CrimProf Blog

Guerrero on Excusing Mistakes of Law

Alexander A. Guerrero has posted Deliberation, Responsibility, and Excusing Mistakes of Law (American Philosophical Association Newsletter on Philosophy and Law, 2011) on SSRN. Here is the abstract:

This short paper is a draft of soon-to-be-published comments on Gideon Yaffe’s paper “Excusing Mistakes of Law.” In this paper, I question Yaffe's strategy for defending the distinction drawn between excuses based on mistakes of law and excuses based on mistakes of fact. In particular, I question whether Yaffe's reliance on the notion of deliberation can do the work he suggests it can in providing a normative defense for the fact that "false beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse."

These comments were originally presented at the 2011 Pacific Division of the American Philosophical Association upon the occasion of Yaffe’s paper being awarded the Berger Prize for being the “best article or chapter in the field of legal philosophy in the past two years.” These comments (along with comments by Mark Greenberg and a response by Gideon Yaffe) will be published in the APA Newsletter on Philosophy and Law.

Questions about the new eyewitness case (Dripps)

The New York Times recently carried a front-page story about the perennial problem of erroneous eyewitness identifications.  The focal point for the story was a New Jersey Supreme Court decision, State v. Larry Henderson.

Comments encouraged on this one--does some evidence of actual suggestiveness include the bare fact that the administrator knew the suspect's identity?  If not, what's changed? 

Thompson on Judicial Gatekeeping of Police-Generated Witness Testimony

Sandra Guerra Thompson (University of Houston Law Center) has posted Judicial Gatekeeping of Police-Generated Witness Testimony on SSRN. Here is the abstract:

This article urges a fundamental change in the administration of criminal justice. It calls for an active role for trial courts in determining the admissibility of police-generated lay witness testimony. The article focuses on what I call “police-generated witness testimony,” by which I mean confessions, police informants, and eyewitness identifications. These types of testimony are leading causes of wrongful convictions. The article shows that heavy-handed tactics by the police have a tendency to produce false evidence of these types, especially when the individuals being questioned by police are particularly vulnerable such as juveniles, or those who are intellectually disabled or mentally ill. It also demonstrates that there are procedural best practices that the police can follow to reduce the dangers of false evidence. The most important feature of the article is the proposal that courts take an active role in ensuring the reliability of criminal trials by invoking their gatekeeping responsibilities in screening police-generated evidence by holding pretrial reliability hearings. Current constitutional doctrine fails to exclude patently unreliable police-generated testimony. However, Rule 403 gives the courts broad discretion to exclude evidence on the grounds that its potential to mislead the jury substantially outweighs its probative value. State due process law can also be invoked. Reliability hearings for lay witness testimony already exist for some types of evidence in criminal cases (mostly defense evidence), and they are also clearly required for expert scientific evidence. Moreover, effective gatekeeping is consistent with the objectives of the rules of evidence, not to mention ethical requirements that judges secure the integrity of the trial process.

"Juror attempts to 'friend' defendant on Facebook"

This did not amuse the judge. The story is here. Hat tip: Crime & Consequences.

"Gun Inquiry Costs Officials Their Jobs"

From the New York Times:

WASHINGTON — The Obama administration on Tuesday replaced two top Justice Department officials associated with an ill-fated investigation into a gun-trafficking network in Arizona that has been at the center of a political conflagration.

. . .

Run by the bureau’s Phoenix division, the operation, called Operation Fast and Furious, ran from late 2009 to early 2011. Its strategy was to watch suspected “straw” gun buyers, rather than moving as quickly as possible to arrest them and seize the weapons, in the hope of identifying higher-level conspirators — as drug investigations are often conducted.

The operation was internally controversial because the firearms bureau traditionally puts a priority on getting guns off the street. It also lacked adequate controls — one straw purchaser bought more than 600 weapons, and agents lost track of hundreds. Many later turned up at crime scenes in Mexico, and two were recovered at a site in Arizona where a United States Border Patrol agent was killed.

