CrimProf Blog

Green on Prosecutors' Pretrial Disclosure

Bruce A. Green  (Fordham University School of Law) has posted Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors’ Offices Learn from Their Lawyers’ Mistakes? (Cardozo Law Review, Vol. 31, p. 2161, 2010) on SSRN. Here is the abstract:

The U.S. Department of Justice recently reevaluated its prosecutors’ pretrial disclosure practices in light of its highly-publicized discovery failure in the prosecution of U.S. Senator Ted Stevens. Based on its working group’s recommendations, the Department undertook several new initiatives, chief among them being a commitment to better training regarding discovery obligations and how to comply with them. This essay explores an alternative approach to improving prosecutorial disclosure practices – namely, learning from discovery mistakes. It appears that few, if any, federal or state prosecutors’ offices seek to improve their institutional practices by systematically studying cases in which prosecutors failed to disclose evidence or other information to the defense as required by law. This essay considers why. It identifies, and calls into question, several reasons that prosecutors might offer for their reluctance to analyze individual prosecutors’ lapses. It also notes various institutional challenges that prosecutors’ offices might encounter in seeking to learn from their prosecutors’ mistakes, but concludes that it is worth making the attempt.

Hollis on Cyber Threats

Duncan B. Hollis  (Temple University - James E. Beasley School of Law) has posted An e-SOS for Cyberspace on SSRN. Here is the abstract:

Individuals, shadowy criminal organizations, and nation states all now have the capacity to devastate modern societies through computer attacks. These new and severe cyberthreats put critical information, infrastructure, and lives at risk. And the threat is growing in scale and intensity with every passing day.

The conventional response to such cyberthreats is self-reliance. When self-reliance comes up short, states have turned to law for a solution. Cybercrime laws proscribe individuals from engaging in unwanted cyberactivities. Other international laws proscribe what states can (and cannot) do in terms of cyberwarfare. Both sets of rules work by attribution, targeting bad actors – whether criminals or states – to deter cyberthreats.

This Article challenges the sufficiency of existing cyber-law and security. Law cannot regulate the authors of cyberthreats because anonymity is built into the very structure of the Internet. As a result, existing rules on cybercrime and cyberwar do little to deter. They may even create new problems, when attackers and victims assume different rules apply to the same conduct.

Instead of regulating bad actors, this Article proposes states adopt a duty to assist victims of the most severe cyberthreats. A duty to assist works by giving victims assistance to avoid or mitigate serious harms. At sea, anyone who hears a victim’s SOS must offer whatever assistance they reasonably can. An e-SOS would work in a similar way. It would require assistance for cyberthreat victims without requiring them to know who, if anyone, was threatening them. An e-SOS system could help avoid harms from existing cyberthreats and deter others. Even when cyberthreats succeed, an e-SOS could make computer systems and networks more resilient to any harm they impose. At the same time, an e-SOS would compliment, rather than compete with, self-reliant measures and the existing legal proscriptions against cyberthreats.

Douglas on Sentencing Defendants with Fetal Alcohol Spectrum Disorder

Heather Douglas  (The University of Queensland - TC Beirne School of Law) has posted The Sentencing Response to Defendants with Foetal Alcohol Spectrum Disorder (Criminal Law Journal, Vol. 34, pp. 221-239, 2010) on SSRN. Here is the abstract:

This article explores the sentencing response to defendants who have Foetal Alcohol Spectrum Disorder (FASD). FASD is the umbrella term for a range of effects that result from exposure to maternal alcohol consumption during gestation. Many who have this disorder have difficulty linking their actions to consequences, controlling impulses and remembering things and thus a diagnosis of FASD raises particular issues in sentencing. This article overviews the effects of FASD and the difficulties associated with its diagnosis. It then goes on to examine the appropriate aims of sentencing in FASD cases and addresses the question of whether, and if so in what circumstances, FASD should be perceived as a mitigating factor. The article concludes with a discussion of appropriate penalties for defendants who are diagnosed with FASD and makes some recommendations for increased education about the condition and increased access to resources for diagnosis and response to defendants diagnosed with FASD within the criminal justice system.

