CrimProf Blog

Argument transcript on meaning of "cocaine base"

The case is DePierre v. United States.

Opinion in case limiting Confrontation Clause

The opinion in Michigan v. Bryant is here. Here is the syllabus:

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 32.

 

 

 

(a) In Crawford, this Court held that in order for testimonial evidence to be admissible, the Sixth Amendment "demands . . . unavailability and a prior opportunity for cross-examination." 541 U. S., at 68. Crawford did not "spell out a comprehensive definition of ‘testimonial,’ " but it noted that testimonial evidence includes, among other things, "police interrogations." Ibid. Thus, Sylvia Crawford’s statements during a station-house interrogation about a stabbing were testimonial, and their admission when her husband, the accused, had "no opportunity" for cross-examination due to spousal privilege made out a Sixth Amendment violation. In Davis and Hammon, both domestic violence cases, the Court explained that "[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation’s] primary purpose . . . is to enable police assistance to meet an ongoing emergency,” but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emegency, and that the[interrogation’s] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U. S., at 822. Thus, a recording of a 911 call describing an ongoing domestic disturbance was nontestimonial in Davis, where the victim’s “elicited statements were necessary to be able to resolve
[the ongoing] emergency,” and the statements were not formal. Id.,at 827. But the statements in Hammon were testimonial, where the victim was interviewed after the event in a room separate from her husband and “deliberately recounted, in response to police questioning” the past events. Id., at 830. Here, the context is a nondomestic dispute, with the “ongoing emergency” extending beyond an initial victim to a potential threat to the responding police and the public.
This context requires additional clarification of what Davis meant by “the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” Id., at 822. Pp. 5–12.

(b) To make the “primary purpose” determination, the Court must objectively evaluate the circumstances in which the encounter between the individual and the police occurs and the parties’ statements and actions. Pp. 12–23.

(1) The primary purpose inquiry is objective. The circumstances in which an encounter occurs—e.g., at or near a crime scene versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact. And the relevant inquiry into the parties’ statements and actions is not the subjective or actual purpose of the particular parties, but the purpose that reasonable participants would have had, as ascertained from the parties’ statements
and actions and the circumstances in which the encounter occurred. P. 13.

(2) The existence of an “ongoing emergency” at the time of the encounter is among the most important circumstances informing the interrogation’s “primary purpose.” See, e.g., Davis, 547 U. S., at 828–830. An emergency focuses the participants not on “prov[ing] past events potentially relevant to later criminal prosecution,” id., at 822, but on “end[ing] a threatening situation,” id., at 832. The Michigan Supreme Court failed to appreciate that whether an emergency exists and is ongoing is a highly context-dependent inquiry. An assessment of whether an emergency threatening the police and public is ongoing cannot narrowly focus on whether the threat to the first victim has been neutralized because the threat to the first responders and public may continue. The State Supreme Court also did not appreciate that an emergency’s duration and scope may depend in part on the type of weapon involved; the court below relied on Davis and Hammon, where the assailants used their fists, as controlling the scope of an emergency involving a gun. A victim’s medical condition is important to the primary purpose inquiry to the extent that it sheds light on the victim’s ability to have any purpose at all in responding to police questions and on the likelihood that any such purpose would be a tes-timonial one. It also provides important context for first respondersto judge the existence and magnitude of a continuing threat to the victim, themselves, and the public. This does not mean that an emergency lasts the entire time that a perpetrator is on the loose, but trial courts can determine in the first instance when an interrogation transitions from nontestimonial to testimonial. Finally, whether an ongoing emergency exists is simply one factor informing the ultimate inquiry regarding an interrogation’s “primary purpose.” Another is the encounter’s informality. Formality suggests the absence of anemergency, but informality does not necessarily indicate the presence of an emergency or the lack of testimonial intent. The facts here— the questioning occurred in an exposed, public area, before emergency medical services arrived, and in a disorganized fashion— distinguish this case from Crawford’s formal station-house interrogation. Pp. 14–20.

