CrimProf Blog

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

Saturday, December 10, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 3,547 Do White Police Officers Unfairly Target Black Suspects?
John R. Lott and Carlisle E. Moody
Crime Prevention Research Center and College of William and Mary - Department of Economics
Date posted to database: 16 Nov 2016 
2 198 Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders
Shawn Fields
University of San Diego School of Law
Date posted to database: 11 Oct 2016 [3rd last week]
3 167 Forensics and Fallibility: Comparing the Views of Lawyers and Judges
Brandon L. Garrett and Gregory Mitchell
University of Virginia School of Law and University of Virginia School of Law
Date posted to database: 7 Nov 2016 [5th last week]
4 160 Rethinking Prosecutors’ Conflicts of Interest
Bruce A. Green and Rebecca Roiphe
Fordham University School of Law and New York Law School
Date posted to database: 9 Oct 2016 [6th last week]
5 106 The Law (?) of the Lincoln Assassination
Martin Lederman
Georgetown University Law Center
Date posted to database: 20 Oct 2016 [8th last week]
6 90 The Constitution of Police Violence
Alice Ristroph
Seton Hall University - School of Law
Date posted to database: 6 Oct 2016 [10th last week]
7 76 From Policing to Parole: Reconfiguring American Criminal Justice
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 2 Nov 2016 [new to top ten]
8 72 The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing
Julian A. Cook
University of Georgia Law School
Date posted to database: 5 Nov 2016 [new to top ten]
9 70 Constitutional Liberty and the Progression of Punishment
Robert J. Smith and Zoe Robinson
University of North Carolina School of Law and DePaul University College of Law
Date posted to database: 28 Oct 2016 [new to top ten]
10 65 Autonomy and Agency in American Criminal Process
David Alan Sklansky
Stanford University
Date posted to database: 7 Oct 2016 [new to top ten]

 

December 10, 2016 | Permalink | Comments (0)

Yesterday's criminal law/procedure cert grant

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

  • Honeycutt v. United StatesWhether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.

December 10, 2016 | Permalink | Comments (0)

Friday, December 9, 2016

Harris on Riley and Third-Party Search Doctrine

Harris davidDavid A. Harris (University of Pittsburgh - School of Law) have posted Riley v. California and the Beginning of the End for the Third-Party Search Doctrine (University of Pennsylvania Journal of Constitutional Law, Vol. 18, p. 895, 2016) on SSRN. Here is the abstract:

In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination of the third-party search doctrine, which originated in the U.S. v. Miller and Smith v. Maryland cases of decades ago. Those cases said that information handed over to a third party -- banking information and documents processed through a bank, in Miller, and a telephone number dialed and processed through a telephone company, in Smith -- loses any Fourth Amendment protection. While not overruling these cases, Riley throws their rationale -- unrealistic when decided, but hopelessly outdated now, in the digital age -- open to question, and shows the way toward the end of the third-party search doctrine.

December 9, 2016 | Permalink | Comments (0)

Kuersten on Neuroimaging

Andreas Kuersten has posted When a Picture is Not Worth a Thousand Words (The George Washington Law Review Arguendo, vol. 84, pp. 178-91 (2016)) on SSRN. Here is the abstract:

It is frequently put forth that the admission of neuroimaging evidence at criminal trials introduces the substantial risk of these sophisticated and visual presentations unduly influencing factfinders. As such, this Essay analyzes how brain image evidence might have this effect. Particularly, it focuses on the situation in which such evidence is proffered in support of mens rea and affirmative defense determinations, such as insanity. The Essay assesses the actual evidentiary value of neuroimaging evidence in these evaluations. It then presents relevant studies supporting and opposing the contention that this evidence unduly influences factfinders beyond its true explanatory power. Finally, given the current state of research into this issue, this Essay puts forth a prospective manner in which brain images might inordinately influence finders of fact and a path for further study.

December 9, 2016 | Permalink | Comments (0)

Malone & Waibel on Extradition

Trina Malone and Michael Waibel (University of Cambridge and University of Cambridge - Faculty of Law) have posted Constitutional Protections Afforded to Individuals Subject to an Extradition Request (Forthcoming in Max Planck Encyclopedia of Comparative Constitutional Law (Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum eds.)) on SSRN. Here is the abstract:

Extradition concerns the official surrender by a state ('the requested state') of an alleged offender or convicted criminal to another state ('the requesting state') for the purpose of prosecuting or punishing that individual in relation to crimes within the jurisdiction of the requesting state. States are under no obligation under general international law to extradite alleged offenders to another country. Obligations to extradite, subject to important exceptions, exist only pursuant to hundreds of extradition treaties currently in force. Whether a state can extradite an individual is ordinarily a matter for national constitutional law in the first instance.

