CrimProf Blog

The Middle Finger and the Law

American University CrimProf Ira Robbins has posted Digitus Impudicus: The Middle Finger and the Law on SSRN.  Here's the abstract:

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of peace statutes and ordinances.

This Article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm, but use of the middle finger simply does not raise these concerns.

Article here.  Be sure to read footnote 34.........

New Article Spotlight: The Political Economies of Criminal Justice

Stanford CrimProf Mariano-Florentino Cuellar has published The Political Economies of Criminal Justice on SSRN.  The Abstract: "Long understood as a specialized branch of law applicable to unambiguously harmful transgressions, criminal law has become instead a mechanism for routine social regulation. As Jonathan Simon puts it in a recent book on the subject, politicians increasingly govern through crime, by framing social policy choices as criminal justice problems. Such choices, in turn, engender expansive criminal jurisdiction, powerful enforcement bureaucracies, and ever more capacious concerns about crime-control. This essay makes three arguments in response to the idea that society is governed through crime. First, it explains why Simon's description of the crime-governance nexus yields important contributions to our understanding of law in its social context. These include a rich historical account of the connection between crime control and the power of the American nation-state, along with the idea (which I term contagious framing) that certain approaches to governance problems are capable of spreading across time, space, and subject-matter. Second, it analyzes the range of different political dynamics affecting criminal justice - including some beyond the scope of Simon's project - and considers their effects. Though aspects of the "governing through crime" phenomenon unquestionably yield troubling results, the multiple dynamics driving criminal justice complicate its evaluation. Criminal enforcement engenders a punitive and encarceral machinery of staggering scope, but also fosters organizations with distinctive capacities to engage in social regulation. The institutional realities identified with governing through crime - including the prominent role of prosecutors and attorneys general, the use of expansive criminal statutes to manage risks, and social programs justified on the basis of crime prevention - draw political support from multiple sources, not all problematic. This mixture of causes and results makes it harder to generalize about the crime-governance nexus, but provides a more descriptively convincing account of criminal law's role. Third, because the crime-governance connection has distinct manifestations and origins, reshaping it to achieve more defensible social goals is a subtle enterprise. Sensible changes in criminal justice could almost certainly yield an acceptable social equilibrium less dependent on incarceration. That society, however, will likely feature a continuing nexus between crime and governance powerfully rooted in the nature of the modern nation-state." Full text here. [Jack Chin]

New Article Spotlight: A Reentry-Centered Vision of Criminal Justice

Maryland CrimProf Michael Pinard has posted this abstract on SSRN: "In recent years, record numbers of individuals have been released from U.S. correctional facilities and have reentered their communities. At present, approximately 650,000 individuals are released annually from U.S. federal and state prisons, while an estimated additional 7 million are released from its jails. In addition, the number of individuals with criminal records - whether or not they were incarcerated - continues to climb. At present, approximately 20 percent of adults in the United States have criminal records.

Part I [of this article] details the shortcomings of current reentry practice. Part II sets forth a reentry-centered vision of criminal justice that recasts the roles of defense attorneys, prosecutors, and judges. Part III sets out a couple of ways in which the reentry-centered model differs from models that, at first blush, appear to be similar and then explains that broader reforms are necessary to fully realize the reentry-centered vision." Full text here. [Jack Chin]

New Article Spotlight: Victims, 'Closure', and the Sociology of Emotion

Highly Cited DePaul CrimProf Susan Bandes (visiting at Chicago) presented this paper at Arizona last week; a very persuasive and perceptive piece of work. The abstract:

"The concept of closure, almost unknown two decades ago, has had a meteoric rise. It has been enthusiastically embraced by the legal system not only as a legitimate psychological state, but as one that the criminal justice system ought to help victims and murder survivors to attain. In the death penalty context, the concept of closure has changed the way we talk about the rationale for capital punishment, it has changed the shape of the legal process, and it has even changed what both survivors and jurors in capital cases expect to feel. Yet, as I will illustrate, the term closure in fact connotes several different and poorly differentiated concepts, each with separate and quite serious implications for the conduct of the capital trial. For example, depending on how closure is understood, it might require a chance to give public testimony, an opportunity to meet with the accused, a more expeditious trial, a sentence of death, or an execution. Yet there is inadequate evidence on whether any of these institutional processes or outcomes can actually contribute to a state of closure for survivors.

As  current research in disciplines including cognitive neuroscience, sociology, psychology, and political science suggests, emotions are dynamic processes that evolve in a reciprocal relationship with social structures. As the legal system becomes increasingly invested in helping victims and survivors achieve closure, we need to take a hard look at the emotional content of this concept, and at how it affects, and is affected by, the institutional framework in which it operates." Full text here.                       

New Article Spotlight: Correcting Search and Seizure History

Tennessee CrimProf Thomas Davies has posted Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law on SSRN.  The abstract: "The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities."  Full text Here.   [Jack Chin]

Yale Law School Pocket Part Calls For Papers

The Yale Law Journal Pocket Part is soliciting commentaries and essays related to the legal issues presented by virtual worlds and economies. Submissions may address, but need not be limited to, the overlap with and implications for real-world institutions.

Scholarly and practitioner submissions that advance a novel perspective or proposal related to virtual worlds are encouraged in any area of law or legal policy. Pieces submitted should be timely, yet they should also address any relevant literature and developments in the field. Submissions should be no more than 1,500 words.

