CrimProf Blog

Langer on the Confluence of Common and Civil Law Traditions in the Constitutional Right to Disclosure

Maximo Langer (University of California, Los Angeles - School of Law, pictured) and Kent Roach (University of Toronto - Faculty of Law) have posted Rights in Connection with Criminal Process (Handbook on Constitutional Law, Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., Routledge, 2012) on SSRN. Here is the abstract:

This contribution for an edited volume on comparative constitutional law analyzes the claim that common and civil law jurisdictions are converging in criminal procedure because many civil law jurisdictions have moved toward an adversarial system by adopting more rights. By concentrating on the defendant’s constitutional right to disclosure, this chapter shows that the spread of rights is not a simple movement of convergence, but rather a more complex process that achieves convergence while simultaneously maintaining existing divergences and creating new ones between common and civil law.

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Transcripts in arguments on ineffectiveness and guilty pleas

The transcript in Lafler v. Cooper is here. The transcript in Missouri v. Frye is here.

Opinion in case involving federal review of state jury's assessment of experts

The case, Cavazos v. Smith, is summarily reversed here. The Ninth Circuit had granted habeas for a conviction in which the jury credited the prosecution's expert on cause of death rather than the defense's. In dissent, Justice Ginsburg, joined by Justices Breyer and Sotomayor, characterized the Court's action as "a misuse of discretion.'

This week's criminal law/procedure arguments

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

Monday

• Missouri v. Frye: Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms? What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
• Lafler v. Cooper: (1) Whether a defendant seeking habeas is entitled to relief based on ineffective assistance of counsel where counsel’s deficient advice caused the defendant to reject a plea bargain in which the defendant had no vested right, and where the rejection did not deny the defendant a fair trial. (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures.

Tuesday

• Rehberg v. Paulk: Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.
• Minneci v. Pollard: Whether the Court should imply a cause of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, against individual employees of private companies that contract with the federal government to provide prison services, when the plaintiff has adequate alternative remedies for the harm alleged and the defendants have no employment or contractual relationship with the government.

Wednesday

• Perry v. New Hampshire: Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?
• Gonzalez v. Thaler: (1) Was there jurisdiction to issue a certificate of appealability under 28 U. S. C. §2253(c) and to adjudicate petitioner's appeal? (2) Was the application for a writ of habeas corpus out of time under 28 U. S. C. §2244(d)(1) due to the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review?

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	612	Self-Defense Larry Alexander, University of San Diego School of Law, Date posted to database: September 8, 2011
2	358	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
3	249	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
4	237	Tangled Up in Law: The Jurisprudence of Bob Dylan Michael L. Perlin, New York Law School, Date posted to database: September 1, 2011
5	236	The Invisible Man: How the Sex Offender Registry Results in Social Death Elizabeth Berenguer Megale, Barry University School of Law, Date posted to database: October 4, 2011 [new to top ten]
6	222	Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism John Mikhail, Georgetown University - Law Center, Date posted to database: September 9, 2011 [5th last week]
7	215	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 [6th last week]
8	195	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 [7th last week]
9	186	The Evolution of Unconstitutionality in Sex Offender Registration Laws Catherine L. Carpenter, Southwestern Law School, Date posted to database: August 25, 2011 [8th last week]
10	178	The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences Jessica Tillipman, The George Washington University Law School, Date posted to database: September 8, 2011 [9th last week]

Moore on Full Open File Discovery Reform in Criminal Cases

Janet Moore (University of Cincinnati College of Law) has posted Opening the Black Box: Democracy and Criminal Discovery Reform after Connick v. Thompson and Garcetti v. Ceballos (Brooklyn Law Review, Vol. 77, 2012) on SSRN. Here is the abstract:

A leading cause of wrongful conviction and wasteful litigation in criminal cases is the nondisclosure of information beneficial to the defense by prosecutors and law enforcement as required by Brady v. Maryland. In Connick v. Thompson and Garcetti v. Ceballos, the Supreme Court weakened Brady’s enforceability by limiting the deterrent force of 42 U.S.C § 1983 liability. Connick highlights Garcetti’s implications as a criminal discovery case, which scholars have not fully analyzed. While Connick restricted § 1983 liability when prosecutors confess to suppressing exculpatory evidence, Garcetti restricted liability when prosecutors are disciplined for bringing Brady evidence to light.

