CrimProf Blog

Next week's criminal law/procedure arguments

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

Monday

• Ohio v. Clark: (1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.

Tuesday

• Davis v. Ayala: Whether a state court's rejection of a claim of federal constitutional error on the ground that any error, if one occurred, was harmless beyond a reasonable doubt is an “adjudicat[ion] on the merits” within the meaning of 28 U.S.C. § 2254(d), so that a federal court may set aside the resulting final state conviction only if the defendant can satisfy the restrictive standards imposed by that provision; and (2) whether the court of appeals properly applied the standard articulated in Brecht v. Abrahamson.
• City of Los Angeles v. Patel: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.

Sweeny on Adultery and Fornication Prohibitions

JoAnne Sweeny (University of Louisville Louis D. Brandeis School of Law) has posted Undead Statutes: The Rise, Fall, and Continuing Uses of Adultery and Fornication Criminal Laws (46 Loyola University Chicago Law Journal, 127 (2014)) on SSRN. Here is the abstract:

Cohabitation is a reality for a majority of Americans. Non-monogamous relationships are increasing over time, yet having a sexual relationship outside of marriage is illegal in a surprising number of states. Conservative groups or politicians also occasionally champion these laws, ensuring their longevity. This enduring conflict of values between the majority and a vocal minority is part of a cultural trend that has existed for centuries. From colonial times to the present, adultery and fornication laws have gone from being the most prolifically enforced to being virtually ignored by prosecutors and held to be unconstitutional invasions of privacy by judges. This Article traces that progression by looking at how American culture has changed over time, including judicial views on and changing evidentiary standards for the crimes of adultery and fornication, both of which have led to fewer prosecutions. The resulting picture indicates why these laws are no longer regularly enforced and why they still remain part of the criminal codes in several states, regardless of their uncertain constitutional pedigree.

Moore on Choosing Counsel

Janet Moore (University of Cincinnati College of Law) has posted Democracy Enhancement and the Sixth Amendment Right to Choose on SSRN. Here is the abstract:

A democracy deficit undermines the legitimacy of criminal justice systems. People enmeshed in these systems are disproportionately poor people and people of color with little voice in creating or implementing the governing law. A stark example is the Sixth Amendment right to choose a lawyer. This understudied and under-theorized right is protected for criminal defendants who can afford to hire counsel. Yet according to Supreme Court dicta and rulings by other courts across the country, poor people “have no right to choose” their lawyers. This Article argues that the Sixth Amendment right to choose should apply to the overwhelming majority of defendants who are poor as well as to the minority who can retain counsel. 

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Wilt on Accountability in Federal Corporate Criminal Prosecutions

Michael Patrick Wilt (George Mason University School of Law) has posted Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecutions (American Journal of Criminal Law, Vol. 42, No. 2, 2015) on SSRN. Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations? This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

"Supreme Court review of cell-site cases?"

Orin Kerr has this post at The Volokh Conspiracy, previewing oral argument from a case earlier this week:

[T]he en banc Eleventh Circuit will hear oral argument in United States v. Davis, the case I blogged about here and hereon whether the Fourth Amendment protects cell-site records. The en banc briefs are here, and an exhibit from the trial showing some of the cell-site records is here. The Eleventh Circuit doesn’t post oral argument audio, so we’ll likely be stuck relying on press accounts to find out what happened.

Whichever way the Eleventh Circuit rules, Supreme Court review is a possibility. It seems likely that Fourth Amendment protection for cell-site data will be the next big Fourth-Amendment-and-technology case at the Supreme Court, following the GPS case in 2012 and the searching-cellphones-on-arrest case in 2014. But when?

Let’s recall the lower court cases so far. The Fifth Circuit has held that there is no Fourth Amendment protection for historical cell-site records, and the Florida Supreme Court has held that the Forth Amendment protects cell-site records at least in real time. The Fourth Circuit held argument in mid-December on a historical cell site case, and in Davis we’ll get a ruling from the en banc Eleventh Circuit on the same issue. There may be some other cases working their way up to state Supreme Courts or even a federal circuit that I don’t know about. (The Third Circuit offered some dicta on the issue in 2010 without reaching a decision, but that doesn’t count.)

