CrimProf Blog

"Five Chicago Officers Face Firing Over Slaying of Black Teen"

From The New York Times:

The shooting made headlines across the country and sparked protests after the release of a dashboard video more than a year after the incident. The video shows the officer continued to fire after McDonald, 17, had fallen to the ground.

. . .

Van Dyke is facing charges of first-degree murder and is on unpaid leave. He has pleaded not guilty.

Sergeant Stephen Franko, and officers Janet Mondragon, Daphne Sebastian and Ricardo Viramontes, are named along with Van Dyke. According to charges released on Tuesday, all allegedly made false or inaccurate statements about the circumstances surrounding McDonald's death.

 

"Obama grants clemency to 111 non-violent prisoners"

From Jurist:

JURIST - Obama grants clemency to 111 non-violent prisoners

US President Barack Obama [official website] on Tuesday granted clemency [press release] to 111 non-violent criminal offenders, including 35 federal offenders serving life sentences. These new grants of clemency bring Obama's total to 673, including 325 in the month of August alone. Mostly drug offenders, the commuted sentences are part of Obama's ongoing effort to reduce the size of the nation's prison population. At a news conference earlier this month, Obama explained [press release] the sentence excusals: "I thought it was very important for us to send a clear message that we believe in the principles behind criminal justice reform."

 

"A Criminal Law Focus to Begin the U.S. Supreme Court’s New Term"

Rory K. Little has this post at White Collar Crime ProfBlog, summarizing the early cases on the Court's argument docket:

In a somewhat unprecedented calendaring wrinkle, the entire first week of oral arguments at the Supreme Court this coming Term, and 7 of the 8 cases to be argued in all of October, are criminal-law-based cases. This is probably not intentional, but rather reflects hesitancy in certiorari consideration last Spring by an evenly-divided eight-Justice Court.

"Court Costs Entrap Nonwhite, Poor Juvenile Offenders"

From The New York Times:

The ways that fines and fees can entrap low-income people in the adult courts have received enormous attention in the past year or two. But the systematic imposition of costs on juvenile offenders, with equally pernicious effects on the poorest of them, is far less known.

. . .

Fines, fees and restitution mandates are levied on juvenile offenders to varying degrees in every state, a new national survey of these practices has found. The effects are greatest on the poor and racial minorities, creating a two-tiered system of justice, according to the report, published by the Juvenile Law Center, a legal aid and advocacy group in Philadelphia.

 

Ferzan & Westen on Rape

Kimberly Kessler Ferzan and Peter K. Westen (University of Virginia, School of Law and University of Michigan Law School) have posted How to Think (Like a Lawyer) About Rape (Criminal Law and Philosophy (Forthcoming)) on SSRN. Here is the abstract:

From the American Law Institute to college campuses, there is a renewed interest in the law of rape. Law school faculty, however, may be reluctant to teach this deeply debated topic. This article begins from the premise that controversial and contested questions can be best resolved when participants understand the conceptual architecture that surrounds and delineates the normative questions. This allows participants to talk to one another instead of past each other. Accordingly, in this article, we begin by diffusing two non-debates: the apparent conflict created when we use “consent” to mean two different things and the question of whether rape law ought to be formulated in terms of consent or force. From here, we turn to the conceptual apparatuses that surround the normative questions of freedom from force, knowledge, and capacity. Here, we suggest how better understanding these concepts can frame the underlying discussions as to what sorts of coercion undermine consent, what kinds of deception invalidate consent, and when the victim is too incapacitated to consent. Finally, we turn to different formulations of consent, demonstrating that one conception better captures the harm of rape but that other formulations may better protect victims. We show how clarifying these questions allows discussants to see why different formulations are valuable and to debate the best all-things-considered formulation. Although this article is framed as a question of how (to teach students) to think like lawyers about rape, its ambition is to set forth a framework that is useful to reformers as well.

Green on Candor in Criminal Advocacy

Bruce A. Green (Fordham University School of Law) has posted Candor in Criminal Advocacy (Hofstra Law Review, Vol. 44, No. 1105, 2016) on SSRN. Here is the abstract:

This Article, in Monroe Freedman’s memory, examines prosecutors' and criminal defense lawyers' duties of candor to the court, focusing on candor in the narrow sense: i.e., disclosure of relevant information. After looking generally at lawyers' duties of candor, and then specifically at lawyers' duties of candor in criminal cases, the article explores two hard questions of candor to the court in the criminal sentencing context -- one involving a prosecutor's duty and the other involving criminal defense lawyer's duty. The exploration shows the wisdom of Freedman's insight that hard candor questions - and hard ethics questions generally - cannot be resolved based solely on abstract principle but demand engagement with practical complexities.

