Saturday, April 16, 2011
The objective of this paper is to categorically study common and traditional acts which are punished under criminal law and compare them to others which are not defined as crimes. Studying traditional crimes such as murder, rape, theft and their attempts, and comparing them to acts which are excluded from the scope of criminal law will allow the determination of conditions under which defining an act as a crime is normatively justifiable. These conditions can be used in future research to evaluate the desirability of extending the scope of criminal law to non-traditional fields of potential regulation.
This short essay is included in an issue of the Federal Sentencing Reporter that was dedicated to giving advice to the U.S. Sentencing Commission on setting their future priorities. The essay contends that the Commission should set their sights on repairing the broken illegal re-entry Guideline. This item should be at the top of the Commission’s to-do list both because the Guideline is so broken and because so many defendants are now sentenced for illegal re-entry.
Mark William Osler (Baylor University - Law School) has posted What Would It Look Like If We Cared About Narcotics Trafficking? An Argument to Attack Narcotics Capital Rather than Labor on SSRN. Here is the abstract:
As the failure of the “War on Drugs” becomes ever more obvious, alternative strategies are coming to the fore. This article adds to that movement with a novel suggestion: That we cause drug networks to fail as a business through the tactic of focusing resources on the seizure of cash flow traveling back to source countries.
To date, federal narcotics interdiction has centered on restricting the labor supply to drug traffickers by incarcerating street dealers, mules, and middle managers. It shouldn’t be surprising that this has not worked, because low-wage labor is in ready supply, and those workers are easily replaced. Instead, we should leverage the skills we have gained in interdicting cash flowing to terrorist organizations and apply it to drug networks. The result could be a self-financing law enforcement effort, a federal effort that is more consistent with the core values of federalism and a belief in markets, and an actual chance to succeed at the task of restricting the flow of narcotics.
Richard C. Boldt (University of Maryland - School of Law) has posted Drug Policy in Context: Rhetoric and Practice in the United States and the United Kingdom (South Carolina Law Review, Vol. 62, p. 261, 2011) on SSRN. Here is the abstract:
The history of narcotics use and drug control in the U.S. before passage of the Harrison Act in 1914 is similar in important respects to that in the U.K. during the same period. Although the two countries’ paths diverged significantly over the ensuing decades, there has been a convergence of sorts in recent years. In the United States, the trend lines have moved from an active “war on drugs” in which criminal enforcement and punishment have been the primary rhetorical and practical instruments of policy to an evolving approach, at least at the federal level, characterized by a somewhat more pragmatic tone and a more balanced set of interventions that mix enforcement, treatment and prevention. From the British side, the movement has been in the opposite direction, from a longstanding public health approach to an intensifying focus on criminal offending as the primary social risk posed by the misuse of drugs. Thus, just as the criminal justice system long has been the principle front in the U.S. assault on drug abuse, the shift in British drug policy has now made the criminal system in the U.K. a central focus in its efforts to combat the problem of drugs and drug addiction.
Friday, April 15, 2011
The dramatic moment when an eyewitness takes the stand and points to the defendant in the courtroom can be pivotal in a criminal trial. That piece of theater, however compelling to jurors, is staged. It is obvious where the defendant is sitting. And the memory of that eyewitness will have invariably been tested before trial using photo arrays or lineups. Such courtroom displays have been so long accepted that their role in the U.S. Supreme Court’s due process jurisprudence regulating the eyewitness identifications has been neglected. The due process test that regulates tens of thousands of eyewitness identifications each year permits suggestive pre-trial procedures - long known to increase the dangers that the innocent may be misidentified - if the judge decides those identifications are otherwise "reliable." In this Article, I uncover an approach adopted by the vast majority of courts, but whose importance has not been appreciated, which short-circuits that already malleable due process inquiry. Even if a prior lineup was suggestive and illegal, judges allow a courtroom identification by citing to its supposed "independent source." This approach to exclusion of eyewitness identifications has it backwards. It is the courtroom identification that should be excluded. In contrast, flaws in procedures used shortly after the crime should be fully aired before the jury. As efforts to improve eyewitness identification procedures gain traction in response to DNA exonerations and social science research establishing the fragility of eyewitness memory, lawmakers and judges must revisit the entrenched problem of the courtroom identification. If courtroom identifications are not per se excluded in cases with a prior identification, judges may circumvent crucial efforts to safeguard the accuracy of eyewitness procedures.
