CrimProf Blog

Graham on Sentencing, Crack and Meth

Kyle Graham (Santa Clara University School of Law) has posted Sorry Seems to Be the Hardest Word: the Fair Sentencing Act of 2010, Crack, and Methamphetamine (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

This Essay considers the circumstances that led to the enactment of the Fair Sentencing Act of 2010, which increased the quantities of crack cocaine necessary to implicate mandatory minimum prison sentences for federal drug trafficking crimes, and considers whether the Act might facilitate re-evaluation of the penalty scheme applicable to methamphetamine.

Next week's criminal law/procedure arguments

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

Tuesday, Feb. 22

• US v. Tinklenberg: The Speedy Trial Act guarantees that federal criminal defendants will be tried within a certain amount of time after they are charged. The statute also provides that certain delays do not count toward the deadline. When, if ever, is the time between the filing of a pretrial motion and the court’s ruling on it excluded?
• Bond v. US: Whether a defendant may challenge the constitutionality of a federal criminal statute on Tenth Amendment grounds, arguing that Congress exceeded its constitutional powers in attempting to regulate something the Constitution leaves to the states.

Wednesday, Feb. 23

• Freeman v. US: Generally, a criminal defendant may ask to have his sentence lowered if, after his sentencing, the federal sentencing commission lowers the sentencing guideline range for his crime. The question in this case is whether a defendant may take advantage of that right if he was convicted based on a plea agreement that specified a particular sentence or sentencing range (as opposed to a plea agreement in which sentencing is left to the judge, in accordance with the sentencing guidelines).

Vazquez on Advising Noncitizen Defendants on Immigration Consequences of Conviction

Yolanda Vazquez (University of Pennsylvania Law School) has posted Advising Noncitizen Defendants on the Immigration Consequences of Criminal Convictions: The Ethical Answer for the Criminal Defense Lawyer, the Court, and the Sixth Amendment (Berkeley La Raza Law Journal, Vol. 20, p. 31, 2010) on SSRN. Here is the abstract:

This Article discusses the tension between the Sixth Amendment analysis by courts on the issue of immigration consequences of criminal convictions and the moral and ethical duties that an attorney owes his noncitizen client. Under the majority of jurisdictions, federal circuit and state courts hold that there is no duty to advise on this issue because they are deemed to be “collateral”. However, a growing number of these jurisdictions have begun to find a Sixth Amendment violation for failure to advise. These jurisdictions have created a Sixth Amendment duty only when: 1) the attorney “knew or should have known” the client was a non-citizen; or, 2) the attorney gave misadvice. However, these holdings create perverse incentives for attorneys to implement a Don’t Ask/Don’t Tell policy by allowing an attorney to remain silent and fail to investigate immigration status to prevent a Sixth Amendment violation on information that a noncitizen may deem more important than the criminal sentence as well as creating lines in the responsibilities an attorney owes his client based upon stereotypical perceptions of citizenship.

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"Action needed to assure new technology can be wiretapped, FBI says"

From CNN.com:

Washington (CNN) -- Rapid advances in communications are eroding police departments' abilities to conduct wiretaps, and Congress needs to take steps to ensure that new telephone, computer and wireless systems are designed to allow lawful police access, FBI and police officials told Congress Thursday.

But other witnesses cautioned that any such move could stifle innovation, place U.S. technology companies at a competitive disadvantage and unintentionally create systems vulnerable to hackers, criminals and terrorists.

Sarma on Civic Exclusion of African-Americans in Louisiana

Bidish Sarma (The Justice Center's Capital Appeals Project) has posted An Enduring (and Disturbing) Legacy: Race-Neutrality, Judicial Apathy, and the Civic Exclusion of African-Americans in Louisiana (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:

In Louisiana, Mr. Ernest Benjamin Kruttschnitt is fondly remembered as a lawyer who championed worthy causes. He long served as the President of the New Orleans School Board, and his leadership in the Louisiana State Bar remains the stuff of legend. Indeed, his portrait adorns the atrium wall immediately outside of the Louisiana Supreme Court on the Fourth floor of the stately court in the French Quarter.

