CrimProf Blog

Mitchell on Obstacles to Longer Halfway House Placements

S. David Mitchell  (University of Missouri) has posted Impeding Reentry: Agency and Judicial Obstacles to Longer Halfway House Placements on SSRN. Here is the abstract:

Over 700,000 prisoners were released into their communities in 2008, at least 50,000 of those from federal custody. Once an obscure cause, nearly everyone agrees that prisoner reentry – the process by which former prisoners return to their community as free citizens – is of national importance. Absent adequate attention to transitional services, ex-offenders are often homeless, unemployed, and suffer from untreated substance abuse addictions. Accordingly, President Obama and his two predecessors have devoted considerable attention to the issue. Congress passed the Second Chance in 2007, amending two federal statutes, sections 3624(c) and 3621(b) and giving inmates a longer time in halfway houses to transition from incarceration to law-abiding citizens and requiring individualized inmate assessments prior to placement. Nevertheless, the Bureau of Prisons is ignoring both mandates, by categorically limiting the inmates’ time in halfway houses, trends that some courts have found violates the agency’s statutory authority.

By presuming that six months is a satisfactory length of time to spend in a halfway house, the Bureau of Prisons fails to comply with its statutory authority and thus violates Chevron and hard look review. Federal inmates that have sought to challenge the Bureau of Prisons’ policy have been thwarted by two judicial doctrines, exhaustion and mootness. Courts are refusing to hear inmates’ challenges because the inmates have failed to exhaust their remedies under the Bureau’s three-tiered process prior to seeking judicial relief or because the petition is moot. Inmates have invoked exceptions to both that have had mixed success. Given official statements, legal action is inevitable. Because legal action is a certainty, the time lost awaiting an administrative decision diminishes the amount of time that an inmate would be able to spend in a halfway house. The Bureau of Prisons needs to amend its policy and not categorically place inmates in halfway houses for six months.

Stinneford on Proportionality under the Cruel and Unusual Punishments Clause

John F. Stinneford  (University of Florida Levin College of Law) has posted Rethinking Proportionality under the Cruel and Unusual Punishments Clause on SSRN. Here is the abstract:

Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefited from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.

This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.

Gender, Justice, and Victim Rights Symposium Feb. 25 at Wisconsin

Legal Scholarship Blog notes this symposium focusing on "A Gendered Perspective of Victims in the Criminal Justice System." Those interested in submitting papers should send an abstract by by October 31.

Reamey on Universality in Criminal Procedure

Gerald S. Reamey  (St. Mary's University School of Law) has posted Innovation or Renovation in Criminal Procedure: Is the World Moving Toward a New Model of Adjudication? (Arizona Journal International & Comparative Law, Vol. 27, p. 324, 2010) on SSRN. Here is the abstract:

A universal system of criminal procedure offers the allure of efficiency, predictability, and enhanced crime control. For the first time in modern history, universality seems achievable. The criminal procedures employed by the world’s major legal systems are converging. What was once distinctively “civil” or “common law” is now a blend of the two. The adversarial adjudicative approach of most common law countries now can be found in the most unlikely places, and civil law characteristics adorn the processes of some of the world’s most aggressively adversarial systems.

While this movement has not gone unnoticed, the pace of change has accelerated, and the ways in which it has manifested itself have increased. This article begins by revealing how little systems actually differ in practice. It then analyzes how the gap that remains between these systems is closing by examining three illustrations of convergence: the growing use of lay judges and juries in civil law countries, the Italian reform movement incorporating adversarial techniques in a traditionally nonadversarial system, and the modernization of Chinese criminal procedure.

Following or perhaps leading this trend are a new breed of “hybrid” legal systems that borrow freely from several legal traditions and invent procedures freely. Beginning with the creation of multinational and supranational criminal tribunals following the end of World War II, new institutions and processes have been developed to deal with regional and international violations. Among the most important examples of the movement toward hybridization and multinational adjudication is the Corpus Juris project. Little known in the United States, this proposal represents a controversial effort within the European Union to harmonize – and perhaps to universalize – the criminal processes related to protecting the Community’s financial interests. Only some of the recommendations resulting from Corpus Juris have been instituted, but it nevertheless continues to impact thinking about unification and reform. Several tribunals already function with regional and international jurisdiction. The European Court of Human Rights, the International Criminal Tribunal for the Former Yugoslavia, and the International Criminal Court have somewhat distinctive rules of procedure, but all blend the traditions of the major legal systems in a slightly different mix.

