CrimProf Blog

Ohlin on a Meta-Theory of International Criminal Procedure

Jens David Ohlin (Cornell Law School) has posted A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law (UCLA Journal of International Law and Foreign Affairs, Vol. 14, pp. 77-120, 2009) on SSRN. Here is the abstract:

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence of domestic procedural law. This suggests a theoretical insight: the anti-impunity norm and its concern with punishment should be read in tandem with a meta-theory that emphasizes that international criminal procedure has an irreducibly intrinsic value because it returns legal process to procedural vacuums. The present literature generally ignores this non-consequentialist value. In addition to this theoretical reorientation, several practical consequences follow, including a revised understanding of the principle of legality, the importance of local procedures, the use of guilty pleas and plea bargaining, and in absentia trials. Although the meta-theory does not dictate which of these procedural devices should be used, it does provide a new standard with which to evaluate them.

Robinson on Criminalization Decisions

Paul H. Robinson (University of Pennsylvania Law School) has posted Criminalization Tensions: Empirical Desert, Changing Norms & Rape Reform on SSRN. Here is the abstract:

This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the criminal law as regularly or intentionally doing injustice. By building the criminal law’s moral credibility, the law can earn “credibility chips” that the social reformer then has available to “spend” when the criminal law is needed to help change existing norms. The strategic dilemmas of a rape reformer are used as a case study to demonstrate the complexities of the calculations.

Hamilton on Sex Offender Laws

Melissa Hamilton (University of Toledo College of Law) has posted Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender Laws on SSRN. Here is the abstract:

This article argues that the new preventive law focus in sex offender laws is largely ineffective and too costly to personal liberty. The application of sex offender laws involving civil commitment, sex offender registration, and residency restrictions is often based on an individualized analysis of future dangerousness, i.e., the risk the defendant will sexually recidivate. In assessing future dangerousness, experts and courts place heavy emphasis on the use of actuarial tools, basically checklists that mental health experts use to derive statistical estimates of risk. This article provides substantiation that actuarial tools, while enjoying the imprimatur of science, suffer from significant empirical faults. Yet courts are largely abandoning their gatekeeping roles in accepting the experts’ testimony using actuarial tool predictions of risk without critical review as required by the Daubert and Frye evidentiary standards. The paper theorizes that this is likely a pragmatic strategy considering the current political and public thirst for retribution against sexual predators. But, use of this empirically-challenged science exacerbates the practice of applying sex offender restrictions to inappropriately labeled individuals. Finally, this article takes advantage of the interdisciplinary trend of engaging social science with the law on expert evidence. More specifically, it offers an empirical assessment of future dangerousness opinions within the Daubert/Frye scientific evidence frameworks. The significance of the conclusion reached in this article is clear: if the law continues to rely upon suspect science that results in the wrong individuals being subject to liberty-infringing sex offender laws, then the drain on criminal justice resources will leave the truly dangerous offenders without sufficient supervision at the risk of public safety.

Gershowitz and Killinger on Excessive Prosecution

Adam M. Gershowitz and Laura Killinger have posted The State (Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants on SSRN. Here is the abstract:

Although dozens of scholars have documented the appalling underfunding of indigent defense in the United States, virtually no attention has been paid to the overburdening of prosecutors. In many large jurisdictions, prosecutors handle caseloads that are as large as those handled by public defenders. Counter-intuitively, when prosecutors shoulder excessive caseloads, it is criminal defendants who are harmed. Because overburdened prosecutors do not have sufficient time and resources for their cases, they fail to identify less culpable defendants who are deserving of more lenient plea bargains. Prosecutors also lack the time to determine which defendants should be transferred to specialty drug courts where they have a better chance at rehabilitation. Overwhelmed prosecutors commit inadvertent (though still unconstitutional) misconduct by failing to identify and disclose favorable evidence that defendants are legally entitled to receive. And excessive prosecutorial caseloads lead to the conviction of innocent defendants because enormous trial delays encourage defendants to plead guilty in exchange for sentences of time-served and an immediate release from jail. This article documents the excessive caseloads of prosecutors’ offices around the country, and it demonstrates how the overburdening of prosecutors harms criminal defendants, victims, and the public at large.

Sadat on International Criminal Jurisdiction

Leila N. Sadat (Washington University School of Law in St. Louis) has posted Unpacking the Complexities of International Criminal Tribunal Jurisdiction (Washington U. School of Law Working Paper No. 10-03-13) on SSRN. Here is the abstract:

This essay discusses the many overlapping and important aspects of the jurisdiction of international criminal courts and tribunals, and particularly their constitutional function in the international legal order. It canvasses the jurisdictional provisions of 8 current and former war crimes tribunals and the permanent International Criminal Court to distill the fundamental jurisdictional provisions of each one as to temporal, geographic, subject matter and personal jurisdiction. The principles of complementarity and primacy are also discussed and evaluated as principles of international criminal law policy and practice.

