CrimProf Blog

Next week's criminal law/procedure arguments

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

Monday

• Boyer v. Louisiana: Whether a state’s failure to fund counsel for an indigent defendant for five years as a direct result of the prosecution’s choice to seek the death penalty should be weighed against the state for speedy trial purposes.
  
• Alleyne v. U.S.: Whether this Court’s decision in Harris v. United States, holding that the Constitution does not require facts which increase a mandatory minimum sentence to be determined by a jury, should be overruled.

Gibson on Asset Forfeiture and Local Agencies

David Thomas Gibson (University of California Hastings College of the Law) has posted Spreading the Wealth: Is Asset Forfeiture the Key to Enticing Local Agencies to Enforce Federal Drug Laws? (Hastings Constitutional Law Quarterly, Vol. 39, No. 2, 2012) on SSRN. Here is the abstract:

The federal government devotes a significant amount of its money and resources towards fighting what Richard Nixon termed “the war on drugs.” One of the most effective legal tools used to further this purpose is asset forfeiture, or the process by which the government seizes and gains title to property obtained through criminal activity or used to further a criminal conspiracy. Criminal asset forfeiture can be used against drug producers and traffickers to cripple their operations and claim their profits. This weapon can also be wielded in civil proceedings. For instance, in states implementing medical cannabis programs, personal property gained from or used for the sale of cannabis is subject to seizure due to the supremacy of federal laws prohibiting narcotics sales.

This note will address the ways in which asset forfeiture is and can be used to further federal drug policy goals while reducing the ever-increasing budget demands of those federal agencies responsible for enforcement. As written, the statutes can be used as a carrot or a stick to foster local enforcement of federal laws. Cities and counties can be fiscally rewarded or punished for their local enforcement regimes, especially in the case of cannabis. Cities such as Oakland, California, obtain hundreds of thousands of dollars per year from taxable medical cannabis sales. The state of California recently proposed legalizing cannabis for recreational use to generate a projected $1.4 billion in tax revenue. Whether these same asset forfeiture provisions apply to state and local governments that profit from the sale of medical cannabis has yet to be determined by the courts. Issues of sovereign immunity, federalism, and due process are heavily implicated. Although the use of asset forfeiture to incentivize state and local government action has been established as legally permissible, it has not yet been attempted on an organized large scale.

"Guantanamo prosecutor recommends Pentagon drop conspiracy charges"

From Jurist:

Chief prosecutor in the Guantanamo tribunal, Brigadier General Mark Martins, on Wednesday recommended that the Pentagon drop the conspiracy charge against those suspected of plotting the September 11 attacks, including Khalid Sheikh Mohammed[JURIST news archive]. Martins hopes to drop the charges [Miami Herald report] in order to streamline the prosecution and ensure it is not delayed by an appeal on a potential conspiracy conviction. The five involved in the capital trial will still face seven other counts of war crimes, including terrorism and hijacking. There has yet to be an official decision from the Pentagon. The next hearing is scheduled for January 28.

"New York Examines Over 800 Rape Cases for Possible Mishandling of Evidence"

From the New York Times:

The errors, Dr. Prinz said in an interview, involved reporting false negatives, not false positives. “We do know that nobody was wrongfully convicted,” she added.

But in the course of reviewing the technician’s work, supervisors quickly discovered another problem. Sixteen pieces of evidence, generally swabs contained in sealed paper envelopes, were found in the wrong rape kit, commingling DNA evidence from 19 rape investigations, according to a letter from the medical examiner’s office.

“Our guess is the technician had both kits open at the same time, and when she was reassembling the case files, evidently she had misplaced the evidence items from one kit to another,” Eugene Lien, a quality assurance manager with the medical examiner’s office, told a state oversight board last year. It was not “standard policy at all,” he added, for a technician to have two cases open at once.