Will the trend toward adversarial trials and hybrid rules of adjudication eventually produce, as some have predicted, a universal system? This article explains not only the influences propelling countries toward a similar view of criminal procedure, but also why that movement is inherently limited and unlikely to produce universality.

Haque on Criminal Law and Armed Conflict

Adil Ahmad Haque  (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Criminal Law and Morality at War (PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., 2010) on SSRN. Here is the abstract:

The purpose of this chapter is to identify the moral norms applicable to killing in armed conflict and determine whether and to what extent the law of armed conflict (LOAC) and international criminal law (ICL) track these moral norms, justifiably depart from them, or unjustifiably depart from them. Part I explores the moral and legal norms governing the killing of civilians not directly participating in hostilities, both as an intended means and as a foreseen side-effect, and defends one account of these norms against important philosophical challenges by Thomas Scanlon, Victor Tadros, Frances Kamm, and Jeff McMahan. I argue that these moral norms are best understood and defended using the distinctions drawn in criminal law theory between wrongdoing, justifiability, and justification. The LOAC tracks these moral norms quite closely. By contrast, ICL departs from these moral norms in ways that are difficult to defend, in part because ICL seems to mistakenly assign intention a wrong-making rather than a wrong-justifying function.

The balance of the chapter examines the moral and legal norms governing the killing of civilians directly participating in hostilities as well as of members of armed forces and organized armed groups. Part II attempts to identify the conditions under which individuals lose their moral immunity from direct attack, partly by critically examining an analogy drawn by Jeff McMahan between these conditions and the legal doctrine of criminal complicity. Both the LOAC and ICL generally track these conditions fairly closely, but both should be revised to prohibit direct attacks on members of armed forces whom the attacker knows are not directly participating in hostilities and have not assumed a ‘continuous combat function’. Finally, Part III argues that moral constraints of necessity and proportionality limit the use of force even against individuals who are morally liable to direct attack. Several arguments to the effect that the LOAC and ICL may justifiably fail to enforce these moral constraints are examined and found unpersuasive.

"Somalia piracy suspect pleads guilty in US court"

Jurist has this interesting story, recounting the charges that have been filed against "pirates" in light of a federal judge's ruling that the federal piracy statute does not apply to "violence or aggression committed on the high seas" and discussing the controversy about whether these prosecutions should occur in federal court.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	2739	A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070 Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller, University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: May 29, 2010
2	200	Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing Babe Howell, CUNY School of Law, Date posted to database: May 18, 2010
3	183	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: July 3, 2010
4	168	Status as Punishment: A Critical Guide to Padilla v. Kentucky Gabriel J. Chin, Margaret Colgate Love, University of Arizona James E. Rogers College of Law, Law Office of Margaret Love, Date posted to database: July 10, 2010 [6th last week]
5	159	Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law Lawrence Rosenthal, Chapman University - School of Law, Date posted to database: June 27, 2010
6	145	More Different than Life, Less Different than Death William W. Berry, University of Mississippi School of Law, Date posted to database: May 25, 2010 [4th last week]
7	134	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010
8	120	Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law Gabriel J. Chin, Marc L. Miller, University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: July 26, 2010 [new to top ten]
9	113	One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research Jon B. Gould, Richard A. Leo, George Mason University - School of Public Policy, University of San Francisco - School of Law, Date posted to database: May 27, 2010 [8th last week]
10	100	Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development David B. Wexler, University of Puerto Rico - School of Law, Date posted to database: June 23, 2010

Laurin on Herring and the Exclusionary Rule

Jennifer E. Laurin (University of Texas) has posted Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence on SSRN. Here is the abstract:

The Supreme Court’s 2009 decision in Herring v. United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule. This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence. That influence has been driven by the interrelated processes of borrowing and convergence – the former, a deliberate tactic employed when the Court in United States v. Leon drew from qualified immunity jurisprudence to define the contours of the exclusionary rule’s good faith exception; the latter, a gradual and progressive effect of that initial borrowing, whereby first the good faith exception, and eventually other areas of exclusionary rule doctrine, have increasingly drawn from and grown aligned with constitutional tort doctrine.