Kirchmeier et al on Vigilante Justice

Jeffrey L. Kirchmeier (CUNY School of Law), Stephen R. Greenwald (Fordham University - School of Law), Harold Reynolds (Private Practice), and Jonathan Sussman (New York County Defender Services) have posted Vigilante Justice: Prosecutor Misconduct in Capital Cases (Wayne Law Review, Vol. 55, pp. 1327-1385, 2009) on SSRN. Here is the abstract:

This Article examines categories of prosecutor misconduct that may occur in capital cases, and it discusses suggestions to help prevent and remedy such misconduct. The prosecutor’s role is especially important in death penalty cases because the prosecutor is a determining force in the decision of whether a defendant will live or die. Thus, even though prosecutor misconduct is an important concern for all types of cases, it has a special impact in capital cases.

Instances of prosecutor misconduct may occur prior to trial during discovery, during jury selection, and during trial and post-trial. In Part One of the Article, we discuss situations where prosecutors withhold exculpatory evidence from defendants in capital cases. In Part Two, we discuss the problem where prosecutors improperly use pretrial publicity to achieve convictions and death sentences in capital cases. Misconduct may occur during jury selection, and in Part Three, we examine situations where some prosecutors have improperly used peremptory challenges to exclude prospective jurors based upon race. Under Batson v. Kentucky, 476 U.S. 79 (1986), this type of prosecutor misconduct may rise to constitutional significance. Next, in Part Four, we consider the trial itself and discuss situations where prosecutors improperly used false evidence or statements in capital cases. 

In Part Five, we consider methods for addressing misconduct in capital cases. The Article considers three different categories of ways to deter instances of prosecutor misconduct in capital cases: (1) institutional and systemic methods of preventing prosecutor misconduct; (2) punishment of individual prosecutors responsible for egregious misconduct; and (3) remedies for defendants who are victims of misconduct. After giving an overview of various suggestions, the Article concludes with five specific proposals that should be the first steps toward deterring and remedying prosecutor misconduct in capital cases.

Warnken on the Rights to Confrontation

Byron L. Warnken (University of Baltimore School of Law) has posted Right to Confrontation: Application of Crawford v. Washington to Documents on SSRN. Here is the abstract:

This short piece discusses documents submitted as evidence in court proceedings in light of the Crawford v. Washington decision, and how various jurisdictions' courts treated them as either admissible or inadmissible relative to the Confrontation Clause of the U.S. Constitution, i.e., the right of the accused to confront his/her accuser.

Hartung on First-Degree Murder Appeals

Stephanie Roberts Hartung  (Suffolk University Law School) has posted The Limits of 'Extraordinary Power': A Survey of First-Degree Murder Appeals Under Massachusetts General Laws Chapter 278, § 33E (Suffolk Journal of Trial and Appellate Advocacy, Vol. 16, Fall 2010) on SSRN. Here is the abstract:

The Supreme Judicial Court of Massachusetts is afforded “extraordinary power” in reviewing first-degree murder convictions on appeal. Yet despite the plenary review established under § 33E - including the right to review the entire trial transcript for errors neither objected to at trial, nor raised on appeal - the survey undertaken in this article concludes that surprisingly few cases are reversed on appeal. This article presents the results of a survey of first-degree murder appeals in Massachusetts from 1998-2008. During that time-frame, just 7.25% of these convictions were reversed on appeal. Additionally, this article discusses the substantive issues giving rise to reversal, and the reversal rate for each issue. Criminal practitioners and scholars can benefit from a practical understanding of the aspects of homicide law which are most likely to support the reversal of a first-degree murder conviction.

Slobogin on Justice Ginsburg's Gradualism in Criminal Procedure

Christopher Slobogin  (Vanderbilt University - School of Law) has posted Justice Ginsburg's Gradualism in Criminal Procedure (Ohio State Law Journal, Vol. 70, No. 4, p. 870, 2009) on SSRN. Here is the abstract:

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral review processes). Not surprisingly, given her ACLU background, she tends to vote in favor of criminal defendants’ positions more often than most other justices, and she is the most likely to do so since Chief Justice Roberts joined the Court. At the same time, the gradualist tendencies that she has exhibited in other areas of the law – involving incremental steps rather than sweeping pronouncements – is apparent in this area as well. After describing in some detail the major trends in Justice Ginsburg’s voting patterns in criminal procedure cases, the article investigates the effects of this gradualist approach in the Fourth Amendment area, focusing in particular on her decision-making in drug testing and car stop cases.

Wexler on Therapeutic Jurisprudence

David B. Wexler  (University of Arizona - James E. Rogers College of Law) has posted From Theory to Practice and Back Again in Therapeutic Jurisprudence: Now Comes the Hard Part on SSRN. Here is the abstract:

This essay is the basis of a plenary address to be delivered in Melbourne, Australia at an international conference on 'nonadversarial justice.' In this piece, I trace how therapeutic jurisprudence (TJ) has, through a few simple conceptual frameworks, influenced the practice of many judges and lawyers. Many of their contributions have been unearthed on a "hit or miss" basis, as when they happen to be mentioned during TJ panel discussions at international conferences. But we need a more systematic way of collecting these creative contributions, and we also need to develop a new type of practical interdisciplinary scholarship to disseminate and evaluate these developments. The paper explores some methods for accomplishing this.

