CrimProf Blog

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

Friday, October 9, 2015

Di Tella et al. on Crime and Beliefs in Latin America

Rafael Di Tella Javier Donna and Robert MacCulloch (Harvard Business School - Business, Government and the International Economy Unit , Ohio State University (OSU) - Economics and Imperial College London - Tanaka Business School) have posted Crime and Beliefs: Evidence from Latin America on SSRN. Here is the abstract:

We find that perceptions of crime and individual experience with crime (crime victimization) are positively correlated with left-wing beliefs within countries, controlling for income and other correlates of ideology, in a sample for Latin American countries in the mid-1990’s.

October 9, 2015 | Permalink | Comments (0)

Sharpless on Padilla and Complex Deportation Rules

Sharpless rebeccaRebecca A. Sharpless (University of Miami - School of Law) has posted Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It's Hard to Get Them (Denver University Law Review, Forthcoming) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the U.S. Supreme Court held that defense attorneys have a Sixth Amendment duty to advise noncitizen clients of the “clear” immigration consequences of a proposed plea agreement. This Article argues that the Court’s reference to clarity denotes predictability, not simplicity, and that defense attorneys must advise their clients of predictable immigration consequences, even if they are difficult to ascertain. The scope of this duty has broadened as the U.S. Supreme Court has made the crime-related deportation rules more determinate, although many rules remain complex. A legislative move to a regime of simple deportation rules would greatly facilitate the implementation of Padilla, enhance the legitimacy of immigration law, and conserve judicial and administrative resources. However, pro-immigrant reformers hesitate to push for simple deportation rules because legislative reform in the area of immigration and crimes would likely widen the deportation net. Assuming the existence of the political will for more moderate treatment of noncitizens with criminal convictions, this Article argues for a bright-line trigger for the commencement of removal proceedings of five years imprisonment actually served and calls for the restoration of judicial discretion to halt deportations on a case-by-case basis.

October 9, 2015 | Permalink | Comments (0)

Murray on UK Counter-Terrorism Jurisprudence

Colin R. G. Murray (Newcastle University - Newcastle Law School) has posted Nudging or Fudging? The UK Courts’ Counter-Terrorism Jurisprudence Since 9/11 )Forthcoming in the Journal of Conflict and Security Law (2016)) on SSRN. Here is the abstract:

Counter-terrorism decisions of senior appellate courts tend to garner headlines and attract international recognition. Explanations of judicial “triangulation” between security and fundamental rights which rely upon such high-profile decisions, however, risk over simplifying the judiciary’s role. Much of the common-law scholarship on the judiciary as a strategic actor has focused on cases concerning prominent executive counter-terrorism measures, including those relating to the United Kingdom’s (UK) employment of detention without trial and control orders. On the basis of decisions like Belmarsh Detainees, the UK judiciary are increasingly cast as strategic actors, “nudging” the executive away from the use of rights-eroding powers. By contrast, despite the importance of the criminal justice systems of these countries in their counter-terrorism strategies, comparatively little attention has been given to how their judiciaries have adapted criminal law principles to facilitate counter-terrorism action. This lack of attention has disguised the degree to which the UK judiciary has acquiesced in the erosion of the safeguards against abuse of executive power contained within the “ordinary” criminal law in the interests of counter-terrorism. Taking criminal justice decisions into account either adds a layer of complexity to accounts of the judiciary as strategic actors or reduces such accounts to incoherence.

October 9, 2015 | Permalink | Comments (0)


This story reporting on a significant developments in California is in the San Diego Union Tribune. The new law permits subpoenas to consumers and providers for content in civil discovery, but in criminal cases requires a warrant for content, envelope, and location information, but not subscriber information.  It is noteworthy not just for representing a well-thought-out balance of privacy and security interests, but also because of the politics behind it.  Because it triggers the e-rule, the CA constitution requires that it be passed by two thirds of both houses.  Governor Brown signed it after the district attorney's association and the police chiefs signed letters saying they were withdrawing their opposition.