Lerner on Juvenile Criminal Responsibility

Craig S. Lerner (George Mason University School of Law) has posted Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.

This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders – fortunately rare – who are as least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism. The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.

Ball on Normative Elements of Parole Risk

W. David Ball (Santa Clara School of Law) has posted Normative Elements of Parole Risk (Stanford Law & Policy Review, Vol. 22, No. 2, p. 395, 2011) on SSRN. Here is the abstract:

Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.

One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this might seem, there is no analysis of costs and benefits in California beyond the requirement that any risk not be “unreasonable.”

But even if we could figure out costs and benefits with a greater degree of precision than is currently possible, quantification of the costs and benefits still does not tell us whether the risk is worth taking. This Essay proposes that our conversations about risk are not merely confined to bloodless, actuarial issues: they need to involve normative issues as well.

I propose, as a means of examining these issues, two contradictory mechanisms for pushing the normative issues to the fore, one systemic, the other individualistic. The systemic mechanism would answer the question by establishing hard numbers for release – such as population or percentage targets. This would push the system as a whole away from individual assessments towards decisions more in line with social costs and benefits. The individual mechanism, on the other hand, would account for the normative elements of parole release, leaving the decision to a body used to fact-intensive inquiries that require moral legitimacy: the jury.

Ultimately, these two proposals highlight the hybrid nature of parole – its mixture of risk and desert. By exploring these two proposals, I hope to deepen the conversation about ways in which the goals and objectives of parole determine the procedures and mechanisms of release.

Coverage of New Jersey opinion on eyewitness identifications

The New York Times has this article and links to the opinion here. From the article:

The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.

In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.

. . .

Although some states are studying revisions or require single changes in procedure, only two — New Jersey and North Carolina — mandate the two practices that researchers regard as most important: lineups that are blinded, that is, administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and photo arrays that are presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.

"First Circuit upholds right to record public police action"

Jurist has the report on this case.

Anderson on Viewing Excessive Defense Caseloads as Conflicts of Interest

Heidi Reamer Anderson (Florida Coastal School of Law) has posted Funding Gideon's Promise by Viewing Excessive Caseloads as Conflicts of Interest on SSRN. Here is the abstract:

Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two - the one that has slipped by without sufficient notice or criticism - is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.

In this article, I urge courts to “constitutionalize” the excessive caseload problem via two steps of their own. First, courts explicitly should recognize that excessive caseloads create unethical conflicts of interest for the public defenders laboring under them. Second, courts should equate excessive caseload conflicts with joint representation conflicts. Once viewed as that type of conflict, excessive caseloads then would be evaluated under Sullivan’s “adverse effect” test instead of under Strickland’s more stringent “actual prejudice” test. Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own - finally provide adequate funding for indigent representation consistent with Gideon’s promise.

Buchhandler-Raphael on Prosecutorial Misuse of Terrorism Offenses

Michal Buchhandler-Raphael (Washington and Lee University - School of Law) has posted What's Terrorism Got to Do with it? The Perils of Prosecutorial Misuse of Terrorism Offenses on SSRN. Here is the abstract:

State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism - a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and beyond the terrorism context.

The Article suggests that one direct implication of the failure to accurately define terrorism and make it an element of terrorism crimes is that the distinction between terrorism and “ordinary” crime becomes ambiguous. The Article identifies an unexplored problem in the criminal law against terrorism: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism as this term is commonly understood. The Article examines the risks and unintended consequences of this prosecutorial practice, ranging from treating similarly situated defendants differently to potentially opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.