Continue reading

December 9, 2016 | Permalink | Comments (0)

Thursday, December 8, 2016

Resnik et al. on Solitary Confinement

Judith Resnik, Anna VanCleave, Kristen Bell, Olevia Boykin, Corey Guilmette, Tashiana Hudson, Diana Li, Joseph Meyers, Hava Mirell, Skylar Albertson, Alison Gifford, Jessica Purcell and Bonnie Posick (Yale University - Law School, Yale University - Law School, Yale University, Law School, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students and Yale University - Law School) have posted Aiming to Reduce Time-in-Cell: Reports from Correctional Systems on the Numbers of Prisoners in Restricted Housing and on the Potential of Policy Changes to Bring About Reforms on SSRN. Here is the abstract:

A new report, jointly authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Program at Yale Law School, reflects a profound change in the national discussion about the use of what correctional officials call “restrictive housing” and what is popularly known as “solitary confinement.” Aiming to Reducing Time-In-Cell? provides the only current, comprehensive data on the use of restricted housing, in which individuals are held in their cells for 22 hours or more each day, and for 15 continuous days or more at a time. The Report also documents efforts across the country to reduce the number of people in restricted housing and to reform the conditions in which isolated prisoners are held in order to improve safety for prisoners, staff, and communities at large.

Continue reading

December 8, 2016 | Permalink | Comments (0)

Epps on Adversarial Asymmetry in the Criminal Process

Epps danielDaniel Epps (Washington University in St. Louis) has posted Adversarial Asymmetry in the Criminal Process (New York University Law Review, Vol. 91, No. 4, p. 762, 2016) on SSRN. Here is the abstract:

It is a common lament that prosecutors in our criminal justice system are too adversarial. This Article argues that in a deeper sense, prosecutors may not be adversarial enough. The issue — which I call adversarial asymmetry — is that, as political actors, prosecutors have no inherent desire to seek maximal punishment, at least in any consistent way. While commentators tend to see this as a good thing, adversarial asymmetry helps explain a range of seemingly disparate pathologies in the criminal process. A number of problems — including the coerciveness of plea bargaining; pretextual prosecution; discriminatory charging practices; the proliferation of overly broad criminal statutes; the difficulty in deterring prosecutorial misconduct; and use of the grand jury as political cover for unpopular decisions — would not exist, or at least could be more easily solved, in a world where prosecutors were more single mindedly focused on maximizing victory in the criminal process.

Continue reading

December 8, 2016 | Permalink | Comments (0)

Wednesday, December 7, 2016

Huq on The Predicates of Military Detention

Huq azizAziz Z. Huq (University of Chicago - Law School) has posted The Predicates of Military Detention at Guantánamo: The Role of Individual Acts and Affiliations (Journal of Empirical Legal Studies, Forthcoming) on SSRN. Here is the abstract:

The military detentions at Guantánamo have provoked intense controversy. Judges, legislators, and military officials disagree sharply about the scope of detention authority. To date little is known about the granular determinants of decisions to transfer detainees from custody at the Cuban base or to prolong their detention. This Article exploits a novel data-set of classified documents disclosed by the Wikileaks organization to explore two questions now dividing officials, legislators, and judges. First, what are the detainee actions and affiliations that predict longer detentions? Second, what is the relationship between a determination that a detainee committed certain acts and the further inference of affiliation with a proscribed terrorist organization? These inquiries isolate both continuities and divergences from the law ‘on the books.’

December 7, 2016 | Permalink | Comments (0)

Federle on Juvenile Dispositions and the Right to Redemption

Federle_katherineKatherine Hunt Federle (Ohio State University Moritz College of Law) has posted The Right to Redemption: Juvenile Dispositions and Sentences (Louisiana Law Review, Vol. 77, No. 47, 2016) on SSRN. Here is the abstract:

The punishment of juveniles remains a troubling yet under-theorized aspect of the criminal and juvenile justice systems. These systems emphasize accountability, victim restoration, and retribution as reasons to punish underage offenders. In fact, American juvenile systems will remove the most egregious offenders to criminal courts for trial and sentencing. The United States Supreme Court in recent years, however, has issued a number of opinions emphasizing that the Eighth Amendment requires that the punishment of children must account for their lesser moral culpability, developmental immaturity, and potential for rehabilitation. State courts also have begun to reconsider their own dispositional and sentencing schemes in light of the Supreme Court’s jurisprudence.

