CrimProf Blog

van Kempen on Pre-Trial Detention

Piet Hein van Kempen (Radboud University Nijmegen) has posted Pre-Trial Detention in National and International Law and Practice: A Comparative Synthesis and Analyses (Intersentia, pp. 3-46, 2012, PRE-TRIAL DETENTION: HUMAN RIGHTS, CRIMINAL PROCEDURAL LAW AND PENITENTIARY LAW, COMPARATIVE LAW, P.H.P.H.M.C. van Kempen, ed., Cambridge, 2012) on SSRN. Here is the abstract:

It is estimated that in the course of a year approximately 10 million people will pass through pre-trial detention. Although no adequately functioning criminal justice system can presently do entirely without detaining any suspects, pre-trial detention thus remains problematic in the context of human rights (e.g., the right to liberty, the presumption of innocence and often also the right to humane treatment), the detainee’s family (e.g., psychologically, socially and financially) and society (e.g., financially and economically). This paper therefore offers a wide variety of topics that are relevant to pre-trial detention. 

After the introduction (I) the paper focuses on the influence on national law and practice of international human rights norms and national constitutional provisions that are relevant to pre-trial detention (II). Subsequently, the contents, scope and effect of these relevant human rights norms and of national criminal procedural law regarding pre-trial detention in various countries will be examined (III). The fourth part of the paper discusses both international and national standards for the actual conditions of detention, detention facilities and the rights of detainees (IV). The paper further discusses possibilities to apply alternatives to detention, such as bail and electronic monitoring (V), before finally offering conclusions (VI).

The paper – which constitutes the introductory synthesis and analyses of a book in the series of the International Penal and Penitentiary Foundation (IPPF) – purposes to offer a comparative synthesis of the national systems of twenty one States from around the world against the background of international human rights norms. The analyses focus on possible correlative relationships between the acceptance of international and constitutional fundamental rights norms, the quality of criminal procedural and penitentiary law, and rates of pre-trial detention and the application of pre-trial detention in practice. It not only examines whether and how international human rights standards on detention are influencing national law and practice, and the extent to which international norms are suitable to do so, it also tries to reveal strengths and weaknesses of domestic law systems as such.

Prosecuting "drowsy driving" cases

This article is from the New York Times:

A bus driver accused of being so tired that he caused one of the deadliest crashes in New York City’s history was found not guilty of manslaughter and negligent homicide on Friday, underscoring the difficulty of prosecuting drowsy driving despite successful efforts to use the courts to discourage other dangerous habits while at the wheel.

. . .

The trial, which started in late September and featured sometimes harrowing testimony from 55 witnesses, centered on the legal question of whether a driver can be proved to be too tired to responsibly get behind the wheel, an effort hampered by the lack of obvious measures like a blood-alcohol test for drunken driving or cellphone records for distracted driving.

. . .

The trial was followed closely by traffic-safety advocates who had hoped it would legitimize efforts to prosecute people who drive when they are dangerously tired. States have increasingly sought to move beyond purely educational efforts, with criminal cases against drowsy drivers in more than a half-dozen other states, including Florida, New Jersey and Texas. In Virginia last month, a judge convicted a bus driver of involuntary manslaughter after the authorities said he fell asleep before a crash that killed four passengers and injured dozens of others.

Luna & Cassell on Mandatory Minimums

Erik Luna (pictured) and Paul G. Cassell (Washington and Lee University - School of Law and University of Utah - S.J. Quinney College of Law) have posted Mandatory Minimalism on SSRN. Here is the abstract:

Both authors of this article believe that reforming the federal mandatory minimum scheme would be good for the country. At the same time, however, there are substantial political barriers to making any change. Although public support for mandatory minimums has waned in recent times, it is still possible to paint a legislator who votes to repeal mandatory minimums as being “soft on crime.” For example, when then-presidential candidate Obama called for reexamination of mandatory minimum sentences, he was attacked as “oppos[ing] mandatory prison sentences for sex offenders, drug dealers, and murderers.” 

In general, advocates of further reforms will face long-standing political hurdles. Even during periods of lower crime rates, the public has expressed fear of victimization and a belief that criminals are not receiving harsh enough punishment. Lawmakers have responded in kind with new crimes and stiffer penalties, including mandatory sentences. Conversely, proposals for comprehensive reform have carried a career-ending risk for supporters, who could be labeled soft on crime by allegedly providing the means for dangerous criminals to escape with lenient sentences. This political dynamic has stymied previous efforts in Congress to reform mandatory minimums. 

