CrimProf Blog

Taslitz on the Reciprocal Responsibility of Corporations to Accept Criminal Liability under Citizens United v. Federal Election Commission

Andrew E. Taslitz (Howard University - School of Law) has posted Reciprocity and the Criminal Responsibility of Corporations (Stetson Law Review, Vol. 41, 2011) on SSRN. Here is the abstract:

In Citizens United, the United States Supreme Court held that, at least for many purposes, corporations are people too. This brief essay argues that principles of reciprocity, rooted in moral theory and social science, require, in exchange for the benefits the Court has granted, corporations to accept the burdens of criminal responsibility.

Transcript from argument on coordination of state and federal sentences

The transcript in Setser v. United States is here.

"Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity"

From Orin Kerr at The Volokh Conspiracy. Bottom line:

I think the Supreme Court should reverse the Ninth Circuit because the Ninth Circuit misapplied the well-established qualified immunity standard. The error in the warrant was hardly glaring: It was actually a rather subtle error. So I think the Court should reverse and hold that qualified immunity should attach. At the same time, I don’t think the Court should depart from the well-established qualified immunity standard in this case.

 

Godsey and Alou on the "Reverse CSI-Effect" on Jurors Who May Incorrectly Choose Conviction in Criminal Trials

Mark Godsey (University of Cincinnati College of Law, pictured) and Marie Alou have posted She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect' (Texas Weleyan Law Review, Vol. 17, No. 4, 2011) on SSRN. Here is the abstract:

Prosecutors in the United States are often heard to complain these days of the "CSI-effect.'' Jurors today, the theory goes, have become spoiled as a result of the proliferation of these "high-tech" forensic shows, and now unrealistically expect conclusive scientific proof of guilt before they will convict. What I have come to notice, however, is a different kind a reverberation from the CSI-type shows that I believe often hurts defendants and benefits the prosecution. While not reported or discussed in the popular media as is the "CSI Effect," the other side of the coin, which I will call the "Reverse CSI Effect:' may be more damaging to the criminal justice system and the interests of justice than the opposite impact of which prosecutors complain. The "Reverse CSI Effect," as I call it, can be stated as follows: while jurors may have come to expect, as a result of CSI-type shows, high-tech forensic testimony in criminal cases, and may inappropriately acquit when such evidence is lacking, these same jurors, as a result of these same CSI-type shows, often place too much weight on forensic evidence in cases where forensic evidence IS in fact produced by the prosecution, resulting in convictions in cases where the defendant probably should have been acquitted.

"Jackson’s Doctor Is Sentenced to Four Years"

From the New York Times:

LOS ANGELES — Dr. Conrad Murray, the physician convicted of involuntary manslaughter in the 2009 death of Michael Jackson, was sentenced to four years, the maximum he was facing, though how many days he will actually spend behind bars remains unclear. The sentencing comes three weeks after a jury found Dr. Murray guilty.

. . .

Steve Whitmore, a spokesman for Sheriff Leroy D. Baca of Los Angeles County, said that same law required that the sentence be reduced by half for good behavior. Dr. Murray will also receive credit for the several weeks he has already spent in jail. Mr. Whitmore said Sheriff Baca would require that Mr. Murray serve the full time remaining. But the impact of the new state laws is still unclear.

Rabinowitz on the Incongruity Between Sentencing in Criminal Intellectual Property Cases and the United States Sentencing Guidelines

Aaron B. Rabinowitz has posted Post-Booker Judicial Discretion and Sentencing Trends in Criminal Intellectual Property Cases: Empirical Analysis and Societal Implications on SSRN. Here is the abstract:

As a result of the Supreme Court’s 2005 decision in Booker v. United States that rendered the United States Sentencing Commission’s Sentencing Guidelines non-mandatory, district courts now enjoy significant discretion in determining the appropriate sentence for convicted offenders and can. Based on data for federal sentencing cases from 1997-2011, this article presents an empirical analysis of how the Booker decision has changed the way in which district courts imposes sentences on offenders convicted of intellectual property crimes, as well as a discussion of how sentences imposed on intellectual property offenders reflect more societal views of intellectual property crimes in general.

