CrimProf Blog

Blum on Crime and Punishment of States

Gabriella Blum (Harvard Law School) has posted The Crime and Punishment of States (Yale Journal of International Law, Vol. 38, 2013, Forthcoming) on SSRN. Here is the abstract:

Why is it that we don’t punish states anymore, or, at least, don’t admit to doing so? 

The moral rhetoric of “crime” and “punishment” of states has been excised from mainstream international law, and replaced with an amoral rhetoric of “threat” and “prevention.” Today, individuals alone are subject to international punishment, while states are subject only to preventive, regulatory or enforcement measures. 

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"Thoughts on the Oral Arguments in the Dog Sniff Cases"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Based on the arguments, my guess is that the state will win one and lose one. The Court will probably agree that the Fourth Amendment was violated in Jardines, in which the officer brought the dog to the front door and the dog sniffed for drugs. On the other hand, the Court will probably rule that the Fourth Amendment was not violated in Harris because the training the dog received was sufficient. 

Argument transcript involving dog sniff as probable cause

The transcript in Florida v. Harris is here.

Transcript of argument in case involving dog sniff at front door of home

The transcript in Florida v. Jardines is here.

Cole on Military Commissions and the Paradigm of Prevention

David Cole (Georgetown University Law Center) has posted Military Commissions and the Paradigm of Prevention (Military Commissions and the Paradigm of Prevention, in GUANTANAMO AND BEYOND: EXCEPTIONAL COURTS AND MILITARY COMMISSIONS IN AND POLICY PERSPECTIVES (Oren Gross and Fionnuala Ni Aolain, eds., Cambridge: Cambridge Univ. Press, 2013, Forthcoming)) on SSRN. Here is the abstract:

Why military commissions? Given the United States’s track record of success in trying terrorists in civilian criminal courts, and the availability of courts-martial to try war crimes, why has the United States government, under both the George W. Bush and Barack Obama administrations alike, insisted on proceeding through untested military commissions instead? In May 2009, President Obama defended military commissions with the following claims: 

Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts. 

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Parilo on Custodial Interrogations in Prison

Michelle Parilo has posted Protecting Prisoners During Custodial Interrogations: The Road Forward after Howes v. Fields (Boston College Journal of Law and Social Justice, Vol. 33, Winter 2012) on SSRN> Here is the abstract:

The Supreme Court in Miranda v. Arizona sought to mitigate the inherently coercive atmosphere of custodial interrogations to protect victims from involuntary self-incrimination. In analyzing custody for Miranda purposes, courts look at whether a reasonable person would feel his freedom of movement was restricted. When conducting the Miranda custody analysis for interrogated prisoners, courts should thoroughly consider the negative psychological effects of prisons in order to understand the prisoner’s mindset. The Court had the opportunity to conduct this thorough analysis of the dehumanization of prisoners in Howes v. Fields, but it instead minimized the coercive effects of prisons. Moreover, the Court’s finding that the prisoner in Howes v. Fields was not in Miranda custody is inconsistent with its past holdings. This Note argues that in the future, courts should consider with greater nuance the negative effects of prisons in order to protect prisoners from making involuntary confessions.

Transcript in yesterday's argument on surveillance of international communications

The transcript in Clapper v. Amnesty International USA is here.

Monday's criminal law/procedure cert grants

Issue summaries from ScotusBlog:

• Trevino v. Thaler: applicability of Martinez v. Ryan, on raising ineffective assistance on habeas challenge, in jurisdictions in which defendants sometimes permitted to raise claim prior to post-conviction stage.

Schauer on Lie-Detection, Neuroscience, and Evidence

Frederick Schauer (University of Virginia School of Law) has posted Lie-Detection, Neuroscience, and the Law of Evidence on SSRN. Here is the abstract:

This paper, prepared for the “State of the Art” Law and Neuroscience Conference at the Rutgers (Camden) University School of Law, has two goals. One is to describe comprehensively the current court cases, scientific research, academic literature, and controversies about the potential use of Functional Magnetic Resonance Imaging (fMRI) for detecting deception in court and other forensic contexts. The other is to suggest that the question of the admissibility of fMRI deception evidence in court cannot be thought of as an exclusively scientific question. The appropriate use or non-use of science in the legal system involves inevitably normative questions about the appropriate levels of accuracy, reliability and validity, questions that must be answered in light of the goals of the legal system and the particular purposes to which the science would be put. The answers require getting the science right, and thus require the involvement of science and scientists, but the ultimate question of when and how the scientific conclusions so produced will be used is a question of legal policy as to which neither scientists (nor, for that matter, lawyers) should be given exclusive authority. Thus, although explicitly focused on law and neuroscience, the paper implicitly addresses a pervading issue in science policy generally – is the use to which science shall or should be put an exclusively, or even partially, scientific question?

