Tuesday, March 4, 2025
What Cobra Kai Teaches Profs
I’ve had a mixed relationship with Netflix’s Cobra Kai. When it debuted in 2018, I thought it brilliant. I’m a child of the 80s, and I’ve always been a fan of Karate Kid… and thus ever wondered how films two and three (and more if you want to keep counting) went so tragically off the rails. The only good thing I could ever take from the third film was watching a RiffTrax, which had the wonderful line, “I wish I loved anything as much as that guy loves being evil” (as Terry Silver laughs hysterically in the hot tub). (At least that’s how I remember it… I’m certainly not going to watch again just to get it right.)
So, when Cobra Kai Season One so brilliantly ‘flipped the script,’ well, I was hooked. And Season Two added Stingray, so all was still good. But as the series progressed, it became such a high school soap opera, and I never could understand just what was so evil about wanting to expand a franchise of karate dojos around the world. Like if McDonald’s sold karate instruction rather than hamburgers and fries… would it be a sign of the apocalypse? I don’t get it.
And thus it took me time to build up the stamina to watch final Season Six. And even then I stopped partway through because… it was painful. But, again, I’m a child of the 80s, and so I ultimately persevered. And, in the end, I think they brought it home like the show began. So, a fan at first is a fan at last.
The message of the series, of course (and without containing any plot spoilers, which are evil), is balance. To win at life, one needs both the offense of Cobra Kai (or Eagle Fang) and the defense of Miyagi Do. And just as Daniel and Johnny ridiculously struggle over the seasons with the same problems again and again… most of us professors at least feel somewhat the same frustration at trying to balance our responsibilities of teaching, scholarship, and service. I personally find myself often frustrated that the incentive structures of my school (and indeed to me the greater profession) so poorly align with seeking excellence in all three pillars.
But I suppose that’s what I’ll take from Cobra Kai. When I want to once again mentally rail against ‘the system’ because I think it misaligned, I suppose to a neutral observer that’s as ridiculous as the ninety-third time Daniel is shocked that Nariyoshi Miyagi was not the messiah. ‘Insanity is doing the same thing over and over and expecting different results,’ as they say, and with balance so difficult to achieve in anything, I suppose my efforts are much better spent looking inward than worrying about what the University of Oklahoma, or any other world institution, is doing.
I knew all that time watching TV would prove worthwhile.
March 4, 2025 in Law School, Movies, Stephen E. Henderson, Teaching | Permalink | Comments (0)
Friday, February 28, 2025
Trump and the Federal Death Penalty
In a number of my posts, I will be addressing Trump’s extraordinary Executive Order 14164, titled “Restoring the Death Penalty and Protecting Public Safety,” signed on Jan. 20, 2025 [“the EO”], as well as the follow-up memo from Attorney General Pam Bondi, issued on Feb. 5, 2025, titled “Reviving the Federal Death Penalty and Lifting the Moratorium on Federal Executions” [“the Bondi Memo”]. I want to focus on a particular angle that I have looked at almost since I began my academic career in 2004, the federal death penalty in non-death-penalty States.
Although I am not opposed to capital punishment generally, I have argued in a series of articles and amicus briefs that the Cruel and Unusual Punishments Clause, properly understood as a matter of original understanding, forbids the imposition of any punishment, including death, that is unauthorized by the State in which the crime occurred. This argument has not been addressed by many courts but it was rejected by a 2-1 vote in the Second Circuit in United States v. Aquart, 912 F.3d 1 (2018) (Judge Calabresi did not reach the merits of the argument so he did not join the part of the opinion rejecting it). At the very least, there are serious sub-constitutional federalism concerns that should not simply be brushed aside when the federal government purports to impose the death penalty in States that have rejected it.
That is one reason that I find the EO and, in particular, the Bondi Memo troubling and incredibly hypocritical. It is, after all, the Republican Party that has traditionally purported to value federalism. But we are no longer in an age of traditional Republicanism, and Trumpist Republicanism has bulldozed through all sorts of constitutional values once held dear by the GOP. To be fair, the Justice Department, under Presidents of both parties, even President Biden, has sought the death penalty for crimes committed in non-death-penalty States. But what is troubling about the Bondi memo is that it provides two recent examples of murders calling for the federal death penalty, if possible, and both occurred in non-death-penalty States: the killing of David Maland, a U.S. Customs and Border Patrol agent, in Vermont; and the killing of Debrina Kawam in New York. Kawam, you might remember, suffered the horrific fate of being burned alive on a New York City subway car late last year. These fit, respectively, into the two categories of cases that the EO and the Bondi Memo single out for special treatment: “[T]he murder of a law-enforcement officer and capital crimes committed by aliens who are illegally present in the United States.” Maland, obviously, was a “law-enforcement officer,” and the suspect in Kawam’s killing is Sebastian Zapeta-Calil, an undocumented immigrant.
The basis for a federal prosecution of Maland’s killer is pretty clear: 18 U.S.C. § 1114(a)(1) forbids the murder of “any officer or employee of the United States or of any agency in any branch of the United States Government . . . while such officer or employee is engaged in or on account of the performance of official duties.” But the same cannot be said of Kawam’s killer, which is why the Bondi Memo wisely adds the proviso “to the extent these are federal capital crimes.”
What deeply troubles me is the ability of clever federal prosecutors to shoehorn what are state-law crimes where there is no apparent national interest to fit within federal statutes that are designed for other purposes. (This includes the federal indictment of Luigi Mangione in New York, which will be the subject of a future post.) As horrific as it was, the murder of someone riding the New York City subway implicates only very tangentially any national interest; that it made national news should not be enough. It falls instead within the purview of the People of the State of New York, as represented by the District Attorney of Kings County (Brooklyn) to prosecute. And the People of the State of New York, for better or worse, have rejected the death penalty.
But could Zapeta-Calil be prosecuted in federal court? Perhaps.
February 28, 2025 | Permalink | Comments (0)
A Hidden Seizure Issue in Barnes v. Felix
I want to thank Steve Henderson for inviting me to blog once more on CrimProfBlog. According to my CV, which I have no reason to doubt, I last was a contributing editor here in 2009.
For my first blog post in sixteen years on CrimProfBlog, I wanted to discuss Barnes v. Felix, argued in the Supreme Court on January 22, 2025. Barnes is a § 1983 action alleging a violation of the Fourth Amendment. The facts are fairly straightforward. In April, 2016, Ashtian Barnes was driving a rental car near Houston, Texas. Unfortunately for Mr. Barnes, the rental car had, unbeknownst to him, accrued some unpaid toll fees. Respondent, Officer Roberto Felix, Jr., initiated a traffic stop and asked Barnes to step out of the car. The car started moving forward with the driver’s side door open, likely because Barnes was trying to escape. In rapid succession, Felix drew his gun, jumped onto the door sill of the moving car, and shot Barnes twice. The car came to a stop and Barnes died within minutes. The dashcam video of this brief and disturbing encounter can be seen at https://youtu.be/9gbM_22fUbY.
Petitioner, Barnes’s mother brought a § 1983 action alleging that Felix unreasonably seized her son by shooting him dead. The district court granted summary judgment to the officer and the Fifth Circuit affirmed, using the “moment of the threat” doctrine. The Supreme Court in Graham v. Connor instructed courts to look to the totality of the circumstances to determine whether an officer’s seizure by use of force was reasonable. However, in cases where police face an imminent threat of harm to themselves or others, courts that follow the “moment of the threat” doctrine – including apparently the Second, Fourth, and Eighth Circuits – look only, as the name suggests, at the instant before force was used by the officer. Thus, the courts here looked only at whether it was reasonable to use deadly force to prevent Barnes from driving away with Felix standing on the doorsill, which obviously posed a great risk of harm to Felix. In determining whether Felix’s actions were reasonable, they ignore Felix’s own unwise decision to place himself on the doorsill in the first place.
