CrimProf Blog

Arya on Challenging Juvenile Transfer Laws

Neelum Arya (Campaign for Youth Justice) has posted Using Graham V. Florida to Challenge Juvenile Transfer Laws (Louisiana Law Review, Vol. 71, No. 100-155, 2010) on SSRN. Here is the abstract:

The article suggests that the recent Supreme Court opinion in Graham v. Florida abolishing life without parole sentences for juveniles (JLWOP) convicted of nonhomicide crimes, may be used to challenge juvenile transfer laws. Part I provides a description and analysis of the Graham opinion and reviews the Court's Eighth Amendment jurisprudence through to their recent ruling declaring JLWOP sentences for nonhomicide crimes unconstitutional. Part II argues that youth have a right to rehabilitation found under the state's police power. In addition, Graham discusses three types of difficulties that adult decisionmakers in the criminal justice system have with respect to youth that may be useful to challenge transfer laws. First, judges and experts have problems evaluating the culpability and maturity of youth. Second, adult perceptions of youth are biased by the severity and manner in which the crimes were conducted. Third, counsel have difficulty representing youth in the adult system. These factors apply to all youth prosecuted in the adult criminal system, regardless of offense charged or sentence imposed. Finally, Part III encourages lawyers to revisit these prior challenges in both individual cases and as part of impact litigation strategies to declare all transfer statutes, or portions of them, unconstitutional.

Cunningham on Appellate Review of Unpreserved Questions

Larry Cunningham (St. John's University School of Law) has posted Appellate Review of Unpreserved Questions in the Criminal Cases: An Attempt to Define the 'Interest of Justice' (Journal of Appellate Practice and Process, Vol. 11, No. 2, p. 285, Fall 2010) on SSRN. Here is the abstract:

As a general rule, an appellate court can consider a claim on appeal only if the appellant properly preserved it in the court below. A claim or issue is preserved if it was presented to the lower court at the proper time and with sufficient specificity so that the trial court had an opportunity to correct the alleged error at the time it was made. Preservation is thus accomplished by a simple, timely on-the-record objection along with a brief explanation of its basis. Ordinarily, a court will not grant relief on a claim that is presented for the first time on appeal.

Preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a trump card argument until appeal.

However, preservation is not without its costs, particularly to a criminal defendant. When an attorney unwittingly fails to preserve an argument, his or her client may serve a potentially lengthy sentence even though an otherwise viable claim for a new trial may appear on the record.

In recognition of this dilemma, some legislatures and courts have crafted a narrow exception to the preservation requirement. In limited circumstances, an appellate court may consider an unpreserved question even though no objection or other protest was made to the trial court. This article will consider the approaches taken by the federal courts and New York state in this area.

On their face, the approaches seem very different. The federal rule is detailed, specific, and structured. New York, on the other hand, simply directs its intermediate appellate courts to consider unpreserved questions if doing so is in the interest of justice. Despite these apparent differences, the rules are actually quite similar in practice.

In the federal system, the Court of Appeals or Supreme Court can notice an unpreserved issue if it constitutes a plain error. Decades of Supreme Court precedent have resulted in a four-part test to determine whether an error qualifies as plain. Ultimately, however, the plain error rule is unsatisfactory for two reasons. First, one aspect of the test boils down to whether the defendant can show prejudice by the failure to preserve the claim. In other words, the defendant must demonstrate a successful appellate claim in order to overcome the preservation hurdle. Thus, preservation is fairly meaningless. If the defendant has a winning argument on the merits, the court will dispense with preservation. If, on the other hand, the defendant‘s claim would fail anyway, the court will apply preservation to bar the claim. The result, either way, is that the court is looking beyond the failure to preserve and analyzing the merits of the claim, creating exactly the type of inefficiency that preservation is designed to avoid.

Second, the federal rule is problematic because it provides discretion to the appellate court to determine, notwithstanding the presence of a prejudicial error, whether a miscarriage of justice would result if the plain error rule was not applied. Yet, the courts have not provided a workable definition of miscarriage of justice, except most agree that the plain error rule should be used to free an innocent person.

