CrimProf Blog

Ninth Circuit Issues En Banc Opinion in Steroid/Computer Search Case

The opinion in US v. Comprehensive Drug Testing, Inc., is here. Orin Kerr is blogging about it at The Volokh Conspiracy.

Previewing the Coming Term (Part 5): Smith v. Spisak

[This is the fifth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-724
Case: Smith v. Spisak
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Circuit contravened the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) by improperly extending Mills v. Maryland.

Facts and Procedural History:  In March 1983, Frank G. Spisak, Jr., respondent, was indicted by an Ohio grand jury on four counts of aggravated murder, three counts of aggravated robbery, one count of attempted murder, and one count of receiving stolen property.  Respondent pled not guilty by reason of insanity, and was subsequently determined to be competent to stand trial.

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Miller on Arizona v. Gant and Buie Searches

Colin Miller (John Marshall Law School) has posted Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional on SSRN. Here is the abstract:

In its 1990 opinion in Maryland v. Buie, the Supreme Court held that as an incident to a lawful (home) arrest, officers can 'as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.' While this holding was actually dictum, thereafter courts categorically concluded that Buie authorizes suspicionless searches of sufficiently large spaces not only in arrest rooms, but also in rooms immediately abutting arrest rooms and connected to arrest rooms by hallways.

Buie was one of three Supreme Court opinions expansively reading the scope of searches incident to lawful arrests after it circumscribed their scope in 1969 in Chimel v. California. The other two opinions were Belton v. New York and Thornton v. United States, and, in its 2009 opinion in Arizona v. Gant, the Court expressly overruled Belton and rebuked Thornton as an application of Chimel, which it reaffirmed as continuing to define the boundaries of searches incident to lawful arrests. This article argues that, even without Gant, courts should have realized that they had grossly misconstrued the scope of suspicionless Buie searches, and that now, defendants and appellants should be able to raise Arizona v. Gant to argue that the reaffirmation of Chimel and the destruction of the Belton fiction together invalidate the suspcionless Buie search.

The CIA's Secret Interrogation Program

and documents recently released about it are discussed in the New York Times. The Times' bottom line:

But the strong impression that emerges from the documents, many with long passages blacked out for secrecy, is by no means one of gung-ho operatives running wild. It is a portrait of overwhelming control exercised from C.I.A. headquarters and the Department of Justice — control Bush administration officials say was intended to ensure that the program was safe and legal.

 The CIA inspector general's report, which (inter alia) describes the interrogation techniques, is here.

Cohen and Smith on Death Qualification

Ben Cohen and Robert J. Smith  (The Charles Hamilton Houston Institute for Race and Justice) have posted The Death of Death-Qualification on SSRN: Here is the abstract:

The Framers understood criminal petit juries to be responsible for making determinations of both fact and law. This 'jury review' power provided the people with a 'check' against the government's judicial function. Today, juries are limited solely to findings of fact. As Blackstone predicted, this erosion of the jury function did not pro-ceed with grand assault, but with minor deployments. The result is a less powerful citizenry, and an unchecked government. The modern jury's diminished power is of particular consequence in cases involving the "death-qualification" of jurors. At issue is whether the State may-at the outset of a capital prosecution-remove from a jury all those who appear to be opposed to imposing the maximum punishment allowed by law. Or, placed into a series of questions: What were the qualifications for jury service at the time of the Constitution's adoption? Will the United States Supreme Court support the slow accumulation of additional qualifications without addressing the residual erosion of the Sixth Amendment's guarantee? This Article considers the 'death-qualification' of jurors, including how the process arose, why the Court continues to justify its existence today, and how a proper historical understanding of the Sixth Amendment right to a jury trial requires that this practice be put to rest.

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Previewing the Coming Term (Part 4): Padilla v. Kentucky

[This is the fourth in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-651
Case: Padilla v. Commonwealth of Kentucky
Oral Argument Date: October 13, 2009

Issue:  Whether the Sixth Amendment’s guarantee of effective assistance of counsel (1) requires a criminal defense attorney to advise a non-citizen client that pleading guilty to an aggravated felony will trigger mandatory, automatic deportation, and (2) if there is no such advice, and that misadvice about deportation induces a guilty plea, whether the misadvice amounts to ineffective assistance of counsel and warrants setting aside the guilty plea.

