November 19, 2011
Zimring and Johnson on Capital Punishment's Influence on American Criminal Justice
Franklin E. Zimring and David T. Johnson (University of California, Berkeley, pictured and University of Hawaii at Manoa) have posted The Dark at the Top of the Stairs: Four Destructive Influences of Capital Punishment on American Criminal Justice on SSRN. Here is the abstract:
State execution is not a major part of America's system of criminal punishment, but it casts a long shadow over the principles and practices of the rest of criminal justice. This essay discusses four negative impacts of the death penalty on the larger system: (1) The hyper-extension of the substantive criminal law; (2) The symbolic transformation of harsh punishment to a private reward; (3) The creation and overuse of Life Without Possibility of Parole (LWOP) sentences; and (4) The diversion of legal and judicial resources from other pressing problems in the criminal system.
November 18, 2011
Weinstein and McCleary on the Correlation Between Adult Entertainment Businesses and Secondary Criminal Effects
Alan Weinstein (Cleveland State University, Cleveland-Marshall College of Law, pictured) and Richard D. McCleary have posted The Association of Adult Businesses with Secondary Effects: Legal Doctrine, Social Theory, and Empirical Evidence (Cleveland-Marshall Legal Studies Paper No. 11-233) on SSRN. Here is the abstract:
In the decade since the U.S. Supreme Court’s decision in Alameda Books v. City of Los Angeles, 535 U.S. 425 (2002), the adult entertainment industry has attacked the legal rationale local governments rely upon as the justification for their regulation of adult businesses: that such businesses are associated with so-called negative secondary effects. These attacks have taken a variety of forms, including: trying to subject the studies of secondary effects relied upon by local governments to the Daubert standard for admission of scientific evidence in federal litigation; producing studies that purport to show no association between adult businesses and negative secondary effects in a given jurisdiction; and claims that distinct business models and/or specific local conditions are not associated with the secondary effects demonstrated in the studies relied on by many local governments. In this Article, we demonstrate that, contrary to the industry’s claims, methodologically appropriate studies confirm criminological theory’s prediction that adult businesses are associated with heightened incidences of crime regardless of jurisdiction, business model or location and thus, such studies should have legal and policy effects supporting regulation of adult businesses.
Giannini on The Enforceability of Indiana's Victims' Rights Laws
Mary Margaret Giannini (Associate Professor of Law, Florida Coastal School of Law) has posted The Swinging Pendulum of Victims’ Rights: The Enforceability of Indiana’s Victims’ Rights Laws (Indiana Law Review, Vol. 34, No. 3, 2001) on SSRN. Here is the abstract:
This note provides an overview of Indiana's victims' rights amendment and associated legislation. The note highlights how, as is common in many states, it is difficult for victims to enforce their rights due to lack of standing in the criminal process. The note advocates that the state of Indiana provide victims with mandaums relief, as well as with the creation of victims' rights ombudsman.
Bellin on the Confrontation Clause and "Nontestimonial" Hearsay
Jeffrey Bellin (Southern Methodist University - Dedman School of Law) has posted The Incredible Shrinking Confrontation Clause (SMU Dedman School of Law Legal Studies Research Paper No. 84) on SSRN. Here is the abstract:
Sharp turns in the Supreme Court’s recent Confrontation Clause jurisprudence have left scholars reeling from conflicting emotions: exhilaration, despair, denial, and soon, perhaps, cynical acceptance. While most commentators celebrated the demise of the incoherent Ohio v. Roberts framework, their excitement largely faded with the decisions in Davis v. Washington and Bryant v. Michigan – decisions that revealed nascent flaws in the evolving doctrine and sharply curtailed the newly revitalized confrontation right.
Scholars seek to reanimate the doctrine by expanding the definition of “testimonial” – modern Confrontation Clause doctrine’s central term. This Article seeks a similar objective through a less traveled path. It accepts the Court’s focus on, and definition of, “testimonial” statements as a valid, even inevitable, jurisprudential development. The Article seeks instead to expand the reach of the confrontation right to “nontestimonial” hearsay, arguing that constitutional limits – albeit less strict ones – are also warranted for this type of hearsay in light of the policies, text and history of the Confrontation Clause. The Article then details how the Supreme Court can (consistent with the overarching historical, textual and policy arguments noted above) integrate these limits on the admission of nontestimonial hearsay into its new jurisprudence.
