CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, January 16, 2018

Green on Prosecutors and Urban Policing

Green bruceBruce A. Green (Fordham University School of Law) has posted Urban Policing and Public Policy — The Prosecutor’s Role (Georgia Law Review, Vol. 51, No. 1179, 2017) on SSRN. Here is the abstract:
 
In 2013, a federal district judge found that New York City police stop-and-frisk practices were unconstitutional and must be remedied. Leading up to the court’s ruling, many civic groups, public officials, editorialists, and others chose sides, but the city’s district attorneys mostly stayed on the sideline, playing virtually no visible role in the public discussions before or during the lawsuits. This Essay uses prosecutors’ response to New York City’s stop-and-frisk policy as a lens through which to examine larger questions about elected prosecutors’ functions as public officials. The Essay asks whether elected prosecutors, in the course of their work, should formulate views on controverted public policy issues, such as stop-and-frisk, about which they may have expertise and perspectives. And if so, how can prosecutors’ public policy perspectives legitimately factor into their work, given the functions they serve? 

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January 16, 2018 | Permalink | Comments (0)

Laurency on Hybrid Police Work in Mexico

Patrick Laurency (University of Konstanz) has posted Hybrid Police Work and Insecurity in the Mexican Federal State (Centre for Security Governance - CSG Papers, No.17) on SSRN. Here is the abstract:
 
In the years leading up to 2015, the level of violent crime against ordinary citizens continued to rise in some Mexican states. It remains alarming today, despite a steady decrease in violence related to drug trafficking since 2011. Conventional analysis suggests that citizen security deteriorated mainly as a result of the Mexican government’s sudden turn toward a more confrontational policing approach, including the reliance on military and paramilitary actors. This view holds that new policing strategies — commonly referred to as mano dura in the Latin American context — ultimately provoked a splintering of drug cartels into smaller criminal units, which subsequently felt compelled to generate sufficient income by diversifying their criminal portfolio into extortion, kidnapping or armed robbery. By contrast, this paper argues that the persistence of or increase in the insecurity of ordinary citizens beyond 2011 is connected to hybridized policing systems that are increasingly marked by an undifferentiated deployment of actors of different origin (military, paramilitary, police) for public security tasks.

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January 16, 2018 | Permalink | Comments (0)

Stoughton on Police Body-Worn Cameras

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted Police Body-Worn Cameras (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Since the summer of 2014, community members, politicians, and police executives across the country have called for greater police accountability and improvements in police-community relations. Body-worn cameras are widely seen as serving both ends. Today, thousands of police agencies are exploring, adopting, and implementing body-cam programs. A survey by the Major Cities Chiefs Association and the Major County Sheriffs’ Association found that 95% of surveyed agencies had either implemented or were committed to implementing a BWC program.

Body-worn cameras are here, and more are coming. Mary Fan, for example, has described a “camera cultural revolution,” in which “the future will be recorded.” Legal scholars have largely responded to this burgeoning new technology by addressing it through the framework of traditional discussions about privacy, police accountability, or the rules of evidence. Relatively few articles have gone further by identifying the potential benefits of BWCs and critically examining whether the adoption of this technology by police agencies can truly do what the many proponents claim. This Article falls solidly into the latter camp.

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January 16, 2018 | Permalink | Comments (0)

Monday, January 15, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
208
2.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
188
3.

Law, Coercive Enforcement, and Practical Reason

University of Washington - School of Law
68
4.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
68
5.

Moral and Criminal Responsibility: Answering and Refusing to Answer

University of Stirling - Department of Philosophy
58
6.

Backdoor Man: A Radiograph of Computer Source Code Theft Cases

Babes-Bolyai University - Faculty of Law and Independent
53
7.

Balancing Section 230 and Anti-Sex Trafficking Initiatives

Santa Clara University - School of Law
51
8.

Decoding the Impossibility Defense

California Western School of Law
47
9.

The Elusive Object of Punishment

University of Michigan Law School
47
10.

Finality and the Capital/Non-Capital Punishment Divide

University of North Carolina School of Law
41

January 15, 2018 | Permalink | Comments (0)

Sunday, January 14, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
387
2.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
188
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
176
4.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
169
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
147
6.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
136
7.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
134
8.

Graduating Economic Sanctions According to Ability to Pay

University of California, Los Angeles (UCLA) - School of Law
79
9.

How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It

Pennsylvania State University, Penn State Law
66
10.