To remedy the above problems, the Article proposes legislative reform concerning the elements of terrorism offenses by making specific intent to coerce governments to change their actions and policies the required mental state for conviction.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	425	Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes Thomas H. Cohen, U.S. Bureau of Justice Statistics, Date posted to database: July 1, 2011
2	310	Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration Rates - And Why it Should W. David Ball, Santa Clara School of Law, Date posted to database: June 28, 2011
3	228	Re-Thinking Illegal Entry and Re-Entry Doug Keller, Georgetown University Law Center , Date posted to database: July 14, 2011 [4th last week]
4	180	The Causes of Growth in Prison Admissions and Populations John F. Pfaff, Fordham University - School of Law, Date posted to database: July 15, 2011 [5th last week]
5	165	Mass Exoneration Data and the Causes of Wrongful Convictions Russell D. Covey, Georgia State University College of Law, Date posted to database: July 8, 2011 [7th last week]
6	148	Solicitation, Extortion, and the FCPA Joseph W. Yockey, University of Iowa College of Law, Date posted to database: July 28, 2011 [9th last week]
7	136	Rawls' Concept of Reflective Equilibrium and its Original Function in 'A Theory of Justice' John Mikhail, Georgetown University - Law Center, Date posted to database: July 21, 2011 [8th last week]
8	127	Mental Disorder and Criminal Law Stephen Morse, University of Pennsylvania Law School, Date posted to database: July 24, 2011 [new to top ten]
9	126	Last Chance on Death Row William Baude, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Date posted to database: July 11, 2011 [10th last week]
10	116	The Uncertain Legal Status of the Aggression Understandings Kevin Jon Heller, Melbourne Law School, Date posted to database: July 11, 2011 [new to top ten]

Denno on Neuroscience, Fairness and Effectiveness in Punishment

Deborah W. Denno (Fordham University School of Law) has posted Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively (CHANGING LAW'S MIND: HOW NEUROSCIENCE CAN HELP US PUNISH CRIMINALS MORE FAIRLY AND EFFECTIVELY, Oxford University Press, Forthcoming, Fordham Law Legal Studies Research Paper) on SSRN. Here is the abstract:

A criminal justice system should protect society from crime and also punish criminals at the level of their blameworthiness. Changing Law’s Mind contends that new insights about the brain can help us in the quest to construct a fairer and more effective criminal justice system. Recent neuroscientific discoveries suggest that some of our previous intuitions about human culpability fail to reflect the reality of how the brain functions. If we ignore these developments, we risk perpetuating a justice system that punishes some people far too much and others too little or not at all.

The intersection of law and neuroscience is a thriving topic, but this book is unique. Many books and chapters in edited books focus narrowly on issues such as the diagnosis and effect of brain abnormalities or the possibility that neuroscience will someday perfect lie detection. Changing Law’s Mind, instead, provides readers with a foundation in both the legal doctrine and neuroscience and then uses that bridge to question the criminal law’s underlying principles and practice, starting from the moment a case is processed in the system to the point at which a defendant is sentenced and punished. Based on this assessment, the book suggests ways in which the criminal law can change - either quickly by accommodating our new understanding of the human mind into current practice or more fundamentally by incorporating this understanding into long-term modifications of criminal law doctrine.

Mnookin on the West Memphis Three

Jennifer Mnookin has this piece in the L.A. Times, posed at Statesman.com. In part:

So what produces wrongful convictions? At least three of the often-seen causes were present here: dubious forensic science evidence, false confessions, and evidence from unreliable jailhouse informants who often have a strong incentive to tell law enforcers what they want to hear.

Hat tip: Claudio Giusti.

"U.S. Widens Role in Mexican Fight"

From the New York Times. In part:

WASHINGTON — The Obama administration has expanded its role in Mexico’s fight against organized crime by allowing the Mexican police to stage cross-border drug raids from inside the United States, according to senior administration and military officials.

Mexican commandos have discreetly traveled to the United States, assembled at designated areas and dispatched helicopter missions back across the border aimed at suspected drug traffickers. The Drug Enforcement Administration provides logistical support on the American side of the border, officials said, arranging staging areas and sharing intelligence that helps guide Mexico’s decisions about targets and tactics.

