September 3, 2011
Dharmapala, Garoupa & McAdams on Whether Exclusionary Rules Convict the Innocent
Dhammika Dharmapala (pictured), Nuno Garoupa and Richard H. McAdams (University of Illinois College of Law , University of Illinois College of Law and University of Chicago Law School) has posted Do Exclusionary Rules Convict the Innocent? Here is the abstract:
Rules excluding various kinds of evidence from criminal trials play a prominent role in criminal procedure, and have generated considerable controversy. In this paper, we address the general topic of excluding factually relevant evidence, that is, the kind of evidence that would rationally influence the jury’s verdict if it were admitted. We do not offer a comprehensive analysis of these exclusionary rules, but add to the existing literature by identifying a new domain for economic analysis, focusing on how juries respond to the existence of such a rule. We show that the impact of exclusionary rules on the likelihood of conviction is complex and depends on the degree of rationality exhibited by juries and on the motivations of the prosecutor.
"Retrial for Clemens, and More Scolding for the Prosecutors"
The New York Times has this story:
WASHINGTON — A federal judge ruled Friday that Roger Clemens, one of baseball’s greatest pitchers, will face a new trial on charges that he lied to Congress about using performance enhancing-drugs.
. . .
On Friday, Walton said he hated to believe that such experienced prosecutors would have blatantly disregarded one of his rulings, but that “it’s hard for me to reach any other conclusion.”
The current state of the law, though, prevented him from barring the prosecutors from moving forward with a second trial, he said.
September 2, 2011
Colbert on Prosecution Without Representation
Nearly 50 years after the Supreme Court's landmark ruling in Gideon v. Wainwright established indigent defendants' constitutional right to counsel, poor people throughout the country still remain without a lawyer when first appearing before a judicial officer who determines pretrial liberty or bail. Absent counsel, low-income defendants unable to afford bail remain in jail for periods ranging from 3-70 days until assigned counsel appears in-court. Examining Walter Rothgery's wrongful prosecution, the article includes a national survey that informs readers about the limited right to counsel at the initial appearance and the extent of delay in each of the 50 states. The article also analyzes the Justices' response to the wrongfully accused and unrepresented Walter Rothgery, and provides insight into how the Court will likely decide the constitutional claim to counsel when it next faces the issue. It suggests that the amicus community's participation will likely assume an important role in the Supreme Court's ultimate ruling.
Another big victory for consequentialism over archrival retributivism
Apparently unable by threat of misdemeanor prosecution to deter exuberant University of West Virginia students from setting couches ablaze to celebrate football victories, city officials have decided to pursue felony arson prosecutions in the future, according to this A.P. article in the Pittsburgh Post-Gazette. USA Today reports that, in addition, city officials "have ordered the removal of all upholstered furniture, debris and flammable objects from porches in city neighborhoods with high West Virginia University student populations," another big victory for the word "flammable" in its ongoing rivalry with "inflammable."
Chin on Immigration Status and the Criminal Law
Gabriel J. Chin (University of California, Davis - School of Law) has posted Illegal Entry as Crime, Deportation as Punishment: Immigration Status and the Criminal Process (UCLA Law Review, Vol. 58, p. 1417, 2011) on SSRN. Here is the abstract:
In Padilla v. Kentucky, the U.S. Supreme Court held that the Sixth Amendment required counsel to advise clients pleading guilty that conviction might result in deportation. The Court rested its decision on the idea that this information was important to the client’s decision-making process. However, the Court did not explore a stronger reason for developing a more precise understanding of a client’s immigration status: namely, the effect of that status on ordinary criminal prosecutions, such as burglary or assault. This Article proposes that under current law, immigration status can have substantial effects on the criminal prosecution and sentencing of non-citizens for ordinary non-immigration crimes.
This Article examines the position of non-citizens in the United States. For some non-citizens, particularly those without legal status, courts treat unlawful entry or removability as a quasi-crime, negatively affecting the case in ways similar to the effect of a prior criminal conviction. For other non-citizens, particularly but not exclusively those with legal status, the possibility of deportation is treated as a quasi-punishment, which sometimes mitigates other punishments or affects charging decisions if deportation or the overall package of sanctions would be too harsh. This Article proposes that it is consistent both with fairness to all individuals in the United States and with widely accepted principles of criminal justice to consider – carefully – immigration status in the criminal process.
