CrimProf Blog

Argument transcript on meaning of "cocaine base"

The case is DePierre v. United States.

Opinion in case limiting Confrontation Clause

The opinion in Michigan v. Bryant is here. Here is the syllabus:

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 32.

 

 

 

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	358	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011
2	341	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011
3	334	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011
4	304	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011
5	237	Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause Jordan M. Barry, University of San Diego - School of Law, Date posted to database: February 11, 2011 [new to top ten]
6	218	EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights Wouter P. J. Wils, European Commission, Date posted to database: February 12, 2011 [new to top ten]
7	209	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [5th last week]
8	191	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [6th last week]
9	175	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011 [7th last week]
10	166	Emotion, Neuroscience, and Law: A Comment on Darwin and Greene John Mikhail, Georgetown University - Law Center, Date posted to database: February 14, 2011 [new to top ten]

Bradley on Exigent Circumstances

Craig Bradley (Indiana University School of Law-Bloomington) has posted Kentucky v. King: the Scope of the Exigent Circumstances Exception (Trial Magazine, Forthcoming) on SSRN. Here is the abstract:

This article analyzes Kentucky v. King case, currently pending decision in the Supreme Court. The issue is whether police created exigent circumstances will justify a warrantless entry and search of a home.

Next week's criminal law/procedure arguments

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

Monday, Feb. 28

• DePierre v. US: Whether a federal sentencing enhancement for possession of fifty grams or more of “cocaine base” refers to any form of cocaine that is chemically classified as a base (which could include coca leave or paste), or instead is limited to crack cocaine.

Wednesday, March 2

• Bullcoming v. New Mexico: When the prosecution introduces a forensic evidence report, it ordinarily must bring the author of the report to the trial so the defendant can question him. Is it sufficient for the prosecution to bring the analyst’s supervisor, when the supervisor did not actually perform or witness the forensic tests?
• Ashcroft v. al-Kidd: Whether former Attorney General John Ashcroft is immune from a suit alleging that he used the federal material witness statute as a pretext to investigate and preventatively detain terrorism suspects in the aftermath of the attacks of September 11, 2001.

Stein on the law and economics of self-incrimination

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Self-Incrimination (ENCYCLOPEDIA OF LAW AND ECONOMICS, Vol. 10, C. Sanchirico, ed., Edward Elgar Publishing Limited, 2011) on SSRN. Here is the abstract:

This Chapter surveys the law & economics literature on self-incrimination and confessions.

Biggest Loser: Clemency Edition (Kolber)

The title of this post is the title of Doug Berman's proposed (in jest) new television show.  It will star, among others, the Scott sisters (who were granted early release from a Mississippi prison due to the poor health of one sister and the other's agreement to donate a kidney to her ailing sister).  Apparently, Doug notes, they must both lose quite a bit of weight before they are appropriate candidates to donate/receive a kidney.   

-AJK

Yankah on Overcriminalization

Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted A Paradox in Overcriminalization (New Criminal law Review, Vol. 14, No. 1, Winter 2011) on SSRN. Here is the abstract:

Given that one of the central roles of political philosophy and criminal theory is illuminating the borders of justified state punishment, the modern crisis of overcriminalization is a painful defeat. Generations of legal theory, grounded in liberalism, has done little to stem the tide of criminal law and the explosion of criminal punishment.

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Argument transcript in sentencing-reduction/plea bargain case

The transcript in Freeman v. United States is here.

Unanimous Court reverses Ninth Circuit in habeas case because of independent state ground

The opinion in Walker v. Martin is here. Here is the syllabus:

While most States set determinate time limits for collateral relief applications, California courts "appl[y] a general ‘reasonableness’ standard" to judge whether a habeas petition is timely filed, Carey v. Saffold, 536 U. S. 214, 222. Under that standard, "a [habeas] petition should be filed as promptly as the circumstances allow . . . ," In re Clark, 5 Cal. 4th 750, 765, n. 5, 855 P. 2d 729, 738, n. 5. Three decisions, Clark, In re Robbins, 18 Cal. 4th 770, 959 P. 2d 311, and In re Gallego, 18 Cal. 4th 825, 959 P. 2d 290, describe California’s timeliness requirement. A prisoner must seek habeas relief without "substantial delay," e.g., Robbins, 18 Cal. 4th, at 780, 959 P. 3d, at 317, as "measured from the time the petitioner or counsel knew, or reasonably should have known, of the information offered in support of the claim and the legal basis of the claim," id., at 787, 959 P. 2d, at 322.

