CrimProf Blog

Logan on Justice O'Connor's Atwater Dissent

Wayne A. Logan  (Florida State University - College of Law) has posted Reasonableness as a Rule: A Paean to Justice O'Connor's Dissent in Atwater v. City of Lago Vista (Mississippi Law Journal, Vol. 79, p. 115, 2009) on SSRN. Here is the abstract:

This paper, part of a sympoisum dedicated to "great" Fourth Amendment dissents, examines Justice Sandra Day O'Connor's dissent in Atwater v. City of Lago Vista (2001), where by a 5-4 vote the Court upheld the constitutionality of warrantless police arrests for non-breach of the peace, fine-only offenses. In addition to rightfully condemning the majority's decision to equate probable cause with constitutional reasonableness, in principle, Justice O'Connor presciently recognized the numerous liberty and privacy-restricting consequences of the outcome for the "everyday lives of Americans." Atwater, combined with decisions issued before and after it, including Whren v. United States, Devenpeck v. Alford, and Virginia v. Moore, has afforded police historically unprecedented discretionary authority, examples of which are surveyed in the paper.

Brown on Controlling Criminal Law

Darryl K. Brown  (University of Virginia - School of Law) has posted Can Criminal Law Be Controlled? (Michigan Law Review, Vol. 108, No. 6, 2010) on SSRN. Here is the abstract:

Criminal law has long included far too many crimes of questionable merit — crimes of negligible wrongfulness, crimes that cause negligible harm, and crimes that require too little culpability on behalf of offenders. More recently, American criminal law in particular has imposed too much punishment — far more than it used to, far more than any other democratic nation. Douglas Husak’s new book Overcriminalization offers an account of the normative parameters that should describe and limit criminal law, as well as a set of doctrines or tests for achieving those constraints.

In this Review of Husak’s book, I describe Husak’s theory and explore why he directs his argument to legislatures, which caused most of the overcriminalization in the first place, rather than to courts. With respect to most pieces of the overcriminalization problem, I suggest he is probably right to do so, but for reasons other than those he implies. Legislatures are poor institutions for acting on principles that conflict with majority sentiments. Yet legislatures have a long track record of reducing overcriminalization as popular views change, and courts have contributed to that project largely only after legislatures have led the way. Moreover, debates leading to changes in criminal law have often occurred partially on terms Husak makes central to his thesis. Nonetheless, courts may be the better — if still faint — hope for moderating policies of overpunishment, which so far legislatures have largely proven unable to address.

Perry & Weimann-Saks on Stealing Sunshine

Ronen Perry (pictured) and Dana Weimann-Saks  (University of Haifa - Faculty of Law and University of Haifa) have posted Stealing Sunshine on SSRN. Here is the abstract:

“Stealing Sunshine” is a trial advocacy technique whereby an attorney discloses, in the opening statement or on direct examination of a witness, information that seems advantageous to the opponent’s case, before the latter elicits or reveals it, in order to mitigate its expected impact on fact-finders. Our study is the first to examine the efficacy of this tactic, both theoretically and empirically. Given the primacy of our work, we drew on existing literature on a related courtroom technique commonly known as “stealing thunder,” which is - in a sense - the mirror image of the tactic under scrutiny. We hypothesized that stealing sunshine, just like stealing thunder, would be helpful to a litigant’s case.

We experimentally tested the efficacy of the tactic when used by the prosecution in a criminal case. The results support our hypothesis. We found, inter alia, that fact-finders’ assessments of the measure of guilt and of the appropriate level of punishment in the Stealing Sunshine condition (where the prosecutor revealed positive information about the defendant) were significantly higher than in the Sunshine condition (where the defendant revealed the same information about himself). The difference between the two conditions with respect to the ultimate verdict (namely the dichotomous variable: guilty/not guilty) was statistically insignificant, yet consistent with our hypothesis.

Buchhandler-Raphael on Sexual Abuse of Power

Michal Buchhandler-Raphael has posted Sexual Abuse of Power (University of Florida Journal of Law and Public Policy) on SSRN. Here is the abstract:

This Article argues that sexual abuses of power stemming from professional and institutional relationships justify criminalization. At a normative-theoretical level, the Article contends that coerced submission to unwanted sexual acts in professional and institutional settings demonstrates not only unwanted and harmful sexual conduct but also nonconsensual sex.