The reality of ‘juveniles’ immaturity militates in favor of a right to redemption. This Article begins by discussing the available data about the number and types of dispositions juveniles receive, waivers to criminal court, and the criminal sentences imposed.

Continue reading

December 7, 2016 | Permalink | Comments (0)

Tuesday, December 6, 2016

Chavis on Stop and Frisk

Chavis kamiKami Chavis (Wake Forest University Law School) has posted The Legacy of Stop and Frisk: Addressing the Vestiges of a Violent Police Culture (Wake Forest Law Review, Vol. 49, 2014) on SSRN. Here is the abstract:

In the introduction to his famous essay, Violence and the Word, Robert Cover explained that law and legal interpretive acts exact violence upon individuals. He noted that "[a] judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur." This statement is especially true in the context of police-citizen encounters. The law that governs police has been consistently interpreted to justify violence against the very individuals they are charged with protecting. For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed. Unfortunately, this policy symbolizes Cover's explanation of how laws and legal interpretation can justify violence. Although police had previously engaged in these stop-and frisk tactics, the Supreme Court's landmark 1968 decision in Terry v. Ohio4 gave this practice the imprimatur of an acceptable law enforcement tool to investigate and prevent violent crime.5 In Terry, the Court authorized a narrow window of police behavior to stop and frisk individuals based on reasonable suspicion of criminal activity and reasonable suspicion of armed danger.

Continue reading

December 6, 2016 | Permalink | Comments (0)

Scott-Hayward & Williamson on Post-Custody Supervision in Ireland

Christine S. Scott-Hayward and David Williamson (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management and Trinity College (Dublin)) have posted Post-Custody Supervision in Ireland: From Tickets-of-Leave to Parole? (Irish Probation Journal 13: 102-118 (October 2016)) on SSRN. Here is the abstract:

This paper examines the history and development of post-custody supervision in Ireland. It begins by reviewing the Crofton System and the ticket-of-leave, generally agreed to be the precursor to modern parole. Next it briefly discusses the emergence of aftercare as a focus of the Probation Service. It then describes the formalisation of four types of conditional post-custody supervision: temporary release from prison, part-suspended sentences, post-release supervision for people convicted of sexual offences, and community return. Finally, it briefly explores the practice and implications of the increasing number of people supervised post-custody in recent years and asks whether, in effect, Ireland now has an ad hoc system of parole.

December 6, 2016 | Permalink | Comments (0)

Delgado & Stefancic on Police, Policing, and Mass Incarceration

Richard Delgado and Jean Stefancic (University of Alabama - School of Law and University of Alabama - School of Law) have posted Critical Perspectives on Police, Policing, and Mass Incarceration (104 Geo. L. J. 1531 (2016)) on SSRN. Here is the abstract:

Shows that aggressive policing is only one of a number of measures that society uses to control minority groups with whom it is displeased for some reason, and that failing to see how the authorities deploy the different measures separately, serially, or in coordinated fashion is a serious mistake. Sketches a new form of policing that is respectful of minority residents and values, and provides a framework for reducing excessive incarceration and mitigating some of the cruelties associated with it.

December 6, 2016 | Permalink | Comments (0)

Monday, December 5, 2016

Chavis on Independent Prosecutors for Police

Kami Chavis (Wake Forest University Law School) has posted Increasing Police Accountability: Restoring Trust and Legitimacy through the Appointment of Independent Prosecutors (Washington University Journal of Law and Policy, Vol. 49, 2015) on SSRN. Here is the abstract:

Immediately following the shooting death of Michael Brown in Ferguson, Missouri and the death of Eric Gardner at the hands of a New York Police Department officer, criminal justice advocates called for greater measures to hold police officers accountable for their actions. For many observers, the failure to secure criminal indictments against the officers involved in each of these deaths of unarmed citizens suggested various shortcomings in the criminal justice system. In the wake of these deaths and others, President Obama signed an order establishing the President's Task Force on 21st Century Policing, a body of scholars, practitioners, and policymakers that would examine ways to improve distrust between communities and police. Yet in the weeks following the release of the Task Force's report, a North Charleston police officer fatally shot Walter Scott in the back and protests erupted in Baltimore, Maryland after Freddie Gray died of injuries sustained while in police custody.' These deaths have reignited many debates about myriad reform proposals that experts have discussed throughout history.

