CrimProf Blog

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

Tuesday, September 25, 2018

Millemann et al. on Criminal Clinic Design

Michael A. MillemannRebecca Bowman-Rivas and Elizabeth Smith (University of Maryland Francis King Carey School of Law, University of Maryland Francis King Carey School of Law and Independent) have posted Digging Them Out Alive (Clinical Law Review (2019 Forthcoming)) on SSRN. Here is the abstract:
 
From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury that they—the jury—had the ultimate right to determine the law. Our clinic helped to implement Unger by providing a range of legal services and related social services to many of these prisoners.

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September 25, 2018 | Permalink | Comments (0)

Gatta on Prosecuting Public Corruption

Gian Luigi Gatta (University of Milan) has posted The Prosecution of Public Corruption in the United States: Political and Judicial Strategies - And, in the Background, an Expression of the Legality Principle Crisis (Revista Portuguesa De Ciência Criminal, 27, No. 2, May- August 2017) on SSRN. Here is the abstract:

Through the exam of the jurisprudence of the U.S.Supreme Court and of the federal criminal courts, the Author identifies two different trends of the political and judicial strategy in the field of repression of public corruption in the U.S.

The first trend (as in McCormick v. U.S. and in McDonnell v. U.S.) aims to avoid criminal liability in campaign cases; the second trend (as in Evans v. U.S., in Skilling v. U.S. and in Ocasio v. U.S.), instead, tends to affirm criminal liability in the other cases.

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September 25, 2018 | Permalink | Comments (0)

Minhee & Calandrillo on The Opioid Crisis and the War on Drugs

Christine Minhee and Steve Calandrillo (University of Washington, School of Law, Students and University of Washington - School of Law) have posted The Cure for America's Opioid Crisis? End the War on Drugs (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
 
The War on Drugs. What began as a battle waged on morals has in fact created multiple public health crises, and no recent phenomenon illustrates this in more macabre detail than America’s opioid disaster. Last year alone amassed a higher death toll than the totality of American military casualties in the Vietnam, Iraq, and Afghanistan wars combined. With this wave of mortalities came an accompanying tidal crash of parens patriae lawsuits filed by states, counties, and cities on the theory that jurisdictions are entitled to recompense for the costs of addiction ostensibly created by Big Pharma. To those attuned to the failures of the Iron Law of Prohibition, this litigation-fueled blame game functions merely as a Band-Aid over a deeply infected wound. This Article synthesizes empirical economic impact data to paint a clearer picture of the role that drug prohibition has played in the devastation of American communities, exposes parens patriae litigation as a misguided attempt at retribution rather than deterrence, and calls for the legal and political decriminalization of opiates. We reveal that America’s fear of decriminalization has at its root the “chemical hook” fallacy—a holdover from Nancy Reagan-era drug policy that has been debunked by far less wealthy countries like Switzerland and Portugal, whose economies have already benefited from discarding the War on Drugs as an irrational and expensive approach to public health. We argue that the legal and political acceptance of addiction as a public health issue—not the view that addiction is a moral failure to scourge—is the only rational, fiscally responsible option left to a country that badly needs both a prophylactic against future waves of heavy opioid casualties, and restored faith in its own criminal justice system.

September 25, 2018 | Permalink | Comments (0)

Monday, September 24, 2018

Gin & Imwinkelried on Nonjunk Science

Joanna Gin and Edward J. Imwinkelried (University of California, Davis and University of California, Davis - School of Law) have posted Gas Chromatography-Mass Spectrometer (GC/MS): In Scientific Evidence, Even 'Gold Standard' Techniques Have Limitations on SSRN. Here is the abstract:

There is an emerging view that there are two types of forensic science: “junk” science such as forensic odontology (bitemark analysis) and “real” science such as nuclear DNA typing. The 2009 National Research Council report contributed to the emergence of this view. On the one hand, the report was sharply critical of techniques such as bitemark analysis. On the other hand, the report had high praise for techniques such as the DNA typing identification technique and gas chromatography/mass spectrometry (GC/MS) as an elemental analysis methodology. The courts are becoming increasingly skeptical about “junk” science techniques. In some instances, they are excluding testimony based on such techniques. In other cases, they are severely restricting the wording of the opinions based on such techniques that experts may testify to. However, in the case of “real” science, the courts tend to assume reliability. In particular, the courts have come to view nuclear DNA typing and GC/MS analysis as the “gold standards” of forensic science. The courts routinely admit testimony about nuclear DNA typing, and one court has gone to the length of declaring that GC/MS analysis is “nearly infallible.”

However, the 2016 President’s Council of Advisors on Science and Technology report raised questions about one “gold standard,” DNA analysis.

