CrimProf Blog

Next week's criminal law/procedure argument

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

Tuesday, Nov. 9

• Cullen v. Pinholster: Whether a federal court can overturn a state criminal conviction on the basis of facts the defendant could have alleged, but did not, in state court.

Court overrides governor's veto of parole for murder convict who still protests innocence

From the San Francisco Chronicle:

The state parole board has approved Michael McDonald's release three times and Gov. Arnold Schwarzenegger has vetoed it each time, saying the convicted murderer showed a "lack of insight" into his crime because he still insisted he was innocent.

But a state appeals court says that neither the governor nor the board can insist on a confession before paroling a prisoner who, based on the evidence, is not dangerous.

State laws "prohibit requiring an admission of guilt as a condition for release on parole," the Second District Court of Appeal in Los Angeles said Tuesday. The court said McDonald's background, his behavior during 17 years in prison and psychological evaluations all indicate that he poses little risk of future violence.

California recidivism news

Crime and Consequences links to and summarizes this report from the California Department of Corrections and Rehabilitation and the article reporting on it in the San Francisco Chronicle, which begins as follows:

More than two-thirds of paroled inmates in California are back in prison within three years, with the highest rates among younger inmates and those with shorter sentences, according to a new state report.

Clancy on the Framers' Intent and the Fourth Amendment

Thomas Clancy (University of Mississippi College of Law) has posted The Framers’ Intent: John Adams, His Era, and the Fourth Amendment (Indiana Law Journal, Vol. 86, 2010) on SSRN. Here is the abstract:

For many years, I have relied on others to cull the historical records and have cited them to support what I thought was accurate historical reporting. In the past decade or so, there have been some broad claims about the historical record that contradict conventional wisdom. Those views have gained substantial traction. I believe that none of the prior accounts properly report or assess the origins of the Fourth Amendment and the central role John Adams played. That is the purpose of the article, which contains new information and adds a new context to the framing of the Amendment.

Courts and scholars seeking the original understanding of the Fourth Amendment have confronted two fundamental questions: what practices was the Amendment designed to regulate; how should a constitution regulate such practices? To inform the answers to those questions, this article offers a new perspective of, and information on, the historical record regarding the framing of the Amendment. It also presents for the first time a detailed examination of John Adams’ fundamental influence on the language and structure of the Amendment and his knowledge of, and views on, how to regulate searches and seizures.

Most of the language and structure of the Fourth Amendment was primarily the work of one man, John Adams. Upon examination, Adams stands out in the founding era as having profound opportunities to examine search and seizure practices and as having the most important role in formulating the language and structure of the Fourth Amendment. If the intent of the Framers is a fundamental consideration in construing the Constitution, as the Court has repeatedly told us it is, then John Adams’ knowledge and views should be considered an important source for understanding the Fourth Amendment. More fundamentally, Adams’ appreciation of search and seizure principles reflects a broader mosaic that demonstrates that the Fourth Amendment was the product of a rich jurisprudence on search and seizure. That jurisprudence offered a structured series of principles to regulate the search and seizure activities of that era and the Amendment was not merely a reaction to general warrants. Further, although the framing era sources did not always agree on the details of the criteria for regulating searches and seizures, they were united in seeking objective criteria to measure the propriety of governmental actions. That quest was firmly embedded into the language and structure of the Fourth Amendment.

"Call for a Response (CFR) in My Non-Unanimous Criminal Verdict Case"

From Eugene Volokh at The Volokh Conspiracy:

I’m glad to say that yesterday the Supreme Court asked the State of Oregon to file a response in Herrera v. Oregon, the case in which I filed a certiorari petition challenging Oregon’s practice of allowing criminal convictions by nonunanimous juries. (Louisiana is the only other state that allows such convictions in cases to which the Jury Trial Clause applies.)

Such a CFR is necessary but not sufficient for the Court to agree to hear the case. The CFR is a positive signal, since it shows that at least one Justice thought the case had enough possible merit to justify asking that the state respond; most unresponded-to petitions are denied without any response being requested. But of course the Court might well still deny even though it has asked for the response.

