CrimProf Blog

"[CA] Governor vetoes bill that would have limited police use of drones"

FourthAmendment.com links to this article from the L.A. Times.

Eldar & Laist on The Misguided Concept of Partial Justification

Shachar Eldar and Elkana Laist (Ono Academic College Faculty of Law and Government of the State of Israel) have posted The Misguided Concept of Partial Justification (Legal Theory, Vol. 20, 2014) on SSRN. Here is the abstract:

Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find however that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law, and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meet this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness, indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defence.

Mayeux on Lessons from History for the Future of the Right to Counsel

Sara Mayeux has posted Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel (Iowa Law Review, Vol. 99, p. 2161, 2014) on SSRN. Here is the abstract:

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

Gilchrist on Trial Bargaining

Gregory M. Gilchrist (University of Toledo College of Law) has posted Trial Bargaining on SSRN. Here is the abstract:

Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency. Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.

The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases. Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials. The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.

This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining. Through the mechanism of waiver – the very tool that makes plea bargaining possible – trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency. As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.

"Eric Holder’s Mixed Legacy on White-Collar Crime"

From The New York Times:

But the focus on misconduct by companies never resulted in any significant prosecutions of individual executives. The Justice Department passed on pursuing charges against officials at the American International Group, Lehman Brothers and Countrywide Financial, which were at the heart of the financial crisis. DealBook reported that the government now may pursue civil fraud chargesagainst Countrywide’s co-founder, Angelo R. Mozilo, and other executives at the mortgage lender, but that case would come more than six years after the financial crisis. That would hardly seem to redress the criticism about a lack of any signature prosecutions during Mr. Holder’s tenure.

The lack of individual prosecutions stands in stark contrast to Mr. Holder’s more aggressive approach to holding companies responsible for misconduct by seeking larger fines along with guilty pleas. That is especially true when those convictions do not have the same effect as a conviction of an individual. Mr. Holder seemed to raise the white flag on charging individuals for corporate misconduct in one of his last speeches before announcing he would step down. He lamented that “the buck still stops nowhere” when a corporation violates the law because “responsibility remains so diffuse, and top executives so insulated, that any misconduct could again be considered more a symptom of the institution’s culture than a result of the willful actions of any single individual.”

Justice Department criticizes Ferguson police

From Reuters.com:

The U.S. Justice Department asked the Ferguson, Missouri, Police Department on Friday to order its officers not to wear bracelets in support of the white policeman who shot to death an unarmed black teenager last month, sparking protests.

. . .

In a separate letter sent to Jackson earlier this week, the Justice Department said its investigators had observed Ferguson police officers not wearing, or obscuring, their name tags on their uniforms, a violation of the police department's rules.

"The failure to wear name plates conveys a message to community members that, through anonymity, officers may seek to act with impunity," the letter said.

Goodwin on Fetal Protection Laws

Michele Goodwin (University of California, Irvine School of Law) has posted Fetal Protection Laws: Moral Panic and the New Constitutional Battlefront (California Law Review, Vol. 102, No. 4, August 2014) on SSRN. Here is the abstract:

This Article makes three claims. First, it argues that doctors breach what should be an unwavering duty of confidentiality to pregnant patients by trampling the well-established expectations of the patient-physician relationship. Second, it argues that even if states’ chief goal is to promote fetal health by enacting protectionist laws, punitive state interventions contravene that objective and indirectly undermine fetal health. Finally, the Article argues that fetal protection laws unconstitutionally situate pregnant women as unequal citizens by unjustly denying them basic human and legal rights afforded other citizens.

"FBI agents invented a defendant to catch a judge"

From the Miami Herald, this AP report:

To catch a Philadelphia municipal judge they suspected of corruption, FBI agents invented a defendant — complete with a staged arrest and court appearances.