But, history has overlooked one central and irrefutable fact about Mr. Kruttschnitt: he was a white supremacist. In fact, he led the State’s effort to undermine the nation’s Reconstruction Amendments, seeking to disenfranchise and marginalize African-Americans and cleanse Louisiana of the folks he claimed “degraded our politics.” A key author of the constitutional provisions and policies designed to deny African-Americans a voice in government and civic life, he remains a revered legal luminary in Louisiana. Yet, at the time that he presided over Louisiana’s Second Constitutional Convention, his followers and colleagues knew that his goal was “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”

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Sawicki on Baze v. Rees

  Nadia N. Sawicki (Loyola-Chicago School of Law, Beazley Institute for Health Law & Policy) has posted There Must Be a Means: The Backward Jurisprudence of Baze v. Rees on SSRN. Here is the abstract:

The Supreme Court’s plurality opinion in Baze v. Rees begins with a seemingly simple assertion of constitutional law. “We begin with the principle, settled by Gregg, that capital punishment is constitutional.” It continues, “It necessarily follows that there must be a means of carrying it out.” This second pronouncement provides the foundation for the Supreme Court’s holding in Baze that Kentucky’s refusal to modify its lethal injection procedure does not violate the Eighth Amendment. However, in taking the position that the constitutionality of an existing method of capital punishment is dependent on the availability of alternative execution procedures, the Supreme Court has turned Eighth Amendment jurisprudence on its head, establishing a dangerous loophole that could imperil our most important constitutional protections. This essay highlights the error in the Court’s reasoning in Baze, and describes the potential consequences of applying this reasoning to other areas of constitutional law.

Laudan & Allen on Preventive Detention

Larry Laudan and Ronald J. Allen (pictured)(Instituto de Investigaciones Filosoficas, UNAM and Northwestern University Law School) have posted Deadly Dilemmas III: Some Kind Words for Preventive Detention on SSRN. Here is the abstract:

This paper explores the role of assessments of dangerousness in the criminal law, arguing that they are ubiquitous not only in setting sentences and guiding bail and parole decisions but, far more importantly, in determining which activities are criminalized and which are not. While many theorists of the criminal law continue to assert that prospective judgments of dangerousness have no legitimate role in the criminal law (since persons are to be punished supposedly only retrospectively for harms already committed), we argue that it is entirely appropriate to punish people for harms that they are likely to commit, provided that pertinent due process demands are satisfied. More generally, we deny both the existence and the desirability of a sharp distinction between the aims of criminal law and the aims of other forms of legal control and regulation.

Calo on Empirical Desert

Zachary R. Calo (Valparaiso University School of Law) has posted Empirical Desert and the Moral Economy of Punishment (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral life. As such, the normative nature of punishment is lost in an attempt to salvage it.

Freedman on Habeas Corpus as a Common Law Writ

Eric M. Freedman (Hofstra University - School of Law) has posted Dimension I: Habeas Corpus as a Common Law Writ (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 46, No. 2, Summer 2011) on SSRN. Here is the abstract:

This article is the first part of a projected three-part work based on the extensive exploration of archival sources in America and England that has been conducted in the past several years by myself and other researchers.

It advances two key claims: First, in researching the history of habeas corpus we need to get beyond the label "habeas corpus." The constitutional importance of the writ is in its function not its name. Demands for release from unlawful imprisonment could be made in the seventeenth and eighteenth centuries by seeking a variety of writs or even by pleadings that asked for no particular writ at all. Hence for Suspension Clause purposes we should adopt a functional definition of "habeas corpus" to mean a demand, however denominated, challenging the legal basis of a detention and calling upon the custodian to justify it.

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Cohn on the United States and Torture

Marjorie Cohn (Thomas Jefferson School of Law) has posted Introduction to The United States and Torture: Interrogation, Incarceration, and Abuse (THE UNITED STATES AND TORTURE: INTERROGATION, INCARCERATION, AND ABUSE, New York University Press, 2011) on SSRN. Here is the abstract:

Emboldened by the terrorist attacks of September 11, 2001, the George W. Bush administration lost no time establishing a policy that authorized the use of "enhanced interrogation techniques," that is, torture and abuse. Cofer Black, head of the CIA Counterterrorist Center, testified at a joint hearing of the House and Senate intelligence committees in September 2002: "This is a very highly classified area, but I have to say that all you need to know: There was a before 9/11, and there was an after 9/11. After 9/11 the gloves come off." Indeed, in his January 2003 State of the Union Address, President Bush admitted: "All told, more than 3,000 suspected terrorists have been arrested in many countries. Many others have met a different fate. Let's put it this way: They are no longer a problem to the United States and our friends and allies." Bush was tacitly admitting to the illegal practice of summary execution.

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Lubet on the Oberlin Fugitive Slave Rescue and Higher Law

Steven Lubet (Northwestern University - School of Law) has posted The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law (North & South, Vol. 13, 2011) on SSRN. Here is the abstract:

This article tells the story of the Oberlin fugitive slave rescue and the ensuing prosecutions in federal court. The trial of rescuer Charles Langston marked one of the first times that adherence to "higher law" was explicitly raised as a legal defense in an American courtroom. The article is adapted from my book – Fugitive Justice: Runaways, Rescuers, and Slavery on Trial – which tells this story (and several others) in much more detail.