The Article suggests that the current understanding of consent to sexual relations is flawed, because rape law’s contemporary consent standard focuses on an objective permission-giving act, which fails to recognize that even an explicit verbal authorization sometimes constitutes merely apparent consent. This reality calls for adopting a modified definition for consent to sexual relations that would acknowledge two much-needed components: the complainant’s state of mind (i.e. subjective willingness) and the parties’ mutual decision/agreement to engage in sex.

The second part of the Article focuses on the doctrinal implications of the above conclusions by offering a model that would enable criminalizing these abuses above and beyond the cases in which threats to harm are established. It aims to expose the links between sexual abuses of power and the definition of consent, namely, consent is not obtained when it is induced by fears and pressures stemming from sexual abuse of power, authority, trust, influence and dependence. To expand the scope of the term “sexual coercion”, the definition of authority must include additional forms of power, above and beyond the official or formal capacity to enforce obedience. It must incorporate the perpetrator’s ability to dominate, influence, affect, and control the actions and decisions of vulnerable victims in professional and institutional settings.

Goldman on the Criminalization of Genocide

Stanley A. Goldman  (Loyola Law School Los Angeles) has posted The Jew Who Met Himmler and Other Stories (Loyola of Los Angeles International and Comparative Law Review, Vol. 32, p. 109, 2009) on SSRN. Here is the abstract:

In this article Prof. Goldman examines the historical origins of the international criminalization of genocide and the goals the author of the law hoped to achieve by its passage and enforcement. The article tells the story of a little known, yet remarkable historical incident that demonstrates how the fear of criminal consequences might act to deter even the most monstrous perpetrators of genocide; even the man who was most responsible for the implementation of the Holocaust, Nazi Reichsfuhrer Heinrich Himmler.

Pillsbury on Doubt in Criminal Judgment

Samuel H. Pillsbury  (Loyola Law School Los Angeles) has posted Fear and Trembling in Criminal Judgment (Ohio State Journal of Criminal Law, Vol. 2, 2010) on SSRN. Here is the abstract:

This review describes James Whitman's argument that the beyond a reasonable doubt standard for conviction in Anglo-American criminal law was developed to solve a moral and theological dilemma arising from the medieval change from clergy-directed trials by ordeals to the secular jury trial. Whitman writes that the beyond a reasonable doubt standard, like the jury unanimity rule, was designed primarily to assuage what he calls moral doubt, the concern that a decision-maker might condemn himself in the eyes of God by wrongfully convicting an accused of a capital offense. Whitman contends that this concern with decision-maker salvation was greater than any concern with an erroneous determination of the facts and that the greatest challenge for early modern decision-makers was not resolving contested facts but overcoming fear of the spiritual consequences of condemning another human being to death. Whitman contends that this makes the beyond a reasonable doubt standard ill-suited to the challenges of modern litigation, where the hard cases involve fact-finding and decision-makers generally do not fear for their souls in rendering a legal verdict. After considering this argument in both legal and theological terms, the reviewer develops a suggestion of the book’s author, that the early juror experience of "fear and trembling" in judging the most serious crimes might have a useful application to contemporary American criminal justice with its predilection for long terms of incarceration, especially by mandatory sentencing laws.

Silva on Expungements and Pardons

Lahny R. Silva has posted Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders (University of Cincinnati Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states. The "tough on crime" rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, "truth in sentencing" laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population. Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism. This is a price tag the United States can no longer afford to pay.

This article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to clear their slates of their criminal histories. Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders. The first parts of this article examine post-conviction penalties and contemporary recidivism trends. Second, this article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society. This article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not feasible practically or politically. Moreover, the two existing federal post-conviction remedies-pardons and judicial expungements are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities. Using state post-conviction mechanisms as examples, this article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (hereinafter "U.S.S.C.") create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions. With a Second Chance Advisory group, the U.S.S.C. may be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.

"Private Prosecutors v. Private Prosecutions"

Kent Scheidegger has this post at Crime and Consequences fleshing out the Court's dismissal in Robertson v. U.S. ex rel Watson, previously reported here and involving a private prosecution for criminal contempt.

