CrimProf Blog

Boruchowitz on Diverting and Reclassifying Misdemeanors

Robert C. Boruchowitz (Seattle University School of Law) has posted Diverting and Reclassifying Misdemeanors Could Save $1 Billion Per Year: Reducing the Need for and Cost of Appointed Counsel (American Constitution Society for Law and Policy, December 2010) on SSRN. Here is the abstract:

Reclassifying and diverting marijuana possession, driver's license suspension and other misdemeanors could save the indigent defense system as much as $1 billion per year, allowing overworked criminal defenders to devote time and resources to those charged with more serious crimes.

Fines on Criminal Activities and Ethical Responsibilities

Barbara Glesner Fines (University of Missouri at Kansas City - School of Law) has posted Criminal Activities and Ethical Responsibilities (Family Advocate, Vol. 33, No. 4, Spring 2011) on SSRN. Here is the abstract:

This article addresses the question of a lawyers professional responsibility when a seemingly simple domestic relations case begins to turn into a major criminal catastrophe. Starting with ABA Model Rule 1.2(d) that an attorney “shall not counsel or assist in criminal or fraudulent conduct but may discuss the legal consequences of proposed conduct…”it analyzes the attorney’s responsibilities in the context of a hypothetical case involving hidden assets and misrepresented financial statements. Options to withdraw under Model Rule 1.16(b) are discussed along with the questions raised therefrom and the lawyer’s Model Rule 4.1(b) obligation not to knowingly fail to disclose material facts. From there the nightmare turns criminal as the hypothetical client is indicted raising issues ranging from emergency lawyering under Model Rule 1.1 to the lawyers own fees being subject to forfeiture. In conclusion it is nearly impossible to screen out every client who may bring criminal activities into family law representation. However, with careful research, clear communication, and documentation, a lawyer will be able to find a route out of the nightmare without being caught up in the criminal activity itself.

Maclin & Mirabella on Framing the Fourth

Tracey Maclin and Julia Grace Mirabella (Boston University - School of Law and Boston University School of Law) have posted Framing the Fourth (Michigan Law Review, Vol. 109, pp. 1049-1076, April 2011) on SSRN. Here is the abstract:

Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165.

History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law.

Cuddihy’s historical analysis is unprecedented. As Justice O’Connor has described it, Cuddihy’s work is “one of the most exhaustive analyses of the original meaning of the Fourth Amendment ever undertaken.” Cuddihy reviewed thousands of sources and has endeavored to identify the types of search and seizure that the Framers’ considered constitutional. However, Cuddihy’s scholarship has also triggered a sharp debate about the Framers’ intent among Fourth Amendment scholars.

This Review provides readers with some of Cuddihy’s main arguments. Part I identifies aspects of search and seizure doctrine that Cuddihy finds had a consensus by 1791 and briefly looks at other areas that were unsettled. Part II describes some of the scholarly reaction that Cuddihy’s book has ignited. Specifically, this section outlines the points of agreement and disagreement between Cuddihy and Professors Thomas Davies and Fabio Arcila. Finally, Part III compares Justice Scalia’s use of history in a recent case with Cuddihy’s findings, and offers a few comments on the guidance that Cuddihy’s book can provide to modern judges.

Carodine on "Untried Conviction" Impeachment

Montré Denise Carodine (University of Alabama - School of Law) has posted Keeping it Real: Reforming the ‘Untried Conviction’ Impeachment Rule(Maryland Law Review, Vol. 69, p. 501, 2010) on SSRN. Here is the abstract:

There is a growing call for a “New Legal Realism,” that, among other things, takes a “bottom-up” approach to studying the effects of rules of law on the people to whom they actually apply on a day-to-day basis. The New Legal Realism movement spans across various fields and disciplines related to law. The movement is particularly evident in the area of criminal law where there is an increasing effort to ensure reliability and accuracy in the system’s results. The recent move of some states to require racial impact statements for pending legislation as well as the advocacy and findings of the innocence movement exemplify this effort. Even more compelling are the recent lawsuits filed by public defenders in several states, citing their inability to represent their clients in a constitutionally effective manner and demanding to have their caseloads reduced until they can be adequately funded. This Article aids in the effort to improve our justice system’s reliability, taking a New Legal Realist approach to the area of evidence law as applied in the criminal setting.

I explore the interrelationship between plea bargaining and the use of prior convictions to impeach criminal defendants at trial, two of the most controversial practices in the criminal justice system. The prior conviction impeachment rule is a classic and deeply entrenched evidentiary rule. In this Article, I rename the Rule, dubbing it the “untried conviction” impeachment rule, to reflect the reality of its application. Indeed, the reality – overlooked by evidence and criminal law scholars – is that prior convictions used in later proceedings to “impeach” criminal defendants are most often untried convictions, having resulted from the plea bargaining system. I propose a fundamental shift in the application of Rule 609 to reflect this reality. Plea bargaining has rightly come under much scrutiny of late and is considered a prominent feature of our current system that processes defendants in an assembly-line fashion. I propose that, as long as we continue to impeach defendants with their untried convictions, Congress and state legislatures should act to exclude from Rule 609’s applicability the use of untried convictions. Alternatively, until lawmakers act, courts, who are charged with protecting the fundamental rights of criminal defendants, must vigilantly scrutinize the practice of impeaching criminal defendants with untried convictions, thus utilizing Rule 609 as an additional check on plea bargaining instead of as a rubber stamp.

