CrimProf Blog

Griffin & Blacker on Sex Offender Community Notification Schemes

Lissa Griffin (Pace University School of Law, pictured) and Kate Blacker have posted Megan’s Law and Sarah’s Law: A Comparative Study of Sex Offender Community Notification Schemes in the United States and the United Kingdom (Criminal Law Bulletin, Vol. 46, p. 987, 2010) on SSRN. Here is the abstract:

This article analyzes the history of sex offender registration and community notification under Megan’s Law in the United States. It examines the United Kingdom’s approach to sex offender registration and community notification via Sarah’s Law. It also explores the distinctly different approaches to community notification in the United States and the United Kingdom. 

Today's criminal law/procedure cert grant

Issue summary from ScotusBlog, which also links to cert papers and opinions below:

• Blueford v. Arkansas: Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Transcripts from last week's criminal law/procedure oral arguments

Summaries are from ScotusBlog:

• Reynolds v. U.S.: Does petitioner have standing under the plain language of the Sex Offender Registration and Notification Act to raise claims regarding the Attorney General's interim rule making the Act retroactively applicable to those who committed their underlying offense prior to its enactment date? Transcript here.
• Maples v. Thomas: Whether the Eleventh Circuit properly held that there was no cause to excuse any procedural default where petitioner was blameless for the default, the state's own conduct contributed to the default, and petitioner's attorneys of record were no longer functioning as his agents at the time of any default. Transcript here.
• Howes v. Fields: Whether this Court's clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances. Transcript here.
• Martinez v. Ryan: Whether a defendant in a state criminal case who is prohibited by state law from raising on direct appeal any claim of ineffective assistance of trial counsel, but who has a state-law right to raise such a claim in a first post-conviction proceeding, has a federal constitutional right to effective assistance of first post-conviction counsel specifically with respect to his ineffective-assistance-of-trial-counsel claim. Transcript here.

Gross on Sorting Criminal Prosecutions by Guilt or Innocence

Samuel R. Gross (University of Michigan Law School) has posted Pretrial Incentives, Post-Conviction Review, and Sorting Criminal Prosecutions by Guilt or Innocence (New York Law School Law Review, Vol. 56, No. 3, 2011) on SSRN. Here is the abstract:

A criminal defendant in the United States faces a stark choice: accept the conviction and punishment the prosecutor offers as a plea bargain, or go to trial and risk much worse. In most cases the defendant has an overwhelming incentive to plead guilty; that’s why very few criminal cases go to trial. Unfortunately that incentive is similar for defendants who are in fact guilty and for those who are not. As a result, some innocent defendants plead guilty. We know it happens – some innocent defendants who plead guilty are later proven innocent and exonerated – but we have no idea how often.

In this article I consider an alternative structure. We could offer defendants a different sort of pretrial option: not to plead guilty in return for reduced punishment, but to waive major procedural rights at trial in return for important procedural advantages on post-conviction review if they are convicted. In theory, this pretrial choice should be sufficiently more attractive to innocent defendants than to guilty ones that it will separate the two groups more effectively than our current practice. Along the way, if this option became regular practice, it might also reduce our reliance on plea bargaining, regain some lost ground for criminal trials, and improve the accuracy of fact finding in criminal cases.

Is this plan is practical? Is there a chance that it might be adopted somewhere? I wonder. I offer it as a thought experiment: an attempt to think through an alternative procedural universe in order to better understand the one we live in – which might lead to something useful.

This week's criminal law/procedure oral arguments

Summaries are from ScotusBlog, which also links to briefs and opinions below:

Tuesday

• Greene v. Fisher: For purposes of adjudicating a state prisoner's petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as clearly established Federal law under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?

Wednesday

• Judulang v. Holder: Whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable and excludable under differently phrased statutory subsections, but who did not depart and reenter the United States between his conviction and the commencement of removal proceedings, is categorically foreclosed from seeking discretionary relief from removal under former Section 212(c) of the Immigration and Nationality Act.
• Florence v. Board of Freeholders: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search whenever an individual is arrested, including for minor offenses.

Primus on the Illusory Right to Counsel

Eve Brensike Primus (University of Michigan Law School) has posted The Illusory Right to Counsel (Ohio North University Law Review, Vol. 37, pp. 595-618, 2011) on SSRN. Here is the abstract:

No symposium designed to address crises in the legal profession would be complete without a discussion of our systematic failure to provide competent legal representation to criminal defendants. In these symposium remarks, I analyze each stage of the criminal process from the trial to direct appeal, through the state post-conviction process, and into federal habeas corpus proceedings and explain how, at each stage, criminal defendants routinely face the threat of incarceration (or continued incarceration) without the aid of competent counsel. In addition to failing to provide effective representation, I demonstrate how the criminal justice system essentially prevents defendants from ever being able to challenge their counsels’ ineffective performance, thus rendering the right to effective counsel a right without a remedy. Finally, I offer some possible suggestions for ways to reform the criminal justice system so as to restore meaning to the fundamental right to counsel.

