January 5, 2013
Slobogin and Brinkley-Rubinstein on Empirical Desert
Christopher Slobogin (pictured) and Lauren Brinkley-Rubinstein (Vanderbilt University - Law School and Vanderbilt University, Peabody College) have posted Putting Desert in Its Place (Stanford Law Review, Vol. 65, p. 1, January 2013) on SSRN. Here is the abstract:
Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.” The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived lay views about how much punishment is deserved is the most efficient way of achieving utilitarian goals, or at least is as efficient at crime prevention as a system that focuses solely on deterrence and incapacitation. This Article describes seven original studies that test the most important hypotheses underlying empirical desert theory. The authors’ conclusions, which throw doubt on much of empirical desert theory, include the following: (1) while consensus on the ordinal ranking of traditional crimes is relatively strong, agreement about appropriate punishments — which arguably is the type of agreement empirical desert requires in order to work — is weak; (2) the relationship between people’s willingness to abide by the law and the law’s congruence with their beliefs about appropriate punishment is complex and not necessarily positive; further, any noncompliance that results from the law’s failure to reflect lay views about desert is probably no greater than the noncompliance triggered by a failure to follow lay views about the role utilitarian goals should play in fashioning criminal dispositions; (3) while the relative crime control benefits of a desert-based system and a prevention-based system are hard to evaluate (and are not directly examined here), people are willing to depart from desert in cases that do not involve the most serious crimes if they believe that preventive goals can be achieved in some other way. The Article ends by discussing the implications of these findings for criminal justice policy, especially with respect to determinate and indeterminate sentencing.
"Rape by False Pretenses"Kent Scheidegger has this post at Crime and Consequences summarizing and commenting on this past week's decision from the California Court of Appeal reversing a defendant's conviction for having sex by pretending to be the partner's boyfriend. In part: "Given the attention this case has received, there is a good chance that even California's generally pro-criminal Legislature will have to fix this statute, as the court has urged it to do."
"Gary Becker and Kevin Murphy on the Failure of the War on Drugs"Ilya Somin at The Volokh Conspiracy excerpts this column from The Wall Street Journal.
Next week's criminal law/procedure arguments
Issue summaries are from ScotusBlog, which links to papers:
Monday, Jan. 7
- Descamps v. U.S.: Whether, in a case under the Armed Career Criminal Act, when a state crime does not require an element of the federal crime of burglary, the federal court may find the existence of that element by examining the record of the state proceedings under the "modified categorical approach.”
Wednesday, Jan. 9
- Missouri v. McNeely: Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.
Friday's criminal law/procedure cert grant
Issue summary is from ScotusBlog, which also links to papers:
- United States v. Davila: Whether the court of appeals erred in holding that any degree of judicial participation in plea negotiations, in violation of Federal Rule of Criminal Procedure 11(c)(1), automatically requires vacatur of a defendant’s guilty plea, irrespective of whether the error prejudiced the defendant.
January 4, 2013
Baradaran on the Presumption of Punishment
Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted The Presumption of Punishment (Criminal Law & Philosophy, Forthcoming) on SSRN. Here is the abstract:
The presumption of innocence undergirds the American criminal justice system. It is so fundamental that it is derived from the concepts of due process and the importance of a fair trial. An informed historical understanding of the interaction between the presumption of innocence and key tenets of due process can help clarify the meaning and application of the presumption of innocence in the modern day. Due Process, as developed throughout English and U.S. Colonial history leading up to the formation of the U.S. Constitution, has two important implications. First, due process provides a general guarantee of liberty against punishment or imprisonment without a fair trial. Second, due process requires that a jury, as opposed to a judge, determine the factual guilt of a defendant at trial. These two key tenets were historically fundamental to due process and should guide how the presumption of innocence impacts various stages of trial, including pretrial detention decisions and sentencing. Returning to a historical understanding of due process requires that judges not determine facts or punish individuals before a trial has occurred.
