CrimProf Blog

Potential Fallout From the Government's Challenge to the 9/11 Accused's Plea Deals

If the government has agreed to a plea deal in which the possibility of the death penalty has been dropped, may a higher-ranking official lawfully renege on that deal? Even if law permits the rescission, should the government do it?

On the former, my gut response is “What? Of course not!” But indeed the question can be more complex. However, as to the latter, I suggest that the answer is: “No, for the government’s own sake.” Making and then breaking deals hurts the government’s own credibility in future negotiations. That’s especially true if the government breaks promises in high-profile, widely-known cases.

Recently, the government did exactly that in the highest profile criminal cases of recent memory—the cases against the 9/11 Accused. Now those cases are before the D.C. Circuit. Specifically at issue are the status of plea agreements with three individuals accused of orchestrating the 9/11 attacks: Khalid Shaikh Mohammad, Walid Bin ‘Attash, and Mustafa al Hawsawi. The plea negotiations between the government and the Accused have been going on for years, and this lengthy process culminated in what appeared to be a plea agreement in July 2024. Though the details are not public, what we do know is that the parties reached an agreement for these three Accused to plead guilty to all the charges, in exchange for the removal of the possibility of the death penalty. All three plea agreements were signed by Brigadier General Susan Escallier—who was the “Convening Authority” of the military commission trying these cases. But shortly after the announcement, Secretary of Defense Lloyd Austin sent a memorandum to Brigadier General Escallier stating that he was withdrawing her authority as Convening Authority, and exercising his own authority as the “superior convening authority” to withdraw the plea agreements.

The three Accused opposed the Secretary’s action, arguing that he lacked the authority to withdraw the pleas and that they had already started performance of the plea, thereby blocking any attempt by the government to withdraw. The Military Commission Judge agreed and found that the government’s attempted withdrawal to be unlawful. Thereafter, the government sought a writ of mandamus and prohibition before the United States Court of Military Commission Review (USCMR) to stay the plea proceedings before the military commission. The USCMR declined to issue the writ, and the government appealed to the D.C. Circuit—where the case remains now.

As mentioned above, the cases present several complex legal issues, principally about the hierarchies and conditions of authority over the military commissions and when and how a defendant’s performance of a plea agreement begins. The briefing before the D.C. Circuit comprehensively raises these arguments.

But I think there is an important systemic observation. It relates to the fact that even if the questions about negotiation authority and plea performance are technical and potentially unique or idiosyncratic, reneging on a plea agreement has potentially vast impact. This is because of the importance of plea bargaining to the function of the criminal system. The Supreme Court, time and again, has stressed this fact about our system. And some studies suggest that around 95% of all criminal convictions are obtained through plea agreements.

Notably, one area where defendants raising criminal procedure challenges have had (surprising) success is with respect to plea bargaining—for example, Santobello v. New York and Blackledge v. Allison. In these cases—and indeed other plea bargaining cases where defendants have lost—the Court was focused on ensuring that defendants can trust the plea bargaining process and incentivizing both defendants and the prosecution into entering plea agreements.

The briefing before the various tribunals suggests that the government sees this case as exceptional. That’s understandable—it’s 9/11, it deals with military commissions, and it has an intervention by the Secretary of Defense. Nevertheless, I think that’s potentially wrong as an empirical matter. The case is maximally high-profile, but it is ultimately not unique. At the end of the day, an individual with at least apparent authority signed agreements with criminal defendants, who then acted on those agreements by inter alia entering into confessional stipulations. In reneging on such a plea process, the government—in these maximally high-profile cases—may very well undercut its general credibility in plea negotiations with other defendants. I could very plausibly envision a defendant querying whether their prosecutor is reliably negotiating a plea: “Do you really have the power here, or could someone above your pay-grade overturn all of this? Am I wasting my time with you? How can I trust that you’ll fulfill your side of this agreement? Didn’t I hear that the government got a confession and then tried to wriggle out of the deal in those 9/11 cases?” (It’s important to note that, on my understanding, the government’s withdrawal from the pretrial agreements would seek to return the case to the status quo ante, and the government would not be able to use the confessional stipulations against the accused. The government contends this results in no prejudice. I’m inclined to disagree, but I leave that issue for another day.)

