CrimProf Blog

Rosenbloom on Padilla Across the Border

Rachel E. Rosenbloom (Northeastern University School of Law) has posted Will Padilla Reach Across the Border? (New England Law Review, Vol. 34, pp. 327-349, 2011) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the Supreme Court recognized a noncitizen criminal defendant’s Sixth Amendment right to receive accurate advice regarding the immigration consequences of a guilty plea. This Article argues that although Padilla represents a major step forward, its reach will be uneven. Looking at what Padilla will mean for those who have been deported on the basis of constitutionally defective guilty pleas, the author identifies two factors that may limit the decision’s impact. First, restrictions on state and federal postconviction relief, combined with the logistical and evidentiary complexities inherent in litigating a claim from abroad, will present significant obstacles to pursuing Padilla claims. Secondly, a deportee who prevails on a Padilla claim may find that the vacatur of the conviction fails to provide her with any basis for regaining her former immigration status. In response to these potential limitations, this Article proposes a set of reforms to bring Padilla’s promise to fruition. The proposals focus on making mechanisms for postconviction review accessible to deportees and providing ways for deportees to return to the United States temporarily to pursue Padilla claims and permanently if they are successful in such claims.

Erickson on the Limits of Neurolaw

Steven K. Erickson has posted The Limits of Neurolaw (Houston Journal of Health Law and Policy, Vol. 11, 2012) on SSRN. Here is the abstract:

This brief essay is a response to Professor Lamparello‘s ambitious article in the forthcoming symposium collection in the Houston Journal of Health Law and Policy. Professor Lamparello suggests that cognitive neuroscience might finally provide the criminal justice system with a reliable method of crime control. Unlike previous proposals under the fashionable neurolaw framework, Lamparello suggests that the value of the technology neuroscience brings to the table lies not in overturning the entrenched legal doctrine of mens rea or responsibility, but rather in its utilization to make predictions of future dangerousness. Those offenders who possess neurological abnormalities should be civilly committed after serving their prison sentences, according to Lamparello, just as many sexually violent predators are civilly committed today in light of the Kansas v. Hendricks and Kansas v. Crane. For reasons I discuss, I believe such policy prescriptions are unnecessary and unwise.

Sklansky on Criminal Justice Work and "The Wire"

David Alan Sklansky (University of California, Berkeley - School of Law) has posted Confined, Crammed, and Inextricable: What The Wire Gets Right (Ohio State Journal of Criminal Law, Vol. 8, No. 2, p. 473, 2011) on SSRN. Here is the abstract:

This short essay, written for a symposium on the television series, "The Wire," uses a particular scene to discuss the show's treatment of the human and moral complexities of criminal justice work.

Best on Elements, Sentencing Factors, and the Right to Jury Trial

Eli K. Best has posted Elements, Sentencing Factors, and the Right to a Jury Trial: An Analysis of Legislative Power and its Limits (Yale Law & Policy Review, Vol. 29, 2011) on SSRN. Here is the abstract:

The Supreme Court often states that the decision as to whether a given fact in a criminal statute is an element or a sentencing factor is a question for Congress, but this seemingly straightforward statement masks some complicated subtleties. This Comment explores the extent to which Congress is theoretically free to make these decisions, and the extent to which Congress makes them in practice.

Simon-Kerr on Pious Perjury

Julia Ann Simon-Kerr (The University of Chicago Law School) has posted Pious Perjury in Scott's The Heart of Midlothian (EMPIRE AND SYMPATHY: GENDER, LAW, AND THE BRITISH NOVEL IN THE EIGHTEENTH AND NINETEENTH CENTURIES, Alison LaCroix & Martha Nussbaum, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

Lying in court was a practice routinely used in the eighteenth century justice system to mitigate the severity of its criminal laws. Dubbed “pious perjury” by Blackstone, witnesses and juries often violated their oaths in order to avoid imposition of the death penalty. The practice was so common that it formed a central piece of the argument for law reform during the period when Scott was writing The Heart of Midlothian. Reformers argued that the laws were being grossly under-enforced because so many juries were mitigating sentences or freeing defendants through pious perjury. True to this practice, the men surrounding Scott’s heroine, Jeanie Deans urge her to perjure herself to save her sister, who has been wrongly accused of infanticide. Her sister, Effie, will be acquitted if Jeanie swears that Effie told her of her pregnancy. Jeanie’s refusal to lie forms the dramatic core of the novel. By creating a heroine whose major strength is her truthfulness in a public realm, Scott intervenes both in the novelistic tradition of female heroism and in the contemporary discourse on law reform.