 

 

(3) The statements and actions of both the declarant and interrogators also provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, since both interrogators and declarants may have mixed motives. Police officers’ dual responsibilities as both first responders and criminal investigators may lead them to act with different motives simultaneously or in quick succession. And during an ongoing emergency, victims may want the threat to end, but may not envision prosecution. Alternatively, a severely injured victim may have no purpose at all in answering questions. Taking into account such injuries does not make the inquiry subjective. The inquiry still focuses on the understanding and purpose of a reasonable victim in the actual victim’s circumstances, which prominently include the victim’s physical state. Objectively ascertaining the primary purpose of the interrogation by examining the statements and actions of all participants is also consistent with this Court’s prior holdings. E.g., Davis, 547 U. S., at 822–823, n. 1. Pp. 20–23.

(c) Here, the circumstances of the encounter as well as the statements and actions of Covington and the police objectively indicate that the interrogation’s “primary purpose” was “to enable police assistance to meet an ongoing emergency,” 547 U. S., at 822. The circumstances of the interrogation involved an armed shooter, whose motive for and location after the shooting were unknown and who had mortally wounded Covington within a few blocks and a few minutes of the location where police found Covington. Unlike the emergencies in Davis and Hammon, this dispute’s potential scope and thus the emergency encompassed a potential threat to the police and the public. And since this case involved a gun, the physical separation that was sufficient to end the emergency in Hammon was not necessarily sufficient to end the threat here. Informed by the circumstances of the ongoing emergency, the Court now turns to determining the “primary purpose of the interrogation” as evidenced by the statements and actions of Covington and the police. The circumstances of the encounter provide important context for understanding Covington’s statements to the police. When he responded to their questions, he was lying in a gas station parking lot bleeding from a mortal gunshot wound, and his answers were punctuated with questions about when emergency medical services would arrive. Thus, this Court cannot say that a person in his situation would have had a “primary purpose” “to establish or prove past events potentially relevant to later criminal prosecution.” Ibid. For their part, the police responded to a call that a man had been shot. They did not know why, where, or when the shooting had occurred; the shooter’s location; or anything else about the crime. They asked exactly the type ofquestions necessary to enable them “to meet an ongoing emergency.” Ibid. Nothing in Covington’s responses indicated to the police that there was no emergency or that the emergency had ended. Finally,this situation is more similar to the informal, harried 911 call in Davis than to the structured, station-house interview in Crawford. The officers all arrived at different times; asked, upon arrival, what had happened; and generally did not conduct a structured interrogation. The informality suggests that their primary purpose was to address what they considered to be an ongoing emergency, and the circumstances lacked a formality that would have alerted Covington to or focused him on the possible future prosecutorial use of his statements. Pp. 23–32.

483 Mich. 132, 768 N. W. 2d 65, vacated and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. SCALIA, J., and GINSBURG, J., filed dissenting opinions. KAGAN, J., took no part in the consideration or decision of the case.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	358	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011
2	341	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011
3	334	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011
4	304	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011
5	237	Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause Jordan M. Barry, University of San Diego - School of Law, Date posted to database: February 11, 2011 [new to top ten]
6	218	EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights Wouter P. J. Wils, European Commission, Date posted to database: February 12, 2011 [new to top ten]
7	209	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [5th last week]
8	191	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [6th last week]
9	175	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011 [7th last week]
10	166	Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail, Georgetown University - Law Center, Date posted to database: February 14, 2011 [new to top ten]

Bradley on Exigent Circumstances

Craig Bradley (Indiana University School of Law-Bloomington) has posted Kentucky v. King: the Scope of the Exigent Circumstances Exception (Trial Magazine, Forthcoming) on SSRN. Here is the abstract:

This article analyzes Kentucky v. King case, currently pending decision in the Supreme Court. The issue is whether police created exigent circumstances will justify a warrantless entry and search of a home.

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to briefs and opinions below:

Monday, Feb. 28

• DePierre v. US: Whether a federal sentencing enhancement for possession of fifty grams or more of “cocaine base” refers to any form of cocaine that is chemically classified as a base (which could include coca leave or paste), or instead is limited to crack cocaine.

Wednesday, March 2

• Bullcoming v. New Mexico: When the prosecution introduces a forensic evidence report, it ordinarily must bring the author of the report to the trial so the defendant can question him. Is it sufficient for the prosecution to bring the analyst’s supervisor, when the supervisor did not actually perform or witness the forensic tests?
• Ashcroft v. al-Kidd: Whether former Attorney General John Ashcroft is immune from a suit alleging that he used the federal material witness statute as a pretext to investigate and preventatively detain terrorism suspects in the aftermath of the attacks of September 11, 2001.

