CrimProf Blog

Lasch on Federal Immigration Detainers After Arizona v. United States

Christopher N. Lasch (University of Denver Sturm College of Law) has posted Federal Immigration Detainers After Arizona v. United States (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:

The Court’s June 25, 2012 decision in Arizona v. United States struck down three of the four challenged sections of Arizona’s “Support Our Law Enforcement and Safe Neighborhoods Act,” colloquially known simply as “S.B. 1070.” Two of these provisions created state crimes to punish immigrants for not carrying federally required registration documents and for seeking work without authorization; the third provision expanded state arrest authority to allow police to arrest suspected immigration violators. The Court held that these legislative efforts were preempted by comprehensive federal regulation of immigration enforcement. The Court additionally left open the possibility that the fourth challenged provision of S.B. 1070, requiring Arizona police officers to run immigration status checks on suspected immigration violators, might be held unconstitutional or preempted, depending on how the law is actually applied.

This Article explores a less obvious consequence of Arizona: its implications for the continuing viability of a critical federal enforcement mechanism, the immigration detainer. The Arizona decision saps the vitality out of this mechanism, and exposes it as far exceeding any Congressional grant of authority and as conflicting with the Fourth Amendment principles discussed in the opinion. 

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Papke on Capital Punishment in Cinema

David Ray Papke (Marquette University - Law School) has posted Muted Message: Capital Punishment in the Hollywood Cinema on SSRN. Here is the abstract:

Contemporary Hollywood films seem at first glance to be opposed to capital punishment. However, this article’s consideration of five surprisingly similar films (Dead Man Walking, The Chamber, Last Dance, True Crime, and The Life of David Gale) finds they do not truly and consistently condemn capital punishment. Instead of suggesting that the practice of capital punishment is fundamentally immoral and should in general be ended, the films champion only worthy individuals on death row and delight primarily in the personal growth of other characters who attempt to aid the condemned. In the end, Hollywood offers only a muted message regarding the on-going use of capital punishment.

Sundby on McClesky v. Kemp

Scott E. Sundby (University of Miami School of Law) has posted The Loss of Constitutional Faith: McClesky v. Kemp and the Dark Side of Procedure on SSRN. Here is the abstract:

Twenty-five years after it was decided, a legal scholar can still use McCleskey v. Kemp as shorthand for a Supreme Court decision that failed to protect the Constitution’s most basic values. This Article uses Justice Powell’s papers to gain new insight into how an opinion came to be written that engendered so much criticism. What emerges is a sense of how Justice Powell’s belief in the legal system, when coupled with his distrust of “statistical jurisprudence,” led him to place his faith in legal procedures despite statistical evidence that racial bias was infecting the death penalty. McCleskey is thus an important lesson that procedure, despite its many benefits, can have a dark side if it becomes a veneer obscuring injustice. 

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Dutton on Virtual Witness Confrontation in Piracy Trials

Yvonne Dutton (Indiana University Robert H. McKinney School of Law) has posted Virtual Witness Confrontation in Criminal Cases: A Proposal to Use Videoconferencing Technology in Maritime Piracy Trials (Vanderbilt Journal of Transnational Law, Vol. 45, p. 1283, 2012) on SSRN. Here is the abstract:

Maritime piracy is a serious problem, yet states are not prosecuting captured pirates with any regularity. One of the many reasons cited to explain this phenomenon focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. In an effort to help close the impunity gap that surrounds piracy, this Article offers a potential solution to the difficulties associated with obtaining live witness testimony. It proposes a rule to allow witnesses under some circumstances to testify remotely by way of two-way, live videoconferencing technology. While remote testimony need not become the norm in maritime piracy cases, the proposed rule is carefully structured to balance both the public’s and the defendant’s interest in a fair trial.

Cassell & Goodwin on Preliminary Hearings for Misdemeanors

Paul G. Cassell (pictured) and Thomas E. Goodwin (University of Utah - S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law) have posted Protecting Taxpayers and Crime Victims: The Case for Restricting Utah's Preliminary Hearings to Felony Offenses (Utah Law Review, Vol. 2011, No. 4, 2011) on SSRN. Here is the abstract:

Recently Utah became the only state in the nation to interpret its constitution to require preliminary hearings for certain classes of misdemeanors. In State v. Hernandez, the Utah Supreme Court held that for “Class A” misdemeanors (misdemeanors punishable by up to a year in jail), article I, section 13 of the Utah Constitution required preliminary hearings. Article I, section 13 provides for preliminary hearings for “[o]ffenses heretofore required to be prosecuted by indictment.” The court concluded that the phrase “offenses heretofore required to be prosecuted by indictment” referred not only to felony offenses but under Utah’s modern classification of offenses, to Class A misdemeanors as well.