Hampson on Criminal Justice Debt

Christopher D. Hampson has posted State Bans on Debtors' Prisons and Criminal Justice Debt (Harvard Law Review, Vol. 129, p. 1024, 2016) on SSRN. Here is the abstract:

Since the 1990s, and increasingly in the wake of the Great Recession, many municipalities, forced to operate under tight budgetary constraints, have turned to the criminal justice system as an untapped revenue stream. Raising the specter of the “debtors’ prisons” once prevalent in the United States, imprisonment for failure to pay debts owed to the state has provoked growing concern in recent years. Existing approaches have failed to recognize an alternate potential font of authority: state bans on debtors’ prisons, enacted over several decades in the first half of the nineteenth century, as a backlash against imprisonment for commercial debt swept the nation. This Note takes a first pass at this missing constitutional argument.

"'Serial' should release Bergdahl interviews"

Jeffrey Bellin (William & Mary Law) has this interesting column in USA Today. In part:

A media “dream team” — including organizations from Fox to NPR — has intervened. These organizations want a court to rule that “reporter’s privilege” blocks disclosure of the unused interview material, even though the source (Bergdahl) is no secret. While it is nice to see NPR and Fox getting along, the public loses if the dream team gets its way. The special protection the media seeks is incompatible with the new breed of true-crime entertainment it would shield.

. . .

Popular media’s interest in criminal justice is welcome. The system needs all the help it can get. But the new strain of reporters who mine the criminal justice system for stories should be accountable to the public, just like the prosecutors and courts they profile. When reporters uncover information in a serious criminal case, the public’s right to know — including access to information the show did not broadcast — trumps a show’s desire to control the narrative.

Mungan on Gateway Crimes

Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Gateway Crimes on SSRN. Here is the abstract:

Many who argue against the legalization of marijuana suggest that while its consumption may not be very harmful, marijuana indirectly causes significant social harm by acting as a “gateway drug,” a drug whose consumption facilitates the use of other, more harmful, drugs. This article presents a theory of “gateway crimes”, which, perhaps counterintuitively, implies that there are social gains to decriminalizing offenses that cause minor harms, including marijuana-related offenses. A typical gateway crime is an act which is punished lightly, but, because it is designated as a crime, being convicted for committing it leads one to be severely stigmatized. People who are stigmatized have less to lose by committing more serious crimes, and, therefore, the criminalization of these acts increases recidivism. Thus, punishing “gateway crimes” may generate greater costs than benefits, and this possibility must be kept in mind when discussing potential criminal justice reforms. This “gateway effect” does not require that, but, is strongest when, people underestimate, or ignore, either the likelihood or magnitude of the consequences associated with being convicted for a minor crime. Therefore, - if potential offenders in fact underestimate expected conviction costs - this theory not only implies previously unidentified benefits associated with decriminalizing acts that cause questionable or minor harms, but also benefits associated with making the costs associated with convictions more transparent.

Sanders on Confrontation as a Sentencing Right

Shaakirrah Sanders (University of Idaho - College of Law) has posted The Value of Confrontation as a Felony Sentencing Right (Widener Law Journal, Vol. 25, No. 103, 2016) on SSRN. Here is the abstract:

This Article advocates recognition of the Sixth Amendment's Confrontation Clause as a felony sentencing right. Williams v. New York -- the most historic case on the issue of confrontation rights at felony sentencing -- held that cross-examination was not required to test the veracity of information presented at sentencing hearings, should constitute the beginning of the debate on the issue of confrontation rights at felony sentencing, not the end. Williams was decided before incorporation of the Sixth Amendment's Confrontation Clause and reflects a sentencing model that assumes judicial authority to consider un-cross-examined testimony for purposes of fixing the punishment. This assumption may be unwarranted in light of recent jurisprudence on founding era criminal procedure rights at felony sentencing. Moreover, the standard that applied to confrontation rights at the time of Williams has been reformed and establishes that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. While this jurisprudence has only been applied during the trial, it can be practically and efficiently applied at felony sentencing.

