CrimProf Blog

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

Saturday, October 22, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

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Rank Downloads Paper Title
1 601 Student Surveillance, Racial Inequalities, and Implicit Racial Bias
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 29 Aug 2016 
2 236 What Lurks Below Beckles
Leah M. Litman and Shakeer Rahman
University of California, Irvine School of Law and Independent
Date posted to database: 28 Aug 2016 
3 217 The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez and Stephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016 [4th last week[
4 215 Principled Policing: Warrior Cops and Guardian Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [5th last week]
5 171 Moonlighting: The Private Employment of Off-Duty Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [6th last week]
6 168 Plausible Cause
Kiel Robert Brennan-Marquez
New York University School of Law
Date posted to database: 22 Aug 2016 [7th last week]
7 165 The Judicial Presumption of Police Expertise
Anna Lvovsky
Columbia University - Law School
Date posted to database: 30 Sep 2016 [8th last week]
8 143 Comment on R v K(A): Carding, Racial Profiling and Police Perjury
David M. Tanovich and Donald R. Stuart
University of Windsor - Faculty of Law and Queen's University
Date posted to database: 4 Mar 2016 [9th last week]
9 141 Candor in Criminal Advocacy
Bruce A. Green
Fordham University School of Law
Date posted to database: 23 Aug 2016 [10th last week]
10 141 Unpacking the Relationship between Prosecutors and Democracy in the United States
David Alan Sklansky
Stanford University
Date posted to database: 30 Aug 2016 [new to top ten]


October 22, 2016 | Permalink | Comments (0)

Friday, October 21, 2016

"Chipping Away at the Crime Wave Myth"

From The Marshall Project, via NACDL news scan:

Chipping Away at the Crime Wave Myth | The Marshall Project

The politicians and pundits, the academics and activists have argued for months over whether America is in the grip of a new crime wave. A few weeks ago, the FBI appeared to lay to rest the argument when it published its annual figures on crime reports to local police departments: the number of violent crimes reported was, indeed, up 3.9 percent last year, but was still near its lowest point in decades.

Today, a new report from another wing of the Justice Department, the Bureau of Justice Statistics, presents a slightly different perspective and underscores how difficult it can be to try to measure crime in America.


October 21, 2016 | Permalink | Comments (0)

Horwitz on Public Disclosure of Victims' Records

Daniel A. Horwitz has posted Closing the Crime Victims Coverage Gap: Protecting Victims’ Private Records from Public Disclosure Following the Tennessean V. Metro (Working Draft) (12 Tenn. J. L. & Pol'y __ (2016)) on SSRN. Here is the abstract:

In March of 2016, the Tennessee Supreme Court ruled 4–1 that law enforcement’s investigative files are categorically exempt from public disclosure under the Tennessee Public Records Act (“TPRA”) throughout the pendency of a criminal case. The underlying lawsuit pitted a vast media coalition spearheaded by THE TENNESSEAN against both law enforcement officials and a rape victim who intervened to protect her privacy interests under the pseudonym “Jane Doe.” Ultimately, the court’s majority opinion represented a resounding victory for law enforcement and a significant setback for Tennessee’s news media, which lost on every substantive claim presented. At present, however, how the court’s ruling in The Tennessean v. Metro will affect crime victims’ ability to protect their private records from public disclosure after criminal proceedings have concluded is not yet clear.

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October 21, 2016 | Permalink | Comments (0)

"Can warrants for digital evidence also require fingerprints to unlock phones?"

Orin Kerr has this interesting post at The Volokh Conspiracy. It begins as follows:

There has been a lot of press coverage recently about a search warrant obtained in Los Angeles allowing the government to force people present when the warrant is executed to press their fingers and thumbs on the fingerprint sensors of any phones or computers found there to unlock them. A lot of people have wondered: Is that legal? I don’t think there’s an easy answer to that. Here’s an overview of some of the legal issues.