For these and other reasons, there may be insufficient political support for an across-the-board repeal of federal mandatory minimums. To date, systemic reform proposals have had little traction and appear unlikely to be adopted in the near term. Ironically, the congressional directive calling for a review of mandatory minimum sentencing itself contained a new mandatory minimum, and several recent bills would extend federal mandatory sentences. As a practical matter, then, any meaningful reform might have to be done in a careful, focused way to create a broad bipartisan consensus surrounding the changes. With this in mind, the two of us have considered how to modify the federal mandatory minimum scheme so as to ameliorate its most draconian and unfair expressions.

Pfaff on Causes of Prison Growth

John F. Pfaff (Fordham University School of Law) has posted The Micro and Macro Causes of Prison Growth (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:

This paper explores both "who" has driven up US prison populations in recent years and "why" this growth has occurred. At least since the early 1990s, the "who" appears to primarily be prosecutors. Crime and arrests have fallen, and the percent of felony cases resulting in admissions and time served once admitted have been flat. But the probability that an arrest results in a felony charge has gone up significantly. (Limitations in data prevent us from examining the role of filing decisions before 1994.)

As for the "why," this paper provides some evidence that, at least since the crime drop began, increases in prison spending appear to track increases in state budgets fairly closely, suggesting that increased fiscal capacity is an important causal factor. It also looks at the politics-of-crime theories and explains that all previous efforts are unsatisfactory because they have focused on state and federal actors. Prosecutors, who are driving prison growth, are county officials, and it is unclear that state- and national-level political theories explain more-local outcomes.

Brown on Defense Counsel, Trial Judges, and Evidence Protocols

Darryl K. Brown (University of Virginia School of Law) has posted Defense Counsel, Trial Judges, and Evidence Protocols (Texas Tech Law Review, Vol. 45, No. 1, 2012) on SSRN. Here is the abstract:

This essay, a contribution to the 2012 Texas Tech Symposium on the Sixth Amendment, argues that constitutional criminal adjudication provisions are fruitfully viewed not primarily as defendant rights but as procedural components that, when employed, maximize the odds that adversarial adjudication will succeed in its various goals, notably accurate judgments. On this view, the state has an interest in how those procedural mechanisms, especially regarding fact investigation and evidence gathering, are invoked or implemented. Deficient attorney performance, on this view, can be taken as a problem of the state’s adversarial adjudication process, for which public officials - notably judges, whose judgments depend on that process - should assume greater responsibility.

The essay briefly sketches how judicial responsibility for the integrity of criminal judgments is minimized in various Sixth Amendment doctrines and aspects of adversarial practice. Then, instead of looking to Sixth Amendment doctrine to enforce minimal standards for attorney performance, the essay suggests that judges could improve routine adversarial process through modest steps to more closely supervise attorneys’ performance without infringing their professional discretion or adversarial role. One such step involves use of protocols, or checklists, through which judges would have attorneys confirm that they have performed some of their tasks essential to adversarial adjudication, such as fact investigation, before the court would rely on their performance to reach a judgment, whether through plea bargaining or trial.

"Crusading New Orleans Prosecutor To Quit, Facing Staff Misconduct"

From the New York Times:

Beginning last spring, a series of legal motions had revealed that Mr. Letten’s senior prosecutors had been making provocative, even pugnacious comments about active criminal matters and other subjects under aliases at nola.com, the Web site of The Times-Picayune newspaper.

. . .

Last month, the revelations of online misconduct reached Mr. Letten’s top assistant,Jan Mann. A federal judge, in a scathing 50-page order, broached the possibility of criminal conduct in regard to her online activities, as well as those of another senior prosecutor, Sal Perricone, who resigned in March.

The judge also revealed that another federal prosecutor had expressed suspicions about the comments to his supervisors in 2010.

The exposure of Ms. Mann, months after Mr. Letten’s avowals that Mr. Perricone had acted alone, raised doubts about the effectiveness of an internal investigation by the Justice Department.

