Framing the Prosecution – Article by Daniel Richman

From Volume 87, Number 3 (March 2014)

The enormous value of Dan Simon’s In Doubt lies not just in its nuanced exploration of the challenges to accurate criminal factfinding, but also in its challenge to us to rethink trials themselves. Even as we endeavor to give criminal defendants the means and license to raise reasonable doubts, we need to think more about when and how those doubts can be allayed. Just because most jurisdictions have not come out of the first round of play—the one in which defendants get the tools to poke holes in the cases against them—does not mean it is premature to consider what should happen in the second period: What tools should we give jurors to assess the alleged holes—the “reasonableness” of an alleged doubt? And how can the prosecution try to mend them? These questions do not simply go to the fairness and, to use Simon’s term, the “diagnosticity of the trial.” They also, as I hope to show here, go to the role that criminal trials will play in a world with so few of them.



The Mismatch Between Twenty-First-Century Forensic Evidence and Our Antiquated Criminal Justice System – Article by Erin Murphy

From Volume 87, Number 3 (March 2014)

The shortcomings of forensic evidence in the criminal justice system are now well known. But most scholarly attention has concentrated on “first-generation” forensic techniques such as hair or pattern analysis, bite marks, firearms, and ballistics. Moreover, most of the attention has centered on the investigative process, specifically the collection and analysis of evidence. This Essay turns the critical lens on scientific evidence in a different direction. It focuses on “second-generation” technologies—such as location tracking, biometrics, digital forensics, and other database-driven techniques, and it scrutinizes the adjudicative system—the “bail to jail” stream—rather than the investigative process. Ultimately, this Essay argues that almost every aspect of the adversarial process, as currently conceived, is ill-suited to ensuring the integrity of high-tech evidence. Specifically, the adversarial model demands individualized rather than collective inquiries, embraces secrecy rather than transparency, and privileges viva voce evidence over other forms of fact-gathering. Furthermore, it heavily depends upon the skill of counsel and in-court confrontation rather than out-of-court oversight and structural reform to address problems related to evidentiary integrity, and adopts rigid rules of finality grounded in part on an assumption that proof is always inconclusive. This Essay concludes that the eighteenth-century model of justice may be ill-suited to twenty-first-century evidence, and offers recommendations for a more reliable factfinding system.



Revisiting the T.J. Hooper: Stating What is Constitutionally Required of Defense Attorneys Under the Strickland Evaluation of Attorney Performance – Note by Lauren McGrory Johnson

From Volume 87, Number 3 (March 2014)

The story has become all too familiar. Facing felony charges, an indigent defendant is appointed a public defender to represent him. Working under a crushing caseload of 500 felonies per year, the public defender has around an hour to dispose of the case. He meets with the defendant once, quickly advises him to accept the plea deal offered by the prosecutor, and moves on to the next defendant. No investigation; no interviewing potential witnesses—just take the plea.

The case described above was appealed to the Washington State Supreme Court in 2010, and involved the prosecution of a boy who was a mere twelve-years old. The boy’s case, combined with pressure from state defense organizations and local media, convinced the state supreme court to take action in 2012 and enact mandatory performance standards, including strict caseload limits, that all defense attorneys in Washington must comply with beginning September 2013. The standards were adopted after a long struggle with underfunding and overwhelming caseloads among Washington public defender offices, a problem not unique to that state.



Correcting Criminal Justice Through Collective Experience Rigorously Examined – Article by James S. Liebman & David Mattern

From Volume 87, Number 3 (March 2014)

Federal and state law confers broad discretion on courts to administer the criminal laws, impose powerful penalties, and leave serious criminal behavior unpunished. Each time an appellate court reviews a criminal verdict, it performs an important systemic function of regulating the exercise of that power. Trial courts do the same when, for example, they admit or exclude evidence generated by government investigators. For decades, judicial decisions of this sort have been guided by case law made during the Supreme Court’s Criminal Procedure Revolution of the 1960s and 1970s. It is becoming increasingly clear, however, that the rule-bound, essentially bureaucratic regulatory regime that emerged in the 1960s does not assure accurate outcomes, especially for poor and minority criminal defendants and victims. As an additional protection, this Essay urges criminal courts to stop resisting and to embrace regulatory innovations in wide use in other domains that foster self-improvement through continuous observation and rigorous analysis of data on the system’s own results and error rates. The Supreme Court’s own penalty-default and head-counting innovations point the way forward. A certain conception of liberty or individualism—which intersected with the Criminal Procedure Revolution but has not traditionally served the interests of populations most at risk from miscarriages of criminal justice—is the main obstacle to such reforms and should be abandoned.



Searching for Injustice: The Challenge of Postconviction Discovery, Investigation, and Litigation – Article by Laurie L. Levenson

From Volume 87, Number 3 (March 2014)

Criminal law is at a crossroad. With 2.3 million Americans in prison today, one of the biggest challenges for the criminal justice system is dealing with postconviction claims by prisoners. Most of the focus of scholarship for criminal law is on preconviction issues. Many of the participants in the criminal justice system, including judges, prosecutors, and defense lawyers, view a criminal case as “final” once the defendant has been sentenced. Yet, it is increasingly clear that the trial, sentencing, and even appeal are just the first act in the long production of a criminal case. Defendants do not disappear once they are sentenced. The second half of their case is still to come as collateral attacks work their way through the criminal justice system.



Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments – Article by Donald A. Dripps

From Volume 87, Number 3 (March 2014)

During the 1960s, the Warren Court’s “criminal procedure revolution” imposed constitutional limits on criminal procedure in the states, limits that persist in some form to this day. During the 1980s, criminal justice in the United States took a “punitive turn” that resulted in the largest per capita prison population on the planet. In this Article, I consider the claim, advanced by the late Professor William J. Stuntz, that a sinister causal relationship inhabits this striking paradox.

Professor Stuntz made many superb contributions to the scholarly literature. For me, and I suspect for many, his greatest contribution was to expose the always complicated, but seemingly always perverse, relationships between the procedural and the substantive sides of criminal law. One can discern two quite distinct views of the relationship in Stuntz’s work.



(D)evolving Standards of Decency: The Unworkability of Current Eighth Amendment Jurisprudence as Illustrated by Kosilek v. Spencer – Note by Rachael Rezabek

From Volume 87, Number 2 (January 2014)

Michelle (Robert) Kosilek first exhibited signs of gender identity disorder (“GID”) at the tender age of three years old. An orphan during most of her early childhood, Kosilek would sneak over to the female side of the Catholic orphanage where she lived so that she could “wear girls’ clothing and play with girls”—behaviors for which she received severe physical punishment. Undeterred, Kosilek continued to exhibit signs of GID throughout her childhood and adolescence; she also continued to be abused. As one of her psychiatrist reports stated, “At age 13, [Kosilek] developed what was most likely normal transient gynecomastia. She commented to her mother [who had since removed Kosilek from the orphanage], ‘See? I really am a girl.’ Her stepfather overheard the remark and assaulted her with a broken beer bottle.” After this incident, Kosilek began running away; she left home permanently at age fifteen.



Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law – Article by Christopher Buccafusco & Jonathan S. Masur

From Volume 87, Number 2 (January 2014)

The scope and enforcement of intellectual property (“IP”) laws are becoming salient, for the first time, to a wide cohort of U.S. and international communities. National and international legislation, including the Stop Online Piracy Act (“SOPA”), the PROTECT IP Act (“PIPA”), and the Anti-Counterfeiting Trade Agreement (“ACTA”), have generated protests online and in the streets by people who are concerned about the expansion of IP rights. Common to each of these proposals was an expansion of the use of criminal sanctions to deter IP violations. Many copyright owners and the associations that represent them support criminal enforcement of IP rights, including the use of imprisonment, to combat the threat of increased IP piracy on the internet and throughout a globalized economy. Others, including a heterogeneous coalition of scholars, activists, and internet-based companies like Google and Wikipedia, fear that using criminal sanctions to protect IP will expand already overgrown rights and chill valuable expressive and inventive behavior.



Disapproving Death: Amending the Interstate Agreement on Detainers in Light of United States v. Pleau – Note by John Jason Kreager

From Volume 87, Number 1 (September 2013)

Dear Governor Chafee,

My brother was murdered by Jason Pleau.

Our family is hoping for justice for David. It is time for you to stop wasting taxpayers money on this attempt to protect a murderer from being properly prosecuted by the federal system. . . .

If your son Caleb was shot in the head, in broad daylight while doing his job you would be horrified, as we were! . . .

Never in our wildest dreams did we think that the Governor of our state, would get on his own bandwagon to protect a career criminal!

You have made a terrible situation much worse for our family! We should have never had to go through all this! He would have been arraigned a long time ago, if it wasn’t for your agenda. Please stop this now! Enough is enough.

Sincerely, Deborah Smith

[M]y involvement in this case is not about Mr. Pleau. It is not about the terrible ordeal of the Main family. And it is not about my personal feelings or opinions. It is about maintaining and protecting the sovereignty and laws of the state I was elected to govern.

Lincoln D. Chafee, . . . Governor of Rhode Island



Breaking Bad Sentencing Habits: How State Courts’ Retroactive Modifications of Probation Terms Affect Federal Mandatory Sentencing – Note by Andrew Tan

From Volume 86, Number 5 (July 2013)

In 2006, Eduardo Alba-Flores was arrested for importing methamphetamine into the country from Mexico. Importing methamphetamine carries a ten-year minimum sentence, but first-time offenders who meet certain conditions are exempt from this mandatory minimum. Unfortunately, Alba-Flores was ineligible because he was on probation at the time for driving with a suspended license earlier that year. Alba-Flores convinced the state court to retroactively modify his probation term so that he served less than a year of it, hoping that this would make him eligible for an exemption from the mandatory ten-year sentence his drug crime carried. In 2009, the Ninth Circuit held that, because he was in fact on probation when he committed the federal drug crime, the state’s retroactive change did not affect his mandatory minimum sentence eligibility. As of the time this article was written, Alba-Flores is still serving his ten-year sentence.