CrimProf Blog

Greabe on Prospective Constitutional Rulings

John Greabe (University of New Hampshire School of Law) has posted Managing the Costs of Constitutional Innovation on SSRN. Here is the abstract:

Courts sometimes withhold remedies for justiciable and meritorious constitutional claims despite Marbury’s dictum that rights-violations require remedies. The phenomenon occurs with frequency in litigation establishing path-breaking rulings because constitutional innovation can be disruptive and expensive. This paper responds to scholarship calling for a revival of constitutional non-retroactivity doctrine — the now moribund practice of announcing rulings with only prospective effect — to minimize the costs occasioned by constitutional change. The paper argues against reviving non-retroactivity doctrine and proposes a framework that provides courts with concrete guidance on when they may permissibly withhold constitutional remedies. The proposed approach rationalizes current law — which is surprisingly coherent when viewed in terms of how constitutional remedies function — and better respects Article III limits on judicial power than a regime that legitimizes prospective rulings.

Traum on Mass Incarceration at Sentencing

Anne R. Traum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Mass Incarceration at Sentencing (Hastings Law Journal, Vol. 64, No. 2, p. 423 (2013)) on SSRN. Here is the abstract:

Courts can address the problem of mass incarceration at sentencing. Although some scholars suggest that the most effective response may be through policy and legislative reform, judicial consideration of mass incarceration at sentencing would provide an additional response that can largely be implemented without wholesale reform. Mass incarceration presents a difficult problem for courts because it is a systemic problem that harms people on several scales — individual, family, and community — and the power of courts to address such broad harm is limited. This Article proposes that judges should consider mass incarceration, a systemic problem, in individual criminal cases at sentencing. Sentencing is well suited to this purpose because it is a routine phase of a criminal case when courts have great flexibility to individualize punishment based on individual and systemic factors. In this phase, judicial discretion is at its highest, the judges’ contact with defendants is most direct, and the court can consider the broadest information relevant to sentencing options and impacts. Mass incarceration can be viewed as a systemic concern that is relevant to both the defendant’s history and the traditional sentencing purposes — including the need to benefit public safety and to ensure that sentences are fair and just. Information about mass incarceration would enhance courts’ understanding of the impacts of sentencing on the defendant and others in the local community. This Article articulates how this can be accomplished in federal sentencing and suggests doctrinal and practice changes that would enhance courts’ capacity to consider and mitigate the harms of mass incarceration in individual cases.

Hovenkamp on Extraterritorial Criminal Antitrust Jurisdiction

Herbert J. Hovenkamp (University of Iowa - College of Law) has posted Extraterritorial Criminal Jurisdiction under the Antitrust Laws on SSRN. Here is the abstract:

When antitrust cases involve foreign conduct, the courts customarily appraise its substantive antitrust significance only after deciding whether the Sherman Act reaches the activity. Nevertheless, "jurisdictional" and "substantive" inquiries are not wholly independent. Both reflect two sound propositions: that Congress did not intend American antitrust law to rule the entire commercial world and that Congress knew that domestic economic circumstances often differ from those abroad where mechanical application of domestic antitrust decisions would make little economic, political, or social sense. 

The purpose of the distinction between the per se rule and rule of reason is to identify and distinguish situations where anticompetitive effects can be assessed at relatively low administrative costs from those that require more complete analysis. The Ninth Circuit has spoken of a "jurisdictional" rule of reason. However, merging considerations of comity, foreign interests, and domestic effects from extraterritorial conduct into questions about market definition and competitive impact unnecessarily complicates a set of queries that are already complicated enough and are in fact quite different from one another. 

One important rationale for expansive reach in such cases is that the sovereign representing purchasers typically has a greater interest than the sovereign representing sellers. A cartel in one country fixing the price of its goods elsewhere transfers wealth away from the territory containing the buyers and toward the territory containing the sellers. As a result, sovereigns, including the United States itself, have typically been less concerned with condemning restraints on export trade where all the buyers are foreign than with restraints on imports. This aspect of United States policy is reflected in the Foreign Trade Antitrust Improvements Act (FTAIA) as well as the Restatement (Third) of the Foreign Relations Law of the United States. At the same time, however, the "effects" query takes on additional relevance in cases involving extraterritorial conduct, because legislative jurisdiction under the Commerce Clause or statutory reach under the Sherman Act or FTAIA require some harmful effect in the United States. Thus, for example, a naked cartel abroad can be made subject to a criminal indictment and per se treatment. However, the government would also have to show a sufficient effect justifying invocation of United States law.