November 17, 2011
Marceau on the Need for Federal Habeas Review over State Criminal Process
Justin F. Marceau (University of Denver Sturm College of Law) has posted Challenging the Habeas Process Rather than the Result (Washington and Lee Law Review, Vol. 69, 2012) on SSRN. Here is the abstract:
Habeas scholarship has repeatedly assessed whether the Antiterrorism and Effective Death Penalty Act’s (AEDPA’s) limitations on federal habeas relief were as severe in practice as they appeared to be on paper. By analyzing recent doctrinal shifts — particularly focusing on two decisions from this Term — and substantial new empirical data, this Article acknowledges that AEDPA’s bite has reached substantial proportions, in many ways exceeding the initial concerns and hype surrounding the legislation. More importantly, after acknowledging that federal habeas relief from state court convictions has become “microscopically” rare, this Article considers what the rarity of relief ought to mean as a prescriptive matter for federal oversight of state convictions.
Contrary to the dramatic proposals of scholars who have recently suggested that the general futility of habeas litigation dictates that individual, case-by-case habeas review should be abolished, this Article seeks to regain intellectual and practical traction for the longstanding view that federal courts play an important role in overseeing and enforcing the Constitution. To be sure, the path to success for state prisoners on federal habeas review has become infinitesimally narrow, but the recent scholarly interest in abandoning federal review of state convictions in nearly all circumstances other than capital cases misses the mark. This Article suggests that the paucity of success by habeas petitioners does not naturally or necessarily justify the abandonment of federal oversight, as the scholarly trend suggests. Instead, scholars and courts should recognize the critical role federal courts play in ensuring that the state court process is fundamentally fair. Indeed, if the primary responsibility for substantive review now rests with the state courts, the need for federal oversight of the procedures is heightened. To this end, this Article makes the case for focusing more attention on the need for challenges of process rather than result and discusses novel methods, both under § 1983 and § 2254, for bringing such litigation. By focusing federal review on the adequacy of the state process, the deterrence model of federal oversight retains a position of importance and distinction, and principles of comity, federalism, and fair process are well protected.
Hansen on the Economic Modeling of Criminal Behavior and Recidivism
Traditional economic models of criminal behavior have straightforward predictions: raising the cost of expected cost of crime via apprehension probabilities or punishments decreases crime. Estimating the extent to which increased punishments deter crime is often complicated by omitted variable bias, as the severity of a crime is often a key determinant of the punishment. I overcome this obstacle by taking advantage of discrete thresholds for blood alcohol content (BAC) which determine punishments for driving under the influence (DUI). Regression discontinuity derived estimates suggest that having a BAC above the DUI threshold reduces recidivism by up to 2 percentage points (17 percent). As previous DUI violations increase future penalties for drunk driving, this is consistent with Beckerian models of criminal activity. However, enhanced penalties for aggravated DUI also reduce recidivism by an additional percentage point (9 percent), despite the fact that the enhanced punishments only affect the current penalties. This suggests a form adaptive expectations play a role in criminal behavior, whereby expectations of future punishments are based upon previous punishments experienced.
Starger on Mapping the Doctrinal Lineage of the Exclusionary Rule Under Herring v. United States
Colin P. Starger (University of Baltimore School of Law) has posted Response: Metaphor and Meaning in Trawling for Herring (Columbia Law Review, Vol. 111, pp. 109-120, 2011) on SSRN. Here is the abstract:
In this essay responding to Professor Jennifer Laurin’s essay, Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence, I advance Laurin’s project of recovering the exclusionary rule’s lost lineage through a critical reflection upon her doctrinal metaphors. Specifically, I parse the jurisprudential significance of Laurin’s idea of “trawling” in order to understand Herring v. United States and show how this metaphor successfully builds upon a second water-based metaphor animating Laurin’s analysis — the “hydraulics” of borrowing and convergence. By attending to both Laurin’s specific exclusionary rule arguments and to how Laurin’s conceptualization of “hydraulics” extends Professors Tebbe and Tsai’s constitutional borrowing framework, I maintain that Laurin persuasively demonstrates how constitutional tort doctrine has influenced exclusionary-rule jurisprudence.