Court documents from Judge Joseph Waters Jr.'s guilty plea Wednesday to federal mail and wire fraud charges include details of the bogus arrest of a man named David Khoury for illegally carrying an unloaded Glock .40-caliber pistol during a 2012 traffic stop, The Philadelphia Inquirer (http://bit.ly/1votQwe) reported.

 

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	424	Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health  Scott Cunningham andManisha Shah  Baylor University and UCLA School of Public Affairs  Date posted to database: 19 Jul 2014 [2nd last week]
2	324	A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion  Mark William Osler and Mark W. Bennett  University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa)  Date posted to database: 1 Sep 2014 [4th last week]
3	268	Why on Earth Do People Use Bitcoin?  Catherine Martin Christopher  Texas Tech University School of Law  Date posted to database: 25 Jul 2014 [5th last week]
4	262	Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team  Jonathan Abel  Stanford Law School - Constitutional Law Center  Date posted to database: 27 Aug 2014 [new to top ten]
5	249	The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime' Michal Gilad  University of Pennsylvania Law School  Date posted to database: 19 Jul 2014 [7th last week]
6	207	Intellectual Property Infringement as Vandalism  Irina D. Manta and Robert E. Wagner  Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law  Date posted to database: 24 Aug 2014 [8th last week]
7	185	Banks, Marijuana, and Federalism  Julie Andersen Hill  University of Alabama - School of Law  Date posted to database: 30 Aug 2014 [new to top ten]
8	176	Waking the Furman Giant  Sam Kamin and Justin F. Marceau  University of Denver Sturm College of Law and University of Denver Sturm College of Law  Date posted to database: 5 Aug 2014 [9th last week]
9	164	Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash  Alison Siegler  University of Chicago Law School  Date posted to database: 23 Aug 2014 [new to top ten]
10	148	Moneyball Sentencing  Dawinder S. Sidhu  University of New Mexico - School of Law  Date posted to database: 12 Jul 2014 [new to top ten]

"Teacher resentenced to 10 years in notorious Montana rape case"

Doug Berman at Sentencing Law & Policy excerpts a news account. In part:

Stacey Dean Rambold, 55, was resentenced by a new judge exactly a year after he completed an initial one-month prison term for the crime. Rambold appeared to grimace as Friday’s sentence was read by Judge Randal Spaulding. He then was handcuffed and led away by deputies, pausing briefly to exchange words with family as he exited the courtroom.

Medwed on the Hazards of Maintaining Innocence after Conviction of Sex Offenses

Daniel S. Medwed (Northeastern University - School of Law) has posted Under Pressure: The Hazards of Maintaining Innocence after Conviction (Vilified: Wrongful Allegations of Sexual and Child Abuse, Ros Burnett, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

Innocent people convicted of child abuse or sexual offenses face a classic “Catch-22” situation that has ramifications on their prospects for parole and for exoneration in court. If prisoners continue to maintain their innocence while imprisoned, then corrections officials may interpret this behaviour as demonstrating a key trait of sex offenders — “denial” — and make them ineligible for treatment programs that are a prerequisite for parole in many jurisdictions. Even if they are technically eligible to apply for parole, inmates who claim innocence before parole boards harm their chances for release based on the belief that those unable to admit guilt are likely to re-offend; they are perceived as lacking in remorse and failing to address their offending behaviour. Prisoners who pursue their innocence through post-conviction litigation also face an uphill climb. This is attributable in part to cognitive biases that affect how prosecutors treat innocence claims in the aftermath of conviction and all too often lead them to discount their potential legitimacy. Considering the hazards that inmates encounter in maintaining their innocence in parole and post-conviction litigation settings, there is reason to think that many of them are not in denial, but rather the victims of profound miscarriages of justice. This Book Chapter will explore this conundrum in these two settings before concluding with some thoughts on reform.

"D.C. police will wear body cameras as part of pilot program"

From The Washington Post:

Under departmental policy described by Lanier on Wednesday, officers will be required to turn on the camera as soon as they receive a call for service or other request for assistance and will leave the camera rolling until they finish the call. Video that is not retained for a criminal or administrative investigation will be deleted after 90 days, Lanier said.

