CrimProf Blog

Anderson on Privacy and Communication Technology

José F. Anderson (University of Baltimore - School of Law) has posted Big Brother or Little Brother? Surrendering Seizure Privacy for the Benefits of Communication Technology (Mississippi Law Journal, Vol. 81, No. 5, 2012) on SSRN. Here is the abstract:

Over two centuries have passed since Benjamin Franklin quipped that we should defend privacy over security if people wanted either privacy or security. Although his axiom did not become a rule of law in its original form, its principles found voice in the Fourth and Fifth Amendments of the Constitution's Bill of Rights. To a lesser extent, provisions against the quartering of troops in private homes found in the Third Amendment also support the idea that what a government can require you to do, or who you must have behind the doors of your home, is an area of grave importance for privacy purposes. By our behavior as a nation, have we indicated a rejection of the liberty Franklin was writing about in our modern times? In no area has the rapid rise of technology affected our lives more than in the area of communication through computers and other devices, like so called "smart telephones."

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Metze on Certainty, Innocence, and the High Cost of Death and Immorality

Patrick Metze (Texas Tech University School of Law) has posted Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality (6 Charleston L. Rev. 333 (Winter 2012)) on SSRN. Here is the abstract:

This article discusses the morality of the death penalty in regards to Troy Davis, Lawrence Brewer, and Timothy McVeigh.

Goodman on English Reform of Character Evidence Rules

Christine Chambers Goodman (Pepperdine University School of Law) has posted The Gate(way)s of Hell and Pathways to Purgatory: Eradicating Common Law Protections in the Newly Sculpted Character Evidence Rules of the United Kingdom’s 2003 Criminal Justice Act (University of Miami Law Review, Vol. 66, 2011) on SSRN. Here is the abstract:

Character evidence has long been a subject of hearty debate. It is common sense to seek information about a person's past behavior and about others' impressions of a person about whom we are trying to make a decision. Jurors in criminal cases feel the same way, and in close cases, common sense tells them to consider the defendant's prior behavior, and the opinions and impressions of those who know the defendant outside of court. 

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Larcombe on Subjective Belief in Rape Law

Wendy Larcombe (Melbourne Law School) has posted  Worsnop v The Queen: Subjective Belief in Consent Prevails (Again) in Victoria's Rape Law (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2012) on SSRN. Here is the abstract:

The 2010 decision of the Victorian Court of Appeal in Worsnop v The Queen provides yet another example of rape law reform not achieving its intended effects. The Court held that a jury direction on the mental element of rape, introduced by the Crimes Amendment (Rape) Act 2007 (Vic), had not altered the law in the ways imagined by the Act’s drafters and supporters. Specifically, Worsnop determined that a jury cannot convict for rape if they find there is a reasonable possibility that the accused held an honest belief in consent (however unreasonable or mistaken). On this point, the Court found that both the Bill’s Explanatory Memorandum and the Victorian Criminal Charge Book were incorrect. This note argues that further statutory reform will now be required to ensure that the ‘fault element’ for rape in Victoria is brought into line with the communicative model of sexual relations enshrined in other sections of the Crimes Act 1958 (Vic).]

Bowman on Post-Booker Federal Sentencing

Frank O. Bowman III (University of Missouri School of Law) has posted Nothing is Not Enough: Fix the Absurd Post-Booker Federal Sentencing System (Federal Sentencing Reporter, Vol. 24, No. 5, 2012) on SSRN. Here is the abstract:

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

First, the post-Booker advisory system is conceptually indefensible. It retains virtually every feature excoriated by critics of the original sentencing guidelines. Its extreme ‘advisoriness,’ while partially ameliorating some problems with the original guidelines, reintroduces the very concerns about unreviewable judicial arbitrariness that spawned the structured sentencing movement in the first place.

