The Federalist Society

Conservative & Libertarian Legal Scholarship: Criminal Law and Procedure

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XI.  Criminal Law & Procedure

Criminality and Responsibility

Gary Becker, Crime and Punishment: An Economic Approach, 76 J. POL. ECON. 168 (1968).  A landmark article, modeling criminal behavior as a matter of rational choices.

JOEL FEINBERG, THE MORAL LIMITS OF THE CRIMINAL LAW (4 vols., 1984-88). A legal philosopher’s attempt to answer the question: “What sorts of conduct may the state rightly make criminal?”

JAMES Q. WILSON, THINKING ABOUT CRIME (3d rev. ed., 1985). This classic work is about the sociology of crime, not criminal law, but it is indispensable to anyone analyzing criminal justice issues. Wilson concludes that “rehabilitation has not yet been shown to be a promising method for dealing with serious offenders, broad-gauge investments in social progress have little near-term effect on crime rates, punishment is not an unworthy objective for the criminal justice system of a free and liberal society to pursue, the evidence supports (though cannot conclusively prove) the view that deterrence and incapacitation work, and new crime-control techniques ought to be tried in a frankly experimental manner with a heavy emphasis on objective evaluation.” An interesting interview of Wilson appeared in the February 1995 issue of Reason magazine, available on-line at http://www.reasonmag.com/9502/fe.WILSONinter.text.html.

Individual Responsibility and the Law, 77 CORNELL L. REV. 955 (1992). The panel on “Personal Responsibility in Criminal Law” at this Federalist Society conference included presentations by Joseph Grano, Norval Morris, and Adam Walinsky.

Clarence Thomas, Personal Responsibility and Criminal Law, THE FEDERALIST PAPER, February 1995 (The Federalist Society). This Federalist Society address chronicles how the criminal law lost sight of the ideal of personal responsibility. The address maintains that an individual cannot truly attain human dignity without being held accountable for the harmful consequences of his acts. This speech was part of a Federalist Society symposium on “The Due Process Revolution and America’s Urban Poor: Victims or Beneficiaries?,” published in the 1996 volume of the Michigan Law and Policy Review.

Stephen Morse, Rationality and Responsibility, 74 S. CAL. L. REV. 251 (2000).  An argument against the deterministic critique of personal responsibility and its role in the criminal law, from a psychological perspective. 

Theories of Punishment

Herbert Morris, Persons and Punishment, in ON GUILT AND INNOCENCE (1976).  An explication of the justness of retributive punishment.

ERNEST VAN DEN HAAG, PUNISHING CRIMINALS: CONCERNING A VERY OLD AND PAINFUL QUESTION (1991); WALTER BERNS, FOR CAPITAL PUNISHMENT: CRIME AND THE MORALITY OF THE DEATH PENALTY (1991). These leading works consider the questions raised by punishment. There is much discussion about the retributive aim of punishment.

Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NORTHWESTERN LAW REVIEW 453 (1997).  An argument that retributive systems of punishment—when based upon general societal views of desert—have the utilitarian benefit of fostering respect for and adherence to the criminal law.

Michael S. Moore, The Moral Worth of Retribution, in FOUNDATIONS OF CRIMINAL LAW, (Katz et al eds., 1999).  A discussion of the interplay between human guilt emotions and the appropriateness of retribution as a goal of punishment.  See also Gerard Bradley, Retribution: The Central Aim of Punishment, 27 HARV. J. OF LAW & PUB. POL’Y 19 (2003).

Criminal Law & Economics

Frank H. Easterbrook, Criminal Procedure as a Market System, 12 J. LEGAL STUD. 289 (1983). Explains that the discretion currently found in criminal procedure-in prosecutorial discretion, plea bargaining, and sentencing discretion-strongly resembles “the rules that would be desirable in a system constructed to produce deterrence with minimum allocative deficiency.”

Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193 (1985). Argues that “the substantive doctrines of the criminal law, as of the common law in general, can be given an economic meaning and can indeed be shown to promote efficiency.” Judge Posner’s primary claim is that “[t]he major function of criminal law in a capitalist society is to prevent people from bypassing . . . the ‘market,’ explicit or implicit-in situations where . . . the market is a more efficient method of allocating resources than forced exchange.” For an overview of the law and economics literature on criminal law and procedure, consult chapters 7, 21, and 22 of RICHARD POSNER, ECONOMIC ANALYSIS OF LAW.

Steven Shavell, Deterrence and the Punishment of Attempts, 19 J. LEGAL STUD. 435 (1990). Discusses why the punishment of unsuccessful attempts at unlawful acts is justified and develops a model for calculating the magnitude of the sanctions.

Jeffrey S. Parker, The Economics of Mens Rea, 79 VA. L. REV. 741 (1993). Attempts to reconcile the mens rea doctrine with the “optimal enforcement” theory generated by the economic analysis of criminal law. Parker concludes that, at least with respect to mens rea, “economics can provide an explicit and precise explanation for the moral element in criminal law.”

Omri Ben-Shahar & Alon Harel, The Economics of the Law of Criminal Attempts: A Victim-Centered Perspective, 145 U. PA. L. REV. 299 (1996).  Using efficiency as its normative benchmark, this article argues for a victim-centered perspective in the specific area of criminal attempt.  The authors focus on the role of the victim in pre-crime settings and the possible protections that can be taken by the victim to prevent the crime from occurring and argue that the victim-centered approach can be expanded to other areas of criminal law as well.

Richard McAdams & Douglas Ulen, Behavioral Criminal Law and Economics, working paper, (Nov. 11, 2008) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1299963.  Considers the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.

Victims’ Rights Literature

FRANK G. CARRINGTON, THE VICTIMS (1975). This book added an important perspective to the critique of the Warren Court’s criminal justice rulings, namely the victim’s. Nine years later, the author and another leader in the “victims’ movement” reviewed the movement’s successes. See Frank Carrington & George Nicholson, The Victims’ Movement: An Idea Whose Time Has Come, 11 PEPPERDINE L. REV. 1 (1984) (introducing a symposium on legal rights of crime victims).

PRESIDENT’S TASK FORCE ON VICTIMS OF CRIME, FINAL REPORT (1982). In 1982, President Reagan established a task force to study and make recommendations with respect to the treatment of victims of crime. The task force’s report made legislative proposals for both federal and state governments, and made other recommendations for police, prosecutors, judges, parole boards, hospitals, schools, the ministry, the bar, the mental health community, and the private sector. It also proposed that this sentence be added to the Sixth Amendment: “Likewise, the victim, in every criminal prosecution, shall have the right to be present and to be heard at all critical stages of judicial proceedings.” The report has been used as a blueprint for numerous reforms at the state level.

Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 B.Y.U. L. REV. 835 (2005).  An argument by one of the rising stars in legal scholarship that victims should be made participants in the federal criminal process along with one possible method for including victims in the process.

Constitutional Criminal Procedure

“Truth in Criminal Justice” Series, Office of Legal Policy, 22 U. MICH. J. L. REFORM  393 (1989). This special issue reprints eight studies conducted in the mid-1980s by the Office of Legal Policy of the U.S. Department of Justice about various aspects of criminal procedure. This is a very useful source for those interested in pretrial interrogation (the “Miranda rule”), the exclusionary rule, the Sixth Amendment right to counsel, the admission of criminal histories at trial, the judiciary’s ability to control federal law enforcement activity, double jeopardy, federal habeas corpus review of state judgments, and adverse inference from silence. The introduction by Professor Joseph Grano briefly recaps the recent history of the law of criminal procedure.

The Constitution and Federal Criminal Law, 26 AM. CRIM. L. REV. 1659 (1989). Papers from a Federalist Society conference on a wide range of topics, including the death penalty, criminal sentencing, the proper goals of punishment, federalism and federal criminal law, and drug policy. Contributors include Walter Berns, Charles Fried, Joseph Grano, Edwin Meese, President Reagan, David Sentelle, and Ernest van den Haag.