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"UN rights expert condemns Iran execution of 12 drug offenders"

From Jurist:

Special Rapporteur on the situation of human rights in Iran Ahmed Shaheed[official website] on Monday expressed "outrage" [press release] regarding Iran's execution of 12 people for drug-related charges on Saturday. The day before the execution, Shaheed had publicly appealed [JURIST report] to the Iranian authorities not to proceed with the planned executions. He specifically noted that international law only allows capital punishment for the "most serious crimes" with an intentional killing, and after a fair trial respecting strict due process. However, these conditions were not met in this instance. "Combating drug trafficking, a serious concern in Iran, does not justify the use of the death penalty in drug-related cases," Shaheed said. "The execution of Mr. Madadpour and 11 others shows the Iranian authorities' complete disregard of its obligations under international human rights law and especially of international fair trial standards and due process guarantees." He renewed his plea to Iran to institute a moratorium on the death penalty.

"If a magistrate issues a warrant for a daytime search, when (if it at all) can it be executed at night?"

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

The U.S. Court of Appeals for the D.C. Circuit handed down an interesting Fourth Amendment decision Friday in Jones v. Kirchner. The question in the case is whether a magistrate judge’s decision to limit a warrant search to daytime hours is binding, such that the officers necessarily violate the Fourth Amendment if they execute the warrant at night. The court presented the issue as easy and answered the question “yes.” In this post, I want to explain why the issue is not nearly as simple as the opinion suggests — and why the easy answer might be wrong.

"Frustration yields to joy as DNA evidence springs Tony Wright after 25 years in prison"

From WHYY in Philadelphia. In part:

After convincing a judge to order DNA tests of a Chicago Bulls sweatshirt and the blue jeans he allegedly wore during a 1991 rape and murder, Wright was granted a new trial, and the jury acquitted him Tuesday.

Wright said the police framed him, and he was coerced him to sign a confession that wasn't even in his words. When police arrested him, at 20 years old, Wright was a seventh-grade dropout and had a toddler.

. . .

The district attorney's office decided to retry him, instead of allowing his release, after his conviction was vacated by a judge in 2014, in light of the new evidence. Prosecutors argued that though forensic tests demonstrated that another man's sperm was found in the victim, and his DNA was not discovered on the clothes detectives said he wore, Wright may have still been an accomplice to the vicious murder of a 77-year-old woman in her home in North Philadelphia in 1991. 

Margulies on Article III and the FISC

Peter Margulies (Roger Williams University School of Law) has posted Searching for Federal Judicial Power: Article III and the Foreign Intelligence Surveillance Court on SSRN. Here is the abstract:

The Foreign Intelligence Surveillance Court (FISC) has an Article III problem. Under § 702 of the 2008 FISA Amendments Act (FAA), which brought the Bush administration’s Terrorist Surveillance Program under the rule of law, the FISC typically proceeds ex parte, hearing only from one party: the government. FISC proceedings under § 702 therefore lack the benefit of adverse parties clarifying the issues, which the Supreme Court has linked with sound adjudication and judicial self-governance.

The FISC’s § 702 role does not fit neatly into the established categories of cases, such as search warrants, where ex parte proceedings are permissible. The broad surveillance practices that the FISC reviews under § 702 lack the individualized facts of warrant requests or a direct link to criminal prosecutions. Under Article III, the FISC’s § 702 role may be neither fish nor fowl.

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Brennan-Marquez on Plausible Cause

Kiel Robert Brennan-Marquez has posted Plausible Cause on SSRN. Here is the abstract:

“Probable cause” is not about probability. It is about plausibility. To determine if an officer has the requisite suspicion to perform a search or seizure, what matters is not the statistical likelihood that a “person, house, paper or effect” is linked to criminal activity. What matters is whether criminal activity provides a convincing explanation of observed facts. For an inference to qualify as plausible, an observer must understand why the inference follows; she must be able to explain its relationship to the facts. Probable inferences, by contrast, do not require explanations. An inference can be probable — in a predictive sense, based on past trends — without a human observer understanding what makes it so.

In many cases, plausibility and probability overlap. An inference that accounts for observed facts is often likely to be true, and vice versa. But there is an important sub-set of cases in which the two properties pull apart, raising deep questions about the underpinnings of Fourth Amendment suspicion: inferences generated by predictive algorithms. In this Article, I argue that casting suspicion in terms of plausibility, rather than probability, is both more consistent with established law and crucial to the Fourth Amendment’s normative integrity.

