November 5, 2011
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog:
- Kawashima v. Holder: (1) Whether the Ninth Circuit erred in holding that Petitioner's convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and Petitioners were therefore removable.
- Smith v. Cain: 1) Whether there is a reasonable probability that the outcome of Smith's trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith's Brady and Giglio/Napue claims.
- U.S. v. Jones: (1) Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment; and (2) whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
Argument transcript from habeas case
The transcript from Wednesday's argument in Gonzalez v. Thaler is here.
Argument transcript from eyewitness identification case
The transcript from Wednesday's argument in Perry v. New Hampshire is here.
Delgado on the "Rotten Social Background" Criminal Defense and Accounting for Poverty and Environmental Deprivation
In the following essay, part of a symposium on criminal punishment and social deprivation, Richard Delgado revisits a subject he addressed 25 years ago in a classic article on the "rotten social background" defense. He ponders why this defense has found only a slight foothold in the law of criminal defenses and asks what this failure means about our basic social commitments.
November 4, 2011
Robbins on the Difficulties in Authenticating Evidence from Social Networking Websites
Ira P. Robbins (American University - Washington College of Law) has posted Writings on the Wall: The Need for an Authorship-Centric Approach to the Authentication of Social-Networking Evidence (Minnesota Journal of Law, Science & Technology, Vol. 13, No. 1, 2011) on SSRN. Here is the abstract:
People are stupid when it comes to their online postings. The recent spate of social-networking websites has shown that people place shocking amounts of personal information online. Unlike more traditional modes of communication, the unique nature of these websites allows users to hide behind a veil of anonymity. But while social-networking sites may carry significant social benefits, they also leave users—and their personal information—vulnerable to hacking and other forms of abuse. This vulnerability is playing out in courtrooms across the country and will only increase as social-networking use continues to proliferate.
This Article addresses the evidentiary hurdle of authenticating social-networking evidence, a novel legal issue confronting courts today. The Article explains and critiques four approaches used by different jurisdictions, concluding that each approach fails to adequately address the critical issue of authorship. The anonymous nature of social-networking websites, coupled with the extent of users’ personal information available online, raises serious concerns about the authorship of any piece of evidence posted to one of these sites. Litigants are using social-networking postings in court, attributing authorship to a particular person without demonstrating a sufficient nexus between the posting and the purported author. Absent this nexus, however, the evidence fails to meet even the low hurdle of authentication. To remedy this problem, this Article proposes that courts shift their focus from account ownership and content to authorship of the evidence. Working within the existing rules of evidence, this approach underscores the importance of fairness and accuracy in the outcome of judicial proceedings that involve social-networking evidence.
Creel on Respecting Native American Tribal Court Convictions in U.S. Federal Criminal Sentencing
Barbara Creel (University of New Mexico School of Law) has posted Tribal Court Convictions and the Federal Sentencing Guidelines: Respect for Tribal Courts and Tribal People in Federal Sentencing (University of San Francisco Law Review, Forthcoming) on SSRN. Here is the abstract:
This article critiques a proposal to include tribal court criminal convictions and sentences in the federal sentencing scheme. The proposal, as articulated by Kevin Washburn, calls for an amendment to the Federal Sentencing Guidelines to count tribal court convictions in calculating an Indian defendant’s criminal history score to determine a federal prison sentence. Currently, tribal court convictions are not directly counted in criminal history, but may be used to support an “upward departure” to increase the Native defendant’s overall federal sentence.
Washburn’s proposal seeks to gain “respect” for tribal courts, based upon a premise that tribal convictions must be afforded the same weight and treatment as federal and state criminal convictions under the Federal Sentencing Guidelines. This Article explores the idea of respect for tribal courts and convictions in the context of their history and connection to tribal peoples and communities. Ultimately, this Article concludes that respectful treatment would not tolerate placing a tribal defendant in such a powerless position within the federal sentencing hierarchy.
