CrimProf Blog

"Arizona governor signs controversial illegal immigration bill"

Jurist has the story about the bill, which "would require any individual suspected of being an illegal immigrant to present valid identification to law enforcement officials. The bill gives police officers permission to determine the immigration status of any individual who arouses reasonable suspicion, criminalizes the hiring of illegal immigrants for day labor, and allows citizens to sue the local government if they believe the policy is not being used properly."

"Indictment for Chat Room Posts Urging Particular People to Commit Suicide"

Eugene Volokh links to the story at The Volokh Conspiracy.

Robinson, Kurzban & Jones on Realism, Punishment, and Reform

Paul H. Robinson (University of Pennsylvania Law School), Robert Kurzban (University of Pennsylvania - Department of Psychology) and Owen D. Jones (Vanderbilt University - School of Law & Department of Biological Sciences) have posted  Realism, Punishment & Reform on SSRN. Here is the abstract:

Professors Donald Braman, Dan Kahan, and David Hoffman, in their article "Some Realism About Punishment Naturalism," to be published in an upcoming issue of the University of Chicago Law Review, critique a series of our articles: Concordance and Conflict in Intuitions of Justice (http://ssrn.com/abstract=932067), The Origins of Shared Intuitions of Justice (http://ssrn.com/abstract=952726), and Intuitions of Justice: Implications for Criminal Law and Justice Policy (http://ssrn.com/abstract=976026). Our reply, here, follows their article in that coming issue.

As we demonstrate, they have misunderstood our views on, and thus the implications of, widespread agreement about punishing the "core" of wrongdoing. Although much of their attack is therefore misplaced, important disagreements may remain concerning: whether there is a meaningful difference between core and non-core cases; whether judgments about core cases are less malleable than judgments about non-core cases; and whether imposing punishments perceived to be unjust imposes, in turn, significant costs on the criminal justice system. Which of the disputed views is correct can have important implications for the administration of criminal justice. Far from being anti-reformists, as accused, we argue that Reform Realism is the most effective path to bringing about needed reforms.

Vladek on Abu Ali Litigation

Stephen I. Vladeck (American University - Washington College of Law) has posted Terrorism Trials and the Article III Courts after Abu Ali (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

To say that it is difficult to divorce the debate over the suitability of trying terrorism suspects in the Article III courts from the politics of the moment would be an epic understatement. Especially in light of the Obama Administration’s decisions to (1) try the “9/11 defendants” in the civilian courts and (2) subject Umar Farouk Abdulmutallab to civilian - rather than military - jurisdiction, recent months have witnessed a renewed barrage of objections to subjecting such extraordinary cases to the ordinary processes of our criminal justice system. These critiques have included claims that such trials make the city in which they occur a target for future attacks; that they provide the defendants with a platform from which to spew anti-American propaganda; that they risk publicly revealing information about intelligence sources and methods; that they are enormously costly both with regard to the security measures they require and the judicial resources they consume; and, most substantively, that they put pressure on the courts to sanction exceptional departures from procedural or evidentiary norms that will eventually become settled as the rule - what we might characterize as either a “distortion effect” or a “seepage problem.”

Although these arguments are not new, they do raise fundamental questions about whether the civilian courts are able effectively to function in certain high-profile terrorism cases and to balance the rights of the defendants with the very real practical, logistical, and substantive difficulties that such prosecutions tend to raise. And while any number of groups have attempted to answer these questions at the macro level, there have been few concerted studies of individual trials. This symposium article attempts a different approach, focusing on the specific procedural and evidentiary issues confronted in one of the more legally significant of the post-September 11 criminal prosecutions completed as of this Article - the trial of Ahmed Omar Abu Ali.

As this article suggests, Abu Ali is a microcosm both of the unique difficulties these cases present and the ways in which such issues have generally been resolved by federal trial judges exercising creativity and flexibility. Moreover, Abu Ali provides particular proof of the extent to which advancements in courtroom technology may well mitigate at least some of the practical obstacles that courts face in transnational terrorism cases. Finally, whatever difficulties Abu Ali may have presented for the civilian criminal justice system, it is not at all clear why the same difficulties wouldn’t also be present had Abu Ali been tried in a military commission. The claimed errors at trial that were analyzed by the Fourth Circuit were all constitutionally grounded, and there is little in the way of precedent for the proposition that either the Fifth Amendment’s privilege against self-incrimination or the Sixth Amendment’s right to confrontation have less force before a military tribunal - especially where the defendant is a U.S. citizen.

To be sure, like this Article’s conclusions, its aim is modest. There are a host of reasons why it would be wrong to draw sweeping lessons from the story of one particular case, no matter how significant that one case may be. In addition, even an assessment just of the Abu Ali litigation is lacking for any appreciation of the myriad problems that government or defense counsel likely encountered behind the scenes; the story told here is one reconstructed entirely from the public record, a record that could also be read with a far more skeptical eye. Nevertheless, my hope is that a candid discussion of the Abu Ali litigation - including its triumphs and its shortcomings - will add meaningful substantive content to a conversation that, for the moment, seems awash in unsubstantiated (and largely partisan) rhetoric.