Simons on Retributivism Refined

Kenneth W. Simons  (Boston University - School of Law) has posted Retributivism Refined - Or Run Amok? (University of Chicago Law Review, Vol. 77, Forthcoming) on SSRN. Here is the abstract:

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors — Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse — provide a controversial set of answers. Whether a criminal act does or does not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced to a single idea: “Do not be reckless; do not knowingly take risks that are clearly unjustifiable in light of your reasons for taking those risks.” Few scholars and even fewer legislators will be persuaded. Nevertheless, the authors have written an engaging, lively, philosophically astute book of remarkable breadth, depth, and originality.

In this Book Review, I first point out that, to some extent, the authors are consequentialists in retributivist clothing. Turning to the authors’ analysis of recklessness, I investigate two critical questions: Can recklessness really suffice as the sole criterion of culpability? (The answer, alas, is no.) And, is their requirement of “conscious awareness” of risk too demanding? (Indeed it is.) In the last section, I address a surprising phenomenon, the reappearance of the reasonable person as a central requirement of their culpability criterion, notwithstanding their unequivocal rejection of the reasonable person as part of a criterion of liability for culpable inadvertence to risk. I then critique that reincarnation.

Kerr on Third-Party Doctrine in the Fourth Amendment

Orin S. Kerr  (George Washington University - Law School) has posted Defending the Third-Party Doctrine: A Response to Epstein and Murphy (Berkeley Technology Law Journal, Vol. 24, 2009) on SSRN. Here is the abstract:

This is a brief response to papers by Richard Epstein and Erin Murphy on the third-party doctrine of Fourth Amendment law. Epstein's paper was published as Richard A. Epstein, Privacy and the Third Hand: Lessons from the Common Law of Reasonable Expectations, 24 Berkeley Tech. L.J. 1199 (2009). Murphy's paper was published as Erin Murphy, The Case Against the Case for Third-Party Doctrine: A Response to Epstein and Kerr, 24 Berkeley Tech. L.J. 1239 (2009).

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to briefs and the opinion below:

• Skinner v. Switzer: Whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983, or whether such a claim may be asserted only in a petition for writ of habeas corpus.

Cert dismissed as improvidently granted in contempt case

Robertson v. U.S. ex rel Watson is here. The issue presented was previously summarized here, from ScotusWiki:

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.

Summary reversal in capital case

The per curiam opinion in Jefferson v. Upton is here.

Opinion requiring proof of possession of machinegun beyond reasonable doubt

United States v. O'Brien is here. Here is the syllabus:

Respondents O’Brien and Burgess each carried a firearm during an attempted robbery. Count three of their indictment charged them with using a firearm in furtherance of a crime of violence, which carries a mandatory minimum 5-year prison term. 18 U. S. C. §924(c)(1)(A)(i). Count four alleged use of a machinegun (here, a pis-tol that authorities believed operated as a fully automatic firearm) in furtherance of that crime, which carries a 30-year mandatory minimum term. §924(c)(1)(B)(ii). The Government moved to dismiss the fourth count on the basis that it could not establish the count beyond a reasonable doubt, but it maintained that §924(c)(1)(B)(ii)’s machinegun provision was a sentencing enhancement to be determined by the District Court upon a conviction on count three. The court dismissed count four and rejected the Government’s sentencing-enhancement position. Respondents then pleaded guilty to the remaining counts. The court sentenced O’Brien to a 102-month term and Burgess to an 84-month term for their §924(c) convictions. In affirming the District Court’s §924(c)(1)(B)(ii) ruling, the First Circuit looked primarily to Castillo v. United States, 530 U. S. 120, which held that the machinegun provision in an earlier version of §924(c) constituted an element of an offense, not a sentencing factor. The court found that Castillo was “close to binding,” absent clearer or more dramatic changes than those made by Congress’ 1998 amendment of §924(c) or a clearer legislative history.

Held: The fact that a firearm was a machinegun is an element to be proved to the jury beyond a reasonable doubt, not a sentencing factor to be proved to the judge at sentencing. Pp. 5–16.