Continue reading

December 5, 2016 | Permalink | Comments (0)

Yockey on Accountability in Corporate Crime

Joseph W. Yockey (University of Iowa College of Law) has posted Beyond Yates: From Engagement to Accountability in Corporate Crime (New York University Journal of Law and Business, Vol. 12, No. 2, 2016) on SSRN. Here is the abstract:

In 2015, U.S. Deputy Attorney General Sally Yates released a memorandum (the “Yates memo”) that makes several revisions to the Department of Justice’s Principles of Federal Prosecution of Business Organizations. Most significantly, the Yates memo states that corporations facing criminal scrutiny are now eligible for cooperation credit only if they provide prosecutors with all relevant information about the individual agents involved in crimes under investigation. This Essay assesses the Yates memo to situate it within the current social context of corporate criminal prosecutions. What I find is that the Yates memo represents a missed opportunity. Its guidelines amount to political talking points that are unlikely to produce meaningful change. As a practical matter, the guidelines are virtually impossible to execute, at least in ways that differ from the present enforcement regime. As a normative matter, they also risk causing significant and socially undesirable harms to firms and their employees. This analysis suggests that proponents of corporate criminal law reform should look elsewhere for progress. My recommendation is to shift the conversation from enforcement to more meaningful civic engagement. I conclude with a proposal to drive collaboration among federal officials, corporate leaders, educators, religious figures, lay groups, and other social actors who profess an interest in finding and fixing the social roots of corporate wrongdoing.

December 5, 2016 | Permalink | Comments (0)

Mannheimer on Federalism and the Death Penalty

MannheimerMichael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted The Coming Federalism Battle in the War Over the Death Penalty (Arkansas Law Review, Vol. 69, 2017 Forthcoming) on SSRN. Here is the abstract:

From the founding of the Republic until 2002, it appears that only a single person was ever sentenced to death by the federal government for criminal conduct occurring in a State that did not authorize the death penalty for the same conduct. However, since 2002, eleven people have been sentenced to death by the federal government for criminal conduct occurring in non-death penalty States. And in the last twenty-three years, the federal government has sought the death penalty dozens of times in non-death penalty States. Such cases virtually always involve offenses historically thought of as being best dealt with at the state level. While some federal capital defendants in non-death penalty States have raised constitutional objections in their cases based on federalism principles, these objections have uniformly been rejected at the district court level. However, no federal courts of appeals has yet addressed these objections.

Continue reading

December 5, 2016 | Permalink | Comments (0)

Sunday, December 4, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 313 Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper
Craig Forcese and Kent Roach
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law
Date posted to database: 8 Oct 2016 
2 145 'Revenge Porn' Reform: A View from the Front Lines
Mary Anne Franks
University of Miami School of Law
Date posted to database: 19 Oct 2016
3 136 Extreme Prison Sentences: Legal and Normative Consequences
Melissa Hamilton
University of Houston Law Center
Date posted to database: 7 Nov 2016 [5th last week]
4 127 Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?
Lawrence M. Solan and Tammy A Gales
Brooklyn Law School and Hofstra University
Date posted to database: 13 Oct 2016 [3rd last week]
5 108 A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers
Reid K. Weisbord
Rutgers Law School
Date posted to database: 20 Oct 2016 [4th last week]
6 99 How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence
Deborah W. Denno
Fordham University School of Law
Date posted to database: 7 Nov 2016 [7th last week]
7 93 Criminal Law, Neuroscience and Voluntary Acts
Dennis Patterson
European University Institute
Date posted to database: 25 Oct 2016 [6th last week]
8 89 Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 18 Oct 2016 
9 71 From Policing to Parole: Reconfiguring American Criminal Justice
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 2 Nov 2016 [new to top ten]
10 67 Regulating Gun Rentals
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 30 Sep 2016

 

December 4, 2016 | Permalink | Comments (0)

Saturday, December 3, 2016

Yesterday's criminal law/procedure cert grant

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

  • County of Los Angeles v. Mendez: (1) Whether the U.S. Court of Appeals for the 9th Circuit's “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff's Fourth Amendment rights, and has been rejected by other courts of appeals; and (2) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.