However, I further suggest that that Laurin’s account could be usefully sharpened by examining the vital role dissents have played in shaping the competing judicial schools in exclusionary rule doctrine. My own analysis is framed by a series “opinion maps” that visually chart the flow of relevant Supreme Court doctrine. After comprehensively “mapping” Laurin’s account, I present an alternate map of Herring’s origins that emphasizes the place of dissents in competing lines of doctrinal thought.
November 16, 2011
Nash on the Necessity of Specific Advice on Immigration Consequences in Criminal Proceedings under Padilla v. Kentucky
Lindsay C. Nash has posted Considering the Scope of Advisal Duties Under Padilla (33 Cardozo Law Review 101, 2011) on SSRN. Here is the abstract:
In Padilla v. Kentucky, the Supreme Court recognized the complexity and severity of immigration penalties triggered by criminal convictions and held that defense attorneys are obligated to advise clients of such consequences. In so doing, the Court explained that specific advice is required when a consequence is clear; at the same time, it acknowledged it is not always possible to ascertain the consequences of a criminal disposition and, when that is the case, counsel’s duty is more limited. The Court did not, however, elaborate on the circumstances in which the duty might be limited or explain what advice defense counsel owes a non-citizen defendant even under that limited duty. As post-Padilla practice has demonstrated, a more developed understanding of the extent of the duty to advise non-citizen defendants is now essential.
This Article explains how the Padilla opinion provides direction on the scope of a defense attorney’s duty vis-à-vis non-citizen clients and argues that reading the “clear consequence” comment in light of the decision’s roots and rationale offers the necessary guidance. After parsing the Court’s statements, this Article looks at the concrete questions about attorneys' duties that have arisen in lower courts in Padilla’s wake. This inquiry shows that, where Padilla is interpreted narrowly, it seriously undermines non-citizen defendants’ Sixth Amendment rights. This Article then places the “clear consequence” discussion in context by considering the Padilla opinion as a whole and concludes by proposing an analytical approach that accounts for the directives that run throughout the opinion. Ultimately, understanding the basis of the decision and the practical problems that result from a narrow interpretation make clear that defense attorneys must advise non-citizen clients as specifically as research allows in order to adequately inform them about the immigration consequences of contemplated criminal dispositions.
Logan on Ex Post Facto Clause-based Challenges to Registration and Community Notification Laws
This paper surveys Ex Post Facto Clause-based challenges brought against registration and community notification laws and considers whether recent toughening of the laws affords litigants an enhanced basis for success.
Cell Phones at Red Lights
My colleague, Shaun Martin, discusses the recent California Court of Appeals case over at California Appellate Report. An interesting exercise in interpreting the word "driving" and teasing out the implications--e.g., how about pulling off on the shoulder to make the call?
Morrison on Changes in Conspiracy Law
This article sets forth the argument that conspiracy law in the United States may be entering a new stage, thanks to the efforts of government prosecutors in the terrorism context. The new stage is characterized by the criminalization of conspiracies to support an (unpopular) idea.
This new conspiracy paradigm confronts the intertwined relationship between conspiracy law and speech rights. Its foundational argument is that speech rights are limited in the context of a conspiracy trial because speech is used as evidence against a defendant. This is not a bad thing per se. The conflict between conspiracy law’s interests and speech rights is questioned, however, when defendants’ anti-American and pro-“jihad” speech is used when it could indicate support for terrorism, a fundamentalist (but nonviolent) religiosity, or mere protest against the U.S. military’s involvement in the Middle East.
I show that the government’s current targeting of Muslims is a continuation of our historic struggle to secure speech rights in light of criminal charges against other unpopular groups, namely anarchists and communists. I also show how contemporary criminal statutes and the evidentiary rules in conspiracy trials enable the targeting of an unpopular group.