October 9, 2015 | Permalink | Comments (0)

Thursday, October 8, 2015

Eaglin on Economic Sanctions

Jessica Eaglin has posted Improving Economic Sanctions in the States (Minnesota Law Review, Vol. 99, No. 5, 2015) on SSRN. Here is the abstract:

Economic sanctions in the U.S. justice system have acquired newfound attention from the public and policymakers across the country in recent years. As states reconsider excessively severe sentences for low level offenders captured in the justice system, there is a renewed interest in using alternatives to incarceration – including economic sanctions – to further penal policy while avoiding the high costs of incarceration. This development lies in tension with the reality that many defendants cannot afford even minimal economic sanctions and instead accrue criminal justice debt. Policymakers are only just starting to engage with substantive solutions to this problem. The American Law Institute finds itself at the forefront in considering these realities as it completely restructures the Model Penal Code’s approach to economic sanctions. 

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October 8, 2015 | Permalink | Comments (0)

Rivera on Factual Issues in Extradition Habeas

Artemio Rivera  has posted The Consideration of Factual Issues in Extradition Habeas (University of Cincinnati Law Review, Vol. 83, 2015) on SSRN. Here is the abstract:

The determinations made at an international extradition hearing cannot be appealed and may only be reviewed through habeas corpus. As the case law stands now, habeas courts reviewing extradition decisions are prevented from considering anew the evidence presented at the extradition hearing, and petitioners are disallowed to introduce evidence to the habeas court. Instead, the factual determinations of the extradition magistrate are reviewed through habeas for “clear error” and or through other low level standards of review. The courts support these procedures on authority from the late nineteenth and early twentieth centuries, a time when the scope of habeas corpus was mostly limited to issues of jurisdiction. 

I argue that the nature of habeas corpus as an original and independent civil procedure requires that courts consider de novo all of the evidence received at the extradition hearing, and that petitioners be allowed to introduce evidence. I also argue that the determination of probable cause by the extradition magistrate must be reviewed de novo, rather than through a low level standard of review such as “clear error,” or “competent evidence.” These arguments are grounded on three main legal bases: (1) the Court’s opinion in Boumediene v. Bush, which concludes that habeas protection must be greater when the petitioner receives little process in the previous proceeding; (2) the provisions in 28 U.S.C. § 2243 that habeas courts must hear and determine the facts anew; and (3) the long history of fact finding by habeas courts when reviewing cases of executive detention and detention without trial.

October 8, 2015 | Permalink | Comments (0)

Wednesday, October 7, 2015

Better Sex Through Criminal Law: My Critique of the ALI’s Draft “Affirmative Consent” Provisions

My draft, Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of “Affirmative Consent” in the ALI’s Draft Sexual Assault Provisions, is available through SSRN here

The ALI project is an important one, and much of the draft is excellent, but my focus is on a problematic part. Some of the problems are common to "affirmative consent" provisions; others are special to the ALI draft. Here’s the abstract:

The American Law Institute’s draft amendments to the Model Penal Code’s sexual assault provisions address the problem of unwanted sex through the use of proxy crimes. The draft forbids sex undertaken in the absence of certain objective indicia of willingness, or in the presence of certain objective indicia of unwillingness, even though the serious harm of sex with an unwilling partner does not always result from those situations. Proxy crimes are sometimes justified, as is the draft’s requirement that an express “no” be respected in the absence of subsequent words or actions by a partner rescinding the “no.” But proxy crimes also carry risks, some of which (in addition to other problems) are displayed by the draft’s requirement that sex occur only in the presence of “positive agreement” by the partner. Like any “affirmative consent” approach, the draft’s “positive agreement” standard must either embrace requirements that many will find objectionable or risk devolving into punishment for simple, tort negligence (or less). Imposing liability on a tort negligence standard would conflict with the Model Penal Code’s general insistence on subjective liability as a predicate to criminal liability. It would also strike many as a regrettably low standard for labelling an actor as a sex offender, and it would risk deterrent losses over time by diluting the stigma associated with the label. 