Stern on the Analytical Turn, and Element Analysis in Criminal Law

Simon Stern (Faculty of Law, University of Toronto) has posted The Analytical Turn in Nineteenth-Century Legal Thought on SSRN. Here is the abstract:

This essay seeks to account for the introduction of the analytical method into Anglo-American legal thinking in the 19th century and to identify some of the doctrinal consequences of this mode of problem-solving. I focus on a particular sense of analysis – the disaggregation into components of seemingly unified entities, not previously seen as composites. On this view, a discussion of U.S. law as involving federal law and state law does not involve analysis, but a discussion of privacy as including decisional and spatial aspects would involve analysis. The term "analysis" long predates the nineteenth century, but had previously been used by lawyers to mean "investigation" or "classification" rather than disaggregation. Drawing on research by John Pickstone, I show that the technique, though not unheard of before the 19th century, was taken up in a wide array of scientific disciplines circa 1780-1840, particularly in chemistry. This helps to explain its diffusion into other intellectual spheres, including law.

The nineteenth-century analytical revolution had a profound effect on the Anglo-American legal system, its doctrines, and its approach to problem-solving, to such an extent that modern lawyers’ views about their professional competences, and their beliefs about what constitutes a persuasive legal argument, would be radically different without this feature. The analytical approach is evident in contemporary thinking about statutory drafting and interpretation, constitutional law, and administrative law, as well as the common law. Because it is beyond the scope of a single essay to delineate these effects fully, I focus here on the changes associated with the introduction of elements into nineteenth-century jurisprudence, in a pattern that reveals some of the most visible results of the analytical approach.

Part I discusses the rise of analysis in science and the law around the beginning of the nineteenth century. Part II shows how issue preclusion (in res judicata) was reconceived in the course of the nineteenth century, morphing from a doctrine focused on the relitigation of particular facts, to a doctrine concerned with legal issues, now understood as involving legal conclusions based on facts. Part III addresses the reconceptualization of criminal offenses as consisting of "elements," a development that led to new ways of thinking about burdens of proof and the role of mens rea in criminal liability. A concluding section reflects briefly on the implications of this approach to legal science. The argument shows that legal science may be profitably studied not only by looking at the statements of lawyers such as David Hoffman, Simon Greenleaf, and George Sharswood, who took pains to insist that they were being scientific, but also by looking to particular instances in which lawyers adopt scientific methods, even if they do not call attention to this practice, and even if they make no claims about legal science.

Italian Seismologists Charged with Manslaughter (Kolber)

Seismologists in Italy have been charged with manslaughter for failing to give sufficient warning of a 2009 earthquake that killed over 300 people.  According to an article in the Guardian, "The judge said the defendants 'gave inexact, incomplete and contradictory information' about whether smaller tremors in L'Aquila six months before . . . should have been viewed as warning signs of the subsequent disaster."

The defense here seems pretty strong:

Defence lawyers contend that since quakes cannot be predicted, the accusations that the commission's scientists and civil protection experts should have warned that a major quake was imminent make no sense.

"As we all know, quakes aren't predictable," said Marcello Melandri, defence lawyer for defendant Enzo Boschi, a scientist who heads the National Institute of Geophysics and Volcanology.

Melandri added that the panel "never said, 'stay calm, there is no risk'".

Manslaughter charges for natural disasters are not unusual in Italy, but they have previously concerned breaches of building codes in areas at risk of quakes.

