Saturday, December 14, 2024

Crim Book Recommendations

There are of course many books about the criminal law, some of which are fascinating and some of which … aren’t. Here’s are some that I enjoy, where I focus on those I’ve most often used in teaching seminars or that I most often recommend to students. (Thus, extremely scholarly books aren’t here, no matter how brilliant.) Feel free to share any comments or additions, including additions highlighting your own work, in the comments.

Steve Bogira’s Courtroom 302 gives a wonderful sense of the day-to-day realities of an American criminal courtroom. Even as some of the specifics are becoming more dated, the book remains a gem.

John Grisham’s The Innocent Man deftly describes the false conviction and (effectively) systematic torture of Ron Williamson. Grisham of course also has novels that address such matters, including The Confession; few of his later works compare to his early writing, however, and all of his fiction tends to be more fun read than inspiring insight into our systems of criminal justice.

Possibly the best single volume on false convictions is Michael Morton’s Getting Life. Simply amazing.

Some of those false convictions of course result from eyewitness identification, for which Ronald Cotton and Jennifer Thompson-Cannino’s Picking Cotton remains a groundbreaking and redemptive work. Tom Wells & Richard Leo’s The Wrong Guys is a harrowing tale of false confessions. And Shaka Senghor’s Writing My Wrongs provides an inside look at the drug trade that can transform young kids into killers, from which some—including the author—fortunately manage to transform back again.

Anyone wanting to understand the injustice of our criminal justice system couldn’t do better than beginning with Bryan Stevenson’s Just Mercy. It is powerful, inspiring, and deeply troubling. A convincing account of the system’s systemic racial injustice is also found in Michelle Alexander’s The New Jim Crow, and Mark Godsey brilliantly chronicles the journey from prosecutor to innocence lawyer in Blind Justice. The three make a powerful trifecta.

No list would be complete without Anythony Lewis’ Gideon’s Trumpet. Merely as a read it is not as terrific as other books, but it remains a classic. Another classic is certainly Truman Capote’s In Cold Blood, and this one absolutely stands the test of time—an amazingly detailed chronicle of senseless bloodshed. Another is Edward Bennett Williams’ One Man’s Freedom; written in 1962, many of his particular examples are dated, but his general ‘defense of criminal defense’ remains as strong as ever.

And now we have a ‘modern classic’ describing the incredible attempts of Jonathan Rapping to reform public defense: Gideon’s Promise. As is most often the case, it’s even better than the movie (Gideon’s Army). Roy Black’s Black’s Law for the most part holds up well, and would be another good read for any potential criminal defense attorney.

There aren’t too many books chronicling the work of a diligent prosecutor, making Steven J. Phillips’s No Heroes, No Villains a worthy read. Although arguably he makes the prosecution somewhat more difficult than it might have been under a different theory, it presents a fascinating question of how to apply the rules of criminal homicide to a tragic crime. Also noteworthy is Vince Bugliosi’s Helter Skelter, as well as Bennett Gershman’s Prosecution Stories. The latter is sure to spark some classroom debate as it takes positions on charging decisions and other matters on which reasonable minds will disagree.

Students interested in the life of a judge might benefit from Frederick Block’s Disrobed. Some portions are certainly more effective than others, but it is a fairly unique accounting. Of course, they could also turn to Milton Hirsch’s fictional The Shadow of Justice.

Students interested in the workings of a criminal jury might enjoy D. Graham Burnett’s A Trial by Jury or crimprof Andrew Ferguson’s Why Jury Duty Matters.

Students interested in policing might begin with David Simon’s Homicide or Jill Leovy’s Ghettoside. The latter is a bit ‘much’ for me, and I don’t buy her conclusion in strong form, but it’s certainly worth a read.

Deviating for a moment from the criminal law—since we are all teachers—Ken Bain’s What the Best College Teachers Do does a brilliant job of assessing what makes for the best of our profession. (But as a warning, the other books in the ‘series’ are not nearly so good.)

In that same vein, students who plan to practice in a law firm might appreciate the wisdom of Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law.

For something truly different, consider Mark Essig’s Edison & The Electric Chair. Would Thomas Edison promote electrocution by alternating current merely to gain support for his own supplies of direct current? Yes, he would.

December 14, 2024 in Books, Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Teaching | Permalink | Comments (0)

Friday, December 13, 2024

Crim Movie Recommendations

I love to watch many sorts of films, and many a movie has some claim to being ‘about’ criminal law or procedure. But when I am asked for recommendations by students, or am looking for something for my own classroom, these are some of those I turn to most often. As always, please share any additions or thoughts in the comments.

Crimprofs don’t come any better than Jon Rapping, and Gideon’s Army is a terrific documentary featuring several then-public defenders affiliated with Rap’s Gideon’s Promise. Patrick McGuinness was another terrific lawyer, and he and his fellow public defender Ann Finnell run circles around an unjust prosecution in Murder on a Sunday Morning. Some similar classics are the Paradise Lost Trilogy (accentuated by a great Metallica soundtrack), The Staircase (this one was pathbreaking, and while a bit plodding at times, it nicely documents building a defense case—be sure to catch the 2004 version and then the Netflix additions), and The Thin Blue Line.

Unlike when I began teaching, students are no longer skeptical of false confessions and erroneous convictions. But Frontline’s Burden of Innocence remains a poignant film that includes interviews with Ron Williamson, the star of Grisham’s The Innocent Man (now itself a Netflix series). CourtTV’s The Interrogation of Michael Crowe is also really terrific, but it is now hard to find (let me know if you’d like to try and track down a copy, and don’t confuse this with the dramatization starring Ally Sheedy).

Folks are more split on whether it chronicles a false confession and/or erroneous conviction, but there is no doubt Netflix’s Making a Murderer rightly captured the world’s attention; the same could be said for HBO’s documentary on Adnan Syed. Equally deserving of attention is The 13th, which critically analyzes the racial injustice of the modern wars on crime, and 15 to Life: Kenneth’s Story, which poignantly demonstrates the cruelty of life without parole for juvenile offenders. Netflix also features The Confession Tapes, which are of interest because they highlight instances of potential false confessions that have led to convictions.

It is always fascinating to ponder what happens inside the jury room. My favorite remains the first time cameras captured an American jury’s deliberations, Frontline’s 1986 Inside the Jury Room. This one is increasingly difficult to find (again, let me know if you’d like help trying to track down a copy), but is really special. Another option is ABC News’ In the Jury Room.

If you want to summarize a lot of 1L criminal law—solicitation, conspiracy, and attempt (including impossible attempt), complicity, and even entrapment—students are sure to enjoy Netflix’s The Legend of Cocaine Island. (Where but in criminal law do you get characters like these? Positional entrapment, or sheer lunacy?) And, speaking of good characters, Woody Allen’s Crimes and Misdemeanors is quite a good film regarding how it might feel to get away with murder.

Sometimes a dramatization does as well as a documentary, and that is certainly true of these classics: Judgment at Nuremberg, To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Anatomy of a Murder, Breaker Morant, and The Ox-Bow Incident. A somewhat less well-known film that presents a fascinating criminal law hypothetical—but only after a great deal of buildup—is Let Him Have It. When it comes to a great watch you simply can’t beat HBO’s The Night Of; whether it sufficiently instructs about the criminal law, you be the judge. Finally, The Star Chamber gets a bit silly, but it presents some intriguing exclusionary rule hypotheticals.

If you want to convey a sense of what it means to live in a totalitarian surveillance state, The Lives of Others is a beautiful film. And if you want to lighten things up, there’s My Cousin Vinny.

Plea bargaining is understandably less often featured in film. An older documentary that continues to make some strong points is Frontline’s The Plea.

