CrimProf Blog

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

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Saturday, April 18, 2015

Next week's criminal law/procedure arguments

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


  • Johnson v. U.S.: Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.


  • McFadden v. U.S.: Whether, to convict a defendant of distribution of a controlled substance analogue – a substance with a chemical structure that is “substantially similar" to a schedule I or II drug and has a “substantially similar” effect on the user (or is believed or represented by the defendant to have such a similar effect) – the government must prove that the defendant knew that the substance constituted a controlled substance analogue, as held by the Second, Seventh, and Eighth Circuits, but rejected by the Fourth and Fifth Circuits.

April 18, 2015 | Permalink | Comments (0)

Friday, April 17, 2015

Katz on Judicial Patriarchy and Domestic Violence

Elizabeth Katz (Harvard University - Department of History) has posted Judicial Patriarchy and Domestic Violence: A Challenge to the Conventional Family Privacy Narrative (William & Mary Journal of Women and the Law, Vol. 21, No. 2, Winter 2015) on SSRN. Here is the abstract:

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators — sentencing men to fines, prison, and even the whipping post — for failing to conform to appropriate husbandly behavior, while rewarding wives who exhibited the traditional female traits of vulnerability and dependence. Based on the same gendered reasoning, judges trivialized or even ridiculed victims of “husband beating.” Men who sought protection against physically abusive wives were deemed unmanly and undeserving of the legal remedies afforded to women.

Although judges routinely addressed wife beating in divorce and criminal cases, they balked when women pursued a third type of legal action: interspousal tort suits.

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April 17, 2015 | Permalink | Comments (0)

McLeod on Death Row

Marah Stith McLeod has posted Does the Death Penalty Require Death Row? The Harm of Legislative Silence (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:

This Article exposes two flawed assumptions about death row in leading scholarship and judicial opinions. The first flawed assumption is that death row is an inevitable consequence of a death sentence. The second flawed assumption is that prison administrators should be entrusted with the decision whether to retain death row. 

The Article will show that death row cannot be justified on prison security grounds, but, contrary to the claims of some scholars, it may be justified for other punishment purposes. Using extensive state-by-state research, the Article shows that in most jurisdictions, harsh death row conditions result not from statutory commands, but from discretionary administrative policies.

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April 17, 2015 | Permalink | Comments (0)

Denno on An Empirical Study of Neuroscience Evidence

Denno deborahDeborah W. Denno (Fordham University School of Law) has posted The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases (Boston College Law Review, Vol. 56, Pages 493-551 (2015)) on SSRN. Here is the abstract:

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992-2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience evidence as a double-edged sword — one that will either get defendants off the hook altogether or unfairly brand them as posing a future danger to society.

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April 17, 2015 | Permalink | Comments (0)

Thursday, April 16, 2015

Siegel & Eldred on The Continuing Duty to Former Clients

David M. Siegel and Tigran Eldred (New England Law | Boston and New England Law | Boston) have posted The Continuing Duty in Reality: A Preliminary Empirical Look on SSRN. Here is the abstract:

The continuing duty of criminal defense counsel to their former clients, even when those former clients bring post-conviction actions alleging ineffective assistance of counsel, has existed as a national practice standard in capital cases since at least 1987. In addition to its inclusion in the ABA’s Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases since 1989, duties to former clients exist in all state ethics rules (as well as the ABA Model Rules of Professional Conduct). The duty has been further operationalized in non-capital litigation (as well as capital litigation) through a 2010 ABA formal ethics opinion concerning disclosures by trial counsel to prosecutors in ineffective assistance of counsel (IAC) claims, case law and scholarship. There are no empirical data concerning its operation in practice, and these are difficult to obtain because much of the continuing duty operates through informal practices. This paper describes the results of a brief survey intended to develop these data.