-AJK

Opinion on relief from sentence on plea in light of subsequent reduction in sentencing range

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

In order to reduce unwarranted federal sentencing disparities, the Sentencing Reform Act of 1984 authorizes the United States Sentencing Commission to create, and to retroactively amend, Sentencing Guidelines to inform judicial discretion. Title 18 U. S. C. §3582(c)(2) permits a defendant who was sentenced to a term of imprisonment “based on” a Guidelines sentencing range that has subsequently been lowered by retroactive amendment to move for a sentence reduction.This case concerns §3582(c)(2)’s application to cases in which the defendant and the Government have entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), which permits the parties to “agree that a specific sentence or sentencing range is the appropriate disposition of the case,” and “binds the court [to the agreed-upon sentence] once [it] accepts the plea agreement.” Petitioner Freeman was indicted for various crimes, including possessing with intent to distribute cocaine base. 21 U. S. C. §841(a)(1).He entered into an 11(c)(1)(C) agreement to plead guilty to all charges; in return the Government agreed to a 106-month sentence.The agreement states that the parties independently reviewed the applicable Guidelines, noted that Freeman agreed to have his sentence determined under the Guidelines, and reflected the parties’ understanding that the agreed-to sentence corresponded with the minimum sentence suggested by the applicable Guidelines range of 46 to 57 months, along with a consecutive mandatory minimum of 60 months for possessing a firearm in furtherance of a drug-trafficking crime under 18 U. S. C. §924(c)(1)(A). Three years after the District Court accepted the plea agreement, the Commission issued a retroactive Guidelines amendment to remedy the significant disparity between the penalties for cocaine base and powder cocaine offenses. Because the amendment’s effect was to reduce Freeman’s applicable sentencing range to 37 to 46 months plus the consecutive 60-month mandatory minimum, he moved for a sentence reduction under
§3582(c)(2). However, the District Court denied the motion, and the Sixth Circuit affirmed because its precedent rendered defendants sentenced pursuant to 11(c)(1)(C) agreements ineligible for §3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.

Held: The judgment is reversed, and the case is remanded.

355 Fed. Appx. 1, reversed and remanded.

JUSTICE KENNEDY, joined by JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concluded that defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence as a condition of the guilty plea may be eligible for relief under §3582(c)(2). Pp. 5–10.

(a) The text and purpose of the statute, Rule 11(c)(1)(C), and the governing Guidelines policy statements compel the conclusion that the district court has authority to entertain §3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement. The district judge must, in every case, impose “a sentence sufficient, but not greater than necessary, to comply with” the purposes of federal sentencing, in light of the Guidelines and other relevant factors. §3553(a). The Guidelines provide a framework or starting point—a basis, in the term’s commonsense meaning—for the judge’s exercise of discretion. Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree on a
specific sentence, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual sentencing, whether following trial or plea, the judge’s reliance on the
Guidelines will be apparent when the judge uses the Guidelines range as the starting point in the analysis and imposes a sentence within the range. Gall v. United States, 552 U. S. 38, 49. Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point to explain the deviation, then the Guidelines are in a real sense a basis for the sentence. The parties’ recommended sentence binds the court “once the court accepts the plea agreement,” Rule 11(c)(1)(C), but the relevant policy statement forbids the judge to accept an agreement without first giving due consideration to the applicable Guidelines sentencing range, even if the parties recommend a specific sentence as a condition of the guilty plea, see U. S. Sentencing Commission, Guidelines Manual §6B1.2. This approach finds further support in the policy statement applicable to §3582(c)(2) motions, which instructs the district court in modifying a sentence to substitute the retroactive amendment, but to leave all original Guidelines determinations in place, §1B1.10(b)(1). Pp. 5–7.

(b) Petitioner’s sentencing hearing transcript reveals that the District Court expressed its independent judgment that the sentence was appropriate in light of the applicable Guidelines range. Its decision was therefore “based on” that range within §3582(c)(2)’s mean-ing. P. 7.

(c) The Government’s argument that sentences that follow an 11(c)(1)(C) agreement are based only on the agreement itself and not the Guidelines, and are therefore ineligible for §3582(c)(2) reduction, must be rejected. Even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek §3582(c)(2) relief. Pp. 7–10.

JUSTICE SOTOMAYOR concluded that if an agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) ((C) agreement) expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the Sentencing Commission, the prison term is “based on” the range employed and the defendant is eligible for sentence reduction under 18 U.S.C. §3582(c)(2). Pp. 1–11.

(a) The term of imprisonment imposed by a district court pursuant to a (C) agreement is “based on” the agreement itself, not on the judge’s calculation of the Guidelines sentencing range. To hold otherwise would be to contravene the very purpose of (C) agreements—to bind the district court and allow the Government and the defendant to determine what sentence he will receive. Pp. 1–5.