Pearlman on Expanding the Use of Sarbanes-Oxley

Adam Ross Pearlman has posted Putting Terrorists Out of Business: Using Sarbanes-Oxley to Prosecute Terror Financiers on SSRN. Here is the abstract:

This article examines the practicality and the utility of prosecuting terrorist financiers for anticipatory obstruction of justice under section 802 of the Sarbanes-Oxley Act of 2002, codified at 18 U.S.C. s. 1519. Section 1519 was written to be a broadly applicable law, designed to go after the "individual shredder" or destructor of evidence in a way that other obstruction statutes (e.g. ss. 1503 and 1512) could not. It has been applied to a variety of defendants, ranging from those charged with possession of child pornography, to those being investigated for health care fraud. The article examines the legislative history and the Supreme Court's ruling in Arthur Anderson (reversing convictions on obstruction charges), and applies that background to the possibility of using this law against those who finance terrorists.

Richman on the Demand Side of Overcriminalization

Daniel C. Richman (Columbia Law School) has posted The Demand Side of Overcriminalization – A Celebration of Bill Stuntz on SSRN. Here is the abstract:

Bill Stuntz has brilliantly highlighted the supply side of overcriminalization – how the institutional purposes of criminal justice actors will often be served by more criminal law (and perhaps more criminal enforcement) than is appropriate for a well-functioning society. One might profitably supplement his insights by exploring the demand side, and in particular how criminal law offers a unique and unnecessarily bundled set of institutional and procedural characteristics for which there are no non-criminal substitutes. While for actors within the system, the opacity of criminal law cloaks the self-dealing of agencies and agencies (that's the supply side problem), so for outsiders, the shadow of criminal law offers some alluring shade. Efforts to fill in the gaps between prosecutorial and non-criminal options would alleviate the pressure on criminal enforcement.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	416	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	258	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 [4th last week]
3	254	The Shadow of State Secrets Laura Donohue, Georgetown University Law Center, Date posted to database: March 8, 2010 [5th last week]
4	252	The Case Against the Goldstone Report: A Study in Evidentiary Bias Alan Dershowitz, Harvard Law School, Date posted to database: January 27, 2010 [3d last week]
5	199	'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 [7th last week]
6	199	We Don't Want to Hear It: Psychology, Literature and the Narrative Model of Judging Kenworthey Bilz, Northwestern University - School of Law, Date posted to database: February 5, 2010 [9th last week]
7	174	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	156	Taxing Punitive Damages Gregg D. Polsky, Dan Markel, Florida State University - College of Law, Florida State University College of Law, Date posted to database: June 19, 2009 [new to top ten]
9	147	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]
10	145	Recognizing Constitutional Rights at Sentencing F. Andrew Hessick, Carissa Byrne Hessick, Arizona State University - Sandra Day O'Connor College of Law, Arizona State, Sandra Day O'Connor College of Law, Date posted to database: March 3, 2010 [new to top ten]

Radsan on Modernizing the CIPA

Afsheen John Radsan (William Mitchell College of Law) has posted Remodeling the Classified Information Procedures Act (CIPA) (William Mitchell Legal Studies Research Paper No. 2010-09) on SSRN. Here is the abstract:

The intelligence community and the law enforcement sector are supposed to be working closely to keep us all safe from terrorists and other dangers. The benefits of this cooperation should not be frittered away by unnecessary burdens in trying suspected terrorists in civilian courts. If the executive branch is to be kept away from the dark side of counterterrorism, the courts, Congress, or a combination of the two should modernize their approach to alignment, to Section 6 of Classified Information Procedures Act, and to closed portions of trials.

First, a prosecutor’s discovery obligations should apply to the intelligence community only when spymasters have most actively participated in the investigation. When defining “most actively” and in determining who falls within the prosecution unit, all three branches of government should err toward non-alignment. The recent creep toward conceding alignment on all cases since 9/11 should stop. 

Second, courts should be less inclined to admit top-secret information into trial than information at a lower level of classification. The more sensitive the information, the more leeway courts should give prosecutors in proposing substitutions and summaries. The common sense that probably fills the gaps of CIPA practice, squeezing around cases and the statute, should be formalized by an update of CIPA.

Third, it should be possible to close portions of trials to all but the judge, jury, and the parties to the case when especially sensitive information is being presented. These limited closures will allow courts, as a compensating benefit, to lean toward defendants on Section 6 decisions as to the use of classified information at trial. By this compensation, the either/or of full disclosure versus complete suppression is traded for a range of options. 

CIPA is showing its age. Even so, because its foundation is solid, it does not require a tear down as much as a remodeling. In at least three areas – alignment, Section 6, and closed portions of trials – our nation deserves a better resolution between the conflicting interests of prosecutors and spymasters.