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Forman and Domenici on Connecting Juvenile Justice and Education Reform

James Forman Jr. (Yale University - Law School, pictured) and David Domenici have posted What it Takes to Transform a School Inside a Juvenile Facility: The Story of the Maya Angelou Academy (Justice for Kids: Keeping Kids Out of the Juvenile Justice System, Nancy Dowd, ed., NYU Press, 2011) on SSRN. Here is the abstract:

The inadequate state of education in juvenile and adult correctional facilities is well-documented. Stories of failure and neglect abound. Success stories, by contrast, are rare. In this Article, we describe the successful transformation of the school inside Washington D.C.’s juvenile detention facility. In so doing, we argue that schools in detention facilities remain inadequate in part because the education and juvenile justice reform movements are disconnected from each other. Education reformers doubt that techniques that have proven successful in schools in the community will work in a correctional setting. Juvenile justice advocates, especially in recent years, have focused on reducing the number of children who are locked up, rather than with developing quality schools for those who remain behind bars. Both groups, we argue, should expand their vision. We use Washington D.C.’s transformation to suggest that, if they do, significant reform is possible.

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

• Hill v. United States: Whether the Fair Sentencing Act of 2010 applies in an initial sentencing proceeding that takes place on or after the statute’s effective date if the offense occurred before that date.
• Vasquez v. United States: Whether the Seventh Circuit violated this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury; and (2) whether the Seventh Circuit violated Mr. Vasquez's Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case.
• Southern Union Company v. United States: Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	271	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 [2nd last week]
2	247	A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights Christopher R. Green, University of Mississippi - School of Law, Date posted to database: October 20, 2011 [3rd last week]
3	162	Foreign Corrupt Practices Act Fundamentals Jessica Tillipman, The George Washington University Law School, Date posted to database: September 6, 2011 [6th last week]
4	155	Regulation for the Sake of Appearance University of Chicago - Law School, Date posted to database: October 13, 2011 [8th last week]
5	152	Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis Wouter P. J. Wils, European Commission, Date posted to database: November 9, 2011 [9th last week]
6	126	The Individual Risk Assessment of Terrorism John Monahan, University of Virginia School of Law, Date posted to database: September 20, 2011 [10th last week]
7	122	Marriage as Punishment Melissa E. Murray, University of California, Berkeley - School of Law, Date posted to database: November 2, 2011 [new to top ten]
8	116	Recalibrating Constitutional Innocence Protection Robert J. Smith, Robert J. Smith, The Charles Hamilton Houston Institute for Race and Justice , DePaul University College of Law, Date posted to database: September 20, 2011 [new to top ten]
9	116	Practicing Proportionality William W. Berry, University of Mississippi School of Law, Date posted to database: September 3, 2011 [new to top ten]
10	114	Aggression and Legality: Custom in Kampala Marko Milanovic, University of Nottingham School of Law, Date posted to database: September 12, 2011 [new to top ten]

Next week's criminal law/procedure oral argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

• Setser v. U.S.: Whether the district court erred by directing that petitioner's federal sentence be served consecutively to a state sentence that had not yet been imposed.

Maddali on Recognizing the Punitive Nature of Deportations and the Need for Procedural Protections under Padilla v. Kentucky

Anita Ortiz Maddali (Northern Illinois University College of Law) has posted Padilla v. Kentucky: A New Chapter in Supreme Court Jurisprudence on Whether Deportation Constitutes Punishment for Lawful Permanent Residents? (American University Law Review, Vol. 61, No. 1, 2011) on SSRN. Here is the abstract:

In this Article, I argue that the deportation of lawful permanent residents on account of a criminal conviction is punitive, and therefore enhanced constitutional protections must be afforded to lawful permanent residents during removal proceedings. To support this argument I rely, in part, on the Supreme Court’s recent decision in Padilla v. Kentucky. The Padilla Court held that counsel must inform a client when a plea carries the risk of deportation. The Court’s analysis throughout the decision is groundbreaking in its recognition of the modern day realities of deportation - specifically the growing relationship between the immigration and criminal justice systems and the ways in which criminal convictions and deportation have become enmeshed over the years. The Court’s language provides support for the argument that deportation may not be a remedial exercise by the government to enforce immigration laws - as the Court has held for over a century - but may in fact constitute punishment. If deportation is recognized as punishment, then additional constitutional protections, like the right to counsel, must be afforded to lawful permanent residents who are in removal proceedings on account of criminal convictions.