Bellin and Semitsu on the Need to Alter Batson Framework

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) and Junichi P. Semitsu (University of San Diego School of Law) have posted Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney on SSRN. Here is the abstract:

Recently, in Snyder v. Louisiana, the Supreme Court reaffirmed its commitment to rooting out racially discriminatory jury selection and its belief that the three-step framework established in Batson v. Kentucky is capable of unearthing racially discriminatory peremptory strikes. Yet the Court left in place the talismanic protection available to those who might misuse the peremptory challenge – the unbounded collection of justifications that courts, including the Supreme Court, accept as “race-neutral.” 

To evaluate the Court’s continuing faith in Batson, we conducted a survey of all federal published and unpublished judicial decisions issued in this first decade of the new millennium (2000-2009) that reviewed state or federal trial court rejections of a Batson challenge. In light of this study, and studies that have come before, we conclude that Batson continues to be easily avoided through the articulation of a purportedly race-neutral explanation for juror strikes. As a result, there is no reason to believe that Batson is, as the Court suggests, achieving its goal of eliminating race-based jury exclusion, and little hope that it will ever do so. In light of our conclusion, this Article proposes an alteration to the Batson framework that we believe would enable trial courts to reduce the role of race in the jury selection process.

Sekhon on Consent

Nirej Sekhon (Georgia State University College of Law) has posted  Willing Suspects and Docile Defendants: The Contradictory Role of Consent in Criminal Procedure (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 46, 2011) on SSRN. Here is the abstract:

“Consent” is ubiquitous in our criminal justice system. Its centrality highlights the ironic disjuncture between constitutional principle and the day-to-day practice of criminal justice. The Constitution imposes strict restrictions on the State’s ability to investigate and prosecute crimes – the warrant requirement and right to jury trial are examples. But, our criminal justice system depends on individuals “consensually” relinquishing those very protections every day. The Supreme Court has encouraged this dependence by deeming an individual’s consent valid even when the State pressures her to give it. The police regularly rely on individuals consenting to searches when there is no probable cause. Suspects routinely confess to crimes when it is not in their interests to do so. And defendants routinely plead to charges that would not yield conviction following trial. This article uses political theory to account for consent’s centrality in our criminal justice system and to challenge the Court’s broad interpretation of the concept in the search, confession, and plea contexts. The Court has inappropriately relied on a kind of “fictional consent” in criminal procedure. This not only produces unfair results in individual cases, it threatens the democratic legitimacy of our criminal justice system. Bringing constitutional principle and criminal justice practice into greater harmony will require more stringent rules of consent than we currently have. The article advances a framework for reform.

Markel and Flanders on Subjective Experience of Punishment

 Dan Markel (Florida State University College of Law) and Chad Flanders (Saint Louis University - School of Law) have posted Bentham on Stilts: The Bare Relevance of Subjectivity to Retributive Justice on SSRN. Here is the abstract:

In recent work, various scholars have challenged retributive justice theorists to pay more attention to the subjective experience of punishment, specifically how punishment affects the experiences and well-being of offenders. The claim developed by these “subjectivists” is that because people’s experiences with pain and suffering differ, both diachronically and inter-subjectively, their punishments will have to be tailored to individual circumstances as well.

Our response is that this set of claims, once scrutinized, is either true, but of limited significance, or nontrivial, but unsound. We don’t doubt the possibility that different people will react differently to the same infliction of punishment. It seems foolish to deny that they will (although such claims can be exaggerated). What we deny, in the main, is that this variance in the experience of punishment is critically relevant to the shape and justification of legal institutions meting out retributive punishment within a liberal democracy.

Argument transcript in Dolan v. US

is here.

Fontecchio on Suspicionless Laptop Searches at the Border

Ari B. Fontecchio has posted Suspicionless Laptop Searches Under the Border Search Doctrine: The Fourth Amendment Exception that Swallows Your Laptop on SSRN. Here is the abstract: 

The Department of Homeland Security recently set forth a new policy allowing suspicionless searches of the data inside the laptops of international travelers upon entry into the United States. The government has justified these searches under the border search and special needs doctrines, which render constitutional any "routine" search performed at the international border. The logic behind the special needs doctrine is that the government can operate outside the traditional confines of the Fourth Amendment because there is something "special" about the border. However, where data is concerned, the special needs and border search doctrines do not apply, because data travels electronically via cyberspace, not through the United States' physical borders such as airports and highways. Therefore, the government has no special need to search data at these physical borders separate and apart from searching data in computers already inside the country. In fact, suspicionless data searches compromise border security by allowing officers to engage in time-consuming data searches instead of preventing the entry of weapons that can cause immediate harm. Since such data searches hurt rather than help to achieve border security, the government's interest in performing suspicionless data searches at the border does not outweigh an individual's interest in privacy. On balance, an individual's privacy interests should prevail. Consequently, the Policy allowing suspicionless searches of laptop data violates the Fourth Amendment. 