(a) Generally, a fact that “increase[s] the prescribed range of penalties to which a criminal defendant is exposed” is an element of a crime, Apprendi v. New Jersey, 530 U. S. 466, 490, to be charged in an indictment and proved to a jury beyond a reasonable doubt, Hamling v. United States, 418 U. S. 87, 117, rather than proved to a judge at sentencing by a preponderance of the evidence, McMillan v. Pennsylvania, 477 U. S. 79, 91−92. Subject to this constitutional constraint, Congress determines whether a factor is an element or a sentencing factor. When Congress is not explicit, courts look to a statute’s provisions and framework for guidance. Analysis of the cur-rent machinegun provision begins with Castillo, where the Court found the bare language of §924’s prior version “neutral,” 530 U. S., at 124, but ruled that four factors—(1) language and structure, (2) tradition, (3) risk of unfairness, and (4) severity of the sentence—favored treating the machinegun provision as an element of an offense, id., at 124−131; while a fifth factor—legislative history—did not favor either side, ibid. Pp. 5–6.

(b) As relevant here, the 1998 amendment divided what was once a lengthy principal sentence into separate subparagraphs. Thus, with regard to the first Castillo factor, the Court’s observation that “Congress placed the element ‘uses or carries a firearm’ and the word ‘machinegun’ in a single sentence, not broken up with dashes or separated into subsections,” 530 U. S., at 124−125, no longer holds true. However, the amendment did not affect the second through fifth Castillo factors. Each of them, except for legislative history (which remains relatively silent), continues to favor treating the machinegun provision as an element. The amendment’s effect on the language and structure factor requires closer examination. Pp. 6–12.

(c) Given the Court’s determination in Castillo that the machine-gun provision in §924’s prior version is an element, a substantive change in the statute should not be inferred “[a]bsent a clear indication from Congress of a change in policy,” Grogan v. Garner, 498 U. S. 279, 290. Nothing in the 1998 amendment indicates such a change. There are three principal differences between the previous and current §924(c). The first, a substantive change, shifts what were once mandatory 5-year and 30-year sentences to mandatory minimum sentences. The second, also substantive—made in direct response to the holding in Bailey v. United States, 516 U. S. 137, that “uses or carries” in §924’s preamendment version connotes “more than mere possession,” id., at 143—adds “possesses” to the “uses or carries” language in §924(c)’s principal paragraph and provides sentencing enhancements for brandishing or discharging the firearm, §§924(c)(1)(A)(ii) and (iii), which do state sentencing factors, Harris v. United States, 536 U. S. 545, 552−556. Neither of these substantive changes suggests that Congress meant to transform the machinegun provision from an element into a sentencing factor. The third difference is the machinegun provision’s relocation from the principal paragraph that unmistakably lists offense elements to a separate subsection, §924(c)(1)(B), but this structural or stylistic change provides no “clear indication” that Congress meant to alter its treatment of machineguns as an offense element. A more logical explanation is that the restructuring was intended to break up a lengthy principal paragraph, which exceeded 250 words, into a more readable statute,which is in step with current legislative drafting guidelines. While this Court has recognized that placing factors in separate subsectionsi s one way Congress might signal that it is treating them as sentencing factors rather than elements, Castillo, supra, at 124−125, it has rejected the view that such a structural consideration predominates even when other factors point in the other direction, Harris, supra, at 553. The current structure of §924(c) is more favorable to treating the machinegun provision as a sentencing factor than was true in Castillo, particularly because the machinegun provision is now positioned between the sentencing factors provided in (A)(ii) and (iii) and those in (C)(i) and (ii). This structural point is overcome by the substantial weight of the other Castillo factors and the principle that Congress would not enact so significant a change without a clear indication of its purpose to do so. Pp. 12–16.

542 F. 3d 921, affirmed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SCALIA, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined. STEVENS, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment.

Opinion on error in plain-error case

United States v. Marcus is here. Here is the syllabus:

Respondent Marcus was convicted of engaging in forced labor and sex trafficking between January 1999 and October 2001. On appeal, he pointed out for the first time that the federal statutes he violated did not become law until October 2000. Thus, he claimed, the indictment and evidence permitted at trial allowed a jury to convict him exclusively on the basis of preenactment conduct in violation of the Ex Post Facto Clause. He conceded that he had not raised this objection in the District Court, but argued that because the constitutional error was plain, his conviction must be set aside. The Second Circuit agreed and vacated the conviction. In doing so, the court held that, even in the case of a continuing offense, retrial is necessary if there is“any possibility, no matter how unlikely, that the jury could have convicted based exclusively on pre-enactment conduct.” The court noted that this was “true even under plain error review.”