 

Faure & Escresa on Social Stigma

Michael G. Faure and Laarni Escresa (University of Maastricht - Faculty of Law, Metro and University of Hamburg - Institute of Law and Economics) has posted Social Stigma (Production of Legal Rules, Cheltenham: Edward Elgar, 2011, 205-227) on SSRN. Here is the abstract:

This is a chapter in a volume on the production of legal rules discussing the importance of social stigma and reputation. On the one hand the literature on social norms is discussed, explaining how, from an economic perspective, stigma can be inflicted through the use of the criminal law. Hence, the social process of stigmatization is described, explaining also how stigma depends on the number of individuals that may be stigmatized and the number of people that imposed the stigma. In addition, legal aspects of criminal sanctions are discussed, in the sense that the question is addressed to what extent a criminal conviction leads to reputational losses or to, as it is often refer to “naming and shaming”. Based on an overview of literature it is shown that these reputational effects (measured by decreases in stock prices of convicted corporations) often occur when the crimes affect parties with whom the corporation stands in a contractional relationship (like employees of customers); however, crimes that rather affect third parties (like the environment) do not seem have a significant reputational effect (at least measured in reduction of stock price).

Kreimer on Immigration Detention as Domestic Crime Control

Frances Miriam Kreimer has posted Dangerousness on the Loose: Constitutional Limits to Immigration Detention as Domestic Crime Control (New York University Law Review, Vol. 87, No. 5, 2012) on SSRN. Here is the abstract:

The United States immigration detention regime that was reborn in the 1980s is not only unprecedented in scale, but also in rationale. Whereas immigration detention had historically been justified primarily as a means of ensuring immigration compliance, with a secondary purpose of protecting national security, today’s system increasingly functions in collaboration with criminal law enforcement systems to incapacitate allegedly dangerous individuals for the purpose of preventing potential domestic crime. Regardless of the validity of judicial deference when immigration detention truly serves to aid in the removal process, this Note argues that such deference cannot legitimately be extended to the newly ascendant crime control function of immigration detention. At minimum, Due Process requires immigration detention procedural safeguards that are parallel to those in other preventive detention contexts, in which the government bears the burden of individually demonstrating a need for confinement.

Dimock on Intoxication and the Act/Control/Agency Requirement

Susan Dimock (York University) has posted Intoxication and the Act/Control/Agency Requirement (Criminal Law and Philosophy, Vol. 6, 2012) on SSRN. Here is the abstract:

Doug Husak has argued, persuasively I think, that there is no literal ‘act requirement’ in Anglo-American law. I begin by reviewing Husak’s reasons for rejecting the act requirement, and provide additional reasons to think he is right to do so. But Husak’s alternative, the ‘control condition,’ I argue, is inadequate. The control requirement is falsified by the widespread practice of holding extremely intoxicated offenders liable for criminal conduct they engage in even if they lack control over their conduct at the time of the offense, and even if they are acting involuntarily. I provide examples from Canadian, US and German law to flesh out our legal practices with respect to intoxicated offenders. I then argue that, at least with respect to one class of intoxicated offenders – those known as ‘grand schemers,’ who plan their criminal offending prior to rendering themselves incapable of voluntary control over their conduct – we are morally justified in imposing liability. I then propose an alternative to both the act and control requirements: what I call the ‘agency requirement.’ I argue that our law does and should impose liability for conduct that is expressive of or constitutive of the defendant’s practically rational agency. Adopting an agency view allows us to expand our focus from just the moment of the offense to temporally extended instances of agency, such as is involved in planned offending by grand schemers.

Orentlicher on Federalization of Local Crime

David Orentlicher (Indiana University - Robert H. McKinney School of Law) has posted NFIB V. Sibelius: Proportionality in the Exercise of Congressional Power on SSRN. Here is the abstract:

With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court’s recognition of an anti-coercion limit to the Spending Clause power. 

When it recognized an anti-coercion limit for ACA’s Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court’s new anti-coercion principle. It also indicates how this new principle can address a long-standing problem with the federal exercise of the Commerce Clause power — the federalization of local crime. 

Specifically, I argue first that we can best understand the Court’s anti-coercion principle not by parsing the text of its spending power analysis in isolation but by identifying a common strand of principle that the spending power analysis shares with the Court’s analysis of the individual mandate to purchase health care under the federal taxing power. Both analyses suggest a common principle of proportionality for the exercise of federal powers. 

