CrimProf Blog

Baxter on How States Force Public Defenders to Violate Ethical Obligations

Heather Baxter (Nova Southeastern University - Shepard Broad Law Center) has posted Too Many Clients, Too Little Time: How States are Forcing Public Defenders to Violate Their Ethical Obligations (Federal Sentencing Reporter, Vol. 25, No. 2, p. 91, 2012) on SSRN. Here is the abstract:

Budget cuts have had a devastating effect on public defenders and their ability to effectively represent indigent clients, mostly in the form of increasing caseloads. Much has been written about the effect these excessive caseloads have had on indigent defendants’ right to counsel. This article, instead, focuses on how excessive caseloads are placing public defenders in ethical dilemmas. Public defenders are bound by the Model Rules of Professional Conduct, but these high caseloads are making it increasingly difficult for them to meet these required ethical standards. Specifically, it is more challenging for an attorney to represent indigent clients diligently and competently when dealing with caseload numbers well beyond the recommended levels. The author discusses why the solutions being offered by the American Bar Association‘s Formal Opinion 06-441 are not tenable and concludes that true reform in indigent defense is the only way to alleviate the excessive caseloads.

Field on Crimes Involving Intangible Property

Thomas G. Field Jr. (University of New Hampshire School of Law) has posted Crimes Involving Intangible Property on SSRN. Here is the abstract:

A well-known cliché came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal. 

It therefore considers bases for prosecuting the theft of such intangible interests under U.S. federal and state law. 

Because the property in question had been fixed, federal jurisdiction is exclusive. Moreover, the seminal Dowling case determines that penal jurisdiction under the Copyright Act is the exclusive basis for prosecuting theft of tangible property — at least in the absence of another subject-specific statute. 

The paper then turns to Aleynikov, a recent Second Circuit opinion. It likewise finds, barring theft of tangible property, only subject-specific prosecution possible for theft of valuable compute code. The code qualified as a trade secret, so the 1996 Economic Espionage Act might have served. A key requirement of that act was found not to be satisfied, however. 

Roughly half of the paper considers prosecution under state statutes. Copyright law is off the table, but prosecution for theft of other intangibles remains. Some penal statutes name trade secrets as subject property; others name intangibles generally; and many others name neither. Were a case such as the one involving the Vatican papers to be tried, a variety of problems would be encountered under each type of statute. The paper uses three cases to illustrate some of those problems. 

Looking well beyond the papal papers, the paper ultimately suggests that something akin to a penal version of the Uniform Trade Secret Act might bring more resources to bear on increasingly disruptive criminal activities.

Roberts on Genetic Surveillance and Race

Dorothy E. Roberts (University of Pennsylvania Law School) has posted Collateral Consequences, Genetic Surveillance, and the New Biopolitics of Race (Howard Law Journal, Vol. 54, Pg. 567, Spring 2011) on SSRN. Here is the abstract:

This Article is part of a Howard Law Journal Symposium on “Collateral Consequences: Who Really Pays the Price for Criminal Justice?,” as well as my larger book project, Fatal Invention: How Science, Politics, and Big Business Re-create Race in the Twenty-First Century (The New Press, 2011). It considers state and federal government expansion of genetic surveillance as a collateral consequence of a criminal record in the context of a new biopolitics of race in America. Part I reviews the expansion of DNA data banking by states and the federal government, extending the collateral impact of a criminal record — in the form of becoming a permanent suspect — to growing categories of people. Part II argues that the benefits of this genetic surveillance in terms of crime detection, exonerations of innocent inmates, and public safety do not outweigh the unmerited collateral penalty of state invasion of individuals’ privacy and the larger harms to democracy. These harms are exacerbated by the disproportionate collection of DNA from African Americans as a result of deep racial biases in law enforcement. Part III explains why DNA databases reflect and help to perpetuate an oppressive system of criminal justice. Finally, Part IV elaborates the racial harms that are caused by genetic surveillance that targets large numbers of African Americans, putting into practice deep-seated stereotypes about blacks’ inherent criminality. Far from correcting racial bias in law enforcement, the state’s use of DNA to designate millions of permanent suspects reinforces the roots of racial injustice.

