CrimProf Blog

If Lawyers Ran Sports—Oh, That's Right, They Do

Some students understand a point about criminal law when they see the point played out in another setting with which they are familiar. Thank God for sports!

Two articles in today's papers illustrate the point: the coverage in The New York Times of the NFL's verdict in the Brett Favre workplace harassment case, and Tim Sullivan's column in the San Diego Union-Tribune headlined NCAA's delayed suspension of Ohio State players shows it's just business—as usual.

Both articles help make points about burdens of proof. The NFL's statement says that, "On the basis of the evidence currently available to him, [NFL] commissioner [Roger] Goodell could not conclude that Favre violated league policies relating to workplace conduct. The forensic analysis could not establish that Favre sent the objectionable photographs to [former Jets employee Jenn] Sterger."

This conclusion is hard to assess without some specification of the burden of persuasion that Goodell applied and the gaps in the evidence that Goodell perceived. One could not be absolutely sure that Favre sent explicit invitations to huddle up even if the forensic evidence tied the messages to Favre's phone number—after all, someone could have taken Favre's phone and sent the messages. Would that possibility constitute reasonable doubt? Sufficient doubt to preclude a finding of wrongdoing by a preponderance of the evidence? How is the conclusion affected by Goodell's conclusion that Favre had not been forthcoming during the investigation—a conclusion in which Goodell was sufficiently confident to impose a fine based on it?

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Simons on Moral and Criminal Law Norms

Kenneth W. Simons (Boston University - School of Law) has posted Understanding the Topography of Moral and Criminal Law Norms (PHILOSOPHICAL FOUNDATIONS OF CRIMINAL LAW, R.A. Duff, Stuart P. Green, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

The world is not flat. Neither is the topography of criminal wrongdoing and culpability, or of actus reus and mens rea. This complex terrain should not surprise or frighten us. It is a complexity built upon the varied, and in some instances incommensurable, moral norms that lie beneath criminal law doctrine.

This essay, a contribution to a forthcoming volume on the philosophical foundations of the criminal law, suggests the following conclusions. Criminal law norms can be more general or more particular. How particular should they be? The answer depends, in significant part, on the underlying landscape of the moral norms that criminal law instantiates, and on the political principles through which those moral norms are refracted. On three plausible accounts of moral justification — foundational pluralism, reliance on concrete moral intuitions, and variable relevance particularism — moral norms are relatively particularistic. At the same time, such accounts entail that the moral map contains localized areas of incommensurability. Finally, criminal law norms can be purely descriptive, or instead partially evaluative. But the difference that this distinction makes should not be overstated. A partially evaluative criterion does empower the fact-finder to play a more significant role in appraising the moral wrongfulness and the moral culpability of the defendant’s actions than does a purely descriptive criterion, but either type of criterion ultimately serves a normative function.

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Chesney on Military Detention and Habeas

Robert Chesney (University of Texas School of Law) has posted Who May Be Held? Military Detention Through the Habeas Lens (Boston College Law Review, Vol. 52, No. 3, 2011) on SSRN. Here is the abstract:

We lack consensus regarding who lawfully may be held in military custody in the contexts that matter most to U.S. national security today - i.e., counter-terrorism and counterinsurgency. More to the point, federal judges lack consensus on this question. They have grappled with it periodically since 2002, and for the past three years have dealt with it continually in connection with the flood of habeas corpus litigation arising out of Guantanamo in the aftermath of the Supreme Court‘s 2008 decision in Boumediene v. Bush. Unfortunately, the resulting detention jurisprudence is shot through with disagreement on points large and small, leaving the precise boundaries of the government‘s detention authority unclear.

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Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	362	The Facade of FCPA Enforcement Mike Koehler, Butler University College of Business, Date posted to database: November 9, 2010
2	315	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
3	299	Vagueness and the Guidance of Action Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: October 31, 2010 [4th last week]
4	263	Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts Gray Proctor, Nancy J. King, Fourth Circuit Court of Appeals, Vanderbilt University - Law School, Date posted to database: November 11, 2010 [5th last week]
5	216	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 [6th last week]
6	199	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010 [7th last week]
7	195	Talking About Prosecutors Alafair S. Burke, Hofstra University - School of Law, Date posted to database: September 24, 2010 [8th last week]
8	194	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 [9th last week]
9	166	And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System Susan A. Bandes, DePaul University - College of Law, Date posted to database: October 5, 2010 [10th last week]
10	156	Arming States’ Rights: Federalism, Private Lawmakers, and the Battering Ram Strategy Barak Y. Orbach, Kathleen S. Callahan, Lisa M. Lindemenn, University of Arizona, University of Arizona - James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law, Date posted to database: October 23, 2010 [new to top ten]

