CrimProf Blog

Barkow on Prosecutorial Administration

Rachel E. Barkow (New York University (NYU) - School of Law) has posted Prosecutorial Administration on SSRN. Here is the abstract:

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws. 

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter. 

This article describes the current regime of “prosecutorial administration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction. It focuses on three areas of criminal justice policy – corrections, clemency, and forensics – and describes how these matters came under the aegis of the Department without much concern about the conflicts they would create with the Department’s law enforcement mission. It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases. As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as perceived by the Department’s prosecutors) will dominate. 

Thus, if decisions about corrections, forensics, and clemency are being made by prosecutors – and thus through the lens of what would be good for prosecutors and their cases – it is possible that these decisions are not accounting for what would be good policy overall, taking into account interests other than law enforcement. Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they are focused on the short-term pressure of dealing with current cases. 

The article thus turns to the question of how institutional design could help create more of a balanced approach in these areas that is not so tilted to law enforcement concerns. After making the case that institutional change is feasible in at least some areas, the article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.

Fagan, Davies & Carlis on Race and Selective Enforcement in Public Housing

Jeffrey Fagan (pictured), Garth Davies and Adam Carlis (Columbia Law School , Simon Fraser University (SFU) - School of Criminology and Columbia University - Law School) have posted Race and Selective Enforcement in Public Housing on SSRN. Here is the abstract:

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop.

We use a case-control design to identify the effects of living in one of New York City’s 330 public housing developments on the probability of stop, frisk and arrest from 2004-11. We find that the incidence rate ratio for trespass stops and arrests is more than two times greater in public housing than in the immediate surrounding neighborhoods. We decompose these effects using first differences models and find that the difference in percent Black and Hispanic populations in public housing compared to the surrounding area predicts the disparity in trespass enforcement and enforcement of other criminal law violations. The pattern of racially selective enforcement suggests the potential for systemic violations of the Fourteenth Amendment’s prohibition on racial discrimination.

Fettig on Applying Leon to Government Reliance on Wiretap Orders

Derik T. Fettig (Hamline University School of Law) has posted When 'Good Faith' Makes Good Sense: Applying Leon’s Exception to the Exclusionary Rule to the Government’s Reasonable Reliance on Title III Wiretap Orders (Harvard Journal on Legislation, Vol. 49, p. 373, 2012) on SSRN. Here is the abstract:

The good faith exception to the exclusionary rule, as set out by the Supreme Court in United States v. Leon, is well established when the government relies on a traditional search warrant. Its applicability to the government’s reliance on wiretap orders issued under Title III, the federal wiretap law, remains an open question, however. While there is a circuit split on the issue, commentators have uniformly opposed application of the good faith exception in Title III cases. By contrast, this Article makes a comprehensive case for a good faith exception for the government’s reasonable reliance on Title III wiretap orders. First, this Article briefly outlines Title III’s suppression remedy, the law related to the exclusionary rule outside the wiretap context, and the circuit split over application of the good faith exception in Title III wiretap cases. Next, this Article analyzes the current divide in the courts and considers the arguments of commentators opposed to a good faith exception in wiretap cases. It concludes that the text and legislative history of Title III support application of the good faith exception but acknowledges that outcome is not clear under the current version of the statute. Thus, this Article concludes by examining the normative and practical implications of a good faith amendment to Title III. It argues that the good faith exception is more applicable to reliance on wiretap orders than reliance on traditional search warrants, in part due to the more detailed requirements for the government to obtain authorization for electronic surveillance. It also addresses specific concerns raised by courts and commentators and explains why inclusion of a good faith amendment in Title III will not lead to increased government wiretapping or an erosion of Title III’s suppression remedy.

Smyth on Holistic Defense in a Post-Padilla World

J. McGregor Smyth Jr. has posted 'Collateral' No More — The Practical Imperative for Holistic Defense in a Post-Padilla World...Or, How to Achieve Consistently Better Results for Clients (St. Louis University Public Law Review, Vol. 31, p. 139, 2011) on SSRN. Here is the abstract:

The Supreme Court’s seminal decision in Padilla v. Kentucky capped over a decade of increasing focus on the so-called “collateral” consequences of criminal proceedings. The Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis in fact reaches far beyond advice on immigration penalties, extending to any and all serious and likely penalties intimately related to the criminal charges.

The most powerful legacy of the Padilla decision, however, is not its legal analysis of the duties of defense counsel, or even its repudiation of the legal theory of “collateral” consequences, at least in the context of the Sixth Amendment. The key to understanding the decision’s impact is much more basic — Jose Padilla is a man, not a case. Padilla reminds us of the advocate’s most important and effective strategy: humanizing the person he or she represents.

