CrimProf Blog

Featured download: Dripps on Digital Evidence and the History of Private "Papers" as Special Objects of Search and Seizure

My colleage, Donald A. Dripps, has posted a piece that should interest originalists and nonoriginalists alike:
'Dearest Property': Digital Evidence and the History of Private 'Papers' as Special Objects of Search and Seizure. Highly recommended. Here is the abstract:

Why does the Fourth Amendment distinctly mention “papers” as well as “effects”? Why should we care? This Article suggests that we should care because modern doctrine’s equation of “papers” with other “effects” produces increasingly disturbing results in an age of dense concentrations of intimate personal information stored on small, portable devices like cell phones and flash drives. The Fourth Amendment says “papers” because the founders perceived the seizure of papers as a grave abuse distinct from the abuse of general warrants or writs of assistance. The evidence for this claim is traced from the 1760’s through the famous but largely unstudied Supreme Court decision in Boyd v. United States in 1884. The evidence suggests that the modern equation of “papers” with “effects” conflicts with both the text and original understanding of the text. The Article also suggests that Boyd’s per se prohibition of seizing papers solely for use as evidence, while not historically implausible, is not historically inevitable either. History has left the door open to the imposition of structural safeguards on the collection of documentary evidence, including digital evidence, so long as those safeguards prevent the indiscriminate, expropriating, unregulated and inquisitorial seizures that were justly condemned at the founding.

KC

Former Louisiana Supreme Court Chief Justice Calls For Reform

From the Times-Picayune, this piece by former Louisianna Chief Justice Pascal F. Calogero, Jr. "The problem," writes Calogero, "is not rogue prosecutors; it's a system that heavily incentivizes the winning of convictions at any cost, and provides no penalty for breaking the rules." The remedy, writes Chief Justice Calogero, is legislative. Advocating reforms to the discovery phase of the criminal trial process, Calogero supports making open file discovery a mandated statewide practice. Calogero also suggests that the legislature limit the use of snitch testimony, particularly in capital cases, and disclose all deals. Calogero writes, "jailhouse testimony is a commodity on an unregulated market, where prosecutors are encouraged to secure the least reliable evidence from individuals with the greatest incentive to lie." 

Levine on Criminal Confessions and Jewish Law and Legal Theory

Samuel J. Levine (Touro Law Center) has posted Rethinking Self-Incrimination, Voluntariness, and Coercion, Through a Perspective of Jewish Law and Legal Theory (Journal of Law in Society, Vol. 12, p. 72, 2011) on SSRN. Here is the abstract:

This essay briefly explores the relevance of Jewish law and legal theory in an analysis of the American law of criminal confessions.

Scott-Hayward on the Failure of Parole

Christine S. Scott-Hayward (Columbia Law School) has posted The Failure of Parole: Rethinking the Role of the State in Reentry (New Mexico Law Review, Vol. 41, No. 2, Fall 2011) on SSRN. Here is the abstract:

In this paper, I analyze the effect of parole on reentry and challenge the dominant governmental approach to post-release reentry. One of the features of current reentry policy is that many states rely on their parole or post-prison supervision agencies to provide post-release reentry services. In the paper, I argue that the changing nature of parole supervision over the last forty years, specifically the shift from a casework approach to a surveillance approach, should lead policymakers to rethink this approach. Relying on interviews I conducted with people on parole in New York City as well as prior research on parole outcomes, I examine the effect of parole on reentry. Jeremy Travis has argued that reentry has two goals — promoting public safety and promoting reintegration of former prisoners. I conclude that parole fails at both of these goals and in fact can sometimes hinder the reentry process. Accordingly, I argue that parole agencies should not be providing post-release reentry services and suggest an alternative approach for states to consider. In particular, I suggest that reentry outcomes could be improved by separating the surveillance and monitoring aspects of parole from its reentry aspects.