It was fairly clear from oral argument that the Court was going to reverse and remand on the ground that a strict “moment of the threat” doctrine is inconsistent with Graham’s “totality of the circumstances” approach. Any real uncertainty revolves around how much more the Court, and any separate opinions, might say.
But I want to address a more fundamental issue: whether this is properly thought of as a Fourth Amendment case at all.
February 28, 2025 in Cases of Interest, Crim Pro Investigation, Supreme Court | Permalink | Comments (0)
Bar Journals Censoring Criticism of State Judges
The issue is viewpoint discrimination in state bar journals, but that’s facts without any of the flavor. Here’s the story –
This past August—meaning in August of 2024—my research dean sent out an invitation to write “a short piece … for the Oklahoma Bar Journal’s April 2025 issue on Constitutional Law.” I can’t claim to being particularly involved in my state bar; indeed, while I’ve long been a member of the bar in Texas, and then in my later home state of Pennyslvania (now inactive), I never took the time (and money) to be licensed in Oklahoma. When I first moved to the state in 2011, I did make a few attempts to get involved in local matters—for example, trying to improve the Oklahoma system of civil forfeiture, and then its regulation of drone flight—but I can’t say I found the work sufficiently effective to be personally worthwhile, and so I focused my work elsewhere.
Until July of 2024, that is, when I turned over a new leaf and became a card-carrying member of the Oklahoma state bar. And I accepted an invitation to serve on the Committee appointed by our relevant high court (more on this in just a bit) to draft uniform jury instructions. It’s ever time to try and do a little good in one’s local world, I suppose … and here I went!
So, when I received that August invitation to write for the Oklahoma Bar Journal? You got it. The ‘new me’ bit. “I could write something about how Oklahoma lags behind in independent interpretation of its state constitution,” I explained to the Oklahoma Bar Journal rep who was the source of my dean’s invitation, “particularly in regard to protections against unreasonable search and seizure. It’s a topic about which I’ve written over the decades, and which I’m currently in the midst of reprising for NYU’s Brennan Center.” Which is, naturally enough, true—one of my very first law review articles, published in 2006, was a fifty-state survey regarding state constitutional interpretation of Fourth Amendment analogs, and I’ve been happy to recently contribute to the Brennan Center’s State Court Report.
The newly Oklahoma-inclined me was chuffed to received kind replies. From my associate dean—simply because she is one the world’s nicest people—there was this: “You are amazing. Thank you. Thank you.” I of course realized then—as I realize now—that I am not amazing. Still, it’s nice to hear otherwise from kind people. From the Bar Journal was this: “What a fascinating subject! And what a great line: ‘Once a monolith is fractured, more cracks are likely to follow.’ [Kindly quoting a bit I wrote for the Brennan Center.] I think this would make an excellent topic for the Constitutional Law issue. Thank you so much for your interest and willingness to contribute. … I look forward to working with you!”
That individual might not generally be as wonderful as my then-associate dean—few are—but, hey, newly-Oklahoma-inclined me appreciated her enthusiasm all the same.
And so I went to work. And—wonderful plus!—the topic was more interesting than expected. Oklahoma is one of only two states bifurcating its high courts along the civil/criminal line, and, when it comes to state constitutional search and seizure … Oklahoma’s two high courts disagree! The Oklahoma Supreme Court interprets the state Fourth Amendment analog to give greater rights than the federal counterpart. But the Oklahoma Court of Criminal Appeals interprets the state provision in lockstep with the federal. Bizarre. So, I completed and turned in my draft:
Attached should be the draft of my article. It’s quite an interesting area given the split between the Oklahoma Supreme Court and the Court of Criminal Appeals.
I presume there is an editing process in which I get a redline? Perhaps like you, I am very jealous of my writing, so I will want to review and ponder all changes—including because sometimes if change is beneficial a third construction is ideal.
Thanks for reaching out to the law school; I enjoyed writing this and appreciate the opportunity to have a small role in what is happening (or could happen) in Oklahoma.
Self-evidently, the newly-Oklahoma-inclined me remained pretty pleased about these developments.
I was less pleased, however, when the response was this:
The article will next be submitted to the Board of Editors of the bar journal for review and a vote. At our next meeting (early January), the Board will either accept, reject, or accept subject to requested changes.
Now, sure, perhaps my ego is too large … but to have an invited contribution rejected by the state bar journal?! Yikes. That would be a career low.
Yet it happened. And while that would be of interest only to me (and maybe my mom would feel a bit bad for me as well … well, no, she really wouldn’t), the reason should be a stunner for nearly everyone:
The board thought the article was interesting and of course well-written. There was concern, however, about the tone/approach towards the Court of Criminal Appeals. One of our editors will be contacting you shortly to discuss proposed revisions.
Wtf?! My “tone/approach towards the Court”?! Now, some people do say some awful stuff about courts and judges, and so one might understandably assume I must have done the same. But far from it. I’ll let the essay speak for itself in that regard. No, the reason was more sinister—and, since this is a policy of Oklahoma’s mandatory bar/the Oklahoma Supreme Court—the reason strikes me as unconstitutional. Here’s the follow-up from the Oklahoma Bar Journal when I complained and made clear that they could not print a censored version of my work:
The Oklahoma Bar Journal has a policy of not printing articles directly critical of the Courts in our state. While the Board had hoped that you would be willing to eliminate those portions that were critical of the Court of Criminal Appeals so that the lawyers in the state could benefit from the article, we respect your choice.
Holy you-know-what, Batman! A policy of “not printing articles directly critical of the Courts in our state”?! And remember—this was for an issue dedicated to constitutional law! Such an editorial policy is therefore as richly ironic as it is terrible idea. Applied here, it seems explicit viewpoint discrimination in violation of the First Amendment. (We have a mandatory state bar association in Oklahoma, some recent litigation regarding which can be found here.) And, again, my essay isn’t directly critical of state courts, making the application of the policy doubly strange. Besides, what’s the policy even mean? As a friend asked, “Can one not write about an appellate reversal, because that is ‘directly critical’ of the judge below?” So, lots of issues—but viewpoint discrimination is certainly the most significant.
All of which makes me curious … do other state bar journals similarly engage in viewpoint censorship? I hope not, but I’d love to learn. How uniquely poor are these Oklahoma powers-that-be?
February 28, 2025 in Cases of Interest, Crim Pro Investigation, Miscellaneous, Stephen E. Henderson | Permalink | Comments (2)
Wednesday, February 26, 2025
Share your teaching materials with new crim teachers!
Remember when you were just starting out as a new criminal law / procedure professor and you had no idea what you were doing and would have relished the chance to review what other, more experienced professors were doing in their classes? And perhaps to "borrow" materials from those more experienced professors? And to do all of this without the inconvenience and social barriers involved in cold-emailing more senior academics in your new field?
(Or perhaps you are one of these new professors. If so, you, too, should read on.)
Well, now there is a digital resource that new criminal law/procedure professors can access, sponsored by the AALS Criminal Procedure and Criminal Law Sections, that will let them instantly peruse the teaching materials of (we hope) many other professors so these new teachers can quickly get their bearings and flatten the learning curve.
But this new resource DEPENDS ON YOUR GENEROSITY! It doesn't take all that long to collect teaching materials you're willing to share (for some it might just be a syllabus; others, we hope, will share practice problems, lecture notes, past exams, etc.) and send them to the AALS Crim Pro Section so we can include them in this digital repository. I hope that you will consider taking a few minutes of your time to do this; it will be a real service to junior scholars in our field.
And one more thing: please start spreading the word about this resource to any junior scholars and mentees you come across who might find it beneficial. We'll be going live soon!
Details to contribute can be found below.
