November 3, 2012
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog:
Tuesday, Nov. 6
- Evans v. Michigan: Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact.
- Smith v. U.S.: Whether withdrawing from a conspiracy prior to the statute of limitations period negates an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdrawn, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period – a fundamental due process question that is the subject of a well-developed circuit split.
Logan on Fourth Amendment Circuit Splits
Wayne A. Logan (Florida State University - College of Law) has posted Constitutional Cacophony: Federal Circuit Splits and the Fourth Amendment (Vanderbilt Law Review, Vol. 65, No. 5, October 2012) on SSRN. Here is the abstract:
Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation’s federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and privacy rights throughout the land by courts of the same sovereign.
The variability presents an array of normative and practical difficulties distinctly unlike that associated with non-constitutional splits. Worse yet, as the Article also demonstrates, the difficulties often go unmediated by the Supreme Court, even though the Court now decides fewer cases than it has in decades and operates under the expectation that splits should bear special weight in its certiorari decisions. To remedy matters, the Article urges resuscitation and modification of the long-ignored authority of circuit courts to certify questions to the Supreme Court, compelling the Court to fulfill its role as ultimate expositor of federal constitutional law. Doing so will not only help cure the many difficulties created by splits. It will also help restore a valuable interactive relationship between the circuits and the Supreme Court and ensure continued attention to federal rights variability, a troubling phenomenon too long ignored by the Court, Congress, and commentators.
Hessick on Proving Prejudice for Ineffective Assistance Claims After Frye
Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Proving Prejudice for Ineffective Assistance Claims After Frye (Federal Sentencing Reporter, Vol. 5, December 2012) on SSRN. Here is the abstract:
The Supreme Court’s recent decision in Missouri v. Frye has been widely described as benefiting criminal defendants. While Frye expanded the pool of defendants who are eligible to bring ineffective assistance claims to those who were deprived of a favorable plea bargain, it may have made it more difficult for those defendants to prevail on those claims by increasing the necessary showing of prejudice. In particular, the Frye Court indicated that a defendant must demonstrate not only that she would have accepted the plea deal, but also that 'the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it.' This language may encourage lower courts to raise the bar for defendants claiming ineffective assistance. As this short commentary demonstrates, a number of federal courts have imposed heightened prejudice standards on defendants claiming ineffective assistance at sentencing. The prejudice language in Frye may help to solidify what appears to be a broader trend of defendants being asked to prove too much to establish prejudice.
November 2, 2012
Frey on the Economics of Crime
This paper argues that the “Economics of Crime” concentrates too much on punishment as a means of preventing crime, which is unwise for several reasons. There are important instances in which punishment simply cannot reduce crime. Several feasible alternatives to punishment exist, such as offering positive incentives or handing out awards for law abiding behavior. These alternative approaches tend to create a positive sum environment. When people appreciate living in a society that is to a large extent law abiding, they are more motivated to observe the law.
Connor on Problems with Prison in International Cartel Cases
John M. Connor (Purdue University) has posted Problems with Prison in International Cartel Cases on SSRN. Here is the abstract:
Around the year 2000, the Antitrust Division announced a new policy that would substitute more frequent and more severe prison sentences for heavier corporate fines in criminal cartel cases. This article documents that the Division has indeed imprisoned more cartel managers and obtained longer sentences, but has failed to achieve other goals. The elimination of no-jail plea deals has not been realized; the number of imprisoned executives per firm has not risen appreciably; adoption of criminalization by other jurisdictions is glacial; almost half of those executive who go to trial are acquitted; extradition is rare and problematic; and the number of fugitives is growing. Identifying the optimal mix of corporate and individual sanctions for deterrence remains elusive.