We encourage authors to write in a style accessible to policy-makers and practitioners. For a detailed style guide and instructions for submitting your piece, please visit our website, www.thepocketpart.org, and follow the link for "Submissions." The deadline for submissions is August 25, 2008. [Mark Godsey]

New Article Spotlight: Revisiting the Imperial Scholar: Market Failure on Law Review?

UNLV LawProf Rachel Anderson has published a very interesting draft on SSRN; though not specifically about criminal law, it will be of interest to many CrimProfs.  The abstract: This article argues for reforms in the institution of student-run law reviews. Specifically, it calls for an increased understanding of the potential for bias in the article-selection process. Further it calls for institutional retraining to support the implementation of new criteria and standards and facilitate more accurate evaluation of scholarship.

The evaluation of legal scholarship is often based on assumptions stemming from socio-cultural understandings of law and society that do not address or incorporate the breadth of American society across lines of race, class, gender, and sexual orientation. Nor is it reasonable to expect them to do so. No one scholarly norm or standard can rigorously analyze the full range and extent of the breadth and depth of American society. This inherent inability demands a plurality of ideologies, methodologies, norms, and standards to facilitate and ensure a complex and rigorous intellectual debate. The reforms suggested in this article are intended to address the hurdles that law review editors must overcome to effectuate a more intellectually rigorous and informationally valuable article-selection process.

This article uses a hybrid methodology employing the tools and insights of both critical race theory and law and economics. It begins with issues of bias in legal scholarship raised in the two preceding decades by Richard Delgado, a leading critical race theorist, and Edward Rubin, a former Chair of the Association of American Law Schools Section on Socio-Economics. Then, it follows in the tradition of law and economics scholars and Nobel Prize winner Garry Becker utilizing the tools of economic analysis in non-market contexts. Specifically, this article utilizes economic theories and concepts such as market failure, informational asymmetry, switching costs, and network effects to develop a deeper understanding of institutional bias on law reviews. Finally, it employs scholarship on rhetoric and critical reading skills to identify opportunities for reform. [Jack Chin]

Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia

SSRN.com Recent published University of Berkeley School of Law CrimProf Ty Apler's article "Anesthetizing the Public Conscience: Lethal Injection and Animal Euthanasia."  Here is the abstract:

Lawyers challenging lethal injection on behalf of death row inmates have frequently argued that lethal injection protocols do not comport with standard practices for the euthanasia of animals. This article studies state laws governing animal euthanasia and concludes that many more states than have previously been recognized ban the use of paralyzing agents in animal euthanasia. In fact, 97.6% of lethal injection executions in this country have taken place in states that have banned, for use in animal euthanasia, the same drugs that are used in those states during executions.

Moreover, a study of the legislative history of state euthanasia laws reveals that the concerns raised about paralyzing drugs in the animal euthanasia context are identical in many ways to the concerns that lawyers for death row inmates are currently raising about the use of those drugs in the lethal injection executions of human beings.

This article takes an in depth look at animal euthanasia and its relationship to lethal injection by examining in Part I the history and origins of the paralyzing drugs that veterinarians and animal welfare experts refuse to allow in animal euthanasia; in Part II the standards of professional conduct for veterinary and animal shelter professionals; in Part III, the state laws and regulations governing animal euthanasia; and finally in Part IV, the legislative history that led to the enactment of the various states' animal euthanasia laws and regulations.

Spring Issue of Ohio State Journal of Criminal Law is Now Available

Spring 2008 issue of Ohio State Journal of Criminal Law is now available.

The main symposium says it all: "Toward a Just and Rational Body of Substantive Criminal Law: A Symposium in Honor of Sanford H. Kadish."  Sandy Kadish is probably the twentieth century's foremost and most influential American substantive criminal law scholar.  His casebook itself is a classic, which influenced countless thousands of future lawyers, judges, law professors (and subsequent casebooks). 

NYU professor and casebook co-author Stephen Schulhofer served as Guest Editor of the Kadish symposium.  Besides Professor Schulhofer's Introduction, the symposium includes articles by:

• Larry Alexander & Kim Ferzan ("Culpable Acts of Risk Creation");
• Andrew Ashworth ("Conceptions of Overcriminalization");
• Joshua Dressler ("Reforming Complicity Law: Trivial Assistance as a Lesser Offense?");
• Kim Ferzan ("Self-Defense and the State");
• Claire Finkelstein & Leo Katz ("Contrived Defenses and Deterrent Threats: Two Facets of One Problem");
• Stephen Morse ("Thoroughly Modern: Sir James Fitzjames Stephen on Criminal Responsibility"); and
• Peter Westen ("Impossibility Attempts: A Speculative Thesis"). 

The issue has much more:

1.  The Justice Harry A. Blackmun Lecture by Professor David Sklansky: "Is the Exclusionary Rule Obsolete?" 

2. The Walter C. Reckless Memorial Lecture:  John Hagan & Wenona Raymond-Richmond, "The Disturbing Case of the British Advertising Standards Authority, the New York Times, and the State Department's Low Estimate of the Death Toll in Darfur."

