CrimProf Blog

Etienne on McGuire on Rape Prosecutions and the Civil Rights Movement

Margareth Etienne (University of Illinois College of Law) has posted Rape Prosecutions and the Civil Rights Movement at Jotwell, discussing Danielle L. McGuire, At the Dark End of the Street: Black Women, Rape, and Resistance—A New History of the Civil Rights Movement from Rosa Parks to the Rise of Black Power (Knopf Publishers, 2010). In part:

McGuire writes about the prosecution of rape and sexual assault committed against black women.  As a historian, McGuire focuses on two important aspects of these criminal cases.  First, the cases served as bellwethers for the social and political rights of black women.  Second, they involved some of the earliest attempts to organize and mobilize churches and political groups in the fight for civil rights.

Clapham on Corporations and Criminal Complicity

Andrew Clapham (Geneva Academy of International Humanitarian Law and Human Rights) has posted Corporations and Criminal Complicity on SSRN. Here is the abstract:

This chapter, delivered as a paper to a Conference in Oslo focusing on the Norwegian Pension Fund -Global, explains the international criminal law principles that might be applied to corporations accused of complicity in international crimes. It traces some of the early uses of the concept of complicity in the context of human rights complaints against corporations.

Dodge on Extraterritoriality

William S. Dodge (University of California - Hastings College of the Law) has posted Morrison's Effects Test (Southwestern University Law Review, Forthcoming) on SSRN. Here is the abstract:

In Morrison v. National Australia Bank, the Supreme Court held that the presumption against extraterritoriality applies "in all cases." But the Court also changed the presumption by shifting its focus from the location of the conduct to the location of the effects. This symposium contribution argues this shift is consistent with the presumption’s underlying rationale and with the Court’s prior case law. It also applies Morrison’s effects test to RICO.

Hallevy on the Insanity Defense and Dynamic Psychiatry

Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted Modern Examination of Insanity Defense in Criminal Law Under the Development of the Dynamic Psychiatry – From Categorization to Functionalism on SSRN. Here is the abstract:

In past, the common legal concept of insanity defense was a concept of categories. Accordingly, in order to prevent imposition of criminal liability upon the offender out of insanity, the offender should have been recognized as suffering of "mental disease". Only if the mental disease could have been related to a specific list of diseases, the offender could have been considered as insane.

Medical major developments and legal developments since the nineteenth century brought up changes in this concept. The dynamic psychiatry, which became major measure in mental disorder understanding, compelled a deep change in the former concept. It is argued, that any mental disorder should be examined functionally, and not by categories, as to the application upon the defense of insanity in criminal law. Only under functional examination, it is possible to seriously examine cases of temporary insanity or partial insanity. The article argues for the functional examination of mental disorder as the necessary measure to examine the applicability of the insanity defense in criminal law.

Pell & Soghoian on Law Enforcement Access to Location Data

Stephanie K. Pell and Christopher Soghoian (affiliation not provided to SSRN and Indiana University Bloomington - Center for Applied Cybersecurity Research) have posted Can You See Me Now: Toward Reasonable Standards for Law Enforcement Access to  Location Data that Congress Could Enact on SSRN. Here is the abstract:

Increasing law enforcement use of historical and prospective location information generated by cell phones and other mobile devices has led some Magistrate Judges to scrutinize government applications to compel third party disclosure, as well as the very legal standards governing law enforcement access. Uncertainty regarding those standards has created an inconsistent legal landscape, which led Congress to hold a series of Electronic Communications Privacy Act (ECPA) reform hearings in 2010, including one on location information. Congress must assess the privacy impact of current access standards for location information – an assessment we believe will illustrate the urgent need for ECPA reform, both to clarify the law and reestablish the balance of interests among law enforcement, privacy and industry equities. This paper offers a guide to that analysis.

We begin with a brief discussion of various location technologies and their relative accuracy. We go on to explore the confusion in the judiciary over law enforcement access standards to location data and what they require the government to show. We then discuss some “lessons learned” from Congressional hearings and advocacy efforts during the 111th Congress. Then, we consider how Courts, in recent decisions considering law enforcement access to GPS information, have articulated the potential harms and privacy impacts to society using the interpretive frames of Orwell’s dystopia in 1984 and what has come to be called the “panoptic effect” – the anxious response produced by the presumed omnipresence of the government’s gaze. Some Judges from these Courts then suggest, and we agree, that privacy issues raised by law enforcement access to location data may best be addressed by the legislature. With that in mind, we present our own model legislative framework for location information, including law enforcement access standards. It is neither the most protective of privacy, nor the most “friendly” to law enforcement. We hope, by providing an object of discussion and critique in a now polarized debate, that our proposed standards will become a catalyst for useful reform.