The Article identifies and traces these dynamics of borrowing and convergence in the arena of the exclusionary rule, illuminating the specific mix of historical contingency, adjudicatory pragmatism, and, perhaps most interestingly, tactical considerations that drove the influence of constitutional tort doctrine on the exclusionary rule generally, in Herring more specifically. This examination affords greater understanding of the source, contours, and likely trajectory of the exclusionary rule framework that Herring enunciates. Moreover, close examination of borrowing and convergence in this particular context provides a basis for mapping a more systematic understanding of why and how disparate strands of doctrine come to cross-fertilize – in the particular realm of criminal procedure, in the broader arena of constitutional remedies, and in the law more generally. The story of these dynamics in the exclusionary rule context offers a largely cautionary tale of the risks that convergence poses to substantive legal standards as well as jurisprudential values such as transparency, particularly in constitutional remedial jurisprudence.

The Blagojevich Watch

Jurist updates the situation: Prosecutors will retry the former Illinois governor, convicted on just one of 24 counts, but will drop charges against his brother, alleged to have been involved in attempting to sell President Obama's vacated Senate seat.

THE CONSTITUTION IN 2020: THE FUTURE OF CRIMINAL JUSTICE

That's the title of the conference at Florida State on Oct. 7-8, co-sponsored by FSU and the American Constitution Society. Keynote address Thursday evening, Oct. 7, by Steve Bright of the Southern Center for Human Rights; Friday's opening remarks are by Jack Balkin (Yale) (pictured). The symposium is "dedicated to an exploration of current and future developments in crime control and equality, punishment and the Constitution, national security and liberty, and citizenship and community." The proceedings will be available by streaming video. Details are here. The panels and the excellent array of speakers follow the jump.

Thursday, October 7 Evening Event:

Keynote Address by Steve Bright, Southern Center for Human Rights

Friday, October 8 Morning Events:

Opening Remarks by Professor Jack Balkin, Yale Law School

Panel One - National Security and Liberty:

Jack Balkin, Yale Law School

John Parry, Lewis & Clark Law School

Deborah Pearlstein, Princeton University Woodrow Wilson School of Public and International Affairs

Marc Rotenberg, Electronic Privacy Information Center

Chris Slobogin, Vanderbilt University Law School

Panel Two - Crime Control and Equality:

Susan Bandes, DePaul University College of Law/Florida State University College of Law

Darryl Brown, University of Virginia School of Law

Song Richardson, DePaul University College of Law

David Sklansky, UC Berkeley School of Law

 

Friday, October 8 Afternoon Events:

Panel Three - Punishment and the Constitution:

Doug Berman, The Ohio State University Moritz College of Law

Sharon Dolovich, UCLA School of Law

Reid Fontaine, Florida State University College of Law

Dan Markel, Florida State University College of Law

 

Panel Four - Citizenship and Community:

Jack Chin, University of Arizona College of Law

Bernard Harcourt, University of Chicago Law School

Wayne Logan, Florida State University College of Law

Richard Myers, UNC School of Law

Kerr on applying the Fourth Amendment to the internet

Orin Kerr (George Washington) has published Applying the Fourth Amendment to the Internet: A General Approach at The Legal Workshop. It is based on his article of the same name in the Stanford Law Review. The beginning:

This Article proposes a general approach to applying the Fourth Amendment to the Internet. It assumes that courts will try to apply the Fourth Amendment to the Internet so that the Fourth Amendment has the same basic function online that it has offline. The Article reaches two major conclusions. First, Fourth Amendment protections online should depend on whether the data is content or non-content information. The contents of communications, like e-mail and remotely stored files, ordinarily should be protected. On the other hand, non-content information, such as IP addresses and e-mail addresses, ordinarily should not be protected. Second, courts should ordinarily require a search warrant if the government seeks to obtain the contents of protected Internet communications. Further, the scope of warrants should be based on individual users rather than individual accounts.

