CrimProf Blog

Brooks on Hegal and the Unified Theory of Punishment

Thom Brooks (Newcastle University - Newcastle Law School) has posted Hegel and the Unified Theory of Punishment on SSRN. Here is the abstract:

Hegel's theory of punishment has too often been understood as a retributivist position. This error is largely based upon a consideration of some comments in one section ("Abstract Right") in his Philosophy of Right. Instead, Hegel's theory is more innovative and compelling: he is perhaps the first to offer a "unified theory" of punishment bringing together elements of retribution, deterrence, and rehabilitation in a single, coherent theory. Such a view best accords not only with his full comments on punishment in the Philosophy of Right, but also his comments on punishment elsewhere in his system and even earlier work. Moreover, a unified theory of punishment is defended also by his earliest Anglophone defenders, the British Idealists. This essay defends this interpretation of Hegel's theory of punishment and why we should find it compelling.

Next week's criminal law/procedure oral argument

Issue summary is from ScotusBlog, which also links to briefs and opinions below:

Monday, April 25

• McNeill v. US: A federal law enhances sentences for certain defendants who have been previously convicted of three or more “serious drug offense[s],” which the statute defines as a drug offense with a maximum sentence of ten or more years. Does the statute require courts to consider the maximum sentence that was on the books when the crime was committed, or at the time of the present sentencing hearing?

Call for papers for conference at Gonzaga on Race and Criminal Justice in the West

Information is here. The conference will be held Sept. 23-24. From the website:

This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses.

Cohen & Sayeed on Fetal Pain, Abortion, Viability and the Constitution

I. Glenn Cohen (pictured) and Sadath Sayeed (Harvard Law School and Harvard University - Harvard Medical School) have posted Fetal Pain, Abortion, Viability and the Constitution
(The Journal of Law, Medicine & Ethics, Vol. 39, 2011) on SSRN. Here is the abstract:

Can a U.S. state prohibit pre-viability abortions based on concerns about fetal pain?

Given that recent legislation in Nebraska purports to do so, and the fact that similar efforts are now working through the legislative process in Alabama, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Minnesota, Oklahoma, and other states, the question is a pressing one.

In this short paper for the leading peer-reviewed law and medicine journal, we are the first to comprehensively examine from a constitutional, medical, and bioethical perspective these efforts to prohibit early abortion based on concerns about fetal pain.

Soghoian on the Law Enforcement Surveillance Reporting Gap

Christopher Soghoian (Indiana University Bloomington - Center for Applied Cybersecurity Research) has posted The Law Enforcement Surveillance Reporting Gap on SSRN. Here is the abstract:

Third party facilitated surveillance has become a routine tool for law enforcement agencies. There are likely hundreds of thousands of such requests per year. Unfortunately there are few detailed statistics documenting the use of many modern surveillance methods. As such, the true scale of law enforcement surveillance, although widespread, remains largely shielded from public view.

Prior to the widespread adoption of the Internet and mobile phones, law enforcement agencies’ use of third party facilitated electronic surveillance was largely limited to real-time interception of communications content ("wiretapping") and non-content data (through the use of "pen register" and "trap and trace" orders). In order to increase its ability to perform effective oversight, Congress mandated that annual reports be created documenting the use of these surveillance powers. These reports are intended to enable policy makers as well as the general public to determine the extent to which such surveillance methods are used, and in the words of Senator Patrick Leahy, provide a "far more reliable basis than anecdotal evidence on which to assess law enforcement needs and make sensible policy in this area."

The existing surveillance statistics might be sufficient if law enforcement agencies’ surveillance activities were limited to wiretaps and pen registers. However, over the last decade, law enforcement agencies have enthusiastically embraced many new sources of investigative and surveillance data for which there are no mandatory reporting requirements. As a result, most modern surveillance now takes place entirely off the books and the true scale of such activities, which vastly outnumber traditional wiretaps and pen registers, remains unknown.

In this article, I examine the existing electronic surveillance reporting requirements and the reports that have been created as a result. Some of these have been released to public, but many have only come to light as a result of Freedom of Information Act requests or leaks by government insiders. I also also examine several law enforcement surveillance methods for which there are no existing legally mandated surveillance reports. Finally, I propose specific legislative reporting requirements in order to enable some reasonable degree of oversight and transparency over all forms of law enforcement electronic surveillance.