Daphne Ha has posted Blanket Policies for Strip Searching Pretrial Detainees: An Interdisciplinary Argument for Reasonableness (Fordham Law Review Vol. 79, No. 6, 2011) on SSRN. Here is the abstract:
This Note explores a widening circuit split on the constitutionality of blanket strip search policies involving arrestees and pretrial detainees. As a result of the widening split, government officials across the country strip search detainees as a matter of routine procedure without any reasonable suspicion that the detainees have contraband. These detainees include individuals without criminal histories who are arrested for traffic or other minor offenses, and who have done nothing to suggest that they are attempting to smuggle contraband into corrections facilities.
Thursday, April 14, 2011
David Abrams (pictured), Marianne Bertrand and Sendhil Mullainathan (University of Pennsylvania , University of Chicago - Booth School of Business and Harvard University - Department of Economics) have posted Do Judges Vary in Their Treatment of Race? (Journal of Legal Studies, Forthcoming) on SSRN. Here is the abstract:
Are minorities treated differently by the legal system? Systematic racial differences in case characteristics, many unobservable, make this a difficult question to answer directly. In this paper, we estimate whether judges differ from each other in how they sentence minorities, avoiding potential bias from unobservable case characteristics by exploiting the random assignment of cases to judges. We measure the between-judge variation in the difference in incarceration rates and sentence lengths between African-American and White defendants. We perform a Monte Carlo simulation in order to explicitly construct the appropriate counterfactual, where race does not influence judicial sentencing. In our data set, which includes felony cases from Cook County, Illinois, we find statistically significant between-judge variation in incarceration rates, although not in sentence lengths.
Justin Dickerson has posted Strands of Privacy: Privacy Rights and DNA Sample Collection from Federal Criminal Defendants Charged with Felonies on SSRN. Here is the abstract:
On September 14, 2010, the Ninth Circuit held in United States v. Pool that the U.S. government can require federal defendants charged with felonies to provide a DNA sample as a condition of pre-trial release. The chain of rulings that led to this decision was set into motion in January 2009 when Jerry Arbert Pool was indicted in the Eastern District of California for possessing and receiving child pornography in violation of two federal statutes. Pool agreed to all of the court's bail conditions, except for one - Pool refused to provide a DNA sample. In his appeal to the Ninth Circuit, Pool challenged the constitutionality of 2006 amendments to the Bail Reform Act that expanded a federal defendant’s requirement to “cooperate in the collection of a DNA sample” to those charged with felonies, who had not yet been convicted of their alleged crime. This paper (1) addresses the Fourth Amendment implications of the Pool ruling in allowing the government to collect DNA samples from federal defendants charged with felonies as a mandatory condition for bail release; (2) examines the existing laws and practices, contrasting recent rulings with the Fourth Amendment, the Eighth Amendment, and the separation of powers doctrine, and (3) proposes other options that better comport with constitutional protections, such as the government incentivizing DNA collection through reduced financial bonds in exchange for the genetic sample, among additional alternatives.
Linda E. Carter (University of the Pacific - McGeorge School of Law) has posted Torture and the War on Terror: The Need for Consistent Definitions and Legal Remedies on SSRN. Here is the abstract:
This article examines differing definitions of torture and the inadequacies of accountability for torture. The 'torture memos' of the Bush Administration brought to light the problems that arise when torture is defined in different ways. This article contrasts the definitions in the United States with the jurisprudence of the ICTY. In addition to the definition of “severe harm,” this article further explores the consequence of differing definitions of the mens rea for torture, an area that has largely been overlooked in the discourse on torture. The article further explores the ramifications of limitations on criminal and civil remedies for accountability for torture. The author concludes that the mens rea, as currently interpreted in the United States, will result in lack of accountability for torture in situations in which torture would exist under the ICTY interpretation. The author further concludes that present legal actions are inadequate to provide full accountability for torture.