For those interested in policing there is The First 48 series, some of which are available on DVD, and of course the fictional, critically-acclaimed The Wire.

Finally, in the ‘slightly less great’ category, I’d include these: Requiem for Frank Lee Smith, The Trials of Darryl Hunt, After Innocence, and American Violet.

Enjoy the movies!

 

December 13, 2024 in Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Movies, Teaching | Permalink | Comments (0)

On State Search and Seizure

I’ve been writing a series of posts on state constitutional search and seizure law for the Brennan Center’s State Court Report; anyone interested in the topic might wish to check them out.  So far, they are three:

The Curious Case of Oklahoma Search and Seizure

States in ‘Lockstep’ with the Fourth Amendment May Not Be Locked

The Search and Seizure Law of State Constitutions

Having talked of diverging states, lockstep states, and the unique Oklahoma superposition of both, perhaps it makes the most sense simply to tackle each state one at a time in order to explicate its approach.  Or, perhaps it would be better to try and categorize the lot of them, as I did in some of my first work many years back.  Any suggestions—including regarding a particularly interesting state jurisprudence—would be most welcome!

December 13, 2024 in Cases of Interest, Crim Pro Investigation | Permalink | Comments (0)

Friday, December 6, 2024

CrimFest Save-the-Date

On behalf of Profs. Carissa Byrne Hessick and Benjamin Levin:

Hi Everyone:

We are excited to announce that CrimFest 2025 will be held on Monday July 14 and Tuesday July 15 at the University of Pennsylvania’s Carey Law School.  As in year’s past, we will have optional dinner groups on Sunday night, and panels will go through early afternoon on Tuesday.

We will circulate more logistical details and a registration link in the spring.  In the meantime, please mark your calendars for a trip to the City of Brotherly Love!

Best,
Carissa & Ben

December 6, 2024 | Permalink | Comments (0)

Monday, December 2, 2024

An Evidence-Based Modification to Criminal Jury Instructions on Right Not to Testify

On behalf of Prof. Eve Brensike Primus:

 

Dear Colleagues,
 
The Data for Defenders program at the University of Michigan Law School promotes creative and evidence-based advocacy in criminal courtrooms by providing defenders with access to motions and briefs that incorporate cutting-edge social science research into defense advocacy.  One of the motions that we drafted is a motion to modify the current pattern criminal jury instruction about a defendant's right to remain silent. Based on important social science research about assumptions that jurors are likely to make about the reasons why defendants choose not to testify, we are proposing to add language that provides jurors with innocent reasons why a defendant might choose not to testify so the instruction reads as follows:

Every defendant has the absolute right not to testify. A defendant may choose not to testify for any number of innocent reasons, including a fear of not coming across well due to poor self-presentation skills, nervousness about public speaking, or because their lawyer has advised them not to testify for reasons unrelated to their guilt or innocence in this case. When you decide the case, you must not consider the fact that the defendant did not testify. It must not affect your verdict in any way.

As currently written, most pattern instructions blindfold jurors, instructing them not to consider the fact that the defendant did not testify but providing no reasons why an innocent defendant might choose not to testify in court. When the jury has no reason to speculate or make assumptions about a subject area, blindfolding jurors to information on that subject can be an effective way to ensure that verdicts are based solely on the evidence presented at trial. But research shows that blindfolding is problematic when jurors have pre-existing biases, experiences, and beliefs relating to a topic, and jurors typically have pretrial experiences, attitudes, and beliefs about whether innocent defendants will (and should) testify. Most jurors believe that innocent people will testify in their own defense. If jurors are not given any reasons why an innocent defendant might not testify at trial, they will fall back on their preconceived assumption that people who are wrongfully accused will and should take the stand to deny the allegations and, if a defendant does not testify, it is probably because that person is guilty. In reality, there are many innocent reasons why a defendant might not testify including, poor self-presentation skills, fear of public speaking, or advice of legal counsel not to testify for a host of reasons independent of the client's guilt or innocence.

In other contexts, jurisdictions have crafted explanation-based pattern criminal jury instructions to redress improper background assumptions and biases. For example, a number of states have modified their pattern jury instructions on flight to include possible innocent reasons why a criminal suspect might flee from the police. If explanation-based instructions are helpful and necessary in that context, they are even more important with respect to the right to remain silent since jurors are not permitted to consider a defendant's choice not to testify at trial for any purpose. 

We are looking for criminal law, criminal procedure, and evidence professors  who are willing to sign on to a three-page letter that we are intending to send to criminal jury instruction committees around the country proposing this change.  If you are interested in signing on, you can find the text of the letter and an opportunity for you to add your name to it here.  If you have any questions, feel free to reach out  to me at [email protected] or at [email protected].  And please feel free to share this with others you think might be interested in signing on.

Thanks so much,

Eve Brensike Primus (she/her)
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
(734) 615-6889
@PrimusEve
@primuseve.bsky.social
 
 

 

December 2, 2024 | Permalink | Comments (0)

Wednesday, November 27, 2024

Presidential Pardons: Biden and Trump vs. Their Predecessors

        When Thanksgiving and the end of a presidential term align, it is not surprising to see an increase in discussions about the pardon power, prompted by the Official Pardoning of the White House Thanksgiving Turkey. In September, a great article from Rachel Barkow and Mark Osler urged President Biden to exercise the power, and a thoughtful article by Doug Berman earlier this week envisioned more regular clemency evaluations. One can see in the data that presidents tend to grant more pardon and clemency requests as they leave office.  

        President Biden’s potential pardons/clemency, as well as President-elect Trump’s (more on that below), inspired me to examine pardon and clemency over time, comparing modern trends to historical patterns. (Hereinafter, I will typically use “pardon” to mean the granting of a petition for pardon, clemency, commutation, reprieve, and remission, as different terms have been used at different points in history, and parsing the nuance is unnecessary for this post. “Amnesty,” or pardoning an entire class of people (for example, “draft dodgers”), is excluded for reasons explained below.) How does President Biden’s use or nonuse of the pen compare with previous presidents? Viewed historically, roughly how many pardons should we expect a president to grant? 

        I began by compiling data from various federal agencies. At the outset, I note that these data are imperfect because the government’s terminology and collection methodologies have changed a bit over time. But the information is reliable enough from 1900 onward to make some general observations. The primary purpose of this post is to provide some (hopefully interesting) data, not to provide an explanation for every historical nuance or anomaly in the context of the pardon power. I don’t group the pardons by categories like administration, world events, or changes to the criminal code; instead, I simply provide the data over time with a bit of commentary.

        I’ll first present the ten-year averages to offer insight into the use of the pardon power by decade: 

1900–1910 

1911–1920 

1921–1930 

1931–1940 

1941–1950 

1951–1960 

155 

253 

317 

299 

314 

144 

1961–1970 

1971–1980 

1981–1990 

1991–2000 

2001–2010 

2011–2021 

207 

172 

50 

27 

45 

166 

        The increase from 2011 to 2021 was the result of the unusually high number of clemency petitions that President Obama granted—around 1,700 in late 2016 and early 2017. Notably, data from the Office of the Pardon Attorney do not include President Biden’s pardons for simple marijuana possession or veterans who were convicted of engaging in gay sex under a military code because pardons by proclamation to a class of people (rather than by individual petition) are not included in DOJ data. I elected to include only pardons published in the Office of the Pardon Attorney’s data (the granting of individual petitions) because it would be impossible to quantify everyone amnestied in history. We can credit President Biden with amnesty of at least 8,500 individuals who are not reflected in these data, but we don’t know quantitatively what that looks like compared to other presidents who have granted amnesty. I focus on traditional pardons by presidents granting individual petitions.  