(b) This does not mean, however, that a term of imprisonment imposed under a (C) agreement can never be reduced under §3582(c)(2).Because the very purpose of a (C) agreement is to allow the parties to determine the defendant’s sentence, when the agreement itself employs a particular Guidelines sentencing range applicable to the charged offenses in establishing the term of imprisonment imposed by the district court, the defendant is eligible to have his sentence reduced under §3582(c)(2). Pp. 5–9.

(c) Freeman is eligible. The offense level and criminal history category set forth in his (C) agreement produce a sentencing range of 46 to 57 months; it is evident that the parties combined the 46-month figure at the low end of the range with the 60-month mandatory minimum sentence under §924(c)(1)(A) to establish the 106-month sentence called for in the agreement. Under the amended Guidelines, however, the applicable sentencing range is now 37 to 46 months. Therefore, Freeman’s prison term is “based on” a sentencing range that “has subsequently been lowered by the Sentencing Commission,” rendering him eligible for sentence reduction. Pp. 9–11.

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

Opinion in confrontation clause case involving forensic lab report

The case is Bullcoming v. New Mexico. Here is the syllabus:

The Sixth Amendment’s Confrontation Clause gives the accused “[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. Bullcoming’s counsel objected, asserting that introduction of Caylor’s report without his testimony would violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under Melendez-Diaz, but held that the report’s admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test results, and (2) SLD analyst Razatos, although he did not participate in testing Bullcoming’s blood, qualified as an expert witness with respect to the testing machine and SLD procedures. The court affirmed Bullcoming’s conviction.

Held: The judgment is reversed, and the case is remanded.

147 N. M. 487, 226 P. 3d 1, reversed and remanded.

JUSTICE GINSBURG delivered the opinion of the Court with respect to all but Part IV and footnote 6. The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.

(a) If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness. Pp. 8–14.

(i) Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine produced data, are meet for cross-examination. The potential ramifications of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events. Where, for example, a police officer’s report recorded an objective fact such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he or she was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does not dispense with the Clause. Crawford, 541 U. S., at 62. The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___, n. 6. Pp. 10–11.

(ii) Nor was Razatos an adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed to reveal whether Caylor’s incompetence, evasiveness, or dishonesty accounted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because,on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548 U.S. 140, 145. If a “particular guarantee” is violated, no substitute procedure can cure the violation. Id., at 146. Pp. 11–14.

(b) Melendez-Diaz precluded the State’s argument that introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in Melendez-Diaz, the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz. Here, as there, an officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificate concerning the result of his analysis. And like the Melendez-Diaz certificates, Caylor’s report here is “formalized” in a signed document, Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report form contains a legend referring to municipal and magistrate courts’ rules that provide for the admission of certified blood-alcohol analyses.Thus, although the SLD report was not notarized, the formalities attending the report were more than adequate to qualify Caylor’s assertions as testimonial. Pp. 14–16.

GINSBURG, J., delivered the opinion of the Court, except as to Part IV and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion concurring in part. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

"New Age Guru Guilty in Sweat Lodge Deaths"

From the New York Times:

PHOENIX — A jury found James A. Ray, a self-help guru, guilty of negligent homicide on Wednesday in the deaths of three of his followers during a botched sweat lodge ceremony near Sedona in October 2009.

. . .

[The prosecutor] had painted Mr. Ray as a reckless man who continued his ceremony, the culmination of a five-day “Spiritual Warrior” seminar that cost as much as $10,000 a person, without regard for the participants who were falling ill and slipping into unconsciousness.

The defense said the three victims were not coerced by Mr. Ray and may have died from unknown toxins in the sweat lodge, a round wood-frame structure covered with blankets and tarps. Besides the three deaths, numerous other participants were injured during the ceremony, which was intended to push people to conquer their limitations. All had signed waivers warning that death was among the risks, Mr. Ray’s lawyers noted.