April 16, 2015 | Permalink | Comments (1)

Covey on Jailhouse Snitch Testimony

Covey russellRussell D. Covey (Georgia State University College of Law) has posted Abolishing Jailhouse Snitch Testimony (Wake Forest Law Review, Vol. 49, 2014) on SSRN. Here is the abstract:

Jailhouse snitch testimony is inherently unreliable. Snitches have powerful incentives to invent incriminating lies about other inmates in often well-founded hopes that such testimony will provide them with material benefits, including in many cases substantial reduction of criminal charges against them or of the time they are required to serve. At the same time, false snitch testimony is difficult, if not altogether impossible, for criminal defendants to impeach. Because such testimony usually pits the word of two individuals against one another, both of whose credibility is suspect, jurors have little ability to accurately or effectively assess or weigh the evidence. Moreover, research suggests that jurors frequently succumb to fundamental attribution error and unwittingly fail to properly discount the reliability of evidence supplied by biased and self-interested witnesses. 

Although a few jurisdictions have placed modest limits on jailhouse snitch testimony, no jurisdiction has banned jailhouse snitch testimony outright, relying instead on the traditional tools of trial practice – cross-examination and post-conviction review – to screen out unreliable evidence and safeguard defendants’ rights.

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April 16, 2015 | Permalink | Comments (0)

Berry on Ending the Death Lottery

Berry williamWilliam W. Berry III (University of Mississippi School of Law) has posted Ending the Death Lottery (Ohio State Law Journal, Vol. 76, No. 1, 2015) on SSRN. Here is the abstract:

When the Supreme Court reinstated the death penalty in 1976, it did so under the assumption that certain safeguards would remedy the arbitrariness of capital sentencing. Comparative proportionality review, in which the state supreme court would review jury sentences to ensure a modicum of consistency, was a central part of many states’ attempts to comply with the Eighth Amendment. In Ohio, however, this safeguard is illusory; the state supreme court has never reversed a capital case on proportionality grounds, despite reviewing almost three hundred cases. 

This Article explores this unfortunate phenomenon. Using a quantitative methodology, this Article assesses the degree to which Ohio capital cases sentenced after the adoption of life-without-parole (between 1996-2011) are comparatively proportionate. 

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April 16, 2015 | Permalink | Comments (0)

Wednesday, April 15, 2015

Meads on Reasonable Suspicion and Mistake of Law

Mallory Meads has posted The War Against Ourselves: Heien v. North Carolina, the War on Drugs, and Police Militarization (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:

This Note takes a closer look at the consequences of allowing police mistakes of law to give rise to reasonable suspicion in the background of the War on Drugs and police militarization.

April 15, 2015 | Permalink | Comments (0)

Luban on The Crime of Crimes

Luban davidDavid J. Luban (Georgetown University Law Center) has posted Arendt on the Crime of Crimes (Ratio Juris, Forthcoming) on SSRN. Here is the abstract:

Genocide - the intentional destruction of groups “as such” – is sometimes called the “crime of crimes,” but explaining what makes it the crime of crimes is no easy task. Why are groups important over and above the individuals who make them up? Hannah Arendt tried to explain the uniqueness of genocide, but the claim of this paper is that she failed. The claim is simple, but the reasons cut deep.

Genocide, in Arendt’s view, “is an attack upon human diversity as such.” So far so good; but it is hard to square with Arendt’s highly individualistic conception of human diversity, which in her systematic philosophy refers to the multiplicity of unique human individuals, never of groups. Indeed, Arendt is famously skeptical of views that subordinate individuality to group identity. That makes her theorizing an instructive test case of whether individualism can yield an account of why groups matter.

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April 15, 2015 | Permalink | Comments (0)

Leong & Morando on Communication and Cybercrime

Nancy Leong and Joanne Morando (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Communication in Cyberspace (94 North Carolina Law Review, 2015, Forthcoming) on SSRN. Here is the abstract:

This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language.

This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way people use the Internet to develop a definition of “communication” that reflects those realities. That is, we aim to provide effective tools by which prosecutors can address wrongful conduct without punishing innocuous behavior or chilling speech. We conclude by proposing a model statute that appropriately defines “communication.” We recommend that state legislatures adopt the statute or modify existing laws to match it in pertinent part and demonstrate how the statute would apply in a range of situations.

