CrimProf Blog

"A Blue-Ribbon Look at Criminal Justice"

The New York Times editorial supporting the bill to form this commission is here. In part:

Among the issues the commission would study is why the United States has the highest reported incarceration rate in the world. Prisons are filled with a large number of nonviolent offenders, including minor drug offenders. In many cases, it would be more humane, economical and effective to provide drug treatment and mental health alternatives.

Volokh on Nonlethal Weapons

Eugene Volokh has published Nonlethal Self Defense, (Almost Entirely) Nonlethal Weapons, and the Rights to Keep and Bear Arms and Defend Life at The Legal Workshop. It is drawn from his article in the Stanford Law Review and includes a discussion of state constitutional provisions protecting a right to self defense. From the introduction:

Owning a stun gun or Taser is a crime in seven states and several cities. Carrying irritant sprays, such as pepper spray or Mace, is probably illegal in several jurisdictions. Even possessing irritant sprays at home is illegal in Massachusetts if you’re not a citizen.

Yet in most of these jurisdictions, people are free to possess guns in the same situations where stun guns or irritant sprays are illegal. So people who have deadly devices are fine. But those who have a nonlethal weapon—perhaps because they have religious, ethical, or emotional compunctions about killing, or because they worry about killing someone by mistake, or because they worry about a family member misusing the gun—are criminals.

Other jurisdictions ban some people (such as felons and minors) from possessing not just stun guns and irritant sprays but also firearms. Others bar all people from possessing all three kinds of weapons in all public places, in public universities, in public housing, or on public transportation systems. People there are entirely stripped of the ability to defend themselves with any of the devices that are most effective for self-defense.

I think such regulatory schemes are generally bad policy. And I think they are unconstitutional, perhaps under the Second Amendment—if it’s held to apply to state and local governments—and in any event under those state constitutions that secure a right to bear arms or a separate right to self-defense.

Terrorism and Civilian Trials

Crime and Consequences notes and applauds this A.P. story:

WASHINGTON - Attorney General Eric Holder is leaving open the possibility of trying professed Sept. 11 mastermind Khalid Sheikh Mohammed before a military commission instead of the civilian trial originally planned for New York City

Meanwhile, the New York Times has a story assessing the track record of terrorism prosecutions here:

But the assumptions behind the criticism — that the military approach will gain more intelligence, avoid the meddling of government-paid defense lawyers and lock away a convicted terrorist for a longer sentence — are undercut by the record since the Sept. 11, 2001, terrorist attacks.

In eight years, the Bush administration said it had obtained at least 319 convictions in “terrorism or terrorism-related” cases in the civilian justice system, according to a Justice Department budget document. A study by the Center on Law and Security at New York University found convictions in nearly 9 of 10 cases, with a 16-year average sentence for those convicted of terrorism.

Only two accused terrorists arrested in the United States, Ali al-Marri and Jose Padilla, were moved temporarily into the military system. But after legal challenges by the lawyers supplied to all detainees who face military justice, the Bush administration moved both cases back to civilian courts, where Mr. Padilla was sentenced to 17 years in prison and Mr. Marri to 8 years.

Dervan on Bargaining in the Shadow of Terror

Lucian E. Dervan  (Southern Illinois University School of Law) has posted Plea Bargaining in the Shadow of Terror: Plea Bargaining During the War on Terrorism and the Dual Chambers of the Plea Bargaining Machine on SSRN. Here is the abstract:

While obtaining the exact number of defendants who have pleaded guilty to terrorism or terrorism related charges since September 11, 2001 is impossible due to the federal government’s refusal to release such information, it is estimated that there have been several hundred convictions of which over 80% resulted from a plea of guilty. While this plea rate for terrorism cases is certainly lower than the plea rate for other federal offenses, which on average has remained above 95% for almost every year since 1999, a plea rate in excess of 80% is remarkably high given the psyche of those who would engage in the acts being prosecuted. This article seeks to understand why a terrorist would plead guilty and, by the same token, why the United States government would offer leniency to an admitted enemy in the war on terrorism in return for such a plea. Through this analysis, a quarter century of plea bargaining theory will be reevaluated and the existing conflict between two competing theories of plea bargaining will be harmonized into a more encompassing theory that better explains the operation of the entire plea bargaining process.