This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy.

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Cohen on McCleskey's Omission

G. Ben Cohen (The Justice Center's Capital Appeals Project) has posted McCleskey's Omission: The Racial Geography of Retribution (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:

Twenty-five years after the Court in McCleskey refrained from addressing the overwhelming evidence that race, and particularly the race of the victim, plays a role in the administration of the death penalty, with no corrective measures taken to ensure that the worst of the worst offenders receive the death penalty, the death penalty in America is as arbitrary as it ever was. 

This article suggests that while both the majority and the dissent in McCleskey noted the history of racism in the South, neither confronted the manner in which racism was imbedded in the goal of retribution, nor reconciled the sordid history of lynching with the modern system of capital punishment. A careful examination of death sentences in the modern era reflects that racism arises at a county rather than a state level. The author suggests that the history of lynching, especially in the deep south, is inexorably connected to retribution. 

Future challenges to the constitutionality of capital punishment should address the validity of retribution as a basis for imposing the death penalty and the impact that desire for retribution has on county-level administration of the death penalty. 

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Argument on applicability of plain error standard to unsettled issues as of time of trial

The transcript in Henderson v. United States is here.

Yaroshefsky on Prosecutorial Disclosure in Practice

Ellen Yaroshefsky (Yeshiva University - Benjamin N. Cardozo School of Law) has posted New Orleans Prosecutorial Disclosure in Practice after Connick v. Thompson (Georgetown Journal of Legal Ethics, Vol. 25, No. 913, 2012) on SSRN. Here is the abstract:

The New Orleans Prosecutor's office under the 30 year leadership of Harry Connick was notorious for its failures to comply with constitutional requirements to disclose favorable information to the defense. The Supreme court in a range of cases including its 2011 decision in Connick v. Thompson, excoriated the prosecutor's office for its failures.

Leon Cannizzaro, elected as New Orleans prosecutor in 2008, made significant changes in that office. This article, the result of in depth interviews with key stakeholders in the New Orleans criminal justice system, including former prosecutors, examines the extent and effect of the policy and practice changes. It concludes with a series of proposals to improve disclosure practices in New Orleans that are applicable to other jurisdictions.

Barnes on Responses to Lone Wolf Terrorism

Beau Barnes has posted Confronting the One-Man Wolf Pack: Adapting Law Enforcement and Prosecution Responses to the Threat of Lone Wolf Terrorism (Boston University Law Review, Vol. 92, No. 1613, 2012) on SSRN. Here is the abstract:

In recent years, a new type of terrorist threat has emerged: the "lone wolf." Lone Wolves present a challenge for current law enforcement and prosecutorial approaches to combating terrorism because these individuals are radicalized without significant contact with others and operate alone. The tools currently available to law enforcement and prosecutors focus on exploiting the vulnerabilities and liabilities created through group interactions, a "preventive" approach to terrorism that is inapplicable to the solitary terrorist.

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Kim on Proof of International Sex Crimes

Sangkul Kim (Korea University - Law School) has posted The Means of Proof of International Sex Crimes (Understanding and Proving International Sex Crimes, Morten Bergsmo, Alf Butenschon and Elizabeth J. Wood, eds., FICHL Publication Series, no. 12, pp. 225-265, 2012) on SSRN. Here is the abstract:

This paper is about proving international sex crimes (in particular, rape, forced marriage and sexual slavery) provided in the statutes of international criminal courts such as the International Criminal Court, International Criminal Tribunal for the Former Yugoslavia, International Criminal Tribunal for Rwanda and the Special Court of Sierra Leone. On the basis of a careful review of the relevant case law of those international courts, this paper sets out the means of proof (specific facts) discussed, analyzed and accepted as fulfilling each element of international sex crimes. The term ‘means of proof’ indicates evidence in respect of which a positive evaluation has been completed by adjudicators — ‘positive’ in the sense of substantively supporting the establishment of an element of a crime. For instance, as to the contextual element of crimes against humanity, the element of the ‘widespread or systematic attack’ can be proved by the means of proof of the ‘scale of the attack,’ the ‘pattern of the attack’ and the ‘organized nature of the attack.’ This paper is composed of four main sections: (i) Rape; (ii) Forced Marriage as Other Inhumane Act; (iii) Sexual Slavery in the Jurisprudence of the Special Court of Sierra Leone; and (iv) Enslavement Based on Rape in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia. For the purpose of this paper, means of proof of material elements (as opposed to the mental elements) are the main object of research.

