Saturday, June 11, 2011
Fredrick E. Vars (University of Alabama - School of Law) has posted Rethinking the Indefinite Detention of Sex Offenders (Connecticut Law Review, Vol. 44, 2011) on SSRN. Here is the abstract:
Thousands of sex offenders in the United States are being held indefinitely under civil commitment programs. The analysis in this Article suggests that none (or precious few) belong there. Specifically, in a large dataset, an instrument as good as the one most widely used by experts (the “Static-99”) could not identify even one sex offender who met the legal standards for commitment. Supplementing such instruments with additional information appears not to improve matters, so the failure of the instrument is profoundly disturbing.
There are three possible responses: (1) improve instruments to meet existing standards; (2) lower the standards; and (3) abandon sex offender civil commitment. This Article focuses on the first response, identifying and correcting flaws in the most widely-used instrument. But the greater significance of the Article is to reframe the debate around the other two potential responses. Can we predict the future well enough to justify the indefinite detention of “dangerous” people?
Norman Abrams (UCLA Law School) has posted Terrorism Prosecutions in Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions on SSRN. Here is the abstract:
The issue of where to prosecute Guantanamo detainees, as well as future terrorism defendants has been a topic of spirited public debate. Generally, the choice has been seen primarily as between three options, civilian federal courts, military commissions, or a new national security court, not-yet created. A fourth alternative (perhaps some would characterize it as a variation on the civilian court option) would involve utilization of some special rules in federal court criminal terrorism trials, that is, exceptions to usually-applicable constitutional rules of evidence based on terrorism-related elements in the case. To illustrate the approach, a series of such exceptions, some already recognized under existing law and some proposed herein, are addressed in this paper.
Friday, June 10, 2011
Melanie D. Wilson (University of Kansas - School of Law) has posted Quieting Cognitive Bias with Standards for Witness Communications (Hastings Law Journal, Vol. 62, No. 101, 2011) on SSRN. Here is the abstract:
Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated round-table discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored standards may lessen the detrimental impact of those biases. Then, the Article examines in detail three challenging, yet common aspects of communications that the Standards seek to influence: (1) communicating with witnesses about their future communications with opposing counsel, (2) communicating warnings to witnesses, and (3) communicating with experts. Ultimately, the Article argues for clarity in the Standards to reduce the impact of unwanted cognitive bias to which we are all vulnerable.
Since the early twentieth century, the Supreme Court has interpreted the Eighth Amendment prohibition against cruel and unusual punishment as a progressive mandate that draws its meaning from “the evolving standards of decency that mark the progress of a maturing society.” In applying this standard, the Court looks to such objective considerations as legislative enactments, patterns of jury decision making, and international opinion as measures of contemporary values. At the same time, the Court intermittently invokes its “own judgment” as an independent gauge of constitutionality. This article assesses the viability of the “evolving standards” doctrine, concluding that, as presently conceived, it has produced an incoherent Eighth Amendment jurisprudence. In particular, by relying on majoritarian factors as a test of constitutionality, the Court has misconceived the nature and significance of a constitutional right. For in its zeal to avoid the charge that the subjective policy preferences of individual justices drive its decision making, the Court has embraced a form of moral skepticism that is inconsistent with the history and character of the Constitution. Despite the Court’s missteps, the evolving standards formulation is worth preserving because it highlights a number of important liberal-democratic values. According to this alternative conception, the touchstone of Eighth Amendment analysis is neither political popularity nor personal morality but the political morality of our liberal democracy – the best account of how our political values should shape and constrain the institution of punishment.
Thursday, June 9, 2011
Amy Knight Burns has posted Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance (Stanford Law Review, Vol. 64, 2011) on SSRN. Here is the abstract:
Federal habeas corpus procedure involves an elaborate set of rules for when state criminal judgments may be reviewed by federal courts. One of these rules – the procedural default rule – forbids federal courts to review state judgments if the state rejected the proposed claim on procedural grounds. This bar may be overcome by a showing of cause and prejudice (a showing that the outcome of the trial would have been different absent the error.) In enforcing this rule, federal courts have failed to realize that there are some claims for which a showing of prejudice is never possible. These claims, sometimes called "structural errors," are exempt from harmless error review when they arise on direct appeal; in that context, courts have realized that demanding a showing that the error changed the outcome would in many cases be asking the impossible. A particularly troubling example is Batson claims; a prejudice requirement for such claims would mean that defendants would have to prove that a jury selected in the absence of racial discrimination would have reached a different verdict. Courts have realized that such a showing generally cannot be made, and granted relief anyway. What courts have not acknowledged is that the showing of prejudice is equally impossible in the habeas context. Instead, some courts have decided that prejudice can be presumed for structural errors in this posture, and other courts have required the impossible showing – meaning that such claims are doomed to fail under the procedural default rule in every instance, even where other, less serious claims can sometimes overcome the car. This Note identifies and traces the two clashing strands of case law – the structural error cases and the procedural default cases – and explicates the underlying incompatibility. It then examines cases that have attempted to adjudicate such claims, and finally proposes a solution: that courts should modify their procedural default test to accommodate these claims.