Factual and Procedural History:  Petitioner, Jose Padilla, who is a native of Honduras, was indicted by a state grand jury for trafficking more than five pounds of marijuana, possession of marijuana, possession of drug paraphernalia, and operating a tractor/trailer without a weight and distance tax number.  Represented by counsel, petitioner entered a guilty plea to the three drug-related charges in exchange for a dismissal of the remaining charge and a total sentence of ten years.

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Alexander on Walen on Alexander (et al.) on Crime, Culpability, and Moral Luck (Alexander)

Last week, with tongue in cheek, I titled a blog post about my new book (with Kimberly Ferzan) as “The Last Word on Criminal Law.” As if to demonstrate to the whole world that I was only kidding, Alec Walen has posted a review of the book on SSRN. The review was summarized on CrimProf yesterday.

We thank Alec for his kind comments about our book and for the effort he has put in in criticizing it. His criticisms boil down to these four, to which we append our responses:

1. We don't justify treating mistakes of how much concern is "sufficient concern" as nonexculpatory when we treat mistakes of fact as exculpatory. Reply: But someone who treats subjecting people to huge risks for trivial reasons just is displaying insufficient concern even if he doesn't so regard it. On the other hand, as we argue in the book, one who doesn't know the riskiness of his behavior cannot be accused of insufficient concern on that ground alone.

2. We don't justify regarding negligence as nonculpable. Reply: Unfortunately, Walen doesn't engage the arguments we make in chapter 3 on this very point. His remarks suggest he holds the "culpability comes from the character defects that led the person to be unaware of the risk" position. But we deal with that position at some length, and Walen doesn't respond to our arguments.

3. Our repudiation of "result luck affects retributive desert" overlooks the many ways luck affects how we fare in life. Reply: Luck surely does this. But one doesn't have to be a luck egalitarian to deny that luck affects the blame or punishment we deserve. All Walen does is give some consequentialist reasons for singling out harm-causers among the persons deserving of punishment. He does nothing to show that those who imposed what they believed were the same risks but whose acts did not result in harm are less deserving of punishment.

4. In a footnote, Walen quarrels with our position on incomplete attempts and other inchoate crimes. Reply: Our position is surely controversial, and it does lead to the position Walen finds ludicrous (assuming the practical joker is, like the would-be murderer, brandishing a loaded gun that might accidentally discharge). That's a bullet we bite. But if one rejects our position, we demonstrate that one is led to the position that the act of intending harm is itself a culpable act, which then leads to the many puzzles and difficulties we describe in ch. 6. So there's a different bullet one needs to bite if one thinks ours is too hard on the teeth. We lay out that challenge in ch. 6, but Walen doesn't take it up.

LAA

Previewing the Coming Term (Part 3): McDaniel v. Brown

[This is the third in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No.: 08-559
Case: E.K. McDaniel, Warden, et al., v. Troy Brown
Oral Argument Date: originally scheduled for October 13, 2009, but subsequently removed from argument calendar

Issue:  Whether, on federal habeas review, the evidence underlying the defendant’s conviction for sexual assault was clearly insufficient under Jackson v. Virginia (1979).

Factual and Procedural History:  In 1994, Troy Brown, respondent, was arrested for the sexual assault of a nine-year-old girl in Carlin, Nevada.  At trial, the prosecution presented testimonial evidence from a DNA expert, Renee Romero, who testified that, among other things, there was a 99% chance that Brown was the assailant.  Brown was subsequently convicted on several counts of sexual assault and one count of child neglect.

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Wexler on Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering

David B. Wexler  (University of Arizona - James E. Rogers College of Law) has posted Therapeutic Jurisprudence, Criminal Law Practice, and Relationship-Centered Lawyering on SSRN. Here is the abstract:

This brief essay,prepared for a Chapman law school conference on therapeutic juriprudence and problem-solving courts, suggests that a therapeutic jurisprudence approach to criminal lawyering is consistent with notions of zealous advocacy, and that such an approach to criminal lawyering also fits nicely within an emerging framework of 'relationship-centered' lawyering. Relationship-centered lawyering is consistent with client-centered lawyering in exactly the same way that therapeutic jurisprudence lawyering is consistent with zealous advocacy: both approaches add a rich,interdisciplinary, and holistic ingredient to the traditional approach. Moreover, in the criminal law context, a relationship-centered approach will encourage therapeutic jurisrudence thinking to examine the role of the prosecutor, an area that has thus far not attracted sufficient academic attention. The present essay provides some examples from the prosecutorial arena and urges further development of therapeutic jurisprudence studies along those lines.