A proposal that would negatively impact only Native American defendants in a foreign justice system in the name of respect warrants critical review. As an Assistant Federal Public Defender, I had the opportunity to view the application of federal criminal laws from the front and the back end of the criminal justice system, from trial to post-conviction. As a Native woman, I have seen the impact of crime, justice, and federal sentencing on tribal people, families, and whole communities.
It is from this perspective that I focus the lens of respect on the work of tribal courts and criminal justice in Indian Country, and ultimately oppose any amendment in federal sentencing to count tribal court convictions to increase federal sentences for Native criminal defendants. A review of the historical diminishment of tribal authority over crime and punishment on the reservation, as well as the disparate impact of crime and punishment on Native peoples, leads to a rejection of counting tribal court convictions in federal sentencing. This Article proposes an alternative view that both respects Native American individuals caught in the criminal justice system and elevates tribal sovereignty.
November 3, 2011
Corn on Equating U.S. Self Defense Targeting with Willful Blindness
Geoffrey S. Corn (South Texas College of Law) has posted Self Defense Targeting: Conflict Classification or Willful Blindness? on SSRN. Here is the abstract:
Willful blindness is a criminal law evidentiary concept used when knowledge of a particular fact or result is at issue. It allows the finder of fact to impute such knowledge to a criminal defendant when the evidence indicates the defendant willfully avoided learning true facts in the face of obvious indicators. In essence, it transforms a reckless failure to verify critical facts into knowledge of those facts. This doctrine seems to almost perfectly characterize the apparent effort to avoid the jus in bello classification of counter-terror military operations by relying on the overarching jus ad bellum legal justification for these operations. This so called ‘self-defense targeting’ concept, or what Professor Kenneth Anderson calls ‘naked self-defense,’ appears to provide the U.S. legal framework for employing combat power to destroy or disrupt the capabilities of transnational terrorist operatives. This essay will address why reliance on this self-defense targeting concept is in essence an exercise in international legal willful blindness, and why as a result the jus in bello classification of such operations should be imputed by the invocation of jus ad bellum self-defense.
The recent attack on Osama Bin Laden’s compound in Pakistan has exposed in stark relief the importance of defining the legal framework applicable to the use of military force as a counter-terrorism tool. The initial focus of the public debate generated by the attack was the relative legitimacy of the U.S. invocation of the inherent right of self-defense to launch a non-consensual operation within the sovereign territory of Pakistan. However, that focus soon shifted to another critical legal question: even assuming the legitimacy of this invocation, what law regulated the execution of the operation? By virtue of his role as the leader of al Qaeda, was Bin Laden a lawful military objective within the meaning of the law of armed conflict, and thereby subject to attack with deadly force as a measure of first resort? Or was he merely an international criminal, subject to a much more limited law enforcement use of force authority? The duality of the jus belli issues implicated by the attack generated a two prong legal critique: first, did the mission violate the international legal prohibition against use of force (jus ad bellum)? Second, did the mission trigger the law of armed conflict, or was the amount of force employed during the mission resulting in Bin Laden’s death excessive to that which was necessary to apprehend him? The self-defense targeting theory failed to sufficiently address this duality.
Ferzan on the Basis for Moral Liability to Defensive Killing
Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Culpable Aggression: The Basis for Moral Liability to Defensive Killing (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
The use of the term, “self-defense,” covers a wide array of defensive behaviors, and different actions that repel attacks may be permissible for different reasons. One important justificatory feature of some defensive behaviors is that the aggressor has rendered himself liable to defensive force by his own conduct. That is, when a culpable aggressor points a gun at a defender, and says, “I am going to kill you,” the aggressor’s behavior forfeits the aggressor’s right against the defender’s infliction of harm that is intended to repel the aggressor’s attack. Because the right is forfeited, the aggressor cannot fight back, numbers do not count (the defender may kill as many culpable aggressors as he needs to), third parties may only aid the defender, and the defender does not owe the aggressor compensation for harms inflicted.