Kuhn on Speedy Trial Rights of Military Detainees

Walter E. Kuhn (United States Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights) has posted The Speedy Trial Rights of Military Detainees (Syracuse Law Review, Vol. 62, 2011) on SSRN. Here is the abstract:

The hybrid nature of the War on Terror is testing the limits of the Speedy Trial and Due Process Clauses. Former military detainees have been convicted in federal court years after their crimes and capture. Setting aside the wisdom of civilian detainee trials, they have thus far proven consistent with constitutional delay protections.

The courts have correctly determined that military detention generally does not trigger the protections of the Speedy Trial Clause. Absent unusual circumstances, judicial scrutiny of delay due to military detention should occur via the Due Process Clause, which allows for operational flexibility while safeguarding against bad faith by the government. The administration should continue to try detainees when possible, with the venue depending on the nature of the case, and be mindful of the potential for precedent established in civilian detainee trials to govern ordinary criminal cases.

Gershowitz on Texas Criminal Procedure

Adam M. Gershowitz (University of Houston Law Center) has posted Is Texas Tough on Crime but Soft on Criminal Procedure? (American Criminal Law Review, Vol. 49, 2012) on SSRN. Here is the abstract:

Although Texas is well known for imposing tough punishments on convicted defendants, it is surprisingly generous in affording criminal procedure protections. In a variety of areas, including search and seizure rules, confession requirements, the availability of bail, discovery obligations on prosecutors, or jury trial guarantees, Texas affords protections vastly in excess of what is required by the United States Constitution. Even more shockingly, these criminal procedure guarantees come almost entirely from Texas statutes approved by the legislature, not activist rules imposed by judges. This article explores Texas's reputation as a tough-on-crime state, as well as the fact that the Texas Code of Criminal Procedure is extremely favorable to criminal defendants. The article explains the seeming inconsistency between Texas being tough on crime but soft on criminal procedure.

Robson on Sexuality and Crime

Ruthann Robson (CUNY School of Law) has posted Sexuality and Law - Volume II: Crime and Punishment Preface and Introduction (Ruthann Robson, LIBRARY OF ESSAYS ON SEXUALITY AND LAW, Ashgate Publishing, 2011) on SSRN. Here is the abstract:

The Preface and Introduction from The Library of Essays in Sexuality and Law, Volume II, Crime and Punishment. The continued criminalization of same-sex sexual acts, variously labeled sodomy, buggery, or the crime against nature, is inconsistent throughout the world. The criminalization of other sexual acts, such as public sex, commercial sex, or HIV-transmission, is more common. The relationship between sexuality and criminality is not limited to a direct criminalization of sexual acts, however. The victimization of sexual minorities because of their sexuality has garnered attention in the conceptualization of hate crimes in many countries. When sexual minorities are accused of victimizing others, the criminal justice system can conflate sexual identity with the criminal acts resulting in biased convictions. Imprisonment and punishment norms can pose special problems in the context of gender minorities or for sex offenses.

Mungan on Optimal Warning Strategies in Law Enforcement

Murat C. Mungan has posted Optimal Warning Strategies in Law Enforcement on SSRN. Here is the abstract:

Law enforcers often issue warnings as opposed to sanctions, when they detect first time offenders. However, laws concerning the issuing of warnings versus sanctions to first time offenders may not be strictly defined. That is to say, an individual can be issued a warning or a sanction, even though he is committing the offense for the first time. In such cases, one can interpret the law enforcement mechanism as employing a mixed strategy between warnings and sanctions. However, leaving aside a few exceptions, the existing law and economics literature dealing with optimal penalty schemes for repeat offenders suggests that issuing warnings is a sub-optimal practice. Furthermore, the existing literature has not yet dealt with the issue of law enforcers employing mixed strategies between warnings and sanctions. By employing a two-period optimal deterrence model, this paper provides a rationale as to why it may be in-fact optimal to issue warnings to first time offenders. When uninformed individuals are present and the punishment of the innocent is assumed to be costly, there is a trade-off between such costs and reduced levels of deterrence. Depending on the cost structure associated with the punishment of innocent individuals; mixed, pure or no-warning strategies can be optimal. Important variables affecting the optimality of warnings include the harm associated with the crime in question, and the proportion of individuals who are uninformed of the law.