Previewing the Coming Term (Part 2): Johnson v. United States

[This is the second in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No: 08-6925
Case:  Johnson v. United States
Oral Argument Date:  October 6, 2009

Issue:  Whether a prior state conviction for battery is, in all cases, a “violent felony” under the federal Armed Career Criminal Act (“ACCA”) even when that offense does not have as an element the use or threatened use of physical force.

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Walen on Crime, Culpability and Moral Luck

Alec D. Walen  (Institute for Philosophy and Public Policy) has posted Crime, Culpability and Moral Luck: Comment on Alexander, Ferzan and Morse (Law and Philosophy , Forthcoming) on SSRN. Here is the abstract:

Crime and Culpability, by Larry Alexander, Kimberly Kessler Ferzan (with Stephen Morse) is a visionary work of moral and legal philosophy. Nonetheless, it is fundamentally morally misguided. In seeking to free criminal law from what the authors take to be the distorting influence of outcome luck, they arrive at a position that is overly exculpatory. It fails to hold actors liable for the harms they cause when they have taken less care they should.

I argue, first, that the authors’ attempt to strip criminal law of outcome luck is incoherent in its own terms, and that any attempt to follow through on their program would require a much more severe loss of accountability than the authors acknowledge. I then argue that outcome luck is pervasive in our moral lives, and that, given the choice of (a) not being able to hold agents accountable for much, or (b) holding them accountable for the results of their choices, including outcomes that result in part from moral luck, the right choice is (b). I wrap up with a concluding observation about the implausible moral psychology that underlies the authors’ view of culpable action.

International Human Rights, Forensic Evaluations, and Correctional Conditions Litigation

Two recent manuscripts address international human rights law as it bears on two separate problems related to the criminal process.

Michael L. Perlin (New York Law School) and Valerie Rae McClain (Neurology and Physical Therapy Centers of Tampa Bay) have posted 'Where Souls are Forgotten': Cultural Competencies, Forensic Evaluations and International Human Rights (Psychology, Public Policy and Law, Vol. 15, 2009) on SSRN. Here is the abstract:

Cultural competency is critical in criminal forensic evaluations. Cultural competency eschews reliance on stereotype, precluding the mistake of assuming that cultural dictates apply with equal force to all who share a cultural background, thus allowing the forensic examiner to provide a comprehensive picture of the defendant to the factfinder. While raised frequently in death penalty cases, it is equally important to the entire criminal process. Cultural sensitivity in test selection and interview techniques that enhance validity of results are addressed. In a parallel fashion, ratification of the UN Convention on the Rights of Persons with Disabilities has drawn importance to cultural competency. Although international human rights and cultural sensitivity have been considered with regard to race, gender and religion, applications to criminal matters are still in their infancy. This paper considers strategies to enhance the effectiveness of testimony and mitigation efforts.

Professor Perlin and Henry A. Dlugacz  (New York Medical College - Graduate School of Health Sciences) have posted 'It's Doom Alone that Counts:' Can International Human Rights Law Be an Effective Source of Rights in Correctional Conditions Litigation? (Behavorial Sciences and Law, Vol. 27, 2009)  on SSRN. Here is the abstract:

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Previewing the Coming Term (Part 1): Maryland v. Shatzer

[This is the first in a series of posts by CrimProf’s graduate fellow, Peter Stockburger (University of San Diego Class of 2009), previewing the criminal law and procedure cases scheduled for argument in the U.S. Supreme Court this coming term. Peter excerpts and paraphrases the briefs of the parties to provide an overview of the cases and the advocates’ arguments. Links to the briefs of the parties appear at the end of the summary.]

Docket No: 08-680
Case:  Maryland v. Shatzer
Oral Argument Date:  October 5, 2009

Issue:  Whether Edwards v. Arizona (1981), which bars police from initiating questioning with criminal suspects who have invoked their right to counsel, applies to interrogation that takes place nearly three years after the initial interrogation and invocation of right to counsel.

