CrimProf Blog

"American Strike on American Target Revives Contentious Constitutional Issue"

From the New York Times:

WASHINGTON — The reported killing of Anwar al-Awlaki on Friday, an American citizen hit by a missile fired from a drone operated by his own government, instantly reignited a difficult debate over terrorism, civil liberties and the law.

. . .

Some civil libertarians questioned how the government could take an American citizen’s life based on murky intelligence and without an investigation or trial, claiming that hunting and killing him would amount to summary execution without the due process of law guaranteed by the Constitution.

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Wagner on Bailouts and the Distortion of Federal Criminal Law

Robert E. Wagner (Rutgers School of Law-Newark) has posted Bailouts and the Potential for Distortion of Federal Criminal Law: Industrial Espionage and Beyond (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

This article reveals previously neglected and disconcerting consequences that government participation in corporate ownership can have on American criminal law, and it illustrates these problems by establishing how the recent bailout could influence criminal enforcement. The article shows how the model of cost allocation developed by Guido Calabresi and based on Ronald Coase’s work can apply in the context of the criminal law and specifically economic crimes. The argument in this article then demonstrates how the government’s purchase of corporate shares through the implementation of the Troubled Asset Relief Program (TARP) causes inefficiencies and inequalities in the criminal law, including by shifting prosecutorial and other enforcement resources toward “preferred” companies and allowing for the imposition of higher statutory penalties against economic criminals that offend against those entities. As a consequence, some corporations may under-invest in private precautionary measures while others will be forced to over-invest and pass on the costs to their customers through artificially inflated prices. The potential end result is a misuse of government power to reward unsuccessful companies like General Motors at the expense of successful ones like Ford. Having established a general framework for using a cost allocation analysis to optimally address economic crimes and shown that TARP leads to inefficient outcomes under that type of analysis, this article concludes with recommendations to avoid these problems in the future.

Broughton on Congressional Inquiry and the Federal Criminal Law

J. Richard Broughton (University of Detroit Mercy School of Law) has posted Congressional Inquiry and the Federal Criminal Law (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal criminal law has become so far-reaching that scholars and commentators on both the political left and political right have joined forces to demand serious reforms related to defining, prosecuting, and punishing federal crimes. This Article makes the case for greater attention to, and use of, congressional inquiry powers - investigation and oversight - to constrain the massive federal criminal law regime. This Article first identifies, through existing law and scholarship, some of the problems of the federal regime, including over-federalization, anemic limits on prosecutorial power, and the ordinary politics that contribute to these problems. Using the 2009 and 2010 House hearings on over-criminalization as a case study, this Article argues that both political and constitutional incentives exist for Congress to use its powers of inquiry more robustly to address these problems. Although there is force in the conventional wisdom about the political disincentives for reform and in the contention that investigation and oversight are weak constraints, this Article argues that the conventional wisdom is overstated and that constitutional government demands both a serious effort at criminal law reform and healthy conflict with the executive (which would be an inevitable consequence of the reform effort). By enabling sober and informed discourse about constitutional limits in defining the criminal law, and by asserting congressional prerogatives to hold executive branch actors accountable for their own role in perpetuating the federal criminal law behemoth, robust congressional inquiry of the federal criminal justice regime can help to restore at least some of Congress’s constitutional consciousness.

Greabe on Herring Good Faith and Harlow Qualified Immunity

John Greabe (University of New Hampshire School of Law) has posted Objecting at the Altar: Why the Herring Good Faith Principle and the Harlow Qualified Immunity Doctrine Should Not Be Married (Columbia Law Review Sidebar, Vol. 11, 2011) on SSRN. Here is the abstract:

