CrimProf Blog

Call for nominations to join the AALS Criminal Procedure Section (Also, Hello!)

Thank you to Stephen for taking the lead in resurrecting this terrific blog, and for welcoming me to be a contributor. This is sure to be a lot of fun!

Speaking of fun, I hope readers of the blog will consider applying to help lead the AALS Criminal Procedure Section next year. I'm the Chair of the Section until the board turns over in January, and we are in need of fresh leadership. Specifically, we have openings for Chair-Elect, Secretary, Membership Secretary, and At-Large Executive Committee members. Most of these positions entail one-year commitments. This is a neat opportunity to get involved, give back, and work together with some truly first-rate humans. See below for additional information, from the email I circulated to Section members earlier today. (And please note that, to apply for a leadership position, you first need to be a member of the AALS Criminal Procedure Section. If you aren't already a member, you can sign up, and that obstacle will then be removed!)

 

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Hello Criminal Procedure Section Members,

I'm excited to announce the opening of nominations for leadership positions within the Section. Serving in one of these roles is an excellent opportunity to work with an inspirational group to shape the direction of our relatively new Section. I encourage everyone to consider nominating themselves or a fellow member. 

Nominations should be emailed to [email protected] by Friday December 6, 2024. Nominations should include a C.V. and a statement of interest of less than 250 words. The Section will hold elections from amongst the nominations in advance of the AALS annual meeting in January. All positions are for one-year terms, with some ascending to other leadership positions as outlined below. We are seeking to fill the following positions: 

• Chair-Elect: The Chair-Elect will perform duties as determined by the chair, including but not limited to developing programming for the AALS annual meeting and directing sub-committee chairs and members as necessary. The Chair-Elect shall ascend to the position of Chair at the end of their one-year term. 
• Secretary: The Secretary is responsible for maintaining meeting minutes for the Executive Committee, overseeing the notice of meetings, and fulfilling other duties as required by the Chair. The Secretary shall ascend to the position of Chair-Elect at the end of their one-year term.
• Mentorship Secretary: The Mentorship Secretary will oversee mentorship programming throughout the section, including the annual junior-senior conference held by the section. The mentorship secretary may serve a one-year term or a longer term, at the Chair's discretion.
• Executive Committee Member: Executive Committee Members advise the Chair, Chair-Elect, and Secretary, participate in sub-committee work, and may undertake votes regarding section business. 

If you have any questions about the roles or the nomination process, please feel free to reach out to me at [email protected]. We look forward to working with our new leaders to advance the Criminal Procedure Section!

Best,
Justin Murray

 

Guest Post: Kolber on Punishment for the Greater Good

The following post was written by our colleague Adam Kolber about his new book, Punishment for the Greater Good, which is available here (discount code ALAUTHC4) or through request from a library. (He also has a four-minute animated book teaser.) I am very pleased to highlight his work; if you have written a book and would like the same, please let me know!

More than ten million people are incarcerated around the world, even though punishment theorists have struggled for centuries to morally justify incarceration and other punishment practices. Efforts so far are incomplete, referencing parts of theories that have yet to be fleshed out. What can we say about the justification of incarceration today?

Retributivists claim that people deserve punishment because of their wrongdoing. Punishment can be morally justified, they say, provided it is proportional to wrongdoing. Consequentialists, by contrast, claim that if punishments like incarceration are justified, they are justified because they lead to good consequences, such as crime prevention and offender rehabilitation, that more than make up for the suffering and other bad consequences they inevitably cause. In my new book, Punishment for the Greater Good (Oxford University Press), I argue that a “pure consequentialist” approach (one that denies the value of deserved punishment) is better than the “standard retributivist” approach (which justifies punishment based on moral desert) if we seek to address incarceration in the here and now.

In the book, I identify several problems with standard retributivism. Here, I’ll mention one: Standard retributivists make proportional punishment central to their view but haven’t successfully explained how to determine when a punishment is proportional. They suffer from what I call the quantum problem: In order to actually punish someone, you need to justify some quantum of punishment. Retributivists haven’t done that, and I don’t see how they ever will.

