CrimProf Blog

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

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Thursday, March 26, 2015

Nance on Police in Schools and the School-to-Prison Pipeline

Nance jasonJason P. Nance (University of Florida Levin College of Law) has posted Students, Police, and the School-to-Prison Pipeline (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws to keep students safe, including putting more police officers in schools. Yet not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline. In the past, certain lower-level, common offenses that occurred at school, such as fighting or threats without use of a weapon, traditionally were handled only by educators, not by police officers. Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. This trend holds true even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement; (2) general levels of criminal activity and disorder that occur at the school; (3) neighborhood crime; and (4) other demographic variables. The consequences of involving students in the criminal justice system are severe, especially for students of color, and may negatively affect the trajectory of students’ lives. Therefore, lawmakers and school officials should consider alternative methods to create safer learning environments.

March 26, 2015 | Permalink | Comments (0)

Scurich on Comparing Erroneous Convictions and Acquittals

Nicholas Scurich (University of California, Irvine) has posted Criminal Justice Policy Preferences: Blackstone Ratios and the Veil of Ignorance (Stanford Law & Policy Review, Vol. 26, p. 23, 2015) on SSRN. Here is the abstract:

Erroneous convictions or erroneous acquittals are an inevitable aspect of the criminal justice system. Jurists have historically considered errors of the former type to be more egregious, while college undergraduates seem largely indifferent between the two types of error. This article reports the results of an original empirical study that elicited criminal justice error preferences from an online sample of over five hundred adult United States citizens. Consistent with previous research, participants were asked, as a matter of policy, which type of error is worse and to what extent that type of error is worse than the other. Participants’ error preferences were then elicited beneath a Rawlsian veil of ignorance. The veil of ignorance “universalizes” judgments by forcing individuals to evaluate a policy without knowledge of how it would affect him or her personally. Thus, participants were asked whether they would personally prefer to endure the consequences of an erroneous conviction vis-à-vis an erroneous acquittal. As a policy matter, a majority of participants indicated that erroneous convictions are worse than erroneous acquittals, though there was considerable variability as to how much worse. Over 25% of participants effectively switched their preference when the implications of such a policy applied to them personally. These findings have implications for the administration of substantive law and criminal justice policy, as well as policy discussions more generally.

March 26, 2015 | Permalink | Comments (0)

Huq on Agency Slack and Criminal Justice Institutions

Huq azizAziz Z. Huq (University of Chicago - Law School) has posted Agency Slack and the Design of Criminal Justice Institutions (Forthcoming in, The Routledge Handbook of Criminal Justice Ethics (J.P. Jackson & J. Jacobs, eds. 2016)) on SSRN. Here is the abstract:

This book chapter analyzes the problem of state wrongs in criminal justice institutions. The chapter first evaluates the need for institutional design solutions, as opposed to political solutions, or other responses exogenous to the structure and basic operation of criminal justice institutions. The second half of the chapter defines and explores two pivotal design choices that a democratic principal must make in creating criminal justice institutions. First, should policy responses or remedies be ex ante or ex post? And second, should they be public or privatized?

March 26, 2015 | Permalink | Comments (0)

Choi on Reunifying Fourth and Fifth Amendment Jurisprudence

Choi bryanBryan H. Choi (New York Law School) has posted For Whom the Data Tolls: A Reunified Theory of Fourth and Fifth Amendment Jurisprudence on SSRN. Here is the abstract:

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and “possessed” simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect himself.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross purposes. The privacy community has already sounded the alarm on the “third party doctrine,” which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have noted the equally potent “required records doctrine,” which allows the government to circumvent the Fifth Amendment privilege against self-incrimination when demanding evidence directly from first persons. Taken together, the two exceptions swallow the rule, allowing the government to evade both Fourth and Fifth Amendment review at every turn.