Critics of the curtailment of the exclusionary rule worked by Herring v. United States have denounced the decision as Supreme Court activism posing as derivation from settled law. Professor Jennifer Laurin agrees that Herring breaks with exclusionary rule doctrine but disputes that it lacks any grounding in Court precedent. She says that Herring consummates a long courtship between the Leon good faith exception to the exclusionary rule and the Harlow standard for qualified immunity. Laurin premises her argument on an admittedly unorthodox depiction of qualified immunity that overstates the doctrine’s protective scope. Ironically, one effect of this overstatement could be to enable a doctrinal distortion of precisely the type Laurin cautions against. For by positing a substantive equivalence between Harlow rule and the significantly more protective Herring principle, Laurin invites judges to borrow from Herring to further restrict the availability of constitutional tort remedies. Part I of this response highlights some potential problems posed by Laurin’s heterodox characterization of the qualified immunity doctrine. Part II defends the conventional description of the doctrine as more accurate and normatively desirable. Part III shifts gears and amplifies Laurin’s warnings about the trans-substantive application of constitutional tort doctrine.

Boyne on Formalism and Uniformity in the German Penal Code

Shawn Marie Boyne (Indiana University School of Law-Indianapolis) has posted The Cultural Limits of Formalism and Uniformity in the German Penal Code on SSRN. Here is the abstract:

Despite the fact that certainty and predictability in the law are essential building blocks of the German legal system, the goal of uniformity in the law has not precluded the development of divergent local legal practices. For example, while prosecutors throughout Germany use the same criminal law and procedure playbooks, there are wide discrepancies in how prosecutors and judges apply the law in the search for truth. In fact, despite the fact that the system’s compass is directed to administer justice uniformly across the state, in the search for truth, place matters. At each truth finding stage, from the initial investigation of a reported crime to a case’s final adjudication, unique combinations of political and cultural factors shape the system’s outcomes. In some cases, variations in local legal practice reflect different customary attitudes towards crime embedded in the traditions of local communities. The confluence of incentives and leadership practices specific to particular organizational entities also shape the implementation of the law on the front lines.

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Shniderman on Polygraph Evidence

Adam B. Shniderman has posted You Can’t Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence (Albany Law Journal of Science and Technology, Forthcoming) on SSRN. Here is the abstract:

Since the decision in Frye v. United States, polygraph results have been deemed inadmissible as evidence in many state and federal courts across the United States. Exclusion has been justified based on purported scientific weaknesses of the test, or the assertion that to allow polygraph evidence would usurp the jury’s role as the arbiter of credibility, wreaking havoc on the American judicial system. This paper suggests that the extensive body of literature on polygraph evidence fails to understand the actual reason polygraph evidence has been an evidentiary pariah. First, this article systematically demonstrates that the justifications for excluding polygraph evidence at trial are equally applicable to nearly every other forensic science except DNA analysis. Second, this paper asks the novel question, “Why is polygraph evidence held to such a different standard?” This article suggests that the only significant difference between many routinely admitted forensic techniques and polygraph evidence is the party most frequently offering the evidence. This article then considers several possible explanations for why this fact matters in judges’ decisions. Finally, this article concludes that because science and law have little to do with the exclusion of polygraph the trend is likely to continue regardless of technological advances.

Starkey on Behavioral Regulation of Blacks on the Right Side of the Criminal Justice System

Brando Simeo Starkey (Villanova University - School of Law) has posted You’re an Uncle Tom!: The Behavioral Regulation of Blacks on the Right Side of the Criminal Justice System on SSRN. Here is the abstract:

This Article concerns the laws created to govern the behavior of blacks carrying influence within the criminal justice system. Two periods are discussed. In the 1960s to the early 1970s, blacks devised social laws targeting the black cop. Blacks held an image of the white cop as an agent of brutality, racism and injustice. Black cops deemed no different violated the social law that demanded blacks neither abuse their fellow race members nor disregard oppressive conditions in the criminal justice system. Uncle Tom accusations were the common penalty. In the ‘80s and the ‘90s, new social laws were constructed to govern the new influx of blacks who occupied positions of increased and varied authority from within the justice system. The same law that governed the behavior of the black cop remained on the books and was applied to lawyers, judges and the like. Two new laws, though, emerged. First, there was often an expectation that the “black insider,” so to speak, should use their status to generate positive outcomes for other blacks. And second, we observe blacks involved in a specific altercation define the boundaries of blackness and make adherence to those boundaries a condition of racial loyalty. Those contravening these social laws were considered disloyal and frequently branded as Uncle Toms.

