June 9, 2012
Dervan & Edkins on an Empirical Study of Plea Bargaining's Innocence Problem
Lucian E. Dervan (pictured) and Vanessa Edkins (Southern Illinois University School of Law and Florida Institute of Technology) have posted The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem on SSRN. Here is the abstract:
In 1989, Ada JoAnn Taylor was accused of murder and presented with stark options. If she pleaded guilty, she would be rewarded with a sentence of ten to forty years in prison. If, however, she proceeded to trial and was convicted, she would likely spend the rest of her life behind bars. Over a thousand miles away in Florida and more than twenty years later, a college student was accused of cheating and presented with her own incentives to admit wrongdoing and save the university the time and expense of proceeding before a disciplinary review board. Both women decided the incentives were enticing and pleaded guilty.
That Taylor and the college student both pleaded guilty is not the only similarity between the cases. Both were also innocent of the offenses for which they had been accused. After serving nineteen years in prison, Taylor was exonerated after DNA testing proved that neither she nor any of the other five defendants who pleaded guilty in her case were involved in the murder. As for the college student, her innocence is assured by the fact that, unbeknownst to her, she was actually part of an innovative new study into plea bargaining and innocence. The study, conducted by the authors, involving dozens of college students, and taking place over several months, not only recreated the innocent defendant’s dilemma experienced by Taylor, but revealed that plea bargaining’s innocence problem is not isolated to an obscure and rare set of cases.
Strikingly, the authors’ study found that over half of the participants were willing to falsely admit guilt in return for a perceived benefit. This finding not only brings finality to the long-standing debate regarding the possible extent of plea bargaining’s innocence problem, but also ignites a fundamental constitutional question regarding an institution the Supreme Court reluctantly approved of in 1970 in return for an assurance it would not be used to induce innocent defendants to falsely admit guilt.
June 8, 2012
Joy on Missouri's Public Defender System
Peter A. Joy (Washington University in Saint Louis - School of Law) has posted Rationing Justice by Rationing Lawyers (Washington University Journal of Law and Policy, Vol. 37, No. 205, 2011) on SSRN. Here is the abstract:
This article focuses on the crisis in Missouri's public defender system due to excessive caseloads and how the rationing of lawyers limits access to justice for the accused.
Burns on Counterfactuals under AEDPA
Amy Knight Burns has posted Woulda, Coulda, Shoulda: The Court's Wrong Turn in Counterfactual Analysis Under AEDPA (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:
Courts routinely engage in counterfactual analysis – considering what might have been, had things been different – in a variety of legal contexts (such as determining causation for tort claims and establishing damages). But in the last two terms, the Supreme Court has issued several opinions restricting the use of counterfactual reasoning in the context of federal habeas corpus review of state criminal convictions (under §2254(d) of Antiterrorism and Effective Death Penalty Act, or AEDPA). Specifically, the Court has refused to consider what state courts might have done if presented with a slightly different set of facts or law. This practice leaves a group of petitioners without redress for acknowledged constitutional violations.
This Note presents a novel framework for categorizing the modes of counterfactual reasoning in which courts engage. It then analyzes the Court’s decision in Cullen v. Pinholster and related opinions, examining them for possible explanations for the Court’s departure in habeas cases from its usual practice of accepting the need for counterfactuals. It concludes that the Court has given no clear reason why it should depart from the usual background principle that counterfactual reasoning is a valid method of analysis. Finally, it proposes a more coherent scheme for addressing counterfactuals in habeas proceedings.
June 7, 2012
"Ex-Aide to Senator Pleads Guilty in Scheme That Snared Only Him"
From the New York Times:
If Mr. Hampton’s plea deal with federal prosecutors provides a cautionary tale about the abuse of political power, it is a complicated one that has left a number of legal and political observers befuddled by the Justice Department’s contrasting treatment of Mr. Hampton and his onetime boss.
Mr. Hampton faces up to one year in prison and a $100,000 fine after admitting that he lobbied Mr. Ensign, a Nevada Republican, within days of leaving his Senate staff — in violation of a federal “cooling off” period that prohibits such contacts for a year.