3.  Three Commentaries: Stanley Goldman on "In Defense of the Damned"; Ethan Lieb's "A Comparison of Criminal Jury Decision Rules in Democratic Countries"; and Sandra Guerra Thompson, "Immigration Law and Long Term Residents: A Missing Chapter in American Criminal Law."

4.  A review by Bruce Smith of Andy Taslitz's book,  Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868 (NYU Press 2006).

5.  A one-time reprint of the inaugural articles from our new online "journal": OSJCL Amici: Views from the Field,.  The essays:

• Judge Richard Kopf ("The Top Ten Things I Learned from Apprendi, Blakely, Booker, Rita, Kimbrough, and Gall");
• Judge Gerard Lynch ("Letting Guidelines Be Guidelines (and Judges Be Judges)");
• Judge Lynne Adelman & Jon Deitrich ("Gall, Kimbrough and Crack Retroactivity: Positive but Incomplete Steps in the Evolution of Federal Sentencing"); and
• Judge Nancy Gertner ("Gall, Kimbrough, and Me").

"Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists

SSRN.com recently published S.J Quinney College of Law CrimProf Amos N. Guiora and Lewis and Clark College of Law CrimProf John T. Parry's piece Light at the End of the Pipeline?: Choosing a Forum for Suspected Terrorists.  Here is the abstract:

Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, U.S. Charges 6 With Key Roles in 9/11 Attacks, N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism.

Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance[] the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality.

Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice. [Mark Godsey]

Yale Law School CrimProf James Whitman Writes "What are the Origins of 'Reasonable Doubt'?"

Yale Law School Ford Foundation CrimProf James Whitman recently wrote "What are the the Origins of Reasonable Doubt?"  Here is an excerpt:

As everybody knows, no person in the United States of America can be convicted of a crime unless that person’s guilt is proven “beyond a reasonable doubt.” It would be hard to name a legal doctrine more familiar to the general public. For that matter, it would be hard to name a legal doctrine more basic to the American sense of justice. American criminal law would be unimaginable without the reasonable doubt standard. Indeed, the requirement of proof “beyond a reasonable doubt” is so fundamental that the Supreme Court has read it into our constitutional law, even though the phrase “reasonable doubt” appears nowhere in the Constitution.

But what exactly is proof “beyond a reasonable doubt”? Anyone who has served as a criminal juror knows that the rule is not easy to understand. There is always some possible uncertainty about any case. Exactly what kind of uncertainty counts as a legal “doubt”? Exactly when are legal “doubts” about the guilt of the accused “reasonable”? Jurors are sometimes understandably baffled. Even the some of the most sophisticated members of the legal profession find the question too difficult to answer.

The result is a troubling situation indeed. Once a jury has determined a person to be guilty “beyond a reasonable doubt,” that person’s fate is almost always sealed. Even the emergence of new evidence, like the evidence of DNA testing, may not be enough to reopen a criminal case. Yet judges and legal scholars have come to the conclusion that the phrase “reasonable doubt” can be assigned no definitive meaning. A moral philosopher might raise disturbing questions indeed about this state of affairs. How you can send somebody to prison, or even to death, on the strength of a rule that nobody understands?

Rest of Article. . . [Mark Godsey]

New Article Spotlight: Regulating the New Regulators: Current Trends in Deferred Prosecution Agreements

From SSRN.com: Peter Spivack and Sujit Raman of Hogan & Hartson LLP recently published Regulating the "New Regulators": Current Trends in Deferred Prosecution Agreements. Here is the abstract:

Deferred prosecution and non-prosecution agreements are proliferating. Prosecutors and major corporations entered into twice as many of these agreements between 2002 and 2005 as in the previous ten years combined; thirty-seven such agreements were concluded in 2007 alone. As pretrial diversion becomes the standard means for concluding corporate criminal investigations, it is becoming increasingly clear that a fundamental shift in the purpose and function of the criminal law in the corporate context has quietly taken place. In a post-Enron world, Department of Justice (DOJ) officials appear to believe that the principal role of corporate criminal enforcement is to reform corrupt corporate cultures - that is, to effect widespread structural reform - rather than to indict, to prosecute, and to punish. By focusing more on prospective questions of corporate governance and compliance, and less on the retrospective question of the entity's criminal liability, federal prosecutors have fashioned a new role for themselves in policing, and supervising, corporate America. They have become the New Regulators.

Remarkably, this important policy shift has occurred in the absence of any public guidance from DOJ leadership. Even more remarkably, this signficant shift has sparked little discussion in the nation's broader policy discourse - until now.

As Congress actively considers legislation that would direct DOJ leadership to issue appropriate guidance regarding DPAs and NPAs, this Essay provides an introduction to many of the key issues, offers a background history of the rise of corporate pretrial diversion, and explores several of the significant trends that emerged in 2007. While recent legislative interest is focused on the selection and payment of DPA-imposed federal monitors, this Essay suggests that pretrial diversion in fact impacts a range of important legal concepts, including federal-state relations, the separation of powers, and the basic role of the prosecutor.