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Mosteller on the Prosecutor's Ethical Duty to "Do Justice"

Robert P. Mosteller (University of North Carolina at Chapel Hill - School of Law) has posted Failures of the Prosecutor’s Duty to 'Do Justice' in Extraordinary and Ordinary Miscarriages of Justice (The Prosecutor in Transnational Perspective, Erik Luna & Marianne Wade, eds., Oxford University Press, 2011) on SSRN. Here is the abstract:

This essay discusses both the highly publicized extraordinary miscarriages of justice and unfortunately the much too frequent ordinary variety. It begins with the Duke Lacrosse and Central Park Jogger cases, which were extraordinary. Sometimes in cases of both varieties outrageous ethical errors by prosecutors were at the core of the injustice, but more frequently the prosecution error was in quickly reaching an expected result relying on apparently persuasive but questionable sources of evidence. The cases often involve the use of informants who received substantial benefits for testimony that incriminates the defendant and scientific evidence that did not actually establish what it appeared to prove. Another type of scientific evidence - exonerating DNA evidence - typically rectified the error, apparently promising clear answers to questions of innocence. Unfortunately, such certainty is often missing in problematic cases. Indeed, scientific evidence may give us the false sense of an ability to determine clearly when errors have been made and divert attention from the often inherent impossibility of knowing whether justice has been done.

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Simon on Determining the Liability of a Defendant Under the Felony-Murder Doctrine

Michelle S. Simon (Dean Pace University, School of Law) has posted Whose Crime is it Anyway? Liability for the Lethal Acts of Nonparticipants in the Felony University of Detroit Mercy Law Review, Vol. 71, No. 2, 1994 on SSRN. Here is the abstract:

This Article explores the methodology that courts should employ when determining the liability of a defendant under the felony-murder doctrine, where the perpetration of a felony results in the death of - a nonparticipant in the crime by another nonparticipant. Part I of the Article addresses the history of the doctrine, the policies that have sustained it throughout history, and the modern statutory promulgations of the rule. Part II explores not only how courts have handled the doctrine's causation requirement, but also how legislatures have responded to this requirement. Further, Part II discusses the court created theories of agency and proximate cause. Part III addresses the need for a consistent analytical framework and demonstrates the current confusion that has resulted from courts construing a statute to require different causation approaches. Part III submits that the courts' reliance on the agency theory, which requires an initial determination that a felon shot the fatal bullet, is inconsistent with both society's view towards crime and principles of statutory analysis. By applying the agency theory, the courts are using causation to restrict the application of the felony-murder doctrine, a responsibility that should be left to the legislature. Part IV proposes a methodology that is consistent with both principles of statutory interpretation and society's view toward crime. This approach uses the ordinary rules of causation and modifies them to apply to felony-murder. As an example, the proposed methodology is applied to various factual scenarios where the person who does the killing is unknown, or is someone other than the defendant, and the victim is a nonparticipant in the felony. Under this analysis, courts can not only interpret the causation requirement of the felony-murder doctrine consistently, but can also ensure the uniform administration of justice.

DeBacker on the Influence of Imported Cultural Norms on Tax Evasion in the U.S.