Walker on Sex, Slavery & the Freedom Principle

Anders Walker (Saint Louis University - School of Law) has posted Strange Traffic: Sex, Slavery & the Freedom Principle on SSRN. Here is the abstract:

This article uses the recent prosecution of a sex trafficking case in rural Missouri to argue three points. One, the federal law of trafficking is currently being used in unanticipated ways, including the apprehension of individuals who pay for sex. Two, trafficking invites creative use precisely because it provides prosecutors with a more salient justification for punishment than either legal moralism or harm; a rhetorical plea to anti-slavery that enjoys a longstanding but under-theorized role in criminal law rhetoric. Three, anti-slavery’s recurrence in criminal law rhetoric underscores a larger doctrinal point, namely that H.L.A. Hart’s version of the harm principle missed its subordinate relationship to what J.S. Mill termed the principle of freedom.

Medwed on Utset on Deterrence Theory and the Corporate Criminal Actor

Daniel S. Medwed (Northeastern University - School of Law) has posted Deterrence Theory and the Corporate Criminal Actor: Professor Utset's Fresh Take on an Old Problem (Virginia Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This essay comments on Professor Manuel Utset's latest work in the area of corporate criminal conduct and time-consistent preferences. The essay praises Professor Utset for developing a strong theoretical basis for justifying the external regulation of corporate actors, but also addresses another implication of his theory -- that it has salience in warranting greater internal regulation as well.

Wexler on Therapeutic Jurisprudence and Positive Criminology

David B. Wexler (University of Puerto Rico - School of Law) has posted Getting and Giving: What Therapeutic Jurisprudence Can Get from and Give to Positive Criminology (6 Phoenix Law Review, 2013 (Forthcoming)) on SSRN. Here is the abstract:

This short essay explores the potential symbiotic relationship between therapeutic jurisprudence(TJ) and the newly-conceptualized area of Positive Criminology, a natural offshoot,with some important differences, of positive psychology. Therapeutic jurisprudence concentrates on the psychological impact of 'legal landscapes' (legal rules and legal procedures) and of 'practices and techniques' (roles and behaviors of legal actors, including lawyers, judges, and others working in a legal context). Under some conceptualizations, the 'legal landscape' has been likened to 'bottles' and the 'practices and techniques' to 'liquid', and one important task of a TJ agenda is to analyze how much TJ liquid can flow into given 'bottles'. 

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Ball on Defunding State Prisons

W. David Ball (Santa Clara School of Law) has posted Defunding State Prisons on SSRN. Here is the abstract:

Local agencies drive criminal justice policy, but states pick up the tab for policy choices that result in state imprisonment. This distorts local policies and may actually contribute to increased state prison populations, since prison is effectively “free” to the local decisionmakers who send inmates there. This Article looks directly at the source of the “correctional free lunch” problem and proposes to end state funding for prisons. States would, instead, reallocate money spent on prisons to localities to use as they see fit — on enforcement, treatment, or even per-capita prison usage. This would allow localities to retain their decision-making autonomy, but it would internalize the costs of those decisions.

Bizarre internet cannibalism fantasy or attempted crime?

The New York Times has this story:

[A police] officer, Gilberto Valle, has been charged with plotting on the Internet to kidnap, rape, kill and cannibalize female victims. His wife was the first witness in the trial, which began on Monday in Federal District Court in Manhattan.

. . .

There is no evidence that any of the women that Officer Valle was accused of plotting to kill were kidnapped or harmed.

The trial’s opening arguments underscored that theme. A federal prosecutor, Randall W. Jackson, told jurors that the officer had been plotting real crimes to kill actual victims, while Officer Valle’s lawyer, Julia L. Gatto, contended that he had merely been living out deviant fantasies in Internet chat rooms, with no intention of carrying them out.

 

Transcripts from this week's criminal law/procedure oral arguments

are here. Here are the issues involved, as summarized by ScotusBlog, which also links to papers:

Monday

• McQuiggin v. Perkins: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”
  
• Trevino v. Thaler: Whether the Court should vacate the Court of Appeals’ opinion and remand to the Court of Appeals for consideration of Mr. Trevino’s argument under Martinez v. Ryan?

