CrimProf Blog

"Rough justice: America locks up too many people, some for acts that should not even be criminal"

Doug Berman at Sentencing Law and Policy excerpts this interesting commentary from The Economist,

"Canada high court rules damages appropriate remedy for Charter rights violations"

Jurist reports on Friday's decision:

The case arose after Vancouver lawyer Cameron Ward was mistakenly arrested for making threats against then-prime minister Jean Chretien [CBC profile]. Ward was detained and eventually arrested for breach of the peace, and he and his car were searched based on the mistaken arrest. Ward filed a lawsuit alleging tort violations and violations of his Charter rights. . . . The court held that determining the appropriate remedy for a violation of Charter rights is a three-step process involving an inquiry into whether the rights were violated, a showing of why damages are an appropriate remedy and the opportunity for the government to refute the appropriateness of the damages.

"Drivers on Prescription Drugs Are Hard to Convict"

The story is in the New York Times:

The issue is vexing police officials because, unlike with alcohol, there is no agreement on what level of drugs in the blood impairs driving.

The behavioral effects of prescription medication vary widely, depending not just on the drug but on the person taking it. Some, like anti-anxiety drugs, can dull alertness and slow reaction time; others, like stimulants, can encourage risk-taking and hurt the ability to judge distances. Mixing prescriptions, or taking them with alcohol or illicit drugs, can exacerbate impairment and sharply increase the risk of crashing, researchers say.

“In the past it was cocaine, it was PCP, it was marijuana,” said Chuck Hayes of the International Association of Chiefs of Police. “Now we’re into this prescription drug era that is giving us a whole new challenge.”

Robinson on Schabas and International Criminal Law

Darryl Robinson  (Queen's University (Canada) Faculty of Law) has posted A Response to William Schabas and a Reflection on Discursive Assumptions: One Vision or Many? on SSRN. Here is the abstract:

This article critically examines some of the criticisms leveled by Professor William Schabas with respect to early policies and jurisprudence of the ICC, namely self-referrals and admissibility due to inaction. That examination serves as a springboard for broader observations about discursive assumptions in international criminal law.

One observation is that although discourse focuses on points of disagreement, it is also a vehicle through which the interpretive community implicitly absorbs and acquiesces in countless assumptions and propositions, which limit and shape legal debate.

For example, it is today an almost universally-shared belief that territorial state referrals were ‘not contemplated’ by the Rome Statute drafters and hence that they represent an ‘innovation’. This widespread belief is the diametric opposite of the actual drafting history, which expressly shows not only that territorial state referrals were repeatedly discussed but also that they were not even controversial. The controversy was whether referrals by states parties without an ‘interest’ in the situation should be permitted. Yet the distorted belief about history has framed and shaped the present legal debate. In this way, a straightforward application of the text, in a manner expressly contemplated by the drafters, has generated a significant literature and in opposite discussions about creative re-interpretations. Similarly, the widespread but incorrect conviction that Article 17 contains only the oft-cited criteria of ‘unwilling’ and ‘unable’ has generated a distorted debate about admissibility in inaction scenarios, culminating in unsubstantiated and legitimacy-draining accusations against the Court. The controversy shows the power of collective perception to reconstruct not only history but text itself.

A related observation concerns the tendency of members of the interpretive community to assume a single vision or model of the Court and to impose that expectation onto the Statute. Such arguments are easily supported by invocations of ‘drafters intent’. However, this article recommends skepticism about portrayals of the drafters as having a monolithic vision or of any single philosophy underlying the Statute. Multiple plausible models are compatible with the Statute, and open-minded assessment of the merits and implications of each is needed. Such models may include, for example, an ‘antagonistic’ model, a ‘catalyst’ model, a ‘reverse cooperation’ model and a ‘facility’ model.

"Cultural Defense Accepted as to Nonconsensual Sex in New Jersey Trial Court, Rejected on Appeal"

Eugene Volokh has this post at The Volokh Conspiracy, excerpting this case.

Slobogin on Government Dragnets

Christopher Slobogin  (Vanderbilt Law School) has posted Government Dragnets (Law and Contemporary Problems, Vol. 73, No. 3, 2010) on SSRN. Here is the abstract:

This article examines group-focused police investigation techniques — for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance — a phenomenon referred to as “government dragnets” because these general searches and seizures attempt to cull out bad actors through ensnaring a much larger number of individuals who are innocent of any wrongdoing. The courts have imposed few limitations on dragnets. Recent commentary has either advocated an even more laissez-faire attitude toward these group search and seizures or, at the other end of the spectrum, proposed schemes that would make most of them impossible. This article proposes an intermediate ground, relying on political-process theory and proportionality and exigency considerations. In combination, these regulatory regimes would create a presumption that dragnets authorized by narrow, nondiscriminatory legislative enactments are valid, but would also require that, on those frequent occasions when the presumption does not apply, the government demonstrate either that its “hit rate” will likely be proportionate to the intrusion visited on dragnet subjects or that the dragnet is necessary to prevent significant, specific, and imminent harm.