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Rosoff & Jiang on China's Commercial Bribery Provisions

William L. Rosoff and Jingli Jiang (Akin Gump Strauss Hauer & Feld, L.L.P. - Beijing Office and Akin Gump Strauss Hauer & Feld, L.L.P. - Beijing Office) have posted The Proposed Amendments to China’s AUCL Commercial Bribery Provisions: Comments and Suggestions (Tsinghua China Law Review, Vol. 8, No. 2, 2016) on SSRN. Here is the abstract:

Since the enactment of the Anti-Unfair Competition Law in 1993, China’s economy has changed significantly. To better regulate the current market, a draft amendment to the AUCL was published on February 25, 2016. Specifically, Articles 7 and 20, the commercial anti-bribery provisions of the AUCL, reflect substantial changes to the current law. This paper will identify such proposed changes and analyze implications and potential issues of the elements of the commercial anti-bribery provisions, including burden of proof, vicarious liability of employers, bribery involving public service, books and records provision, extraterritorial jurisdiction, and penalties, etc. It will also look to the United States’ domestic commercial anti-bribery laws for comparisons. This paper hopes to shed light on potential improvements the draft amendment should consider to achieve its desired purposes of better curbing commercial bribery and regulating the current market.

"The pursuit of capital punishment for Dylann Roof is a step backward"

From the Washington Post, courtesy of NACDL:

Roof’s crime was surely heinous, and his racism was repugnant. But supporters of racial equality and equal treatment under the law should support Roof’s offer to plead guilty and serve a sentence of life without the possibility of parole.

How can it be that a lifelong civil rights lawyer such as myself would take this position? Because the death penalty cannot be separated from the issue of racial discrimination, especially in the South. The history of slavery and lynching left deep scars in the black community, and the current death penalty does not fare much better. More than 8 in 10 of the executions carried out since the death penalty was reinstated in 1976 have occurred in the South. Blacks make up more than one-third of the 1,170 defendants executed in the region, with most convicted of murdering a white victim.

 

 

"New Orleans Program Teaches Officers to Police One Another"

From The New York Times:

In an age when policing is under intense scrutiny, new training programs for officers are showing up across the country. Organizers say this one, which everyone on the 1,172-member police force here is expected to take, stands out in two ways.

The first is its goal: teaching officers how to be psychologically prepared to intervene when they see fellow officers on the verge of unethical behavior, no matter the circumstances. This will be taught in daylong courses and as a part of every course from driving skills to report writing, in an attempt at instilling the approach that goes beyond what any police department has tried, said Jonathan S. Aronie, who was judicially appointed to oversee the department’s adherence to a federal consent decree.

The second is the program’s origins. While the curriculum was developed by New Orleans officers and outside experts, its core principles are rooted in the work of Ervin Staub, a retired psychology professor at the University of Massachusetts, Amherst, who knows as well as anyone the perils of passivity and the virtues of intervention.

Morrison on Police Video

Caren Myers Morrison (Georgia State University - College of Law) has posted Body Camera Obscura: The Semiotics of Police Video on SSRN. Here is the abstract:

Our understanding of violent encounters between the police and civilians is now primarily mediated by video images. With surprising rapidity, recording these encounters has become an integral part of modern policing, sparking the current body camera bonanza.

When these recordings are used as evidence in police use-of-force cases, the factfinders must decide whether the police officer’s actions were “reasonable” under the Fourth Amendment. But there is an unrecognized fault line between “police video” (video recorded by the police in the course of their official duties) and “eyewitness video” (recorded by bystander-witnesses). Police video tends to recirculate dominant narratives of violence and masculinity as heroic ideals that coexist easily with the legal standard of the reasonable officer. In contrast, eyewitness videos typically offer the counter-narrative of an abusive state.

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Mayson on Dangerous Defendants

Sandra G. Mayson (University of Pennsylvania Law School) has posted Dangerous Defendants on SSRN. Here is the abstract:

Bail reform is underway — but it is proceeding on shaky ground. The reform model, which deploys actuarial risk assessment to identify “high-risk” defendants, assumes that the state has the prerogative to detain or control dangerous defendants. This assumption is not new. But it is anomalous. In general, we do not permit the state to restrain sane, responsible adults solely to stop them from committing hypothetical future crimes, even those who are high-risk. The reform movement’s focus on danger thus crystallizes a fundamental question about pretrial policy: What justifies the state in restraining defendants for dangerousness before trial if we would prohibit the same restraint for equally dangerous members of the public? Although there is an extensive literature on preventive detention, neither the Supreme Court nor prior scholarship has focused on this comparative question. This Article endeavors to answer it. It makes the first effort to articulate and evaluate potential justifications for subjecting defendants to restraint that we would forbid for non-defendants who pose an equal risk. The Article explores doctrinal, deontological and instrumentalist justifications, but ultimately rejects them. It contends that pretrial restraint for dangerousness can only be justified at the risk threshold where we would authorize equivalent restraint of a member of the population at large. Communities, policymakers and courts should therefore determine what they believe this threshold to be, then ensure that pretrial risk assessment and management are tailored to it.