Tuesday

• Maryland v. King: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
  
• Peugh v. U.S.: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

 

Mathen on Polygamy

Carissima Mathen (University of Ottawa - Faculty of Law (Common Law)) has posted Reflecting Culture: Polygamy and the Charter (Supreme Court Law Review, 57, 2012) on SSRN. Here is the abstract:

The Canadian Charter of Rights and Freedoms states as a general interpretative principle that its substantive provisions must be applied so as to preserve and maintain the multicultural heritage of Canadians. This principle stands with other broad ideals of our political community – such as pluralism, mutual respect and human dignity – which constitute important aspects of our legal culture. Any society that seeks to be diverse yet bound by common values will face deep challenges, as conflicts emerge over the meaning of “a good life”. At time such controversies can appear to raise existential issues for the society in question. In this paper I explore one such controversy: what to do about the offence of polygamy. In 2011, in an unprecedented court proceeding, the British Columbia Supreme Court considered the constitutionality of section 293 of the Criminal Code which penalizes all forms of polygamous unions. In an advisory opinion the Supreme Court concluded that in all but one respect the provision does not violate the Charter’s fundamental freedom of religion, or the principles of fundamental justice. In this article, I interrogate the opinion as a false recounting of cross-cultural clash. The polygamy debate reveals another aspect of cultural contestation, not between cultures but within the same one – over the role of criminal law, our view of each other and our commitment to the Charter’s underlying ideals.

Lee on Gross on Moralism and Criminal Law

Youngjae Lee (Fordham University School of Law) has posted Can Criminal Law Do without Moralism? (Journal of Moral Philosophy, Forthcoming) on SSRN. Here is the abstract:

This is a review of Hyman Gross, Crime and Punishment: A Concise Moral Critique (Oxford: Oxford University Press, 2012). A substantially shorter version will be published by Journal of Moral Philosophy in 2013.

"DNA and the Constitution"

From The New York Times:

Maryland argues that collecting and analyzing DNA is like fingerprinting. But the purpose of fingerprinting is to identify someone who has been arrested. Maryland was using DNA for investigative purposes, not identification, and doing so without legal justification.

Maryland also argues that the incursion on Mr. King’s privacy was minor compared with the major benefit in crime-solving. But the number of crimes solved with DNAfrom people arrested has been low. The substantial harm to innocent people that could result from the misuse of DNA greatly outweighs the benefits. And the safeguard against such harm is the Fourth Amendment, whose fundamental protections the Maryland court upheld.

 

Statement criticizing AUSA's racial remarks at trial

Justice Sotomayor issued a statement, joined by Justice Breyer, concurring in the Court's decision not to grant cert in Calhoun v. United States but criticizing the prosecutor for asking a witness, "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you--a light bulb doesn't go off in your head and say, 'This is a drug deal?'" The statement also criticizes the Government for failing to acknowledge the inappropriateness of the comment during subsequent appeals.

Today's criminal law/procedure cert grants

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

• Burt v. Titlow:  (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.
• Kansas v. Cheever: (1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

Scott on Miller v. Alabama and Juvenile Justice Policy

Elizabeth S. Scott (Columbia University - Law School) has posted Miller v. Alabama and the (Past and) Future of Juvenile Justice Policy (Minnesota Journal of Law and Inequality, Forthcoming) on SSRN. Here is the abstract:

This essay was the keynote address for a symposium on Miller v Alabama, the 2012 Supreme Court opinion holding unconstitutional under the Eighth Amendment a statute imposing a mandatory sentence of life without parole for juveniles convicted of homicide. The essay argues that Miller embodies a way of thinking about juvenile crime that has taken hold in the early 21st century — an approach that emphasizes the importance for legal policy of developmental differences between juveniles and adults. This emerging trend contrasts sharply with the regulatory approach of the 1990s when moral panics over juvenile crime fueled punitive law reforms that transformed juvenile justice policy. The essay describes this period of moral panic and the factors that have contributed to a more deliberative pragmatic response to youth crime in recent years. Finally it proposes strategies aimed at limiting the harmful impact of moral panics that inevitably will arise in the future — and reinforcing the current policy direction.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	13785	Ham Sandwich Nation: Due Process When Everything is a Crime  Glenn Harlan Reynolds,  University of Tennessee College of Law,  Date posted to database: January 20, 2013
2	444	Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras  James J. Brudney, Lawrence Baum,  Fordham University - School of Law, Ohio State University (OSU) - Department of Political Science,  Date posted to database: January 2, 2013
3	443	Grading the Foreign Corrupt Practices Act Guidance  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: December 14, 2012
4	241	Federal Tax Crimes, 2013  John A. Townsend, John A. Townsend,  University of Houston School of Law, Townsend and Jones, LLP,  Date posted to database: February 7, 2013 [new to top ten]
5	239	Eyewitness Memory for People and Events (Chapter 25)  Gary L. Wells, Elizabeth F. Loftus,  Iowa State University, Department of Psychology , University of California, Irvine - Department of Psychology and Social Behavior,  Date posted to database: January 17, 2013 [4th last week]
6	186	What is Philosophy of Criminal Law?  Youngjae Lee,  Fordham University School of Law,  Date posted to database: December 16, 2012 [5th last week]
7	157	Narrative, Truth & Trial  Lisa Kern Griffin,  Duke University - School of Law,  Date posted to database: December 16, 2012
8	156	Review of Patricia S. Churchland, 'Braintrust: What Neuroscience Tells Us About Morality'  John Mikhail,  Georgetown University - Law Center,  Date posted to database: December 29, 2012 [6th last week]
9	143	David Baldus and the Legacy of McCleskey v. Kemp  Samuel R. Gross,  University of Michigan Law School,  Date posted to database: January 15, 2013 [8th last week]
10	138	Targeting and the Concept of Intent  Jens David Ohlin,  Cornell Law School,  Date posted to database: February 12, 2013 [new to top ten]

