October 1, 2011
Alexander & Ferzan on Risk and Inchoate Crimes
Larry Alexander and Kimberly Kessler Ferzan (pictured)(University of San Diego School of Law and Rutgers, The State University of New Jersey - School of Law - Camden) have posted Risk and Inchoate Crimes: Retribution or Prevention? (SEEKING SECURITY: PRE-EMPTYING THE COMMISSION OF CRIMINAL HARMS, Forthcoming) on SSRN. Here is the abstract:
In this book chapter we give a definition of inchoate crimes and argue that inchoate crimes, so defined, are not culpable and do not deserve punishment. Our argument against the culpability of inchoate crimes is based on several points: the ability of the actor who intends a future act that might be culpable if performed to change his mind prior to the act’s performance; the conditionality of all future-oriented intentions; uncertainty regarding the culpability-enhancing or culpability-mitigating circumstances that will exist at the future time of performance; and the roles of vacillation and duration in assessing culpability. We argue that punishment for inchoate crimes should be regarded as preventive rather than retributive.
September 30, 2011
"American Strike on American Target Revives Contentious Constitutional Issue"
From the New York Times:
WASHINGTON — The reported killing of Anwar al-Awlaki on Friday, an American citizen hit by a missile fired from a drone operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law.
. . .
Some civil libertarians questioned how the government could take an American citizen’s life based on murky intelligence and without an investigation or trial, claiming that hunting and killing him would amount to summary execution without the due process of law guaranteed by the Constitution.
. . .
Robert M. Chesney, a law professor at the University of Texas who specializes in national security law, said he believed the killing was legal. But he said it was “plenty controversial” among legal specialists, with experts on the left and on the libertarian right who are deeply opposed to targeted killings of Americans.
The administration’s legal argument in the case of Mr. Awlaki, Mr. Chesney said, appears to have three elements: First, Mr. Awlaki posed an imminent threat to the lives of Americans; second, he was fighting with the enemy in the armed conflict; and third, there was no feasible way to arrest him.
But critics note that the Fifth Amendment to the Constitution states that no American shall be “deprived of life, liberty, or property, without due process of law.” In ordinary circumstances, that requires a trial and conviction before government officials can order the execution of an American.
Wagner on Bailouts and the Distortion of Federal Criminal Law
Robert E. Wagner (Rutgers School of Law-Newark) has posted Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:
This article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase’s work can apply in the context of the criminal law and specifically economic crimes. The argument in this article then demonstrates how the government’s purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may under-invest in private precautionary measures while others will be forced to over-invest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to optimally address economic crimes and shown that TARP leads to inefficient outcomes under that type of analysis, this article concludes with recommendations to avoid these problems in the future.
Broughton on Congressional Inquiry and the Federal Criminal Law
J. Richard Broughton (University of Detroit Mercy School of Law) has posted Congressional Inquiry and the Federal Criminal Law (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:
Federal criminal law has become so far-reaching that scholars and commentators on both the political left and political right have joined forces to demand serious reforms related to defining, prosecuting, and punishing federal crimes. This Article makes the case for greater attention to, and use of, congressional inquiry powers - investigation and oversight - to constrain the massive federal criminal law regime. This Article first identifies, through existing law and scholarship, some of the problems of the federal regime, including over-federalization, anemic limits on prosecutorial power, and the ordinary politics that contribute to these problems. Using the 2009 and 2010 House hearings on over-criminalization as a case study, this Article argues that both political and constitutional incentives exist for Congress to use its powers of inquiry more robustly to address these problems. Although there is force in the conventional wisdom about the political disincentives for reform and in the contention that investigation and oversight are weak constraints, this Article argues that the conventional wisdom is overstated and that constitutional government demands both a serious effort at criminal law reform and healthy conflict with the executive (which would be an inevitable consequence of the reform effort). By enabling sober and informed discourse about constitutional limits in defining the criminal law, and by asserting congressional prerogatives to hold executive branch actors accountable for their own role in perpetuating the federal criminal law behemoth, robust congressional inquiry of the federal criminal justice regime can help to restore at least some of Congress’s constitutional consciousness.