September 1, 2011
Sklansky on Crime, Immigration, and Ad Hoc Instrumentalism
Criminal law and immigration law were once entirely separate fields of governance, but over the last few decades the boundary between the two fields has grown less and less distinct. Immigration crimes now account for a majority of all federal prosecutions; deportation is widely seen as a key tool of crime control; immigration authorities run the nation’s largest prison system; and state and local law enforcement officers work hand in hand with federal immigration officials. This article traces these trends and assesses their significance. The rise of an intertwined regime of “crimmigration” law has generally been attributed to some combination of nativism, overcriminalization, and a cultural obsession with security, but it also exemplifies, and has helped to reinforce, a crucial and underappreciated development in legal culture - a rising tendency to treat legal rules and legal procedures as interchangeable tools, to be brought to bear pragmatically and instrumentally on an ad hoc basis. Ad hoc instrumentalism of this kind has genuine strengths, but it also raises significant concerns about the rule of law and political accountability. The accountability concerns, in particular, are exacerbated by two other features of our newly merged system of immigration enforcement and criminal justice: its bureaucratic opacity and its selective application.
Kanstroom on Padilla v. Kentucky
Daniel Kanstroom (Boston College - Law School) has posted Padilla v. Kentucky and the Evolving Right to Deportation Counsel: Watershed or Work-in-Progress? (New England Law Review, Vol. 45, p. 101, 2011) on SSRN. Here is the abstract:
Though widely heralded by immigration and human rights lawyers as a “landmark,” possible “watershed,” and even “Gideon decision” for immigrants, Padilla v. Kentucky is perhaps better understood as a Rorschach test, than as a clear constitutional precedent. It is surely a very interesting and important U.S. Supreme Court case in the (rapidly converging) fields of immigration and criminal law in which the Court struggles with the functional relationship between ostensibly “civil” deportation proceedings and criminal convictions. This is a gratifying development, for reasons not only of justice, fairness, proportionality, and basic human decency, but also (perhaps) of doctrinal consistency. The Court’s choice to rely upon the Sixth Amendment is understandable and in many respects salutary. However, this choice is also in tension with the civil/criminal distinction, and it raises complex questions about the process that might be due deportees both in criminal courts and immigration proceedings.
Gonzales Rose on Non-English Speaking Jurors in Puerto Rico
Jasmine B. Gonzales Rose (University of Pittsburgh - School of Law) has posted The Exclusion of Non-English-Speaking Jurors: Remedying a Century of Denial of the Sixth Amendment in the Federal Courts of Puerto Rico (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, p. 497, Summer 2011) on SSRN. Here is the abstract:
This Article explores the constitutional implications of the Jury Selection and Service Act’s English language juror prerequisite, as applied in the federal courts in Puerto Rico. The language requirement results in the exclusion of approximately 90% of the age-eligible population of Puerto Rico from federal jury service and disproportionately excludes Puerto Ricans of color and the poor. The Article argues that application of the language requirement in Puerto Rico violates monolingual Spanish speakers’ fundamental Sixth Amendment right to a jury selected from a fair cross section of the community in federal criminal proceedings. It also examines the English language juror prerequisite under the Puerto Rican Federal Relations Act and offers a new test to determine the local applicability of not just this language requirement, but all federal statutes to Puerto Rico. This examination is contextualized in the U.S. Supreme Court’s Insular Cases and extraterritorial application of the Constitution, as well as the intrinsically linked relationship between language, political status, and citizenship in Puerto Rico. Ultimately, the Article advocates for the implementation of a juror language accommodation program modeled after the New Mexico state courts.
August 31, 2011
Guerrero on Excusing Mistakes of Law
Alexander A. Guerrero has posted Deliberation, Responsibility, and Excusing Mistakes of Law (American Philosophical Association Newsletter on Philosophy and Law, 2011) on SSRN. Here is the abstract:
This short paper is a draft of soon-to-be-published comments on Gideon Yaffe’s paper “Excusing Mistakes of Law.” In this paper, I question Yaffe's strategy for defending the distinction drawn between excuses based on mistakes of law and excuses based on mistakes of fact. In particular, I question whether Yaffe's reliance on the notion of deliberation can do the work he suggests it can in providing a normative defense for the fact that "false beliefs about non-legal facts often excuse, but false beliefs about the law rarely excuse."
These comments were originally presented at the 2011 Pacific Division of the American Philosophical Association upon the occasion of Yaffe’s paper being awarded the Berger Prize for being the “best article or chapter in the field of legal philosophy in the past two years.” These comments (along with comments by Mark Greenberg and a response by Gideon Yaffe) will be published in the APA Newsletter on Philosophy and Law.
Questions about the new eyewitness case (Dripps)
The New York Times recently carried a front-page story about the perennial problem of erroneous eyewitness identifications. The focal point for the story was a New Jersey Supreme Court decision, State v. Larry Henderson.
Comments encouraged on this one--does some evidence of actual suggestiveness include the bare fact that the administrator knew the suspect's identity? If not, what's changed?
