CrimProf Blog

Bronsteen, Buccafusco & Masur on Retribution and the Experience of Punishment

John Bronsteen (pictured), Christopher J. Buccafusco and Jonathan S. Masur  (Loyola University Chicago School of Law , Chicago-Kent College of Law and University of Chicago - Law School) have posted Retribution and the Experience of Punishment (California Law Review, Forthcoming) on SSRN. Here is the abstract:

In a prior article, we argued that punishment theorists need to take into account the counterintuitive findings from hedonic psychology about how offenders typically experience punishment. Punishment generally involves the imposition of negative experience. The reason that greater fines and prison sentences constitute more severe punishments than lesser ones is, in large part, that they are assumed to impose greater negative experience. Hedonic adaptation reduces that difference in negative experience, thereby undermining efforts to achieve proportionality in punishment. Anyone who values punishing more serious crimes more severely than less serious crimes by an appropriate amount — as virtually everyone does — must therefore confront the implications of hedonic adaptation. Moreover, the unadaptable negativity of post-prison life which is caused by the experience of imprisonment results in punishments that go on far longer than is typically assumed. Objectivist retributive theories that fail to incorporate these facts risk creating grossly excessive punishments. Certain retributivists have disputed the claim that adaptation is important to punishment theory, but their arguments are unavailing.

Blecker on LWOP

Robert Blecker (New York Law School) has posted Less than We Might: Meditations on Life in Prison Without Parole (Federal Sentencing Reporter, Vol. 23, No. 1, 2010) on SSRN. Here is the abstract:

Today, death penalty opponents mostly claim life without parole (LWOP) as their genuinely popular substitute punishment for "the worst of the worst." These abolitionists embrace LWOP as cheaper, equally just, and equally effective - a punishment that eliminates the state’s exercise of an inhumane power to kill helpless human beings who pose no immediate threat. Furthermore, they insist, LWOP allows the criminal justice system to reverse sentencing mistakes. Some even characterize it as a "punishment worse than death."

Thousands of hours in several states, interviewing and observing more than a hundred convicted killers, along with dozens of correctional officers who confine them - from wardens down to line officers - have taught me, however that LWOP does not substitute for, and suggest that LWOP should not supplement, the death penalty.

In those states that reject the death penalty, LWOP may seem the only appropriate punishment for the worst crimes and criminals. However, although conflicted and unsure, on balance I argue here that as presently conceived and practiced, life without parole - more and more the punishment against which all else is measured - ultimately has no place in any criminal justice system worth its name.

The current climate regarding punishment, reflected in the mission statements and professional practices of Departments of Corrections, buttressed by the U.S. Supreme Court in Graham only contributes to the failure of LWOP as a substitute or supplement to death. A different concept and practice of punishment - call it permanent punitive segregation (PPS) - could supply a morally acceptable substitute to many retributive death penalty supporters while satisfying those abolitionists who recognize that the worst of the worst of the worst do deserve to be punished severely - and forever.

Bellin on Crime Severity and the Fourth Amendment

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted
Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World on SSRN. Here is the abstract:

A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty. This Article joins the discussion, while highlighting a largely overlooked consideration that should be included in any modernization of Fourth Amendment doctrine – crime severity.

Nearly everyone agrees that, as an intuitive matter, the “reasonableness” of a search or seizure depends to some degree on the seriousness of the crime being investigated. Yet, current Fourth Amendment doctrine ignores this intuition. As a result, an invasive search of a suspected shoplifter is, legally speaking, no more or less reasonable than the same search of a suspected murderer.

Through the years, the primary objection raised by the Supreme Court and academics to altering this status quo is that a crime severity variable would be unworkable. While a handful of scholars continue to argue for an increased role for crime severity in Fourth Amendment jurisprudence, this powerful objection remains unanswered. In an effort to fill this void in the debate, and introduce crime severity as a critical component of a revitalized search and seizure jurisprudence, this Article proposes a concrete framework for incorporating crime severity into Fourth Amendment doctrine. The Article then explores specific applications of the framework to highlight the constructive role crime severity distinctions can play in defining the constitutional parameters of searches and seizures in the modern era.

