Saturday, June 25, 2011
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.
Friday, June 24, 2011
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.
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.
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.
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.
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.
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.
Thursday, June 23, 2011
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.
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 ___.
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.
Wednesday, June 22, 2011
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.
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.
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.
Tuesday, June 21, 2011
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.
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.
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?
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.
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.
Monday, June 20, 2011
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.
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.