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Saxer on Banishment of Sex Offenders

Shelley Ross Saxer (Pepperdine University - School of Law) has posted Banishment of Sex Offenders: Liberty, Protectionism, Justice, and Alternatives (Washington University Law Review, Vol.. 86, p. 1397, 2009) on SSRN: Here is the abstract:

Although most sex offenses are committed by relatives or acquaintances of the victims, our public policy approach has been to focus on the stranger sex offender and punish sex offenders through residency restrictions. These residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities in fear that they may reoffend in our neighborhoods. Rather than being thrust into some wilderness, sex offenders are 'banished' to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.

Banishing sex offenders through these residential restrictions impacts individual liberty, our national structure, and social policy considerations. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of both sex offenders and our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. This Article also examines what methods from the environmental justice movement might be available to deal with the 'social justice' issue of sex offenders disproportionately burdening poor, minority communities. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that legislators should reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

More on Dershowitz, Scalia, and Davis

Last week, CrimProf noted some criticisms of Justice Scalia's opinion in the Davis case, including Alan Dershowitz's claim that Catholic teaching is inconsistent with Justice Scalia's doubts about whether actual innocence would state a cognizable federal habeas claim . Douglas Berman has collected commentators who disagree with Dershowitz. For example, at the Bench Memos column at National Review Online, Ed Whelan states that Catholic thought "does not mean that Scalia must conclude that a death-penalty system is immoral if it relies, say, on the vehicle of executive clemency rather than judicial adjudication of 'constitutional' claims of 'actual innocence' to prevent execution of those actually innocent." At Mirror of Justice, Rick Garnett writes

to cringe at Prof. Dershowitz's silly piece is not to endorse the view that Justice Scalia expressed in Herrera about the power of a federal court to enjoin a state's execution.  But, it seems to me that even we Catholics who oppose capital punishment should object to such an opportunistic and simplistic deployment of the "Catholic morality" card.

 

Featured Download: Kolber on How to Improve Empirical Desert

I join Larry Solum in highly recommending this piece by my colleague, Adam J. Kolber, entitled How to Improve Empirical Desert (Brooklyn Law Review, Symposium: 'Is Morality Universal and Should the Law Care?', 2010), to those interested in criminal law theory. It is a rigorous examination of the idea of empirical desert that is a must-read for both proponents and opponents and a good-read for those on the fence. Here is the abstract:

According to advocates of "empirical desert," laypeople intuitively support a retributive approach to punishment, and policymakers can increase compliance with criminal justice policies by punishing in accord with lay intuitions.

I offer three criticisms of empirical desert intended ultimately to strengthen its theoretical underpinnings: First, advocates have cherry-picked certain moral intuitions, while ignoring others. They focus on the calm, unbiased intuitions of people who are generally law-abiding, even though the people whose compliance we most hope to gain -- those who are on the fence about offending -- are likely to act under biased, heat-of-the-moment circumstances. Second, advocates cannot operationalize empirical desert because they have yet to demonstrate the value of the compliance induced by empirical desert relative to the value of other consequentialist goals. Third, empirical desert arguably exploits laypeople by using their “mistaken” retributive beliefs about punishment to encourage their compliance with consequentialist goals. Such exploitation may especially trouble defenders of the “publicity principle,” which requires that a system of morality be based on principles that can be announced publicly without thereby undermining those same principles.

I do not describe precisely how empirical desert advocates should respond to these concerns, but they can make substantial headway by more carefully distinguishing the use of widely-shared moral intuitions to make predictions about people’s behavior from the use of those intuitions to justify particular policies. (This article was written for the Brooklyn Law School Symposium, “Is Morality Universal and Should the Law Care?”.)

KC

Jury Trials in Japan

Raneta Lawson Mack (Creighton University School of Law) has an op-ed piece at Jurist describing the new system (featuring jurors deliberating along with judges) and identifying challenges ahead. Among the concerns:

Japan has an exceptionally high conviction rate (> 99% by most estimates). While this can certainly be attributed, in part, to prosecutorial selectivity, it is also clear that most of the criminal cases in Japan are presented to the courts wrapped neatly with confessions by defendants. In most instances, these confessions are obtained without the benefit of counsel and within the secret confines of the interrogation room. Japan has so far resisted repeated calls for general audio- or videotaping of interrogations explaining that recording could impede the interrogation process.