Fan on Beyond Budget-Cut Criminal Justice

Mary D. Fan (University of Washington - School of Law) has posted Beyond Budget-Cut Criminal Justice (North Carolina Law Review, Vol. 90, 2011-2012) on SSRN. Here is the abstract:

The criminal justice system is undergoing a massive jolt and potential transformation because of a perfect storm of severe budgetary shortfalls and courts awakening to the role of checking penal severity. A wave of reforms is sweeping the states as budgetary woes are leading to measures once virtually impossible or very difficult because of the political risk of looking soft on crime such as expanded early release, conversion of felonies to misdemeanors and scaling down sentences. The social meaning of ameliorating penal harshness is being redefined as a way to curb wasteful and destructive spending rather than being soft on criminals and garnering bipartisan support among conservative and liberal proponents. On the judicial front, the Supreme Court has resuscitated Eighth Amendment proportionality review in the noncapital context and granted appeal to consider the power of a three-judge court to order California to reduce its prison population and consider alternatives to incarceration. This article explores the future of penal law and theory after the turn to budget-cut criminal justice reform and the awakening of courts at the tipping point where the fiscal and human costs of maintaining the highest per capita incarceration rate in the world have become unsustainable.

The article argues that in this important historical moment, we need long-term guides beyond emergency-response for sustainable penal law and policy reform and a successful jolt out of incapacitation stagnation. We have a fomentation of reforms without orienting theory – short-term reactions to the unbearable rather than sustainable long-term reorientation. The article lays the foundation for thinking beyond emergency-response by theorizing a turn to rehabilitation pragmatism and penal impact analysis in criminal legislation and politics. The article also sounds a caution about the need to ensure that the selective approach towards picking who benefits from rehabilitative pragmatism helps address rather than aggravate inequities in who bears the burdens of penal harshness and who benefits from measures of mercy.

Holland on Racial Profiling and a Punitive Exclusionary Rule

Brooks Holland (Gonzaga University School of Law) has posted Racial Profiling and a Punitive Exclusionary Rule (Temple Political & Civil Rights Law Review, Vol. 20, No. 1, 2010) on SSRN. Here is the abstract:

This Article develops the case for an equal-protection exclusionary rule. The Article begins by addressing the Supreme Court’s limited recognition of race as an explicit basis for constitutional criminal procedure doctrine. This judicial perspective has resulted in a narrow range of racial-profiling cases where, under the Equal Protection Clause, the Constitution will condemn police discrimination. Yet, this equal protection doctrine thus far lacks an exclusionary rule. Criminal defendants who assert equal protection claims thus are left with no real world remedy to make even this narrow right tangible in a criminal proceeding. This framework has led to a doctrine-driven form of “post-racialism” in much of criminal practice that does not match the often race-conscious reality of criminal justice that many people experience and perceive. Constitutional criminal procedure doctrine instead should empower and oblige defense lawyers, prosecutors, and judges to address whether race has tainted a criminal investigation in a constitutionally intolerable manner. Only a doctrinal remedy like the exclusionary rule can ensure lawyers will confront the issue. This article attempts to justify that remedy as a form of punishment, consistent with the U.S. Supreme Court’s most recent exclusionary rule decisions, such as Herring v. United States and Hudson v. Michigan.

Bazelon on Clinics and Prosecutorial Misconduct

Lara Abigail Bazelon (UC Hastings College of Law) has posted Hard Lessons: The Role of Law School Clinics in Addressing Prosecutorial Misconduct on SSRN. Here is the abstract:

This Article approaches prosecutorial misconduct from a pedagogical perspective by exploring the ways in which law school clinicians can teach their students how to confront the problem proactively and in-the-moment, with an eye toward reducing its rate of occurrence and blunting its corrosive effect.

Prosecutorial misconduct is a serious problem that strikes at the heart of a criminal defendant’s constitutional right to a fair trial. More broadly, it has the potential to impact the integrity of the criminal justice system as a whole. Educating law school students in criminal clinics about this issue before they become prosecutors and criminal defense attorneys serves three important goals. First, such instruction can act as preventative medicine by reducing the likelihood that future prosecutors will step over the line out of ignorance of the applicable case law and court rules or out of a misplaced desire to win at all costs. Second, it enables future defense counsel to develop litigation methods designed to prevent the problem from occurring in the first instance. Third, it can prepare defense counsel to recognize prosecutorial misconduct that proves unpreventable so that she is able to respond effectively in-the-moment rather than belatedly, after the harm has been done.

The blended learning approach that is the signature pedagogy of the clinical classroom is well-suited to addressing prosecutorial misconduct because it provides an opportunity for students to engage in a frank and thoughtful dissection of the legal and ethical issues that are inextricably bound up with it. The model I propose combines instruction in black letter law, ethics, and skills acquisition. It also seeks to have clinicians model the process of analyzing and responding to prosecutorial misconduct using examples from their real world experiences. With this approach, students will learn to think critically about their roles and responsibilities as future prosecutors and defense attorneys and to develop sound professional judgment before they enter the whirlwind of practice.