Retributivists can’t just rely on their intuitions about proportionality. In an 1883 case, a Native American, named Crow Dog, killed another Native American. Through a tribal justice process, he was required to deliver $600, eight horses, and a blanket as restitution to the victim’s family. The U.S. thought the punishment inadequate and sought the death penalty. Two criminal legal systems came up with radically different solutions. If retributivists use their intuitions to assume that any particular amount of incarceration is justified for even a serious crime like homicide, then they haven’t justified incarceration; they have simply assumed what they need to prove (and what carceral abolitionists can properly demand of them).

Some scholars say that we just haven’t figured out proportionality yet. But while this is never a satisfying response, it is particularly inadequate when we look at punishment, as I do in the book, from a here-and-now perspective. We can’t incarcerate someone today based on a promise to deliver an adequate theory of punishment sometime in the future. Nevertheless, thousands of law review articles and legal cases simply assume that proportional punishment is a sufficiently clear and coherent concept to use when we lock people up.

Consequentialists, by contrast, don’t give proportionality a primary role. They seek to punish when doing so has net benefits. Since both crime victims and incarcerated perpetrators suffer, consequentialists generally seek to reduce total crime-related suffering. While many people overestimate the ability of incarceration to prevent crime (especially its marginal deterrence), there is little doubt that it deters an enormous amount of crime in an absolute sense and prevents the most dangerous offenders from regularly harming others. When incarceration is not a good tool for public safety, consequentialists oppose it and seek better tools. They don’t make people suffer just for the sake of past bad conduct.

Many find consequentialist punishment unappealing because it could lead, under some imaginable circumstances, to the punishment of the innocent, contrary to a firm deontological constraint that prohibits knowingly punishing in excess of desert. But reasonable retributivists will also punish the innocent, at least under sufficiently catastrophic conditions, as I argue in chapter 4 of the book: the dispute largely comes down to setting the threshold at which punishment of the innocent is permissible, and consequentialists plausibly have the better end of the dispute.

Even if we could perfectly assess proportionality, retributivist proportionality is unappealingly counterintuitive. Consider two equally blameworthy offenders named Sensitive and Insensitive. They are alike in all pertinent respects except for the amount they suffer in prison. Sensitive suffers tremendously, while Insensitive suffers too but manages to cope and make good friends. If these equally blameworthy offenders spend the same three years in prison, I claim that they have not been punished equally in any sense that matters from a moral perspective. Moreover, if Insensitive’s sentence was proportional, then retributivists need to explain what justifies the additional suffering we knowingly impose on Sensitive.

We could try to punish in ways that take sensitivities into account. But doing so leads to counterintuitive results as well. Suppose Sensitive suffers so much because, prior to prison, he lived a life of luxury. Few would welcome punishing Sensitive for a shorter duration (or in better conditions) to accommodate his wealth-induced sensitivity. Nevertheless, it’s hard to see why retributivists can knowingly make Sensitive suffer more than Insensitive when they are equally blameworthy. Consequentialists must take suffering into account too. But they’re not specifically committed to proportional punishment and so needn’t reach the particular counterintuitive results retributivists face here.

The affirmative case for consequentialism arises, at least in part, from its comparative completeness. Armed with a way of valuing what is good and bad, pure consequentialism is quite complete. While debates about how to value consequences rages on, standard retributivists face nearly-identical challenges. In order to measure wrongdoing, for example, most retributivists consider the amount of harm an offender caused. Such measurements require them to decide whether to treat harms as bad experiences, dissatisfied preferences, or something else entirely. Since I conduct a comparative analysis of pure consequentialism and standard retributivism, I spend the better part of a chapter arguing that, if anything, pure consequentialism raises more manageable questions about value than standard retributivism does because pure consequentialists don’t assign intrinsic value to moral desert and needn’t wrestle with its associated mysteries.

Once consequentialists have determined the value of various consequences and their best probabilistic assessment of relevant empirical facts, they can tell us how to behave in a wide variety of circumstances. Importantly, they can say quite a bit about whether an instance or practice of incarceration is likely better or worse from a moral perspective than some alternative. The empirical issues are extraordinarily complicated, but at least we know how to address them. (If a patient must choose between two forms of cancer treatment and the scientific evidence is conflicting, we can still do our best to pick one using relatively well-agreed upon methods of analysis.) With numerous choices, we may not know which option will lead to the greatest good, but we can often make choices for the greater good. It’s hard to ask for more in the here and now.