Grant & Birenbaum on Threats as a Form of Domestic Violence
Isabel Grant and Joanna Birenbaum (University of British Columbia - Faculty of Law and affiliation not provided to SSRN) have posted Taking Threats Seriously: Section 264.1 and Threats as a Form of Domestic Violence (Criminal Law Quarterly, Vol. 59, January 2013) on SSRN. Here is the abstract:
An alarming number of women are in abusive relationships where violence and threats of violence pervade their lives. This article examines the offence of uttering threats in the Canadian Criminal Code, using the Manitoba Court of Appeal decision in R v O’Brien as a backdrop. We make two arguments. First, we argue that, in intimate relationships, threats of death and bodily harm are a form of domestic violence, often used by men in concert with physical violence and other forms of intimidation to control and dominate women. The Canadian criminal justice response to charges of uttering threats in intimate partner relationships must fully account for the cumulative, ongoing and dynamic nature of abuse, as well as abused women’s complex and varied responses to abuse. Second, we examine the history of s.264.1 of the Criminal Code and the case law to argue that the courts have applied the elements of the offence improperly and in a manner that is inconsistent with the statutory language and legislative intent. In so doing, the judgments incorrectly burden abused women with testifying to their fear in response to threats by their abusers, despite the fact that such evidence is unnecessary to prove the offence. This error reflects the continued privatization of domestic abuse and violence against women more generally. Compelling abused women to testify to their fear risks exposing women to increased physical violence and threats and ignores the complex considerations which drive abused women’s decision to co-operate in the prosecution of their partners or to support their defence.
November 1, 2012
Peterson & Lynch on Death Penalty Costs
Nicholas Petersen and Mona Lynch (University of California, Irvine and University of California, Irvine - Department of Criminology, Law and Society) have posted Prosecutorial Discretion, Hidden Costs, and the Death Penalty: The Case of Los Angeles County (Journal of Criminal Law and Criminology, Vol. 102, No. 4, 2012) on SSRN. Here is the abstract:
This article analyzes the processing of homicide cases in Los Angeles County from 1996 to 2008 to measure the time-costs of pursuing cases capitally and to examine how prosecutorial discretion in homicide charging is exercised in this jurisdiction. To answer these questions, we explore two related outcomes: (1) the odds of a “death-notice” filing and (2) time-to-resolution. According to Model 1, death-eligible cases with multiple special circumstances are significantly more likely to be prosecuted capitally than those with only one special circumstance. In light of the limited financial information regarding capital punishment at the county level, Models 2-4 utilize Cox Proportional Hazard regression to investigate the time-costs associated with death-eligibility. Estimates indicate that capital cases take significantly longer to reach resolution than noncapital cases. Furthermore, the filing of special circumstances increases survival time in noncapital cases. In addition to highlighting the time-costs of trying cases capitally, these findings reveal those associated with the prosecution of special circumstance cases, even when the death penalty is not ultimately sought. By examining capital costs at the county level, this analysis contributes to the ongoing policy reform debate in California that aims to address the state’s “dysfunctional” death penalty system.
Transcript of argument on applicability of Padilla v. Kentucky to final convictionsThe transcript in Chaidez v. United States is here.
Argument transcript in case involving scope of Michigan v. SummersThe transcript in Bailey v. United States is here.
Oglesby on Marijuana Legalization
Pat Oglesby (Center for New Revenue) has posted Gangs, Ganjapreneurs, or Government: Marijuana Revenue Up for Grabs (State Tax Notes, Vol. 66, No. 4, October 22, 2012) on SSRN. Here is the abstract:
Polls say half the country wants to end the war on marijuana. Legalization could provide new revenue for government, but how? Six 2012 ballot initiatives show a splintered legalization movement with an amazingly wide range of revenue ideas.
Three states vote on November 6. Colorado’s Amendment 64 anticipates taxes and caps them temporarily. Oregon’s Measure 80 generates revenue with a state marijuana monopoly. Washington’s Initiative 502, with three levels of excises, contains the highest taxes ever proposed to voters, and is officially estimated to bring in new taxes of over a half billion dollars a year. Three California initiatives failed to make the ballot.
I describe these revenue plans and their revenue estimates. I rank them one through six by revenue strength and likely federal forbearance.