September 29, 2011
Greabe on Herring Good Faith and Harlow Qualified Immunity
John Greabe (University of New Hampshire School of Law) has posted Objecting at the Altar: Why the Herring Good Faith Principle and the Harlow Qualified Immunity Doctrine Should Not Be Married (Columbia Law Review Sidebar, Vol. 11, 2011) on SSRN. Here is the abstract:
Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an admittedly unorthodox depiction of qualified immunity that overstates the doctrine’s protective scope. Ironically, one effect of this overstatement could be to enable a doctrinal distortion of precisely the type Laurin cautions against. For by positing a substantive equivalence between Harlow rule and the significantly more protective Herring principle, Laurin invites judges to borrow from Herring to further restrict the availability of constitutional tort remedies. Part I of this response highlights some potential problems posed by Laurin’s heterodox characterization of the qualified immunity doctrine. Part II defends the conventional description of the doctrine as more accurate and normatively desirable. Part III shifts gears and amplifies Laurin’s warnings about the trans-substantive application of constitutional tort doctrine.
Boyne on Formalism and Uniformity in the German Penal Code
Shawn Marie Boyne (Indiana University School of Law-Indianapolis) has posted The Cultural Limits of Formalism and Uniformity in the German Penal Code on SSRN. Here is the abstract:
Despite the fact that certainty and predictability in the law are essential building blocks of the German legal system, the goal of uniformity in the law has not precluded the development of divergent local legal practices. For example, while prosecutors throughout Germany use the same criminal law and procedure playbooks, there are wide discrepancies in how prosecutors and judges apply the law in the search for truth. In fact, despite the fact that the system’s compass is directed to administer justice uniformly across the state, in the search for truth, place matters. At each truth finding stage, from the initial investigation of a reported crime to a case’s final adjudication, unique combinations of political and cultural factors shape the system’s outcomes. In some cases, variations in local legal practice reflect different customary attitudes towards crime embedded in the traditions of local communities. The confluence of incentives and leadership practices specific to particular organizational entities also shape the implementation of the law on the front lines.
These differences in local legal practices have produced large variations in case dismissal rates and sentencing practices throughout Germany. While one would expect to see variations in sentencing norms in a country like the United States, where each state has drafted its own codes of criminal law and procedure, it is surprising to observe this variation in practice in a state with a common code. Although evidence of a variance in decision-making practices would be unsurprising to legal realists, these variations in outcomes call into question the ability of the law on the books standing alone to achieve the system’s normative goals of restricting prosecutorial discretion and guaranteeing citizens that they will be treated equally before the law
The reason for this discrepancy between the system’s normative aspirations and actual practice is easy to identify. Although prosecutors and judges throughout Germany use the same playbook to investigate, prosecute, and sanction criminal activity, it is the individual Länder that bear the responsibility for administering justice. Cross-cutting prerogatives at the Land, region, and local levels affect how prosecutors interpret and apply the law within the zones of discretion permitted by the law. Thus, the flexibility inherent within the formal structure of the law permits informal norms and local prerogatives to define the face of justice on the front lines. The face of justice is constituted by local legal cultures.
This article’s central premise is that outcomes in the German criminal justice system are the product of a series of relational processes in which individual subjectivity, office practices, and informal group norms shape how facts are analyzed and the law is interpreted. Rather than operating in an autonomous and uniform manner, the Federal Codes of Criminal law and Procedure play a constructive role in identifying the range of behaviors that the system defines as worthy of criminal sanction as well as the procedural rules of the game. The rules function as a mere starting point that prosecutors on the front lines of justice will interpret, reshape, and apply to particular sets of facts while they comply with institutional norms and expectations.
To understand these differences in system outcomes, we must understand the role that culture and place play in the etiology of criminal justice. More specifically, we must understand how local attitudes, organizational constraints, and prosecutors’ experiences mirror local cultural norms that impact the interpretation and implementation of the law. By situating prosecutorial decision-making in local organizational environments, in this article I show how dynamic institutional processes and practices produce and reproduce the decision-making norms that drive regional variances in practice.