"Switzerland activists withdraw from campaign to reinstate death penalty"

Jurist has the story.

The advocacy group did not give a reason for its sudden withdrawal from the campaign, though it continues to argue that the Swiss criminal justice system hurts victims by failing to adequately punish those convicted of serious crimes. On Tuesday, the Swiss government set a six-month deadline for the group to accumulate at least 100,000 signatures in support of the measure in order to force a national popular vote. . . . Capital punishment was abolished from Switzerland's criminal code in 1942 and remained part of the country's military laws until 1992. The last military execution, however, took place in 1944.

When does a burglary end?

My colleague, Shaun Martin, raises this question over at California Appellate Report, in connection with this intermediate state appellate decision applying the felony-murder rule. Defendant was driving away from the scene of his burglary, and no one was in pursuit, but he saw a police car, though (erroneously) that the officer knew about the crime, and hit the accelerator, ultimately leading to an accident and death. Held, over a dissent: the felony-murder rule applies.

Ramsey on Domestic Violence and State Intervention

Carolyn B. Ramsey  (University of Colorado Law School) has posted Domestic Violence and State Intervention in the American West and Australia, 1860-1930
(Indiana Law Journal, Vol. 86, 2011) on SSRN. Here is the abstract:

This article calls into question stereotypical assumptions about the presumed lack of state intervention in the family and the patriarchal violence of Anglo-American frontier societies in the late nineteenth and early twentieth centuries. By analyzing previously unexamined cases of domestic assault and homicide in the American West and Australia, Professor Ramsey reveals a sustained (but largely ineffectual) effort to civilize men by punishing violence against women. Husbands in both the American West and Australia were routinely arrested or summoned to court for beating their wives in the late 1800s and early 1900s. Judges, police officers, journalists, and others expressed dismay over domestic assaults. However, legal authorities struggled with the dilemma of how to deter batterers whose victims were reluctant to prosecute. To be sure, the state’s response was not as aggressive as under modern mandatory arrest laws and no-drop prosecution policies. Yet the “why didn’t she leave?” question actually may have seemed easier to answer in the late 1800s and early 1900s than it did later in the twentieth century. Due to the failure of the state to prevent recidivist domestic violence, juries and even judges often deemed the actions of women who killed their abusive husbands wholly or partially justified. In contrast, husbands who killed their wives tended to be convicted of murder because their crimes violated the ideal of the “respectable family man” that was vital to the efforts of both the American West and Australia to project a civilized image.

This article makes three contributions. First, it presents a complex and surprising picture of gender relations in the American West and Australia by showing that men punished other men for physically attacking their wives and that there was greater public concern about violent marriages than scholars have realized. Second, it documents the criminal prosecution of wife-beaters and wife-killers on two continents during a seventy-year period, which indicates that this was not just an isolated peak of intervention in a long history of apathy toward domestic violence. Third, Professor Ramsey shows that scholarly emphasis on women’s insanity claims has obscured the extent to which female defendants successfully raised self-defense arguments to obtain acquittal or mitigation in intimate-partner murder cases. The justification of abused women’s use of deadly force acknowledged the desperate circumstances they faced in societies that condemned domestic violence, but had neither succeeded in deterring it, nor provided victims with adequate escape routes.

"4th Amendment Violating Mobile X-Ray Scanners Hit The Streets"

This story is on Prison Planet (hat tip: FourthAmendment.com) and includes a neat picture. Here's the lead:

As we warned at the beginning of the year, X-ray body scanners currently being used and abused in airports across the world are set to hit the streets as American Science & Engineering reveals that “more than 500 backscatter x-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents” have been sold to government agencies.

