CrimProf Blog

"Juror Says Panel Had Little Doubt on Sandusky’s Guilt"

From the New York Times. In part:

Harper said there was little debate and even less doubt in the jury room about Sandusky’s guilt. As emotional and wrenching as the accounts were from the eight victims who testified, Harper said the grimmest and most significant testimony came from Mike McQueary, then a graduate assistant, who said he interrupted a sexual assault by his former coach against a young boy in the showers at the university’s football center.

Forell on Female Convicts in Early 19th Century Australia

Caroline Anne Forell (University of Oregon - School of Law) has posted Convicts, Thieves, Domestics, and Wives in Colonial Australia: The Rebellious Lives of Ellen Murphy and Jane New on SSRN. Here is the abstract:

This Article examines the lives of two female convicts who rebelled against the law and the Australian penal system in the early nineteenth century. It follows Ellen Murphy and Jane New from their first arrests through their experiences with and exits from the penal system. As thieves, convicts, domestics, and wives, Ellen and Jane interacted repeatedly with the law. Both the notorious Jane (who was the subject of a habeas corpus action in In re Jane New), and the more representative Ellen, began thieving as young teenagers in the teeming cities of England. The law arrested, tried, and convicted them. Next it transported them to Van Diemen’s Land (now, Tasmania). It then unsuccessfully attempted to manage their lives.

The law influenced convict women’s choices in more overt ways than it did free women although, as this Article discusses, many similarities existed between the legal disabilities imposed on both groups and, on occasion, as with Jane New, the law doubly disabled convict women because they were assigned to their husbands. Nevertheless, Ellen and Jane’s interactions with the law illustrate how convict women were able to make meaningful choices even in the heavily regulated penal systems of Governors Arthur of Van Diemen’s Land and Darling of New South Wales.

Rapping on Prosecutors' Duty Not to Overburden the Justice System

Jonathan Rapping (Atlanta's John Marshall Law School) has posted Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect (Washburn Law Journal, Vol. 51, 2012) on SSRN. Here is the abstract:

Every day, all across America, prosecutors charge people with crimes that the criminal justice system is not sufficiently funded to handle. Most of the accused are indigent citizens forced to rely on the services of over-burdened public defenders. In a system that lacks the resources to resolve these cases at trial, or even to spend the requisite capital at the pre-trial stage, prosecutors have found creative ways to process the vast majority of these cases without the expense associated with providing the accused actual justice. With an ever-expanding list of behaviors and actions deemed criminal, and increasingly harsh sentencing options for these offenses, prosecutors are able to put pressure on most criminal defendants to give up many of their most fundamental Constitutional rights and plead guilty to avoid potentially draconian outcomes.

While many prosecutors see this as a cheap and effective way to justly punish wrongdoers, this course of action has largely replaced our reliance on principles of justice such as the right to counsel, the right to trial by jury, and the role of an independent judiciary determining a punishment that fits the crime. By undermining basic principles of justice so crucial to our legal system, one might ask whether this way of handling criminal cases is antithetical to the prosecutor’s critical role as minister of justice. 

This article argues that when a prosecutor charges more cases than he knows the system can justly resolve due to resource limitations, he violates his ethical obligation to seek justice. It further argues that many prosecutors fail to appreciate how they violate their duty to justice because of a culture that promotes this behavior. Finally, it suggests that prosecutors must be trained to resist these systemic pressures, and to act in accordance with values consistent with justice, if they are to fulfill their intended role in the criminal justice system.

Opinion applying revision to crack sentences retroactively

Justice Breyer delivered the opinion for the Court. Justice Scalia filed a dissenting opinion in which the Chief Justice and Justices Thomas and Alito joined.

Opinion applying Apprendi to fines

Justice Sotomayor has the opinion for the Court in Southern Union Co. v. United States. Justice Breyer filed a dissenting opinion in which Justices Kennedy and Alito joined.

Juvenile Justice Blog

Tamar Birckhead at UNC School of Law has created a juvenile justice blog. She writes, "The purpose of this blog is to provide a central source for the latest news, information, scholarship, and commentary on issues related to juvenile justice in the United States."

-AJK

Hollander-Blumoff on the Psychology of Self-Control

Rebecca E. Hollander-Blumoff (Washington University in Saint Louis - School of Law) has posted Crime, Punishment, and the Psychology of Self-Control (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN. Here is the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment. 

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

Covey on Death in Prison

Russell D. Covey (Georgia State University College of Law) has posted Death in Prison: The Right Death Penalty Compromise (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:

The death penalty today provides virtually none of the benefits its advocates proffer as justifications for its existence. The tiny number of death sentences imposed, the even tinier number actually carried out, the enormous drain on public resources, and the decade-long delays that inevitably occur thoroughly undermine any deterrent or retributive benefits today’s death penalty might otherwise provide. In this paper, I argue for a compromise position that promises to better serve penal purposes and that will save states money at the same time: abandon the current dysfunctional death penalty in favor of a new ultimate sentence: death-in-prison. 