In light of the considerable inconsistencies in current prosecutorial practice, this Essay argues that DOJ leadership should take appropriate action and issue much-needed guidance. Failing that, DPAs and NPAs may be a ripe and necessary area for legislative intervention. [Mark Godsey]

New Article Spotlight: Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship

SSRN recently published Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Wake Forest University School of Law CrimProf Jennifer M. Collins.  Here is the Abstract:

This Article is an attempt to begin a conversation about the way children who have been victimized by their parents are treated by the criminal justice system. I suggest that even though as a society we are obsessed with our children, that obsession has not translated into criminal justice policies that adequately protect them. Parental offenders are systematically treated better by the criminal justice system than are extrafamilial offenders, and we need to grapple with whether that preferential treatment is appropriate. I suggest that in many instances it is not, and I therefore propose some principles that I hope provide some guidance for the future formulation of criminal justice policy.

The Article unfolds in five Parts. Part I describes the romanticization phenomenon, drawing on sources both from law and from popular culture to demonstrate how we idealize the parent-child bond. As a result, we have come to believe that we can ordinarily rely upon the strength of that bond, without messy interference from the criminal justice system, to protect our children from harm. In other words, the belief that love, not law, is sufficient to protect our children permeates our approach to family violence.

Part II gives concrete examples of the adverse consequences of this phenomenon and demonstrates how this phenomenon has harmed children. I have chosen in this Part to focus on the most serious crimes that parents can commit against their children: the crimes of murder and rape. These crimes are the focus of the Article because the conduct at issue without question can be characterized as criminal; indeed, these crimes receive our greatest wrath outside the realm of the family. Unfortunately, the romanticization phenomenon affects the criminal justice system's treatment of even these most serious of crimes. This Part also includes a discussion of the parental discipline defense, both because defendants often raise that issue in child homicide cases and because I believe that our continued willingness to endorse the use of corporal punishment against children is contributing to the larger problems discussed in this Article.

Part III addresses some of the objections raised to using the criminal justice system more vigorously to protect children from parental violence. For example, perhaps parental offenders simply are less dangerous than stranger offenders. Other objections include the idea that we do not need the incentives of the criminal law to protect children because the fear of losing a child is incentive enough to induce appropriate parental behavior, or that parents who have lost a child are suffering enough and the infliction of additional punishment through the criminal justice system is simply gratuitous and cruel. This Part also grapples with the very real harms that greater use of the criminal justice system could potentially create, such as disruption of families or a disproportionate impact on families of color.

Part IV sets forth some principles that hopefully can better guide policymakers and practitioners in the future as they grapple with how best to protect our children from harm. This Part argues that if we are serious about protecting children as a class from physical injury, we must reorient our thinking about criminal justice policy toward the home, rather than away from it. This Part also addresses some of the particular issues related to motherhood and child abuse. Finally, Part V offers some brief concluding thoughts. [Mark Godsey]

UH LawProf Michael Olivas on Hernandez v. Texas, the "Criminal Law Companion to Brown"

Michael Olivas, William B. Bates Distinguished Chair of Law at Houston, has posted Colored Men and Hombres Aqui, Hernandez v. Texas and the Emergence of Mexican American Lawyering on SSRN.  The abstract:

An important case was decided by a unanimous United State Supreme Court in May, 1954, in an opinion written by Chief Justice Warren. It invoked race, which had been employed by the State in a way to marginalize a discrete racial group, and formulated Equal Protection. The term Colored Men figured in it. Brown v. Board of Education? No - the case was Hernandez v. Texas, written at the same time as Brown, by the same Court, and was published in the 1954 Supreme Court Reports just before Brown. This criminal law companion to Brown involved all white juries in Mexican-Jim Crow Texas, and has been all-but-forgotten in the bright light accorded Brown. But its anti-subordination language, small town sociology, and bathroom signage (the men's room sign, invoked by Justice Warren, read Colored Men and Hombres Aqui (Men Here). The case was also the first case argued by Mexican American lawyers before the Supreme Court. This study draws upon previously-unexamined archival materials and newspaper accounts, as well as information from the lawyers who tried the 1954 case.

Full text here.

Jack Chin

New Article Spotlight: The IPhone Meets the Fourth Amendment

From SSRN.com: South Texas College of Law CrimProf Adam M. Gershowitz recently published The IPhone Meets the Fourth Amendment. Here is the Abstract: Imagine that police arrest an individual for a simple traffic infraction, such as running a stop sign. Under the search incident to arrest doctrine, officers are entitled to search the body of the person they are arresting to ensure that he does not have any weapons or will not destroy any evidence.

The search incident to an arrest is automatic and allows officers to open containers on the person, even if there is no probable cause to believe there is anything illegal inside of those containers. What happens, however, when the arrestee is carrying an iPhone in his pocket? May the police search the iPhone's call history, cell phone contacts, emails, pictures, movies, calendar entries and, perhaps most significantly, the browsing history from recent internet use? Under longstanding Supreme Court precedent decided well before handheld technology was even contemplated, the answer appears to be yes.

This article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing Supreme Court precedent. The article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. [Mark Godsey]

New Article Spotlight: Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders

From SSRN.com: John Marshall Law School CrimProf Corey Rayburn Yung recently published  " Banishment by a Thousand Laws: Residency Restrictions on Sex Offenders." Here is the abstract:

Across America, states, localities, and private communities are debating and implementing laws to limit the places of residence of convicted sex offenders. Twenty states and hundreds, if not thousands, of local communities have adopted statutes which severely limit the places where a sex offender may legally live.