Broadhurst & Chang on Cybercrime in Asia
Roderic Broadhurst and Yao-Chung Chang (Australian National University (ANU) and City University of Hong Kong) have posted Cybercrime in Asia: Trends and Challenges (Asian Handbook of Criminology, J. Liu, B. Hebenton, eds., Springer, 2012) on SSRN. Here is the abstract:
The rapid growth in Internet use in Asia, including a tenfold or more increases in access in China, Indonesia and India since 2002 has also been accompanied by significant increases in cybercrime. The development of commercial-scale exploit toolkits and criminal networks that focus on monetization of malware have amplified the risks of cybercrime. The law-enforcement response in Asia is briefly reviewed in the context of the 2001 Council of Europe’s Cybercrime (Budapest) Convention. We describe the nature of cybercrime (including both ‘hate’ or content and ‘crime-ware’ such as botnets) and compare the laws and regulations in Asian states with the provisions of the Convention. The challenges faced in developing effective cross-national policing of cybercrime in Asia are also addressed as problems emerge around cloud computing, social media, wireless/smart phone applications and other innovations in digital technology.
October 31, 2012
Blum on Crime and Punishment of States
Gabriella Blum (Harvard Law School) has posted The Crime and Punishment of States (Yale Journal of International Law, Vol. 38, 2013, Forthcoming) on SSRN. Here is the abstract:
Why is it that we don’t punish states anymore, or, at least, don’t admit to doing so?
The moral rhetoric of “crime” and “punishment” of states has been excised from mainstream international law, and replaced with an amoral rhetoric of “threat” and “prevention.” Today, individuals alone are subject to international punishment, while states are subject only to preventive, regulatory or enforcement measures.
Through a historical survey of the shift from punishment to prevention in various spheres of international law, I argue that the preference for prevention has been motivated by a strong preference for peace over justice as the ultimate goal of the international system. Driving this belief, I suggest, is an array of considerations, correlating punishment with humiliation and revenge, fearing the effects of collective punishment, doubting the operation of punishment in a decentralized structure built around the principle of sovereign equality, and bemoaning absence of an international institution to adjudicate the criminality of states. However, given existing practices under the paradigm of “prevention,” none of these considerations seems to justify a correlation between peaceful coexistence and an aversion to punishment.
Even further, the elimination of a punitive paradigm may implicate normative concerns, even accepting the preference for peace: in fact, a prevention-oriented framework may have its own distorted effects for international peace and security. Drawing on debates over preventive sanctions in U.S. domestic criminal law, I argue that even though prevention may sound like a less oppressive policy than punishment, it may in fact be far less constrained and more ruthless. At the same time, a preventive paradigm might be paralyzed from operating where there is a crime that does not immediately threaten other international actors. I demonstrate both possibilities using the contemporary debates over anticipatory self-defense and humanitarian intervention.
"Thoughts on the Oral Arguments in the Dog Sniff Cases"
Orin Kerr has this post at The Volokh Conspiracy. In part:
Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient.
Argument transcript involving dog sniff as probable causeThe transcript in Florida v. Harris is here.
Transcript of argument in case involving dog sniff at front door of homeThe transcript in Florida v. Jardines is here.
Cole on Military Commissions and the Paradigm of Prevention
David Cole (Georgetown University Law Center) has posted Military Commissions and the Paradigm of Prevention (Military Commissions and the Paradigm of Prevention, in GUANTANAMO AND BEYOND: EXCEPTIONAL COURTS AND MILITARY COMMISSIONS IN AND POLICY PERSPECTIVES (Oren Gross and Fionnuala Ni Aolain, eds., Cambridge: Cambridge Univ. Press, 2013, Forthcoming)) on SSRN. Here is the abstract:
Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims:
Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.
Do these justifications warrant the use of military commissions? In this essay, I maintain that they do not. In the end, the impetus behind the military commissions is the hope – in my view, unsupported – that the commissions may permit easier convictions of individuals, and may allow prosecutors to avoid confronting the consequences of the United States’ systemic reliance on torture and cruel, inhuman, and degrading tactics in its interrogations of detainees. In this respect, the commissions are best understood not as a legitimate forum for trying war crimes, but as an avenue for short-circuiting legal processes that might hold us accountable for our wrongs.