Imagine a car race with two competitors. If one car is missing too many parts to start, even its shabby competitor is superior. Similarly, if standard retributivism is too incomplete to yield verdicts about incarceration, then pure consequentialism is superior in the here and now, even if it has its own blemishes. Hence, my claim in the book is one of superiority, not adequacy. I claim that pure consequentialism is superior to standard retributivism, not that pure consequentialism is necessarily an adequate theory to adopt in the here and now. An adequacy claim would require a much deeper defense of consequentialism than I provide in a relatively short book and would require us to look at many other approaches to punishment than the two I focus on. Still, to the extent that I address popular forms of consequentialism and retributivism, if I succeed in arguing that pure consequentialism is superior to standard retributivism, I have provided you with at least some reason to increase your confidence in pure consequentialism’s adequacy as an approach to punishment in the here and now.

This post is adapted from a longer version at Marcus Arvan’s “New Work in Philosophy” substack.

And now...an embarrasment of riches

Things are beginning to roll, so I will stop mentioning each new contributor seriatim, we will look to finish up the onboarding, and then...hopefully onward to great content.

But let me give a much deserved shout-out to thank LPBN's tech guru David Dickens for seeing us through this onboarding, and a welcome to Editors Joshua Dressler, Brandon Garrett, Justin Murray, and (shortly) Sam Merchant.

I expect a handful or so more, and then we'll call it a team, at least for initial purposes.

 

And then three - New editor Guha Krishnamurthi

We have another terrific addition as the CrimProf blogging team continues to build out: Guha Krishnamurthi.  I had the pleasure of working directly with Guha as a colleague for a time at OU, we recently wrote a paper together arguing against the current conception of Fourth Amendment consent, and he writes many a fascinating, important article on all sorts of other topics; so, you either already know his work or soon will.

Welcome, Guha!

 

New editor Melanie Reid!

Some terrific news as we begin to build the team of CrimProf bloggers -- Melanie Reid is the first to join!  She's getting set up and will be live shortly.  In addition to the traditional crim law curriculum, she does fascinating work teaching law students about wellness and international criminal law, and hopefully, in time, she might share some of those insights.

Welcome, Melanie!

 

CrimProf Richard Leo Comes Out With New Book

CrimProf Richard Leo (University of San Francisco Law School), with co-author Tom Wells, has just published THE WRONG GUYS: MURDER, FALSE CONFESSIONS, AND THE NORFOLK FOUR (The New Press).
On July 8, 1997, nineteen-year-old sailor Billy Bosko returned from a naval cruise to his home in Norfolk, Virginia, to find his wife on the floor of their bedroom in a pool of blood. Michelle, eighteen, had been raped and stabbed to death the night before. In this gripping tale of justice gone awry, four innocent men
separately confess, under intense police pressure, to a heinous crime that none of them actually committed. As this enthralling story unfolds, the real perpetrator is matched to DNA evidence and convicted, yet three of the men known as the Norfolk Four remain in prison today. The controversy over this case continues to simmer, with the victim's family still convinced of the men's guilt even as growing media attention has exposed the questionable treatment they received at the hands of police officers, prosecutors, and even their own defense attorneys. Barry Scheck has described THE WRONGF GUYS as “a harrowing tale of how four innocent men were wrongly convicted by a deepley flawed legal system that failed to find the truth or dispense justice at virtually every turn.” The Washington Post and the New York Times have both recently written op-eds calling for the Governor of Virgnia to pardon the Norfolk Four.

Leo is also the author of the recently published (2008) POLICE INTERROGATION AND AMERICAN JUSTICE (Harvard University Press), which CrimProf Yale Kamisar (University of Michigan and University of San Diego) has called “the best book on police interrogation I have ever read.”

