CrimProf Blog

Gadirov on Collective Intentions and Individual Criminal Responsibility

Javid Gadirov (Central European University) has posted Collective Intentions and Individual Criminal Responsibility on SSRN. Here is the abstract:

This article focuses on the treatment of collective intentions in individual criminal responsibility for crimes against humanity and war crimes, at the example of the emerging International Criminal Court's (ICC) jurisprudence. It is argued that collective ('joint' and 'indirect') perpetration accounts of ICC ought to provide first of all a coherent conception of collective intentions and actions to identify individuals involved in cooperative harm doing, to attribute harm to causally responsible individuals, and to provide grounds for formulating a 'decision method' necessary for distributiveness of moral blame. Secondly causal responsibility test for harm brought about in accordance with such intentions should (a) rely on strong sufficiency rather than normative attribution standart (real rather than hypothetical attribution); (b) specify that irreducible collective intention is a 'NESS' condition for attributing harm to liable individuals; (c) distinguish principals by formulating a stronger collective intention threshold that requires 'meshing' of individual participatory intentions. Finally allocation of moral blame for harm brought about collectively should (a) explain how moral blame is distributive among participants of collective actions, in order to avoid its blending into metaphysical shame or 'guilt by association'; (b) rely on collective intentions as a 'decision method' of harm-doing that distributes moral blame; (c) consider that 'strong' formulations of such 'decision method' blame superiors, and vice versa a weak 'decision method' would increase morally responsibility of final perpetrators.

Whereas it has been argued in the literature that criminal prosecutions for human rights atrocities are at odds with liberal premises of human rights law including individual culpability, it is the purpose of this work to argue for such grounds and that ICC can address collective complicities based on respect for individual autonomy and without degenerating into collective guilt theories that disregard free will and moral responsibility.

Graham on Sentencing, Crack and Meth

Kyle Graham (Santa Clara University School of Law) has posted Sorry Seems to Be the Hardest Word: the Fair Sentencing Act of 2010, Crack, and Methamphetamine (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

This Essay considers the circumstances that led to the enactment of the Fair Sentencing Act of 2010, which increased the quantities of crack cocaine necessary to implicate mandatory minimum prison sentences for federal drug trafficking crimes, and considers whether the Act might facilitate re-evaluation of the penalty scheme applicable to methamphetamine.

Next week's criminal law/procedure arguments

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

Tuesday, Feb. 22

• US v. Tinklenberg: The Speedy Trial Act guarantees that federal criminal defendants will be tried within a certain amount of time after they are charged. The statute also provides that certain delays do not count toward the deadline. When, if ever, is the time between the filing of a pretrial motion and the court’s ruling on it excluded?
• Bond v. US: Whether a defendant may challenge the constitutionality of a federal criminal statute on Tenth Amendment grounds, arguing that Congress exceeded its constitutional powers in attempting to regulate something the Constitution leaves to the states.

Wednesday, Feb. 23

• Freeman v. US: Generally, a criminal defendant may ask to have his sentence lowered if, after his sentencing, the federal sentencing commission lowers the sentencing guideline range for his crime. The question in this case is whether a defendant may take advantage of that right if he was convicted based on a plea agreement that specified a particular sentence or sentencing range (as opposed to a plea agreement in which sentencing is left to the judge, in accordance with the sentencing guidelines).

Vazquez on Advising Noncitizen Defendants on Immigration Consequences of Conviction

Yolanda Vazquez (University of Pennsylvania Law School) has posted Advising Noncitizen Defendants on the Immigration Consequences of Criminal Convictions: The Ethical Answer for the Criminal Defense Lawyer, the Court, and the Sixth Amendment (Berkeley La Raza Law Journal, Vol. 20, p. 31, 2010) on SSRN. Here is the abstract:

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the client was a non-citizen; or, 2) the attorney gave misadvice. However, these holdings create perverse incentives for attorneys to implement a Don’t Ask/Don’t Tell policy by allowing an attorney to remain silent and fail to investigate immigration status to prevent a Sixth Amendment violation on information that a noncitizen may deem more important than the criminal sentence as well as creating lines in the responsibilities an attorney owes his client based upon stereotypical perceptions of citizenship.

This Article addresses: (1) the unique role that immigration consequences have in the criminal court system that is separate and distinct from other consequences that have been deemed “collateral”; (2) the ethical dilemma that the courts have created for the criminal defense attorney when advising or not advising noncitizen clients on the immigration consequences of a criminal conviction; and (3) the obligations that criminal defense attorneys have to the court system that reinforce the attorney-client relationship while at the same time creating the foundation for better outcomes in a Sixth Amendment analysis. It argues that regardless of the Sixth Amendment law, an attorney’s ethical and moral duty is to advise his client as to the specific immigration consequences of a criminal conviction.