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February 26, 2025 in Crim Pro Adjudication, Crim Pro Investigation, Crim Profs, Criminal Law, Law School, Teaching | Permalink | Comments (0)
On Glossip and Oklahoma Criminal Justice
Well, the decision is in, and Glossip v. Oklahoma, No. 22-7466, doesn’t hold any punches. The Court’s opinion (basically 5-3 in critical part, as Gorsuch sat this one out) reads like a ‘how to’ manual in unethical investigation and prosecution, from initial suspect interrogation (feeding the killer what the State wished to hear, instead of asking what he had to say), to pretrial ethics violations (failure to disclose known defense-favorable evidence), to trial ethics violations (communications with a sequestered witness in attempt to alter testimony and failure to correct State witness known perjury), to post-trial ethics violations (destruction of potentially defense-favorable evidence and shifting stories to better negate revelations). It’s what happens when a State engages in a search for convictions, rather than a search for truth. As a result, we can never know what happened on that January day in 1997. That’s what results when police and prosecutors irretrievably taint an investigation and prosecution, and it is a result nobody—not the victim’s family, not the defendant, not the defendant’s family, and not any citizen of Oklahoma—should accept.
So much has already been written about the case, and the Court’s opinion is so comprehensive, that I won’t attempt to add much here. But it is worth emphasizing how bad this one is: because the Court found a Napue violation (failure to correct known perjury), it didn’t even consider the more-commonly-problematic Brady claims. In other words, this one was so bad that the Court didn’t need to even consider other, likely also independently meritorious claims. As Justice Marshall explained for a unanimous Court in California v. Trombetta, 467 U.S. 479 (1984),
Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.
The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U.S. 264 (1959); see also Mooney v. Holohan, 294 U.S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U.S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53 (1957).
Quite right. Glossip found “the most rudimentary of the access-to-evidence” constitutional violations, and so was able to stop there. (Also, for those ‘in the weeds’ of criminal procedure, the Glossip Court made some important moves to make it easier for a defendant to win a new trial in the Mooney/Napue situation, sensibly pushing what was a sui generis rule of reasonable likelihood into the more favorable beyond a reasonable doubt standard typically used for constitutional trial error.)
So, where do we go from here, Oklahoma? We ought to consider how the Oklahoma Court of Criminal Appeals could get this one so wrong, again and again, even as ever more damaging evidence came to light. And, more generally, how do we learn from this? How do we improve? Given that the Glossip investigation and prosecution demonstrate massive failures, how do we not only, insofar as we are able, remedy those errors in this particular case, and then in all existing cases like it, but further enact safeguards to minimize the likelihood we will repeat such unacceptable practices in the future?
Finally, as to the Thomas/Alito/sometimes Barrett Glossip dissent? I’m content to quote Justice Gorsuch, writing in Gamble v. United States, 587 U.S. 678 (2019): “Really?” How could anyone have so low an estimation of what criminal justice—let alone capital-case criminal justice—ought to demand?
February 26, 2025 in Cases of Interest, Crim Pro Adjudication, Crim Pro Investigation, Stephen E. Henderson, Supreme Court | Permalink | Comments (2)
Sunday, February 23, 2025
How About a Commentary for the Ohio State Journal of Criminal Law?
I want to take this opportunity to invite you to consider submissions to the Ohio State Journal of Criminal Law (OSJCL), in particular here to our Commentary section. As many of you know, we publish high-quality symposia, book reviews, “Term Papers” that focus on a recent United States Supreme Court criminal justice opinions, as well as other articles. But our Commentary section is unique. For those of you who are not familiar with our Commentary essays, let me explain. First, Commentary essays are shorter than traditional articles: we accept only essays that are 10,000 words or less. Often Commentaries are as short as 5,000 words.
But what makes Commentaries special, beyond their comparative brevity, is that we invite essays that discuss topics that would not be considered by other law journals or that discuss topics in a unique manner. For example, Professors Carol and Jordan Steiker published a 2003 essay, “Abolition in Our Time,” which consisted of a hypothetical 2022 United States Supreme Court death penalty opinion that they predicted or hoped might represent the future of capital punishment 20 years thereafter. Another one of our Commentaries involved an author who reflected on his experiences serving on a jury in a criminal trial; still another author wrote about her experiences as a grand juror. In one of our early Commentaries, Professor Robert Batey wrote, “Minority Report and the Law of Attempt,” which reviewed the then-circulating science fiction movie and in which the author reflected on how the law might handle persons apprehended under the movie’s version of “precrime.”
This is not to say that a Commentary submission must be unique as in the examples above. The point is that we welcome all types of “shorter” essays.
The OSJCL is a high-quality, often-cited, criminal law journal. I hope you will consider submissions of any sort to us. Authors should submit their manuscripts to [email protected].
February 23, 2025 | Permalink | Comments (0)
Wednesday, February 12, 2025
Seinfeld on Manslaughter
From the Crimprof Multipedia, for teaching purposes...
Category
Homicide
Tags
extreme emotional disturbance, homicide, manslaughter, mitigation, provocation, voluntary manslaughter
Post
In this classically-Seinfeldian introduction to Episode 18, Season 8 (“The Nap“) of Seinfeld, George Costanza reflects on the term “manslaughter.”
Unsurprisingly, George’s statements aren’t quite right to the criminal law, as manslaughter is a form of criminal homicide, not a “form of murder.” But not only is the clip quick and funny, it can help make an important point that I often have to prod students to see when we study mitigation of murder by provocation/extreme mental or emotional disturbance. It is not as if voluntary manslaughter is an award for good behavior—quite to the contrary, it is a serious (albeit not the single-most-serious) crime.
February 12, 2025 in Criminal Law, Stephen E. Henderson, Teaching | Permalink | Comments (0)
Saturday, February 8, 2025
Has Trump Second Affected the Crim Law Classroom?
I realize we don’t exactly have a robust comment stream on the blog (yet!), but I’m curious how the change in administrations has affected the law school classroom around the country. Because every group dynamic can be so different, it seems foolhardy to make too much of any single, few-week experience. But for me, while I am enjoying two great sections of first year criminal law, I notice a strange (to me) tendency of students to turn towards one another, non-verbally exchanging…I’m not sure what…at any mention of a currently-societally controversial topic. Discomfort? Annoyance? Bemusement?
I can only recall that I’ve mentioned Trump once directly, and it was when we were discussing why the criminal law requires an act, as opposed to punishing mere thought. Among the litany of reasons I was running through was that we of course have a robust freedom of speech, and ‘a person (unless he is Donald Trump) of course has to think before he can speak.’ To me, that was a politically neutral—if not very funny—joke: it’s about “covfefe” and “I have the best words.” But it seemed to go over like a rock, even as I tried to point back to those events. Because 2025 1Ls tend not to remember those 2017 things? That may be it, at least in part…I grow old. Or perhaps it’s just too hard to joke about politics these days.
Oh, and there was a second direct reference—I was discussing strict liability under the Migratory Bird Treaty Act, and Captain Sully’s Miracle on the Hudson (that he would be an MBTA criminal for killing those Canada Geese), and said something like, ‘That was too much for the first Trump administration...’ (Because his Department of the Interior issued a memorandum inserting a mens rea.) Once again, that seemed a trigger for this new student-to-student reaction, despite it having next to nothing to do with Trump controversies. Maybe any mention of the name?!
And, again, it’s not merely that “Trump” seems a trigger word...it seems more like any topic that could be touching the current political hot spots. I wonder if in some geographic areas students tend to immediately assume any law prof mention is going to be hostile? While in others students might even have that same immediate assumption but therefore be eager to speak on the issue? I certainly don’t know...but am curious.
(N.B. I couldn’t help adding captions to the above photo…demonstrating that perhaps it is indeed my sense of humor at fault in the classroom as well!)
