CrimProf Blog

Osler on Trailing-Edge Guidelines

Mark William Osler (Univ. of St. Thomas (MN)) has posted The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion on SSRN. Here is the abstract:

Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities.

The underlying problem is a view of sentencing that sees a zero-sum equation between judicial discretion and uniformity - that is, the belief that uniformity must be established by curtailing judicial discretion. This article argues for a different model: Sentencing guidelines that use peer effects and modern technology to directly use judicial discretion to create uniformity. Instead of mandated, arbitrary guidelines, a computer-based sentencing information system would require a sentencing judge to review and consider all the other sentences chosen by judges in similar situations, and this body of experience would functionally become the guidelines. A judge who strays too far from the norm would have to justify that choice based on unusual and compelling circumstances. Such a system would harness discretion as the engine towards uniformity, and discard the false dichotomy between the two that has created so much discord.

Siegel on Defense Counsel's Provision of Information Concerning Ineffective Assistance Claims

David M. Siegel (New England Law - Boston) has posted What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings? (The Champion, Vol. 18, No. 35, December 2011) on SSRN. Here is the abstract:

In July 2010 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion that any criminal defense lawyer facing or bringing a claim of ineffective assistance of counsel (IAC), or any prosecutor defending one, should read. Formal Opinion 10-456, 'Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim,' answers the question implicit in its title, in short: Unless by express waiver of the former client after informed consent, no more than necessary to respond to the specific allegations, and then only in a formal proceeding that provides for judicial supervision. The opinion explains that voluntary disclosures outside formal proceedings are impermissible, and that the self-defense exception to the obligation to maintain confidentiality has very limited application in the post-conviction context. Critics have questioned the Opinion’s narrow interpretation of the self-defense exception, its claims that prosecutors face little prejudice from inability to receive information from defense counsel before a proceeding, and its assertion that defense lawyers have little justifiable need to make such advance disclosures. This short article outlines the opinion, describes developing jurisprudence concerning defense counsel’s cooperation with the prosecutor, and sets forth suggested practices for counsel facing allegations of IAC.

Levy on Dangerous Psychopaths

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention (San Diego Law Review, Vol. 48, p. 1299, 2011) on SSRN. Here is the abstract:

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or criminal punishment requires criminal responsibility, which itself requires moral responsibility. I will argue, however, that the virtually universal assumption that just criminal punishment requires moral responsibility - whether or not through the middle term of criminal responsibility - is false; that although psychopaths are not morally responsible, they are still criminally responsible and criminally punishable.

If I am correct, then contrary to many scholars but consistent with the current law, psychopaths are not in fact insane and should therefore continue to be criminally punished for their criminal acts. One drawback of this position is that it will be slightly more difficult for the state to justify preventively detaining psychopaths who have not committed any criminal acts but have signaled in one way or another that they are inclined in this direction. Still, this drawback is hardly a reason to call psychopaths something that they are not - again, insane. Moreover, slightly more difficult does not mean too difficult. Even if dangerous psychopaths are not insane, the state still can, and should, preventively detain them. The reason is that the state is allowed to involuntarily commit people who are both mentally ill and dangerous to themselves or others. And although psychopathy is not currently considered to be a mental illness, no less a form of insanity, I will argue that it should be.

SpearIt on Gender Violence in Prison and Its Impacts

SpearIt (Saint Louis University School of Law) has posted Gender Violence in Prison & Hyper-Masculinities in the ’Hood: Cycles of Destructive Masculinity (Journal of Law & Policy, Vol. 37, p. 89, 2011) on SSRN. Here is the abstract:

This Article examines gender violence in male prisons and its impact on marginal communities — the slums, ’hoods, ghettos and barrios — where inmates return when released from prison. It is a qualitative study that analyzes documentary works on sex and gender violence in the correctional setting, including text, video, and film sources. The Article argues that social constructions of masculinity, including ideologies of patriarchy and heterosexuality, are the foundation for creating destructive masculinities in prison that seep into these communities by the return of disaffected inmates. The law contributes to inmate victimization, and in some systems, rules, policies, and procedures contribute structurally to the problem. Victims suffer long after they leave prison, including from post-traumatic disorders and health complications from sexually transmitted diseases. When such an individual returns, his problems become the community’s since he returns not merely as the chauvinistic sexist who entered, but someone far more menacing. Although his home community may already be defined by high rates of crime, violence, and poor public health, it is made more vulnerable by the release of inmates who return with ultra-masculine proclivities and high rates of disease infection. In the upcoming decades, marginal communities will absorb unprecedented numbers of released inmates at a social cost that is just at the beginning of calculation. What follows represents a contribution to the tally and to the continuing need for structural analysis of imprisonment’s collateral consequences. Examination of documentary works offers unique insight to this growing problem, and better, ideas for legal and cultural interventions.

"Probable cause of what? A comment on Messerschmidt v. Millender"

Orin Kerr has this post at ScotusBlog addressing the Court's suggestion that search might be justified not only by probable cause that it will turn up contraband and evidence of crime, but also impeachment evidence or evidence that might be helpful in countering defenses.

Argument transcript in double jeopardy case

The transcript from Blueford v. Arkansas is here.

Fan on State Crimmigration Enforcement and the Foreign Affairs Power

Mary D. Fan (University of Washington - School of Law) has posted Rebellious State Crimmigration Enforcement and the Foreign Affairs Power (Washington University Law Review, Vol. 89, 2012) on SSRN. Here is the abstract:

The propriety of a new breed of state laws interfering in immigration enforcement is pending before the Supreme Court and the lower courts. These laws typically incorporate federal standards defining unlawful alienage and immigration-related criminalization but diverge aggressively from federal enforcement policy. Enacting states argue that the legislation is merely a species of “cooperative federalism” that does not trespass upon the federal power over foreign affairs, foreign commerce and nationality rules since the laws mirror federal standards. This article challenges the formalist mirror theory assumptions behind the new laws and argues that inconsistent state crimmigration enforcement policy and resulting foreign affairs complications render the new spate of immigration policing laws infirm. The article argues for the need to give due weight to statements of interest by the executive on the foreign affairs implications of rebellious state crimmigration enforcement.

The article contends that the caste-carving approach of the multi-front “attrition through enforcement” attack strategy behind the laws contravenes national immigration enforcement policy and strains foreign relations. The analysis provides a basis for distinguishing the Supreme Court’s recent decision in Chamber of Commerce v. Whiting upholding the Legal Arizona Workers Act from the current spate of legislation pending in the courts. The analysis in the crimmigration context also enriches our understanding of what cooperative -- and uncooperative -- federalism enforcement means and the dangers of the phenomenon in areas of special national concern fraught with localized animosity.

Stabenow on Reforming the Child Pornography Guidelines

Troy K. Stabenow (Office of the Federal Public Defender for the Western District of Missouri) has posted A Method for Careful Study: A Proposal for Reforming the Child Pornography Guidelines (Federal Sentencing Reporter, Vol. 24, No. 2, p. 108, December 2011) on SSRN. Here is the abstract:

The U.S. Sentencing Commission is reportedly nearing release of a much-anticipated report to Congress assessing the validity of § 2G2.2 as a sentencing tool for child pornography offenses. A consensus for considering reform exists. What remains uncertain is what sort of changes might be coming, and by what process they may occur. In order to merit deference and compliance, any changes to § 2G2.2 would need to reflect relevant and validated scientific data yet also account for common practical experiences. In this article, the author, an assistant federal public defender, proposes a specific framework for how the Sentencing Commission might reform § 2G2.2 to better reflect science and common experience. The proposal draws on the author's experiences prosecuting, defending, and consulting on these cases over the last twelve years, as well as analysis and discussion of available scientific studies and statistics.

Heminway on Corporate Criminal Liability and Citizens United

Joan MacLeod Heminway (University of Tennessee College of Law) has posted Thoughts on the Corporation as a Person for Purposes of Corporate Criminal Liability (Stetson Law Review, Vol. 41, 2011) on SSRN. Here is the abstract:

This brief piece explores basic connections between Citizens United v. Federal Election Commission and corporate criminal liability. An opinion of the Tennessee Attorney General released after Citizens United acts as a further discussion catalyst for, and illustration of, the arguments advanced in this Article. Ultimately, the Article urges a way of looking at corporate criminal liability that is not 'wooden' - an approach that shows some sensitivity to issues of policy and theory (including those related to agency law and punishment).