Officials said these so-called boomerang operations were intended to evade the surveillance — and corrupting influences — of the criminal organizations that closely monitor the movements of security forces inside Mexico. And they said the efforts were meant to provide settings with tight security for American and Mexican law enforcement officers to collaborate in their pursuit of criminals who operate on both sides of the border.

Chin on Pre-Sentence Report after Padilla

Gabriel J. Chin (University of California, Davis, School of Law) has posted Taking Plea Bargaining Seriously: Reforming Pre-Sentence Reports after Padilla v. Kentucky
(St. Louis University Public Law Review, Forthcoming) on SSRN. Here is the abstract:

This essay proposes two reforms to the pre-sentence report (PSR) in light of increasing recognition that plea bargaining, not trial, is the major decision point in criminal prosecutions.

PSRs are important to plea bargaining and sentencing because they contain the critical information that will be used in imposing a sentence. The sentence will sometimes be mandated by the criminal record and other information in the PSR; for example, a record may mean that there is a mandatory minumum sentence, or that probation is unavailable. In most other cases, the sentence will be highly influenced by the contents of the PSR. Given the importance of the PSR, in a rationally designed system, the PSR would be available before critical decisions about the case are made. Yet, under current practice, the PSR is generally not prepared or available until after entry of a guilty plea. This means that all parties are pleading in the dark – they can be surprised by a mandatory or presumptive sentence based on ignorance or misunderstanding of the defendant's criminal record or other important, pre-existing facts. While deferring preparation of the PSR until after disposition might have made sense in an era when many cases went to trial, it is unacceptable when virtually all cases are pleaded. Accordingly, PSRs should be prepared in advance of pleas, so that all parties can make a deal knowing the facts that reveal what the bargain actually means.

This essay also suggests that, in accordance with existing law, PSRs should identify collateral consequences and other legal restrictions which are not nominally part of the criminal sentence, in order to provide a guide for a defendant's conduct (18 U.S.C. 3563(d)), and to establish the defendant's post-release financial condition for purposes of calculating restitution and fines. (Fed. R. Crim. P. 32(D)(2)(A)(ii).).

Mannheimer on the Federal Death Penalty and Michael Jacques

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Self-Government, the Federal Death Penalty, and the Unusual Case of Michael Jacques (Vermont Law Review, Vol. 36, 2011) on SSRN. Here is the abstract:

In prior work I have argued that the Cruel and Unusual Punishments Clause of the Eighth Amendment should be read to prohibit the federal government from imposing the death penalty for crimes occurring within States that do not authorize capital punishment. This Article elaborates upon that argument and situates it within the particular context of the case of United States v. Michael Jacques. Jacques is being prosecuted for the kidnapping, rape, and murder of his twelve-year old niece, alleged to have taken place entirely within the State of Vermont, which does not authorize the death penalty. Because Jacques allegedly used text messages and a social networking website to facilitate the kidnapping, however, his crime constitutes a federal kidnapping, punishable by death because the victim was killed.

This Article suggests that the Anti-Federalist insistence in the founding period on local control of criminal justice, of which Cruel and Unusual Punishments Clause was one aspect, is easily translatable into modern notions of the complementarity of political power, political responsibility, and political accountability. The Anti-Federalists believed that political power was best exercised at the local level. To the extent they were willing to abide a delegation of that power, they demanded that the locus of political power not be too far from the people so that the political decision-makers be held accountable to their constituents. Only in that way can the people take on the benefits and burdens of self-government. The chief benefit of localized self-government is that localized decisions most accurately reflect the needs and sentiments of the community, and are, in that sense, “better” than decisions made by more distant political actors. But this benefit comes at a price: the burden of making difficult decisions. Among the most difficult decisions a polity can make is whether to authorize, seek, and impose the ultimate penalty for the worst criminal offenses. The value of self-government is diminished when those decisions are of no real-world consequence because other, more distant and less accountable officials ultimately decide whether the worst offenders should forfeit their lives. The result is a degradation of political power and the concomitant evaporation of political responsibility. Such is the case where a State feels no need to visit or re-visit the difficult question of capital punishment because the federal government can be relied upon to handle the very worst cases.