Plea Bargaining's Resounding Defeat? The Indian Experiment with Plea Bargaining

Harvard University, Law School, Students
55

January 14, 2018 | Permalink | Comments (0)

Saturday, January 13, 2018

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Tuesday

  • Cox v. U.S.: (1) Whether the U.S. Court of Appeals for the Armed Forces erred in holding that petitioners' claims—which asserted that a judge's service on the U.S. Court of Military Commission Review disqualifies him or her from continuing to serve on either the Army or Air Force Court of Criminal Appeals under 10 U.S.C. § 973(b)(2)(A)(ii)—were moot; (2) whether these judges' service on the U.S. Court of Military Commission Review disqualifies them from continuing to serve on the Army or Air Force Court of Criminal Appeals under 10 U.S.C. § 973(b)(2)(A)(ii); (3) whether the judges' simultaneous service on both the U.S Court of Military Commission Review and the Army or Air Force Court of Criminal Appeals violates the appointments clause; and (4) whether the Supreme Court has jurisdiction to review this case and Dalmazzi v. United States under 28 U.S.C. § 1259(3).

Wednesday

  • McCoy v. Louisiana: Whether it is unconstitutional for defense counsel to concede an accused's guilt over the accused's express objection.

January 13, 2018 | Permalink | Comments (0)

Yesterday's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

  • Lagos v. United States: Whether the Mandatory Victims Restitution Act covers costs for reimbursement that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and unprompted by any official government action.
  • Chavez-Meza v. United States: Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, whether it can instead issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable.” (Justice Neil Gorsuch is recused.)

January 13, 2018 | Permalink | Comments (0)

Friday, January 12, 2018

Arora on Juvenile Crime and Anticipated Punishment

Ashna Arora (Columbia University, Graduate School of Arts and Sciences, Department of Economics) has posted Juvenile Crime and Anticipated Punishment on SSRN. Here is the abstract:
 
Recent research suggests that the threat of harsh sanctions does not deter juvenile crime. This conclusion is based on the finding that criminal behavior decreases only marginally as individuals cross the age of criminal majority, the age at which they are transferred from the juvenile to the more punitive adult criminal justice system. Using a model of criminal capital accumulation, I show theoretically that these small reactions close to the age threshold mask larger responses away from, or in anticipation of, the age threshold. I exploit recent policy variation in the United States to show evidence consistent with this prediction - arrests of 13-16 year olds rise significantly for offenses associated with street gangs, including drug, homicide, robbery, theft, burglary and vandalism offenses, when the age of criminal majority is raised from seventeen to eighteen. In contrast, and consistent with previous work, I find that arrests of 17 year olds do not increase systematically in response. I provide suggestive evidence that this null effect is likely due to a simultaneous increase in under-reporting of crime by 17 year olds when the age of criminal majority is raised to eighteen. Last, I use a back-of-the-envelope calculation to show that for every 17 year old diverted from adult punishment, jurisdictions bore social costs on the order of $65,000 due to the corresponding increase in juvenile offending. In sum, this paper demonstrates that when criminal capital accumulates, juveniles may respond in anticipation of increases in criminal sanctions, and accounting for these anticipatory responses can overturn the conclusion that harsh sanctions do not deter juvenile crime.

January 12, 2018 | Permalink | Comments (0)

Bahr & Melum on EU's "Victims' Directive"

Bernt Bahr and Jenny Melum (Nedre Romerike District Court and Norwegian Courts Administration) have posted EU's ‘Victims’ Directive’ – A Legal Act for a Cultural Change? (International Journal for Court Administration, Vol. 9, No. 1, 2017) on SSRN. Here is the abstract:
 
The article looks at safeguarding points in Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and if and how some European countries have implemented the Directive. The article discusses what might be success factors to fulfil the Directive’s safeguarding intentions in the light of securing access to justice. We observe that focus on and measures for the victim often lead to a new conscience about the needs of all witnesses. The article addresses the need for cultural changes in the judicial system in order to fulfil the Directive’s intentions, and what might be a drive to such changes.

January 12, 2018 | Permalink | Comments (0)

Winterdyk on Child Human Trafficking

John Winterdyk (Mount Royal University - Justice Studies) has posted Combating (Child) Human Trafficking: Building Capacity (Oñati Socio-Legal Series, Vol. 8, No. 1, 2018) on SSRN. Here is the abstract:
 
The presentation/paper focuses on the challenges and necessity of building capacity at local, national, and international levels with a focus of how to more effectively combat trafficking in human beings (THB). Insight from several of initiatives are shared with the aim of illustrating how to capitalize on the vast number of opportunities that already exist at these levels and how they might be coordinated to enable collaborative work in an informed and dynamic manner to combat human trafficking. Information from several recent research projects that focus on some of these same issues is also incorporated into this paper.