New York has a similarly unworkable rule. In New York, only intermediate appellate courts typically, the Appellate Division of the Supreme Court can decide unpreserved questions. Statutory authority provides that they may do so only in the interest of justice. No further guidance or explanation about this ambiguous term is provided by statutes or case law. The result is a hodgepodge of cases that seem to suggest that an appellate court will exercise its interest-of-justice jurisdiction only if the defendant has a winning claim on the merits. Otherwise, it will find the issue to be unpreserved and will decline to exercise its interest-of-justice authority to review the claim. Thus, as with the federal plain error rule, New York‘s preservation doctrine is essentially a meaningless smokescreen.

In this article, I will propose a new way of looking at these preservation exceptions in criminal cases. I suggest a number of substantive factors to aid courts in deciding whether the interest of justice warrants appellate review. I also encourage courts to be more explicit in explaining why they are or are not granting exceptions to preservation on a case-by-case basis.

I will proceed as follows: In Part II, I will discuss the competing policies between preservation and defendants‘ due process rights. In Part III, I will compare and contrast the federal and New York exceptions to preservation, noting the flaws in each test. In Part IV, I will demonstrate why a factors test would better serve the goals of preservation while providing for needed exceptions. I will also outline a workable factors test for courts to apply.

Grant on Sentencing of Men Who Kill Their Intimate Partners

Isabel Grant (UBC Faculty of Law) has posted Intimate Femicide: A Study of Sentencing Trends for Men Who Kill Their Intimate Partners (Alberta Law Review, Vol. 47, pp. 779-822, 2010) on SSRN. Here is the abstract:

This article examines sentencing trends over the past 18 years for men who kill their intimate partners. Using a sample of 252 cases, the article demonstrates that periods of parole ineligibility for second degree murder rose significantly after the Supreme Court of Canada’s decision in Shropshire but have more recently levelled off to a range that is still higher than the pre-Shropshire era. With respect to manslaughter, changing social attitudes and the amendments to the Criminal Code making the spousal nature of the crime an aggravating factor have resulted in increasingly severe sentences for spousal manslaughters. While a large number of the cases in this sample involved the intoxication of the accused and/or the victim, the defence of intoxication rarely reduced murder to manslaughter. Similarly, the number of successful provocation defences was lower than expected.

Givati on the Comparative Law and Economics of Plea Bargaining

Yehonatan Givati has posted The Comparative Law and Economics of Plea Bargaining: Theory and Evidence on SSRN. Here is the abstract:

Why is plea bargaining commonly employed in some countries, while its use is heavily restricted in others? I develop a formal model in which a social planner, who minimizes the social harms from punishing the innocent and not punishing the guilty, considers the effect of different plea bargaining regimes on law enforcement agencies and individuals, and decides on the optimal scope of plea bargaining. The model shows that higher levels of crime and a greater social emphasis on ensuring that guilty individuals are punished lead to a greater use of plea bargaining, while lower levels of crime and a greater social emphasis on ensuring that innocent individuals are not punished leads to less use of plea bargaining. Using new cross-country data on social preferences for punishing the innocent versus not punishing the guilty together with crime data, and a new coding of plea bargaining regimes across countries, I obtain results that are consistent with the model’s predictions.

de Figueiredo on Recidivism and Sentencing Enhancements for Drunk Driving

Miguel de Figueiredo has posted Do Sentencing Enhancements for Drunk Driving Decrease Recidivism? a Regression Discontinuity Approach on SSRN. Here is the abstract:

Using micro-level data on drunk driving arrests in Arkansas, this paper exploits discontinuities in sentencing enhancements at various blood alcohol content (BAC) levels to estimate causally the effect of the increasing penalties on recidivism. Specifically, the research design examines defendants just above and just below a BAC level of 0.15 to see if the effect of an increased license suspension by an additional two months has an effect on recidivism. The paper finds that increased penalties in the neighborhood of the discontinuity in the form of license suspensions have no statistically significant effect on drunk driving recidivism, suggesting that the increased penalty does not deter defendants from committing another drunk driving offense in the future. The paper’s focus on suspension of privileges as a form of punishment, coupled with its rich micro-level data (15,973 defendants from two jurisdictions) and research design that enables reliable causal inferences and estimation, make it contrast with numerous studies in the extant literature.

