Chicago Criminal Defense ~ Thomas C. Brandstrader 312.332.5297

Larry Cunningham (St. John’s University School of Law) has posted Appellate Review of Unpreserved Questions in the Criminal Cases: An Attempt to Define the ‘Interest of Justice’ (Journal of Appellate Practice and Process, Vol. 11, No. 2, p. 285, Fall 2010) on SSRN. Here is the abstract:

As a general rule, an appellate court can consider a claim on appeal only if the appellant properly preserved it in the court below. A claim or issue is preserved if it was presented to the lower court at the proper time and with sufficient specificity so that the trial court had an opportunity to correct the alleged error at the time it was made. Preservation is thus accomplished by a simple, timely on-the-record objection along with a brief explanation of its basis. Ordinarily, a court will not grant relief on a claim that is presented for the first time on appeal.

Preservation serves important purposes. A timely and specific objection alerts the trial court and the adversary to the alleged error, giving both an opportunity to correct the problem or take ameliorative action, thus potentially obviating the need to raise the issue on appeal. It thus encourages truth-seeking, the efficient resolution of the case, and the conservation of appellate resources. Preservation also discourages gamesmanship by preventing a party from saving a trump card argument until appeal.

However, preservation is not without its costs, particularly to a criminal defendant. When an attorney unwittingly fails to preserve an argument, his or her client may serve a potentially lengthy sentence even though an otherwise viable claim for a new trial may appear on the record.

In recognition of this dilemma, some legislatures and courts have crafted a narrow exception to the preservation requirement. In limited circumstances, an appellate court may consider an unpreserved question even though no objection or other protest was made to the trial court. This article will consider the approaches taken by the federal courts and New York state in this area.

On their face, the approaches seem very different. The federal rule is detailed, specific, and structured. New York, on the other hand, simply directs its intermediate appellate courts to consider unpreserved questions if doing so is in the interest of justice. Despite these apparent differences, the rules are actually quite similar in practice.

In the federal system, the Court of Appeals or Supreme Court can notice an unpreserved issue if it constitutes a plain error. Decades of Supreme Court precedent have resulted in a four-part test to determine whether an error qualifies as plain. Ultimately, however, the plain error rule is unsatisfactory for two reasons. First, one aspect of the test boils down to whether the defendant can show prejudice by the failure to preserve the claim. In other words, the defendant must demonstrate a successful appellate claim in order to overcome the preservation hurdle. Thus, preservation is fairly meaningless. If the defendant has a winning argument on the merits, the court will dispense with preservation. If, on the other hand, the defendant‘s claim would fail anyway, the court will apply preservation to bar the claim. The result, either way, is that the court is looking beyond the failure to preserve and analyzing the merits of the claim, creating exactly the type of inefficiency that preservation is designed to avoid.

Second, the federal rule is problematic because it provides discretion to the appellate court to determine, notwithstanding the presence of a prejudicial error, whether a miscarriage of justice would result if the plain error rule was not applied. Yet, the courts have not provided a workable definition of miscarriage of justice, except most agree that the plain error rule should be used to free an innocent person.

New York has a similarly unworkable rule. In New York, only intermediate appellate courts typically, the Appellate Division of the Supreme Court can decide unpreserved questions. Statutory authority provides that they may do so only in the interest of justice. No further guidance or explanation about this ambiguous term is provided by statutes or case law. The result is a hodgepodge of cases that seem to suggest that an appellate court will exercise its interest-of-justice jurisdiction only if the defendant has a winning claim on the merits. Otherwise, it will find the issue to be unpreserved and will decline to exercise its interest-of-justice authority to review the claim. Thus, as with the federal plain error rule, New York‘s preservation doctrine is essentially a meaningless smokescreen.

In this article, I will propose a new way of looking at these preservation exceptions in criminal cases. I suggest a number of substantive factors to aid courts in deciding whether the interest of justice warrants appellate review. I also encourage courts to be more explicit in explaining why they are or are not granting exceptions to preservation on a case-by-case basis.

I will proceed as follows: In Part II, I will discuss the competing policies between preservation and defendants‘ due process rights. In Part III, I will compare and contrast the federal and New York exceptions to preservation, noting the flaws in each test. In Part IV, I will demonstrate why a factors test would better serve the goals of preservation while providing for needed exceptions. I will also outline a workable factors test for courts to apply.