Stein on the law and economics of self-incrimination

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Self-Incrimination (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. 10, C. Sanchirico, ed., Edward Elgar Publishing Limited, 2011) on SSRN. Here is the abstract:

This Chapter surveys the law & economics literature on self-incrimination and confessions.

Biggest Loser: Clemency Edition (Kolber)

The title of this post is the title of Doug Berman's proposed (in jest) new television show.  It will star, among others, the Scott sisters (who were granted early release from a Mississippi prison due to the poor health of one sister and the other's agreement to donate a kidney to her ailing sister).  Apparently, Doug notes, they must both lose quite a bit of weight before they are appropriate candidates to donate/receive a kidney.   

-AJK

Yankah on Overcriminalization

Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted A Paradox in Overcriminalization (New Criminal law Review, Vol. 14, No. 1, Winter 2011) on SSRN. Here is the abstract:

Given that one of the central roles of political philosophy and criminal theory is illuminating the borders of justified state punishment, the modern crisis of overcriminalization is a painful defeat. Generations of legal theory, grounded in liberalism, has done little to stem the tide of criminal law and the explosion of criminal punishment.

One notable island of decriminalization has been the retreat of criminal punishment surrounding marijuana consumption. With the combination of medical marijuana regimes, reduction of punishment, and halting steps toward full decriminalization, marijuana stands in stark contrast to the highly visible war on drugs that has driven much contemporary overcriminalization.

This piece argues that opponents of overcriminalization have much to learn from the functional decriminalization of marijuana. Marijuana decriminalization has not been successful because of a swing in public attitudes about marijuana use. Rather, decriminalization is possible because advocates can marshal agreement across philosophical starting points, bringing both liberals and nonliberals into consensus. This groundswell demonstrates that legal theorists concerned about containing state power must look beyond liberal theories.

Most importantly, this example reveals that legal theorists interested in turning back the tide of overcriminalization must do more than wait for areas of Rawlsian overlapping consensus; they must reach out to generate consensus with Rawlsian conjecture by viewing law not only from the liberal vantage point but from the nonliberal’s perspective as well.

Argument transcript in sentencing-reduction/plea bargain case

The transcript in Freeman v. United States is here.

Unanimous Court reverses Ninth Circuit in habeas case because of independent state ground

The opinion in Walker v. Martin is here. Here is the syllabus:

While most States set determinate time limits for collateral relief applications, California courts "appl[y] a general ‘reasonableness’ standard" to judge whether a habeas petition is timely filed, Carey v. Saffold, 536 U. S. 214, 222. Under that standard, "a [habeas] petition should be filed as promptly as the circumstances allow . . . ," In re Clark, 5 Cal. 4th 750, 765, n. 5, 855 P. 2d 729, 738, n. 5. Three decisions, Clark, In re Robbins, 18 Cal. 4th 770, 959 P. 2d 311, and In re Gallego, 18 Cal. 4th 825, 959 P. 2d 290, describe California’s timeliness requirement. A prisoner must seek habeas relief without "substantial delay," e.g., Robbins, 18 Cal. 4th, at 780, 959 P. 3d, at 317, as "measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis of the claim," id., at 787, 959 P. 2d, at 322.

 All California courts have "original jurisdiction in habeas corpus proceedings." Cal. Const., Art. VI, §10. Because a habeas petitioner may skip over the lower courts and file directly in the California Supreme Court, that court rules on a staggering number of habeas petitions each year. A summary denial citing Clark and Robbins means that the petition is rejected as untimely. California courts, however, have discretion to bypass a timeliness issue and, instead, summarily reject the petition for want of merit.