In this article, I trace these new laws to historical practices of banishment in Western societies. I argue that the establishment of exclusion zones by states and localities is a form of banishment that I have termed "internal exile." Establishing the connection to banishment punishments helps to explain the unique legal, policy, and ethical problems these laws create for America.

Ultimately, residency restrictions could fundamentally alter basic principles of the American criminal justice system. While those supporting these laws have the interests of children at heart, the policies they are promoting will be worse for children and society. [Mark Godsey]

New Article Spotlight: Jack Chin on Yick Wo v. Hopkins

Crimprof Jack Chin (Arizona) has written this draft on Yick Wo v. Hopkins.  The abstract:

Yick Wo v. Hopkins is simultaneously celebrated as a classic equal protection case, establishing the rule against discriminatory prosecution, and lamented as both the first and last case in which the Supreme Court invalidated a prosecution as racially motivated. This essay explores why Yick Wo proved to be a dead end. It proposes that the traditional view of Yick Wo is mistaken: Yick Wo was about neither race discrimination nor prosecution. Yick Wo turned on the Court's treatment of the conduct at issue, operating a laundry, as a constitutionally protected property right. Therefore, a forgotten but large body of cases from the Jim Crow-era holds Yick Wo categorically inapplicable to prosecutions for conduct the state has the power to criminalize. In addition, because the property interest at stake was constitutionally protected, Yick Wo's race was irrelevant to the decision; a white person or corporation deprived of property would have had precisely the same claim. In fact Yick Wo's race was a barrier to rather than a basis for relief: He could raise a property claim only because he had a treaty right to operate a laundry on the basis of equality with others. When the treaty was inapplicable, the Supreme Court upheld race-based economic discrimination against Chinese and other Asians. Yick Wo is famous because it apparently foreshadows the anti-racist jurisprudence of the post-Brown era. Read in the context of the jurisprudence of its own time, it is completely consistent with Plessy v. Ferguson, and stands for only the mundane point that a valid treaty trumps inconsistent state law.

New Article Spotlight: Ron Wright and Marc Miller on Innocence and Prosecutorial Discretion

Crimprofs Ron Wright (Wake Forest) and Marc Miller (Arizona) have written the paper Dead Wrong, forthcoming as part of an innocence symposium at the Utah Law Review.  The abstract: "DNA-driven exonerations offer many lessons for police, for prosecutors, and for legislatures. Many scholars have focused on novel procedures to identify and remedy wrongful convictions after they occur. Scholars have also concluded that in our administrative criminal justice system we need prosecutors who are driven less by testosterone and more by a balanced search for the truth.

In our view, the most enduring changes to the work of prosecutors will focus not on softening their adversarial perspective, but on enhancing and staying true to the traditional core of their work on the front end of the process¿the charging decisions.

In our view, accuracy and honesty in criminal systems face mortal danger when a prosecutor decides what charges to file based on his or her individual assessment of the moral worth of criminal defendants or victims. We believe that errors flourish when the prosecutors' sentencing recommendations aim above all to reach a deal with the defendant to avoid trial, rather than pricing the specific crime that the evidence might prove.

To flesh out these assertions about prosecutors and outcomes we turn to a case study: two stories from Dallas, Texas. The first episode involves the work of the current District Attorney in Dallas to cooperate with the efforts of Innocence Projects as a remedy for an especially high rate of DNA exonerations from the office in recent years. We describe his efforts and explore the limits of after-the-fact remedies.

The second episode from Dallas came to light in a remarkable set of articles from the Dallas Morning News. These reports indicate that prosecutors in Dallas go forward with murder cases in too many cases that deserve lesser charges or no criminal charges at all. At the same time, the office requests probation as the sentence for a murder conviction far more often than other jurisdictions in Texas. In short, the charges and sentences in murder cases in Dallas appear to be both too high and too low. This pattern of outcomes in homicide cases is dead wrong.

We believe that unreliable charging is intimately related to the sort of injustice that drives the innocence movement. Put another way, the two episodes from Dallas are connected. The high level of DNA exonerations we find in Dallas grows out of a fixation on guilty pleas and an indifference to consistent and accurate application of the criminal code. We glimpse the same forces at work in the pattern of original charges and sentences in murder cases."

Paper available here.

Shedding Light on Lie Detectors

From MSNBC.com: An extensive study from the National Academy of Science published in 2003 concluded that in a very controlled setting — say, with college students in a psychology lab — a polygraph can discriminate lying at “rates above chance.”

But the machine — which measures pulse, blood pressure, sweat and other physiological parameters — often fails in the real world. Countermeasures, or ways to cheat the test, are well known and widely available. That's why the National Academy of Sciences concluded that “polygraph test accuracy may be degraded by countermeasures, particularly when used by major security threats who have a strong incentive and sufficient resources to use them effectively.”

The Academy found that reliance on polygraph testing to screen government employees who may be potential security threats results in “too many loyal employees falsely judged deceptive and too many security threats left undetected.” Rest of Article. . . [Mark Godsey]

Research Shows Lack of Reliability for Finger Print Biometrics

From hsdailywire.com: Dutch researchers test the reliability of finger print biometrics by placing finger print scanner at three Dutch soccer stadiums for the purpose of identifying more than 6,000 "black listed" volunteers; the fingerprint system failed to spot 15 percent to 20 percent of those on a volunteer black-list.