The case is Sykes v. United States. Here is the syllabus:
When he pleaded guilty to being a felon in possession of a firearm, see 8 U. S. C. §922(g)(1), petitioner Sykes had prior convictions for at least three felonies, including the state-law crime of “us[ing] a vehicle” to “knowingly or intentionally” “fle[e] from a law enforcement officer” after being ordered to stop, Ind. Code §35–44–3–3(b)(1)(A) (2004). The Federal District Court decided that the prior convictions subjected Sykes to the 15-year mandatory minimum prison term that the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e), provides for an armed defendant who has three prior “violent felony” convictions. Rejecting Sykes’ argument that his vehicle flight felony was not “violent” under ACCA, the Seventh Circuit affirmed.
The case is DePierre v. United States. Here is the syllabus:
In 1986, increasing public concern over the dangers of illicit drugs—in particular, the new phenomenon of crack cocaine—prompted Congress to revise the penalties for criminal offenses involving cocaine-related substances. Following several hearings, Congress enacted the Anti-Drug Abuse Act of 1986 (ADAA). The statute provides a mandatory 10-year minimum sentence for certain drug offenses involving “(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of . . . (II) cocaine, its salts, optical and geometric isomers, and salts of isomers, [or] (iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base.” 21 U. S. C. §841(b)(1)(A). The statute similarly provides a 5-year sentence for offenses involving 500 grams of a substance enumerated in clause (ii) or 5 grams of one outlined in clause (iii). §841(b)(1)(B).
Wednesday, June 8, 2011
Rachel E. Barkow (New York University (NYU) - School of Law) has posted Life Without Parole and the Hope for Real Sentencing Reform (NYU Press, Forthcoming) on SSRN. Here is the abstract:
In this chapter for a book that asks whether life without the possibility of parole (LWOP) is the new death penalty, I will explore some reasons why it is unlikely LWOP will experience the same procedural and substantive oversight that now exists for the death penalty. The chapter begins by highlighting the problem of defining LWOP in a way that will lead to meaningful reforms. If the concern with LWOP sentences is, as the Supreme Court recently suggested in Graham, that they eliminate the realistic hope of release, then other sentences – such as natural life sentences where parole is just as unlikely as executive clemency of an LWOP sentence or long term-of-years sentences – would seem to be equivalent.
David H. Kaye (The Pennsylvania State University) has posted Unraveling the Exclusionary Rule: From Leon to Herring to Robinson - and Back? (UCLA Law Review Discourse, Vol. 58, No. 4, p. 207, 2011) on SSRN. Here is the abstract:
The Fourth Amendment exclusionary rule began to unravel in United States v. Leon. The facts were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to a police officer who, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The California Supreme Court recently applied this line of cases in People v. Robinson to support the conviction of a man whose DNA was taken by correctional officials who misunderstood the scope of the state’s DNA database statute. This Essay shows how the Robinson court exceeded the boundaries of the U.S. Supreme Court’s good-faith exception. It then proposes several ways to modify or confine the exception to achieve better protection of the Fourth Amendment right to be free from unreasonable searches and seizures.
Tuesday, June 7, 2011
Amy Dillard (University of Baltimore - School of Law) has posted And Death Shall Have No Dominion: How to Achieve the Categorical Exemption of Mentally Retarded Defendants from Execution (University of Richmond Law Review, Vol. 45, No. 3, March 2011) on SSRN. Here is the abstract:
This article examines the Court’s categorical exclusion of mentally retarded defendants from execution and explores how trial courts should employ procedures to accomplish heightened reliability in the mental retardation determination; it maintains that if a mentally retarded defendant is subjected to a death sentence then the Atkins directive has been ignored. To satisfy the Atkins Court’s objective of protecting mentally retarded defendants from the “special risk of wrongful execution,” the article explores whether trial courts should engage in a unified, pre-trial competency assessment in all capital cases where the defendant asserts mental retardation as a bar to execution and how the ancient in favorem vitae doctrine could ensure fairness and protect defendants who may be at special risk “that the death penalty will be imposed in spite of factors which may call for a less severe penalty.”
