CrimProf Blog

Markel on the Confrontational Conception of Retributivism

Dan Markel  (Florida State University College of Law) has posted What Might Retributive Justice Be? (RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to legal wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.

The paper here is a chapter in a volume forthcoming from Oxford including essays on the theory and practice of retributive justice. My paper in particular is an effort at restating, clarifying and correcting some of my prior work in retributive justice theory. It is, relatively speaking, reasonably short and might serve as a useful introduction for students and scholars wading into contemporary retributive justice theory.

Controversy over Actual Innocence and Habeas

The L.A. Times has this story:

An attorney for a man wrongly convicted of murder accused California Atty. Gen. Jerry Brown's office Thursday of waiting until after the November election to seek to return the man to prison on a technicality.

. . .

Lisker . . . was released from prison last year after a judge found that he was convicted on "false evidence" and had been inadequately represented by his trial attorney.

. . .

Earlier this month, the attorney general filed a motion asking a judge to reverse her decision to overturn Lisker's conviction because he had missed a deadline years ago by which to file his appeal.

The attorney general's motion hinges on a U.S. 9th Circuit Court of Appeals ruling in a different case decided in July. In that case, a man's conviction for child sex abuse and sodomy had been overturned by a district court judge even though he had missed a federal deadline in which to file his habeas corpus petition. As in the Lisker case, the district court judge determined after evidentiary hearings that the man, Richard Lee, had met an "actual innocence" exception to the deadline.

The 9th Circuit reversed that ruling. The judges noted the overturning of Lisker's conviction and said there was a "widening split among the district courts of our circuit on whether there is an actual innocence exception." They concluded that no such exception exists and reinstated Lee's conviction.

Fan on Police Gamesmanship and Criminal Procedure

Mary D. Fan  (University of Washington - School of Law) has posted The Police Gamesmanship Dilemma in Criminal Procedure (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

Police gaming of the rules is a perennial challenge for constitutional criminal procedure, leading to twists and hazard zones in the law such as the recent decision in Arizona v. Gant and feared fallout from Maryland v. Shatzer. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves rule-pushing and dodging tactics of dubious propriety that exploit blind spots, blurry regions or gaps in rules and remedies. Currently, courts generally avoid peering into the Pandora’s Box of police tactics unless the circumvention of a protection becomes too obvious to ignore and requires a stop-gap rule-patch that further complicates the maze of constitutional criminal procedure. This approach leaves murky the line between fair and foul play and gives police perverse incentive to game covertly. A new approach is needed, founded on a better understanding of police gaming of the rules. This article takes up the task.

The article offers a taxonomy of the three main forms of problematic police gaming and proposes anti-gaming standards and data-development remedial rules to address them. The taxonomy distinguishes between desirable police innovation and problematic rule subversion and divides problematic police gaming into three variants: conduct rule gaming, remedial rule gaming and framing rule gaming. The taxonomy builds on the distinction between conduct and decision rules elegantly adapted by Carol Steiker and Meir Dan-Cohen from Jeremy Bentham’s work. The article argues for deploying anti-gaming standards to supplement bright-line rules to empower adjudicators to block unfair plays and better inform police judgment on issues where the incentive to game is high because the potential evidentiary payoff is direct. The article also argues for reorienting the predominant remedial approach when a violation is found to incorporate data-development remedies that surface problems sooner and give police incentive to cooperate in monitoring and reform.

Robinson on Abnormal Mental States and Murder

Paul H. Robinson  (University of Pennsylvania Law School) has posted Abnormal Mental State Mitigations of Murder – The U.S. Perspective on SSRN. Here is the abstract:

This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine of "mental illness negating an offense element," as in Model Penal Code Section 4.02, allows a killing to be mitigated to manslaughter (or less) upon a showing that a mental disease or defect negated the culpable state of mind required for murder. This Model Code provision too has met with some resistance among the states, many of whom limit the use of mental illness evidence to negate an offense element.

The paper discusses the state of the law in the various American jurisdictions, the reasons for the Model Penal Code shift from the common law, the possible reasons for resistance among the states to following that shift, an analysis of the mitigations under alternative distributive principles for punishment, concluding that only a desert principle supports the mitigations, and a discussion of the implications of this desert foundation for the proper formulation of the mitigations.