Although liability for culpable aggression seems intuitive, there are a number of questions, including whether culpability is a necessary requirement for liability; what actions the aggressor must perform; whether there must be an actual threat or whether an apparent threat is sufficient; and whether the defender must believe that his use of force is responsive to that threat.
The first part of this paper examines two prominent alternative theories of self-defense – Judith Thomson’s rights-based account and Jeff McMahan’s moral responsibility account. It argues that both of these theories are problematic as theories of liability and that culpability is a necessary condition of liability. The second part of the paper sketches a culpability account in the context of deadly force and indivisible harm, ultimately arguing that an aggressor is liable to defensive force when; the aggressor forms an intention to purposefully, knowingly, or recklessly kill the defender, the aggressor lacks a justification or excuse, and the aggressor will kill the defender unless defensive force is used, or the aggressor purposefully, knowingly, or recklessly engages in conduct that he is aware may lead the defender to believe that that (1a) is true, and the aggressor lacks a justification or excuse for so doing; AND based on his belief that he is subject to attack, the defender acts to repel the perceived attack.
Covey on the Defense of Temporary Insanity
Russell D. Covey (Georgia State University College of Law) has posted Temporary Insanity: The Strange Life and Times of the Perfect Defense (Boston University Law Review, Vol. 91, 2011) on SSRN. Here is the abstract:
The temporary insanity defense has a prominent place in the mythology of criminal law. Because it seems to permit factually guilty defendants to escape both punishment and institutionalization, some imagine it as the “perfect defense.” In fact, the defense has been invoked in a dizzying variety of contexts and, at times, has proven highly successful. Successful or not, the temporary insanity defense has always been accompanied by a storm of controversy, in part because it is often most successful in cases where the defendant’s basic claim is that honor, revenge, or tragic circumstance – not mental illness in its more prosaic forms – compelled the criminal act. Given that the insanity defense is considered paradigmatic of excuse defenses, it is puzzling that temporary insanity also functions as a sort of justification defense.
This Article seeks to solve that puzzle by canvassing the colorful history and the conceptual function of the defense. Ultimately, it argues that temporary insanity should be viewed as an equitable doctrine that provides relief where the traditional legal rules exclude or are inadequate to the defendant’s particular circumstances. Because the temporary insanity defense permits juries to resolve difficult cases in a manner consistent with the deep purposes of the criminal law, it is misleading to conceptualize that defense as merely a nullification doctrine.
November 2, 2011
Woodhouse on the Constitutional Rights of Parents and Children in Child Protective and Juvenile Delinquency Investigations
Barbara Bennett Woodhouse (Emory University School of Law) has posted Constitutional Rights of Parents and Children in Child Protective and Juvenile Delinquency Investigations (International Society of Family Law: North American Regional Conference, 2011) on SSRN. Here is the abstract:
This report addresses the balance between the authority of the child protective system to investigate allegations of child abuse and the constitutional rights of parents and children to family privacy and autonomy. It also discusses rights of parents and children in the juvenile delinquency context, where the child is a suspected perpetrator of a crime rather than a victim. In the principal case discussed, Camreta v. Greene, the Supreme Court was asked to decide whether, absent exigent circumstances, the 4th Amendment prohibition of unreasonable searches and seizures is violated when a child protective services investigator accompanied by a police officer interviews a suspected child victim at school, without first obtaining a judicial warrant or parental permission. While it remains to be seen whether the Court will reach the merits of the case, the oral arguments and outpouring of friend of the court briefs illustrate the difficulty of balancing values of child protection, public safety and family autonomy. Note: In an opinion issued on March 26, 2011, the Court dismissed the Camreta case as moot leaving the controversial 4th Amendment issues unresolved.