Opinion in case involving defendant's standing to challenge federal statute on Tenth Amendment grounds

The case is Bond v. United States. Here is the syllabus:

When petitioner Bond discovered that her close friend was pregnant by Bond’s husband, she began harassing the woman. The woman suffered a minor burn after Bond put caustic substances on objects the woman was likely to touch. Bond was indicted for violating 18 U. S. C. §229, which forbids knowing possession or use, for nonpeaceful purposes, of a chemical that “can cause death, temporary incapacitation or permanent harm to humans,” §§229(a); 229F(1); (7); (8), and which is part of a federal Act implementing a chemical weapons treaty ratified by the United States. The District Court denied Bond’s motion to dismiss the §229 charges on the ground that the statute exceeded Congress’ constitutional authority to enact. She entered a conditional guilty plea, reserving the right to appeal the ruling on the statute’s validity. She did just that, renewing her Tenth Amendment claim. The Third Circuit, however, accepted the Gov-ernment’s position that she lacked standing. The Government has since changed its view on Bond’s standing.

Held: Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States. Pp. 3–14.

(a) The Third Circuit relied on a single sentence in Tennessee Elec. Power Co. v. TVA, 306 U. S. 118. Pp. 3–8.

(1) The Court has disapproved of Tennessee Electric as authoritative for purposes of Article III’s case-or-controversy requirement. See Association of Data Processing Service Organizations, Inc. v. Camp, 397 U. S. 150, 152–154. Here, Article III’s standing requirement had no bearing on Bond’s capacity to assert defenses in the District Court. And Article III’s prerequisites are met with regard to her standing to appeal. Pp. 3–5.

(2) Tennessee Electric is also irrelevant with respect to prudential standing rules. There, the Court declined to reach the merits where private power companies sought to enjoin the federally chartered Tennessee Valley Authority (TVA) from producing and selling electric power, claiming that the statute creating the TVA exceeded the National Government’s powers in violation of the Tenth Amendment. In doing so, the Court repeatedly stated that the problem with the power companies’ suit was a lack of “standing” or a “cause of action,” treating those concepts as interchangeable. E.g., 306 U. S., at 139. The question whether a plaintiff states a claim for relief typically “goes to the merits” of a case, however, not to the dispute’s justiciability, Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 92, and conflation of the two concepts can cause confusion. This happened with Tennessee Electric’s Tenth Amendment discussion. The statement on which the Third Circuit relied here, see 306 U. S., at 144, should be read to refer to the absence of a cause of action for injury caused by economic competition. To the extent the statement might instead be read to suggest a private party does not have standing to raise a Tenth Amendment issue, it is inconsistent with this Court’s later precedents and should be deemed neither controlling nor instructive on the issue of standing as that term is now defined and applied. Pp. 5–8.

(b) Amicus, appointed to defend the judgment, contends that for Bond to argue the National Government has interfered with state sovereignty in violation of the Tenth Amendment is to assert only a State’s legal rights and interests. But in arguing that the Government has acted in excess of the authority that federalism defines,Bond seeks to vindicate her own constitutional interests. Pp. 8–14.

(1) Federalism has more than one dynamic. In allocating powers between the States and National Government, federalism “ ‘secures to citizens the liberties that derive from the diffusion of sovereign power,’ ” New York v. United States, 505 U. S. 144, 181. It enables States to enact positive law in response to the initiative of those who seek a voice in shaping the destiny of their own times, and it protects the liberty of all persons within a State by ensuring that law enactedin excess of delegated governmental power cannot direct or control their actions. See Gregory v. Ashcroft, 501 U. S. 452, 458. Federalism’s limitations are not therefore a matter of rights belonging only to the States. In a proper case, a litigant may challenge a law as enacted in contravention of federalism, just as injured individuals may challenge actions that transgress, e.g., separation-of-powers limitations, see, e.g., INS v. Chadha, 462 U. S. 919. The claim need not depend on the vicarious assertion of a State’s constitutional interests,even if those interests are also implicated. Pp. 8–12.