LawProfs Comment on Guantanamo

Seton Hall LawProf Mark Denbeaux, Iowa LawProf Tung Yin, and UC Davis LawProf Diane Amann comment on the dilemma the Obama administration faces as it sifts through the Guantanamo cases. A "charge or release" policy seems to be the consensus; there is also agreement that some prosecutions may not be possible due to evidence tainted by torture techniques. But Yin points out that it may be a bad move to release high profile detainees such as Khaled Shaikh Mohammed, who admitted to being the mastermind of the 911 attacks but who also was subjected to waterboarding and other harsh interrogation tactics. "In a regular criminal case we would say the government violated the constitutional rules so the remedy is to suppress the evidence. The government can't make its case without the suppressed evidence so the defendant has to be let go...I think there is going to be some discomfort level with simply releasing Khaled Shaikh Mohammed." Yin says the prospect of releasing so-called high value terror suspects may force the new administration to create a system of preventive incapacitation similar to Bush's enemy combatant detention.

But Amann warns that "it would be a mistake to continue to rely on a version of the Bush enemy combatant detention regime." "Are we going to depart from 200 years of legal tradition prohibiting this kind of detention [without charge] and craft an entirely new program" for the probable handful of detainees who pose a threat?

Denbeaux points out that releasing terror suspects could advance US intelligence. "Agents could be tasked to watch them, trace their movements overseas, and tap their phones. If former detainees seek to contact Al Qaeda, their movements and contacts could provide fresh intelligence on the terror group. To me, released detainees are a window into the world that is out there, and if we are not looking through that window it is a waste." More from the Christian Science Monitor... [Michele Berry]

Eugene Volokh Gary T. Schwartz Professor of Law

Eugene Volokh teaches free speech law, criminal law, religious freedom law, and church-state relations law at UCLA Law School, where he has also often taught copyright law and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

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CrimProf Hashimoto Cited in Indiana v. Edwards

Georgia Law Professor Erica Hashimoto's article Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, 85 N.C. L. Rev. 423 (2007), is cited on p.13 of today's slip op. in Indiana v. Edwards.  Kudos!

Frank Easterbrook

Frank Easterbrook graduated from the Law School in 1973. He was an editor of the Law Review and a member of the Order of the Coif. Before coming to Chicago, he attended Swarthmore College, from which he received a degree in 1970 with high honors. He was elected to Phi Beta Kappa.

Judge Easterbrook was a law clerk to Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. He then joined the solicitor general's office, where he served first as assistant to the solicitor general and later as deputy solicitor general of the United States. He returned to the Law School in 1979. Before becoming a judge of the United States Court of Appeals for the Seventh Circuit in 1985, Judge Easterbrook was Lee and Brena Freeman Professor of Law

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'Policing Gangs in America' wins book award for ASU professor

An exhaustive study of the police response to gangs in four U.S. cities, co-authored by an ASU professor, has received international acclaim. The Academy of Criminal Justice Studies (ACJS) chose Policing Gangs in America (Cambridge University Press), co-authored by Charles Katz of ASU’s School of Criminology and Criminal Justice, for its 2008 Outstanding Book Award.

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Criminal Law Scholar Bowers to Join Virginia Law School Faculty

Josh Bowers, a legal scholar and former defense attorney who specializes in innovative examination of the real-world application of criminal law, will join the Law School this fall.

Bowers is currently a Bigelow Teaching Fellow and lecturer of law at the University of Chicago Law School. Prior to that, he spent three years as a staff attorney with The Bronx Defenders, and also was an associate at Morvillo, Abramowitz, Grand, Iason & Silberberg, a white-collar criminal defense firm in New York City.

He’s published articles on the effectiveness of drug courts, the intersection of plea bargaining and innocence, and the use of low-ball plea offers as a prosecutorial tool to mute communal resistance to unpopular police policies.

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CrimProf Jeff Fisher Argued Against the Death Penalty for Rapists

From daily.stanford.edu: Stanford CrimProf Jeff Fisher is no stranger to the Supreme Court — he’s argued before the high court nine times. But when he stepped in front of the nine justices last week to argue the case of a convicted child rapist hoping to avoid the death penalty, the stakes were higher than they ever have been before.        