Brown on Federal Mens Rea Interpretation and the Limits of Culpability's Relevance

Darryl K. Brown (University of Virginia School of Law) has posted Federal Mens Rea Interpretation and the Limits of Culpability’s Relevance (Law and Contemporary Problems, Spring 2012) on SSRN. Here is the abstract:

This article examines recent trends in judicial interpretation of mens rea requirements in federal crimes. Strict liability as to some elements of offenses is widespread, and sometimes non-controversial. Yet courts lack reliable interpretive practices to determine which elements do not carry mens rea requirements in accord both with congressional intent and criminal law’s normative commitments to culpability as a prerequisite for punishment In a survey of recent federal court decisions, I identify two competing understandings of the culpability required to justify criminal punishment, especially with regard to distinctions in punishment between less and more serious wrongdoing.

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Argument transcript in case under Torture Victim Protection Act

The transcript in Mohamad v. Palestinian Authority is here.

Haque on Criminal Justice and Political Legitimacy

Adil Ahmad Haque (Rutgers, The State University of New Jersey - School of Law-Newark) has posted The Revolution and the Criminal Law (Criminal Law and Philosophy, Vol. 6, 2012) on SSRN. Here is the abstract:

Egyptians had many reasons to overthrow the government of Hosni Mubarak, and have many reasons to challenge the legitimacy of the interim military government. Strikingly, among the leading reasons for the uprising and for continued protest are reasons grounded in criminal justice. Reflection on this dimension of the Egyptian uprising invites a broader examination of the relationship between criminal justice and political legitimacy.

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Walker on Theatres of Procedure

Anders Walker (Saint Louis University School of Law) has posted Theatres of Procedure on SSRN. Here is the abstract:

This article explodes standard interpretations of the exclusionary rule, relying on archival sources to demonstrate that the Warren Court’s incorporation of the rule to the states did not professionalize police so much as worsen their conduct, increasing tensions between beat patrolmen and racial minorities. By the mid-sixties, such tensions escalated to the point that both white police and black activists derided the Court’s criminal procedure revolution as an effort not to ameliorate inequality so much as to contain the poor in urban ghettos. Rather than counter this charge, the Court proceeded to turn against urban protesters, upholding the convictions of a string of black demonstrators including national civil rights leaders like Martin Luther King, Jr. By 1968, such cases provided an odd corollary to the Court’s criminal procedure decisions, pointing to a little recognized drama of control aimed not at helping minorities so much as containing radical protest in the United States.

Transcript from argument on timeliness of habeas petition

The transcript from Wood v. Milyard is here.

Richman on White Collar Sentencing

Daniel C. Richman (Columbia Law School) has posted Federal White Collar Sentencing in the United States – A Work in Progress on SSRN. Here is the abstract:

Between 1980 and today, the US federal system has struggled to deal with the challenges of sentencing the relatively small number of defendants I shall loosely call “high-end” white collar offenders. After briefly sketching out this story, I explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. While the precise nature of these institutional and procedural structures is jurisdiction specific, I hope to highlight the need to consider such structures when devising an optimal (or, even second-best) sentencing regime.

Mungan & Klick on Forfeiture of Illegal Gains and Implied Risk Preference

Murat C. Mungan and Jonathan Klick (pictured)(Florida State University - College of Law and University of Pennsylvania Law School) have posted Forfeiture of Illegal Gains and Implied Risk Preferences on SSRN. Here is the abstract:

In the law enforcement literature there is a presumption – supported by some empirical evidence – that criminals are more responsive to increases in the certainty than the severity of punishment. This, under a general set of assumptions, implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains is considered. Therefore, when drawing inferences concerning offenders’ risk attitudes based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited.

Leary on Mandatory Minimums in Child Pornography Cases

Mary Leary (Catholic University of America) has posted Judicial Challenges to Mandatory Minimum Sentences: A New Frontier in the Debate Over Child Pornography Sentencing? (Sex Offender Law Report, Vol. 13, No. 1, 2012) on SSRN. Here is the abstract:

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit less serious child pornography offenses as compared to producers or distributers) may be sentenced near the statutory maximum. This has caused some judges to inquire into the rationality of guidelines which they argue place even the less culpable offenders at the level of punishment reserved for the most serious of offenders.

