CrimProf Blog

""Why innocent people plead guilty": Judge Jed Rakoff suggests "tens of thousands of innocent people" have been "coerced into pleading guilty""

Doug Berman at Sentencing Law & Policy excerpts and links to an article covering the judge's speech:

“Plea bargains have led many innocent people to take a deal,” Rakoff said. “People accused of crimes are often offered five years by prosecutors or face 20 to 30 years if they go to trial. … The prosecutor has the information, he has all the chips … and the defense lawyer has very, very little to work with. So it’s a system of prosecutor power and prosecutor discretion. I saw it in real life [as a criminal defense attorney], and I also know it in my work as a judge today.”

"Botched Oklahoma execution reignites death penalty debate"

From the Washington Post:

Tuesday night’s botched execution in Oklahoma, which resulted in an inmate’s writhing death from a heart attack 43 minutes after he received what was supposed to be a lethal injection, was just one in a series of bungled execution attempts the past few years. It’s prompting calls for a moratorium on capital punishment from death penalty opponents.

The inmate, Clayton Lockett, was confirmed unconscious 10 minutes after the first dose in the state’s new three-drug protocol was administered. The first drug, midazolam, is intended to render a person unconscious. But three minutes later, he began breathing heavily, thrashing and straining to lift his head, media witnesses said.

Reporters for Tulsa World and KFOR-TV in Oklahoma City said Lockett called out from the gurney, “man.”

The blinds were then lowered to prevent people in the viewing gallery from seeing inside the death chamber. Oklahoma Department of Corrections Director Robert Patton answered a ringing phone and left the room with a few officials.

Rudovsky on Effective Assistance of Counsel

David Rudovsky (University of Pennsylvania Law School) has posted Gideon and the Effective Assistance of Counsel: The Rhetoric and the Reality (Law and Inequality: A Journal of Theory and Practice, Vol. 32, 2014 Forthcoming) on SSRN. Here is the abstract:

There is general agreement that the “promise” of Gideon has been systematically denied to large numbers of criminal defendants. In some cases, no counsel is provided; in many others, excessive caseloads and lack of resources prevent appointed counsel from providing effective assistance. Public defenders are forced to violate their ethical obligations by excessive case assignments that make it impossible for them to practice law in accordance with professional standards, to say nothing of Sixth Amendment commands. This worsening situation is caused by the failure of governmental bodies to properly fund indigent defense services and by the refusal of courts to provide adequate remedial measures to ensure that appointed counsel have the time and resources necessary to meet their constitutional obligations. 

I propose a litigation strategy as a means of confronting the issues of funding and resources that incorporates both Sixth Amendment and professional responsibility standards to enable courts to order structural relief in cases of systemic deficiencies.

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Yesterday's oral arguments on cellphone searches

Transcript in Riley v. California is here and in United States v. Wurie is here. Commentary on the arguments is collected at ScotusBlog.

College sexual assaults

Two pieces today. First, from The New York Times:

WASHINGTON — Reacting to a series of highly publicized rapes on college campuses, the White House on Monday released guidelines that increase the pressure on universities to more aggressively combat sexual assaults on campus.

The recommendations urge colleges, among other measures, to conduct anonymous surveys about sexual assault cases, adopt anti-assault policies that have been considered successful at other universities and to better ensure that the reports of such crimes remain confidential. The guidelines are contained in a report by a White House task force thatPresident Obama formed early this year, and the administration is likely to ask Congress to pass measures that would enforce the recommendations and levy penalties for failing to do so. The government will also open a website, NotAlone.gov, to track enforcement and provide victims with information.

And second, from Philadelphia Magazine, regarding problems at Swarthmore:

But in the midwinter of 2013, Sendrow says, she was in her room with a guy with whom she’d been hooking up for three months. They’d now decided — mutually, she thought — just to be friends. When he ended up falling asleep on her bed, she changed into pajamas and climbed in next to him. Soon, he was putting his arm around her and taking off her clothes. “I basically said, ‘No, I don’t want to have sex with you.’ And then he said, ‘Okay, that’s fine’ and stopped,” Sendrow told me. “And then he started again a few minutes later, taking off my panties, taking off his boxers. I just kind of laid there and didn’t do anything — I had already said no. I was just tired and wanted to go to bed. I let him finish. I pulled my panties back on and went to sleep.”

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Baer on the Two Faces of Corporate Fraud

Miriam H. Baer (Brooklyn Law School) has posted Confronting the Two Faces of Corporate Fraud (Florida Law Review, Vol. 66, No. 87, 2014) on SSRN. Here is the abstract:

Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self. 

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"Applying the Fourth Amendment to the global Internet"

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

The global nature of Internet surveillance is one of the many revelations from Edward Snowden’s disclosures that began last summer. A decade or two ago, Internet surveillance meant surveillance inside the United States. When asking how the Fourth Amendment applied to the Internet, we naturally assumed that the target, the evidence, and the government were inside the United States. But the Internet has changed. That assumption is less and less true. A fascinating opinion handed down on Friday from Magistrate Judge Francis in New York showcases the problem. In a routine application for a warrant to obtain a target’s e-mail in a domestic investigation, it turned out that the data was stored on a server in Ireland rather than the United States. How do the rules change? How should Fourth Amendment law adapt?