 

              

Fisher, the co-director of the Stanford Supreme Court Litigation Clinic, is representing Patrick Kennedy, a Louisiana man who has been sentenced to death for raping his eight year old stepdaughter. If his death sentence is upheld, Kennedy will become the first rapist to be executed in America since 1964.

According to Fisher, such a ruling would open the door to the expansion of the death penalty as punishment for a variety of other crimes, and increase the number of inmates eligible for the ultimate penalty fivefold.

“This was definitely one of the very biggest [cases] that I’ve done, in terms of the intensity and importance,” Fisher said. “The constitutional cases always have a weightier air in the room because the Court really has the final say.”

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CrimProf Christo Lassiter Receives Goldman Prize

University of Cincinnati College of Law CrimProf Christo Lassiter is the recipient of the 2008  Goldman Prize for Teaching Excellence

" CrimProf Lassiter expounds the ideal that law school is about “learning to think like a lawyer,” wrote his students when nominating him for the Goldman Award. . Merging thought-provoking hypotheticals and meaningful discussion, he challenges students to think harder while clarifying difficult legal issues. It is uncommon for a student to leave his class without having learned something!

Professor Lassiter teaches courses in criminal law, criminal procedure and white collar crime. In nominating him, students noted that he is far from an intellectual lightweight. In fact, he is considered to be one of the most intelligent and well-respected professors at the College of Law.

This has been exemplified by the large number of students who seek out any class they can take with him. In addition to maintaining an open door policy, Professor Lassiter demonstrates over and over that he genuinely cares about student education and their professional experiences. Students comment that his intelligence, energy, theatrics and occasional song keep them coming back!

CrimProf Corinna Barrett Lain Discusses the Reas why the Innocent Confess

An op-ed piece in the April 22 Richmond Times Dispatch by Richmond School of Law CrimProf Corinna Barrett Lain offers insight into issues surrounding the "Norfolk Four" case in which four Navy sailors were convicted and imprisoned for a 1990 rape and murder to which they had confessed, only to be totally exonerated by DNA evidence. Prof. Lain offers examples and explanations from her own career as a prosecutor to why innocent defendants falsely confess crimes. Read Article. . . [Mark Godsey]

Michigan Law School Launches new Innocence Clinic

DNA evidence has already freed dozens of wrongfully convicted prisoners around the country, and that’s one reason Michigan Law’s new Innocence Clinic, opening in January, will focus on a potentially far larger group: prisoners convicted in cases where biological evidence like DNA doesn’t exist.

The new clinic will be headed by CrimProf Bridget McCormack, the Law School’s associate dean for clinical affairs, and Professor David Moran, who will join the faculty this fall as a clinical professor. Between eight and 14 law students each term will have the opportunity to work on convictions for a wide variety of crimes that appear unjust and in need of reversal.

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CrimProf Fran Watson Hadry Reaches out to the Public to Exonerate a Wrongfully Convicted Man

The Law Clinic at Indiana University School of Law-Indianapolis today (March 14, 2008) announced an upcoming post-conviction proceeding on behalf of a Lake County man asserting he was wrongfully convicted of rape in 1993. Law Clinic attorneys representing the man are seeking the public's help in exonerating their client.

A post-conviction case for Roosevelt Glenn will be tried March 17 and 18, 2008, in a hearing room for the Lake County Superior Court One, 2293 North Main Street, Crown Point, Ind. Glenn continues to maintain his innocence and asserts that newly discovered DNA evidence demonstrates he was wrongfully convicted.

Glenn was convicted of one of a series of vehicular "bumps" followed by assaults against woman driving alone at night. The incidents occurred in Lake County from 1989 to 1990. Most of the cases remain unsolved. CrimProf Fran Watson Hardy of the Law Clinic at IU School of Law-Indianapolis is asking anyone with any information regarding the "cold" cases to contact her at 317-274-1911.

"Since the very first tests in 1990, two DNA profiles from the persons responsible for these crimes have been identified," says Watson. "If we could obtain information to locate either of the two persons for whom DNA profiles exist, it would be relevant to Mr. Glenn's petition. We ask for the public's help."

