December 11, 2010
Ross on Prisoner Resistance to Abuse
Jeffrey Ian Ross (School of Criminal Justice - University of Baltimore) has posted Resisting the Carceral State: Prisoner Resistance from the Bottom Up (Social Justice, Vol. 36, No. 3, pp. 28-45, 2010) on SSRN. Here is the abstract:
When an individual is sentenced to jail or prison, or given some other correctional sanction, the state has numerous moral and legal obligations including providing a modicum of protection and safety to the persons who are incarcerated therein. When sentences, especially jail and prison conditions fall short of these guarantees by failing to meet these obligations and protections, as they frequently do, numerous constituencies may respond. With respect to inmates, their reactions can vary along a continuum, from adaptations, to low intensity and difficult to detect protest actions, to overt and wide scale institutional violence. These later reactions can be easily interpreted as resistance to the crimes of states. This paper briefly reviews the most dominant and deleterious prison conditions in American jails and prisons, and the dominant forms of inmate adaptations and resistance to these crimes of the state. Finally, the article analyzes state responses to prisoner resistance, thereby capturing the dialectal nature of this process.
Yesterday's criminal law/procedure cert grant
The new criminal sentencing case the Court agreed to review is Tapia v. U.S. (10-5400), testing whether a federal judge may give a convicted individual a longer prison sentence to promote rehabilitation. That issue has divided the federal Circuit Courts, the petition argued. The Court already is reviewing an aspect of the rehabilitation question in federal sentencing — in the case of Pepper v. U.S. (09-6822). The Justices, in fact, heard the Pepper case just last Monday.
December 10, 2010
Miller on the Fourth Amendment in Hotel Rooms
Jason C. Miller has posted Do Not Disturb: Fourth Amendment Expectations of Privacy in Hotel Rooms on SSRN. Here is the abstract:
Do Not Disturb addresses the sometimes thorny issue of when occupants of a hotel room have standing under the Fourth Amendment to object to an illegal search of the room. This becomes particularly problematic when the occupant is not a typical hotel guest or violates a hotel policy. The Tenth Circuit requires an occupant to prove that he or she is a registered guest of the hotel, while the Sixth Circuit holds that invalid registration is the hotel’s concern alone.
Although hotel room rooms pose interesting Fourth Amendment problems, such as invalid registrations, fake names, guests of guests, and guests who stay beyond the rental period, this paper argues that the expectation of privacy in hotels should be measured in the same way that the Fourth Amendment deals with other types of residences and proposes that courts universally apply a rule requiring the hotel to act first to terminate the expectation of privacy of a guest who violates hotel policy.
Hansen on Evidence Obtained During Extraordinary Renditions
Victor Hansen (New England Law) has posted Use and Misuse of Evidence Obtained During Extraordinary Renditions: How Do We Avoid Diluting Fundamental Protections? on SSRN. Here is the abstract:
This article considers and questions the ways in which grand schemes of rights infringement such as extraordinary rendition can translate into specific but also corrosive questions of accommodation in the law of evidence. This article enables us to see the extents to which questions considered to be either ‘grand’ or ‘minor’ in the context of counter-terrorism and human rights protections are, in fact, inter-connected. The article focuses on the use of information obtained from detainees who were subjected to extraordinary rendition. The article examines how the information obtained during these periods of extraordinary rendition might be used in any subsequent criminal prosecutions of the detainees. The article explores the rules in both U.S. Federal Court and the Military Commissions which govern the admissibility of evidence obtained during extraordinary renditions and questions whether evidence obtained under this practice should be admissible in any subsequent prosecutions of the detainees. The paper examines the likely corrosive impact that the use of this evidence could have on fundamental due process protections and concludes that while the admissibility of this evidence is problematic in any forum, trying these suspects in federal court is the best option available.