 

Mailath et al. on When and How Punishment Must Fit the Crime

George J. Mailath , Volker Nocke and Lucy White (University of Pennsylvania - Department of Economics , University of Mannheim - Department of Economics and Harvard Business School - Finance Unit) have posted When and How the Punishment Must Fit the Crime on SSRN. Here is the abstract:

In repeated normal-form (simultaneous-move) games, simple penal codes (Abreu, 1986, 1988) permit an elegant characterization of the set of subgame-perfect outcomes. We show that the logic of simple penal codes fails in repeated extensive-form games. By means of examples, we identify two types of settings in which a subgame-perfect outcome may be supported only by a profile with the property that the continuation play after a deviation is tailored not only to the identity of the deviator, but also to the nature of the deviation.

"Argentine Judge Rejects Criminal Case Against President"

From The New York Times:

BUENOS AIRES — An Argentine judge on Thursday dismissed the criminal allegations against President Cristina Fernández de Kirchner that had been brought by Alberto Nisman, a prosecutor who had accused her of conspiring to shield Iranian officials from responsibility for the deadly bombing of a Jewish community center here in 1994.

The judge, Daniel Rafecas, decided that the criminal complaint Mr. Nisman had put forward before his mysterious death last month was not sufficient to open an investigation into the president. In a 63-page decision released Thursday, Mr. Rafecas said that the allegations did not “minimally hold up” and that there was “not even circumstantial evidence” pointing to Mrs. Kirchner.

McBride on Tort and Criminal Law in an Age of Austerity

Nicholas McBride (University of Cambridge - Faculty of Law) has posted Tort Law and Criminal Law in an Age of Austerity (Matthew Dyson (ed), Unravelling Tort and Crime (Cambridge University Press, 2014)) on SSRN. Here is the abstract:

In this paper, I consider how tort law and criminal law - conceived as interlocking and overlapping systems for protecting and upholding the legal rights people have against other people - should operate in a society where there are not enough public funds available to run those systems properly or, in the case of tort law, assist people to take advantage of those systems. I discuss how we should identify what kinds of legal wrongs, or violations of people's legal rights, most need to be addressed by a legal system operating in financially straitened circumstances and how those wrongs might be most effectively be addressed in such circumstances. I also advance some arguments for thinking that we will be shortly living in a society where nowhere near enough money will be available to properly fund our justice system, and that we must start thinking now about the issues raised in this paper.

"DC legalizes marijuana despite threats from Congress"

Jurist has this story:

The District of Columbia (DC) [official website] on Thursday disregarded pressures from Congress and went forward with legalizing possession of marijuana after a voter-approved initiative. Notwithstanding warnings of repercussions by leaders in Congress, DC Mayor Muriel Bowser [official website] affirmed that marijuana would be legalized as approved [text] by nearly two-thirds of voters [website] in November. Although Congress appeared to block the initiative in December, District leaders claim the legislation was enacted before, and is thus unaffected, even though it did not come into effect until Thursday. Although it is unlikely that the Department of Justice would enforce the penalties of jail time for District officials for complying with the newly enacted laws, as they are in opposition with federal legislation, Congress could sue the city over its actions.

Horwitz on Domestic Violence Holds

Daniel A. Horwitz has posted Twelve Angry Hours: Improving Domestic Violence Holds in Tennessee Without Risk of Violating the Constitution (Tennessee Journal of Law & Policy, Spring 2015, Forthcoming) on SSRN. Here is the abstract:

Tennessee law currently provides that individuals who have been arrested for certain domestic violence offenses “shall not be released within twelve (12) hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.” However, Tennessee law also provides for an exception to this “12-hour hold” requirement that permits judges to release domestic violence arrestees before twelve hours have elapsed “if the official determines that sufficient time has or will have elapsed for the victim to be protected.” 

Following an especially high-profile incident of domestic violence that occurred in Nashville in June 2014, the Tennessee General Assembly is poised to amend Tennessee law to divest judges of all discretion to lift 12-hour domestic violence holds under any circumstances. The immediate effect of the proposed amendments would be to require all domestic violence arrestees to remain in jail for a minimum of twelve hours following their arrests, with no exceptions permitted for any reason. 

This Article suggests that the proposed amendments to Tenn. Code Ann. § 40-11-150 could result in several unintended policy consequences that harm — rather than help — victims of domestic violence. It further notes that such amendments could be susceptible to constitutional challenge for violating: (1) the Tennessee Constitution’s separation of powers doctrine; (2) the right to bail under the Tennessee Constitution; (3) the federal and state constitutional right to be free from unreasonable seizures; or (4) the federal and state constitutional right to Due Process. 

