CrimProf Blog

Brooks on Autonomy, Freedom and Punishment

Thom Brooks (Newcastle University - Newcastle Law School) has posted Autonomy, Freedom, and Punishment (Jurisprudence, Forthcoming) on SSRN. Here is the abstract:

In Punishment and Freedom, Alan Brudner offers an important contribution to how we understand retributivism and legal punishment with his theory of “legal retributivism.” One aspect of his legal retributivism is that we punish others not necessarily for the harms they threaten or enact, but for their threat to our individual autonomy. There is much promising in this account, although I believe that there are some significant concerns which remain. This essay will explain these concerns and why they may prove troublesome for legal retributivism.

Vandevort on Mens Rea and Underage Sex Workers

Lucinda Vandervort (University of Saskatchewan) has posted 'Too Young to Sell Me Sex!?' Mens Rea, Mistake of Fact, Reckless Exploitation, and the Underage Sex Worker (Criminal Law Quarterly, Vol. 58, 2011) on SSRN. Here is the abstract:

In 1987, apprehension that “unreasonable mistakes of fact” might negative mens rea in sexual assault cases led the Canadian Parliament to enact “reasonable steps” requirements for mistakes of fact with respect to the age of complainants. The role and operation of the “reasonable steps” provisions in ss. 150.1(4) and (5) and, to a lesser extent, s. 273.2 of the Criminal Code, must be reassessed. Mistakes of fact are now largely addressed at common law by jurisprudence that has re-invigorated judicial awareness of the evidentiary requirements for the availability of defences at common law and explicitly defines “honest belief” as a belief that is neither reckless nor willfully blind. As a consequence of these common law developments, the defence of mistake of fact with respect to age is rarely available as a matter of law. Properly used, these common law analytic tools afford minors and under-age sex-workers better legal protection from sexual exploitation than has often been achieved in practice over the last 25 years with the “reasonable steps” requirement under ss. 150.1(4) and (5).

Socio-economic inequalities ensure that aboriginal children and youth are disproportionately affected by the non-enforcement, under-enforcement, and selective enforcement of laws enacted to protect minors against sexual assault and participation in sex work, especially street sex work. Continued reliance by prosecutors and judges on out-moded jurisprudence in the screening, prosecution, and disposition of these cases in the criminal justice system reinforces existing patterns of inequality and disadvantage and violates basic principles of human rights.

Craig on Delayed Allegations of Sexual Assault

Elaine Craig (Dalhousie University - Schulich School of Law) has posted The Relevance of Delayed Disclosure to Complainant Credibility in Cases of Sexual Offence (Queen's Law Journal, Vol. 36, 2011) on SSRN. Here is the abstract:

The relevance of delayed disclosure to a complainant’s credibility in sexual assault cases remains a problematic and confusing area in the law of evidence. Although section 275 of the Criminal Code abrogates the rules regarding recent complaint, courts have been inconsistent in their interpretation and application of the provision since its enactment in 1983. The doctrine of recent complaint evolved from the assumption that a woman who is sexually assaulted will disclose her violation at the first reasonable opportunity. In R. v. D.D., the Supreme Court of Canada ruled that it is impermissible to draw an adverse inference as to a complainant’s credibility based solely on delayed disclosure. Despite this decision and section 275, many courts still rely on the assumption that real victims of sexual violence will tell someone promptly.

In examining D.D.’s treatment in subsequent case law, the author finds that in many sexual assault cases the starting presumption is still that victims who fail to complain promptly are less credible. The author explains that the persistence of the “hue and cry” myth results from ingrained social assumptions about how sexual assault victims behave.

Triers of fact continue to resort to these problematic assumptions to fill gaps in reasoning regarding circumstances where they have no firsthand knowledge or experience. The author argues that it may not be enough to identify a particular social assumption as problematic.

In conclusion, the author makes two recommendations. First, trial judges should circumscribe defence counsel cross-examination on delayed disclosure if the defence has offered no evidence or explanation suggesting that the delay is relevant for some purpose other than the hue and cry assumption. Second, the Supreme Court of Canada ought to re-visit the conclusion in D.D. that expert evidence on the irrelevance of delayed disclosure, standing alone, is not necessary.