In this Article, I argue that in response to legal and social subordination, blacks, at least those interested in the task, created a system of law to regulate behavior. The venture’s purpose was to encourage the racial solidarity crucial to contest legal subordination and societal ostracism. Especially critical components of these cultural laws were those laws drafted to govern the actions of blacks working or possessing influence from within the criminal justice system. This Article follows Uncle Tom in effort to trace the development, maintenance and enforcement of these social laws.

McAllister on Evading Confrontation

Marc Chase McAllister has posted Evading Confrontation: From One Amorphous Standard to Another (Seattle University Law Review, Vol. 35, 2011) on SSRN. Here is the abstract:

In 2004, Crawford v. Washington established a new framework to govern admission of hearsay statements under the Sixth Amendment’s Confrontation Clause. Prior to Crawford, the Roberts rule allowed such statements to be admitted upon a mere showing of “reliability.” Under Roberts, courts frequently attached different meanings to the same reliability factor (as in Crawford itself), and often reached opposite outcomes on nearly identical facts.

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Correll on Compelled DWI Blood Draws

Michael A. Correll has posted Is There a Doctor in the (Station) House?: Reassessing the Constitutionality of Compelled DWI Blood Draws Forty-Five Years after Schmerber (West Virginia Law Review, Vol. 113, p. 381, 2011) on SSRN. Here is the abstract:

The vast majority of Fourth Amendment jurisprudence of the last century has been dedicated to parsing the physical and intangible boundaries of the home, developing the expectation of privacy, and, as of late, exploring the constitutional implications of an increasingly electronic society. In the midst of this development, one major area has quietly fallen by the wayside - the preservation of bodily integrity. As technology has rendered the human body an ever-increasing source of crucial evidence, the Supreme Court has remained largely silent on the government’s power to harvest information through medical procedures. Since the Court’s consideration of the constitutionality of compelled blood draws in Schmerber v. California, 384 U.S. 757 (1966), the Fourth Amendment questions attendant to bodily evidence have been largely left to the states. This Article examines a narrow subset of that state-level development: non-consensual DWI blood draws. A review of the state statutory and jurisprudential applications of Schmerber reveals increasing disagreement over the scope of the Fourth Amendment when police seek to recover fleeting evidence of blood alcohol content. Based on this review, this Article suggests a number of policy proposals designed to better insure police stay within the Fourth Amendment strictures of Schmerber while also procuring the most effective evidence possible.

Leson on Protecting Informants

Ian Leson has posted Toward Efficiency and Equity in Law Enforcement: 'Rachel’s Law' and the Protection of Drug Informants (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

Following the murder of Rachel Morningstar Hoffman, a 23-year-old college graduate, Florida passed “Rachel’s Law,” which established new guidelines for the police when dealing with confidential informants. Immediately prior to its enactment, Rachel’s law was stripped of key provisions. These provisions required the police to provide the potential informant with an attorney before she agrees to any deal, and put limitations on the ability of the police to employ as informants people in drug rehabilitation programs. Opponents of these provisions argue that they will hamstring law enforcement agencies in their efforts to prosecute drug crimes. This note suggests that the attorney provision be restored to Rachel’s Law, and encourages other states to enact similar statutes. Rather that serving as an obstacle to effective law enforcement, this note argues that the attorney provision in the original version of Rachel’s Law enables more efficient prosecution of crimes, while also protecting those minor drug offenders who may be unsuited to potentially dangerous undercover informant work.

Giannelli on Comparative Bullet Lead Analysis

Paul C. Giannelli (Case Western Reserve University - School of Law) has posted Comparative Bullet Lead Analysis: A Retrospective (Criminal Law Bulletin, Vol. 47, p. 306, 2010) on SSRN. Here is the abstract:

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was challenged provides an invaluable insight into how forensic science sometimes works.