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Carroll on the Resistance Defense

Jenny E. Carroll (Seton Hall University School of Law) has posted The Resistance Defense (64 Alabama L. Rev. ___ , forthcoming 2012) on SSRN. Here is the abstract:

This article explores a previously ignored set of defendants — those who choose to rely on a defense of resistance. From Warren Jeffs, the polygamist recently convicted of child rape in Texas, to John Brown, the fiery abolitionist who led a raid on the federal armory at Harpers Ferry in the hopes of triggering an armed insurrection, these defendants waived their procedural rights and transformed their criminal trials into a commentary on the deficiencies of the law and the system that supports it. Though their belief systems varied, they appear throughout history in moments of social or political crisis and challenge the capacity of the law to encompass their story. 

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Alexander on Causing the Conditions of One's Defense

Larry Alexander (University of San Diego School of Law) has posted Causing the Conditions of One's Defense: A Theoretical Non-Problem (Criminal Law and Philosophy (Forthcoming)) on SSRN. Here is the abstract:

My contribution to this symposium is short and negative: There are no theoretical problems that attach to one’s causing the conditions that permit him to claim a defense to some otherwise criminal act. If one assesses the culpability of an actor at each of the various times he acts in a course of conduct, then it is obvious that he can be nonculpable at T2 but culpable at T1, and that a nonculpable act at T2 has no bearing on whether an actor was culpable at T1 when he caused the circumstances that are exculpatory with respect to his act (or conduct) at T2. Moreover, as I interpret the Model Penal Code, it gets matters close to right on this point.

Stancil on Warrantless Searches

William Stancil (University of Minnesota - Twin Cities - School of Law) has posted How Warrantless Search Cases Are Really All the Same (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment jurisprudence is an exercise in absurdity. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts aren't able to come up with consistent rules. In order to address the problem, this paper proposes a new way of thinking about warrantless searches. It ignores the debate over substantive Fourth Amendment law, and sidesteps the body of scholarly work that compares the "first principles" underlying different search regimes. Instead, it describes all searches as discrete events with common elements. Every search has a "subject" -- the object or space which has come under surveillance -- and a "method" -- the means used to reveal the subject. As a result, every search also has a universal, two-part conceptual structure. Much of the confusion over the Fourth Amendment occurs because judges ignore these fundamental features when writing search rules.

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Farber on Youth and Constitutional Protections

Hillary B. Farber (University of Massachusetts School of Law) has posted J.D.B. v. North Carolina: Ushering in a New 'Age' of Custody Analysis Under Miranda (Brooklyn Journal of Law and Policy, Vol. 20, No. 1, p. 117, 2011) on SSRN. Here is the abstract:

Over the past six years, the United States Supreme Court has carved out a distinct jurisprudential approach to youth. In 2005, the Court abolished the death penalty for juveniles in Roper v. Simmons. Then the Court ruled that juveniles could no longer be sentenced to life without the possibility of parole for non-homicide offenses in Graham v. Florida. One year after Graham, the Court handed down J.D.B. v. North Carolina, completing what could be considered a trilogy of cases that forge a new approach to youth status in our justice system. 

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Mikos on States' Keeping Secrets from the Feds

Robert A. Mikos (Vanderbilt Law School) has posted Can the States Keep Secrets from the Federal Government? (University of Pennsylvania Law Review, Vol. 161, Forthcoming) on SSRN. Here is the abstract:

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information from the states.

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Vars on Sexual Dangerousness

Fredrick E. Vars (University of Alabama - School of Law) has posted Delineating Sexual Dangerousness (Houston Law Review, Vol. 50, Forthcoming) on SSRN. Here is the abstract:

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This article closes it. 

The due process balancing test used to evaluate standards of proof provides the framework. This article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution. 