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Kopel et al. on Reforming Mental Health Law to Protect Public Safety and Help the Mentally Ill

David B. Kopel , Clayton E. Cramer and Carolyn J. Dobbins (Independence Institute , College of Western Idaho and Independent) have posted Reforming Mental Health Law to Protect Public Safety and Help the Severely Mentally Ill (Howard Law Journal, Forthcoming) on SSRN. Here is the abstract:

How to reduce gun violence, while respecting civil rights, including the Second Amendment? One such means is to provide much more help to people who suffer from severe mental illness. The biggest violence-reductive effect would be in diminishing the number of crimes against the mentally ill, who are disproportionately victimized.

Only a small minority of seriously mentally people commit violent crimes; but people with serious mentally illness people are significantly more likely to commit violent crimes than are people who are not seriously mentally ill. However, closer examination shows that seriously mental illness as a crime risk is mainly when that illness is accompanied by other risk factors, such as alcoholism, or unemployment. So helping seriously mental ill people improve their lives — such as by holding a steady job — will also have large crime-reducing effects. Helping people with untreated serious mental illness is a particularly relevant to reducing homicide and even more so for reducing mass attacks against strangers.

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Murray on Notice of Collateral Consequences of Pleas

Brian M. Murray (Temple University, Beasley School of Law) has posted Beyond the Right to Counsel: Increasing Notice of Collateral Consequences (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

In recent years, the increased collateral consequences of a criminal conviction have led to crippling effects on individuals and communities. In response to the problem of defendants pleading guilty without awareness of these indirect, albeit severe penalties, many commentators have called for an expansion of the right to counsel. These efforts, which are a step in the right direction, remain practically difficult to institute given current Supreme Court jurisprudence, legislative will, and resource deficiencies in the system. Expansion of the right to counsel also would keep the hefty burden of navigating the labyrinth of collateral consequences almost entirely on the defendant and defense attorneys, who are often overwhelmed and unable to account for the myriad consequences in a particular jurisdiction. This Article conceptualizes the issue of collateral consequences as a systemic literacy problem that requires an institutional solution that extends beyond the duties of defense counsel.

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Bennardo on Intertwined Cooperation and Plea Agreements

Kevin Bennardo (Indiana University Robert H. McKinney School of Law) has posted United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements (71 Washington and Lee Law Review Online 160 (2014)) on SSRN. Here is the abstract:

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty. A defendant’s breach of one should not affect the Government’s obligation to perform under the other. All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance. This intertwining undermines sentencing policy as set forth in the federal sentencing statute. Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

Alagood on Parole Release Hearings

R. Kyle Alagood has posted Parole Release Hearings: The Fallacy of Discretion (Thurgood Marshall School of Law Journal on Gender, Race & Justice, Vol. 5, 2015, Forthcoming) on SSRN. Here is the abstract:

Despite nearly every U.S. state having created a parole system, incarcerated offenders do not have a constitutional right to early release on parole, and parole hearings do not automatically invoke due process. The resultant discretion afforded to parole decision-makers, coupled with the administrative regime’s relaxed evidentiary standards, risks erroneous, vindictive, or politically motivated information tainting release decisions. Louisiana, the world’s prison capital, has recently initiated parole reforms that may provide a model for reforms nationally. This article details the evolution of Louisiana’s parole release structures, highlights problems with discretionary parole-release decision-making, and proposes Louisiana pilot reforms that may transfer to parole release systems in the United States.

Wexler on Therapeutic Jurisprudence

David B. Wexler (University of Puerto Rico - School of Law) has posted Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law (Essays on Therapeutic Jurisprudence in New Zealand (Warren Brookbanks ed., 2015 Forthcoming)) on SSRN. Here is the abstract:

This Foreword is a chapter in a book entitled Essays on Therapeutic Jurisprudence in New Zealand, prepared for the 4th International Conference on Therapeutic Jurisprudence, Auckland, Aotearoa, New Zealand, 2015. The Foreword forms the basis of a keynote address at that conference.

Opinion rejecting liability for destruction of undersized fish under record-keeping statute

Justice Ginsburg announced the judgment of the Court in Yates v. United States in an opinion joined by the Chief Justice and Justices Breyer and Sotomayor. Justice Alito concurred in the judgment. Justice Kagan dissented, joined by Justices Scalia, Kennedy, and Thomas.