The criminal procedure protections of the Bill of Rights represent an effort by the Anti-Federalists, those who most strongly pushed for the Bill, to retain localized control over criminal justice, thereby ensuring that the States would enjoy the benefits and burdens of self-government at least in that narrow but critically important realm. These protections should be read as embracing the requirement that the most difficult questions faced by the polity, those of crime and punishment, generally be reserved for the States. In particular, the Cruel and Unusual Punishments Clause should be read as generally preserving state control of the outer bounds of criminal punishment.

"No Pardons in ‘West Memphis Three’ Case"

From A.P., via the New York Times:

Gov. Mike Beebe said Tuesday that he did not plan to grant pardons in the “West Memphis Three” case unless evidence showed that someone else was to blame for the murders of three young boys in 1993. The three men who were convicted, Damien Echols, Jason Baldwin and Jessie Misskelley Jr., now have 10 years of what amounts to unsupervised probation after being released from custody on Friday in a swiftly arranged plea deal. Mr. Beebe said he did not consider pardons until all sentences were completed, and his term will have expired long before the probation ends. After an HBO documentary detailed their case in 1996, the men garnered celebrity support and hefty donations. The original murder convictions were set aside amid doubts about the evidence. The three pleaded guilty to lesser charges on Friday in exchange for sentences of the 18 years that they had already served.

Funk on Electronic Surveillance of Terrorism

William Funk (Lewis & Clark Law School) has posted Electronic Surveillance of Terrorism in the United States (Mississippi Law Journal, Vol. 80, No. 4, 2011) on SSRN. Here is the abstract:

This short article, prepared for an international forum on criminal procedure, describes the history of the use of electronic surveillance to combat terrorism in the United States. It shows how the restrictions on its use has evolved into a compromise between traditional law enforcement norms and military/national security norms, just as the apprehension and treatment of terrorists has muddled the law enforcement and military roles. The article concludes that the Foreign Intelligence Surveillance Act’s compromise is a reasonable accommodation of the peculiar characteristics of modern, international terrorism.

Perlin on Mental Disabilities and the Competence to Have Sex

Michael L. Perlin (New York Law School) has posted 'All His Sexless Patients': Persons with Mental Disabilities and the Competence to Have Sex on SSRN. Here is the abstract:

Few questions of competency are as befuddling or as controversial as the question of a person’s competency to consent to sexual relations. Any consideration of this question necessarily implicates issues of law and clinical assessment, and analyses of this question are usually conflated with discussions of politics, social mores and “morality.” This inquiry is further complicated by the fact that there is no unitary definition of “competence” in the law in general.

To seek to formulate even a tentative answer to this question, it is necessary to examine overlapping areas of civil and criminal law, including: definitions of “statutory rape,” including: the use of dyadic “blanket” statutory categories of exclusion based on age; the use of indeterminate (both statutory and caselaw-derived) categories of exclusion based on mental status; the right of persons with mental disability to engage in consensual sexual relations in: outpatient facilities, halfway houses, group homes, civil hospitals, forensic facilities, and the resolution of liability issues arising from tort suits alleging incompetence to consent (most frequently arising in cases in which the plaintiff alleges that an inebriated state robbed him or her of the power to consent).

Case examples will illustrate critical issues involved in determining competency to consent to sexual relations in individuals involved in both criminal and civil matters including those diagnosed with intellectual disabilities. Specific emphasis will be placed on utilizing assessment strategies that correctly identify cognitive, neuropsychological and psychiatric disorders which could influence competency.

This presentation will consider these questions, will seek to identify the factors that must be considered in determining “sexual competence,” will learn why this is such an underdiscussed area of discourse in the legal and behavioral communities, and will assess whether it is good law, mental health and/or policy to attempt to craft a unitary standard in this area of social behavior.