CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, April 13, 2013

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:


  • U.S. 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.


  • U.S. v. Kebodeaux: (1) Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until the Sex Offender Registration and Notification Act (SORNA) was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. § 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.
  • Salinas v. Texas: Whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights.


April 13, 2013 | Permalink | Comments (0)

Friday, April 12, 2013

Haugh on Chicago's "Great Boodle Trial"

Todd Haugh (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Chicago's 'Great Boodle Trial' (Then & Now: Stories of Law and Progress, pp. 4-13 (2013)) on SSRN. Here is the abstract:

In the summer of 1887, three Chicago politicians made national headlines, not for their oratory skills or legislative acumen, but for the brazenness of their “boodling” — the uniquely-Chicago talent of using political office to enrich oneself through bribes and kickbacks. William McGarigle, Edward McDonald, and Michael “Big Mike” McDonald — the boss of Chicago’s Democratic Machine and the city’s first politician gangster — engineered the “most sensational corruption scandal of the late nineteenth century.” As revealed through testimony of the “Great Boodle Trial” of 1887, their fantastic story is one of proudly corrupt politicians, seemingly-righteous reformers, bag men, kidnappers, and suckered citizens, all set against the backdrop of a city emerging as a national power.

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April 12, 2013 | Permalink | Comments (0)

Friedman & Lakier on Limiting the Commerce Power

Barry Friedman and Genevieve Lakier (New York University School of Law and University of Chicago Law School) has posted 'To Regulate,' Not 'To Prohibit': Limiting the Commerce Power on SSRN. Here is the abstract:

Today it is taken for granted that Congress’s power “to regulate . . . Commerce among the several States” includes the power to shut interstate markets down. That is why, for example, Congress is understood to have the power to ban the possession and use of marijuana, even though twenty states have expressed contrary preferences, either for the medicinal or recreational use of the drug. This Article argues that as a matter of constitutional history and theory both, this familiar assumption about congressional power is wrong. First, the Article demonstrates that the original understanding, which prevailed for over one hundred years, did not grant Congress the power to ban markets. Congress could pass “helper” statutes to facilitate state choices, and it could even ban particular goods (such as diseased cattle) “in service” of the interstate market; but it could not simply prohibit all commerce in products of which it disapproved. Second, the Article demonstrates that although this understanding changed following the 1903 Supreme Court decision in Champion v. Ames, none of the reasons supporting the change justify Congress possessing the power today. Finally, this Article examines theoretical justifications for congressional power grounded in law and economics and constitutional theory to suggest that the power “to regulate” interstate commerce should not be understood to include the power to prohibit it. The argument has implications for national bans on articles and activities such as interstate gambling, drugs, raw milk products and assault weapons.

April 12, 2013 | Permalink | Comments (0)

Thursday, April 11, 2013

Logan on Dirty Silver Platters

Logan wayneWayne A. Logan (Florida State University - College of Law) has posted Dirty Silver Platters (Iowa Law Review, Vol. 99) on SSRN. Here is the abstract:

This article addresses a longstanding concern in American criminal justice: the risk that law enforcement agents of different governments will work together to evade a legal limit imposed by one of the governments. In the past, with the U.S. Supreme Court in the lead, courts were prone to closely scrutinize intergovernmental investigative efforts, on vigilant guard against what the Court called improper “working arrangements.” Judicial vigilance, however, has long since waned, a problematic development assuming added significance over time as investigations have become increasingly multijurisdictional and technologically sophisticated in nature. 

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April 11, 2013 | Permalink | Comments (0)

Gilpin & Bekkerman on Impacts of Sentencing Guidelines on Disciplinary Disparities

Gregory Gilpin and Anton Bekkerman (Montana State University - Bozeman and Montana State University - Bozeman) have posted Can Equitable Punishment Be Mandated? Estimating Impacts of Sentencing Guidelines on Disciplinary Disparities on SSRN. Here is the abstract:

This study investigates the role of disciplinary mandates on race-based punishment disparity, exploiting variation in the quantity and types of state-level discipline guidelines for students who commit serious offenses in U.S. public high schools. Estimation results indicate that schools with higher proportions of black or Hispanic students impose more severe punishments, but disparities are significantly dampened and fewer punishments are administered in states that legislate more serious offenses sentencing guidelines. Sentencing guidelines for less harmful misconduct, however, tend to increase race-based disciplinary disparities for serious offenses. These outcomes are important for assessing existing sentencing guidelines and effectively crafting future policies.