Ferzan on Preventive Justice and the Presumption of Innocence

Kimberly Kessler Ferzan (Rutgers, The State University of New Jersey - School of Law - Camden) has posted Preventive Justice and the Presumption of Innocence (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

When the state aims to prevent responsible and dangerous actors from harming its citizens, it must choose between criminal law and other preventive techniques. The state, however, appears to be caught in a Catch-22: using the criminal law raises concerns about whether early inchoate conduct is properly the target of punishment, whereas using the civil law raises concerns that the state is circumventing the procedural protections available to criminal defendants. Andrew Ashworth has levied the most serious charge against civil preventive regimes, arguing that they evade the presumption of innocence.

After sketching out a substantive justification for a civil, preventive regime, I ask what Ashworth’s challenge consists in. It seems that there is broad disagreement over the meaning and requirements of the presumption of innocence. I thus survey the myriad of possibilities and extract two claims that have potential bearing on preventive regimes. One claim is that of substantive priority – the criminal law comes first when assessing blame. This is the claim at the root of objections to pretrial detention based on consideration of the crime charged. The second strand of argument is one of procedural symmetry. This is the concern that with respect to citizen/state relations, certain procedures are required, including, for example, proof beyond a reasonable doubt as to the offense or defense.

Having extracted these claims, I then assess their applicability with respect to the preventive regime defended. I first conclude that the criminal law must share blame and censure with other fora, and thus, the criminal law only has substantive priority when criminal proceedings have been instituted. I then survey whether procedural symmetry is required, specifically assessing whether the preventive regime I defend requires proof beyond a reasonable doubt. My tentative conclusion is that proof beyond a reasonable doubt is warranted.

Levenson on the Plea Bargaining Process

Laurie L. Levenson (Loyola Law School Los Angeles) has posted Peeking Behind the Plea Bargaining Process (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court’s rulings in Missouri v. Frye and Lafler v. Cooper, which recognized a defendant’s Sixth Amendment right to effective assistance of counsel in plea bargaining, creates new responsibilities for judges, defense counsel and prosecutors. This article explores what those responsibilities are in light of the history and role of plea bargaining in the United States.

Kaye on Collecting DNA Before Conviction

David H. Kaye (Pennsylvania State University - Law School) has posted On the 'Considered Analysis' of Collecting DNA Before Conviction (UCLA Law Review Discourse, Vol. 60, 2013) on SSRN. Here is the abstract:

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too 'generalized' to support 'a warrantless, suspicionless search.' The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that 'given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.' This essay briefly examines these opinions and finds their analysis incomplete. I outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable treatments of 'searches' and 'seizures' in the opinions, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that in King, the Supreme Court will have to assess the actual interests implicated by pre-conviction collection and profiling of DNA, articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general, and attend to the complexities in applying that framework to the biology of DNA identification tests and the limited information recorded in DNA databases.

Quigley on Racism in Criminal Justice

William P. Quigley (Loyola University New Orleans College of Law) has posted Racism: The Crime in Criminal Justice (Loyola Journal of Public Interest Law, Vol. 13, pp. 417, 2012) on SSRN. Here is the abstract:

This article examines the question of whether racial disparities in the U.S. criminal justice system are merely the bad implementation of what would otherwise be a good system, or are an inherent part, and even possibly the intended result, of our state and federal criminal justice policies. After an examination of numerous statistics that show significant racial disparities in the workings of the U.S. criminal justice system, the author surveys the writings of other academic commentators who have concluded that, yes, such disparities are an intended result.