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Conference on Crime and Justice in America, 1975-2025

The conference, sponsored by the Robina Institute of Criminal Law and Justice at the University of Minnesota Law School, will be held April 26. Information on the program and registration can be found here.

Williams on the Supreme Court's Death Penalty Jurisprudence

Kenneth Williams (South Texas College of Law) has published Most Deserving of Death? An Analysis of the Supreme Court's Death Penalty Jurisprudence (Ashgate 2012). Here is a brief summary:

     The American criminal justice system is acknowledged as a model for criminal procedure worldwide.  The death penalty, however, is one of its biggest flaws.  How did we end up with a system that both proponents and opponents of the death penalty would agree has become dysfunctional?  It is the thesis of this book that the United States Supreme Court, through its inconsistent and often incoherent jurisprudence, bears primary responsibility.  In 1976, the Court began an endeavor to limit the death penalty to the worst offenders.  Despite the Court's attempts to limit the death penalty, the manner in which it is meted out is no fairer now than when the Court first began this endeavor.  The death penalty continues to be fraught with arbitrariness and racial discrimination.  There remains no logical way to separate the cases of those who end up on death row from those who do not.  Using case studies, the book examines issues such as jury selection, ineffective assistance of counsel, the role of race, claims of innocence and international treaties and their lack of impact on capital punishment. 

Steiker & Steiker on Capital Punishment and Discontinuous Debate

Carol S. Steiker and Jordan M. Steiker (pictured)(Harvard Law School and University of Texas School of Law) have posted Capital Punishment: A Century of Discontinuous Debate (Journal of Criminal Law and Criminology, Vol. 100, No. 3, p. 643, 2010) on SSRN. Here is the abstract:

This essay challenges the easy (because partially true) assumption that there is nothing new under the sun in death penalty discourse. Rather, debates about capital punishment have been as much discontinuous as continuous over the past century. Some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades, despite the fact that they cared deeply about the issue of capital punishment in their own times. This essay describes two “lost” arguments from the past in favor of retention of capital punishment: the contention that capital punishment was a necessary antidote to extrajudicial lynchings and the defense of capital punishment as part of a larger program of eugenics endorsed by many progressive leaders of the late nineteenth and early twentieth centuries. The essay also explores two “new” abolitionist arguments from the present: the fiscal argument about the greater cost of capital punishment even in comparison to life imprisonment and the concerns raised about the suffering of those awaiting execution for lengthy periods (the so-called “Death Row Phenomenon”). Death penalty discourse has not been as static as is often assumed, and the debates of each era provide a window onto both the nature of the actual practice of the death penalty in different times and the broader social contexts in which that practice has operated.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	386	Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms Charles D. Weisselberg, Su Li, University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society, Date posted to database: January 11, 2012
2	366	The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France Brett Danaher, Michael D. Smith, Rahul Telang, Siwen Chen, Wellesley College - Department of Economics, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management , Carnegie Mellon University - H. John Heinz III School of Public Policy and Management, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 22, 2012 [4th last week]
3	359	How Law Protects Dignity Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 17, 2011
4	348	Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences M. Marit Rehavi, Sonja B. Starr, University of British Columbia, University of Michigan Law School, Date posted to database: January 16, 2012 [2nd last week]
5	243	Revisiting a Foreign Corrupt Practices Act Compliance Defense Mike Koehler, Butler University College of Business, Date posted to database: January 11, 2012
6	197	Thoughts on the Corporation as a Person for Purposes of Corporate Criminal Liability Joan MacLeod Heminway, University of Tennessee College of Law, Date posted to database: January 31, 2012
7	191	Smooth and Bumpy Laws Adam J. Kolber, NYU School of Law, Date posted to database: January 27, 2012 [10th last week]
8	186	The Law and Economics of Fluctuating Criminal Tendencies Murat C. Mungan, Florida State University - College of Law, Date posted to database: January 19, 2012 [7th last week]
9	164	False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary Mark Godsey, University of Cincinnati College of Law, Date posted to database: January 12, 2012 [8th last week]
10	139	Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial Julia Grace Mirabella, Boston University School of Law, Date posted to database: January 8, 2012 [9th last week]