Robinson on Glanville Williams

Paul H. Robinson (University of Pennsylvania Law School) has posted Four Distinctions that Glanville Williams Did Not Make on SSRN. Here is the abstract:

In his time, Glanville Williams was a pioneer who brought sophistication and rationality to criminal law doctrinal analysis. Today's criminal law theorists have benefited from his advances in analytic approach. As he was a renegade of sorts in his generation, I like to think that he would hope and expect that we would look critically at what we were given by earlier scholars and would try, as he did, to be open to new approaches and ideas.

In that spirit, and in celebration of Glanville William's 100th birthday, this article offers four examples of what it argues are important criminal law organizing distinctions that Glanville Williams did not make. For each, the article describes the distinction, explains how it works, and illustrates how its use can improve the accuracy and insights of criminal law theory. The four distinctions it defends as important are: the conceptual differences among the general defence categories of justifications, excuses, and nonexculpatory defences; the distinct operational category of "doctrines of imputation," such as complicity and voluntary intoxication, which impute to an actor a required offence element that the defendant does not in fact satisfy; the distinction between those doctrines that function to articulate ex ante the criminal law's rules of conduct and those doctrines that function ex post as principles for adjudicating violations of the rules of conduct; and the distinction between two kinds of legality: conduct-rules legality and adjudication legality.

Berger on Mental Disorder and the Instability of Blame

Benjamin L. Berger (Osgoode Hall Law School) has posted Mental Disorder and the Instability of Blame in Criminal Law (RETHINKING CRIMINAL LAW THEORY: NEW CANADIAN PERSPECTIVES IN THE PHILOSOPHY OF DOMESTIC, TRANSNATIONAL, AND INTERNATIONAL CRIMINAL LAW, pp. 117-139, Hart Publishing, 2011) on SSRN. Here is the abstract:

How can we understand the troubling under-inclusiveness of our law of mental disorder – its failure to recognize mental conditions that, on the most compelling theoretical accounts of how mental disorder operates on criminal responsibility, ought to concern us deeply? This article argues that the gap between our plausible theories of criminal responsibility and our practices relating to mental disorder is best understood as a marker for the criminal law’s central social function: the laundering and containment of blame. The article begins by canvassing the conceptual structure of the defence of mental disorder, turning then to the troubling prevalence of mental disorder among those facing criminal judgment, looking specifically at the incidence and effects of FASD, autism spectrum disorder, and anti-social personality disorder. These conditions operate on key elements of our theoretical account of criminal responsibility but are excluded from our defence of mental disorder. Yet giving serious doctrinal regard to facts about mental disorder that ought to be of theoretical concern would destabilize individual responsibility for crime, showing itself as a far more complex social and political matter than we like to admit and raising questions about our collective standing to blame. The article argues that this analysis gives a line of sight into the symbolic and communicative role of the law of mental disorder, and the criminal law more generally – it is a mechanism for the concealment of collective responsibility for complex social problems.

Pfaff on the Growth of Prison Populations

John F. Pfaff (Fordham University - School of Law) has posted The Causes of Growth in Prison Admissions and Populations on SSRN. Here is the abstract:

The explosive growth in the US prison population is well documented, but its causes are poorly understood. In this paper I exploit previously-unused data to define precisely where the growth is occurring. In short, the growth in prison populations has been driven almost entirely by increases in felony filings per arrest. All other possible sites of growth - arrests, admissions per filing, convictions per filings and admissions per conviction, and even (perhaps most surprisingly) time served per admission - have barely changed over the past four decades. But the growth in filings tracks that of admissions almost perfectly. This paper demonstrates the importance of felony filings and considers some of the possible explanations for their growth.