    (2) The Government errs in contending that Bond should be permitted to assert only that Congress could not enact the challenged statute under its enumerated powers but that standing should be denied if she argues that the statute interferes with state sovereignty. Here, Bond asserts that the public policy of the Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which she is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about had the matter been left for Pennsylvania to decide. There is no support for the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. Impermissible interference with state sovereignty is not within the National Government’s enumerated powers, and action exceeding the National Government’s enumerated powers undermines the States’ sovereign interests. Individuals seeking to challenge such measures are subject to Article III and prudential standing rules applicable to all litigants and claims, but here,where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of the Government. Pp. 12–14.

(c) The Court expresses no view on the merits of Bond’s challenge to the statute’s validity. P. 14. 581 F. 3d 128, reversed and remanded.

KENNEDY, J., delivered the opinion for a unanimous Court. GINSBURG, J., filed a concurring opinion, in which BREYER, J., joined.

Opinion on exclusionary rule and reasonable reliance on appellate court decisions

The case is Davis v. United States. Here is the syllabus:

While conducting a routine vehicle stop, police arrested petitioner Willie Davis, a passenger, for giving a false name. After handcuffing Davis and securing the scene, the police searched the vehicle and found Davis’s revolver. Davis was then indicted on charges of being a felon in possession of a firearm. In a suppression motion, Davis acknowledged that the search of the vehicle complied with existing Eleventh Circuit precedent interpreting New York v. Belton, 453 U. S. 454, but Davis raised a Fourth Amendment challenge to preserve the issue on appeal. The District Court denied the motion, and Davis was convicted. While his appeal was pending, this Court announced, in Arizona v. Gant, 556 U. S. ___, ___, a new rule governing automobile searches incident to arrests of recent occupants. The Eleventh Circuit held, under Gant, that the vehicle search at issue violated Davis’s Fourth Amendment rights, but the court declined to suppress the revolver and affirmed Davis’s conviction.

Held: Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule. Pp. 6–20.

(a) The exclusionary rule’s sole purpose is to deter future Fourth Amendment violations, e.g., Herring v. United States, 555 U. S. 135, 141, and its operation is limited to situations in which this purpose is“thought most efficaciously served,” United States v. Calandra, 414 U.S. 338, 348. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh the rule’s heavy costs. Under a line of cases beginning with United States v. Leon, 468 U. S. 897, the result of this cost-benefit analysis turns on the “flagrancy of the police misconduct” at issue. Id., at 909, 911. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the benefits of exclusion tend to outweigh the costs. Herring, supra, at 144. But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrent value of suppression is diminished, and exclusion cannot “pay its way.” See Leon, supra, at 909, 919, 908, n. 6; Herring, supra, at 137. Pp. 6–9.

(b) Although the search in this case turned out to be unconstitutional under Gant, Davis concedes that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. Under this Court’s exclusionary-rule precedents, the acknowledged absence of police culpability dooms Davis’s claim. Pp. 9–11.

(c) The Court is not persuaded by arguments that other considerations should prevent the good-faith exception from applying in this case. Pp. 11–19.

(1) The argument that the availability of the exclusionary rule to enforce new Fourth Amendment precedent is a retroactivity issue,not a good-faith issue, is unpersuasive. This argument erroneously conflates retroactivity with remedy. Because Davis’s conviction had not become final when Gant was announced, Gant applies retroactively in this case, and Davis may invoke its newly announced rule as a basis for seeking relief. See Griffith v. Kentucky, 479 U. S. 314, 326, 328. But retroactive application of a new rule does not determine the question of what remedy the defendant should obtain. See Powell v. Nevada, 511 U. S. 79, 83, 84. The remedy of exclusion does not automatically follow from a Fourth Amendment violation, see Arizona v. Evans, 514 U. S. 1, 13, and applies only where its “purposeis effectively advanced,” Illinois v. Krull, 480 U. S. 340, 347. The application of the good-faith exception here neither contravenes Griffith nor denies retroactive effect to Gant. Pp. 12–16.

(2) Nor is the Court persuaded by the argument that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law by discouraging criminal defendants from attacking precedent. Facilitating the overruling of precedent has never been a relevant consideration in this Court’s exclusionary-rule cases. In any event, applying the good-faith exception in this context will not prevent this Court’s review of Fourth Amendment precedents. If precedent from a federal court of appeals or state court of last resort upholds a particular type of search or seizure, defendants in jurisdictions where the question remains open will still have an undiminished incentive to litigate the issue, and this Court can grant certiorari in one of those cases. Davis’s claim that this Court’s Fourth Amendment precedents will be effectively insulated from challenge is overstated. In many cases, defendants will test this Court’s Fourth Amendment precedents by arguing that they are distinguishable. And at most, this argument might suggest that, in a future case, the Court could allow a petitioner who secures a decision overruling one of this Court’s precedents to obtain suppression of evidence in that one case. Pp. 16–19.

