CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, March 31, 2010

Argument transcripts from Monday and Tuesday

Renico v. Lett is here.

Dillon v. United States is here.

Barber v. Thomas is here.

Summaries of the issues are here.

March 31, 2010 | Permalink | Comments (0)

Opinion on duty to advise on immigration consequences of guilty plea

The opinion in Padilla v. Kentucky is here. Here is the syllabus:

Petitioner Padilla, a lawful permanent resident of the United States for over 40 years, faces deportation after pleading guilty to drug-distribution charges in Kentucky. In postconviction proceedings, he claims that his counsel not only failed to advise him of this consequence before he entered the plea, but also told him not to worry about deportation since he had lived in this country so long. He alleges that he would have gone to trial had he not received this incorrect advice. The Kentucky Supreme Court denied Padilla postconviction relief on the ground that the Sixth Amendment’s effective-assistance-of-counsel guarantee does not protect defendants from erroneous deportation advice because deportation is merely a “collateral” consequence of a conviction.

Held: Because counsel must inform a client whether his plea carries a risk of deportation, Padilla has sufficiently alleged that his counsel was constitutionally deficient. Whether he is entitled to relief depends on whether he has been prejudiced, a matter not addressed here. Pp. 2–18.

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March 31, 2010 | Permalink | Comments (1)

Tuesday, March 30, 2010

Kerr on Warrants in National Security Investigations

Kerr orin Orin S. Kerr  (George Washington University - Law School) has posted The Modest Role of the Warrant Clause in National Security Investigations (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

Why is the Warrant Clause of the Fourth Amendment so modest in national security investigations? This symposium essay argues that the Warrant Clause has a narrow role because the extension of the Warrant Clause into national security law forces courts to pose a question that judges cannot readily answer. The cases extending the Warrant Clause to the national security setting held that warrants are required only when a warrant requirement would be reasonable, and the warrants that are required are whatever warrants would be reasonable. This double-barreled reasonableness test gave the Supreme Court the flexibility to insert the Warrant Cause almost anywhere, including the setting of national security investigations. But it came at a cost. The test created to give the Court flexibility forces judges to ask a question they are particularly poorly-equipped to answer. Faced with uncertainty, most judges will remain cautious. As a result, the Warrant Clause will apply broadly in theory but work modestly in practice. 

This essay was presented at a Texas Law Review symposium on "National Security, Privacy, and Technological Change" on February 5, 2010.

March 30, 2010 | Permalink | Comments (0)

Today's opinion in fair-cross-section case

The opinion in Berghuis v. Smith is here. Here is the syllabus:

Criminal defendants have a Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. See Taylor v. Louisiana, 419 U. S. 522. To establish a prima facie violation of the fair-cross-section requirement, a defendant must prove that: (1) a group qualifying as “distinctive” (2) is not fairly and reasonably represented in jury venires, and (3) “systematic exclusion” in the jury-selection process accounts for the underrepresentation. Duren v. Missouri, 439 U. S. 357, 364.

At voir dire in the Kent County Circuit Court trial of respondent Smith, an African-American, the venire panel included between 60 and 100 individuals, only 3 of whom, at most, were African-American. At that time, African-Americans constituted 7.28% of the County’s jury-eligible population, and 6% of the pool from which potential jurors were drawn. The court rejected Smith’s objection to the panel’s racial composition, an all-white jury convicted him of second-degree murder and felony firearm possession, and the court sentenced him to life in prison with the possibility of parole.

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March 30, 2010 | Permalink | Comments (0)

Monday, March 29, 2010

Rust on Appellate Review of Federal Sentencing Decisions

Craig D. Rust has posted When ‘Reasonableness’ is Not so Reasonable: The Need to Restore Clarity to the Appellate Review of Federal Sentencing Decisions after Rita, Gall, and Kimbrough {Touro Law Review, Vol. 26, No. 75, 2010) on SSRN. Here is the abstract:

Judges, like anyone else who works for a living, need standards. Judges need to know what rules to apply, when to apply them, and who to apply them to. And judges, just like you or I, want to know how their work will be reviewed.

Unfortunately, in many circuits, federal district court judges do not know how, or even if, their work will be reviewed by appellate courts in the context of criminal sentencing decisions.