January 12, 2018 | Permalink | Comments (0)

Troiano on Violent Crime, Social Capital, and Political Behavior

Ugo Troiano (University of Michigan at Ann Arbor - Department of Economics) has posted Does Experiencing Violent Crimes Matter for Social Capital and Political Behavior? on SSRN. Here is the abstract:
 
Do early experiences of violent crimes matter? In this paper I investigate this question by using data from the General Social Survey combined with regional data about violent crime. People who experienced during adolescence high rate of violent crime have a lower probability of trusting others and thinking that others are trying to be helpful, and a higher probability of thinking that others want to take advantage of them, accounting for many confounding factors. Additionally, they have a lower probability of being affiliated with political clubs, and are less likely to have an affiliation with the democratic party.

January 12, 2018 | Permalink | Comments (0)

Thursday, January 11, 2018

Jones & Winterdyk on Human Trafficking

Jackie Jones and John Winterdyk (University of the West of England (UWE) - Bristol Law School and Mount Royal University - Justice Studies) have posted Introduction: Human Trafficking: Challenges and Opportunities for the 21st Century (Oñati Socio-Legal Series, Vol. 8, No. 1, 2018) on SSRN. Here is the abstract:
 
The Introduction begins with an outline of what human trafficking entails and the international and regional legal regime as it currently stands. It contends that human trafficking occurs across the globe, requiring international, regional and local responses that incorporate different actors, both state and non-state. The ten contributions within the special issue deal with some of the most common forms of human trafficking, including forced labour, sexual exploitation and child trafficking. The Introduction also outlines that there are many forms of human trafficking that are not as well-known but that, nevertheless, also require legal and policy responses. Some country good practice examples are provided. The Introduction also includes legal and policy proposals as agreed at both workshops. 

January 11, 2018 | Permalink | Comments (0)

Cunneen & Porter on Indigenous Peoples and Criminal Justice

Chris Cunneen and Amanda Jayne Porter (University of New South Wales (UNSW) - Faculty of Law and Jumbunna Indigenous House of Learning) have posted Indigenous Peoples and Criminal Justice in Australia (Deckert, A. and Sarre, R. (eds) The Palgrave Handbook of Australian and New Zealand Criminology, Crime and Justice, Palgrave Macmillan, Basingstoke, ISBN 9783319557465, pp 667-682) on SSRN. Here is the abstract:
 
This chapter contextualises crime and criminal justice in Australian colonial history. It maps the development of Aboriginal criminology in Australia and covers key themes that have disproportionately affected Indigenous peoples such as incarceration and deaths in custody. Finally, the authors reflect on research into contemporary Indigenous experiences, like Aboriginal English in the courtroom and state interventions.

January 11, 2018 | Permalink | Comments (0)

Diaz-Tello et al. on Decriminalizing Abortion

Farah Diaz-TelloMelissa Mikesell and Jill E Adams (Independent, Independent and Independent) have posted Roe's Unfinished Promise: Decriminalizing Abortion Once and for All on SSRN. Here is the abstract:
 
Roe's Unfinished Promise: Decriminalizing Abortion Once and For All is the first comprehensive paper about the criminalization of non-clinical abortion in the U.S. and efforts to eliminate threats, while increasing protections, for people who end pregnancies outside the formal healthcare system. It includes a chart listing problematic laws state by state, maps highlighting the places where people who self-induce abortion are most at risk of an unjustified arrest, excerpts from relevant statutes, and case summaries. The report concludes with recommendations for efforts to liberate non-clinical abortion from the constraints of misunderstanding and the restraints of criminalization.

January 11, 2018 | Permalink | Comments (0)

Belkin on Criminal Justice in China

Ira Belkin has posted Justice in the PRC: How the Chinese Communist Party Has Struggled with Managing Public Opinion and the Administration of Criminal Justice in the Internet Age (F. Sapio, S. Trevaskes, S. Biddulph, & E. Nesossi (Eds.), Justice: The China Experience (pp. 195-228). Cambridge: Cambridge University Press, 2017) on SSRN. Here is the abstract:
 
The influence of Chinese public opinion on individual criminal case decisions is a phenomenon that has received a great deal of attention in China and around the world. Some commentators have lauded the phenomenon as empowering the public to seek justice in Chinese courts. Others have expressed concern that following public opinion may achieve justice in an individual case but does little to improve the justice system. Even worse, some fear that appeasement of public opinion in the name of maintaining social stability is leading to a kind of mob justice where life and death is determined by the emotion of the online crowd of the moment. This chapter discusses how the Chinese Communist Party (CCP) and the Chinese government have addressed this phenomenon. We focus on a series of cases that led up an official policy that courts should follow public opinion in certain cases to preserve ‘social stability’. By focusing on this policy change and how it was implemented, this chapter questions whether such a policy promotes or undermines China’s decades-long project to establish a society under the rule of law. 