I then offer an approach to solving the problem of abusive conspiracy charges (those charges involving defendants who were not engaged in crime, but were simply exercising their speech rights). This approach rejects the zero sum notion that an increase in speech rights means reduced effectiveness of conspiracy law to secure public safety. Rather, I believe we live in a system of non-zero-sumness, in which we can both maximize speech rights and protect society from truly dangerous conspiracies.
To illustrate my rejection of the zero sum approach, I introduce the concept of “interest brinkmanship.” In the speech-conspiracy context, this means that with every increase in speech rights, application of conspiracy law also increases. The zero sum approach logically would result in vast direct speech protections, but also a universally applied conspiracy law that ultimately restricts speech by proxy. We need to engage a non-zero-sum approach if we are to secure our right to speech and maintain a legitimate conspiracy law system that actually protects society.
November 15, 2011
Herbert on Location Tracking, Technological Change, and the Fourth Amendment
Ian Herbert (New York University) has posted Where Are We Now?: Location Tracking, Technological Change, and the Fourth Amendment (Berkeley Journal of Criminal Law, Vol. 16, Issue 2, 2011) on SSRN. Here is the abstract:
Thirty years ago, the United State Supreme Court decided that law enforcement’s use of a location-tracking device (a “beeper”) in a criminal investigation did not violate the Fourth Amendment’s prohibition against unlawful searches. Since then, the technology has changed drastically. But even more importantly, the field of location tracking has evolved from one that included only one kind of tracking device into one that includes hundreds of different devices. Some of today’s devices are satellite-based, while others use information received by cell phone towers; some are battery powered and others connect to a car’s battery; some transmit their location information directly to the investigators, while others store the data and must be retrieved by the investigator. Through interviews with law enforcement officials and manufacturers and examinations of government contracts, this article seeks to provide a history of the advancements in tracking technology and a close look at the devices currently in use. This article encourages all courts that face this constitutional question—starting with the Supreme Court in United States v. Jones, but continuing even after that case—to look closely at the capabilities of the device at issue.
Levin on The Castle Doctrine Statutes
Benjamin Levin has posted A Defensible Defense?: Reexamining Castle Doctrine Statutes (Harvard Journal on Legislation, Vol. 47, No. 2, p. 523, 2010) on SSRN. Here is the abstract:
Recent years have seen a proliferation of so-called “castle doctrine” statutes – laws that provide home dwellers with more expansive self-defense protections if they resort to lethal force in confrontations with intruders. The passage of such laws and subsequent uses of the defense have captured the public imagination, prompting significant media attention, as well as skeptical and critical scholarship from the legal academic community.
Considering the current prevalence of castle laws and the often polarized nature of the debate concerning their application, this Article argues that it is important to excavate the doctrine from the culture wars rhetoric in which it has been mired. This Article contends that the current discourse has become too firmly rooted in the overly reductive, potentially fallacious dichotomy of American political partisanship. It aims to link the castle doctrine’s moral and philosophical underpinnings to those of more broadly accepted self-defense doctrines, to examine the potentially harmful and unexpected consequences of its elimination, and to challenge its cultural framing in current politically-tinged legislative debates and ideological mappings. By rooting the discussion of these laws in a broader framework of over-criminalization and systemic inequality, the Article ultimately argues that eliminating the castle defense might actually harm as opposed to help socially and politically marginalized groups.
Please note that the copyright in the Harvard Journal on Legislation is held by the President and Fellows of Harvard College.