Austin on Sentencing Mitigation Videos

Regina Austin (University of Pennsylvania Law School) has posted 'Not Just a Common Criminal': The Case for Sentencing Mitigation Videos on SSRN. Here is the abstract:

Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing. This article provides a complete analysis of the constituent elements of these videos, particularly their narrative structure. It raises strategic considerations that are pertinent to the decision to use a video during the sentencing process and explores questions of image ethics that can arise when a defendant’s children and parents are enlisted as video witnesses. Finally and most importantly, it addresses the hearsay challenges that not only present obstacles to the admission of sentencing videos in formal sentencing proceedings, but also impact the weight they are accorded in general.

Givati on Social Values and Plea Bargaining Regimes

Yehonatan Givati (Hebrew University of Jerusalem - Faculty of Law) has posted Legal Institutions and Social Values: Theory and Evidence from Plea Bargaining Regimes (Journal of Empirical Legal Studies, Forthcoming) on SSRN. Here is the abstract:

How do social values shape legal institutions across countries? To address this question I focus on one important legal institution -- the use of plea bargaining in criminal cases. I develop a model in which the optimal scope of plea bargaining depends on social values. Specifically, a lower social emphasis on ensuring that innocent individuals are not punished, and a greater social emphasis on ensuring that guilty individuals are punished, lead to a greater use of plea bargaining. Using unique cross-country data on social preferences for punishing the innocent versus letting the guilty go free, as well as an original coding of plea bargaining regimes across countries, I obtain results that are consistent with the model.

Player on Public Assistance, Drug Testing, and Population-Based Legal Analysis

Candice T. Player (University of Pennsylvania Law School & the Department of Medical Ethics and Health Policy, Perelman School of Medicine at the University of Pennsylvania) has posted Public Assistance, Drug Testing, and the Law: The Limits of Population-Based Legal Analysis (American Journal of Law and Medicine, Vol. 40, Pg. 26, 2014) on SSRN. Here is the abstract:

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues — not unlike law and economics — as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still, population-based analysis is not without its problems. At times, Parmet claims too much territory for the population perspective. Moreover, Parmet urges courts to recognize population health as an important norm in legal reasoning. What should we do when the insights of public health and conventional legal reasoning conflict? Still in its infancy, population-based analysis offers little in the way of answers to these questions. This Article applies population-based legal analysis to the constitutional problems that arise when states condition public assistance benefits on passing a drug test, thereby highlighting the strengths of the population perspective and exposing its weaknesses.

Today's criminal law/procedure cert grant

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

• Yates v. United States: Whether Mr. Yates was deprived of fair notice that destruction of fish would fall within the purview of 18 U.S.C. § 1519, which makes it a crime for anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object” with the intent to impede or obstruct an investigation, where the term “tangible object” is ambiguous and undefined in the statute, and unlike the nouns accompanying “tangible object” in section 1519, possesses no record-keeping, documentary, or informational content or purpose.

"Another States Moves to Criminalize ‘Revenge Porn’"

From Time.com:

Colorado joins some two dozen other states working on legislation that would criminalize the nonconsensual online publication of sexual photos of a person specifically to humiliate or blackmail them.

Restitution for child porn

Eric Posner has a post critiquing the Supreme Court's approach at Slate.com. In part, addressing how much should be paid to the victim by the convict:

How much should he have to pay her?

Zero, three of the conservative justices argued in dissent Wednesday. All $3.4 million, argued Justice Sonia Sotomayor, also in dissent. Something, held the majority, in an opinion written by Justice Anthony Kennedy. The conservatives got the law right, Sotomayor got the morality right, and Kennedy—characteristically trying to have it both ways—created a muddle.

. . .

Kennedy essentially tells district court judges to go figure it out. He uses vague directives for determining the restitution awards like “reasonable and circumscribed.” On the scale between zero and $3.4 million, where does that fall? Who knows? When a court goes squishy like this, you know something is wrong. Kennedy certainly could have been more precise if he had wanted to, but precision would have exposed the defects in his argument.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	694	Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing  Mark W. Bennett and Ira P. Robbins  U.S. District Court (Northern District of Iowa) and American University - Washington College of Law  Date posted to database: 13 Mar 2014
2	406	The Due Process Exclusionary Rule  Richard M. Re  Yale Law School  Date posted to database: 28 Feb 2014
3	346	Thinking Slow About Sexual Assault in the Military  Matthew David Burris  United States Airforce  Date posted to database: 26 Mar 2014
4	309	Law and Neuroscience  Owen D. Jones, Jeffrey D. Schall andFrancis X. Shen  Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School  Date posted to database: 19 Mar 2014
5	292	Will There Be a Neurolaw Revolution?  Adam J. Kolber  Brooklyn Law School  Date posted to database: 19 Feb 2014 [6th last week]
6	275	Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction  Deborah Tuerkheimer  DePaul University - College of Law  Date posted to database: 3 Mar 2014 [5th last week]
7	264	A Perfect Storm Brewing for Fire Investigators in Court  Terry-Dawn Hewitt and Wayne J. McKenna  University of Denver Sturm College of Law and University of Denver Sturm College of Law  Date posted to database: 9 Mar 2014
8	185	How to Lie with Rape Statistics: America's Hidden Rape Crisis  Corey Rayburn Yung  University of Kansas School of Law  Date posted to database: 6 Mar 2014 [10th last week]
9	140	Shadow Sentencing: The Imposition of Supervised Release  Christine S. Scott-Hayward  California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management  Date posted to database: 21 Feb 2014 [new to top ten]
10	137	The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration  Anders Walker  Saint Louis University - School of Law Date posted to database: 7 Mar 2014 [new to top ten]

