the Court has analyzed the question whether particular rights are protected against state infringement under the Fourteenth Amendment’s Due Process Clause. Pp. 10–11.

(b) Municipal respondents’ remaining arguments are rejected because they are at war with Heller’s central holding. In effect, they ask the Court to hold the right to keep and bear arms as subject to a different body of rules for incorporation than the other Bill of Rights guarantees. Pp. 33–40.

(c) The dissents’ objections are addressed and rejected. Pp. 41–44.

JUSTICE THOMAS agreed that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms that was recognized in District of Columbia v. Heller, 554 U. S. ___, fully applicable to the States. However, he asserted, there is a path to this conclusion that is more straightforward and more faithful to the Second Amendment’s text and history. The Court is correct in describing the Second Amendment right as “fundamental” to the American scheme of ordered liberty, Duncan v. Louisiana, 391 U. S. 145, 149, and “deeply rooted in this Nation’s history and traditions,” Washington v. Glucksberg, 521 U. S. 702, 721. But the Fourteenth Amendment’s Due Process Clause, which speaks only to “process,” cannot impose the type of substantive restraint on state legislation that the Court asserts. Rather, the right to keep and bear arms is enforceable against the States because it is a privilege of American citizenship recognized by §1 of the Fourteenth Amendment, which provides, inter alia: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” In interpreting this language, it is important to recall that constitutional provisions are “ ‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___. The objective of this inquiry is to discern what “ordinary citizens” at the time of the Fourteenth Amendment’s ratification would have understood that Amendment's Privileges or Immunities Clause to mean. Ibid. A survey of contemporary legal authorities plainly shows that, at that time, the ratifying public understood the Clause to protect constitutionally enumerated rights, including the right to keep and bear arms. Pp. 1–34.

ALITO, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, II–D, III–A, and III–B, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined, and an opinion with respect to Parts II–C, IV, and V, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., join. SCALIA, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply. 

Rank	Downloads	Paper Title
1	306	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010 [2nd last week]
2	302	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010 [3rd last week]
3	236	Vigilante Justice: Prosecutor Misconduct in Capital Cases Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman, CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services, Date posted to database: April 5, 2010 [4th last week]
4	168	Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: April 5, 2010 [5th last week]
5	157	Two Kinds of Retributivism Mitchell N. Berman, University of Texas School of Law, Date posted to database: April 20, 2010 [6th last week]
6	146	The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants Adam M. Gershowitz, Laura Killinger, University of Houston Law Center, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: April 5, 2010 [7th last week]
7	116	Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice Dan Markel, Chad Flanders, Florida State University College of Law, Saint Louis University - School of Law, Date posted to database: April 14, 2010 [8th last week]
8	112	The Swan Song of Universal Jurisdiction in Spain Ignacio de la Rasilla del Moral, Watson Institute for International Studies, Brown University, Date posted to database: April 16, 2010 [9th last week]
9	110	Intuitions of Punishment Owen D. Jones, Robert Kurzban, Vanderbilt University - Law School & Department of Biological Sciences, University of Pennsylvania - Department of Psychology, Date posted to database: April 19, 2010 [10th last week]
10	103	From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? Henning Grosse Ruse-Khan, Max Planck Institute for Intellectual Property, Competition & Tax Law, Date posted to database: May 4, 2010 [new to top ten]

High-security cases in low-security courtrooms

A Jurist story headlined UN announces opening of new Kenya courtroom for piracy trials highlights the problem. Kenya had previously announced that it would no longer accept Somali pirate cases.

Bilz on Experimental Examination of the Exclusionary Rule

Kenworthey Bilz  (Northwestern University - School of Law) has posted Dirty Hands or Deterrence? An Experimental Examination of the Exclusionary Rule on SSRN. Here is the abstract:

Historically, the Supreme Court has offered two justifications for the Exclusionary Rule: one, it protects the integrity of the judicial system from “dirty” evidence, and two, it deters illegal searches by the police. The former justification has mostly fallen out of favor. Today, decisions turn on whether the Rule would, in fact, deter illegal searches in a given class of cases. As such, most empirical studies about the Rule have focused on whether or not the Rule leads to fewer police searches (illegal or otherwise), or to fewer criminal convictions.