 Fourth Amendment

Dallin H. Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI. L. REV. 665 (1970). In this classic article, Professor Oaks marshals logical and empirical arguments against the exclusionary rule. He “concludes with a polemic argument for abolishing the exclusionary rule as to evidence obtained by searches and seizures, and replacing it with a practical tort remedy against the offending officers or their employers.”

Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994).  This article gives careful attention to the text, structure, and history of the Fourth Amendment and criticizes the Supreme Court’s failure to do so. As usual, Professor Amar is creative in exploring the interrelationship between various constitutional protections.

Jeffrey Standen, The Exclusionary Rule and Damages: An Economic Comparison of Private Remedies for Unconstitutional Police Conduct, 2000 B.Y.U. L. REV. 1443 (2000). An economic analysis of the costs and benefits of the exclusionary rule, suggesting that damages as a remedy for police misconduct are at least as good as the exclusionary rule in meeting the stated social objectives, and in fact are probably better, offering a more refined solution to the perpetual problem of constraining police behavior.

Craig S. Lerner, The Reasonableness of Probable Cause, 81 TEX. L. REV. 951 (2003).  This article argues for a reappraisal of the concept of probable cause through an actual example of the pre-9/11 search of Zacharias Moussaoui’s laptop.  Prof. Lerner analyzes the question of whether the standard of probable cause should fluctuate based on the seriousness of the suspected crime and proposes an alternative approach that factors in a suspected crime’s gravity when determining probable cause. 

David Moran, The End of the Exclusionary Rule, Among Other Things: The Roberts Court Takes on the Fourth Amendment, 2005-06 CATO SUP. CT. REV. 283 (2005/2006).  A libertarian scholar discusses the significance of Hudson v. Michigan, in which the exclusionary rule was abolished for knock-and-announce cases.

Orin Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503 (2007).  This article explains why no one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstance and argues that the Supreme Court uses four different tests at the same time: a probabilistic model, a private facts model, a positive law model, and a policy model. Kerr contends that the use of multiple models is preferable to a singular approach, as it allows the courts to use whichever approach can most accurately and consistently identify practices that need Fourth Amendment regulation.

Fifth Amendment

SIDNEY HOOK, COMMON SENSE AND THE FIFTH AMENDMENT (1957). Professor Hook was an important anticommunist intellectual throughout the Cold War, including its early days when the Fifth Amendment privilege against self-incrimination was frequently invoked by those testifying before congressional committees. Such is the explicit backdrop for this 1957 book, in which Hook invokes Bentham, Mill, Cardozo, and Wigmore, among others, in discussing the limits that ought to be placed on the privilege.

Henry J. Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968). In this classic article, Judge Friendly critiques the Supreme Court’s jurisprudence on the Self-Incrimination Clause of the Fifth Amendment. He concludes with specific recommendations for a constitutional amendment limiting the Clause’s scope.  For a reexamination of whether a constitutional amendment is really required, see Yale Kamisar, Can (Did) Congress ‘Overrule’ Miranda?, 85 CORNELL L. REV. 883 (2000).

JOSEPH GRANO, CONFESSIONS, TRUTH AND THE LAW (1993). A comprehensive treatment of the Miranda decision and its impact on law enforcement. For an interesting review, see Michael Chertoff, Chopping Miranda Down to Size, 93 MICH. L. REV. 1713 (1995).

Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857 (1995). This article gives careful attention to the text, structure, and history of the Fifth Amendment’s Self-Incrimination Clause, and criticizes the Supreme Court’s failure to do so.

Paul G. Cassell, Miranda’s Social Costs: An Empirical Reassessment, 90 NW. U. L. REV. 387 (1996). Meticulously assesses the evidence available on how many confessions police never obtain because of Miranda. This evidence “suggests that each year Miranda results in lost cases against roughly 28,000 serious violent offenders and 79,000 property offenders and in plea bargains to reduced charges in almost the same number of cases.” Professor Cassell concludes that those costs “are unacceptably high, particularly because alternatives such as videotaping of police interrogations can more effectively prevent coercion while reducing Miranda’s harms to society.”

Alex Stein & Daniel J. Seidmann, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000).  This article argues that the right to silence can help fact-finders distinguish between innocent and guilty suspects.  Using empirical data and game theory analysis, the authors argue that the right to silence is superior to the alternative, which would result in guilty defendants lying and becoming pooled together with innocent defendants. 