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March 26, 2015 | Permalink | Comments (0)

Wednesday, March 25, 2015

Lapp on Databasing Delinquency

Lapp kevinKevin Lapp (Loyola Law School Los Angeles) has posted Databasing Delinquency on SSRN. Here is the abstract:

For over a century, legislatures and officials have restrained the criminal justice system’s ability to collect information about youth. Databasing Delinquency explains how juveniles now find themselves indefinitely cataloged in sex offender registries, gang databases, and DNA databases. It documents the unprecedented breadth and permanence of law enforcement and court record-keeping. And it shows how schools have become mandated law enforcement informants. Moreover, services both public and private make this information available to law enforcement nationwide, employers, government agencies, colleges and the general public. 

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March 25, 2015 | Permalink | Comments (0)

Eisenberg on Criminal Infliction of Emotional Distress

Avlana Eisenberg has posted Criminal Infliction of Emotional Distress (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article identifies and critiques a trend to criminalize the infliction of emotional harm independent of any physical injury or threat. The Article defines a new category of criminal infliction of emotional distress (“CIED”) statutes, which include laws designed to combat behaviors such as harassing, stalking, and bullying. In contrast to tort liability for emotional harm, which is cabined by statutes and the common law, CIED statutes allow states to regulate and punish the infliction of emotional harm in an increasingly expansive way.

In assessing harm and devising punishment, the law has always taken nonphysical harm seriously, but traditionally it has only implicitly accounted for emotional harm; it has not made emotional harm an element of criminal liability. CIED statutes represent a break in this narrative. The Article uses these statutes as an entry point to examine the role that victim emotion does and should play in substantive criminal law, and it finds that CIED statutes may endanger free expression and equality and provide insufficient notice to defendants. These statutes thus offer a cautionary tale, illustrating problems that can arise when victim emotion plays an explicit role in criminal culpability. CIED statutes also reveal the comparative benefits of the implicit approach, which acknowledges the significance of nonphysical harm yet does not predicate criminal liability on the existence of emotional harm.


March 25, 2015 | Permalink | Comments (0)

Pardo & Patterson on Minds, Brains, and Law

Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Symposium on Minds, Brains, and Law: A Reply (Jurisprudence, 2015, Forthcoming) on SSRN. Here is the abstract:

This essay, forthcoming in a symposium issue of Jurisprudence, replies to reviews of our book, Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience (Oxford University Press, 2013), by Stephen Morse, Teneille Brown, and David Faigman. Morse and Brown are largely in agreement with many aspects of our arguments. But they each raise challenges with respect to some of the details. We first discuss the extensions, amendments, and objections they each have raised. Faigman takes a more critical stance. Accordingly, we devote the bulk of our reply to correcting several misunderstanding and misinterpretations that underlie his critique.

March 25, 2015 | Permalink | Comments (0)

Criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers, for this Monday cert grant:

March 25, 2015 | Permalink | Comments (0)

Goodmark on VAWA and Restorative Justice

Goodmark leighLeigh Goodmark (University of Maryland Francis King Carey School of Law) has posted Stalled at 20: VAWA, the Criminal Justice System, and the Possibilities of Restorative Justice on SSRN. Here is the abstract:

Since its passage in 1994, the Violence Against Women Act (VAWA) has promoted a criminal justice approach to addressing intimate partner abuse. But VAWA has done little to provide people subjected to abuse with alternative avenues for seeking justice. VAWA could and should do more. Restorative justice is one option that future versions of VAWA might explore.

March 25, 2015 | Permalink | Comments (0)

Tuesday, March 24, 2015

Mailath et al. on Punishment Fitting the Crime

George J. Mailath Volker Nocke and Lucy White (University of Pennsylvania - Department of Economics , University of Mannheim - Department of Economics and Harvard Business School - Finance Unit) have posted When and How the Punishment Must Fit the Crime on SSRN. Here is the abstract:

In repeated normal-form (simultaneous-move) games, simple penal codes (Abreu, 1986, 1988) permit an elegant characterization of the set of subgame-perfect outcomes. We show that the logic of simple penal codes fails in repeated extensive-form games. By means of examples, we identify two types of settings in which a subgame-perfect outcome may be supported only by a profile with the property that the continuation play after a deviation is tailored not only to the identity of the deviator, but also to the nature of the deviation.