Slobogin on Psychological Syndromes and Criminal Responsibility

Christopher Slobogin  (Vanderbilt Law School) has posted Psychological Syndromes and Criminal Responsibility on SSRN. Here is the abstract:

These two papers both focus on the intersection of the law of evidence with criminal responsibility doctrine, using as a springboard my book, Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness. The first piece, Psychological Syndromes and Criminal Responsibility, appears in the Annual Review of Law and Social Science. It analyzes the admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome, and XYY syndrome as well the admissibility of prosecution-proffered evidence about phenomena such as rape trauma syndrome and abused child syndrome. It emphasizes the need to assess, in each instance, materiality (the logical relationship of the evidence to the precise doctrine at issue-insanity, lack of mens rea, etc.), probative value (reliability), helpfulness (the extent to which the evidence adds to the fact-finder knowledge), and prejudice (the extent to which the evidence distracts or confuses the fact-finder). Thus, the ultimate admissibility decision involves consideration of the scope of the criminal law, the scientific methodology associated with the syndrome, the counter-intuitiveness of the evidence, and the role and capacities of juries.

The second piece, to appear in a symposium issue of Seton Hall Law Review with the title The Right to Voice Reprised, looks more closely at the probative value issue. Proving the Unprovable argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evaluation process that addresses the relevant legal criterion, an argument based in part on the position that the Constitution can be read to entitle defendants to tell their exculpatory mental state stories. In a recent essay, Professor Lillquist takes aim at this latter rationale, which I called the right to voice. He believes that the right to voice cannot be found in the Constitution or the Supreme Court’s construction of the Constitution, and that in any event recognition of such a right would be a bad idea because it would increase the chance of inaccurate outcomes. In response, this article bolsters the argument that there is a limited constitutional right to tell exculpatory mental state stories through experts and shows why fear that such a right will generate "inaccurate" verdicts is unfounded. In the course of doing so, it explains why these arguments apply only to psychiatric evidence and do not require or lead to a more generalized right to present a defense, which appears to be the real concern underlying Professor Lillquist’s essay. Nonetheless, the concluding section of the article departs from the psychiatric context to suggest some new reasons why the notion of a more generalized right to voice at least ought to be on the table.

"Efforts to Prosecute Blackwater Are Collapsing"

From The New York Times:

WASHINGTON — Nearly four years after the federal government began a string of investigations and criminal prosecutions against Blackwater Worldwide personnel accused of murder and other violent crimes in Iraq and Afghanistan, the cases are beginning to fall apart, burdened by a legal obstacle of the government’s own making.

. . .

Interviews with lawyers involved in the cases, outside legal experts and a review of some records show that federal prosecutors have failed to overcome a series of legal hurdles, including the difficulties of obtaining evidence in war zones, of gaining proper jurisdiction for prosecutions in American civilian courts, and of overcoming immunity deals given to defendants by American officials on the scene.

"Must-read speech from retired Justice Stevens about Harmelin Eight Amendment ruling"

Doug Berman at Sentencing Law and Policy discusses and points to the speech, available from the Court's website.

"Developments in Federal Search and Seizure Law"

FourthAmendment.com links to this document by Stephen R. Sady, chief deputy public defender for the District of Oregon, which canvasses recent authority with an eye toward identifying lower court precedents that might be helpful in representing criminal defendants.

Streit & Chisholm on Increasing Sentencing Discretion

Kenneth Streit and John Chisholm have posted Sentencing Option: Why Restrict Judges? (Wisconsin Lawyer, Vol. 83, No. 9, September 2010) on SSRN. Here is the abstract:

Dissatisfaction with parts of the indeterminate (parole) sentencing system led many states, including Wisconsin, to totally eliminate this and substitute a Truth-in-Sentencing system. After a decade with the new system, there are also many problems including difficulty in arranging programs, overcrowding and banishing the concept of rehabilitation. An adjustment would be to provide judges with both options at the time of sentencing so that the most serious offenders would be serving the fullest sentence while others would have earlier access to treatment and possible earned release.