A sentence of death-in-prison would be exactly what it says: a prisoner sentenced to death-in-prison would remain in prison until he or she died. Death-in-prison would be a kind of hybrid sentence: like life in prison without possibility of parole (“LWOP”), death-in-prison would entail lifetime incarceration but no affirmative state action to terminate the prisoner’s life, but death-in-prison would also share several features of the conventional death penalty. As with the conventional death penalty, a special penalty trial would be needed to impose the ultimate death-in-prison sentence. In addition, persons sentenced to death-in-prison might continue to serve their sentences in special segregated “death rows.” Death-in-prison sentences would also be imposed with all the magisterial weightiness of conventional death sentences. Persons so sentenced would be told, like those in conventional death penalty states, that the punishment for their crime is the ultimate one — death. If adopted, death-in-prison would reduce criminal justice expenditures, facilitate community healing, discourage divisive and ineffective commutation campaigns, and diminish wrongful executions, without forgoing what is arguably the greatest benefit of the current death penalty: the expressive value of imposing a “death” rather than a “life” sentence on highly culpable offenders.

"ACLU report: Puerto Rico police abusing power"

From Jurist:

The American Civil Liberties Union [advocacy website] on Tuesday released areport [text, PDF; press release] alleging widespread abuses by the Puerto Rico Police Department (PRPD) [official website, in Spanish]. The report documents numerous instances excessive force, sometimes deadly, to suppress speech, subdue protesters, and target ethnic and racial minorities. It also alleges a culture of impunity among the police and a failure to police crimes of abuse and sexual assault.

"Making Sense of Williams v. Illinois"

Kent Scheidegger has this post at Crime and Consequences:

Parts II and III of Justice Alito's plurality opinion are actively opposed by a majority of the Court, so relying on them to get evidence in is risky, to put it mildly.  Let's focus on Part IV.  For the proposition that the report in this case is not "testimonial," the plurality says the report was not testimonial because it was not focused on a particular suspect, while Justice Thomas's concurrence says it is not testimonial because it lacked the formality associated with such things as depositions, affidavits, or certificates of fact.

Which of these is the narrower grounds?  I have no idea.

"Restraining Order Bans Seemingly Disturbed Man from Going to the Town in Which His Sister Lives"

Eugene Volokh has this post at The Volokh Conspiracy. In part:

That was the order in today’s N.G. v. J.P. (N.J. Super. Ct. App. Div. June 18, 2012); the appellate court upheld it, though it sent the case back down to trial court to carve out exceptions for “church attendance and doctor’s visits.” The defendant seemed to be rather disturbed, and to have done disturbing things; and he has shown an unwillingness to comply with earlier, narrower orders. Still, it seems to me that this sort of injunction is going rather further than restraining orders ought to go.

"Grand jury: No indictment against father who killed daughter's alleged abuser"

From cnn.com:

A Lavaca County, Texas, grand jury did not return an indictment against a father who killed a man he found allegedly sexually abusing his daughter, officials said Tuesday at a press conference in Hallettsville, Texas.

. . .

The father stopped the alleged abuser, and then pounded him repeatedly in the head, killing him, authorities said.

Drinan on Clemency

Cara H. Drinan (Catholic University of America) has posted Clemency in a Time of Crisis (28 Georgia State L. Rev. 1123 (2012), Georgia State University Law Review, Forthcoming) on SSRN. Here is the abstract:

At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at the state level today. Despite judicial and scholarly support for the role of clemency in our criminal justice system, state clemency practice fails to live up to its theoretical justifications. Part II of this Article makes the case for a policy of vigorous clemency on both theoretical and practical grounds. Not only was clemency designed, at least in part, to serve an error-correcting function, but also, today, there are several reasons why state executive actors may be able to use their clemency power robustly without suffering politically. In Part III, I address questions of implementation. If state executive actors are to pursue commutations of sentences or pardons, which inmates should be the subject of such pursuits? How can those executive actors best be insulated from political pressure? In sum, this Article argues that revitalizing state clemency is a valuable and viable component of broader criminal justice reform.

Today's criminal law/procedure cert grant

Issue summary from ScotusBlog, which also links to papers:

• Smith v. United States: the burden of persuasion when a defendant withdraws from a conspiracy.

"Clemens found not guilty in perjury trial"

From cnn.com:

Famed baseball pitcher Roger Clemens was found not guilty Monday of lying to Congress during an investigation of steroid use among major league players.

The case against Clemens involved one count of obstruction of Congress, three counts of making false statements and two counts of perjury. He was found not guilty on all counts.