        Petition grants dropped rather remarkably in starting in the 1980s, falling well below 100 per year starting with the Reagan Administration in 1981. They don’t exceed 100 per year until President Clinton’s final year in office, then drop to under 50 per year during the George W. Bush Administration and during most of the Obama Administration:

3

        We might expect to see an increase in petition grants over time based on at least two factors: (1) an increase in the population of the United States and assumed concomitant increases in the prison population, and (2) an increase in convictions as a result of the federalization of crime over time and tough-on-crime policies. But as Rachel Barkow has written, tough on crime apparently entails tough on pardons. Charles Shanor and Marc Miller have also commented on low pardon-petition grants relative to the increase in prison population. According to Margaret Colgate Love, the decrease is also attributable to structural changes in the late 1970s placing pardon recommendations in the hands of the same DOJ officials who are responsible for setting tough-on-crime prosecution policy.  

        The following graph is illustrative of these points. It compares the U.S. population, new inmates received in federal custody, and pardons over time (the former two categories are scaled to fit reasonably within one graph):

1

We see a sharp increase in new incarcerations beginning in the late 1980s and early 1990s, alongside steady population growth, but a notable decrease in the granting of pardons. Below is the same information focused on inmates received and pardons: (I concluded that analyzing inmates admitted was superior to analyzing overall prison population, but the general observations would be similar.)

2

        The overall average number of petition grants (again, including clemency) from 1900 to today is around 180 per year. But that is a static figure and does not take into account modern incarceration rates. Before 1980 the grant rate averaged around 4.5% of inmates admitted. If modern presidents adhered to their predecessors' rate, we would probably see around 2,500 pardon/clemency petitions granted per year. By either metric, President Biden—and all modern presidents—fall well short. (We might be inclined to give President Biden credit for the amnesty described above, but recall that amnesty by prior presidents was also excluded from these data.) Finding the exact reasons modern presidents seem to grant fewer petitions is beyond the scope of this post, but feel free to explore that in the comments or via email. I can think of a myriad of reasons to justify a number higher or lower than 2,500 per year, but it's an interesting starting place.

        Another reason I was motivated to explore this issue was President-elect Trump’s promise to exercise his pardon power on behalf of individuals associated with the January 6, 2021, Capitol Breach. I have spoken with D.D.C. judges and practitioners working on those cases, and I reviewed the sentencing files for hundreds of those cases for a law-review article that will be published in the next few weeks, so I know a thing or two about those cases and offenders. Most of the offenders (67%) were convicted of misdemeanors, and most of those have likely already served any period of incarceration. Historically speaking, President-elect Trump’s pardons would be somewhat unusual in that they wouldn’t be relieving a death sentence or reducing a long period of incarceration (for example, George Washington spared John Mitchell and Philip Weigel a potential death sentence for treason after the Whiskey Rebellion), they would be eliminating probation or supervised release among mostly low-level offenders (or potentially restoring rights). I don’t mean to diminish the misdemeanor sentences or the burdens of supervised release, but there is less at stake than what pardonees like Washington’s were spared.   

         So which offenders or offenses will President-elect Trump pardon? Misdemeanors? Nonviolent offenders? All offenders—even violent ones who trained for months in paramilitary combat tactics, stormed the Capitol in combat gear intending to thwart the Electoral Count, and assaulted multiple police officers?  

        I suspect that if you asked an average, informed citizen, they would agree with Alexander Hamilton—that the pardon power is for rare cases of “unfortunate guilt” where a flaw exists somewhere in the system or conviction. Over time, people have probably come to expect a politically motivated pardon or two in every administration. But the widespread use of the power based not on an analysis of the merits, but for seemingly tribal reasons (an apparent continuation of the theme, “crimes committed in my name are OK”), will only further undermine the sense of “justice” in the “system.”  

        I expect that this sense of delegitimization will arise among at least some of Trump’s pardonees themselves—in particular, those convicted of serious or violent offenses. A vast majority of January 6 offenders admitted their unlawful conduct and pleaded guilty, with many of them apologizing and acknowledging how wrong they were. Their slates may soon be wiped clean long before serving their full sentence, based not on a flaw in the system or conviction, but on tribal pardons. They would understandably delight in being released, but even beneficiaries of such pardons may feel that the system is unreliable because the rules are applied inconsistently. The exchanged glances that January 6 pardonees will share with their cellmates as they leave them behind will be telling. 

        When I recreate the above graphs in five years, we will probably see at least one new historic bump like the one we saw during the last few months of the Obama Administration (although we might not if President Trump proceeds by proclamation instead of by granting petitions). Could we see more? It seems reasonable to demand so from both men. Historically, we would expect them to grant around 2,500 petitions per year. This could be an interesting proxy for the Executive’s historical perception of the rate of flaws in the system, around 4.5% of new convictions containing “unfortunate guilt.” 

        President-elect Trump’s newly discovered liberal use of the pardon power should extend to petitioners who objectively deserve it. I suspect that he has the political capital to spend, and it would make his January 6 pardons much more palatable. President Biden should also refill his pen, for among other reasons (as he has essentially admitted), his tough-on-crime policies from the 1990s are the reason some of these potential pardonees were even incarcerated.  

        The power to grant pardon and clemency petitions should be about reaffirming the integrity of the system. If history is a guide, Presidents Biden and Trump would do well to exercise it wisely rather than sparingly. 

 

-Sam J. Merchant

November 27, 2024 in Crim Pro Adjudication, Crim Profs, Criminal Law | Permalink | Comments (0)

Friday, November 22, 2024

Chilling Abortion Healthcare

Following the Court’s decision in Dobbs, a number of pregnant people have been unable to receive necessary medical care, including abortions, resulting in tragic consequences. For example, Kate Cox, whose story was reported widely, received the terrible news of a pregnancy complication: the fetus had been diagnosed with Trisomy 18, a condition fatal for the fetus. Cox sought an abortion on her doctor’s advice that would best protect her health and future fertility. She sought a court order allowing her to get an abortion notwithstanding a Texas law prohibiting abortions in nearly all circumstances, which was granted by the trial court. The Texas AG appealed that determination. Ultimately, due to the passage of time and danger to her health, Cox left the state to obtain an abortion. The Texas Supreme Court ultimately determined that Cox’s case didn’t fall within the statutory exception to the ban, which permits abortions to preserve the life of the mother or to avoid “substantial impairment of major bodily function.”

Many tragic cases have demonstrated the harm of denying necessary medical care to pregnant women: Amber Thurman, Josseli Barnica, Candi Miller,  Nevaeh Crain all died after being unable to access lifesaving treatment.  These tragedies are a direct result of the abortion bans that have been promulgated after Dobbs overturned the RoeCasey framework, allowing states to freely regulate, and prohibit, abortion. Importantly, Dobbs negated the constitutional significance of reproductive autonomy, holding that this was not a constitutional right that had to be accounted for in abortion regulation. In light of that, state abortion bans—like in Texas and Georgia—principally balance the interests of fetal life and maternal health. These statutes make explicit exceptions for the provision of abortion healthcare when the life of the mother is threatened. Under any reasonable interpretation, these statutes should have allowed for care in all of these cases. Why then did these women not receive the due care?

The answer is that their medical providers were chilled from providing them such care. Though the record is not always clear, in many of these cases, these women had sought medical help in the face of life-threatening conditions; however, their healthcare providers were waiting for the patients’ conditions to become sufficiently life-threatening to avoid liability under the statutory regimes.

As a result, there has been a focus on the statutory regimes themselves, including how the statutes could be clearer to ensure that healthcare providers understand when they can legally provide healthcare including whether revisions to the statutes are necessary to ensure an appropriate balance of interests between maternal health and fetal life.