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March 29, 2010 | Permalink | Comments (0)

Benforado on Geography of Criminal Law

Adam Benforado (Drexel University - Earle Mack School of Law) has posted The Geography of Criminal Law (Cardozo Law Review, Vol. 31, No. 3, 2010) on SSRN. Here is the abstract:

When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space - that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

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March 29, 2010 | Permalink | Comments (0)

Blumenthal on Law and the Emotions

Blumenthal jeffrey Jeremy A. Blumenthal (Syracuse University - College of Law) has posted A Moody View of the Law: Looking Back and Looking Ahead at Law and the Emotions (Nebraska Symposium on Motivation, Vol. 56, 2010) on SSRN. Here is the abstract:

Despite burgeoning as a field of study, and despite receiving substantial attention outside of academia – now – Justice Sotomayor’s “empathy” kerfuffle as the most prominent example – law and emotions has received little treatment as a unified field. A book-length treatment a decade ago began to organize the field, but lacked discussion of much empirical work in social science. Only in the last four years have efforts begun to taxonomize the study of law and emotions into a coherent whole, but even such efforts are primarily descriptive.

In the present paper I trace some history of the study of law and emotions, and give some account of where it is today; I then proceed to outline where the study may proceed in the future, laying out specific research agendas that legal and social science academics might profitably pursue. Specifically, I review early empirical research that viewed emotion as a corruptive influence on legal decision-making, and the assumptions that drove such research: assumptions that are largely still present today. I then review some of the current state of law and emotions, focusing on its effect in the contexts of jury decision-making, false memories, and terror management theory.

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March 29, 2010 | Permalink | Comments (0)

Sunday, March 28, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 402 The Emerging Law of Detention: The Guantanamo Cases as Lawmaking
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
2 269 The Greatest Legal Movie of All Time: Proclaiming the Real Winner
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
3 191 Brain Imaging for Legal Thinkers: A Guide for the Perplexed Owen D. Jones, Joshua Buckholtz, Jeffrey D. Schall, Rene Marois,
Vanderbilt University - School of Law & Department of Biological Sciences, Vanderbilt University, Neuroscience Program, Vanderbilt University - Department of Psychology, Vanderbilt University - Department of Psychology,
Date posted to database: March 4, 2010 [new to top ten]
4 187 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [6th last week]
5 179 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010
6 163 A., B. & C. v. Ireland: 'Europe's Roe v. Wade'?
Shannon K. Calt,
Lewis & Clark Law Review,
Date posted to database: January 24, 2010 [7th last week]
7 161 Doubting Free Will: Three Experiments
John A. Humbach,
Pace University School of Law,
Date posted to database: January 12, 2010 [new to top ten]
8 158 ICC Jurisdiction Over Acts Committed in the Gaza Strip: Article 12(3) of the ICC Statute and Non-State Entities
Yael Ronen,
Minerva Center, Faculty of Law, Hebrew University of Jerusalem,
Date posted to database: January 11, 2010
9 139 The Undiscovered Country: Execution Competency & Comprehending Death
Jeffrey L. Kirchmeier,
CUNY School of Law,
Date posted to database: February 5, 2010 [10th last week]
10 131 Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?
James Gwin,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: February 21, 2010 [9th this week]

March 28, 2010 | Permalink | Comments (0)

Saturday, March 27, 2010

Next week's criminal law and procedure arguments

Summaries are from ScotusWiki, which also includes links to briefs and opinions below.


  • Renico v. Lett: Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.


  • Dillon v. United States: (1) Whether the Federal Sentencing Guidelines are binding when a district court imposes a new sentence pursuant to a revised guideline range under 18 U.S.C. § 3582. (2) Whether during a § 3582(c)(2) sentencing, a district court is required to impose sentence based on an admittedly incorrectly calculated guideline range.
  • Barber v. Thomas: Does “term of imprisonment” in Section 212(a)(2) of the Sentencing Reform Act, enacting 18 U.S.C. 3624(b), unambiguously require the computation of good time credits on the basis of the sentence imposed?


  • Carachuri-Rosendo v. Holder:  Whether a person convicted under state law for simple drug possession (a federal misdemeanor) has been “convicted” of an “aggravated felony” on the theory that he could have been prosecuted for recidivist simple possession (a federal felony), even though there was no charge or finding of a prior conviction in his prosecution for possession.
  • Robertson v. U.S. ex rel. Watson: Whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.