"Innocence claim rejected: Troy Davis loses challenge"

Doug Berman at Sentencing Law and Policy excerpts this post by Lyle Denniston at ScotusBlog discussing the upshot of last summer's Supreme Court order.

Beale on Honest Services

Sara Sun Beale  (Duke University - School of Law) has posted An Honest Services Debate (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This commentary employs a fictional debate to explore the issues raised by the Supreme Court’s decision in Skilling v. United States, 130 S. Ct. 2896 (2010), which dramatically cut back on “honest services” prosecutions under the mail and wire fraud statutes. In response to an earlier decision by the Supreme Court reading these statutes narrowly, Congress enacted 18 U.S.C. § 1346, which extends mail and wire fraud to schemes to deprive another of “the intangible right of honest services.” In 2009 the Supreme Court granted certiorari in three cases presenting questions concerning the “honest services” provision. One of the cases involved the indictment of state legislator who failed to disclose he was seeking employment from a large corporation while voting on legislation affecting the company. The other cases involved honest services convictions for deception and self dealing in the private sector by news magnate Conrad Black and former Enron CEO Jeffrey Skilling, whose false statements about the Enron’s financial situation propped up its stock price as it careened towards collapse.

The Court issued only one opinion on the merits, in Skilling. In an opinion written by Justice Ginsburg, six members of the Court rejected the claim that § 1346 is void for vagueness but construed the statute to be limited to bribes and kickbacks, which it found had comprised the “lion’s share” of the honest services prosecutions. The Court did not resolve – or even discuss – the other questions on which it had granted certiorari: whether a state law violation or economic harm or private gain were necessary elements (though bribery and kickbacks by their nature involve gain to the defendant). Justice Scalia (writing for himself and two other justices) wrote separately to argue that § 1346 is unconstitutionally vague.

I use the debate form to critique the Skilling opinion and explore a variety of issues raised by honest services prosecutions: (1) the federalism issues raised by the prosecution of state and local government officials, (2) the potential for overlap and conflict between broad conceptions of mail fraud and other federal and state regulatory systems, (3) the proper boundaries of criminal law and the problem of overcriminalization, and (4) the largely unregulated prosecutorial discretion that results from broadly drafted criminal statutes.

Remarkably, the Court failed to engage or even acknowledge those issues, except to the extent they were necessarily part of its assumption that absent a limiting interpretation § 1346 would have been unconstitutionally vague. Precisely because the Court did not engage these concerns, the Skilling opinion prompted me to explore other issues that are less often the focus of criminal law scholarship: the doctrine of constitutional avoidance, the standards governing facial versus as-applied challenges, the proper methodology for interpreting statutes, and institutional concerns regarding the federal judiciary and its relationship to the other branches of government. Although these issues have generally been seen as the province of scholars specializing in constitutional law, federal courts, legislation, and public choice theory, the debate concludes that they should be a more important role in criminal law scholarship.

"L.A. has rare weekend with no killings"

Sad news and happy news all in one L.A. Times headline:

"The Bad Parent Defense"

Kent Scheidegger has this post at Crime and Consequences on "the single most popular way to argue against the death penalty," excerpting a newspaper account of a prisoner's recorded statement disclaiming his attorney's effort to present such a defense.

Slobogin on Empirical Desert

Christopher Slobogin  (Vanderbilt Law School) has posted Some Hypotheses About Empirical Desert (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of “justice” – defined in terms of moral blameworthiness – will not only satisfy retributive urges, but will also often be as efficacious at controlling crime as a system that revolves around other utilitarian purposes of punishment. Constructing criminal laws that implement empirical desert has the latter effect, Robinson argues, because it enhances the moral credibility of the law, thus minimizing citizens’ desire to engage in vigilantism and other forms of non-compliance and increasing their willingness to accept controversial government decisions to criminalize or de-criminalize. In keeping with the utilitarian spirit of Robinson’s agenda, the main goal of this paper is to propose hypotheses (ten in all) that test possible vulnerabilities of his argument. Robinson’s work on empirical desert is provocative, but requires further empirical support.