December 3, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 3,414 Do White Police Officers Unfairly Target Black Suspects?
John R. Lott and Carlisle E. Moody
Crime Prevention Research Center and College of William and Mary - Department of Economics
Date posted to database: 16 Nov 2016 [new to top ten]
2 207 The Judicial Presumption of Police Expertise
Anna Lvovsky
Columbia University - Law School
Date posted to database: 30 Sep 2016 [1st last week]
3 193 Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders
Shawn Fields
University of San Diego School of Law
Date posted to database: 11 Oct 2016 [2nd last week]
4 178 The Original Meaning of 'Cruel'
John F. Stinneford
University of Florida - Levin College of Law
Date posted to database: 1 Oct 2016 
5 167 Forensics and Fallibility: Comparing the Views of Lawyers and Judges
Brandon L. Garrett and Gregory Mitchell
University of Virginia School of Law and University of Virginia School of Law
Date posted to database: 7 Nov 2016 
6 160 Rethinking Prosecutors’ Conflicts of Interest
Bruce A. Green and Rebecca Roiphe
Fordham University School of Law and New York Law School
Date posted to database: 9 Oct 2016 
7 134 Victim Impact Statements and Expressive Punishment in the Age of Social Media
Erin L. Sheley
University of Calgary Faculty of Law
Date posted to database: 22 Sep 2016 [8th last week]
8 103 The Law (?) of the Lincoln Assassination
Martin Lederman
Georgetown University Law Center
Date posted to database: 20 Oct 2016 [10th last week]
9 99 The Consequences of Disparate Policing: Evaluating Stop-and Frisk as a Modality of Urban Policing
Aziz Z. Huq
University of Chicago - Law School
Date posted to database: 30 Sep 2016 [new to top ten]
10 85 The Constitution of Police Violence
Alice Ristroph
Seton Hall University - School of Law
Date posted to database: 6 Oct 2016 [new to top ten]

 

December 3, 2016 | Permalink | Comments (0)

Friday, December 2, 2016

Chavis on Body-Mounted Police Cameras

Kami Chavis (Wake Forest University Law School) has posted Body-Mounted Police Cameras: A Primer on Police Accountability vs. Privacy (Howard Law Journal, Vol. 58, No. 3, 2015) on SSRN. Here is the abstract:

Immediately following the shooting death of Michael Brown in Ferguson, Missouri and the death of Eric Gardner at the hands of a New York Police Department officer, criminal justice advocates called for greater measures to hold police officers accountable for their actions. For many observers, the failure to secure criminal indictments against the officers involved in each of these deaths of unarmed citizens suggested various shortcomings in the criminal justice system. In the wake of these deaths and others, President Obama signed an order establishing the President's Task Force on 21st Century Policing, a body of scholars, practitioners, and policymakers that would examine ways to improve distrust between communities and police. Yet in the weeks following the release of the Task Force's report, a North Charleston police officer fatally shot Walter Scott in the back and protests erupted in Baltimore, Maryland after Freddie Gray died of injuries sustained while in police custody.' These deaths have reignited many debates about myriad reform proposals that experts have discussed throughout history.

Continue reading

December 2, 2016 | Permalink | Comments (0)

Edwards on Organization of Serious Crimes

Adam Edwards (Cardiff University - School of Social Sciences) has posted Actors, Scripts, Scenes and Scenarios: Key Trends in Policy and Research on the Organisation of Serious Crimes (Oñati Socio-Legal Series, Vol. 6, No. 4, 2016) on SSRN. Here is the abstract:

The problem of ‘transnational organised crime’ has become a prominent issue in international affairs over the past two decades. Official constructions of the problem identify threats to public safety resulting from the greater mobility of people and goods across national borders and the exploitation of this mobility by ‘organised crime groups’ (OCGs). In turn, this has led to the generation of a new genre of policy-oriented learning, the ‘threat assessment’, which informs and legitimises the cross-border co-ordination of preventive interventions against such groups. This article considers arguments over the conceptual and methodological value of these threat assessments and their central preoccupation with criminal actors. An alternative approach is advanced, concerned with the ‘scripts’ involved in the commissioning of serious crimes and their facilitating conditions or ‘scenes’. This approach can also identify future ‘scenarios’, providing less certain but more satisficing grounds for anticipating and governing the organisation of serious crimes.

December 2, 2016 | Permalink | Comments (0)