February 8, 2025 in Criminal Law, Law School, Stephen E. Henderson, Teaching | Permalink | Comments (3)
Tuesday, January 21, 2025
Potential Fallout From the Government's Challenge to the 9/11 Accused's Plea Deals
If the government has agreed to a plea deal in which the possibility of the death penalty has been dropped, may a higher-ranking official lawfully renege on that deal? Even if law permits the rescission, should the government do it?
On the former, my gut response is “What? Of course not!” But indeed the question can be more complex. However, as to the latter, I suggest that the answer is: “No, for the government’s own sake.” Making and then breaking deals hurts the government’s own credibility in future negotiations. That’s especially true if the government breaks promises in high-profile, widely-known cases.
Recently, the government did exactly that in the highest profile criminal cases of recent memory—the cases against the 9/11 Accused. Now those cases are before the D.C. Circuit. Specifically at issue are the status of plea agreements with three individuals accused of orchestrating the 9/11 attacks: Khalid Shaikh Mohammad, Walid Bin ‘Attash, and Mustafa al Hawsawi. The plea negotiations between the government and the Accused have been going on for years, and this lengthy process culminated in what appeared to be a plea agreement in July 2024. Though the details are not public, what we do know is that the parties reached an agreement for these three Accused to plead guilty to all the charges, in exchange for the removal of the possibility of the death penalty. All three plea agreements were signed by Brigadier General Susan Escallier—who was the “Convening Authority” of the military commission trying these cases. But shortly after the announcement, Secretary of Defense Lloyd Austin sent a memorandum to Brigadier General Escallier stating that he was withdrawing her authority as Convening Authority, and exercising his own authority as the “superior convening authority” to withdraw the plea agreements.
The three Accused opposed the Secretary’s action, arguing that he lacked the authority to withdraw the pleas and that they had already started performance of the plea, thereby blocking any attempt by the government to withdraw. The Military Commission Judge agreed and found that the government’s attempted withdrawal to be unlawful. Thereafter, the government sought a writ of mandamus and prohibition before the United States Court of Military Commission Review (USCMR) to stay the plea proceedings before the military commission. The USCMR declined to issue the writ, and the government appealed to the D.C. Circuit—where the case remains now.
As mentioned above, the cases present several complex legal issues, principally about the hierarchies and conditions of authority over the military commissions and when and how a defendant’s performance of a plea agreement begins. The briefing before the D.C. Circuit comprehensively raises these arguments.
But I think there is an important systemic observation. It relates to the fact that even if the questions about negotiation authority and plea performance are technical and potentially unique or idiosyncratic, reneging on a plea agreement has potentially vast impact. This is because of the importance of plea bargaining to the function of the criminal system. The Supreme Court, time and again, has stressed this fact about our system. And some studies suggest that around 95% of all criminal convictions are obtained through plea agreements.
Notably, one area where defendants raising criminal procedure challenges have had (surprising) success is with respect to plea bargaining—for example, Santobello v. New York and Blackledge v. Allison. In these cases—and indeed other plea bargaining cases where defendants have lost—the Court was focused on ensuring that defendants can trust the plea bargaining process and incentivizing both defendants and the prosecution into entering plea agreements.
The briefing before the various tribunals suggests that the government sees this case as exceptional. That’s understandable—it’s 9/11, it deals with military commissions, and it has an intervention by the Secretary of Defense. Nevertheless, I think that’s potentially wrong as an empirical matter. The case is maximally high-profile, but it is ultimately not unique. At the end of the day, an individual with at least apparent authority signed agreements with criminal defendants, who then acted on those agreements by inter alia entering into confessional stipulations. In reneging on such a plea process, the government—in these maximally high-profile cases—may very well undercut its general credibility in plea negotiations with other defendants. I could very plausibly envision a defendant querying whether their prosecutor is reliably negotiating a plea: “Do you really have the power here, or could someone above your pay-grade overturn all of this? Am I wasting my time with you? How can I trust that you’ll fulfill your side of this agreement? Didn’t I hear that the government got a confession and then tried to wriggle out of the deal in those 9/11 cases?” (It’s important to note that, on my understanding, the government’s withdrawal from the pretrial agreements would seek to return the case to the status quo ante, and the government would not be able to use the confessional stipulations against the accused. The government contends this results in no prejudice. I’m inclined to disagree, but I leave that issue for another day.)
Now, it’s perhaps far-fetched that most or even many run-of-the-mill defendants will be so jaded by the government’s conduct in the 9/11 case. But critically it doesn’t take much to cause severe shockwaves to the criminal system. There are a lot of criminal cases and relatively few are going to trial. Even now there are concerning backlogs. High-profile cases loom large in our public psyche. And a decision that allowed a superior authority to scuttle a consummated plea deal would be turbulent. If even a small percentage of would-be plea agreements were consequently disrupted, resulting in trials, courts could face substantial resource shortages and delays.
January 21, 2025 | Permalink | Comments (0)
Tuesday, January 14, 2025
Request for Submissions - Harvard/Stanford/Yale Junior Faculty Forum
On behalf of Rebecca Tushnet, this request for submissions will be of interest to some readers:
Request for Submissions
Harvard/Stanford/Yale Junior Faculty Forum
June 2-3, 2025, Harvard Law School
Harvard, Stanford, and Yale Law Schools are soliciting submissions for the 2025 Harvard/Stanford/Yale Junior Faculty Forum, to be held at Harvard Law School on June 2-3, 2025. Twelve to twenty junior scholars (with one to seven years in teaching) will be chosen, through a double-blind selection process, to present their work at the Forum. A senior scholar will comment on each paper. The audience will include the participating junior faculty, senior faculty from the host institutions, and invited guests. The goal of the Forum is to promote in-depth discussion about particular papers and more general reflections on broader methodological issues, as well as to foster a stronger sense of community among American legal scholars, particularly by strengthening ties between new and veteran professors.
TOPICS: Each year the Forum invites submissions on selected topics in public and private law, legal theory, and law and humanities topics, alternating loosely between public law and humanities subjects in one year, and private law and dispute resolution in the next. For the upcoming 2025 meeting, the topics will cover these areas of the law:
Administrative Law
Antidiscrimination Law and Theory
Constitutional Law—theoretical foundations
Constitutional Law—historical foundations
Criminal Law
Critical Legal Studies
Environmental Law
Family Law
Jurisprudence and Philosophy
Law and Humanities
Legislation and Statutory Interpretation
Public International Law
Workplace Law and Social Welfare Policy
A jury of accomplished scholars will choose the papers to be presented. There is no publication commitment. Harvard Law School will pay presenters’ travel expenses, though international flights may be only partially reimbursed.
QUALIFICATIONS: Authors who teach law in the U.S. in a tenured or tenure-track position as of the submission deadline (February 28, 2025) and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2015. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to the Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Harvard, Stanford, and Yale Law Schools are not eligible.
PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Rebecca Tushnet at [email protected] with the subject line “Junior Faculty Forum.” The deadline for submissions is February 28, 2025. Remove all references to the author(s) in the paper. Please include in the text of the email your name, the title of your paper, your contact email and address through June 2025, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed to Rebecca Tushnet.
FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Christine Jolls ([email protected]) or Yair Listokin ([email protected]) at Yale Law School, Rebecca Tushnet ([email protected]) at Harvard Law School, or Norman Spaulding ([email protected]) at Stanford Law School.
Christine Jolls
Yair Listokin
Rebecca Tushnet
Norman Spaulding
January 14, 2025 in Conferences, Criminal Law, Stephen E. Henderson | Permalink | Comments (0)
Tuesday, January 7, 2025
And here's what the AALS Criminal Law Section has lined up...