March 24, 2015 | Permalink | Comments (0)

Perlin & Lynch on Risk, Security, Danger, the Constitution, and the Clinician's Dilemma

Michael L. Perlin and Alison J. Lynch (New York Law School and Disability Rights New York) have posted 'Toiling in the Danger and in the Morals of Despair': Risk, Security, Danger, the Constitution, and the Clinician's Dilemma (Stanford Law & Policy Review, Vol. 26, 2015, Forthcoming) on SSRN. Here is the abstract:

Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted by reason of insanity, and, in some jurisdictions, individuals transferred from correctional facilities.

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March 24, 2015 | Permalink | Comments (0)

Boyne shawn marieShawn Marie Boyne (Indiana University Robert H. McKinney School of Law) has posted The Prosecution of Serious Economic Crimes in Germany (The German Prosecution Service: Guardians of the Law? (Springer), Forthcoming) on SSRN. Here is the abstract:

Comparative law scholars have long held Germany's criminal justice system in high regard due to the constraints on prosecutorial discretion. In this chapter, I examine the prosecution of serious economic crimes and argue that economic crimes prosecutors possess wide latitude in how they choose to investigate and prosecute economic crimes. Despite that latitude, resource allocations made on the Laender level, in particular the decision to create specialized economic crimes department strongly shape the prosecutorial practice and impact prosecution rates. 

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March 24, 2015 | Permalink | Comments (0)

Monday, March 23, 2015

Johnson on Knowledge, Access, and Brady

Thea Johnson has posted What You Should Have Known Can Hurt You: Knowledge, Access, and Brady in the Balance (Georgetown Journal of Legal Ethics, Vol. 28, No. 1, 2015) on SSRN. Here is the abstract:

In the iconic case of Brady v. Maryland, the Supreme Court required prosecutors to turn over exculpatory information to the defendant. Brady and its progeny carefully balance our desire for a robust adversarial system against a fundamental promise of fairness to the criminal defendant. An emerging rule threatens that balance. The rule, which has been adopted by a majority of circuit courts, releases the government from its obligation to turn over exculpatory information where the defendant “knew or should have known” the essential facts of the exculpatory information. In adopting the "knew or should have known" rule, courts are wrongly valuing a defendant’s knowledge of exculpatory information over his access to that information. In this Article I identify this problematic distinction between knowledge and access, and expose critical problems that the distinction creates.

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March 23, 2015 | Permalink | Comments (0)

Smart on Medical Marijuana Impacts

Rosanna Smart (University of California, Los Angeles (UCLA) - Department of Economics) has posted The Kids Aren't Alright, But Older Adults Are: How Medical Marijuana Market Growth Impacts Adult and Adolescent Substance-Related Outcomes on SSRN. Here is the abstract:

Public opinion has grown more favorable to legalizing the sale and use of cannabis; many states now have "medical marijuana" laws (MMLs), and a few have legalized commercial production and sale for non-medical purposes. Prior research examining the effects of MML adoption has largely found reassuring evidence on the consequences of such policies -- no impact on adolescent cannabis use, and large decreases in crime rates, motor vehicle fatalities, suicides, and prescription opioid overdoses for adults. However, medical marijuana regimes vary greatly, and simple comparisons of states with such laws to states without them miss that variability.

Reanalysis using a more sensitive measure of MML penetration (per-capita adult medical marijuana registration rates) confirms that growth in medical marijuana market size lowers alcohol and opioid-related poisoning deaths for older adults, and lessens traffic fatalities in accidents involving older drivers. However, larger medical marijuana markets lead to increased cannabis consumption by adolescents, accompanied by increases in traffic fatalities and alcohol poisoning mortality for this age group.

March 23, 2015 | Permalink | Comments (0)

Miller on Pre-Assertion of Miranda Rights

Miller colinColin Miller (University of South Carolina School of Law) has posted Cloning Miranda: Why Medical Miranda Supports the Pre-Assertion of Criminal Miranda Rights on SSRN. Here is the abstract:

Courts across the country have concluded that suspects cannot assert their Miranda rights before being subjected to custodial interrogation. This reluctance to credit pre-assertions can be traced to dicta from McNeil v. Wisconsin, in which the Supreme Court noted that “[m]ost rights must be asserted when the government seeks to take the action they protect against.” This article challenges this notion by drawing an analogy between criminal suspects and patients. In 1990, Congress passed the Patient Self-Determination Act (“PSDA”), the so-called medical Miranda, which requires health care providers who accept money from Medicaid or Medicare to inform patients of their rights regarding advance directives and the refusal of medical treatment prior to admission. 