April 11, 2013 | Permalink | Comments (0)

Conference on Criminal Justice in San Diego June 10-12

The AALS Mid-Year Conference on Criminal Justice will be held in San Diego on June 10-12, 2013. Website for the conference is here. In part:

Many of the controversies in criminal justice are longstanding: the proper use of the criminal sanction, the dilemmas of regulating law enforcement in a democratic society, the purposes and justifications of punishment. Other controversies, at least on the surface, seem more recent: for example, the growing interplay between criminal law and family law as reflected by criminal law’s increasing presence in the home; or the use of technology as a tool of law enforcement to apprehend criminals, to monitor us all, and quite possibly to make determinations of guilt and innocence.  Still yet are other controversies receiving growing attention: when do law enforcement officers, prosecutors, and judges have too much, or too little, discretion, and is there a way to regulate some decision-making?  How can we reform sentencing and punishment to make it more fair and just? How can we benefit from increased dialogue with practitioners?  Indeed, what is our role as criminal law and procedure scholars in improving the criminal justice system? Perhaps equally important, what is our role as teachers in improving the criminal justice system?

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April 11, 2013 | Permalink | Comments (0)

Partial Credit for Punishment Look-Alikes and Less-Alikes (Kolber)

Kolberaj_photoPeople detained before trial usually receive credit toward their sentences if they are convicted. Yesterday, I argued that we are inclined to give credit for time spent in detention, even though it is technically not punishment, because it is sufficiently like punishment. I call detention a "punishment look-alike" because it is a form of harsh treatment inflicted by the state that closely resembles punishment.

Courts are frequently confronted with questions about what other sorts of treatment prior to conviction warrant credit for time served. Should we give credit for time spent involuntarily confined in a psychiatric institution? in court-ordered drug treatment facilities? under house arrest? Some of these are "punishment less-alikes." House arrest is restrictive and unpleasant but not  as much as involuntary psychiatric confinement is.

It won't surprise you to learn that jurisdictions vary as to which kinds of treatment lead to credit for time served. As a general rule, the more the treatment seems like punishment, the more likely courts are to give credit for time served. This raises the following question: Why do we have to put each kind of treatment into a category of credit or no credit? Wouldn't it make more sense to give partial credit for certain forms of treatment?

It would surely be difficult for judges to determine the amount of credit that should be granted for any particular pretrial restriction. But as I note in this paper, surely legislatures could do so. It would be difficult to attach a precise number to each form of restriction but anything less than equal credit and more than zero credit will more accurately capture the goals of the criminal justice system.

(Originally posted at Prawfsblawg)

April 11, 2013 | Permalink | Comments (0)

Wednesday, April 10, 2013

Raskolnikov on Irredeemably Inefficient Acts

Raskolnikov_AlexAlex Raskolnikov (Columbia University - Law School) has posted Irredeemably Inefficient Acts: A Threat to Markets, Firms, and the Fisc (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

This article defines and explores irredeemably inefficient acts — a conceptually distinct and empirically important category of socially undesirable conduct. While inefficient behavior is, no doubt, pervasive, the standard view holds that inefficient conduct may be converted into efficient one by forcing actors to internalize the external harms of their decisions. For some acts, however, such conversion is impossible. These acts are not just inefficient forms of otherwise socially beneficial activities — they are not just contingently inefficient. Rather, they are inefficient at their core; they reduce social welfare no matter what the regulator does. These irredeemably inefficient (or just irredeemable) acts are private, intentional, non-consensual transfers of money. While this definition certainly describes theft, it also covers churning and price fixing, market manipulation and option backdating, insider trading and tax shelters, to name just some examples.