"Action needed to assure new technology can be wiretapped, FBI says"

From CNN.com:

Washington (CNN) -- Rapid advances in communications are eroding police departments' abilities to conduct wiretaps, and Congress needs to take steps to ensure that new telephone, computer and wireless systems are designed to allow lawful police access, FBI and police officials told Congress Thursday.

But other witnesses cautioned that any such move could stifle innovation, place U.S. technology companies at a competitive disadvantage and unintentionally create systems vulnerable to hackers, criminals and terrorists.

Sarma on Civic Exclusion of African-Americans in Louisiana

Bidish Sarma (The Justice Center's Capital Appeals Project) has posted An Enduring (and Disturbing) Legacy: Race-Neutrality, Judicial Apathy, and the Civic Exclusion of African-Americans in Louisiana (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:

In Louisiana, Mr. Ernest Benjamin Kruttschnitt is fondly remembered as a lawyer who championed worthy causes. He long served as the President of the New Orleans School Board, and his leadership in the Louisiana State Bar remains the stuff of legend. Indeed, his portrait adorns the atrium wall immediately outside of the Louisiana Supreme Court on the Fourth floor of the stately court in the French Quarter.

But, history has overlooked one central and irrefutable fact about Mr. Kruttschnitt: he was a white supremacist. In fact, he led the State’s effort to undermine the nation’s Reconstruction Amendments, seeking to disenfranchise and marginalize African-Americans and cleanse Louisiana of the folks he claimed “degraded our politics.” A key author of the constitutional provisions and policies designed to deny African-Americans a voice in government and civic life, he remains a revered legal luminary in Louisiana. Yet, at the time that he presided over Louisiana’s Second Constitutional Convention, his followers and colleagues knew that his goal was “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”

Today, we remember not. His inflammatory and racist rhetoric does not taint our memory because although E.B. Kruttschnitt made his wicked agenda clear to his like-minded friends, he circumvented legal scrutiny through the deployment of race-neutral language in the laws he drafted and the Constitution he helped create. Combined with pervasive judicial apathy, this tactic succeeded, and represents his enduring, if unspoken, legacy. And, it is a tactic that was not only effective then, but also continues to disenfranchise African-Americans today.

Although African-Americans are no longer denied access to the ballot box through discriminatory property requirements and arbitrarily-enforced educational qualifications, State actors retain substantial discretion with which to discriminate in one significant aspect of public life: jury service. In all jury trials, prosecutors can utilize peremptory strikes to exclude otherwise-qualified African-Americans from serving on a jury. And, though the U.S. Constitution technically prohibits prosecutors from using peremptory strikes to purposely discriminate on the basis of race, the State has discovered that E.B. Kruttschnitt’s old trick still works in this context. Race-neutral language explaining peremptory strikes against African-Americans seems to carry the day in front of the Louisiana Supreme Court, even where overwhelming circumstantial evidence suggests that the real reason for such strikes is race. Judicial apathy, expressed as uncritical deference to race-neutral language, remains. Until it is invalidated, the State will continue to fulfill E.B. Kruttschnitt’s desire to exclude African-Americans from civic life, at least insofar as jury participation is concerned.

Sawicki on Baze v. Rees

  Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted There Must Be a Means: The Backward Jurisprudence of Baze v. Rees on SSRN. Here is the abstract:

The Supreme Court’s plurality opinion in Baze v. Rees begins with a seemingly simple assertion of constitutional law. “We begin with the principle, settled by Gregg, that capital punishment is constitutional.” It continues, “It necessarily follows that there must be a means of carrying it out.” This second pronouncement provides the foundation for the Supreme Court’s holding in Baze that Kentucky’s refusal to modify its lethal injection procedure does not violate the Eighth Amendment. However, in taking the position that the constitutionality of an existing method of capital punishment is dependent on the availability of alternative execution procedures, the Supreme Court has turned Eighth Amendment jurisprudence on its head, establishing a dangerous loophole that could imperil our most important constitutional protections. This essay highlights the error in the Court’s reasoning in Baze, and describes the potential consequences of applying this reasoning to other areas of constitutional law.

Laudan & Allen on Preventive Detention

Larry Laudan and Ronald J. Allen (pictured)(Instituto de Investigaciones Filosoficas, UNAM and Northwestern University Law School) have posted Deadly Dilemmas III: Some Kind Words for Preventive Detention on SSRN. Here is the abstract:

This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not. While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied. More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.