Kitai-Sangero on Miranda Warnings in Non-Custodial Interrogations

Rinat Kitai-Sangero has posted Respecting the Privilege against Self-Incrimination: A Call for Providing Miranda Warnings in Non-Custodial Interrogations (New Mexico Law Review, Vol. 42, 2012) on SSRN. Here is the abstract:

The article argues that although custodial interrogation entails inherent pressures that act to weaken a suspect's will to resist, Miranda should apply also in non-custodial settings once the interrogee has become the focal point of the interrogation. Without counsel, the chances increase significantly that a suspect will incriminate himself unwillingly. Non-application of Miranda in every interrogation of suspects, both custodial and non-custodial, subverts three main rationales for the privilege against self-incrimination: casting the burden of proof upon the state, avoiding the pooling effect, and protecting the innocent from a wrongful conviction.

Dressler on Dudley and Stephens

Joshua Dressler (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Reflections on Dudley and Stephens and Killing the Innocent: Taking a Wrong Conceptual Path (The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams, Dennis J. Baker and Jeremy Horder, eds., 2013, Forthcoming) on SSRN. Here is the abstract:

This is a chapter of a book, Glanville Williams: The Sanctity of Life and the Criminal Law, to be published in 2013 by Cambridge University Press. In this chapter I argue that the famous "lifeboat" case of Dudley and Stephens was wrongly decided because Lord Coleridge failed to distinguish between the criminal law defense concepts of justification and excuse; and Professor Glanville Williams, in his critique of the case, also failed to focus on this important distinction.

"Army Seeking Death Penalty in Massacre of 16 Afghans"

From the New York Times:

Prosecutors at a week of pretrial hearings in early November at Joint Base Lewis-McChord, where Sergeant Bales was stationed, suggested that he had acted in deliberate fury, perhaps in revenge for a bomb attack that had caused a fellow soldier to lose a leg. Defense lawyers said evidence presented in the hearing about Sergeant Bales’s use of alcohol, steroids and sleeping aids complicated the picture of his mental state.

. . .

“The Army is trying to take the focus off the failures of the Army, which are substantial,” Mr. Browne said in a telephone interview on Wednesday. He said that Sergeant Bales, who has pleaded not guilty, had post-traumatic stress and a concussive head injury, but that the Army sent him anyway “to one of the more intense battlegrounds of Afghanistan, on his fourth deployment.”

Kensy et al. on Drug Policy and Women

Julia Kensy , Camille Stengal , Marie Nougier and Ruth Birgin have posted Drug Policy and Women: Addressing the Negative Consequences of Harmful Drug Control (International Drug Policy Consortium, 2012) on SSRN. Here is the abstract:

A number of reports have documented the negative consequences of current prohibitionist drug control policies on health, human rights and development, and these are the subject of growing international attention. The past thirty years has also seen a growing number of studies on women’s participation in all levels of the drug trade. However, limited research currently exists on the particular impact of drug control on women. This briefing paper focuses on this gap.

This briefing aims to highlight the effects of drug policy on women as producers, suppliers and consumers of drugs in order to inform and guide policy makers on practices that should be avoided, as well as highlight those policies which effectively incorporate and address women’s needs. This briefing also features ‘snapshots’ from women and service providers working with women that are affected by drug policies. These snapshots explore the complex consequences that drug policies have on both individuals and services. Such snapshots also highlight examples of interventions that seek to address the negative consequences of drug control and provide positive support to women.

Robinson on the Proper Role of Community in Determining Liability and Punishment

Paul H. Robinson (University of Pennsylvania Law School) has posted The Proper Role of the Community in Determining Criminal Liability and Punishment on SSRN. Here is the abstract:

This essay argues that community views ought to have a central role in constructing criminal law and punishment rules, for both democratic and crime-control reasons, but ought not to have a role in the adjudication of individual cases. The differences in the American and Chinese debates on these issues are examined and discussed.