From on Willful-Blindness Jury Instructions

Justin C. From has posted Avoiding Not-So-Harmless Errors: Clear Guidelines for the Appellate Review of Willful-Blindness Jury Instructions (Iowa Law Review, Vol. 97, 2011) on SSRN. Here is the abstract:

From fairly inconspicuous beginnings, the willful-blindness doctrine has proliferated throughout the federal courts. Federal prosecutors currently request willful-blindness jury instructions even when the evidence does not warrant their use, and trial judges frequently grant these requests over defense objections that inappropriate willful-blindness instructions confuse jurors and relieve prosecutors of their burden of proof with regards to the defendant’s mental state. One of the primary reasons why the federal courts misuse willful-blindness instructions is that the federal circuits have developed a confusing series of splits about the appropriate guidelines for the appellate review of willful-blindness instructions. To curb misuse of willful-blindness instructions, appellate courts should use the abuse-of-discretion standard to review a trial court’s decision to give a willful-blindness instruction, use the de novo standard to review the accuracy of the wording of a willful-blindness instruction, and delineate specific instances where the inappropriate use of willful-blindness instructions is not harmless, especially in the context of white-collar criminal prosecutions.

Skeem & Monahan on Violence Risk Assessment

Jennifer L. Skeem and John Monahan (pictured) (University of California, Irvine and University of Virginia School of Law) have posted Current Directions in Violence Risk Assessment (Current Directions in Psychological Science, Forthcoming) on SSRN. Here is the abstract:

A variety of instruments have been published over recent years that improve clinicians’ ability to forecast the likelihood that an individual will behave violently. Increasingly, these instruments are being applied in response to laws that require specialized risk assessments. In this article, we present a framework that goes beyond the "clinical" and "actuarial" dichotomy to describe a continuum of structured approaches to risk assessment. Despite differences among them, there is little evidence that one validated instrument predicts violence better than another. We believe that these group-based instruments are useful for assessing an individual’s risk, and that an instrument should be chosen based on an evaluation’s purpose (i.e., risk assessment vs. risk reduction). The time is ripe to shift attention from predicting violence to understanding its causes and preventing its (re)occurrence.

Guttel & Teichman on Protecting the Innocent by Increasing Penalties

Ehud Guttel and Doron Teichman (Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law) have posted Criminal Sanctions in the Defense of the Innocent
(Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

Under the formal procedural rules, fact-finders are required to apply a uniform standard of proof in all criminal cases. Experimental studies as well as real world examples indicate, however, that fact-finders often adjust the evidentiary threshold for conviction in accordance with the severity of the applicable sanction. All things being equal, the higher the sanction, the higher the standard of proof fact-finders will apply in order to convict. Building on this insight, this Article introduces a new paradigm for criminal punishments – a paradigm that focuses on designing penalties that will reduce the risk of unsubstantiated convictions. By setting mandatory penalties of sufficient size, the legal system can induce fact-finders to convict only if sufficient admissible evidence proves the defendant’s guilt. This Article applies this theoretical framework to three concrete contexts that involve a high risk of erroneous convictions: the right to silence, inchoate crimes and the punishment of recidivists. It is shown that a sanctioning regime that is attuned to the probative function of punishment can protect innocent defendants from unsubstantiated convictions while not sacrificing the dictates of both deterrence and retribution.

Pinguelo & Muller on Cybercrimes

Fernando M. Pinguelo and Bradford W. Muller have posted Virtual Crimes – Real Damages: A Primer on Cybercrimes in the United States and Efforts to Combat Cybercriminals (Virginia Journal of Law and Technology, Forthcoming) on SSRN. Here is the abstract:

A dangerous aspect of the Internet Age that all businesses and government agencies must effectively counteract is cybercrime. As technology advances, so do the criminals. Recent media coverage of the attacks on corporate websites in response to the lockdown on WikiLeaks and its founder has renewed public focus on the vulnerabilities of corporate IT security and the profile of cybercriminals. While the recent cyber strikes on Amazon, PayPal, and MasterCard may not have been as debilitating as some other more elaborate schemes, the assault demonstrates how quickly a group of loosely affiliated hackers can mobilize behind a cause – or in the case of Julian Assange, a martyr – and bring about significant inconvenience, if not considerable damage.