December 9, 2010
Goldman on Fourth Amendment Cases
Stanley A. Goldman (Loyola Law School Los Angeles) has posted Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases on SSRN. Here is the abstract:
Whether we are speaking of Hudson v. Michigan, Herring v. United States, Arizona v. Gant, Thornton v. United States or even though slightly older Illinois v. Wardlow, these cases represent a trend by the high court to limit the scope of both the 4th amendment and the exclusionary rule. The result is that law enforcement will obtain greater freedom to engage in stop and frisk as well as search and seizure without fear that the evidence may be excluded during the course of any subsequent criminal trial. The problem with these cases may be that they fail to recognize the societal costs of giving police such free reins without consequences. In this 25 page paper, the author summarizes and examines these and other recent United States Supreme Court cases and concludes that they are often being interpreted by lower courts to create broader powers in the police than the cases themselves actually provide. In some respects, this article is both an examination of what the cases "could" stand for if interpreted either broadly or narrowly. There is much for prosecutors in these cases, but there is also a surprising amount left to be argued by defense counsel, who may still find arguments for exclusion in the modifiers that are provided by either an essential 5th vote concurrence or by the majority opinion itself. If nothing else, this article provides a quick summary of the essentials of these transformative cases.
Tanguay-Renaud on Criminal Law and Reason
François Tanguay-Renaud (Osgoode Hall Law School - York University) has posted Understanding Criminal Law Through the Lens of Reason (Res Publica, Vol. 16, No. 1, p. 89, 2010) on SSRN. Here is the abstract:
This is a review essay of Gardner, John. 2007, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford: Oxford University Press, 288 pp.
December 8, 2010
Pursley on Penal Deference and US v. Comstock
Garrick B. Pursley (The University of Toledo College of Law) has posted Penal Deference and Other Oddities in United States V. Comstock (Duke Journal of Constitutional Law & Public Policy, Vol. 6, No. 1, 2010) on SSRN. Here is the abstract:
In upholding a federal statute authorizing civil commitment of "sexually dangerous" former federal prisoners, the Supreme Court in United States v. Comstock concluded that the Constitution’s Necessary and Proper Clause permits Congress to exercise implied powers that are inferred from other implied powers and dismissed the long-lingering view that Congress’s only implied powers are those directly derivable from enumerated powers. The Necessary and Proper Clause is rarely invoked, the Court has not previously embraced the narrower construction, and the trend for nearly a century has been to construe Congress’s Article I powers expansively. Thus, although Comstock has significant implications for the scope of national power, the Court’s conclusion is not terribly surprising and its implications are fairly clear. The surprising aspect of Comstock is its reasoning. In this brief essay, I discuss three oddities in the Comstock majority opinion: a permutation on conventional accounts of constitutional "dialogue" between Congress and the courts; a foray into the relationship between tort duties and the proper scope of constitutional power; and deference to the Executive’s interpretation of the statute that seems contrary to settled rules of deference and statutory construction. The implications of these analytical twists for constitutional theory and practice are less clear, but potentially significant. Comstock’s full impact, therefore, may be more complex and difficult to predict than it at first appears.
Dripps on the Substance-Procedure Relationship in Criminal Law
This chapter, contributed to Philosophical Foundations of Criminal Law, edited by Antony Duff and Stuart Green, forthcoming from Oxford in early 2011, takes up what it claims to be “the hardest problem” in criminal justice scholarship: the relationship between the substantive rules of primary conduct and secondary rules of official response to suspected violations of the primary rules. The chapter distinguishes three possible approaches to the relationship. The first is rationalism, the view that procedure’s mission is to find as accurately as resources permit the historical facts and faithfully to apply the legislature’s directives to the facts so found. The second is pluralism, the view that truth in adjudication is only one value among many deserving pragmatic consideration in the design of procedure. The third is reductionism, the view that substance and procedure are exchangeable inputs in a system that authorizes so many possible outcomes that outcomes in practice are determined by official discretion.
The chapter then suggests that rationalism and pluralism are largely compatible, because the popular departures from the principle of material truth follow from resources constraints, the negative dimension of the legality principle, or advance very important competing goals while detracting only modestly from the principle of material truth. Support for this compatibility thesis is found in comparative criminal procedure. The distinct if very gradual convergence of the inquisitorial and adversarial systems in practice suggests the general compatibility of rationalism and pluralism in theory.
Reductionism poses a difficult challenge to both rationalists and pluralists. As a descriptive matter reductionism captures important empirical truths. As a normative matter, reductionism offends core principles of liberal political theory: transparency, accountability, and the rule of law. Reductionism can itself take a normative turn only by resorting to balance-of-advantage arguments that depend on baseline judgments about the acceptability of prevailing outcomes. Since these baselines can be set only by parasitic appropriation of the substance-procedure distinction, reductionism is claimed to be an empirically plausible, but normatively empty, arrangement of the relationship between substance and procedure. The hardest problem calls for further work, and some possible directions for that work are suggested.
