CrimProf Blog

Vazquez on Realizing Padilla's Promise

Yolanda Vazquez (University of Pennsylvania Law School) has posted Realizing Padilla's Promise: Ensuring Noncitizen Defendants are Advised of the Immigration Consequences of a Criminal Conviction (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:

On March 31, 2010 the United States Supreme court decided Padilla v. Kentucky and created a Sixth Amendment duty for defense attorneys to advise defendants of the immigration consequences of a criminal conviction. While Padilla answered the broad question of whether there is a duty to advise a defendant under the Sixth Amendment, it left many questions unanswered. One critical inquiry is how defense attorneys and the courts will determine what advice concerning the immigration consequences of the criminal conviction will satisfy defense counsels’ Sixth Amendment duty under Padilla.

This Article discusses the potential detrimental impact of Padilla’s ambiguous holding and the creation of a two-tiered admonishment system on a defendant’s ability to remain in the United States as well as the confusion it causes for defense counsel and the courts. Part I discusses the history of the right to advice on the immigration consequences of a criminal conviction under the Sixth Amendment. Part II highlights some of the key points that were left unanswered by Padilla and explores the impediments to achieving Padilla’s goal of assisting noncitizen defendants in avoiding removal from the United States. Part III suggests ways to ensure that all noncitizen defendants are given adequate advice on the immigration consequences of criminal conviction now and in the future. This Article concludes that the Padilla decision was an incremental and positive step towards reform in criminal representation but that legislative action, increased implementation of professional standards, and future progressive litigation will be necessary before all defense counsel can consistently advise their noncitizen clients about the immigration consequences of a conviction. If lawyers fail to build on its promise, Padilla will not be the landmark decision it was meant to be.

Laurin on Convicting the Innocent

Jennifer E. Laurin (University of Texas School of Law) has posted Still Convicting the Innocent (Texas Law Review, 2012) on SSRN. Here i9s the abstract:

In 1932, Edwin Borchard's Convicting the Innocent offered the first systematic attempt to document and describe the existence of Judge Hand‘s "ghost" of the innocent prisoner wrongly convicted. Three quarters of a century later, Professor Brandon Garrett has published a book of the same title with similar goals - but in the context of the game-changing phenomenon of DNA exonerations. Garrett's volume summarizes the vast data collected and analyzed in his study of the first 250 DNA exonerations in the United States, and in so doing offers the most empirically rich and conceptually nuanced descriptive account to date of the machinery of wrongful conviction. Moreover, to ongoing debates over the direction of criminal justice reform, it offers a persuasive and sustained critique of the tenaciously resilient notion that the unparalleled procedural protections of the American jury system are effective checks on substantive accuracy as well. And yet, Convicting the Innocent does not offer quite as powerful an explanatory lens as Garrett sometimes claims, and does not advance the ball of criminal justice policy reform as far as it might. Part II of this Review suggests that the project is hampered in fulfillment of its descriptive and prescriptive agendas by constraints intrinsic to the data at Garrett‘s disposal, and by limitations that Garrett‘s own framing and methodology impose. Part II further offers that modest but important qualifiers and additions to Garrett‘s agenda could enhance the prospect that his worthy contribution to criminal-justice-reform conversations will translate into positive and much-needed change.

"DNA sampling case develops"

From ScotusBlog:

Maryland officials have set the stage for an appeal to the Supreme Court to revive their legal right to collect DNA samples from individuals who have been arrested, but not yet convicted of a crime — if the state’s highest court cannot be persuaded to reconsider its partial ban on that procedure.  The issue has divided lower federal and state courts, and the case of King v. Maryland would appear to pose the issue in a simple and direct way — a rape conviction would fall, and getting a guilty verdict at a new trial could be in considerable doubt.

Call for papers on state drug sentencing at Valparaiso

The announcement follows the jump.