Held: The Second Circuit’s plain-error standard conflicts with this Court’s interpretation of the plain-error rule. An appellate court may recognize a “plain error that affects substantial rights,” even if that error was “not brought” to the district court’s “attention.” Fed. Rule Crim. Proc. 52(b). This Court’s cases interpret this rule such that an appellate court may, in its discretion, correct an error not raised at trial only when the appellant demonstrates that (1) there is an error; (2) the error is clear or obvious; (3) the error affected the appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

The standard the Second Circuit applied in this case is inconsistent with the third and fourth of these criteria. To begin, it is irreconcilable with the criterion that the error “affec[t] the appellant’s substantial rights,” Puckett v. United States, 556 U. S. ___, ___. This condition requires the error to be prejudicial, meaning that there is a reasonable probability that the error affected the trial’s outcome, not that there is “any possibility,” however remote, that the jury could have convicted based exclusively on preenactment conduct.

Nor does this error fall within the category of “structural errors” that may “affect substantial rights” regardless of their actual impact on an appellant’s trial. Id., at ___. Here, a jury instruction might have minimized or eliminated the risk that Marcus would have been convicted based solely on preenactment conduct. A reviewing court should find it no more difficult to assess the failure to give such an instruction than to assess numerous other instructional errors previously found nonstructural, see, e.g., Hedgpeth v. Pulido, 555 U. S. ___ (per curiam). The Court further rejects Marcus’ argument that the error at issue should be labeled an Ex Post Facto Clause violation, and that all such violations should be treated as special, structural errors warranting reversal without a showing of prejudice. As an initial matter, the Government never argued that the statute that criminalized Marcus’ conduct applied retroactively, and Marcus’ claim is thus properly brought under the Due Process, and not the Ex Post Facto, Clause. Moreover, we see no reason why errors similar to the one at issue in this case, taken as a class, would automatically affect substantial rights without a showing of prejudice.

In any event, the Second Circuit’s “any possibility,” however remote, standard also cannot be reconciled with the criterion that “the error seriously affec[t] the fairness, integrity or public reputation of judicial proceedings.” Puckett, supra, at ___ (internal quotation marks omitted). Under the Second Circuit’s approach, a retrial would be required even where the evidence supporting conviction consists of a few days of preenactment conduct along with several continuous years of identical postenactment conduct. Given the tiny risk that a jury would base its conviction in these circumstances on the few preenactment days alone, such an error is most unlikely to cast serious doubt on the fairness, integrity, or public reputation of the judicial system. Pp. 3–8.

538 F. 3d 97, reversed and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, GINSBURG, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion. SOTOMAYOR, J., took no part in the consideration or decision of the case.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	306	The Shadow of State Secrets Laura Donohue, Georgetown University Law Center, Date posted to database: March 8, 2010 [2nd last week]
2	303	Disentangling Child Pornography from Child Sex Abuse Carissa Byrne Hessick, Arizona State, Sandra Day O'Connor College of Law, Date posted to database: March 28, 2010 [3rd last week]
3	214	When Is Tax Enforcement Publicized? Joshua D. Blank, Daniel Z. Levin, New York University School of Law, Rutgers Business School - Newark and New Brunswick, Date posted to database: March 23, 2010 [4th last week]
4	205	Vigilante Justice: Prosecutor Misconduct in Capital Cases Jeffrey L. Kirchmeier, Stephen R. Greenwald, Harold Reynolds, Jonathan Sussman, CUNY School of Law, Fordham University - School of Law, Private Practice, New York County Defender Services, Date posted to database: April 5, 2010 [6th last week]
5	194	Is the Prohibition of Homicide Universal? Evidence from Comparative Criminal Law John Mikhail, Georgetown University - Law Center, Date posted to database: March 23, 2010 [7th last week]
6	173	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 [8th last week]
7	169	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 [9th last week]
8	158	Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses Jelani Jefferson Exum, University of Kansas School of Law, Date posted to database: March 12, 2010 [new to top ten]
9	158	Criminal Justice at a Crossroads: Science-Dependent Prosecution and the Problem of Epistemic Contingency Deborah Tuerkheimer, DePaul University - College of Law, Date posted to database: March 28, 2010 [10th last week]
10	155	The Easy Case for Products Liability: A Response to Professors Polinsky and Shavell John C. P. Goldberg, Benjamin C. Zipursky, Harvard Law School, Fordham University - School of Law, Date posted to database: March 24, 2010 [new to top ten]