January 3, 2013
Trachtenberg on Confronting Coventurers
Ben Trachtenberg (University of Missouri School of Law) has posted Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause (64 Florida Law Review 1669 (2012)) on SSRN. Here is the abstract:
Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay exception cannot plausibly be described as “firmly rooted” in American law, nor does the hearsay included in the new exception bear “indicia of reliability,” coventurer hearsay would have been inadmissible at criminal trials under pre-Crawford Sixth Amendment jurisprudence. The overwhelming majority of coventurer statements, however, are not “testimonial,” meaning that current Confrontation Clause law does not prohibit their use against criminal defendants. Accordingly, coventurer hearsay demonstrates that defendants suffer prejudice from the Court’s reinterpretation of the Sixth Amendment.
After reviewing evidence that the Crawford majority misinterpreted the historical background of the Confrontation Clause, the Article argues that the Court should reexamine whether the Confrontation Clause, or perhaps the Due Process Clauses of the Fifth and Fourteenth Amendments, should be read to prohibit the admission of dangerously unreliable hearsay against criminal defendants, even if such hearsay is “nontestimonial.” The case of the Holy Land Foundation - in which the United States government closed America’s largest Muslim charity and convicted five leaders of funneling money to Hamas - provides a concrete example of coventurer hearsay run amok. The prosecution case relied heavily on “joint venture” hearsay, unreliable out-of-court statements admissible only pursuant to a new interpretation of the coconspirator exception, a hearsay exception likely to have been found unconstitutional under the Confrontation Clause jurisprudence upended by Crawford. The result exemplifies the injustice made possible by recent case law and provides a new challenge to the testimonial theory of confrontation law.
Lee on Military Veterans, Culpability, and Blame
Youngjae Lee (Fordham University School of Law) has posted Military Veterans, Culpability, and Blame (Criminal Law and Philosophy, 2013, Forthcoming) on SSRN. Here is the abstract:
Recently in Porter v. McCollum, the United States Supreme Court, citing “a long tradition of according leniency to veterans in recognition of their service,” held that a defense lawyer’s failure to present his client’s military service record as mitigating evidence during his sentencing for two murders amounted to ineffective assistance of counsel. The purpose of this article is to assess, from the just deserts perspective, the grounds to believe that veterans who commit crimes are to be blamed less by the State than offenders without such backgrounds. Two rationales for a differential treatment of military veterans who commit crimes are typically set forth. The Porter Court raised each, stating that we should treat veterans differently “in recognition of” both “their service” and “the intense stress and mental and emotional toll” of combat. The former factor suggests there being a “social contributions” or gratitude-based discount, whereas the latter factor points towards a “mental disturbance” discount. This article analyzes the two accounts and raises some doubts about both. This article then argues that a military veteran who commits a crime should not be blamed to the full extent of his blameworthiness, not necessarily because of his mental capacity nor because of his social contribution, but because the State’s hand in producing his criminality undermines its standing to blame him.
Bowman on Cognitive Science, Informants, and Search Warrants
Mary Bowman (Seattle University School of Law) has posted Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny on SSRN. Here is the abstract:
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities.To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.
January 2, 2013
Klingele on Vindicating the Right to Counsel
Cecelia M. Klingele (University of Wisconsin Law School) has posted Vindicating the Right to Counsel (Federal Sentencing Reporter, Vol. 25, No. 87, 2012) on SSRN. Here is the abstract:
This essay introduces an issue of the Federal Sentencing Reporter devoted to the Sixth Amendment right to counsel. Almost fifty years ago, the Supreme Court recognized a Constitutional right to counsel for indigent defendants in Gideon v. Wainwright; since that time, major changes in law and procedure have altered the landscape of the criminal justice system. The contributors to this volume discuss the legal ramifications of some of those changes, focusing on the Supreme Court's recent decisions in Missouri v. Frye and Lafler v. Cooper. The contributors also examine how deficits in the appointment, monitoring, and compensation of counsel often thwart the ability of counsel to provide robust - or even minimally adequate - representation to indigent defendants. The essay reviews the insights of the contributors before shifting focus to the role that individual lawyers play in vindicating the right to counsel. The Constitutional adequacy of representation is measured by "prevailing professional norms" of practice. That standard, used by all courts to measure the substance of the Sixth Amendment right, suggests that the power to deliver on Gideon's promise ultimately rests with counsel who, by providing thorough, thoughtful representation for each client, raise the standards of the profession and add to the force of the Sixth Amendment, not only for their own clients, but for all.