As an addendum to my last post, on behalf of the AALS Criminal Procedure Section, what follows is information about the events planned by the AALS Criminal Law Section for the AALS Annual Meeting (posted at the request of the Section's chair, Cortney Lollar):
2025 AALS Annual Meeting Criminal Law Section Panels
Criminal Law Junior Scholars’ Works-in-Progress
Jan. 8, 2:40-4:10pm, Moscone Center, Room 212
Panelists: Matthew P. Cavedon (Emory), Guha Krishnamurthi (Maryland), Isis Misdary (Seton Hall), Benjamin Pyle (Boston University), Raquel Wilson (Kentucky); Shawn Fields (California Western), moderator
This session presents exciting works-in-progress by junior scholars in the Criminal Law field.
Criminal Law, Shaping Law through Applied Storytelling, Critical Theories & Epistemology in the Classroom
Jan. 9, 2:40-4:10pm, Moscone Center, Room 205
Panelists: Matthew Boaz (Kentucky), Bennett Capers (Fordham), Sherri Lee Keene (Georgetown), Marisol Orihuela (Yale), Maybell Romero (Tulane); Yvette Butler (Indiana), moderator
Panelists and the audience will consider the similarities and differences, as well as the consequences, of using Applied Legal Storytelling, Critical Theory, and Epistemology in legal scholarship, clinical work, legal education, and the legal profession. Panelists are Criminal Law scholars who work and write on the criminalization of marginalized communities, and plan to address the ways these overlapping methodologies impact their scholarship and the criminal system. By the end of the program, all will leave with a better understanding of how these methodologies work and which ones should be utilized for different impacts on scholarship and the legal system.
Pregnancy Crimes: New Research and Advocacy
Jan. 10, 9:50-11:20am, Moscone Center, Room 211
Panelists: Wendy Bach (Tennessee), Valena Beety (Indiana), Mary D.M. Fan (U. Washington), Eve Hanan (UNLV), Brenda V. Smith (American), Karen Thompson (Pregnancy Justice); Cortney Lollar (Georgia State), moderator
This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of “Courage in Action,” the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care.
Prison Law: Operating in the Shadows
Jan. 11, 9:50-11:20am, Moscone Center, Room 205
Panelists: Paulina Arnold (Michigan), Nicole Godfrey (Denver), Danielle Jefferis (Nebraska), Zina Makar (Baltimore), Tiffany Yang (Maryland); Ben Levin (Washington U.), moderator
Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.
January 7, 2025 in Conferences, Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Teaching | Permalink | Comments (0)
CrimPro AALS Section events later this week
With the AALS Annual Meeting coming up next week in San Francisco, I wanted to plug a handful of events that the AALS Criminal Procedure Section will be hosting at the conference. Hope to see some of you there!
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Wednesday, January 8:
12:50 – 2:20
Looking Back-and Forward-After Twenty Years of Crawford v. Washington (Criminal Procedure, Co-Sponsored by Evidence)
In Crawford v. Washington the Supreme Court set out a new framework for analyzing Confrontation Clause claims. Crawford issues are among the most frequently litigated questions in criminal cases. Crawford offers a case study on constitutional interpretation, the evolution of precedent, and the systemic consequences of making more difficult the prosecution of crimes against especially vulnerable victims. Crawford will continue to raise difficult and important questions, as shown by last term's decision in Smith v. Arizona – a case that decided one difficult issue but dodged another. This panel will discuss Crawford's past, present, and future.
Speakers:
Donald A. Dripps, University of San Diego School of Law
Richard D. Friedman (Moderator), The University of Michigan Law School
Erin E. Murphy, New York University School of Law
Erin Sheley, California Western School of Law
Emily Spottswood, Florida State University College of Law
12:50-2:20
Privacy and Racial Justice (Defamation and Privacy, Co-Sponsored by Children and the Law, Criminal Procedure, Employment Discrimination Law, Jurisprudence, and Poverty Law)
This program will highlight the contributions of African Americans and other people of color to U.S. privacy jurisprudence and will explore how despite these contributions people of color continue to disproportionately suffer privacy infringements in their homes and in public. This program will emphasize how surveillance, tracking, and data mining techniques always has and continues to intensify the racialized privacy regime in the U.S.
Speakers
Anita L. Allen, University of Pennsylvania Carey Law School
Chaz Arnett, University of Maryland Francis King Carey School of Law
Norrinda Brown, Fordham University School of Law
Abi Hassen, Penn State Dickinson Law
Najarian Peters, University of Kansas School of Law
Shaakirrah Sanders (Moderator), Penn State Dickinson Law
Friday, January 10:
8:00 – 9:30 am
Criminal Procedure Beyond the Casebook
The conventional casebook is giving way to new methods of pedagogy, including the customized do-it-yourself casebook and the integration of new technologies. Yet Criminal Procedure comprises a relatively narrow band of Supreme Court cases and doctrinal "buckets" that future criminal lawyers must know. How do we innovate with newer technology in order to develop these core concepts? Do we need to go beyond the conventional casebook to achieve these goals? This panel will examine fresh ideas on how to enhance the student learning experience in Criminal Procedure, in terms of both supplementing and supplanting the conventional casebook approach.
Panelists:
Shih-Chun "Steven" Chien, Cleveland State University College of Law
John J. Francis, Washburn University School of Law
Stephen Galoob, The University of Tulsa College of Law
Stephen E. Henderson, University of Oklahoma College of Law
Michael J. Mannheimer (Moderator), Northern Kentucky University, Salmon P. Chase College of Law
Alexandra Natapoff, Harvard Law School
9:50-11:20 am
Pregnancy Crimes: New Research and Advocacy (Criminal Law, Co-Sponsored by Criminal Procedure, Sexual Orientation & Gender Identity Issues, and Law, Medicine and Health Care)
This panel addresses trends in policing, prosecution, and punishment related to pregnancy outcomes. In keeping with the conference theme of "Courage in Action," the panel highlights advocacy efforts against the use of criminal systems to surveil, regulate, and punish pregnancy outcomes. The panel will address who is being prosecuted for their actions during or the outcomes of their pregnancies; the crimes are being charged and what evidence is deemed sufficient proof; how these cases being litigated, and by whom; and how the trends in pregnancy prosecutions intersect with race, gender, gender identity, sexuality, poverty, rurality, and access to health care.
Panelists:
Wendy A. Bach, University of Tennessee College of Law
Valena E. Beety, Indiana University Maurer School of Law
Mary D. M. Fan, University of Washington School of Law
Eve Hanan, University of Nevada, Las Vegas, William S. Boyd School of Law
Cortney E. Lollar (Moderator), Georgia State University College of Law
Brenda V. Smith, American University, Washington College of Law
Karen Thompson, Pregnancy Justice
12:50-2:20 pm
New Perspectives on Fourth Amendment Suspicion (Criminal Procedure, Co-Sponsored by Criminal Law)
In many respects Fourth Amendment doctrine has evolved to expand law enforcement power to act on suspicions, frequently to the disadvantage of disfavored groups. Reversing these patterns is not just a matter of academic interest but a pressing need, amplified with the advent of more intrusive and pervasive surveillance technologies. Participants in this discussion will address the ways that suspicion is defined and constructed, its role (or failed potential) in constraining government power, the need for alternatives to suspicion to regulate mass data surveillance, and the potential for suspicion to serve as cover for bias.
Panelists:
Alyse Bertenthal, Wake Forest University School of Law
Mary D. M. Fan, University of Washington School of Law
Andrew G. Ferguson, American University, Washington College of Law
Barry Friedman, New York University School of Law
Lauryn Gouldin (Moderator), Syracuse University College of Law
Aliza Hochman Bloom, Northeastern University School of Law
Michael J. Mannheimer, Northern Kentucky University, Salmon P. Chase College of Law
Jamelia N. Morgan, Northwestern University Pritzker School of Law
Nirej Sekhon, Georgia State University College of Law
Maneka Sinha, University of Maryland Francis King Carey School of Law
Saturday, January 11:
8:00 am - 9:30 am
Criminal Procedure Works-in-Progress
Participants will present their groundbreaking works-in-progress in the field of criminal procedure, selected through a competitive vetting process.