Jackson et al. on Why People Comply with Law

Jonathan Jackson , Ben Bradford , Mike Hough , Andy Myhill , Paul Quinton and Tom Tyler (London School of Economics & Political Science - Methodology Institute , University of Oxford - Centre for Criminology , University of London - Institute for Criminal Policy Research , National Policing Improvement Agency , National Policing Improvement Agency and New York University (NYU) - Department of Psychology) have posted Why Do People Comply with the Law? Legitimacy and the Influence of Legal Institutions on SSRN. Here is the abstract:

This paper extends Tyler’s procedural justice model of public compliance with the law. Analysing data from a national probability sample of adults in England and Wales, we present a new conceptualisation of legitimacy based not just on the recognition of power but also the justification of power. We find that people accept the police’s right to dictate appropriate behaviour, not only when they feel a duty to obey officers, but also when they believe that the institution acts according to a shared moral purpose with citizens. Highlighting a number of different routes by which institutions can influence citizen behaviour, our broader normative model provides a better framework for explaining why people are willing to comply with the law.

Berkheiser on Graham v. Florida

Mary Berkheiser (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Death Is Not So Different After All: Graham v. Florida and the Court’s 'Kids Are Different' Eighth Amendment Jurisprudence (Vermont Law Review, Vol. 36, p. 1, 2011) on SSRN. Here is the abstract:

In Graham v. Florida, the United States Supreme Court declared that life sentences without the possibility of parole for non-homicides are off limits for all juveniles. Following its lead in Roper v. Simmons, the landmark decision in which the Court abolished the juvenile death penalty, the Court expanded on its Eighth Amendment juvenile jurisprudence by ruling that locking up juveniles for life based on crimes other than homicides is cruel and unusual and, therefore, prohibited by the Eighth Amendment. With that ruling, the Court erected a categorical bar to incarcerating forever those not yet adults at the time of their crimes. That categorical exclusion is itself a momentous development, and it will impact directly the lives of the 129 juvenile offenders whose sentences for non-homicides have relegated them to prison with no prospect of ever being freed. Of even greater import for the thousands of juvenile offenders whose sentences Graham does not impact directly, however, is the legal reasoning the Court used in striking down juvenile life without parole for non-homicides.

The Court employed an analytical approach previously reserved exclusively for death penalty cases, and it did so without fanfare or elaboration. With Graham, the Court unceremoniously dismantled the wall that has separated its “death is different” jurisprudence from non-capital sentencing review since 1972. In its place, the Court fortified an expansive “kids are different” jurisprudence that traces its roots to Thompson v. Oklahoma and is now firmly planted with the Court’s rulings in Roper and Graham. Just as Graham crossed the rigid divide between the Court’s death and non-death cases, it places the Court’s categorical approach to sentencing, formerly the exclusive province of the death penalty, within reach of all juveniles serving adult sentences.

Penney on Canadian Surveillance in an Age of Terror

Steven Penney (University of Alberta - Faculty of Law) has  posted National Security Surveillance in an Age of Terror: Statutory Powers & Charter Limits (Osgoode Hall Law Journal, Vol. 48, pp. 247-86, 2010) on SSRN. Here is the abstract:

The communications surveillance powers granted to Canada’s national security agencies have rarely resulted in prosecution and, as a result, have been subject to very little judicial, academic, or public scrutiny. However, as the state increasingly seeks to prosecute alleged terrorists, courts will have to interpret the scope of these powers and decide whether they violate section 8 of the Canadian Charter of Rights and Freedoms (the Charter). A review of the powers granted to police, the Canadian Security Intelligence Service (CSIS), and the Communications Security Establishment Canada (CSEC) reveals two constitutional infirmities: allowing police to conduct communications surveillance in terrorism investigations without establishing “investigative necessity,” and allowing CSEC to intercept domestic communications without prior judicial authorization. Put simply, these powers should be found to violate section 8 of the Charter because they substantially infringe on the privacy of innocent Canadians, especially of Muslim or Arab background, while doing little to advance national security.

