Proposition 9, Marsy’s Law: An Ill-Suited Ballot Initiative and the (Predictably) Unsatisfactory Results – Note by Ryan S. Appleby

From Volume 86, Number 2 (January 2013)

On November 4, 2008, California residents voted on twelve statewide ballot initiatives. Seven initiatives were approved, including Proposition 9: the “Victims’ Bill of Rights Act of 2008: Marsy’s Law.” It received the fourth fewest total votes of the twelve ballot initiatives, and was dwarfed in total spending compared to other bills such as Proposition 8, the “California Marriage Protection Act.” Despite passing without significant publicity, Marsy’s Law instituted broad legal reforms. It altered the California Constitution, added two sections to the California Penal Code, and amended two sections of the California Penal Code. The Proposition added a Victims’ Bill of Rights to the California Constitution; expanded the role of victims at every stage of prosecution, conviction and postconviction; modified the process of parole hearings; sought to increase prison sentences; and altered the procedure for parole revocation.

Marsy’s Law was passed via ballot initiative, a form of direct democracy guaranteed by California’s Constitution. The initiative power has existed since 1911, when the California Constitution was amended to provide that “the people reserve to themselves the powers of initiative and referendum.” It was sparked by a backlash against a corrupt legislature bowing to the demands of monopolistic railroad owners. Direct democracy appealed to the populist movement of the early twentieth century and sought to curb corrupt government, reduce the influence of money in politics, and restore democracy for the people.



Running Afoul of the Non-Refoulment Principle: The [Mis]interpretation and [Mis]application of the Particularly Serious Crime Exception – Postscript (Note) by David Delgado

From Volume 86, Number 1 (November 2012)

Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.



Misdemeanors – Article by Alexandra Natapoff

From Volume 85, Number 5 (July 2012)

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet, ten million petty cases are filed every year, and the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these characteristics generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined or incarcerated, and can lose jobs, housing, or educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule of law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system (in other words, criminalized) with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system’s dynamics and dysfunctions.



Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions – Postscript (Response) by Eve Brensike Primus

From Volume 85, Number 5 (July 2012)

 Although misdemeanors comprise an overwhelming majority of state criminal court cases, little judicial and scholarly attention has been focused on how misdemeanor courts actually operate. In her article, Misdemeanors, Alexandra Natapoff rights this wrong and explains how the low-visibility, highly discretionary decisions made by actors at the misdemeanor level often result in rampant discrimination, incredible inefficiency, and vast miscarriages of justice. Misdemeanors makes a significant contribution to the literature by refocusing attention on the importance of misdemeanor offenses and beginning an important dialogue about what steps should be taken going forward to fix our broken misdemeanor justice system.
Natapoff amasses an impressive amount of data and material to explain both the prominence of misdemeanor convictions in our justice system and the many problems with how our misdemeanor system operates. She rightly points out that legislative overcriminalization coupled with conflicting police responsibilities and vast police discretion has created a system in which poor people of color are routinely arrested for misdemeanor offenses even when there is little evidence to support their arrests.



Bulk Misdemeanor Justice – Postscript (Response) by Stephanos Bibas

From Volume 85, Number 5 (July 2012)

Alexandra Natapoff’s article, Misdemeanors, shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. For many decades, academics have dwelt ad nauseam on the biggest, sexiest criminal cases, especially capital and other serious felonies such as murder and rape. Courts and commentators have spun out elaborate accounts of the precise procedural guarantees that should govern adversarial combat between prosecutors and appointed defense counsel in these cases. But, as I have argued elsewhere, in making rules for the small sliver of jury trials, judges and scholars have neglected the much larger world of plea bargaining.

Natapoff draws on her experience in criminal defense to explore how far out of sync the ideal of adversarial due process is from the reality of cookie-cutter dispositions. She trenchantly explains how many low-level cases depend almost entirely on a police officer’s word, with no meaningful prosecutorial screening or defense counsel testing, or even no defense counsel at all. 



Misdemeanor Injustice and the Crisis of Mass Incarceration – Postscript (Response) by Jonathan Simon

From Volume 85, Number 5 (July 2012)

 Every generation it seems, a criminal law scholar arises like an Old Testament prophet and attempts to compel their colleagues to confront the uncomfortable fact that the kind of criminal justice the overwhelming majority of their fellow citizens experience involves misdemeanor crimes, adjudicated (if you can call it that) at the lowest level of courts, with little or no lawyering, few rules, and lots of scope for nasty prejudice. For this generation, Alexandra Natapoff is that Jeremiah. For her, it is bad enough, of course, that most felony justice has only a family resemblance to the picture acquired from most criminal law classes, but misdemeanors, if they show up at all, do so in the margins of the course, around issues like status offenses, voluntariness, or possession. When we take Natapoff’s challenge and treat the world as if these misdemeanors mattered, we experience something like what the filmmakers of the Matrix series so effectively captured: the slide from a sleek but apparently totally fake world, to one that is actually pretty disgusting and degrading.



Black and White or Red All Over? The Impropriety of Using Crime Scene DNA to Construct Racial Profiles of Suspects – Note by Natalie Quan

From Volume 84, Number 6 (September 2011)

When the body of a deceased woman was found near the Mississippi River close to Baton Rouge in July 2002, DNA retrieved from the crime scene was linked to the murders of two other women in the area, and multiple law enforcement agencies subsequently began an aggressive search for the serial killer. Using witness statements and an FBI profile, the FBI, the Louisiana State Police, and the police and sheriff’s departments of Baton Rouge determined that their suspect was a young white man. After a fourth murder believed to have been committed by the same perpetrator occurred in December 2002, officials intensified their hunt for the killer by spending over one million dollars to collect and test the DNA of some 1200 white men in the area, but they made no matches and consequently had no leads.