Chiesa on Punishing Without Free Will

Luis E. Chiesa (Pace University School of Law) has posted Punishing Without Free Will (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and philosophers reply that, even if it turns out that human conduct is fully determined by forces over which they lack control, we ought to nevertheless believe in free will and thus continue to blame actors for engaging in wrongful conduct. They argue that we ought to rationalize free will in this manner because dispensing with free will is potentially catastrophic to human relationships, calling into question our judgments about blame and praise and, thus, about criminal responsibility and punishment. This Article contends that this rationalization is wrong and unnecessary. The fact of free will is not essential to maintaining a healthy society and a well functioning system of criminal justice. Although retribution could not be invoked as a reason for imposing punishment if humans are not capable of free choice, punishment could still be justified on consequentialist grounds. In a world without free will, the purpose of punishment would shift from giving to the offender what he deserved to protecting society from dangerous individuals who are nevertheless not to blame for their transgressions. Interestingly, this would likely lead to a more economically efficient and humane system of criminal justice that relies less on incarceration and more on less intrusive but equally effective methods of social control.

Gray, Jackson & Farrall on Fear of Crime

Emily Gray , Jonathan Jackson and Stephen Farrall (Keele University , London School of Economics & Political Science - Methodology Institute and University of Sheffield) have posted two manuscripts related to fear of crime on SSRN. The first is In Search of the Fear of Crime: Using Interdisciplinary Insights to Improve the Conceptualisation and Measurement of Everyday Insecurities

We take an interdisciplinary view on everyday emotions about the risk of crime. We consider a large and rapidly expanding body of psychological research on emotion. This work offers a new conceptual vocabulary, while also addressing pertinent methodological questions concerning research on emotions, placing a significant emphasis on ensuring the ecological and external validity of results. They may thus help us to formulate a more comprehensive picture of what fear of crime actually is as a lived experience. The chapter begins with a short review of the conceptual and methodological problems within the fear of crime literature, before considering the different perspectives on emotion which have emerged more recently. We assess how a multi-disciplinary analysis might facilitate a more theoretically and methodologically robust interpretative framework. Finally, we outline how new methodological techniques employed by researchers studying everyday emotions might be employed to go ‘back to basics,’ to assess what fear of crime measures are actually measuring.

The second is Researching Everyday Emotions: Towards a Multi-Disciplinary Investigation of the Fear of Crime. Here is the abstract:

We take an interdisciplinary view on everyday emotions about the risk of crime. We consider a large and rapidly expanding body of psychological research on emotion. This work offers a new conceptual vocabulary, while also addressing pertinent methodological questions concerning research on emotions, placing a significant emphasis on ensuring the ecological and external validity of results. They may thus help us to formulate a more comprehensive picture of what fear of crime actually is as a lived experience. The chapter begins with a short review of the conceptual and methodological problems within the fear of crime literature, before considering the different perspectives on emotion which have emerged more recently. We assess how a multi-disciplinary analysis might facilitate a more theoretically and methodologically robust interpretative framework. Finally, we outline how new methodological techniques employed by researchers studying everyday emotions might be employed to go ‘back to basics,’ to assess what fear of crime measures are actually measuring.

Transcript from argument in sentencing/rehabilitation case

The case is Tapia v. United States.

Questions from Dripps, Answers from King, on Limiting NonCapital Federal Habeas for State Prisoners

Today, the New York Times carried an op-ed by Joseph Hoffman and Nancy King, forcefully advancing their case for curtailing federal habeas.  To quote the op-ed: "Congress should limit habeas review of state criminal cases to two categories in which it actually can do some serious good: capital cases and cases in which the prisoner can produce persuasive new evidence of his innocence."  This position is fully defended in their book, Habeas for the Twenty-First Century, now available from the University of Chicago Press. The King and Hoffman proposal is forcefully challenged by Blume et al., In defense of Non-Capital Habeas: A Response to Hoffman and King, 96 Cornell L. Rev. 435 (2011).  Nancy sent me (Dripps) a notice about the op-ed, and this exchange followed, with her answers to my questions in CAPS.

(1)   Would you have the same view of noncapital federal habeas for state prisoners if Justice Stevens had won the day in Williams v. Taylor?  Statutory repeal of the noncapital habeas jurisdiction would preclude some future SCOTUS majority from returning to a de novo standard of review of legal questions (a view I find hard to avoid under Article III--really, Congress directing a federal court, rather than not hear a case, to affirm a judgment the federal bench regards unconstitutional).  And if there were de novo review on federal habeas of the federal question, would that make the litigation worthwhile?