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September 24, 2018 | Permalink | Comments (0)

Siegel & Eldred on The Continuing Duty to Defense Clients

David M. Siegel and Tigran Eldred (New England Law | Boston and New England Law | Boston) has posted The Established Continuing Duty (The Professional Lawyer, Vol. 25, Issue 1 (2018)) on SSRN. Here is the abstract:
 
This brief article traces the development of a new standard of practice for lawyers handling criminal cases: an obligation to assist their former clients, through affirmatively disclosing to subsequent counsel and protecting from disclosure to prosecutors, any information that may assist the former client in attacking his prior conviction – including attacking the work of his prior lawyer. This continuing duty, most recently and expansively recognized in the American Bar Association’s Standards for the Defense Function (4th Ed. 2016), reflects increased understanding of the importance of ensuring effective assistance of counsel, acknowledged in recent state and federal court decisions, opinions of the American Bar Association Committee on Ethics and Professional Responsibility and US Department of Justice policies. These obligations will impact prosecutors and judges, as well as defense counsel, because much of their impact will be in post-conviction proceedings. As there is yet no published commentary for the 4th Edition of the ABA’s Standards for the Defense Function, this article concisely presents the sources, background and contours of this new duty.

September 24, 2018 | Permalink | Comments (0)

Avey on Military Police

Jonathan Avey (Osgoode Hall Faculty of Law) has posted Police Independence vs Military Discipline: Democratic Policing in the Canadian Forces (Manitoba Law Journal, Vol. 41, No. 4, 2018) on SSRN. Here is the abstract:

Over the last 25 years, there has been a gradual acceptance within the Canadian Forces that Military Police need to be able to function independently when exercising their duties as police officers. This acceptance has led to organizational and administrative changes to provide such independence to MP members; however, despite these changes, there remains the risk that MP independence may be eroded in the course of criminal or disciplinary investigations. This article presents two recent matters to illustrate that the independence currently afforded to MP investigators is still very much in doubt. The first is the recent decision of the Court Martial Court of Appeal in R v Wellwood, which brought the dichotomy of MP independence and the need to maintain discipline and a rigid obedience to orders from a superior squarely before the court. The second is the recent controversy surrounding the MP investigation into allegations against Lieutenant Colonel Mason Stalker, which ultimately resulted in a stay of proceedings being directed on all charges and Stalker launching a lawsuit against the Department of National Defence and the Canadian Forces.

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September 24, 2018 | Permalink | Comments (0)

Ferzan on Personal Identity in the Criminal Law

Ferzan kimberley kesslerKimberly Kessler Ferzan (University of Virginia, School of Law) has posted Patty Hearst Reconsidered: Personal Identity in the Criminal Law (Ohio State Journal of Criminal Law, Vol. 15, 2018) on SSRN. Here is the abstract:
 
In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.

September 24, 2018 | Permalink | Comments (0)

Sisk et al. on Attorney-Client Confidentiality in Inmate Correspondence

Gregory C. SiskMichelle KingJoy Nissen BeitzelBridget Duffusand Katherine Koehler (University of St. Thomas School of Law (Minnesota), Independent, Independent, Independent and Independent) have posted Reading the Prisoner’s Letter: Attorney-Client Confidentiality in Inmate Correspondence (Journal of Criminal Law and Criminology (2019 Forthcoming)) on SSRN. Here is the abstract:

No one in our society has a more compelling need to communicate in complete confidence with a lawyer than a prisoner, when challenging a conviction as wrongful or prison conditions as unlawful. No one has a greater need to be able to engage in the uninhibited discussion of highly personal matters, tragic events, and official misconduct. A prisoner’s constitutional rights to freedom of speech, access to the courts, due process, and assistance of counsel are placed in unique jeopardy when a correctional system insists on prying into the substantive contents of legal mail.

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September 24, 2018 | Permalink | Comments (0)

Sunday, September 23, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Very Broad Laws

University of Connecticut - School of Law
193
2.

Brief Amicus Curiae of Gail Heriot and Peter N. Kirsanow, Members of the United States Commission on Civil Rights, in Support of Petitioner in Randy Joe Metcalf V. United States (Cert Stage)

University of San Diego School of Law and Independent
169
3.

Tinder Lies

Hofstra University - Maurice A. Deane School of Law
169
4.

Why Is It Wrong To Punish Thought?

University of Michigan Law School
157
5.

The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

The University of North Dakota
145
6.

Sanctions for Acts or Sanctions for Actors

University of Virginia School of Law
101
7.

America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis

Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences
99
8.

Lies, Deceit, and Bullshit in Law

Brooklyn Law School
99
9.

Online Child Sexual Exploitation: Towards an Optimal International Response

Bournemouth University - School of Computing
99
10.

'The Soul is the Prison of the Body' – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation

Universität Hamburg
64

September 23, 2018 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct

United States Attorney's Office - Eastern District of Tennessee
346
2.