598 F. 3d 1259, affirmed.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Opinion in case involving relevance of age to custody determination under Miranda

The case is J. D. B. v. North Carolina. Here is the syllabus:

Police stopped and questioned petitioner J. D. B., a 13-year-old, seventh-grade student, upon seeing him near the site of two home break-ins. Five days later, after a digital camera matching one of the stolen items was found at J. D. B.’s school and seen in his possession, Investigator DiCostanzo went to the school. A uniformed police officer on detail to the school took J. D. B. from his classroom to a closed-door conference room, where police and school administrators questioned him for at least 30 minutes. Before beginning, they did not give him Miranda warnings or the opportunity to call his grandmother, his legal guardian, nor tell him he was free to leave the room. He first denied his involvement, but later confessed after officials urged him to tell the truth and told him about the prospect of juvenile detention. DiCostanzo only then told him that he could refuse to answer questions and was free to leave. Asked whether he understood, J. D. B. nodded and provided further detail, including the location of the stolen items. He also wrote a statement, at DiCostanzo’s request. When the school day ended, he was permitted to leave to catch the bus home. Two juvenile petitions were filed against J. D. B., charging him with breaking and entering and with larceny. His public defender moved to suppress his statements and the evidence derived therefrom, arguing that J. D. B. had been interrogated in a custodial setting without being afforded Miranda warnings and that his statements were involuntary. The trial court denied the motion. J. D. B. entered a transcript of admission to the charges, but renewed his objection to the denial of his motion to suppress. The court adjudicated him delinquent, and the North Carolina Court of Appeals and State Supreme Court affirmed. The latter court declined to find J. D. B.’s age relevant to the determination whether he was in police custody.

Held: A child’s age properly informs Miranda’s custody analysis. Pp. 5–18.

(a) Custodial police interrogation entails “inherently compelling pressures,” Miranda v. Arizona, 384 U.S. 436, 467, that “can induce a frighteningly high percentage of people to confess to crimes they never committed,” Corley v. United States, 556 U. S. ___, ___. Recent studies suggest that risk is all the more acute when the subject of custodial interrogation is a juvenile. Whether a suspect is “in custody” for Miranda purposes is an objective determination involving two discrete inquires: “first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.” Thompson v. Keohane, 516 U. S. 99, 112 (footnote omitted). The police and courts must “examine all of the circumstances surrounding the interrogation,” Stansbury v. California, 511 U. S. 318, 322, including those that “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave,” id., at 325. However, the test involves no consideration of the particular suspect’s “actual mindset.” Yarborough v. Alvarado, 541 U. S. 652, 667. By limiting analysis to objective circumstances, the test avoids burdening police with the task of anticipating each suspect’s idiosyncrasies and divining how those particular traits affect that suspect’s subjective state of mind. Berkemer v. McCarty, 468 U. S. 420, 430–431. Pp. 5–8.

(b) In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury, 511 U. S., at 325. Courts can account for that reality without doing any damage to the objective nature of the custody analysis. A child’s age is far “more than a chronological fact.” Eddings v. Oklahoma, 455 U. S. 104, 115. It is a fact that “generates commonsense conclusions about behavior and perception,” Alvarado, 541 U. S., at 674, that apply broadly to children as a class. Children “generally are less mature and responsible than adults,” Eddings, 455 U. S., at 115; they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” Bellotti v. Baird, 443 U. S. 622, 635; and they “are more vulnerable or susceptible to . . . outside pressures” than adults, Roper v. Simmons, 543 U. S. 551, 569. In the specific context of police interrogation, events that “would leave a man cold and unimpressed can overawe and overwhelm a” teen. Haley v. Ohio, 332 U. S. 596, 599. The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. Legal disqualifications on children as a class—e.g., limitations on their ability to marry without parental consent—exhibit the settled understanding that the differentiating characteristics of youth are universal.