NO, EVEN WITH A MORE ROBUST DE NOVO REVIEW STANDARD, HABEAS REVIEW OF NONCAPITAL CASES IS LARGELY INACCESSIBLE AND FUTILE.  THE STANDARD ITSELF MAKES LITTLE DIFFERENCE - THE GRANT NUMBERS WERE MINISCULE BEFORE AEDPA.

(2)  And do you really think a federal flying squad for death cases--in my view, the best way to abolish the death penalty in this country--could get out of committee?  It would force grandstanding public agents in such places as Harris and Dade counties to pay for their sanguinary self-indulgence--and that would be that.  Surely the relevant politicians can see that, working as they are to cut spending except for wars and entitlement programs.

FEDERAL FLYING SQUAD, INTERESTING PHRASE - BUT THAT IS NOT WHAT WE PROPOSE.  WE JUST ASK CONGRESS TO CUT BACK ON NON-CAP (WHERE HABEAS REVIEW HAS NO DETERRENT/CORRECTION EFFECT) AND LEAVE REVIEW OF CAP CASES BASICALLY AS IS. THERE ARE SOME OTHER SPECIFIC PROPOSALS RE: CAP CASES IN THE BOOK (see www.habeasbook.com ).  BUT I AGREE THAT COST HAS BEEN AND WILL BE ONE OF THE BATTLEGROUNDS FOR DEATH PENALTY PROPONENTS AND OPPONENTS.

(3)  Prison conditions cases?

GLAD YOU ASKED!  WE ARGUE THAT HABEAS LITIGATION OVER DISCIPLINARY HEARINGS AND PAROLE DENIALS AND SUCH SHOULD BE MOVED OUT OF HABEAS TO A TAILORED ALTERNATIVE STATUTORY SCHEME (SEE CHAPTER 9 OF THE BOOK, AND THE ARTICLE IN DUKE LAW JOURNAL THAT I WROTE WITH SUZANNA SHERRY), AT LEAST WHERE FEDERAL REVIEW IS SUPPLEMENTING STATE JUDICIAL REVIEW OF THESE DECISIONS.  OTHER THAN THAT, WE ARE NOT ADDRESSING 1983 OR PRISON CONDITION CASES.   HABEAS AND 1983 CASES TEND TO BURDEN THE SAME DISTRICTS, AS YOUR QUESTION SUGGESTS, BUT THE PLRA HAS ALREADY DRAMATICALLY REDUCED THE NUMBER OF 1983 CASES FILED.

(4)  I gave a conference paper at UNC making some preliminary points about the enervation of habeas in light of Crawford, one recent salient SCOTUS decision favorable to the defense.  Still working up the numbers, but why would you folks assume that the state courts are kosher, other than that the federal circuits are now right of SCOTUS?

SOUNDS INTERESTING, I'D LOVE TO SEE THE PAPER.   OUR POINT IS THAT THE STATE COURTS ARE NOT RESISTING FEDERAL LAW ANYMORE BECAUSE IT IS NOT THEIR OWN.  NOW THEY DISAGREE ABOUT ITS SCOPE FOR THE SAME REASONS AND IN THE SAME WAY THAT THE FEDERAL CIRCUITS DO.  WHEN THE LOWER COURTS CONTINUALLY GET IT WRONG, THE SUPREME COURT CAN, AND DOES, CORRECT THEM.  IF WE EVER SEE ANOTHER FEDERALISM REVOLT, THE NATION HAS THE SAME TOOLS AT ITS DISPOSAL THAT IT DID IN THE 1960S.

This week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to relevant documents:

Monday, April 18

• Tapia v. US: Whether a district court may give a defendant a longer prison sentence to promote rehabilitation.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	390	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
2	329	Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in 'Due Process of Law' - 'Fourth Amendment Reasonableness' is Only a Modern, Destructive, Judicial Myth Thomas Y. Davies, University of Tennessee College of Law, Date posted to database: February 25, 2011
3	302	Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail, Georgetown University - Law Center, Date posted to database: February 14, 2011
4	287	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
5	285	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
6	256	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
7	244	Discretion and Prioritisation in Public Antitrust Enforcement, in Particular EU Antitrust Enforcement Wouter P. J. Wils, European Commission, Date posted to database: February 12, 2011
8	232	Why Courts Should Not Quantify Probable Cause Orin S. Kerr, George Washington University - Law School, Date posted to database: March 30, 2011
9	206	Collective Intentions and Individual Criminal Responsibility Javid Gadirov, Central European University, Date posted to database: March 21, 2011
10	180	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]