March 2, 2013
Santry on Decriminalizing Domestic Violence
Shelley Santry (University of Louisville - Louis D. Brandeis School of Law) has posted Penny Wise but Pound Foolish in the Heartland: A Case Study of Decriminalizing Domestic Violence in Topeka, Kansas (Journal of Law & Family Studies, Vol. 14, No. 2, 2012) on SSRN. Here is the abstract:
On October 11, 2011, in a dangerous game of chicken, the city council of Topeka, Kansas, voted 7 to 3 to decriminalize misdemeanor domestic violence cases. This move came in response to the Shawnee County District Attorney, Chad Taylor, notifying the city that the District Attorney's office would no longer prosecute such cases arising within Topeka city limits due to budgetary constraints. District Attorney Taylor further advised that he would leave all misdemeanor prosecutions, including those for domestic violence, in the hands of city government, choosing instead to focus his office's limited resources on the prosecution of felonies alone. The District Attorney's notification was given despite the fact that the budget cuts proposed by the County Commission would not go into effect until 2012. Prior to the announcement, all misdemeanors other than domestic violence were handled by Topeka's municipal court.5 The Topeka City Council then advised it would cost the city an estimated additional one million dollars to pay for misdemeanor domestic violence prosecutions.
Aziz on Policing Terrorists in the Community
Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted as a means of collaborating with Muslim communities and local police to combat 'Islamist homegrown terrorism.' Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among local law enforcement and the communities they serve. Thus, traditional community policing is premised on their convergence of interests.
While community policing in counterterrorism appears facially sound, this Article proffers that this endeavor is fraught with peril – both for collective civil liberties interests and local police’s interests in preserving relationships of trust. Accordingly, community policing exacerbates, rather than resolves, the underlying subordination of Muslims post-9/11 manifested in preventive counterterrorism policies, notwithstanding the increase of homegrown terrorism threats from non-Muslim groups.
The Article asserts three critiques of community policing in counterterrorism: it is more akin to counterradicalization taken from military counterinsurgency strategy than the partnership-based traditional community policing model; to the collective detriment of communities it divides them into 'Good Muslims' willing to cooperate with law enforcement on the federal government’s terms and 'Bad Muslims' who demand a meaningful quid quo pro that ensures protection of Muslim communities’ civil rights and liberties; and it deputizes Muslim leaders to gather and share seemingly innocuous information about their communities that may be used adversely to their collective interests as part of the predominantly prosecution-driven counterterrorism regime.
As such, CCP as currently envisioned betrays its rhetoric of empowerment and mutual trust, and is just another weapon in the federal government’s toolkit that perpetuates the 'terrorist other' stereotype. Unless systemic reforms are made to federal preventive counterterrorism strategies, community policing is likely to aggravate existing civil liberties violations and impair otherwise good relations between Muslim communities and local police. Thus, a serious rethinking of proposals to implement community policing in counterterrorism is warranted.
March 1, 2013
Ferguson on the Jury and Constitutional Identity
Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted The Jury and Constitutional Identity on SSRN. Here is the abstract:
This article seeks to reframe how citizens see jury service in America.
Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more important than the right to vote as a means to ensure a robust democratic system. During the battles for racial equality (before and after the Reconstruction Amendments) and gender equality (before and after the Nineteenth Amendment), advocates explicitly linked demands for voting and jury service as symbols of political equality. Americans fought, protested, and won the right to serve as jurors because it symbolized a constitutional status. The jury became a democratic, participatory symbol in our constitutional system, and the juror became a constitutional actor with constitutional responsibilities. This identity has been lost for many modern jurors who have become disconnected from their constitutional status.
Today, from summons to verdict, modern jurors are unaware of this constitutional connection. Worse, the combination of well-meaning jury streamlining programs (“one-day one-trial” systems), limiting jury instructions, and a historic shift in the role of juries has created essentially a “task-oriented” juror. Jurors show up, “find the facts,” and then go home to their normal lives. Jurors do not prepare for it. Jurors do not consider the role or identity outside of the task presented at that particular time and place.