Rest of Article. . . [Mark Godsey]

New Article Spotlight: Police Interrogation During Traffic Stops: More Questions than Answers

Boston University School of Law CrimProf Tracey Maclin recently published Police Interrogation During Traffic Stops: More Questions than Answers on SSRN.  Here is the abstract:

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt.

Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the principle that the F! ourth Amendment limits the scope of a traffic stop in the same way that the amendment, as announced in Terry v. Ohio, restricts police activity during an investigative detention to actions reasonably related to the justification for the detention.

In Mendez, however, Judge Reinhardt reversed circuit precedent and ruled that during routine traffic stops, police are free to questions motorists about any subject, provided such questioning does not prolong the length of the traffic stop. Judge Reinhardt's opinion was based on his reading of two Supreme Court cases: Illinois v. Caballes, 543 U.S. 405 (2005) and Muehler v. Mena, 544 U.S. 93 (2005). Judge Michael McConnell has adopted the same rule for the Tenth Circuit in United States v. Stewart, 473 F. 3d 1265 (10th Cir. 2007).

The article explains how Judge Reinhardt and Judge McConnell have misread Caballes and Mena. Their rulings have not only given police the authority to arbitrarily question motorists about ! criminal behavior, but also directly contradict the Fourth Amendment command that an investigative intrusion must be strictly tied and justified by the circumstances which render its initiation permissible. The judges' interpretation, if not corrected, will undermine Fourth Amendment protections that courts across the nation have uniformly recognized since Terry v. Ohio. [Mark Godsey]

New Article Spotlight: The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation

Florida Coastal School of Law CrimProf John F.G. Stinneford recently published an article titled The Original Meaning of "Unusual": The Eighth Amendment as a Bar to Cruel Innovation.  Here is the Abstract:

"Very briefly, my argument is that the word unusual was a term of art that referred to government practices that deviate from long usage. Under the common law ideology that came to the framers through Coke, Blackstone, and various others, the best way to determine whether a government practice comported with basic principles of justice was to ask whether it enjoyed long usage - that is, whether is was continuously employed throughout the jurisdiction for a very long time. The opposite of a practice that enjoys long usage is an unusual practice, or an innovation. The word unusual is included in the Cruel and Unusual Punishments Clause to direct courts to give scrutiny to new or innovative punishment practices; the assumption underlying the Clause being that when the government innovates in the realm of punishment, it often does so in the direction of greater cruelty.

The implications of recognizing the original meaning of unusual are not merely academic. In recent decades, both Congress and state legislatures have significantly increased the penalties imposed on criminal offenders for a wide range of crimes. Seven states have imposed the previously unthinkable punishment of chemical castration on sex offenders, and several more are currently debating the imposition of surgical castration - a punishment practice that fell out of usage in England in the 13th century. Such new punishments are often highly popular, and by that measure they comport with current standards of decency, which is the standard the Court now uses to determine whether a punishment violates the Eighth Amendment. Without a renewed recognition of the significance of the word unusual, courts will be powerless when faced with the primary danger against which the Cruel and Unusual Punishments Clause was designed to protect: The tyranny of enflamed majority opinion."

CrimProf Stinneford comes to the Florida Coastal School of Law with a variety of experience in both law practice and teaching. He served as a law clerk to Judge James Moran of the United States District Court for the Northern District of Illinois, a litigation associate for the law firm Winston & Strawn, and as an Assistant United States Attorney for the Northern District of Illinois.  He has also served as a member of the clinical faculty at the University of Chicago Law School, and the lawyering skills faculty at the University of Dayton School of Law.  His primary teaching and research interests concern criminal law, criminal procedure, and sentencing policy. [Mark Godsey]

New Article Spotlight: "The Stepford Justices": The Need for Experiential Diversity on the Roberts Court

John Marshall Law School CrimProf Timothy P. O'Neill recently published "The Stepford Justices": The Need for Experiential  Diversity on the Roberts Court. Here is the Abstract:

For the first time in history every Supreme Court justice has come directly from the same job: judge on the U.S. Court of Appeals. For the first time in history no justice has ever served in a legislature at any level of government. For the first time in history no justice has ever run for political office. For the first time in history eight of the nine justices have graduated from the same three Ivy League law schools.

This narrowness of experience on the Supreme Court is unprecedented. Our current Supreme Court can indeed be called The Stepford Justices.

This article traces this homogeneity to the failure of the Robert Bork nomination in 1987. Since Bork, Presidents have tried to sell their nominees as non-ideological legal technicians. At the same time, justices are actually being selected for the same reason they always have been - the hope that their decisions will reflect the political beliefs of the President and his party.

The result? An ideologically split Court that decided one-third of last Term's cases by 5 to 4 votes.

This article contends that Presidents - and the legal community - must be more honest about the role of ideology in the work of the Supreme Court. It draws from the work of the mathematician Kurt Godel to argue that the nature of the Supreme Court docket leads to decisions that are both true and at the same time unprovable. Technical legal skill is not as important as values and intuition.

