November 27, 2010
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog, which also links to briefs and opinions below:
Monday, November 29
- Wall v. Kholi: Inmates have one year to file a habeas challenge to their sentence in federal court after conviction. The running of that time is delayed while the conviction is under review in state court. Is the time also tolled while a state court considers an inmate’s request for a sentence reduction?
- Walker v. Martin: Does a state law that prohibits an inmate from challenging his conviction in state court if he “substantially delayed” in bringing the challenge also bar the inmate from filing an otherwise timely habeas challenge in federal court?
Tuesday, November 30
- Schwarzenegger v. Plata: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the Prison Litigation Reform Act?
November 26, 2010
Bandes on Neuroscience: Promise and Pitfalls
Susan A. Bandes (DePaul University - College of Law) has posted The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure (Ohio State Journal of Criminal Law, Vol. 8, No. 1, 2010) on SSRN. Here is the abstract:
This short essay is the conclusion to a symposium entitled Neuroscience, Cognitive Psychology and the Criminal Justice System. The symposium, based on papers presented at an AALS Criminal Justice Section panel at the 2010 Annual Meeting, contains an introduction by its guest editor Deborah Denno, and articles by Alafair Burke, John Darley, and Andrew Taslitz.
November 25, 2010
Sacharoff on Miranda's Hidden Right
Miranda v. Arizona said that a suspect can waive her right to remain silent but also that she must invoke it. How can both be true about the same right? This article argues that the Miranda "right to remain silent" actually contains two sub-rights: the right not to speak, and the right to cut off police questioning. The Court has never distinguished these as two separate rights - instead usually using the term "right to remain silent" for both - and has thus created confusion over what can be waived and what must be invoked. But when we separate the two rights, we see that Miranda implicitly held that a suspect can waive the right not to speak but must invoke the right to cut off questioning - a premise implicitly confirmed by both the majority and the dissent in Berghuis v. Thompkins.
November 24, 2010
Dempsey on International Criminal Law and Philosophy
Michelle Madden Dempsey (Villanova University School of Law) has posted Breaking New Ground in International Criminal Law and Philosophy (Transnational Legal Theory, Vol. 1, No. 3, p. 453, 2010) on SSRN. Here is the abstract:
This is a book review of Larry May and Zachary Hoskins, eds., International Criminal Law and Philosophy (Cambridge University Press, 2010) 258 pp.
"Petition for Certiorari Filed in Pineda-Moreno, The Ninth Circuit GPS Case"
Orin Kerr at The volokh Conspiracy explains why he thinks the petition should be denied:
The puzzling part about the panel decision in Pineda-Moreno was that it essentially undid the government’s concession: It held that the warrantless search was okay even though the driveway was concededly part of the curtilage. That’s wrong, in my view. The government’s concession should have lost the case for them, and the Ninth Circuit was wrong to bend over backwards to undo the concession. But this strange context means that there isn’t a clear split: The approach of other circuits would be to say that going on to the driveway wasn’t a search because it didn’t cross onto the curtilage, which is the same result as the Ninth Circuit reached. So although the analysis is rather strange, the basic result is the same as other circuits have found with similar facts.
Denno on Neuroscience, Cognitive Psychology and the Criminal Justice System
Deborah W. Denno (Fordham University School of Law) has posted Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction (Ohio State Journal of Criminal Law, Vol. 8, pp. 1-6, 2010) on SSRN. Here is the abstract:
This introduction discusses a symposium on the linking of neuroscience, cognitive psychology, and law. Although the symposium is one of a number of projects on neuroscientific approaches to the legal system that have been organized over the years, readers will see something very different in the articles that follow. The contributions cover a distinctively important niche - a pragmatic focus on the practices of key law enforcement actors, namely the police, prosecutors, and punishers in the criminal justice community. By examining the decision-making of these individuals and groups in real world circumstances, through a range of brain sciences, the symposium’s authors enhance the value that any single scientific discipline can give while also offering proposals that could be implemented immediately.