This article is particularly timely as recently released information from the government indicates that the Christmas Day Bomber, Umar Farouk Abdulmutallab, is cooperating with the FBI and may be preparing to enter into a plea agreement. If this is true, this will serve as yet another example of the significance of plea bargaining in the American criminal justice system and the importance of further examination of its operation. Though this article focuses on terrorism prosecutions as a vehicle for exploring plea bargaining, the article’s proposed theory regarding the operation of the plea bargaining machine applies to all manner of criminal prosecution.

Kirchmeier on Execution Competency and Comprehending Death

Jeffrey L. Kirchmeier  (CUNY School of Law) has posted The Undiscovered Country: Execution Competency & Comprehending Death (Kentucky Law Journal, Vol. 98, pp. 263-299, 2009/2010) on SSRN. Here is the abstract:

The United States Supreme Court has not created a clear Eighth Amendment standard to determine whether or not a capital defendant is competent to be executed. Justice Thomas best summarized the confusion about the Court’s jurisprudence in this area when he criticized the 2007 majority’s opinion in Panetti v. Quarterman as “a half-baked holding.”

This Article addresses one execution competency issue that has been left open by the Court: the question of to what extent a mentally ill capital defendant must understand the concept of death. In other words, to be competent to be executed, must a mentally ill defendant comprehend that execution means the end of one’s physical life?

This Article considers the historical development of the ban on executing the insane, a ban with a murky history that has been passed down from medieval times and through Blackstone and English common law to modern day international law. Because of a long historical pedigree, the Supreme Court essentially accepted the ban as a constitutional given in 1986.

The justifications for the ban, however, need to be the foundation for fashioning a standard out of the Court’s opinions. The Article examines the Supreme Court precedent regarding the ban, statutory definitions of competency, and the other court decisions that have begun to consider whether or not there should be a requirement that a mentally ill defendant can comprehend the end of life to be competent. The Article examines the policies behind the ban, and it uses them to conclude that the history and precedent require a death comprehension standard. The Article proposes a standard that is consistent with the historical underpinnings of the ban on executing the insane and that is consistent with Supreme Court precedent.

Bellin on Informing Juries of Consequences of Conviction

Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction on SSRN. Here is the abstract:

The American jury, once heralded as “the great corrective of law in its actual administration,” has suffered numerous setbacks in the modern era. As a result, jurors have largely become bystanders in a criminal justice system that relies on increasingly severe punishments to incarcerate tens of thousands of offenders each year. The American criminal justice system disposes of most cases short of trial and increasingly casts the jurors’ trial task as one of almost menial fact-finding. The jury is instructed to find the facts necessary for legal guilt, and suppress any concerns about whether a conviction and subsequent punishment is unjust.

Coupled with the proliferation of harsh, mandatory sentencing regimes, this gradual erosion of the jury’s role has led to a system that not only tolerates, but arguably encourages, injustice. A defendant charged with a relatively minor offense may be convicted and sentenced to a lengthy prison term without any neutral figure (either judge or jury) determining that the punishment is proportionate to the crime.

For years, reformers have suggested that this recipe for inequity could be altered if jurors were informed in certain cases that a particularly severe punishment will follow upon a guilty verdict. The jurors, armed with that information, could then vote to acquit in the face of proof of guilt, or at least steadfastly hold the prosecution to its burden of proof. Specifically, reformers attack the status quo on two separate fronts, advocating that: (i) legislatures enact statutes designed to inform juries of severe sentencing provisions, and their right to nullify; and (ii) courts recognize constitutional rights that would have a similar effect. There are few signs of movement on either of these fronts.