April 15, 2015 | Permalink | Comments (0)

Tsukerman on Bitcoin Regulation

Misha Tsukerman has posted The Block Is Hot: A Survey of the State of Bitcoin Regulation and Suggestions for the Future (Berkeley Technology Law Journal, Vol. 30, July 2015, Forthcoming) on SSRN. Here is the abstract:

Bitcoin and Blockchain technology pose a number of novel regulatory and legal issues. This note examines how government agencies and courts have attempted to keep society safe for — and sometimes from — Bitcoin and Blockchain users (with consumers and investors on one end and drug dealers, terrorists, and violent criminals on the other). This note concludes with policy suggestions for changes to disclosure requirements and tax classifications to facilitate the broader adoption of Bitcoin as a currency by the general public.

April 15, 2015 | Permalink | Comments (0)

Tuesday, April 14, 2015

Gray on The ABA Standards on Third Party Records

Gray davidDavid C. Gray (University of Maryland Francis King Carey School of Law) has posted The ABA Standards for Criminal Justice: Law Enforcement Access to Third Party Records: Critical Perspectives from a Technology-Centered Approach (Oklahoma Law Review, Vol. 66, page 919, 2014) on SSRN. Here is the abstract:

Long a topic of interest only to Fourth Amendment groupies, the third-party doctrine is now a central concern for citizens of the United States and the world. Much of the impetus for this global awakening is a series of leaked documents proving what many privacy scholars already suspected or knew: the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Administration, their foreign counterparts, and a host of domestic agents are engaged in programs of expansive and invasive surveillance that many have credibly compared to the dark prophesies of George Orwell’s 1984. Among the more disturbing features of this burgeoning surveillance state is the increasing access that governments have to information about us and our activities that we entrust to third parties such as our telephone companies, financial institutions, internet service providers, social networks, and commercial partners. Recognizing the privacy implications of governmental access to information gathered or held by third-parties, the American Bar Association recently issued model standards governing law enforcement access to third party records. This invited essay analyzes these standards and ultimately concludes both that they adopt a strategy likely to fail and also promote a regulatory framework that poses serious threats to core interests in individual liberty and functioning democracy.

April 14, 2015 | Permalink | Comments (0)

Westen on The Retroactive Effect of Ameliorative Repeals

Westen peterPeter K. Westen (University of Michigan Law School) has posted Lex Mitior: Converse of Ex Post Facto and Window into Criminal Desert (New Criminal Law Review, Vol. 18, No. 2, pp. 167-213, 2015) on SSRN. Here is the abstract:

In 2009 New Mexico prospectively repealed the death penalty. Three years later in 2012, New Mexico prosecuted a defendant for a capital murder that was committed before repeal, and it sought to subject him to the death penalty. If state prosecutors had prevailed with the jury, they would have secured the very kind of sentence – death – that state officials had been lauded in Europe for outlawing three years earlier. A prosecution like New Mexico’s could never occur in Europe, and not merely because Europe has long outlawed the death penalty. It could never occur because, in contrast to the law of most American jurisdictions, European states embrace a doctrine known as “lex mitior” (“the milder law”). The latter doctrine is a counterpart to the ex post facto prohibition. Both doctrines both concern retroactivity in criminal law, but they are the converse of one another. The ex post facto doctrine prohibits retroactivity by prohibiting the state from prosecuting persons under criminal statutes that either retroactively criminalize conduct that was hitherto lawful or retroactively increase penalties for conduct that, while unlawful all along, was hitherto punishable less severely. In contrast, lex mitior mandates retroactivity by mandating that criminal defendants receive the retroactive benefits of repealing statutes that either decriminalize conduct altogether or reduce punishments for it. After surveying laws in the United States regarding the retroactive effect of ameliorative repeals, the author addresses whether punishing offenders under harsher laws that obtained at the time of their conduct can serve consequentialist and/or retributive purposes of punishment. He concludes that, although doing can be morally justified under limited circumstances, typically it is not – a conclusion that bears upon lex mitior’s proper scope, whether it consists of a binding norm (as it is among European nations), a nonconstitutional norm (as it presently is within the United States), or, when legislative intent is uncertain, a function of the rule of lenity.