The article recommends a return to the policies of presidents such as Roosevelt, Truman, and Eisenhower. While they certainly tried to choose nominees who shared their political beliefs, they nominated not just individuals with judicial experience, but also lawyers who had been Senators, Governors, cabinet members, heads of regulatory agencies, professors, and even private practitioners. This mix of justices with wide legal and governmental experience is vital for the effective functioning of the nation's highest collegial court. [Mark Godsey]

Contraindicated Drug Courts

Josh Bowers of Chicago has posted the above titled paper on SSRN.  Here's the abstract:

Over the past two decades, drug treatment courts have gained traction as popular alternatives to the conventional war on drugs (and to its one-dimensional focus on incarceration). Specifically, the courts are meant to divert addicts from jails and prisons and into coerced treatment. Under the typical model, a drug offender enters a plea of guilty and is enrolled in a long-term outpatient treatment program that is closely supervised by the drug court. If the offender completes treatment, his plea is withdrawn and the underlying charges are dismissed. But, if he fails, he receives an alternative termination sentence. My premise is that drug courts provide particularly poor results for the very defendants that they are intended to help most. Specifically, the most likely participants to graduate are volitional drug users, who strategically game exit from undesired conventional punishment and game entry into treatment that they, in fact, do not need. By contrast, the most likely treatment failures are genuine addicts and members of historically disadvantaged groups, who thereafter receive harsh termination sentences that often outstrip conventional plea prices. In short, drug courts are contraindicated for target populations and may thereby lead to longer sentences for the very defendants who traditionally have filled prisons under the conventional war on drugs.

Paper here.

Prosecutorial Passion, Cognitive Bias, and Plea Bargaining

Hofstra CrimProf Alafair S. Burkee has posted the above-titled article SSRN.  Here's the abstract:

The standard account in support of plea bargaining is that it reflects both likely trial and sentencing outcomes, but a growing literature explores the ways in which plea negotiations are influenced by factors other than the likelihood of conviction and the probable post-trial sentence. For example, structural factors such as limited pre-trial discovery, attorney self-interest and incompetence, pretrial detention, and determinate sentencing can affect the parties' willingness and power to negotiate. Several scholars have also observed the ways that psychological and cognitive factors, such as overconfidence, denial, information barriers, framing, anchoring, and risk aversion, can influence plea bargaining. Previous examinations of the influence of cognitive bias on plea bargaining have focused primarily on the decision making of defendants. This Article, a contribution to Marquette Law Review's symposium on plea bargaining, seeks to contribute an additional dimension to the understanding of plea bargaining dynamics by exploring influences on the decision making of prosecutors.

A central tenet of plea bargaining is that prosecutors are willing to negotiate settlements to free up trial resources for other cases. Accordingly, the first step in this Article's exploration of prosecutorial decision making in plea bargaining is an examination of the factors that drive a prosecutor's prioritization of cases. Specifically, Part I argues that prosecutors prioritize cases in part by the amount of passion they feel in each case. Prosecutorial passion - how much a prosecutor “cares” about a case - is an undefined and unexplored factor in the current literature, and reflects subjective determinations beyond the strength of a case's evidence or its likely post-conviction sentence.

Part II explores the ways that prosecutorial passion might affect plea bargaining. First, passion might create a conscious aversion to plea bargaining in prosecutors. Second, even when a passionate prosecutor believes she desires settlement, passion might trigger or exaggerate cognitive biases that will make settlement less likely, such as selective information processing, loss aversion, framing, overoptimism, hindsight bias, anchoring, and the sunk cost fallacy. Part III concludes with some brief thoughts regarding the implications of prosecutorial passion for plea bargaining reform.

Article here. 

Director Janet Warren Recieves Grant to Study Juvenile Competency at Trial

The ability of juveniles to participate fully in the judicial system is often controversial. Add in some issue of incompetence, and the legal issues become even murkier.

Janet I. Warren, professor of psychiatry and neurobehavioral sciences and associate director of the Institute of Law, Psychiatry and Public Policy, has received a grant to further explore issues involving juvenile competency—specifically, to assist in the implementation and evaluation of a system for treating youth who have been determined incompetent to stand trial. Warren received $435,000 for the first of four years from the Virginia Department of Criminal Justice Services, drawn from federal funds from the National Office of Juvenile Justice and Delinquency Prevention.

The award also will enable the institute to study the clinical and developmental factors that affect the capacity of impaired children and adolescents to assist their lawyers and make decisions.   

Observing that competence to stand trial is the most common form of pre-trial forensic evaluation conducted with adults, Warren said, “We are only beginning to understand the many psychological factors that affect a youth’s ability to navigate through a court process with the degree of understanding needed to assure a fair trial and protect other rights guaranteed to all people, whatever their age, by the U.S. Constitution.”  [Mark Godsey]

Denver University Law Review Presents Federal Sentencing Survey

The Denver University Law Review is proud to present a special federal sentencing survey. 

On June 21, 2007, the United States Supreme Court handed down Rita v. United States, an important opinion addressing federal sentencing practices in the aftermath of the Court’s landmark 2005 decision in United States v. Booker.  Shortly thereafter, the Denver University Law Review solicited articles from top sentencing scholars, experts, and judges on Rita and how it changed (or did not change) the federal sentencing landscape. 