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April 10, 2013 | Permalink | Comments (0)

Bridges on Pregnancy as Injury

Bridges khiaraKhiara M. Bridges (Boston University - School of Law) has posted When Pregnancy is an Injury: Rape, Law, and Culture (Stanford Law Review, Vol. 65, p. 457 (March, 2013) on SSRN. Here is the abstract:

This Article examines criminal statutes that grade more severely sexual assaults that result in pregnancy. These laws, which define pregnancy as a “substantial bodily injury,” run directly counter to positive constructions of pregnancy within culture. The fact that the criminal law, in this instance, reflects this negative, subversive understanding of pregnancy creates the possibility that this idea may be received within culture as a construction of pregnancy that is as legitimate as positive understandings. In this way, these laws create possibilities for the reimagining of pregnancy within law and society. Moreover, these laws recall the argumentation that proponents of abortion rights once made – argumentation that one no longer hears and sees in the debates surrounding abortion.

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April 10, 2013 | Permalink | Comments (0)

The Mystery of Credit for Time Served (Kolber)

Kolberaj_photoThe Supreme Court has held that pretrial detention does not constitute punishment. The received wisdom among most punishment theorists (and courts take a similar position) is that for some treatment to constitute punishment, it needs to be intended as such. Since detainees are presumed innocent; we don't intend for them to be punished. Nevertheless, if tried and convicted, prisoners almost always receive credit toward their sentences for time served in detention. Why do we reduce prisoners' punishment by time spent unpunished? I call this the mystery of credit for time served.

Courts and theorists aside, most people will have no problem resolving the mystery: we give credit for time spent in detention because it's close enough to punishment. It's harsh treatment inflicted by the state, and most people are inclined to include that in the mix when deciding if a person received appropriate punishment. So if a person spends a year in detention and is sentenced only to time served, most laypeople think it's at least possible the person received appropriate punishment, yet theorists are left with the unusual view that the person received no punishment at all.

Why is all of this important? Here is one of several reasons: Many have bemoaned the collateral consequences associated with imprisonment, like the loss of voting rights or the difficulty of finding a job. Some courts and punishment theorists reply: Ah, but these detriments are not punishment. Answer: True, they are not punishment under the traditional definition. But they require a justification, just as punishment does. If you ignore the magnitude of harms foreseeably caused by the state, then you may not be able to justify those harms no matter whether you call them punishment or not.

Here's the key connection: If knowingly-imposed harsh treatment at the hands of the state beforeconviction (i.e., detention) reduces how much punishment is appropriate, then surely knowingly-imposed harsh treatment at the hands of the state after one's sentence ends should also be relevant when thinking about how much punishment is appropriate. Collateral consequences (and other foreseen though unintended harms of prison) cannot be dismissed under a technical definition of what constitutes punishment. For more on the mystery of credit for time served, see here.

(Originally posted at Prawfsblawg)

April 10, 2013 | Permalink | Comments (0)

Tuesday, April 9, 2013

Papachristos, Wallace & Fagan on Desistance, Legitimacy, and Offender Notification Meetings

Fagan jeffreyAndrew V. Papachristos , Danielle M. Wallace and Jeffrey Fagan (pictured) (Yale University - Department of Sociology, Arizona State University (ASU) and Columbia Law School) have posted Desistance and Legitimacy: The Impact of Offender Notification Meetings on Recidivism among High Risk Offenders on SSRN. Here is the abstract:

Objective: Legitimacy-based approaches to crime prevention operate under the assumption that individuals — including violent offenders — are more likely to comply with the law when they believe that the law and its agents are legitimate and act in ways that seem inherently “fair” and “just.” While mounting evidence finds an association between such legitimacy-based programs and reductions in aggregate levels of crime and violence, no study has investigated whether such programs influence individual offending. This study evaluates the effectiveness of one such program — Project Safe Neighborhoods’ (PSN) Offender Notification Meetings — at reducing individual recidivism among a population of returning prisoners in Chicago. 

Methods: This study uses a quasi-experimental design and two types of survival analyses (Cox hazard models and competing risk models) to evaluate the effects of PSN on the subsequent recidivism of program participants relative to the control group.