Dervan on the DOJ and Corporate Criminal Liability

Lucian E. Dervan (Southern Illinois University School of Law) has posted Re-Evaluating Corporate Criminal Liability: The DOJ’s Internal Moral Culpability Standard for Corporate Criminal Liability (Stetson Law Review, Forthcoming) on SSRN. Here is the abstract:

This article examines the common law respondeat superior test for corporate criminal liability and proposes that it be expanded beyond the current two prong test to encompass a third prong regarding moral culpability. Further, this article supports this proposal by noting that the Department of Justice has already incorporated a moral culpability element into its analysis of corporate criminal liability through application of the Department’s Principles of Federal Prosecution of Business Organizations. While some might argue that one should be satisfied that the Department of Justice has seen fit to implement a new corporate criminal liability standard on its own volition, there are two fundamental flaws with allowing the status quo to suffice. First, while the government’s consideration of the Principles of Prosecution may be “mandatory,” these guidelines create no legal rights for corporate defendants. Second, the Principles of Prosecution contain elements for consideration that are outside the applicable scope of inquiry because they examine actions by the corporation that occur after the criminal conduct under scrutiny. As such, this article proposes a revised common law respondeat superior test that focuses the analysis of whether the corporation is morally culpable on a refined and appropriately limited group of pre-offense and offense specific factors.

Berry on the European Prescription for Ending the Death Penalty

William W. Berry III (University of Mississippi School of Law) has posted The European Prescription for Ending the Death Penalty on SSRN. Here is the abstract:

The United States of America remains the only Western democracy that continues to use capital punishment. Europeans, particularly in the academic community, continue to express outrage and disbelief at its persistence, especially given America’s twentieth century role as the world leader in challenging abuses of human rights.

This sociological question – why the United States retains the death penalty – has spawned a burgeoning academic literature. This literature has both deepened cultural understandings of the death penalty and raised questions concerning the degree to which (and in what ways) the United States is “exceptional” when compared to other Western democracies.

What has been missing from these discussions is a thorough account of the abolition of the death penalty in European nations. Such an account helps to address a number of questions: whether culture plays a significant role in the abolition of capital punishment; whether the United States is exceptional in a way that explains the persistence of its death penalty; and whether the United States is mirroring the same trajectory of its European counterparts, albeit at a slower pace.

At its heart, the entire academic discussion is subconsciously both predictive and prescriptive. In other words, explaining the persistence of the death penalty can both predict – will the United States ever abolish the death penalty? If so, how and when? – and prescribe – is there a way to advance the United States along the path to abolition, either by following the path of the Europeans, or following a new path that takes into account the cultural distinctiveness or other exceptional features of the United States?

In his recent book, Ending the Death Penalty: the European Experience in Global Perspective, German law professor Andrew Hammel attempts to provide the missing piece to the conversation through a careful study of the death penalty’s demise in Europe. He focuses on three nations – Germany, Great Britain, and France – and provides a detailed, play-by-play analysis of the events that led to abolition of the death penalty in each country. In addition to the value of this history itself, Hammel attempts to situate these parallel developments in a broader context by linking them together to delineate the European “path to abolition.” Finally, Hammel tackles the meta question – why have these patterns not become manifest in the United States – and outlines his view of death penalty persistence in America.

This book review first describes the conclusions reached by Hammel, as drawn from his compelling narrative of three parallel abolitions. The review then assesses Hammel’s arguments as to why the European model has seemingly had no impact in the United States. Finally, this review situates Hammel’s contributions within the broader debate, arguing that insights from the European experience can serve as a catalyst for death penalty abolition in the United States.

Argument transcript in case involving relevance of age in determining custody under Miranda

The case is J.D.B. v. North Carolina.

Argument transcript in right to counsel case

The case is Turner v. Rogers.

Statement respecting denial of cert in warrantless environmental search of residential backyard

In Huber v. New Jersey Department of Environmental Protection, Justice Alito prepared a statement, joined in by the Chief Justice and Justices Scalia and Thomas, agreeing with denial of cert "because this case comes to us on review of a decision by a state intermediate appellate court" but stating, "This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment's warrant requirement."

California proposal to regulate executive clemency

The story is from the San Diego Union Tribune:

Sacramento — The Assembly Public Safety Committee Tuesday approved legislation to crack open the now-secretive clemency process.

The unanimous vote delivered an early victory to prosecutors and families furious over former Gov. Arnold Schwarzenegger’s surprise order to more than halve the prison sentence imposed on the son of a political ally involved in a murder at San Diego State University.

. . .

Assembly Bill 648 would require that prisoners applying for early release or a pardon notify county prosecutors, who then would inform victims and their families who may want to protest. The notice would have to be given 30 days before a governor can act on the request.

Transcript of argument on identity-related documents and the exclusionary rule

The case is Tolentino v. New York.

Transcript in argument on good faith, the exclusionary rule, and changing law

The case is Davis v. United States.

Today's criminal law/procedure cert grants

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

• Maples v. Allen: Whether the Eleventh Circuit properly held that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default.
• Rehberg v. Paulk: Whether a government official who acts as a “complaining witness” by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	468	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011
2	413	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
3	320	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 [4th last week]
4	318	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 [5th last week]
5	268	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 [6th last week]
6	260	Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail, Georgetown University - Law Center, Date posted to database: February 14, 2011 [7th last week]
7	241	Sorting Guilty Minds Francis X. Shen, Morris B. Hoffman, Owen D. Jones, Joshua D. Greene, Rene Marois, Vanderbilt Law School, Second Judicial District (Denver), State of Colorado, Vanderbilt University - Law School & Department of Biological Sciences, Harvard University, Department of Psychology, Vanderbilt University - Department of Psychology, Date posted to database: February 24, 2011 [new to top ten]
8	241	'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
9	198	Brain Scans as Evidence: Truths, Proofs, Lies, and Lessons Francis X. Shen, Owen D. Jones, Vanderbilt Law School, Vanderbilt University - Law School & Department of Biological Sciences, Date posted to database: February 24, 2011 [new to top ten]
10	175	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 [new to top ten]