The military commissions are a by-product of the “paradigm of prevention,” a term coined by then Attorney General John Ashcroft for the post-9/11 emphasis on aggressively preventing future terrorism, rather than responding to crime after the fact. That approach stressed early intervention and aggressive gathering of intelligence about future threats, and therefore led government officials to sweep broadly, presume guilt without substantial evidence, detain innocents, and adopt “enhanced interrogation techniques” to coerce detainees into talking. Those choices, in turn, have greatly complicated and compromised the task of holding terrorists accountable, because such illegal shortcuts on investigatory rules taint any evidence obtained therefrom, and make it inadmissible in a criminal trial.
The military commissions reflect an ill-advised effort to avoid paying the price for the “paradigm of prevention.” That goal is an illegitimate one, and will in the end leave the commissions – and any convictions obtained in them – fundamentally tainted. Absent a willingness both to reckon candidly with the United States’ own past wrongs, and to proceed in the future under fundamentally fair trial procedures, the military commissions are likely to disserve our security interests and undermine our constitutional principles.
October 30, 2012
Parilo on Custodial Interrogations in Prison
Michelle Parilo has posted Protecting Prisoners During Custodial Interrogations: The Road Forward after Howes v. Fields (Boston College Journal of Law and Social Justice, Vol. 33, Winter 2012) on SSRN> Here is the abstract:
The Supreme Court in Miranda v. Arizona sought to mitigate the inherently coercive atmosphere of custodial interrogations to protect victims from involuntary self-incrimination. In analyzing custody for Miranda purposes, courts look at whether a reasonable person would feel his freedom of movement was restricted. When conducting the Miranda custody analysis for interrogated prisoners, courts should thoroughly consider the negative psychological effects of prisons in order to understand the prisoner’s mindset. The Court had the opportunity to conduct this thorough analysis of the dehumanization of prisoners in Howes v. Fields, but it instead minimized the coercive effects of prisons. Moreover, the Court’s finding that the prisoner in Howes v. Fields was not in Miranda custody is inconsistent with its past holdings. This Note argues that in the future, courts should consider with greater nuance the negative effects of prisons in order to protect prisoners from making involuntary confessions.
Transcript in yesterday's argument on surveillance of international communicationsThe transcript in Clapper v. Amnesty International USA is here.
Monday's criminal law/procedure cert grants
Issue summaries from ScotusBlog:
- Trevino v. Thaler: applicability of Martinez v. Ryan, on raising ineffective assistance on habeas challenge, in jurisdictions in which defendants sometimes permitted to raise claim prior to post-conviction stage.
Schauer on Lie-Detection, Neuroscience, and Evidence
Frederick Schauer (University of Virginia School of Law) has posted Lie-Detection, Neuroscience, and the Law of Evidence on SSRN. Here is the abstract:
This paper, prepared for the “State of the Art” Law and Neuroscience Conference at the Rutgers (Camden) University School of Law, has two goals. One is to describe comprehensively the current court cases, scientific research, academic literature, and controversies about the potential use of Functional Magnetic Resonance Imaging (fMRI) for detecting deception in court and other forensic contexts. The other is to suggest that the question of the admissibility of fMRI deception evidence in court cannot be thought of as an exclusively scientific question. The appropriate use or non-use of science in the legal system involves inevitably normative questions about the appropriate levels of accuracy, reliability and validity, questions that must be answered in light of the goals of the legal system and the particular purposes to which the science would be put. The answers require getting the science right, and thus require the involvement of science and scientists, but the ultimate question of when and how the scientific conclusions so produced will be used is a question of legal policy as to which neither scientists (nor, for that matter, lawyers) should be given exclusive authority. Thus, although explicitly focused on law and neuroscience, the paper implicitly addresses a pervading issue in science policy generally – is the use to which science shall or should be put an exclusively, or even partially, scientific question?