 

Dimock & Al-Hakim on Hate as an Aggravating Factor

Susan Dimock and Mohamad Al-Hakim (York University and Florida Gulf Coast University) have posted Hate as an Aggravating Factor in Sentencing (New Criminal Law Review (formerly known as Buffalo Criminal Law Review), Volume 15, Number 4, pp. 572-611, Fall 2012) on SSRN. Here is the abstract:

Our principal concern in this paper is with the accusation that hate crime legislation violates the principle of proportionality and related principles of just sentencing, such as parity, fair notice, and representative labelling. We argue that most attempts to reconcile enhanced punishment for hate crimes with the principle of proportionality fail. More specifically, it seems that any argument that tries to justify hate crime legislation on the grounds that such crimes are more serious because their consequential harms are worse or their perpetrators are more culpable than their nonhateful counterparts will fail, and thus enhanced punishment will violate the principle of proportionality. Given the seeming irreconcilable tension between proportionality and hate crime legislation, we turn to consideration of hybrid theories of punishment that permit deviations from strict proportionality when needed to serve other important and legitimate purposes of sentencing. We argue that even if such hybrid theories can justify the enhanced punishments for hate crimes, existing theories cannot provide any principled limit on the extent from which proportionality can be deviated. We suggest such a limit and provide a principled justification for it.

Brudney & Baum on Dictionaries in the Rehnquist and Roberts Eras

James J. Brudney (pictured) and Lawrence Baum (Fordham University School of Law and Ohio State University (OSU) - Department of Political Science) have posted Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras on SSRN. Here is the abstract:

The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.

The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience. 

Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as heuristic and authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit.

Kumm & Walen on Deontic Pluralism in Balancing

Mattias Kumm and Alec D. Walen (pictured) (New York University (NYU) - School of Law and Rutgers School of Law, Camden) have posted Human Dignity and Proportionality: Deontic Pluralism in Balancing (Proportionality and the Rule of Law: Rights, Justification, Reasoning, Huscroft, Miller and Webber, eds., Forthcoming) on SSRN. Here is the abstract:

The proportionality test is at the heart of much of contemporary human and constitutional rights adjudication. But some worry that the proportionality test provides a misguided and dangerous invitation to balance away human dignity. In an earlier article, one of us argued that there existed a distinct class of cases, characteristically involving the protection of human dignity, where measures meeting the proportionality test could still constitute a violation of rights. The task was to distinguish those cases from ordinary cases, for which proportionality analysis was normatively adequate. Because this is a position that embraces the proportionality test generally, but insists on carving out a distinct category of cases involving human dignity in which rights provide stronger, more categorical protection, this position might be called human dignity exceptionalism. 

We argue here that human dignity exceptionalism is false.

Deontology is ubiquitous, and there is nothing in the idea of balancing that precludes taking it into account. Indeed, balancing properly understood requires it to be taken into account. More specifically the article seeks to establish two core points about balancing. The first is negative. Balancing is not a mechanical exercise. Balancing is a metaphor we use to describe a residual category within rights analysis that registers the importance of the various concerns at stake. The idea of balancing itself says nothing about what kind of things are relevant or what weight to assign the relevant concerns. The second point is positive. Deontology, if taken seriously, is not captured by a single, simple concept, such as the restriction against using people simply as a means. Rather, it covers a range of reasons for giving some interests more or less priority over others. In that sense we argue for an understanding of deontology as itself structurally pluralist (call this “deontic pluralism”). We offer no comprehensive conception of balancing that determines what the right balance will be in all cases. We argue only that the balance will have to make appropriate reference to constraints that arise out of what is required to respect dignity and illustrate what that means across the range of chosen cases: instrumentalizing individuals against their will, the relatively strict standards of proof in criminal proceedings, and the conditions under which long-term preventive detention can be legitimately authorized.

Argument transcript in DUI blood test case

The transcript in Missouri v. McNeely is here.

Opinion holding defendant bear burden of proving withdrawal from conspiracy

Justice Scalia wrote the opinion for the unanimous Court in Smith v. United States.

Henderson on the Fourth Amendment after United States v. Jones

Stephen E. Henderson (University of Oklahoma College of Law) has posted two articles regarding Fourth Amendment doctrine after United States v. Jones. The first is Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach (Journal of Criminal Law and Criminology, Forthcoming). Here is the abstract:

In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the High Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this article proposes a regulatory regime for law enforcement visual surveillance, law enforcement technologically-enhanced location surveillance, and law enforcement access to historic location records (e.g., cell site data).

Ideally, the proposal would be legislatively enacted with the backdrop of constitutional judicial review, and the article comments upon the need for constructive dialogue and initiative in that process by the law enforcement community, a view influenced by six years serving as Reporter for the ABA Standards.