This study takes a completely different approach, assessing support for the two competing justifications for the Rule. Two experiments show support for the integrity justification for the Rule, but not for the deterrence justification. Specifically, when deciding whether to exclude evidence found during a search conducted without probable cause, participants are sensitive to a police officer’s motive (clean vs. dirty), but not to alternative means of punishing those officers (civil suit, citizen-police review board). A third experiment examines the integrity rationale in more detail. Participants who were obligated to use dirty evidence at trial disproportionately selected a bottle of Purell over a pen as a thank you gift, versus participants who excluded that evidence. In other words, the Exclusionary Rule protects the courts from being metaphorically tainted.

These findings are important given that the Rule is not constitutionally-mandated. The Supreme Court has held that the Rule can be ignored to the extent that it (a) does not achieve its goals and (b) undermines the perceived legitimacy of the courts by the public. Given this, the Court needs to be right about what those goals are, and whether or not its current deterrence-based jurisprudence enhances legitimacy. These experiments suggest the possibility that reinvigorating the integrity justification would serve the ends of the Rule better than current doctrine does.

"Some blogosphere reactions to Skilling et al."

Doug Berman at Sentencing Law and Policy points to posts at Crime and Consequences and the WSJ Law Blog.  

"NACDL President Comments on Honest Services Trilogy"

Guest blogger Solomon L. Wisenberg has this post at White Collar Crime Prof Blog linking to the press release from the National Association of Criminal Defense Lawyers. From the press release:

In Skilling, on which the Court relies in its decisions in both Black v. United States and Weyhrauch v. United States, also decided today, the Court’s opinion is clear, “To preserve the statute without transgressing constitutional limitations, we now hold that § 1346 criminalizes only the bribe-and-kickback core of the pre-­McNally case law,” citing a 1987 case that overturned a previous version of the law. The Court goes on to specifically exclude from the ambit of this statute the pre-McNally conflict-of-interest cases. “In sum, our construction of §1346 ‘establish[es] a uniform national standard, define[s] honest services with clarity, reach[es] only seriously culpable conduct, and accomplish[es] Congress’s goal of ‘overruling’ McNally.’” But NACDL President Cynthia Hujar Orr explained that, “We are nonetheless disappointed that the Court has held that there remains a place in our criminal justice system for a statute on whose meaning few can agree.”

Orr did say that she is “heartened that the Court has unambiguously rejected government arguments that the ‘honest services’ fraud statute can be properly used across as broad a range of conduct as the government has sought to do in recent years.” Nonetheless, Orr expects “to see future litigation surrounding efforts by prosecutors to wedge their cases into the ‘bribe or kickback’ paradigm to which the Court has now limited this statute.”

Opinion elaborating on "second or successive" habeas petition

Magwood v. Patterson is here.

Opinions in honest services fraud cases

Skilling v. United States is here.

Black v. United States is here.

Wehyrauch v. United States is here.

Parsons on Local Regulations of Secondary Culprits

Jeffrey A. Parness  (Northern Illinois University - College of Law) has posted Beyond Red Light Enforcement Against the Guilty But Innocent: Local Regulations of Secondary Culprits (Willamette Law Review, Vol. 47, No. 2, 2010) on SSRN. Here is the abstract:

Automated traffic enforcement schemes, employing speed and red light cameras, are increasingly used by local governments in the United States. In some schemes, traffic violations are pursued against the owners as well as the drivers of the recorded motor vehicles. Here, the mens requirements that typically accompany criminal code violations are often lacking. A form of strict liability for secondary culprits is justified because of their ability to control the primary culprits using the vehicles and because traffic accidents will be reduced.