Arya on Using Graham v. Florida to Challenge Juvenile Transfers

Neelum Arya, the Research and Policy Director at the Campaign for Youth Justice, has posted Using Graham v. Florida to Challenge Juvenile Transfer Laws (forthcoming in the Louisiana Law Review) on the organization's website. Here is an abstract:

The article suggests that the recent Supreme Court opinion in Graham v. Florida abolishing life without parole sentences for juveniles (JLWOP) convicted of nonhomicide crimes, may be used to challenge juvenile transfer laws.  Part I provides a description and analysis of the Graham opinion and reviews the Court's Eighth Amendment jurisprudence through to their recent ruling declaring JLWOP sentences for nonhomicide crimes unconstitutional. In Part II, Arya argues that youth have a right to rehabilitation found under the state's police power.   In addition, Graham discusses three types of difficulties that adult decisionmakers in the criminal justice system have with respect to youth that may be useful to challenge transfer laws. First, judges and experts have problems evaluating the culpability and maturity of youth.  Second, adult perceptions of youth are biased by the severity and manner in which the crimes were conducted. Third, counsel have difficulty representing youth in the adult system.  Arya suggests these factors apply to all youth prosecuted in the adult criminal system, regardless of offense charged or sentence imposed. Finally, in Part III, Arya encourages lawyers to revisit these prior challenges in both individual cases and as part of impact litigation strategies to declare all transfer statutes, or portions of them, unconstitutional.

Burke on "The Wire"

Alafair S. Burke  (Hofstra University - School of Law) has posted I Got the Shotgun: Reflections on The Wire, Prosecutors and Omar Little (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The Wire is a show about institutions, the people trapped inside of them, and a society made static by their inaction, indifference, and ineptitude. Whether the series was exploring the drug trade, police departments, city hall, unions, or public schools, the individual actors within those systems were depicted as having little control over either the institutions or their individual fates within them. As a result, the constituencies supposedly served by those institutions continually got the shaft.

To say that The Wire is about the tolls of unmitigated capitalism and inflexible bureaucracies is not to say, however, that the show is silent on, or indifferent to, the criminal justice system that encompasses its main characters. I became especially intrigued by an episode in the first season in which police and prosecutors rely on the testimony of Omar Little in a murder trial, despite doubts about Omar’s first-hand knowledge of the crime. This essay is a reflection on the depiction of law enforcement in The Wire, both generally and with respect to the single scene that first made me a Wire addict.

Wright & Miller on Prosecutorial Accountability

Ronald F. Wright (pictured) and Marc L. Miller  (Wake Forest University - School of Law and University of Arizona - James E. Rogers College of Law) have posted The Worldwide Accountability Deficit for Prosecutors (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:

In democratic governments committed to the rule of law, the prosecutor must be accountable both to the people and to their laws. The theoretical need for prosecutor accountability, however, meets practical shortcomings in criminal justice systems everywhere. Because individual responsibility is the origin of good behavior among prosecutors, it does not generate the level of public trust that one might expect in a government of laws. Institutional strategies to guarantee prosecutor accountability all fall short of the mark. Call it the accountability deficit.

The answers that various legal systems offer to this problem appear at first to be quite different. Prosecutor accountability in the United States builds on electoral accountability. This external check is designed to compensate for the shortcomings of weak judicial review and overbroad criminal codes in the United States. By contrast, the rest of the world’s criminal justice systems rely on internal bureaucratic accountability. Prosecutors join a centralized bureaucracy and then follow explicit articulated guidance in crucial areas of the job, enforced by regular internal review.

The two forms of accountability, however, have more in common than casual observation suggests. Systems in the United States, driven by long-term growth in prosecutors’ offices and the arrival of information technology, rely more heavily all the time on internal bureaucratic controls. Likewise, systems elsewhere in the world rely on public oversight and respond to public input. Systems with a blend of internal and external controls on criminal prosecutors are now the norm around the world.

