CrimProf Blog

Boudin on Children of Incarcerated Parents

Chesa Boudin has posted Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

This Article describes the vast population of children with incarcerated parents. The central argument reframes sentencing law and prison visitation policy through the lens of children’s rights, rather than the traditional frame of prisoners’ rights. It then suggests as a possible legal basis for children's right to a relationship with their convicted parents the First Amendment freedom of association and a due process liberty interest. The argument is developed through comparative analysis of current sentencing law and visitation policy in New York State and the federal system, as well as First Amendment doctrinal analysis. International law and practice illustrate that the status quo in the United States need not be the only approach.

Leo & Koenig on Kamisar

Richard A. Leo (pictured) and Alexa Koenig (University of San Francisco - School of Law; University of California, Berkeley - School of Law and University of San Francisco) have posted  The Gatehouses and Mansions: Fifty Years Later (Annual Review of Law and Social Science, Vol. 6, pp. 323-339, 2010) on SSRN. Here is the abstract:

In 1965, Yale Kamisar authored “Equal Justice in the Gatehouses and Mansions of American Criminal Procedure,” an article that came to have an enormous impact on the development of criminal procedure and American norms of criminal justice. Today, that article is a seminal work of scholarship, hailed for “playing a significant part in producing some of the [Warren] Court's most important criminal-procedure decisions” ( White 2003–2004 ), including Miranda v. Arizona. The most influential concept Kamisar promoted may have been his recognition of a gap that loomed between the Constitutional rights actualized in mansions (courts) versus gatehouses (police stations). Kamisar passionately detailed how the Constitution and its jurisprudential progeny failed to protect suspects when those rights mattered most: when facing questioning by police. This article discusses where this thesis stands today in light of nearly 50 years of legal developments and social science research.

Opinion in case regarding prospective relief against local governments

The opinion in Los Angeles County v. Humphries is here. Here is the syllabus: 

The Humphries (hereinafter respondents) were accused of child abuse in California, but were later exonerated. However, under California law, their names were added to a Child Abuse Central Index (Index),where they would remain available to various state agencies for at least 10 years. The statute has no procedures for allowing individuals to challenge their inclusion in the Index, and neither California nor Los Angeles County has created such procedures. Respondents filed suit under §1983, seeking damages, an injunction, and a declaration that public officials and petitioner Los Angeles County had deprived them of their constitutional rights by failing to create amechanism through which they could contest inclusion in the Index.The District Court granted the defendants summary judgment, but the Ninth Circuit disagreed, holding that the Fourteenth Amendment required the State to provide those on the list with notice and a hearing, and thus respondents were entitled to declaratory relief. The court also held that respondents were prevailing parties entitled to attorney’s fees, including $60,000 from the county. The county objected, claiming that as a municipal entity, it was liable only if its "policy or custom" caused the deprivation of a plaintiff’s federal right, Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 694; but a state policy caused any deprivation here. The Ninth Circuit, inter alia, found that respondents did prevail against the county on their claim for declaratory relief because Monell did not apply to prospective relief claims.

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Transcript of argument in prison crowding case

The transcript from the oral argument in Schwarzenegger v. Plata is here.

Justice Sotomayor advises California on burden of proving harmless error

Justice Sotomayor's statement (not a dissent) accompanying the denial of certiorari in Gamache v. California is here. It is joined by Justices Ginsburg, Breyer, and Kagan.

Argument transcript in delayed habeas case

The transcript in Walker v. Martin is here.

Argument transcript in case involving tolling of habeas time limits

The transcript in Wall v. Kholi is here.

"F.B.I. Says Oregon Suspect Planned ‘Grand’ Attack"

From The New York Times:

PORTLAND, Ore. — A Somali-born teenager who thought he was detonating a car bomb at a packed Christmas tree-lighting ceremony downtown here was arrested by the authorities on Friday night after federal agents said that they had spent nearly six months setting up a sting operation.

. . .

The F.B.I.’s surveillance started in August 2009 after agents intercepted his e-mails with a man he had met in Oregon who had returned to the Middle East, according to a law enforcement official who described the man as a recruiter for terrorism. According to the affidavit, the man had moved to Yemen and then northwest Pakistan, a center of terrorism activity.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	306	The Facade of FCPA Enforcement Mike Koehler, Butler University College of Business, Date posted to database: November 9, 2010 [new to top ten]
2	295	Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010 [1st last week]
3	285	The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law Alina Das, New York University School of Law Immigrant Rights Clinic, Date posted to database: October 17, 2010 [2nd last week]
4	203	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010
5	190	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010
6	183	Is the Rome Statute Binding on Individuals? (And Why We Should Care) Marko Milanovic, University of Nottingham School of Law, Date posted to database: October 12, 2010
7	175	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010
8	174	The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric? Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: October 11, 2010
9	162	A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office Mike Koehler, Butler University College of Business, Date posted to database: October 5, 2010
10	161	Talking About Prosecutors Alafair S. Burke, Hofstra University - School of Law, Date posted to database: September 24, 2010