Paul H. Robinson (University of Pennsylvania Law School) has posted Comments on [Israeli] Proposal for Structuring Judicial Discretion in Sentencing (Hukim: Israeli Journal on Legislation, Vol. 3, p. 5, March 2011) on SSRN. Here is the abstract:
In this essay, Professor Robinson supports the current Israeli proposal for structuring judicial discretion in sentencing, in particular its reliance upon desert as the guiding principle for the distribution of punishment, its reliance upon benchmarks, or “starting-points,” to be adjusted in individual cases by reference to articulated mitigating and aggravating circumstances, and the proposal’s suggestion to use of an expert committee to draft the original guidelines.
The Constitution empowers and restricts different officials differently. Because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?
Monday, June 6, 2011
Derek Wikstrom has posted 'No Logical Stopping Point': The Consequences of Padilla v. Kentucky's Inevitable Expansion (Northwestern University Law Review, Vol. 106, 2012) on SSRN. Here is the abstract:
In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that criminal defense attorneys must warn their non-citizen clients of the adverse immigration consequences that may result from a guilty plea. Lower federal courts will inevitably expand the rule from Padilla to apply to other so-called "collateral consequences" of guilty pleas. Although the extension of Padilla to more (or all) collateral consequences of guilty pleas would theoretically raise the standard of defense attorney effectiveness and thus benefit criminal defendants, the reality is that the cost of extension will likely outweigh the benefits, because the provision of effective assistance will become prohibitively costly. If "Padilla warnings" are ultimately required for all collateral consequences of a guilty plea, criminal lawyers will have a difficult time effectively assisting any of their clients.
Issue summary from ScotusBlog, which also links to cert papers and opinions below:
- Martinez v. Ryan: Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim
The case is McNeill v. United States. Here is the syllabus:
Under the Armed Career Criminal Act (ACCA), a felon unlawfully in possession of a firearm, 18 U. S. C. §922(g)(1), is subject to a 15-year minimum prison sentence if he has three prior convictions for a “violent felony” or “serious drug offense.” As relevant here, a “serious drug offense” is defined as “an offense under State law . . . , for which a maximum term of imprisonment of ten years or more is prescribed by law,” §924(e)(2)(A)(ii). In sentencing petitioner McNeill for violating §922(g), the District Court determined that he qualified for ACCA’s sentencing enhancement based in part on six prior North Carolina drug trafficking convictions. When McNeill committed those crimes, each carried a 10-year maximum sentence, which McNeill in fact received. However, because the State later reduced the maximum sentence for those offenses to fewer than 10 years, McNeill argued that none of his six prior convictions were for “serious drug offenses” within the meaning of §924(e)(2)(A)(ii). The District Court rejected McNeill’s request that it look to current state law and instead relied on the 10-year maximum sentence that applied at the time he committed his state offenses. The Fourth Circuit affirmed.
Sunday, June 5, 2011
|1||573||The Law Enforcement Surveillance Reporting Gap
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011
|2||455||Fetal Pain, Abortion, Viability and the Constitution
I. Glenn Cohen, Sadath Sayeed,
Harvard Law School, Harvard University - Harvard Medical School,
Date posted to database: April 11, 2011
|3||304||Nothing to Hide: The False Tradeoff between Privacy and Security
Daniel J. Solove,
George Washington University Law School,
Date posted to database: May 11, 2011 [4th last week]
|4||288||The Objects of the Constitution
Nicholas Quinn Rosenkranz,
Georgetown University - Law Center,
Date posted to database: May 20, 2011 [6th last week]
|5||270||FCPA Sanctions: Too Big to Debar?
Drury D. Stevenson, Nicholas J. Wagoner,
South Texas College of Law, South Texas College of Law,
Date posted to database: April 18, 2011
|6||231||Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea
Gabriel J. Chin,
University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2011 [7th last week]
|7||206||Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?
Instituto de Investigaciones Filosoficas, UNAM,
Date posted to database: April 21, 2011 [8th last week]
|8||156||Moral Character, Motive, and the Psychology of Blame
Janice Nadler, Mary-Hunter McDonnell, Mary-Hunter McDonnell,
Northwestern University School of Law, Northwestern University School of Law, Northwestern University - Kellogg School of Management,
Date posted to database: April 21, 2011 [new to top ten]
|9||154||Immigration Consequences: A Primer for Texas Criminal Defense Attorneys in Light of Padilla v. Kentucky
Mario K. Castillo,
Southern District of Texas, Brownsville Division,
Date posted to database: May 11, 2011 [new to top ten]
|10||152||What Would It Look Like If We Cared About Narcotics Trafficking? An Argument to Attack Narcotics Capital Rather than Labor
Mark William Osler, Mark William Osler,
Univ. of St. Thomas (MN), Baylor University - Law School,
Date posted to database: April 5, 2011 [new to top ten]