Mr. Ensign, for his part, has returned to his veterinary practice in Nevada and told an interviewer in February that he was “having a ball” caring for animals again. He has not been charged by the Justice Department, despite findings last year by Senate ethics investigators that his own role in directing the lobbying scheme broke the law.
"Muslim rights group files lawsuit challenging NYPD surveillance program"
The story is at Jurist:
A Muslim rights group filed a lawsuit [complaint, PDF; press release] in the US District Court for the District of New Jersey [official website] on Wednesday seeking to end the New York Police Department (NYPD) [official website] controversial surveillance program, which allegedly targets individuals based on religious affiliation. The complaint, filed by the Muslim Advocates [advocacy website] alleges that "the NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets." The Muslim Advocates allege that the NYPD has engaged in surveillance of Muslim schools, including kindergarten and elementary schools, as well as entire communities, including the Muslim community in Newark, New Jersey. The lawsuit seeks injunctive relief barring the NYPD from continuing surveillance operations based solely on religion.
Roberts & Hunter on the Human Rights Revolution in Criminal Evidence and Procedure
Paul Roberts and Jill Hunter (University of Nottingham and affiliation not provided to SSRN) have posted Introduction - The Human Rights Revolution in Criminal Evidence and Procedure (CRIMINAL EVIDENCE AND HUMAN RIGHTS: REIMAGINING COMMON LAW PROCEDUREAL TRADITIONS, P. Roberts and J. Hunter, eds., Hart Publishing, 2012) on SSRN. Here is the abstract:
Criminal procedure in the common law world is being recast in the image of human rights. The cumulative impact of human rights laws, both international and domestic, presages a revolution in common law procedural traditions.
This is the thematic introductory chapter to Roberts and Hunter (eds), Criminal Evidence and Human Rights: Reimagining Common Law Procedureal Traditions (Hart Publishing, 2012). The edited collection comprises 16 new essays exploring various aspects of the ‘human rights revolution’ in criminal evidence and procedure in Australia, Canada, England and Wales, Hong Kong, Malaysia, New Zealand, Northern Ireland, the Republic of Ireland, Singapore, Scotland, South Africa and the USA.
This prefatory essay summarises the main themes and topics developed in each subsequent chapter, and indicates their relationship to the project's overarching concept of 'human rights revolution' and its methodological foundations in 'common law comparativism.'
Harcourt on Punitive Preventive Justice
Bernard E. Harcourt (University of Chicago - Law School) has posted Punitive Preventive Justice: A Critique (Forthcoming in Andrew Ashworth and Lucia Zedner, eds., PREVENTIVE JUSTICE, Oxford University Press) on SSRN. Here is the abstract:
This book chapter critically examines punitive preventive measures, such as preventive detention for dangerous individuals, stop-and-frisks on the street, and order-maintenance policing. After reviewing the traditional concern expressed about punitive preventive practices, the chapter investigates the empirical evidence in support of such measures, concluding that the purported need for these measures is, on balance, factually overstated and generally unproven. But the empirical problems foreground a deeper theoretical difficulty with punitive preventive justice, namely that the modern approach to punitive prevention relies predominantly on economic cost-benefit analytic methods that effectively displace political debate and contestation. Like earlier punitive preventive interventions — such as eugenics or phrenology — the modern approach is grounded on technical, scientific knowledge that privileges efficiency over most other political values and, in the process, tends to displace politics. The modern approach claims to be objective, apolitical, and neutral; it claims to be merely pursuing the most efficient policy option given an agreed-upon narrow objective. But it inevitably reintroduces political values and choices in its outputs. The approach also obfuscates criticism by making it harder for the layman to identify the political values embedded in the technical models. In the end, it insidiously degrades the public sphere and masks political redistribution. For these reasons, the chapter argues against punitive preventive justice.