Wagner on Military Law as a Model for a General Federal Attempt Provision

Robert E. Wagner  (Case Western Reserve University School of Law) has posted A Few Good Laws: Why Federal Criminal Law Needs a General Attempt Provision and How Military Law Can Provide One (University of Cincinnati Law Review, Vol. 78, p. 1043, 2010) on SSRN. Here is the abstract:

While the law is designed to provide just punishments for individuals who engage in criminal activity, the current absence of a general attempt provision in the federal criminal code frustrates this purpose. Criminal law should both have a deterrent effect on people who are contemplating a criminal act and treat individuals justly who have already perpetrated one. Prosecuting individuals who attempt crimes advances both of these goals. Under the current federal criminal law, however, only some attempted crimes can be prosecuted. Unlike most state criminal law systems, the federal one has no general provision that enables the prosecution of individuals who have taken actions that, if successful, would have resulted in crimes. Rather, some federal criminal laws have their own attempt provisions while others (often inadvertently) do not. This Article proposes as a solution adopting into the federal criminal code a provision from the Uniform Code of Military Justice (UCMJ) that would make it a crime to attempt any other crime in the federal criminal code.

Implementing the language about attempt from the UCMJ and military law precedent would not only allow for the introduction of one clear definition of “attempt” that courts could apply across the board but would also delineate the role of three key defenses in attempt prosecutions. First, it would clarify the distinction between mere preparation to commit a crime and an attempt to do so. Second, it would eliminate the confusing and inconsistent defense of legal impossibility. Third, it would provide a model for when abandoning a criminal endeavor should serve as a defense, which would be when an individual ceases the endeavor of his own volition and before any harm has occurred. Finally, this Article analyzes the proper level of punishment that should be imposed once a person is found guilty of an attempted offense.

"Pretrial DNA Database Collection"

Kent Scheidegger at Crime and Consequences notes the Ninth Circuit's recent opinion upholding this practice and predicts the case will go en banc.

"U.S. Won't Seek Retrial of Former Merrill Lynch Official in Enron Case"

The Wall Street Journal has this story:

In the latest twist in the government's multi-year prosecution of the Enron Corp. scandal, the Justice Department moved Wednesday to drop charges against a former Merrill Lynch & Co. official days before a scheduled retrial involving the only criminal case brought against Wall Street figures in the alleged misdeeds at the onetime energy giant Enron Corp.

Atkinson on the Fourth Amendment and Duties of Law-Abiding Citizens

L. Rush Atkinson V has posted The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment protects the innocent only from “unreasonable” searches. In lieu of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to “unreasonable” searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often overlooked fact: Searches of innocent persons are often “bilateral accidents,” meaning that both the innocent suspect and the police can affect the likelihood of an erroneous search occurring. In bilateral conditions, a reasonableness rule induces both the searcher and searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections — like that within the Takings Clause — cannot.

By assigning costs for erroneous-but-reasonable searches to the innocent, the Fourth Amendment functions as an important regulatory device, channeling law abiders away from activity that unintentionally masks others’ criminal enterprises. Thus, the Amendment regulates the very people that it protects from governmental intrusions. This Article refers to this duality as the “bilateral Fourth Amendment,” and argues the Amendment’s incentives for the innocent are best understood as a duty for law-abiding people to act reasonably.

At the same time, identifying the “bilateral” nature of searches should influence the legal rules dictating what evidence police may use as grounds to search a suspect. Because the innocent alter their behavior based on which activities the government deems “suspicious,” rules about cause and suspicion cannot singly turn on evidence’s probative value; they must also account for the socially beneficial activity that is reduced by labeling behavior “suspicious.”

Henderson on Fourth Amendment Third-Party Doctrine

Stephen E. Henderson  (Widener University School of Law) has posted The Timely Demise of the Fourth Amendment Third Party Doctrine (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend or invoke it, and lower courts seem to be responding to that shift. In the relatively short space allotted, I place Tokson's thoughtful argument in this greater context, and briefly reply to related arguments of Professor Kerr and Judge Posner.