While likely to continue to anger many citizens, the surge of automated traffic enforcement schemes will also likely continue since significant deterrence of vehicle violations may follow and because significant additional revenue for local governments will follow. Many violations charged through automated schemes will be processed administratively, that is outside the judicial article courts, freeing trial court judges to handle the pressing business of civil and criminal cases and freeing prosecutors to focus on more serious offenses. Increasing numbers of vehicle owners will likely be punished for the driving of others whose bad acts were never aided, and may even have been expressly banned.

There are limits to local governmental regulation of traffic violations involving secondary culprits. Besides public outcry, there are state and federal government preemption's as well as constitutional interests. The constitutional bars include property owner interests in equal protection, non-excessive fines, and due process. Notwithstanding these limits, there is much room for expanding automated traffic enforcement schemes aimed at secondary culprits. Judicial precedents suggest as well there can be expansions of non-automated traffic enforcement schemes, as well as non-traffic enforcement schemes, aimed at property owners as secondary culprits. Such non-traffic schemes today involve trash, booze, tobacco, drugs and adult entertainment.

This paper will first review contemporary local regulations of secondary culprits through automated traffic enforcement schemes. It will then examine the limits on such regulations, focusing on the schemes in Knoxville, Cleveland and Chicago. Finally, it will explore potential new local governmental regulations of property owners as secondary culprits in and outside of traffic, and with and without automated enforcement.

"N.Y. May Mandate Taking DNA from All Criminals"

This A.P. story appeared at CBSNews.com, as noted by FourthAmendment.com.

(AP)  Gov. David Paterson has proposed roughly doubling New York's DNA database to include samples from even low-level offenders, making it the first in the nation to so broadly collect and use this evidence to solve crimes and exonerate people wrongly convicted.

New York's law would require adding about 48,000 samples a year to a laboratory system that state officials say is capable of handling the extra work, with no current backlogs.

"You think it'd be a huge explosion, but we have samples on so many people that recommit crimes already - it's the old rule of criminals don't specialize," said Sean Byrne, acting commissioner of the Division of Criminal Justice Services.

Caldwell & Allison on Multiple Counts in Business Robberies

Harry M. Caldwell (pictured) and Jennifer Allison  (Pepperdine University - School of Law and Pepperdine University School of Law Library) have posted  Counting Victims and Multiplying Counts: Business Robbery, Faux Victims, and Draconian Punishment (Idaho Law Review, Vol. 46, 2010) on SSRN. Here is the abstract:

This Article offers a 50-state survey of robbery statutes, specifically examining the charging and sentencing regimes for the robbery of a business during which multiple people, including employees and customers, are threatened. It begins by presenting a historical overview of the crime of robbery, focusing specifically on the robbery of a business. Then, the survey results are described, and specific problems related to multiplicity of punishment are discussed. Finally, a reasonable and ideal model of business robbery jurisprudence is offered - one that focuses on punishing the defendant proportionally to the severity of the crime committed, and that furthers the intention of criminal law to protect innocent people for the benefit of society.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to briefs and the opinion below:

• Walker v. Martin: Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying the rule in other cases.

Opinion on constitutionality of statute prohibiting material support of terrorist organizations

Holder v. Humanitarian Law Project is here. Here is the syllabus:

It is a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” 18 U. S. C. §2339B(a)(1).The authority to designate an entity a “foreign terrorist organization” rests with the Secretary of State, and is subject to judicial review.“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who may be or include oneself), and transportation, except medicine or religious materials.” §2339A(b)(1). Over the years, §2339B and the definition of “material support or resources” have been amended, inter alia, to clarify that a violation requires knowledge of the foreign group’s designation as a terrorist organization or its commission of terrorist acts, §2339B(a)(1); and to define the terms “training,” §2339A(b)(2), “expert advice or assistance,” §2339A(b)(3), and “personnel,” §2339B(h).