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Treadwell on Immigrants Arrested in Warrantless Home Raids

Nathan Treadwell has posted Fugitive Operations and the Fourth Amendment: Representing Immigrants Arrested in Warrantless Home Raids (North Carolina Law Review, Vol. 89, p. 507, 2011) on SSRN. Here is the abstract:

In the past several years, Immigration and Customs Enforcement ("ICE") has made warrantless home raids a key component of interior immigration enforcement. Such raids, which frequently bring in otherwise law-abiding undocumented immigrants, violate the Fourth Amendment when they take place without the consent of a member of the household. Press and judicial accounts of such raids show that the agency now engages in widespread unlawful entries as well as violent, demeaning, and threatening conduct. This Article sets out a litigation theory for the defense of undocumented immigrants arrested in warrantless raids. The Article presents several viable but under-utilized grounds on which immigrants subjected to ICE misconduct may seek the suppression of illegally-acquired evidence and the dismissal of a deportation proceeding.

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Davies on Search and Seizure

Thomas Y. Davies (University of Tennessee College of Law) has posted The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment 'Search and Seizure' Doctrine (Journal of Criminal Law & Criminology, Vol. 100, No. 3, pp. 933-1041, 2010) on SSRN. Here is the abstract:

This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine.

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Lee on Deontology and the Criminal Law

Youngjae Lee (Fordham University School of Law) has posted two manuscripts on SSRN relating to deontology and criminal law. The first is Desert, Deontology, and Vengeance (Arizona State Law Journal, Vol. 42, 2011). Here is the abstract:

In a series of recent writings, Paul Robinson has defended “empirical desert” as the way of deriving distributive principles for determining who should be punished and by how much. Desert is, of course, an idea with a long history, and its precise role in criminal law has been much debated. In addressing various criticisms of desert in criminal law, Robinson distinguishes empirical desert from what he calls “deontological desert” and “vengeful desert.” Robinson’s strategy, which I call “divide and deflect,” fights off various objections traditionally leveled against the use of desert in criminal law by arguing that most of those objections may be valid for “deontological” and “vengeful” desert but are not applicable to “empirical desert.” So, for instance, “vengeful desert” can be too harsh, may be based on anger and hatred, and give only vague guidance, and “deontological desert” judgments may be too contested to be useful for policy makers, but, Robinson claims, empirical desert suffers from no such defects. Robinson’s core claims – about the need to tie desert assessments close to ordinary intuitions and the substantial crime control benefits to be derived when the state can successfully command respect as a moral authority – are valid. However, Robinson’s “empirical desert” needs what he calls “vengeful desert” and “deontological desert” to succeed, and his attempts to make his proposal resistant to the usual anti-retributivist objections by jettisoning the latter two may in the end hurt his project more than help.

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Argument transcript in Speedy Trial Act case

United States v. Tinklenberg is here.

Argument transcript in Tenth Amendment challenge to federal criminal law

Bond v. United States is here.

Huq, Tyler & Schulhofer on Public Cooperation with Law Enforcement

Aziz Z. Huq (pictured), Tom Tyler and Stephen Schulhofer (University of Chicago Law School , New York University (NYU) - Department of Psychology and New York University (NYU) - School of Law) have posted two manscripts on SSRN dealing with the issue of public cooperation with law enforcement. The first is entitled Mechanisms for Eliciting Cooperation in Counter-Terrorism Policing: Evidence from the United Kingdom. Here is the abstract:

This study examines the effects of counterterrorism policing tactics on public cooperation amongst Muslim communities in London, U.K. It tests a procedural justice model developed in the context of studying crime control in the United States. The study reports results of a random-sample survey of 300 closed and fixed response telephone interviews conducted in Greater London’s Muslim community in February and March 2010. It tests predictors of cooperation with police acting against terrorism. Specifically, the study provides a quantitative analysis of how perceptions of police efficacy, greater terrorism threat, and the choice of policing tactics predict the willingness to cooperate voluntarily in law enforcement efforts against terrorism. Cooperation is defined to have two elements: a general receptivity toward helping the police in anti-terror work, and a specific willingness to alert police upon becoming aware of a terror-related risk in a community. We find that procedural justice concerns prove better predictors for both measures of cooperation in counter-terrorism policing among British Muslims. Unlike previous studies of policing in the United States, however, we find no correlation between judgments about the legitimacy of police and cooperation. Rather procedural justice judgments influence cooperation directly.

