March 17, 2012
Next week's criminal law/procedure arguments
Issue summaries from ScotusBlog, which also links to papers:
- Southern Union Company v. U.S.: 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.
- Miller v. Alabama: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
- Jackson v. Hobbs: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
- Reichle v. Howards: (1) Whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) whether the court below erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.
- Vasquez v. U.S.: 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.
March 15, 2012
Tepfer & Nirider on Adjudicated Juveniles and Post-Conviction Litigation
Joshua A. Tepfer (pictured) and Laura H. Nirider (Northwestern University - School of Law and Northwestern University - School of Law) have posted Adjudicated Juveniles and Post-Conviction Litigation (Maine Law Review, Spring 2012) on SSRN. Here is the abstract:
Post-conviction relief is a vital part of the American justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record – but in post-conviction proceedings, the defendant may seek to expand the record to include evidence of such ineffectiveness.If a court sitting in post-conviction hears that evidence and sides with the defendant, the usual remedy is to grant a new trial. Without access to the opportunities to supplement the record that are afforded by post-conviction proceedings, however, a defendant who suffers ineffective assistance of counsel often has no opportunity for relief. Post-conviction proceedings are also often used to raise newly discovered evidence of innocence. This use of post-conviction proceedings, in particular, has met with much success, especially since the development of DNA technology has enabled attorneys to subject trial evidence to scientific testing and to introduce those test results post-conviction as newly discovered evidence of innocence. To date, 289 individuals have been exonerated by DNA testing, almost all of it conducted through the vehicle of post-conviction proceedings. Each of these individuals stands as living proof of the fact that access to post-conviction relief is an essential part of a justice-seeking judicial system. This article examines the troubling disparities in access to post-conviction relief between adults and juveniles that appear to occur in many jurisdictions. Some states explicitly make post-conviction relief unavailable to defendants who are tried as juveniles while granting such access to adults. In many other states, legislatures have drafted laws governing the availability of post-conviction proceedings that are vague and ambiguous, leading to uncertainty about whether juvenile defendants may take advantage of such proceedings. This disparity exists despite the fact that those tried in juvenile court need access to post-conviction remedies just as much as those tried in adult court.
Issacs on Baseline Framing in Sentencing
When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentences in identical cases depending on the baseline sentence from which the judge’s analysis begins. This Note shows that baseline framing will lead to disproportionately low sentences in a floor baseline regime, disproportionately high sentences in a ceiling baseline regime, and sentences disproportionately clustered around the typical sentence in a typical crime baseline regime.
In order to design the most just sentencing procedures, policymakers must consider baseline framing effects. This Note suggests that policymakers who want to minimize the number of sentences skewed by cognitive error should implement a typical crime baseline. In contrast, policymakers who want to err against inflicting unreasoned punishment should implement Tennessee’s quasi-floor baseline.
Noll on Race, Gangs, and Violence in California Prisons
Dale Noll has posted Building a New Identity: Race, Gangs, and Violence in California Prisons on SSRN. Here is the abstract:
The California Prison system is notorious for its highly racialized environment. A history of numerous instances of prison violence - labeled as 'race riots' - paints a picture of a system where inmates of different races require segregation to prevent brutal beatings, murders, and rapes. For example, following an incident deemed a 'race riot' at the California Correctional Training Facility, North prison, prison officials locked 300 inmates in isolation until inmates complained that their Eighth Amendment and Due Process rights were violated. In 2000, the Pelican Bay State Prison locked down a portion of the prison following a riot, presumed to be racially motivated, involving 300 inmates. In August, 2009, 1,175 inmates were involved in a riot that officials deemed 'stemmed from racial tensions,' in which 249 inmates were injured and seven dorm units, holding 1,300 beds, were destroyed at the California Institution for Men in Chino, California. The media and prison officials point to events similar to these as evidence that California prisons are racially charged.
Jurisprudence has traditionally left prison segregation practices to a relaxed standard of review for Equal Protection suits, allowing California prison officials to segregate inmates according to race in double-occupancy cells. Justice Antonin Scalia, in Richmond v. J.A. Croson, wrote 'only a social emergency rising to the level of imminent danger to life and limb - for example, a prison race riot, requiring temporary segregation of inmates . . . can justify an exception to the principle embodied in the Fourteenth Amendment that ‘our Constitution is colorblind.' This viewpoint is consistent with Justice Thomas’s recommended relaxed standard and judicial deference to prison officials who oversee 'prisons that have been a breeding ground for some of the most violent prison gangs in America - all of them organized along racial lines.'
Reports of riots, popular movies, and prior court opinions suggest this prison system’s prior practice of initial racial segregating of inmates was a reaction to the racial prejudices and intolerances inmates brought with them to prison. Alternatively, it suggests inmates develop prejudices through prison interactions. This concept led to the practice of segregation in initial housing of inmates. As inmates were introduced to the California prison system, they were placed in cells with inmates according to race or ethnicity.