Professor Watson and her students from the Law Clinic are preparing the case on behalf of Glenn. Scientific experts in microscopic hair analysis and DNA will testify to challenge the proof offered to convict Glenn. During the 1993 trial, a hair recovered from the victim's sweater was said to be from Glenn's head. Recent DNA testing has revealed that the hair does not match Glenn's. [Mark Godsey]

CrimProf Charles Patrick Ewing Releases "Insanity: Murder, Madness and the Law"

The University at Buffalo Law School CrimProf Charles Patrick Ewing, considered one of the country's leading experts on the insanity defense, takes readers into the minds of David Berkowitz, John Wayne Gacy and other notorious murderers in his new book of chilling insights into some of the most well-known murder trials in recent memory.

Ewing, a SUNY Distinguished Service Professor and forensic psychologist, uncovers rich personal histories and intricate trial details of murderers who have become household names in "Insanity: Murder, Madness, and the Law" (Oxford University Press, 2008).

In it, Ewing debunks the public's and legal profession's enduring stereotypes surrounding the insanity defense.

"Every time a defendant pleads insanity, the case makes headlines," says Ewing, whose previous book, "Minds on Trial," is considered a landmark study of the criminally insane defense. "In those rare instances in which a defendant is actually found insane, the public is usually outraged.

        "In homicide cases, especially, they believe that the defendant 'got away with murder.'"

Drawing on personal evaluations of hundreds of defendants and extensive research, Ewing conveys the psychological and legal drama of 10 landmark insanity cases. At the same time, he challenges misconceptions made by the general public and many in the legal community.

Rest of Article. . . [Mark Godsey]

CrimProf Sheri Lynn Johnson Speaks during Death Penalty Awareness Week

In January, the U.S. Supreme Court heard oral arguments in Baze v. Rees, a landmark case considering whether lethal injection is cruel and unusual punishment that violates the Eighth Amendment.

While activist student lawyers across the country wait for this important verdict, they are working to draw attention to death penalty issues. Cornell Law student members of the National Lawyers Guild held a Death Penalty Awareness Week from March 3 through 5, sponsored in part by the Cornell Law Students’ Association and Cornell’s G.P.S.A.F.C.

“At Cornell, students do not even have to wait until they graduate to begin working against the death penalty,” says Ginger McCall ’09, president of the Cornell National Lawyers Guild. She notes that students can do significant work on Cornell’s Death Penalty Project, co-led by law professors John H. Blume and Sheri Lynn Johnson. “Law students are uniquely situated to create change in this area,” she continues. “Students can enact change by raising awareness and educating voters, who will, in turn, influence legislative decisions regarding the death penalty.”

Cornell CrimProf Sheri Lynn Johnson began the week with a lecture about capital punishment on Monday, March 3. In her talk, she examined issues of innocence, race, and mental illness. A second speaker was Muna Ndulo, professor of law and director of Cornell’s Institute for African Development, who spoke about capital punishment from an international perspective.

Later in the week Christopher Seeds, visiting fellow with the Cornell Death Penalty Project, addressed the current moratorium on the death penalty in New York State. After Mr. Seeds’s talk, Deadline, a film about the decision of former Illinois Governor George Ryan to commute the sentences of all Illinois death row inmates, was shown and resulted in some spirited discussion among the students. [Mark Godsey]

CrimProf Laurie Levenson Discusses the Hate Crime Charging Dispute

From dailybreeze.com: Loyola Law School CrimProf Laurie Levenson recently discussed attempted murder and other charges  that were filed Friday against two reputed Latino gang members accused of shooting a black 6-year-old boy in Harbor Gateway.

Despite demands from community activists, prosecutors did not file hate crime allegations against Ernesto Murillo, 25, of Harbor Gateway or Ismael Torres, 26, of Wilmington.

"We will continue to monitor and review the case as the evidence comes in," said Deputy District Attorney John Lonergan of the Hardcore Gang Division.

CrimProf Laurie Levenson said that, despite the emotion of the case, prosecutors have the ethical duty of filing only what they can prove in court.

"Each case has to be evaluated on its own merits," Levenson said. "Even when the community is upset, you just can't file charges unless there is evidence to support it." Rest of Article. . . [Mark Godsey]