CrimProf Blog

Starger on Stare Decisis and Criminal Due Process Doctrine

Colin P. Starger (University of Baltimore School of Law) has posted Expanding Stare Decisis (Loyola of Los Angeles Law Review, Vol. 46, (2012 Forthcoming)) on SSRN. Here is the abstract:

Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

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Serafino on Animal Cruelty Statutes, Double Jeopardy, and Prosecutorial Discretion

Laurie Serafino (Pepperdine University School of Law) has posted No Walk in the Dog Park: Drafting Animal Cruelty Statutes to Resolve Double Jeopardy Concerns and Eliminate Unfettered Prosecutorial Discretion (Tennessee Law Review, Vol. 78, 2012) on SSRN. Here is the abstract:

This article evaluates animal abuse and cruelty laws throughout the United States. It demonstrates that, although an emerging trend treats animals more like humans and less like property in some criminal cases and statutes, the laws of many states still adhere to the traditional view of animals as property, causing unique charging and sentencing issues that must be clarified in order to bring predictability and consistency to the law.

In the article, Professor Serafino explores the option of creating a new paradigm in this area, in which animals are treated as a hybrid category of "living property," "legal personhood," or some other type of entity entitled to equal protection, and in which animal cruelty statutes serve greater purposes than to protect property or enforce desirable moral character principles. She also discusses whether the injury of each and every animal can or should constitute a separate offense, and outlines the extent to which double jeopardy principles may apply to bar sentences on multiple counts. She argues that, by failing to legislate in this area, forty-one states have effectively allowed prosecutors unfettered discretion to charge defendants in these cases however they chose. Finally, she explores the challenges faced by courts and legislatures as they grapple with situations of abuse involving multiple animals, providing a comparative analysis of how this issue is being handled in various jurisdictions across the country.

AALS call for papers on Technology and Crime: The Future of the Fourth Amendment in Public

The announcement follows the jump.

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Today's criminal law/procedure cert grant

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

• Chaidez v. United States: Whether the Court’s decision in Padilla v. Kentucky, holding that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation, applies to persons whose convictions became final before its announcement.

Cohn on Racial Profiling and the Arizona Immigration Law

Marjorie Cohn (Thomas Jefferson School of Law) has posted Racial Profiling Legalized in Arizona (Columbia Journal of Race and Law, Vol. 1, No. 2, p. 168, 2012) on SSRN. Here is the abstract:

In 2010, Arizona enacted S.B. 1070, which legalizes racial profiling in that state, and effectively converts local law enforcement officials into de facto U.S. Immigration and Customs Enforcement officials. This article argues that the statute is unconstitutional because it violates the Fourth Amendment, is void for vagueness, and violates the Supremacy Clause. S.B. 1070 also suffers from practical deficiencies in that it will harm communities and increase harassment of Latinos. In addition, it runs afoul of universally recognized human rights. Other states have passed laws similar to S.B. 1070. The constitutionality of S.B. 1070 is currently pending before the U.S. Supreme Court, which will issue a decision by the end of its 2011-2012 term. The Court is reviewing an opinion by the U.S. Ninth Circuit Court of Appeals overturning some provisions of S.B. 1070 as violative of the Supremacy Clause.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	270	Implicit Bias in the Courtroom Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, University of Washington - Graduate Department of Psychology, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: March 21, 2012 [3rd last week]
2	267	SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice Deborah Tuerkheimer, DePaul University - College of Law, Date posted to database: February 22, 2012
3	267	The Mosaic Theory of the Fourth Amendment Orin S. Kerr, George Washington University - Law School, Date posted to database: April 3, 2012 [new to top ten]
4	253	Ensuring an Impartial Jury in the Age of Social Media Amy J. St. Eve, Michael A. Zuckerman, U.S. District Court Judge, U.S. District Court, Date posted to database: March 13, 2012 [5th last week]
5	250	Misdemeanors Alexandra Natapoff, Loyola Law School Los Angeles, Date posted to database: February 25, 2012 [4th last week]
6	230	The Delaware Death Penalty: An Empirical Study Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells, Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law, Date posted to database: March 11, 2012
7	112	American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William Stuntz Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: March 28, 2012 [new to top ten]
8	121	Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction) Stuart P. Green, Rutgers, The State University of New Jersey - School of Law-Newark, Date posted to database: March 23, 2012 [10th last week]
9	174	Prisons, Privatization, and the Elusive Employee-Contractor Distinction Alexander Volokh, Emory University - School of Law, Date posted to database: February 25, 2012 [7th last week]
10	127	What Percentage of DOJ FCPA Losses is Acceptable? Mike Koehler, Butler University College of Business, Date posted to database: March 23, 2012 [new to top ten]

 

Miller on Race, Authority, and the Fourth Amendment

Eric J. Miller (Saint Louis University - School of Law) has posted Detective Fiction: Race, Authority, and the Fourth Amendment (Arizona State Law Journal, Vol. 44, p. 214, 2012) on SSRN. Here is the abstract:

In this article, I break from the usual liberal critiques of modern policing, and instead attempt to lay the theoretical and practical groundwork for a positive vision of police authority. Liberal theories of policing rightly worry about police discretion or state coercion given the history of racially discriminatory policing. That emphasis tends to produce negative accounts of police authority that emphasize curtailing police discretion. Equally important, however, is to define the nature of legitimate police authority under the Fourth Amendment.