Shniderman on Polygraph Evidence
Adam B. Shniderman has posted You Can’t Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence (Albany Law Journal of Science and Technology, Forthcoming) on SSRN. Here is the abstract:
Since the decision in Frye v. United States, polygraph results have been deemed inadmissible as evidence in many state and federal courts across the United States. Exclusion has been justified based on purported scientific weaknesses of the test, or the assertion that to allow polygraph evidence would usurp the jury’s role as the arbiter of credibility, wreaking havoc on the American judicial system. This paper suggests that the extensive body of literature on polygraph evidence fails to understand the actual reason polygraph evidence has been an evidentiary pariah. First, this article systematically demonstrates that the justifications for excluding polygraph evidence at trial are equally applicable to nearly every other forensic science except DNA analysis. Second, this paper asks the novel question, “Why is polygraph evidence held to such a different standard?” This article suggests that the only significant difference between many routinely admitted forensic techniques and polygraph evidence is the party most frequently offering the evidence. This article then considers several possible explanations for why this fact matters in judges’ decisions. Finally, this article concludes that because science and law have little to do with the exclusion of polygraph the trend is likely to continue regardless of technological advances.
Starkey on Behavioral Regulation of Blacks on the Right Side of the Criminal Justice System
Brando Simeo Starkey (Villanova University - School of Law) has posted You’re an Uncle Tom!: The Behavioral Regulation of Blacks on the Right Side of the Criminal Justice System on SSRN. Here is the abstract:
This Article concerns the laws created to govern the behavior of blacks carrying influence within the criminal justice system. Two periods are discussed. In the 1960s to the early 1970s, blacks devised social laws targeting the black cop. Blacks held an image of the white cop as an agent of brutality, racism and injustice. Black cops deemed no different violated the social law that demanded blacks neither abuse their fellow race members nor disregard oppressive conditions in the criminal justice system. Uncle Tom accusations were the common penalty. In the ‘80s and the ‘90s, new social laws were constructed to govern the new influx of blacks who occupied positions of increased and varied authority from within the justice system. The same law that governed the behavior of the black cop remained on the books and was applied to lawyers, judges and the like. Two new laws, though, emerged. First, there was often an expectation that the “black insider,” so to speak, should use their status to generate positive outcomes for other blacks. And second, we observe blacks involved in a specific altercation define the boundaries of blackness and make adherence to those boundaries a condition of racial loyalty. Those contravening these social laws were considered disloyal and frequently branded as Uncle Toms.
In this Article, I argue that in response to legal and social subordination, blacks, at least those interested in the task, created a system of law to regulate behavior. The venture’s purpose was to encourage the racial solidarity crucial to contest legal subordination and societal ostracism. Especially critical components of these cultural laws were those laws drafted to govern the actions of blacks working or possessing influence from within the criminal justice system. This Article follows Uncle Tom in effort to trace the development, maintenance and enforcement of these social laws.
September 28, 2011
McAllister on Evading Confrontation
Marc Chase McAllister has posted Evading Confrontation: From One Amorphous Standard to Another (Seattle University Law Review, Vol. 35, 2011) on SSRN. Here is the abstract:
In 2004, Crawford v. Washington established a new framework to govern admission of hearsay statements under the Sixth Amendment’s Confrontation Clause. Prior to Crawford, the Roberts rule allowed such statements to be admitted upon a mere showing of “reliability.” Under Roberts, courts frequently attached different meanings to the same reliability factor (as in Crawford itself), and often reached opposite outcomes on nearly identical facts.
In overruling Roberts, Crawford’s stated goals were to curtail judicial discretion and prevent testimonial evidence from reaching the factfinder without the benefit of adversarial testing. Just seven years later, the Crawford framework has revived those very deficiencies, and the Court’s most recent ruling in this area, Michigan v. Bryant, has significantly magnified the problem. Reminiscent of Roberts, Bryant notes more than ten factors courts should use to distinguish “testimonial” from “non-testimonial” statements. Bryant further instructs courts to consider “all relevant information” and to decide each case “in context,” a classic totality-of-circumstances approach bearing striking similarities to the discredited Roberts framework.