 

Klaming & Koops on Neuroscientific Evidence in the Netherlands

Laura Klaming and Bert-Jaap Koops (Tilburg Institute for Law, Technology and Society (TILT) and Tilburg Institute for Law, Technology and Society (TILT)) have posted Neuroscientific Evidence and Criminal Responsibility in the Netherlands (INTERNATIONAL NEUROLAW: A COMPARATIVE ANALYSIS, pp. 227-256, T.M. Spranger, ed., Heidelberg etc, Springer, 2012) on SSRN. Here is the abstract:

Insights from neuroscientific research are increasingly advancing our understanding of the neural correlates of human behaviour, cognition and emotion and can therefore be of significant practical use in a legal context. One of the most fundamental legal applications of neuroscience refers to the assessment of criminal responsibility. Recent empirical studies have established links between certain brain structures and antisocial or criminal behaviour. Three areas of brain abnormalities that are relevant for assessments of criminal responsibility can be differentiated: (1) impairments in the frontal lobes and associated problems with impulse control, aggressiveness and the processing of information that is evocative of moral emotions, (2) abnormalities in the limbic system and associated problems in affective processing, and (3) the potential side-effects of neurotechnologies and associated problems with impulse control, aggressiveness and disinhibited behavior. This chapter addresses recent research findings in these three areas and how these could affect responsibility assessments. In addition, eight cases are discussed in which insights from neuroscientific research have been used by Dutch courts in responsibility assessments. By illustrating how neuroscientific evidence has already entered the courtroom in the Netherlands, the possible conditions and implications of such practice are addressed.

Gouldin on the Judicial Role in Material-Witness Detentions

Lauryn P. Gouldin (Syracuse University College of Law) has posted When Deference is Dangerous: The Judicial Role in Material-Witness Detentions (American Criminal Law Review, Vol. 49, No. 3, 2012) on SSRN. Here is the abstract:

Federal prosecutors’ aggressive use of the Material Witness Statute to detain scores of potential terrorism suspects during the decade following 9/11 has been well established by scholars and human rights groups. Details about these detentions have also emerged in criminal and civil litigation, including Ashcroft v. al-Kidd, the first case challenging the government’s witness detention practices to reach the Supreme Court.

This Article posits that the fixation in the literature (and in lawsuits like al-Kidd) on prosecutors’ allegedly pretextual use of the statute has overshadowed the complicity of the judiciary in authorizing these arrests and detentions. The provisions of the Material Witness Statute - and its relationship to the contempt power - make clear that, despite prosecutors’ efforts to co-opt the statute as a law enforcement tool, the authority to arrest and detain material witnesses is a judicial power. As such, the factors that prompted judicial acquiescence in these cases require greater scrutiny. 

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Next week's criminal law/procedure arguments

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

Monday

• McQuiggin v. Perkins: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”
  
• Trevino v. Thaler: Whether the Court should vacate the Court of Appeals’ opinion and remand to the Court of Appeals for consideration of Mr. Trevino’s argument under Martinez v. Ryan?

Tuesday

• Maryland v. King: Whether the Fourth Amendment allows the states to collect and analyze DNA from people arrested and charged with serious crimes.
  
• Peugh v. U.S.: Whether a sentencing court violates the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence.

 

Slobogin on the Essential Fourth Amendment

Christopher Slobogin (Vanderbilt University - Law School) has posted What is the Essential Fourth Amendment? (Texas Law Review, Vol. 91, No. 2, 2012) on SSRN. Here is the abstract:

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhofer may push the envelope too far or not far enough, but concludes that More Essential Than Ever is a welcome reminder for scholars and the public at large that the Fourth Amendment is a fundamental bulwark of constitutional jurisprudence and deserves more respect than the Supreme Court has given it. Appended to the review of Schulhofer's book is a review of another book, Simon Chesterman's One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty.

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