This article examines how we ended up inverting the role of the jury in society. Particularly, it addresses the loss of constitutional identity and how jurors no longer view themselves as constitutional actors. It argues that this loss of constitutional identity has come at a cost to the jury’s reputation, its power in the constitutional structure, its efficiency in processing cases, and its role as an educative institution. This loss has contributed to a growing apathy to jury service, in particular, and the jury, in general. It then looks to reclaim the civic and constitutional identity valued by the Framers and those who fought for political equality during other constitutional moments in history. It seeks to broadly reframe the debate to rebuild the image of the juror in America. To fulfill this project of juror renewal, this article proposes a new way of viewing jury service – not simply as a task to be completed, but as an ongoing constitutional identity – a status – like being a voter or elected official. It suggests embracing the “potentiality of jury service” – a shift in perception that focuses on the juror beyond just the moments in the courthouse. The potentiality of jury service confronts this limited conception of being a juror. It broadens the focus along a continuum of civic life. It also recognizes that this potential status requires some action on our part – primarily education and reflection – to prepare for this constitutional responsibility. In developing this constitutional awareness about the jury, citizens will be able to reclaim a sense of constitutional identity that will strengthen the reputation, efficiency, and institution of the jury.
Wesson on Delay and Capital Punishment
Marianne Mimi Wesson (University of Colorado Law School) has posted Living Death: Ambivalence, Delay, and Capital Punishment on SSRN. Here is the abstract:
Most discussions about capital punishment in the United States treat the distinct phenomena of death sentencing and execution as joined: in the ordinary case, it is assumed, the first will lead eventually to the second. But in fact it is exceptional for a death sentence to cause the death of the individual sentenced. During the entire modern death penalty era, since 1976, the ratio of death sentences pronounced in the U.S. to those carried out has been about six to one.
This Article seeks to investigate the causes of the disparity. It surmises that our tolerance for it grows out of political and institutional ambivalence about capital punishment, and undertakes to identify which actors and processes enact this ambivalence and thus hinder the conversion of death sentences into executions. My research assistants and I chose a small number of jurisdictions that we found representative in which to study the post-sentence careers of death row inmates. We considered the roles of death while in prison, executive clemency, and federal habeas corpus intervention in creating attrition from death row, but taken together these events failed to account for all (indeed, even very much) of the disparity. We investigated in more detail the frequency of sentence reversal by postconviction appeal or collateral state remedies, but contrary to expectation, we found that these processes could not account for the disparity we had observed.
We then undertook a more granular study, following the careers of a cohort of death row inmates, all of whom resided on death row in 1995 (and nearly half of whom still reside there today). Our findings suggest that the most powerful explanation was simply delay. Our study population consists entirely of prisoners who have been under sentence of death for seventeen years or longer, yet more of them (in some of our jurisdictions many more) are still alive and under sentence of death than have been executed. To be sure, necessary and expected legal processes consumed some of the intervening years, and the Article investigates and discusses the developments in capital punishment law that have contributed to impeding the march of execution.
A variety of measures have been designed to hasten the processing of capital cases between sentence and execution, but they have been unsuccessful. Since 1976, the typical interval between sentence and execution has grown markedly over time, cannot really be explained by necessity, and begins to resemble a permanent feature of the system of capital punishment. Although predicting the outcome of individual cases is difficult, it appears that many death sentences that have not been carried out will never be carried out, and that we have accommodated ourselves to this reality.
In closing, the Article discusses the implications of these observations for our national conversation about capital punishment, considers the recent landscape of explicit death penalty abolition activity (especially in California), and makes some predictions about the future of capital punishment.
Blumenson on Moral Mistakes in Criminal Justice
Eric D. Blumenson (Suffolk University Law School) has posted Two Moral Mistakes in the American Criminal Justice System (THE TRAGEDY OF LIBERTY, Andras Sajo and Renata Uitz, eds., Fall 2013) on SSRN. Here is the abstract:
A state’s criminal justice system must serve two masters: it must protect the security of persons and property, and it must respect the liberties of the people. It is bound by both duties and must strike the morally correct balance between them. In this paper, I discuss some principles that I believe must be elements in that balance. I defend these principles as a necessary part of any effective, liberty-respecting criminal justice system; describe the extreme departure from those principles in the United States; and note some recent interest in reforms that, should they take root, could mark the beginning of an American transition towards a safer, less incarcerated and more liberty-affirming country.
February 28, 2013
Greabe on Prospective Constitutional Rulings
John Greabe (University of New Hampshire School of Law) has posted Managing the Costs of Constitutional Innovation on SSRN. Here is the abstract:
Courts sometimes withhold remedies for justiciable and meritorious constitutional claims despite Marbury’s dictum that rights-violations require remedies. The phenomenon occurs with frequency in litigation establishing path-breaking rulings because constitutional innovation can be disruptive and expensive. This paper responds to scholarship calling for a revival of constitutional non-retroactivity doctrine — the now moribund practice of announcing rulings with only prospective effect — to minimize the costs occasioned by constitutional change. The paper argues against reviving non-retroactivity doctrine and proposes a framework that provides courts with concrete guidance on when they may permissibly withhold constitutional remedies. The proposed approach rationalizes current law — which is surprisingly coherent when viewed in terms of how constitutional remedies function — and better respects Article III limits on judicial power than a regime that legitimizes prospective rulings.