Green on Prosecutors and Professional Regulation

Bruce A. Green (Fordham University School of Law) has posted Prosecutors and Professional Regulation (Georgetown Journal of Legal Ethics, Vol. 25, p. 873, 2012) on SSRN. Here is the abstract:

Prosecutors often express mistrust of professional regulators, their rules and their processes. This may have been more understandable twenty years ago, when prosecutors perceived that the organized bar had been captured by defense lawyers seeking to use professional regulation as a means of imposing limits on criminal investigative authority that the law did not otherwise recognize. Although that criticism no longer has much basis in reality, it has persisted in the rhetoric prosecutors employ in advocacy regarding their professional conduct. This article explores prosecutors’ public attitude toward professional regulation, beginning with a brief account of their responses two decades ago, then considering three recent examples: the NDAA’s opposition to a broad reading of Model Rule 3.8(d)’s disclosure obligation; some prosecutors’ opposition to states’ adoption of the post-conviction obligations of Model Rules 3.8(g) and (h); and the Queens County, NY, district attorney’s opposition to a trial court’s consideration of the ethical propriety of his office’s post-arrest interrogation practices. The article argues that prosecutors’ anti-regulatory rhetoric undermines the culture of prosecutors’ offices and is contrary to the public interest in other ways.

Jacobs & Blitsa on Employment Vetting of Sex Offenders

James Jacobs (pictured) and Dimitra Blitsa (New York University School of Law) have posted US, EU & UK Employment Vetting as Strategy for Preventing Convicted Sex Offenders from Gaining Access to Children (European Journal on Crime, Criminal Law & Criminal Justice) on SSRN. Here is the abstract:

Fear and anxiety about sexual predators who target children has stimulated legal initiatives in the US, EU and UK to encourage/require background screening for public and private sector job applicants and volunteers for positions that afford access to children. This Article examines the political, legal and logistical challenges that such initiatives have and are facing in three important legal regimes.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	565	The Curious History of Fourth Amendment Searches  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: October 1, 2012
2	376	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
3	283	Prison Visitation Policies: A Fifty State Survey  Chesa Boudin, Trevor Stutz, Aaron Littman,  Yale University - Law School, Yale University - Law School, Yale University - Law School,  Date posted to database: November 6, 2012
4	207	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
5	164	Overdetermined Atrocities  James G. Stewart,  University of British Columbia (UBC) - Faculty of Law,  Date posted to database: September 26, 2012 [10th last week]
6	163	If You Shoot My Dog, I Ma Kill Yo’ Cat: An Enquiry into the Principles of Hip-Hop Law  Jan M. Smits, Andrei Ernst, Steven Iseger, Nida Riaz,  Maastricht University Faculty of Law - Maastricht European Private Law Institute (M-EPLI), Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: October 10, 2012 [7th last week]
7	162	Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases  Tigran Eldred,  New England Law | Boston,  Date posted to database: October 2, 2012 [9th last week]
8	157	The Crime and Punishment of States  Gabriella Blum,  Harvard Law School,  Date posted to database: October 22, 2012 [new to top ten]
9	136	Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories  Dov Jacobs,  Leiden University - Grotius Centre for International Legal Studies,  Date posted to database: September 27, 2012 [new to top ten]
10	135	Exclusion and Control in the Carceral State  Sharon Dolovich,  University of California, Los Angeles - School of Law,  Date posted to database: November 6, 2012 [new to top ten]

 

Next week's criminal law/procedure argument

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

Wednesday, Nov. 28

• Henderson v. U.S.: Whether, when the governing law is unsettled at the time of trial but settled in the defendant’s favor by the time of appeal, an appellate court reviewing for “plain error” should applyJohnson v. United States’s time-of-appeal standard, as the First, Second, Sixth, Tenth, and Eleventh Circuits do, or should apply the Ninth Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted.
  

Lawson on the Trayvon Martin Killing

Tamara Francita Lawson (St. Thomas University School of Law) has posted A Fresh Cut in an Old Wound – A Critical Analysis of the Trayvon Martin Killing: The Public Outcry, the Prosecutors’ Discretion, and the Stand Your Ground Law (University of Florida Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

If the Trayvon Martin/George Zimmerman case is to have value beyond its immediate facts, it is important to consider the case through a broad lens that encompasses law, politics, and culture and the relevant intersectionality of each. This essay gives a contextualized historical perspective with which to view the Black community’s reaction to the initial lack of criminal charges in the case. It explains why the circumstances surrounding Trayvon’s death were experienced as a fresh cut in an old, but deep, collective wound, for many Blacks. It addresses the exacerbation African Americans felt regarding law enforcement’s perceived indifference towards Trayvon, a victim of a dark(er) hue. It acknowledges the implanted counter-narrative that dehumanized “Trayvon the victim” and, instead, labeled him, “Trayvon the thug,” even though he was not a criminal, and unarmed when he was shot. The mixture of these specific facts in the case represented a shared trigger point in the Black community that generated a visceral reaction based on its relation-back to past and systematic injustices.