Scott on Children and the Eighth Amendment
Elizabeth S. Scott (Columbia University - Law School) has posted 'Children are Different:' Constitutional Values and Justice Policy (Ohio State Journal of Criminal Law, Vol. 10, 2013) on SSRN. Here is the abstract:
This essay is part of a symposium on Miller v. Alabama, the 2012 Supreme Court opinion striking down statutes imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay explores the importance of Miller and two earlier Supreme Court opinions rejecting harsh sentences for juveniles for Eighth Amendment jurisprudence and for juvenile crime regulation. It argues that the Court has broken new ground with these opinions in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles’ non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing that the Court has embraced a developmental model of youth crime regulation and elevated this approach to one that is grounded in constitutional values and principles. This approach represents a forceful repudiation of the punitive law reforms of the late 20th century, when the relevance of adolescents’ developmental immaturity to justice policy was either ignored or rejected. The opinions offer four key lessons for lawmakers. The first is that juvenile offenders are different from and less culpable than adults and should usually be subject to more lenient criminal sanctions. The second lesson is that decisions to subject juveniles to adult prosecution and punishment should be “unusual” and individualized — made by a judge in a transfer hearing and not by categorical legislative waiver. The third lesson is that sanctions should focus on maximizing young offenders’ potential for reform and the fourth is that developmental science can guide and inform juvenile crime regulation in useful ways. These four lessons, formulated by our preeminent legal institution and embodying constitutional values, are likely to have a profound influence on the future direction of youth crime regulation.
Duff on Presuming Innocence
R. A. Duff (University of Minnesota Law School) has posted Who Must Presume Whom to Be Innocent of What? (Netherlands Journal of Legal Philosophy, Forthcoming) on SSRN. Here is the abstract:
This paper considers the roles that may be played by a “presumption of innocence” outside the criminal trial — a presumption that reflects a general principle of civic trust. We can understand the significance of this presumption, and the ways in which it can be qualified (without being defeated) by attending to some of the normative roles that citizens might take on, or have imposed on them, in relation to the criminal law, and the responsibilities or duties that attach to those roles. Particular attention is paid to the distinctive roles of “defendant” and of “ex-offender”, and to the question of whether it can be consistent with the presumption of innocence to treat either defendants or those who have completed their punishments as, if not guilty, at least far from unqualifiedly innocent.
January 1, 2013
Bennardo on Incarceration's Incapacitative Shortcomings
Incapacitation is the removal of an offender’s ability to commit further crime. This essay identifies two distinct types of incapacitative effects: offense-specific incapacitation and victim-specific incapacitation. The former focuses on limitations on the offender’s range of conduct. The latter focuses on limitations on the offender’s access to particular populations.
As a punishment, incarceration incapacitates quite incompletely. Because imprisonment does not render inmates totally unable to commit crime, it fails to achieve complete offense-specific incapacitation. And, because it merely substitutes one set of potential victims for another, imprisonment fails on the total victim-specific incapacitation front as well. Instead, imprisonment achieves partial offense-specific and partial victim-specific incapacitation by inhibiting prisoners from committing certain offenses and separating inmates from certain populations. When the incapacitative benefit of incarceration is discussed, however, it is not usually described in such a circumscribed way. Rather, commentators often state that imprisonment fully incapacitates by removing offenders from “society.” Such statements, which implicitly discount prison crime and its victims to zero, are factually inaccurate and dehumanizing. To avoid such inaccuracy and inadvertent discounting, this essay endeavors to accurately describe the offense-specific and victim-specific incapacitative benefits and limitations of incarceration.
Wright & Peeples on Metrics for Defense Lawyers
Ronald F. Wright (pictured) and Ralph A. Peeples (Wake Forest University - School of Law and Wake Forest University - School of Law) have posted Criminal Defense Lawyer Moneyball: A Demonstration Project (Washington and Lee Law Review, Forthcoming) on SSRN. Here is the abstract:
The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.
Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.