Jonakait on the Original Meaning of Reasonable Doubt and Other Procedural Rights

Randolph N. Jonakait  (New York Law School) has posted Finding the Original Meaning of American Criminal Procedure Rights: Lessons from Reasonable Doubt's Development on SSRN. Here is the abstract:

Lessons can be learned about finding the original meaning of American criminal procedure rights by an examination of the development of the reasonable doubt standard. This is for a number of reasons. First, the status of the reasonable doubt standard seems secure. No debate questions the constitutional requirement that an accused can only be convicted if the crime is proven beyond a reasonable doubt. The standard’s original meaning can be explored uncolored by the partisanship often engendered when present seekers of original meaning hope to define a new contour to a constitutional guarantee. Furthermore, serious scholars have studied the reasonable doubt standard’s early development and its original meaning, purposes, and intent.

An examination of those scholarly sources, methods, and conclusions provides a number of valuable insights that should affect the search for finding the original meaning of other American criminal procedure guarantees. These are first that the seeker of original meaning of evolved criminal procedure rights has to go beyond traditional legal sources and explore the broader epistemological developments in religion, philosophy, and science that affected the development of the right. Second, conclusions about original meaning drawn primarily from English and other European sources can be misleading without a consideration of American developments. What might seem like a sound conclusion when English sources are examined may look suspect when viewed in the light of American developments. Finally, the reasonable doubt scholarship reveals that definitive conclusions about the original meaning of American constitutional rights will often be impossible to find both because the necessary American record is absent and because evolved rights never really had a definitive original meaning.

"JetBlue Flight Attendant Accepts Plea Deal"

The story, from The New York Times, reports that Steven Slater pleaded guilty "to two charges of attempted criminal mischief, one a felony, one a misdemeanor, " and "agreed to enroll in an alternative sentencing program that requires him to undergo mental health counseling and substance abuse treatment for the next year. He must also keep regular appointments with the court to report on his progress."

“He clearly has a mental health-alcohol abuse problem,” [the prosecutor] said. “While his condition does not in my mind justify or excuse his actions, it does to some respect explain them. I think it’s also fair to say Mr. Slater has recognized the seriousness of his actions.”

"Average Homicide Cost Is $17.25M, Study Concludes"

FindLaw has this story from Iowa State University. On the methodology:

An overwhelming majority of this high sum is the result of the amount of money citizens would be willing to pay to prevent future crime. The study also used the same formula to determine the costs of other crimes: rape ($448,532), armed robbery ($335,733), aggravated assault ($145,379), and burglary ($41,288).

"Officials Push to Bolster Law on Wiretapping"

From The New York Times:

WASHINGTON — Law enforcement and counterterrorism officials, citing lapses in compliance with surveillance orders, are pushing to overhaul a federal law that requires phone and broadband carriers to ensure that their networks can be wiretapped, federal officials say.

. . .

Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.

. . .

To bolster their case that telecom companies should face greater pressure to stay compliant, security agencies are citing two previously undisclosed episodes in which investigators were stymied from carrying out court-approved surveillance for weeks or even months because of technical problems with two major carriers.

Klingele, Scott & Dickey on Reimagining Criminal Justice

Cecelia M. Klingele , Michael Scott (pictured) and Walter Dickey (University of Wisconsin Law School , University of Wisconsin Law School and affiliation not provided to SSRN) have posted Reimagining Criminal Justice (Wisconsin Law Review, 2010) on SSRN. Here is the abstract:

The criminal justice system needs more than reform. It requires reimagining. In its present state, by every measure that matters, the criminal justice system is failing to deliver what can fairly be expected of it. Many crimes are never reported, and most crimes that are reported go unsolved. When offenders are identified and apprehended, they are often processed through the criminal justice system in a manner that values expediency over enhanced public safety. Despite falling crime rates, many communities remain unsafe. Limitations on the capacity of law enforcement agencies, prosecutors' offices, trial courts, and correctional programs prevent the criminal justice system, as presently configured, from responding to the volume of cases it processes with the time and attention needed to ensure justice is done and public welfare and security are advanced.