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January 11, 2018 | Permalink | Comments (0)

Wednesday, January 10, 2018

"A Few Thoughts on Collins v. Virginia"

Orin Kerr had this post on The Volokh Conspiracy while I was still recovering from a three-day snowmobile vacation. In addition to his views on Collins, the post also links to an earlier discussion of the Court's other automobile case, involving rights in a rental car. Better late than never!

January 10, 2018 | Permalink | Comments (0)

Brewster on FCPA Enforcement

Brewster rachelRachel Brewster (Duke University School of Law) has posted Enforcing the FCPA: International Resonance and Domestic Strategy (Virginia Law Review, Vol 103, No 8, 2017) on SSRN. Here is the abstract:
 
The Foreign Corrupt Practices Act (“FCPA”), which bans corporations from offering bribes to foreign government officials, was enacted during the Watergate era’s crackdown on political corruption but remained only weakly enforced for its first two decades. American industry argued that the law created an uneven playing field in global commerce, which made robust enforcement politically unpopular. This Article documents how the executive branch strategically under- enforced the FCPA, while Congress and the President pushed for an international agreement that would bind other countries to rules similar to those of the United States. The Article establishes that U.S. officials ramped up enforcement only after the United States successfully concluded the Organization for Economic Co-operation and Development (“OECD”) Anti-Bribery Convention in 1997, twenty years after the enactment of the FCPA. Afterward, U.S. officials, desiring to maintain industry support for the FCPA, prosecuted both foreign and domestic corporations, thereby minimizing the statute’s competitive costs for American companies. 

This Article argues that the OECD Convention was critical to the dramatic expansion of FCPA enforcement because it allowed American prosecutors to adopt an “international-competition neutral” enforcement strategy, investigating domestic corporations and their foreign rivals alike.

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January 10, 2018 | Permalink | Comments (0)

"Jeff Sessions Rescinds Obama-Era Enforcement Guidance: Five Observations"

Robert Mikos (Vanderbilt) has this post on his website, citing to other posts and offering his own critique. In part:

The guidance that was rescinded was critical to establishing the commercial marijuana industry that exists today. Before the first guidance (the Ogden memorandum) was issued in 2009, only a few states had explicitly authorized the commercial supply of marijuana. Up to that time, most states that had legalized (medical) marijuana expected consumers to grow the drug themselves or to have a caregiver do it (what I call the personal supply model). Even though many states thought that commercial suppliers would do a better job of meeting patient needs, they feared that large-scale commercial suppliers would be easy prey for federal law enforcement.

January 10, 2018 | Permalink | Comments (0)

Cunneen et al. on Juvenile Justice in Australia

Chris CunneenBarry Goldson and Sophie Russell (University of New South Wales (UNSW) - Faculty of Law, University of Liverpool - Department of Sociology, Social Policy and Criminology and University of New South Wales (UNSW) - School of Social Sciences) have posted Juvenile Justice, Young People and Human Rights in Australia (Current Issues in Criminal Justice, Vol 28, No 2, pp. 173-188) on SSRN. Here is the abstract:
 
This article identifies the key human rights issues that emerge for young people in juvenile justice in Australia. While there is a clear framework for respecting the human rights of children within juvenile justice, the article poses the question: To what extent does Australia actually operationalise and comply with these rights in law, policy and practice? In answering, it discusses various national and international reports, legislation, academic and other research and litigation on behalf of children. It identifies substantive and procedural human rights violations affecting young people in juvenile justice, many of which fall disproportionately on two over-represented groups: Indigenous young people, and those with mental health disorders and cognitive disability. While there are review and compliance mechanisms in place, respect for young people’s rights within the broad area of juvenile justice remains problematic.

January 10, 2018 | Permalink | Comments (0)

Tuesday, January 9, 2018

"WELCOME TO LAW ENFORCEMENT’S “DARK SIDE”: SECRET EVIDENCE, ILLEGAL SEARCHES, AND DUBIOUS TRAFFIC STOPS"

From The Intercept, via the NACDL news scan:

FEDERAL AGENTS AT the U.S. Drug Enforcement Administration speak in veiled terms about the secret DEA unit that shares intelligence from the National Security Agency and other organizations with law enforcement for use in criminal investigations. They call it the “Dark Side.”

The Special Operations Division receives raw intelligence from the NSA’s surveillance programs, including from the mass surveillance programs revealed in documents provided by whistleblower Edward Snowden. DEA agents in this unit then analyze the surveillance data and disseminate leads to federal and local police nationwide. But the information comes with a catch. Law enforcement can’t use it to secure search warrants or in any way reveal the intelligence community as the source of their leads. Instead, they must find another way to justify their searches and broader investigations.

January 9, 2018 | Permalink | Comments (0)