Richardson & Goff on Self Defense and the Suspicion Heuristic

L. Song Richardson (pictured) and Phillip Atiba Goff (University of Iowa - College of Law and UCLA Department of Psychology) have posted Self Defense and the Suspicion Heuristic (Iowa Law Review, Vol. 98, p. 293, 2012) on SSRN. Here is the abstract:

The doctrine of self-defense evaluates the reasonableness of criminality judgments. Yet, it fails to account for how non-conscious cognitions place those who are stereotyped as criminal at greater risk of mistaken judgments of criminality — sometimes with deadly consequences. Studies reveal, for example, that people are more likely to see weapons in the hands of unarmed black men than unarmed white men, and to more quickly shoot them as a result. Because self-defense doctrine does not attend to these judgment errors, it fails to interrogate how, if at all, these mistakes should affect assessments of reasonableness. Drawing from powerful and well-established mind sciences research, this Essay introduces a concept that we term the “suspicion heuristic.” This concept explains how non-conscious processes can lead to systematic and predictable errors in judgments of criminality — and influence subsequent behaviors — regardless of conscious racial attitudes. This Essay argues that in order to provide more equal protection, security, and liberty to all victims of violence, the law of self-defense should account for the suspicion heuristic in its assessments of reasonableness. This Essay traces the broad outlines of a theoretical and legal framework for doing so.

"Now 12, California Boy Comes to Trial in Killing of Neo-Nazi Father"

From The New York Times:

And those facts raise several more philosophical quandaries that, depending on how the judge weighs the answers, may determine the outcome of the trial. Among them: whether virulent racism can amount to parental abuse, whether a child exposed to such hate can understand the difference between right and wrong, and whether someone who grows up in such toxic circumstances can be blamed for wanting a way out.

The prosecutor, Michael Soccio, says that the actions of Joseph Hall have little to do with Nazism, but rather with his anger at being punished and spanked by his father at a party the day before the killing and the boy’s worries that his father would leave his family. . . .

But Joseph’s public defender, Matthew J. Hardy, says his client has neurological and psychological problems, compounded by exposure to neo-Nazi “conditioning” and physical abuse in the home.

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"FBI: violent crime drops again in 2011"

From Jurist:

The FBI released its annual report on violent and property crime, Crime in the United States 2011 [materials; press release], on Monday, which found that the number of violent crimes reported to law enforcement decreased for the fifth consecutive year and the number of property crimes reported decreased for the ninth consecutive year. The report is based on the Uniform Crime Reporting Program(UCR) [official website]. The report found that violent crime decreased by 3.8 percent and property crime decreased by 0.5 percent in 2011 from 2010. 

Schopp on Mental Illness and the Expressive Functions of Punishment

Robert F. Schopp has posted Mental Illness, Police Power Interventions, and the Expressive Functions of Punishment on SSRN. Here is the abstract:

The state exercises coercive force under the police power to protect the public order, security, and justice. When individuals who manifest significant psychological impairment harm or endanger others, police power interventions can involve several different institutional structures within the criminal justice system or the alternative institution of civil commitment. The analysis presented in this paper draws attention to the significance of the expressive functions of criminal punishment in selecting the most justified institutional structures for police power interventions intended to prevent impaired individuals from harming others. These functions arguably carry important implications for impaired individuals who harm or endanger others, for general categories of impaired individuals, for the public, and for the integrity of the process.

O'Rourke on Structural Overdelegation in Criminal Procedure

Anthony O'Rourke (State University of New York (SUNY) at Buffalo Law School) has posted Structural Overdelegation in Criminal Procedure (Journal of Criminal Law and Criminology, Vol. 103, 2013) on SSRN. Here is the abstract:

In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.