'The Strings in the Books Ain't Pulled and Persuaded': How the Use of Improper Statistics and Unverified Data Corrupts the Judicial Process in Sex Offender Cases

New York Law School and New York Law School
195
3.

Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review

Yale Law School
167
4.

The Power of Prosecutors

William & Mary Law School
132
5.

Artificial Intelligence and Role-Reversible Judgment

University of Connecticut - School of Law and University of Oklahoma - College of Law
125
6.

Judging Risk

Duke University School of Law and University of Virginia School of Law
122
7.

The Confluence of Factors Doctrine: A Holistic Approach to Wrongful Convictions

Northeastern University - School of Law
120
8.

Prosecuting in the Shadow of the Jury

New York University School of Law
119
9.

Artificial Intelligence and Policing: Hints in the Carpenter Decision

University of California, Davis - School of Law
101
10.

Character Flaws

University of Colorado Law School
83

September 23, 2018 | Permalink | Comments (0)

Friday, September 21, 2018

Graham on Evidence

Michael H. Graham (University of Miami - School of Law) has posted three articles on SSRN. The first is Autopsy Reports Under the Confrontation Clause: 'Significant Confusion' Indeed!!! (Vol. 53 Crim.L.Bull. 1041 (2017)). Here is the abstract:
 
The admissibility of an autopsy report against the criminal defendant at trial either substantively or as reasonably relied upon under Fed.R.Evid. 703 has resulted in a myriad of approaches being employed to apply the confrontation clause analyses as developed by the United States Supreme Court in Crawford to Williams/Clark. This myriad of approaches exemplifies the “significant confusion” Justice Kagan dissenting in Williams accurately predicted. Unfortunately, it isn’t the 4 to 1 to 4 opinion in Williams alone that has led to the substantial disagreement amongst courts in applying the confrontation clause to autopsy reports as many of the approaches taken by lower courts represent overall unhappiness with the clear mandate of Melendez-Diaz/Bullcoming requiring the testimony of an expert possessing sufficient personal knowledge whenever an autopsy report is employed against the accused in a criminal trial.

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September 21, 2018 | Permalink | Comments (0)

Gold on Pretrial Detention

Gold russellRussell M. Gold (Wake Forest University - School of Law) has posted Jail as Injunction (Georgetown Law Journal, Vol. 107, 2019) on SSRN. Here is the abstract:

Half a million people sit in jail every day in America who have not been convicted of a crime but stand merely accused. Detention can cost defendants their jobs, housing, or even custody of their children; it takes a toll on their families and communities too. Courts simply ignore that serious harm when deciding whether a defendant should lose her liberty because of a mere accusation of wrongdoing. By contrast, unlike the government in criminal cases that can so often obtain the relief that it seeks before trial—incarcerating the defendant—a civil plaintiff faces quite a challenge to get the relief that she seeks before judgment through a preliminary injunction. To do so, a plaintiff must demonstrate irreparable injury, and the court will afford such relief only after balancing the harms that granting or denying would inflict on each side. This disparity between criminal pretrial detention and civil preliminary injunctions is both troubling and enlightening. It is troubling that the law affords more protection to the property interests of civil defendants than the liberty interests of criminal defendants who are purportedly presumed innocent.

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September 21, 2018 | Permalink | Comments (0)

Thursday, September 20, 2018

Gifford on Voluntariness and Juvenile Confessions

Ben Gifford has posted Defining 'Special Care' (Journal of Criminal Law and Criminology (2019 Forthcoming)) on SSRN. Here is the abstract:

For the better part of the last century, the Supreme Court has held that courts must evaluate the voluntariness of juvenile confessions with “special care.” This special care requirement cautions courts against judging juveniles “by the more exacting standards of maturity,” or comparing a juvenile suspect “with an adult in full possession of his senses and knowledgeable of the consequences of his admissions.” It also instructs courts to ensure that a juvenile’s “admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”

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September 20, 2018 | Permalink | Comments (0)

McAlinden & Naylor on Hybrid Justice for Victims of Institutional Child Abuse

Anne-Marie McAlinden and Bronwyn Naylor (Queen's University Belfast - School of Law and RMIT University - Graduate School of Business and Law) have posted Reframing Public Inquiries as ‘Procedural Justice’ for Victims of Institutional Child Abuse: Towards a Hybrid Model of Justice ((2016) Sydney Law Review, 38(3), 277-308) on SSRN. Here is the abstract:
 
As the number of high profile cases of institutional child abuse mounts internationally, and the demands of victims for justice are heard, State responses have ranged from prosecution, apology, and compensation schemes, to truth commissions or public inquiries. Drawing on the examples of Australia and Northern Ireland as two jurisdictions with a recent and ongoing history of statutory inquiries into institutional child abuse, this article utilises the restorative justice paradigm to critically evaluate the strengths and limitations of the inquiry framework in providing ‘justice’ for victims. The article critically explores the normative and pragmatic implications of a hybrid model as a more effective route to procedural justice. It suggests that an appropriately designed restorative pathway may enhance the legitimacy and utility of the public inquiry model for victims chiefly by improving offender accountability and ‘voice’ for victims. The article concludes by offering some thoughts on the broader implications for other jurisdictions in responding to large-scale historical abuses and seeking to come to terms with the legacy of institutional child abuse.