In response to these glaring deficiencies in the current system, many policymakers and advocates have demanded increased resources for more patrol officers, more prosecutors, and more prisons"as though more of what is not working will somehow fix the problem. We take the position that more fundamental changes are needed if the criminal justice system is to succeed in its dual goals of reducing crime and serving the ends of justice. In this Essay, we set forth the reasons for our belief that the system needs to be re-imagined, asserting that whether the measure is efficiency, effectiveness, or equity, the current system fails to deliver. We explore the meaning of public safety, emphasizing that the traditional tools of arrest, prosecution, and conviction, standing alone, are unlikely to make homes, streets, and neighborhoods secure in any meaningful way. Drawing primarily on examples from the field of policing, we point to examples of ways in which local communities have successfully tackled discrete public safety problems, relying less on the invocation of the traditional criminal justice system and more on the creative use of state power and community resources. From those examples, we derive three principles that link the best of these efforts. We then consider the implications of our imagined criminal justice system for the roles of police, prosecutors, judges, and correctional agents, and for legal research and education as well. Finally, we acknowledge practical and theoretical obstacles to the change we advocate, and end with our reasons for optimism about the future of the criminal justice system.

Today's crim law/procedure cert grant

Issue summary from ScotusBlog, which links to cert papers and the opinion below:

• Ashcroft v. al-Kidd: (1) Whether a former government official is entitled to absolute immunity from a claim that he used the material witness statute as a “pretext” to preventatively detain terrorism suspects; and (2) whether the former government official is entitled to qualified immunity from the pretext claim based on the conclusions that (a) the Fourth Amendment prohibits an officer from executing a valid material witness warrant with the subjective intent of conducting further investigation or preventively detaining the subject; and (b) this Fourth Amendment rule was clearly established at the time of the respondent’s arrest.

"California state bar to investigate 130 prosecutors following misconduct study by Innocence Project and Santa Clara law school"

John Steele has this post at Legal Ethics Forum. In part:

I expect we'll hear a lot more news about this, that the prosecutors will fight back, that the prosecutors will feel that old matters that were argued years ago shouldn't be the basis of discipline charges, and so on.   But this move by the bar seems quite deliberate and planned out, and I expect they've thought through a lot of the issues.  We'll see.  I'd also expect that at some point more prosecutor offices will adopt "open file" policies simply out of self-protection.  

Habeas, Pro and Con (Dripps)

For a truly excellent debate about federal habeas for state prisoners, compare Joseph L. Hoffman & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791, 818-33 (2009) with John H. Blume, Sheri Lyn Johnson. & Keir M. Weyble, In Defense of Non-capital Habeas: A Response to Hoffman and King, available online here. I remain skeptical about federal habeas, for reasons that the formidable scholars on both sides of this debate largely agree on--habeas comes late and the states lack systemic incentives to comply with Brady and Strickland.  I have been inclined to agree with Hoffman and King that the resources used at the back end on habeas would be much better spent on less disgraceful indigent defense up front.  But I am less sure of this position than before reading the paper by Blume, Johnson and Webyle.  I commend the two articles in the strongest terms to anyone who cares about federal habeas.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	211	Palestine and the International Criminal Court: Asking the Right Question Michael G. Kearney, London School of Economics & Political Science (LSE) - Department of Law, Date posted to database: July 3, 2010
2	189	The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes Maximo Langer, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: August 19, 2010
3	178	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
4	173	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010 [new to top ten]
5	169	An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [4th last week]
6	168	Fourth Amendment Pragmatism Daniel J. Solove, George Washington University Law School, Date posted to database: August 27, 2010 [7th last week]
7	161	Selected Salient Evidentiary Issues in Employment Discrimination Cases Lynn McLain, University of Baltimore School of Law, Date posted to database: July 12, 2010 [5th last week]
8	156	Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010 [6th last week]
9	133	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [new to top ten]
10	132	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010 [new to top ten]