Jason Matthew DeBacker (U.S. Department of the Treasury), Bradley T. Heim, and Anh Tran have posted Importing Corruption Culture from Overseas: Evidence from Corporate Tax Evasion in the United States on SSRN. Here is the abstract:

This paper studies how cultural norms and enforcement policies influence illicit corporate activities. Using confidential IRS audit data, we show that corporations with owners from countries with higher corruption norms engage in higher amounts of tax evasion in the U.S. This effect is strong for small corporations and decreases as the size of the corporation increases. In the mid-2000s, the United States implemented several enforcement measures which significantly increased tax compliance. However, we find that these enforcement efforts were less effective in reducing tax evasion by corporations whose owners are from countries with higher corruption norms. This suggests that cultural norms can be a challenge to legal enforcement.

Fincham on Defining Art Crime

Derek Fincham (South Texas College of Law) has posted What is Art Crime? (Journal of Art Crime, Vol. 1, pp. 54-57) on SSRN. Here is the abstract:

Art, like any other object of value is often the target of criminal actions, from theft to forgery and even vandalism. These crimes are breaches of laws or norms prescribing how humans ought to behave. Art, generally speaking, is the process of arranging sounds, colors or elements in a way, which appeals to senses, thought or emotion. Art is created for a number of reasons: it is a basic human impulse, it allows us to experience the mysterious and sublime, it conveys the inner-workings of the human imagination, allows for communications, it entertains us, attempts to create political or societal change, or even questions basic assumptions. But the term “art” also applies to judgments of value; it is a measure of value or quality determined by an individual. In this way the definition of art and crime may be subjective, but also subject to the same kind of norms and value judgments we attach to crimes.

Eastman on the Jurisdictional Reach of Federal Treaties in Domestic Criminal Cases

John C. Eastman (Chapman University - School of Law) has posted Will Mrs. Bond Topple Missouri v. Holland? (Cato Supreme Court Review, Vol. 185, 2011) on SSRN. Here is the abstract:

Carol Anne Bond assaulted her former best friend with some chemicals she took from her workplace when she discovered the former friend was carrying her husband's baby. She was prosecuted not by the local district attorney for the simple assault, but by the U.S. Attorney for violating the federal statute that implements the international treaty against the use of chemical weapons. Mrs. Bond claimed that the federal statute under which she was convicted was an unconstitutional overreach of federal power, intruding into areas of core state sovereignty. The Third Circuit held that Mrs. Bond did not even have standing to raise that constitutional challenge. The U.S. Surpreme Court unanimously reversed. This article explores both the Supreme Court's jurisdictional holding and the merits of Mrs. Bond's constitutional challenge that will now be considered on remand to the lower courts. Essentially, the issue is whether the federal government can expand its own constitutional powers by use of the Treaty Clause, and this Article argues that it cannot.

Lipton on the Criminal Liability and Property Rights of the Corporate Person in the Wake of Citizens United

Daniel Lipton has posted Corporate Capacity for Crime and Politics: Defining Corporate Personhood at the Turn of the Twentieth Century (Virginia Law Review, Vol. 96, 2010) on SSRN. Here is the abstract:

Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial entity theory were foundational doctrines in early twentieth century corporate law as applied by American courts, and uses corporate crime and politics as a platform for debunking that myth.

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Kuzma on the Distinctions Between U.S. Military and State Victim Compensation Programs

Margaret Rose Kuzma has posted Taking Care of its Own: Comparing the United States Military's Transitional Compensation Program with State Victim Compensation Programs (DePaul Journal of Women, Gender & the Law, Vol. 1, p. 77, 2011) on SSRN. Here is the abstract:

The U.S. Army prides itself on its commitment to “take care of its own.” This ethos signifies that service members and their families all comprise a larger “Army Family,” in which members protect one another. Accordingly, a service member’s family is as much a part of the “Military Family” as the service member. But how does this ethical standard endure when the service member is committing acts of domestic violence against his family? In 1994, part of the National Defense Authorization Act implemented a program through which the military continues to pay a former service member’s dependents if he is discharged from the military for domestic abuse. How does this compensation program measure up to states’ efforts to compensate victims of crimes? By detailing the specifics of the military’s Transitional Compensation program and by taking a broad look at state victim compensation programs, this article sets out to investigate who takes better care of whom, and whether the two systems can learn from each other.