For American businesses, and government at the federal and state levels, the potential cost of these attacks is staggering. President Obama has made the stakes clear, arguing that the “cyber threat is one of the most serious economic and national security challenges we face as a nation” and “America’s economic prosperity in the 21st century will depend on cybersecurity.” In this article, we endeavor to explain what cybercrimes are, profile the cybercriminal, provide a discussion of some of the most common forms of cybercrimes affecting American businesses and the federal and state governments today, and discuss action that the government and businesses are taking to fight back.

Fairfax on Outsourcing Criminal Prosecution

Roger Fairfax (George Washington University - Law School) has posted Outsourcing Criminal Prosecution?: The Limits of Criminal Justice Privatization (University of Chicago Legal Forum, Vol. 2010, p. 265, 2010) on SSRN. Here is the abstract:

In an era of scarce public resources, many jurisdictions are being forced to take drastic measures to address severe budgetary constraints on the administration of criminal justice. As prosecutors’ offices around the nation are being scaled back and enforcement priorities are being narrowed, one conceivable response is the outsourcing of the criminal prosecution function to private lawyers. Indeed, prosecution outsourcing currently is utilized in surprising measure by jurisdictions in the United States. This Article, prepared for the University of Chicago Legal Forum Symposium on Crime, Criminal Law, and the Recession, argues that the outsourcing trend in criminal justice – seen most prominently in the area of private prisons and policing – should not extend to criminal prosecution because such outsourcing is in tension with the constitutional and positive law norms regulating the public-private distinction. Furthermore, concerns about ethics, fairness, transparency, accountability, performance, and the important values advanced by the public prosecution norm all militate against the outsourcing of the criminal prosecution function to private lawyers.

Bowers on LWOP

Josh Bowers (University of Virginia School of Law) has posted Mandatory Life and the Death of Equitable Discretion (LIFE WITHOUT PAROLE, THE NEW DEATH PENALTY, Forthcoming) on SSRN. Here is the abstract:

This essay is a contribution to a book that asks the question whether life without parole (LWOP) is the new death penalty. The essay claims that the punishment - at least in its mandatory form - is not so much the new death penalty as the old one (but not quite). Specifically, contemporary capital punishment expressly admits - indeed requires - an equitable determination. That is, before imposing the death penalty, the capital-sentencing jury is called upon to exercise practical wisdom based on everyday experience to reach a commonsense determination of normative blameworthiness - to consider not only the particulars of the criminal incident but also the social and psychological circumstances of the defendant. By contrast, LWOP is frequently a mandatory punishment over which a jury holds no equitable sway. In this way, mandatory LWOP bears a closer resemblance to the historical mandatory death penalty. But, significantly, the analogy between the historical death penalty and modern mandatory LWOP is imperfect. Although the pre-modern jury lacked power over the sentencing determination, it enjoyed considerable influence over the guilt determination, both because common-law liability rules were more flexible and because the pre-modern jury was arbiter of both law and fact. Thus, the pre-modern jury retained robust authority to circumvent mandatory penalties in equitably problematic cases. Comparatively, the modern LWOP jury is hamstrung by a more substantively and procedurally rigid and formalized criminal-justice system. Thus, the LWOP jury lacks the equitable safety valves that tempered application of both the historical death penalty and its modern capital corollary. To the extent an opportunity for equitable discretion remains in mandatory LWOP regimes, it rests wholly with the professional prosecutor, who controls the charging decision, but who concurrently has an institutional incentive to charge high to maximize bargaining power. In such circumstances, the prime determinate of whether a defendant receives an LWOP sentence is not normative blameworthiness but willingness to plead guilty. Mandatory LWOP is, thus, a punishment that only the interested prosecutor can temper effectively, but that the prosecutor has the least interest in tempering for equitable reasons alone.