Padilla did not change our clients’ needs. Neither did it change the disturbing, lifetime impact of a single criminal charge. What it gave us is leverage — a powerful new constitutional leverage for promoting institutional change, increasing resources, and improving individual advocacy. A previous article (http://ssrn.com/abstract=2002260) laid out the first detailed legal analysis of the application of Padilla to a broad set of penalties beyond deportation. This Article serves as an advocacy companion, responding to the “embarrassing call to action” posed by Justice Alito’s recognition of widespread practice deficiencies. In short, this Article outlines a framework for how defenders can and should use Padilla as leverage to get better results.

Any discussion of changing defense practices must squarely address why defense attorneys must approach their work in a new way and how they can do it in our high-volume reality. Defenders must know that this approach works for clients, works for their practice, and is feasible. Part I discusses the constitutional duties mandated by Padilla v. Kentucky and how embracing its most important lesson about great advocacy will drive and inspire better defense practice. Recognizing that constitutional mandates never sufficiently motivate change, Part II addresses the why, outlining the devastating impact of criminal charges on families and the measurable, improved outcomes that result from integrating knowledge of this damage into every stage of defense strategy. 

Part III tackles the difficult question of how. Building on nearly fifteen years of proven results from an integrated model of defense services, this section details strategies for using knowledge of clients and these “collateral” consequences to obtain better outcomes in criminal cases from bail to plea to sentencing, manage risk, obtain more equitable discovery, and build better relationships with clients. Our high-volume criminal justice system, defined by assembly-line pleas to minor offenses, tries its best to reduce people to defendants and cases and avoid any acknowledgment of the true damage it inflicts daily. The Supreme Court's reminder that the client must be the central focus of defense advocacy lays the foundation for a more robust, holistic vision of the defense function. Part IV discusses the imperative for holistic defense in a post-Padilla world and outlines one proven model.

"Federal judge upholds Arizona immigration law"

From Jurist:

A judge for the US District Court for the District of Arizona [official website] on Wednesday upheld [opinion, PDF] a controversial provision of Arizona's immigration law[SB 1070, PDF] that requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. Judge Susan Bolton, after hearing arguments [JURIST report] on the law in August, denied the plaintiff's request for a preliminary injunction in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report] which upheld the provision. Arizona Governor Jan Brewer [official website] praised [press release] the court's ruling, saying this "most critical section" of the law will "empower state and local law enforcement." Alessandra Soler, executive director of the American Civil Liberties Union of Arizona (ACLU) [advocacy website], expressed concern [press release] over the ruling.

"Two District Court Rulings That Cell-Site Data Not Protected Under the Fourth Amendment"

Orin Kerr has this post at The Volokh Conspiracy. 

"Informants as Pawns in the War on Drugs"

This post is at Talk Left, discussing inter alia an article at The New Yorker and another from The New York Times Magazine.

Markoff on the Myth of the Corporate Death Penalty

Gabriel Markoff has posted Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century on SSRN. Here is the abstract:

The conventional wisdom states that prosecuting corporations can subject them to terrible collateral consequences that risk putting them out of business and causing massive social and economic harm. Under this viewpoint, which has come to dominate the literature following the demise of Arthur Andersen after that firm’s prosecution in the wake of the Enron scandal, even a criminal indictment can be a “corporate death penalty.” The Department of Justice (“DOJ”) has implicitly accepted this view by declining to prosecute many large companies in favor of using criminal settlements called deferred prosecution agreements, or “DPAs.” Yet, there is no evidence to support the existence of the “Andersen Effect” and the much-hyped corporate death penalty. Indeed, no one has ever empirically studied what happens to companies after conviction. In this Article, I do just that. Using the database of organizational convictions made publicly available by Professor Brandon Garrett, I find that no publicly traded company failed because of a conviction in the years 2001–2010. Moreover, many convictions included plea agreements imposing compliance programs that advocates have pointed to as a key justification for using DPAs. Because corporate convictions do not have the terrible consequences they were assumed to have, and because they can be used to obtain compliance programs just as DPAs can, the DOJ should prosecute more lawbreaking companies and reserve DPAs for extraordinary circumstances. In the absence of some other justification for using DPAs, the DOJ should exploit the stronger deterrent value of corporate prosecution to its full capacity. 