In 2005, the Supreme Court changed the standard to be applied in cases of racial segregation at prisons. In Johnson v. California, Justice O’Connor’s majority held that the proper standard of review was 'strict scrutiny' because the prior deferential standard too easily defended 'rank discrimination' and remanded the case back to the district court for review. The California Department of Corrections ('CDC') at that point settled with the plaintiff, Garrison Johnson, and began implementing policies to eliminate the use of race as a primary factor in initially segregating inmates as they are processed into prisons.
The thesis of this article is that while the CDC claims its policies regarding initial housing in double-occupancy cells focused on separating members of conflicting gangs, in practice it segregated inmates coming into the men’s prison system by perceived race. Research has shown that racial segregation in prisons increases inmate violence, which has the effect of increasing inmate sentences. In California, where inmate populations are disproportionately Black and Latino, this practice, questioned in the courts, is only one example of the segregation existing throughout the prison system. By carefully integrating all inmate cells and eliminating the policy allowing inmates to select their own double-occupancy cell partner, California will experience less violence within the prison, thereby reducing prison sentences.
Nakao & Tsumagari on Discretionary vs. Mandatory Prosecution
Keisuke Nakao and Masatoshi Tsumagari (University of Hawaii at Hilo and affiliation not provided to SSRN) have posted Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure on SSRN. Here is the abstract:
Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits between discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but it may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.
March 14, 2012
Cooper on Post-Racialism and Searches Incident to Arrest
For 28 years the Court held that an officer’s search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court’s requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court’s requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil liberties, I see it as a failure to fully address racial profiling.
Racial profiling lives on in the post-Gant era because the Court failed to prohibit pretextual searches. Cops may leave suspects near a car in order to satisfy Gant’s first prong. More importantly, they will often be able to characterize the crime of arrest as suggesting there could be evidence in the car. For instance, if a distracted driver turns without signaling, what is to stop an officer from claiming she suspected the crime of Driving Under the Influence and was searching for beer cans? Nothing in the Gant decision.
The Gant Court fails to address pretext because it takes a post-racial approach to racial profiling. That is, it acts as if race never matters by trying to address a problem of racism through a broader category of analysis. In Gant, that means ignoring former Justice Sandra Day O’Connor’s warning in her Atwater v. City of Lago Vista dissent that the search incident to arrest rule is used for racial profiling. The Gant Court thus remedies only the general problem of officers searching for weapons after they have eliminated any safety concerns, but not the specific problem of racial profiling through searches incident to arrest.
Prior to Gant, scholar Donald Dripps identified an “Iron Triangle” of cases that made search incident to arrest doctrine inimical to civil liberties; I extend that metaphor and argue the problem of racial profiling stems from a “Mindless Square” of cases. Dripps points to the combination of New York v. Belton’s presumption that a car may be searched, Whren v. United States’s bar on considering officer motivations, and Atwater’s approval of arrests for de minimis crimes. I point out that these cases draw on the earlier United States v. Robinson case’s refusal to consider whether the officer actually had the state of mind that Chimel says justifies the search incident to arrest rule. Together, Robinson, Belton, Whren, and Atwater remove the officer’s mind from analysis of search incident to arrest doctrine.
In order to address post-Gant racial profiling, we must address the mindlessness of present doctrine. That means reinvigorating Chimel by excising the Rabinowitz prong from Gant. It also means explicitly asking whether it is overall reasonable to allow a search incident to arrest when considering whether it was a pretext for racial profiling.
Levine & Wright on Prosecutors, Office Structure, and Professional Identity
Despite the multi-dimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutor case handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience.
In this article we add depth to the existing portrait of prosecution by exploring a third dimension: the office structure and the professional identity it helps to produce. In addition to understanding the office’s explicit policies, new prosecutors must discover the unwritten social rules, norms and language of the profession. These informal instructions do more than simply define how a prosecutor acts; they define who a prosecutor is. Our account of prosecution also explains how different dimensions of the role interact. The structure of a prosecutor’s office helps determine the professional identity of the attorneys who work there; that identity, in turn, has the capacity to powerfully shape the prosecutor’s outputs.
To investigate this third dimension of criminal prosecution at the state level, we conducted semi-structured interviews with misdemeanor and drug prosecutors in three offices during calendar year 2010. Our discussion here focuses on two particular features of office structure – the hierarchical shape of the organization’s workforce and the hiring preference for experience – to examine differences they can make in a prosecutor’s professional self-image, particularly her orientation towards autonomy. The prosecutor’s basic attitude toward autonomy (or, conversely, the team) produces ripple effects on her career trajectory, her relationships with other lawyers and police, and the value she places on achieving consistency across cases. By viewing prosecution through this lens, we hope to offer managers of a prosecutor’s office a greater understanding of their choices, and to give the public deeper insight about the work done in their name in the criminal courts.