“Exploding Prison Populations and Drug Offenders: Rethinking State Drug Sentencing”

Valparaiso University Law School

November 9, 2012

 

Keynote Address, Randall Kennedy, Harvard Law School

 

Frequently, state sentencing approaches to drug offenses fail to distinguish between serious traffickers and low-level violators. For example, in Indiana, a person selling $40 worth of crack cocaine faces the same sentence (i.e., 20 to 50 years in prison) as a major drug dealer. Indiana’s framework presents an extreme example of this phenomenon, but Indiana is not alone in its approach; many other states are experiencing unintended consequences of similar policies.  Long-term sentences for low-level drug offenders have contributed to the exponential growth in many states’ prison populations. Frequently, commentators question whether the expenses of this non-differentiating methodology are warranted in human and other costs. Among other topics, the conference will examine (1) whether the current system can be justified; (2) the deterrent effect on drug usage of long-term incarceration and widespread imprisonment; and, (3) whether the likelihood of apprehension and conviction affects the market for drugs. Submissions relating to drug sentencing are welcomed, especially submissions on the following subjects:

 

• The costs and benefits to taxpayers of incarcerating low-level drug offenders
• The impact of drug sentencing laws on minority groups and other affected communities
• Whether the science of addiction can inform decisions regarding optimal responses to drug use and sales
• Legislative approaches to the challenges of incarceration for drug offenses

 

Selected conference papers will be published in a special issue of the Valparaiso University Law Review.  To submit a paper for presentation at the conference, please provide an abstract of you work by email submission no later than Monday, August 27, 2012.  It should be addressed to Melissa Mundt, Associate Director of Academic Services, Valparaiso University Law at Melissa.Mundt@valpo.edu.

Alexander on Husak and Desert

Larry Alexander (University of San Diego School of Law) has posted You Got What You Deserved (Criminal Law and Philosophy (Forthcoming)) on SSRN. Here is the abstract:

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications.

The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” (co-authored by George C. Thomas); “Mistakes of Law and Culpability”; and “‘Already Punished Enough.’” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration.  

Reynolds & Steakley on Due Process and Recording Police

Glenn Harlan Reynolds (pictured) and John A. Steakley (University of Tennessee College of Law and affiliation not provided to SSRN) have posted A Due Process Right to Record the Police (Washington University Law Review, Vol. 89, No. XXX, 2012) on SSRN. Here is the abstract:

There has been considerable discussion of citizens' First Amendment right to record the police. This essay, however, argues that independent of any First Amendment right, there is also a due process right to record the actions of law enforcement, and that this right applies even when the interaction takes place in private, and not in public places. This question of a due process right to record the police has not yet produced the degree of attention and litigation that public recording has, but the growth of inexpensive recording equipment and its inclusion in smart phones ensures that such attention and litigation are sure to be forthcoming.  

"John Yoo granted legal immunity"

ScotusBlog discusses the Ninth Circuit's opinion, which you can find here. In part:

The Ninth Circuit panel relied in part on reasoning used by the Fourth Circuit Court in denying Padilla a right to sue other government officials over his treatment as an enemy combatant. Padilla has asked the Supreme Court to review that ruling (Lebron, et al., v. Rumsfeld, et al., docket 11-1277; a post discussing that appeal is here). In addition, the Circuit Court said its decision was required by a Supreme Court ruling last year in Ashcroft v. al-Kidd, barring a constitutional lawsuit against former Attorney General John Ashcroft over the roundup of terrorism suspects after the September 11 terrorist attacks.

Schauer on The Ubiquity of Prevention

Frederick Schauer (University of Virginia School of Law) has posted The Ubiquity of Prevention (Andrew Ashworth & Lucia Zender, eds., Prevention and the Limits of the Criminal Law: Principles and Policies (Oxford: Oxford University Press, Forthcoming 2013)) on SSRN. Here is the abstract:

In recent years, and especially in reaction to actual and perceived security threats, there has been a growing interest in so-called preventive detention or preventive punishment, and an equally growing reaction against it. And although much of the reaction is well-founded, it may at the same time be mis-targeted. Prevention, broadly speaking, pervades the law in general, and the criminal law in particular. And so does the imposition on restrictions based on probabilities and predictions. Once we understand that the law enforcement techniques often criticized for their preventive, probabilistic, and predictive character share many goals and methods with the routine operation of the criminal law, we are better situated to identify more precisely the true source of the concerns.

