CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

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Saturday, April 3, 2010

Kalhan on Immigration Detention

Anil Kalhan  (Drexel University - Earle Mack School of Law) has posted Rethinking Immigration Detention (Columbia Law Review Sidebar, Vol. 110, 2010) on SSRN. Here is the abstract.

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the point where some commentators resist the very term “detention” in this context as sanitized and misleading, masking quasi-punitive circumstances that approximate criminal “incarceration” or “imprisonment.” If convergence of immigration control and criminal enforcement more generally has given rise to a system of crimmigration law, as some observers maintain, then perhaps excessive immigration detention practices have evolved into a quasi-punitive system ofimmcarceration.

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April 3, 2010 | Permalink | Comments (0)

Engel & Irlenbusch on Jeremy Bentham's Panopticon

Engel, christoph Christoph Engel 

 (Max Planck Institute for Research on Collective Goods) and Bernd Irlenbusch  [London School of Economics & Political Science - Department of Management; Institute for the Study of Labor (IZA)] have posted Turning the Lab into Jeremy Bentham’s Panopticon - The Effect of Punishment on Offenders and Non-Offenders on SSRN. Here is the abstract:

The most famous element in Bentham’s theory of punishment, the Panopticon Prison, expresses his view of the two purposes of punishment, deterrence and special prevention. We investigate Bentham’s intuition in a public goods lab experiment by manipulating how much information on punishment experienced by others is available to would-be offenders. Compared with the tone that Jeremy Bentham set, our results are non-expected: If would-be offenders learn about contributions and punishment of others at the individual level, they contribute much less to the public project. Our results confirm the special prevention effect but show that the deterrence effect is smaller the more information on individual punishment is available.

April 3, 2010 | Permalink | Comments (0)

Friday, April 2, 2010

Holman on the ACCA

David C. Holman has posted Violent Crimes and Known Associates: The Residual Clause of the Armed Career Criminal Act (Connecticut Law Review, Vol. 43, No. 1, Forthcoming) on SSRN. Here is the abstract:

Confusion reigns in federal courts over whether crimes qualify as “violent felonies” for purposes of the Armed Career Criminal Act (ACCA). The ACCA requires a fifteen-year minimum sentence for felons convicted of possessing a firearm who have three prior convictions for violent felonies. Many offenders receive the ACCA’s mandatory minimum sentence of fifteen years based on judges’ guesses that their prior crimes could be committed in a violent manner - instead of based on the statutory crimes of which they were actually convicted. Offenders who do not deserve a minimum sentence of fifteen years may receive it anyway. 

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April 2, 2010 | Permalink | Comments (0)

Egerman on the 8th Amendment and Elective Abortions for Prisoners

Mark Egerman  (Fellow, Georgetown University Law Center) has posted  Roe v. Crawford: Do Inmates Have an Eighth Amendment Right to Elective Abortions? (Harvard Journal of Law and Gender, Vol. 31, p. 423, 2009 ) on SSRN. Here is the abstract:

This note examines the legal questions surrounding incarcerated women who wish to receive an abortion. The note examines the 8th Circuit's ruling in Roe v. Crawford and explores the two legal arguments presented in that case. While the court ultimately found the Fourteenth Amendment argument valid and rejected the Eighth Amendment, the author argues that grounding inmate abortion rights in the Eighth Amendment is ultimately a more sustainable solution for reproductive justice advocates. The core of an Eighth Amendment case is presented with corresponding medical evidence that argues that not only should inmates have access to abortions, but that they should be funded the same as any other serious medical need under the Eighth Amendment.