Brunton-Smith & Jackson on Neighborhood Clustering and the Fear of Crime

Ian Brunton-Smith and Jonathan Jackson  (University of Surrey - Department of Sociology and London School of Economics & Political Science - Methodology Institute) have posted Neighbourhood Clustering and the Fear of Crime: Examining Spatial Autocorrelation Using British Crime Survey Data (V. Ceccato, URBAN FABRIC OF CRIME AND FEAR, Springer, Forthcoming) on SSRN. Here is the abstract:

Neighbourhoods exert significant effects on public insecurities about crime: there is emerging evidence that structural characteristics, visual signs of disorder, and recorded crime all have direct and independent effects on individual level fear of crime. We contribute to this growing literature by drawing on data from a national probability sample of individuals in England and Wales. Linking these data to independent measures of neighborhood demographic characteristics, visual signs of disorder, and reported crime, we build upon recent evidence that neighbourhood characteristics influence worry about crime (and that individual differences in worry about crime are strongly moderated by neighborhood socio-economic characteristics). First, we address spatial autocorrelation; our findings point toward geographical spill-over effects. Second, we address issues of measurement; our findings point toward stronger effects of crime on fear of crime when measures of past frequency of worry are employed. The paper concludes with some thoughts on future directions of research. A fruitful way forward is to address the complex pattern of relationships existing between neighbourhood characteristics, perceptions of those neighbourhood characteristics, and fear of crime.

Primus on Administrative Searches

Eve Brensike Primus  (University of Michigan Law School) has posted Disentangling Administrative Searches (Columbia Law Review, Vol. 111, 2011) on SSRN. Here is the abstract:

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and contends that much of the current mischief in administrative search law can be traced to the Supreme Court’s conflation of two distinct types of searches within one doctrinal exception – namely “dragnet searches” of every person, place, or thing in a given area or involved in a particular activity and “special subpopulation searches” of individuals deemed to have reduced expectations of privacy. Dragnets came first, and special subpopulation searches came later. As the category of administrative searches tried to accommodate both kinds of searches, it gradually lost the ability to impose meaningful limitations on either one. To bring clarity and sense to this area of the law, this Article proposes that we disentangle these two kinds of administrative searches.

Morrison on Juries and the Internet

Caren Myers Morrison 

 (Georgia State University - College of Law) has posted Jury 2.0 on SSRN. Here is the abstract:

When the Framers drafted the Sixth Amendment and provided that the accused in a criminal case would have the right to a speedy and public trial by an “impartial jury,” it is unlikely that they imagined the members of that impartial jury becoming Facebook friends during deliberations, or Googling the defendant’s name during trial. But in the past few years, such cases have increasingly been making headlines. The impact of the Internet on the functioning of the jury has generated a lot of press, but has not yet attracted scholarly attention. This article seeks to focus legal discourse on this under-examined phenomenon.

While the media have characterized this issue as little more than a new variety of juror misconduct, that description may be unnecessarily reductive. This article argues that juror attempts to gain information about the defendant and about the law may not reflect misconduct so much as a misplaced sense of responsibility to render the “right” decision. These efforts might also be a signal from jurors that they are chafing under the restrictions of their role.

The modern conception of the jury as passive and uninformed replaced a more active body envisaged at common law and by the Framers. To earlier legal thinkers, impartiality meant a lack of familial or financial interest in the outcome of the case, not ignorance of the facts. This article argues that we need to rethink the jury’s role for the 21st century and restore some of the jury’s active engagement in the process of fact-finding. The jury that may ultimately emerge – Jury 2.0 – may share some characteristics with its more active forbears.

Gershowitz on Passwords, Cell Phones, and Search Incident to Arrest

Adam M. Gershowitz  (University of Houston Law Center) has posted Password Protected? Can a Password Save Your Cell Phone from the Search Incident to Arrest Doctrine? (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

Over the last few years, dozens of courts have authorized police to conduct warrantless searches of cell phones when arresting individuals. Under the so-called search incident to arrest doctrine, police are free to search text messages, call histories, photos, voicemails, and a host of other data if they arrest an individual and remove a cell phone from his pocket. Given that courts have offered little protection against cell phone searches, this article explores whether individuals can protect themselves by password protecting their phones. The article concludes, unfortunately, that password protecting a cell phone offers minimal legal protection. In conducting a search incident to arrest, police may attempt to hack or bypass a password. Because cell phones are often found in arrestees’ pockets, police may take the phones to the police station where computer savvy officers will have the time and technology to unlock the phone’s contents. And if police are themselves unable to decipher the password, they may request or even demand that an arrestee turn over his password without any significant risk of the evidence on the phone being suppressed under the Miranda doctrine or as a Fifth Amendment violation. In short, while password protecting a cell phone may make it more challenging for police to find evidence, the password itself offers very little legal protection. Accordingly, legislative or judicial action is needed to narrow the search incident to arrest doctrine with respect to cell phones.