Bryant was decided on February 28, 2011. This article examines the lower court cases that have been issued in the six months post-Bryant. As this article’s analysis reveals, Bryant’s factors test has revived the malleability of the discredited Roberts standard, and has provided easy means to evade the Sixth Amendment’s protections. For example, several post-Bryant cases have drawn opposite inferences from the same Bryant factor, the declarant’s dire medical condition. In addition, one post-Bryant case, Clay, distinguished Bryant based upon the precise wording of the questions asked, yet the two factual scenarios were virtually identical in all other respects.
A test that hinges upon the hidden and empirically unknowable primary purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” Replacing a totality-of-circumstances test with a totality-of-circumstances test has done nothing to correct the defects of the Roberts regime. To restore the promise of Crawford, this article proposes a bright-line test to supersede Bryant’s totality-of-circumstances test, one more consistent with Crawford’s original aims.
Correll on Compelled DWI Blood Draws
Michael A. Correll has posted Is There a Doctor in the (Station) House?: Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years after Schmerber (West Virginia Law Review, Vol. 113, p. 381, 2011) on SSRN. Here is the abstract:
The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and intangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implications of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside - the preservation of bodily integrity. As technology has rendered the human body an ever-increasing source of crucial evidence, the Supreme Court has remained largely silent on the government’s power to harvest information through medical procedures. Since the Court’s consideration of the constitutionality of compelled blood draws in Schmerber v. California, 384 U.S. 757 (1966), the Fourth Amendment questions attendant to bodily evidence have been largely left to the states. This Article examines a narrow subset of that state-level development: non-consensual DWI blood draws. A review of the state statutory and jurisprudential applications of Schmerber reveals increasing disagreement over the scope of the Fourth Amendment when police seek to recover fleeting evidence of blood alcohol content. Based on this review, this Article suggests a number of policy proposals designed to better insure police stay within the Fourth Amendment strictures of Schmerber while also procuring the most effective evidence possible.
September 27, 2011
Leson on Protecting Informants
Ian Leson has posted Toward Efficiency and Equity in Law Enforcement: 'Rachel’s Law' and the Protection of Drug Informants (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:
Following the murder of Rachel Morningstar Hoffman, a 23-year-old college graduate, Florida passed “Rachel’s Law,” which established new guidelines for the police when dealing with confidential informants. Immediately prior to its enactment, Rachel’s law was stripped of key provisions. These provisions required the police to provide the potential informant with an attorney before she agrees to any deal, and put limitations on the ability of the police to employ as informants people in drug rehabilitation programs. Opponents of these provisions argue that they will hamstring law enforcement agencies in their efforts to prosecute drug crimes. This note suggests that the attorney provision be restored to Rachel’s Law, and encourages other states to enact similar statutes. Rather that serving as an obstacle to effective law enforcement, this note argues that the attorney provision in the original version of Rachel’s Law enables more efficient prosecution of crimes, while also protecting those minor drug offenders who may be unsuited to potentially dangerous undercover informant work.
Giannelli on Comparative Bullet Lead Analysis
Paul C. Giannelli (Case Western Reserve University - School of Law) has posted Comparative Bullet Lead Analysis: A Retrospective (Criminal Law Bulletin, Vol. 47, p. 306, 2010) on SSRN. Here is the abstract:
For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was challenged provides an invaluable insight into how forensic science sometimes works.
Alexander on Self-Defense
Larry Alexander (University of San Diego School of Law) has posted Self-Defense (THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed., Routledge Philosophy Companions, Forthcoming) on SSRN. Here is the abstract:
In this encyclopedia entry, I set forth all of the factors that a complete theory of self-defense must consider. On some of those factors, I have and express an opinion. On others, I leave matters unresolved. What is most significant, however, is that self-defense is preemptive: it occurs before the anticipated act to which it is a response. Yet, almost none of the extant voluminous literature on self-defense addresses the epistemological standards that should govern preemptive responses, standards regarding the probability of the anticipated act and its consequences and whether the actor is culpable or nonculpable.