Dolovich on Deference in Prison Law

Sharon Dolovich (University of California, Los Angeles - School of Law) has posted Forms of Deference in Prison Law (Federal Sentencing Reporter, Vol. 24, No. 4, p. 245, April 2012) on SSRN. Here is the abstract:

The imperative of judicial deference is arguably the primary driver of the Supreme Court’s prisoners’ rights jurisprudence. Yet taken as a body, the cases in this area reveal no principled basis for determining when deference is justified, what forms it may legitimately take, or the proper limits on its use. Instead, the mere mention of “deference” has emerged as a catch-all justification for curtailing both the burden on prison officials to ensure constitutional prisons and prisoners’ prospects for recovery even for arguably meritorious claims. The role of deference in prison law merits a longer and more in-depth treatment than I am able to offer here. This essay is simply a first cut at the issue. As such, it does three things. First, it identifies three main forms that deference takes in this area and provides examples of the deployment of each in the prisoners’ rights cases. Second, it highlights moments in the PLRA cases where the Court has opted not to defer (thus seeming to reject strategies it freely employs elsewhere), and offers a preliminary hypothesis as to why this might be. Third and finally, it calls for a theory of deference for the prison law context, i.e., for the development of principles to guide judicial deference in prison law cases and to set appropriate limits on its use.

Trawick on Criminalizing Birth Control Sabotage

Shane Trawick has posted Birth Control Sabotage as Domestic Violence: A Legal Response (California Law Review, Forthcoming) on SSRN. Here is the abstract:

This Comment responds to a series of recent studies linking domestic violence to birth control sabotage — a phenomenon where male partners destroy or manipulate contraceptive devices to force pregnancy, attempting to hold their female partners captive in a violent relationship. Birth control sabotage can take many forms, including the destruction of birth control, the piercing of condoms, or the forceful removal of contraceptive vaginal rings or intrauterine devices. Its existence begs two questions: what legal remedies are available to victims of birth control sabotage, and what policy steps should be taken to limit its occurrence? The absence of legal scholarship resolving these questions is glaring, and virtually no legal scholarship addresses the intersection of birth control sabotage and domestic violence. This Comment contends, first, that the recent studies linking birth control sabotage and domestic violence provide a sufficient justification for labeling sabotage as an intentional, fraudulent misrepresentation tort claim. Second, this Comment normatively argues that state legislatures ought to act quickly to criminalize birth control sabotage. As sabotage can now be understood as an act of violence in continuing domestic violence, criminalization and incarceration are crucial in preventing further abuse. While legal remedies for birth control sabotage have been severely limited in the past, creative attorneys and motivated legislators should address this important issue to improve the lives of survivors and their families.

Kaye on DNA and Familial Searching

David H. Kaye (Penn State Law) has posted The Genealogy Detectives: A Constitutional Analysis of 'Familial Searching' (American Criminal Law Review, Vol. 51, No. 1, 2013) on SSRN. Here is the abstract:

“Familial searching” in law enforcement DNA databases has been pilloried as a step “towards eugenics and corruption of blood” and “lifelong genetic surveillance” that is “inconsistent with a basic pillar of American political thought.” Courts have yet to address the issue fully, but several commentators contend that the practice is unwise, unjust, or unconstitutional. This Article examines the more significant constitutional claims. It concludes that although kinship matching should not be implemented simply because it is technologically seductive, neither should it be removed from the realm of permissible law enforcement information gathering on constitutional grounds. In reaching this conclusion, the Article describes the logic of kinship analysis; clarifies the nature of partial-match searching; shows how an advanced system of DNA databases could yield additional, accurate leads in the investigation of both routine and high profile crimes; and why this system, if properly implemented, is compatible with constitutionally protected interests of both convicted offenders and their close relatives.

Cole on Torture, Law, and Policy

David Cole (Georgetown University Law Center) has posted The Taint of Torture: The Roles of Law and Policy in Our Descent to the Dark Side (Houston Law Review, Vol. 49, pp. 53-69, 2012) on SSRN. Here is the abstract:

Was the Bush administration’s decision to employ “enhanced interrogation techniques” a mistake of policy, a violation of law, or both? This essay responds to Philip Zelikow’s insider account of how the decision to use these techniques was reached. The author suggests that while Zelikow makes a strong case that the decision to authorize the CIA to use coercive interrogation tactics was a mistaken policy judgment, it is important not to lose sight of the fact that it was also illegal. The latter conclusion demands a different response than the former. In particular, it underscores the necessity for accountability. The author of this essay makes the case that the policy was in fact illegal, and that the nation must hold the architects of the plan accountable. He also offers brief thoughts on the legal and policy issues surrounding detention and targeted killing in the ongoing conflict with Al Qaeda, stressing that while neither is flatly impermissible in an armed conflict, accountability and democracy concerns demand greater transparency.