While Fourth Amendment doctrine is nominally about a citizen’s reasonable expectations of privacy, the Court’s current approach appears to equate the reasonableness of police conduct with evidence that, whatever the police actually do, they are professional, experienced, and well trained. The Courts’ reasonableness-as-professionalism doctrine is, however, a fiction: it is a fiction that we know what good policing is; a fiction that graduation from the academy and exposure to crime on the street certifies the police as professional; and a fiction that professionalism requires an authoritarian and forceful stance towards suspects to maintain order and investigate crime.

Rather than relying a disappearing privacy doctrine to fight the Court’s Fourth Amendment doctrine, liberals must interrogate what skillful policing really entails. The proper response to the current Court’s fictional Fourth Amendment reasonableness doctrine is realism about skillful, legitimate policing. Realism requires that lawyers, and the academy, interrogate what training officers actually receive; what experience individual officers have; and to consider whether the officer’s training and experience matches our standards for skillful, legitimate policing.

Legitimate policing has two components, normative and empirical. The normative component establishes police authority as based in reason, not might. Normatively legitimate police authority is egalitarian, not subordinating. The empirical component focuses on the mutual exchange between citizen and police officer of respect for the dignity of the other. Following the work of Tom Tyler, I suggest that empirically legitimate policing induces compliance out of obligation not fear. The goal of policing (and of the Fourth Amendment’s reasonableness doctrine) should be to promote police-citizen encounters that develop along lines of consensus not coercion.

Grubman on Inevitable Discovery and Arizona v. Gant

Scott Robert Grubman has posted Bark With No Bite: How the Inevitable Discovery Rule is Undermining the Supreme Court’s Decision in Arizona V. Gant (The Journal of Criminal Law & Criminology, Vol. 101, No. 1, pp. 119-170 (2011)) on SSRN. Here is the abstract:

In 2009, the Supreme Court issued its decision in Arizona v. Gant, in which it significantly limited the search incident to arrest exception in the automobile search context. Despite what many experts predicted, Gant did not open the floodgates of evidence suppression. This is because the Gant holding is substantially undermined by the inevitable discovery rule, under which otherwise illegally-seized evidence is deemed admissible under certain circumstances. This article discusses why the Court’s decision in Gant lacks real-world, practical effect, and how the Court can close the loophole in its Gant holding.

Grubman on the Necessity of Immigration Counsel in Criminal Prosecutions

Scott Robert Grubman (U.S. Department of Justice; U.S. Attorney's Office, Southern District of Georgia) has posted I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions after Padilla v. Kentucky (Nevada Law Journal, Vol. 12, No. 2, pp. 364-394 (2012)) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the Supreme Court held that, under the Sixth Amendment, counsel is required to advise a noncitizen of the possibility of deportation in the event of a criminal conviction in order for the representation to be constitutionally valid. In cases where the immigration consequences of a plea or conviction are clear and succinct, an attorney is required to discuss those consequences with the client. However, in cases where those consequences are less certain, an attorney is only required to advise the client regarding the possibility of such consequences. This Article discusses what happens when the immigration consequences are too complicated for a criminal attorney to ascertain but the client is indigent and cannot afford to hire an immigration attorney.

Parkes & Daniel on Political Protest, Mass Arrests, and Mass Detention

Debra L. Parkes and Meaghan Daniel (University of Manitoba - Faculty of Law and Falconer Charney LLP) have posted Political Protest, Mass Arrests, and Mass Detention: Fundamental Freedoms and (Un)Common Criminals on SSRN. Here is the abstract:

“No Justice. No Peace.” The mass arrest and detention of over 1,105 people during the Toronto G20 summit in June 2010, including author Meaghan Daniel, prompted reflection on the connections between justice and peace and in particular, between peaceful protest, policing, detention and the justice system. The record breaking weekend of mass arrests and temporary detention of people described as “innocent bystanders” and “peaceful protestors” provoked an ongoing conversation about the criminalization of protest. It is the authors’ hope to extend this conversation beyond these (un)common criminals to the “every day” processes of criminalization and imprisonment that go largely unquestioned in this country. The article shares the narrative of Meaghan’s arrest and detention while participating as a legal observer during the G20 summit weekend. In the course of telling that story, the authors briefly reflecting on two themes: (1) the criminalization of dissent, including through the power to arrest for “breach of the peace” and the apparent impotence of constitutionally entrenched rights to free expression and peaceful assembly to restrain such police power; and (2) connections between the experiences and activism of the G20 detainees and the thousands of other prisoners in Canada – these “common criminals” with whom progressive social movements have not always seen common cause.