. . .

This month, New York City police began a test program involving 60 officers after a federal judge ordered the agency to begin using body cameras to address concerns about racial profiling. Los Angeles police are conducting similar tests with two types of cameras.

Burkoff on Law Enforcement Use of Drones

John Burkoff (University of Pittsburgh - School of Law) has posted Law Enforcement Use of Drones & Privacy Rights in the United States (In Festschrift in Honor of Professor Doctor Feridun Yenisey (Beta Publishers, Istanbul, 2014)) on SSRN. Here is the abstract:

Professor Burkoff discusses the constitutional, statutory, and regulatory law applicable to domestic law enforcement agents’ use of unmanned aerial vehicles (“drones”) in the United States. The use of drones by private citizens and law enforcement agencies has been increasing dramatically, raising the specter of unconstrained and unregulated invasions of individual privacy from the sky. The Federal Aviation Administration (FAA) regulates airspace in the U.S. and currently has adopted very strict constraints on the use of drones, except for their use by private hobbyists at low levels and away from heavily populated areas or airports. However, these FAA regulations are in the process of changing to be much more permissive and, in any event, they are ineffectively enforced. Some states, moreover, concerned about privacy issues, have recently enacted statutes restricting the use of drones by law enforcement agencies except in prescribed circumstances, e.g. after obtaining a warrant based upon probable cause. Many more states are considering the enactment of similar legislation.

The important question remains whether or not the Fourth Amendment, the constitutional provision creating constraints on governmental searches and seizures, applies to law enforcement’s use of drones.

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Baer on Justice Sotomayor in US v Jones

Miriam H. Baer (Brooklyn Law School) has posted Secrecy, Intimacy and Workable Rules: Justice Sotomayor Stakes Out the Middle in United States V. Jones (123 Yale Law Journal Forum 323) on SSRN. Here is the abstract:

This Essay was written for the Yale Law Journal Forum’s symposium, The Early Jurisprudence of Justice Sotomayor. The Essay analyzes Justice Sotomayor’s already oft-discussed concurrence in United States v. Jones, which exemplifies her attempt to stake out a “middle ground” approach to Fourth Amendment debates over surveillance and technology, and foregrounds intimacy and common-sense rules as guiding principles.

Fish on Sentencing and Interbranch Dialogue

Eric S. Fish has posted Sentencing and Interbranch Dialogue (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

American legislatures generally delegate primary control over sentencing policy to one of two actors – trial judges or a sentencing commission. In choosing between these actors, a legislature decides between two values, individualization or uniformity. If it empowers trial judges, sentences will be individually tailored to each defendant, but there will be unjust disparities because different judges have different sentencing practices. If it empowers a sentencing commission, sentences will be uniform across cases, but they will not be tailored to each defendant. This Article proposes a different architecture for American sentencing systems, one that relies on inter-branch dialogue to transcend this conflict between individualization and uniformity. In a dialogue-based system, judges and the sentencing commission are co-authors of the sentencing guidelines. They establish sentencing policies through dialogic feedback loops, wherein the first actor systematically influences the decisions of the second, which in turn systematically influences the decisions of the first.

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Grossman on Miranda's Right to Silence and Counsel

Steven P. Grossman (University of Baltimore - School of Law) has posted Separate But Equal: Miranda's Right to Silence and Counsel (Marquette Law Review, Vol. 96, No. 1, Fall 2012, pp. 151-203) on SSRN. Here is the abstract:

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. The article does so by demonstrating that the distinction is unsupportable either theoretically or pragmatically. It then shows that two recent holdings of the Court have paved the way for abolishing the distinction and developing an approach that both reflects the reality of custodial interrogation and is consistent with the principles behind the Fifth Amendment and the holding in Miranda.