Court reverses Ninth Circuit, supports qualified immunity for search pursuant to warrant

Chief Justice Roberts wrote the opinion of the Court in Messerschmidt v. Millender. Justice Kagan concurred in part and dissented in part, and Justice Sotomayor, joined by Justice Ginsburg, dissented.

Robinson on Lawlessness and Justice

Paul H. Robinson (University of Pennsylvania Law School) has posted Natural Law & Lawlessness: Modern Lessons from Pirates, Lepers, Eskimos, and Survivors on SSRN. Here is the abstract:

The natural experiments of history present an opportunity to test Hobbes' view of government and law as the wellspring of social order. Groups have found themselves in a wide variety of situations in which no governmental law existed, from shipwrecks to gold mining camps to failed states. Yet the wide variety of situations show common patterns among the groups in their responses to their often difficult circumstances. Rather than survival of the fittest, a more common reaction is social cooperation and a commitment to fairness and justice, although both can be subverted in certain predictable ways. The absent-law situations also illustrate the dependence of social order and cooperation on a group's commitment to justice.

The insights from the absent-law situations have implication for several modern criminal justice issues, including the appropriate distributive principle for criminal liability and punishment, restorative justice programs, the movement to promote non-incarcerative sanctions, transitional justice and truth commissions, the use-of-force rules under international law, the procedures for fairness in criminal adjudication, and crime-control policies in fighting organized crime and terrorism.

Bradford on Policing and Social Identity

Ben Bradford (University of Oxford - Centre for Criminology) has posted Policing and Social Identity: Procedural Justice, Inclusion, and Cooperation between Police and Public on SSRN. Here is the abstract:

Accounts of the social representation of policing and of the relationship between police and citizen converge on the idea that police behaviour carries important identity-relevant meaning. Opinions of and ideas about the police are implicated in the formation of social identities that relate to the social groups it represents – nation, state and community. Procedural justice theory suggests that judgements about the fairness of the police will be the most important factor in such processes. Fairness promotes a sense of inclusion and value within the group. Furthermore, positive social identities in relation to the police should on this account promote cooperation with it. This paper presents an empirical test of these ideas in the context of British policing. Data from a survey of young Londoners are used to show that perceptions of police fairness are indeed associated with social identity, and in turn social identity can be linked to cooperation. Yet these relationships were much stronger among those with multiple national identities. Police behaviour appeared more identity relevant for people who felt they were citizens of a non-UK country, while for those who identified only as British there was a weaker link between procedural fairness and social identity, and legitimacy judgements were the main ‘drivers’ of cooperation. Policy and theoretical implications are discussed.

Slobogin on Three Recent Fourth Amendment Articles

Christopher Slobogin (Vanderbilt Law School) has posted Comments on Three Recent Fourth Amendment Articles on SSRN. Here is the abstract:

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law ought to be structured to ensure that the balance of power between government and citizenry remains constant. Contrary to Professor Kerr’s assertion, however, his equilibrium-adjustment theory does not easily explain many of the Court’s cases, nor does it help address the most difficult Fourth Amendment issues facing the Court today. The historical foundations on which it rests are often shaky or insufficiently cognizant of modern preferences. At bottom, equilibrium-adjustment theory is originalism, and thus suffers from all of the problems associated with that methodology.

The Implications of Disentanglement, published in Columbia Law Review Sidebar, is a response to Eve Brensike Primus’ recent article in Columbia Law Review, Disentangling Administrative Searches. Professor Brensike Primus argues that the Supreme Court’s so-called “administrative search cases” in fact comprise two separate strands, the first focused on “dragnets” that involve area or group searches and the second dealing with searches of people belonging to “special populations” that are associated with a lesser expectation of privacy. Thus, she argues, the Court’s recent tendency to lump these two types of searches together under its “special needs” rubric is misguided, and it should instead return to its traditional presumption against suspicionless dragnet searches and a multi-factor reasonableness analysis when dealing with special population searches. This response agrees with the entanglement thesis, but contends that it is overstated. More importantly, it disagrees with Professor Brensike Primus’ prescriptions for dealing with the two types of searches.