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Baradaran on Due Process, Predictive Justice and the Presumption of Innocence

Shima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Due Process, Predictive Justice & the Presumption of Innocence on SSRN. Here is the abstract:

The most commonly repeated adage in U.S. criminal justice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state and federal changes in pretrial practice, as well as Supreme Court precedent restricting the presumption’s application to trial, the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption’s diminution are also troubling as the number of defendants held pretrial has steadily increased such that the majority of people in our nation’s jails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrial presumption, let alone its constitutional implications. This article fills the void by examining how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. For the first time, this article introduces three rules to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutional foundation and ensuring its application in ways that are consistent with that foundation will result in less confusion by courts and a more consistent manner to make pretrial decisions.

Covey on Longitudinal Guilt

Russell D. Covey (Georgia State University College of Law) has posted Longitudinal Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof (Florida Law Review, Vol. 63, No. 1, 2011) on SSRN. Here is the abstract:

The Article introduces a new concept - “longitudinal guilt” - which invites readers to reconsider basic presuppositions about the way our criminal justice system determines guilt in criminal cases. In short, the idea is that a variety of features of criminal procedure, most importantly, plea bargaining, conspire to change the primary “truthfinding mission” of criminal law from one of adjudicating individual historical cases to one of identifying dangerous “offenders.” This change of mission is visible in the lower proof standards we apply to repeat criminal offenders.

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	340	Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force Robert Chesney, University of Texas School of Law, Date posted to database: February 4, 2011
2	328	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [4th last week]
3	321	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011 [2nd next week]
4	295	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011 [new to top ten]
5	201	'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences Alison Siegler, Barry Sullivan, University of Chicago Law School, Loyola University Chicago School of Law, Date posted to database: January 27, 2011 [6th last week]
6	190	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [5th last week]
7	173	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011
8	141	Collective Intentions and Individual Criminal Responsibility Javid Gadirov, Central European University, Date posted to database: February 7, 2011 [new to top ten]
9	136	After the Spill is Gone: The Gulf of Mexico, Environmental Crime, and the Criminal Law David M. Uhlmann, University of Michigan at Ann Arbor - Law School - Faculty, Date posted to database: January 16, 2011 [new to top ten]
10	127	Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals in the 1960s Bernard E. Harcourt, University of Chicago - Law School, Date posted to database: January 27, 2011

Gadirov on Collective Intentions and Individual Criminal Responsibility

Javid Gadirov (Central European University) has posted Collective Intentions and Individual Criminal Responsibility on SSRN. Here is the abstract:

This article focuses on the treatment of collective intentions in individual criminal responsibility for crimes against humanity and war crimes, at the example of the emerging International Criminal Court's (ICC) jurisprudence. It is argued that collective ('joint' and 'indirect') perpetration accounts of ICC ought to provide first of all a coherent conception of collective intentions and actions to identify individuals involved in cooperative harm doing, to attribute harm to causally responsible individuals, and to provide grounds for formulating a 'decision method' necessary for distributiveness of moral blame. Secondly causal responsibility test for harm brought about in accordance with such intentions should (a) rely on strong sufficiency rather than normative attribution standart (real rather than hypothetical attribution); (b) specify that irreducible collective intention is a 'NESS' condition for attributing harm to liable individuals; (c) distinguish principals by formulating a stronger collective intention threshold that requires 'meshing' of individual participatory intentions. Finally allocation of moral blame for harm brought about collectively should (a) explain how moral blame is distributive among participants of collective actions, in order to avoid its blending into metaphysical shame or 'guilt by association'; (b) rely on collective intentions as a 'decision method' of harm-doing that distributes moral blame; (c) consider that 'strong' formulations of such 'decision method' blame superiors, and vice versa a weak 'decision method' would increase morally responsibility of final perpetrators.

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