Professor Mack wonders how jurors will respond to confessions in cases where substantial questions are raised about guilt, and whether a possible decline in conviction rates if jurors are skeptical will undermine public support for jury trials.

 

Top-Ten Recent SSRN Downloads in Criminal Law and Procedure Journals

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	205	Unwitting Sanctions: Understanding Anti-Bribery Legislation as Economic Sanctions against Emerging Markets Andrew Brady Spalding, University of Mumbai (Bombay),
2	144	Minds, Brains, and Norms Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute,
3	134	Culture, Cognition, and Consent: Who Perceives What, and Why, in 'Acquaintance Rape' Cases Dan M. Kahan, Yale University - Law School,
4	113	The Prosecutor as Regulatory Agency Rachel E. Barkow, New York University - School of Law,
5	84	Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama Ian F. Haney-Lopez, UC Berkeley School of Law, [8th last week]
6	83	The Unexceptionalism of Evolving Standards Corinna Lain, University of Richmond - School of Law,
7	81	Neoliberal Penality: A Brief Genealogy Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: July 1, 2009 Last Revised: July 10, 2009
8	79	Breaking the Law to Enforce it: Undercover Police Participation in Crime Elizabeth E. Joh, U.C. Davis School of Law, [new to top-ten list]
9	70	The Truth about Physician Participation in Lethal Injection Executions Ty Alper, Death Penalty Clinic [new to top-ten list]
10	69	Struck by Lightning: Walker v. Georgia and Louisiana's Proportionality Review of Death Sentences Robert J. Smith, Bidish Sarma, [new to top-ten list]

Kadens on Capital Punishment for Bankruptcy in 18th-Century England

Emily Kadens (University of Texas at Austin - School of Law) has posted The Last Bankrupt Hanged: Capital Punishment for Bankruptcy in 18th-Century England on SSRN. Here is the abstract:

This paper frames the history of the Anglo-American bankruptcy tradition as a search for solutions to the basic problem that has from the first underlain the bankruptcy process: how to obtain the assistance of the debtor in his financial dismantling. The pivotal moment in this story came in the years 1705-1706, when the English Parliament drafted a bill making the bankrupt’s refusal to cooperate with the commissioners running his bankruptcy a capital crime. Almost as an afterthought, they also introduced discharge of debt. Incentivizing cooperation with discharge, of course, would have a fruitful future. Coercing the debtor to be honest, however, proved a failure. Fraud flourished, and few perpetrators were executed, in part because creditors and jurors found putting bankrupts to death a bit excessive. And yet, despite the failure of the English experiment with harsh penalties, the desire to punish debtors has remained a part of the culture of bankruptcy to this day.

Van Der Meulen & Koops on Identity Theft in Multi-Level Governance

Nicole van der Meulen and Bert-Jaap Koops  (Tilburg University - Faculty of Law) have posted The Challenge of Identity Theft in Multi-Level Governance; Towards a Co-ordinated Action Plan for Protecting and Empowering Victims (GLOBALISATION, VICTIMS AND EMPOWERMENT, STUDIES IN GLOBAL JUSTICE SERIES, Jan van Dijk, Rianne Letschert, eds., Springer, Forthcoming) on SSRN. Here is the abstract:

The growing role of the Internet within contemporary society provides innovative opportunities for more efficient and convenient ways of committing ‘old’ crimes. Identity theft is a prime example of a crime that perpetrators currently manage to commit in a low-risk environment through creative use of the Internet, leading to a potentially enormous increase in victimization. Online identity theft has proven to be a particularly complicated crime with regard to detection, investigation, and prosecution. Issues of jurisdiction and lack of cooperation among states complicate the ability of individual states to actually protect their citizens against identity theft. The primary aim of this chapter is to analyze the challenge of Internet-related identity theft and the role of multi-level governance in combating this crime. We analyze the concept and prevalence of identity theft, victimization issues, and the role of the Internet. Following the notion of multi-level governance, we then present a general idea for a multi-level action plan to help and empower victims of identity theft, particularly in the context of the Internet. We analyze how this action plan fits in with current policy-making, in order to determine the challenge of Internet-related identity theft in multi-level governance.