The goal of the PSDA is to inform patients of their health care rights prior to admission so that they can assert those rights before pressed into an unfamiliar environment in which they face possible isolation and coercion. This article contends that the same principles that led to the passage of the PSDA support the ability of suspects to be able to pre-assert their Miranda rights when custodial interrogation is “imminent.” It also sets up a framework for determining whether a suspect properly pre-asserted his Miranda rights.

March 23, 2015 | Permalink | Comments (0)

Spottswood on Ordering Proof

Spottswood_markMark Spottswood (Florida State University College of Law) has posted Ordering Proof: Beyond Adversarial and Inquisitorial Trial Structures on SSRN. Here is the abstract:

In typical trials, judges and juries will find it easier to remember the proof that occurs early in the process than what comes later. Moreover, once a fact-finder starts to form a working hypothesis to explain the facts of the case, they will be biased towards interpreting new facts in a way that confirms that theory, rather than undermines it. These two psychological mechanisms will often combine to create a strong “primacy effect,” in which the party who goes first gains a subtle but significant advantage over the opposing party. In this article, I propose a new method of ordering proof, designed to minimize the inaccuracy or unfairness that can arise due to primacy effects. A neutral third person, rather than the parties, would have the responsibility to prepare an opening “statement of the dispute,” which would take the place of partisan opening statements. In lieu of separate, partisan cases-in-chief, this neutral third party would also decide the order in which witnesses testify, balancing considerations of clarity, efficiency, and neutrality between the parties. This proposed ordering would, however, be subject to variations by agreement among the parties. In a jury trial, the presiding judge could perform this function, while in non-jury trials, a magistrate judge or an appointed master would do so.

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March 23, 2015 | Permalink | Comments (0)

Bellin on The Right to Remain Armed

Bellin jeffreyJeffrey Bellin (William & Mary Law School) has posted The Right to Remain Armed (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could radically transform American policing.

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March 23, 2015 | Permalink | Comments (0)

Sunday, March 22, 2015

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 1,741 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 
2 485 California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State 
Marina FisherNathaniel MillerLindsay Walter andJeffrey Selbin 
University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law 
Date posted to database: 4 Feb 2015 
3 358 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 [4th last week]
4 197 The Economics of Corruption in Sports: The Special Case of Doping 
Eugen Dimant and Christian Deutscher 
University of Paderborn - Center for International Economics and Bielefeld University 
Date posted to database: 21 Jan 2015 [new to top ten]
5 184 Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005 
Atif R. Mian and Amir Sufi 
Princeton University - Department of Economics and University of Chicago - Booth School of Business 
Date posted to database: 8 Feb 2015 
6 176 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 
7 147 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Date posted to database: 25 Jan 2015 [9th last week]
8 127 Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law 
David B. Wexler 
University of Puerto Rico - School of Law 
Date posted to database: 15 Feb 2015 [new to top ten]
9 125 Back to the Future: The Influence of Criminal History on Risk Assessment
Melissa Hamilton 
University of Houston Law Center 
Date posted to database: 27 Jan 2015 [new to top ten]
10 148 A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 2 Mar 2015 

March 22, 2015 | Permalink | Comments (0)

Saturday, March 21, 2015

Blitz et al. on Regulating Drones

Marc Jonathan Blitz James L Grimsley Stephen E. Henderson and Joseph T. Thai (Oklahoma City University , University of Oklahoma - Norman Campus , University of Oklahoma College of Law and University of Oklahoma - College of Law) has posted Regulating Drones Under the First and Fourth Amendments (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative to understand the constitutional restraints on public flight and constitutional protections afforded private flight. 

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March 21, 2015 | Permalink | Comments (0)

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:


  • City and County of San Francisco v. Sheehan: (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody; and (2) whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within. (Breyer, J., recused.)

March 21, 2015 | Permalink | Comments (0)