Dusek on The Effects of Simpler Criminal Procedure

Libor Dusek (CERGE-EI (Center for Economic Research and Graduate Education - Economics Institute)) has posted The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data on SSRN. Here is the abstract:

The paper estimates the effects of a simpler criminal procedure on case durations and the probabilities that the defendant is charged and convicted. The identification strategy exploits a policy reform in the Czech Republic as a quasi-natural experiment. The reform allowed petty offenses to be prosecuted via a simplified (fast-track) procedure but its actual implementation varied substantially across districts. The fast-track procedure reduced the average duration of the police/prosecutor phase of the criminal procedure by 27 days on average for the petty offenses. It increased the probability that the suspect is charged by 6 percentage points. The fast-track procedure released resources that could potentially be spent on prosecuting serious crimes; I therefore investigate for spillover effects. I find only weak evidence of such spillover effects on the probability that the suspect is charged and no evidence of spillover effects on other case outcomes.

Jefferson-Bullock on Excessively Long Sentences

Jalila Jefferson-Bullock (Arizona Summit Law School) has posted The Time is Ripe to Include Considerations of the Effects on Families and Communities of Excessively Long Sentences on SSRN. Here is the abstract:

It is well established that the United States incarcerates more people per capita than any other country in the world. The fundamental cause of this incarceration mania is that the United States unjustifiably doles out scores of excessively lengthy prison terms. Comparatively, United States citizenry are not convicted of worse crimes, and thereby well-deserving of more protracted sentences than those living in other countries. Rather, our federal criminal justice system has historically manifested the belief, more than do our neighbors around the globe, that longer terms of incarceration will benefit society by reducing crime and effectively sanctioning immoral behaviors. The time is ripe for reconsideration of this ill-advised creed.

Roth on Marijuana and Impairment

Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Uneasy Case for Marijuana as Chemical Impairment Under a Science-Based Jurisprudence of Dangerousness (California Law Review, Forthcoming) on SSRN. Here is the abstract:

As the marijuana legalization movement lurches forward, states face a jurisprudential dilemma in addressing the burgeoning public health issue of “drugged driving.” Zero-tolerance laws targeting driving with any illegal drug in one’s system, justified under a “jurisprudence of prohibition” based on the blameworthiness of the drug itself, are no longer a good fit. Instead, states have attempted to treat marijuana like alcohol, and have imported drunk driving’s “jurisprudence of dangerousness,” by enacting “per se” driving-under-the-influence-of (DUI) marijuana laws redefining DUI as driving with a certain amount of THC, marijuana’s main psychoactive compound, in one’s blood. These laws are legitimate, we are told, because they are analogous to “per se” .08% blood-alcohol concentration (BAC) impairment laws. What lawmakers have forgotten, and what legal scholars have largely neglected, is the buried and colorful history of drunk driving’s jurisprudence of dangerousness, and the scientific framework established by the country’s first “traffic czar,” William Haddon Jr., for proving the link between specific BACs and crash risk. Under this framework – which focuses first and foremost on fatal single-car crashes and case-control studies with a randomly selected control group – the illegitimacy of the new wave of DUI marijuana laws is painfully obvious. In fact, the few single-car crash and case-control studies that have been conducted have found no relationship between THC blood levels and increased relative risk of crash. Properly understood, the history of drunk driving offers what is still the only valid scientific framework for using the criminal law as an instrument of public safety.

Berry on Procedural Proportionality

William W. Berry III (University of Mississippi School of Law) has posted Procedural Proportionality (George Mason Law Review, Vol. 22, No. 2, 2015) on SSRN. Here is the abstract:

Given the Supreme Court’s recent foray into applying the Eighth Amendment to non-capital cases combined with its long history of applying procedural restrictions at sentencing in death cases, this Article argues for the application of procedural due process principles to criminal sentencing under the Eighth Amendment. Specifically, the Article develops the concept of procedural proportionality, which contemplates a relationship between the extent of the deprivation and the amount of procedure required. 

Part I of the Article explains the procedural components of the cruel and unusual punishment clause and explores the expansion of these principles to non-capital cases. Part II of the Article articulates the theory of procedural proportionality, describing the procedural rights needed at sentencing and outlining a sliding scale for its application.