August 30, 2011
Thompson on Judicial Gatekeeping of Police-Generated Witness Testimony
Sandra Guerra Thompson (University of Houston Law Center) has posted Judicial Gatekeeping of Police-Generated Witness Testimony on SSRN. Here is the abstract:
This article urges a fundamental change in the administration of criminal justice. It calls for an active role for trial courts in determining the admissibility of police-generated lay witness testimony. The article focuses on what I call “police-generated witness testimony,” by which I mean confessions, police informants, and eyewitness identifications. These types of testimony are leading causes of wrongful convictions. The article shows that heavy-handed tactics by the police have a tendency to produce false evidence of these types, especially when the individuals being questioned by police are particularly vulnerable such as juveniles, or those who are intellectually disabled or mentally ill. It also demonstrates that there are procedural best practices that the police can follow to reduce the dangers of false evidence. The most important feature of the article is the proposal that courts take an active role in ensuring the reliability of criminal trials by invoking their gatekeeping responsibilities in screening police-generated evidence by holding pretrial reliability hearings. Current constitutional doctrine fails to exclude patently unreliable police-generated testimony. However, Rule 403 gives the courts broad discretion to exclude evidence on the grounds that its potential to mislead the jury substantially outweighs its probative value. State due process law can also be invoked. Reliability hearings for lay witness testimony already exist for some types of evidence in criminal cases (mostly defense evidence), and they are also clearly required for expert scientific evidence. Moreover, effective gatekeeping is consistent with the objectives of the rules of evidence, not to mention ethical requirements that judges secure the integrity of the trial process.
"Juror attempts to 'friend' defendant on Facebook"
"Gun Inquiry Costs Officials Their Jobs"
From the New York Times:
WASHINGTON — The Obama administration on Tuesday replaced two top Justice Department officials associated with an ill-fated investigation into a gun-trafficking network in Arizona that has been at the center of a political conflagration.
. . .
Run by the bureau’s Phoenix division, the operation, called Operation Fast and Furious, ran from late 2009 to early 2011. Its strategy was to watch suspected “straw” gun buyers, rather than moving as quickly as possible to arrest them and seize the weapons, in the hope of identifying higher-level conspirators — as drug investigations are often conducted.
The operation was internally controversial because the firearms bureau traditionally puts a priority on getting guns off the street. It also lacked adequate controls — one straw purchaser bought more than 600 weapons, and agents lost track of hundreds. Many later turned up at crime scenes in Mexico, and two were recovered at a site in Arizona where a United States Border Patrol agent was killed.
Lerner on Juvenile Criminal Responsibility
Craig S. Lerner (George Mason University School of Law) has posted Juvenile Criminal Responsibility: Can Malice Supply the Want of Years? (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:
Can the young be held accountable for their crimes? At common law, juveniles were entitled to a presumption of incapacity, but were subject to criminal liability on an individualized basis: demonstrated malice supplied the want of years. In Graham v. Florida, the United States Supreme Court rejected this principle, and held that juveniles categorically could not be sentenced to life without parole for crimes other than homicide. Embedded in the Court’s holding, this Article argues, are a simplifying assumption about the relative maturity of juveniles and adults and a moral claim about the culpability of homicides and nonhomicides, and both this assumption and this claim are demonstrably false in a nontrivial number of cases.
This Article focuses on the facts of some of these cases. One cannot assess the culpability of particular defendants unless one considers, without artful euphemisms or convenient elisions, what they did. And what certain crimes reveal is that that there are violent juvenile offenders – fortunately rare – who are as least as mature and culpable as the typical adult violent offender. The Article also considers lower court applications of Graham and finds, for the most part, marked skepticism. The Supreme Court’s general theory of juvenile immaturity has failed to impress judges confronting particular cases. The Court’s central claim about the relative culpability of adult and juvenile offenders originates from a failure to confront inconvenient facts and a belief that human nature is sufficiently captured by the three standard deviations that surround one’s own experience in the world. Lower court judges have access to a wider data set in reaching contrary conclusions.
Ball on Normative Elements of Parole Risk
Parole boards evaluate the public safety risk posed by parole-eligible prisoners to determine whether they should be released. In this Essay, I argue that this process, at least as it operates in California, is fundamentally flawed because it asks the wrong question. Rather than ask whether an inmate poses any public safety risk, parole board officials should instead ask whether this risk is worth taking.
One way to answer this question would be to make our calculations more inclusive of all the costs and benefits of release and comparing them with the costs and benefits of retention. Elementary as this might seem, there is no analysis of costs and benefits in California beyond the requirement that any risk not be “unreasonable.”
But even if we could figure out costs and benefits with a greater degree of precision than is currently possible, quantification of the costs and benefits still does not tell us whether the risk is worth taking. This Essay proposes that our conversations about risk are not merely confined to bloodless, actuarial issues: they need to involve normative issues as well.