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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	473	The Curious History of Fourth Amendment Searches  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: October 1, 2012
2	318	Foreign Corrupt Practices Act Enforcement as Seen through Wal-Mart's Potential Exposure  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: September 13, 2012
3	300	Examining Shaken Baby Syndrome Convictions in Light of New Medical Scientific Research  Keith A. Findley,  University of Wisconsin Law School,  Date posted to database: October 11, 2012
4	195	'Becker on Ewald on Foucault on Becker': American Neoliberalism and Michel Foucault's 1979 'Birth of Biopolitics' Lectures  Gary S. Becker, Francois Ewald,Bernard E. Harcourt,  University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago - Department of Political Science,  Date posted to database: September 5, 2012
5	185	Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century  Gabriel Markoff,  Southern District of Texas,  Date posted to database: August 21, 2012
6	177	Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide  Daniel D. Langleben, Jane Campbell Moriarty,  University of Pennsylvania - School of Medicine, Duquesne University - School of Law,  Date posted to database: September 1, 2012 [new to top ten]
7	158	Standing Up for Mr. Nesbitt  Stephen W. Smith,  Texas Southern University - Thurgood Marshall School of Law,  Date posted to database: September 8, 2012 [6th last week]
8	141	Social Networks and Risk of Homicide Victimization in an African American Community  Andrew V. Papachristos, Christopher Wildeman,  Yale University - Department of Sociology, Yale University - Department of Sociology,  Date posted to database: September 19, 2012
9	140	The Role of Folk Beliefs about Free Will in Sentencing: A New Target for the Neuro-Determinist Critics of Criminal Law  Emad Hanzala Atiq,  Yale University, Law School,  Date posted to database: October 18, 2012 [new to top ten]
10	132	Judith Shklar on the Philosophy of International Criminal Law  Samuel Moyn,  Columbia University,  Date posted to database: September 20, 2012 [9th  last week]

 

Meyer on Suffering and Judging

Linda Ross Meyer (Quinnipiac University School of Law) has posted Suffering and Judging in The Princess and the Pea (Quinnipiac Law Review, Vol. 30, p. 489, 2012) on SSRN. Here is the abstract:

This brief essay explores Hans Christian Andersen's story "The Princess and the Pea" for how it illuminates issues of suffering, compassion, victimization, political leadership, and mercy.

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog:

Monday, Oct. 29

• Clapper v. Amnesty Int'l USA: Whether respondents lack Article III standing to seek prospective relief because they proffered no evidence that the United States would imminently acquire their international communications using 50 U.S.C. 1881a-authorized surveillance and did not show that an injunction prohibiting Section 1881a-authorized surveillance would likely redress their purported injuries.
  

Tuesday, Oct. 30

• Bailey v. U.S.: Whether, pursuant to Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed.
  
• Chaidez v. U.S.: 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.

Wednesday, Oct. 31

• Florida v. Jardines: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?
  
• Florida v. Harris: Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle.
  

Yankah on Vice Crimes

Ekow N. Yankah (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

Vice crimes, crimes prohibited in part because they are viewed as morally corrupting, engage legal theorists because they reveal importantly contrasting views between liberals and virtue-centered theorists on the very limits of legitimate state action. Yet advocates and opponents alike focus on the role law can play in suppressing personal vice; the role of law is seen as suppressing licentiousness, sloth, greed etc. The most powerful advocates of the position that the law must nurture good character often draw on Aristotelian theories of virtue to ground the connection between law and virtue. While Aristotle believed that law and character were linked, it is ironic to note that he did not argue for the position evidenced in our vice laws that law was likely to succeed in instilling virtue.

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Haugh on Applying Capital Mitigation Strategies to White Collar Cases

Todd Haugh (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases (American University Law Review, Vol. 62, 2012) on SSRN. Here is the abstract:

Ted Kaczynski and Bernie Madoff share much in common. Both are well-educated, extremely intelligent, charismatic figures. Both rose to the height of their chosen professions — mathematics and finance. And both will die in federal prison, Kaczynski for committing a twenty-year mail-bombing spree that killed three people and seriously injured dozens more, and Madoff for committing the largest Ponzi scheme in history, bilking thousands of people out of almost $65 billion. But that last similarity — Kaczynski’s and Madoff’s plight at sentencing — may not have had to be. While Kaczynski’s attorneys tirelessly investigated and argued every aspect of their client’s personal history, mental state, motivations, and sentencing options, Madoff’s attorneys offered almost nothing to mitigate his conduct, simply accepting his fate at sentencing. In the end, Kaczynski’s attorneys were able to convince the government, the court, and their client that a life sentence was appropriate despite that he committed one of the most heinous and well-publicized death penalty-eligible crimes in recent history. Madoff, on the other hand, with almost unlimited resources at his disposal, received effectively the same sentence — 150 years in prison — for a nonviolent economic offense. Why were these two ultimately given the same sentence? And what can Madoff, the financier with unimaginable wealth, learn from Kaczynski, the reclusive and remorseless killer, when it comes to federal sentencing? 

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Shay on Illich on Prisons

Giovanna Shay (Western New England University School of Law) has posted Illich (Via Cayley) on Prisons (Western New England Law Review, Vol. 34, p. 351, 2012) on SSRN. Here is the abstract:

This Article considers whether, more than a dozen years after publication of Cayley’s book, "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.