I suggest that this seemingly exclusive attention to the legal language itself ignores an important factor: the legal officials enforcing the statutory bans. There are a number of anti-abortion extremists out in the world—who would categorically ban all abortion healthcare, no exceptions. Some of those extremists have arisen to positions of legal power, with the ability to enforce their desired categorical bans.

Aren’t such legal officials constrained by the statutes—which explicitly allow for life-saving care? Unfortunately, no. For example, the Texas and Georgia bans use terms like “life-threatening condition” and “medical emergency” that are inherently vague. It is unclear how serious a health condition must be to legally satisfy the statutory requirement. Indeed, Greer Donley and Caroline Kelly comprehensively make this case. As a result, legal officials have a great deal of discretion in enforcing these abortion bans. And if they are anti-abortion extremists, they can pursue a categorical ban through oppressive enforcement.

The presence of these anti-abortion extremists has important implications for regulating abortion, and this example teaches us much about regulating generally. One important lesson is about chilling costs.

Chilling occurs when a law deters individuals from engaging in potentially beneficial conduct that does not cause the evil that the law was created to address. The chilling cost is the summation of the potentially beneficial conduct that is deterred.

In general, we calculate the chilling cost by looking at the relevant statutes—inquiring about the probability that the statutory language may render liable some beneficial conduct and, as a result, deter such conduct. But abortion regulation exposes another contributor to such chilling cost: the presence of extremist legal officials. In cases where extremism is afoot, it is not enough to consider what conduct may be enveloped in a statute’s reasonable interpretations. In addition, one must consider the likelihood that one’s case may be overseen by an extremist legal official—because such officials will use their discretion to pursue enforcement actions.

There’s much more to say, and I say some of it here, in this draft paper. (Early draft, so comments very welcome!)

One question that we can reasonably ask is this: Assuming arguendo the balance of interests in the statutory abortion bans—namely, that the relevant considerations are maternal health and fetal life (and not reproductive freedom)—how can we regulate in a way that would actually protect maternal health? How can we draft the statutes to make that crystal clear?

I argue that, in light of the inevitable discretion conferred upon legal officials and the substantial number of anti-abortion extremists, there is no way to regulate abortion that appropriately safeguards maternal health.

November 22, 2024 in Criminal Law | Permalink | Comments (0)

Wednesday, November 20, 2024

Call for nominations to join the AALS Criminal Procedure Section (Also, Hello!)

Thank you to Stephen for taking the lead in resurrecting this terrific blog, and for welcoming me to be a contributor. This is sure to be a lot of fun!

Speaking of fun, I hope readers of the blog will consider applying to help lead the AALS Criminal Procedure Section next year. I'm the Chair of the Section until the board turns over in January, and we are in need of fresh leadership. Specifically, we have openings for Chair-Elect, Secretary, Membership Secretary, and At-Large Executive Committee members. Most of these positions entail one-year commitments. This is a neat opportunity to get involved, give back, and work together with some truly first-rate humans. See below for additional information, from the email I circulated to Section members earlier today. (And please note that, to apply for a leadership position, you first need to be a member of the AALS Criminal Procedure Section. If you aren't already a member, you can sign up, and that obstacle will then be removed!)

 

----

 

Hello Criminal Procedure Section Members,

I'm excited to announce the opening of nominations for leadership positions within the Section. Serving in one of these roles is an excellent opportunity to work with an inspirational group to shape the direction of our relatively new Section. I encourage everyone to consider nominating themselves or a fellow member. 

Nominations should be emailed to [email protected] by Friday December 6, 2024. Nominations should include a C.V. and a statement of interest of less than 250 words. The Section will hold elections from amongst the nominations in advance of the AALS annual meeting in January. All positions are for one-year terms, with some ascending to other leadership positions as outlined below. We are seeking to fill the following positions: 

  • Chair-Elect: The Chair-Elect will perform duties as determined by the chair, including but not limited to developing programming for the AALS annual meeting and directing sub-committee chairs and members as necessary. The Chair-Elect shall ascend to the position of Chair at the end of their one-year term. 
  • Secretary: The Secretary is responsible for maintaining meeting minutes for the Executive Committee, overseeing the notice of meetings, and fulfilling other duties as required by the Chair. The Secretary shall ascend to the position of Chair-Elect at the end of their one-year term.
  • Mentorship Secretary: The Mentorship Secretary will oversee mentorship programming throughout the section, including the annual junior-senior conference held by the section. The mentorship secretary may serve a one-year term or a longer term, at the Chair's discretion.
  • Executive Committee Member: Executive Committee Members advise the Chair, Chair-Elect, and Secretary, participate in sub-committee work, and may undertake votes regarding section business. 

If you have any questions about the roles or the nomination process, please feel free to reach out to me at [email protected]. We look forward to working with our new leaders to advance the Criminal Procedure Section!

Best,
Justin Murray

 

November 20, 2024 in Crim Pro Adjudication, Crim Pro Investigation, Crim Profs, Miscellaneous | Permalink | Comments (0)

Tuesday, November 19, 2024

Guest Post: Kolber on Punishment for the Greater Good

The following post was written by our colleague Adam Kolber about his new book, Punishment for the Greater Good, which is available here (discount code ALAUTHC4) or through request from a library. (He also has a four-minute animated book teaser.) I am very pleased to highlight his work; if you have written a book and would like the same, please let me know!

More than ten million people are incarcerated around the world, even though punishment theorists have struggled for centuries to morally justify incarceration and other punishment practices. Efforts so far are incomplete, referencing parts of theories that have yet to be fleshed out. What can we say about the justification of incarceration today?

Retributivists claim that people deserve punishment because of their wrongdoing. Punishment can be morally justified, they say, provided it is proportional to wrongdoing. Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause. In my new book, Punishment for the Greater Good (Oxford University Press), I argue that a “pure consequentialist” approach (one that denies the value of deserved punishment) is better than the “standard retributivist” approach (which justifies punishment based on moral desert) if we seek to address incarceration in the here and now.

In the book, I identify several problems with standard retributivism. Here, I’ll mention one: Standard retributivists make proportional punishment central to their view but haven’t successfully explained how to determine when a punishment is proportional. They suffer from what I call the quantum problem: In order to actually punish someone, you need to justify some quantum of punishment. Retributivists haven’t done that, and I don’t see how they ever will.

Retributivists can’t just rely on their intuitions about proportionality. In an 1883 case, a Native American, named Crow Dog, killed another Native American. Through a tribal justice process, he was required to deliver $600, eight horses, and a blanket as restitution to the victim’s family. The U.S. thought the punishment inadequate and sought the death penalty. Two criminal legal systems came up with radically different solutions. If retributivists use their intuitions to assume that any particular amount of incarceration is justified for even a serious crime like homicide, then they haven’t justified incarceration; they have simply assumed what they need to prove (and what carceral abolitionists can properly demand of them).

Some scholars say that we just haven’t figured out proportionality yet. But while this is never a satisfying response, it is particularly inadequate when we look at punishment, as I do in the book, from a here-and-now perspective. We can’t incarcerate someone today based on a promise to deliver an adequate theory of punishment sometime in the future. Nevertheless, thousands of law review articles and legal cases simply assume that proportional punishment is a sufficiently clear and coherent concept to use when we lock people up.

Consequentialists, by contrast, don’t give proportionality a primary role. They seek to punish when doing so has net benefits. Since both crime victims and incarcerated perpetrators suffer, consequentialists generally seek to reduce total crime-related suffering. While many people overestimate the ability of incarceration to prevent crime (especially its marginal deterrence), there is little doubt that it deters an enormous amount of crime in an absolute sense and prevents the most dangerous offenders from regularly harming others. When incarceration is not a good tool for public safety, consequentialists oppose it and seek better tools. They don’t make people suffer just for the sake of past bad conduct.

