CrimProf Blog

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

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Tuesday, October 21, 2014

Estlinbaum on Effective Plea Bargains for Noncitizens

Craig Estlinbaum has posted Effective Plea Bargains for Noncitizens (The Scholar Vol. 16, pp. 607-629 (2014)) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.

This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant.

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October 21, 2014 | Permalink | Comments (0)

"Nevada high court strikes DWI implied consent law"

Jurist has this piece:

The Nevada Supreme Court [official website] on Thursday ruled [opinion, PDF] that Nevada's implied consent law [text], which allows police officers to take blood samples of motorists to determine impairment, is unconstitutional. The case involved a man named Michael Byars who was stopped by state troopers for driving under the influence of a controlled substance. Upon questioning the suspect the officers detected the smell of marijuana and arrested Byars, who was later subject to blood testing allowed by Nevada's implied consent law. The Nevada Supreme court ruled that the implied consent rule as used within the case was unconstitutional because the warrantless search violated the Fourth Amendment [text]. However, the evidence found through the blood testing was not suppressed by use of the exclusionary rule because the court found the officers acted in good faith.

October 21, 2014 | Permalink | Comments (0)

Monday, October 20, 2014

Borgmann on Government-Imposed Bodily Intrusions

Borgmann caitlinCaitlin E. Borgmann (CUNY School of Law) has posted The Constitutionality of Government-Imposed Bodily Intrusions (University of Illinois Law Review, p. 1059, 2014) on SSRN. Here is the abstract:

Throughout its history, this country has recognized the common law right against bodily intrusions. It is considered among the most cherished of rights. It seems beyond debate that a parallel right against government-imposed bodily intrusions should receive robust constitutional protection. Yet the Supreme Court’s treatment of the right against government-imposed bodily intrusions is muddled and lacks an overarching theory. Far from recognizing the right as fundamental, the Court has effectively demoted the right from its deserved status through two major analytical missteps. First, the Court has created arbitrary doctrinal barriers between different manifestations of the same right rather than consistently treating it as a unitary, fundamental substantive due process right. Second, it has given insufficient weight to the nonphysical, or “psychological” harms of forced bodily intrusions, and has deferred excessively to the government’s justifications for intruding. This Article is the first to conduct a comprehensive analysis of the scattered Supreme Court precedents on government-compelled bodily intrusions. In place of the ad hoc balancing tests the Court has tended to employ, this Article proposes a unified framework for assessing government-compelled bodily intrusions that recognizes substantive due process as the matrix for the right and that takes meaningful account of the psychological harms that accompany forced physical intrusions and the importance of considering less intrusive alternatives. This Article then applies the framework to forced blood drawing, an issue addressed in a recent Supreme Court decision, and to state pre-abortion ultrasound mandates, the subject of a developing circuit split. The proposed framework finally places the right against government-imposed bodily intrusions on its proper constitutional footing.

October 20, 2014 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

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

  • Los Angeles v. Patel: (1) Whether facial challenges to ordinances and statutes are permitted under the Fourth Amendment; and (2) whether a hotel has an expectation of privacy under the Fourth Amendment in a hotel guest registry where the guest-supplied information is mandated by law and an ordinance authorizes the police to inspect the registry, and if so, whether the ordinance is facially unconstitutional under the Fourth Amendment unless it expressly provides for pre-compliance judicial review before the police can inspect the registry.
  • Henderson v. United StatesWhether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.
  • Chappell v. Ayala: Whether it is unconstitutional for a state court to exclude an accused individual and defense lawyers from a hearing to examine the legality of prosecutors’ exclusion of minority jurors from serving.