October 21, 2016 | Permalink | Comments (0)

Thursday, October 20, 2016

"Criminal justice reform: Issues and options for the next president"

From Brookings, via NACDL news scan:

Americans across partisan, ideological, and racial lines are rethinking the country’s criminal justice system. This is entirely appropriate—and necessary. And yet, conversations, debates, and policy prescriptions around this issue often are not rooted in sound data. All too often, convoluted and even contradictory facts are cited, undermining efforts to improve a system that is in many ways broken. In this brief, we seek to provide citizens and policymakers—including the next president—with a framework for assessing the opportunities and challenges of criminal justice reform by situating decades-long trends in crime and punishment in the appropriate historical and comparative contexts. We have compiled, and report here, the best substantiated data on five critical elements of the criminal justice system: nationwide crime rates; prison population and buildup; the costs of incarceration; and individuals killed by police.




October 20, 2016 | Permalink | Comments (0)

Guest post: Dan Subotnik: “Redefining Rape”? Let’s Hope Not; Or Catharine MacKinnon is at it Again

Subotnik danOur Genitals, Ourselves.

For many years, chaired Harvard law professor, feminist icon, and mother of sexual harassment jurisprudence Catharine MacKinnon has held that, far from being an emotional and physical blessing, sex is an attack on women’s bodies and a model, if not the very foundation, of gender inequality. Except for women in deep emotional relationships (to be defined and discussed below), sex is unwanted and injurious and, accordingly, should be criminalized.

Is this another example of how, when applied to specific problems, the consuming ideologies of even the smartest and best-trained people can yield irrational and unhealthy solutions?  Or is this engagement with MacKinnon another example of patriarchal overreach?    

In any event, consistent with the foregoing view, MacKinnon’s recent piece “Redefining Rape,” (Harvard Law & Policy Review v. 10)  portrays men as the doing-to—and women as the done-to—sex.  This binary is not new.  Leading feminist law professor Robin West developed the theme twenty years ago.  A  number of women and I have critiqued these “sex-negative” views.  On the basis of this existing literature, there would seem to be no need for a response to MacKinnon’s piece.  But given her stature, the arrival of a new generation of young people, and the continuing and intense debates over unwanted sex, “Redefining Rape” should not be ignored.    

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October 20, 2016 | Permalink | Comments (0)

Tonry on Sentencing

Tonry-Michael-2009cMichael Tonry (University of Minnesota - Twin Cities - School of Law) has posted two pieces on sentencing on SSRN. The first is Making American Sentencing Just, Humane, and Effective (Crime and Justice: A Review of Research, vol. 45). Here is the abstract:

American sentencing laws are rigid, harsh, and often unjust. Mass incarceration is a tragedy and a national embarrassment. Laws enacted in the 1980s and 1990s that mandated lengthy prison terms are the primary causes. The challenges are to undo mass incarceration, repeal or fundamentally overhaul the laws that caused it, and rebuild American sentencing systems. American legislators have not yet seriously addressed the subject. Hundreds of minor changes have recently been enacted, but they nibble at the edges—creating narrow exceptions to harsh laws for first offenders, narrowing criteria for probation and parole revocation, and establishing new treatment and “reentry” programs. These changes are important to individuals they affect, but will not reverse mass incarceration or prevent individual injustices. Meaningful change will occur only when the mandatory minimum, three-strikes, life without parole, truth in sentencing, and comparable laws that required prison terms of historically unprecedented severity are repealed and new laws authorizing the release of large numbers of current prisoners are enacted and implemented. Whether these things happen will determine whether mass incarceration and wholesale injustices are much different in 2025 than they were in 2017.

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October 20, 2016 | Permalink | Comments (0)

Wednesday, October 19, 2016

"Jury Finds in Favor of Derrick Rose and Co-Defendants"

From The New York Times:

Rose and the woman dated for about 20 months until he ended the relationship via text message in July 2013. The next month, she sent a text to Rose one morning, which led to sexual activity that night at the Beverly Hills house he was renting.