Now, it’s perhaps far-fetched that most or even many run-of-the-mill defendants will be so jaded by the government’s conduct in the 9/11 case. But critically it doesn’t take much to cause severe shockwaves to the criminal system. There are a lot of criminal cases and relatively few are going to trial. Even now there are concerning backlogs. High-profile cases loom large in our public psyche. And a decision that allowed a superior authority to scuttle a consummated plea deal would be turbulent. If even a small percentage of would-be plea agreements were consequently disrupted, resulting in trials, courts could face substantial resource shortages and delays. 

Request for Submissions - Harvard/Stanford/Yale Junior Faculty Forum

On behalf of Rebecca Tushnet, this request for submissions will be of interest to some readers:

Request for Submissions
Harvard/Stanford/Yale Junior Faculty Forum
June 2-3, 2025, Harvard Law School

Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2025 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Harvard Law School on June 2-3, 2025. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a double-blind selection process, to present their work at the Forum. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2025 meeting, the topics will cover these areas of the law:
Administrative Law
Antidiscrimination Law and Theory
Constitutional Law—theoretical foundations
Constitutional Law—historical foundations
Criminal Law
Critical Legal Studies
Environmental Law
Family Law
Jurisprudence and Philosophy
Law and Humanities
Legislation and Statutory Interpretation
Public International Law
Workplace Law and Social Welfare Policy

A jury of accomplished scholars will choose the papers to be presented. There is no publication commitment. Harvard Law School will pay presenters’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: Authors who teach law in the U.S. in a tenured or tenure-track position as of the submission deadline (February 28, 2025) and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2015. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Harvard, Stanford, and Yale Law Schools are not eligible.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Rebecca Tushnet at [email protected] with the subject line “Junior Faculty Forum.” The deadline for submissions is February 28, 2025. Remove all references to the author(s) in the paper. Please include in the text of the email your name, the title of your paper, your contact email and address through June 2025, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed to Rebecca Tushnet.

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Christine Jolls ([email protected]) or Yair Listokin ([email protected]) at Yale Law School, Rebecca Tushnet ([email protected]) at Harvard Law School, or Norman Spaulding ([email protected]) at Stanford Law School.

Christine Jolls
Yair Listokin
Rebecca Tushnet
Norman Spaulding

And here's what the AALS Criminal Law Section has lined up...

As an addendum to my last post, on behalf of the AALS Criminal Procedure Section, what follows is information about the events planned by the AALS Criminal Law Section for the AALS Annual Meeting (posted at the request of the Section's chair, Cortney Lollar):

 

2025 AALS Annual Meeting Criminal Law Section Panels

 

Criminal Law Junior Scholars’ Works-in-Progress

Jan. 8, 2:40-4:10pm, Moscone Center, Room 212

Panelists: Matthew P. Cavedon (Emory), Guha Krishnamurthi (Maryland), Isis Misdary (Seton Hall), Benjamin Pyle (Boston University), Raquel Wilson (Kentucky); Shawn Fields (California Western), moderator

 

This session presents exciting works-in-progress by junior scholars in the Criminal Law field.

 

Criminal Law, Shaping Law through Applied Storytelling, Critical Theories & Epistemology in the Classroom

Jan. 9, 2:40-4:10pm, Moscone Center, Room 205

Panelists: Matthew Boaz (Kentucky), Bennett Capers (Fordham), Sherri Lee Keene (Georgetown), Marisol Orihuela (Yale), Maybell Romero (Tulane); Yvette Butler (Indiana), moderator

 

Panelists and the audience will consider the similarities and differences, as well as the consequences, of using Applied Legal Storytelling, Critical Theory, and Epistemology in legal scholarship, clinical work, legal education, and the legal profession. Panelists are Criminal Law scholars who work and write on the criminalization of marginalized communities, and plan to address the ways these overlapping methodologies impact their scholarship and the criminal system. By the end of the program, all will leave with a better understanding of how these methodologies work and which ones should be utilized for different impacts on scholarship and the legal system.

 

 

Pregnancy Crimes: New Research and Advocacy

Jan. 10, 9:50-11:20am, Moscone Center, Room 211

Panelists: Wendy Bach (Tennessee), Valena Beety (Indiana), Mary D.M. Fan (U. Washington), Eve Hanan (UNLV), Brenda V. Smith (American), Karen Thompson (Pregnancy Justice); Cortney Lollar (Georgia State), moderator

 

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of “Courage in Action,” the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care.