Many find consequentialist punishment unappealing because it could lead, under some imaginable circumstances, to the punishment of the innocent, contrary to a firm deontological constraint that prohibits knowingly punishing in excess of desert. But reasonable retributivists will also punish the innocent, at least under sufficiently catastrophic conditions, as I argue in chapter 4 of the book: the dispute largely comes down to setting the threshold at which punishment of the innocent is permissible, and consequentialists plausibly have the better end of the dispute.

Even if we could perfectly assess proportionality, retributivist proportionality is unappealingly counterintuitive. Consider two equally blameworthy offenders named Sensitive and Insensitive. They are alike in all pertinent respects except for the amount they suffer in prison. Sensitive suffers tremendously, while Insensitive suffers too but manages to cope and make good friends. If these equally blameworthy offenders spend the same three years in prison, I claim that they have not been punished equally in any sense that matters from a moral perspective. Moreover, if Insensitive’s sentence was proportional, then retributivists need to explain what justifies the additional suffering we knowingly impose on Sensitive.

We could try to punish in ways that take sensitivities into account. But doing so leads to counterintuitive results as well. Suppose Sensitive suffers so much because, prior to prison, he lived a life of luxury. Few would welcome punishing Sensitive for a shorter duration (or in better conditions) to accommodate his wealth-induced sensitivity. Nevertheless, it’s hard to see why retributivists can knowingly make Sensitive suffer more than Insensitive when they are equally blameworthy. Consequentialists must take suffering into account too. But they’re not specifically committed to proportional punishment and so needn’t reach the particular counterintuitive results retributivists face here.

The affirmative case for consequentialism arises, at least in part, from its comparative completeness. Armed with a way of valuing what is good and bad, pure consequentialism is quite complete. While debates about how to value consequences rages on, standard retributivists face nearly-identical challenges. In order to measure wrongdoing, for example, most retributivists consider the amount of harm an offender caused. Such measurements require them to decide whether to treat harms as bad experiences, dissatisfied preferences, or something else entirely. Since I conduct a comparative analysis of pure consequentialism and standard retributivism, I spend the better part of a chapter arguing that, if anything, pure consequentialism raises more manageable questions about value than standard retributivism does because pure consequentialists don’t assign intrinsic value to moral desert and needn’t wrestle with its associated mysteries.

Once consequentialists have determined the value of various consequences and their best probabilistic assessment of relevant empirical facts, they can tell us how to behave in a wide variety of circumstances. Importantly, they can say quite a bit about whether an instance or practice of incarceration is likely better or worse from a moral perspective than some alternative. The empirical issues are extraordinarily complicated, but at least we know how to address them. (If a patient must choose between two forms of cancer treatment and the scientific evidence is conflicting, we can still do our best to pick one using relatively well-agreed upon methods of analysis.) With numerous choices, we may not know which option will lead to the greatest good, but we can often make choices for the greater good. It’s hard to ask for more in the here and now.

Imagine a car race with two competitors. If one car is missing too many parts to start, even its shabby competitor is superior. Similarly, if standard retributivism is too incomplete to yield verdicts about incarceration, then pure consequentialism is superior in the here and now, even if it has its own blemishes. Hence, my claim in the book is one of superiority, not adequacy. I claim that pure consequentialism is superior to standard retributivism, not that pure consequentialism is necessarily an adequate theory to adopt in the here and now. An adequacy claim would require a much deeper defense of consequentialism than I provide in a relatively short book and would require us to look at many other approaches to punishment than the two I focus on. Still, to the extent that I address popular forms of consequentialism and retributivism, if I succeed in arguing that pure consequentialism is superior to standard retributivism, I have provided you with at least some reason to increase your confidence in pure consequentialism’s adequacy as an approach to punishment in the here and now.

This post is adapted from a longer version at Marcus Arvan’s “New Work in Philosophy” substack.

November 19, 2024 in Books, Crim Profs, Criminal Law | Permalink | Comments (0)

Saturday, November 16, 2024

With gratitude . . .

Thank you, Stephen, for the warm welcome. I am honored to be part of the blogging team! I love the idea of creating a space where crim profs can come together and share their random thoughts on life, teaching, and all things criminal. 😊 I really appreciate that our fearless leader, S, is a big fan of building community and camaraderie among us crim profs. And so, because it was Stephen asking, I welcome the opportunity to share my random musings with you all, and I look forward to building a positive and supportive crim prof environment (outside the typical W-I-P workshop or conference get together).

That said, I’d like to dedicate my first post to Jessalyn Walker with the American Bar Association’s Legal Education Police Practices Consortium. In the summer of 2020, as the world watched events leading to the injury and death of many at the hands of law enforcement, a group of law school administrators joined with the ABA to brainstorm about a way to address the injustices and train a new generation of legal thinkers to approach the issue in a way that learned from the experiences of the past. Born from this group was a new initiative of the ABA, housed within the Criminal Justice Section. Sixty member law schools originally pledged five years to the pilot program. The ABA Legal Education Police Practices Consortium in the last few years has sought to contribute to the national effort examining and addressing legal issues in policing and public safety, including conduct, oversight, and the evolving nature of police work. Jessalyn and her team of fellows (law students throughout the country) have gathered data on local police practices in their local communities and have interviewed numerous scholars and law enforcement on some of the most important topics in policing. https://abalegaledpoliceconsortium.org/ If you haven’t already, I recommend you check it out – the site has some great resources.

The Consortium’s overall goal has been to collaborate with law schools “to advance the practice of policing, promote racial equity in the criminal legal system, and eliminate policing tactics that are racially motivated or have a disparate impact based on race.” One of those ways was to support the development of law school curriculum that might create a forum to discuss controversial policing issues, policies, and practices. As my dean signed onto the Consortium in 2020, I was tapped to create a policing practices course at our law school. I would have been utterly lost without the help of Jessalyn, her law enforcement contacts, and Seth Stoughton’s graciousness in sharing his syllabus and materials for a similar course. Rachel Harmon’s book The Law of the Police was also super helpful. I thought I understood policing practices after teaching crim pro for so many years. I was wrong – there was so much more to learn. But more of that perhaps in a future blog.

What I wanted to mention was that Jessalyn organized a team of profs to create an online law of the police course hosted by the University of Arizona James E. Rogers College of Law. 7.5 weeks, fully online, self-paced and asynchronous, and FREE. When the course opened last month, 333 people signed up – this number included law enforcement personnel, law enforcement academies, attorneys, students, law schools, university staff, and community members from across the nation.  https://law.arizona.edu/law-police-online-course Wow! Imagine what an impact that course might have on police, law students (future prosecutors and defense counsel), and even community members. As the first five years of the Consortium come to a close, I’d like to give kudos to Jessalyn and her team for turning dreams of creating projects that develop and implement better police practices across the United States into reality. If we want to see change, we have to play the long game and take one step at a time. Or in the words of Mahatma Gandhi, "Be the change that you wish to see in the world."

November 16, 2024 | Permalink | Comments (0)

Friday, November 15, 2024

Brooklyn 99 on Knock and Talk

From the Crimprof Multipedia, for teaching purposes...

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consent, drugs, exigent circumstances, fourth amendment, house, plain view, probable cause, protective sweep, search, third party doctrine

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In the pilot of Brooklyn 99, detectives Peralta and Santiago are ordered to “door duty” following the discovery of a homicide in an apartment.