Cheliotis on the Effectiveness of Home and Work Release

Leonidas K. Cheliotis (Queen Mary University of London, School of Law) has posted Reconsidering the Effectiveness of Temporary Release: A Systematic Review on SSRN. Here is the abstract:

This article offers a systematic review of the ‘what works’ literature on temporary release, particularly as concerns home leave and work release programs. Against the ‘nothing works’ proposition, the findings suggest that both home leave and work release schemes can be effective in reducing recidivism rates, while work release may also enhance post-release employment prospects. The final section discusses the directions future evaluative research should take, with special reference to the need for drawing the link between the procedural and outcome dimensions of temporary release.

Argument transcript in Ontario v. Quon

is here.

Gianneli on the Unreliability of Microscopic Hair Analysis

Paul C. Giannelli (Case Western Reserve University School of Law) has posted Microscopic Hair Comparisons: A Cautionary Tale on SSRN. Here is the abstract:

According to the National Academy of Sciences (NAS) Report on forensic science, “testimony linking microscopic hair analysis with particular defendants is highly unreliable.” This is a stunning conclusion because hair evidence has been admitted in numerous trials for over a century. 

The NAS Report was not the first to raise issues concerning hair evidence. In 1996, the Department of Justice issued a report discussing the exonerations of the first twenty-eight convicts through the use of DNA technology. This report highlighted the significant role that hair analysis played in a number of cases of these miscarriages of justice, including some death penalty cases. In 1998, a Canadian judicial inquiry into the wrongful conviction of Guy Paul Morin was released. His original conviction was based, in part, on hair evidence. The judge conducting the inquiry recommended that “[t]rial judges should undertake a more critical analysis of the admissibility of hair comparison evidence as circumstantial evidence of guilt.”

In addition, a federal district court in 1995 observed: “Although the hair expert may have followed procedures accepted in the community of hair experts, the human hair comparison results in this case were, nonetheless, scientifically unreliable.” The following year, two commentators wrote: “If the purveyors of this dubious science cannot do a better job of validating hair analysis than they have done so far, forensic hair comparison analysis should be excluded altogether from criminal trials.” Yet, courts continued to admit expert testimony based on this technique. A 2005 decision noted that “[t]he overwhelming majority of courts have deemed such evidence admissible.”

This article examines the judicial history of microscopic hair analysis, including its role in several wrongful convictions. It discusses the misuse and the abuse of hair evidence, and the failure to establish an empirical basis for the technique. In sum, hair evidence provides a cautionary tale for other forensic techniques.

Hashimoto on Socioeconomic Class and the Criminal Justice System

Erica J. Hashimoto (University of Georgia Law School) has posted Class Matters on SSRN. Here is the abstract:

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, coherent policy to address socioeconomic class issues simply will not be enacted. Because we lack data on socioeconomic class, we also cannot ascertain whether the system enforces criminal laws equally or whether it targets poor people. The inability to prove (or disprove) class discrimination prevents policymakers from enacting any solutions and leads to mistrust in the system. 

This Article highlights the potential beneficial uses of general data on criminal defendants, and data on socioeconomic class of criminal defendants in particular. It goes on to document the data we currently have on socioeconomic class of criminal defendants, and the shortcomings both in our analysis of that data and in our data collection. Finally, the Article provides a roadmap for how states and the federal government should collect and analyze data on the socioeconomic class of criminal defendants.

 

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	421	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	298	The Case Against the Goldstone Report: A Study in Evidentiary Bias Alan Dershowitz, Harvard Law School, Date posted to database: January 27, 2010 [4th last week]
3	283	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 [2nd last week]
4	262	The Shadow of State Secrets Laura Donohue, Georgetown University Law Center, Date posted to database: March 8, 2010 [3d last week]
5	224	'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
6	210	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
7	179	A., B. & C. v. Ireland: 'Europe's Roe v. Wade'? Shannon K. Calt, Lewis & Clark Law Review, Date posted to database: January 24, 2010
8	162	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
9	157	Twenty-Five Years of Social Science in Law John Monahan, Laurens Walker, University of Virginia School of Law, University of Virginia School of Law, Date posted to database: February 26, 2010 [new to top ten]
10	156	Powell, Blackmun, Stevens, and the Pandora’s Box Theory of Judicial Restraint William W. Berry, University of Mississippi School of Law, Date posted to database: March 3, 2010 [new to top ten]

Next week's criminal law and procedure arguments

Issue summary is from ScotusWiki, which also links to briefs and opinions below.

Monday

• City of Ontario v. Quon: (1) Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers; (2) Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer.

Tuesday

• Dolan v. United States:  Whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.