Vladeck on the New Habeas Revisionism

Stephen I. Vladeck  (American University - Washington College of Law) has posted The New Habeas Revisionism (Harvard Law Review, Vol. 124, 2011) on SSRN. Here is the abstract:

There is relatively little in the Constitution’s drafting history or ratification debates to illuminate the intended meaning of the Suspension Clause, and what it specifically protects by preserving “the Privilege of the writ of Habeas Corpus” except in cases where habeas is properly suspended. Most jurists and commentators at least seem to agree on the constitutional floor - that, as Justice Stevens put it in 2001, “at the absolute minimum, the Suspension Clause protects the writ ‘as it existed in 1789.’” But even that limited point of consensus only begs a separate question: what was the scope of the writ in English law in 1789, the practice from which we presume the Founders meant to borrow?

In Habeas Corpus: From England to Empire, Professor Paul Halliday provides a new series of answers to that question, using archival research to survey the scope of English habeas practice during the sixteenth, seventeenth, and eighteenth centuries. Rather than rely upon the published reports of English judicial decisions or the works of contemporaneous treatise writers, Halliday's work focuses on the writs themselves, extrapolating a series of conclusions based upon comprehensive archival research. To that end, Halliday's revisionist methodology reveals that many classical accounts of the scope of the writ in pre-revolutionary England (including Blackstone's) are in fact "whig" histories, superimposing modern and anachronistic understandings of rights and remedies onto a practice that was, in reality, far different. As Halliday explains, the dominant feature of pre-revolutionary habeas was the flexibility and dexterity of the justices in applying the common-law writ; and the true threat to such judicial power was Parliament - not just when it suspended habeas, but, ironically, when it codified the writ, as well. Ultimately, habeas corpus in seventeenth- and eighteenth-century England was about principles, not rules - about power, not rights. No case expressly refuted the rule against controverting the return, and yet the justices consistently flouted it. No case expressly held that the writ could reach anyone who answered to the sovereign, and yet the justices consistently sent it. No case expressly established the flexibility of the remedy that came to characterize habeas practice into the latter half of the eighteenth century, and yet the justices routinely demonstrated it. In the end, Halliday’s book does more than just refute time-honored conceptions of the scope of habeas in England at the Founding; it refutes the way in which we have arrived at those conceptions, proving not just that we have consistently taken the wrong lessons from the wrong sources, but that we have been (and perhaps still are) asking the wrong questions, looking for individual cases to prove what the rules (that must have existed) must have been.

Although this review essay uses the Guantanamo detainee cases to both summarize Halliday's conclusions and explain how they should reorient our understanding of the ambit of the writ in contemporary litigation, it suggests that the true significance of Halliday's history runs deeper. As useful as these revisionist conclusions should be in identifying the specific scope of the writ “as it existed in 1789,” what they really confirm is the protean dynamism of pre-revolutionary habeas in England. As the essay concludes, tying the Suspension Clause to what was true at the Founding only makes sense if one accepts that the result is a constitutional floor marked by fluid principles, not rigid practices. And although that proposition reveals serious and systematic flaws in how contemporary courts and commentators have approached questions as to the scope and sweep of habeas at the Founding, it remains for future generations, and not historians, to decide if the Constitution does - or should - protect anything more.

Kleinfeld & Schaub on Redressive Justice

Joshua Kleinfeld and Jörg Schaub  (Goethe University Frankfurt - Cluster of Excellence Normative Orders and Goethe University Frankfurt - Cluster of Excellence Normative Orders) have posted The Place of Redressive Justice in the Concept of Justice on SSRN. Here is the abstract:

This paper aims to recover a place in the contemporary theory of justice for the work of courts. It argues that the claims of justice, whatever they might be, are claims as to what is right. Any such claim is open to the possibility of violation. And those violations of the right give rise to a demand for redress, where that demand is itself a matter of justice. For example, in the events surrounding the beating of Rodney King, there was not just one wrong (the beating) but two – first the beating and second the acquittal, the one an invasion of the right to physical integrity, the other a failure to redress the first – and the two wrongs stand in an ordered relationship such that the second is logically dependent on the first. Thus the redressive demand changes the conceptual structure of justice. One must build two coordinate systems of norms, the one a set of primary norms, defining how people are to behave so as to avoid wrongdoing, and the other a set of redressive norms, identifying the proper response to wrongdoing when it occurs – just as there must be in any sport one set of rules specifying how to play without committing fouls (e.g., don’t run while carrying the ball in basketball) and another set of rules specifying what to do when a foul is committed (e.g., give the other team free throws). Thus this paper’s thesis: Any complete theory of justice requires an account of both primary justice and redressive justice. The former has been the particular concern of contemporary political philosophy in the tradition of John Rawls. The latter, wrongly neglected in the contemporary theoretical tradition, is the special province of a legal system.