October 20, 2014 | Permalink | Comments (0)

Sunday, October 19, 2014

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 356 A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion 
Mark William Osler and Mark W. Bennett 
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa) 
Date posted to database: 1 Sep 2014 
2 346 Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team 
Jonathan Abel 
Stanford Law School - Constitutional Law Center 
Date posted to database: 27 Aug 2014 
3 243 Banks, Marijuana, and Federalism 
Julie Andersen Hill 
University of Alabama - School of Law 
Date posted to database: 30 Aug 2014 
4 217 Intellectual Property Infringement as Vandalism 
Irina D. Manta and Robert E. Wagner 
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law 
Date posted to database: 24 Aug 2014 
5 210 It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
Patricia Salkin and Bailey Ince 
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 5 Sep 2014 
6 184 Waking the Furman Giant 
Sam Kamin and Justin F. Marceau 
University of Denver Sturm College of Law and University of Denver Sturm College of Law 
Date posted to database: 5 Aug 2014 
7 181 Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission 
Owen D. JonesRichard J. BonnieBJ Casey,Andre DavisDavid L. FaigmanMorris B. HoffmanRead MontagueStephen Morse,Marcus E. RaichleJennifer A. Richeson,Elizabeth S. ScottLaurence SteinbergKim A. Taylor-ThompsonAnthony D. Wagner andGideon Yaffe 
Vanderbilt University - Law School & Dept. of Biological Sciences, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law, Stanford University - Psychology and Yale Law School 
Date posted to database: 31 Aug 2014 [8th last week]
8 176 Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash 
Alison Siegler 
University of Chicago Law School 
Date posted to database: 23 Aug 2014 [7th last week]
9 144 Drafting an Effective 'Revenge Porn' Law: A Guide for Legislators 
Mary Anne Franks 
University of Miami School of Law 
Date posted to database: 21 Jul 2014 
10 137 Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis' 
Christopher Slobogin 
Vanderbilt University - Law School 
Date posted to database: 9 Aug 2014 

October 19, 2014 | Permalink | Comments (0)

"Rob Cary's Book on Senator Ted Stevens"

Ellen Podgor has this post at White Collar Crime Prof Blog praising the book. In part:

Discovery in a criminal case is incredibly important, and this book emphasizes its importance in the criminal justice system and to society. In white collar document driven cases, the amount of paperwork can be overwhelming.  It becomes important to not merely provide discovery to defense counsel, but also  that it be given in an organized manner.

October 19, 2014 | Permalink | Comments (0)

Saturday, October 18, 2014

"Eric Holder's Piddling Change to Appeal Waivers"

Bill Otis has this post at Crime & Consequences:

The Attorney General has directed that appeal waivers in plea agreements should no longer require that defendants waive the right to raise ineffective assistance of counsel claims.  The story is covered here on SL&P, and the Deputy Attorney General's memo is here

. . .

To me, and in practice, this is no big deal.
. . .  First, if the defense lawyer is actually incompetent (which is extremely rare in federal court), the client  --  almost always a layman  --  will not know this or have a way of finding out. His source of information is, after all, the very lawyer who's allegedly a dope.  So it seems fair enough that this claim be preservable even while the others are waived.
Second, defense lawyers are reluctant to call one another incompetent.  The main reason for this is that such an accusation is very seldom true (and truth does count with most defense lawyers, although not nearly as much as it should). Another factor is the clubbish, us-against-them mentality in the defense bar. Even in its truth-optional precincts, there survives the normal human instinct against cannibalism, which is, in a professional sense, what's actually going on when one defense lawyer accuses another of malfeasance.  An accusation like that can end an attorney's career.

October 18, 2014 | Permalink | Comments (0)

Friday, October 17, 2014

"Would a new crime of “willful refusal to comply with a decryption order” be the best answer to the device decryption puzzle?"

Orin Kerr has this post at The Volokh Conspiracy addressing the FBI's concerns about new technology. In part:

I think Comey is wrong that the Fifth Amendment is a “likely” barrier in the cell phone context, because in most of the typical cases, when the government knows who is the owner of the phone, the Fifth Amendment shouldn’t be a problem. But let me put that issue aside for now and focus instead on the rest of Comey’s comment, and specifically his concern that the punishment for refusing to comply with a court order to produce a password would be so low that the bad guys will just make a rational decision to take the lesser contempt punishment.

October 17, 2014 | Permalink | Comments (0)

"Man gets life without parole for murdering Florida teen over loud music"


[Defendant] Dunn claimed he acted in self-defense because he believed [victim] Davis was reaching for a gun. No weapon was found.