Green on the Possible Impact of Mississippi Measure 26 and Defining the Beginning of a Person
Christopher R. Green (University of Mississippi - School of Law) has posted A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights (Supra: The Mississippi Law Journal Online, Forthcoming) on SSRN. Here is the abstract:
Measure 26, which Mississippi voters will consider on November 8, 2011, would amend the Mississippi Bill of Rights to clarify that "person" and "persons" begin at fertilization. Backers have claimed it would require the state to protect human embryos and fetuses from the moment of fertilization, while opponents have argued that it would impose liability for life-saving medicine, ban forms of birth control, or require criminal investigations of miscarriages. As the state constitution is currently understood by courts, however, these claims lack a straightforward textual explanation. Whatever the goals of backers, the text of Measure 26 is not a frontal assault on Roe v. Wade. It would offer enhanced tort remedies under section 24 of the Mississippi Constitution when embryos and fetuses are injured and would prevent state action harming embryos and fetuses under section 14. More significant effects than these, however, would depend on a state-constitutional duty to protect or ban on discrimination in the supply of protection. While the Mississippi Supreme Court might disagree with DeShaney v. Winnebago County on state-constitutional grounds or read a ban on discrimination in the supply of protection into section 14, Measure 26 itself introduces no duty to protect or such an antidiscrimination requirement into the Mississippi Constitution.
November 1, 2011
Weddle on the Role of Statutes and the Judiciary in Preventing School Bullying
Dan Weddle (University of Missouri at Kansas City - School of Law) has posted You’re on Your Own, Kid... But You Shouldn’t Be (Valparaiso University Law Review Vol. 44, p. 1083, 2010) on SSRN. Here is the abstract:
This article addresses the question: Should courts recognize a duty on the part of schools to implement proven strategies to reduce and prevent bullying? Nothing influences the answer to that question as understanding the nature of bullying in schools. Once understood, bullying seems less a rite of passage or builder of character and more like child abuse perpetuated by peers. The realization that many school children suffer such abuse that inflicts long-lasting and severe damage shifts the analysis from whether the problem is serious enough for courts to engage to how they might most effectively engage it. This article addresses what educational researchers mean by “bullying in schools,” its effects as well as what has long been known about proven strategies to reduce bullying. It then articulates two bases upon which courts might act to impose a duty on school officials to reduce the problem and protect students.
The first theory is based on the second prong of the Tinker standard governing private student speech. The “Right of other students to be secure and to be let alone” is perfectly suited to recognition of a constitutional right of reasonable protection from peer-on-peer abuse in public schools. The second theory is based on a seldom cited comment to §320 of the Restatement of Torts where the duty of school officials to prevent bullying has been recognized for seventy years. The article concludes that both federal constitutional law and state common law require what common sense and professional competence plainly require – that school officials become serious and proactive against bullying in their schools and use proven methods for doing so.
Argument transcript in case involving Bivens actions and private prisons
The transcript in Minneci v. Pollard is here.
Argument transcript in case involving immunity for perjured testimony
The transcript in Rehberg v. Paulk is here.
Kolber on the Necessity of Justifying Unintended Hardships Associated with Criminal Punishment
Theorists overwhelmingly agree that in order for some conduct to constitute punishment, it must be imposed intentionally. Some have argued that a theory of punishment need not address unintentional aspects of punishment, like the bad experiences associated with incarceration, because such side effects are not imposed intentionally and are, therefore, not punishment.
In this essay, I explain why we must measure and justify the unintended hardships associated with punishment. I argue that our intuitions about punishment severity are largely indifferent as to whether a hardship was inflicted purposely or was merely foreseen. Moreover, under what I call the “justification symmetry principle,” the state must be able to justify the imposition of the side effects of punishment because you or I would have to justify the same kind of conduct. Therefore, any justification of punishment that is limited to intentional inflictions cannot justify a punishment practice like incarceration that almost always causes side effect harms.