April 2, 2010 | Permalink | Comments (0)

Loewy on 'Knowing Consent'

Loewy arnold
Arnold H. Loewy  (Texas Tech University - School of Law) has posted Knowing 'Consent' Means 'Knowing Consent' - The Underappreciated Wisdom of Justice Marshall’s Schneckloth v. Bustamonte Dissent (Mississippi Law Journal, Vol. 79, No. 1, pp. 97-113, 2010, Texas Tech Law School Research Paper No. 2010-05)
on SSRN. Here is the abstract:
This Article argues that the majority opinion in the Supreme Court’s decision inSchneckloth v. Bustamonte, 412 U.S. 218 (1973), has led to a burgeoning jurisprudence of placing a premium on citizens’ ignorance of their Fourth Amendment rights. Police who have stopped a vehicle for a minor infraction, or for no infraction whatsoever, may simply ask the driver if they can search the car. Police do not have to inform the driver that he or she has a right to decline the search. While the majority would argue that such a warning would break the informality of the interaction between police and driver, the dissent states that the police could casually state that the driver can refuse. The police could use the following illustration: “Joe, I’d like you to let me search your car. You don’t have to if you don’t want to, but I’d sure appreciate it if you did.” No one need fear that informality will be broken. The Article puts forward Justice Thurgood Marshall’s Schneckloth dissent as a wise corrective measure to police valuing citizen ignorance. Justice Marshall clearly saw what the decision would do to the innocent, as well as the guilty, and perhaps most importantly to the Constitution that we are all supposed to live under.

April 2, 2010 | Permalink | Comments (0)

"Court Ruling on Wiretap Is a Challenge for Obama"

The New York Times article is here:

WASHINGTON — As a presidential candidate, Senator Barack Obama declared that it was “unconstitutional and illegal” for the Bush administration to conduct warrantless surveillance of Americans. Many of his supporters said likewise.

But since Mr. Obama won the election, administration officials have avoided repeating that position. They have sidestepped questions about the legality of the program in Congressional testimony. And in lawsuits over the program, they followed a strategy intended to avoid ever answering the question by asking courts to dismiss the lawsuits because the litigation could reveal national security secrets.

But the ruling on Wednesday by a federal judge that one instance of such spying had been “unlawful electronic surveillance” may force onto the table a discussion of how aggressively the Obama administration should continue to defend from judicial review the contentious Bush-era counterterrorism policy.

April 2, 2010 | Permalink | Comments (0)

Thursday, April 1, 2010

Ryan on the Death Penalty

Ryan meghanMeghan J. Ryan (Southern Methodist University Dedman School of Law) has posted Judging Cruelty on SSRN. Here is the abstract:

The wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states — either politically or constitutionally — to similarly abandon the punishment. Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U.S. Constitution. 

Considering the disappearance of some punishments and emergence of new punishments, whether a punishment is cruel under the Punishments Clause is an important question. Curiously, there has been very little discussion of what constitutes a cruel punishment, as distinguished from whether a punishment is also unusual. This Article examines the concept of cruelty as enshrined in the Eighth Amendment Punishments Clause and suggests that the Supreme Court ought to focus on this elusive concept through its independent judgment analysis. The Article emphasizes that such an independent judgment focus on cruelty should be constrained by specific, identified factors and that these factors should go beyond examining the penological purposes of punishment. The Article asserts that motive and the nature and quality of a punishment are central to the concept of cruelty and suggests that a more nuanced understanding of punishment rationales, supplemented by factors focused on elements such as the bloody or lingering nature of the punishment, is necessary in properly determining whether a punishment is cruel under the Punishments Clause.

April 1, 2010 | Permalink | Comments (0)

Argument transcript in private contempt case

The transcript in Robertson v. United States ex rel Watson is here.

April 1, 2010 | Permalink | Comments (0)

Argument transcript in "aggravated felony" case

The transcript in Carachuri-Rosendo v. Holder is here.

April 1, 2010 | Permalink | Comments (0)

Wednesday, March 31, 2010

Argument transcripts from Monday and Tuesday

Renico v. Lett is here.

Dillon v. United States is here.

Barber v. Thomas is here.

Summaries of the issues are here.