Aylingt on Deliberative Improvements for Serious Crime Legislation

Julie M. Ayling (Australian National University) has posted Haste Makes Waste: Deliberative Improvements for Serious Crime Legislation on SSRN. Here is the abstract:

Too often the making of laws on serious crime is conducted in haste. Unnecessary, ineffective or invalid laws on serious crime have major negative impacts on both individuals and societies. The processes that permit the creation of such laws clearly need reforming. In order to slow down and bring more rationality to the legislative process for serious crime, a clear and mandatory ex ante deliberative system that enables a thorough assessment of the costs and benefits of legislating and of particular legislative approaches is needed. This article draws on work by Dryzek to identify the elements of a deliberative system – authenticity, inclusiveness and the quality of being consequential. It assesses Australia’s current legislative processes for serious crime against this deliberative standard and concludes that they rarely meet it. Several practical steps that could be taken to incorporate deliberation into serious crime lawmaking are suggested: the creation of guides to legislative approaches for use by policy makers, the introduction of an ex ante impact assessment process (termed a Serious Crime Legislation Impact Assessment or SCLIA), and the establishment of actor networks registers to facilitate consultative processes. The adoption of such a deliberative system would result in better, more evidence-based and impact-sensitive serious crime legislation. 

Vladeck on the New National Security Canon

Stephen I. Vladeck (American University - Washington College of Law) has posted The New National Security Canon (61 Am. U. L. Rev. 1295 (2012)) on SSRN. Here is the abstract:

Why have victims of post-September 11 governmental misconduct met with virtually no success thus far in pursuing damages claims arising out of the government’s alleged abuses? One explanation is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct. After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers. Complicating matters, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a new — or troubling — development.

 

In this essay, I aim to provide a deeper answer to this question by looking carefully at the evolution of four different general doctrines in federal courts jurisprudence that have figured prominently in national security civil suits over the past decade: the availability of Bivens remedies; federal common law defenses to state-law suits against government contractors; qualified immunity; and the political question doctrine. To determine whether the lack of recovery in post-September 11 civil litigation differs in kind or merely degree from that which is true more generally, I contrast the state of these doctrines in non-national security cases with how the same law has been applied in suits with national security over- or under-tones. As I conclude, closer inspection reveals fairly compelling evidence for the emergence of a new “national security canon,” a body of rules unique to national security cases that, at least thus far, all cut against allowing relief in suits that might otherwise be able to proceed to judgment. 

Absent a change in direction, this trend will have two sets of consequences: First, national security policy will, in most cases, increasingly come to be an area over which the political branches exercise near-plenary control (thereby perpetuating, whether correctly or not, the argument that courts lack the institutional competence to resolve such claims). Second, as such, we may well come to understand the emergence of the national security canon over the past decade as another example of the “normalization of the exception" — the accommodation into existing law of practices and policies typically embraced only by virtue of their exigency and fleeting duration. As the national security canon becomes more deeply ingrained, so too the likelihood that it will expand into contexts other than those in which it has thus far been recognized.

Vandervort on Sexual Consent as Voluntary Agreement

Lucinda Vandervort (University of Saskatchewan) has posted Sexual Consent as Voluntary Agreement: Tales of 'Seduction' or Questions of Law? (New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 16, No. 1, (January, 2013)) on SSRN. Here is the abstract:

This draft of a forthcoming article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used.

Bradford et al. on Police Legitimacy in Less Secure Societies

Ben Bradford , Aziz Z. Huq (pictured), Jonathan Jackson and Benjamin J. Roberts (University of Oxford - Centre for Criminology , University of Chicago Law School , London School of Economics & Political Science - Methodology Institute and Human Sciences Research Council of South Africa (HSRC)) have posted What Price Fairness When Security is at Stake? Police Legitimacy in South Africa on SSRN. Here is the abstract:

The legitimacy of legal authorities – particularly the police – is central to the state’s ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgements about other aspects of its behaviour – notably, its effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and where the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society do people still emphasise procedural fairness, or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgements play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). We also find that police legitimacy is associated with citizens’ judgements about the wider success and trustworthiness of the state. This opens up new directions for legitimacy research in the context of policing and criminal justice.

Call for papers on family interactions with the criminal justice system

The Journal of Gender, Race & Justice is holding its annual symposium on March 7-8, 2013. Titled Modern Families: Changing Families, Challenging Laws, the symposium focuses on three specific areas within family law: families of racial minorities, LGBT families, and family interactions with the criminal justice system. The Journal would like to invite legal authors of all perspectives to submit proposals for articles for the symposium to fill Volume 17 of our publication. Articles or propsoal submissions, along with a curriculum vitae, should be sent to Iain Johnson at iain-johnson@uiowa.edu. The submission deadline is November 30, 2012. 