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to briefs and opinions below:

Monday, November 29

• Wall v. Kholi: Inmates have one year to file a habeas challenge to their sentence in federal court after conviction. The running of that time is delayed while the conviction is under review in state court. Is the time also tolled while a state court considers an inmate’s request for a sentence reduction?
• Walker v. Martin: Does a state law that prohibits an inmate from challenging his conviction in state court if he “substantially delayed” in bringing the challenge also bar the inmate from filing an otherwise timely habeas challenge in federal court?

Tuesday, November 30

• Schwarzenegger v. Plata: Does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its correctional facilities violate the Prison Litigation Reform Act?

 

Bandes on Neuroscience: Promise and Pitfalls

Susan A. Bandes  (DePaul University - College of Law) has posted The Promise and Pitfalls of Neuroscience for Criminal Law and Procedure (Ohio State Journal of Criminal Law, Vol. 8, No. 1, 2010) on SSRN. Here is the abstract:

This short essay is the conclusion to a symposium entitled Neuroscience, Cognitive Psychology and the Criminal Justice System. The symposium, based on papers presented at an AALS Criminal Justice Section panel at the 2010 Annual Meeting, contains an introduction by its guest editor Deborah Denno, and articles by Alafair Burke, John Darley, and Andrew Taslitz.

Sacharoff on Miranda's Hidden Right

Laurent Sacharoff (University of Arkansas School of Law) has posted Miranda's Hidden Right on SSRN. Here is the abstract:

Miranda v. Arizona said that a suspect can waive her right to remain silent but also that she must invoke it. How can both be true about the same right? This article argues that the Miranda "right to remain silent" actually contains two sub-rights: the right not to speak, and the right to cut off police questioning. The Court has never distinguished these as two separate rights - instead usually using the term "right to remain silent" for both - and has thus created confusion over what can be waived and what must be invoked. But when we separate the two rights, we see that Miranda implicitly held that a suspect can waive the right not to speak but must invoke the right to cut off questioning - a premise implicitly confirmed by both the majority and the dissent in Berghuis v. Thompkins.

Dempsey on International Criminal Law and Philosophy

Michelle Madden Dempsey  (Villanova University School of Law) has posted Breaking New Ground in International Criminal Law and Philosophy (Transnational Legal Theory, Vol. 1, No. 3, p. 453, 2010) on SSRN. Here is the abstract:

This is a book review of Larry May and Zachary Hoskins, eds., International Criminal Law and Philosophy (Cambridge University Press, 2010) 258 pp.

"Petition for Certiorari Filed in Pineda-Moreno, The Ninth Circuit GPS Case"

Orin Kerr at The volokh Conspiracy explains why he thinks the petition should be denied:

The puzzling part about the panel decision in Pineda-Moreno was that it essentially undid the government’s concession: It held that the warrantless search was okay even though the driveway was concededly part of the curtilage. That’s wrong, in my view. The government’s concession should have lost the case for them, and the Ninth Circuit was wrong to bend over backwards to undo the concession. But this strange context means that there isn’t a clear split: The approach of other circuits would be to say that going on to the driveway wasn’t a search because it didn’t cross onto the curtilage, which is the same result as the Ninth Circuit reached. So although the analysis is rather strange, the basic result is the same as other circuits have found with similar facts.

Denno on Neuroscience, Cognitive Psychology and the Criminal Justice System

Deborah W. Denno  (Fordham University School of Law) has posted Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction (Ohio State Journal of Criminal Law, Vol. 8, pp. 1-6, 2010) on SSRN. Here is the abstract:

This introduction discusses a symposium on the linking of neuroscience, cognitive psychology, and law. Although the symposium is one of a number of projects on neuroscientific approaches to the legal system that have been organized over the years, readers will see something very different in the articles that follow. The contributions cover a distinctively important niche - a pragmatic focus on the practices of key law enforcement actors, namely the police, prosecutors, and punishers in the criminal justice community. By examining the decision-making of these individuals and groups in real world circumstances, through a range of brain sciences, the symposium’s authors enhance the value that any single scientific discipline can give while also offering proposals that could be implemented immediately.