March 27, 2010 | Permalink | Comments (0)

Friday, March 26, 2010

Meyer on Extraterritorial Application of U.S. Law

Jeffrey A. Meyer (Quinnipiac University - School of Law) has posted Dual Illegality and Geoambiguous Law: A New Rule for Extraterritorial Application of U.S. Law (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

Scores of federal criminal and civil statutes are “geoambiguous” - they do not say whether they apply to conduct that takes place in foreign countries. This is a vital concern in an age of exploding globalization. The Supreme Court regularly recites a “presumption against extraterritoriality” but just as often overlooks it and opts to apply geoambiguous law abroad. The Court’s inconsistency bespeaks a deep divide among scholars. Judicial unilateralists favor liberally imposing U.S. law abroad to respond to unwanted effects from foreign conduct. Judicial territorialists favor restraint and a return to traditional territoriality to avoid international conflict. And judicial interests-balancers favor multi-factored, case-by-case consideration of whether it is “reasonable” to apply geoambiguous law abroad.

This Article advances a new approach - a proposed rule of “dual illegality” to govern how courts apply geoambiguous laws. Under a dual illegality rule, U.S. courts should decline to apply geoambiguous laws to penalize or regulate conduct that occurs in the territory of a foreign state unless the same conduct is also illegal or similarly regulated by the law of the foreign territorial state. A similar rule of dual illegality has worked for many decades as a limitation in countless criminal extradition treaties. A dual illegality rule would revitalize traditional territoriality values as a limiting principle on U.S. assertion of its law abroad, while also allowing extraterritoriality when there is the least likelihood of provoking political dispute. The response to greater globalization should be less jurisdictional contestability and more reliance on rules that do not invite judges - as the rules wrongly do now - to engage in policy-like assessments of the needs or interests of the United States in having its law applied to activity abroad. Courts should apply a dual illegality rule to decide the scope of geoambiguous law.

March 26, 2010 | Permalink | Comments (0)

Hessick & Hessick on Appellate Problems after Booker

F. Andrew Hessick III and Carissa Byrne Hessick  (both of Arizona State University - Sandra Day O'Connor College of Law) have posted Five Years of Appellate Problems after Booker (Federal Sentencing Reporter, Vol. 22, p. 85, 2009) on SSRN. Here is the abstract:

In United States v. Booker the U.S. Supreme Court rendered the Federal Sentencing Guidelines advisory rather than mandatory, committing sentencing decisions to the discretion of the district courts. But the Booker decision did not end with discretion. The Supreme Court also instituted appellate reasonableness review of all sentencing decisions. These two aspects of Booker’s remedy – discretion in district courts and appellate review for reasonableness – pull in opposite directions. Discretion means choice; there is no single correct sentence in any case. Substantive appellate review, by contrast, limits that choice. Appellate review promotes uniformity, and in particular adherence to the Guidelines, by cabining discretion. Since Booker, the Court has not resolved the tension between discretion and appellate review. Instead, the Court has sought to maintain district court discretion, while at the same time using appellate review to promote adherence to the Guidelines. This commentary notes that the incompatibility of discretion and appellate review has manifested itself in at least three different ways. The Court has issued decisions with conflicting language, abandoned ordinary features of presumptions and appellate review, and suggested imprecisely defined new legal tests. This commentary identifies instances where these developments have occurred and traces the resulting confusion and conflict in the circuits.

March 26, 2010 | Permalink | Comments (0)

Thursday, March 25, 2010

Conference on due process for victims

The National Crime Victim Law Institute will hold its ninth annual conference in Portland on June 10-11. The topic is "Due Process for Victims: Meaningful Rights in Every Case." The program listing participants is here.

March 25, 2010 | Permalink | Comments (0)

Execution stay in DNA case

ScotusBlog has the story on Skinner v. Switzer here:

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6).  The Court decided the Osborne case on June 18, but left unresolved that specific issue.  The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge.  Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.

March 25, 2010 | Permalink | Comments (0)

Wednesday, March 24, 2010

Argument transcript in Magwood v. Patterson

is here.

March 24, 2010 | Permalink | Comments (0)

Bowers on Discretion

Bowers_josh Josh Bowers  (University of Virginia School of Law) has posted Commonsense Discretion on SSRN. Here is the abstract:

Charging discretion is no monolith. Instead, prosecutors consider three sets of reasons to decline or pursue charges: legal reasons, administrative reasons, and equitable reasons. The conventional wisdom is that prosecutors are best positioned to evaluate these reasons. Consequently, prosecutors are granted almost unfettered charging discretion. More narrowly, when prosecutors decline or pursue charges for equitable reasons, they exercise their prerogative unchecked. This is defensible only if prosecutors are most competent to exercise equitable discretion. That question is almost never asked or critically analyzed. Instead, case law and commentators justify prevailing institutional design with reference only to uncontroversial understandings that prosecutors know most about legal merits and strategic priorities. In fact, several reasons exist to believe that prosecutors are ill suited to consider the normative merits of potential charges. First, professional prosecutors fail sufficiently to individualize cases, lumping them instead into legal boxes. Second, professional prosecutors prioritize institutional concerns over equitable particulars. Notably, prosecutors are least competent to adequately consider the equities in the precise types of cases in which commonsense discretion matters most. Specifically, in the petty-crime context, absolute enforcement of expansive code law is both undesirable and impossible, and, consequently, measured exercises of equitable discretion are warranted and anticipated. Put simply, petty-crime enforcement should turn on thoughtful evaluation of equitable considerations, such as relative blameworthiness. Legal guilt, by contrast, is often peripheral (or, in any event, presumed). In this way, easy legal cases may raise tough normative questions. And prosecutors have no special claim to know the answers, as the novel data that I provide help to show.

March 24, 2010 | Permalink | Comments (0)

Tuesday, March 23, 2010

Sentence Length and Sentence Venue

Ellen Podgor has an interesting post at White Collar Crime Prof questioning whether the increased length of prison sentences for white collar crimes should impact the security level of the prison at which they must be served.

March 23, 2010 | Permalink | Comments (0)

Exum on Possession of Child Pornography

Exum Jelani Jefferson Exum (University of Kansas School of Law) has posted Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Pornography Offenses (Richmond Journal of Law and Technology, 2010) on SSRN. Here is the abstract:

Sexual exploitation of children is a real and disturbing problem. However, when it comes to the sentencing of child pornography possessors, the U.S. federal system has its problem as well. This Article adds to the current, heated discussion on what is happening in the sentencing of federal child pornography possession offenses, why nobody is satisfied, and how much the Federal Sentencing Guidelines are to blame. At the heart of this Article are the forgotten players in the discussion – the computer and the internet – and their role in changing the realities of child pornography possession. This Article argues that the computer and internet are important factors in understanding both the victimization of the children portrayed in the illegal images and the formulation of appropriate punishment for those who view and possess such images. However, little attention has been paid to the effect computer behavior and the internet have on the actual manner in which offenders possess child pornography and little thought given to what punishment is warranted given the characteristics of that possession. While some district judges are thinking about these issues when they sentence, they have little guidance from experts in the fields of punishment and sexual crimes because sentencing guidance provided to judges has largely been restricted to the Federal Sentencing Guidelines. Unfortunately, in promulgating Guidelines for child pornography possession offenses, the United States Sentencing Commission has largely treated child pornography possession offenses as traditional possession crimes, and has been increasingly influenced by Congress’ response to political pressure to severely punish such offenders without regard to the stated purposes of punishment. Now that the Guidelines are no longer mandatory, many judges are forgoing the Guidelines’ advice when it comes to sentencing the possessors of child pornography and forging out on their own. Critics say that those judges are being too lenient. While there may be truth to that argument, what is even more apparent is that judges are ill-equipped to respond to the punishment needs of this group of offenders, critics of lenient sentences are discounting the faults in the Guidelines, and the computer and internet have been causing all of the controversy without being a big part of the discussion. A system reboot is in order.

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March 23, 2010 | Permalink | Comments (0)

Monday, March 22, 2010

Today's crim law/procedure cert grants

Summaries from ScotusBlog, which links to briefs and opinions below:

  • Connick v. Thompson: Does imposing failure-to-train liability on a district attorney’s office for a single Brady violation undermine prosecutors’ absolute immunity?
  • Belleque v. Moore: (1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

March 22, 2010 | Permalink | Comments (0)

"Victory for U.S. on detainees"

ScotusBlog has the story here:

The Supreme Court voted on Monday to leave intact a lower court ruling that took away almost all of the power of federal judges to block, even temporarily, the transfer of detainees out of Guantanamo Bay.  The Court, in a brief order, denied review of the D.C. Circuit Court’s ruling in April in Kiyemba v. Obama (Supreme Court docket 09-581), now informally known as “Kiyemba II.”  This marked a significant victory for the federal government, enhancing its authority to decide when and where to send detainees that are cleared for release from confinement without interference by federal judges and without challenge by detainees’ lawyers.

March 22, 2010 | Permalink | Comments (0)

This week's crim law/procedure argument

Summary of issue is from ScotusWiki, which also links to briefs and opinions below:


  • Magwood v. Patterson: When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?

March 22, 2010 | Permalink | Comments (0)