Among the entities the Secretary of State has designated “foreign terrorist organization[s]” are the Partiya Karkeran Kurdistan (PKK) and the Liberation Tigers of Tamil Eelam (LTTE), which aim to establish independent states for, respectively, Kurds in Turkey andTamils in Sri Lanka. Although both groups engage in political and humanitarian activities, each has also committed numerous terrorist attacks, some of which have harmed American citizens. Claiming they wish to support those groups’ lawful, nonviolent activities, two
U. S. citizens and six domestic organizations (hereinafter plaintiffs) initiated this constitutional challenge to the material-support statute. The litigation has had a complicated 12-year history. Ultimately, the District Court partially enjoined the enforcement of the material-support statute against plaintiffs. After the Ninth Circuit affirmed, plaintiffs and the Government cross-petitioned for certiorari. The Court granted both petitions.

As the litigation now stands, plaintiffs challenge §2339B’s prohibition on providing four types of material support—“training,” “expert advice or assistance,” “service,” and “personnel”—asserting violations of the Fifth Amendment’s Due Process Clause on the ground that the statutory terms are impermissibly vague, and violations of their First Amendment rights to freedom of speech and association. They claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities, including training PKK members to use international law to resolve disputes peacefully; teaching PKK members to petition the United Nations and other representative bodies for relief; and engaging in political advocacy on behalf of Kurds living in Turkey and Tamils living in Sri Lanka.

Held: The material-support statute, §2339B, is constitutional as applied to the particular forms of support that plaintiffs seek to provide toforeign terrorist organizations. Pp. 8–36.

(a) This preenforcement challenge to §2339B is a justiciable Article III case or controversy. Plaintiffs face “a credible threat of prosecution” and “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” Babbitt v. Farm Workers, 442 U. S. 289, 298. P. 10.

(b) The Court cannot avoid the constitutional issues in this litigation by accepting plaintiffs’ argument that the material-support statute, when applied to speech, should be interpreted to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities. That reading is inconsistent with §2339B’s text, which prohibits “knowingly” providing material support and demonstrates that Congress chose knowledge about the organization’s connection to terrorism, not specific intent to further its terrorist activities, as the necessary mental state for a violation. Plaintiffs’ reading is also untenable in light of the sections immediately surrounding §2339B, which—unlike §2339B—do refer to intent to further terrorist activity. See §§2339A(a), 2339C(a)(1). Finally, there is no textual basis for plaintiffs’ argument that the same language in §2339B should be read to require specific intent with regard to speech, but not with regard to other forms of material support. Pp. 10–12.

(c) As applied to plaintiffs, the material-support statute is not unconstitutionally vague. The Ninth Circuit improperly merged plaintiffs’ vagueness challenge with their First Amendment claims, holding that “training,” “service,” and a portion of “expert advice or assistance” were impermissibly vague because they applied to protected speech—regardless of whether those applications were clear. The Court of Appeals also contravened the rule that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495.

The material-support statute, in its application to plaintiffs, “provide[s] a person of ordinary intelligence fair notice of what is prohibited.” United States v. Williams, 553 U. S. 285, 304. The statutory terms at issue here—“training,” “expert advice or assistance,” “service,” and “personnel”—are quite different from the sorts of terms, like “ ‘annoying’ ” and “ ‘indecent,’ ” that the Court has struck down for requiring “wholly subjective judgments without statutory definitions, narrowing context, or settled legal meanings.” Id., at 306. Congress has increased the clarity of §2339B’s terms by adding narrowing definitions, and §2339B’s knowledge requirement further reduces any potential for vagueness, see Hill v. Colorado, 530 U. S. 703, 732.

Although the statute may not be clear in every application, the dispositive point is that its terms are clear in their application to plaintiffs’ proposed conduct. Most of the activities in which plaintiffs seek to engage readily fall within the scope of “training” and “expert advice or assistance.” In fact, plaintiffs themselves have repeatedly used those terms to describe their own proposed activities. Plaintiffs’ resort to hypothetical situations testing the limits of “training” and “expert advice or assistance” is beside the point because this litigation does not concern such situations. See Scales v. United States, 367 U. S. 203, 223. Gentile v. State Bar of Nev., 501 U. S. 1030, 1049–1051, distinguished. Plaintiffs’ further contention, that the statute is vague in its application to the political advocacy they wish to undertake, runs afoul of §2339B(h), which makes clear that “personnel” does not cover advocacy by those acting entirely independently of a foreign terrorist organization, and the ordinary meaning of “service,” which refers to concerted activity, not independent advocacy. Context confirms that meaning: Independently advocating for a cause is different from the prohibited act of providing a service “to a foreign terrorist organization.” §2339B(a)(1).