Stephanos Bibas, The Rehnquist Court’s Fifth Amendment Incrementalism, 74 GEO. WASH. L. REV. 1078 (2006).  A defense of the Rehnquist Court’s Fifth Amendment jurisprudence, observing that the Court retreated from both the expansive rationales and results that reached well beyond the Fifth Amendment’s text and history, leaving in place Miranda’s warnings but restricting its exclusionary rule and largely declining to extend it, leaving rules clear and narrow enough to guide law enforcement without unduly constraining it.

Habeas Corpus

Paul Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963). Classic treatment of the subject. Outlines the traditional justification for federal courts’ taking jurisdiction where a prisoner challenges the adequacy of the state courts’ process to decide federal questions. Argues that this traditional justification is not clearly present in cases where the prisoner’s challenge is not to the state courts’ decisional process, but rather to the correctness of the results of the trial.

Henry J. Friendly, Is Innocence Irrelevant?: Collateral Attack on Criminal Judgments, 38 U. CHI. L. REV. 142 (1970).  Argues that “with a few important exceptions, [state] convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence.” Predicts that failure to limit collateral attack in this way will lead to “abuse by prisoners, a waste of the precious and limited resources available for the criminal process, and public disrespect for the judgments of criminal courts.”

Death Penalty/Eighth Amendment

RAOUL BERGER, DEATH PENALTIES: THE SUPREME COURT’S OBSTACLE COURSE (1982). Marshaling a convincing array of historical evidence, Berger demonstrates that the Supreme Court’s decisions under the Eighth Amendment’s Cruel and Unusual Punishments Clause impose the Justices’ moral views upon society rather than seriously apply constitutional norms. The effect of the Court’s decisions is to amend the Constitution by changing the clearly established meaning of the Clause, which allowed the states wide discretion in imposing death penalties in appropriate cases. The book is valuable not only for its insight into specific questions of Eighth Amendment jurisprudence but more generally for its methodology in demonstrating that the original understanding of the Framers of the Constitution can be ascertained, even for purportedly open-ended clauses like the Cruel and Unusual Punishments Clause.

Stephen J. Markman & Paul G. Cassell, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 STAN. L. REV. 121 (1988). The 1987 Bedau-Radelet study purported to show that 350 people had been wrongly convicted of capital or “potentially capital” crimes in the United States during this century, that 23 innocent persons had actually been executed, and that the use of capital punishment therefore entails an intolerable risk of mistaken executions. In their response, however, Judge Markman and Professor Cassell critique the study’s methodology and current relevance; in their concluding section, they also argue that Bedau and Radelet “undervalue[ ] the important reason why the great majority of Americans” support capital punishment, namely “to save lives.”

Cass R. Sunstein & Adrian Vermeule, Is Capital Punishment Morally Required? , working paper, (March 2005) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=691447.  Discusses recent evidence in support of the deterrence effect of the death penalty, and makes the argument that the failure to appreciate the life-life tradeoffs involved in capital punishment may depend on cognitive processes that fail to treat “statistical lives” with the seriousness that they deserve.

John Stinneford, The Original Meaning of “Unusual”: the Eighth Amendment as a Bar to Cruel Innovation, 102 NW. U.L. REV. 1739 (2008). An originalist analysis of the Eighth Amendment, arguing that the Framers understood the word “unusual” to mean “contrary to long usage” and that recognition of the word’s original meaning will invert the “evolving standards of decency” test and ask the Court to compare challenged punishments with the longstanding principles and precedents of the common law, rather than notions of “societal consensus” and contemporary “standards of decency.”

O. Carter Snead, Neuroimaging and the “Complexity” of Capital Punishment, working paper, (Sept. 4, 2009) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=965837. A critique of the use of cognitive neuroscience to discredit the retributive rationale for the death penalty, concluding that the effort would produce a death penalty regime that is even more draconian and less humane than the flawed framework currently in place.