Polsky & Markel Revisit the Taxation of Punitive Damages

Gregg D. Polsky and Dan Markel (pictured)(Florida State University College of Law) have posted Revisiting the Taxation of Punitive Damages (Virginia Law Review In Brief, Vol. 97, 2011) on SSRN. Here is the abstract:

In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s suggested alternative of disallowing those deductions.

To our delight, Professor Larry Zelenak and Paul Mogin have each provided published comments to our piece on Virginia Law Review's In Brief companion website. Professor Zelenak’s thoughtful response focuses on our prescriptive claim that jury tax-awareness is better than nondeductibility, while Mr. Mogin disputes our doctrinal claim that the tax evidence is admissible. In this DRAFT reply, we offer our answers to these and related challenges.

Principe on Threats to the President

Craig Matthew Principe has posted What Were They Thinking: Competing Culpability Standards for Punishing Threats Made to the President on SSRN. Here is the abstract:

This article revisits the Fourth Circuit’s holding in United States v. Patillo, 431 F.2d 293 (4th Cir. 1970) (panel), reh’g granted, 438 F.2d 13 (1971) (en banc). Although that decision is almost forty years old, it still remains a source of contention and confusion in the law of threats. It is widely cited as creating a subjective “present intent” requirement for 18 U.S.C. § 871(a) (threats against the president) - a standard that has only been recognized by the Fourth Circuit and stands in stark contrast to the objective Roy/Ragansky Test adopted by virtually all other circuits. Indeed, judges and commentators have often identified Patillo as a lone wolf opinion and either dismissed or derided the Fourth Circuit’s present intent requirement almost as frequently.

Yet, the issue of the proper culpability standard for threats against the President of the United States under § 871(a) has taken on enhanced importance in recent months. In the aftermath of the shooting of Arizona Representative Gabrielle Giffords, Congress has proposed expanding § 871(a) to encompass in scope all members of Congress and members of Congress-elect. This breathes new life into the theoretical debate over a subjective versus an objective standard, which began almost a century ago when the original bill enacting § 871(a) was first debated on the floor of the House and which has since played out in court opinions and law review articles over the past four decades. Congress’s action also creates an opportunity to resolve this dispute and to adopt a standard that best suits all of the interests of policy and justice invoked by the law.

In this Case Note, the author parses the original holding of United States v. Patillo and reveals a factual dichotomy that is recognized by the Patillo court’s holding, but which has been almost entirely ignored in subsequent cases by other Circuits and the secondary literature on the law of threats. The author concludes that the original holding of Patillo, properly understood, is both the law in the Fourth Circuit and should be adopted as the best intent standard for § 871(a), especially in light of Congress’s proposal to expand its scope. As a matter of policy, the Patillo holding balances the state’s interest in protecting the President from threats, while at the same time affording the most protection for defendants charged with making threats against the President when such threats were not directed towards the President himself, his office, or the Secret Service.

The author shares the results of empirical analysis performed using the Bureau of Justice Statistics’ Federal Criminal Case Processing Statistics database to reveal that such theoretical debates may have been “much ado about nothing,” whereas in practice, outcomes in cases involving subjective versus objective standards for § 871(a) have not resulted in very different outcomes over the past twelve years. In short, the assumptions of both judges and commentators regarding the difficulty of proving or enforcing § 871(a) under a subjective approach seem to have been overstated and are unsupported by the data.

Graham on the Confrontation Clause

Michael H. Graham (University of Miami - School of Law) has posted Confrontation Clause – Crawford/Davis/Melendez-Diaz: 2010 Application Summary – Recent Chaos (Criminal Law Bulletin, Vol 46, p. 1334, 2010) on SSRN. Here is the abstract:

This article explores the state of confrontation clause analysis as it existed following the Melendez-Diaz United States Supreme Court 2009 decision that an forensic analyst’s affidavit that a substance is cocaine is “testimonial” as that term is presented and somewhat defined in Crawford and Davis. A then current “testimonial/nontestimonial application summary is incorporated followed by a contention that future confusion in the continuing saga of confrontation clause doctrine development is assured. This prediction was in fact borne out by the United States Supreme Court decisions in Bryant and Bullcoming, decisions that were penned after this article was published.