July 30, 2011 | Permalink

Benjamin L. Berger (Osgoode Hall Law School) has posted Mental Disorder and the Instability of Blame in Criminal Law (RETHINKING CRIMINAL LAW THEORY: NEW CANADIAN PERSPECTIVES IN THE PHILOSOPHY OF DOMESTIC, TRANSNATIONAL, AND INTERNATIONAL CRIMINAL LAW, pp. 117-139, Hart Publishing, 2011) on SSRN. Here is the abstract:

How can we understand the troubling under-inclusiveness of our law of mental disorder – its failure to recognize mental conditions that, on the most compelling theoretical accounts of how mental disorder operates on criminal responsibility, ought to concern us deeply? This article argues that the gap between our plausible theories of criminal responsibility and our practices relating to mental disorder is best understood as a marker for the criminal law’s central social function: the laundering and containment of blame. The article begins by canvassing the conceptual structure of the defence of mental disorder, turning then to the troubling prevalence of mental disorder among those facing criminal judgment, looking specifically at the incidence and effects of FASD, autism spectrum disorder, and anti-social personality disorder. These conditions operate on key elements of our theoretical account of criminal responsibility but are excluded from our defence of mental disorder. Yet giving serious doctrinal regard to facts about mental disorder that ought to be of theoretical concern would destabilize individual responsibility for crime, showing itself as a far more complex social and political matter than we like to admit and raising questions about our collective standing to blame. The article argues that this analysis gives a line of sight into the symbolic and communicative role of the law of mental disorder, and the criminal law more generally – it is a mechanism for the concealment of collective responsibility for complex social problems.

Andrew E. Taslitz (Howard University – School of Law) has posted Destroying the Village to Save It: The Warfare Analogy (or Dis-Analogy?) and the Moral Imperative to Address Collateral Consequences (Howard Law Journal, Vol. 54, p. 501, 2011) on SSRN. Here is the abstract:

This paper is the introduction to a Howard Law Journal symposium on collateral consequences. To set the stage for the symposium, the paper examines the strengths and weaknesses of the analogy drawn between “collateral damage” in armed warfare and “collateral consequences” in the war on crime. The paper argues that these similarities and differences – which turn on concepts of certainty, particularity, and reciprocity of the harm – highlight the moral need to reform the law’s treatment of collateral consequences. The paper concludes by summarizing the symposium articles and placing them into a framework that supports and illustrates the paper’s main conclusions.

Gregory J. DeAngelo , Shawn D. Bushway and Benjamin Hansen (Rensselaer Polytechnic Institute (RPI) – Department of Economics , University at Albany and University of Oregon) have posted Deterability by Age on SSRN. Here is the abstract:

There is a growing cost-benefit conversation about the best policy strategies to prevent crime (e.g. Donohue and Siegelman, 1998; Durlauf and Nagin, 2011; Cook, Ludwig, and McCrary in press). Part of this conversation focuses on identifying the best strategies for preventing crime by particular population sub-groups. This conversation mirrors developments in criminology, where the discussion has changed from a “what works” mentality to a “what works for whom” mentality. One of the most meaningful subgroups for this discussion is adolescents and young adults, who are responsible for a large percentage of overall crime. For example, people in the 15 to 24 age group account for 14% of the population but 40% of all arrests reported to the Uniform Crime Reporting system in 2009 (Crime in the United States, 2009, Table 38). The aim of the current research is to examine the role that age plays, if any, when changes in the legal environment are not age specific. In short, we find that an exogenous reduction in the likelihood of being apprehended results in a uniform augmentation in the egregiousness of the criminal activity (regardless of age). However, we do not find evidence to support a hypothesis of age-driven egregiousness of criminal activity. Instead, we find that all age groups respond quasi-uniformly to reductions in their likelihood of being apprehended.

Russell D. Covey (Georgia State University College of Law) has posted Mass Exoneration Data and the Causes of Wrongful Convictions on SSRN. Here is the abstract:

What we currently know about the persons who have been wrongfully convicted is based largely on exonerations resulting from post-conviction testing of DNA. Study of those cases has produced a dataset of information about the factors that contribute to wrongful convictions and the procedures relied upon both to convict and then, later, to exonerate, those defendants. While critically important, this dataset has important limitations, chief among them is that it is largely limited to the kinds of cases in which DNA evidence is available for post-conviction testing.