Waldron on Torture, Suicide, and Natural Law

Jeremy Waldron (New York University (NYU) - School of Law) has posted Torture, Suicide, and Determinatio (The American Journal of Jurisprudence, Vol. 55, 2010) on SSRN. Here is the abstract:

In natural law theory, "determinatio" is the process by which natural law is made into determinate positicve law. A lot of discussion of "determinatio" in natural law jurisprudence is just the repetition of tired formulas from Aquinas. In this paper, I try to bring the subject to life by considering the case that can be made for more more detailed elaboration of laws prohibiting (a) assisted suicide and (b) torture. I assume that "determinatio" can be a multi-step process by which we move first from a natural law ideal to a particular formulation of positive law and then from that particular positive law formulation to more precise formulations and applications. I assume also that the demand for greater and greater precision is not always healthy or wholesome in law. (a) John Finnis thinks this about the demand for more precise guidelines relating to possible prosecutions for assusted suicide in the House of Lords' last case: R. (on the application of Purdy) v DPP [2010] 1 A.C. 345. (b) I have argued elsewhere that the demand for more precise guidance concerning the application of the prohibition on torture is often vicious and unwholesome - as abusive interrogators demand a precise envelope whose boundaries they can push. In this paper, I explore why I do not agree with Finnis about (a) and why Finnis does not seem to be in wholehearted agreement with me about (b). I think that exploring these cross-cutting antagonisms casts useful light on all three topics: the law relating to assisted suicide, the law relating to torture, and the naturla law idea of "determinatio."

Joy on Safeguards Against Informant Perjury

Peter A. Joy (Washington University School of Law) has posted Constructing Systemic Safeguards Against Informant Perjury (Ohio State Journal of Criminal Law, Vol. 7, p. 677, 2010) on SSRN. Here is the abstract:

Reliance on an informant's testimony as the primary basis for charging and convicting the accused is fraught with problems. While the hypothetical explicitly addresses the ethical dilemmas defense counsel faces when her client is trading false testimony in exchange for a reduced charge and shorter sentence, the hypothetical also implicitly illustrates the inadequacies of our criminal justice system's current handling of testimony from cooperating witnesses.

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"Drunk driver who killed Angels' Nick Adenhart sentenced to 51 years in prison"

The L.A. Times has the story:

An Orange County judge handed down the sentence for Andrew Thomas Gallo, 23, on Wednesday morning.

. . .

Gallo had been convicted of driving under the influence three years before the crash and was still on probation when it happened.

When his blood-alcohol level was tested a couple of hours after the crash, it was 0.19%, more than twice the legal limit for driving, officials said.

Hughes on Innocence Unmodified

Emily Hughes (Washington University School of Law in St. Louis) has posted Innocence Unmodified (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence. In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.” Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary—prioritizing “actual” innocence over fundamental constitutional protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all—innocent or guilty alike.

Said on the Terrorist Informant

Wadie E. Said (University of South Carolina School of Law) has posted The Terrorist Informant (Washington Law Review, Vol. 85, No. 4, 2010) on SSRN. Here is the abstract:

A man sets himself on fire in front of the White House in a dispute with the Federal Bureau of Investigation (FBI). He has been working as an informant for the FBI in a high-profile terrorism prosecution and is unhappy with the $100,000 he has been paid so far. He has also been recently convicted of bank fraud. As a result, the government declines to call him as a witness, given the damage his actions have on his credibility and trustworthiness. This incident underscores the difficulty inherent in relying on paid informants to drive a prosecution, where material considerations such as money and legal assistance are often the price the government pays for an informant’s services. In the years since September 11, 2001, informants have been at the heart of many major terrorism prosecutions. The entrapment defense, perhaps the only legal tool available to defendants in such prosecutions, has proven ineffective. This is evident when one considers the context of generally heightened suspicion of the Arab and Muslim communities in the United States. Further, a closer look at several of these prosecutions reveals repeated instances of suggestive and provocative activity by informants geared at obtaining a conviction, calling into question whether a genuine threat to U.S. national security actually existed in the first place. This Article argues that the government should cease its current practice of using informants to generate terrorism prosecutions.

ScotusBlog highlights Miranda petition

as one of its Petitions of the Day. The issue:

Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.

The petition and the Sixth Circuit's opinion are available at the site.