Given a history “replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults, Eddings, 455 U. S., at 115–116, there is no justification for taking a different course here. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to a reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, Berkemer, 468 U. S., at 430, nor to “‘“anticipat[e] the frailties or idiosyncrasies” of the particular suspect being questioned.” ’ ” Alvarado, 541 U. S., at 662. Precisely because childhood yields objective conclusions, considering age in the custody analysis does not involve a determination of how youth affects a particular child’s subjective state of mind. In fact, were the court precluded from taking J. D. B.’s youth into account, it would be forced to evaluate the circumstances here through the eyes of a reasonable adult, when some objective circumstances surrounding an interrogation at school are specific to children. These conclusions are not undermined by the Court’s observation in Alvarado that accounting for a juvenile’s age in the Miranda custody analysis “could be viewed as creating a subjective inquiry,” 541 U. S., at 668. The Court said nothing about whether such a view would be correct under the law or whether it simply merited deference under the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214. So long as the child’s age was known to the officer, or would have been objectively apparent to a reasonable officer, including age in the custody analysis is consistent with the Miranda test’s objective nature. This does not mean that a child’s age will be a determinative, or even a significant, factor in every case, but it is a reality that courts cannot ignore. Pp. 8–14.

(c) Additional arguments that the State and its amici offer for excluding age from the custody inquiry are unpersuasive. Pp. 14–18.

(d) On remand, the state courts are to address the question whether J. D. B. was in custody when he was interrogated, taking account of all of the relevant circumstances of the interrogation, including J. D. B.’s age at the time. P. 18.

363 N. C. 664, 686 S. E. 2d 135, reversed and remanded.

SOTOMAYOR, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and SCALIA and THOMAS, JJ., joined.

Opinion in case involving sentencing for rehabilitation purposes

The case is Tapia v. United States. Here is the syllabus:

Petitioner Tapia was convicted of, inter alia, smuggling unauthorized aliens into the United States. The District Court imposed a 51-month prison term, reasoning that Tapia should serve that long in order to qualify for and complete the Bureau of Prisons’ Residential Drug Abuse Program (RDAP). On appeal, Tapia argued that lengthening her prison term to make her eligible for RDAP violated 18 U. S. C. §3582(a), which instructs sentencing courts to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” The Ninth Circuit disagreed. Relying on Circuit precedent, it held that a sentencing court cannot impose a prison term to assist a defendant’s rehabilitation, but once imprisonment is chosen, the court may consider the defendant’s rehabilitation needs in setting the sentence’s length.

Held: Section 3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Pp. 3–15.

(a) For nearly a century, the Federal Government used an indeterminate sentencing system premised on faith in rehabilitation. Mistretta v. United States, 488 U. S. 361, 363. Because that system produced “serious disparities in [the] sentences” imposed on similarly situated defendants, id., at 365, and failed to “achieve rehabilitation,” id., at 366, Congress enacted the Sentencing Reform Act of 1984 (SRA), replacing the system with one in which Sentencing Guidelines would provide courts with “a range of determinate sentences,” id., at 368. Under the SRA, a sentencing judge must impose at least imprisonment, probation, or a fine. See §3551(b). In determining the appropriate sentence, judges must consider retribution, deterrence, incapacitation, and rehabilitation, §3553(a)(2), but a particular purpose may apply differently, or not at all, depending on the kind ofsentence under consideration. As relevant here, a court ordering imprisonment must “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.” §3582(a). A similar provision instructs the Sentencing Commission, as the Sentencing Guidelines’ author, to “insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant.” 28 U. S. C. §994(k). Pp. 3–6.

(b) Consideration of Tapia’s claim starts with §3582(a)’s clear text. Putting together the most natural definitions of “recognize”—“to acknowledge or treat as valid”—and not “appropriate”—not “suitable or fitting for a particular purpose”—§3582(a) tells courts to acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation. It also instructs courts to make that acknowledgment when “determining whether to impose a term of imprisonment, and. . . [when] determining the length of the term.” Amicus, appointed to defend the judgment below, argues that the “recognizing” clause is merely a caution for judges not to put too much faith in the capacity of prisons to rehabilitate. But his alternative interpretation is unpersuasive, as Congress expressed itself clearly in §3582(a). Amicus also errs in echoing the Ninth Circuit’s reasoning that §3582’s term “imprisonment” relates to the decision whether to incarcerate, not the determination of the sentence’s length. Because “imprisonment” most naturally means “the state of being confined” or “a period of confinement,” it does not distinguish between the defendant’s initial placement behind bars and his continued stay there.