"U.S. Lays Out Case Against Arizona Law"

From the New York Times:

Edwin S. Kneedler, the lawyer for the federal government, argued that the federal government has the sole authority to enforce immigration laws under the Constitution and that Arizona was, in essence, establishing its own immigration policy — which in some cases would be stricter than the federal law and does not take into account either humanitarian concerns or the government’s foreign policy goals.

. . .

[T]he lawyer representing Arizona, John J. Bouma, asserted that the state law actually mirrors the letter of the federal law, even if that federal law is not enforced fully in practice. He argued the state had every right to ask its peace officers to call up federal authorities and check on a person’s immigration status during routine traffic stops or other arrests, even if it created a headache for federal authorities.

"Corporate Sector Sounds the Alarm Over Financial Reform's 'Bounty' System"

The story is at Law.com:

Under the so-called Dodd-Frank Act, the SEC will pay whistleblowers cash rewards of between 10 percent and 30 percent of any monetary sanctions in excess of $1 million that the government, because of whistleblowers' assistance, recovers through either civil or criminal proceedings. The "bounty" program also extends to whistleblower disclosures of violations to the U.S. Commodity Futures Trading Commission.

Hat tip: White Collar Crime Prof Blog, which has additional coverage.

"Scots Defend Lockerbie Convict’s Release"

The story is in the New York Times:

Scotland’s government will not be providing any new documents on the release of the Libyan man convicted of bombing Pan Am Flight 103 over Lockerbie, Scotland, in 1988 to a Senate panel investigating the matter, it said in a statement on Wednesday night.

The Scottish government also declined a request from the Senate Foreign Relations Committee to have Scotland’s justice secretary, Kenny MacAskill, appear next week at a hearing that will look into allegations that BP might have lobbied for the return of Abdel Basset Ali al-Megrahi to Libya in order to secure an oil contract with the Libyan government. BP denies that it lobbied for Mr. Megrahi’s release but said that it did press for a prisoner transfer agreement to be completed.

Masur on Booker Reconsidered

Jonathan S. Masur  (University of Chicago - Law School) has posted Booker Reconsidered (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

In his dissent in Booker, Judge Frank Easterbrook predicted dire consequences if the Supreme Court were to invalidate the Federal Sentencing Guidelines. Those consequences have not arisen, largely because the Court has ducked the implications of Judge Easterbrook’s pragmatic logic (and its own). But in an effort to salvage a set of workable sentencing rules, the Supreme Court has settled upon a division of institutional responsibilities that serves none of the parties involved in the criminal justice system well and fails to address the problem that catalyzed its intervention in the first instance. The Sentencing Commission may not have functioned perfectly, but the Supreme Court’s attempt at ad hoc institutional design seems unlikely to produce any better results.

"An Interesting “Rape by Fraud” Case from Israel"

Eugene Volokh has this interesting post at The Volokh Conspiracy.

"Germany court allows ongoing surveillance of left-wing political party"

Jurist has the story. The party "has some historic ties to the former East German Communist party and has been linked to violent left-wing extremist groups."

Argument dates set; can football be far behind?

ScotusBlog reports on the Court's calendar for oral arguments for the opening session of the coming Term. Arguments of note to crim law/procedure folks (issue summaries from ScotusBlog):

Monday, Oct. 4

• Abbott v. U.S. (09-479) and Gould v. U.S. (09-7073) — validity of added five-year gun crime sentence on top of mandatory sentence for underlying crime.  (Consolidated, one hour for argument)

Tuesday, Oct. 5

• Michigan v. Bryant (09-150) — constitutionality of using as evidence a wounded crime victim’s out-of-court statement to police
• Los Angeles County v. Humphries (09-350) — local government liability for violation of individual rights

Tuesday, Oct. 12

• Harrington v. Richter (09-587) — defense lawyer duty to call expert witness to counter prosecution’s physical evidence; also, scope of federal court deference to state court
• Premo v. Moore (09-658) — standard for federal habeas courts in reviewing failure of defense lawyer to challenge client’s confession to crime  (This case was formerly titled Belleque v. Moore)
• Connick v. Thompson (09-571) — local government liability for prosecutor’s failure to share evidence favorable to the defense

Wednesday, Oct. 13

• Skinner v. Switzer (09-9000) — access to federal court to seek evidence for DNA testing to prove claim of innocence

"Release of Lockerbie Convict Was ‘Wrong,’ Cameron Says"

Robert Mackey discusses the coverage at the New York Times site:

At the start of a visit to Washington,  Prime Minister David Cameron of Britain said on Tuesday that the Scottish government was “wrong” last year when it released Abdel Basset Ali al-Megrahi, the only person convicted in connection with the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland.

