CrimProf Blog

Clapman on Counsel for Noncitizen Defendants in Petty Offense Cases

Alice J. Clapman (University of Baltimore School of Law) has posted Petty Offenses, Drastic Consequences: Toward a Sixth Amendment Right to Counsel for Noncitizen Defendants Facing Deportation (Cardozo Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article considers whether Padilla v. Kentucky might have implications beyond the question of what constitutes effective assistance of counsel, and specifically, whether Padilla might provide a basis for challenging current limitations on the right to appointed counsel per se. Part I describes the particular problem of unrepresented defendants facing charges that would make them deportable, both in terms of the recent expansion of criminal deportation and in terms of state limitations on the appointment of counsel. Part II sets out the judicial limitations on the Sixth Amendment right to counsel and critically explores how these limitations developed. Part III argues that the logic of Padilla supports a reexamination of the now-classical rule that defendants who do not face incarceration have no right to counsel. Finally, Part IV identifies and discusses some of the practical consequences of this argument.

Dempsey on Arguing About Prostitution

Michelle Madden Dempsey (Villanova University School of Law) has posted How to Argue About Prostitution (Criminal Law & Philosophy, 2011) on SSRN. Here is the abstract: 

This article provides a comparative analysis of various methodologies employed in building arguments regarding prostitution law and policy, and reflects on the proper aims of legal philosophy more generally. Taking Peter de Marneffe’s Liberalism and Prostitution (OUP 2010) as a launching point for these reflections, the article offers a mostly favourable review of the book as a whole, and defends the philosophical enterprise as one (amongst other) valuable ways to argue about prostitution.

Primus on Federal Habeas Law

Eve Brensike Primus (University of Michigan Law School) has posted A Crisis in Federal Habeas Law (Michigan Law Review, Vol. 110, April 2012) on SSRN. Here is the abstract:

Everyone recognizes that federal habeas doctrine is a mess. Broad change is necessary, but to be effective, such change must be animated by an overarching theory that explains when federal courts should exercise habeas jurisdiction. In their recent book, "Habeas for the Twenty-First Century: Uses, Abuses, and the Future of the Great Writ," Professors Nancy King and Joseph Hoffmann offer such a theory. Drawing on history, current practice, and empirical data, Professors King and Hoffmann find unifying themes that not only explain our past use of the Great Writ but also give guidance regarding how we should interpret the writ going forward.

Habeas for the Twenty-First Century is nuanced while still being thorough, and it explains fairly technical material in an engaging and interesting way. Its breadth, however, is also the source of one of its problems. Professors King and Hoffmann want both to identify the overarching themes that can explain habeas in all of its diverse forms and to make concrete proposals for reform that have a reasonable chance of being adopted. These two goals, however, are often in tension. What is politically feasible is not always consistent with their interpretive approach. Rather than admit this tension and explain why they choose one goal over the other, Professors King and Hoffmann sometimes stretch their definition of what constitutes a crisis worthy of habeas intervention in an attempt to make it fit their reform proposals.

This is particularly true in the context of their approach to federal review of state criminal convictions. In that context, King and Hoffmann use history to argue that habeas’s primary role is to intervene whenever a federalism crisis places the balance of power between the federal and state governments in jeopardy. Such a federalism crisis exists, they say, only when a state rejects federal law because it is federal. Nonetheless, King and Hoffmann’s own proposal for reform contains provisions that would allow state prisoners to file habeas claims, such as claims alleging actual innocence, even when there is no evidence that the states are hostile to these claims because of their federal nature. So if King and Hoffmann’s proposals for reform are sound, their statement of the circumstances in which federal habeas review is appropriate is too restrictive.

In this Review, I will argue that King and Hoffmann should expand their concept of what constitutes a crisis worthy of federal habeas intervention to include situations in which a state systematically violates criminal defendants’ federal rights or systematically fails to provide defendants with adequate opportunities to vindicate those rights. A state’s entitlement to autonomy and respect is at its nadir when the state routinely flouts federal law, whereas the federal interest in using habeas review to catalyze structural reform in such a case is at its zenith.

Next week's criminal law/procedure arguments

Issue summaries from ScotusBlog, which also links to papers:

Monday

• Messerschmidt v. Millender: (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified?

Tuesday

• Martel v. Clair: Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.
• Williams v. Illinois: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.

 

Kinports on Camreta and Al-Kidd: The Supreme Court, the Fourth Amendment, and Witnesses

Kit Kinports (The Pennsylvania State University) has posted Camreta and Al-Kidd: The Supreme Court, the Fourth Amendment, and Witnesses (Journal of Criminal Law and Criminology, Forthcoming) on SSRN.  Here is the abstract: 

Although few noticed the link between them, two Supreme Court cases decided in the same week last Term, Ashcroft v. al-Kidd and Camreta v. Greene, both involved the Fourth Amendment implications of detaining witnesses to a crime. Al-Kidd, an American citizen, was arrested under the federal material witness statute in connection with an investigation into terrorist activities, and Greene, a nine-year-old suspected victim of child abuse, was seized and interrogated at school by two state officials. The opinions issued in the two cases did little to resolve the constitutional issues that arise in witness detention cases, and in fact muddied the waters by suggesting that the motivations underlying the decision to seize a witness are constitutionally irrelevant. In fact, however, the Fourth Amendment doctrine that governs these cases is the special needs exception, which under Supreme Court precedent does trigger an inquiry into subjective motive. As a result, the Fourth Amendment was violated if al-Kidd was pretextually detained because the FBI wanted an opportunity to investigate him, but lacked the probable cause to arrest him, or if the primary purpose for seizing Greene was to generate evidence in connection with the criminal charges pending against her father.