Uhrig on Counsel in Federal Habeas

Emily Garcia Uhrig (University of the Pacific, McGeorge School of Law) has posted The Sacrifice of Unarmed Prisoners to Gladiators: The Post-AEDPA Access-to-The-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus
(University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

This article argues for a constitutional right to counsel for state inmates in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine. The doctrine guarantees an indigent inmate a constitutional right to meaningful access to the courts in incarceration-related litigation, including postconviction proceedings. The Supreme Court initially articulated the access right, in relevant part, as merely prohibiting states from actively interfering with an indigent inmate’s efforts at pursuing postconviction relief from a criminal judgment. Today, though still fairly inscrutable in dimension, the access right has evolved to require states in certain circumstances to provide affirmative assistance to inmates to ensure constitutionally adequate access to the writ.

In Pennsylvania v. Finley and Murray v. Giarratano, a pair of decisions rendered in 1987 and 1989, respectively, the Supreme Court held that the right of access does not require assistance of counsel in either noncapital or capital state postconviction proceedings, at least insofar as the inmate seeks to raise claims litigated on direct appeal. The primary rationale in Finley and Murray was that habeas litigants have enjoyed assistance of counsel at trial and on direct appeal, and thus should be able simply to parrot that work product in the federal habeas forum to obtain judicial review of any cognizable claims. The Court analogized to an earlier case, Ross v. Moffitt, in which it had held no right to counsel attaches in discretionary appeals. The Court has never addressed the issue whether the access right demands assistance of counsel in federal habeas proceedings. But the lack of such right appeared a foregone conclusion after Finley and Giarratano.

On April 24, 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which introduced a myriad of exceedingly complex procedural requirements -- most significantly, a one-year statute of limitations -- that a petitioner must satisfy in order to obtain merits review of claims set forth in a federal habeas petition. For the prototypical pro se habeas litigant, these requirements, in particular the statute of limitations, erected an impenetrable wall around federal judicial review of merits claims. Indeed, the effect of AEDPA’s enactment has been to stymie many pro se inmates’ efforts at obtaining federal habeas review of state court judgments. Yet, to date, the Supreme Court has not recognized a right to counsel in federal habeas corpus. Federal courts, while struggling mightily to make sense of a poorly drafted statute, continue to abide by a literal fiction in assuming that most inmates are sufficiently competent to navigate post-AEDPA federal habeas practice without assistance of counsel.

This article argues that absent constitutionally guaranteed assistance of counsel in federal habeas corpus and a concomitant remedy where that assistance falls short, AEDPA’s procedural intricacies function to deny the indigent, pro se state inmate the right to meaningful access to the courts in federal habeas proceedings. As such, absent repeal of AEDPA, the access right requires recognition of a right to assistance of counsel in filing a first federal petition. This right would extend only to navigating and comprehending the procedural complexity of federal habeas under AEDPA, rather than to the articulation and framing of substantive claims and subsequent litigation.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	576	Self-Defense Larry Alexander, University of San Diego School of Law, Date posted to database: September 8, 2011
2	333	Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization Lucian E. Dervan, Southern Illinois University School of Law, Date posted to database: August 24, 2011
3	226	Tangled Up in Law: The Jurisprudence of Bob Dylan Michael L. Perlin, New York Law School, Date posted to database: September 1, 2011
4	216	The Child Pornography Crusade and its Net Widening Effect Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: August 24, 2011
5	198	The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death Paul C. Giannelli, Case Western Reserve University School of Law, Date posted to database: August 26, 2011
6	177	Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States Orin S. Kerr, George Washington University - Law School, Date posted to database: August 29, 2011
7	171	Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively Deborah W. Denno, Fordham University School of Law, Date posted to database: August 15, 2011
8	154	The Evolution of Unconstitutionality in Sex Offender Registration Laws Catherine L. Carpenter, Southwestern Law School, Date posted to database: August 25, 2011 (10th last week)
9	149	The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences Jessica Tillipman, The George Washington University Law School, Date posted to database: September 8, 2011 [new to top ten]
10	144	Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism John Mikhail, Georgetown University - Law Center, Date posted to database: September 9, 2011 [new to top ten]