Central to the reformers arguments has been the assumption that the current legal regime does not permit criminal juries to be informed of pertinent sentencing provisions. This Article challenges that assumption, suggesting a theory of relevance that could permit a significant number of defendants to present evidence of applicable sentencing provisions at trial.

The implications of admitting punishment information under the proposed theory extend beyond the cases that would be directly affected. If juries act to block imposition of harsh sentences despite proof of guilt, these actions could focus public attention on the current sentencing regime in a way that a steady stream of academic criticism cannot. Further, prosecutors, fearful that juries informed of punishment will acquit even guilty defendants, may invoke the harshest sentencing laws more sparingly. Legislators will similarly be tempted to moderate the sentencing laws to ensure that these laws do not work against the goal of punishing criminals. At a minimum, the prospect of widespread introduction of punishment evidence suggested by this Article has the potential to alter the terms of the smoldering debate concerning this nation’s sentencing laws and the appropriate role of juries in enabling their application.

"China high court limits use of death penalty"

Jurist has the story here.

Kovarsky on Death Ineligibility and Habeas

Lee Kovarsky (New York University) has posted Death Ineligibility and Habeas Corpus at The Legal Workshop, a piece based on an article by the same title in the Cornell Law Review. From the introduction:

Death ineligibility claims . . . are not purely procedural challenges, but they are not challenges to a conviction’s validity.  The number of offenders in which a death ineligibility claim vests has increased dramatically and will only grow as the Court declares new categories of prisoners—probably those exhibiting some sort of diminished capacity—exempt from capital punishment.  In light of important distinctions between death ineligibility challenges and the claims upon which existing law is premised, the Supreme Court should reformulate habeas relief available to categories of offenders that may not be executed under the Eighth Amendment.

Bilz on the Narrative Model of Judging

Kenworthey Bilz  (Northwestern University - School of Law) has posted We Don't Want to Hear it: Psychology, Literature and the Narrative Model of Judging (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

The “narrative” model of legal judging argues that legal decision makers both do and should render judgments by assembling sensible stories out of evidence (as opposed to using Bayesian-type, linear models). This model is usually understood to demand that before one may judge a situation, one must give the parties the opportunity to tell their story in a manner that invites, or at least allows, empathy from the judger. This Article refers to this as the “inclusionary approach” to the narrative model of judging. Using psychological research in emotions and perspective-taking and the more intuitive techniques of literary criticism, this Article challenges the inclusionary narrative approach, arguing that, in practice, the law gives equal weight to an “exclusionary approach.” That is, in order to render sound, legitimate legal judgments, the law deliberately limits the sort of stories parties are allowed to tell – and does so on moral grounds, not, or at least not only, to improve the “accuracy” of the legal judgment. That is, as both a descriptive and normative matter, impoverished narratives can be better than enriched ones in leading decision makers to morally acceptable legal judgments.

"Former shot-caller is now spilling gang's secrets"

This interesting Los Angeles Times article by Sam Quinones is here. In part:

Real said he fired in the air to scare onlookers as Renteria walked across the park and shot the parolee. (Renteria was charged last summer with Cordova's murder.)

Back on Drew Street minutes later, Real changed his sweat shirt, met his wife and daughter at his stepfather's and went about his Sunday.

That scene, described step by emotionless step, captured the life of opposing impulses of Francisco "Pancho" Real, former leader of the Drew Street clique of the Avenues gang and a member of a notorious crime family.

He ordered up extortions and robberies and taxed drug dealers, but said he didn't use drugs, attended church every Sunday and attempted, as an attorney skeptically put it in cross-examination, to be a "kinder and gentler shot-caller."

In testimony over two weeks in Los Angeles County Superior Court, Real, 28, offered a firsthand account of life in one of Southern California's most notorious Latino gangs. The Avenues gang has roamed Northeast L.A. since the 1950s. Its Drew Street clique, of newer vintage, dates to the 1990s.