Markowitz on Deportation and the Civil-Criminal Distinction

Peter L. Markowitz  (Benjamin N. Cardozo School of Law) has posted Deportation is Different on SSRN. Here is the abstract:

Over one hundred years ago, the Supreme Court emphatically declared that deportation proceedings are civil, not criminal, in nature. As a result, none of the nearly 400,000 individuals who were deported last year enjoyed any of the constitutional protections afforded to criminal defendants under the Sixth or Eighth Amendments. Among those 400,000 were numerous detained juveniles and mentally ill individuals who, as a result of the civil designation, had no right to appointed counsel. These individuals were thus forced to navigate the labyrinth of immigration law alone. Others were lawful permanent residents who had pled guilty to minor offenses upon the correct advice of counsel that they could not be deported. These individuals later became subject to deportation when Congress retroactively changed the law, unbound by the criminal prohibition against ex post facto laws. The dichotomy between the gravity of the liberty interest at stake in these proceedings - a lifetime of exile from homes and families in the United States - and the relative dearth of procedural protections afforded respondents, has always been intuitively unjust to some. However, over the past twenty years, as immigration and criminal law have become intertwined as never before, the intuitive sense of many has matured into a scholarly movement exploring the criminalization of immigration law. This movement has taken aim at the incoherence of deportation’s civil designation. Until recently, however, there was little reason to think the Supreme Court would wade into the waters of the resurgent debate over the nature of deportation proceedings. In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), however, the Court surprised almost everyone as it went to great length to chronicle the criminalization of immigration law and ultimately concluded that deportation is - uniquely difficult to classify. The immediate impact of the Padilla decision is the critical recognition that criminal defendants have a right to be advised by their attorneys if a plea they are contemplating will result in deportation. However, I argue, that in time Padilla may come to stand for something much more significant in immigration jurisprudence. When we read Padilla in the context of the Supreme Court’s evolving immigration jurisprudence, there is good reason to believe that Padilla is a critical pivot point for the Court. Padilla marks the beginning of a significant reconceptualization of the nature of deportation toward the realization that it is neither truly civil nor criminal. Rather, deportation is different. It is a unique legal animal that lives in the crease between the civil and criminal labels. This article explores the evolving arch of Supreme Court jurisprudence regarding the quasi-criminal nature of deportation proceedings and articulates a principled mechanism by which the scope of respondents’ rights can be defined under this new framework.

Brooks on Retribution and Capital Punishment

Thom Brooks  (Newcastle University - Newcastle Law School) has posted Retribution and Capital Punishment (RETRIBUTIVISM: ESSAYS ON THEORY ON PRACTICE, Mark D. White, ed., Oxford University Press, 2010) on SSRN. Here is the abstract:

Should retributivists reject capital punishment? It is easy to see how those holding different theories of punishment might oppose it. For example, a deterrence proponent could argue that capital punishment lacks a deterrent effect and, thus, it is unjustified. This seems a far more difficult task for a retributivist.

I will argue that retributivists should reject capital punishment for murderers. My argument will accept several concessions. First, I accept that capital punishment may be proportionate to the crime of murder. Thus, my claim is not that capital punishment should be rejected because it is disproportionate to murder. Secondly, I accept that capital punishment need not be cruel nor unusual punishment. This is an area of wide disagreement, but I do not wish to be distracted by these debates here. Note that I am not defending any particular method of execution. I simply assume that a method may be satisfactory. Thirdly, I also accept that capital punishment is not barbaric nor uncivilized. Some philosophers, such as Kant, rejected punishments for some crimes on the grounds that doing so might itself be a crime against humanity. This also an area of wide disagreement I wish to avoid. In summary, these three concessions are accepted up front purely for the sake of argument. My claim is that retributivists should reject capital punishments for murderers even if they believed it proportionate for murderers, it was not cruel nor unusual to impose capital punishment on murderers, and capital punishment was not barbaric nor uncivilized.

Logan on Erie and Federal Criminal Courts

Wayne A. Logan  (Florida State University - College of Law) has posted Erie and Federal Criminal Courts (Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:

Today, low-level state and local criminal laws figure critically in federal prosecutions, serving as the initial bases for police seizures that yield evidence leading to more serious federal charges (usually involving drugs or firearms). While police resort to such laws as pretexts to stop and arrest individuals has been frequently addresed, this article provides the first analysis of how federal courts actually interpret and apply the laws. In doing so, the article reveals a surprising reality, long dismissed as a doctrinal impossibility: federal judicial use of the analytic framework of Erie v. Tompkins to resolve criminal cases.