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April 9, 2013 | Permalink | Comments (0)

Schopp on Retribution, Revenge, and Capital Punishment

Schopp_robertRobert F. Schopp (University of Nebraska at Lincoln - College of Law) has posted Retribution and Revenge in the Context of Capital Punishment on SSRN. Here is the abstract:

Several Supreme Court opinions that reject capital punishment specifically or retributive punishment generally as inconsistent with the Eighth Amendment of the Constitution characterize those practices as vengeance or as revenge. These opinions apparently reflect the premise that vengeance is self-evidently evil. Non-judicial participants in the legal, political, and public debates regarding capital punishment specifically or retributive punishment generally sometimes demonstrate a similar tendency to repudiate capital punishment or retributive punishment as revenge without further justification, suggesting that the mere characterization of behavior or of an institution as revenge is sufficient to establish that it is illegitimate. This Article examines the relevant passages in these opinions and the central notions at issue in order to distinguish several possible interpretations of the positions asserted. It then evaluates the broader interpretations in the context of one traditional moral theory. Finally, it clarifies the significance of this analysis for the underlying debate regarding the justification (or lack thereof) of retributive punishment generally or of capital punishment specifically.

April 9, 2013 | Permalink | Comments (0)

Thomas & Leo on Torture to Miranda and Beyond

Thomas georgeGeorge C. Thomas III (pictured) and Richard A. Leo (Rutgers, The State University of New Jersey - School of Law-Newark and University of San Francisco - School of Law) have posted Confessions of Guilt: From Torture to Miranda and Beyond (Oxford University Press 2012) on SSRN. Here is the abstract:

This book examines the history of the law of interrogation, beginning with England in the late eighteenth century and ending with an examination of American practices in the years following the September 11 terrorist attacks. The authors explore how the law of interrogation has moved from indifference about extreme force to concern about the slightest pressures on suspects, and back again. They argue that a culture’s perception of threats to its existence is an important determinant of the level of interrogation pressure that its legal system will tolerate. The greater the perceived threat, the more coercion a culture will tolerate to eradicate threats to its existence and control. The book concludes with an examination of the future of the law of interrogation, arguing that, in the United States, the law of interrogation will fracture between investigation of ordinary domestic crime and investigation of terrorism.

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April 9, 2013 | Permalink | Comments (0)

Chin on Race and the Disappointing Right to Counsel

Chin_jackGabriel J. Chin (University of California, Davis - School of Law) has posted Race and the Disappointing Right to Counsel (122 Yale Law Journal, 2013, Forthcoming) on SSRN. Here is the abstract:

Critics of the criminal justice system observe that the promise of Gideon v. Wainwright has been unfulfilled. They decry both the inadequate quality of representation available to indigent defendants, and the racially disproportionate outcome of the process. Some hope that better representation can help remedy the gross overrepresentation of minorities in the criminal justice system. This essay is doubtful that better lawyers will significantly address that problem.

When the Supreme Court decided Gideon, it had two main purposes. First, it intended to protect the innocent from conviction. This goal, while imperfectly achieved at best, was explicit. Since Gideon, the Court has continued to recognize the importance of claims of innocence at trial, with important, pro-defense decisions in the areas of confrontation, jury fact-finding, the right to present a defense and in other areas. 

The Court's second goal was to protect African Americans subject to the Jim Crow system of criminal justice. But, as it had in Powell v. Alabama, the Court pursued this end covertly and indirectly; the Court attempted to deal with racial discrimination without explicitly addressing it. This timidity was portentous.

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April 9, 2013 | Permalink | Comments (0)

Huang on Katz on Perverse Law

Huang peterPeter H. Huang (University of Colorado Law School) has posted Book Review of Leo Katz Why the Law Is So Perverse (Journal of Legal Education, August 2013) on SSRN. Here is the abstract:

This review of Leo Katz's book, Why the Law is So Perverse, addresses three questions. First, does Katz draw the appropriate normative conclusions about legal perversities based on their connections to social choice theory? In other words, what are the legal ethics and professionalism implications of his book? Second, how does each of the legal perversities in the book follow from a particular social choice theory result? In other words, what is the precise theoretical connection between each of the legal perversities discussed and an impossibility theorem in social choice theory? Third, can we reinterpret our understanding of the seemingly dismal and negative impossibility theorems from social choice in a constructive and positive way to suggest how society can make the best of legal perversities? In other words, what are benign interpretations and positive versions of the social choice impossibility theorems and their implications for how society can deal with what Katz calls legal perversities?