March 13, 2012
Christopher & Christopher on the Paradox of Statutory Rape
Russell Christopher and Kathryn Hope Christopher (University of Tulsa College of Law and affiliation not provided to SSRN) have posted The Paradox of Statutory Rape (Indiana Law Journal, Vol. 87, No. 2, p. 505, 2012) on SSRN. Here is the abstract:
What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape's protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged -- intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense -- a sexually aggressive seventeen-year-old raping an adult now exposes the adult rape victim to statutory rape liability. By being raped, the adult rape victim satisfies the minimal elements of the offense, lacks any defenses, and thereby commits statutory rape of her juvenile rapist. Therefore, the offense of statutory rape criminalizes being raped; that is, it criminalizes being the victim of rape. Paradoxically, while the offense of rape prohibits committing rape, the offense of statutory rape prohibits being raped. What the law of rape seeks to protect us from -- being raped -- the law of statutory rape punishes us for.
Duane on Invoking the Right to Remain Silent
James J. Duane (Regent University - School of Law) has posted The Right to Remain Silent: A New Answer to an Old Question (Criminal Justice, Vol. 25, No. 2, 2010) on SSRN. Here is the abstract:
When a witness is summoned to testify before a grand jury or at a judicial or legislative proceeding, the lawyer for the witness frequently concludes that it may be in the client's best interest to assert the Fifth Amendment "right to remain silent," at least with respect to certain topics. The lawyer will often give the witness a card to read aloud when asserting that privilege. But precisely what words should the lawyer advise the client to read when invoking the Fifth Amendment privilege?
For more than 100 years, lawyers have shown surprisingly little imagination or ingenuity, advising their clients to state in almost exactly these words: "On the advice of counsel, I respectfully decline to answer on the grounds that it may tend to incriminate me."
This article explains why that unfortunate language is never in the best interests of the witness, and why it naturally tends to sound to most listeners as if the witness is somehow admitting that he cannot tell the truth without confessing that he is guilty of some crime. The article also points out that this archaic invocation is not required by either the language or the theory of the Fifth Amendment, nor by the most recent controlling Supreme Court precedents. The article concludes with a suggestion for an entirely new formulation for invoking the privilege, one which gives greater protection to the rights of the witness and also more faithfully captures what the Supreme Court of the United States has written about the nature of this precious constitutional privilege.
McCannon on Baad
The institution known as baad is an mechanism used typically in criminal justice systems of Pashtun societies. In baad the family of a harmed individual abducts a young girl from the family of the one who caused the harm. The abducted girls are typically treated very poorly and held against their will. Consequently, outrage over this cultural institution has arisen. I use the tools of game theory to assess the hypothesis that such an institution exists only because men in the society place a low value on women. The model shows, though, that baad arises only when, from the perspective of heads of households, women have intermediate values. If they are valued too highly, the threat deters all activity and baad abductions never occur. If they are valued too low, the abduction is found insufficient by the aggrieved and alternative punishment are sought. The model is able to identify the factors that contribute to the prevalence of the institution as well.
Goldby on Money Laundering and English Law
Miriam A. Goldby has posted Anti-Money Laundering Reporting Requirements Imposed by English Law: Measuring Effectiveness and Gauging the Need for Reform (Journal of Business Law, Forthcoming) on SSRN. Here is the abstract:
The past decade has seen a flurry of legislative activity in the area of money laundering control that has resulted in ever-greater and more costly regulatory burdens being imposed on certain sectors, most notably banks and financial services providers. This article focuses on reporting requirements under which private entities must make disclosures on the activities of their clients, when such activities are suspicious. Its overall aim is to attempt to gain some insight into whether the provisions of English law that impose reporting requirements on private entities, in particular banks, are achieving the aims behind the legislation efficiently and effectively or whether there is evidence that these aims could be achieved better through a reconsideration of the law. The article examines the nature of the requirements, the justifications put forward for imposing them, the problems of measuring effectiveness against these justifications, and the difficulties of establishing a risk-based approach to enforcing the requirements. It finds that though there are clear indications that the current regime may be effective against certain types of predicate offences such as tax evasion, there is insufficient evidence to establish its effectiveness against organized crime, and argues that certain currently unavailable data needs to be collected and analyzed in order better to be able to gauge effectiveness and determine how the regime could be improved to this end. It makes suggestions as to how such data may be collected. The article concludes by indicating possible steps that could be taken towards making the regime more effective.
March 12, 2012
Dripps on Contextual Change, Legal Dynamism, and Interpreting the Fourth Amendment
Donald A. Dripps (University of San Diego School of Law) has posted Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment
(Mississippi Law Journal, Vol. 81, No. 3, p. 133, 2011) on SSRN. Here is the abstract:
Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi's 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.