The second is After United States v. Jones, After the Fourth Amendment Third Party Doctrine (North Carolina Journal of Law and Technology, Forthcoming). Here is the abstract:

United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us too much. The government took an egregious position, and therefore lost nine to zero. We now apply a resurrected trespass-based conception of search, but we know extremely little about how to do so and what results it will alter. We know five Justices believe long-term location tracking is typically a search because it invades a reasonable, seemingly empirical, expectation of privacy. And we know one Justice is willing to reconsider the entire third party doctrine, which holds that one typically retains no Fourth Amendment expectation of privacy in information conveyed to another. 

But when we take a broader view, it is not merely one Justice who will not apply the third party doctrine in a strong form, and thus I have previously written the doctrine’s obituary. Jones fits nicely within a string of cases in which the Court is cautiously developing new standards of Fourth Amendment protections, rather than declaring generally applicable categorical rules. Given that it was a grand pronouncement of an allegedly categorical rule in United States v. Miller that has caused much of the trouble, this strikes me as a sensible way to proceed. I expect the road will not be smooth, but we are used to zigs and zags in the Fourth Amendment. It is hard to imagine anything less when the High Court is attempting to ferret out what is reasonable, which requires balancing private and law enforcement interests, and when technology, policing, crime, and social norms are constantly in flux. 

Much of the ground has been plowed before, both by myself and others dating back many years, which calls for brevity. Indeed, Jones will surely spark a new crop of Fourth Amendment papers, the authors of some of which will read what has gone before and some of whom will not. But Jones provides a nice hinge around which to discuss where the Fourth Amendment has been and where it might be going – and more generally where citizens’ protections against unreasonable searches and seizures, which do not depend solely upon the Fourth Amendment, might be going. Here I will content myself with that relatively high level, and like many others I will begin in other fora to drill down into specifics of how the Fourth Amendment should apply to the particular techniques of location tracking.

"Police Stop-and-Frisk Program in Bronx Is Ruled Unconstitutional"

From The New York Times:

An element of the New York Police Department’s stop-and-friskpractice was deemed unconstitutional by a federal judge on Tuesday, a ruling that may have broad implications for the city’s widespread use of police stops as a crime-fighting tactic.

The decision, the first federal ruling to find that the practice under the Bloomberg administration violates the Fourth Amendment protection against unreasonable search and seizure, focused on police stops conducted in front of several thousand private residential buildings in the Bronx enrolled in the Trespass Affidavit Program. Property managers in that program have asked the police to patrol their buildings and to arrest trespassers.

But the judge, Shira A. Scheindlin of Federal District Court in Manhattan, said officers were routinely stopping people outside the buildings without reasonable suspicion that they were trespassing.

 

Sharpless & Stanton on Padilla Postconviction Claims in Florida

Rebecca A. Sharpless (pictured) and Andrew Stanton (University of Miami - School of Law and Office of the Public Defender for the Eleventh Judicial Circuit of Florida) have posted Padilla Postconviction Claims in Florida: Squaring Chaidez, Hernandez and Castaño on SSRN. Here is the abstract:

In Padilla v. Kentucky, the U.S. Supreme Court ruled that the Sixth Amendment requires defense attorneys to counsel their noncitizen clients about the immigration consequences of a plea. Padilla had pled guilty in state court to a drug crime and, after his conviction became final, filed a state postconviction motion alleging that his attorney rendered ineffective assistance of counsel by failing to advise him that his plea would trigger deportation. In holding that Padilla was entitled to competent advice regarding the consequences of his plea, the Court recognized what professional norms have required for at least the last two decades. Padilla left undecided a number of important issues, however, including the critical question of whether that case applies to other noncitizen defendants whose pleas predate March 31, 2010, when the Court issued its opinion.