. . .

[Sentencing judge] Healey said Florida's controversial "stand your ground" law was widely misunderstood.

"We should remember there is nothing wrong with retreating and deescalating the situation," the judge said.

October 17, 2014 | Permalink | Comments (0)

Boyd on the Rhetoric of Three Strikes

Richard Boyd (San Diego State University) has posted Narratives of Sacrificial Expulsion in the Supreme Court's Affirmation of California's 'Three Strikes and You're Out' Law on SSRN. Here is the abstract:

This essay examines 2003’s Ewing v. California and Lockyer v. Andrade, decisions which affirmed the constitutionality of California’s notorious repeat offender sentencing laws. The essay argues that the plurality opinions (written by Justice O’Connor) are, in important ways, richly rhetorical texts that suggest much about the complex intersections between law, rhetoric, and the violence enacted in law’s name. In particular, the essay seeks to uncover the operation of a powerful narrative strategy in her opinions that makes them important rhetorical performances in our collective conversation about crime and punishment in this nation.

October 17, 2014 | Permalink | Comments (0)

Light on Noncitizens and Sentencing Disparities

Michael T. Light (Purdue University) has posted The New Face of Legal Inequality: Noncitizens and the Long-Term Trends in Sentencing Disparities Across U.S. District Courts, 1992-2009 (Criminal Justice, Borders and Citizenship Research Paper) on SSRN. Here is the abstract:

In the wake of mass immigration from Latin America, legal scholars have shifted focus from racial to ethnic inequality under the law. A series of studies now suggest that Hispanics may be the most disadvantaged group in U.S. courts, yet this body of work has yet to fully engage the role of citizenship status. The present research examines the punishment consequences for non-U.S. citizens sentenced in federal courts between 1992 and 2009. Drawing from work in citizenship studies and sociolegal inequality, I hypothesize that non-state members will be punished more severely than U.S. citizens, and any trends in Hispanic ethnicity over this period will be linked to punitive changes in the treatment of noncitizens. In line with this hypothesis, results indicate a considerable punishment gap between citizens and noncitizens – larger than minority-white disparities. Additionally, this citizenship ‘penalty’ has increased at the incarceration stage, explaining the majority of the increase in Hispanic-white disparity over the past two decades. As international migration increases, these findings call for greater theoretical and empirical breadth in legal inequality research beyond traditional emphases, such as race and ethnicity.

October 17, 2014 | Permalink | Comments (0)

Thursday, October 16, 2014

"Author John Grisham says "we've gone nuts with this incarceration" of child porn downloaders"

Doug Berman at Sentencing Law & Policy excerpts Grisham's initial remarks and his quick retraction in the face of criticism.

October 16, 2014 | Permalink | Comments (0)

"Florida Supreme Court holds real-time cell-site data protected under Fourth Amendment"

Orin Kerr has this post at The Volokh Conspiracy, excerpting and discussing the opinion. In part:

The Florida Supreme Court tried to minimize the split [from federal precedent] by limiting its opinion to real-time access rather than historical access. But it’s hard to imagine how that could make a constitutional difference. That distinction matters in the statutory context because the Stored Communications Act expressly regulates historical access but does not regulate real-time access. But I don’t see how it could matter for purposes of the Fourth Amendment question of what is a “search.”

October 16, 2014 | Permalink | Comments (0)

Hess et al. on Treating Juveniles in the Adult Criminal System

Wendy N. Hess Laura Furr Kimberly Armstrong Susan Francis and Amanda White (University of South Dakota Law School , National League of Cities , United Parents of Incarcerated Children and Youth , Public Justice Center and Public Justice Center) have posted Just Kids: Baltimore's Youth in the Adult Criminal Justice System on SSRN. Here is the abstract:

Maryland’s 20 year experiment with the "tough on crime" approach of automatically sending youth into adult criminal courts, jails and prisons for certain offenses has failed. National studies show that youth who are sent to adult facilities go on to commit more — and more violent — crimes than those who received rehabilitative services in the juvenile system. This costs taxpayers much more in the long run. Automatically charging youth as adults has been politically popular. But the data shows that when their cases are individually considered, most cases in Baltimore are dismissed or sent back to the juvenile system, raising the question of whether they should have been put in the adult system in the first place. The Just Kids Partnership — formed by the Public Justice Center, Community Law In Action, Inc., and United Parents of Incarcerated Children and Youth — spent a year conducting research, interviewing stakeholders, and following the cases of over 100 youth to understand and assess the impact of Maryland’s laws, policies and practices charging and prosecuting youth as adults. We urge Maryland policymakers to read the results of this research. Our communities deserve no less than thoughtful, data-driven policy rather than ill-informed and politically expedient rhetoric.

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October 16, 2014 | Permalink | Comments (0)

Wednesday, October 15, 2014

Fettig on the Collective Knowledge Doctrine

Fettig derikDerik T. Fettig (Hamline University School of Law) has posted Who Knew What When? A Critical Analysis of the Expanding Collective Knowledge Doctrine (University of Missouri-Kansas City Law Review, Vol. 82, No. 3, 2014) on SSRN. Here is the abstract:

This Article challenges the assumption long held by commentators and courts that the collective knowledge doctrine, sometimes called the fellow officer rule, is a common sense approach to probable cause determinations. An expansion of the doctrine by some courts to include aggregation of probable cause information among several officers, and a resulting split among the circuits, shows how its application has strayed from its original efficiency rationale. In addition, an unintended consequence of the doctrine is its use by federal agencies to shield local law enforcement officials from the existence of larger investigations, which creates a perverse incentive to withhold information among law enforcement officers and agencies. Building on the current literature, this Article argues that an ongoing circuit split over the scope of the doctrine should be resolved in favor of limiting its reach, much in the same way the Supreme Court limited the search of automobiles incident to arrest in Arizona v. Gant.

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October 15, 2014 | Permalink | Comments (0)

"A cop may be following you everywhere"

Catherine Crump has this piece at, critiquing the use of license-plate readers. In part:

Federal funds are being spent to push this equipment out across the country, a process that often bypasses the role that traditional elected representatives once played because the police no longer need funds from the city council. And the technology is more powerful year over year as the cost of computer processing plummets and storing data becomes a trivial matter. The presumption has flipped. Police departments once asked themselves: Why keep this data? But now data storage is so cheap that they ask: Why not keep it?

October 15, 2014 | Permalink | Comments (0)

Argument transcript on federal habeas appeal issue

The transcript in Jennings v. Stevens is here.

October 15, 2014 | Permalink | Comments (0)

Porat & Yadlin on Valuable Lies

Ariel Porat and Omri Yadlin (Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law) have posted Valuable Lies on SSRN. Here is the abstract:

Should a Muslim employee who falsely stated in his job interview that he is Christian in order to avoid discrimination be fired for his dishonesty? Should a buyer of a tract of land who conducted an expensive investigation before contracting that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land's mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead in the public interest? In all of these cases, and many others, parties are allowed not to disclose material information to an interested party but not to lie about the same information.

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October 15, 2014 | Permalink | Comments (0)

Tuesday, October 14, 2014

"Oscar Pistorius Sentencing Day 2"

From TalkLeft, this critique of the prosecutor:

He needs to go back to school. Unrelenting sarcasm and mockery is not a successful cross-examination technique. He comes off as a bully. His questions are designed to express his thoughts and then present them to the witness. Witness examination is not the time to express your thoughts, you do that in closing. I've seen the judge take him to task for his overl confrontational style before in this trial.

October 14, 2014 | Permalink | Comments (0)

Denials of cert in significant sentencing cases

Lyle Denniston has this post at ScotusBlog, reporting on the denials. Over the dissent of Justice Scalia, joined by Justices Ginsburg and Thomas, the Court denied review in a case where sentenced was enhanced based on the judge's determination that defendants had engaged in conduct for which the jury had acquitted them. The dissent is here. The Court also denied cert in a case raising the issue of whether the Confrontation Clause applied to evidence offered at a sentencing proceeding.

October 14, 2014 | Permalink | Comments (0)