Respondent Martin was convicted of murder and robbery, and was sentenced to life in prison without parole. After the California Supreme Court denied Martin’s first state habeas petition, he filed a federal habeas petition. The District Court ordered a stay to permit Martin to return to state court to raise ineffective-assistance-of-counsel claims he had not previously aired. Martin raised those claims in his second habeas petition in the California Supreme Court, but gave no reason for his failure to assert the additional claims until nearly five years after his sentence and conviction became final. The California Supreme Court denied the petition, citing Clark and Robbins. Having exhausted his state-court remedies, Martin filed an amended federal habeas petition. The District Court dismissed his belatedly asserted claims as untimely under California law. The Ninth Circuit vacated that order and directed the District Court to determine the "adequacy" of the State’s time bar. Again rejecting Martin’s petition, the District Court found California’s bar an adequate state ground for denying Martin’s new pleas. Concluding that the time bar was not firmly defined or consistently applied, the Ninth Circuit remanded for a determination of the merits of Martin’s claims.

Held:

California’s timeliness requirement qualifies as an independent state ground adequate to bar habeas corpus relief in federal court. Pp. 7–13.

(a) Absent showings of "cause" and "prejudice," see Wainwright v. Sykes, 433 U. S. 72, 84–85, federal habeas relief will be unavailable when (1) "a state court [has] declined to address a prisoner’s federal claims because the prisoner had failed to meet a state procedural requirement," and (2) "the state judgment rests on independent and adequate state procedural grounds," Coleman v. Thompson, 501 U. S. 722, 729–730. P. 7.

(b) A "rule can be ‘firmly established’ and ‘regularly followed,’ " and therefore adequate, "even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others." Beard v. Kindler, 558 U. S. ___, ___. California’s time rule, although discretionary, meets this "firmly established" criterion. The California Supreme Court framed the requirement in a trilogy of cases, instructing habeas petitioners to "alleg[e] with specificity" the absence of substantial delay, good cause for delay, or eligibility for one of four exceptions to the time bar. Gallego, 18 Cal. 4th, at 838, 959 P. 2d, at 299. And California’s case law made it plain that Martin’s nearly five-year delay was "substantial." See, e.g., id., at 829– 831, 838, and n. 13, 959 P. 2d, at 293–294, 299, and n. 13. The Court finds unpersuasive Martin’s argument that the terms "reasonable time" period and "substantial delay" make California’s rule too vague to be regarded as "firmly established." While indeterminate language is typical of discretionary rules, application of those rules in particular circumstances can supply the requisite clarity. Congressional statutes and this Court’s decisions have employed time limitations that are not stated in precise, numerical terms. For example, current federal habeas prescriptions limit the time for filing a petition to one year. The clock runs from "the date on which the [supporting] facts . . . could have been discovered through . . . due diligence." 28 U. S. C. §2255(f)(4). Although " ‘due diligence’ is an inexact measure of how much delay is too much," Johnson v. United States, 544 U. S. 295, 309, n. 7, "use of an imprecise standard is no justification for depriving [a rule’s] language of any meaning," ibid. Nor is California’s time rule vulnerable on the ground that it is not regularly followed. Each year, the California State Supreme Court summarily denies hundreds of habeas petitions by citing Clark and Robbins. Contrary to Martin’s argument, California’s time bar is not infirm simply because a court may opt to bypass the Clark/Robbins assessment and summarily dismiss a petition on the merits, if that is the easier path. Nor should a discretionary rule be disregarded automatically upon a showing that outcomes under the rule vary from case to case. Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that may attend consistent application of an unyielding rule. A state ground may be found inadequate when a court has exercised its discretion in a surprising or unfair manner, but Martin makes no such contention here. Pp. 7–12.

(c) This decision leaves unaltered the Court’s repeated recognition that federal courts must carefully examine state procedural requirements to ensure that they do not operate to discriminate against claims of federal rights. See, e.g., Brown v. Western R. Co. of Ala., 338 U. S. 294, 298–299. On the record here, however, there is no basis for concluding that California’s rule operates in such a discriminatory manner. P. 13.

357 Fed. Appx. 793, reversed

Ginsburg, J., delivered the opinion for a unanimous Court.