Sklansky on Police Professionalism

David Alan Sklansky (University of California, Berkeley - School of Law) has posted The Persistent Pull of Police Professionalism (New Perspectives in Policing, March 2011) on SSRN. Here is the abstract:

The focus of this short essay is the renewed popularity of the ideal of police professionalism. That ideal dominated efforts at police reform throughout most of the twentieth century, and especially from the 1950s through the early 1970s, but in the 1980s and 1990s was supplanted by community policing as the reigning orthodoxy of police reform. At its core, police professionalism had three elements: police departments should focus on crime suppression; they should do so objectively and scientifically, free from political influence; and authority within the department should be centralized and rationalized. Community policing departed from police professionalism in each of these three respects. Police departments broadened their focus from crime control to a range of other goals; they selected and pursued those goals in consultation and cooperation with the public; and, to facilitate that consultation and cooperation, authority within departments was decentralized.

Outside law enforcement circles, the ideal of community policing remains broadly popular. Inside policing, though, a sense has been growing for at least the past decade that it is time for something new. That sense is still far from universal. Many police executives and many police reformers continue to believe in community policing. But for years other figures within policing have been casting about for the next big thing. There are signs that those efforts are beginning to coalesce, and that the next big thing is … police professionalism. No one is arguing explicitly that policing should return to the 1960s. But there is increasing sympathy for the notions that police departments should focus on crime suppression, that they should do so in ways dictated by objective analysis rather than public whims, and that authority should be centralized and rationalized.

This paper begins by describing some of the ideas getting the most attention today in police management circles and the under-appreciated ways in which they constitute a return to the ideal of police professionalism. The paper then speculates about why professionalism, so recently discredited, seems to be coming back, and it sounds a note of caution, warning that, despite changes since the 1970s, there are still reasons for police departments to resist the pull of professionalism. The paper concludes by suggesting that the competing ideal of community policing, for all its ambiguity and limitations, may deserve a longer run.

Brown on Padilla

Darryl K. Brown (University of Virginia School of Law) has posted Why Padilla Doesn’t Matter (Much) (UCLA Law Review, 2011) on SSRN. Here is the abstract:

The U.S. Supreme Court’s decision in Padilla v. Kentucky might herald a breakthrough in the quality of representation provided to immigrants charged with crimes, and more broadly an advance in the Court’s recognition of the role both of plea bargaining in criminal adjudication and of the severe collateral consequences often triggered by convictions for citizen as well as alien defendants. There are good reasons to suspect, however that Padilla’s practical impact will be modest; for many non-citizen criminal defendants, including probably Jose Padilla himself, its impact will be non-existent. The Padilla holding seeks to ensure that defense lawyers are aware of severe collateral consequences that attach to convictions, in order both to inform their clients of those consequences to inform plea bargain negotiations among attorneys. The Court speculated that attorneys then may be able to craft alternative criminal or immigration-law outcomes through creative bargains. But the problem for many non-citizen defendants like Mr. Padilla is not simply - and not primarily - their lawyers’ unfamiliarity with immigration law; it is the content of the substantive criminal law, of sentencing law, of the sources of non-criminal law that define collateral consequences and, finally, of limited procedural possibilities for avoiding or mitigating those consequences. None of that law changes with Padilla. As a result, defense lawyers’ (and even prosecutors’) abilities to negotiate around criminal law or immigration law, and to achieve more favorable or just outcomes for defendants are not notably improved. Adding to those limitations, the pervasive inadequacies of indigent criminal defense, especially in state courts, are unaffected by Padilla, further diminishing the hope that attorneys’ awareness of collateral consequences will improve client representation and case outcomes.

"Two executions blocked over lawyers’ role"

From ScotusBlog:

The Supreme Court, delaying scheduled executions in Arizona and Texas on Monday night and Tuesday, has put itself in a position to take on an issue that has lingered unresolved for two decades: whether there is a constitutional right to a lawyer performing effectively in a new challenge started after a conviction has become final.

The Court has ruled previously that the right to a lawyer applies in several stages of a criminal case, including the first appeal after a guilty verdict is in, and it has ruled that the right includes a guarantee that the lawyer will have done an adequate job.  But the Court generally has refused to allow such a right in what is called a “post-conviction” challenge, often pursued under a habeas law once the first round of appeals is over and the conviction has become final.