Ross on the Myths of American Corrections

Jeffrey Ian Ross (University of Baltimore - School of Law - Center for Comparative and International Law) has posted Debunking the Myths of American Corrections: An Exploratory Analysis (Critical Criminology: An International Journal, Vol. 20, No. 4, 2012, pp. 409-427) on SSRN. Here is the abstract:

This article briefly reviews the literature on the myths of corrections and then identifies sixteen of the most prominent misrepresentations about jails, prisons, correctional workers, and convicts in the United States. It then systematically examines the reality of each. The article uses scholarly research, governmental and news reports, and personal experience of former inmates to cast doubt on many of the myths that have been developed. It argues that most of the misrepresentations about corrections can be called into question.

"COURT WEIGHS POLICE USE OF CELLPHONE TOWER DATA"

From AP:

MIAMI (AP) -- In the latest challenge over digital age technology and privacy rights, a federal appeals court wrestled Friday with the authority of law enforcement to obtain and use records from cellphone towers, which reel in a treasure trove of user information every minute and can link suspects to crime scenes.

In Quartavious Davis' case, authorities obtained from cellphone companies more than 11,000 tower location records spanning 67 days, some of which placed his phone near Miami-area stores hit by a string of robberies in 2010. Davis, 22, is serving a 162-year prison sentence.

Next week's criminal law/procedure arguments

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

Tuesday

• Riley v. California: Whether evidence admitted at petitioner's trial was obtained in a search of petitioner's cell phone that violated petitioner's Fourth Amendment rights.
• U.S. v. Wurie: Whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested.

Bilz on Testing the Expressive Theory of Punishment

Kenworthey Bilz (University of Illinois College of Law) has posted Testing the Expressive Theory of Punishment on SSRN. Here is the abstract:

This article presents empirical support for the argument that punishment of a wrongdoer affects the social standing of his victim. This argument is most closely associated with the expressive theory of punishment, especially as articulated by the moral philosopher Jean Hampton (1988, 1992). In three experiments I show support for the basic point of Hampton’s expressive theory, that punishing a criminal offender does increase the victim’s social standing in the community, and failing to punish diminishes it. I show this effect across three very different types of crime: rape, credit theft, and battery. I also test some logical extensions of Hampton’s expressive theory of punishment. For instance, if victims gain or lose social standing as a result of punishing, so — inversely — should offenders. In addition, different punishers should affect different sources of social standing (such as in-group versus out-group). Finally, the effects on perceived social standing should be felt not just by victims, but by third-party observers as well. I also test these subsidiary predictions, and find support for them.

Steinhoff on Shalom on Self-Defense Against the Tactical Bomber

Uwe Steinhoff (University of Hong Kong - Department of Politics and Public Administration) has posted Shalom on the Impermissibility of Self-Defense Against the Tactical Bomber on SSRN. Here is the abstract:

A standard example of a justified aggressor is the tactical bomber who is about to destroy an ammunitions factory in a proportionate, justified military attack, full well knowing that an innocent civilian bystander will also be killed by his attack ("collateral damage"). Intuitively it seems hard to believe that the innocent bystander threatened by the tactical bomber is morally prohibited from killing him in self-defense. Yet, Stephen R. Shalom indeed endorses such a prohibition. I shall argue that all the examples Shalom offers in support of his view are disanalogous to the case in question, and provide examples that are analogous and strongly suggest that Shalom’s claim leads to counter-intuitive implications. Moreover, I will provide a clear-cut case that demonstrates that Shalom cannot rely on a general principle prohibiting lethal violence against permissible violence. Thus, I conclude that Shalom has failed to provide a convincing argument in support of his case.

Bi on The Death Penalty for Drug-Related Crime in China

Yingxi Bi (International Centre on Human Rights and Drug Policy) has posted  On the Death Penalty for Drug-Related Crime in China (Human Rights and Drugs, Volume 2, No. 1, 2012) on SSRN. Here is the abstract:

This article analyses the death penalty for drug-related crime in China. It considers the basis upon which China applies the death penalty for drug-related offences, and the debates surrounding the imposition of the death penalty for drug-related offences from the perspective of both penology and human rights. Based on the evidence discerned about China’s current situation, the article discusses the possibility of China abolishing the death penalty for drug-related crime in the future.