Calo on Empirical Desert

Zachary R. Calo (Valparaiso University School of Law) has posted Empirical Desert and the Moral Economy of Punishment (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral life. As such, the normative nature of punishment is lost in an attempt to salvage it.

Freedman on Habeas Corpus as a Common Law Writ

Eric M. Freedman (Hofstra University - School of Law) has posted Dimension I: Habeas Corpus as a Common Law Writ (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, No. 2, Summer 2011) on SSRN. Here is the abstract:

This article is the first part of a projected three-part work based on the extensive exploration of archival sources in America and England that has been conducted in the past several years by myself and other researchers.

It advances two key claims: First, in researching the history of habeas corpus we need to get beyond the label "habeas corpus." The constitutional importance of the writ is in its function not its name. Demands for release from unlawful imprisonment could be made in the seventeenth and eighteenth centuries by seeking a variety of writs or even by pleadings that asked for no particular writ at all. Hence for Suspension Clause purposes we should adopt a functional definition of "habeas corpus" to mean a demand, however denominated, challenging the legal basis of a detention and calling upon the custodian to justify it.

Second, the broader group of cases thus defined shares important features of judicial methodology. The judges worked vigorously (a) to resolve the case speedily on a fact-specific and pragmatic basis; and (b) with respect to those issues of law necessarily involved (I) to overcome any procedural barriers to a prompt merits ruling and (II) if a legal question seemed dis-positive, to frame it specifically and isolate it for adjudication.

I conclude by suggesting why historical research, legal scholarship, and judicial proceedings (including current ones involving Guantanamo) might benefit from applying these thoughts.

Cohn on the United States and Torture

Marjorie Cohn (Thomas Jefferson School of Law) has posted Introduction to The United States and Torture: Interrogation, Incarceration, and Abuse (THE UNITED STATES AND TORTURE: INTERROGATION, INCARCERATION, AND ABUSE, New York University Press, 2011) on SSRN. Here is the abstract:

Emboldened by the terrorist attacks of September 11, 2001, the George W. Bush administration lost no time establishing a policy that authorized the use of "enhanced interrogation techniques," that is, torture and abuse. Cofer Black, head of the CIA Counterterrorist Center, testified at a joint hearing of the House and Senate intelligence committees in September 2002: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off." Indeed, in his January 2003 State of the Union Address, President Bush admitted: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way: They are no longer a problem to the United States and our friends and allies." Bush was tacitly admitting to the illegal practice of summary execution.

This book, the Introduction of which by editor Marjorie Cohn is posted here on SSRN by permission of New York University Press, details the complicity of the U.S. government in the torture and cruel treatment of prisoners both at home and abroad. Following is an abstract of Professor Cohn's Introduction, summarizing the contents of the book.

In her compelling preface to the book, Sister Dianna Ortiz describes the unimaginable treatment she endured in 1987, when she was in Guatemala doing missionary work while the United States was supporting the dictatorship there. She survived and founded the Torture Abolition and Survivors Support Coalition International, and her work has made her a national symbol of the struggle to abolish torture.

In Part I, "The History and Character of Torture," chapters written by an historian, a lawyer, and a political scientist trace the history of CIA torture and U.S. complicity in torture throughout Latin America. A philosopher and a lawyer then analyze the character of torture, the "ticking time bomb" scenario, and parallels between torture and "one-sided warfare."

Part II, "Torture and Cruel Treatment of Prisoners in U.S. Custody," brings the study into the current context of the so-called "War on Terror." A journalist examines the Bush administration's "extraordinary rendition" program, in which a person is abducted without any legal proceedings and transferred to a foreign country for detention and interrogation, often tortured. Two lawyers look at the treatment of detainees at Guantánamo. The role played by psychologists in the Bush torture program is set forth by one of the leaders of the movement to end that involvement. And a journalist brings the debate home with his description of the torture of prisoners in U.S. "supermax" prisons.

Finally, in Part III, "Accountability for Torture," three lawyers explain strategies for bringing to justice the officials and lawyers who participated in establishing the Bush administration's policies that led to torture and abuse, and a sociologist finds links between torture, war, and presidential power.

Lubet on the Oberlin Fugitive Slave Rescue and Higher Law

Steven Lubet (Northwestern University - School of Law) has posted The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law (North & South, Vol. 13, 2011) on SSRN. Here is the abstract:

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book – Fugitive Justice: Runaways, Rescuers, and Slavery on Trial – which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and captured by Kentucky slavehunters, but he was able to raise an alarm. Hundreds of Oberliners – including many students and graduates from the eponymous college – came to his rescue. They chased the slavehunters to nearby Wellington, where they freed John Price by force.