Blume & Paavola on Neuroimages in Capital Cases

John H. Blume (pictured) and Emily C. Paavola (Cornell Law School and Cornell Law School) have posted Life, Death, and Neuroimaging: The Advantages and Disadvantages of The Defense’s Use of Neuroimages in Capital Cases - Lessons from the Front (Mercer Law Review, Vol. 62, 2011) on SSRN. Here is the abstract:

The use of neuroimaging in capital cases has become increasingly common. An informal survey of cases produced over one hundred opinions from reported decisions alone discussing the use of computed tomography (CT) scanning, magnetic resonance imaging (MRI), functional MRI, positron emission tomography (PET) scans, single-photon emission computed tomography (SPECT) scans, and similar technology in capital cases. This article gives practical advice to defense counsel considering the use of neuroimaging in a capital case. We discuss how, in the right case, this technology can be a valuable investigative tool used to produce an important component of a successful mitigation story. However, we also discuss a number of pitfalls we have encountered in our own practice. Using case examples, we elaborate on the serious risks involved, including: (a) errors in analysis; and, (b) overreliance on imaging, and provide specific guidance on how to navigate the pros and cons of the defense’s use of neuroimaging in capital cases.

Witmer-Rich on Consent

Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted It’s Good to Be Autonomous: Prospective Consent, Retrospective Consent, and the Foundation of Consent in the Criminal Law (Criminal Law and Philosophy, Vol. 5, 2011) on SSRN. Here is the abstract:

What is the foundation of consent in the criminal law? Classically liberal commentators have offered at least three distinct theories. J.S. Mill contends we value consent because individuals are the best judges of their own interests. Joel Feinberg argues an individual’s consent matters because she has a right to autonomy based on her intrinsic sovereignty over her own life. Joseph Raz also focuses on autonomy, but argues that society values autonomy as a constituent element of individual well-being, which it is the state’s duty to promote.

The criminal law’s approach to the problem of non-contemporaneous consent - prospective consent and retrospective consent - casts a unique light on the differences among these three justifications. Peter Westen claims neither Mill’s nor Feinberg’s justifications for consent fully explain how non-contemporaneous consent is treated in the criminal law. Specifically, Mill’s "self-interest" conception explains the criminal law’s limited recognition of prospective consent, but cannot explain its total rejection of retrospective consent. Conversely, Feinberg’s "sovereign autonomy" conception explains why the criminal law rejects retrospective consent, but cannot explain why the law recognizes irrevocable prospective consent only in limited circumstances.

I resolve this dilemma by explaining that Raz’s "autonomy is good" conception is consistent with both the criminal law’s limited recognition of irrevocable prospective consent and its total rejection of retrospective consent. This suggests the existing criminal law embodies Raz’s theory that it is the duty of the state to promote morality, in particular the moral good of individual well-being through living autonomously. In contrast, the criminal law’s treatment of consent would have to be modified if it were to reflect Mill’s "self-interest" conception, or Feinberg’s "sovereign autonomy" conception.

Birckhead on Juvenile Justice Reform

Tamar R. Birckhead (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Juvenile Justice Reform 2.0 (Brooklyn Journal of Law and Policy, Vol. 19, 2012) on SSRN. Here is the abstract:

Before the 1954 decision in Brown v. Board of Education, the United States Supreme Court’s exercise of judicial review did not support the notion that constitutional litigation could be an effective instrument of social reform. The Court’s principled rejection of racially segregated public education, however, gave new legitimacy to the concept of judicial review, transforming it from an obstacle into a principal means of achieving social progress. Since then, federal courts have impacted public policy in many areas – from housing, welfare, and transportation to mental health institutions, prisons, and juvenile courts. Yet, there are inherent structural challenges to affecting institutional change through litigation: courts are themselves passive institutions that respond slowly to new information; they are oriented toward past events and circumstances rather than the possibilities implicit in future ones; and they graft qualifications onto preexisting law rather than engaging in a fresh consideration of the issues. In his landmark work, The Hollow Hope: Can Courts Bring About Social Change?, Professor Gerald Rosenberg persuasively argued that in order to overcome these constraints in a particular case or controversy, certain key elements must be present: incentives for the institution to change; costs to the institution for not changing; the existence of parallel institutions to help implement the change; and the use of court orders to leverage additional resources to bring about the change or to serve as a cover for administrators who are willing to act but fear political repercussions.