In the fall of 1859, John Price was a fugitive slave living in the abolitionist community of Oberlin, Ohio. He was lured out of town and captured by Kentucky slavehunters, but he was able to raise an alarm. Hundreds of Oberliners – including many students and graduates from the eponymous college – came to his rescue. They chased the slavehunters to nearby Wellington, where they freed John Price by force.

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Taslitz on Criminal Justice and the Thirteenth Amendment

Andrew E. Taslitz (Howard University - School of Law) has posted The Slave Power Undead: Criminal Justice Successes and Failures of the Thirteenth Amendment (THE PROMISES OF LIBERTY: THE HISTORY AND CONTEMPORARY RELEVANCE OF THE THIRTEENTH AMENDMENT, Chapter 13, p. 245, Alexander Tsesis, ed., Columbia University Press, 2010) on SSRN. Here is the abstract:

Criminal justice legislation expressly rooted in, or inspired by, the Thirteenth Amendment to the United States Constitution has tended to be narrow in scope. Such legislation aims primarily at preventing the unwilling from being physically compelled to labor for little, if any, compensation at hard jobs. This book chapter argues that Section 2 of that amendment, empowering Congress to pass appropriate legislation to enforce the amendment, authorizes somewhat broader legislation. Section 2 must be understood as aiming not only at slavery and its close cousin, involuntary servitude, but more directly at the anti-republican culture it spawned. More specifically, this chapter identifies four hallmarks of a core concept of chattel slavery, the presence of any one of which was an important prop for the Slave Power and thus potentially an appropriate subject of legislative assault. These props give more meat to the ambiguous "badges and incidents" concept that has defined Congress's Section 2 power. The four props are: (1) violence that (2) is expressive of racial subordination (3) used to coerce labor or (4) treat humans more as commodities than as persons. Current doctrine requires the conjunction of props 1 and 3, while the chapter argues that prop 4 alone can be the subject of legislation, as can prop 1 in conjunction with either prop 2 or 3. Moreover, properly understood, props 2 and 3 significantly broaden the currently accepted scope of Section 2's reach. The chapter ends with illustrations of criminal justice legislation that could be authorized under this new reading of Section 2, including outlawing racially-motivated low-level violence interfering with the housing market and outlawing certain types of purely psychological manipulation, devoid of even the threat of physical violence, to compel labor.

Podgor on Politics and Federal Prosecutors

Ellen S. Podgor (Stetson University College of Law) has posted The Tainted Federal Prosecutor in an Overcriminalized Justice System (Washington and Lee Law Review, Vol. 67, No. 4, 2010) on SSRN. Here is the abstract:

The infiltration of politics in the Department of Justice (DOJ) is the discussion in four recent oversight reports. Commentators and scholars have responded with varying solutions to ensure these mistakes will not be repeated.

This Essay looks at politicization in DOJ from a different angle. It focuses first on the importance of maintaining political neutrality in DOJ and then stresses the need to examine structural changes in the criminal justice process that will minimize the ability to have decisions that might be politicized or might suggest an appearance of being politicized. Instead of focusing only on corrections to alleviate politicization in the federal criminal justice system, the focus also needs to look at overcriminalization, the breadth or many criminal statutes, the increased lack of mens rea required in criminal offenses, and the ability of prosecutors to use “short-cut” offenses to proceed with charges with relatively little proof. Conquering systemic problems accruing from an overcriminalized system will assure that decision-making is consistent and not a product of a prosecutor’s personal preferences. Thus, even if politicization should again enter into the DOJ, limited power in decisionmaking would avoid any possible problems that might accrue from the appearance or reality of having politically connected decisionmakers.

"House Votes to Extend Patriot Act Provisions"

From The New York Times:

WASHINGTON — The House on Monday voted to reauthorize and extend through Dec. 8 three ways in which Congress expanded the Federal Bureau of Investigation’s counterterrorism powers after the terrorist attacks of Sept. 11, 2001.

. . .

The provisions allow investigators to get “roving wiretap” court orders allowing them to follow terrorism suspects who switch phone numbers or providers; to get orders allowing them to seize “any tangible things” relevant to a security investigation, like a business’s customer records; and to get national-security wiretap orders against non-citizen suspects who are not connected to any foreign power.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	302	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 [new to top ten]
2	281	An Equilibrium-Adjustment Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: January 26, 2011 [3rd last week]
3	273	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 [1st last week]
4	270	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [2nd last week]
5	186	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]
6	181	'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 [8th last week]
7	161	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011
8	130	Torture, Suicide, and Determinatio Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 11, 2010 [9th last week]
9	119	The People’s Right: Reimagining the Right to Counsel Martin Guggenheim, New York University School of Law, Date posted to database: January 11, 2011 [new to top ten]
10	109	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 [new to top ten]

Simon on Factfinding in Criminal Trials

Dan Simon (USC Gould School of Law, USC Department of Psychology) has posted The Limited Diagnosticity of Criminal Trials (Vanderbilt Law Review, Vol. 64, p. 143, 2011) on SSRN. Here is the abstract:

A fundamental function of the criminal trial is to determine the facts correctly in order to distinguish between guilty and innocent defendants, and between strong and weak prosecutions. This Article seeks to answer a simple question: How good is the criminal trial at reaching accurate factual conclusions?