Alexander on Self-Defense

Larry Alexander (University of San Diego School of Law) has posted Self-Defense (THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW, Andrei Marmor, ed., Routledge Philosophy Companions, Forthcoming) on SSRN. Here is the abstract:

In this encyclopedia entry, I set forth all of the factors that a complete theory of self-defense must consider. On some of those factors, I have and express an opinion. On others, I leave matters unresolved. What is most significant, however, is that self-defense is preemptive: it occurs before the anticipated act to which it is a response. Yet, almost none of the extant voluminous literature on self-defense addresses the epistemological standards that should govern preemptive responses, standards regarding the probability of the anticipated act and its consequences and whether the actor is culpable or nonculpable.

Fabricant on Criminal Defense Clinics

M. Chris Fabricant (Pace University - School of Law) has posted Rethinking Criminal Defense Clinics on SSRN. Here is the abstract:

On a late November night in the vestibule of a South Bronx high-rise, Dwayne was confronted by three police officers. Police told Dwayne he fit the description of a shooting suspect who had fled into the building – a young African-American male with braids. Dwayne told the officers he had been upstairs in apartment 12C watching the Manny Pacquiao fight with some friends, but he was handcuffed and taken outside for an identification procedure. The identification procedure never happened. Instead, he was loaded into a police van, where he sat for the next four hours while police arrested several other young men of color as they exited buildings from nearby housing projects, filling the van before transporting all the young men to the 44th Precinct for booking. It was not until the next day when a student attorney sat across from Dwayne in a dank holding cell that he learned that he had been charged with criminal trespass.

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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	536	Self-Defense Larry Alexander, University of San Diego School of Law, Date posted to database: September 8, 2011
2	316	Overcriminalization 2.0: The Symbiotic Relationship Between Plea Bargaining and Overcriminalization Lucian E. Dervan, Southern Illinois University School of Law, Date posted to database: August 24, 2011 [new to top ten]
3	194	The Child Pornography Crusade and its Net Widening Effect Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: August 24, 2011 [5th last week]
4	186	Solicitation, Extortion, and the FCPA Joseph W. Yockey, University of Iowa College of Law, Date posted to database: July 28, 2011
5	175	Tangled Up in Law: The Jurisprudence of Bob Dylan Michael L. Perlin, New York Law School, Date posted to database: September 1, 2011 [new to top ten]
6	172	Mental Disorder and Criminal Law Stephen Morse, University of Pennsylvania Law School, Date posted to database: July 24, 2011
7	165	The Execution of Cameron Todd Willingham: Junk Science, an Innocent Man, and the Politics of Death Paul C. Giannelli, Case Western Reserve University - School of Law, Date posted to database: August 26, 2011 [8th last week]
8	162	Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States Orin S. Kerr, George Washington University - Law School, Date posted to database: August 29, 2011 [10th last week]
9	161	Changing Law’s Mind: How Neuroscience Can Help Us Punish Criminals More Fairly and Effectively Deborah W. Denno, Fordham University School of Law, Date posted to database: August 15, 2011
10	139	Lost in Translation?: An Essay on Law and Neuroscience Stephen Morse, University of Pennsylvania Law School, Date posted to database: August 4, 2011 [new to top ten]

Berry on Separating Retribution from Proportionality

William W. Berry III (University of Mississippi School of Law) has posted Separating Retribution from Proportionality: A Response to Stinneford (Virginia Law Review In Brief, Vol. 97, No. 61, 2011) on SSRN. Here is the abstract:

Professor John Stinneford follows his initial article concerning the original meaning of the Eighth Amendment with an excellent article in the Virginia Law Review, Rethinking Proportionality Under the Cruel and Unusual Punishments Clause. In this latest piece, Stinneford argues that the original meaning of the Eighth Amendment’s Cruel and Unusual Punishments Clause includes not only a prohibition against barbaric punishments (defined as ones without “long usage”), but also against excessive or “disproportionate” punishments. Stinneford then advocates rethinking the Supreme Court’s Eighth Amendment evolving standards of decency jurisprudence to center the “cruel” inquiry on whether the punishment at issue is “proportionate,” in a retributive sense, in light of prior punishment practices.

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Criminal Law and Criminal Justice Books website

James Finckenauer (Rutgers School of Criminal Justice)  and Stuart P. Green (Rutgers School of Law–Newark)(pictured) are the co-editors of what promises to be a highly useful new website here. The free site will offer online reviews of books in criminal law, criminal procedure, and criminal justice, and readers can subscribe to get email updates when new material is added. The distinguished advisory board is here.