November 14, 2011
Garrison on The Disproportionate Incarceration of African Americans
Arthur H. Garrison (Kutztown University) has posted Disproportionate Incarceration of African Americans: What History and the First Decade of Twenty-First Century Have Brought (Institute of Justice & International Studies, Vol. 11, p. 87, 2011) on SSRN. Here is the abstract:
The incarceration of African Americans is not a phenomenon that occurred post civil rights era but has been a practical fact of criminal justice administration since data on incarceration have been kept. Before crack cocaine and three strikes; before the rise of the federal sentencing guidelines and get tough on crime movement; before the 100:1 crack to powder cocaine ratio in federal sentencing; before the war on drugs; before the war on poverty and the welfare state; before the increase in African American children born out of wedlock and the rise of single female head of households; before the world wars; and even before the revolutionary war -- African Americans have been disproportionately incarcerated in the United States. The achievement of an African American President and an African American Chairman of the National Republican Party does not overshadow the fact that before and after these two historical events African Americans have been and still are disproportionally represented in America’s prisons. This paper will review the intransigent fact of the disproportionate incarceration of African Americans in prisons, the historical nature of the disproportionate incarceration, and will provide a summary of research / policy solutions to the problem.
Brenner on Remote Computer Searches
Susan W. Brenner (University of Dayton - School of Law) has posted Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force (Mississippi Law Journal, Vol. 81, No. 1, 2011) on SSRN. Here is the abstract:
This article examines the Fourth Amendment implications of two tactics that may become part of law enforcement’s efforts to investigate and otherwise control criminal activity. The first is the use of certain types of software, most notably Trojan horse programs, to conduct surreptitious, remote searches of computers and computer media. The other tactic is the use of “virtual force,” e.g., using Distributed Denial of Service and other attacks to shut down or otherwise disable websites that host offending content and/or activities.
Hessick on Post-Booker Leniency in Child Pornography Sentencing
Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Post-Booker Leniency in Child Pornography Sentencing (Federal Sentencing Reporter, Vol. 24, No. 2, December 2011) on SSRN. Here is the abstract:
As a number of commentators and courts have noted, the Guideline sentences for possession of child pornography are quite harsh. A number of district courts have used their post-Booker discretion to impose below-Guideline sentences on those who possess child pornography.
This short commentary explains how the state of federal sentencing after Booker is particularly hospitable to arguments for sentencing leniency for defendants convicted of possessing child pornography. One argument calls on a district court to use its sentencing policy discretion under Kimbrough v. United States to impose a lower sentence. Another argument rests on a distinct-facts-and-circumstances argument under Gall v. United States. Finally, on an appeal of a within-Guideline sentence, there is an argument that, drawing on the analysis in Rita v. United States, a presumption of reasonableness ought not apply to within-Guideline sentences for those who possess child pornography.
November 13, 2011
Glick on Virtual Checkpoints and Cyber-Terry Stops
Scott J. Glick (U.S. Department of Justice) has posted Virtual Checkpoints and Cyber-Terry Stops: Digital Scans to Protect the Nation’s Critical Infrastructure and Key Resources (Journal of National Security Law and Policy, Vol. 6, No. 1, 2012) on SSRN. Here is the abstract:
The cybersecurity risks to the nation’s critical infrastructure and key resources are significant and increasing every day. While a sound legal basis exists for the government to use computer intrusion detection technology to protect its own networks, critical infrastructure and key resources which are primarily owned by the private sector are governed by a different set of constitutional principles and laws. This Article explores the potential for a new cybersecurity exception to the Fourth Amendment’s warrant and individualized suspicion requirements. By viewing cybersecurity through a protective Fourth Amendment lens, as opposed to a criminal, intelligence, or military lens, fairly well established legal frameworks from the physical world can be applied to cyberspace to enable the government to use technology to identify malicious digital codes that may be attacking the nation’s critical infrastructure and key resources without running afoul of the Fourth Amendment. The Article argues that reasonable and limited digital scans at virtual checkpoints in cyberspace, which are binary and do not initially expose the contents of the communications to human review, are a constitutional and effective way to minimize the cybersecurity risks to the nation. The Article proposes that the Congress consider and enact sensible new legislation that will specifically enable the government to take remedial and other protective actions in cyberspace within the constitutional framework that has enabled this nation to prosper.
McCord on Texas Death Sentences
This article empirically examines the causes of the substantial decline in the number of death sentences imposed in Texas from the peak period of 42 per year in the period 1992-1996 to 14 per year for the period 2005-2009. The author identifies five factors that have produced this decline, and quantifies their effects as either large or modest.