CrimProf Blog

Thorburn on Criminal Law as Public Law

Malcolm Thorburn (Queen's University - Faculty of Law) has posted Criminal Law as Public Law on SSRN. Here is the abstract:

In this chapter, I propose a novel way of justifying the practices of the criminal justice system — a position I call a ‘public law account’ of criminal justice. I call it a ‘public law’ account because it conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate. Like the new legal moralism of Antony Duff and John Gardner, my account is an attempt to justify the workings of the criminal justice system by demonstrating that they are just what is required for us to be true to a set of roles and relationships that have intrinsic value. But the relevant roles and relationships for criminal justice are not those we understand from ordinary morality. Rather, they are the legally defined roles — such as private citizen, police officer, judge, etc — that we take up within a larger constitutional order that, I shall argue, we could not abolish without abandoning necessary preconditions for our moral life.

The advantages of this approach are several. First, because the liberal constitutional order is concerned with protecting our liberty rather than with guiding our moral choices, it is consistent with a less moralistic criminal justice system than the one Duff and Gardner feel impelled to endorse. Second, because the relations in the constitutional order are set out in terms of the rightful use of coercion, the public law account has the resources to explain when the state is justified in using coercive force toward its citizens. This means that we are able to provide an account of criminal justice that does not have to explain away the centrality of coercive state power. And finally, because Anglo-American criminal law doctrine is fundamentally concerned with the requirements of liberal constitutionalism rather than the enforcement of morality, we find that the public law model is a much better fit with existing doctrine than the moralist alternative.

Larsen on Bargaining Inside the Black Box

Alli Orr Larsen (College of William and Mary) has posted Bargaining Inside the Black Box (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

When jurors are presented with a menu of criminal verdict options and they cannot reach a consensus among them, what should they do? Available evidence suggests they are prone to compromise – that is, jurors will negotiate with each other and settle on a verdict in the middle, often on a lesser-included offense. The suggestion that jurors compromise is not new; it is supported by empirical evidence, well-accepted by courts and commentators, and unsurprising given the pressure jurors feel to reach agreement and the different individual views they likely hold. There are, however, some who say intrajury negotiation represents a failure of the jury process. Conventional wisdom clings to the notion that criminal verdicts reflect a jury’s unanimous factual assessment. That notion is thwarted when a juror votes for a verdict as a compromise, as a second choice to the one he thinks best reflects reality. To date, therefore, compromise verdicts are typically dismissed as examples of maverick jurors dishonoring their oath to apply the law and seek the truth.

This article challenges that conventional wisdom by way of a new analogy. If jurors each view the case differently and nonetheless negotiate with each other to reach a deal, why is that wrong when 95% of criminal convictions are the result of a similar process? I seek a new understanding of compromise verdicts by making a novel comparison to plea bargaining. I argue that the former should be understood in the context of the latter, and that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system. Instead of dismissing intrajury negotiation as illegitimate, I argue that we should accept it as a reality and from there seek to improve it with lessons drawn from plea negotiations.

“Happy Birthday, Dear Murder Victim”

Eugene Volokh at The Volokh Conspiracy notes this recent Georgia Supreme Court case addressing the propriety of a prosecutor's producing a birthday cake and singing "Happy Birthday" to the child victim in a murder case. All the justices agreed that the performance was improper, but the majority concluded that defense counsel's failure to object was a "strategic decision" that precluded reversal.

Veterans’ Courts: The Return of the Abuse Excuse? (Dripps)

Writing in the Veteran’s Day edition of the New York Times, Ronald D. Castille, Chief Justice of the Pennsylvania Supreme Court, and a Viet Nam veteran himself, celebrates the growing movement to provide specialized courts for offenders with a record of military service. 

            Justice Castile writes that “too many proud veterans resist” assistance from the VA and allied private organizations, and “as a result, find themselves on the wrong side of the law, for reasons related more to their experience in service to country than to criminal intent.”  As Justice Castille notes, the first such court in recent memory was established through the efforts of Judge Robert T. Russell, Jr. in Buffalo, New York.  According to Justice Castille, Judge Russell’s program has been completed by 90% of those who enter it, without any case of recidivism.  Similar courts are being experimented with throughout the country, including in Orange County, just up the road here in Southern California.

            In general I applaud anyone who dares to attempt less punitive experiments in American criminal justice.  But I find this particular experiment troubling, because:

(1)  It sounds to me very like the “abuse excuse” long rejected by the law, and denounced with particular certitude by conservatives.  Are veterans responsible for criminal conduct or are they not?  If the answer is “sometimes” or “kind of sort of”, what then of the cases like State v. Norman, where if defendant’s evidence were believed she had a much rougher time than many whose, undeniably admirable, military service included noncombat roles even in active theaters of war?  