 

 

Prison Law: Operating in the Shadows

Jan. 11, 9:50-11:20am, Moscone Center, Room 205

Panelists: Paulina Arnold (Michigan), Nicole Godfrey (Denver), Danielle Jefferis (Nebraska), Zina Makar (Baltimore), Tiffany Yang (Maryland); Ben Levin (Washington U.), moderator

 

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

CrimPro AALS Section events later this week

With the AALS Annual Meeting coming up next week in San Francisco, I wanted to plug a handful of events that the AALS Criminal Procedure Section will be hosting at the conference. Hope to see some of you there!

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Wednesday, January 8:

12:50 – 2:20

Looking Back-and Forward-After Twenty Years of Crawford v. Washington (Criminal Procedure, Co-Sponsored by Evidence)

In Crawford v. Washington the Supreme Court set out a new framework for analyzing Confrontation Clause claims. Crawford issues are among the most frequently litigated questions in criminal cases. Crawford offers a case study on constitutional interpretation, the evolution of precedent, and the systemic consequences of making more difficult the prosecution of crimes against especially vulnerable victims. Crawford will continue to raise difficult and important questions, as shown by last term's decision in Smith v. Arizona – a case that decided one difficult issue but dodged another. This panel will discuss Crawford's past, present, and future.

Speakers:

Donald A. Dripps, University of San Diego School of Law

Richard D. Friedman (Moderator), The University of Michigan Law School

Erin E. Murphy, New York University School of Law

Erin Sheley, California Western School of Law

Emily Spottswood, Florida State University College of Law

 

12:50-2:20

Privacy and Racial Justice (Defamation and Privacy, Co-Sponsored by Children and the Law, Criminal Procedure, Employment Discrimination Law, Jurisprudence, and Poverty Law)

This program will highlight the contributions of African Americans and other people of color to U.S. privacy jurisprudence and will explore how despite these contributions people of color continue to disproportionately suffer privacy infringements in their homes and in public. This program will emphasize how surveillance, tracking, and data mining techniques always has and continues to intensify the racialized privacy regime in the U.S.

Speakers

Anita L. Allen, University of Pennsylvania Carey Law School

Chaz Arnett, University of Maryland Francis King Carey School of Law

Norrinda Brown, Fordham University School of Law

Abi Hassen, Penn State Dickinson Law

Najarian Peters, University of Kansas School of Law

Shaakirrah Sanders (Moderator), Penn State Dickinson Law

Friday, January 10:

8:00 – 9:30 am

Criminal Procedure Beyond the Casebook

The conventional casebook is giving way to new methods of pedagogy, including the customized do-it-yourself casebook and the integration of new technologies. Yet Criminal Procedure comprises a relatively narrow band of Supreme Court cases and doctrinal "buckets" that future criminal lawyers must know. How do we innovate with newer technology in order to develop these core concepts? Do we need to go beyond the conventional casebook to achieve these goals? This panel will examine fresh ideas on how to enhance the student learning experience in Criminal Procedure, in terms of both supplementing and supplanting the conventional casebook approach. 

Panelists:

Shih-Chun "Steven" Chien, Cleveland State University College of Law

John J. Francis, Washburn University School of Law

Stephen Galoob, The University of Tulsa College of Law

Stephen E. Henderson, University of Oklahoma College of Law

Michael J. Mannheimer (Moderator), Northern Kentucky University, Salmon P. Chase College of Law

Alexandra Natapoff, Harvard Law School

 

9:50-11:20 am

Pregnancy Crimes: New Research and Advocacy (Criminal Law, Co-Sponsored by Criminal Procedure, Sexual Orientation & Gender Identity Issues, and Law, Medicine and Health Care)

This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of "Courage in Action," the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care. 