April 14, 2015 | Permalink | Comments (0)

Patihis et al. on Unconscious Repressed Memory

Lawrence Patihis Scott O. Lilienfeld Lavina Y. Ho and Elizabeth F. Loftus (University of California, Irvine , Emory University - Emory College of Arts and Sciences , Pennsylvania State University - Department of Behaviorial Sciences & Education and University of California, Irvine - Department of Psychology and Social Behavior) have posted Unconscious Repressed Memory Is Scientifically Questionable (Psychological Science, Vol. 25, No. 10, 2014) on SSRN. Here is the abstract:

Brewin and Andrews’s (2014) Commentary on our article (Patihis, Ho, Tingen, Lilienfeld, & Loftus, 2014) raises several thoughtful points with which we largely agree, but presents several criticisms that we do not believe withstand careful scrutiny. We respond briefly.

April 14, 2015 | Permalink | Comments (0)

Kopel on Hate Crime Laws

David B. Kopel has posted Hate Crime Laws: Dangerous and Divisive on SSRN. Here is the abstract:

The great promise of American law is Equal Protection: everyone is equal before the law. Colorado’s Ethnic Intimidation statute runs contrary to this promise, by creating preferred classes of victims. Proposed “hate crimes” laws would make the problem even worse. Different groups should not be contending for special status in our criminal law. Identity politics strikes at the heart of the American motto of e pluribus unum, and encourages people to think of themselves as members of particular groups -- rather than as, most of all, Americans first. Laws based on identity politics lead to skewed prioritization of law enforcement resources, and impinge on values of free speech, which includes the freedom to hold and express the most odious ideas. Until Colorado’s statute is repealed, it should be improved by stronger penalties for the creation of hoaxes.

April 14, 2015 | Permalink | Comments (0)

Issacharoff & Wirshba on Third Party Doctrine

Lucas Issacharoff and Kyle Wirshba have posted Restoring Reason to the Third Party Doctrine (Minnesota Law Review, Vol. 100, 2016, Forthcoming) on SSRN. Here is the abstract:

This Article takes as its starting point the recent turmoil over the continued vitality of the Fourth Amendment’s third party doctrine. The doctrine has long held that the government’s examination of information in the hands of a third party — whether a bank, a telephone company, or simply a friend — cannot constitute a search under the Fourth Amendment. This bright-line rule has been cast into considerable doubt by two recent Supreme Court cases, United States v. Jones and Riley v. California, which evince the Court’s concern over continued application of analog doctrines in a world of ever-expanding digital information and surveillance capacity. This Article argues that attempts to address the puzzle of the third party doctrine have been overly focused on refining what does and does not constitute a search, an endeavor that is unlikely to produce a durable solution. Instead, this Article focuses on reevaluating where third party searches fit into the Fourth Amendment framework. In doing so we examine the interplay between the Fourth Amendment’s two clauses, and the areas where the Court has held that the Reasonableness Clause applies while the Warrant Clause does not. A focus on the warrant exceptions reveals that third party searches fit comfortably within this category. Accordingly, we argue that third party searches should be acknowledged as searches — and thus fall within the ambit of the Fourth Amendment — but be evaluated under the Reasonableness Clause rather than the stricter Warrant Clause. Finally, we turn to Terry v. Ohio for a model of how courts should structure this reasonableness inquiry.

April 14, 2015 | Permalink | Comments (1)

Monday, April 13, 2015

Campbell on The Governance of Sex Work

Angela Campbell (McGill University - Faculty of Law) has posted Sex Work's Governance: Stuff and Nuisance (Feminist Legal Studies, 2015) on SSRN. Here is the abstract:

Sex work’s governance throughout the Commonwealth has historically been animated by the objective of rendering the sale of sex, and those who engage in such transactions, invisible. To achieve this end, lawmakers have characterized public, viewable sex work as a nuisance meriting criminalization. Although prohibition results in unequivocal perils for sex workers, governance strategies in this domain remain centred on criminalization. A new law in Canada, Bill C-36: the Protection of Communities and Exploited Persons Act, exemplifies this point. While Bill C-36 purports to shift criminal law’s focus from sex workers to their clients and profiteers, it continues to expose sex workers who work in public view to criminal prosecution. It thereby preserves sex work’s characterization as a nuisance, offensive to a community’s senses and deserving of proscription. Although Bill C-36 proclaims to promote dignity and equality rights, it prioritizes the interests of communities over those of sex workers. In the result, this new law will revoke sex workers’ social and political citizenship and thwart their personal security.