September 20, 2018 | Permalink | Comments (0)

Esoimeme on Assets Tracing and Recovery

Ehi Esoimeme (University of Wales System - Cardiff Law School) has posted Institutionalising the War Against Corruption: New Approaches to Assets Tracing and Recovery on SSRN. Here is the abstract:

PURPOSE – The United Nations Secretary-General Antonio Guterres recently revealed that the flow of illegal funds, money-laundering and tax evasion, cost Africa fifty billion dollars every year. The Stolen Asset Recovery Initiative (Star) in Washington estimates up to forty billion dollars is lost each year to developing countries through corruption and only five billion dollars was returned in the 15 years till 2011. Most is never found. These revelations call for an entirely new approach/direction to be taken for the identification and recovery of criminal assets. The approach should be one that can curtail the flow of illegal funds, money-laundering and tax evasion. This paper critically analyses the existing framework on assets tracing and recovery in Nigeria. It will thereafter discuss the measures adopted by developed countries which Nigeria can use to effectively trace illicit assets.

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September 20, 2018 | Permalink | Comments (0)

Corrected post regarding law students and recent grads interested in prisoners' rights

Sharon Dolovich has sent a corrected release, while follows the jump. 

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September 20, 2018 | Permalink | Comments (0)

Wednesday, September 19, 2018

Law students and recent grads interested in prisoners' rights

Sharon Dolovich provides information of interest, which appears after the jump.

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September 19, 2018 | Permalink | Comments (0)

Ingram on Pinkerton and the MPC

Andrew Ingram (The University of Alabama) has posted Pinkerton Short-Circuits the Model Penal Code (Villanova Law Review, Forthcoming) on SSRN. Here is the abstract:

I show that the Pinkerton rule in conspiracy law is doctrinally and morally flawed. Unlike past critics of the rule, I propose a statutory fix that preserves and reforms it rather than abolishing it entirely. As I will show, this accommodates authors like Neil Katyal who have defended the rule as an important crime fighting tool while also fixing most of the traditional problems with it identified by critics like Wayne LaFave.

Pinkerton is a vicarious liability rule that makes conspirators criminally responsible for the foreseeable crimes of their coconspirators committed in furtherance of the conspiracy. It has two big problems: (1) Doctrinally, it breaks the logic of the many state criminal codes that are based on the Model Penal Code. (2) Ethically, it infringes the culpability constraint on the criminal law by imposing excessive punishments on defendants who did not even consciously suspect that their coconspirators would commit additional crimes that were not the object of the conspiracy.

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September 19, 2018 | Permalink | Comments (0)

Slobogin on Defending Risk-Based Sentencing

Slobogin christopherChristopher Slobogin (Vanderbilt University - Law School) has posted A Defense of Modern Risk-Based Sentencing on SSRN. Here is the abstract:
 
In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles—the fit, validity and fairness principles—that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy. Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.

September 19, 2018 | Permalink | Comments (0)

Sheley on Corporate Mens Rea

Erin L. Sheley (University of Oklahoma - College of Law) has posted Tort Answers to the Problem of Corporate Criminal Mens Rea (North Carolina Law Review, Vol. 97, 2019) on SSRN. Here is the abstract:
 
The respondeat superior (vicarious liability) standard by which courts hold corporations liable for the crimes of their employees has been widely criticized as being overly inclusive insofar as it punishes fault-less entities. Less acknowledged is that, due to its requirement that the employee have intended in part to benefit the corporation, the standard is also under inclusive in cases of sexual violence facilitated by a corporate entity. This article argues that, to solve these problems within the criminal law, we should learn from their parallel development in the sphere of tort law, from which respondeat superior was derived in the first place. No comprehensive effort has yet been made to examine how courts have, in tort respondeat superior, addressed the problems of over- and under-inclusiveness that emerge in that realm. In light of the lessons revealed in the tort case law, I argue that criminal respondeat superior should apply only where the government can show 1.) an omission by the corporation to take reasonable steps to prevent a crime; 2.) that the substantial risk of such a crime was objectively foreseeable to a reasonable person undertaking the corporation’s enterprise and 3.) that such a crime occurred, regardless of whether or not any individual employee had the intent to benefit the corporation.

September 19, 2018 | Permalink | Comments (0)