Hours later, the men rode in Rose’s S.U.V. to the woman’s apartment and had sex with her. She contended that she became intoxicated at Rose’s house and was in no state to grant consent for sex at her residence. The three men maintained she was a willing participant.


October 19, 2016 | Permalink | Comments (0)

"ACLU: DOJ must investigate police use of facial recognition technology"

From Jurist:

JURIST - ACLU: DOJ must investigate police use of facial recognition technology

The American Civil Liberties Union (ACLU), along with the Leadership Conference on Civil and Human Rights [advocacy websites] and 50 other interest groups, sent a letter [text] on Tuesday urging the US Department of Justice [official website] to investigate the increasing use of facial recognition technology. This letter is a part of the advocacy groups' greater concern that certain police use of technology may violate civilian rights, and that those violations are disproportionately felt by minority communities. According to ACLU legislative counsel Neema Singh Guliani, half of American adults are within a government facial recognition database, and those databases are used with near impunity by law enforcement.


October 19, 2016 | Permalink | Comments (0)

Annino on Mandatory Minimum Sentencing of Juveniles

Annino paolaPaolo Annino (Florida State University - College of Law) has posted Children are Different: The Abolition of Mandatory Minimum Sentencing in Florida on SSRN. Here is the abstract:

This essay argues that juvenile mandatory minimum sentences violate the Eighth Amendment based on the US Supreme Court's Miller v. Alabama requirement of individualized assessment and the Iowa Supreme Court's State v. Lyle application of individualized assessment to all juvenile sentencing. This essay discusses the issue of juvenile mandatory minimum sentencing in the context of recent Florida decisions.

October 19, 2016 | Permalink | Comments (0)

Waltman on Pornography and Violence

Max Waltman has posted Pornography and Men's Violence Against Women, Part 2 (Pornography and Prostitution: A Report on Exploitation and Demand, edited by Unizon, pp. 31-108. Translated from Swedish by Marion Söderström, reviewed and revised by Max Waltman, with a Preface by Catharine A. Mackinnon, pp. 33-34, and in collaboration with Unizon) on SSRN. Here is the abstract:

Report on the links between pornography and gender-based violence, including legal policy proposals for Sweden with US comparisons. Part I (pp. 1-30) is written by Unizon (Swedish women's shelter umbrella NGO) and based on primary data from their member organizations. Part II (pp. 31–108) is written by Max Waltman in collaboration with Unizon. The four chapters in part II is based on Waltman's PhD dissertation (2014), making an analytical summary of the existing research, then followed by legal policy proposals. Adopting a problem-driven theoretical approach, the reality of pornography’s harms is analyzed. Evidence shows its production exploits existing inequalities among persons typically drawn from other forms of prostitution who suffer multiple disadvantages, such as extreme poverty, childhood sexual abuse, and race and gender discrimination, making survival alternatives remote. Consumption is divided by sex. A majority of young adult men consumes pornography frequently; women rarely do, usually not unless initiated by others. After consumption, studies show many normal men become substantially more sexually aggressive and increasingly trivialize and support violence against women. Vulnerable populations — including among others battered, raped, or prostituted women — are most harmed as a result. The report concludes with a chapter outlining legal policy proposals. It analyzes their real and imagined obstacles and potential to address real empirically documented harms with law.

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October 19, 2016 | Permalink | Comments (0)

Tuesday, October 18, 2016

"Federal judge blasts Philly DA's 'juvenile lifers' policy"

From The Philadelphia Inquirer, via the NACDL news scan:

An openly frustrated U.S. District Judge Timothy J. Savage - who ordered a new sentence for Songster four years ago, and again in August with a 120-day deadline - said the office's policy of offering all inmates the same deal for a new sentence was inconsistent with a U.S. Supreme Court ruling that put back into play about 300 murder cases in Philadelphia involving juveniles.