Suk on Rusk and Rape Reform

Jeannie Suk (Harvard University - Harvard Law School) has posted 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform (CRIMINAL LAW STORIES, Robert Weisberg, Donna Coker, eds., 2010) on SSRN. Here is the abstract:

This chapter for Criminal Law Stories (Robert Weisberg & Donna Coker eds., 2010), tells the story of State v. Rusk through the lens of rape law reform. Beginning in the 1970s, under the influence of feminism, some prevailing attitudes and expectations about sex between men and women started to change. Edward Rusk was like many guys who didn’t think he just had to stop because a girl who seemed interested said she didn’t want to have sex. He was convicted of rape at the cusp of legal transformation, when sexual behavior that had been socially commonplace was rapidly in the midst of being recast as criminal. Drawing on many interviews with lawyers, judges, and other people involved in the case, I tell the story of when and how a set of social norms of sex and dating became unacceptable. This is a story of the legal role and consequences of that social change

Medwed on Prosecutorial Charging and the Innocence Revolution

Daniel S. Medwed  (University of Utah - S.J. Quinney College of Law) has posted Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

Efforts to rectify wrongful convictions in the United States arguably represent a new civil rights movement for the twentieth-first century. Since 1989, post-conviction DNA testing has exonerated over two hundred inmates, their innocence proven beyond a shadow of a doubt through science, and at least three hundred other innocent prisoners have gained their freedom in cases lacking the magic bullet of DNA. Studies of these cases reveal that specific factors tend to cause wrongful convictions in the first place. Misbehavior by prosecutors - especially involving the suppression of exculpatory evidence - has emerged as one of those factors.

This Symposium directly (and commendably) tackles the problem of under-disclosure of evidence by prosecutors. Encouraging prosecutors to adhere more closely to existing disclosure rules advances the ends by fairness by boosting the capacity of the defense to prepare for trial. Increased disclosure can also bolster the accuracy of criminal adjudications by minimizing the risk that innocent criminal defendants will be wrongfully convicted; armed with exculpatory and other evidence, the innocent are better positioned to reject plea offers and mount solid defenses at trial. In short, more disclosure in more cases in a more timely fashion is a good idea.

Yet any discussion about prosecutorial disclosure is incomplete without paying some attention to an equally vital moment in the pretrial process: the initial decision to charge a suspect with a crime whatsoever. The mere decision to charge tends to set in motion a sequence of events that inexorably lead to either a plea offer or a trial - even where the case is weak and where the prosecution has complied fully with its disclosure duties. This Essay grapples with the topic of prosecutorial charging decisions in light of the “Innocence Revolution.” Part I of the Essay explores the rules and practices surrounding prosecutorial charging decisions, pointing out some of the flaws in this regime that may accidentally lead to charging innocent suspects with crimes. Next, Part II proposes a series of modest reforms to the charging process designed to reduce the possibility that the innocent will face criminal charges at all.

"Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment"

Eugene Volokh has this interesting post at The Volokh Conspiracy.

Bad (Allegedly)

The Los Angeles Times article on the not-guilty plea by Michael Jackson's physician to a charge of involuntary manslaughter is here. And the lyrics to Jackson's hit song "Bad" are here. In part:

The Word Is Out
You're Doin' Wrong
Gonna Lock You Up
Before Too Long

"A Mediocre Criminal, but an Unmatched Jailhouse Lawyer"

Adam Liptak has the column on this interesting journey at the New York Times.

Benforado on Overlooked Biases

Adam Benforado (Drexel University - Earle Mack School of Law)  has posted Frames of Injustice: The Bias We Overlook (Indiana Law Journal, Vol. 85, forthcoming 2010) on SSRN. Here is the abstract:

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the situationist approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, the Article engages the case of Scott v. Harris, 127 S. Ct. 1769 (2007), the subject of a recent CCP study.