 

     I do not think it an adequate reply that these courts as currently envisioned are limited to “nonviolent” crimes including “nonviolent” felonies, because 

     (a)  “Nonviolent” may include such offenses as dealing drugs and DUI that our legislatures have resolutely classified as harmful and dangerous.  If the conduct isn’t really harmful it shouldn’t be criminal for anyone.  If it is, then people with military service records shouldn’t get special treatment, so long as they have criminal responsibility  (i.e., are not legally insane).  It is worth pointing out that claiming the insanity defense successfully triggers automatic civil commitment, which is obviously not part of these special court proceedings.  We return to the question of whether “partial responsibility” is a plausible notion, and to the consensus that it wasn’t a plausible notion when claimed by civilians. 

     (b)  In some ways these low-level diversion decisions are the most invidious, because they involve

          (i)  Imprisonment for some, and freedom for others.  Explain, please, to one of the usual suspects that “you, sir, are being sent to jail because you did not serve in the war.”  Even the most hapless of the usuals might well reply:  “Where is that in the statute?”; and

          (ii)  The felony classification disenfranchises.  So a special break to veterans whose conduct and mental state otherwise render them felons has the effect of privileging the political demographic represented by the military, to the disadvantage of the political demographic represented by nonmilitary felons.

          (iii)  When push comes to shove, i.e., in domestic violence and, ultimately, homicide, cases, are the proponents of specialized veteran courts ready to renounce a free-standing (i.e., without insanity’s automatic commitment consequences) defense?  If the line is to be drawn there, then the whole experiment is unprincipled; vets are not responsible for modest crimes, but are responsible for big ones.  How’s that? 

(2)   I thought conservatives were impressed by the power of deterrence.  Is there something especially undeterrable about veterans?  The very “camaraderie” said to unite veterans includes scuttlebutt—the in-group knowledge that informs members of a unit what regulations matter in this outfit and what don’t.  That word will get around in a hurry—“no worries, you drive, there’s a vets courts for the first one.”  People can (and if it hasn’t happened yet, eventually will) get killed that way.   

     But if we doubt the power of the legal threat to deter veterans, why should we think the legal threat deters others, many of them too dysfunctional even to be eligible for service? 

(3)  By way of retributive justice, how about special courts for, say, parents who have recently buried the body of a child who died below the age of ten?  

     But if that’s a case to be conceded, you can easily see the long parade of private catastrophes, unassociated with national honor, that can credibly be described as imposing unbearable pressure.  The Norman case is suggestive but sadly very far from exhaustive.  Military life can be tough.  Find me an easy life.  That, at least, has been the law’s response to victims of domestic violence, victims of childhood sexual abuse, heroin addicts, the mentally retarded, and on and on. 

(4)  Why is the criterion for diversion said to be military service, rather than military service linked by evidence to PTSD?  The modern military has an enormous ratio of tail to tooth; many military assignments are functionally identical to private sector jobs.  Why should somebody whose military service (admirable and honorable as it surely is) involved driving a truck in Hawaii be eligible for more lenient criminal justice than civilians who’ve had awful lives they didn’t volunteer for?  Maybe these military-only diversion programs screen for that, but it is by no means clear from Justice Castille’s op-ed whether or how they do this. 

(5)  I am impressed by the pragmatic case for diversion of an offending demographic with special rehabilitative needs.  But why limit this to veterans?  In Orange County, for example, the veterans court is one among many for identifiable “special needs” populations.  Do we really think that veterans are uniquely reformable, anymore than we think they are uniquely undeterrable?  And before giving a standing ovation to Justice Castille’s report that Judge Russell’s court has a 90% success rate, we might

     (a) recall the disappointing history of rehabilitation generally, especially the consistent difficulty of replicating local successes led by charismatic (and I mean this absolutely without irony, the folks who do this really are) local heroes;  and

     (b)  note that Judge Russell’s program is only now a pilot for replication by various agencies. The Eerie County program has, according to this last site, “successfully graduated dozens of veterans who have steered their lives away from the traps that many others before them have fallen into in the absence of such a program. “  What would you say of a trial rehab program for, say, inner-city juvenile offenders, that could boast “dozens” of graduates without providing data on entry selection (keep the likely failures out and the success rate will be high) and does not report how many enrollees fail to “graduate” along with the “dozens” of successes? 

Finally,  

(6)  I know the Feeney case upheld a veterans’ preference in state employment despite disparate impact against women.  Still, it is one thing to pass out goodies; it is another to send people to prison.  Recall that a preference for veterans in criminal sentencing is available to women only on a basis limited de facto, and available not at all, de jure, to the openly gay or to people with disabilities.  To say that there might be some rational basis for these discriminations within the military itself, in the interests of military efficacy, is one proposition.  To bootstrap a discriminatory rule of criminal punishment from this premise is a very different matter indeed.  Recall our previous sentencing colloquy, modified as follows:  “You, sir, are being sent to prison, and losing your right to vote, and to possess firearms, because you did not serve in the war.”  “But, your honor, they wouldn’t let me.”  “That’s no concern of ours here, the law’s the law.” 