Cicchini on the Confrontation Clause

Michael D. Cicchini has posted Dead Again: The Latest Demise of the Confrontation Clause (Fordham Law Review, Vol. 80, 2011) on SSRN. Here is the abstract:

In Crawford v. Washington, the Supreme Court abandoned its Roberts “reliability” approach to the right of confrontation. The Court conceded that Roberts had killed the Confrontation Clause by: (1) impermissibly tying the right of confrontation to the rule against hearsay; (2) inappropriately allowing pretrial determinations of reliability to replace actual cross-examination at trial; (3) relying too heavily on malleable, multi-factor balancing tests; and (4) completely failing to constrain judicial discretion. Since Crawford, however, the Court has decided Davis v. Washington and Michigan v. Bryant. Unfortunately, in the course of those cases the Court has, once again, killed the Confrontation Clause. More specifically, the Court has developed yet another framework that incorporates every single one of Roberts’ flaws, including its failure to constrain judicial discretion. This Essay will expose the underlying reasons for the Court’s failure, will offer a solution to the problem, and will also offer lessons for the Court when deciding future cases that involve the constitutional rights of criminal defendants.

Lave & McCrary on Crime Impact of Sexually Violent Predator Laws

Tamara Rice Lave (pictured) and Justin McCrary (University of Miami, School of Law and University of California, Berkeley) have posted Assessing the Crime Impact of Sexually Violent Predator Laws on SSRN. Here is the abstract:

This paper examines the effect of sexually violent predator laws on rates of forcible rape and proxies for molestation. We find little evidence that these programs have detectable effects on outcomes.

Norwegian Shooter Faces 21-Year Maximum Sentence (Kolber)--UPDATED

According to this article, the suspect in the shootings in Norway that killed 93 people faces a maximum of twenty-one years' incarceration if convicted:

The fact that Norway's maximum penalty for any crime is 21 years in prison is facing rising criticism in the wake of the twin attacks that killed 93 people, with many deeming the penalty too lax.

Ever since Norwegian media named 32-year-old Anders Behring Breivik as the prime suspect, calls have been growing for the maximum penalty under the Norwegian penal code to be extended.

If found guilty, Behring Breivik's 21 years in prison would equal a penalty of 82 days per killing.

UPDATE: The death toll has been revised.  According to more current numbers, seventy-six deaths have been confirmed.

-AJK

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	2730	Less than Picture Perfect: The Legal Relationship between Photographers' Rights and Law Enforcement Morgan Leigh Manning, University of Tennessee, Knoxville, College of Law , Date posted to database: June 10, 2011
2	229	Who’s Better at Defending Criminals? Does Type of Defense Attorney Matter in Terms of Producing Favorable Case Outcomes Thomas H. Cohen, U.S. Bureau of Justice Statistics, Date posted to database: July 1, 2011 [new to top ten]
3	217	Rethinking the Indefinite Detention of Sex Offenders Fredrick E. Vars, University of Alabama - School of Law, Date posted to database: May 24, 2011
4	208	Radical Thought from Marx, Nietzsche, and Freud, Through Foucault, to the Present: Comments on Steven Lukes’ ‘In Defense of False Consciousness’ Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: June 19, 2011 [6th last week]
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7	161	Confined, Crammed, and Inextricable: What The Wire Gets Right David Alan Sklansky, University of California, Berkeley - School of Law, Date posted to database: June 3, 2011 [5th last week]
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9	147	The Collection Gap: Underenforcement of Corporate and White-Collar Fines and Penalties Martin H. Pritikin, Ezra Ross, Whittier College - Whittier Law School, UCLA School of Law, Date posted to database: June 10, 2011 [new to top ten]
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