"Blagojevich asks judge to override false statements conviction"

Jurist has the story here. The motion claims that insufficient proof was adduced on the sole count of conviction and that prosecutors engaged in "obstructionist objections" during defense cross-examination of prosecution witnesses.

Kerr on Overturned Caselaw and the Exclusionary Rule

Orin S. Kerr  (George Washington University - Law School) has posted Good Faith, New Law, and the Scope of the Exclusionary Rule (Georgetown Law Journal, Vol. 99, 2011) on SSRN. Here is the abstract:

Lower courts recently have divided on whether the good-faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned caselaw. This Article argues that the Supreme Court should reject the good-faith exception in this setting.

A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision-making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned caselaw exceed its costs, and the rule therefore should be retained.

Simons on Statistical Knowledge

Kenneth W. Simons  (Boston University - School of Law) has posted Statistical Knowledge Deconstructed on SSRN. Here is the abstract:

In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.

This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.

Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)

The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.

Miller on the Anchoring Effect and Judicial Participation in Plea Discussions

Colin Miller  (John Marshall Law School) has posted Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions on SSRN. Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

Podgor on Pre-Plea Discovery

Ellen S. Podgor (Stetson University College of Law) has posted Pleading Blindly (Mississippi Law Review, Vol. 4, p. 80, Forthcoming) on SSRN. Here is the abstract:

In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.

This Essay places this discussion in the backdrop of existing legal scholarship and existing precedent, most importantly the Supreme Court opinion in United States v. Ruiz, that provides little support for mandating discovery to defendants prior to entering into a plea agreement. Protecting the importance of a voluntary and knowing plea cannot be overlooked in assuring an efficient system of justice. Unique concerns are also noted when the government is entering into a deferred prosecution agreement with a corporation or other entity. This Essay advocates for a more forceful response than merely having DOJ guidelines to remedy discovery violations that may influence the entering of a plea.

Markel on Punishing through Punitive Damages

Dan Markel  (Florida State University College of Law) has posted Overcoming Tradeoffs in the Taxation of Punitive Damages (Washington University Law Review, Forthcoming)  on SSRN. Here is the abstract:

As explained in a companion piece (Taxing Punitive Damages, co-authored with Gregg Polsky, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421879), there is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, business defendants are not always punished to the degree that the jury intends. This is because jurors do not take into account the fact that these businesses are allowed to deduct their punitive damages awards. To solve this problem, President Obama recently proposed to make all punitive damages nondeductible, a proposal that has in the past been supported by a number of policymakers and academics. Unfortunately, the nondeductibility rule is doomed to fail in practice.

Instead, the under-punishment problem is better solved through making juries and courts aware of the tax implications of punitive damages awards. While tax awareness would better address the under-punishment problem, it would at the same time increase plaintiffs’ windfalls. Sadly, there is simply no way under current punitive damages law to reduce under-punishment without simultaneously augmenting plaintiff windfalls. The tradeoff is a byproduct of the jumbled way current punitive damages law engrafts “public law” values on a private dispute resolution system not entirely capable of effectuating those values.

To avoid such an unfortunate tradeoff, reform of punitive damages law would be required, reforms that I have described elsewhere. To be sure, such reform is desirable for tax-independent reasons. But this Article explain how those reforms could also address these tax-specific problems. In particular, I argue that the appropriate tax treatment of tort damages should depend on the particular purpose(s) being pursued and vindicated. In this respect, the recommendations here stake out a more nuanced middle path between those scholars and policymakers touting nondeductibility for all punitive damages and those endorsing the current rule allowing a deduction for all punitive damages paid by business defendants.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	191	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 [4th last week]
2	190	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 [3rd last week]
3	184	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 [5th last week]
4	142	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010 [7th last week]
5	141	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 [8th last week]
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8	98	Reconsidering Reprisals Michael A. Newton, Vanderbilt University - Law School, Date posted to database: June 9, 2010 [new to top ten]
9	88	Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias Michael Cassidy, Boston College Law School, Date posted to database: August 9, 2010 [new to top ten]
10	87	Fourth Amendment Pragmatism Daniel J. Solove, George Washington University Law School, Date posted to database: August 27, 2010 [new to top ten]