Risinger on the NAS Report and Error in Forensic Science

D. Michael Risinger (Seton Hall University School of Law) has posted Whose Fault? - Daubert, the NAS Report, and the Notion of Error in Forensic Science (Fordham Urban Law Journal, Forthcoming) on SSRN. Here is the abstract:

The notion of "error" and "error rates" is central both to the Daubert opinion and to the recent National Academy of Sciences Report on the strengths and weaknesses of forensic science in the United States. As might be expected, the NAS Report does a better job of explaining the kinds of error it is concerned with than did the opinion in Daubert. However, to a greater or lesser degree, both fall short of a full consideration of the applicable concept of error, and so doing, they invite confusion about how inaccurate results in forensic science and criminal adjudication may occur, and who if anyone is to blame. This paper examines the notion of error as it might apply in these settings, with due regard to both the philosophical and scientific literature. It concludes that competing notions of normative and objective error have led to unnecessary miscommunication between practitioners of forensic disciplines and their critics, which has resulted in many forensic practitioners feeling unfairly criticized. This in turn has led some in the forensic science community, perhaps understandably, to resist changes in forensic practice that are necessary for the reduction of error in all its forms.

Boyne on Prosecuting Low-Level Crime in Germany

Shawn Marie Boyne (Indiana University School of Law-Indianapolis) has posted Is the Journey from the 'In Box' to the 'Out Box' a Straight Line: The Prosecution of Low Level Criminality in Germany on SSRN. Here is the abstract:

The defining challenge facing German prosecution offices today is reconciling the tension that exists between prosecutors’ historical mandate to serve as “guardians of the law” and their institutional position as members of an institution with limited resources. During the past three decades, the tension between the prosecution service’s normative mission to objectively investigate and prosecute criminal activity and increasingly severe resource constraints has transformed the law and practice of German criminal procedure. Although German legal scholars have long championed the system’s commitment to restricting prosecutorial discretion, in recent years the scope of prosecutors’ discretionary decision-making authority has widened dramatically. This development is particularly stark with respect to low-level crimes where prosecutors perform a critical gate keeping role.

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Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	356	The Facade of FCPA Enforcement Mike Koehler, Butler University College of Business, Date posted to database: November 9, 2010
2	310	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
3	300	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
4	289	Vagueness and the Guidance of Action Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: October 31, 2010
5	252	Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts Gray Proctor, Nancy J. King, Fourth Circuit Court of Appeals, Vanderbilt University - Law School, Date posted to database: November 11, 2010
6	207	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
7	195	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010 [10th last week]
8	194	Talking About Prosecutors Alafair S. Burke, Hofstra University - School of Law, Date posted to database: September 24, 2010
9	191	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
10	158	And All the Pieces Matter: Thoughts on The Wire and the Criminal Justice System Susan A. Bandes, DePaul University - College of Law, Date posted to database: October 5, 2010 [new to top ten]

Heller & Dubber on Comparative Criminal Law

Kevin Jon Heller and Markus D. Dubber (pictured) (Melbourne Law School and University of Toronto - Faculty of Law) have posted Introduction: Comparative Criminal Law (THE HANDBOOK OF COMPARATIVE CRIMINAL LAW, Kevin Heller & Markus Dubber, eds., Stanford University Press, 2010) on SSRN. Here is the abstract:

This essay provides an introductory overview of the project of comparative criminal law in general and of the contributions to the Handbook of Comparative Criminal Law in particular, highlighting common themes, conceptual frameworks, and opportunities for further comparative analysis.

Medwed on Prosecutorial Disclosure of Exculpatory Evidence

Daniel S. Medwed  (University of Utah - S.J. Quinney College of Law) has posted Brady's Bunch of Flaws (Washington and Lee Law Review, Vol. 67, No. 1533, 2010) on SSRN. Here is the abstract:

The 1970s television program The Brady Bunch provided a lighthearted and optimistic portrayal of American family life. A divorced man with three brown-haired boys married a divorced woman with three blonde daughters. They melded together into a happy, well-adjusted crew committed to mad-cap adventures accompanied by syrupy background music. Yet the promise of The Brady Bunch was illusory. Divorce has wreaked havoc on this country. The problems that derive from divorce and remarriage are multifaceted; they seldom lend themselves to tidy resolution in thirty minutes, let alone a lifetime. The show provided a distraction - and a disservice. It sent an inaccurate message about the world to legions of children suffering the painful consequences of divorce in their own families.