October 31, 2011
Langer on the Confluence of Common and Civil Law Traditions in the Constitutional Right to Disclosure
Maximo Langer (University of California, Los Angeles - School of Law, pictured) and Kent Roach (University of Toronto - Faculty of Law) have posted Rights in Connection with Criminal Process (Handbook on Constitutional Law, Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., Routledge, 2012) on SSRN. Here is the abstract:
This contribution for an edited volume on comparative constitutional law analyzes the claim that common and civil law jurisdictions are converging in criminal procedure because many civil law jurisdictions have moved toward an adversarial system by adopting more rights. By concentrating on the defendant’s constitutional right to disclosure, this chapter shows that the spread of rights is not a simple movement of convergence, but rather a more complex process that achieves convergence while simultaneously maintaining existing divergences and creating new ones between common and civil law.
The chapter also analyzes law enforcement and national security considerations as another global converging force that has placed limits on constitutional rights to disclosure and once again shows that they have played out somewhat differently in civil and common law. Finally, the chapter moves beyond the common-civil-law focus of traditional comparative criminal procedure scholarship by briefly comparing American, British and Canadian regulation of the right to disclosure. The differences among these regulations cannot be explained in terms of legal traditions, but rather may depend on the contingencies of when these jurisdictions first recognized constitutional rights to disclosure as well as legislative responses to disclosure rights including legislative assertion of competing rights on behalf of victims or other interests. The recognition of rights within the criminal process emerges as complex. Although some broad patterns of convergence are apparent, they are in turn influenced by legal and institutional traditions and by the concerns of the day.
Transcripts in arguments on ineffectiveness and guilty pleas
Opinion in case involving federal review of state jury's assessment of experts
The case, Cavazos v. Smith, is summarily reversed here. The Ninth Circuit had granted habeas for a conviction in which the jury credited the prosecution's expert on cause of death rather than the defense's. In dissent, Justice Ginsburg, joined by Justices Breyer and Sotomayor, characterized the Court's action as "a misuse of discretion.'
October 30, 2011
This week's criminal law/procedure arguments
Summaries are from ScotusBlog, which also links to briefs and opinions below:
- Missouri v. Frye: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
- Lafler v. Cooper: (1) Whether a defendant seeking habeas is entitled to relief based on ineffective assistance of counsel where counsel’s deficient advice caused the defendant to reject a plea bargain in which the defendant had no vested right, and where the rejection did not deny the defendant a fair trial. (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures.
- Rehberg v. Paulk: Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
- Minneci v. Pollard: Whether the Court should imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, against individual employees of private companies that contract with the federal government to provide prison services, when the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.
- Perry v. New Hampshire: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?
- Gonzalez v. Thaler: (1) Was there jurisdiction to issue a certificate of appealability under 28 U. S. C. §2253(c) and to adjudicate petitioner's appeal? (2) Was the application for a writ of habeas corpus out of time under 28 U. S. C. §2244(d)(1) due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review?
Top-Ten Recent SSRN Downloads
University of San Diego School of Law,
Date posted to database: September 8, 2011
|2||358||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||249||The Child Pornography Crusade and its Net Widening Effect
University of South Carolina - School of Law,
Date posted to database: August 24, 2011
|4||237||Tangled Up in Law: The Jurisprudence of Bob Dylan
Michael L. Perlin,
New York Law School,
Date posted to database: September 1, 2011
|5||236||The Invisible Man: How the Sex Offender Registry Results in Social Death
Elizabeth Berenguer Megale,
Barry University School of Law,
Date posted to database: October 4, 2011 [new to top ten]
|6||222||Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism
Georgetown University - Law Center,
Date posted to database: September 9, 2011 [5th last week]
|7||215||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 [6th last week]
|8||195||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 [7th last week]
|9||186||The Evolution of Unconstitutionality in Sex Offender Registration Laws
Catherine L. Carpenter,
Southwestern Law School,
Date posted to database: August 25, 2011 [8th last week]
|10||178||The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
The George Washington University Law School,
Date posted to database: September 8, 2011 [9th last week]