Treadwell on Immigrants Arrested in Warrantless Home Raids

Nathan Treadwell has posted Fugitive Operations and the Fourth Amendment: Representing Immigrants Arrested in Warrantless Home Raids (North Carolina Law Review, Vol. 89, p. 507, 2011) on SSRN. Here is the abstract:

In the past several years, Immigration and Customs Enforcement ("ICE") has made warrantless home raids a key component of interior immigration enforcement. Such raids, which frequently bring in otherwise law-abiding undocumented immigrants, violate the Fourth Amendment when they take place without the consent of a member of the household. Press and judicial accounts of such raids show that the agency now engages in widespread unlawful entries as well as violent, demeaning, and threatening conduct. This Article sets out a litigation theory for the defense of undocumented immigrants arrested in warrantless raids. The Article presents several viable but under-utilized grounds on which immigrants subjected to ICE misconduct may seek the suppression of illegally-acquired evidence and the dismissal of a deportation proceeding.

First, notwithstanding the limited application of the exclusionary rule in immigration proceedings, immigration courts follow an exception articulated by the Supreme Court in INS v. Lopez-Mendoza, allowing suppression of evidence obtained through "egregious violations of the Fourth Amendment." Given that the protection of the home is central to the history and purpose of the Fourth Amendment, and given the heavy-handed and violent tactics ICE uses in home raids, immigrants should argue that such raids amount to egregious violations. Second, courts have a basis to broaden the reach of the exclusionary rule in light of the Supreme Court’s suggestion in Lopez-Mendoza that widespread constitutional violations by immigration authorities might justify such a step. Third, immigrants may call for suppression for ICE violations of agency regulations, which mirror Fourth Amendment and other protections. These litigation strategies could help re-establish a credible deterrent to ICE’s abusive conduct, and could provide immigration attorneys with a valuable tool for defending undocumented victims of home raids.

Davies on Search and Seizure

Thomas Y. Davies (University of Tennessee College of Law) has posted The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine (Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041, 2010) on SSRN. Here is the abstract:

This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine.

The article then analyzes the century of modern Fourth Amendment doctrine in terms of five distinct periods. In the initial period, discussed in Part III, the justices pursued a goal similar to that evident earlier in the remarkably activist 1886 ruling in Boyd by reinvigorating the Fourth Amendment as a protection of papers, especially business records. In the seminal decision in Weeks, the justices innovated by reading the common-law warrant requirement for house searches into the Fourth Amendment itself, by applying that constitutional standard to the conduct of officers as well as to legislation, and by announcing the exclusionary rule as the consequence of an unconstitutional search and seizure. Later cases then extended that analysis to seizures of business records from offices.

During the period of Prohibition, discussed in Part IV, the justices relaxed the Weeks warrant standard by inventing the concept of "Fourth Amendment reasonableness" in 1925 in Carroll to allow warrantless searches of autos for liquor in circumstances where searches incident to lawful arrests could not be justified. (Academics then prochronistically imposed that novel formulation on the past to invent the conventional but fictional account of Fourth Amendment history.) During the next period, discussed in Part V, the Roosevelt and Truman appointees then split as to whether the Weeks warrant conception or the Carroll reasonableness formulation should predominate.

Part V discusses the period of the Warren Court, which definitely revolutionized search and seizure insofar as it incorporated Fourth Amendment law into the Fourteenth Amendment in Mapp and thus made it applicable to state criminal justice proceedings. However, the content of the justices’ rulings during this period was actually mixed. Available statistics indicate that government and defendant victories were essentially even during all but the decisions announced in 1968 and 1969 when a strong liberal majority emerged after Justice Marshall replaced Justice Clark. However, the extension of constitutional protections to state criminal defendants fundamentally altered the politics of criminal justice.
Part VI then discusses the dismantling of search and seizure protections that began with Richard Nixon’s appointment of four justices known to be opposed to the Warren Court’s rulings. Statistics demonstrate that there was a marked change as government petitions soon became the predominate source of the search and arrest cases accepted for review. Additionally, except for a brief hiatus in the late 1970s that ended when Justice O’Connor replaced Justice Stewart, the conservative majority ruled predominately in favor of government parties during this final four-decade period as they undertook a multi-prong campaign to restrict virtually all aspects of search and seizure protections. After nearly abolishing the exclusionary rule in 1976, the Burger Court majority substantially curtailed the rule’s operation and also raised the threshold for standing. They also eased the standards for consent, restricted the scope of Fourth Amendment protections, eviscerated the probable cause standard in 1983 in Gates, and effectively ended enforcement of warrant standards in 1984 in Leon. More recently, the Rehnquist and Roberts Courts also effectively created discretionary police arrest and search authority in Atwater and Moore, and further curtailed exclusion while rejecting other potential modes for enforcing search protections.