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Waltman on Challenging Pornographers with Prostitution Laws

Max Waltman (Stockholm University--Political Science) has posted The Ideological Obstacle: Challenging Pornographers with Prostitution Laws (Midwest Political Science Association Conference, Chicago IL, April 11-15, 2012) on SSRN. Here is the abstract:

Prostitution is a social practice where money is paid for sex. Social science research and other evidence suggest that the sex in pornography is generally supplied by persons who share similar unequal, exploitative, and coercive life circumstances as those who are prostituted generally share. Given that these conditions are similar, there appears to be little reason why the pornography industry should not be subjected to the same legal scrutiny as prostitution per se, as it could have extremely important implications for the population who are exploited in the sex industry. Thus, this paper inquires into the legal, political, and ideological obstacles to address the harmful exploitation of persons in the pornography industry by applying prostitution laws to its production, finding that the obstacles to application are not legal but ideological and political. 

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Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	1983	A Due Process Right to Record the Police  Glenn Harlan Reynolds, John A. Steakley,  University of Tennessee College of Law, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: April 23, 2012
2	526	The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A Comprehensive Analysis of the Legal Issues  Kai Ambos,  Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: March 29, 2012
3	330	Implicit Bias in the Courtroom  Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald,Justin D. Levinson, Jennifer Mnookin,  University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,  Date posted to database: March 21, 2012
4	301	The Mosaic Theory of the Fourth Amendment  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: April 3, 2012
5	267	Ensuring an Impartial Jury in the Age of Social Media  Amy J. St. Eve, Michael A. Zuckerman,  U.S. District Court Judge, U.S. District Court,  Date posted to database: March 13, 2012 (6th last week)
6	257	The Delaware Death Penalty: An Empirical Study  Sheri Lynn Johnson, John H. Blume,Theodore Eisenberg, Valerie P. Hans,Martin T. Wells,  Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law,  Date posted to database: March 11, 2012 (7th last week)
7	163	Zotero - A Manual for Electronic Legal Referencing  John Prebble, Julia Caldwell,  Victoria University of Wellington, Victoria University of Wellington,  Date posted to database: April 3, 2012 (8th last week)
8	134	American Criminal Justice Exposed: A Review of The Collapse of American Criminal Justice, by William 9thStuntz  Christopher Slobogin,  Vanderbilt University - Law School,  Date posted to database: March 28, 2012 (new to top ten)
9	133	Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction)  Stuart P. Green,  Rutgers, The State University of New Jersey - School of Law-Newark,  Date posted to database: March 23, 2012 (new to top ten)
10	142	What Percentage of DOJ FCPA Losses is Acceptable?  Mike Koehler,  Butler University College of Business,  Date posted to database: March 23, 2012 (9th last week)

 

Perlin on Mental Health Courts

Michael L. Perlin (New York Law School) has posted 'There are No Trials Inside the Gates of Eden': Mental Health Courts, the Convention on the Rights of Persons with Disabilities, Dignity, and the Promise of Therapeutic Jurisprudence (Coercive Care, edited by Profs. Bernadette McSherry & Ian Freckelton, Routledge/Taylor & Francis (UK), Forthcoming) on SSRN. Here is the abstract:

The ratification of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) radically changes the scope of international human rights law as it applies to all persons with disabilities. It is most significantly changed in the area of mental disability law. Always marginalized, individuals with mental disabilities have always been “outsiders” in the world of international human rights law, with many important global human rights agencies traditionally expressing little or no interest in the plight of this cohort. Internationally, persons in forensic mental health systems generally receive, if this even seems possible, less humane services than do civil patients. Prisoners with mental disabilities are treated inhumanely in most nations, both in correctional facilities and in forensic mental health facilities.

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Klein & Grobey on Debunking Claims of Over-Federalization of Criminal Law

Susan Riva Klein (pictured) and Ingrid B. Grobey (University of Texas School of Law and affiliation not provided to SSRN) have posted Debunking Claims of Over-Federalization of Criminal Law (Emory Law Journal, Volume 62, Forthcoming Sept. 2012) on SSRN. Here is the abstract:

Virtually all criminal law scholars, and many jurists, Republican legislators, and special interest groups bemoan the over-federalization of criminal law, which they perceive as the inevitable result of too many federal laws being enacted and enforced at the whims of Congress and federal prosecutors. This uncontrolled growth, they argue, disrupts the delicate balance between state and federal law enforcement systems by draining resources and attention away from local law enforcement.