Blume on Plea Bargaining, Counsel, and Capital Cases

John H. Blume (Cornell Law School) has posted Plea Bargaining and the Right to the Effective Assistance of Counsel: Where the Rubber Hits the Road in Capital Cases on SSRN. Here is the abstract:

In Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that given the prevalence of plea bargaining in the modern American criminal justice system, the plea negotiation phase of a criminal trial is a “critical stage” of the proceedings. Thus, since a defendant has a Sixth Amendment right to counsel at all critical stages, and thus during plea bargaining, he also has the corollary right to the effective assistance of counsel during plea bargaining. Going forward, courts will be required to address claims that counsel’s failure to persuade a client to accept an offer that was clearly in the client’s best interests was ineffective assistance. This issue will be especially salient in capital cases given that approximately half of current death row inmates rejected a plea bargain that would have spared their lives. In most of the cases in which capital defendants refused to plead guilty in exchange for a life sentece, the prosecution’s offer represented not only the most likely trial outcome, but – in many cases – the best possible trial outcome. This article discusses the reasons defendants facing the death penalty reject life-sparing offers and trial counsel’s responsibilities in encouraging a client to accept a plea bargain in cases literally involving life and death.

Green & Podgor on Fairness for Constituents in Corporate Internal Investigations

Bruce A. Green and Ellen S. Podgor (pictured) (Fordham University School of Law and Stetson University College of Law) have posted Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents (Boston College Law Review, Vol. 54, 2013) on SSRN. Here is the abstract:

This Article focuses on the relationship between corporations and their employee constituents in the context of corporate internal investigations, an unregulated multi-million dollar business. The classic approach provided in the 1981 Supreme Court opinion, Upjohn v. United States, is contrasted with the reality of modern-day internal investigations that may exploit individuals to achieve a corporate benefit with the government. Attorney-client privilege becomes an issue as corporate constituents perceive that corporate counsel is representing their interests, when in fact these internal investigators are obtaining information for the corporation to barter with the government. Legal precedent and ethics rules provide little relief to these corporate employees. This Article suggests that courts need to move beyond the Upjohn decision and recognize this new landscape. It advocates for corporate fair dealing and provides a multi-faceted approach to achieve this aim. Ultimately this Article considers how best to level the playing field between corporations and their employees in matters related to the corporate internal investigation.

Johnson on an Immigration Gideon

Kevin R. Johnson (University of California, Davis - School of Law) has posted Gideon v. Wainwright and the Right to Counsel in Immigration Removal Cases: An Immigration Gideon? (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

Fifty years ago, the Supreme Court decided Gideon v. Wainwright, the landmark case that constitutionally guaranteed counsel to defendants in criminal cases in the United States. Together with the Court’s decision three years later in Miranda v. Arizona, the decision radically transformed the American criminal justice system, both in the courtrooms and in the public eye. 

Few would disagree that the guarantee of a lawyer in criminal prosecutions can make a world of difference to the ultimate outcome of a case. It surely did for Clarence Gideon, who was convicted of burglary without an attorney but, in a new trial, was acquitted of the charges with the assistance of counsel. Besides affecting the outcomes of individual cases, the guarantee of counsel renders the results of a criminal justice system more legitimate and trustworthy to ordinary Americans. 

The contributions to this symposium no doubt will highlight the many legacies – legal and otherwise – of Gideon v. Wainwright. In thinking about the important impacts of the decision, it is critical to remember that the case involved a criminal defendant; the Court’s decision rested on the Sixth Amendment right to counsel for the accused in criminal prosecutions. As a legal matter, the law sharply demarcates between the many rights available to criminal defendants and the significantly more limited bundle of protections for civil litigants. 

The rationale for the dichotomous allocation of rights is that the potential loss of liberty justifies significantly greater constitutional protections for the criminal defendant than those available to civil litigants. The all-important criminal/civil distinction is embedded in many of the Bill of Rights, which provide protections to criminal defendants but not civil litigants. 

As is often the case for dichotomies, the differences between civil and criminal proceedings blur at the margins. There are, for example, civil cases where the stakes are extraordinarily high, so high that they arguably approximate the life and liberty interests implicated by a criminal prosecution. A loss of public benefits or potential eviction from a dwelling, to offer two examples, can have devastating impacts on the lives of people. Importantly, for poor and working Americans, access to the courts with the assistance of a lawyer can make all the difference in the outcome of such important civil proceedings. 