Savage's Aug. 17 order had urged resentencings in which a judge would have discretion to impose "individualized, proportionate sentences," take into consideration an inmate's rehabilitation, and impose a maximum of life only in "the rarest of permanently incorrigible" cases.

"Here's the problem that I have," Savage told Assistant District Attorney Susan Affronti on Monday. "If you're saying you have all these offers out, it seems you're treating all of these folks the same way - 35 years to life. I don't get that. That to me appears to show a lack of due diligence, of looking at each case individually. I understand you want to do this for policy reasons. Maybe because it looks good."

October 18, 2016 | Permalink | Comments (0)

"Should We See Everything a Cop Sees?"

From The New York Times Magazine. In part:

Body cameras have been promoted as a solution to police misconduct. But the strange two-year saga of Seattle shows just how complicated total transparency can be.

October 18, 2016 | Permalink | Comments (0)

Dissent from cert denial in ineffectiveness/death penalty case

Justice Sotomayor, joined by Justice Ginsburg, dissented from the denial of certiorari in Elmore v. Holbrook.

October 18, 2016 | Permalink | Comments (0)

Solan & Gales on Ordinary Meaning and Bank Fraud

Lawrence M. Solan and Tammy A Gales (Brooklyn Law School and Hofstra University) have posted Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? (The International Journal Journal of Legal Discourse, Forthcoming) on SSRN. Here is the abstract:

Courts in the U.S. frequently apply a rule of statutory construction that calls for the words in laws to be given their “ordinary meaning”. The rule is based on the presumption that legislatures are most likely to have intended the language to be understood in their ordinary sense and on the value that people subject to such laws will more likely comprehend the rights and obligations granted to them. Courts are not, however, in accord when it comes to determining which of a term’s available meanings is the “ordinary” one. This article describes three methods for making this determination: the judge’s linguistic intuitions, dictionary definitions, and reference to linguistic corpora. We argue that the use of corpus analysis enhances the legal system’s ability to rely on actual distributional facts about word usage, thus enhancing the accuracy of ordinary meaning analysis.

We apply the three methods to a case pending before the U.S. Supreme Court, Shaw v. United States, at the time this article is written. The issue in Shaw is whether the expression “defraud a financial institution” applies to a situation in which the defendant tricked a bank into releasing to him the funds of another depositor, when the bank suffered no loss.

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October 18, 2016 | Permalink | Comments (0)

Corrado on Quarantine and the Problem of the Third Man

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Chapter Four: Quarantine and the Problem of the Third Man on SSRN. Here is the abstract:

Non-retributive attempts to justify punishment are open to some of the same objections that retributive attempts are subject to. Should we return to the preventive Quarantine Model? The attempt to justify that approach by analogy to medical quarantine fails. But Pereboom, Slobogin, and Robinson have raised a problem that I would call the Problem of the Third Man: the problem of the sane and rational but undeterrable offender. Pereboom raises it in support of Quarantine, and the inability to deal with it must be added to the objections to retributive and non-retributive theories of punishment; the problem is to deal with it without adopting the Quarantine Model of criminal justice. The “double track” solution, I suggest, amounts to the tacking together of two unacceptable models and in any event is unstable.

October 18, 2016 | Permalink | Comments (0)

Monday, October 17, 2016

"James Cartwright, Ex-General, Pleads Guilty in Leak Case"

From The New York Times:

The plea completes a stunning fall from grace for General Cartwright, who was known as “Obama’s favorite general,” and it adds a new twist to a surge of leak-related criminal cases in the Obama era.

The case grew out of a period of political furor over leaks in the summer of 2012, when numerous books and articles appeared about Mr. Obama’s national security record during his first term.

Republicans in Congress accused the White House of deliberately leaking government secrets, endangering national security to make Mr. Obama look tough in an election year. The administration denied that charge, and the attorney general at the time, Eric H. Holder Jr., appointed two United States attorneys to look into two specific disclosures.