The pro-slavery Buchanan administration could not ignore such a blatant violation of the Fugitive Slave Act, and soon obtained indictments against thirty-seven rescuers, including Charles Langston and eleven other black men.

Charles Langston – a free black man and the son of a Virginia plantation owner – was brought to trial in Cleveland the following spring. Langston was a militant abolitionist and a leader of Ohio’s African-American community. Although convicted, he shocked the country when he defiantly addressed the court at sentencing. Langston announced that he would proudly continue to violate the Fugitive Slave Act, and he would assert the “God given right to freedom” in the face of any warrant or legal requisition.

Langston’s attorney stunningly also declared himself a “votary of the Higher Law,” thus setting the stage for a courtroom confrontation between morality and legality.

Taslitz on Criminal Justice and the Thirteenth Amendment

Andrew E. Taslitz (Howard University - School of Law) has posted The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment (THE PROMISES OF LIBERTY: THE HISTORY AND CONTEMPORARY RELEVANCE OF THE THIRTEENTH AMENDMENT, Chapter 13, p. 245, Alexander Tsesis, ed., Columbia University Press, 2010) on SSRN. Here is the abstract:

Criminal justice legislation expressly rooted in, or inspired by, the Thirteenth Amendment to the United States Constitution has tended to be narrow in scope. Such legislation aims primarily at preventing the unwilling from being physically compelled to labor for little, if any, compensation at hard jobs. This book chapter argues that Section 2 of that amendment, empowering Congress to pass appropriate legislation to enforce the amendment, authorizes somewhat broader legislation. Section 2 must be understood as aiming not only at slavery and its close cousin, involuntary servitude, but more directly at the anti-republican culture it spawned. More specifically, this chapter identifies four hallmarks of a core concept of chattel slavery, the presence of any one of which was an important prop for the Slave Power and thus potentially an appropriate subject of legislative assault. These props give more meat to the ambiguous "badges and incidents" concept that has defined Congress's Section 2 power. The four props are: (1) violence that (2) is expressive of racial subordination (3) used to coerce labor or (4) treat humans more as commodities than as persons. Current doctrine requires the conjunction of props 1 and 3, while the chapter argues that prop 4 alone can be the subject of legislation, as can prop 1 in conjunction with either prop 2 or 3. Moreover, properly understood, props 2 and 3 significantly broaden the currently accepted scope of Section 2's reach. The chapter ends with illustrations of criminal justice legislation that could be authorized under this new reading of Section 2, including outlawing racially-motivated low-level violence interfering with the housing market and outlawing certain types of purely psychological manipulation, devoid of even the threat of physical violence, to compel labor.

Podgor on Politics and Federal Prosecutors

Ellen S. Podgor (Stetson University College of Law) has posted The Tainted Federal Prosecutor in an Overcriminalized Justice System (Washington and Lee Law Review, Vol. 67, No. 4, 2010) on SSRN. Here is the abstract:

The infiltration of politics in the Department of Justice (DOJ) is the discussion in four recent oversight reports. Commentators and scholars have responded with varying solutions to ensure these mistakes will not be repeated.

This Essay looks at politicization in DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in DOJ and then stresses the need to examine structural changes in the criminal justice process that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Instead of focusing only on corrections to alleviate politicization in the federal criminal justice system, the focus also needs to look at overcriminalization, the breadth or many criminal statutes, the increased lack of mens rea required in criminal offenses, and the ability of prosecutors to use “short-cut” offenses to proceed with charges with relatively little proof. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor’s personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decisionmaking would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers.

"House Votes to Extend Patriot Act Provisions"

From The New York Times:

WASHINGTON — The House on Monday voted to reauthorize and extend through Dec. 8 three ways in which Congress expanded the Federal Bureau of Investigation’s counterterrorism powers after the terrorist attacks of Sept. 11, 2001.

. . .

The provisions allow investigators to get “roving wiretap” court orders allowing them to follow terrorism suspects who switch phone numbers or providers; to get orders allowing them to seize “any tangible things” relevant to a security investigation, like a business’s customer records; and to get national-security wiretap orders against non-citizen suspects who are not connected to any foreign power.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	302	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011 [new to top ten]
2	281	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011 [3rd last week]
3	273	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011 [1st last week]
4	270	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [2nd last week]
5	186	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [6th last week]
6	181	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [8th last week]
7	161	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011
8	130	Torture, Suicide, and Determinatio Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 11, 2010 [9th last week]
9	119	The People’s Right: Reimagining the Right to Counsel Martin Guggenheim, New York University School of Law, Date posted to database: January 11, 2011 [new to top ten]
10	109	Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: January 27, 2011 [new to top ten]