Section 3582(a)’s context supports this textual conclusion. By restating §3582(a)’s message to the Sentencing Commission, Congress ensured that all sentencing officials would work in tandem to implement the statutory determination to “reject imprisonment as a means of promoting rehabilitation.” Mistretta, 488 U. S., at 367. Equally illuminating is the absence of any provision authorizing courts to ensure that offenders participate in prison rehabilitation programs. When Congress wanted sentencing courts to take account of rehabilitative needs, it gave them authority to do so. See, e.g., §3563(b)(9). In fact, although a sentencing court can recommend that an offender be placed in a particular facility or program, see §3582(a), the authority to make the placement rests with the Bureau of Prisons, see, e.g., §3621(e). The point is well illustrated here, where the District Court’s strong recommendations that Tapia participate in RDAP and be placed in a particular facility went unfulfilled. Finally, for those who consider legislative history useful, the key Senate Report on the SRA provides corroborating evidence. Pp. 6–12.

(c) Amicus’ attempts to recast what the SRA says about rehabilitation are unavailing. Pp. 12–14.

(d) Here, the sentencing transcript suggests that Tapia’s sentence may have been lengthened in light of her rehabilitative needs. A court does not err by discussing the opportunities for rehabilitation within prison or the benefits of specific treatment or training programs. But the record indicates that the District Court may have increased the length of Tapia’s sentence to ensure her completion of RDAP, something a court may not do. The Ninth Circuit is left to consider on remand the effect of Tapia’s failure to object to the sentence when imposed. Pp. 14–15.

376 Fed. Appx. 707, reversed and remanded.

KAGAN, J., delivered the opinion for a unanimous Court. SOTOMAYOR, J., filed a concurring opinion, in which ALITO, J., joined.

Hernandez on State Courts and Padilla

César Cuauhtémoc García Hernández (Capital University Law School) has posted When State Courts Meet Padilla: A Concerted Effort is Needed to Bring State Courts Up to Speed on Crime-Based Immigration Law Provisions (Loyola Journal of Public Interest Law, Vol. 12, p. 299, 2011) on SSRN. Here is the abstract:

Padilla v. Kentucky’s recognition of deportation consequences as a component of the Sixth Amendment effective assistance of counsel guarantee promised dramatic impact on criminal proceedings involving noncitizen defendants. Realizing this promise depends on courts’ ability to require defense attorneys to provide accurate advice about the deportation consequences of a conviction. Because state courts decide most ineffective assistance of counsel claims, a review of their treatment of Padilla-based claims offers an insightful glimpse into this decision’s impact on criminal representation of noncitizen defendants. This article examines state court decisions from the first six months after Padilla was issued and concludes that state courts’ lack of familiarity with immigration law has manifested itself in a concerning failure to grant Padilla-based relief when attorneys have inaccurately advised defendants about the prospect of deportation.

Pinaire on bounty hunting

Brian K. Pinaire (Lehigh University - Political Science) has posted Who Let (the) Dog Out? (Criminal Law Bulletin, Vol. 47, No. 6, 2011) on SSRN. Here is the abstract:

This Essay provides the first-ever scholarly investigation of the origins of "bounty hunting" as the practice exists in the United States. With an historical focus on British policies instituted around the turn into the eighteenth century, I argue that the scheme of regularized rewards for the arrest and prosecution of alleged criminal offenders constitutes the "roots" of American bounty hunting. This early system, whose practitioners were referred to as "thief-takers," formalized and legitimized the notion of incentivized pursuit of "fugitives" and - while eventually phased out in Britain - provides the historical and conceptual parallel for the for-profit, private sector-level apprehension of individuals wanted by the law in the United States today. These early policies are, in short, what let the "Dog" out in the Anglo-American tradition.

Dolovich on the Permanent Prisoner

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Creating the Permanent Prisoner (LIFE WITHOUT PAROLE: AMERICA'S NEW DEATH PENALTY?, Charles J. Ogletree, Jr. and Austin Sarat, eds., NYU Press, Forthcoming) on SSRN. Here is the abstract:

Of the 2.3 million people currently behind bars in the United States, only 41,000 - a mere 1.7% - are doing LWOP. Based on these numbers, one might well regard LWOP as the anomaly, and certainly not emblematic of the system as a whole. In this essay, I argue that it is LWOP that most effectively captures the central motivating aim of the contemporary American carceral system: the permanent exclusion from the shared social space of the people marked as prisoners. This exclusionist system has no real investment in successful reentry. Instead, a variety of penal practices combine to ensure against any meaningful loosening of control over the people the state has imprisoned. This essay explores the exclusionary effects of several such practices, including the destructive character of prison conditions, the increasing official reluctance to grant parole, and the collateral consequences of felony convictions, which heavily burden the prospects of newly released offenders. This way of framing American penal policy may seem to inappropriately sideline the more legitimate penological purposes - retribution, deterrence, etc. But there is a strikingly poor fit between these more familiar penological justifications and the actual practices of the penal system. By contrast, the exclusionary account offered in this essay is not only consistent with current penal practice, but also helps to make sense of the pervasive normative conception of prisoners as both noncitizens and nonhumans. This normative construction is a key component of the exclusionary project. If this project is to be abandoned and its destructive effects reversed, the implicit assumption that individuals who have been subject to criminal punishment have thereby forfeited their status as fellow citizens and fellow human beings must be confronted and rejected.

Denbeaux et al on abusing drugs during Guantanamo interrogations

Mark Denbeaux (pictured), Sean August Camoni , Brian Beroth , Mehgan Chrisner , Chrystal Loyer , Paul W. Taylor and Kelli Stout (Seton Hall University - School of Law , affiliation not provided to SSRN , affiliation not provided to SSRN , affiliation not provided to SSRN , affiliation not provided to SSRN , Center for Policy & Research and affiliation not provided to SSRN) have posted Drug Abuse: An Exploration of the Government's Use of Mefloquine at Guantanamo on SSRN. Here is the abstract:

Mefloquine is an antimalarial drug that has long been known to cause severe neuropsychological adverse effects such as anxiety, paranoia, hallucinations, aggression, psychotic behavior, mood changes, depression, memory impairment, convulsions, loss of coordination (ataxia), suicidal ideation, and possibly suicide, particularly in patients with a history of mental illness. A prescribing physician must exercise caution and informed judgment when weighing the risks and potential benefits of prescribing the drug. To administer this drug with its severe potential side effects without a malaria diagnosis and without taking a patient’s mental health history is not medically justified. Yet as a matter of official policy, the standard operating procedure implemented by the United States military at Guantanamo Bay was to administer high doses of mefloquine to detainees whether or not any use of the drug was medically appropriate and without consideration of the detainees’ mental health.

It is clear that the military employed a medically inappropriate treatment regime at Guantanamo Bay (GTMO). It is less clear why, although the available evidence supports several possible conclusions. In view of the continued and unexplained refusal of the government to release full medical records for all detainees, it is not possible to determine whether this conduct was gross malpractice or deliberate misuse of drug. In either case, it does not appear plausible from the available evidence that mefloquine was given to treat malaria. This suggests a darker possibility: that the military gave detainees the drug specifically to bring about the adverse side effects, either as part of enhanced interrogation techniques, experimentation in behavioral modification, or torture for some other purpose. While this Report does not reach a conclusion about the actual conduct, it does explore the legal rules that would apply were it determined that mefloquine was administered not to treat malaria but rather to exploit the neuropsychiatric effects of the drug.

Call for papers from junior faculty for AALS panel on the pretrial process

The papers will be presented in conjunction with a panel sponsored by the AALS Section on Criminal Justice at the 2012 AALS annual meeting in Washington, D.C. The call is limited to those who have been teaching for six years or fewer as of July 1, 2011. The complete announcement follows the jump.

The AALS Section on Criminal Justice will hold a panel during the AALS

2012 Annual Meeting in Washington D.C. on the Pretrial Process.  We are soliciting papers to consider for presentation in conjunction with this panel.  Current confirmed speakers on this distinguished panel include Ronald Allen, Northwestern University, Myrna Raeder, Southwestern Law School, and Roger Fairfax, George Washington University.  The panel will be moderated by Shima Baradaran, Brigham Young University.

 

Panel: Importance of the Pretrial Process in Reducing Mass Incarceration and Protecting the Innocent

 

An overwhelming majority of criminal cases are disposed of pretrial by a plea bargain.  Many key decisions as far as whether a defendant will be found guilty, what her sentence will be, and wide-ranging effects on mass incarceration and conviction of the innocent are a result of important pretrial procedures.  This panel focuses on the steps in the pretrial process that lead to mass incarceration and allow the conviction of innocent people.  The specific pretrial steps focused on include the pretrial decision to release or detain, right to counsel, the grand jury, eye witness identifications, plea bargaining, and pre-plea Brady disclosures.  The panel will discuss the effects of the pretrial detention decision and preventative detention on high incarceration rates and whether people receive custodial sentences.