Taslitz on the Reciprocal Responsibility of Corporations to Accept Criminal Liability under Citizens United v. Federal Election Commission

Andrew E. Taslitz (Howard University - School of Law) has posted Reciprocity and the Criminal Responsibility of Corporations (Stetson Law Review, Vol. 41, 2011) on SSRN. Here is the abstract:

In Citizens United, the United States Supreme Court held that, at least for many purposes, corporations are people too. This brief essay argues that principles of reciprocity, rooted in moral theory and social science, require, in exchange for the benefits the Court has granted, corporations to accept the burdens of criminal responsibility.

Transcript from argument on coordination of state and federal sentences

The transcript in Setser v. United States is here.

"Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity"

From Orin Kerr at The Volokh Conspiracy. Bottom line:

I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don’t think the Court should depart from the well-established qualified immunity standard in this case.

 

Godsey and Alou on the "Reverse CSI-Effect" on Jurors Who May Incorrectly Choose Conviction in Criminal Trials

Mark Godsey (University of Cincinnati College of Law, pictured) and Marie Alou have posted She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' (Texas Weleyan Law Review, Vol. 17, No. 4, 2011) on SSRN. Here is the abstract:

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

"Jackson’s Doctor Is Sentenced to Four Years"

From the New York Times:

LOS ANGELES — Dr. Conrad Murray, the physician convicted of involuntary manslaughter in the 2009 death of Michael Jackson, was sentenced to four years, the maximum he was facing, though how many days he will actually spend behind bars remains unclear. The sentencing comes three weeks after a jury found Dr. Murray guilty.

. . .

Steve Whitmore, a spokesman for Sheriff Leroy D. Baca of Los Angeles County, said that same law required that the sentence be reduced by half for good behavior. Dr. Murray will also receive credit for the several weeks he has already spent in jail. Mr. Whitmore said Sheriff Baca would require that Mr. Murray serve the full time remaining. But the impact of the new state laws is still unclear.

Rabinowitz on the Incongruity Between Sentencing in Criminal Intellectual Property Cases and the United States Sentencing Guidelines

Aaron B. Rabinowitz has posted Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications on SSRN. Here is the abstract:

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can. Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.

The empirical analysis reveals, inter alia, that sentences imposed on intellectual property offenders deviate from the advisory Guidelines in two out of every three cases; prosecutors seek and judges reduce sentences for intellectual property crimes more frequently than for other comparable crimes; and judge-initiated deviations occur after Booker about twice as frequently for intellectual property offenders than for other offenders, whereas such judge-initiated deviations before Booker occurred less frequently than for crimes in general or for other economic crimes. These findings suggest that prosecutors’ and judges’ views of intellectual property crimes do not align with the sentences prescribed by the Guidelines for intellectual property crimes, and this article accordingly proposes solutions for harmonizing the advisory Guidelines sentences for intellectual property offenders with the sentences that are actually being imposed based on prosecutors’ and judges’ discretion.

Forman and Domenici on Connecting Juvenile Justice and Education Reform

James Forman Jr. (Yale University - Law School, pictured) and David Domenici have posted What it Takes to Transform a School Inside a Juvenile Facility: The Story of the Maya Angelou Academy (Justice for Kids: Keeping Kids Out of the Juvenile Justice System, Nancy Dowd, ed., NYU Press, 2011) on SSRN. Here is the abstract:

The inadequate state of education in juvenile and adult correctional facilities is well-documented. Stories of failure and neglect abound. Success stories, by contrast, are rare. In this Article, we describe the successful transformation of the school inside Washington D.C.’s juvenile detention facility. In so doing, we argue that schools in detention facilities remain inadequate in part because the education and juvenile justice reform movements are disconnected from each other. Education reformers doubt that techniques that have proven successful in schools in the community will work in a correctional setting. Juvenile justice advocates, especially in recent years, have focused on reducing the number of children who are locked up, rather than with developing quality schools for those who remain behind bars. Both groups, we argue, should expand their vision. We use Washington D.C.’s transformation to suggest that, if they do, significant reform is possible.

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

• Hill v. United States: Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.
• Vasquez v. United States: Whether the Seventh Circuit violated this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury; and (2) whether the Seventh Circuit violated Mr. Vasquez's Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case.
• Southern Union Company v. United States: Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	271	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 [2nd last week]
2	247	A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights Christopher R. Green, University of Mississippi - School of Law, Date posted to database: October 20, 2011 [3rd last week]
3	162	Foreign Corrupt Practices Act Fundamentals Jessica Tillipman, The George Washington University Law School, Date posted to database: September 6, 2011 [6th last week]
4	155	Regulation for the Sake of Appearance University of Chicago - Law School, Date posted to database: October 13, 2011 [8th last week]
5	152	Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis Wouter P. J. Wils, European Commission, Date posted to database: November 9, 2011 [9th last week]
6	126	The Individual Risk Assessment of Terrorism John Monahan, University of Virginia School of Law, Date posted to database: September 20, 2011 [10th last week]
7	122	Marriage as Punishment Melissa E. Murray, University of California, Berkeley - School of Law, Date posted to database: November 2, 2011 [new to top ten]
8	116	Recalibrating Constitutional Innocence Protection Robert J. Smith, Robert J. Smith, The Charles Hamilton Houston Institute for Race and Justice , DePaul University College of Law, Date posted to database: September 20, 2011 [new to top ten]
9	116	Practicing Proportionality William W. Berry, University of Mississippi School of Law, Date posted to database: September 3, 2011 [new to top ten]
10	114	Aggression and Legality: Custom in Kampala Marko Milanovic, University of Nottingham School of Law, Date posted to database: September 12, 2011 [new to top ten]