The Article applies a body of experimental psychology to examine the ability of factfinders to assess the evidence and draw correct inferences from it. The psychological research indicates that the mental processes involved in determining facts in criminal trials are more complex and fickle than generally believed.

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Ryan on Total Retribution

Meghan J. Ryan (Southern Methodist University Dedman School of Law) has posted Total Retribution on SSRN. Here is the abstract:

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender’s conduct should be considered in determining that offender’s desert. The more remote harms caused by offenders’ conduct, such as the effects of their offenses on the families and friends of their victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article takes a first look at this neglected issue of the role that more remote harms should play in sentencing and asserts that accounting for these more remote harms would better reflect the basic tenets of retributivism. The Article acknowledges some of the challenges of embracing the totality of the theory of retribution and concludes that a legal limitation akin to the theory of proximate causation is necessary to reign in criminal liability under the theory.

Featured download: Barry on Actual Innocence and Double Jeopardy

My colleague, Jordan Barry, has posted his interesting paper, Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause, on SSRN. Here is the abstract:

In certain circumstances, a prisoner who challenges her conviction must convince a court that she is actually innocent in order to get relief. Unfortunately, such judicial exonerations often fail to persuade prosecutors, who are generally free to retry prisoners who successfully challenge their convictions. There have been several instances in which prisoners have convinced courts of their innocence and overturned their convictions, only to have prosecutors bring the exact same charges against them a second time. This Article argues that the Double Jeopardy Clause protects these exonerated defendants from the ordeal of a second prosecution. Permitting prosecutors to continue to pursue such individuals contradicts established Supreme Court case law, violates the policies animating the Double Jeopardy Clause, and impairs the operation of the criminal justice system.

Nelson on Policing Race and Mental Status

Camille Nelson has posted Racializing Disability, Disabling Race: Policing Race and Mental Status (Berkeley Journal of Criminal Law, Vol. 15, p. 1, 2010) on SSRN. Here is the abstract:

This article focuses on police practices in arresting and detaining criminal suspects who have mental illnesses. It identifies three modalities police may adopt when detaining a mentally ill suspect: medical modality (and its subset the family mode), the criminal modality, and the disciplinary modality. This article examines archetypal cases in which harsher treatment of a suspect may be meted out by the police against mentally ill persons of color.

To illustrate the different modalities, this article examines the case study of Donald Winters. Mr. Winters was a Caucasian male who was diagnosed with Delusional Disorder. He had threatened to kill the police officers when they attempted to apprehend him. Police understood they were dealing with a mentally ill suspect, and they restrained themselves from using violence in order to subdue him. In Coghlan v. Phillips, Mr. Coghlan, a white male known to have a criminal record and a history of mental illness, fired four to ten shots at police officers when they initially attempted to arrest him. The police officers did not return fire, but returned with a bullhorn and told Mr. Coghlan they wished to take him to a doctor. These cases are illustrative of the medical and criminal modalities and represent more appropriate police responses to mentally ill suspects. However, police seemingly demonstrate far less tolerance for suspects whose Suspect Identity Construction (“SIC”) is both a minority and mentally ill.

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Hubachek on the Sixth Amendment and the Parsimony Provision

Steven F. Hubachek (Federal Defenders of San Diego, Inc.) has posted The Undiscovered Apprendi Revolution: The Sixth Amendment Consequences of an Ascendant Parsimony Provision (American Journal of Trial Advocacy, Vol. 33, No. 521, 2010) on SSRN. Here is the abstract:

The parsimony provision contained in 18 U.S.C. section 3553(a) directs district courts to impose a sentence sufficient, but not greater than necessary, to effectuate the statutory goals contained in section 3553(a)(2). The parsimony limitation and the substantive reasonableness review analyzed by Justice Scalia in Rita make clear that district courts do not have the unfettered discretion to sentence within the statutory range that they enjoyed prior to the passage of the Sentencing Reform Act. If a non-elemental fact is significant enough to effect an increase in the sentence that would be parsimonious as to the offense simpliciter, the Sixth Amendment applies to it.