The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.

Lee on Deontology and the Criminal Law

Youngjae Lee (Fordham University School of Law) has posted two manuscripts on SSRN relating to deontology and criminal law. The first is Desert, Deontology, and Vengeance (Arizona State Law Journal, Vol. 42, 2011). Here is the abstract:

In a series of recent writings, Paul Robinson has defended “empirical desert” as the way of deriving distributive principles for determining who should be punished and by how much. Desert is, of course, an idea with a long history, and its precise role in criminal law has been much debated. In addressing various criticisms of desert in criminal law, Robinson distinguishes empirical desert from what he calls “deontological desert” and “vengeful desert.” Robinson’s strategy, which I call “divide and deflect,” fights off various objections traditionally leveled against the use of desert in criminal law by arguing that most of those objections may be valid for “deontological” and “vengeful” desert but are not applicable to “empirical desert.” So, for instance, “vengeful desert” can be too harsh, may be based on anger and hatred, and give only vague guidance, and “deontological desert” judgments may be too contested to be useful for policy makers, but, Robinson claims, empirical desert suffers from no such defects. Robinson’s core claims – about the need to tie desert assessments close to ordinary intuitions and the substantial crime control benefits to be derived when the state can successfully command respect as a moral authority – are valid. However, Robinson’s “empirical desert” needs what he calls “vengeful desert” and “deontological desert” to succeed, and his attempts to make his proposal resistant to the usual anti-retributivist objections by jettisoning the latter two may in the end hurt his project more than help.

The second is Deontology, Political Morality, and the State (Ohio State Journal of Criminal Law, Vol. 8, 2011). Here is the abstract:

Sometimes the government makes a policy choice, and, as a result, innocent persons die. How should we morally assess such deaths? For instance, is the government’s choice of the reasonable doubt standard or its decision to restrict the death penalty to certain narrow categories responsible for deaths of innocents? If so, does the deontological norm against harming people dictate that the government loosen the evidentiary standard for conviction or widen the availability of capital punishment? This Article argues that the traditional distinctions between intending and foreseeing harm and between causing harm and allowing harm to occur are insufficient to absolve the state of its responsibility for such deaths. This Article also argues, however, that it is a mistake to conclude from this observation that the government may be morally required to loosen the evidentiary standard for conviction or to widen the availability of capital punishment. Once we fully understand the distinctive features of government as a moral agent, this Article argues, we will see that the government has obligations both to protect its people from crimes and respond to crimes on behalf of the people and to respect various constraints placed on its power, including desert-based limitations on punishment and standards of proof required for conviction. These obligations may conflict with one another, but that observation does not generate the conclusion that it is morally required to punish people with death or convict people with reduced standards of proof.

Argument transcript in Speedy Trial Act case

United States v. Tinklenberg is here.

Argument transcript in Tenth Amendment challenge to federal criminal law

Bond v. United States is here.

Huq, Tyler & Schulhofer on Public Cooperation with Law Enforcement

Aziz Z. Huq (pictured), Tom Tyler and Stephen Schulhofer (University of Chicago Law School , New York University (NYU) - Department of Psychology and New York University (NYU) - School of Law) have posted two manscripts on SSRN dealing with the issue of public cooperation with law enforcement. The first is entitled Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: Evidence from the United Kingdom. Here is the abstract:

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a random-sample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate voluntarily in law enforcement efforts against terrorism. Cooperation is defined to have two elements: a general receptivity toward helping the police in anti-terror work, and a specific willingness to alert police upon becoming aware of a terror-related risk in a community. We find that procedural justice concerns prove better predictors for both measures of cooperation in counter-terrorism policing among British Muslims. Unlike previous studies of policing in the United States, however, we find no correlation between judgments about the legitimacy of police and cooperation. Rather procedural justice judgments influence cooperation directly.

The second is entitled Why Does the Public Cooperate with Law Enforcement? The Influence of the Purposes and Targets of Policing (Psychology, Public Policy & Law, Forthcoming). Here is the abstract:

This study addresses the extension of the “procedural justice” model for understanding public cooperation with law enforcement to new policing contexts and new minority populations. The study draws on four recent surveys of public reactions to policing against crime or against terrorism across different populations to examine whether the changing purpose of policing, or changes in the communities targeted for heightened policing have an effect on how cooperative behaviors are elicited.