Bedi on the Federal Defenses of Duress and Necessity

Monu Singh Bedi (Stetson University College of Law) has posted Excusing Behavior: Reclassifying the Federal Common Law Defenses of Duress and Necessity Relying on the Victim’s Role (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

This article presents a theory for classifying the affirmative defenses of duress and necessity that focuses on the role of the victim in the criminal act and ultimately categorizes both defenses as excused acts. Necessity typically involves a defendant arguing that he committed the crime in order to avoid a greater evil created by natural forces. Duress usually entails a defendant arguing that he committed the crime in order to avoid unlawful physical threats made by a third party. Most scholars categorize duress as an excuse (wrongful conduct where the defendant is still found not culpable based upon mitigating circumstances) and necessity as a justification (encouraged or tolerated conduct where the defendant is found not culpable), but their focus has been on state law and related jurisprudence.

My article consists of two parts. First, I survey how federal courts have treated duress and necessity. I show that federal courts have applied similar standards both during the liability and sentencing phases of trial. In fact, some federal courts have adopted a consolidated definition for these affirmative defenses. This treatment suggests that duress and necessity should be classified in the same way.

The second part of the article focuses on the conceptual framework behind classifying these defenses. In light of federal jurisprudence on the subject, I critically examine the five main theories used to distinguish excused from justified actions. Scholars typically focus their attention on the defendant and what he does. The prominent theories include appealing to the type of harm the defendant causes, his particular state of mind, whether he deserves aid from another, whether his behavior conforms to a public norm, or whether his actions were warranted. However, none of these approaches provides a comprehensive methodology that accurately captures the nature of duress and necessity. Nor do any of them preserve our intuitions when applied to affirmative defenses such as self-defense and insanity.

The problem is that theorists have focused too heavily on the defendant. In doing so, they have left out the victim – the central figure who suffers the harm. My article seeks to change this defendant-oriented perspective when it comes to classifying duress and necessity. In the final part of the article, I outline an alternative theory that focuses on the victim’s role in the crime. As the person who paid the price for the defendant’s conduct, the victim should be our focus when morally judging what the defendant did. Where the victim played a direct role in what happened, the defendant’s action is better classified as a justification, and where the victim innocently suffered, the defendant’s action is better classified as an excuse. This focus on the victim’s culpability better captures the intuitive difference between excuse and justification and explains why duress and necessity (particularly, as used by federal courts) should be classified together as excused acts.

Miller on Nontestimonial Hearsay Under Bruton

Colin Miller (John Marshall Law School) has posted Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine on SSRN. Here is the abstract:

The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.

This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.

Today's criminal law/procedure cert grants

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

• Greene v. Fisher: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?
• Florence v. Board of Chosen Freeholders of the County of Burlington: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

Opinion on evidentiary record in federal habeas

The case is Cullen v. Pinholster. Here is the syllabus:

A California jury convicted respondent Pinholster on two counts of first-degree murder. At the penalty phase before the same jury, the prosecution produced eight witnesses, who testified about Pinholster’s history of threatening and violent behavior. Pinholster’s trial counsel, who unsuccessfully sought to exclude the aggravating evidence on the ground that the prosecution had not given Pinholster proper notice under California law, called only Pinholster’s mother. Counsel did not call a psychiatrist, though they had consulted with Dr. Stalberg, who had diagnosed Pinholster with antisocial personality disorder. The jury recommended the death penalty, and Pinholster was sentenced to death. Pinholster twice sought habeas relief in the California Supreme Court, alleging, inter alia, that his trial counsel had failed to adequately investigate and present mitigating evidence during the penalty phase. He introduced additional evidence to support his claim: school, medical, and legal records; and declarations from family members, one of his trial attorneys, and Dr. Woods, a psychiatrist who diagnosed him with bipolar mood disorder and seizure disorders, and who criticized Dr. Stalberg’s report. Each time, the State Supreme Court unanimously and summarily denied the claim on the merits. Subsequently, a Federal District Court held an evidentiary hearing and granted Pinholster federal habeas relief under 28 U. S. C. §2254. Affirming, the en banc Ninth Circuit considered the new evidence adduced in the District Court hearing and held that the State Supreme Court’s decision “involved an unreasonable application of . . . clearly established Federal law,” §2254(d)(1).