For more than sixty years after the founding of the first juvenile court in 1899, its philosophy and guiding principle were based on the rehabilitative ideal, which rejected the traditional adversary system found in criminal court proceedings in favor of informal procedures, indeterminate sanctions, judicial discretion, and individualization. The 1967 Supreme Court case of In re Gault struck at the core assumptions of this paradigm with its emphasis on the functional similarity between juvenile and adult criminal court and extension of key due process protections to youth charged in delinquency court, including the right to counsel and the privilege against self-incrimination. Yet, as revolutionary as the Gault decision was, its holding failed to translate into long-term sustainable reform – the result, at least in part, of the absence of the requisite factors articulated by Professor Rosenberg. Whether the recent Supreme Court cases of Roper v. Simmons, Graham v. Florida, and their progeny will facilitate such reform remains an open question.

This Article, written for a symposium at Brooklyn Law School on “Adolescents in Society: Their Evolving Legal Status,” explores the potential for twenty-first century Supreme Court decisions implicating juveniles’ constitutional rights to transform the way in which the courts process and punish young offenders. It discusses the method and means by which institutional reform litigation brings about change and the structural challenges that arise when courts attempt to transform complex institutions. It provides a brief review of Supreme Court decisions prior to Brown that served to prevent rather than enable social change in the areas of slavery, racial segregation, and workers’ rights; it contrasts these cases with the decision and impact of Brown. It argues that although In re Gault was indeed a foundational legal holding, it did not translate into effective policy due in part to local officials’ failure to implement the decision as expected and lawmakers’ inability to enact legislation that was true to the spirit of Gault. The Article argues that based on the analysis developed by Professor Rosenberg and other scholars, recent Supreme Court decisions ending the juvenile death penalty and juvenile life without parole sentences for non-homicides could lead to significant change in both the juvenile and criminal justice systems for young offenders. It acknowledges the limitations to this theory and the challenges that are likely to arise, and concludes that although courts can reform complex institutions, constitutional litigation is an unreliable path to social change.

Wright on Portable Minimalism in Sentencing Politics

Ronald F. Wright (Wake Forest University - School of Law) has posted Portable Minimalism in Sentencing Politics (Cardozo Law Review, Vol. 32, 2011) on SSRN. Here is the abstract:

In this response to Erik Luna and Paul Cassell’s article, Mandatory Minimalism, 32 Cardozo L. Rev. 1 (2010), I argue that the authors’ theory of federal crime legislation is misplaced – in the literal sense that it is directed to the wrong place. A minimalist strategy of finding the available legislative consensus for small reforms will usually not work in the federal legislative process. Any change to federal crime legislation faces many procedural barriers, most prominent among them the use of the filibuster in the Senate. Given this institutional landscape, it is not surprising that Congress hardly ever repeals mandatory minimum statutes. Institutional rules, rather than individual views of legislators, produced this result in the past and will dominate efforts to repeal these laws in the future. The legislative process in many states, however, is not so oriented towards inaction. One can point to a larger stockpile of repealed mandatory minimums at the state level.

The core issue, then, is the portability of minimalism. The social science foundations of the theory posit behavioral rules for individuals, but individuals work within particular institutions, with their particular decision rules and traditions. A theory about individual action, such as minimalism, does offer insights, but it must be filtered through the institutional lenses of the relevant jurisdiction.

Roberts on Disparate Impact the (Mis)Use of Batson

Anna Roberts (NYU School of Law) has posted Disparately Seeking Jurors: Disparate Impact and the (Mis)Use of Batson (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article . . . uncovers a stark inequality within Equal Protection jurisprudence. On the 25th Anniversary of the Supreme Court’s decision in Batson v. Kentucky, which established a three-step test for assessing claims of purposeful discrimination in jury selection, I present the first comprehensive research on the application by the lower federal courts of Batson’s disparate impact analysis. The results are striking. Whereas the test was developed to prevent the discriminatory removal of African American jurors from the trials of African Americans, the courts now use disparate impact analysis only to vindicate the rights of white jurors. In other words, disparate impact analysis is itself being applied disparately.

This Article proceeds in three parts. Part I describes the Supreme Court framework within which the lower federal courts operate when they evaluate the constitutionality of peremptory strikes of potential jurors. The three-step test first articulated in Batson requires (1) a prima facie showing of discrimination; (2) a neutral justification for the strike; and (3) a determination by the trial judge of whether purposeful discrimination motivated the strike. In describing the Supreme Court jurisprudence, the Article identifies four issues that are crucial to disparate impact analysis in the Batson context: the role of the trial judge; the requirement that justifications be connected to the facts of the case; the comparability principle, which requires that similarly-situated jurors be treated in similar fashion; and the question of whose rights the Batson doctrine protects.