October 7, 2015 | Permalink | Comments (0)

Tuesday, October 6, 2015

Monahan on Individual Risk Assessment of Terrorism

John Monahan (University of Virginia School of Law) has posted The Individual Risk Assessment of Terrorism: Recent Developments on SSRN. Here is the abstract:

This chapter synthesizes the existing evidence base on the individual risk assessment of terrorism, focusing critical attention on recent developments in the identification of valid risk factors. The most promising candidates for such risk factors identified here include ideologies, affiliations, grievances, moral emotions, and identities. Risk factors for lone-actor terrorism may diverge significantly from those for group-based terrorism. The chapter also reflects on what must happen if research on the risk assessment of terrorism is to yield knowledge that is actionable in the context of national security, i.e., the use of case-control, known-groups research designs.

October 6, 2015 | Permalink | Comments (0)

Biddulph on Minor Crime in China

Sarah Biddulph (Melbourne Law School) has posted Punishments in the Post Re-Education Through Labour World: Questions About Minor Crime in China on SSRN. Here is the abstract:

As controversial as it was during its lifetime, the administrative detention power of Re-education through Labour (RETL) after its abolition has continued to create waves in the Chinese system of punishments. RETL was abolished without putting a clear alternative power or powers in its place. In the post-RETL world a number of basic questions about the scope and structure of China’s system of punishments remain unresolved. What gaps, if any, has abolition of RETL left in the system of punishments? If these gaps exist, what measures, if any, will fill them? This paper first examines the question of whether there is a gap in the system of punishments left by abolition of RETL, and if so what it looks like. It goes on to discuss reforms in criminal and administrative law and debates circulating around the two concepts of minor crime and security punishments.

October 6, 2015 | Permalink | Comments (0)

Monday, October 5, 2015

Mandery & Shemtob on Capital Cases and Supreme Court Decision-Making

Evan J. Mandery and Zachary Baron Shemtob (CUNY, John Jay College of Criminal Justice and Independent) have posted Supreme Convolution: What the Capital Cases Teach Us About Supreme Court Decision-Making (New England Law Review, Vol. 48, 2013-2014) on SSRN. Here is the abstract:

Gregg v. Georgia, 428 U.S. 153 (1976), and its accompanying cases, shaped the modem death penalty. The authors interviewed more than fifty lawyers, law clerks, and academics who were involved in the litigation and decision of Gregg and its predecessor, Furman v. Georgia, 408 U.S. 238 (1972). This research is the basis for Prof. Mandery's book, A Wild Justice. We present it here as part of a discussion of judicial decision-making and as evidence of the limitations of conventional legal research. We argue that only a mixed jurisprudential model can explain the individual Justices' behavior in Gregg. We further argue that conventional legal research, with its emphasis on published judicial opinions and consideration of the Supreme Court as a monolithic entity, is inherently conservative and unhelpful.

October 5, 2015 | Permalink | Comments (0)

Saul on Defining Terrorism

Ben Saul (University of Sydney - Faculty of Law) has posted Defining Terrorism: A Conceptual Minefield (THE OXFORD HANDBOOK OF TERRORISM, A. Gofas, R. English, S.N. Kalyvas, E. Chenoweth, eds, Oxford University Press, UK, 2016 Forthcoming) on SSRN. Here is the abstract:

Calls to define ‘terrorism’ as a legal concept arose in the context of efforts to extradite ‘political offenders’ from the 1930s onwards, with many efforts, over 80 years to the present, to define, criminalize, and depoliticise a common global concept of ‘terrorism’. Those international efforts remain largely unsuccessful to this day. After the terrorist attacks on the United States of 11 September 2001 (‘9/11’), many states enacted ‘terrorism’ offences, spurred on by the perceived threat of global religious terrorism, obligations imposed by the UN Security Council, gaps in existing criminal liabilities and police powers, and the expressive function of stigmatising terrorism as a special kind of violence against public interests. National laws remain, however, startlingly diverse and there is still a global divergence. At the international level, there is certainly a basic legal consensus that terrorism is criminal violence intended to intimidate a population or coerce a government or international organisation; some national laws add an ulterior intention to pursue a political, religious or ideological cause. There remain intense moral and political disagreements, however, on whether there should be exceptions for just causes (such as liberation violence and rebellion), armed conflicts, and state violence. As a result, a conceptual impasse continues, even if agreement has been edging closer.