Held:

1. Review under §2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Pp. 8–14.

(a) As amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), §2254 sets several limits on a federal court’s power to grant habeas relief to a state prisoner. As relevant here, a claim that has been “adjudicated on the merits in State court proceedings,” “shall not be granted . . . unless the adjudication” “(1)resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law,” or “(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
§2254(d). This “difficult to meet,” Harrington v. Richter, 562 U. S. ___, ___, and “ ‘highly deferential standard’ . . . demands that state court decisions be given the benefit of the doubt,” Woodford v. Visciotti, 537 U. S. 19, 24. Section 2254(d)(1)’s backward-looking language—“resulted in” and “involved”—requires an examination of the state-court decision at the time it was made. It follows that the record under review is also limited to the record in existence at that same time—i.e., the state-court record. This understanding is compelled by “the broader context of the statute as a whole,” which demonstrates Congress’ intent to channel prisoners’ claims first to state courts. Robinson v. Shell Oil Co., 519 U. S. 337, 341. It is also consistent with this Court’s precedents, which emphasize that §2254(d)(1) review focuses on what a state court knew and did. See, e.g., Lockyer v. Andrade, 538 U. S. 63, 71–72. Moreover, it is consistent with Schriro v. Landrigan, 550 U. S. 465, 474, which explained that a federal habeas court is “not required to hold an evidentiary hearing” when the state-court record “precludes habeas relief” under §2254(d)’s limitations. The Ninth Circuit wrongly interpreted Williams v. Taylor, 529 U. S. 420, and Holland v. Jackson, 542 U. S. 649, as supporting the contrary view. Pp. 8–12.

(b) This holding does not render superfluous §2254(e)(2)—which limits the federal habeas courts’ discretion to take new evidence in an evidentiary hearing. At a minimum, §2254(e)(2) still restricts their discretion in claims that were not adjudicated on the merits in state court. Although state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme is designed to strongly
discourage them from doing so. Pp. 13–14.

(c) Remand for a properly limited review is inappropriate here, because the Ninth Circuit ruled, in the alternative, that Pinholster merited habeas relief on the state-court record alone. P. 14.

2. On the record before the state court, Pinholster was not entitled to federal habeas relief. Pp. 14‘–31.

(a) To satisfy §2254(d)(1)’s “unreasonable application” prong, he must show that “there was no reasonable basis” for the State Supreme Court’s summary decision. Richter, supra, at ___. Pp. 15–16.

(b) Strickland v. Washington, 466 U. S. 668, provides the clearly established federal law here. To overcome the strong presumption that counsel has acted competently, id., at 690, a defendant must show that counsel failed to act “reasonabl[y] considering all the circumstances,” id., at 688, and must prove the “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different,” id., at 694. Review here is thus “doubly deferential,” Knowles v. Mirzayance, 556 U.S. ___, ___, requiring a “highly deferential” look at counsel’s performance, Strickland, supra, at 689, through §2254(d)’s “deferential lens,” Mirzayance, supra, at ___, n. 2. Pp. 16–18.

(c) Pinholster has not shown that the State Supreme Court’s decision that he could not demonstrate deficient performance by his trial counsel necessarily involved an unreasonable application of federal law. Pp. 18–26.

(1) The state-court record supports the idea that his counsel acted strategically to get the prosecution’s aggravation witnesses excluded for lack of notice, and if that failed, to put on his mother as a mitigation witness. Billing records show that they spent time investigating mitigating evidence. The record also shows that they had an unsympathetic client who had boasted about his criminal history during the guilt phase, leaving them with limited mitigation strategies. In addition, when Dr. Stalberg concluded that Pinholster had no significant mental disorder or defect, he was aware of Pinholster’s medical and social history. Given these impediments, it would have been a reasonable penalty-phase strategy to focus on evoking sympathy for Pinholster’s mother. Pinholster has responded with only a handful of post-hoc nondenials by one of his lawyers. Pp. 18–23.