Panelists:
Emmanuel H. Arnaud, Benjamin N. Cardozo School of Law
Nila Bala, University of California, Davis, School of Law
Justin Murray (Moderator), New York Law School
Eileen Prescott, Wake Forest University School of Law
Mridula S. Raman, University of California, Berkeley School of Law
Miranda Thompson, Widener University Commonwealth Law School
Quinn Yeargain, Michigan State University College of Law
9:50-11:20 am
Prison Law: Operating in the Shadows (Criminal Law, Co-Sponsored by Civil Rights and Criminal Procedure)
Prison law is emerging as its own unique domain of scholarship where civil law operates within the criminal law space to focus specifically on the impact incarceration has on an individual beyond their conviction. This panel features a diverse set of works-in-progress that provide important descriptive and analytical accounts that illuminate new developments in prisons and prison law–they also deepen our understanding of how incarceration and the civil justice system function in our system of criminal law.
Panelists:
Paulina D. Arnold, The University of Michigan Law School
Nicole B. Godfrey, University of Denver Sturm College of Law
Danielle C. Jefferis, University of Nebraska College of Law
Benjamin Levin (Moderator), Washington University in St. Louis School of Law
Zina Makar, University of Baltimore School of Law
Tiffany Yang, University of Maryland Francis King Carey School of Law
January 7, 2025 in Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Teaching | Permalink | Comments (0)
Thursday, December 19, 2024
New York (Predictably) Overcharging Luigi Mangione – Who Needs a Rule of Law?
A senseless act of bloodshed. Followed by a senseless act of State lawlessness. <Sigh> It isn’t that people would be better if the government were…it’s that the government would simply be less bad.
New York law, like the Model Penal Code, recognizes that premeditation and deliberation (including “lying in wait”) are inapposite when it comes to murder. Sometimes, planning makes a crime worse. Sometimes, by contrast, it makes it less so—euthanasia is typically the paradigm of a premeditated and deliberate killing, yet it is far from being either the most depraved (deontologically) or the most dangerous (consequentially). Traditional first-degree murder thus accepted those elements only for reasons of historic State-protective anomaly; New York law hewed back to that original intent by, for example, including the murders of judges as being first degree.
So, Luigi Mangione purposely killing Brian Thompson would be second-degree murder. There is no special protection for CEOs in American law. New York’s decision to make a mockery of that law by alleging the killing “terrorism” will surprise no one who follows American criminal law. Overcharging is rampant. But it ought to sadden anybody who cares about justice. When the State doesn’t respect law, it is much harder to sell that anybody should. And that, of course, is precisely the opposite of the message appropriate to these events.
December 19, 2024 in Cases of Interest, Criminal Law, Stephen E. Henderson | Permalink | Comments (7)
Saturday, December 14, 2024
Crim Book Recommendations
There are of course many books about the criminal law, some of which are fascinating and some of which … aren’t. Here’s are some that I enjoy, where I focus on those I’ve most often used in teaching seminars or that I most often recommend to students. (Thus, extremely scholarly books aren’t here, no matter how brilliant.) Feel free to share any comments or additions, including additions highlighting your own work, in the comments.
Steve Bogira’s Courtroom 302 gives a wonderful sense of the day-to-day realities of an American criminal courtroom. Even as some of the specifics are becoming more dated, the book remains a gem.
John Grisham’s The Innocent Man deftly describes the false conviction and (effectively) systematic torture of Ron Williamson. Grisham of course also has novels that address such matters, including The Confession; few of his later works compare to his early writing, however, and all of his fiction tends to be more fun read than inspiring insight into our systems of criminal justice.
Possibly the best single volume on false convictions is Michael Morton’s Getting Life. Simply amazing.
Some of those false convictions of course result from eyewitness identification, for which Ronald Cotton and Jennifer Thompson-Cannino’s Picking Cotton remains a groundbreaking and redemptive work. Tom Wells & Richard Leo’s The Wrong Guys is a harrowing tale of false confessions. And Shaka Senghor’s Writing My Wrongs provides an inside look at the drug trade that can transform young kids into killers, from which some—including the author—fortunately manage to transform back again.
Anyone wanting to understand the injustice of our criminal justice system couldn’t do better than beginning with Bryan Stevenson’s Just Mercy. It is powerful, inspiring, and deeply troubling. A convincing account of the system’s systemic racial injustice is also found in Michelle Alexander’s The New Jim Crow, and Mark Godsey brilliantly chronicles the journey from prosecutor to innocence lawyer in Blind Justice. The three make a powerful trifecta.
No list would be complete without Anythony Lewis’ Gideon’s Trumpet. Merely as a read it is not as terrific as other books, but it remains a classic. Another classic is certainly Truman Capote’s In Cold Blood, and this one absolutely stands the test of time—an amazingly detailed chronicle of senseless bloodshed. Another is Edward Bennett Williams’ One Man’s Freedom; written in 1962, many of his particular examples are dated, but his general ‘defense of criminal defense’ remains as strong as ever.
And now we have a ‘modern classic’ describing the incredible attempts of Jonathan Rapping to reform public defense: Gideon’s Promise. As is most often the case, it’s even better than the movie (Gideon’s Army). Roy Black’s Black’s Law for the most part holds up well, and would be another good read for any potential criminal defense attorney.
There aren’t too many books chronicling the work of a diligent prosecutor, making Steven J. Phillips’s No Heroes, No Villains a worthy read. Although arguably he makes the prosecution somewhat more difficult than it might have been under a different theory, it presents a fascinating question of how to apply the rules of criminal homicide to a tragic crime. Also noteworthy is Vince Bugliosi’s Helter Skelter, as well as Bennett Gershman’s Prosecution Stories. The latter is sure to spark some classroom debate as it takes positions on charging decisions and other matters on which reasonable minds will disagree.
Students interested in the life of a judge might benefit from Frederick Block’s Disrobed. Some portions are certainly more effective than others, but it is a fairly unique accounting. Of course, they could also turn to Milton Hirsch’s fictional The Shadow of Justice.
Students interested in the workings of a criminal jury might enjoy D. Graham Burnett’s A Trial by Jury or crimprof Andrew Ferguson’s Why Jury Duty Matters.
Students interested in policing might begin with David Simon’s Homicide or Jill Leovy’s Ghettoside. The latter is a bit ‘much’ for me, and I don’t buy her conclusion in strong form, but it’s certainly worth a read.
Deviating for a moment from the criminal law—since we are all teachers—Ken Bain’s What the Best College Teachers Do does a brilliant job of assessing what makes for the best of our profession. (But as a warning, the other books in the ‘series’ are not nearly so good.)
In that same vein, students who plan to practice in a law firm might appreciate the wisdom of Mark Herrmann’s The Curmudgeon’s Guide to Practicing Law.
For something truly different, consider Mark Essig’s Edison & The Electric Chair. Would Thomas Edison promote electrocution by alternating current merely to gain support for his own supplies of direct current? Yes, he would.
December 14, 2024 in Books, Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Stephen E. Henderson, Teaching | Permalink | Comments (4)
Friday, December 13, 2024
Crim Movie Recommendations
I love to watch many sorts of films, and many a movie has some claim to being ‘about’ criminal law or procedure. But when I am asked for recommendations by students, or am looking for something for my own classroom, these are some of those I turn to most often. As always, please share any additions or thoughts in the comments.