Part I of this essay first analyzes the right to counsel in civil cases involving litigation for high stakes to poor and working people. Part II proceeds to study the right to counsel in a particular category of civil cases – immigration removal cases, which implicate life and liberty concerns similar in important respects to those raised by criminal prosecutions.

Meyer on the Role of Suffering

Linda Ross Meyer (Quinnipiac University School of Law) has posted Law's Suffering on SSRN. Here is the abstract:

Recent scholarship in areas of the law of loss (especially crime and tort) suggests that the law needs to pay more attention to pain. This essay examines legal redress for loss in various doctrines of private and public law in order to map the relation of law and suffering and explore how they shape each other. Law seems to compensate for the lack of law, for “unjustified” or “unusual” suffering, but not for experiences of suffering “as such.” Is law wrong to do so? Is there some other pre-normative account of suffering to which law should respond? Can “raw” suffering cut through legal language? 

Part one sets out the relation between suffering and wrong in the law. Part two examines how the law often elides the normative with the normal, the “wrong” with what is unexpected. Part three suggests that the suffering that is the absence of the “normal” is linked with our need for reliability and is a defense against our finitude. Part four explores the example of torture, the paradigm of lawless suffering “for nothing” that undermines lawfulness itself. Part five discusses the aspects of “suffering” or hurtful loss that are left out of law. 

I conclude that suffering in law is normative all the way down, resistant to any simplistic reductionism or unmediated “experience” of the other. Suffering, moreover, is intimately tied in law to the frustration of our “will to law.” The “will to law,” a human desire for reliability and pattern that protects a finite being from a chaotic world, seeks to normalize the unusual and the aberrant. Even when law tries to compensate for “actual” suffering, and tries to take suffering as a scientific object, the “will to law” makes empirical suffering or pain difficult to measure, because sufferers adapt to the familiar, routine, and normal, and the familiar is not experienced or understood as suffering. Sufferers’ own “will to law” makes the quotidian into the lawful and justified, thereby obscuring (or perhaps alleviating) their own suffering. Finally I look at forms of lawful pain or loss that are left unaddressed and therefore unredressed by the law’s conception of suffering: 1 normal “background” pain or loss, 2) lawful pain or loss “for a good reason,” and 3) the loss of our openness to change and disruption that our “will to law” itself causes, and that is a loss of the capacity for suffering itself.

Perlin, Cucolo & Ikehara on Disability Rights and Criminal Justice in Asia

Michael L. Perlin (pictured), Heather Cucolo and Yoshikazu Ikehara (New York Law School , New York Law School and Tokyo Advocacy Law Office) have posted Online Mental Disability Law Education, a Disability Rights Tribunal, and the Creation of an Asian Disability Law Database: Their Impact on Research, Training and Teaching of Law, Criminology Criminal Justice in Asia (Asian Journal of Legal Education, Vol. 1, No. 1, 2013) on SSRN. Here is the abstract:

Two professors at New York Law School (NYLS) and the director of the Tokyo Advocacy Law Office are engaged in initiatives with the potential to have major influences on the study of law, criminology, and criminal justice: the creation of a Disability Rights Tribunal for Asia and the Pacific (DRTAP), and expansion of NYLS’s online mental disability law program (OMDLP) to include numerous Asian venues. 

DRTAP seeks to create a sub-regional body (a Commission and eventually a Court) to hear violations of the UN’s Convention on the Rights of Persons with Disabilities. This will explicitly inspire scholarship about issues such as treatment of forensic patients, relationships between mental disability and criminal law enforcement, and connections between mental disability and criminal procedure.

NYLS’s OMDLP offers 13 courses to criminologists and criminal justice scholars and will host DRICAP (Disability Rights Information Center for Asia and the Pacific), providing Internet access to important disability rights developments from at least ten nations in the Asia/Pacific region. We believe that this program has the potential to have a significant impact on how criminal law, criminal justice, criminology are taught and studied in all of Asia.