December 7, 2010
"Petition of the Day": Fourth Amendment Seizure case
ScotusBlog's "Petition of the Day" today, featuring links to the cert petition and the opinion below, is Brooks v. Gaenzle, which raises this issue:
Whether a fleeing suspect, who was intentionally shot in the back by police but not immediately arrested, was “seized” for Fourth Amendment purposes.
Zeoli, Brenner & Norris on Warrantless Arrest for Domestic Violence
April M. Zeoli , Hannah Brenner (pictured) and Alexis Norris (Michigan State University - School of Criminal Justice , Michigan State University - College of Law and Michigan State University) have posted A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:
In the United States in 2005, more than 60% of the more than 564,000 nonfatal, violent incidents perpetrated by intimate partners were reported to the police. Whether police arrested the alleged perpetrators of domestic violence in response to these reports varied widely, based in part on state law governing the ability or duty of an officer to make a warrantless arrest. Although all 50 states and the District of Columbia currently allow officers to make warrantless arrests for domestic violence, state laws differ from one another in multiple, important ways. This article details, compares, and analyzes differences between state domestic violence warrantless arrest laws.
December 6, 2010
Former AUSA's Kidnapping in 1998 (Kolber)
Stanley Alpert was an Assistant U.S. Attorney when he was kidnapped off the streets of New York in 1998. His book, The Birthday Party: A Memoir of Survival, tells a fascinating story of crime victimization from the eyes of an attorney. It's part survival story, part musing on crime, and part memoir on New York City history when crime rates were much higher than they are today. I think the book is fantastic, and you can read it very quickly. Best of all, it's selling at a rock bottom price right now ($3.82) on Amazon.com.
I assigned it to my students this semester as "optional" reading, and Alpert was kind enough to come by and address them in person. While criminal law students will sometimes meet prosecutors, defense attorneys, and even exonerated inmates, they probably have very little exposure to crime victims. Alpert's book provides a perspective they might otherwise miss.
Dissent from denial of certiorari in habeas case
Justice Sotomayor's dissent, joined by Justice Ginsburg, in Williams v. Hobbs is here. From the opening paragraph:
Today the Court refuses to review the Eighth Circuit’s conclusion that a State may withhold an objection to a federal habeas evidentiary hearing until after the hearing is complete, the constitutional violation established, and habeas relief granted. Because I believe such a rule enables, and even invites, States to manipulate federal habeas proceedings to their own strategic advantage at an unacceptable cost to justice, I respectfully dissent.
Transcript from argument on re-sentencing and rehabilitation
The transcript in Pepper v. United States is here.
Leo & Gould on Wrongful Convictions and Social Science
Richard A. Leo (pictured) and Jon B. Gould (University of San Francisco - School of Law and George Mason University - School of Public Policy) have posted Reply to Samuel R. Gross and Barbara O'Brien (Ohio State Journal of Criminal Law, Vol. 8, pp. 277-279, 2010) on SSRN. Here is the abstract:
In the current issue of the Ohio State Journal of Criminal Law, Professors Sam Gross and Barbara O’Brien reply to an article we published last year in this same journal, Studying Wrongful Convictions: Learning From Social Science, 7 Ohio St. J. Crim. L. 7 (2009). We respectfully disagree with some of their assertions, which do not bear directly on the analysis, conclusions or recommendations in our article. We then briefly describe what our article was about.
December 5, 2010
Top-Ten Recent SSRN Downloads
|1||335||The Facade of FCPA Enforcement
Butler University College of Business,
Date posted to database: November 9, 2010
|2||300||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
|3||292||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
|4||232||Vagueness and the Guidance of Action
New York University (NYU) - School of Law,
Date posted to database: October 31, 2010 [new to top ten]
|5||220||Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts
Nancy J. King, Gray Proctor,
Vanderbilt University - Law School, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: November 11, 2010 [new to top ten]
|6||197||The New Habeas Revisionism
Stephen I. Vladeck,
American University - Washington College of Law,
Date posted to database: August 30, 2010 [5th last week]
|7||186||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 [8th last week]
|8||185||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 [6th last week]
Caren Myers Morrison,
Georgia State University - College of Law,
Date posted to database: September 1, 2010 [7th last week]
|10||175||Talking About Prosecutors
Alafair S. Burke,
Hofstra University - School of Law,
Date posted to database: September 24, 2010