October 5, 2015 | Permalink | Comments (0)

Rubin on American Prison Development

Ashley T. Rubin (Florida State University - School of Criminology and Criminal Justice) has posted Three Waves of American Prison Development, 1790--1920 (Chapter 7 in Mathieu Deflem, Ed. 2014. Punishment and Incarceration: A Global Perspective (Sociology of Crime, Law and Deviance, Vol. 19), Bingley, UK: Emerald Group Publishing, 139–158) on SSRN. Here is the abstract:

Purpose: This chapter calls attention to penal regime shifts, emphasizing the importance of comparing different periods of prison development. In particular, it examines different instantiations of prison across time.

Design/methodology/approach: I discuss three periods of prison development (1790--1810s, 1820--1860, and 1865--1920), focusing on the nature of prison diffusion across the United States. Specifically, I discuss the homogeneity and diversity of prison forms in each period.

Findings: I demonstrate that the first two periods were particularly homogenous, as most states that adopted prisons followed a single model, the Walnut Street Jail model (1790--1810s) and the Auburn System (1820--1860), respectively. By contrast, the post--Civil War period experienced the emergence of women’s prisons, adult reformatories, and distinctively Southern approaches to confinement. Using neo-institutional theory, I suggest this post-war proliferation of prison forms was only possible because the prison had become institutionalized in the penal landscape.

October 5, 2015 | Permalink | Comments (0)

Sunday, October 4, 2015

Howe on The Eighth Amendment Prohibition on Excessive Bail

Howe scottScott Howe (Chapman University, The Dale E. Fowler School of Law) has posted The Implications of Incorporating the Eighth Amendment Prohibition on Excessive Bail (Hofstra Law Review, Vol. 43, No. 4, 2015) on SSRN. Here is the abstract:

In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.

I contend that incorporation solves two long-standing riddles about the clause. First, does it confer a right to bail? And, second, when bail is required, are the permissible goals of bail defined by construction of the clause itself?

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October 4, 2015 | Permalink | Comments (0)

Saturday, October 3, 2015

Next week's oral arguments

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


  • Ocasio v. U.S.: Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.


  • Kansas v. Carr,: Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held here, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances; and whether the trial court's decision not to sever the sentencing phase of the co-defendant brothers’ trial here – a decision that comports with the traditional approach preferring joinder in circumstances like this – violated an Eighth Amendment right to an “individualized sentencing” determination and was not harmless in any event.
  • Kansas v. Gleason: Whether the Eighth Amendment requires that a capital-sentencing jury be affirmatively instructed that mitigating circumstances “need not be proven beyond a reasonable doubt,” as the Kansas Supreme Court held in this case, or instead whether the Eighth Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances.

October 3, 2015 | Permalink | Comments (0)

Friday, October 2, 2015

Bean on The FIFA Corruption Scandal

Bruce W. Bean (Michigan State University - College of Law) has posted FIFA Has Made the 'Beautiful Game' Ugly on SSRN. Here is the abstract:

This article provides background for a discussion of the criminal proceedings against 14 individuals and 25 co-conspirators connected with the international “soccer” umbrella organization FIFA, the Fédération Internationale de Football Association. A discussion of the U.S. federal Indictment filed May 20, 2015 is included.

To enhance understanding of the state of corruption at FIFA, which serves as the basis for the indictment, the article also deals with the stunning selection by FIFA in December 2010 of Russia and Qatar as the venues for the 2018 and 2022 FIFA World Cup championship games.

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October 2, 2015 | Permalink | Comments (0)

Guzman on Sexual Abuse of Farmworkers

Joseph Sebastian Guzman has posted State Human Trafficking Laws: A New Tool to Fight Sexual Abuse of Farmworkers (Columbia Human Rights Law Review, Vol. 46, No. 3, 2015) on SSRN. Here is the abstract:

Sexual abuse of undocumented female farmworkers is a disturbing and widespread occurrence. Federal and state antidiscrimination laws and federal and local criminal prosecutions are the existing law enforcement schemes used to combat this problem. This Note argues that a new and underutilized mechanism may be employed to supplement these efforts: state human trafficking laws. Such laws allow state attorneys general to fill the enforcement gap between uneven federal enforcement and weak local enforcement. And it is valuable to have overlapping enforcement regimes to protect against shifting preferences on the state, local, and federal levels. Moreover, by bringing such claims, prosecutors can classify these crimes as what they truly are: human trafficking violations.