June 6, 2012
Denno on Courts' Increasing Consideration of Behaviorial Genetics Evidence
Deborah W. Denno (Fordham University School of Law) has posted Courts’ Increasing Consideration of Behavioral Genetics Evidence in Criminal Cases: Results of a Longitudinal Study (Michigan State Law Review, Vol. 2011, pp. 967-1047, 2011) on SSRN. Here is the abstract:
This article, which is part of a symposium honoring David Baldus, presents a unique study of all criminal cases (totaling thirty-three) that addressed behavioral genetics evidence from June 1, 2007, to July 1, 2011. The study builds upon this author’s prior research on all criminal cases (totaling forty-eight) that used such evidence during the preceding thirteen years (1994-2007). This combined collection of eighty-one criminal cases employing behavioral genetics evidence offers a rich context for determining how the criminal justice system has been handling genetics factors for nearly two decades, but also why the last four years reveal particularly important discoveries. Results suggest that not only is much of the controversy surrounding behavioral genetics and crime unwarranted, the use of such evidence has been misunderstood.
Within the last four years, for example, behavioral genetics evidence has appeared to have been applied almost exclusively as mitigating evidence in death penalty cases and primarily in two ways to support claims of ineffective assistance of counsel for neglecting such evidence or to provide proof and diagnosis of a defendant’s mitigating condition. Strikingly, this study found no case during 2007-2011 in which behavioral genetics factors were introduced by the State, much less used as aggravating evidence or as indications that a defendant would be a future danger to others. These findings debunk arguments that such evidence will be legally detrimental to a defendant. Indeed, in most cases, the evidence is so tightly intertwined with other factors in a defendant’s life that the particular impact of behavioral genetics can be difficult to isolate. This study’s results suggest that, at the very least, behavioral genetics evidence has no decipherable impact on a defendant’s case or, at most, it becomes an effective tool along with a range of other kinds of variables in rendering a defendant ineligible for the death penalty. Courts appear willing to accept behavioral genetics evidence as part of a defendant’s mitigation story, even if genetics renders that story a more troubling one in terms of the defendant’s purported propensities. The last four years also showed a number of break-a-way trends from earlier years. For example, there were substantially more cases that incorporated behavioral genetics evidence of any kind. In addition, there was a clear increase in the number of cases in which defendants submitted proof of a genetic propensity for alcoholism and/or substance abuse.
Overall, this article’s research shows that courts accept behavioral genetics evidence in the majority of cases in which defense attorneys attempt to offer it. The coming years will reveal whether such trends will be affected by Cullen v. Pinholster, the Supreme Court’s recent decision restricting prisoners’ efforts to seek federal habeas relief under AEDPA. Regardless, behavioral genetics evidence seems, on the surface, to have reached a status commensurate with other kinds of evidence without the baggage of abuse with which it has typically been associated.
Lubet on Executions in Virginia, 1859
Steven Lubet (Northwestern University - School of Law) has posted Execution in Virginia, 1859: The Trials of Green and Copeland on SSRN. Here is the abstract:
This essay tells the story of Shields Green and John Copeland, two black men who joined John Brown’s raid on Harper’s Ferry. Along with Brown and several others, Green and Copeland were taken prisoner in the aftermath of the failed insurrection, and they were brought to trial in nearby Charlestown on charges of murder and treason. Unlike Brown, who was treated respectfully by his captors, Green and Copeland were handled roughly. Copeland in particular was subjected to a harsh interrogation that was criticized even by pro-slavery Democrats in the North. The black prisoners did, however, have the benefit of a remarkable attorney – George Sennott of Boston. Unlike virtually all of the other lawyers at the Harper’s Ferry trials, Sennott boldly condemned slavery and announced that he was honored to defend the black insurrectionists. Sennott also employed a creative legal strategy in which he raised the Dred Scott decision as a defense to the treason charge. If black men could not be citizens, he argued, they likewise could not be guilty of treason. The tactic was only partially successful. Green and Copeland were acquitted of treason but convicted nonetheless of murder. Even after pronouncing the death penalty, the Virginia authorities continued their racist treatment of the prisoners. Green and Copeland were executed separately from their white comrades – segregation on the gallows – and their corpses were turned over to medical students for dissection, despite the frantic efforts of Copeland’s family to retrieve his body for decent burial. Throughout his ordeal, and right up until the time he faced the noose, John Copeland held to his ideals. On the morning of his execution he wrote a moving letter to his parents in which he expressed devotion to the “holy cause” for which he would die, while condemning "the demands of the cruel and unjust monster Slavery.”