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Johnson on the Presumption of Mens Rea

Eric Alan Johnson (University of Illinois College of Law) has posted Rethinking the Presumption of Mens Rea (Wake Forest Law Review, Vol. 47, No. 4, 2012) on SSRN. Here is the abstract:

This paper answers a question that has divided courts and scholars, namely: To which elements of a criminal offense does the traditional presumption of mens rea apply? Scholars long ago settled on the view that the presumption applies to every objective element — every proscribed result, for example, and every attendant circumstance. Courts, on the other hand, usually have held that the presumption applies only to elements that “make the conduct criminal” and not to elements that make the conduct a more serious offense. In this paper, I will argue that both views are problematic and that the right answer to the question of the presumption’s scope lies somewhere in between. The right answer, as Justice Stevens once suggested, is that the presumption of mens rea applies to every element except those designed exclusively to measure the degree of harm inflicted by the actor’s conduct. The reason why this is the right answer is that elements designed to measure instead the risk posed by the defendant’s conduct ordinarily cannot perform their function — cannot tell us anything about the wrongfulness of the actor’s conduct — without being assigned a mental state.

Ferguson on Predictive Policing and Reasonable Suspicion

Andrew Guthrie Ferguson (UDC David A. Clarke School of Law) has posted Predictive Policing: The Future of Reasonable Suspicion (Emory Law Journal, Forthcoming) on SSRN. Here is the abstract:

Predictive policing is a new law enforcement strategy to reduce crime by predicting criminal activity before it happens. Using sophisticated computer algorithms to forecast future events from past crime patterns, predictive policing has become the centerpiece of a new smart-policing strategy in several major cities. The initial results have been strikingly successful in reducing crime. 

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Baldus, Grosso, Woodworth & Newell on Racial Discrimination in Military Death Penalty

David C. Baldus , Catherine M. Grosso (pictured), George G. Woodworth and Richard Newell (University of Iowa - College of Law , Michigan State University - College of Law , University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Racial Discrimination in the Administration of the Death Penalty: The Experience of the United States Armed Forces (1984-2005) (Journal of Criminal Law and Criminology, Vol. 101, No. 4, p. 1227, 2012) on SSRN. Here is the abstract:

This Article presents evidence of racial discrimination in the administration of the death penalty in the United States Armed Forces from 1984 through 2005. Our database includes military prosecutions in all potentially death-eligible cases known to us (n=105) during that time period.

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Bambauer on How the War on Drugs Distorts Privacy Law

Jane Yakowitz Bambauer (Visiting Assistant Professor, Brooklyn Law School) has published How the War on Drugs Distorts Privacy Law (64 Stan. L. Rev. Online 131). In part:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. . . .

The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.

Herbert on How the Occupy Movement May Improve Fourth Amendment Jurisprudence

Lenese C. Herbert (Albany Law School) has posted O.P.P.: How 'Occupy's' Race-Based Privilege May Improve Fourth Amendment Jurisprudence for All (Seattle University Law Review, Vol. 35, 2012) on SSRN. Here is the abstract:

This Article submits that Occupy’s race problem could, ironically, prove to be a solution if protesters grow more serious about exposing the injury of political subordination and systems of privilege that adhere to the criminal justice system. Privilege is a “systemic conferral of benefit and advantage [as a result of] affiliation, conscious or not and chosen or not, to the dominant side of a power system.” Accordingly, now that police mistreatment affects them personally, Occupy may finally help kill a fictitious Fourth Amendment jurisprudence that ignores oppression through improper policing based on racial stigma. Occupy may also help usher in an era in which courts are free(er) to produce a more legitimate jurisprudence regarding police conduct that inspires greater confidence in reality-based adjudications of modern (albeit longstanding) police misconduct, irrespective of race, as the current “[s]ystems of privilege maintain hierarchies of inequality, adversely impacting the possibility of full societal participation.”