The release of Mr. Megrahi on compassionate grounds, after a medical opinion suggested that he might only have three months left to live, has gotten new scrutiny in recent weeks. Mr. Megrahi’s continued survival, nearly a year after he returned to Libya, has been extensively reported on by British newspapers. Allegations that BP might have lobbied on his behalf to help secure a valuable Libyan oil exploration contract have led to calls for an investigation of the company by a Senate panel.

Yee on Justice Scalia's Confrontation Clause Trilogy

Ellen L. Yee  (Drake University - Law School) has posted Faint-Hearted Fidelity to the Common Law in Justice Scalia’s Confrontation Clause Trilogy (Journal of Criminal Law and Criminology, Vol. 100, No. 4, 2010) on SSRN. Here is the abstract:

In Giles v. California, 128 S.Ct. 2678 (2008), the Supreme Court issued the third Confrontation Clause opinion in its recent Crawford trilogy. In an opinion written by Justice Scalia, the Giles Court reiterated its interpretive approach in Crawford that the Confrontation Clause is “most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” The Court’s decision purports to hold that a defendant does not forfeit his Sixth Amendment confrontation right when a judge determines that a wrongful act by the defendant made the witness unavailable to testify at trial, unless the judge finds that the defendant’s wrongful act was done with an intent to make the witness unavailable to testify. Justice Scalia’s majority opinion interprets intent to require purpose, only recognizing the “forfeiture by wrongdoing” exception to Sixth Amendment’s confrontation requirement when the defendant “engaged in conduct designed to prevent the witness from testifying.”

In this Article, I argue that this interpretation of Giles lacks a solid foundation in the common law and, notwithstanding Justice Scalia’s opinion (with which a majority of justices agreed in result), should not be followed by lower courts. The Article suggests that the historical sources do not point unequivocally to the conclusion Justice Scalia reaches in his majority opinion. Further, given the fragmented opinions among the justices in the case, even though a majority agree in the case’s result, it is argued that the reasoning of the case should be construed on the narrowest grounds, to allow courts to construe intent in a broad way in light of the common law, rather than in the rather narrow way Justice Scalia defines it. Especially in domestic violence and gang-related cases, a defendant’s conduct that knowingly leads to unavailability can and should still trigger forfeiture, even if there is no purposive intent.

Larson on the Leopold-Loeb Story

Edward Larson  (Pepperdine University School of Law) has posted An American Tragedy: Retelling the Leopold-Loeb Story in Popular Culture (American Journal of Legal History, Vol. 50, No. 2, pp. 119-156, April 2008-2010) on SSRN. Here is the abstract:

This Article scans the cultural history of an American tragedy: the Leopold and Loeb murder case. In what has widely been referred to as "the crime of the century," teenagers Richard Loeb and Nathan F. Leopold, Jr., under the counsel of the experienced and successful defense attorney Clarence Darrow, pled guilty to the 1924 abduction and murder of Bobby Franks, a child of a wealthy Chicago family. Due to Darrow's advocacy, both defendants were spared the death penalty, and given life sentences instead. Sensational details about the crime, the suspects, and the criminal proceedings were enthusiastically reported by the six daily newspapers published in Chicago during this time.

This Articles focuses on the evolution of several distinct personas of the suspected killers, three of which were created by the print media as they covered the story from confession to sentencing. One of the personas developed by newspaper articles was that of both suspects, but particularly Leopold, as self-conceived Nietzschean supermen, exempt from normal moral, ethical, and legal standards. Later, this persona was more fully developed in popular novels and major motion pictures based on the Leopold and Loeb story. The second persona developed by the print media is that of the precocious teenage thrill-seekers. This persona, which was seen to exemplify the indulged, immoral youth culture of the 1920s that was enjoyed by wealthy young men, was also later developed in artistic interpretations of the story of the crime. The print media also presented a third persona in its stories about the criminal proceedings against Leopold and Loeb. With the assistance of East Coast alienists who adopted a Freudian approach to psychology, as well as two physicians, defense attorney Darrow created and developed this third persona during the hearing - that of deeply disturbed youth who were emotionally unable to control their actions. Darrow used this image of Leopold and Loeb as deeply troubled boys to persuade the judge to not sentence the defendants to death. It has reappeared in later artistic presentations of the episode.

In addition to the three personas developed in the print media, the Article also discusses two other personas that have evolved since the original events took place in 1924. Toward the end of the twentieth century, the sexual aspect of Leopold's and Loeb's relationship was subject to increased scrutiny. With this came the development, through plays, movies and other artistic portrayals of the events leading up to the crime, of a gay persona for both Leopold and Loeb; particularly, a persona of repressed lovers. Finally, Leopold himself, in telling his own story through magazine articles and a popular autobiography, created for himself a new persona: that of a model prisoner who deserved parole.