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Hartley on Public Housing and Crime

Daniel A. Hartley (Federal Reserve Banks - Federal Reserve Bank of Cleveland) has posted Blowing it Up and Knocking it Down: The Effect of Demolishing High Concentration Public Housing on Crime on SSRN. Here is the abstract:

Despite popular accounts that link public housing demolitions to spatial redistribution of crime, and possible increases in crime, little systematic research has analyzed the neighborhood or citywide impact of demolitions on crime. In Chicago, which has conducted the largest public housing demolition program in the United States, I find that public housing demolitions are associated with a 10 percent to 20 percent reduction in murder, assault, and robbery in neighborhoods where the demolitions occurred. Furthermore, violent crime rates fell by about the same amount in neighborhoods that received the most displaced public housing households relative to neighborhoods that received fewer displaced public housing households, during the period when these developments were being demolished. This suggests violent crime was not simply displaced from the neighborhoods where demolitions occurred to neighborhoods that received the former public housing residents. However, it is impossible to know what would have happened to violent crime in the receiving neighborhoods had the demolitions not occurred. Finally, using a panel of cities that demolished public housing, I find that the mean public housing demolition is associated with a drop of about 3 percent in a city’s murder rate and about 2 percent in a city’s assault rate. I interpret these findings as evidence that while public housing demolitions may push crime into other parts of a city, crime reductions in neighborhoods where public housing is demolished are larger than crime increases in other neighborhoods. A caveat is that while the citywide reduction in the assault rate appears to be permanent, the citywide reduction in murder rate seems to last for only a few years.

Featured Download: Seidman on Hyper-Incarceration

Louis Michael Seidman  (Georgetown University Law Center) turns his considerable skills toward the biggest problem in criminal justice in his recent draft, Hyper-Incarceration and Strategies of Disruption: Is There a Way Out? Here is the abstract:

This paper explores exit strategies from our policy of hyper-incarceration. On the theory that the underlying causes of the policy are firmly entrenched, it focuses instead on disrupting the political micro-processes that make the policy seem acceptable. Part One describes these micro-processes. Parts Two through Four outline three forms of politics that might disrupt them: a politics of amelioration, a politics of transformation, and a politics of accommodation. Part V assesses the available choices for what is to be done.

Well worth reading!

KC

International Wrongful Conviction Conference April 7-10 at Cincinnati

From the website for the conference:

The Innocence Network and the Ohio Innocence Project at the University of Cincinnati College of Law will host the first-ever conference dedicated to exploring the phenomenon of wrongful conviction of the innocent in the international arena.  This groundbreaking event will take place at the Freedom Center in downtown Cincinnati, a beautiful facility on the Ohio River dedicated to promoting freedom around the world and telling the stories of freedom’s heroes.  The objective of the conference will be to bring selected scholars, lawyers and exonerees from around the world together in one place to interact and learn from one another.  The hope is that the conference will initiate the process of galvanizing the innocence movement into a unified international human rights movement.

A list of some of the topics to be covered follows the jump.

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Wexler & King on Rehabilitation and Therapeutic Jurisprudence

David B. Wexler (pictured) and Michael S. King  (University of Puerto Rico - School of Law and Monash University - Faculty of Law) have posted Promoting Societal and Juridical Receptivity to Rehabilitation: The Role of Therapeutic Jurisprudence on SSRN. Here is the abstract:

This paper is a chapter in a forthcoming book to be published by the Organization of American States (OAS). As part of its drug "demand reduction" effort, the OAS is interested in Drug Treatment Courts in particular, and in therapeutic jurisprudence more generally. Our chapter looks to how jurisdictions may use the therapeutic jurisprudence (TJ) approach to create a societal and juridical atmosphere more conducive to the establishment of Drug Treatment Courts. The chapter notes, however, that under a "problem solving" philosophy, many drug courts have become somewhat coercive and paternalistic, departing from the principles of therapeutic jurisprudence. We discuss the TJ principles and urge a "solution-focused" approach to judging, more in line with TJ notions, and based on procedural fairness, active client involvement and participation, close attention to client strengths, and other concepts that place the client at center stage of the therapeutic effort.

Rich on the Philosophy of Snitching

Michael Rich (Elon University School of Law) has posted A Snitch, Not a Hero: Philosophical Lessons of Loyalty and Disloyalty in the World of Criminal Informants on SSRN. Here is the abstract:

Without informants, policing as we know it would grind to a halt. In the arenas of drug enforcement and the battle against organized crime, the majority of prosecutions hinge on confidential informants, and informants are increasingly central in white collar crime prosecutions and anti-terrorism investigations. Yet society, to put it bluntly, hates informants. The epithets used to describe them – “snitch,” “rat,” “weasel” – suggest the reason: the informant, by assisting the police, is guilty of betrayal. But identifying the reason for society’s disdain raises more questions than it answers. For instance, are all informants disloyal, or are only some? Are there governing principles that explain which informants are deemed to be disloyal? To whom are informants disloyal? What import does informant disloyalty have beyond the social stigma that informants bear? And these questions matter because betrayal, in the words of George Fletcher, is “one of the basic sins of our civilization.” Yet, they have largely escaped the attention of legal scholars.

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