Traum on Mass Incarceration at Sentencing
Anne R. Traum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Mass Incarceration at Sentencing (Hastings Law Journal, Vol. 64, No. 2, p. 423 (2013)) on SSRN. Here is the abstract:
Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts. Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.
February 27, 2013
Hovenkamp on Extraterritorial Criminal Antitrust Jurisdiction
Herbert J. Hovenkamp (University of Iowa - College of Law) has posted Extraterritorial Criminal Jurisdiction under the Antitrust Laws on SSRN. Here is the abstract:
When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of domestic antitrust decisions would make little economic, political, or social sense.
The purpose of the distinction between the per se rule and rule of reason is to identify and distinguish situations where anticompetitive effects can be assessed at relatively low administrative costs from those that require more complete analysis. The Ninth Circuit has spoken of a "jurisdictional" rule of reason. However, merging considerations of comity, foreign interests, and domestic effects from extraterritorial conduct into questions about market definition and competitive impact unnecessarily complicates a set of queries that are already complicated enough and are in fact quite different from one another.
One important rationale for expansive reach in such cases is that the sovereign representing purchasers typically has a greater interest than the sovereign representing sellers. A cartel in one country fixing the price of its goods elsewhere transfers wealth away from the territory containing the buyers and toward the territory containing the sellers. As a result, sovereigns, including the United States itself, have typically been less concerned with condemning restraints on export trade where all the buyers are foreign than with restraints on imports. This aspect of United States policy is reflected in the Foreign Trade Antitrust Improvements Act (FTAIA) as well as the Restatement (Third) of the Foreign Relations Law of the United States. At the same time, however, the "effects" query takes on additional relevance in cases involving extraterritorial conduct, because legislative jurisdiction under the Commerce Clause or statutory reach under the Sherman Act or FTAIA require some harmful effect in the United States. Thus, for example, a naked cartel abroad can be made subject to a criminal indictment and per se treatment. However, the government would also have to show a sufficient effect justifying invocation of United States law.
Walker on Sex, Slavery & the Freedom Principle
Anders Walker (Saint Louis University - School of Law) has posted Strange Traffic: Sex, Slavery & the Freedom Principle on SSRN. Here is the abstract:
This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle missed its subordinate relationship to what J.S. Mill termed the principle of freedom.
February 26, 2013
Medwed on Utset on Deterrence Theory and the Corporate Criminal Actor
Daniel S. Medwed (Northeastern University - School of Law) has posted Deterrence Theory and the Corporate Criminal Actor: Professor Utset's Fresh Take on an Old Problem (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
This essay comments on Professor Manuel Utset's latest work in the area of corporate criminal conduct and time-consistent preferences. The essay praises Professor Utset for developing a strong theoretical basis for justifying the external regulation of corporate actors, but also addresses another implication of his theory -- that it has salience in warranting greater internal regulation as well.
Wexler on Therapeutic Jurisprudence and Positive Criminology
David B. Wexler (University of Puerto Rico - School of Law) has posted Getting and Giving: What Therapeutic Jurisprudence Can Get from and Give to Positive Criminology (6 Phoenix Law Review, 2013 (Forthcoming)) on SSRN. Here is the abstract:
This short essay explores the potential symbiotic relationship between therapeutic jurisprudence(TJ) and the newly-conceptualized area of Positive Criminology, a natural offshoot,with some important differences, of positive psychology. Therapeutic jurisprudence concentrates on the psychological impact of 'legal landscapes' (legal rules and legal procedures) and of 'practices and techniques' (roles and behaviors of legal actors, including lawyers, judges, and others working in a legal context). Under some conceptualizations, the 'legal landscape' has been likened to 'bottles' and the 'practices and techniques' to 'liquid', and one important task of a TJ agenda is to analyze how much TJ liquid can flow into given 'bottles'.
The essay sees a near perfect fit between TJ and positive criminology: TJ can look to developments in positive criminology as an excellent 'vineyard' from which to craft and recommend new practices and techniques. And the relationship is indeed a two-way street, for TJ can offer to positive criminology an assessment of how well given (and proposed) legal structures can accommodate a robust practice of positive criminology.