Bienen on Capital Punishment in Illinois

Leigh Buchanan Bienen  (Northwestern University School of Law) has posted Capital Punishment in Illinois in the Aftermath of the Ryan Commutations: Reforms, Economic Realities, and a New Saliency for Issues of Cost (Journal of Criminal Law and Criminology, Vol. 100, No. 4) on SSRN. Here is the abstract:

In 2000 when Governor George Ryan unilaterally imposed a statewide moratorium on executions in Illinois, in response to accumulating evidence of more than a dozen wrongfully convicted persons on death row in Illinois. In 1999 the Illinois legislature created the Capital Litigation Trust Fund, to allow private, appointed defense counsel, state’s attorneys, and public defenders to be paid directly for the expenses of a capital trial from state appropriated funds, upon the approval of the trial court judge. Publishing new data on capital prosecutions in Illinois since 2000, this article documents evidence of state money spent at the county level on more than 500 capital prosecutions, the largest proportion from Cook County, which resulted in 17 death sentences imposed. More than 100 million dollars of state money has been spent out of the Capital Litigation Trust Fund alone by county state’s attorneys, appointed private counsel, and by public defenders. The availability of state funds changed the dynamics and economic and bureaucratic incentives for capital prosecution. In addition, over 64 million dollars has been spent by the state, the city of Chicago, and the counties in judgments involving wrongful convictions. This article presents data on capital prosecutions and murders across the state, and publishes for the first time the State’s Attorney’s own adopted guidelines for the selection of cases for capital prosecution. When patterns of capital prosecution are examined across the state as a whole, it becomes clear that the counties most likely to spend the state’s money on prosecuting first degree murder cases capitally are not those jurisdictions with the largest number of first degree murders. Nor is there a correspondence between the number of county capital prosecutions, the number of death sentences imposed, the number of murders or the murder rate in that county, and the amount of money spent by the county from the Capital Litigation Trust Fund. County by county disparities in capital case prosecutions and in expenditures of state money are startling. The absence of centralized review and the presence of many potential areas of conflicts of interest should submit the existing system to close scrutiny at this time of budgetary pressure.

Cahill on Punishment Pluralism

Michael T. Cahill  (Brooklyn Law School) has posted Punishment Pluralism (RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

This book chapter speculates that contemporary understandings of retribution have come to see it either as a good, or as a deontological side constraint on action, rather than as an affirmative deontological duty, as earlier versions saw it (or purported to see it). Yet if retribution is formulated as a good or a constraint, it loses its centrality as a basis for punishment: under such a view, retribution may be one consideration, among others, favoring (or opposing) punishment, but it cannot justify punishment except in a very narrow sense. Accordingly, characterizing retributivism as a "theory of punishment," which was never entirely apt, now seems untenable. As an alternative, I favor an overtly pluralistic scheme in which various principled and practical considerations, including retributivist considerations, may inform punishment policy at both the systemic and the individual level. To this end, the chapter surveys the most significant arguments for and against punishment, as a first step toward an account that properly balances the competing ends at stake instead of privileging one over the rest.

King & Proctor on Padilla's Puzzles

Nancy J. King (pictured) and Gray Proctor  (Vanderbilt Law School and affiliation not provided to SSRN) have posted Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts (Federal Sentencing Reporter, Vol. 23, No. 3, February 2011) on SSRN. Here is the abstract:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment. Issues addressed include: express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief. This draft includes citations to emerging case authority available as of October 28, 2010.

Debate on Right to Remain Silent

Professors Charles Weisselberg (Berkeley) and Stephanos Bibas (Penn) engage in an online debate on the right to remain silent, discussing the Supreme Court’s decision in Berghuis v. Thompkins, at PENNumbra. From the summary:

Professor Weisselberg . . . recounts the interrogation of Mr. Thompkins and argues that the majority in Thompkins rejected the fundamental underpinnings of Miranda v. Arizona’s prophylactic rule and established a new one that fails to protect the rights of suspects.

Professor Bibas . . . argues that the Court’s holding reflects a proper rejection of Miranda’s “failed experiment,” which ignored the Fifth Amendment’s compulsion requirement and did not establish adequate safeguards for the innocent suspects who need them. He posits that the tougher question is how to reform the system so that it does protect the innocent, and he further suggests that videotaping all interrogations would go a long way toward ensuring confessions are free from compulsion.

"For Judges, Lawyers and Fellow Jurors, the Challenges of Dealing With a Holdout"

This interesting article is in The New York Times:

Jurors’ notes in any number of cases have disclosed the infinite variety of holdout-induced frustration, including descriptions of chairs thrown and insults hurled.

Holdouts can be oddballs and misfits. But they can also be people devoted to the principle that a just conviction requires true unanimity, not compromise. So lawyers and jury consultants say the legal risks are great and the strategy uncertain when there are hints of a holdout.