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"Hate crime charges filed in Amish beard cutting"

From CNN.com. A little different from your typical hate crime--it seems the attacks were not motivated by the Amish status of the victims (unless the theory is that they held to the wrong strand of Amish views), but that the form of the attack too advantage of the special significance of beard cutting to Amish men:

(CNN) -- Seven members of a breakaway Amish group in eastern Ohio were arrested on federal hate crime charges for allegedly shaving the beards and cutting the hair of individuals who refused to support their leader, according to a criminal complaint released Wednesday.

. . .

The men charged are said to have carried out "a series of assaults against fellow Amish individuals with whom they were having a religiously based dispute," according to the Justice Department.

The Amish who were attacked are believed to be former members of Mullet's group who left over various disagreements. Mullet wanted to "seek revenge and punish the departing families," the federal documents said

Tetelbaum on Incentives for Post-Conviction Relief for the Wrongly Convicted

Elina Tetelbaum has posted Remedying a Lose-Lose Situation: How 'No Win, No Fee' Can Incentivize Post-Conviction Relief for the Wrongly Convicted (Connecticut Public Interest Law Journal, Vol. 9, No. 2, p. 301, 2010) on SSRN.  Here is the abstract:  

This Article proposes a policy measure that will likely lead to an increase in exonerations by creating economic incentives for attorneys to represent clients post-conviction.

Slobogin on Indeterminate Sentencing

Christopher Slobogin (Vanderbilt Law School) has posted Prevention as the Primary Goal of Sentencing: The Modern Case for Indeterminate Dispositions in Criminal Cases (San Diego Law Review, Vol. 48, 2011) on SSRN.  Here is the abstract: 

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and the optimal regime for doing so. More specifically, the position defended in this Article is that, once a person is convicted of such an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within very broad ranges set by the legislature. The territory covered in this Article, particularly as it addresses the debate between deontological retributivists and utilitarians, is well-trodden. But this Article seeks to provide new perspectives on the morality, legality, and practicality of indeterminate sentencing. It starts with an outline of what a properly constituted indeterminate sentencing regime would look like. It then defends this regime against numerous objections.

Minzner on Comparing Administrative Agency Punishment with Criminal Punishment

Max Minzner (University of New Mexico School of Law) has posted Why Agencies Punish (William & Mary Law Review, Vol. 53, 2012) on SSRN. Here is the abstract:

In addition to promulgating regulations, federal administrative agencies penalize entities that violate their rules. In 2010 alone, the National Highway Traffic Safety Administration imposed a statutory maximum $16.4 million penalty on Toyota and the Securities and Exchange Commission recovered $535 million from Goldman Sachs, the largest civil penalty a financial services firm has ever paid. The academic literature proposes two major theories explaining why agencies might seek these monetary penalties. First, agencies might seek to deter misconduct by using civil penalties to raise the expected cost of regulatory violations above the cost of compliance. Alternatively, agencies might use civil penalties as one step in an escalating series of enforcement responses to recalcitrant behavior by a regulated entity. Both of these theories assume that agencies punish in order to induce compliance with agency regulations. In the language of the criminal law, agencies are assumed to be consequentialists. Agency descriptions of their penalty policies support this assumption. Agencies claim to focus on deterrence, not retribution, when setting penalties.