November 23, 2010
Bienen on Capital Punishment in Illinois
Leigh Buchanan Bienen (Northwestern University School of Law) has posted Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and a New Saliency for Issues of Cost (Journal of Criminal Law and Criminology, Vol. 100, No. 4) on SSRN. Here is the abstract:
In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state’s attorneys, and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county level on more than 500 capital prosecutions, the largest proportion from Cook County, which resulted in 17 death sentences imposed. More than 100 million dollars of state money has been spent out of the Capital Litigation Trust Fund alone by county state’s attorneys, appointed private counsel, and by public defenders. The availability of state funds changed the dynamics and economic and bureaucratic incentives for capital prosecution. In addition, over 64 million dollars has been spent by the state, the city of Chicago, and the counties in judgments involving wrongful convictions. This article presents data on capital prosecutions and murders across the state, and publishes for the first time the State’s Attorney’s own adopted guidelines for the selection of cases for capital prosecution. When patterns of capital prosecution are examined across the state as a whole, it becomes clear that the counties most likely to spend the state’s money on prosecuting first degree murder cases capitally are not those jurisdictions with the largest number of first degree murders. Nor is there a correspondence between the number of county capital prosecutions, the number of death sentences imposed, the number of murders or the murder rate in that county, and the amount of money spent by the county from the Capital Litigation Trust Fund. County by county disparities in capital case prosecutions and in expenditures of state money are startling. The absence of centralized review and the presence of many potential areas of conflicts of interest should submit the existing system to close scrutiny at this time of budgetary pressure.
Cahill on Punishment Pluralism
Michael T. Cahill (Brooklyn Law School) has posted Punishment Pluralism (RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:
This book chapter speculates that contemporary understandings of retribution have come to see it either as a good, or as a deontological side constraint on action, rather than as an affirmative deontological duty, as earlier versions saw it (or purported to see it). Yet if retribution is formulated as a good or a constraint, it loses its centrality as a basis for punishment: under such a view, retribution may be one consideration, among others, favoring (or opposing) punishment, but it cannot justify punishment except in a very narrow sense. Accordingly, characterizing retributivism as a "theory of punishment," which was never entirely apt, now seems untenable. As an alternative, I favor an overtly pluralistic scheme in which various principled and practical considerations, including retributivist considerations, may inform punishment policy at both the systemic and the individual level. To this end, the chapter surveys the most significant arguments for and against punishment, as a first step toward an account that properly balances the competing ends at stake instead of privileging one over the rest.
November 22, 2010
King & Proctor on Padilla's Puzzles
Nancy J. King (pictured) and Gray Proctor (Vanderbilt Law School and affiliation not provided to SSRN) have posted Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts (Federal Sentencing Reporter, Vol. 23, No. 3, February 2011) on SSRN. Here is the abstract:
This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief. This draft includes citations to emerging case authority available as of October 28, 2010.
Debate on Right to Remain Silent
Professors Charles Weisselberg (Berkeley) and Stephanos Bibas (Penn) engage in an online debate on the right to remain silent, discussing the Supreme Court’s decision in Berghuis v. Thompkins, at PENNumbra. From the summary:
Professor Weisselberg . . . recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda v. Arizona’s prophylactic rule and established a new one that fails to protect the rights of suspects.
Professor Bibas . . . argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect the innocent, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions are free from compulsion.
"For Judges, Lawyers and Fellow Jurors, the Challenges of Dealing With a Holdout"
This interesting article is in The New York Times:
Jurors’ notes in any number of cases have disclosed the infinite variety of holdout-induced frustration, including descriptions of chairs thrown and insults hurled.
Holdouts can be oddballs and misfits. But they can also be people devoted to the principle that a just conviction requires true unanimity, not compromise. So lawyers and jury consultants say the legal risks are great and the strategy uncertain when there are hints of a holdout.
November 21, 2010
Top-Ten Recent SSRN Downloads
|1||285||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
|2||284||The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law
New York University School of Law Immigrant Rights Clinic,
Date posted to database: October 17, 2010
|3||214||The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes
University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: August 19, 2010
|4||199||Deportation is Different
Peter L. Markowitz,
Benjamin N. Cardozo School of Law,
Date posted to database: August 28, 2010
|5||190||The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010
|6||177||Is the Rome Statute Binding on Individuals? (And Why We Should Care)
University of Nottingham School of Law,
Date posted to database: October 12, 2010 [new to top ten]
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [6th last week]
|8||165||The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric?
University of South Carolina - School of Law,
Date posted to database: October 11, 2010
|9||160||A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office
Butler University College of Business,
Date posted to database: October 5, 2010
|10||157||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010 [new to top ten]
"SCOTUS in decline in quality of work"
Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.
The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.
In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.