On November 1, 2012, the Court heard argument in Chaidez v. United States, a case raising this question in the context of a writ of coram nobis under 28 U.S.C. § 1651(a) involving a federal conviction. Without waiting for the outcome of Chaidez, the Florida Supreme Court has weighed in on Padilla postconviction claims. On November 21, 2012, that court decided three cases involving state convictions with pre-Padilla pleas in which postconviction motions were filed in state court. These cases — Hernandez v. State, Diaz v. State, and Castaño v. State — have two primary holdings. First, the court ruled in favor of the petitioners to hold that the generic judicial warning under Criminal Rule 3.172(b)(8) that deportation “may” result from a plea does not automatically cure the prejudice of defense counsel’s deficient performance when deportation was not just possible but “presumptively mandatory.” Second, the court ruled against two of the three petitioners to hold that the “new rule” established by Padilla was not “retroactive,” and carved out an exception to find in favor of the third petitioner, Castaño. This article addresses how the possible outcomes of the U.S. Supreme Court’s decision in Chaidez will affect Padilla postconviction motions in Florida state court, given the Florida Supreme Court’s November 21, 2012 decisions.

Berdejo & Yuchtman on Political Cycles in Sentencing

Carlos Berdejo (pictured) and Noam Yuchtman (Loyola Law School Los Angeles and University of California, Berkeley - Haas School of Business) have posted Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing (Review of Economics and Statistics, Forthcoming) on SSRN. Here is the abstract:

Whether judges respond to political pressure is an important question occupying social scientists. We present evidence that Washington State judges respond to such pressure by sentencing serious crimes more severely. Sentences are around 10% longer at the end of a judge's political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle. We conduct robustness and falsification exercises and distinguish between judges' election cycles and other officials' by exploring non-linear effects of electoral proximity. Our findings inform debates over judicial elections, and highlight the interaction between judicial discretion and the influence of judicial elections.

Opinion on incompetency during federal habeas proceedings

Justice Thomas wrote the opinion for a unanimous Court in Ryan v. Gonzales. 

Mikhail on Churchland on Neuroscience and Morality

John Mikhail (Georgetown University Law Center) has posted Review of Patricia S. Churchland, 'Braintrust: What Neuroscience Tells Us About Morality' (Ethics, Vol. 123, No. 2, 2013) on SSRN. Here is the abstract:

In Braintrust, Patricia Churchland sets out to synthesize and explain recent developments in the biological sciences that shed light on the nature of human morality. Churchland casts a wide net and covers a lot of ground. After a brief introduction, seven dense chapters examine a range of complex topics, including evolutionary constraints on social and moral behavior; the evolution of the mammalian brain (with particular emphasis on hormones such as oxytocin); the neurobiological basis of human cooperation (again with reference to oxytocin); the genetic blueprint for moral cognition and the evidentiary status of specialized moral modules; mirror neurons and other neurocognitive mechanisms of mental state attribution; the proper place of rules, norms, and laws in a naturalistic ethics; and religion and morality.

The treatment of these subjects is generally informative and often quite illuminating, albeit occasionally superficial. Churchland writes elegantly and presents a clear, distinctive, and forceful viewpoint on the science of morality, which draws inspiration from Aristotle, Hume, and Darwin. Her principal thesis, that moral and social values are rooted in the neurobiology of care, trust, and cooperation, deserves to be taken seriously by scientists and philosophers alike. In this review, I focus on three perceived weaknesses of Churchland’s stimulating book that likely will be of particular interest to philosophers: her interpretation of Hume, her skepticism toward innate moral principles, and her treatment of moral rules. I then conclude by making a few brief observations about the general significance of Braintrust.

"When Death Row Lawyers Stumble, Clients Take the Fall"

From Adam Liptak in The New York Times. In part:

The legal system generally answers by saying that lawyers are their clients’ agents. The answer makes perfect sense when you are talking about sophisticated clients who choose their lawyers, supervise their work and fire them if they turn out to be incompetent or worse.

But the theory turns problematic, Judge Barkett wrote, when the clients are on death row, have no role in the selection of their lawyers and have no real control over them.

 

Transcript of argument over burglary under the ACCA

The transcript in Descamps v. United States is here.