In regards to plea bargaining, panelists will discuss the pressure and calculus that allows innocent people to plead guilty.  As far as pre-plea Brady disclosures, panelists will discuss the impacts of prosecutor’s obligation to turn over exculpatory evidence before plea bargain.  Finally, panelists will discuss the pretrial right to counsel, the grand jury’s role in reducing mass incarceration and wrongful convictions, and the quality and necessity of counsel in the early stages of a judicial proceeding.

 

Eligibility and Due Date

 

Faculty members of AALS member and fee-paid law schools are eligible to submit papers.  Foreign, visiting and adjunct faculty members, graduate students and fellows are not eligible to submit.

 

This call for papers is limited to those who have been teaching for six years or fewer as of July 1, 2011.  The due date for submission is August 15, 2011.  Any paper that has not yet been the subject of an offer of publication by August 15, 2011, is eligible for submission.

To facilitate anonymous review, please submit papers in electronic form to Maria Sanchez, masanche@chapman.edu, assistant to Professor M.

Katherine Baird Darmer, Section chair.  The paper should have identifying information contained on a cover sheet only; the cover page will be removed before the paper is distributed for review.  The cover sheet should also include the year you began law teaching and a statement that the paper has not yet received any offers of publication.

 

Form and Length

 

Submitted abstracts should be no longer than three (3) pages, double spaced, with standard margins and font size.

 

Registration Fees and Expenses

 

Call for Papers participants will be responsible for paying their annual meeting registration fee and travel expenses.

 

Paper Review and Notification of Acceptance

 

Papers will be selected after review by members of the Criminal Justice Section Executive Committee.  Authors of accepted papers will be notified by November 1, 2011.

Call for papers: Charleston Law Review's annual Supreme Court preview

Articles or essays "addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court," are currently being considered. The full announcement follows the jump.

The Charleston Law Review invites submissions for its annual Supreme Court Preview volume.  This year’s Preview will feature a foreword by Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California Irvine School of Law.  The 2009 Supreme Court Preview volume was cited by Justice Clarence Thomas in his concurring opinion in FCC v. Fox Television Stations Inc., 129 S. Ct. 1800 (2009). 

 We welcome an article or essay addressing a case before the Court in its October 2011 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court.  

The Supreme Court Preview is published to coincide with the opening of the October 2011 Term.  We therefore ask that work be submitted no later than August 1, 2011.  Submissions will be reviewed on a rolling basis beginning June 1, 2011.  Please direct submissions and any questions about our Supreme Court Preview to Mollie Brunworth, Editor in Chief, via email at mgbrunworth [at] charlestonlaw.edu.

Today's criminal law/procedure cert grants

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

• Gonzalez v. Thaler: limited to two questions: (a) Whether there was jurisdiction to issue a certificate of appealability under 28 U.S.C. § 2253(c) and to adjudicate petitioner’s appeal; and (b) whether the application for a writ of habeas corpus was out of time under 28 U.S.C. § 2244(d)(1) due to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
• Setser v. United States: whether district court has authority to order a federal sentence be served consecutive to an as-yet-unimposed state sentence.
• Smith v. Louisiana: 1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	581	The Law Enforcement Surveillance Reporting Gap Christopher Soghoian, Indiana University Bloomington - Center for Applied Cybersecurity Research, Date posted to database: April 11, 2011
2	464	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	321	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
4	315	The Objects of the Constitution Nicholas Quinn Rosenkranz, Georgetown University - Law Center, Date posted to database: May 20, 2011
5	276	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	238	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
7	211	Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture? Larry Laudan, Instituto de Investigaciones Filosoficas, UNAM, Date posted to database: April 21, 2011
8	177	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 [9th last week]
9	168	Moral Character, Motive, and the Psychology of Blame Janice Nadler, Mary-Hunter McDonnell, Mary-Hunter McDonnell, Northwestern University School of Law, Northwestern University - Kellogg School of Management, Northwestern University School of Law, Date posted to database: April 21, 2011 [8th last week]
10	139	The Lady, or the Tiger? A Field Guide to Metaphor and Narrative Linda L. Berger, Mercer University School of Law, Date posted to database: April 25, 2011 [new to top ten]