September 26, 2011
Fabricant on Criminal Defense Clinics
On a late November night in the vestibule of a South Bronx high-rise, Dwayne was confronted by three police officers. Police told Dwayne he fit the description of a shooting suspect who had fled into the building – a young African-American male with braids. Dwayne told the officers he had been upstairs in apartment 12C watching the Manny Pacquiao fight with some friends, but he was handcuffed and taken outside for an identification procedure. The identification procedure never happened. Instead, he was loaded into a police van, where he sat for the next four hours while police arrested several other young men of color as they exited buildings from nearby housing projects, filling the van before transporting all the young men to the 44th Precinct for booking. It was not until the next day when a student attorney sat across from Dwayne in a dank holding cell that he learned that he had been charged with criminal trespass.
Five months later, Dwayne sat at the defense table as his student attorney approached the lectern to begin her cross-examination of the arresting officer. On direct-examination, the officer claimed that he had arrested Dwayne for trespassing because he was unable to provide the names of the friends he had been visiting and did not know their apartment number. No, the officer admitted on cross-examination, police never conducted an identification procedure; as far as he knew, the shooting suspect was still at large. Yes, he was aware that Dwayne had lived his entire life across the street from the high-rise. Yes, he agreed, if he had been visiting a friend in that building he would not be guilty of trespassing. Confronted with his partner’s memo book, the officer conceded that it read, “perp claimed visiting ‘friend’.”
Dwayne’s acquittal marked the end of our direct representation, but it was the beginning of a collaboration between students from the Pace Criminal Justice Clinic and a citywide advocacy coalition the Clinic helped organize to end the pattern of wrongful trespass arrests. Dwayne was one of twenty clients students represented on criminal trespass charges. Fourteen of these cases were ultimately dismissed. Like Dwayne, many of our clients became engaged in collective action against the over-policing of their neighborhoods. Our handful of clients, however, represent only a tiny fraction of the thousands of poor people of color swept up on low-level misdemeanors every year in aggressive “broken windows” or “zero-tolerance” policing (ZTP) campaigns since the New York Police Department (NYPD) adopted the strategy in the mid-Nineties.
This article calls for criminal defense clinics practicing in high-volume urban courthouses to respond to systemic civil rights violations caused by aggressive prosecution of zero tolerance strategies. Our clinic’s experience with strategic representation of trespass clients is offered as one strategy for leveraging a misdemeanor docket for broader social justice goals. The ethical implications, pedagogical rewards, and challenges presented by this approach are examined here through the lens of our student attorneys’ litigation of individual cases and their collaborative lawyering with community and institutional partners.
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September 25, 2011
Berry on Separating Retribution from Proportionality
William W. Berry III (University of Mississippi School of Law) has posted Separating Retribution from Proportionality: A Response to Stinneford (Virginia Law Review In Brief, Vol. 97, No. 61, 2011) on SSRN. Here is the abstract:
Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.
In this brief Response, I raise two possible objections to Stinneford’s analysis. First, Stinneford insists that proportionality must be solely a retributive concept for Eighth Amendment purposes, both as a matter of original interpretation and sound application. While retribution is certainly part of the “proportionality” analysis, I believe that utilitarian justifications of punishment are also relevant to the concept of proportionality. As explained below, this is true both as a matter of original interpretation and perhaps more importantly as a reasonable basis for the Court’s current application of the Eighth Amendment.
Second, I question whether, if one adopts Stinneford’s model of Eighth Amendment retributive proportionality, application of the Eighth Amendment would achieve the purposes he advocates. Spe-cifically, I am not persuaded that limiting the application of the Eighth Amendment to the question of retributive proportionality would improve the much-criticized application of the Eighth Amendment in capital cases. Further, I am not convinced that the retributive model of proportionality Stinneford advocates would effectively bridge the gap between the two-tiered application of the Eighth Amendment in capital and non-capital cases.