 Who could be against that? 

Wright on Crime Predictions

Ronald F. Wright  (Wake Forest University - School of Law) has posted Fragmented Users of Crime Predictions (Arizona Law Review, Vol. 52, No. 1, 2009) on SSRN. Here is the abstract:

In this commentary on an article by Henderson, Wolfers, and Zitzewitz, proposing the use of open markets for the prediction of crime, I explore a few implications stemming from one fact. The prediction market concept — an effort to coordinate decentralized sources of information — would operate in an exceptionally decentralized world of users, a world where the institutional users of crime predictions are fragmented among many different locations and levels of government.

The social response to crime in the United States today still remains quite decentralized. Fragmented local institutions, especially police departments and prosecutors’ offices, would find it difficult to use crime prediction markets. Henderson, Wolfers, and Zitzewitz have envisioned the sellers in their markets more carefully than the buyers of predictions. The majority of the potential users operate in fragmented local institutions, surrounded by thin markets that are not likely to generate reliable predictions. A smaller number of purchasers, such as state-level correctional authorities, would use markets to overcome the greatest information challenge at the higher level: coordinating input from many incompatible sources. I close by noting that a few actors at the local level — in particular, sentencing judges — combine features of fragmented and centralized users. The ability of local actors to use far-flung crime data poses the question of whether markets at the case level would be either appealing or possible.

"Internet Stings & Modern Victims"

Crime and Consequences has this post on a current impossibility case from the Washington Supreme Court, upholding the conviction.

"A Quantiative Look at Reasonable Doubt"

Eugene Volokh at The Volokh Conspiracy notes this post by Steve Landsburg at The Big Questions. After setting forth a hypo that might be fruitfully used in class to show how bad most folks are at estimating likelihood, Landsburg offers some thoughts on the probabality he might offer as proof beyond a reasonable doubt:

70-74% certainty sounds like roughly the right standard to me in a world where the police can be counted on not to take advantage of that standard by falsifying evidence against people they don’t like. Given that prospect, though, I think I prefer something a little tougher — though not as tough as 98%.

Benforado on Weapons and the Increasingly Dangerous Right to Self Defense

Adam Benforado  (Drexel University - Earle Mack School of Law) has posted Quick on the Draw: Implicit Bias and the Second Amendment (Oregon Law Review, Vol. 89, No. 1, p. 1, 2010) on SSRN. Here is the abstract:

African Americans face a significant and menacing threat, but it is not the one that has preoccupied the press, pundits, and policy makers in the wake of several bigoted murders and a resurgent white supremacist movement. While hate crimes and hate groups demand continued vigilance, if we are truly to protect our minority citizens, we must shift our most urgent attention from neo-Nazis stockpiling weapons to the seemingly benign gun owners among us - our friends, family, and neighbors - who show no animus toward African Americans and who profess genuine commitments to equality.

Our commonsense narratives about racism and guns - centered on a conception of humans as autonomous, self-transparent, rational actors - are outdated and strongly contradicted by recent evidence from the mind sciences.

Advances in implicit social cognition reveal that most people carry biases against racial minorities beyond their conscious awareness. These biases affect critical behavior, including the actions of individuals performing shooting tasks. In simulations, Americans are faster and more accurate when firing on armed blacks than when firing on armed whites, and faster and more accurate in electing to hold their fire when confronting unarmed whites than when confronting unarmed blacks. Yet, studies suggest that people who carry implicit racial bias may be able to counteract its effects through training.

Given recent expansions in gun rights and gun ownership - and the hundreds of thousands, if not millions, of private citizens who already use firearms in self-defense each year - this is reason for serious concern. While police officers often receive substantial simulation training in the use of weapons that, in laboratory experiments, appears to help them control for implicit bias, members of the public who purchase guns are under no similar practice duties.

In addressing this grave danger, states and local governments should require ongoing training courses for all gun owners similar to other existing licensing regimes. Such an approach is unlikely to run into constitutional problems and is more politically tenable than alternative solutions.

Goodman, Caldwell & Chase on Transparency in Death Penalty Decisions

Christine Chambers Goodman (pictured), Harry M. Caldwell and Carol A. Chase (Pepperdine University - School of Law , Pepperdine University - School of Law and Pepperdine University) has posted Unpredictable Doom and Lethal Injustice: An Argument for Greater Transparency in Death Penalty Decisions (Temple Law Review, Vol. 82, 2009) on SSRN. Here is the abstract:

In this Article, Professors Goodman, Caldwell, and Chase address prosecutorial arbitrariness of charging decisions in capital cases.