Part II introduces the two sets of cases that I examine in this Article, and that exhibit a striking disparity in outcome. The first set consists of the thirty-six cases in which lower federal courts addressed disparate impact arguments relating to the strikes of jurors of color or female jurors. In all of those cases, the claims of purposeful discrimination were ultimately unsuccessful. The second set consists of the three cases in which courts addressed disparate impact arguments relating to the strikes of white jurors. In all of those cases, the claims of purposeful discrimination were ultimately successful.

In Part III, the Article demonstrates that this disparity in outcome correlates with a disparity in approach to four issues that I identify as crucial to disparate impact analysis. On each issue, the courts addressing the strikes of white jurors provide a depth of analysis that is absent from the cases involving jurors of color and female jurors. On each issue, the courts addressing the strikes of white jurors display a boldness in addressing the challenges and opportunities created by Batson that is absent from the cases involving jurors of color and female jurors. The Article concludes by urging that this depth of analysis and this boldness be applied uniformly to disparate impact claims in the Batson context. Until these disparities are corrected, it would be naïve to call the peremptory system fair, and it would be premature to call for its abandonment.

Volokh on Prison Vouchers

Alexander Volokh (Emory University School of Law) has posted Prison Vouchers (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:

School vouchers have been proposed as a way to bypass the political pathologies of school reform and improve school quality by transforming students and parents into consumers. What if we did the same for prisons - what if convicted criminals could choose their prison rather than being assigned bureaucratically?

Under a voucher system, prisons would compete for prisoners, meaning that they will adopt policies valued by prisoners. They would be more flexible as a constitutional matter - faith-based prisons would be fully constitutional, and prisons would also have increased freedom to offer valued benefits in exchange for the waiver of constitutional rights. As far as prison quality goes, the advantages of vouchers would plausibly include greater security, decent health care, and good educational and vocational opportunities - features that are also valued by prison reformers and have rehabilitative value.

The counterarguments are twofold. “Market failure” arguments hold that, because of informational or other problems, prisoner choice would not succeed in improving overall prison quality. “Market success” arguments, on the other hand, hold that prison choice would im-prove prison quality too well, satisfying inmate preferences that are socially undesirable or diluting the deterrent value of prison. These counterarguments have substantial force, but it is still possible that these disadvantages are outweighed by the socially desirable improvements.

I conclude with thoughts about the politics of prison vouchers, both before and after their adoption.

Seligman on AEDPA's Application to Summary Dispositions

Matthew Seligman has posted Harrington's Wake: Unanswered Questions on AEDPA's Application to Summary Dispositions (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:

In this Note, I propose a new solution to the problem of the Antiterrorism and Effective Death Penalty Act’s application to state court summary dispositions – decisions unaccompanied by written opinion, and so without reasons provided. Summary dispositions are extremely common: I present new empirical data demonstrating that as many as 97.8% of state habeas petitions in California are decided by summary disposition. Under AEDPA, when a state court has already adjudicated an issue on the merits, a federal court may grant a writ of habeas corpus to a state prisoner on the basis of that issue only when the state court’s decision was contrary to, or involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d). This “reasonableness” standard of review seems to presuppose a written opinion memorializing the state court’s reasoning, which the federal court can subsequently analyze – and so it is unclear whether, and how, AEPDA should apply in the absence of a written opinion.

I first argue that the Supreme Court was correct to hold in Harrington v. Richter, 562 U.S. (2011), that summary dispositions are adjudications on the merits for the purposes of § 2254(d)(1). To date, there have been no scholarly treatments of the Harrington decision.

But even if AEDPA applies to summary dispositions, there remains the further crucial question of how that deference should apply. When is a state court decision unreasonable, when it provides no reasons? Neither the Court in Harrington, nor the circuit courts, nor commentators writing before Harrington have squarely addressed this question. To date, the scholarship has addressed only whether summary dispositions are adjudications on the merits, and thus only addressed whether AEDPA applies. No article to date has addressed the crucial question of how AEDPA applies – nor the deep normative concerns regarding the methodology of its application in this extraordinarily common context. The Note’s principal doctrinal contribution – the conclusion that many summary dispositions are unreasonable application of federal law because they fail to consider relevant evidence – thus fills an important hole in the existing scholarship.