Hyatt, Chanenson & Bergstrom on Risk Assessments and Cost-Benefit Analysis in Sentencing
Jordan Hyatt , Steven L. Chanenson and Mark H. Bergstrom (University of Pennsylvania - Jerry Lee Center of Criminology , Villanova University School of Law and Pennsylvania State University) have posted Reform in Motion: The Promise and Perils of Incorporating Risk Assessments and Cost-Benefit Analysis into Pennsylvania Sentencing (Duquesne University Law Review, Vol. 49, 2011) on SSRN. Here is the abstract:
Actuarial risk assessment and cost-benefit analyses have become increasingly commonplace in many areas of criminal justice. The integration of these tools in sentencing represents a natural and logical next step. In Pennsylvania, the pace of this development has recently accelerated, as reform legislation now mandates the inclusion of actuarial methodologies into the sentencing architecture. This article considers the promises and the perils of this integration in light of Pennsylvania’s sentencing structure. The authors conclude by presenting four key questions that legislators in Pennsylvania- as well as other jurisdictions beginning to addresses the use of empirical data in sentencing- should consider before implementation.
December 30, 2012
Roach on the Charter versus the Government's Crime Agenda
Kent Roach (University of Toronto - Faculty of Law) has posted The Charter versus the Government's Crime Agenda (Supreme Court Law Review, Vol. 58, pp. 211-243, 2012) on SSRN. Here is the abstract:
The Safe Streets and Communities Act S.C. 2012 c. 1 (also known as Bill C-10) , like many other parts of the Canadian government’s crime agenda, relies on both prosecutorial discretion and a general judicial reluctance to strike down mandatory sentences. Successful Charter challenges to mandatory sentences are not impossible as seen by Justice Molloy’s recent decision in Smickle, but they will be difficult. In particular the use of reasonable hypotheticals in s.12 analysis may be precluded by reliance on the assumption that longer mandatory sentences will not be applied when the Crown has the power to avoid such sentences by electing to prosecute the relevant crime by way of summary conviction. Courts will then be reluctant to review directly such exercises of prosecutorial discretion. The Supreme Court will ultimately have to decide whether it wishes to maintain the level of judicial deference towards mandatory sentences that it has demonstrated in the past. The articles argues that a more traditional approach to proportionality that focus on the relationship between particular crimes and punishment is more promising than newer approaches based on arbitrariness in relation to legislative purposes or gross disproportionality in the costs and benefits of legislative interventions as conduct in the Insite case and Bedford. At the same time, the article suggests that a contextual approach to proportionality between crimes and punishment that factors in offender characteristics should be taken s in Smith and Ipeelee and not the more abstract approach taken in Morrisey. Should mandatory sentences be found to violate either ss.7 or 12 of the Charter, they will be difficult to justify under s.1 and that such policy analysis about the necessity and effects of mandatory sentences is best conducted under s.1 rather than within ss.7 and 12 of the Charter.
Carroll on Nullification as Law
Jenny Carroll (Seton Hall University - School of Law) has posted Nullification as Law on SSRN. Here is the abstract:
The Rule of Law is central to our notion of governance and our legal system. The ideal of a knowable, settled, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm in which competing theories seek to claim the mantle of the Rule of Law. While this article cannot claim to resolve the dispute over the precise meaning or construct of the Rule of Law, it does seek to consider the questions that jury nullification raises in the context of our republican democracy. In so doing a more nuanced conception of the Rule of Law emerges – one grounded in the daily realities of the lives the law would govern.
On some most basic level, nullification would seem to raise the question of what role can a citizen play in directly making law? The audacity of a juror defining law speaks of some small space in which law is constructed and later given meaning outside the halls of formal government. It suggests a law that is broader, dependent on citizen interpretation and/or construction. In its very nature, nullification points to a juror as a source of the law itself. But to what end? Will the law carry any meaning beyond the verdict it creates? Does such direct citizen action have a place in the democracy so dependent on process and representation for law making? Will a juror’s act of nullification tear the Rule of Law asunder? Or is the concept more enduring, with the nullifying juror a part of its constant development of recognition and acceptance?
In trying to answer these questions, I consider the development of the citizen’s relationship with the government reflected in changing notions about the criminal jury’s role in the construction and interpretation of the law. In the end, it seems that any meaningful discussion of the Rule of Law should include an acknowledgement of the role the citizen plays in the construction and deconstruction of the law itself.
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