After outlining the constitutional limits on imposing the death penalty established as a result of the Supreme Court's decision in Furman v. Georgia, the authors discuss the study that they conducted on behalf of the California Commission for the Fair Administration of Justice (CCFAJ). In this study, the authors surveyed California district attorneys to learn more about how they decide whether to seek the death penalty in qualifying cases, and sought statistical information about each death-eligible case. The response to this survey by the California district attorneys offices, as outlined in this Article and discussed more fully in the authors' report to the CCFAJ, was limited, with nearly one-third failing to provide any response at all, and only fourteen of the fifty-eight offices completing the survey in full.

The authors then provide an expanded analysis of prosecutorial arbitrariness in charging decisions in all thirty-seven U.S. states that still allow death sentences. They focused on each state's statutory scheme setting forth criteria for seeking the death penalty, and determined that the more expansive the list of death-qualifying criteria is, the greater the potential for prosecutorial abuse of discretion in filing capital cases. The authors also provide the following statistics for each state between 1996 and 2006: state population, number of statutory foundational death qualifiers, number of death sentences, number of sentences to life without parole, and the number of sentences for premeditated murder.

This is followed by a discussion of the Federal Death Penalty Act and the Federal Protocol in filing death penalty cases. The authors suggest that these be used as models to reduce the potential for prosecutorial arbitrariness in capital cases. They also address the need to balance prosecutorial discretion with fairness in seeking the death penalty.

Finally, they provide several suggestions for for ensuring a more just use of capital punishment. These include narrowing the statutory categories of death-eligible crimes, implementing and following publicly disclosed charging criteria and procedures, increased and centralized review of charging decisions, curtailing the ability of elected officials to seek the death penalty, judicial review of charging decisions, and improved record keeping for capital case statistics.

Slobogin on Citizens United and Corporate and Human Crime

Christopher Slobogin  (Vanderbilt Law School) has posted Citizens United and Corporate and Human Crime (The Green Bag, Forthcoming) on SSRN. Here is the abstract:

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently, Citizens United reinforces the long-accepted but still highly controversial proposition that, despite their inanimate nature, corporations can be criminally prosecuted for harm they cause. Less obviously, Citizens United provides fodder for those who would soften current corporate liability and punishment rules. Less obviously still, the decision could bolster the case for expanding corporate criminal procedure rights. Finally, if the latter three developments come to pass, Citizens United might also have a significant impact on how the criminal justice system treats street criminals. After all, the courts can hardly withhold from human offenders and suspects the dispositional breaks and procedural rights they have granted non-human corporations. Right?

Transcript of oral argument in federal case challenging state conviction based on facts not raised in state court

The transcript in Cullen v. Pinholster is here.

Waldron on Vagueness and the Guidance of Action

Jeremy Waldron  (New York University - School of Law) has posted Vagueness and the Guidance of Action on SSRN. Here is the abstract:

This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she stands so far as the law’s application is concerned. And these are thought to be affronts to the Rule of Law. In this essay, I attempt to address those objections, using as a paradigm the “reasonable speed” statute considered in State v. Schaeffer 96 Ohio St. 215; 117 N.E. 220 (1917). I argue that standards do provide guidance for action: they guide the use of our practical reasoning not just to apply a given rule but to figure out what kind of action is appropriate in varying circumstances. In that sense they are as respectful of our dignity and our capacity for agency as rules are (in their different way). (These questions are pursued partly in the context of Joseph Raz's conception of authority.) I also consider issues about fairness and the possible chilling effect of using rules, taking my lead from comment of the court in State v. Schaeffer that it was precisely the intention of the Ohio statute in question to chill the enthusiastic and aggressive driving of (what the court called) “[t]he reckless, wanton speed maniac.” Finally some of the insights of this essay are applied to issues about the interpretation of statutes prohibiting torture, and the possible vagueness of those prohibitions.

"The New Miranda Warning"

Michael D. Cicchini, a criminal defense lawyer and author, has this post at the Marquette University Law School faculty blog, suggesting how the warning might be modified to capture Miranda's limiting case law.

Court rejects habeas based on violation of state law

The per curiam opinion in Wilson v. Corcoran is here.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	248	Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010 [new to top ten]
2	207	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 [1st last week]
3	206	An e-SOS for Cyberspace Duncan B. Hollis, Temple University - James E. Beasley School of Law, Date posted to database: September 3, 2010 [2nd last week]
4	191	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010 [3rd last week]
5	184	Statistical Knowledge Deconstructed Kenneth W. Simons, Boston University - School of Law, Date posted to database: September 7, 2010
6	181	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010 [4th last week]
7	162	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [6th last week]
8	152	A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office Mike Koehler, Butler University College of Business, Date posted to database: October 5, 2010 [new to top ten]
9	150	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 [8th last week]
10	140	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 [9th last week]