Caldwell on Gang Injunctions

Beth Caldwell (Thomas Jefferson School of Law) has posted Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions (American Journal of Criminal Law, Vol. 37, No. 3, 2010) on SSRN. Here is the abstract:

Civil gang injunctions criminalize a wide range of day-to-day activities, such as riding bicycles or appearing in public view with others subject to an injunction. In practice, gang injunctions severely limit people's rights. However, the California Supreme Court has found that injunctions do not violate the United States Constitution. Their reasoning is based on misconceptions about the impacts of injunctions on people's lives and, in turn, their liberty interests. This article incorporates social science theory about gang involvement with narrative examples demonstrating the extent to which gang injunctions burden people's liberty interests to highlight unconstitutional aspects of gang injunctions. 

Dillard on Competency Doctrine in Capital Cases

Amy Dillard (University of Baltimore - School of Law) has posted Madness Alone Punishes the Madman: The Search for Moral Dignity in the Court's Competency Doctrine as Applied in Capital Cases (Tennessee Law Review, Vol. 79, p. 461, 2012) on SSRN. Here is the abstract:

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held that borderline-competent defendants may proceed to trial so long as they are represented by counsel. This Article examines borderline- competent defendants in the context of capital prosecution and argues that those defendants, like mentally retarded defendants, pose a special risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty. In the death penalty context where the proceedings are complex, the risks are enormous, and the demand for moral dignity is greatest, using competent counsel as a proxy for the capital defendant’s competency violates the defendant’s due process rights. This Article maintains that those defendants who are incompetent to proceed to trial without counsel should be categorically exempted from death.

Weisberg on Reality-Challened Philosophies of Punishment

Robert Weisberg (Stanford Law School) has posted Reality-Challenged Philosophies of Punishment (Marquette Law Review, Vol. 95, No. 4, 2012) on SSRN. Here is the abstract:

This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.” Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world. More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.

Thus, I pose the general question of in what sense philosophies of punishment should be “accountable” for the facts of the real world. Did academic retributivism influence the rise of political retributivism as a force behind our increased reliance on prison? Can retributivism justify the arguably disproportionate penalties imposed on prisoners, once we take lifetime economic disruption and wider metastatic effects into account? Or should retributivists criticize modern imprisonment precisely because it does not survive retributivist scrutiny, or, in light of those facts, does it need to revise its notions of desert and penalty? In addition, I ask whether deterrence theory or incapacitation theory can explain or justify the state of imprisonment, and whether rehabilitation is a meaningful concept in a world where the experience of imprisonment probably does nothing to reduce future crime except by incapacitating inmates until they are too old to be dangerous. Overall, I argue that philosophies of punishment must engage in some dialectical self-scrutiny at a time of our incarceration anomaly.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	362	Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration  Heather Cucolo, Michael L. Perlin,  New York Law School, New York Law School,  Date posted to database: July 26, 2012
2	356	Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps  Caleb E. Mason,  Southwestern Law School,  Date posted to database: August 13, 2012 [new to top ten]
3	313	Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason  Emir Crowne,  University of Windsor - Faculty of Law,  Date posted to database: July 13, 2012
4	310	The Unexonerated: Factually Innocent Defendants Who Plead Guilty  John H. Blume, Rebecca K. Helm,  Cornell Law School, Unaffiliated Authors -affiliation not provided to SSRN,  Date posted to database: July 11, 2012 [2nd last week]
5	163	Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury  Mona Lynch, Craig Haney,  University of California, Irvine - Department of Criminology, Law and Society, University of California, Santa Cruz - Department of Psychology,  Date posted to database: June 26, 2012
6	151	Does Corruption Pay in Indonesia? If so, Who are Benefited the Most?  Rimawan Pradiptyo,  Universitas Gadjah Mada,  Date posted to database: July 16, 2012 [6th last week]
7	150	Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, & Substantive Equality in Bedford v. Canada  Max Waltman,  Stockholm University - Department of Political Science,  Date posted to database: June 25, 2012
8	142	The International Commission of Inquiry on Libya: A Critical Analysis  Kevin Jon Heller,  Melbourne Law School,  Date posted to database: August 5, 2012 [9th last week]
9	141	The Mandatory Meaning of Miller  William W. Berry,  University of Mississippi School of Law,  Date posted to database: July 19, 2012 [new to top ten]
10	130	Exonerations in the United States, 1989–2012  Samuel R. Gross, Michael Shaffer,  University of Michigan Law School, University of Michigan Law School,  Date posted to database: June 26, 2012