Thus, any independent advocacy in which plaintiffs wish to engage is not prohibited by §2339B. On the other hand, a person of ordinary intelligence would understand the term “service” to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization. Plaintiffs argue that this construction of the statute poses difficult questions of exactly how much direction or coordination is necessary for an activity to constitute a “service.” Because plaintiffs have not provided any specific articulation of the degree to which they seek to coordinate their advocacy with the PKK and the LTTE, however, they cannot prevail in their preenforcement challenge. See Washington State Grange v. Washington State Republican Party, 552 U. S. 442, 454. Pp. 13–20.

(d) As applied to plaintiffs, the material-support statute does not violate the freedom of speech guaranteed by the First Amendment. Pp. 20–34.

(1) Both plaintiffs and the Government take extreme positions on this question. Plaintiffs claim that Congress has banned their pure political speech. That claim is unfounded because, under the material-support statute, they may say anything they wish on any topic. Section 2339B does not prohibit independent advocacy or membership in the PKK and LTTE. Rather, Congress has prohibited “material support,” which most often does not take the form of speech. And when it does, the statute is carefully drawn to cover only a narrow category of speech to, under the direction of, or in coordination with foreign groups that the speaker knows to be terrorist organizations. On the other hand, the Government errs in arguing that the only thing actually at issue here is conduct, not speech, and that the correct standard of review is intermediate scrutiny, as set out in United States v. O’Brien, 391 U. S. 367, 377. That standard is not used to review a content-based regulation of speech, and §2339B regulates plaintiffs’ speech to the PKK and the LTTE on the basis of its content. Even if the material-support statute generally functions as a regulation of conduct, as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message.Thus, the Court “must [apply] a more demanding standard” than the one described in O’Brien. Texas v. Johnson, 491 U. S. 397, 403. Pp.20–23.

(2) The parties agree that the Government’s interest in combating terrorism is an urgent objective of the highest order, but plaintiffs argue that this objective does not justify prohibiting their speech, which they say will advance only the legitimate activities of the PKK and LTTE. Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities from support of terrorism is an empirical question. Congress rejected plaintiffs’ position on that question when it enacted §2339B, finding that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” §301(a), 110 Stat. 1247, note following §2339B. The record confirms that Congress was justified in rejecting plaintiffs’ view. The PKK and the LTTE are deadly groups. It is not difficult to conclude, as Congress did, that the taint of their violent activities is so great that working in coordination with them or at their command legitimizes and furthers their terrorist means. Moreover, material support meant to promote peaceable, lawful conduct can be diverted to advance terrorism in multiple ways. The record shows that designated foreign terrorist organizations do not maintain organizational firewalls between social, political, and terrorist operations, or financial firewalls between funds raised for humanitarian activities and those used to carry out terrorist attacks. Providing material supportin any form would also undermine cooperative international efforts to prevent terrorism and strain the United States’ relationships with its allies, including those that are defending themselves against violent insurgencies waged by foreign terrorist groups. Pp. 23–28.

(3) The Court does not rely exclusively on its own factual inferences drawn from the record evidence, but considers the Executive Branch’s stated view that the experience and analysis of Government agencies charged with combating terrorism strongly support Congress’s finding that all contributions to foreign terrorist organizations—even those for seemingly benign purposes—further those groups’ terrorist activities. That evaluation of the facts, like Congress’s assessment, is entitled to deference, given the sensitive national security and foreign relations interests at stake. The Court does not defer to the Government’s reading of the First Amendment. But respect for the Government’s factual conclusions is appropriate in light of the courts’ lack of expertise with respect to national security and foreign affairs, and the reality that efforts to confront terrorist threats occur in an area where information can be difficult to obtain, the impact of certain conduct can be difficult to assess, and conclusions must often be based on informed judgment rather than concrete evidence. The Court also finds it significant that Congress has been conscious of its own responsibility to consider how its actions may implicate constitutional concerns. Most importantly, Congress has avoided any restriction on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by foreign terrorist groups. Given the sensitive interests in national security and foreign affairs at stake, the political branches have adequately substantiated their determination that prohibiting material support in the form of training, expert advice, personnel, and services to foreign terrorist groups serves the Government’s interest in preventing terrorism, even if those providing the support mean to promote only the groups’ nonviolent ends.