Maya Dominguez has posted ‘Custody’ in Custody: Redefining Miranda Rights in Prison (American University Journal of Gender, Social Policy & the Law, Vol. 19, June 2011) on SSRN. Here is the abstract:
In Miranda v. Arizona, the Supreme Court held that, in order to safeguard the Fifth Amendment privilege against self-incrimination, police must inform suspects of their ‘Miranda Rights’ when subjecting them to a custodial interrogation. Courts normally determine custody for Miranda purposes by asking whether a reasonable person would feel free to leave. But what happens when suspects are in prison and cannot leave? When is someone who is in custody “in custody”? That is a question that the Supreme Court has explicitly refused to answer, until now. Recently, in Howes v. Fields, the Sixth Circuit took a bright line approach to defining ‘custody’ in custodial settings, ruling that when police separate inmates from the general population and question them regarding an incident occurring outside the prison, the inmate is per se “in custody” for the purposes of Miranda.
Wednesday, April 13, 2011
Today the jury convicted Barry Bonds of one count of obstruction of justice in violation of 18 USC §1503 but deadlocked on three counts of perjury in violation of 18 USC §1623(a). Being a professor of criminal law by profession, and a baseball fan by birth (I was born in St. Louis!), I could not help doing a little poking around the issues that are now sure to arise, and that those you teaching criminal law or procedure this term may find of interest to students if not colleagues.
Under the guidelines, apparently obstruction under 28 USC 1503 carries a base offense level of 14. For an offender with no priors the grid recommends 15-21 months; that's in Zone D of the grid meaning probation is not authorized by the guidelines. Of course the guidelines are not strictly binding on the judge anymore.
Paul H. Robinson (pictured), Sean Jackowitz and Daniel M. Bartels (University of Pennsylvania Law School , University of Pennsylvania Law School - Student and Columbia University - Marketing) have posted Extralegal Punishment Factors: A Study of Forgiveness, Hardship, Good-Deeds, Apology, Remorse, and Other Such Discretionary Factors in Assessing Criminal Punishment on SSRN. Here is the abstract:
The criminal law's formal criteria for assessing punishment are typically contained in criminal codes, the rules of which fix an offender's liability and the grade of the offense. A look at how the punishment decision-making process actually works, however, suggests that courts and other decisionmakers frequently go beyond the formal legal factors and take account of what might be called "extralegal punishment factors" (XPFs).
David J. Luban (pictured) and Henry Shue (Georgetown University Law Center and University of Oxford) have posted Mental Torture: A Critique of Erasures in U.S. Law (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:
Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering - one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes and effects, ignoring the experience itself; third, a forensic fallacy, in which the due process requirements of specificity in criminal law become wrongly identified with defining characteristics of the crime of torture (an understanding that loops back to corrupt the law); and fourth, a mens rea requirement that excludes all mental torture not committed with the sadistic intention of causing long-lasting harm. Our article begins with an analysis of the concept of mental pain and suffering, as well as a factual discussion of U.S. practice. We also examine the legislative history of the definition in U.S. law. We demonstrate that it derives from political concerns that other countries might accuse U.S. law enforcement personnel of torture. We conclude by examining the specific evil of mental torture: the merciless attempt to break down and occupy the personality of the victim.
Tuesday, April 12, 2011
Probable cause is one of the fundamental concepts of Fourth Amendment law, but the Supreme Court has refused to quantify it. The Court has described probable cause as a "fair probability," but it has declined to explain just how likely a "fair" probability might be. Does a "fair probability" mean a 50% likelihood? A 40% likelihood? And why won't the Justices say? Are they just afraid of math?
Laura J. Arandes has posted Life Without Parole: An Immigration Framework Applied to Potentially Indefinite Detention at Guantánamo Bay (New York University Law Review, Forthcoming) on SSRN. Here is the abstract:
The Supreme Court ruled in Boumediene v. Bush that detainees at Guantánamo Bay have the right to challenge their detention in habeas corpus proceedings and that the courts hearing these claims must have some ability to provide “conditional release.” However, the United States Court of Appeals for the District of Columbia has ruled that if a detainee cannot be released to their country of origin or another country abroad, a court sitting in habeas cannot grant them release into the United States. The court based its determination on the assumption that the Uighurs’ request for release implicated “admission,” the terms and conditions of which are generally considered within the purview of the political branches and inappropriate for judicial review. This Note argues that “parole,” a more flexible mechanism for release into the United States, is not limited by the admission precedent requiring extreme deference. This Note then surveys cases where the judiciary has granted parole as a remedy, and argues that courts grant the remedy primarily in cases of executive misconduct. Thus, courts confronting requests for domestic release from executive detention without legal basis should consider parole as a remedy distinct from admission, one that serves a valuable purpose in maintaining a meaningful check on the Executive.
Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Relearning Lessons of History: Miranda and Counterterrorism (Louisiana Law Review, Vol. 71, 2011) on SSRN. Here is the abstract:
Umar Farouk Abdulmutallab’s attempt to blow up Northwest Flight 253 and Umar Faisal Shahzad’s attempt to blow up an SUV on New York City’s 42nd Street led many to question whether terrorism justifies denying Miranda protections to suspected terrorists beyond the public safety exception. As the November 27, 2010 arrest of a naturalized U.S. citizen, Mohamed Osman Mohamud, on suspicion of using a weapon for purposes of causing mass destruction made clear, the list of "triggering events" is constantly evolving.
The argument, in a nutshell, is that extending Miranda protections to a recently arrested suspected terrorist would significantly hamper law enforcement’s ability to question the individual, thereby endangering the public. In other words, denying Miranda protections would both facilitate arrests of additional suspected terrorists and prevent further acts of terrorism.
Monday, April 11, 2011
This article analyzes the use of nanotechnology to commit crimes. A great deal has been written about the societal implications of nanotechnology, and what has been often notes that criminals will exploit the technology for antisocial ends. But while many clearly believe the technology has the capacity for a dark side, no one has focused on how that dark side might manifest itself and on the legal issues the misuse of nanotechnology may generate. This article undertakes both tasks.
It begins with the premise that nanotechnology - like computer technology - is likely to be a profoundly transformative technology. It explains why nanotechnology is likely to have wide-ranging effects across various sectors of society and speculates that nanocrime may evolve in a fashion analogous to computer crime. The article then analyzes how nanotechnology might be used to commit crimes of various types and argues that if and when nanocrime emerges, we should not respond - as we did to computer crime - by adopting technologically specific criminal statutes. Instead, we should, insofar as possible, integrate nanocrime into existing criminal law.
Under the Federal Rules of Criminal Procedure, a defendant is normally obligated to attend all of the proceedings against her. However, Rule 43(b)(2) carves out an exception for organizational defendants, stating that they “need not be present” if represented by an attorney. But on its face, the language of 43(b)(2) is ambiguous: is it the defendant or the judge who has the discretion to decide whether the defendant appears? That is, may a judge compel the presence of an organizational defendant? This Note addresses the ambiguity in the context of the plea colloquy, considering the text of several of the Rules, the purposes behind the plea colloquy proceeding, and the inherent powers doctrine. It argues that district court judges do in fact have the authority to compel an organizational defendant’s presence at a plea colloquy.
Monu Singh Bedi (Stetson University College of Law) has posted The Criminal/Civil Divide: An Inter-Common Law Analysis on SSRN. Here is the abstract:
Scholars have long debated why certain common law breaches in American jurisprudence receive criminal punishment – possible loss of liberty at the hands of the state – while others only receive civil sanctions or monetary damages sought by individuals. Scholars like Richard Posner and Guido Calabresi have used economic-based models and the notion of efficiency to explain why tort breaches only receive civil sanctions but criminal breaches receive punishment. Others like John Coffee and Paul Robinson have questioned the explanatory power of these models. Instead, they have focused on the moral difference between torts and crimes. Simply put, a crime’s intentional nature makes it morally worse than the carelessness typified by tortious activity. Interestingly, scholars on both sides of the debate have largely neglected to include contract breaches – a significant part of common law – into their models. Like torts, these breaches also only receive civil sanctions. What explains the similar treatment?
Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted Facebook, Twitter, and the Uncertain Future of Present Sense Impressions
(University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:
The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media web sites like Facebook and Twitter herald the arrival of a previously uncontemplated – and uniquely unreliable – breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, the Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the drafters of the hearsay rules.