This week's criminal law/procedure oral arguments

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

Monday

• Wood v. Milyard: (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense; and (2) whether the state’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amounts to a deliberate waiver of any statute of limitations defense the state may have had.

Tuesday

• Mohamad v. Rajoub: Whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.

 

Osler on Trailing-Edge Guidelines

Mark William Osler (Univ. of St. Thomas (MN)) has posted The Promise of Trailing-Edge Guidelines to Resolve the Conflict between Uniformity and Judicial Discretion on SSRN. Here is the abstract:

Until the mid-1980’s, federal judges had broad discretion in sentencing defendants. However, this created disparities in sentencing from one judge to another, and this created a desire for much greater uniformity. This drive for uniformity resulted in a number of strict legislative measures, including mandatory minimum sentences and mandatory sentencing guidelines. Over time, the judiciary branch grabbed back some discretion (largely through the Supreme Court’s Booker decision in 2005, which made the sentencing guidelines advisory rather than mandatory), but this has resulting in a return to disparities.

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Siegel on Defense Counsel's Provision of Information Concerning Ineffective Assistance Claims

David M. Siegel (New England Law - Boston) has posted What (Can) (Should) (Must) Defense Counsel Withhold from The Prosecution in Ineffective Assistance of Counsel Proceedings? (The Champion, Vol. 18, No. 35, December 2011) on SSRN. Here is the abstract:

In July 2010 the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued an opinion that any criminal defense lawyer facing or bringing a claim of ineffective assistance of counsel (IAC), or any prosecutor defending one, should read. Formal Opinion 10-456, 'Disclosure of Information to Prosecutor When Lawyer’s Former Client Brings Ineffective Assistance of Counsel Claim,' answers the question implicit in its title, in short: Unless by express waiver of the former client after informed consent, no more than necessary to respond to the specific allegations, and then only in a formal proceeding that provides for judicial supervision. The opinion explains that voluntary disclosures outside formal proceedings are impermissible, and that the self-defense exception to the obligation to maintain confidentiality has very limited application in the post-conviction context. Critics have questioned the Opinion’s narrow interpretation of the self-defense exception, its claims that prosecutors face little prejudice from inability to receive information from defense counsel before a proceeding, and its assertion that defense lawyers have little justifiable need to make such advance disclosures. This short article outlines the opinion, describes developing jurisprudence concerning defense counsel’s cooperation with the prosecutor, and sets forth suggested practices for counsel facing allegations of IAC.

Levy on Dangerous Psychopaths

Ken Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Dangerous Psychopaths: Criminally Responsible But Not Morally Responsible, Subject to Criminal Punishment and to Preventive Detention (San Diego Law Review, Vol. 48, p. 1299, 2011) on SSRN. Here is the abstract:

How should we judge psychopaths, both morally and in the criminal justice system? This Article will argue that psychopaths are often not morally responsible for their bad acts simply because they cannot understand, and therefore be guided by, moral reasons.

Scholars and lawyers who endorse the same conclusion automatically tend to infer from this premise that psychopaths should not be held criminally punishable for their criminal acts. These scholars and lawyers are making this assumption (that just criminal punishment requires moral responsibility) on the basis of one of two deeper assumptions: that either criminal punishment directly requires moral responsibility or criminal punishment requires criminal responsibility, which itself requires moral responsibility. I will argue, however, that the virtually universal assumption that just criminal punishment requires moral responsibility - whether or not through the middle term of criminal responsibility - is false; that although psychopaths are not morally responsible, they are still criminally responsible and criminally punishable.

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