Liebman et al. on Non-Matches as Evidence of Innocence

James S. Liebman , Shawn Blackburn , David Mattern and Jonathan Waisnor (Columbia University - Law School , Independent , Independent and Independent) have posted The Evidence of Things Not Seen: Non-Matches as Evidence of Innocence (Iowa Law Review, Vol. 98, No. 2, 2012) on SSRN. Here is the abstract:

Exonerations famously reveal that eyewitness identifications, confessions, and other “direct” evidence can be false, though police and jurors greatly value them. Exonerations also reveal that “circumstantial” non-matches between culprit and defendant can be telling evidence of innocence (e.g., an aspect of an eyewitness’s description of the perpetrator that does not match the suspect she identifies in a lineup, or a loose button found at the crime scene that does not match the suspect’s clothes). Although non-matching clues often are easily explained away, making them seem uninteresting, they frequently turn out to match the real culprit when exonerations reveal that the wrong person was convicted. This Article uses “non-exclusionary non-matches” and what would seem to be their polar opposite, inculpatory DNA, to show that: (1) all evidence of identity derives its power from the aggregation of individually uninteresting matches or non-matches, but (2) our minds and criminal procedures conspire to hide this fact when they contemplate “direct” and some “circumstantial” evidence (e.g., fingerprints), making those forms of evidence seem stronger than they are, while, conversely, (3) our minds and procedures magnify the circumstantial character of non-exclusionary non-matches, making them seem weaker than they are. We propose ways to use circumstantial matches and non-matches more effectively to avoid miscarriages of justice.

Simmons on Increasing the Productivity of the Fourth Amendment

Ric Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Ending the Zero-Sum Game: How to Increase the Productivity of the Fourth Amendment (Harvard Journal of Law and Public Policy, Vol. 36) on SSRN. Here is the abstract:

Every criminal procedure student learns on the first day of class that Fourth Amendment policy represents a zero-sum game: a constant struggle between the individual privacy of citizens and the needs of law enforcement. In reality, however, the “competition” between law enforcement and criminals does not have to be zero-sum. In order to see why, we need to see the criminal justice system not as a competition, but instead as an industry. This article applies economic principles to try to find ways to increase the efficiency of the criminal justice system — that is, to maximize output while minimizing costs. The costs to the system are both the intangible loss of privacy that is associated with surveillance, as well as the tangible, actual monetary cost incurred by law enforcement organizations to undertake the surveillance. The output that we are seeking is crime control, or more specifically in the Fourth Amendment context, the identification of those who are guilty of a crime and collection of evidence which can be used to demonstrate their guilt. Roughly speaking, the more money we spend, and/or the more willing we are to infringe on our own freedoms, the more output we receive in terms of identifying the guilty and recovering incriminating evidence.

However, there are two ways that this industry could in fact be a positive-sum game. First, advances in technologies can increase the effectiveness of surveillance in catching criminals without reducing the privacy rights of ordinary citizens — that is, it is possible to increase the output without increasing the cost. And second, changing norms and attitudes may decrease the value of certain kinds of privacy to individuals, causing the cost of certain types of surveillance to decrease. This can work in the other direction as well: when criminals, rather than police, take advantage of technological advances, the output of the system will decrease even if costs are held constant. Likewise, societal norms could change to make certain types of privacy more valuable, thus increasing the cost to the system. In these situations, the criminal justice system becomes a negative sum game. Once we have identified the productivity of different forms of surveillance, we can take steps to encourage more productive types of surveillance and discourage the less productive ones.

The Article first sketches out a basic formula for analyzing the productivity of different surveillance methods by measuring the cost of the inputs and the benefits of the outputs. It then applies this formula to different methods of surveillance to see how certain methods of surveillance are more productive than others, searches for ways to increase the productivity of surveillance generally. Finally, the Article offers some suggestions for changing the way we regulate surveillance techniques in order to maximize the efficiency of the process.

Blumenson on Retributivism

Eric D. Blumenson (Suffolk University Law School) has posted Retributivism (THE SOCIAL HISTORY OF CRIME & PUNISHMENT IN AMERICA: AN ENCYCLOPEDIA, Wilbur Miller, ed., Sage Reference, 2012) on SSRN. Here is the abstract:

This encyclopedia entry, which appears in THE SOCIAL HISTORY OF CRIME & PUNISHMENT IN AMERICA: AN ENCYCLOPEDIA (Wilbur Miller, ed., Sage Reference, 2012). describes retributivism as a justificatory theory of punishment, examines fundamental critiques of the theory, and notes a "mixed model" that seeks to combine retributivism with consequentialist justifications for criminal punishment.