This of course might be an interesting application, because there is reason to think a nearby resident might have information about the crime, a la Illinois v. Lidster, 540 U.S. 419 (2004). But since Girl Scouts and trick-or-treaters can knock too, we of course don’t need to worry about that, say the Supremes. See Florida v. Jardines, 569 U.S. 1 (2013); Kentucky v. King, 563 U.S. 452 (2011).

So, here’s a conversation that ensues:

Video Link

In addition to the generally permissive point above, this might spark some discussion about whether topical limitations ought to exist (whereas here the homeowner makes a ‘spontaneous threshold confession’, of a sort), and about plain view (the bong). Assuming marijuana is illegal to possess, there is clearly probable cause…also exigency to enter? Consent? Could the officers request that consent? If consent were refused, could they require the three individuals step outside while police seek a warrant? For how long? Could they do a protective sweep for additional persons, and, if so, of what locations? And if marijuana is regulated but not necessarily illegal, how’s that play out? As is often the case, a simple visual hypothetical can lead to lots of classroom practice.

For the truly curious, here’s a clip of how it goes for the next two doors:

Video Link

All of which goes to show…detectives must keep up with the times (today, lord only knows who still receives a physical paper).

November 15, 2024 in Crim Pro Investigation, Teaching | Permalink | Comments (0)

Tuesday, November 12, 2024

Bluesky

With Twitter...er, X, looking to be in free fall, perhaps Bluesky will be an effective way to share new blog content.  We'll give it a go, @crimprof.bsky.social

But I am very open to better ideas!

November 12, 2024 in About This Blog | Permalink | Comments (0)

Monday, November 11, 2024

And now...an embarrasment of riches

Things are beginning to roll, so I will stop mentioning each new contributor seriatim, we will look to finish up the onboarding, and then...hopefully onward to great content.

But let me give a much deserved shout-out to thank LPBN's tech guru David Dickens for seeing us through this onboarding, and a welcome to Editors Joshua Dressler, Brandon Garrett, Justin Murray, and (shortly) Sam Merchant.

I expect a handful or so more, and then we'll call it a team, at least for initial purposes.

 

November 11, 2024 in About This Blog, Crim Profs | Permalink | Comments (0)

Saturday, November 9, 2024

And then three - New editor Guha Krishnamurthi

We have another terrific addition as the CrimProf blogging team continues to build out: Guha Krishnamurthi.  I had the pleasure of working directly with Guha as a colleague for a time at OU, we recently wrote a paper together arguing against the current conception of Fourth Amendment consent, and he writes many a fascinating, important article on all sorts of other topics; so, you either already know his work or soon will.

Welcome, Guha!

 

November 9, 2024 in About This Blog, Crim Profs | Permalink | Comments (0)

Tuesday, October 29, 2024

New editor Melanie Reid!

Some terrific news as we begin to build the team of CrimProf bloggers -- Melanie Reid is the first to join!  She's getting set up and will be live shortly.  In addition to the traditional crim law curriculum, she does fascinating work teaching law students about wellness and international criminal law, and hopefully, in time, she might share some of those insights.

Welcome, Melanie!

 

October 29, 2024 in About This Blog, Crim Profs | Permalink | Comments (0)

Monday, October 28, 2024

So you are going to law school…

I went to law school in the dark ages and never left. After a bit of dabbling, I have spent the last quarter century as a prof. Thus, I have both a reasonably good basis for opining on how one might wish to prepare (‘If I don’t know this gig by now!’) and a rather myopic one (‘But I don’t want to be a law professor; I’m going to be a real lawyer.’). And there are certainly aspects of law school that ought to be updated. For example, I’d shift the curriculum slightly in 1L, shift massively towards subject-of-practice interest in 2L, and shift almost entirely to case study and apprenticeship in 3L. (Not to mention stop teaching each particular course as if it were 1789, or even 1871.) Still, it’s not as if we law schools do everything wrong; far from it.

Importantly, as my 1L dean explained to our class comparatively long ago, when you enter law school, you engage with something special that has a very long, and sometimes-ugly-but-at-least-as-often-inspiring past. And, if you do it right, you don’t just graduate to become a lawyer—you become part of that very life of the law…part of the ever-present human struggle to be better…to be more just, to do more right, and to do less wrong…to produce a society of greater wealth, and one of more equal distribution thereof. It is the very human drama, and to be a lawyer is a good part to play, even for a cynic such as myself.

So, as you prepare to enter law school, I hope that you will take time to think on the why. Why do you want to be a lawyer? And I hope you think, like me, that there are very few wrong answers. To lessen social injustice is a right answer in my book…but so is to make money and raise a family…so is to run for political office…and so is to make a lot of money and spend it like Cleopatra. But thinking on the why now—the honest why—might help you rather a lot during law school, as you will be forced quite early to begin making choices not only about coursework, but about clinics, summer jobs, internships, and externships. Those choices often lead to post-graduation jobs, and those first jobs often practically (albeit definitely not necessarily) define a career path. So, decide for yourself now, and be true to yourself later, even in change.

Other than that, how to prepare? Read! I’d read Making Your Case: The Art of Persuading Judges (and, for the truly ambitious, Reading Law: The Interpretation of Legal Texts, but leave this one until the end of my list). Antonin Scalia was a legal giant (making the SCOTUSblog final four by beating out the amazing Thurgood Marshall and William Brennan) and, love him or hate him, he did more than any other recent Justice to change the way we approach legal reasoning and argument. So, read his book(s) to get an idea of how good lawyers do good work. But do not underline, highlight, etcetera, reading as if you were in class preparing for some ultimate test. There will be time enough for that. For now, simply take in the firehose. Hopefully, you will be inspired to see the joy in striving for excellence in the many aspects of advocacy over a career, and, during law school, you might be surprised to find how much your brain actually took in. And you can see whether you agree with Scalia or Bryan Garner (American law’s premier lexicographer and writing guru) on such minutiae as contractions in legal writing or the use of inline (versus footnote) citations; lawyers tend to have strong opinions about most everything, and these two are certainly no exception.

Next, I’d read The Bramble Bush, a series of lectures given by law professor Karl Llewellyn to law students of yesteryear. For nearly a century, this has been the classic ‘start of law school’ read, and it remains the single best text on law: both what law is and what lawyers can do with it, and what law school does well and what it tends not to do. If you use the Oxford printing, it will explain Llewellyn’s occasionally outdated references, and it will warn you to overlook the genderized speech of his day—lest you otherwise miss its underlying legal message. Other than that, you can read his words uninterrupted; they were meant for you, the new student of the law.

Still, two notes before you begin. First, as I noted with the Scalia/Garner work, do not let yourself get bogged down in minutiae—even minutiae you feel you might soon need, such as how to brief a case for the law school classroom. Again, there will be time enough for that; reading prior to law school is merely ‘setting the stage’ or ‘plowing the field,’ readying yourself for the detailed learning to come.

Second, my best guess is that you will pretty nicely travel through Llewellyn’s first three chapters, that you will begin to grow annoyed with his fourth (precedent), and that you will wish to toss in the towel somewhere during his fifth (maybe as you encounter Hohfeld in the third part thereof). I understand. And this leaves two options. One, you might content yourself with his Chapters 1 to 3 and 6. This is not a bad solution, really; again, you are merely setting the stage for three years of learning. Two, you might slog through Chapters 4 and 5, and then reskim each after the slog. Like much legal reading, the lightbulb is likely to go off on the reconsideration, and matters like Hohfeldian right/duty, privilege/no-right, and power/liability are powerful constructs that many practicing lawyers will never learn. If you learn them even before law school, you have an advantage. Either way, I’d ignore his Part Two (Chapters 7 through 10).

