Sklansky on Criminal Justice Work and “The Wire”

David Alan Sklansky (University of California, Berkeley – School of Law) has posted Confined, Crammed, and Inextricable: What The Wire Gets Right (Ohio State Journal of Criminal Law, Vol. 8, No. 2, p. 473, 2011) on SSRN. Here is the abstract:

This short essay, written for a symposium on the television series, “The Wire,” uses a particular scene to discuss the show’s treatment of the human and moral complexities of criminal justice work.

June 24, 2011 | Permalink

No. 1-09-1107
THE PEOPLE  v. RONNIE GRANT,  
 Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.
Justice McBride specially concurred, with opinion.
Justice R.E. Gordon dissented, with opinion. 
Defendant Ronnie Grant was arrested by Chicago police officers for violating the city of
Chicago ordinance prohibiting the solicitation of an unlawful business on a public way. The
officers, on a narcotics suppression mission, observed the defendant yell "dro, dro" at a passing
vehicle while standing at a known narcotics sales spot, precipitating the defendant's arrest. The
custodial search of the defendant resulted in the recovery of contraband. The circuit court denied
the defendant's motion to quash arrest and suppress evidence. After a stipulated bench trial, the
defendant was found guilty of Class 4 possession of cocaine and sentenced to three years'
imprisonment. He contends he was arrested without probable cause, which, if established, means
the circuit court erred in denying his suppression motion. On our de novo review, we hold the
circuit court erred in denying the defendant's motion as his arrest was not supported by probable
cause. We reverse.

Subjective Experience and the Federal Sentencing Guidelines (Kolber)

riginally posted to Prawfsblawg. Incidentally, the bleg at the end of this post is still a live one:

In The Subjective Experience of Punishment, I argued that we ought to take better account of the different ways in which offenders experience punishment.  I noted, however, that the federal sentencing guidelines make it difficult for judges to do so by advising them not to consider a variety of offender characteristics that could inform their expectations about how prisoners will experience incarceration.  For example, the 2009 federal sentencing guidelines state that: “Age (including youth) is not ordinarily relevant in determining whether a departure is warranted,” U.S. Sentencing Guidelines Manual § 5H1.1 (2009); “[m]ental and emotional conditions are not ordinarily relevant in determining whether a departure is warranted,” unless they affect culpability, id.§ 5H1.3; and “[p]hysical condition or appearance, including physique, is not ordinarily relevant in determining whether a departure may be warranted,” id. § 5H1.4.

Just a few months ago, however, amendments to the guidelines took effect and now make it easier for judges to consider such offender characteristics.  As I point out in this article (p. 638 (UPDATED)), the 2010 Federal Sentencing Guidelines state that: “Age (including youth) may be relevant in determining whether a departure is warranted if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”  U.S. Sentencing Guidelines Manual § 5H1.1 (2010) (emphasis added).  Similar revisions were made to provisions covering other offender characteristics, including their “[m]ental and emotional conditions,” id. § 5H1.3, and “[p]hysical condition or appearance,” id. § 5H1.4.

I’m not suggesting that the guidelines were amended in order to allow judges to better take subjective experience into account.  Nevertheless, I think that’s a side effect of the amendments.  Incidentally, if you know of any active cases that clearly or dramatically implicate  concerns about the differential ways in which offenders experience punishment (like the recent case of a 6’9”, 500+ pound Dutch “giant”), I’d love to hear about them by email.

-AJK

Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted Modern Examination of Insanity Defense in Criminal Law Under the Development of the Dynamic Psychiatry – From Categorization to Functionalism on SSRN. Here is the abstract:

In past, the common legal concept of insanity defense was a concept of categories. Accordingly, in order to prevent imposition of criminal liability upon the offender out of insanity, the offender should have been recognized as suffering of “mental disease”. Only if the mental disease could have been related to a specific list of diseases, the offender could have been considered as insane.

Medical major developments and legal developments since the nineteenth century brought up changes in this concept. The dynamic psychiatry, which became major measure in mental disorder understanding, compelled a deep change in the former concept. It is argued, that any mental disorder should be examined functionally, and not by categories, as to the application upon the defense of insanity in criminal law. Only under functional examination, it is possible to seriously examine cases of temporary insanity or partial insanity. The article argues for the functional examination of mental disorder as the necessary measure to examine the applicability of the insanity defense in criminal law.