Logan on Policing Identity

Wayne A. Logan (Florida State University - College of Law) has posted Policing Identity (Boston University Law Review, Vol. 92, 2012) on SSRN. Here is the abstract:

Identity has long played a critical role in policing: learning “who” an individual is not only affords police knowledge of possible criminal history but also “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit assuming ever greater importance as government databases have become more comprehensive and powerful over time. This Article seeks to remedy the identity crisis that has affected identity evidence. It does so by first surveying the methods historically used by police to identify individuals, ranging from nineteenth century efforts to measure bodies and note physical marks to today’s biometric identifiers. As this history makes clear, the American justice system has not kept pace with this evolution, failing to impose meaningful constraints on police authority to collect and use identity evidence. The Article highlights this shortcoming and offers a remedy, focusing on two central yet unresolved questions: (i) whether and how limits should be placed on the collection and use of legally obtained identity evidence, DNA in particular, and (ii) whether illegally obtained identity evidence should be subject to suppression. In doing so, the Article provides a much-needed analytic framework for courts as they seek to balance social control needs and individual civil liberties.

Starger on Stare Decisis and Criminal Due Process Doctrine

Colin P. Starger (University of Baltimore School of Law) has posted Expanding Stare Decisis (Loyola of Los Angeles Law Review, Vol. 46, (2012 Forthcoming)) on SSRN. Here is the abstract:

Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

Expanding Stare Decisis analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. Maryland – the Court’s landmark 1963 decision that requires prosecutors to disclose favorable evidence to criminal defendants. Last Term, Justice Scalia argued in his Connick v. Thompson concurrence that Brady’s scope does not extend to prosecutorial disclosure of untested evidence that could prove innocence. Though coherent, Scalia’s argument depends on a particularly formal approach to stare decisis and a procedural view of due process. His argument against expanding Brady can be contested by what I term a “justificatory” approach to stare decisis and a competing substantive view of due process. This recent conflict between formal and justificatory stare decisis approaches and competing due process schools reflects a deeper metadoctrinal pattern.

Based on a close reading of over a century of case law, this Article demonstrates how successful justificatory stare decisis arguments have facilitated expansion of criminal due process while formal stare decisis arguments have constrained doctrinal growth. Building on prior work, I illustrate the Brady dialectic and its relationship to stare decisis through graphical “opinion maps” that chart rival lines of majority, concurring, and dissenting opinions. Mapping this key due process territory offers insight on the deeper conflict between substance and procedure in due process jurisprudence as well as a generalizable method for studying the impact of stare decisis on constitutional adjudication.

Serafino on Animal Cruelty Statutes, Double Jeopardy, and Prosecutorial Discretion

Laurie Serafino (Pepperdine University School of Law) has posted No Walk in the Dog Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and Eliminate Unfettered Prosecutorial Discretion (Tennessee Law Review, Vol. 78, 2012) on SSRN. Here is the abstract:

This article evaluates animal abuse and cruelty laws throughout the United States. It demonstrates that, although an emerging trend treats animals more like humans and less like property in some criminal cases and statutes, the laws of many states still adhere to the traditional view of animals as property, causing unique charging and sentencing issues that must be clarified in order to bring predictability and consistency to the law.

In the article, Professor Serafino explores the option of creating a new paradigm in this area, in which animals are treated as a hybrid category of "living property," "legal personhood," or some other type of entity entitled to equal protection, and in which animal cruelty statutes serve greater purposes than to protect property or enforce desirable moral character principles. She also discusses whether the injury of each and every animal can or should constitute a separate offense, and outlines the extent to which double jeopardy principles may apply to bar sentences on multiple counts. She argues that, by failing to legislate in this area, forty-one states have effectively allowed prosecutors unfettered discretion to charge defendants in these cases however they chose. Finally, she explores the challenges faced by courts and legislatures as they grapple with situations of abuse involving multiple animals, providing a comparative analysis of how this issue is being handled in various jurisdictions across the country.

AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public

The announcement follows the jump.

The AALS Section on Criminal Justice will hold a panel during the AALS 2013 Annual Meeting in New Orleans entitled: Technology and Crime: The Future of the Fourth Amendment in Public.