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Wils on Antitrust Compliance and Enforcement

Wouter P. J. Wils (King's College London - School of Law) has posted Antitrust Compliance Programmes & Optimal Antitrust Enforcement (Journal of Antitrust Enforcement, Volume 1, Issue 1, April 2013, Forthcoming) on SSRN. Here is the abstract:

Should companies that have antitrust compliance programmes be granted a reduction in the amount of fines or even immunity from fines when they are found to have committed antitrust infringements? Should the absence of a compliance programme constitute an aggravating factor leading to higher fines for antitrust infringements? Should the adoption of a compliance programme be imposed as part of infringement decisions or settlements? These are the questions which this paper examines, on the basis of an analysis of the nature of antitrust infringements, the rationale of company liability for antitrust infringements, and the possible positive and possible negative effects of compliance programmes.

Gilchrist on Expressivism and Corporate Liability

Gregory M. Gilchrist (University of Toledo College of Law) has posted Condemnation Without Basis: An Expressive Failure of Corporate Prosecutions (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

This is the second of two articles on the expressive aspects of corporate criminal liability. The first article argued that to justify imposing criminal liability on corporations we must refer to the expressive function of criminal liability. This Article considers the expressive function of actual corporate prosecutions, and identifies aspects of corporate prosecutions that generate expressive costs rather than benefits. These are the expressive failures of corporate prosecutions. The article identifies a number of these failures and introduces a model of perceived legitimacy and the expressive function of punishment that explains how expressive failures harm the legal system. Mere respondeat superior liability – holding corporations criminally liable where there is no basis to condemn the corporate qua corporation – is the most significant expressive failure. It is also the easiest to fix: allow corporations a good faith defense against criminal liability. Good faith defenses have been proposed before, but this is the first proposal based on the expressive impact of the defense. A good faith defense will limit the application of corporate criminal liability to those instances where there is a basis to condemn the corporation as a whole, thus realigning the expression inherent in criminal punishment with commonly-held views about blaming corporations.

Cooper on Traumatization of Child Witnesses

Tanya Asim Cooper (University of Alabama - School of Law) has posted Sacrificing the Child to Convict the Defendant: Secondary Traumatization of Child Witnesses by Prosecutors, Their Inherent Conflict of Interest, and the Need for Child Witness Counsel (Cardozo Public Law, Policy and Ethics Journal, Vol. 9, Page 239, 2011) on SSRN. Here is the abstract:

In criminal cases, prosecutors often compound the trauma child witnesses endure. That secondary traumatization — the intimidation and disregard of child witnesses by authorities — threatens the integrity of the entire criminal justice system. While unfortunate, perhaps secondary traumatization of child witnesses by prosecutors is inevitable because prosecutors have multiple duties to juggle besides attending to the child. Prosecutors must protect society and even respect the rights of the accused. Fulfilling these other prosecutorial duties might conflict with the needs and wishes of the child witnesses. Because prosecutors have multiple roles and responsibilities, which they interpret differently, and because the Supreme Court has recently made prosecuting crimes against children more difficult, the potential for prosecutors to mistreat their complaining child witnesses, even unwittingly, has increased. To combat this problem, child witnesses need lawyers. The need for independent counsel with clearly defined roles for representing child witnesses in criminal cases is timely, and for children’s rights advocates, it is the “next frontier.”

Ip on Reform of Counterterrorism Stop and Search

John Ip (University of Auckland - Faculty of Law) has posted The Reform of Counterterrorism Stop and Search after Gillan v. United Kingdom on SSRN. Here is the abstract:

This paper considers the reform of the power to stop and search originally conferred by sections 44 to 47 of the Terrorism Act 2000. These sections permitted executive branch actors to authorise stops and searches of vehicles and pedestrians within a broad geographical area for up to 28 days. Police officers could then employ this power to search for any articles which could be used in connection with terrorism, irrespective of whether they had grounds for suspecting the presence of articles of that kind. These sections essentially created two broad discretions: a “front-end discretion” of a senior police officer and the Secretary of State as to whether to make an authorisation and confirm an authorisation, and a “back-end discretion” of an individual officer as to whom to target for a stop and search. 

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"Senate bill rewrite lets feds read your e-mail without warrants"

From FourthAmendment.com:

Proposed law scheduled for a vote next week originally increased Americans' e-mail privacy. Then law enforcement complained. Now it increases government access to e-mail and other digital files.