To reach this conclusion, I reorient the debate away from the question of whether AEDPA applies, and towards an examination of the state court’s deliberative processes in generating its decision. I distinguish between record-based claims, which are predicated on evidence contained in the trial record, and extra-record claims, which are predicated on evidence outside that record, such as a claim for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). When a state court decides a record-based claim by summary disposition, a federal court cannot assume that the state court failed to examine the evidence it had before it. However, in certain procedural contexts, the issuance of a summary disposition necessarily entails that the state court never examined extra-record evidence. Such summary dispositions of extra-record claims are per se unreasonable because, as the Supreme Court itself recognized in Terry Williams v. Taylor, it is always unreasonable to apply law in the absence of fact. The state court’s deliberative process in these contexts is thus necessarily unreasonable.

Podgor on White Collar Crime in Tweets

Ellen S. Podgor (Stetson University College of Law) has posted 100 Years of White Collar Crime in 'Twitter' (Review of Litigation, Vol. 30, No. 3, p. 533, 2011) on SSRN. Here is the abstract:

Despite the fact that Twitter did not exist when the term “white collar crime” was coined in 1939, it is an interesting exercise to highlight the last 100 years of white collar criminal activity using “tweets.” In so doing, this Essay tries to capture some of the key events that have been prominent in the white collar world.

This Essay first examines corporate criminal liability, looks next at individual liability, and then discusses key statutes and crimes that have been used in the prosecution of white collar criminal activity. In this regard, mail fraud, RICO, and perjury are examined. Sentencing issues and how they have influenced the treatment of white collar crime are tweeted. The ultimate goal of this fictional presentation is to demonstrate a historical overview of white collar crime happenings and is so doing evaluate its progression over time.

Sekhon on Redistributive Policing

Nirej Sekhon (Georgia State University College of Law) has posted Redistributive Policing (Journal of Criminal Law and Criminology, Vol. 101, 2011) on SSRN. Here is the abstract:

Police departments have broad policy-making discretion to arrest some offenders and permit others to engage in criminal misconduct. The way police departments exercise this discretion has harmful distributive consequences. Yet, courts do virtually nothing to constrain departmental discretion. This is because constitutional criminal procedure is preoccupied with individual officer discretion and assumes that the most significant decision moment an officer faces is distinguishing guilt from innocence. I argue that this framing occludes the vast policy-making discretion police departments wield and the central choice they confront: distinguishing between the guilty. This Article identifies the mechanics and anti-egalitarian consequences of departmental discretion. Departmental discretion has three dimensions: geographic deployment, enforcement priority, and enforcement strategy. Through these policy choices, police departments are able to distribute the costs and benefits of proactive policing within a jurisdiction. Case studies of narcotics enforcement and "quality of life" policing concretely demonstrate how departmental choices create inegalitarian distributive consequences. I argue that courts and other public institutions ought to prevent such consequences. This prescription requires conceptualizing arrests, and proactive policing more generally, in terms of distributive justice. Unlike dominant theories of criminal enforcement, distributive justice offers a normative vision that privileges democratic equality. Distributive justice suggests that, for crimes that are subject to proactive policing, probable cause alone should not justify arrest. Rather, police departments should also be required to demonstrate that a given arrest is part of an egalitarian distribution of such.

Reza on Egyptian Criminal Law

Sadiq Reza (New York Law School) has posted Egypt: Criminal Law (HANDBOOK OF COMPARATIVE CRIMINAL LAW, Stanford University Press, 2011) on SSRN. Here is the abstract:

This chapter presents the substantive criminal law of Egypt according to the sources of that law: the 1971 Constitution, the 1937 Penal Code, and other legislation; decisions by the Supreme Constitutional Court (SCC), the Court of Cassation, and other organs of the Egyptian judiciary; and administrative and executive regulations. The evolution of modern Egyptian criminal law is explained, and contemporary scholarly commentary is referenced; also addressed are the constitutional amendments of 2007, and controversial aspects of the law and its enforcement such as the use of emergency and military courts and the prosecution of alleged homosexuals. The chapter thus serves as an introduction to modern Egyptian criminal law and a reference source for scholars and researchers.