April 13, 2015 | Permalink | Comments (0)

Whitman on the Presumption of Innocence or the Presumption of Mercy

Whitman jamesJames Q. Whitman (Yale Law School) has posted Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

American criminal law has a deep commitment to the presumption of innocence. Yet at the same time, American criminal justice is, by international standards, extraordinarily harsh. This Article addresses this troubling state of affairs. The Article contrasts the American approach with the approach of the inquisitorial tradition of continental Europe. Inquisitorial justice, it argues, has a less far-reaching presumption of innocence than American justice does. Yet if continental justice puts less weight on the rights of the innocent it puts more on the rights of the guilty: While its presumption of innocence is comparatively weaker, it has what can be called a strong presumption of mercy. The continental approach produces forms of criminal procedure that can shock Americans. Continental trial in particular often seems to American observers to operate on a disturbing de facto presumption of guilt; the most recent example is the high-profile trial of Amanda Knox. Yet the continental approach has contributed to the making of a significantly more humane criminal justice system than ours. Moreover, the continental approach is better suited to cope with the rise of new forms of scientific investigation. The Article pleads for a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty. It closes with an Appendix assessing the Knox case.

April 13, 2015 | Permalink | Comments (0)

Sunday, April 12, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 940 Rethinking Presumed Knowledge of the Law in the Regulatory Age 
Michael Anthony Cottone 
Date posted to database: 24 Mar 2015 [2nd last week]
2 391 Police Body-Worn Cameras 
Alexandra Claudia Mateescu,Alex Rosenblat and danahboyd 
Data & Society Research Institute, Data & Society Research Institute and Data & Society Research Institute 
Date posted to database: 26 Feb 2015 [4th last week]
3 210 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 [5th last week]
4 169 Copwatching 
Jocelyn Simonson 
New York University School of Law 
Date posted to database: 1 Mar 2015 [7th last week]
5 162 Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law 
Marc Edelman 
City University of New York - Baruch College, Zicklin School of Business 
Date posted to database: 1 Apr 2015 [new to top ten]
6 161 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 
7 157 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 [9th last week]
8 145 Using the 'Smart Return' to Reduce Tax Evasion 
Joseph BankmanClifford Nass and Joel B. Slemrod 
Stanford Law School, Stanford University and University of Michigan, Stephen M. Ross School of Business 
Date posted to database: 16 Mar 2015 [new to top ten]
9 139 Find It and Tax It: From TIEAs to IGAs 
Reuven S. Avi-Yonah and Gil Savir 
University of Michigan Law School and University of Michigan Law School 
Date posted to database: 21 Feb 2015 [10th last week]
10 121 Universal Jurisdiction Is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction 
Maximo Langer 
University of California, Los Angeles (UCLA) - School of Law 
Date posted to database: 20 Feb 2015 [new to top ten]

April 12, 2015 | Permalink | Comments (0)

Saturday, April 11, 2015

Edelman on Gambling Laws and Daily Fantasy Sports

Marc Edelman (City University of New York - Baruch College, Zicklin School of Business) has posted Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law (University of Illinois Law Review, 2016 Forthcoming) on SSRN. Here is the abstract:

Over the past two years, there has been a monumental shift in how U.S. professional sports leagues have perceived “daily fantasy sports.” Back in March 2013, the chief executive of Major League Baseball Advanced Media, Robert Bowman, told the New York Times that he perceived “daily fantasy sports” as “akin to a flip of the coin, which is the definition of gambling.” However, today, Major League Baseball promotes a play-for-cash “daily fantasy sports” contest on its website. Similarly, the National Basketball Association once purported to oppose all forms of fantasy sports gaming; meanwhile it now owns an equity stake in FanDuel Inc. – the marketplace leader in “daily fantasy sports.” 

Today’s more favorable relationship between professional sports leagues and the “daily fantasy sports” industry has led many in the media to speculate that “[l]egal issues, although a concern, are relatively minor.” Nevertheless, such generalizations about the legal status of “daily fantasy sports” are grossly oversimplified. Indeed, there is no blanket immunity under federal or state law for “daily fantasy sports.” Rather, in all likelihood, the legal status of “daily fantasy sports” varies based on the nature of any specific contest’s game rules and where that particular contest operates. 

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April 11, 2015 | Permalink | Comments (0)