The highly publicized crime, prosecution, and punishment of Leopold and Loeb have served as a seemingly endless source of material and inspiration for American writers, dramatists, and social commentators. Because of continued interest in these events, they, together with attorney Clarence Darrow, have remained celebrities whose stories have inspired novelists, playwrights, poets, essayist and artists well into the new century. Perhaps more than any other trial in American history, the Leopold and Loeb case has served as an ongoing inspiration for the American imagination.

"Neuroscience as a Passing Fad"

Steve Erickson at Crime and Consequences quotes UCLA psychiatrist Jeffery Schwartz:

[T]his vast output of neuroscience research over the last many years is largely a waste of money. Why? Because it doesn't really have any real world human application. Neuroscience is increasingly looking like a passing fad - at least in its current version. Until it changes to a form in which conscious attention has physiologic effects or has a dynamic causal role in how the brain functions, all this research is basically not applicable to anything that's particularly useful, and so the whole thing has been a gargantuan waste of money.

"State Can Try to Detain Man Who Infected Women"

The New York Times has this A.P. story, which is a little more complicated than the headline might imply:

BUFFALO, N.Y. (AP) -- The state can try to keep a sex offender who infected at least 13 women with the AIDS virus locked up beyond the 12-year prison sentence he completed in April, a judge ruled Monday.

. . .

Defense attorney Daniel Grasso had argued in June that Williams should not be subject to the 3-year-old civil-confinement law because it was passed long after he pleaded guilty in 1998 to statutory rape and reckless endangerment. He also said Williams had already finished the rape sentence at the time and had begun serving his consecutive sentence for reckless endangerment, a crime not eligible for civil confinement.

But the judge agreed with assistant Attorney General Wendy Whiting's argument that sentences merge together in prison, so Williams was still in prison for a sex crime when the law was passed.

Loewy on Insanity

Arnold H. Loewy  (Texas Tech University - School of Law) has posted The Two Faces of Insanity (Texas Tech Law Review, Vol. 42, p. 513, Winter 2009) on SSRN. Here is the abstract:

One of the great debates surrounding insanity is whether it is an excuse for criminal defendants designed to exculpate otherwise guilty people or whether it is a device used by the government to inculpate otherwise innocent people. The short answer is both. Sometimes, insanity is used to exculpate someone who is otherwise guilty, while other times, the state successfully chooses to punish those who, because of their insane delusions, lack criminal intent.

In my view, insanity should rarely exculpate and never implicate. Thus, on the one hand, when insanity is invoked as a defense by one who has been proven guilty of the requisite mens rea and actus reus for the crime, insanity should rarely, if ever, exculpate. On the other hand, when the defendant lacks the requisite mens rea to commit the crime, whether because of insanity or any other non-self-induced reason, the defendant should not be guilty.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	2371	Arizona Senate Bill 1070: A Preliminary Report Gabriel J. Chin, Carissa Byrne Hessick, Toni M. Massaro, Marc L. Miller, University of Arizona James E. Rogers College of Law, Arizona State, Sandra Day O'Connor College of Law, University of Arizona College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: May 29, 2010 [new to top ten]
2	377	Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction Margaret Colgate Love, Gabriel J. Chin, Law Office of Margaret Love, University of Arizona James E. Rogers College of Law, Date posted to database: April 16, 2010 [1st last week]
3	324	War and Peace in the Jury Room: How Capital Juries Reach Unanimity Scott E. Sundby, Washington and Lee University - School of Law, Date posted to database: May 12, 2010 [2nd last week]
4	168	Two Kinds of Retributivism Mitchell N. Berman, University of Texas School of Law, Date posted to database: April 20, 2010 [3rd last week]
5	138	The Conscience of a Prosecutor David J. Luban, Georgetown University Law Center, Date posted to database: May 24, 2010 [7th last week]
6	122	From TRIPS to ACTA: Towards a New 'Gold Standard' in Criminal IP Enforcement? Henning Grosse Ruse-Khan, Max Planck Institute for Intellectual Property, Competition & Tax Law, Date posted to database: May 4, 2010
7	103	Tunnel Vision Keith A. Findley, University of Wisconsin Law School, Date posted to database: May 12, 2010 [9th last week]
8	84	Collective Responsibility and Post-Conflict Justice Mark A. Drumbl, Washington and Lee University - School of Law, Date posted to database: May 10, 2010
9	81	Reading the Judicial Mind: Predicting the Courts' Reaction to the Use of Neuroscientific Evidence for Lie Detection Jennifer A. Chandler, University of Ottawa - Faculty of Law - Common Law Section, Date posted to database: April 21, 2010 [10th last week]
10	78	The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against Humanity and War Crimes Jordan J. Paust, University of Houston - Law Center, Date posted to database: May 2, 2010 [new to top ten]