The constitutional text was situated in the context of eighteenth-century institutions and doctrines that disappeared in the nineteenth century. The utter disappearance of the context means that we just don’t know what the founders expected the Fourth Amendment to prohibit, or permit, in a radically different legal and technological environment. The degree of privacy and liberty in 1791 were a product of the contemporary criminal justice system, the economic and technological social circumstances, and the legal regime that limited search-and-arrest powers. The rules of 1791 would have different consequences for liberty and security in a society like today’s, with full-time proactive police and modern technology.
The dynamism critique points out that the 1791 rules of search-and-seizure were not static. Tort law was the legal regime regulating search-and-arrest powers. Illegal detention gave rise to actions for false arrest or false imprisonment. Illegal entries of private premises gave rise to trespass suits. But common law can change. Precedents can be overruled, and new factual contexts require debatable applications of old principles. Most dramatically, common law rules can be trumped by statutes.
If the reasonableness clause perpetuates all the specific 1791 tort rules, the force of the contextual critique becomes overwhelming. If, however, the clause incorporates common law rules subject to plenary statutory revision, the constitutional provision is nugatory. Either the Fourth Amendment freezes search-and-seizure law in the form it had before the advent of modern police and modern technology, or it permits any search or arrest authorized by statute. Some search for principled middle ground seems in order. The interpretive mode most faithful to the original understanding is “aspirational balance of advantage originalism,” a mode practically very similar indeed to competing approaches such as common-law constitutionalism or legal process theory.
Armstrong on Short Prison Sentences
Sarah Armstrong (Glasgow University) has posted Persistent Punishment: User Views of Short Prison Sentences on SSRN. Here is the abstract:
Semi-structured interviews were conducted of 22 prisoners to gather information about the characteristic features of short prison sentences. Themes raised in comments included: the frequency and quality of sentences, addiction, family, and penal legitimacy. Most of the participants had extensive experience of prison, and the effects of this played out across sentences and years, accumulating and amplifying impacts. And, despite expressions of guilt and remorse, most participants saw their sentence as unjust, and mainly a reaction to offending history. We conclude by suggesting the need for research to shift focus from evaluating individual penal interventions towards more holistic and narrative accounts that cut across sentences.
Wright on Free Will and Criminal Law
R. George Wright (Indiana University Robert H. McKinney School of Law) has posted Criminal Law and Sentencing: What Goes with Free Will? on SSRN. Here is the abstract:
This Article notes that increasing numbers of scholars have argued that if we were to minimize our collective belief in the possibility of genuine free will and moral responsibility, we would as a result likely see a more humane, compassionate, enlightened, and generally progressive criminal justice and sentencing system.
As it turns out, though, we must instead conclude that such optimism does not seem warranted.
Beginning with Clarence Darrow’s closing argument in defense of Leopold and Loeb, and then discussing the work of contemporary legal scholars, scientists, and philosophers, as applied in various criminal law contexts, the Article concludes on a skeptical note. Even if a culture takes economic, structural, and institutional causes of crime with utmost seriousness, the more likely result of generally discounting free will and moral responsibility would involve criminal justice practices holding little appeal for most contemporary progressives and advocates of equality.
Bowers on The Normative Case for Normative Grand Juries
The contemporary criminal justice system disposes of order-maintenance cases without much of any substantive litigation or public influence or oversight. Rather, these prosecutions are typically products of professional decision-making and are resolved by summary guilty pleas. This is no new insight. Indeed, a number of scholars have offered a range of reforms to address the perceived problems of assembly-line criminal justice. Inordinately, however, these adjudicative reforms tend to focus on the wrong question - the question of legal guilt. Instead, the issue with many order-maintenance prosecutions is not that the charges lack legal merit, but that the charges are equitably unfounded. Thus, the more appropriate focus of reform efforts is on the nontransparent discretionary charging decision.In this essay, which I prepared for a conference on community prosecution and defense, I propose a different kind of public participation in criminal justice. What I have in mind is a misdemeanor grand jury that would address only the normative - or extralegal - question of whether a public-order charge is equitably appropriate in the first instance. In offering this proposal, I do not claim that lay intuition is decidedly superior to professional perspective, only that some lay involvement is better than none when it comes to resolving equitable charging questions in normatively borderline cases. And, significantly, such a proposal is also consistent with the grand jury’s traditional role as the robust, transparently democratic, and decidedly equitable voice of the people in the charging process. Of course, questions remain over how to structure an efficient lay equitable screen that minimizes dangers of arbitrary or discriminatory decision-making. However, the possibilities for effective reform at least deserve exploration, and that is all I intend to do here. In any event, I offer this rough-and-ready proposal not as a universal solution, but as a potentially attractive option for prosecution offices that are committed already to the community-justice enterprise.
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