As to the particular speech plaintiffs propose to undertake, it is wholly foreseeable that directly training the PKK on how to use international law to resolve disputes would provide that group with information and techniques that it could use as part of a broader strategy to promote terrorism, and to threaten, manipulate, and disrupt. Teaching the PKK to petition international bodies for relief also could help the PKK obtain funding it would redirect to its violent activities. Plaintiffs’ proposals to engage in political advocacy on behalf of Kurds and Tamils, in turn, are phrased so generally that they cannot prevail in this preenforcement challenge. The Court does not decide whether any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It simply holds that §2339B does not violate the freedom of speech as applied to the particular types of support these plaintiffs seek to provide. Pp.28–34.

(e) Nor does the material-support statute violate plaintiffs’ First Amendment freedom of association. Plaintiffs argue that the statute criminalizes the mere fact of their associating with the PKK and the LTTE, and thereby runs afoul of this Court’s precedents. The Ninth Circuit correctly rejected this claim because §2339B does not penalize mere association, but prohibits the act of giving foreign terrorist groups material support. Any burden on plaintiffs’ freedom of association caused by preventing them from supporting designated foreign terrorist organizations, but not other groups, is justified for the same reasons the Court rejects their free speech challenge. Pp. 34–
35.

552 F. 3d 916, affirmed in part, reversed in part, and remanded.

ROBERTS, C. J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined

Richardson on Arrest Efficiency and the Fourth Amendment

L. Song Richardson  (DePaul University College of Law) has posted Arrest Efficiency and the Fourth Amendment (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

In recent years, legal scholars have utilized the science of implicit social cognition to reveal how unconscious biases affect perceptions, behaviors, and judgments. Employing this science, scholars critique legal doctrine and challenge courts to take accurate theories of human behavior into account or to explain their failure to do so. Largely absent from this important conversation, however, are Fourth Amendment scholars. This void is surprising because the lessons of implicit social cognition can contribute much to understanding police behavior, especially as it relates to arrest efficiency or hit rates - the rates at which police find evidence of criminal activity when they conduct a stop and frisk. Empirical evidence consistently demonstrates that the police disproportionately stop and frisk non-Whites although stops and searches of Whites are often more successful in yielding evidence of criminal activity. While economists and criminal process scholars both suggest that arrest inefficiency is due to conscious racial bias, the science reveals that unconscious biases may also contribute to this inefficient policing. This Article argues that taking account of the science of implicit social cognition is important to the study of Fourth Amendment jurisprudence and policing. It demonstrates that the failure to recognize the effects of implicit bias has resulted in a Fourth Amendment legal regime that unintentionally exacerbates inefficient policing by strengthening the effects of implicit bias on police behavior. The Article suggests doctrinal and structural changes to ameliorate inefficient policing and more effectively protect privacy against arbitrary government intrusion.

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"‘Smart on Crime’ Mantra of Philadelphia Prosecutor"

The story is in the New York Times:

 PHILADELPHIA — The new district attorney in violence-weary Philadelphia had vowed not to get tough on crime but to get “smart on crime.” This month, R. Seth Williams began to make good on his word, downgrading penalties for possessing small amounts of marijuana from jail time to community service and fines.

. . . .

Philadelphia, after being battered for years by the worst sort of superlatives — the highest murder rate, the lowest conviction rate — seems ready to give Mr. Williams and his ideas a chance.