Crimprofs don’t come any better than Jon Rapping, and Gideon’s Army is a terrific documentary featuring several then-public defenders affiliated with Rap’s Gideon’s Promise. Patrick McGuinness was another terrific lawyer, and he and his fellow public defender Ann Finnell run circles around an unjust prosecution in Murder on a Sunday Morning. Some similar classics are the Paradise Lost Trilogy (accentuated by a great Metallica soundtrack), The Staircase (this one was pathbreaking, and while a bit plodding at times, it nicely documents building a defense case—be sure to catch the 2004 version and then the Netflix additions), and The Thin Blue Line.
Unlike when I began teaching, students are no longer skeptical of false confessions and erroneous convictions. But Frontline’s Burden of Innocence remains a poignant film that includes interviews with Ron Williamson, the star of Grisham’s The Innocent Man (now itself a Netflix series). CourtTV’s The Interrogation of Michael Crowe is also really terrific, but it is now hard to find (let me know if you’d like to try and track down a copy, and don’t confuse this with the dramatization starring Ally Sheedy).
Folks are more split on whether it chronicles a false confession and/or erroneous conviction, but there is no doubt Netflix’s Making a Murderer rightly captured the world’s attention; the same could be said for HBO’s documentary on Adnan Syed. Equally deserving of attention is The 13th, which critically analyzes the racial injustice of the modern wars on crime, and 15 to Life: Kenneth’s Story, which poignantly demonstrates the cruelty of life without parole for juvenile offenders. Netflix also features The Confession Tapes, which are of interest because they highlight instances of potential false confessions that have led to convictions.
It is always fascinating to ponder what happens inside the jury room. My favorite remains the first time cameras captured an American jury’s deliberations, Frontline’s 1986 Inside the Jury Room. This one is increasingly difficult to find (again, let me know if you’d like help trying to track down a copy), but is really special. Another option is ABC News’ In the Jury Room.
If you want to summarize a lot of 1L criminal law—solicitation, conspiracy, and attempt (including impossible attempt), complicity, and even entrapment—students are sure to enjoy Netflix’s The Legend of Cocaine Island. (Where but in criminal law do you get characters like these? Positional entrapment, or sheer lunacy?) And, speaking of good characters, Woody Allen’s Crimes and Misdemeanors is quite a good film regarding how it might feel to get away with murder.
Sometimes a dramatization does as well as a documentary, and that is certainly true of these classics: Judgment at Nuremberg, To Kill a Mockingbird, 12 Angry Men, Witness for the Prosecution, Anatomy of a Murder, Breaker Morant, and The Ox-Bow Incident. A somewhat less well-known film that presents a fascinating criminal law hypothetical—but only after a great deal of buildup—is Let Him Have It. When it comes to a great watch you simply can’t beat HBO’s The Night Of; whether it sufficiently instructs about the criminal law, you be the judge. Finally, The Star Chamber gets a bit silly, but it presents some intriguing exclusionary rule hypotheticals.
If you want to convey a sense of what it means to live in a totalitarian surveillance state, The Lives of Others is a beautiful film. And if you want to lighten things up, there’s My Cousin Vinny.
Plea bargaining is understandably less often featured in film. An older documentary that continues to make some strong points is Frontline’s The Plea.
For those interested in policing there is The First 48 series, some of which are available on DVD, and of course the fictional, critically-acclaimed The Wire.
Finally, in the ‘slightly less great’ category, I’d include these: Requiem for Frank Lee Smith, The Trials of Darryl Hunt, After Innocence, and American Violet.
Enjoy the movies!
December 13, 2024 in Crim Pro Adjudication, Crim Pro Investigation, Criminal Law, Movies, Stephen E. Henderson, Teaching | Permalink | Comments (0)
On State Search and Seizure
I’ve been writing a series of posts on state constitutional search and seizure law for the Brennan Center’s State Court Report; anyone interested in the topic might wish to check them out. So far, they are three:
The Curious Case of Oklahoma Search and Seizure
States in ‘Lockstep’ with the Fourth Amendment May Not Be Locked
The Search and Seizure Law of State Constitutions
Having talked of diverging states, lockstep states, and the unique Oklahoma superposition of both, perhaps it makes the most sense simply to tackle each state one at a time in order to explicate its approach. Or, perhaps it would be better to try and categorize the lot of them, as I did in some of my first work many years back. Any suggestions—including regarding a particularly interesting state jurisprudence—would be most welcome!
December 13, 2024 in Cases of Interest, Crim Pro Investigation, Stephen E. Henderson | Permalink | Comments (0)
Friday, December 6, 2024
CrimFest Save-the-Date
On behalf of Profs. Carissa Byrne Hessick and Benjamin Levin:
Hi Everyone:
We are excited to announce that CrimFest 2025 will be held on Monday July 14 and Tuesday July 15 at the University of Pennsylvania’s Carey Law School. As in year’s past, we will have optional dinner groups on Sunday night, and panels will go through early afternoon on Tuesday.
We will circulate more logistical details and a registration link in the spring. In the meantime, please mark your calendars for a trip to the City of Brotherly Love!
Best,
Carissa & Ben
December 6, 2024 | Permalink | Comments (0)
Monday, December 2, 2024
An Evidence-Based Modification to Criminal Jury Instructions on Right Not to Testify
On behalf of Prof. Eve Brensike Primus:
Every defendant has the absolute right not to testify. A defendant may choose not to testify for any number of innocent reasons, including a fear of not coming across well due to poor self-presentation skills, nervousness about public speaking, or because their lawyer has advised them not to testify for reasons unrelated to their guilt or innocence in this case. When you decide the case, you must not consider the fact that the defendant did not testify. It must not affect your verdict in any way.
As currently written, most pattern instructions blindfold jurors, instructing them not to consider the fact that the defendant did not testify but providing no reasons why an innocent defendant might choose not to testify in court. When the jury has no reason to speculate or make assumptions about a subject area, blindfolding jurors to information on that subject can be an effective way to ensure that verdicts are based solely on the evidence presented at trial. But research shows that blindfolding is problematic when jurors have pre-existing biases, experiences, and beliefs relating to a topic, and jurors typically have pretrial experiences, attitudes, and beliefs about whether innocent defendants will (and should) testify. Most jurors believe that innocent people will testify in their own defense. If jurors are not given any reasons why an innocent defendant might not testify at trial, they will fall back on their preconceived assumption that people who are wrongfully accused will and should take the stand to deny the allegations and, if a defendant does not testify, it is probably because that person is guilty. In reality, there are many innocent reasons why a defendant might not testify including, poor self-presentation skills, fear of public speaking, or advice of legal counsel not to testify for a host of reasons independent of the client's guilt or innocence.
In other contexts, jurisdictions have crafted explanation-based pattern criminal jury instructions to redress improper background assumptions and biases. For example, a number of states have modified their pattern jury instructions on flight to include possible innocent reasons why a criminal suspect might flee from the police. If explanation-based instructions are helpful and necessary in that context, they are even more important with respect to the right to remain silent since jurors are not permitted to consider a defendant's choice not to testify at trial for any purpose.
We are looking for criminal law, criminal procedure, and evidence professors who are willing to sign on to a three-page letter that we are intending to send to criminal jury instruction committees around the country proposing this change. If you are interested in signing on, you can find the text of the letter and an opportunity for you to add your name to it here. If you have any questions, feel free to reach out to me at [email protected] or at [email protected]. And please feel free to share this with others you think might be interested in signing on.
Thanks so much,
Eve Brensike Primus (she/her)
December 2, 2024 | Permalink | Comments (0)
Wednesday, November 27, 2024
Presidential Pardons: Biden and Trump vs. Their Predecessors
When Thanksgiving and the end of a presidential term align, it is not surprising to see an increase in discussions about the pardon power, prompted by the Official Pardoning of the White House Thanksgiving Turkey. In September, a great article from Rachel Barkow and Mark Osler urged President Biden to exercise the power, and a thoughtful article by Doug Berman earlier this week envisioned more regular clemency evaluations. One can see in the data that presidents tend to grant more pardon and clemency requests as they leave office.