Ball on Defunding State Prisons
W. David Ball (Santa Clara School of Law) has posted Defunding State Prisons on SSRN. Here is the abstract:
Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.
Bizarre internet cannibalism fantasy or attempted crime?
The New York Times has this story:
[A police] officer, Gilberto Valle, has been charged with plotting on the Internet to kidnap, rape, kill and cannibalize female victims. His wife was the first witness in the trial, which began on Monday in Federal District Court in Manhattan.
. . .
There is no evidence that any of the women that Officer Valle was accused of plotting to kill were kidnapped or harmed.
The trial’s opening arguments underscored that theme. A federal prosecutor, Randall W. Jackson, told jurors that the officer had been plotting real crimes to kill actual victims, while Officer Valle’s lawyer, Julia L. Gatto, contended that he had merely been living out deviant fantasies in Internet chat rooms, with no intention of carrying them out.
Transcripts from this week's criminal law/procedure oral argumentsare here. Here are the issues involved, as summarized by ScotusBlog, which also links to papers:
- McQuiggin v. Perkins: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”
- Trevino v. Thaler: Whether the Court should vacate the Court of Appeals’ opinion and remand to the Court of Appeals for consideration of Mr. Trevino’s argument under Martinez v. Ryan?
- Maryland v. King: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
- Peugh v. U.S.: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.
February 25, 2013
Mathen on Polygamy
The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its substantive provisions must be applied so as to preserve and maintain the multicultural heritage of Canadians. This principle stands with other broad ideals of our political community – such as pluralism, mutual respect and human dignity – which constitute important aspects of our legal culture. Any society that seeks to be diverse yet bound by common values will face deep challenges, as conflicts emerge over the meaning of “a good life”. At time such controversies can appear to raise existential issues for the society in question. In this paper I explore one such controversy: what to do about the offence of polygamy. In 2011, in an unprecedented court proceeding, the British Columbia Supreme Court considered the constitutionality of section 293 of the Criminal Code which penalizes all forms of polygamous unions. In an advisory opinion the Supreme Court concluded that in all but one respect the provision does not violate the Charter’s fundamental freedom of religion, or the principles of fundamental justice. In this article, I interrogate the opinion as a false recounting of cross-cultural clash. The polygamy debate reveals another aspect of cultural contestation, not between cultures but within the same one – over the role of criminal law, our view of each other and our commitment to the Charter’s underlying ideals.
Lee on Gross on Moralism and Criminal Law
Youngjae Lee (Fordham University School of Law) has posted Can Criminal Law Do without Moralism? (Journal of Moral Philosophy, Forthcoming) on SSRN. Here is the abstract:
This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012). A substantially shorter version will be published by Journal of Moral Philosophy in 2013.
"DNA and the Constitution"
From The New York Times:
Maryland argues that collecting and analyzing DNA is like fingerprinting. But the purpose of fingerprinting is to identify someone who has been arrested. Maryland was using DNA for investigative purposes, not identification, and doing so without legal justification.
Maryland also argues that the incursion on Mr. King’s privacy was minor compared with the major benefit in crime-solving. But the number of crimes solved with DNAfrom people arrested has been low. The substantial harm to innocent people that could result from the misuse of DNA greatly outweighs the benefits. And the safeguard against such harm is the Fourth Amendment, whose fundamental protections the Maryland court upheld.
Statement criticizing AUSA's racial remarks at trialJustice Sotomayor issued a statement, joined by Justice Breyer, concurring in the Court's decision not to grant cert in Calhoun v. United States but criticizing the prosecutor for asking a witness, "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you--a light bulb doesn't go off in your head and say, 'This is a drug deal?'" The statement also criticizes the Government for failing to acknowledge the inappropriateness of the comment during subsequent appeals.
Today's criminal law/procedure cert grants
Issue summaries are from ScotusBlog, which also links to papers:
- Burt v. Titlow: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.
- Kansas v. Cheever: (1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.
February 24, 2013
Scott on Miller v. Alabama and Juvenile Justice Policy
Elizabeth S. Scott (Columbia University - Law School) has posted Miller v. Alabama and the (Past and) Future of Juvenile Justice Policy (Minnesota Journal of Law and Inequality, Forthcoming) on SSRN. Here is the abstract:
This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century — an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms that transformed juvenile justice policy. The essay describes this period of moral panic and the factors that have contributed to a more deliberative pragmatic response to youth crime in recent years. Finally it proposes strategies aimed at limiting the harmful impact of moral panics that inevitably will arise in the future — and reinforcing the current policy direction.