We are soliciting papers to consider for presentation in conjunction with this panel.  Current confirmed speakers on this distinguished panel include Christopher Slobogin, Vanderbilt University Law School, Tracy Meares, Yale Law School, and Orin Kerr, George Washington University School of Law.  The panel will be moderated by Andrew G. Ferguson, UDC David A. Clarke School of Law.

Panel:  Technology and Crime: The Future of the Fourth Amendment in Public

New mass surveillance technologies are changing Fourth Amendment protections in public. Enhanced video cameras, GPS location devices, license plate readers, mobile body scanners, backscatter x-ray vans, facial recognition technology, drones, and satellite imaging, in combination, can all be directed at targeted geographic areas.  Combined with, or replacing, traditional “stop and frisk” or police surveillance tactics, these technologies have the potential to alter Fourth Amendment protections.  At the same time, intelligence-led policing strategies involving crime mapping and analysis have allowed law enforcement to identify areas of crime for targeted police intervention. This panel looks at the constitutional implications of these developments on the expectation of privacy.

Eligibility and Due Date:
Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students and fellows are not eligible to submit.  This call for papers is limited to those who have been teaching for six years or fewer as of July 1, 2012.  The due date for submission is August 15, 2012.  Any paper that has not yet been the subject of an offer of publication by August 15, 2012, is eligible for submission.  

To facilitate anonymous review, please submit papers in electronic form to Professor Giovanna Shay (giovanna.shay@law.wne.edu). The paper should have identifying information contained on a cover sheet only; the cover page will be removed before the paper is distributed for review. The cover sheet should also include the year you began law teaching and a statement that the paper has not yet received any offers of publication.

Registration Fees and Expenses

Call for Papers participants will be responsible for paying their annual meeting registration fee and travel expenses.

Paper Review and Notification of Acceptance

Papers will be selected after review by members of the Criminal Justice Section Executive Committee.  Authors of accepted papers will be notified by November 1, 2012.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Chaidez v. United States: Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.

Cohn on Racial Profiling and the Arizona Immigration Law

Marjorie Cohn (Thomas Jefferson School of Law) has posted Racial Profiling Legalized in Arizona (Columbia Journal of Race and Law, Vol. 1, No. 2, p. 168, 2012) on SSRN. Here is the abstract:

In 2010, Arizona enacted S.B. 1070, which legalizes racial profiling in that state, and effectively converts local law enforcement officials into de facto U.S. Immigration and Customs Enforcement officials. This article argues that the statute is unconstitutional because it violates the Fourth Amendment, is void for vagueness, and violates the Supremacy Clause. S.B. 1070 also suffers from practical deficiencies in that it will harm communities and increase harassment of Latinos. In addition, it runs afoul of universally recognized human rights. Other states have passed laws similar to S.B. 1070. The constitutionality of S.B. 1070 is currently pending before the U.S. Supreme Court, which will issue a decision by the end of its 2011-2012 term. The Court is reviewing an opinion by the U.S. Ninth Circuit Court of Appeals overturning some provisions of S.B. 1070 as violative of the Supremacy Clause.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	270	Implicit Bias in the Courtroom Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, University of Washington - Graduate Department of Psychology, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: March 21, 2012 [3rd last week]
2	267	SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice Deborah Tuerkheimer, DePaul University - College of Law, Date posted to database: February 22, 2012
3	267	The Mosaic Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: April 3, 2012 [new to top ten]
4	253	Ensuring an Impartial Jury in the Age of Social Media Amy J. St. Eve, Michael A. Zuckerman, U.S. District Court Judge, U.S. District Court, Date posted to database: March 13, 2012 [5th last week]
5	250	Misdemeanors Alexandra Natapoff, Loyola Law School Los Angeles, Date posted to database: February 25, 2012 [4th last week]
6	230	The Delaware Death Penalty: An Empirical Study Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells, Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law, Date posted to database: March 11, 2012
7	112	American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: March 28, 2012 [new to top ten]
8	121	Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction) Stuart P. Green, Rutgers, The State University of New Jersey - School of Law-Newark, Date posted to database: March 23, 2012 [10th last week]
9	174	Prisons, Privatization, and the Elusive Employee-Contractor Distinction Alexander Volokh, Emory University - School of Law, Date posted to database: February 25, 2012 [7th last week]
10	127	What Percentage of DOJ FCPA Losses is Acceptable? Mike Koehler, Butler University College of Business, Date posted to database: March 23, 2012 [new to top ten]