Why Crime Severity Analysis Is Unreasonable, published in the Iowa Law Review Bulletin, is a critique of Jeffrey Bellin’s article, Crime Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, which recently appeared in Iowa Law Review. Professor Bellin argues that the severity of the crime under investigation ought to be taken into account in assessing both the reasonableness of searches and whether a government action is a search in the first place, in the hope that courts will impose more restrictions on searches in cases involving minor crimes once they realize those rules will not handcuff investigations of serious crimes. A more likely result of taking crime severity into account, however, is that courts will apply the warrant baseline to minor crimes and ratchet protections downward when law enforcement goes after people suspected of being terrorists, murderers, rapists and robbers. Enforcing already-existing search incident and particularity doctrine, limiting consent as a basis for searches, and explicitly recognizing a narrowly-limited danger exception would be a safer way to accomplish the goals motivating Professor Bellin’s proposals.

Kolber on Smooth and Bumpy Laws

Adam J. Kolber (NYU School of Law) has posted Smooth and Bumpy Laws on SSRN. Here is the abstract:

Modest differences in conduct can lead to wildly different legal outcomes. A reasonably prudent driver who causes an accident owes nothing, but had the driver been just a bit less cautious, he might have owed millions of dollars. A man who has sex with a woman reasonably believing she consents likely commits no crime, but if he had just a bit more reason to doubt that she consented, he might have been convicted of rape. While the law must draw difficult lines, it is puzzling why the lines have such startling effects. After all, we can fine-tune damage awards and the duration of prison sentences anywhere along a spectrum.

A law is “smooth” when a gradual change in conduct leads to a gradual change in the legal outcome. The prior examples are not smooth but “bumpy”: gradual changes in conduct sometimes have no effect on the legal outcome and sometimes have dramatic effects. The law is full of these bumpy relationships between legal inputs and outputs that create hard-to-justify discontinuities. While considerations like cost and administrability sometimes justify bumpy laws, I show why there are many opportunities to make the law smoother than it is.

Leachman, Chettiar & Geare on Improving Budget Analysis of Criminal Justice Reforms

Michael Leachman , Inimai Chettiar and Benjamin Geare (Oregon Center for Public Policy (OCPP) , American Civil Liberties Union and affiliation not provided to SSRN) have posted Improving Budget Analysis of State Criminal Justice Reforms: A Strategy for Better Outcomes and Saving Money on SSRN. Here is the abstract:

Across the nation, state governments are mired in economic crisis. Over 40 states had billions in budget shortfalls last year. With this grave reality in mind, this report, Improving Budget Analysis of State Criminal Justice Reforms, details how a change to the way states perform cost evaluations of legislation could help alleviate the strain. It explains how enacting certain criminal justice reforms will significantly reduce states’ runaway spending on prisons. This problem can be somewhat alleviated if states have in place adequate procedures to accurately research and draft the “fiscal notes” legislatures require to accompany such proposals. These fiscal notes contain official state estimates of the costs and savings to state treasuries of proposed laws under consideration by the legislature. This report finds that the vast majority of states do not accurately perform these fiscal notes in a way that is useful to legislators. It recommends a series of best practices for states to provide accurate fiscal information to state legislators. By following these best practices, states can calculate both short- and long-term costs and cost savings for criminal justice bills and easily provide that information to legislators, who can then know the true fiscal implications of reform proposals before voting on them. States can use these best practices to reform their fiscal note process. Advocates and the public can also use these best practices to better understand the accuracy of fiscal notes currently produced by states and the reach of their usefulness.

Court vacates habeas grant in Brady dispute

The per curiam opinion is in Wetzel v. Lambert. Justice Breyer, joined by Justices Ginsburg and Kagan, dissented.

Court holds imprisonment does not necessarily constitute "custody" under Miranda

The case is Howes v. Fields. Justice Alito wrote the opinion for the Court. Justice Ginsburg, joined by Justices Breyer and Sotomayor, concurred in part and dissented in part.