Pfaff on The War on Drugs and Prison Growth

John F. Pfaff (Fordham University School of Law) has posted The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options (Harvard Journal on Legislation, Forthcoming) on SSRN. Here is the abstract:

Many commentators argue that the War on Drugs has played a major role in the four-decade long explosion in US incarceration rates, but in this paper I demonstrate that these claims do not generally rest on sound empirical footing. The direct incarceration of drug offenders explains only about 20% of prison growth (compared to over 50% for violent offenders), and drug convictions do not appear to drive parole revocations nor act as prior felonies that trigger harsh repeat offender laws for subsequent non-drug offending. Furthermore, drug offenders also appear to comprise only about 20% of those flowing through prison, which could be a more accurate measure of the War on Drugs' impact, since drug offenders generally serve disproportionately short sentences and thus may be under-represented in the one-day prison counts that are standard metric of prison's scope.

That said, the War on Drugs could still matter, but in more indirect -- and much harder to measure -- ways.

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"Tony Stewart Will Not Be Charged in Death of Kevin Ward Jr."

From the New York Times:

The county district attorney, R. Michael Tantillo, asked a grand jury to determine if there was evidence to support a charge of manslaughter in the second degree or criminally negligent homicide against Stewart, but the panel found no “aberrational driving.”

Tantillo said a toxicology report revealed that Ward was under the influence of marijuana at the time of the accident — “enough to impair judgment.”

. . .

“The grand jury was never tasked with the responsibility of anything other than to determine whether there was enough evidence to file charges against Tony Stewart,” Tantillo said in a news conference. “They were not considering whether anybody else was at fault. However, I am sure from their deliberations and discussions that the fact that Kevin Ward was observed running basically down two-thirds of the track into a hot track in the middle of other cars that were still racing played a big, big factor in their decision.”

Tantillo said that Stewart did not change course as he passed Ward and that the fishtail movement of his racecar seen on a widely viewed video of the accident came at impact and was a result of his car’s hitting Ward.

Mannheimer on Gideon, Miranda, and the Downside of Incorporation

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Gideon, Miranda, and the Downside of Incorporation on SSRN. Here is the abstract:

The U.S. Supreme Court decisions in Gideon v. Wainwright and Miranda v. Arizona are cut from the same cloth. Each was the result of the Court’s frustration with the tedium of case-by-case analysis, and so each represents a broad, bright-line rule. Gideon dictated that in all serious criminal cases, the defendant is entitled to counsel, ending the muddled, multi-factor analysis of Betts v. Brady. Miranda dictated that in all custodial interrogations, the suspect is entitled to counsel and to be informed of that right and his right to remain silent, purporting to settle three decades of lack of clarity in the jurisprudence of coercive interrogations. 

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Robinson et al. on General Defenses in American Criminal Law

Paul H. Robinson , Matthew Kussmaul , Camber Stoddard , Ilya Rudyak and Andreas Kuersten (University of Pennsylvania Law School , University of Pennsylvania Law School - Student/Alumni/Adjunct , White & Case LLP , University of Pennsylvania Law School - Student/Alumni/Adjunct and Government of the United States of America - National Oceanic & Atmospheric Administration (NOAA)) have posted The American Criminal Code: General Defenses on SSRN. Here is the abstract:

There are fifty-two different bodies of criminal law at work in the United States, as diverse as they are many. Each one stakes out seemingly innumerable positions on a range of highly contested issues. So, how is one to know what the “American rule” is on any given matter of criminal law? This article takes the first step towards answering this question by presenting the first installment of the “American Criminal Code.”

This article is the result of an exhaustive research project that examined every contested issue relating to the general defenses to criminal liability, including all justification, excuse, and non-exculpatory defenses. With this foundation, the article determines the majority American position among the fifty-two jurisdictions, and formulates statutory language for each defense that reflects the majority American rule in all respects. The article also compares and contrasts the majority position on each issue to all significant minority positions, the Model Penal Code, and the National Commission’s proposed code.

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