This paper presents evidence that procedural justice mechanisms are robust across a variety of contexts and populations in the United States. Three issues in particular are addressed. First, whether the procedural justice model applies across policing functions and policed populations. Second, whether the perception that another group is the target of disproportionate policing efforts has any effect on the cooperation behavior of a non-targeted population. And third, whether people attend to different aspects of policing behavior if their community is targeted for heightened policing attention.

Baradaran on Due Process, Predictive Justice and the Presumption of Innocence

Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Due Process, Predictive Justice & the Presumption of Innocence on SSRN. Here is the abstract:

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority of people in our nation’s jails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrial presumption, let alone its constitutional implications. This article fills the void by examining how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. For the first time, this article introduces three rules to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutional foundation and ensuring its application in ways that are consistent with that foundation will result in less confusion by courts and a more consistent manner to make pretrial decisions.

Covey on Longitudinal Guilt

Russell D. Covey (Georgia State University College of Law) has posted Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof (Florida Law Review, Vol. 63, No. 1, 2011) on SSRN. Here is the abstract:

The Article introduces a new concept - “longitudinal guilt” - which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.” This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.

The first section of this Article explains how plea-bargaining and graduated sentencing systems based on criminal history effectively combine together to lower the standard of proof for repeat criminals. The second section describes several additional procedural and evidentiary rules that further effectively reduce the standard of proof for recidivists. The third section argues that the net effect is a criminal justice system that is primarily focused on the identification of a class of “dangerous offenders” based upon their repeated interactions with the system over time rather than the accurate resolution of specific allegations of wrongdoing in individual cases, as is conventionally supposed. In a phrase, we have moved toward a system that constructs guilt “longitudinally.” The Article concludes with a few brief thoughts on the merits and demerits of longitudinal guilt.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	340	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011
2	328	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [4th last week]
3	321	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011 [2nd next week]
4	295	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011 [new to top ten]
5	201	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [6th last week]
6	190	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [5th last week]
7	173	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011
8	141	Collective Intentions and Individual Criminal Responsibility Javid Gadirov, Central European University, Date posted to database: February 7, 2011 [new to top ten]
9	136	After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law David M. Uhlmann, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: January 16, 2011 [new to top ten]
10	127	Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: January 27, 2011

Gadirov on Collective Intentions and Individual Criminal Responsibility

Javid Gadirov (Central European University) has posted Collective Intentions and Individual Criminal Responsibility on SSRN. Here is the abstract:

This article focuses on the treatment of collective intentions in individual criminal responsibility for crimes against humanity and war crimes, at the example of the emerging International Criminal Court's (ICC) jurisprudence. It is argued that collective ('joint' and 'indirect') perpetration accounts of ICC ought to provide first of all a coherent conception of collective intentions and actions to identify individuals involved in cooperative harm doing, to attribute harm to causally responsible individuals, and to provide grounds for formulating a 'decision method' necessary for distributiveness of moral blame. Secondly causal responsibility test for harm brought about in accordance with such intentions should (a) rely on strong sufficiency rather than normative attribution standart (real rather than hypothetical attribution); (b) specify that irreducible collective intention is a 'NESS' condition for attributing harm to liable individuals; (c) distinguish principals by formulating a stronger collective intention threshold that requires 'meshing' of individual participatory intentions. Finally allocation of moral blame for harm brought about collectively should (a) explain how moral blame is distributive among participants of collective actions, in order to avoid its blending into metaphysical shame or 'guilt by association'; (b) rely on collective intentions as a 'decision method' of harm-doing that distributes moral blame; (c) consider that 'strong' formulations of such 'decision method' blame superiors, and vice versa a weak 'decision method' would increase morally responsibility of final perpetrators.

Whereas it has been argued in the literature that criminal prosecutions for human rights atrocities are at odds with liberal premises of human rights law including individual culpability, it is the purpose of this work to argue for such grounds and that ICC can address collective complicities based on respect for individual autonomy and without degenerating into collective guilt theories that disregard free will and moral responsibility.