Panelists:

Wendy A. Bach, University of Tennessee College of Law

Valena E. Beety, Indiana University Maurer School of Law

Mary D. M. Fan, University of Washington School of Law

Eve Hanan, University of Nevada, Las Vegas, William S. Boyd School of Law

Cortney E. Lollar (Moderator), Georgia State University College of Law

Brenda V. Smith, American University, Washington College of Law

Karen Thompson, Pregnancy Justice

12:50-2:20 pm

New Perspectives on Fourth Amendment Suspicion (Criminal Procedure, Co-Sponsored by Criminal Law)

In many respects Fourth Amendment doctrine has evolved to expand law enforcement power to act on suspicions, frequently to the disadvantage of disfavored groups. Reversing these patterns is not just a matter of academic interest but a pressing need, amplified with the advent of more intrusive and pervasive surveillance technologies. Participants in this discussion will address the ways that suspicion is defined and constructed, its role (or failed potential) in constraining government power, the need for alternatives to suspicion to regulate mass data surveillance, and the potential for suspicion to serve as cover for bias.

Panelists:

 Alyse Bertenthal, Wake Forest University School of Law

Mary D. M. Fan, University of Washington School of Law

Andrew G. Ferguson, American University, Washington College of Law

Barry Friedman, New York University School of Law

Lauryn Gouldin (Moderator), Syracuse University College of Law

Aliza Hochman Bloom, Northeastern University School of Law

Michael J. Mannheimer, Northern Kentucky University, Salmon P. Chase College of Law

Jamelia N. Morgan, Northwestern University Pritzker School of Law

Nirej Sekhon, Georgia State University College of Law

Maneka Sinha, University of Maryland Francis King Carey School of Law

Saturday, January 11:

8:00 am - 9:30 am

Criminal Procedure Works-in-Progress 

Participants will present their groundbreaking works-in-progress in the field of criminal procedure, selected through a competitive vetting process. 

Panelists:

Emmanuel H. Arnaud, Benjamin N. Cardozo School of Law

Nila Bala, University of California, Davis, School of Law

Justin Murray (Moderator), New York Law School

Eileen Prescott, Wake Forest University School of Law

Mridula S. Raman, University of California, Berkeley School of Law

Miranda Thompson, Widener University Commonwealth Law School

Quinn Yeargain, Michigan State University College of Law

 

9:50-11:20 am

Prison Law: Operating in the Shadows (Criminal Law, Co-Sponsored by Civil Rights and Criminal Procedure)

Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.

Panelists:

 Paulina D. Arnold, The University of Michigan Law School

Nicole B. Godfrey, University of Denver Sturm College of Law

Danielle C. Jefferis, University of Nebraska College of Law

Benjamin Levin (Moderator), Washington University in St. Louis School of Law

Zina Makar, University of Baltimore School of Law

Tiffany Yang, University of Maryland Francis King Carey School of Law

 

 

New York (Predictably) Overcharging Luigi Mangione – Who Needs a Rule of Law?

A senseless act of bloodshed.  Followed by a senseless act of State lawlessness.  <Sigh>  It isn’t that people would be better if the government were…it’s that the government would simply be less bad.

New York law, like the Model Penal Code, recognizes that premeditation and deliberation (including “lying in wait”) are inapposite when it comes to murder.  Sometimes, planning makes a crime worse.  Sometimes, by contrast, it makes it less so—euthanasia is typically the paradigm of a premeditated and deliberate killing, yet it is far from being either the most depraved (deontologically) or the most dangerous (consequentially).  Traditional first-degree murder thus accepted those elements only for reasons of historic State-protective anomaly; New York law hewed back to that original intent by, for example, including the murders of judges as being first degree.

So, Luigi Mangione purposely killing Brian Thompson would be second-degree murder.  There is no special protection for CEOs in American law.  New York’s decision to make a mockery of that law by alleging the killing “terrorism” will surprise no one who follows American criminal law.  Overcharging is rampant.  But it ought to sadden anybody who cares about justice.  When the State doesn’t respect law, it is much harder to sell that anybody should.  And that, of course, is precisely the opposite of the message appropriate to these events.

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.

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!

 

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!

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

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

Director, MDefenders, Public Defender Training Institute, Data for Defenders

University of Michigan Law School

(734) 615-6889

www.law.umich.edu/FacultyBio/Pages/...

@PrimusEve

@primuseve.bsky.social

 

 

 

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:

        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):

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.)

        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

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 Roe–Casey 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.

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

 

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.

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."

Brooklyn 99 on Knock and Talk

From the Crimprof Multipedia, for teaching purposes...

Category
Search

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

Post
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).

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!

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.

 

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!

 

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!