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Bowers and Robinson on Legitimacy and Moral Credibility in the Criminal Justice System

Josh Bowers (University of Virginia School of Law, pictured) and Paul H. Robinson (University of Pennsylvania Law School) have posted Perceptions of Fairness and Justice: The Shared Aims & Occasional Conflicts of Legitimacy and Moral Credibility on SSRN. Here is the abstract:

A growing literature on procedural fairness suggests that there is practical value in enhancing a criminal justice system's "legitimacy" with the community it governs by adopting and implementing fair enforcement practices and adjudicative procedures. A separate literature suggests that there is practical value in enhancing the system's "moral credibility" with the community by distributing criminal liability and punishment according to principles that track the community's shared intuitions of justice. In this Article, we examine the shared aims and the similarities in the operation and effect of these two criminal justice dynamics as well as the occasional differences in effect and potential for conflict. By comparing the two dynamics, the article moves forward debates that – though rich and important – have grown stagnant. Specifically, legal scholars have tended to invoke the two dynamics too casually, to ignore one but not the other, or to conflate or confuse the two.

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Kinports on Feminist Prosecutors Fighting Domestic Violence Cases

Kit Kinports (The Pennsylvania State University) has posted Feminist Prosecutors and Patriarchal States (Criminal Law & Philosophy) on SSRN.  Here is the abstract: 

In Prosecuting Domestic Violence: A Philosophical Analysis, Michelle Dempsey focuses on the dilemma prosecutors face when domestic violence victims are unwilling to cooperate in the criminal prosecution of their abusive partners. Starting from the premise that the ultimate goal should be putting an end to domestic violence, Dempsey urges prosecutors to act as feminists in deciding how to proceed in such cases. Doing so, Dempsey argues, will tend to make the character of the prosecutor’s community and state less patriarchal and thus help stamp out domestic violence. This article analyzes two issues arising from Dempsey’s work: first, whether prosecutors can justifiably be viewed as representatives of their states and communities; and, second, how prosecutors committed to using their discretion to battle both domestic violence and patriarchy would go about determining in a particular case whether to pursue criminal charges against the wishes of a victim.

Rushin on the Judicial Response to Advanced Police Mass Surveillance

Stephen Rushin has posted The Judicial Response to Mass Police Surveillance (University of Illinois Journal of Law, Technology & Policy, Forthcoming) on SSRN. Here is the abstract:

The increasingly widespread use of police technologies like surveillance cameras, facial recognition software, and automatic license plate recognition (ALPR) systems threaten to fundamentally reshape our expectations to privacy in public spaces. These technologies are capable of recording copious amounts of personal data in an unprecedentedly efficient manner; I refer to the proliferation of these new technologies as the development of the digitally efficient investigative state. The legislative branch has not acted to address the tangible harms posed by this new technological order. I argue that the courts ought to respond to this burgeoning threat by treading a new doctrinal path to limit the indiscriminate collection of personal data. The courts are institutionally competent to craft an appropriate response and properly positioned to address the unique majoritarian concerns implicated by widespread police surveillance. I also contend that the development of the digitally efficient investigative state should serve as a medium for the courts to more systematically reassess our Fourth Amendment doctrine, in recognition of the transformative and pervasive effects of emerging technologies on individual privacy.

Harmon on Moving Beyond the Conventional Paradigm of Constitutional Law in Regulating Police Procedure

Rachel Harmon (University of Virginia School of Law) has posted The Problem of Policing (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police.

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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	374	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 [2nd two weeks ago]
2	264	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 [4th previously]
3	244	A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights Christopher R. Green, University of Mississippi - School of Law, Date posted to database: October 20, 2011 [new to top ten]
4	205	The Evolution of Unconstitutionality in Sex Offender Registration Laws Catherine L. Carpenter, Southwestern Law School, Date posted to database: August 25, 2011 [9th previously]
5	191	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 [10th previously]
6	159	Foreign Corrupt Practices Act Fundamentals Jessica Tillipman, The George Washington University Law School, Date posted to database: September 6, 2011 [new to top ten]
7	151	The Ballot as a Bulwark: The Impact of Felony Disenfranchisement on Recidivism Guy Padraic Hamilton-Smith, Matthew Vogel, Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: August 31, 2011 [new to top ten]
8	145	Regulation for the Sake of Appearance University of Chicago - Law School, Date posted to database: October 13, 2011 [new to top ten]
9	137	Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis Wouter P. J. Wils, European Commission, Date posted to database: November 9, 2011 [new to top ten]
10	125	The Individual Risk Assessment of Terrorism John Monahan, University of Virginia School of Law, Date posted to database: September 20, 2011 [new to top ten]