This paper first discusses the development of distance learning, online legal education in this context, next describes the NLYS courses and the DRTAP project, explains their significance to the Asian legal advocacy/criminology/criminal justice communities, and shows how these ventures can foster new research, training and teaching initiatives in this area.

Kim-Butler on Child Pornography Laws

Bryan Kim-Butler has posted Fiction, Culture and Pedophilia: Fantasy and the First Amendment after United States v. Whorley (Columbia Journal of Law & the Arts, Vol. 34, No. 3, p. 545, Spring 2011) on SSRN. Here is the abstract:

Much of the discussion in the majority and dissenting opinions in Fourth Circuit case United States v, Whorley, 550 F.3d 326 (4th Cir. 2008) focuses on first amendment freedom of expression. However, there is in my view an evasiveness in the handling of this case and cases like it. Cultural processes of disavowal and neurosis are central to cases like Whorley, and the courts both respond to those cultural processes and participate in them. My inquiry into the court's opinions in Whorley and a Seventh Circuit case, Doe v. City of Lafayette, Indiana, 377 F.3d 757 (7th Cir. 2004) (en banc) attempts to go beyond a legal analysis of obscenity law into what scholars in various fields have called the "cultural unconscious" of law.

Part I of this article explains the legal framework that gave rise to Whorley by examining the expansion of obscenity law into child pornography law, and closely examines the appeals court's majority opinion in Whorley. In Part II, this article discusses the issue of punishment in Whorley, considering at length the dissent's claim that the holding in Whorley criminalizes thoughts, violating the First Amendment. Part II also examines the figure of the "predator" in the courts. This analysis is aided by reading Whorley alongside Doe v. City of Lafayette, Indiana, another case that arguably criminalizes thoughts in the putative service of protecting children. Finally, Part III gives Whorley consideration more generally in the context of the chilling effects it may have on artistic expression that legitimately challenges how we think about children, sexuality and the freedom of expression.

Chiao on Punishment and Legislative Intent

Vincent Chiao (University of Toronto - Faculty of Law) has posted Punishment and Permissibility in the Criminal Law (Law & Philosophy, Forthcoming) on SSRN. Here is the abstract:

The United States Supreme Court has repeatedly insisted that what distinguishes a criminal punishment from a civil penalty is the presence of a punitive legislative intent. Legislative intent has this role, in part, because court and commentators alike conceive of the criminal law as the body of law that administers punishment; and punishment, in turn, is conceived of in intention-sensitive terms. I argue that this understanding of the distinction between civil penalties and criminal punishments depends on a highly controversial proposition in moral theory — namely, that an agent’s intentions bear directly on what it is permissible for that agent to do, a view most closely associated with the doctrine of double effect. Therefore, legal theorists who are skeptical of granting intention this kind of significance owe us an alternative account of the distinctiveness of the criminal law. I sketch the broad outlines of just such an alternative account — one that focuses on the objective impact of legislation on a class of protected interests, regardless of the state’s motivations in enacting the legislation. In other words, even if the concept of punishment is unavoidably intention-sensitive, it does not follow that the boundaries of the criminal law are likewise intention-sensitive, because the boundaries of the criminal law may be drawn without reference to the concept of punishment. I conclude by illustrating the application of this view to a pair of well-known cases, and noting some of its ramifications.

Kennedy & Easteal on Indeterminacy and Sexual Assault Law

Jessica Kennedy and Patricia L. Easteal (University of Canberra and University of Canberra - Faculty of law) have posted Shades of Grey: Indeterminacy and Sexual Assault Law Reform (13 Flinders Law Journal 49-77, 2011) on SSRN. Here is the abstract:

This paper discusses the theory behind legal indeterminacy, the need for it in Australian law, and how it can affect the implementation of legislative reform. A sample of sexual assault law reform provisions that were enacted to better protect victim witness from retrauma are deconstructed to demonstrate their statutory indeterminacy. We then examine the ways in which the greyness of these laws has facilitated and/or could affect judicial discretion, which from a feminist perspective, is exercised within a context replete with beliefs about ‘real rape’ and the accused’s right to a fair trial.