KC

Kaye on the Expected Value Fallacy in DNA Source-Attribution Testimony

David H. Kaye (The Pennsylvania State University) has posted The Expected Value Fallacy in State v. Wright (Jurimetrics, Vol. 51, No. 4, Fall 2011) on SSRN. Here is the abstract:

In State v. Wright, 253 P.3d 838 (Mont. 2011), the Montana Supreme Court rejected a defendant's claim that allegedly false and misleading expert testimony and closing argument about the number of individuals with a particular DNA profile who lived in the state amounted to a violation of due process of law. However, the opinion does not adequately articulate the nature of the error in the testimony and is ambiguous in its discussion of the appropriate limits on the admission of DNA source-attribution testimony. This essay explains that the expert's testimony is an instance of an "expected value fallacy." This fallacy consists of thinking that the expected number of matching DNA profiles necessarily is the only plausible number of such profiles.

Place on Pennsylvania Ineffectiveness Claims

Thomas M. Place (The Pennsylvania State University) has posted Closing Direct Appeal to Ineffectiveness Claims: The Pennsylvania Supreme Court's Denial of State Constitutional Rights on SSRN. Here is the abstract:

The article addresses an important issue involving rights protected by the Pennsylvania Constitution. Today, thousands of defendants in Pennsylvania are denied any opportunity to challenge their convictions on the grounds that their trial lawyer was ineffective. This occurs even though the Pennsylvania Constitution guarantees every defendant the right to direct appeal. The fact that an increasingly large number of defendants are without a remedy to protect their right to effective assistance of counsel at trial is the result of the Pennsylvania Supreme Court’s decision to bar direct appeals of claims of trial counsel ineffectiveness and instead, defer such claims to the statutory post-conviction process which is closed to defendants who are no longer in custody. If a defendant receives a sentence of short duration, increasingly common in Pennsylvania (more than 14,000 sentences imposed in 2009 were for less than one year), and the defendant completes his sentence while direct appeal or the post-conviction process is pending, the defendant has no remedy to challenge the effectiveness of trial counsel.

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Meidinger on Prosecutorial Decision-Making, Queer Youth, and Statutory Rape

Michael H. Meidinger has posted Peeking Under the Covers: Taking A Closer Look at Prosecutorial Decision-Making Involving Queer Youth and Statutory Rape (Boston College Third World Law Journal, Vol. 1, 2011) on SSRN. Here is the abstract:

Queer youth are in a precarious position today. In comparison to their heterosexual peers, queer youth are disproportionately punished in the criminal justice system, and they may be more vulnerable to being prosecuted for statutory rape. Queer youth may be selectively prosecuted for statutory rape because prosecutors are given broad discretion in whom they prosecute and heterosexual intimacy norms may be part of their decision‐making process. In light of the significant barriers before a defendant alleging selective prosecution, especially for juvenile defenders, limited discovery orders like the one at issue in Commonwealth v. Washington may be a pragmatic way to make equitable change.

Stumpf on Crimmigration and Haste

Juliet P. Stumpf (Lewis & Clark Law School) has posted Doing Time: Crimmigration Law and the Perils of Haste (UCLA Law Review, Vol. 58, No. 1705, 2011) on SSRN. Here is the abstract:

Crimmigration law wastes one of the law’s most valuable tools: time. It eschews the temporal gauges that criminal law and immigration law rely on to evaluate who should be included or expelled from society. Instead, crimmigration law narrows the decision whether to exclude or expel the noncitizen from the nation to a single moment in time: the moment of the crime that makes the noncitizen eligible for deportation or incarceration for an immigration-related offense. This extraordinary focus on the moment of the crime conflicts with the fundamental notion of the individual as a collection of many moments composing our experiences, relationships, and circumstances. It frames out circumstances, conduct, experiences, or relationships that tell a different story about the individual, closing off the potential for redemption and disregarding the collateral effects on the people and communities with ties to the noncitizen.

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