October 17, 2016 | Permalink | Comments (0)

"Florida: death sentence unconstitutional without unanimous jury vote"

From Jurist:

JURIST - Florida: death sentence unconstitutional without unanimous jury vote

The Florida Supreme Court [official website] on Friday held [opinion, PDF] that a trial court may not impose the death penalty unless the jury's recommended sentence of death is unanimous. This ruling comes after remand to the high court in Florida from the US Supreme Court [official website], which held [JURIST report] in January that Timothy Lee Hurst's death penalty was unconstitutional because it "failed to require the jury, rather than the judge, to find the facts necessary to impose the death sentence." The Supreme Court left open the question as to whether the other constitutional error of a non-unanimous verdict from the jury with regard to Hurst's death sentence was "harmless beyond a reasonable doubt." Florida's high court took up this question and ruled that: "based on Florida's requirement for unanimity in jury verdicts, and under the Eighth Amendment to the United States Constitution, that in order for the trial court to impose a sentence of death, the jury's recommended sentence of death must be unanimous." This ruling is likely to impact hundreds of other cases [NPR report] in the state.


October 17, 2016 | Permalink | Comments (0)

Green & Roiphe on Prosecutors' Conflicts of Interest

Bruce A. Green and Rebecca Roiphe (Fordham University School of Law and New York Law School) have posted Rethinking Prosecutors’ Conflicts of Interest (Boston College Law Review, Vol. 58, No. 2, 2017) on SSRN. Here is the abstract:

Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse. Prosecutors’ decisions are riddled with complex motivations, beliefs, and interests that potentially divert them from their duty to do justice. Understood as any personal belief or interest that could interfere with the prosecutors’ ability to serve the public interest, conflicts of interest threaten to undermine the efficacy and legitimacy of the criminal justice system. The traditional regulatory system barely addresses the problem and could never effectively do so. Drawing on experimentalism, which mandates that local actors design and test solutions to large social problems, we propose changes within prosecutors’ offices to help align prosecutors’ decisions with the public interest. Given how pervasive conflicts of interest are, our solution is, in essence, a proposal for a new way to regulate prosecutorial decisionmaking in general.

October 17, 2016 | Permalink | Comments (0)

Fields on Sexual Assault Protection Orders

Shawn Fields has posted Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders on SSRN. Here is the abstract:

Rape mythologies about the “stranger lurking in the bushes” continue to inform attitudes and decisions by law enforcement personnel, judges, and juries. These archaic stereotypes prejudice sexual assault victims by conditioning factfinders to distrust rape allegations lacking corroborative evidence of a physical struggle with a stranger. In reality, over three-quarters of all sexual assaults in the United States are committed by someone known to the victim; more often than not the victim and perpetrator live, work, or attend school together. Given the perpetuation of rape myths, the incarceration rate for these “acquaintance rape” offenders currently stands at less than 1%. The failure of the criminal justice system to protect sexual assault victims from perpetrators with ongoing access to their victims puts victims at genuine risk of future harm. Moreover, existing civil restraining order statutes remain largely unavailable to sexual assault victims, because these statutes either require the presence of a romantic relationship or impose an unattainably high burden of proof for victims with little extrinsic evidence of physical assault. This Article advocates for a new Sexual Assault Protection Order that imposes no relationship requirement, operates under a lower burden of proof, and provides carefully-tailored prospective relief specifically designed for sexual assault victims. This Article also considers the constitutional concerns of critics who argue that restraining order hearings impermissibly adjudicate criminal guilt under more permissive civil procedures. The Article concludes by balancing these competing concerns, and recommending a model Sexual Assault Protection Order that can both provide tangible, attainable protection remedies to victims and adequately protect the rights of the accused.

October 17, 2016 | Permalink | Comments (0)