Bierschbach on Proportionality and Parole

Richard A. Bierschbach (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Proportionality and Parole (University of Pennsylvania Law Review, Vol. 160, No. 5, Forthcoming 2012) on SSRN. Here is the abstract:

Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

Vazquez & Vladeck on State Law, the Westfall Act, and Bivens Actions

Carlos Manuel Vazquez and Stephen I. Vladeck (Georgetown University Law Center and American University - Washington College of Law) have posted State Law, the Westfall Act, and the Nature of the Bivens Question after Minneci v. Pollard (161 U. Pa. L. Rev. (Forthcoming 2012)) on SSRN. Here is the abstract:

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

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Giannelli on Literature Discussing the 2009 NAS Forensic Science Report

Paul C. Giannelli (Case Western Reserve University School of Law) has posted The 2009 NAS Forensic Science Report: A Literature Review (48 Crim. L. Bulletin 378 (2012)) on SSRN. Here is the abstract:

In February 2009, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (2009). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”

Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies have been found in the forensic evidence used in criminal trials.” Both the Senate and the House held hearings, and a bill was introduced in Congress. In addition, the President appointed a committee on forensic science.

Several law schools held conferences on the report, and a number legal journals published symposia. Law review articles variously described the report as a “blockbuster,” “a watershed,” “a scathing critique,” “a milestone,” and “pioneering.” This essay briefly discusses some of these articles as well as aspects of the congressional hearings.

Argument transcript in Arizona immigration case

The transcript in Arizona v. United States is here.

Weissman on Domestic Violence

Deborah M. Weissman (University of North Carolina School of Law) has posted Law, Social Movements, and the Political Economy of Domestic Violence (Duke Journal of Gender Law & Policy, Forthcoming) on SSRN. Here is the abstract:

This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as a context for gender-based violence. It argues that as an epistemology, domestic violence scholarship has fallen behind other fields of study due to its failure to address the structural context of gender-based violence. The article then proposes a redefinition of the parameters of domestic violence law and presents new (and provocative) ways to think about law-related interventions to ameliorate gender violence.

King on Counsel in Misdemeanor Cases

John Derek King (Washington and Lee University) has posted Beyond 'Life and Liberty': The Evolving Right to Counsel (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), 2013) on SSRN. Here is the abstract:

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.

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Kaye on Chimeric Criminals

David H. Kaye (The Pennsylvania State University) has posted Chimeric Criminals (Minnesota Journal of Law, Science & Technology, Vol. 14, No. 1, Fall 2012) on SSRN. Here is the abstract:

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains why.

Court says 10th Circuit should not have raised deliberately waived AEDPA time limitation

Justice Ginsburg wrote the opinion for the Court in Wood v. Milyard. Justice Thomas, joined by Justice Scalia, concurred in the judgment.

Blank & Staudt on Corporate Shams

Joshua D. Blank and Nancy C. Staudt (New York University School of Law and USC Law School) have posted Corporate Shams (New York University Law Review, Vol. 87, 2012) on SSRN. Here is the abstract:

Many people — perhaps most — want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and off-shore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third-parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”

In this Article, we focus on the government challenges to corporate financial plans — often labeled corporate shams — in an effort to understand how and why courts draw the line between legal and fraudulent behavior. Quite a few scholars and commentators have investigated this question and nearly all agree: judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a large dataset — the first of its kind — and uncover important and heretofore unobserved trends. Indeed, courts have not produced a confusing morass of outcomes as some have argued, but have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. After discussing our empirical results, we show how they can be exploited by both government and corporate attorneys and explore how they bolster many of normative views set forth by the scholarly and policymaking communities.

Jackson et al. on Trust in the Police in England and Wales

Jonathan Jackson , Ben Bradford , Elizabeth A. Stanko and Katrin Hohl (London School of Economics & Political Science - Methodology Institute , University of Oxford - Centre for Criminology , affiliation not provided to SSRN and London School of Economics - Methodology Institute) have posted Just Authority? Trust in the Police in England and Wales (Pre-publication first chapter from 'Just Authority? Trust in the Police in England and Wales', to be published by Routledge in Summer 2012) on SSRN. Here is the abstract:

What does it mean to trust the police? What makes the police legitimate in the eyes of the policed? What builds trust, legitimacy and cooperation, and what undermines the bond between police and the public? These questions are central to current debates concerning the relationship between the British police and the public it serves. Yet, in the context of British policing they are seldom asked explicitly, still less examined in depth. Drawing on psychological and sociological explanatory paradigms, Just Authority presents a cutting-edge empirical study into public trust, police legitimacy, and people’s readiness to cooperate with officers. It represents, first, the most detailed test to date of Tom Tyler’s procedural justice model attempted outside the United States. Second, it uncovers the social ecology of trust and legitimacy. Third, it describes the relationships between trust, legitimacy and cooperation. This book contains many important lessons for practitioners, policy-makers and academics. As elsewhere the dominant vision of policing in Great Britain continues to stress instrumental effectiveness: the ‘fight against crime’ will be won by pro-active and even aggressive policing. In line with work from the United States and elsewhere, Just Authority casts significant doubt on such claims. When people find policing to be unfair, disrespectful and careless of human dignity, not only is trust lost, legitimacy is also damaged and cooperation is withdrawn as a result. Absent such public support, the job of the police is made harder and the avowed objectives of less crime and disorder placed ever further from reach.