April 9, 2013 | Permalink | Comments (0)

Monday, April 8, 2013

Burke on Medwed on Prosecutors

Burke alafairAlafair S. Burke (Hofstra University - Maurice A. Deane School of Law) has posted Prosecution (is) Complex (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Post-conviction DNA testing has led to the exoneration of nearly three hundred defendants. As the number of exonerations grows, we are in an era where the once unthinkable is now undeniable. We convict the innocent. We imprison the innocent. We place the innocent on death row. Daniel Medwed brings this reality to life in his captivating book, Prosecution Complex, which carefully documents the myriad ways that prosecutors can contribute to wrongful convictions at every stage of a criminal case. From the charging decision to plea bargaining to trial to post-conviction, Medwed argues, prosecutors face an “ongoing schizophrenia” as they seek to balance dual roles in the criminal justice system, trying to serve both as zealous advocates for the government and as neutral ministers of justice. 

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April 8, 2013 | Permalink | Comments (0)

Roth on Stuntz on American Criminal Justice

Roth andreaAndrea L. Roth (UC Berkeley School of Law) has posted Book Review: William J. Stuntz, The Collapse of American Criminal Justice (Journal of Legal Education, Vol. 62, p. 377, 2012) on SSRN. Here is the abstract:

One of the better ways to celebrate next year’s fiftieth anniversary of Gideon v. Wainwright, in which the Supreme Court held that poor defendants accused of felonies in state court are constitutionally entitled to appointed counsel, would be to force every lawmaker, judge, prosecutor, and defense attorney in the United States to read the last major work of a man who believed the legacy of Gideon is not an unequivocally positive one. In The Collapse of American Criminal Justice, the late Bill Stuntz argues that the cure for the pathologies of the criminal justice system lies in restoring local democratic control over crime policy, better funding public defenders, and buttressing equal protection doctrine, rather than in the continued focus on the “vast network of procedural rules the Supreme Court has crafted since the early 1960s." Stuntz argues that the fetishization of so many formalistic procedures that, in his view, at best indirectly ensure fairness of trial and sentencing outcomes has rendered trials too expensive, which in turn has driven prosecutors and lawmakers to seek ways to avoid trial and force pleas through draconian sentencing schemes, a skewed focus on easily detected urban drug crimes mostly committed by racial minorities, and ever-expanding substantive criminal law. The result of this assembly-line justice, Stuntz argues, is both excessive punitiveness in the form of racially disparate mass incarceration and excessive leniency in the form of underprosecuted violent crime in poor communities.

April 8, 2013 | Permalink | Comments (0)

Sunday, April 7, 2013

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 3086 The Dangers of Surveillance 
Neil M. Richards
Washington University in Saint Louis - School of Law, 
Date posted to database: March 25, 2013 [new to top ten]
2 594 The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information 
David Pozen
Columbia Law School, 
Date posted to database: February 25, 2013 [1st last week]
3 419 Foreword: Accounting for Technological Change 
Orin S. Kerr
George Washington University - Law School, 
Date posted to database: March 17, 2013 [2nd last week]
4 387 Federal Tax Crimes, 2013 
John A. TownsendJohn A. Townsend,
University of Houston School of Law, Townsend and Jones, LLP, 
Date posted to database: February 7, 2013 [3rd last week]
5 185 Targeting and the Concept of Intent
Jens David Ohlin
Cornell University - School of Law, 
Date posted to database: February 12, 2013 [4th last week]
6 185 Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions 
Matthew C. Waxman
Columbia Law School, 
Date posted to database: March 21, 2013 [new to top ten]
7 177 Overcharging 
Kyle Graham
Santa Clara University School of Law, 
Date posted to database: March 3, 2013 
8 165 Policing the Firm 
D. Daniel Sokol
University of Florida - Levin College of Law, 
Date posted to database: March 9, 2013 [5th last week]
9 153 Colorado Capital Punishment: An Empirical Study 
Justin F. MarceauSam Kamin,Wanda Foglia
University of Denver - Sturm College of Law, University of Denver Sturm College of Law, Rowan University, 
Date posted to database: January 31, 2013 [6th last week]
10 127 Does International Law Matter? 
Shima BaradaranMichael Findley,Daniel NielsonJ. C. Sharman
Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin, Brigham Young University, Griffith University, 
Date posted to database: February 8, 2013 [new to top ten]


April 7, 2013 | Permalink | Comments (0)