Amy Knight Burns has posted Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance (Stanford Law Review, Vol. 64, 2011) on SSRN. Here is the abstract:

Federal habeas corpus procedure involves an elaborate set of rules for when state criminal judgments may be reviewed by federal courts. One of these rules – the procedural default rule – forbids federal courts to review state judgments if the state rejected the proposed claim on procedural grounds. This bar may be overcome by a showing of cause and prejudice (a showing that the outcome of the trial would have been different absent the error.) In enforcing this rule, federal courts have failed to realize that there are some claims for which a showing of prejudice is never possible. These claims, sometimes called “structural errors,” are exempt from harmless error review when they arise on direct appeal; in that context, courts have realized that demanding a showing that the error changed the outcome would in many cases be asking the impossible. A particularly troubling example is Batson claims; a prejudice requirement for such claims would mean that defendants would have to prove that a jury selected in the absence of racial discrimination would have reached a different verdict. Courts have realized that such a showing generally cannot be made, and granted relief anyway. What courts have not acknowledged is that the showing of prejudice is equally impossible in the habeas context. Instead, some courts have decided that prejudice can be presumed for structural errors in this posture, and other courts have required the impossible showing – meaning that such claims are doomed to fail under the procedural default rule in every instance, even where other, less serious claims can sometimes overcome the car. This Note identifies and traces the two clashing strands of case law – the structural error cases and the procedural default cases – and explicates the underlying incompatibility. It then examines cases that have attempted to adjudicate such claims, and finally proposes a solution: that courts should modify their procedural default test to accommodate these claims.

Nicholas Quinn Rosenkranz (Georgetown University Law Center) has posted The Objects of the Constitution (Stanford Law Review, Vol. 63, No. 5, 2011) on SSRN. Here is the abstract:

The Constitution empowers and restricts different officials differently. Because different government actors are vested with different powers and bound by different restrictions, one cannot determine whether the Constitution has been violated without knowing who has allegedly violated it. The predicates of judicial review inevitably depend upon the subjects of judicial review. Thus, every constitutional inquiry should begin with the subject of the constitutional claim. And the first question in any such inquiry should be the who question: who has allegedly violated the Constitution?

The who question establishes the two basic forms of judicial review. The dichotomy between judicial review of legislative action and judicial review of executive action is the organizing dichotomy of constitutional law. Judicial review of legislative action and judicial review of executive action are two fundamentally different enterprises – formally, structurally, temporally different. And these basic differences dictate both the structure and the substance of judicial review. Properly understood, a “facial challenge” is nothing more nor less than a challenge to legislative action, and an “as-applied challenge” is nothing more nor less than a challenge to executive action. Clear thinking about the who question thus solves deep jurisdictional riddles. And the solutions to these riddles, in turn, have profound feedback effects on the substantive scope of constitutional rights and powers.

This article begins with the intellectual primogenitor of this approach: Barron v. Baltimore. It then presses beyond Barron, using Chief Justice Marshall’s method to address the questions that he left unanswered. It proceeds to analyze several clauses of the Bill of Rights, in the first systematic effort to identify their implied objects. As it turns out, these objects form a pattern, which amounts to a central, structural theme of the Bill of Rights that has long been overlooked. This Article then turns to the Fourteenth Amendment, to determine exactly who is bound by its most resonant clauses. Building on Akhil Amar’s insight that the Bill of Rights underwent “refinement” when incorporated against the states by the Fourteenth Amendment, this article identifies perhaps the most important refinement of all: refinement of the actors bound by the Bill – refinement of its objects.

In short, this Article and its predecessor, The Subjects of the Constitution, amount to a new model of constitutional review, a new lens through which to read the Constitution. This approach begins with a grammatical exercise: identifying the subjects and objects of the Constitution. But this is hardly linguistic casuistry or grammatical fetishism. The subjects and objects of the Constitution are not merely features of constitutional text; they are the pillars of constitutional structure. The very words “federalism” and “separation of powers” are simply shorthand for the deep truth that the Constitution empowers and restricts different governmental actors in different ways. To elide the who question is to overlook the central feature of our constitutional structure. And it is this structure, above all, that is the object of the Constitution.

June 7, 2011 | Permalink

McKenna on Preconviction Indigent Defense Reform

William H. W. McKenna  has posted Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan on SSRN. Here is the abstract:

Now forty-nine years after the U.S. Supreme Court’s decision in Gideon v. Wainwright (1963), many states continue to fail to effect its guarantee. Recently though, some have challenged states’ systemic neglect of indigent defense through pre-conviction class action suits seeking prospective relief, like the plaintiff classes in Hurrell-Harring v. State (N.Y. 2010) and Duncan v. State (Mich. 2010). This Comment argues pre-conviction systemic Sixth Amendment claims like those are not properly treated as ineffective assistance of counsel claims subject to Strickland, which would categorically bar them, but rather they present the (justiciable) question of whether a state has enabled Gideon’s guarantee at all. When states systemically neglect indigent defense, they prevent public defenders from fulfilling their ethical obligations in individual cases, thereby constructively depriving indigent defendants’ Sixth Amendment right to counsel.

May 28, 2011 | Permalink