Next, I’d read Justice Brandeis’ dissenting opinion in Olmstead v. United States. Like Scalia, Justice Brandeis made it to SCOTUSblog’s final four, and as much as any single opinion can, his words in Olmstead define what it means to be an American. (Or at least so I’ve argued.) And we can practice law school by finding it: go to Google Scholar, click the radio button to select “Case law,” type in “Olmstead v United States,” select the top entry, search for “Brandeis,” and read the section “MR. JUSTICE BRANDEIS, dissenting.” That’s a good legal opinion, and if you don’t find at least some enjoyment in reading it, law school may not be for you!

Speaking of simple legal research, if you instead Google the case name, you might first come upon Oyez (https://www.oyez.org/), a terrific site for Supreme Court caselaw and oral argument. But beware the word’s pronunciation, which is ‘oh-yay’—alas, in law school we will have to learn new vocabulary, just like the jargon of other fields.

And since you will want to begin keeping up with the doings of the United States Supreme Court, you might consider subscribing to SCOTUSblog, but I’d recommend this lighter option: LII. Opt for both the previews and notices of decision, but do not trust the student-written summaries. They simply trigger when you ought to run to the Supreme Court’s website to read a case of interest.

If you are feeling more ambitious and you already have a law school .edu email, you might subscribe to some Bloomberg Law publications, which are a terrific way to keep up with developments in the law. Definitely select The United States Law Week, and you might consider some more specialized fare. For example, someone interested in law and technology might also subscribe to The Brief – Top News of Today, Artificial Intelligence, Tech & Telecom Law News, and/or Privacy & Data Security Law News.

Finally, I’d read The Constitution: An Introduction by Michael Stokes Paulsen & Luke Paulsen. This one comes with two things you’ll want to ignore: one, the authors’ tendency to proclaim opinion as logic (which is admittedly sometimes harder to ignore unless you already know the law and history) and, two, the text boxes annoyingly inserted amid the text—maybe the book ‘grades’ at a B+. And if you’ve had an excellent civics education, you might not need this at all. But understanding the federal Constitution is critical to law school, and since so few get that excellent background education, most will benefit a great deal by reading this book. For example, you ought to struggle with President Lincoln’s always-wrong-except-when-right ‘my interpretation of the Constitution is the only one that matters’ philosophy. (Oh, and you ought to subscribe to Disney+ for a month and watch the musical Hamilton. Seriously.)

If you do all that, you should be in great shape. But if you are still wanting more (impressive!), you could toss in something from…

The substantive law on which you’ll be focusing in your first year: contracts, torts, property, civil procedure, and the criminal law. There are books that try to do all of these together, but I’d instead pick one or two and use the relevant volume from the Understanding series to get that head start; for example, Understanding Criminal Law.

If you want a bit of the historical sense of law school, you might read The Paper Chase and/or One L, two stories (one fictional and one autobiographical) of law school of yesteryear. Despite the decades having passed—and yes much is different—you might also be surprised how much you still recognize during your attendance. As a warning, there are portions of The Paper Chase that might offend, and portions of One L that might cause bouts of drowsiness.

You might read The Legal Analyst: A Toolkit for Thinking About the Law, which has a wealth of good information yet is terribly hard to get through.

And you ought to read a great book or three, especially if you haven’t made the time to enjoy one in too long. Maybe Catch-22 by Joseph Heller, All the Wrong Questions by Lemony Snicket, The Catcher in the Rye by J.D. Salinger, Notes from the Underground by Fyodor Dostoevsky, David Copperfield by Charles Dickens, Empire Falls by Richard Russo, Fifth Business by Robertson Davies, I, Robot by Isaac Asimov, In Cold Blood by Truman Capote, Jude the Obscure by Thomas Hardy, Kite Runner by Khaled Hosseini, No Country for Old Men by Cormac McCarthy, A Painted House by John Grisham, A River Runs Through It by Norman Maclean, The Old Man and the Sea by Ernest Hemingway, 1984 by George Orwell, The Three Stigmata of Palmer Eldritch by Philip K. Dick, White Noise by Don DeLillo, or Siddhartha by Hermann Hesse. There is so much great content to read! If you only want to spend a little time, maybe choose a play like Death of a Salesman by Athur Miller, Our Town by Thornton Wilder, or A Streetcar Named Desire by Tennessee Williams. Or, you could do worse than go with Herman Melville’s Bartleby the Scrivener, which features a lawyer confronted with some hard questions…perhaps of how much we are our fellow human’s keeper…or how modern life can tend to dehumanize…or something else entirely. As in real life, what it’s about is for every reader to decide.

October 28, 2024 in Law School | Permalink | Comments (0)

Wednesday, October 23, 2024

So you want to go law school…

I went to law school back in the dark ages, but since I have recently looked more closely at the process of admissions, I thought I would share a few thoughts. Now, as Richard Feynman aptly warned, “I believe that a [professor] looking at non [professor] problems is just as dumb as the next guy.” Indeed. And it is hard to know who has the ‘right’ perspective when it comes to admissions, including because such a thing critically depends upon what is the question. The question might be anything from, ‘What does it take to get into law school X?’ to ‘Will I have a fulfilling life as a lawyer practicing Y after graduating from law school Z?’ So, again, merely a few thoughts…

First, how about U.S. News? Much ink has been spilled, so there is no dearth of easily-Googled opinions. I will merely say, then, that I think anyone would be a fool to ignore those rankings; they have run for decades and have had an outsized influence on law students during that entire period. Indeed, I can vividly remember one of my (dark ages) YLS profs bemoaning their existence precisely because they had transformed (in his view) the composition of students from a cohort that genuinely believed in the legal realist school to a cohort that crassly “chose number one.” Right or wrong, rankings matter, and those in U.S. News have been the most prominent. Besides, they provide a great deal of useful information—for example, looking at the statistics of the ‘top few’ schools, one can immediately see there is one (The University of Chicago) that does not play the yield games that the others do. Does that matter? That’s of course for each applicant to decide; but, sticking with the ‘Chicago school’ for a moment, more information tends to be a good thing, and this is indeed information.

So, as in most of life, you might wonder whether anyone really ought to complain quite so much, and you might really wonder at the source of who is complaining. Is it applicants struggling to make sense of a world of massive information overload? Or is it, say, a law school fearing that it might inevitably (and even rather soon) fall from the coveted number one spot it has held since the beginning, and thus cleverly attempting to ‘jump ship’ before that could ever happen? Or might it be an entire profession staring at a demographic cliff and a massive upsurge in societal dissatisfaction with higher education and its staggering costs, and fretting about the monetary impacts of its ranking position, especially as online education looms? In other words, consider the source.

Still, I’d advise an applicant use the rankings as you would any single metric in life: look at trends over time, not a single year (how terrible will you otherwise feel after enrolling and seeing a drop?), and realize these rankings are merely one datum in a complex calculus. There is no doubt they are wildly silly, as any law prof knows who has ‘helped’ U.S. News compose its list by ranking every single law school in America from 1 to 5. (Yup, seriously; that is “peer reputation.”) But what in this life is not rather wildly silly? And you can bet there tends to be strong correlation at law firms and elsewhere with those much-maligned rankings. So, again, it would be foolish to ignore them. Yet it would be equally foolish to think they will control your destiny—I’ll share a personal anecdote about that in just a bit.