In March 2003, the investigators crossed paths with molecular biologist Tony Frudakis of the company DNAPrint Genomics, who claimed that he could ascertain the suspect’s social race by testing the crime scene DNA for 176 specific genetic markers that disclose information about physical traits. Frudakis said that because certain markers are found predominantly in people of African, Indo-European, Native American, or South Asian roots, he could analyze their frequencies and predict the suspect’s ancestry with 99 percent accuracy, and then infer social race from this ancestry finding. Initially skeptical of the science, officials sent Frudakis DNA samples from twenty individuals with known racial designations—and upon blind testing the samples, Frudakis correctly identified the race of each individual.

Even more intriguing were the results of Frudakis’s analysis of the Baton Rouge serial killer’s DNA. Using a test he called DNAWitness, Frudakis concluded that the suspect’s “biogeographical ancestry” was 85 percent Sub-Saharan African and 15 percent Native American, which left, in his words, “no chance that this is a Caucasian. No chance at all.”



Criminal Cookbooks: Proposing a New Categorical Exclusion for the First Amendment – Note by Chelsea Norell

From Volume 84, Number 4 (May 2011)

This Note will propose a new categorical exclusion from the First Amendment for speech that specifically details how to commit a crime and, –as a whole, lacks serious literary, artistic, political, or scientific value. This exclusion–the crime plans exclusion–may be tailored in various ways to reflect an accommodation of free speech principles and government interests. Ultimately, this Note will advocate a two-plank definition of crime plans speech requiring (1) that the speech be sufficiently specific so that a reasonable person who has never committed the described crime could follow the instructions and expect to carry out the crime or conceal evidence, and (2) that the speech, “as a whole, lacks serious literary, artistic, political, or scientific value,” which will be referred to collectively as “redemption value.”

While this Note will advocate a new categorical exclusion, it will also suggest that crime plans speech can be denied First Amendment protection under traditional strict scrutiny analysis. Moreover, when crime-facilitating speech does not fall into the crime plans exclusion, it still may be denied First Amendment protection under strict scrutiny analysis if the state’s compelling interest in prohibiting that speech outweighs the individual’s free speech interest. Though strict scrutiny analysis can often yield the same result as a categorical exclusion, categorically excluded speech does not have presumptive constitutional protection and is subject only to the minimal rational basis test. Thus, the argument structure of the categorical exclusion conveys a message that specific crime-facilitating speech that has virtually no noncriminal redemptive value is undeserving of First Amendment protection.

In addition to a categorical exclusion, this Note will propose that specific crime-facilitating speech that poses dangers of catastrophic magnitude should be subject to prior restraints. Such restraints are constitutionally permissible so long as they implement procedural safeguards to combat standardless discretion.

Crime-facilitating speech is any speech that abets crime or provides information that may be useful in a criminal endeavor. Such speech can take various forms, ranging from one-on-one conversations to electronic publications disseminated throughout the world. Crime-facilitating speech makes some crimes achievable that would not otherwise be possible, such as divulging social security numbers to facilitate identity theft. This speech also makes some crimes easier to commit or harder to detect and thus harder to deter and punish.



Behavioral Addictions and the Law – Note by Brent S. Colasurdo

From Volume 84, Number 1 (November 2010)

The doctrine of free will underlies much of the legal system in the United States. The criminal law, for instance, does not punish a person unless that individual made a choice to commit a wrongful act or otherwise had some sort of control over the wrongful behavior. This principle often arises in the context of individuals with diseases or disorders. Given that a person does not typically choose to be afflicted with a disease, and often cannot control the effects of the disease, the law cannot rightfully hold the person responsible for those effects. For instance, a criminal defendant who committed a wrongful act as a result of suffering from schizophrenia, a mental illness over which the defendant has no control, will likely be punished less severely than a non-mentally ill defendant, or not at all. Similarly, a civil defendant who crashed a car due to a sudden unforeseeable heart attack will likely not be liable for the resulting damage. Implicit in this concept is the idea that any person in the same circumstances would have done the same thing.

A legal system such as ours, built around the concept of free will, is contorted by the concept of addiction. Addicts, by definition, are unable to control their substance use. Implicit in this concept is the idea that any person who is given an addictive substance for a certain amount of time can become addicted to that substance. The law has wrestled with fitting the concept of drug addiction into the many doctrinal areas founded on the concept of free will.



Beyond No-Man’s Land: Psychiatry’s Imprecision Revealed by Its Critique of SVP Statutes as Applied to Pedophilia – Note by Jennifer Jason

From Volume 83, Number 6 (September 2010)

The field of psychiatry has identified a problem with the law, its source, and suggested a solution. The problem is “legislators . . . us[ing] psychiatric commitment [of sex offenders] to effect nonmedical societal ends.” The source is U.S. Supreme Court decisions allowing legislatures to use definitions of mental illness that have no basis in psychiatry: “As a consequence of U.S. Supreme Court decisions that are written ambiguously and tentatively, the bright line separating . . . [the legal conception of] mental disorder [(for the purposes of civilly committing sex offenders under sexually violent predator statutes)] from ordinary criminal behavior is difficult to draw and tests a no-man’s land between psychiatry and the law.” 

The solution is “[g]reater clarity and standardization . . . com[ing] from both sides: the legalists who interpret the law and the clinicians who apply and work under it.” A close analysis of the psychiatric critique of these statutes that allow for the civil commitment of sex offenders reveals psychiatry’s own imprecision within the bounds of psychiatry and in the domain of the overlap between psychiatry and the law.