This convergence of the two main mechanisms for achieving prosecutorial accountability, however, does not mean that the accountability gap is about to disappear. The scale of the responses that will close the accountability gap must combine boldness and practicality, as modeled in the law of sentencing in the 1980s.

Argument transcript in case on damages in prison suit under Religious Land Use and Institutionalized Persons Act

The transcript in Sossamon v. Texas is here.

Argument transcript regarding regulation of violent video games

The transcript in Schwarzenegger v. Entertainment Merchants is here.

Brown on Prosecutors' Powers and Obligations in Plea Bargaining

Darryl K. Brown  (University of Virginia School of Law) has posted American Prosecutors’ Powers and Obligations In the Era of Plea Bargaining  (TRANSNATIONAL PERSPECTIVES ON PROSECUTORIAL POWER, Erik Luna, ed., Forthcoming) on SSRN. Here is the abstract:

This paper, written as a chapter for a forthcoming volume on international comparisons of prosecutors’ roles in various jurisdictions, provides a basic overview of the different rules and practical constraints on American prosecutors. It offers a critical view of how state and federal prosecutors differ in the exercise of their discretion and ability to influence adjudication outcomes according to variations in such factors as sentencing rules, control over investigations, resource constraints and the pervasiveness of plea bargaining. It describes, for instance, the effect of generally stronger evidence gathering in federal prosecutions and the ability of charging discretion to compensate for weak government evidence in achieving convictions through pleas.

Logan on Migration of Sex Offender Provisions

Wayne A. Logan  (Florida State University - College of Law) has posted Prospects for the International Migration of U.S.-Style Sex Offender Registration and Community Notification Laws (International Journal of Law and Psychiatry, Vol. 34, 2011) on SSRN. Here is the abstract:

Sex offender registration and community notification laws have proved enormously popular in the U.S. This is so even though the avowed sexual violence preventive benefits of the laws remain largely untested and unproven; indeed, it remains an open question whether the laws actually have anti-therapeutic and criminogenic effect. This paper, part of a symposium, examines why this data deficit has characterized the social and political evolution of the laws and considers the prospects for the migration of U.S.-style registration and community notification to other nations.

Dissent from cert denial in habeas case involving judicial comment on evidence

Justice Alito dissents, joined by the Chief Justice and Justice Scalia, in Wong v. Smith. Justice Alito would grant cert to "correct the Ninth Circuit's error" in granting habeas, arguing that the sparse case law limiting coercive judicial comment did not render the state courts' conclusion of constitutionality unreasonable under the AEDPA.

Today's criminal law/procedure cert grants

The description of the issue is from a post on ScotusBlog, which also links to opinions and cert papers:

• J.D.B. v. North Carolina: Whether the North Carolina Supreme Court was correct in barring consideration of age as a factor in determining when Miranda warnings are required.
• Davis v. United States: Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.
• Turner v. Price: 1) Whether an indigent defendant has a constitutional right to appointed counsel at a civil contempt proceeding that results in his incarceration; and 2) whether the Court has jurisdiction to review the decision of the South Carolina Supreme Court.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	200	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
2	200	An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [3rd last week]
3	183	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010 [2nd last week]
4	178	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010 [5th last week]
5	174	Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010 [6th last week]
6	156	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [8th last week]
7	151	What Might Retributive Justice Be? Dan Markel, Florida State University College of Law, Date posted to database: September 4, 2010
8	139	Rethinking Proportionality Under the Cruel and Unusual Punishments Clause John F. Stinneford, University of Florida Levin College of Law, Date posted to database: August 20, 2010 [9th last week]
9	135	The Concept of Evil in American and German Criminal Punishment Joshua Kleinfeld, Goethe University Frankfurt - Cluster of Excellence Normative Orders, Date posted to database: August 30, 2010 [new to top ten]
10	129	The Laws of War as a Constitutional Limit on Military Jurisdiction Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 19, 2010