(2) The Ninth Circuit misapplied Strickland when it drew from this Court’s recent cases a “constitutional duty to investigate” and a principle that it was prima facie ineffective for counsel to abandon an investigation based on rudimentary knowledge of Pinholster’s background. Beyond the general requirement of reasonableness, “specific guidelines are not appropriate” under Strickland. 466 U. S., at 688. Nor did the Ninth Circuit properly apply the strong presumption of competence mandated by Strickland. Pp. 23–26.

(d) Even if his trial counsel had performed deficiently, Pinholster also has failed to show that the State Supreme Court must have unreasonably concluded that he was not prejudiced. Pp. 26–31.

(1) To determine “whether there is a reasonable probability that, absent the errors, the sentencer . . . would have concluded that” death was not warranted, Strickland, supra, at 695, the aggravating evidence is reweighed “against the totality of available mitigating evidence,” Wiggins v. Smith, 539 U. S. 510, 534. Here, the State presented extensive aggravating evidence at both the guilt and penalty phases. The mitigating evidence consisted primarily of the penalty-phase testimony of Pinholster’s mother and guilt-phase testimony given by his brother. After considering the evidence, the jury returned a sentence of death, which the state trial court found supported overwhelmingly by the weight of the evidence. Pp. 26–29.

(2) There is no reasonable probability that the additional evidence presented at Pinholster’s state proceedings would have changed the verdict. The “new” evidence largely duplicated the mitigation evidence of his mother and brother at trial. To the extent that there were new factual allegations or evidence, much of it is of questionable mitigating value. Dr. Woods’ testimony would have opened the door to rebuttal by a state expert; and new evidence relating to Pinholster’s substance abuse, mental illness, and criminal problems could lead a jury to conclude that he was beyond rehabilitation. The remaining new material in the state habeas record is sparse. Given what little additional mitigating evidence Pinholster presented in state habeas, the Court cannot say that the State Supreme Court’s determination was unreasonable. Pp. 29–30.

(3) Because this Court did not apply AEDPA deference to the question of prejudice in Williams v. Taylor, 529 U. S. 362, and Rompilla v. Beard, 545 U. S. 374, those cases lack the important “doubly deferential” standard of Strickland and AEDPA, and thus offer no guidance with respect to whether a state court has unreasonably determined that prejudice is lacking. Pp. 30–31.

590 F. 3d 651, reversed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and KENNEDY, JJ., joined in full; in which ALITO, J., joined as to all but Part II; in which BREYER, J., joined as to Parts I and II; and in which GINSBURG and KAGAN, JJ., joined as to Part II. ALITO, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KAGAN, JJ., joined as to Part II.

Rushin on Post-Arrest Silence

Stephen Rushin has posted Rethinking Miranda: The Post-Arrest Right to Silence (California Law Review, Vol. 99, p. 151, 2011) on SSRN. Here is the abstract:

Some scholars have recently observed that Miranda protections are under attack. At its core, Miranda requires law enforcement to inform a criminal suspect of her constitutional rights before custodial interrogation in order to protect her privilege against self-incrimination. But today, Miranda warnings inform individuals of only a small subset of their actual Fifth Amendment rights, partially due to ambiguity in the current doctrine. Perhaps no area of Fifth Amendment doctrine is more ambiguous than a suspect’s right to silence during post-arrest interrogation.

This Comment explores the selective invocation of the right to silence during custodial interrogations. I define selective invocation as the ability of a suspect to exercise her right to silence on a question-to-question basis after an earlier waiver of Miranda rights. State and federal courts have split on the issue of whether a criminal suspect may selectively invoke the right to silence in this way. I argue, however, that a rule permitting criminal suspects to selectively invoke the right to silence accords with constitutional doctrine and public policy considerations. Further, I argue that suspects ought to bear the burden to explicitly invoke the right to silence during interrogation. Lastly, to avoid due process concerns arising from such burdens on suspects, I argue Miranda warnings should be expanded to bridge the current information asymmetry between law enforcement and citizenry. In total, I contend that these policy proposals would benefit law enforcement and comprehensively protect a criminal suspect’s Fifth Amendment rights.