June 5, 2012
Perceived Procedural Fairness and Compliance (Kolber)
For those interested in "empirical desert" (see, e.g., here and here), there's a new study on SSRN that is pertinent to the subject, yet likely to slip through the radar of many criminal law scholars. Here is the abstract:
JUAN P. MENDOZA, VU University Amsterdam - Faculty of Economics and Business Administration
HENRI C. DEKKER, VU University Amsterdam - Department of Accounting
J. WIELHOUWER, VU University Amsterdam
Financial intermediaries are facing stricter regulations. However, little is known about the factors that affect their compliance behavior in practice. Based on a unique dataset provided by the Authority for the Financial Markets in The Netherlands, we examine how non-compliance (i.e., number of law violations) relates to financial intermediaries’ perceptions of procedural fairness, as indicated by the extent to which regulation is perceived as overly extensive, fast-changing, and obstructive. Our results support the idea that perceived procedural fairness motivates firms to acquire knowledge of new regulations, which in turn enables them to achieve higher levels of compliance.
Big Push Toward Limiting Marijuana Arrests in NYC (Kolber)
Via the NYT:
The New York Police Department, the mayor and the city’s top prosecutors on Monday endorsed a proposal to decriminalize the open possession of small amounts of marijuana, giving an unexpected lift to an effort by Gov. Andrew M. Cuomo to cut down on the number of people arrested as a result of police stops.
. . .
The support expressed by Mr. Bloomberg, prosecutors and police officials is likely to carry significant weight in the Republican-led State Senate, which is the key obstacle to passage of the bill in Albany during this year’s legislative session.
. . .
Mr. Cuomo, a Democrat, framed the issue as one of racial justice as well as common sense, saying that the police in New York City were wasting time, resources and good will making tens of thousands of unnecessary arrests. Possession of small amounts of marijuana is a crime only if the marijuana is in public view or if it is being smoked in public, but many of the marijuana possession arrests have been occurring when the police order someone stopped to empty his or her pockets, making the marijuana visible — a phenomenon the governor called an “aggravated complication” of the stop-and-frisk practice.
June 4, 2012
Wexler on a Therapeutic Jurisprudence "Code" of Proposed Criminal Processes and Practices
David B. Wexler (University of Puerto Rico - School of Law) has posted New Wine in New Bottles: The Need to Sketch a Therapeutic Jurisprudence 'Code' of Proposed Criminal Processes and Practices on SSRN. Here is the abstract:
This essay forms the basis of a presentation at Balliol College, Oxford University, at the International Symposium on Therapeutic Jurisprudence and Problem-Solving Justice.
Although therapeutic jurisprudence( TJ) actually originated outside the context of problem-solving courts, TJ in practice remains closely associated with such courts, probably because their structure invites the use of a style of judging endorsed by the TJ literature. Recently, however, for economic and other reasons, there has been an interest in “mainstreaming” TJ and related approaches to judging. For that to occur, we need to examine the governing “legal landscapes” (legal rules and legal procedures) in mainstream criminal courts to see how “TJ-friendly “– or unfriendly — they may be. We may conceptualize the principles of TJ judging as a kind of “liquid,” and can look at the operative legal structures as “bottles,” An analysis of varying legal provisions will indicate how much of the TJ liquid can be poured into the assorted bottles. This examination can lead to proposing a TJ “code” of proposed criminal processes, together with a commentary explaining how, under the given suggested structures, the law can be administered to maximize the use of TJ judging principles. In the present essay, I concentrate mostly (but not exclusively) on US law, although the coverage is quite spotty, and a state-by-state TJ look at relevant criminal processes is very much in order. Moreover, as TJ is now quite international in scope, my hope is that the exercise might be undertaken as well in other jurisdictions, and that the result may be the creation of a rich body of TJ thinking in a comparative law context.
Today's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers:
- Bailey v. United States: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
Qualified immunity for arrest on probable cause notwithstanding First Amendment objection
Justice Thomas wrote the opinion for the Court in Reichle v. Howards, noting the unsettled state of the law at the time of the arrest. Justice Ginsburg, joined by Justice Breyer, concurred in the judgment. Justice Kagan took no part in the case.