Grossman on Hot Crimes

Steven P. Grossman (University of Baltimore - School of Law) has posted Hot Crimes: A Study in Excess (Creighton Law Review, Vol. 45, No. 1, 2011-2012, pp. 33-86) on SSRN. Here is the abstract:

In the fall of 1984, after a jury acquitted two parents she had accused of sexually molesting their children and before she was forced to drop charges against the twenty-one remaining defendants she had accused of child sex abuse related charges, the chief prosecutor in Jordan, Minnesota said that she was "sick to death of things like the presumption of innocence. After the tragic mass murders at Columbine High School in 1999, Mothers Against Drunk Driving ("MADD") issued a press release classifying the "murders as 'insignificant' compared to those killed in alcohol-related traffic accidents.

What do these two announcements have in common? This Article suggests that each is but one manifestation of the pathology that exists regarding certain crimes and the reaction to them on the part of the public, the media, legislative bodies, law enforcement authorities, and ultimately members of the judicial system.

 For a long time, crimes such as these were either not treated with the seriousness they deserve (i.e. drunk driving) or the extent of their prevalence in society was significantly underestimated (i.e. child sex abuse). Fortunately, in ways this Article discusses, the previous undervaluation or under appreciation of these crimes was brought to the attention of different elements of American society, and people were educated about the nature of these crimes and the degree of harm they cause. As a result of this heightened attention, the public and particularly victims' rights groups began to call for more action in preventing and punishing these crimes. Legislatures on both the state and federal levels responded to these calls with new laws designed to accomplish both goals. Prosecutors investigated these crimes with more urgency and charged and prosecuted them more strictly. Judges began to sentence individuals convicted of these offenses more harshly. In other words, each affected group in society took action in an appropriate way to deal with the dangers that child sex abusers and drunk drivers posed.

There came a point, however, when reaction turned into over-reaction and remedial measures became excessive. This Article examines some of that over-reaction, seeks to explain why it occurs with certain crimes, fleshes out the lessons to be learned from the overreactions, and offers suggestions on how to avoid recurrences of this type of social pathology. For the most part, this Article uses those crimes related to the serious problems that child sex abusers and drunk drivers pose as illustrations of how crimes become hot crimes and then how such crimes are treated.

Section II of this Article discusses the genesis of a hot crime, what factors appear to be needed for a crime to become hot, and how each factor contributes to the way in which such crimes are ultimately treated. Section III looks at the types of excesses that hot crimes breed. Section IV examines the kind of flaws in society's responses to hot crimes that breed these excesses, Section V discusses how the concept that has been referred to as moral panic explains the hot crimes phenomenon. Lastly, Section VI explores ways in which society, particularly law enforcement and legal institutions, can respond to serious crimes without the need to react with excessive and arguably unconstitutional measures.

Dissent from denial of cert where defendant tried in absentia

Justice Sotomayor dissents in Fairey v. Tucker.

Opinion permitting expert testimony based on reports barred by Crawford

The case is Williams v. Illinois. Justice Alito wrote for a four-Justice plurality. Justice Breyer joined that opinion and also wrote a concurring opinion. Justice Thomas concurred in the result. Justice Kagan filed a dissenting opinion, joined by Justices Scalia, Ginsburg, and Sotomayor.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	907	From Real-Time Intercepts to Stored Records: Why Encryption Drives the Government to Seek Access to the Cloud  Peter P. Swire,  Ohio State University (OSU) - Michael E. Moritz College of Law,  Date posted to database: April 12, 2012 [new to top ten]
2	628	The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues  Kai Ambos,  Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: March 29, 2012 [1st last week]
3	542	The Harmful Side Effects of Drug Prohibition Randy E. Barnett,  Georgetown University Law Center,  Date posted to database: March 13, 2012 [2nd last week]
4	518	Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right  Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,  University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,  Date posted to database: April 30, 2012 [new to top ten]
5	405	Corporate Shams  Joshua D. Blank, Nancy C. Staudt,  New York University School of Law, USC Law School,  Date posted to database: April 5, 2012 [3rd last week]
6	364	The Mosaic Theory of the Fourth Amendment  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: April 3, 2012 [4th last week]
7	194	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 [5th last week]
8	139	The 2009 NAS Forensic Science Report: A Literature Review  Paul C. Giannelli,  Case Western Reserve University - School of Law,  Date posted to database: April 12, 2012
9	155	Predictive Policing: The Future of Reasonable Suspicion  Andrew Guthrie Ferguson,  UDC David A. Clarke School of Law,  Date posted to database: May 2, 2012 [new to top ten]
10	145	Flow Chart for Hearsay and the Confrontation Clause 'Crawford Through Bernadyn'  Lynn McLain,  University of Baltimore - School of Law,  Date posted to database: March 29, 2012 [9th last week]