March 31, 2010 | Permalink | Comments (0)

Opinion on duty to advise on immigration consequences of guilty plea

The opinion in Padilla v. Kentucky is here. Here is the syllabus:

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

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March 31, 2010 | Permalink | Comments (1)

Tuesday, March 30, 2010

Kerr on Warrants in National Security Investigations

Kerr orin Orin S. Kerr  (George Washington University - Law School) has posted The Modest Role of the Warrant Clause in National Security Investigations (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? This symposium essay argues that the Warrant Clause has a narrow role because the extension of the Warrant Clause into national security law forces courts to pose a question that judges cannot readily answer. The cases extending the Warrant Clause to the national security setting held that warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable. This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Cause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give the Court flexibility forces judges to ask a question they are particularly poorly-equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice. 

This essay was presented at a Texas Law Review symposium on "National Security, Privacy, and Technological Change" on February 5, 2010.

March 30, 2010 | Permalink | Comments (0)

Today's opinion in fair-cross-section case

The opinion in Berghuis v. Smith is here. Here is the syllabus:

Criminal defendants have a Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie violation of the fair-cross-section requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U. S. 357, 364.

At voir dire in the Kent County Circuit Court trial of respondent Smith, an African-American, the venire panel included between 60 and 100 individuals, only 3 of whom, at most, were African-American. At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith’s objection to the panel’s racial composition, an all-white jury convicted him of second-degree murder and felony firearm possession, and the court sentenced him to life in prison with the possibility of parole.

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March 30, 2010 | Permalink | Comments (0)

Monday, March 29, 2010

Rust on Appellate Review of Federal Sentencing Decisions

Craig D. Rust has posted When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough {Touro Law Review, Vol. 26, No. 75, 2010) on SSRN. Here is the abstract:

Judges, like anyone else who works for a living, need standards. Judges need to know what rules to apply, when to apply them, and who to apply them to. And judges, just like you or I, want to know how their work will be reviewed.

Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

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March 29, 2010 | Permalink | Comments (0)

Benforado on Geography of Criminal Law

Adam Benforado (Drexel University - Earle Mack School of Law) has posted The Geography of Criminal Law (Cardozo Law Review, Vol. 31, No. 3, 2010) on SSRN. Here is the abstract:

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

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March 29, 2010 | Permalink | Comments (0)

Blumenthal on Law and the Emotions

Blumenthal jeffrey Jeremy A. Blumenthal (Syracuse University - College of Law) has posted A Moody View of the Law: Looking Back and Looking Ahead at Law and the Emotions (Nebraska Symposium on Motivation, Vol. 56, 2010) on SSRN. Here is the abstract:

Despite burgeoning as a field of study, and despite receiving substantial attention outside of academia – now – Justice Sotomayor’s “empathy” kerfuffle as the most prominent example – law and emotions has received little treatment as a unified field. A book-length treatment a decade ago began to organize the field, but lacked discussion of much empirical work in social science. Only in the last four years have efforts begun to taxonomize the study of law and emotions into a coherent whole, but even such efforts are primarily descriptive.

In the present paper I trace some history of the study of law and emotions, and give some account of where it is today; I then proceed to outline where the study may proceed in the future, laying out specific research agendas that legal and social science academics might profitably pursue. Specifically, I review early empirical research that viewed emotion as a corruptive influence on legal decision-making, and the assumptions that drove such research: assumptions that are largely still present today. I then review some of the current state of law and emotions, focusing on its effect in the contexts of jury decision-making, false memories, and terror management theory.

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March 29, 2010 | Permalink | Comments (0)

Sunday, March 28, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 402 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
2 269 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
3 191 Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois,
Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: March 4, 2010 [new to top ten]
4 187 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [6th last week]
5 179 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010
6 163 A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [7th last week]
7 161 Doubting Free Will: Three Experiments
John A. Humbach,
Pace University School of Law,
Date posted to database: January 12, 2010 [new to top ten]
8 158 ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities
Yael Ronen,
Minerva Center, Faculty of Law, Hebrew University of Jerusalem,
Date posted to database: January 11, 2010
9 139 The Undiscovered Country: Execution Competency & Comprehending Death
Jeffrey L. Kirchmeier,
CUNY School of Law,
Date posted to database: February 5, 2010 [10th last week]
10 131 Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?
James Gwin,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 21, 2010 [9th this week]

March 28, 2010 | Permalink | Comments (0)