Drawing on fresh empirical data, my paper attempts to improve the dataset on the wrongfully convicted by assessing another group of exonerees, those exonerated in two major scandals, the Rampart scandal in Los Angeles, and the Tulia scandal in Texas. In both of these cases, large numbers of persons were wrongfully convicted and later formally exonerated. The profile of these defendants varies dramatically from that of the typical DNA exoneree. Broadening the data set to include these exonerees should cause us to rethink the major causes of wrongful convictions and the most pressing remedial solutions to the problem.

Michael Mannheimer (Northern Kentucky University – Salmon P. Chase College of Law) has posted Cruel and Unusual Federal Punishments on SSRN. Here is the abstract:

In recent years, federal prison sentences have often far outstripped state sentences for the same criminal conduct. This is the result of the confluence of two trends. First, crime has become increasingly federalized, so that the very same criminal conduct typically punished by state law, such as drug trafficking, gun possession, and child pornography offenses, is increasingly being punished in federal court. Second, the federal sentencing guidelines and statutory mandatory minimum sentences for many of these offenses have grown so as to far exceed the sentences available in state court.

Virtually all federal defendants who have challenged their sentences as, “cruel and unusual punishment,” in violation of the Eighth Amendment have failed. This is not surprising. The Supreme Court jurisprudence on cruel and unusual carceral punishments is extraordinarily deferential to legislative judgments about how harsh prison sentences ought to be for particular crimes. This deferential approach stems largely from concerns of federalism, for all of the Court’s modern cases on the Cruel and Unusual Punishments Clause have addressed state, not federal, sentencing practices. Thus, they have addressed the Eighth Amendment only as incorporated by the Fourteenth. Indeed, one must go back a century to find a Supreme Court case addressing proportionality in the context of federal sentencing, and that case was highly atypical. Thus, federal courts find themselves applying a deferential standard designed in large part to safeguard the values of federalism in cases where those values do not call for deference.

The task of this article is to re-discover the meaning of the, “pure” Eighth Amendment, unmediated by the Fourteenth. Recent academic commentary about the original understanding of the Eighth Amendment correctly focuses our attention on the Clause’s main purpose of comparing a given punishment to those generally meted out at common law for the same conduct. Yet these commentators fail to adequately appreciate the extent to which the Eighth Amendment, like the rest of the Bill of Rights, was an attempt by the Anti-Federalists to secure individual rights through the preservation of a robust form of state sovereignty. Moreover, the Anti-Federalists, and their political heirs, the Republicans, rejected a, “pre-realist,” vision of common law in favor of an approach that recognized the common law as varying State to State. Thus, the Anti-Federalists took a decidedly State-centered and State-specific approach to the common-law rights that the Eighth Amendment was designed to encapsulate. And the views and general outlook of the Anti-Federalists are critical to a complete understanding of the Bill of Rights, for it was they who won the concession of the adoption of the Bill as the price of union.

This contextualized account of the ratification of the Eighth Amendment evidences a design to limit the power of the federal government to inflict punishment for crimes to the same extent that the States limited their own power to punish. That is to say, whether a federal punishment for a crime is, “cruel and unusual,” can be answered only in reference to the punishment for the same conduct meted out by the States. Moreover, the Anti-Federalists’ views on the nature of the common law indicate that the appropriate comparator is the State where the criminal conduct occurred, not the States generally. But, in either event, the standard for determining whether a federal sentence is “cruel and unusual” ought to be far more stringent than that used in reviewing Eighth and Fourteenth Amendment challenges to State sentences.

MacCoun on the Dutch Cannabis Experience

Ro MacCoun (University of California, Berkeley – Jurisprudence and Social Policy Program) has posted What Can We Learn from the Dutch Cannabis Coffeeshop System? on SSRN. Here is the abstract:

Aims: To examine the empirical consequences of officially tolerated retail sales of cannabis in the Netherlands, and possible implications for the legalization debate.

Methods: Available Dutch data on the prevalence and patterns of use, treatment, sanctioning, prices, and purity for cannabis dating back to the 1970s are compared to similar indicators in Europe and the USA.

Results: The available evidence suggests that the commercialization of cannabis probably increased the prevalence of use, but only modestly, and it does not appear to encourage escalation into heavier use or the use of other drugs.

Conclusions: Perhaps because the Dutch maintain a prohibition at the production level, prices have remained high. This may have kept consumption lower than what might be expected in an unrestricted market. Thus, the Dutch system serves as a nuanced alternative to both full prohibition and full legalization.

June 30, 2011 | Permalink

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