West on Post-verdict Evidence of Juror Bias

Jessica L. West (Vermont Law School) has posted 12 Racist Men: Post-Verdict Evidence of Juror Bias (Harvard Journal of Racial & Ethnic Justice, Vol. 27, p. 165, 2011) on SSRN. Here is the abstract:

Federal Evidence Rule 606(b) and similar state rules prohibit post-verdict admission of juror statements, including racist or biased remarks, made during deliberations. The roots of the evidentiary prohibition are historically deep and the interests underlying the Rule implicate the very existence of the jury system. Constitutionality of the post-verdict evidentiary exclusion is based upon the presumption that pre-trial and trial mechanisms exist to discern juror bias prior to deliberations. Empirical studies and recent cases indicate, however, that these mechanisms do not currently operate to adequately expose or remove juror biases. This article argues that the expansion of these mechanisms, including more diverse jury venires, more robust and effective juror voir dire, less discretion for parties to remove jurors on the basis of race, and the development of jury admonitions directly addressing bias, will reduce juror expressions of bias during deliberations.

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Walker on Rethinking the Frameworks of the Model Penal Code and Common Law

Anders Walker (Saint Louis University School of Law) has posted The New Common Law: Courts, Culture, and the Localization of the Model Penal Code (Hastings Law Journal, Vol. 62, No. 6, 2011) on SSRN. Here is the abstract:

Few tropes in American law teaching are more firmly entrenched than the criminal law division between Model Penal Code and common law states. Yet, even a cursory look at current state codes indicates that this bifurcation is outmoded. No state continues to cling to ancient English common law, nor does any state adhere fully to the Model Penal Code. In fact, those states that adopted portions of the Code have since produced a substantial body of case law – what this article terms “new common law” – transforming it. Taking the controversial position that criminal law pedagogy is antiquated, this article proposes a radical update, emphasizing two objectives: 1) the need to stress the interplay between individual state cases and codes, and 2) the need to abandon the position that the MPC represents a bold new vision of criminal law reform, particularly since that vision is itself almost half a century old.

Taussig-Rubbo on the Nature of the Death Penalty

Mateo Taussig-Rubbo (University at Buffalo Law School, SUNY) has posted The Unsacrificeable Subject? (Who Deserves to Die?, p. 131, Austin Sarat & Karl Shoemaker, eds., University of Massachusetts Press) on SSRN. Here is the abstract:

Formalized, legalized and ritualized killing by political and religious authorities has been central to the maintenance, transformation and regeneration of a vast range of human societies. Whether the destruction was of human beings, other animals or vegetable life, these actions were very often forms of sacrifice to sovereign powers conceived of as partial outsiders to whom/which offerings could be made. Sacrifice mediated between sovereign and subject.

The rejection of sacrificial action is at the heart of many conceptions of political modernity (for instance those of Rene Girard and Giorgio Agamben). My essay reflects on whether these forms of action and meaning have resonance with the role of the death penalty in contemporary states, or whether the points of similarity are superficial and overwhelmed by the many obvious differences. Can thinking about sacrifice offer insight into the continued support for the death penalty in the United States, China and many other nations and its rejection in Western Europe?

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Broughton on States' Interests in Criminal Prosecution Versus Competing Federal Interests

J. Richard Broughton (University of Detroit Mercy School of Law) has posted Federalism, Harm, and the Politics of Leal v. Texas (Syracuse Law Review, Forthcoming) on SSRN. Here is the abstract:

Humberto Leal Garcia, a Mexican national who had lived in the United States since the age of two, was convicted and sentenced to death in Texas for brutally raping and killing sixteen-year-old Adria Sauceda in 1994. In 2011, he asked the United States Supreme Court to stay his execution because Texas officials had not given him access to the Mexican Consulate, in violation of an international treaty. His case ignited a brief but powerful storm of controversy that went beyond his legal claims and ventured into the arena of politics, placing even some conservative instincts about constitutional politics at odds with each other – notably, presidential claims of American foreign policy interests against federalism-based claims about the ability of States to administer their own criminal justice system without federal interference. In this short article, I endeavor to explain why, although the President’s political claims were legitimate, the Court’s ultimate decision to deny Leal relief correctly rejected reliance on a hypothetical legislative enactment and properly weighed the competing assertions of harm by vindicating the strength of the State’s capital prosecution. The weight of the guilt and punishment phase evidence proved significant, even in light of the asserted federal interests, and consular access would not have altered the outcome of Leal’s trial or sentencing. This weighing of the competing harms is consistent with both the pending legislation upon which Leal relied and with existing jurisprudence that protects State criminal law authority and interests.

Kirk, Papchristos, Fagan, and Tyler on the Conflict Between Criminal Law Enforcement and Immigration Law

David Kirk, Andrew V. Papachristos, Jeffrey Fagan (Columbia Law School, pictured) and Tom Tyler (New York University - School of Law) have posted The Paradox of Law Enforcement in Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety? (Columbia Public Law Research Paper No. 11-281) on SSRN. Here is the abstract:

Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities - even law abiding, cooperative individuals - from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that laws are enforced fairly. In contrast, research reveals that cynicism of the police and the legal system undermines individuals’ willingness to cooperate with the police and engage in the collective actions necessary to socially control crime. By implication, recent trends toward strict local enforcement of immigration laws may actually undercut public safety by creating a cynicism of the law in immigrant communities. Using data from a 2002 survey of New York City residents, this study explores the implications of perceived injustices perpetrated by the criminal justice system for resident willingness to cooperate with the police in immigrant communities.

Casebeer on the Criminalization of Organized Labor

Kenneth M. Casebeer (University of Miami - School of Law) has posted 'The Law is a Gun Thug in a Big Automobile': Criminalizing Labor in American History (University of Miami Legal Studies Research Paper No. 2011-30) on SSRN. Here is the abstract:

As documented in the newly published book - Kenneth Casebeer, American Labor Struggles and Law Histories - criminal law has been continually deployed to discourage or destroy collective action. Prosecuting cartage haulers in the 1760's, criminal conspiracy in early journeymen strikes, Police riot and martyrdom at Haymarket, Debs' contempt incarceration, trespass, murder prosecution in Gastonia, and in Elaine, Arkansas, Vagrancy in Free Speech fights, the Bisbee Deportation, arrests in steel, the Chicago Memorial Day Massacre, arrests and kangaroo trials on the Docks, outlawing the sit-downs and mutiny for sit-downs on ships in ports. Labor organization has always been some kind of crime in America and thus a critical lever of economic inequality and suppressing mobilization against it.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	594	Self-Defense Larry Alexander, University of San Diego School of Law, Date posted to database: September 8, 2011
2	348	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
3	240	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
4	234	Tangled Up in Law: The Jurisprudence of Bob Dylan Michael L. Perlin, New York Law School, Date posted to database: September 1, 2011
5	210	Moral Grammar and Human Rights: Some Reflections on Cognitive Science and Enlightenment Rationalism John Mikhail, Georgetown University - Law Center, Date posted to database: September 9, 2011 [6th last week]
6	209	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 [5th last week]
7	186	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
8	173	The Evolution of Unconstitutionality in Sex Offender Registration Laws Catherine L. Carpenter, Southwestern Law School, Date posted to database: August 25, 2011 [9th last week]
9	166	The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences Jessica Tillipman, The George Washington University Law School, Date posted to database: September 8, 2011 [10thlast week]
10	159	The Geography of the Death Penalty and its Ramifications Robert J. Smith, Robert J. Smith, The Charles Hamilton Houston Institute for Race and Justice , DePaul University College of Law, Date posted to database: August 23, 2011 [new to top ten]