March 27, 2010
Next week's criminal law and procedure arguments
Summaries are from ScotusWiki, which also includes links to briefs and opinions below.
- Renico v. Lett: Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.
- Dillon v. United States: (1) Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582. (2) Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.
- Barber v. Thomas: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?
- Carachuri-Rosendo v. Holder: Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
- Robertson v. U.S. ex rel. Watson: Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.
March 26, 2010
Meyer on Extraterritorial Application of U.S. Law
Jeffrey A. Meyer (Quinnipiac University - School of Law) has posted Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Scores of federal criminal and civil statutes are “geoambiguous” - they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.
This Article advances a new approach - a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges - as the rules wrongly do now - to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.
Hessick & Hessick on Appellate Problems after Booker
F. Andrew Hessick III and Carissa Byrne Hessick (both of Arizona State University - Sandra Day O'Connor College of Law) have posted Five Years of Appellate Problems after Booker (Federal Sentencing Reporter, Vol. 22, p. 85, 2009) on SSRN. Here is the abstract:
In United States v. Booker the U.S. Supreme Court rendered the Federal Sentencing Guidelines advisory rather than mandatory, committing sentencing decisions to the discretion of the district courts. But the Booker decision did not end with discretion. The Supreme Court also instituted appellate reasonableness review of all sentencing decisions. These two aspects of Booker’s remedy – discretion in district courts and appellate review for reasonableness – pull in opposite directions. Discretion means choice; there is no single correct sentence in any case. Substantive appellate review, by contrast, limits that choice. Appellate review promotes uniformity, and in particular adherence to the Guidelines, by cabining discretion. Since Booker, the Court has not resolved the tension between discretion and appellate review. Instead, the Court has sought to maintain district court discretion, while at the same time using appellate review to promote adherence to the Guidelines. This commentary notes that the incompatibility of discretion and appellate review has manifested itself in at least three different ways. The Court has issued decisions with conflicting language, abandoned ordinary features of presumptions and appellate review, and suggested imprecisely defined new legal tests. This commentary identifies instances where these developments have occurred and traces the resulting confusion and conflict in the circuits.
March 25, 2010
Conference on due process for victimsThe National Crime Victim Law Institute will hold its ninth annual conference in Portland on June 10-11. The topic is "Due Process for Victims: Meaningful Rights in Every Case." The program listing participants is here.
Execution stay in DNA case
ScotusBlog has the story on Skinner v. Switzer here:
Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6). The Court decided the Osborne case on June 18, but left unresolved that specific issue. The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge. Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.
March 24, 2010
Argument transcript in Magwood v. Pattersonis here.
Bowers on Discretion
Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities. In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I provide help to show.
March 23, 2010
Sentence Length and Sentence VenueEllen Podgor has an interesting post at White Collar Crime Prof questioning whether the increased length of prison sentences for white collar crimes should impact the security level of the prison at which they must be served.
Exum on Possession of Child Pornography
Jelani Jefferson Exum (University of Kansas School of Law) has posted Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses (Richmond Journal of Law and Technology, 2010) on SSRN. Here is the abstract:
Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession. This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images. However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment. Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion. A system reboot is in order.
This Article recognizes that child pornography possessors should be punished for the harm and danger that the offense creates and the exploitation that the offense represents. Ultimately, though, this Article argues that any enhancements to child pornography possession sentences should reflect aspects of the offense that actually make the offender more harmful than the typical child pornography possessor. To make this argument, the Article will introduce the genuine problem of the sexual exploitation of children that this country faces. It will explain the specific federal crime of child pornography possession and the methods taken to commit the crime. Further, the Article discusses the sentencing of child pornography possessors, explaining the current Federal Sentencing Guidelines approach, the rebellion of district judges against the Guidelines’ advisory sentencing ranges, as well as the criticism levied at those judges. After exposing the system failure that requires a rebooting of the sentencing approach, the Article proposes a new manner of thinking about child pornography possession as a computer crime that is very different from ordinary possession crimes. This new approach seeks to understand the internet and computer in order to develop a system of punishment that will at least move toward achieving the congressionally-identified goals of punishment. Ultimately, it is not the purpose of this article to suggest an appropriate range of sentences for child pornography possession; nor is the goal necessarily to have the Guidelines ranges for child pornography possessors reduced. Rather, this Article emphasizes that finding a method of giving meaningful guidance to district judges in order to appropriately punish child pornography possessors is necessary, and that this is impossible to do without making the punishment fit the realities of internet and computer crimes.
March 22, 2010
Today's crim law/procedure cert grants
Summaries from ScotusBlog, which links to briefs and opinions below:
- Connick v. Thompson: Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation undermine prosecutors’ absolute immunity?
- Belleque v. Moore: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).
"Victory for U.S. on detainees"
ScotusBlog has the story here:
The Supreme Court voted on Monday to leave intact a lower court ruling that took away almost all of the power of federal judges to block, even temporarily, the transfer of detainees out of Guantanamo Bay. The Court, in a brief order, denied review of the D.C. Circuit Court’s ruling in April in Kiyemba v. Obama (Supreme Court docket 09-581), now informally known as “Kiyemba II.” This marked a significant victory for the federal government, enhancing its authority to decide when and where to send detainees that are cleared for release from confinement without interference by federal judges and without challenge by detainees’ lawyers.
This week's crim law/procedure argument
Summary of issue is from ScotusWiki, which also links to briefs and opinions below:
- Magwood v. Patterson: When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?
March 21, 2010
Top-Ten Recent SSRN Downloads
|1||395||The Emerging Law of Detention: The Guantanamo Cases as Lawmaking |
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
|2||263||The Greatest Legal Movie of All Time: Proclaiming the Real Winner |
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
|3||244||How Does International Law Work: What Empirical Research Shows |
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009 [4th last week]
|4||200||Vagueness Challenges to the Computer Fraud and Abuse Act |
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009 [5th last week]
|5||173||Judging Police Lies: An Empirical Perspective |
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [6th last week]
|6||170||'The Look in His Eyes': The Story of State v. Rusk and Rape Reform |
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [7th last week]
|7||151||A., B. & C. v. Ireland: 'Europe's Roe v. Wade'? |
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [8th last week]
|8||149||ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities |
Minerva Center, Faculty of Law, Hebrew University of Jerusalem,
Date posted to database: January 11, 2010 [9th last week]
|9||124||Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? |
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 21, 2010 [new to top ten]
|10||123||The Undiscovered Country: Execution Competency & Comprehending Death |
Jeffrey L. Kirchmeier,
CUNY School of Law,
Date posted to database: February 5, 2010 [new to top ten]