I propose, as a means of examining these issues, two contradictory mechanisms for pushing the normative issues to the fore, one systemic, the other individualistic. The systemic mechanism would answer the question by establishing hard numbers for release – such as population or percentage targets. This would push the system as a whole away from individual assessments towards decisions more in line with social costs and benefits. The individual mechanism, on the other hand, would account for the normative elements of parole release, leaving the decision to a body used to fact-intensive inquiries that require moral legitimacy: the jury.
Ultimately, these two proposals highlight the hybrid nature of parole – its mixture of risk and desert. By exploring these two proposals, I hope to deepen the conversation about ways in which the goals and objectives of parole determine the procedures and mechanisms of release.
August 29, 2011
Coverage of New Jersey opinion on eyewitness identifications
The decision by New Jersey’s Supreme Court last week to overhaul the state’s rules for how judges and jurors treat evidence from police lineups could help transform the way officers conduct a central technique of police work, criminal justice experts say.
In its ruling, the court strongly endorsed decades of research demonstrating that traditional eyewitness identification procedures are flawed and can send innocent people to prison. By making it easier for defendants to challenge witness evidence in criminal cases, the court for the first time attached consequences for investigators who fail to take steps to reduce the subtle pressures and influences on witnesses that can result in mistaken identifications.
. . .
Although some states are studying revisions or require single changes in procedure, only two — New Jersey and North Carolina — mandate the two practices that researchers regard as most important: lineups that are blinded, that is, administered by someone who is not familiar with the suspect and who is not one of the primary investigators on the case; and photo arrays that are presented sequentially rather than as a group. Both practices, studies find, decrease the pressure on witnesses to pick someone and guard against influence.
"First Circuit upholds right to record public police action"
Anderson on Viewing Excessive Defense Caseloads as Conflicts of Interest
Heidi Reamer Anderson (Florida Coastal School of Law) has posted Funding Gideon's Promise by Viewing Excessive Caseloads as Conflicts of Interest on SSRN. Here is the abstract:
Some states recently have attempted to legislate around a defendant’s constitutional right to effective assistance of counsel via a novel two-step method. Step one is to allocate insufficient funds for public defense, which results in excessive caseloads for public defenders. Sadly, that step is nothing new. Step two - the one that has slipped by without sufficient notice or criticism - is to bar a public defender from withdrawing from representation based on his excessive caseload. Ultimately, this statutory two-step further entrenches the systematic deprivation of defendants’ Sixth Amendment rights to effective assistance.
In this article, I urge courts to “constitutionalize” the excessive caseload problem via two steps of their own. First, courts explicitly should recognize that excessive caseloads create unethical conflicts of interest for the public defenders laboring under them. Second, courts should equate excessive caseload conflicts with joint representation conflicts. Once viewed as that type of conflict, excessive caseloads then would be evaluated under Sullivan’s “adverse effect” test instead of under Strickland’s more stringent “actual prejudice” test. Under Sullivan, the most egregious excessive caseload conflicts could be deemed unconstitutional. As a result, courts effectively could require states to do what few legislatures are willing to do on their own - finally provide adequate funding for indigent representation consistent with Gideon’s promise.
Buchhandler-Raphael on Prosecutorial Misuse of Terrorism Offenses
Michal Buchhandler-Raphael (Washington and Lee University - School of Law) has posted What's Terrorism Got to Do with it? The Perils of Prosecutorial Misuse of Terrorism Offenses on SSRN. Here is the abstract:
State and federal statutes contain many criminal prohibitions that are commonly perceived as terrorism-related crimes. These statutes, however, do not make the definition of terrorism - a term whose components legislatures do not agree upon – an element of the crime. Instead, the terrorism classification is merely inferred based on features that typically characterize crimes of terrorism. These include the scope of the harm intended or inflicted, the nature of the technical measures used to carry out the attack, or the aid provided to terrorist organizations. These statutes, however, are too broad, covering a wide variety of crimes above and beyond the terrorism context.
The Article suggests that one direct implication of the failure to accurately define terrorism and make it an element of terrorism crimes is that the distinction between terrorism and “ordinary” crime becomes ambiguous. The Article identifies an unexplored problem in the criminal law against terrorism: unlimited prosecutorial discretion enables prosecutors to misuse terrorism-related offenses in cases that are unrelated to terrorism as this term is commonly understood. The Article examines the risks and unintended consequences of this prosecutorial practice, ranging from treating similarly situated defendants differently to potentially opening the door to additional applications of terrorism-related offenses in contexts such as drug trafficking.
To remedy the above problems, the Article proposes legislative reform concerning the elements of terrorism offenses by making specific intent to coerce governments to change their actions and policies the required mental state for conviction.
August 28, 2011
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