Sentencing

Jeffrey S. Parker, “Rules Without . . .”: Some Critical Reflections on the Federal Corporate Sentencing Guidelines, 71 WASH. U. L.Q. 397 (1993). In the 1980s, the call for reform of federal criminal sentencing resulted in the creation of the U.S. Sentencing Commission, and its promulgation of sentencing guidelines that constrain federal judges, to some degree, in their sentencing of federal criminal defendants. Parker critiques that portion of the sentencing guidelines that deals with corporate defendants. He argues that these guidelines have no basis in sentencing theory, past sentencing practice, or statutory warrant, and that they raise serious constitutional problems as well. He concludes that they are “a disaster for sentencing policy, and another blow to the American economy.”

Dan M. Kahan, What do Alternative Sanctions Mean?, 63 U. CHI. L. REV. 591 (1996).  An examination of the reasons for public resistance to alternative sanctions, which concludes that traditional alternatives to imprisonment lack expressive societal condemnation.  Professor Kahan then advocates using shaming penalties as a better alternative to imprisonment because shaming penalties express condemnation and are still a feasible alternative to prison for many crimes.

Daryl J. Levinson, Collective Sanctions, 56 STAN. L. REV. 345 (2003).  This article argues for the imposition of collective sanctions as an indirect way of controlling individual wrongdoers by expanding the economic theory of vicarious liability to include the internal dynamics of collective action.

Paul Cassell, Too Severe? A Defense of the Federal Sentencing Guidelines (and a Critique of the Federal Mandatory Minimums), 56 STAN. L. REV. 1017 (2004).

In the landmark 2005 case United States v. Booker, the Supreme Court struck down the Federal Sentencing Guidelines as unconstitutional, holding that the Sixth Amendment requires a jury to decide, beyond a reasonable doubt, any fact that increases the sentence of a defendant in a federal criminal case over the high end of the range provided by the Guidelines.  The following articles discuss and critique the ramifications of Booker:

Jeffrey Standen, The New Importance of Maximum Penalties, 53 DRAKE L. REV. 575 (2005).

Stephanos Bibas, White Collar Plea Bargaining and Sentencing After Booker, 47 WILL. & MARY L. REV. 721 (2005).  This symposium essay speculates about how Booker’s loosening of the Federal Sentencing Guidelines is likely to affect white-collar plea bargaining and sentencing, suggesting that the Sentencing Commission revise its loss-computation rules, calibrate white-collar sentences to their core purpose of expressing condemnation, and add shaming punishments and apologies to give moderate prison sentences more bite.

J.J. Prescott and Sonja Starr, Improving Criminal Jury Decision Making After the Blakely Revolution, 2006 U. ILL. L. REV. 301 (2006).

Stephanos Bibas, Max M. Schanzenbach & Emerson Tiller, Policing Politics at Sentencing, 103 NW. U. L. REV. (forthcoming spring 2009) Argues that binding sentencing guidelines are necessary to constrain trial-court discretion and permit meaningful appellate review and that in Booker and its progeny the Supreme Court has taken too rosy a view of trial-court sentencing discretion, undervaluing appellate review as a check on policy and ideological variations.

John Pfaff, “The Future of Appellate Sentencing Review: Booker in the States,” 93 MARQUETTE L REV __ (forthcoming 2009).

Miscellaneous

Sara Sun Beale, Reconsidering Supervisory Powers in Criminal Cases: Constitutional and Statutory Limits on the Authority of the Federal Courts, 84 COLUM. L. REV. 1433 (1984). The Supreme Court has relied on its “supervisory authority over the administration of criminal justice in the federal courts” for more than forty years. This article concludes that the sources for this authority are actually quite limited and that “the concept of supervisory power should be abandoned in favor of identifying more specifically the constitutional or statutory power being employed.”

Richard A. Bierschbach and Alex Stein, Overenforcement, 93 GEO. L. J. 1743 (2005).  A seminal work on the understudied area of overenforcement, which argues that overenforcement of the law is widespread and unavoidable, but that the legal system can counteract the effects of overenforcement by adjusting evidentiary and procedural rules to make liability less likely while still creating balanced incentives for individuals.

Last updated September 2009

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