If that is true for a Medicaid expansion enacted under the spending power and an individual mandate enacted under the taxing power, it also may — and should — be true for a criminal prohibition enacted under the commerce power, the primary source of authority for federal criminal statutes. If so, then the Court could find that Congress exceeds its authority when it imposes more severe sentences than do states for misconduct that is essentially local in nature.

Cohen on Rationing Legal Services

I. Glenn Cohen (Harvard Law School) has posted Rationing Legal Services (The Journal of Legal Analysis, Forthcoming) on SSRN. Here is the abstract:

There is a deepening crisis in the funding of legal services in the United States. The House of Representatives has proposed cutting the budget of the Legal Services Corporation (LSC), one of the main funders of legal assistance to America’s poor, to an all time low in inflation-adjusted terms. Other sources of funding, such as Interest on Lawyers Trust Account (IOLTA) are also way down due to low interest rates. More than 135 state and local organizations providing LSC assistance are now in a precarious position. The community was already decimated by the last round of cuts in January 2011, that led to the laying off of 1,226 lawyers and support staff at LSC-funded organizations, and 81,000 fewer low-income Americans receiving aid. This is all occurring at a time of extremely high unemployment and state budget cuts in services supporting low-income people, meaning demand for many of these services is going up.

The deepening crisis in funding of legal services only makes more pressing and manifest a sad reality: There is and always will be persistent scarcity in the availability of both criminal and civil legal assistance. Given this persistent scarcity, this Article will focus on how existing Legal Service Providers (LSPs), both civil and criminal, should ration their services when they cannot help everyone.

To illustrate the difficulty these issues involve, consider two types of LSPs, the Public Defender Service and Connecticut Legal Services, that I discuss in greater depth below. Should the Public Defender Service favor offenders under the age of 25 instead of those older than 55? Should other public defenders offices with death eligible offenses favor those facing the death penalty over those facing life sentences? How should Connecticut Legal Services prioritize its civil cases and clients? Should it favor clients with cases better suited for impact litigation over those that fall in the direct service category? Should either institution prioritize those with the most need? Or, should they allocate by lottery?

These are but a small number of the difficult questions faced by those who have to ration legal services. Very little has been said as to what principles should govern the rationing of legal services. This is surprising given that civil and criminal LSPs are often funded through a mixture of government funding and charitable support in such a way that they should be answerable on questions of justice, and because their decisions whether or not to support a client is likely to have significant effects on that person’s life prospects. Thus, it seems as though the rationing decisions of LSPs deserve significant ethical scrutiny.

In this Article, I seek to remedy this deficit in the existing literature by engaging in a comprehensive analysis of how LSPs should allocate their resources given the reality of persistent scarcity. Luckily, this work does not have to begin at square one. There is a developed literature in bioethics on the allocation of persistently scarce medical goods (such as organs, ICU beds, and vaccine doses) that I use to illuminate the problems facing LSPs and the potential rationing principles they might adopt.

Lucas on Corruption of Minors under the Federal Sentencing Guidelines

Tory L. Lucas (Liberty University School of Law) has posted But I'm Not Twenty-One Yet: How Section 3B1.4 of the United States Sentencing Guidelines Ignored Congress's Intent to Enhance Sentences Only for Adults at Least Twenty-One-Years of Age Who Corrupt Minors by Using Them to Commit Federal Offenses — And What Federal District Courts Can Do About It (South Texas Law Review, Vol. 53, p. 205, 2011) on SSRN. Here is the abstract:

If five similar-yet-unrelated criminals use minors to commit similar federal crimes at the same time in different states, justice dictates that the federal sentencing system would fairly apply a use-of-minor enhancement to sentence these similarly situated defendants. One would think. But not all similarly situated defendants who use minors to commit federal offenses will be treated fairly. Why the disparity in federal sentencing? The answer lies in a conflict between the U.S. Congress and the U.S. Sentencing Commission. Congress directed the Sentencing Commission to promulgate a use-of-minor enhancement that ensures that the defendant’s age is relevant by focusing on adult defendants at least twenty-one years old who corrupt minors by using them to commit federal offenses. The Sentencing Commission defied Congress’s directive, instead choosing to make a defendant’s age absolutely irrelevant when applying a use-of-minor enhancement such that every defendant — no matter how old or how young or how close in age to the minor used — must receive the same two-level use-of-minor enhancement. Currently, four federal circuit courts have sanctioned the Sentencing Commission’s expansive use-of-minor enhancement; one lone circuit court has decided that the Sentencing Commission exceeded its congressional authority such that the use-of-minor enhancement cannot be applied to defendants under the age of twenty-one.