October 2, 2015 | Permalink | Comments (0)

Mills, Dorn & Hritz on Juvenile Life Without Parole

John R. Mills Anna Dorn and Amelia Courtney Hritz (The Phillips Black Project , The Phillips Black Project and Cornell University) have posted Juvenile Life Without Parole in Law and Practice: The End of Superpredator Era Sentencing (American University Law Review, Forthcoming) on SSRN. Here is the abstract:

This article examines the rapid changes underway in sentencing juveniles to life without parole (JLWOP). It examines both the rapid changes in law and in the actual sentencing practices in the counties and states that continue to sentence persons to die in prison for crimes they commit before reaching age eighteen. In Miller v. Alabama, 132 S. Ct. 2455 (2012), the United States Supreme Court held that mandatory sentences for such offenses violate the Eighth Amendment. In reaching that conclusion, the Court explicitly held open the question of whether any such sentence is constitutional. This article addresses when, where, and on whom JLWOP sentences are being imposed, questions relevant to its constitutionality.

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October 2, 2015 | Permalink | Comments (0)

Thursday, October 1, 2015

Booth on Victim Impact Statements

Tracey Booth (University of Technology Sydney, Faculty of Law) has posted Victim Impact Statements, Sentencing and Contemporary Standards of Fairness in the Courtroom (Wilson and Ross (eds), Crime, Victims and Policy, Palgrave Macmillan, 2015) on SSRN. Here is the abstract:

The inclusion of victims and their victim impact statements (VISs) in sentencing modifies the adversarial sentencing hearing in order to reflect shifts in community sensibilities and expectations of fairness in legal proceedings. Drawing on findings from a recent qualitative study of victim participation in sentencing hearings in the New South Wales Supreme Court, this chapter explores the challenges generated by victim participation and the emotional nature of victim impact evidence for the sentencing judge. It considers how judges can respond to the victims’ interests in a manner designed to enhance the fairness of proceedings for victims while not jeopardising the offender’s entitlement to a fair hearing. Ultimately, fairness to victims in this context is more than an entitlement to submit a VIS. Fairness involves meeting a range of procedural conditions in relation to victims including: treating victims with dignity and giving them appropriate space and time to present their statements; keep victims informed where appropriate; and afford victims due recognition as a participant.

October 1, 2015 | Permalink | Comments (0)

Barrozo on Cruelty in Criminal Law

Barrozo pauloPaulo Barrozo (Boston College - Law School) has posted Cruelty in Criminal Law: Four Conceptions (Criminal Law Bulletin Vol. 51 No. 5 (2015)) on SSRN. Here is the abstract:

This Article defines four distinct conceptions of cruelty found in underdeveloped form in domestic and international criminal law sources. The definition is analytical, focusing on the types of agency, victimization, causality, and values in each conception of cruelty. But no definition of cruelty will do justice to its object until complemented by the kind of understanding practical reason provides of the implications of the phenomenon of cruelty. 

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October 1, 2015 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog:

  • Utah v. Strieff — Whether, if police learn about an outstanding arrest warrant during a street or traffic stop that turns out to have been illegal, the Fourth Amendment bars the use of any evidence obtained as a result of a search at the time of the arrest.
  • Duncan v. Owens — Whether it violates federal habeas law for a judge during a criminal trial to state a position on the accused person’s motive, based on evidence not introduced at the trial.
  • Taylor v. United States — Whether, in a case under the Hobbs Act, the government must prove that robbery of a drug dealer does actually affect interstate commerce.
  • Molina-Martinez v. United States — What effect should a federal appeals court give to a district court’s ruling applying the wrong Sentencing Guideline range to a convicted individual.
  • Puerto Rico v. ValleWhether the Commonwealth of Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.
  • Williams v. Pennsylvania: When the rights of an individual are violated when a member of a state supreme court joins in ruling on a case in which that judge has been accused of bias because of a former role in the case.

October 1, 2015 | Permalink | Comments (0)