Taslitz on the Fourth Amendment

Andrew Taslitz (Howard University) has posted two articles about the Fourth Amendment on SSRN. The first is What is Probable Cause, and Why Should We Care? The Costs, Benefits, and Meaning of Individualized Suspicion  (Law & Contemporary Problems, Forthcoming). Here is the abstract:

The United States Supreme Court has often declared individualized suspicion to be at the heart of probable cause. Yet critics see this as a commitment in word more than deed.Other critics, primarily philosophers, so no real conceptual difference between generalized and individualized suspicion. Moreover, no one has seriously tried to define the term. This article seeks first to fill this definitional gap, second to argue that the philosophers are wrong, and third to catalogue the social benefits and costs of an individualized suspicion requirement, suggesting a more structured way to choose among types of individualized suspicion and when, if ever, to jettison all those types entirely. The article draws on philosophy, psychology, and a branch of behavioral economics - fair price theory - to make its point.

The second is The Happy Fourth Amendment: History and the People’s Quest for Constitutional Meaning (Texas Tech Law Review, Vol. 43, 2010). Here is the syllabus:

Much debate about the role of history in constitutional interpretation centers on the difference between originalism and non-originalism. Yet most writers agree that history must play some role. If it does, for what should we be looking when we mine history? Originalists say, "for the original intent of the Framers or the original meaning of the Founding moment" or some variation. Non-originalists are less clear. Starting from a non-originalist perspective, this article argues that one important thing to mine history for is lessons about what promotes individuals' and the People's happiness. The article considers the implications for this stance for Fourth Amendment interpretation. The article first defines a "People" by its shared commitments, finding the American People thus to be defined in part by the "pursuit of happiness" as stated in the Declaration of Independence. The piece argues that the Declaration has an appropriate role to play in interpreting the Constitution. Next, the piece reviews relevant historical meanings of "happiness" and its pursuit and finds them consistent with modern social science on these topics. Specifically, the article finds that happiness's pursuit for individuals and the American People partly requires that citizens, groups, and the People as a whole have an effective voice in government and that the state also work to promote certain types of equality (though not income equality). The article argues that these happiness-promoting functions are particularly central to history's role in interpreting the Fourth Amendment, concluding with three examples focusing on racial and viewpoint minorities and their interactions with the police. The article was written as part of a symposium panel on the role of history in understanding the Fourth Amendment's meaning.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	432	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 [2nd last week]
2	355	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 [3rd last week]
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7	224	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 [8th last week]
8	178	Collective Intentions and Individual Criminal Responsibility Javid Gadirov, Central European University, Date posted to database: March 21, 2011 [new to top ten]
9	170	Chivalry is Not Dead: Murder, Gender, and the Death Penalty Steven F. Shatz, Naomi R. Shatz, University of San Francisco - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: February 23, 2011 [new to top ten]
10	169	The Authority of Law Scott Hershovitz, University of Michigan Law School, Date posted to database: March 8, 2011 [new to top ten]

Solove & Schwartz on Data Privacy Law

Daniel J. Solove (pictured) and Paul M. Schwartz (George Washington University Law School and University of California, Berkeley - School of Law) have posted Privacy Law Fundamentals (D. Solove & P. Schwartz, PRIVACY LAW FUNDAMENTALS, International Association of Privacy Professionals, 2011) on SSRN. Here is the abstract:

"Privacy Law Fundamentals" is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases. Included here for download are The Table of Contents and Chapter 1.

The book explains the major provisions of all of the major privacy statutes, regulations, cases, including state privacy laws and FTC enforcement actions. It provides numerous charts and tables summarizing the privacy statutes (i.e. statutes with private rights of action, preemption, and liquidated damages, among other things). Topics covered include: the media, domestic law enforcement, national security, government records, health and genetic data, financial information, consumer data and business records, government access to private sector records, data security law, school privacy, employment privacy, and international privacy law.

This book provides an concise yet comprehensive overview of the field of privacy law for those who do not want to labor through lengthy treatises. "Privacy Law Fundamentals" is written for those who want a handy reference, a bird's eye view of the field, or a primer for courses in privacy law.