As the article establishes, Erie analysis indeed plays a key role in federal criminal cases and it does so in the unusual context of malum prohibitum laws, otherwise customarily addressed by low-level state or local trial courts. Federal courts must determine whether police seizures are reasonable for Fourth Amendment purposes, based on their assessment of whether the behavior in question could constitute a violation of state or local law. If not, the exclusionary rule is triggered, likely resulting in dismissal of the federal prosecution. In such circumstances, state and local criminal laws retain their non-federal status while being applied by federal courts, much as occurs in civil diversity cases.

As the article explains, however, as Erie has migrated so too have its analytic difficulties, complicated by a variety of issues unique to criminal prosecutions. Federal outcomes result not in civil liability but rather deprivations of physical liberty without the possibility of parole, and have significant implications for federalism and separation of powers, undercutting the historic police power authority of state and local governments.

The article, in short, marks the first effort to examine the impact of the “Erie megadoctrine” in federal criminal courts, which given the increasing cooperative efforts of state and federal law enforcement promises to have ever-greater significance in the years to come.

American University seeks criminal law and procedure teachers

American University Washington College of Law invites applications for one or more tenure track faculty positions in a broad number of areas, including, but not limited to, first-year courses, criminal law, criminal procedure, international law, administrative law, intellectual property, patent law, environmental law, among others. In addition, the school invites applications for one or more visiting faculty positions to teach in the first year. Details on requirements are as follows:

 (1) For the tenure-track positions, we will consider candidates at all career levels. Minimum qualifications include a J.D. degree, an aptitude for teaching, and demonstrated scholarly interest in one or more fields of law.

 (2) Minimum qualifications for visiting positions include a J.D. degree and significant teaching experience, particularly in the courses the visitors propose to teach. We will be considering visitors with various specialties for both classroom and clinical teaching.

American University Washington College of Law is committed to a diverse faculty, staff and student body and encourages the applications of women and minorities. American University is an EEO/AA employer.  Review of applications will begin shortly. Appointments will be for the 2011-2012 academic year.

 All inquiries should be by mail; please do not contact committee members by telephone. Although there is no formal deadline, we will begin interviewing candidates for tenure-track positions early in the fall, so interested persons are encouraged to apply as soon as possible. All applicants should submit a cover letter and resume to:

American University
Washington College of Law
Office of the Dean, Suite 366
4801 Massachusetts Avenue, N.W.
Washington, D.C. 20016

or send e-mail with cover letter, resume, and other supporting material as attachments to farhad@wcl.american.edu

Symposium on the fallout of declaring "war" on social issues

This symposium, to be held March 3-4 at the University of Iowa and sponsored by the Journal of Gender, Race & Justice, will focus on many topics of interest to criminal law and procedure types, such as the "war on drugs" and the "war on gangs." Those interested in writing a paper for the symosium should email a proposal and curriculum vitae to Sarah Pierce at sarah-c-pierce at uiowa.edu by November 15th, 2010. Possible topics are listed after the jump. The announcement is here.

Possible topics may include, but are not limited to:
- Race and the War on Drugs
- The relationship between the prison system and social wars
- Female casualties in social wars
- The War on Terror and immigration
- The eect of social wars on the market crash and current economic climate
- The Wars on Drugs and Crime and the juvenile justice system
- Progression or lack of in the War on Poverty, 55 years later
- Medical marijuana and the War on Drugs

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	2771	A Legal Labyrinth: Issues Raised by Arizona Senate Bill 1070 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
2	204	Broken Lives from Broken Windows: The Hidden Costs of Aggressive Ordermaintenance Policing Babe Howell, CUNY School of Law, Date posted to database: May 18, 2010
3	186	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: July 3, 2010
4	182	Status as Punishment: A Critical Guide to Padilla v. Kentucky Gabriel J. Chin, Margaret Colgate Love, University of Arizona James E. Rogers College of Law, Law Office of Margaret Love, Date posted to database: July 10, 2010
5	173	Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law Lawrence Rosenthal, Chapman University - School of Law, Date posted to database: June 27, 2010
6	164	More Different than Life, Less Different than Death William W. Berry, University of Mississippi School of Law, Date posted to database: May 25, 2010 Last Revised: July 20, 2010
7	138	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010
8	132	Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law Gabriel J. Chin, Marc L. Miller, University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: July 26, 2010
9	120	One-hundred Years of Getting It Wrong? Wrongful Convictions After a Century of Research Jon B. Gould, Richard A. Leo, George Mason University - School of Public Policy, University of San Francisco - School of Law, Date posted to database: May 27, 2010
10	110	Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development David B. Wexler, University of Puerto Rico - School of Law, Date posted to database: June 23, 2010