The articles merit special attention as the Supreme Court prepares to take up closely-related sentencing issues again in its upcoming Term.  On October 2, 2007, the Court will hear oral argument in Gall v. United States and in Kimbrough v. United States, two important cases in the continued evolution of the Court’s federal sentencing jurisprudence. Visit the Site. . . [Mark Godsey]

Study Shows Inmates' Deaths Were Preventable

From latimes.com: As many as one in six deaths of California prison inmates last year might have been preventable, according to a study of medical care in 32 state lockups that will be used to help rebuild the troubled system.

The report, released Wednesday by the court-appointed receiver in charge of healthcare for the state's 173,000 prisoners, revealed a broad pattern of delays in diagnosis, poor inmate access to doctors and tests, botched handling of medical records, and failure of medical staff to recognize and treat dangerous conditions.

Officials said some lapses led to disciplinary actions against doctors and nurses.

There were 426 deaths in 2006, including 43 suicides, and the study examined 381 of them.

Eighteen deaths were found to be preventable, meaning better medical management or a better system of care would have prevented deaths. An additional 48 were found to be "possibly preventable," meaning better medical management of a system of care might have prevented death.

Of the deaths considered preventable, six were from asthma, which receiver Robert Sillen said he intended to make a priority for reforms.

"The leading cause of [preventable] death being asthma is unconscionable, and it is evidence of systemic problems and problems with individual clinical judgments," Sillen said in an interview. "Adults in 21st century California should not have asthma as a primary cause of death."

Sillen said the report, which concluded that problems such as human error, staffing shortages and poor medical records contributed to unnecessary deaths, provided additional evidence that the state's $1.5-billion-a-year medical care system needed to be rebuilt from the bottom up.

Rest of Article. . . [Mark Godsey]

New Article Spotlight: "Restoring the Grand Jury"

From SSRN.com: Harvard Law School CrimProf Kevin K. Washburn recently published "Restoring the Grand Jury"  Here is the abstract:

In recent years, the grand jury has been overly criticized and underutilized. While many recent scholars have proposed reforms that would re-invigorate the grand jury, most of these reforms are ill-designed and unmoored to the historical purposes of the grand jury. In an era of plea bargains, the grand jury has the potential to serve a crucial role in insuring popular legitimacy in the criminal justice system. While much of the existing rhetoric about the grand jury is wrong, some criticism of the institution is certainly due.

As the United States has become more diverse, the grand jury has lost its role as “the voice of the community” and become instead a melting pot in which each community's voice is lost amid a cacophony of voices from other communities. Since a grand jury functions by majority vote and is now generally drawn from the entire jurisdiction, the grand jury no longer serves as a counter-majoritarian force of the local community against central authority.

The gradual homogenization of the grand jury may have had a particularly strong impact on minority communities where legitimacy issues are most serious. Ironically, it was well-intentioned efforts to insure diversity in criminal justice – through the rule that trial juries should be drawn from panels representing a “fair cross-section of the community” – that undermined the grand jury's role when this rule was unthinkingly imported into the grand jury context.

No jurisdiction is just one community, and no grand jury can serve its purpose of representing any community if it is drawn from all communities. The proper way to restore the grand jury is neither to manipulate grand jury evidentiary rules nor to adopt any other reforms that have been proposed in recent years, but instead to insure that the grand jury represents an actual community. Grand juries must be reconstituted so that each grand jury represents a neighborhood, an actual community of people who are concerned about local issues of criminal justice. [Mark Godsey]

New Article Spotlight: Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes

From elsblog.org and SSRN.com: Cornell Law School CrimProfs Ted Eisenberg and Valerie Hans recently circulateda paper entitled: "Taking a Stand on Taking the Stand: The Effect of a Prior Criminal Record on the Decision to Testify and On Trial Outcomes"  Here is the abstract:

This article uses unique data from over 300 criminal trials in four large counties to study the relations between the existence of a prior criminal record and defendants testifying at trial, between testifying at trial and juries' learning about a criminal record, and between juries' learning about a criminal record and their decisions to convict or acquit.

Sixty percent of defendants without criminal records testified compared to 45 percent with criminal records. For testifying defendants with criminal records, juries learned of those records in about half the cases. Juries rarely learned about criminal records unless defendants testified.

After controlling for evidentiary strength and other factors, statistically significant associations exist (1) between the existence of a criminal record and the decision to testify at trial, (2) between the defendant testifying at trial and the jury learning about the defendant's prior record, and (3) in cases with weak evidence, between the jury learning of a criminal record and conviction. For cases with strong evidence against defendants, learning of criminal records is not strongly associated with conviction rates.

Juries appear to rely on criminal records to convict when other evidence in the case normally would not support conviction. Use of prior record evidence may therefore lead to erroneous convictions. Prosecutors and judges should consider the increased likelihood of erroneous conviction based on use of prior convictions in decisions to prosecute and in evidentiary rulings. [Mark Godsey]

New Article Spotlight: "Scalia's Poker: Puzzles and Mysteries in Constitutional Interpretation

John Marshall Law School CrimProf Timothy P. O'Neill recently published on SSRN "Scalia's Poker: Puzzles and Mysteries in Constitutional Interpretation." Here is the abstract:

This paper applies the recently-developed political science dichotomy of puzzles and mysteries to constitutional law. A puzzle can be definitively answered by gathering information about events that have already occurred. It is transmitter-dependent, since its solution depends on what information is rece