Second, how about the LSAT? There are no longer logic games (a shame, really, as they are eminently gameable), but no matter what the LSAC tests, it’s a standardized test. And the typical advice seems to work: (1) practice a lot (this used to be on Khan Academy and is now moving to LawHub), and (2) if you can afford it, take a prep course that has been doing this for a long, long time, where here I’d nod to Kaplan. It would be wonderful if money didn’t matter in this, but then you could say that about most anything in this life. LSAC only gives away a sample; you get more by paying. As for test-prep companies, they routinely run ‘sales,’ so planning ahead might lower the price somewhat. And, at least if you are generally strong on standardized testing, I would not pay for one-on-one tutoring; if you go with a ‘tried and true’ company like Kaplan, the prepared materials will be ample. If, however, you struggle with standardized testing, then a tutor might help a great deal—but it could be any very good tutor in such testing, as basic testing skills are not at all unique to the LSAT.

It is hard to say too much more that isn’t specific to a single test-prep provider, but one thing seems universal—their modern formats can be overwhelming. (How delightful was a reasonably-sized, old-fashioned book with which you might start on page one and simply proceed?) But, again, at least with a provider ‘tried and true’ like a Kaplan, I would complete the core prepared units and practice—no skipping, and best done in the intended order. The course drafters hopefully considered which questions to include when, so you won’t see annoyingly repeated or incomplete information if you follow their schedule. If you jump around…well, then naturally there is no such guarantee. As for other content, such as “LSAT radio,” I would tend to avoid it as a waste of time. Again, stick to the ‘core,’ and then supplement as needed/desired with additional past LSAT questions. To be intentionally redundant, I have a single piece of strong advice: if possible, pay for ‘tried and true,’ as opposed to settling for ‘newer, cheaper, and gimmicky.’

Third, how about applications? Well, the LSAC Credential Assembly Service “simplifies the law school application process,” of course. Hah! Here is where we really had it good in the old days—application forms were filled in by typewriter, and you can bet they were short and succinct. One simple application and one simple personal statement, and you were done. Today, by contrast, where essay after essay inconveniences nobody but applicants and electrons? Any prospective law school applicant has seen this show before with undergraduate education and its misnamed “Common App.” So, there are schools for which application is a breeze—for example, The University of Chicago. And there are schools which make you retype every item in your resume into a unique format and require much more—here’s looking at you, my alma mater. In short, applications vary tremendously. But there are two core components into which you can invest a lot of time because they are sufficiently universal: a two-page personal statement and a two-page resume. Also, the admissions officers of some schools have produced podcasts, and so anyone particularly interested in such a school should give that a listen. But anybody not so particularly interested can probably skip it, because…

Fourth, how about admissions? Idiosyncratic. And let me just say that again: idiosyncratic. “Holistic” works like that. Some schools largely ‘follow the data’ and get out decisions in a timely manner (once again looking at UChicago). But other schools are swathed in mystery and eventually make decisions (once again looking at my alma mater). My strong sense, however, is that the mysticism is strongly skewed towards ‘the top.’ So, if you are shooting for a ‘top ten’ (or ‘T14’), be prepared to be mystified by the results—‘Why did I get in here and not there?’ Well, because a particular admissions counselor on a particular time on a particular day perceived it how he or she perceived it, in significant part on account of how that day happened to be going. C’est la vie. (Thus, for those shooting into the T14, one thing not worth a listen is where folks imagine you’ll be admitted.) But if you are looking at the mine run of law schools, you can probably predict results quite accurately so long as you know the data and put together a reasonably professional application.

Finally, does it matter? Of course. You will spend three years of your precious life there, and it will stick around on your CV ever after. So it goes. Still…it helps me to remember a student where I taught for a decade, at (lowly to U.S. News) Delaware Law in Wilmington, Delaware. This student ran for SBA president, and I remember this because I let him give a little spiel at the beginning of my class when running for said office, something I tried never to do. His plug began something like this: “I appreciate our school because it was the only one that admitted me.” So it goes. In a later term, I would award him his first (well deserved) ‘straight A’ of law school, I would coach he and his partner to victory in an interscholastic competition, and, dare I say it, we would, over time, become friends. Then he went on to achieve fame in a rather storied career … so he won’t return a text. So it goes. It ultimately doesn’t matter as much where you go to law school; it matters what you make of it when you are there.

And if you make it through the admissions gauntlet and accept a 1L spot, congratulations! Lawyers have always been maligned, but there is perhaps no better measure of a society than its law. I’ll separately post a few thoughts about what you might do to prepare for that first year.

October 23, 2024 in Law School | Permalink | Comments (0)

Sunday, October 6, 2024

Multipedia Post: Walgreens Security Guard Kills

Since 2009, I have shared multimedia teaching content at the Crimprof Multipedia; going forward, when I post new content there, I’ll try and also make a note of it here.  I will not, however, make an entire duplicate library of the multimedia content.  So, if you are interested in a particular post, you can go and grab it there.

https://crimprof.com/criminal-law/defenses/walgreens-security-guard-kills/

Category

Defenses, Pretrial

Tags

charging decision, common law, deadly force, defense of property, defenses, discretion, firearms, homicide, justification of law enforcement, murder, non-homicide crime, pretrial, prosecution role, self-defense, theft

Post

In April of 2023, amidst strong disagreement over how to handle retail theft in California, 33-year-old private security guard Michael Anthony was on shift at a Walgreens in San Francisco when he saw someone slip an item into a bag. A confrontation ensued, witnessed by bystanders and captured on CCTV, resulting in Anthony shooting (a single time) and killing 24-year-old Banko Brown. Here’s the video:

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Anthony easily satisfies the requirements of some form of criminal homicide, including murder—for example, intending to cause serious bodily injury, he caused the death of another human being. And of course defense of property never permits deadly force. So, it is a case for addressing the defense of law enforcement and self-defense.

As for law enforcement, the common law was of course generous and applied to us all, so the issues include whether and how California has narrowed that doctrine and whether it was reasonable to believe this deadly force necessary to arrest a felon. Petty retail theft would not begin as a felony, but did this become a robbery? If you teach like me, you won’t be as concerned with precisely how California has modified the doctrine, but rather with working through the types of changes commonly made by various states.

As for self-defense, could guard Anthony reasonably fear imminent serious bodily injury or death at the time he shoots? He claims Brown had repeatedly threatened to stab him, and that he thought “I was going to be stabbed.” Bystanders did not hear those threats, and police found no knife.

Beyond the substantive criminal law, it is a case for discussing prosecutorial discretion, with all the questions that naturally raises: Why do we permit prosecutors to make these choices? Is there a realistic better alternative? In this case, the prosecutor both released a written report and sat down for an interview regarding her charging decision:

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As of September 2024, no charges were filed and none were planned.

Another interesting topic might be the different bystander reactions, including a seeming lack thereof. What might these say about things?

October 6, 2024 in Criminal Law, Teaching | Permalink | Comments (0)

Carpenter AI-Generated Podcast

Google has released a rather amazing new generative AI tool, NotebookLM, into which you can upload any documents you’d like to make the subject of an AI-generated podcast.  Carpenter, as a case about technology changing antiquated Fourth Amendment law, seems appropriate fodder; so, here is what NotebookLM generated when I fed it the PDF of the Supreme Court’s opinion.

Carpenter v US by way of Google NotebookLM

You can spot the errors—and having students do the same might be a good class exercise—but it's rather impressive.

S.

 

October 6, 2024 in Cases of Interest, Crim Pro Investigation, Supreme Court, Teaching, Technology | Permalink | Comments (0)

CrimProf Blog Lives On

Thanks to Kevin for shepherding the blog over the years.  Now that he's turned the page, I've decided to make a go of building out this space—time will tell how it goes!  If you have thoughts regarding content you'd like to see, let me know.  I'll be simultaneously working content here in addition to my longstanding presence over at Crimprof, including its library of multimedia teaching modules.

S.

 

October 6, 2024 in About This Blog | Permalink | Comments (0)