Siding with the lone circuit, this Article takes a systematic and thorough approach to explain how the congressional directive’s plain language, legislative history, and context in which it was enacted require the conclusion that Congress intended the Sentencing Commission to retain age as a relevant factor in applying the use-of-minor enhancement. The Article then equips federal district courts with three options to adequately respond to the Sentencing Commission’s open defiance of congressional intent and unlawful expansion of its limited authority by ensuring that the use-of-minor enhancement is not used against defendants under the age of twenty-one. First, the Article outlines how district courts can adopt the No-Authority Option, which concludes that the Sentencing Commission exceeded its congressional authority when promulgating a use-of-minor enhancement with a defendant’s age being irrelevant. Second, the Article presents district courts with the Policy-Disagreement Option, which authorizes district courts to decide as a matter of policy that the use-of-minor enhancement should not be blindly applied to defendants under the age of twenty-one. Third, the Article offers district courts the Individualized-Assessment Option, which sanctions the use of their institutional strengths to impose a sentence based on the unique facts and circumstances of a single case that demonstrate that the application of a use-of-minor enhancement to a particular defendant under the age of twenty-one does not serve the purposes of federal sentencing. As long as this three-option, analytical framework is followed, district courts are well equipped to mete out punishment consistent with the purposes of federal sentencing while simultaneously ensuring that the Sentencing Commission continues to play a vital role in national sentencing policy within its congressionally sanctioned power.

Boozang on Responsible Corporate Officer Doctrine

Kathleen Boozang (Seton Hall School of Law) has posted Responsible Corporate Officer Doctrine: When is Falling Down on the Job a Crime? (St. Louis University Journal of Health Law & Policy, Vol. 6, 2012) on SSRN. Here is the abstract:

The FDA's recent deployment of the Responsible Corporate Officer Doctrine (also known as the Park Doctrine), and HHS OIG's presumption of federal health program debarment following an RCO Doctrine conviction has been extremely controversial. This article defends strategic use of the Doctrine against officers and directors of entities such as New England Compounding Center, whose egregious behavior puts into commerce products that present serious public health risks. This article posits that the Doctrine is an option of necessity for successful enforcement against entities that are "too big to nail" because of the essential nature of their products which all but precludes their criminal conviction and exclusion from Federal healthcare programs. The article suggests that the toothlessness of fiduciary duties, as well as the theory of efficient breach potentially explain continued legal violations by life science companies, even in the face of enormous fines, which, according to HHS OIG, have become viewed as a cost of doing business.

Dissent from cert denial in death case where mitigating evidence not proffered

Justice Sotomayor's dissent from denial of cert in Hodge v. Kentucky is here.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	578	The Curious History of Fourth Amendment Searches  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: October 1, 2012
2	391	Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research  Keith A. Findley,  University of Wisconsin Law School,  Date posted to database: October 11, 2012
3	346	Prison Visitation Policies: A Fifty State Survey  Chesa Boudin, Trevor Stutz, Aaron Littman,  Yale University - Law School, Yale University - Law School, Yale University - Law School,  Date posted to database: November 6, 2012
4	212	The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law  Emad Hanzala Atiq,  Yale University, Law School,  Date posted to database: October 18, 2012
5	173	If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law  Jan M. Smits, Andrei Ernst, Steven Iseger, Nida Riaz,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI), Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: October 10, 2012 [6th last week]
6	169	Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases  Tigran Eldred,  New England Law | Boston,  Date posted to database: October 2, 2012 [7th last week]
7	166	The Crime and Punishment of States Gabriella Blum,  Harvard Law School,  Date posted to database: October 22, 2012 [8th last week]
8	142	Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories  Dov Jacobs,  Leiden University - Grotius Centre for International Legal Studies,  Date posted to database: September 27, 2012 [9th last week]
9	112	Teaching Prison Law  Sharon Dolovich,  University of California, Los Angeles - School of Law,  Date posted to database: November 6, 2012 [new to top ten]
10	141	Exclusion and Control in the Carceral State  Sharon Dolovich,  University of California, Los Angeles - School of Law,  Date posted to database: November 6, 2012