In Scott, the Supreme Court relied on a videotape of a high-speed police chase to conclude that an officer did not commit a Fourth Amendment violation when he purposefully caused the suspect’s car to crash by ramming the vehicle’s back bumper. Challenging the Court’s conclusion that “no reasonable juror” could see the motorist’s evasion of the police as anything but extremely dangerous, CCP Professors Dan M. Kahan, David A. Hoffman, and Donald Braman showed the video to 1,350 people and discovered clear rifts in perception based on ideological, cultural, and other lines.

Despite the valuable contribution of their research in uncovering the influence of identity-defining characteristics and commitments on perceptions, Kahan, Hoffman, and Braman failed to engage what may well be a more critical dynamic shaping the cognitions of their subjects and the members of the Supreme Court in Scott: the role of situational frames in guiding attributions of causation, responsibility, and blame. As social psychologists have documented—and as PLMS scholars have emphasized—while identities, experiences, and values matter, their operation and impact is not stable across cognitive tasks, but rather is contingent on the way in which information is presented and the broader context in which it is processed.

In large part, the Scott video is treated—both by the Supreme Court and by Kahan, Hoffman, and Braman—as if it presents a neutral, unfiltered account of events. This is incorrect. Studies of viewpoint bias suggest that the fact that the video offers the visual and oral perspective of a police officer participating in the chase—rather than that of the suspect or a neutral third party—likely had a significant effect on both the experimental population and members of the Court.

Had the Supreme Court watched a different video of the exact same events taken from inside the suspect’s car, this case may never have been taken away from the jury. Any discussion of judicial “legitimacy”—in both the descriptive and normative sense—must start here. The real danger for our justice system may not ultimately be the “visible fiction” of a suspect’s version of events, as Justice Scalia would have it, or cognitive illiberalism as Kahan, Hoffman, and Braman would, but the invisible influence of situational frames systematically prejudicing those who come before our courts.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	303	Am I a Price-Fixer? A Behavioral Economics Analysis of Cartels Maurice E. Stucke, University of Tennessee College of Law, Date posted to database: January 13, 20102010
2	247	Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan Jordan J. Paust, University of Houston - Law Center, Date posted to database: December 11, 2009 2010
3	206	Fifty State Survey of Adult Sex Offender Registration Laws Brenda V. Smith, American University - Washington College of Law, Date posted to database: December 3, 2009
4	173	How Does International Law Work: What Empirical Research Shows Tom Ginsburg, Gregory Shaffer, University of Chicago Law School, University of Minnesota - Twin Cities - School of Law, Date posted to database: December 19, 2009
5	118	Unintended Collateral Consequences: Defining Felony in the Early American Republic Will Tress, University of Baltimore - School of Law, Date posted to database: December 4, 2009
6	117	Vagueness Challenges to the Computer Fraud and Abuse Act Orin S. Kerr, George Washington University - Law School, Date posted to database: December 23, 2009 [7th last week]
7	113	Habeas Corpus for the Twenty-First Century, Chapter One Nancy J. King, Joseph L. Hoffmann, Vanderbilt University School of Law, Indiana University-Bloomington, Maurer School of Law, Date posted to database: December 4, 2009 [6th last week]
8	109	Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too) Doug Keller, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 1, 2009
9	100	Criminalization and Regulation Victor Tadros, University of Warwick - School of Law, Date posted to database: December 14, 2009
10	89	Secret Evidence and the Due Process of Terrorist Detentions Daphne Barak-Erez, Matthew C. Waxman, Tel Aviv University - Buchmann Faculty of Law, Columbia Law School, Date posted to database: November 24, 2009

"Retired Officers Raise Questions on Crime Data "

In other words, the US News rankings are not unique. From the New York Times:

More than a hundred retired New York Police Department captains and higher-ranking officers said in a survey that the intense pressure to produce annual crime reductions led some supervisors and precinct commanders to manipulate crime statistics, according to two criminologists studying the department.