President Biden’s potential pardons/clemency, as well as President-elect Trump’s (more on that below), inspired me to examine pardon and clemency over time, comparing modern trends to historical patterns. (Hereinafter, I will typically use “pardon” to mean the granting of a petition for pardon, clemency, commutation, reprieve, and remission, as different terms have been used at different points in history, and parsing the nuance is unnecessary for this post. “Amnesty,” or pardoning an entire class of people (for example, “draft dodgers”), is excluded for reasons explained below.) How does President Biden’s use or nonuse of the pen compare with previous presidents? Viewed historically, roughly how many pardons should we expect a president to grant?
I began by compiling data from various federal agencies. At the outset, I note that these data are imperfect because the government’s terminology and collection methodologies have changed a bit over time. But the information is reliable enough from 1900 onward to make some general observations. The primary purpose of this post is to provide some (hopefully interesting) data, not to provide an explanation for every historical nuance or anomaly in the context of the pardon power. I don’t group the pardons by categories like administration, world events, or changes to the criminal code; instead, I simply provide the data over time with a bit of commentary.
I’ll first present the ten-year averages to offer insight into the use of the pardon power by decade:
|
1900–1910 |
1911–1920 |
1921–1930 |
1931–1940 |
1941–1950 |
1951–1960 |
|
155 |
253 |
317 |
299 |
314 |
144 |
|
1961–1970 |
1971–1980 |
1981–1990 |
1991–2000 |
2001–2010 |
2011–2021 |
|
207 |
172 |
50 |
27 |
45 |
166 |
The increase from 2011 to 2021 was the result of the unusually high number of clemency petitions that President Obama granted—around 1,700 in late 2016 and early 2017. Notably, data from the Office of the Pardon Attorney do not include President Biden’s pardons for simple marijuana possession or veterans who were convicted of engaging in gay sex under a military code because pardons by proclamation to a class of people (rather than by individual petition) are not included in DOJ data. I elected to include only pardons published in the Office of the Pardon Attorney’s data (the granting of individual petitions) because it would be impossible to quantify everyone amnestied in history. We can credit President Biden with amnesty of at least 8,500 individuals who are not reflected in these data, but we don’t know quantitatively what that looks like compared to other presidents who have granted amnesty. I focus on traditional pardons by presidents granting individual petitions.
Petition grants dropped rather remarkably in starting in the 1980s, falling well below 100 per year starting with the Reagan Administration in 1981. They don’t exceed 100 per year until President Clinton’s final year in office, then drop to under 50 per year during the George W. Bush Administration and during most of the Obama Administration:
We might expect to see an increase in petition grants over time based on at least two factors: (1) an increase in the population of the United States and assumed concomitant increases in the prison population, and (2) an increase in convictions as a result of the federalization of crime over time and tough-on-crime policies. But as Rachel Barkow has written, tough on crime apparently entails tough on pardons. Charles Shanor and Marc Miller have also commented on low pardon-petition grants relative to the increase in prison population. According to Margaret Colgate Love, the decrease is also attributable to structural changes in the late 1970s placing pardon recommendations in the hands of the same DOJ officials who are responsible for setting tough-on-crime prosecution policy.
The following graph is illustrative of these points. It compares the U.S. population, new inmates received in federal custody, and pardons over time (the former two categories are scaled to fit reasonably within one graph):
We see a sharp increase in new incarcerations beginning in the late 1980s and early 1990s, alongside steady population growth, but a notable decrease in the granting of pardons. Below is the same information focused on inmates received and pardons: (I concluded that analyzing inmates admitted was superior to analyzing overall prison population, but the general observations would be similar.)
The overall average number of petition grants (again, including clemency) from 1900 to today is around 180 per year. But that is a static figure and does not take into account modern incarceration rates. Before 1980 the grant rate averaged around 4.5% of inmates admitted. If modern presidents adhered to their predecessors' rate, we would probably see around 2,500 pardon/clemency petitions granted per year. By either metric, President Biden—and all modern presidents—fall well short. (We might be inclined to give President Biden credit for the amnesty described above, but recall that amnesty by prior presidents was also excluded from these data.) Finding the exact reasons modern presidents seem to grant fewer petitions is beyond the scope of this post, but feel free to explore that in the comments or via email. I can think of a myriad of reasons to justify a number higher or lower than 2,500 per year, but it's an interesting starting place.
Another reason I was motivated to explore this issue was President-elect Trump’s promise to exercise his pardon power on behalf of individuals associated with the January 6, 2021, Capitol Breach. I have spoken with D.D.C. judges and practitioners working on those cases, and I reviewed the sentencing files for hundreds of those cases for a law-review article that will be published in the next few weeks, so I know a thing or two about those cases and offenders. Most of the offenders (67%) were convicted of misdemeanors, and most of those have likely already served any period of incarceration. Historically speaking, President-elect Trump’s pardons would be somewhat unusual in that they wouldn’t be relieving a death sentence or reducing a long period of incarceration (for example, George Washington spared John Mitchell and Philip Weigel a potential death sentence for treason after the Whiskey Rebellion), they would be eliminating probation or supervised release among mostly low-level offenders (or potentially restoring rights). I don’t mean to diminish the misdemeanor sentences or the burdens of supervised release, but there is less at stake than what pardonees like Washington’s were spared.
So which offenders or offenses will President-elect Trump pardon? Misdemeanors? Nonviolent offenders? All offenders—even violent ones who trained for months in paramilitary combat tactics, stormed the Capitol in combat gear intending to thwart the Electoral Count, and assaulted multiple police officers?
I suspect that if you asked an average, informed citizen, they would agree with Alexander Hamilton—that the pardon power is for rare cases of “unfortunate guilt” where a flaw exists somewhere in the system or conviction. Over time, people have probably come to expect a politically motivated pardon or two in every administration. But the widespread use of the power based not on an analysis of the merits, but for seemingly tribal reasons (an apparent continuation of the theme, “crimes committed in my name are OK”), will only further undermine the sense of “justice” in the “system.”
I expect that this sense of delegitimization will arise among at least some of Trump’s pardonees themselves—in particular, those convicted of serious or violent offenses. A vast majority of January 6 offenders admitted their unlawful conduct and pleaded guilty, with many of them apologizing and acknowledging how wrong they were. Their slates may soon be wiped clean long before serving their full sentence, based not on a flaw in the system or conviction, but on tribal pardons. They would understandably delight in being released, but even beneficiaries of such pardons may feel that the system is unreliable because the rules are applied inconsistently. The exchanged glances that January 6 pardonees will share with their cellmates as they leave them behind will be telling.
When I recreate the above graphs in five years, we will probably see at least one new historic bump like the one we saw during the last few months of the Obama Administration (although we might not if President Trump proceeds by proclamation instead of by granting petitions). Could we see more? It seems reasonable to demand so from both men. Historically, we would expect them to grant around 2,500 petitions per year. This could be an interesting proxy for the Executive’s historical perception of the rate of flaws in the system, around 4.5% of new convictions containing “unfortunate guilt.”
President-elect Trump’s newly discovered liberal use of the pardon power should extend to petitioners who objectively deserve it. I suspect that he has the political capital to spend, and it would make his January 6 pardons much more palatable. President Biden should also refill his pen, for among other reasons (as he has essentially admitted), his tough-on-crime policies from the 1990s are the reason some of these potential pardonees were even incarcerated.
The power to grant pardon and clemency petitions should be about reaffirming the integrity of the system. If history is a guide, Presidents Biden and Trump would do well to exercise it wisely rather than sparingly.
-Sam J. Merchant
November 27, 2024 in Crim Pro Adjudication, Crim Profs, Criminal Law | Permalink | Comments (0)
