CrimProf Blog

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

Sunday, June 26, 2016

"White House announces series of measures for incarcerated individuals"

From Jurist:

The White House [official website] announced [press release] on Friday a series of programs aimed at ensuring that former prisoners have better resources to transition back into the community. The administration said that improving education and job opportunities can reduce crime. One of the programs will provide 12,000 state and federal prison inmates government funding in order for them to take college courses. The measures will link [Reuters report] 67 colleges and universities with 141 correctional facilities to provide education and training offer federal Pell grants to prisoners, and offer grants to organizations to offer occupational training and apprenticeship opportunities. Other programs will also provide funding to organizations to provide job training to young adults, develop career pathways programs for residents of high-poverty areas, and provide mentorship and career training to high school students at risk of dropping out.

June 26, 2016 | Permalink | Comments (0)

Saturday, June 25, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here. The usual disclaimers apply.

Rank Downloads Paper Title
1 209 It's Too Complicated: The Technological Implications of IP-Based Communications on Content/Non-Content Distinctions and the Third Party Doctrine
Steven M. Bellovin, Matt Blaze, Susan Landauand Stephanie K. Pell
Columbia University - Department of Computer Science, University of Pennsylvania - School of Engineering & Applied Science, Worcester Polytechnic Institute and West Point--Army Cyber Institute
Date posted to database: 8 Jun 2016 [3rd last week]
2 186 Prosecutorial Analytics
Jason Kreag
University of Arizona Rogers College of Law
Date posted to database: 25 Apr 2016 
3 183 Why Vague Sentencing Guidelines Violate the Due Process Clause
Kelsey Heilman
Government of the United States of America - U.S. District Court for the District of Oregon
Date posted to database: 1 May 2016 [4th last week]
4 177 The Nature and Function of Prosecutorial Power
David Alan Sklansky
Stanford University
Date posted to database: 27 Apr 2016 [6th last week]
5 147 The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe
Terry Skolnik
University of Toronto, Faculty of Law, Students
Date posted to database: 24 May 2016 [7th last week]
6 125 False Confessions in the Twenty-First Century
Richard A. Leo and Brian L. Cutler
University of San Francisco - School of Law and University of Ontario Institute of Technology (UOIT)
Date posted to database: 5 May 2016 [10th last week]
7 123 Penal Welfare and the New Human Trafficking Intervention Courts
Aya Gruber, Amy J. Cohen and Kate Mogulescu
University of Colorado Law School, Ohio State University (OSU) - Michael E. Moritz College of Law and The Legal Aid Society
Date posted to database: 8 May 2016 [9th last week]
8 116 The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing
Elizabeth Richardson, Pauline Spencer andDavid B. Wexler
Monash University - Faculty of Law, Magistrates' Court of Victoria and University of Puerto Rico - School of Law
Date posted to database: 19 May 2016 [new to top ten]
9 176 The Heavy Costs of High Bail: Evidence from Judge Randomization
Arpit Gupta, Christopher Hansman and Ethan Frenchman
Columbia University - Columbia Business School, Columbia University, Barnard College - Department of Economics and Maryland Office of The Public Defender
Date posted to database: 6 May 2016 [5th last week]
10 137 Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops
Stephanos Bibas
University of Pennsylvania Law School
Date posted to database: 7 May 2016 [8th last week]

June 25, 2016 | Permalink | Comments (0)

"Applying the Fourth Amendment to placing calls from a locked phone to identify its owner"

Orin Kerr has this post at The Volokh Conspiracy. In part:

This question has come up in the “Gone Girl” kidnapping case currently before Judge Troy Nunley in Sacramento. As I understand the facts from the SacBee story, the defendant, Matthew Muller, allegedly attempted a home burglary months after the kidnapping. The homeowner fought back, and Muller fled. In the course of fleeing, Muller left his locked cellphone behind.

Cellphones allow emergency calls without unlocking the phone. The police took advantage of this and used the phone to call 911. Placing the call necessarily sent the phone’s number to 911, and investigators then obtained the number from 911. The number was registered as a Verizon cellphone number. The police went to Verizon to find out who the registered user was. After serving a warrant on Verizon for this information, the police learned that the phone was registered to Muller’s stepfather. That led the police to Muller.

June 25, 2016 | Permalink | Comments (0)

Friday, June 24, 2016

"Arkansas Supreme Court upholds lethal injection protocol and secrecy law"

From Jurist:

The Arkansas Supreme Court [official website] upheld [opinion, PDF] a state law Thursday that allows for the type, manufacturers and sellers of drugs used for lethal injections to be kept confidential. This ruling would allow the execution of eight death row inmates if the stays on their execution dates can be lifted before one of the drugs in the three-drug protocol expires on June 30. A group of the death row inmates had argued that the drug secrecy laws had the potential to lead to cruel and unusual punishment and that the state had failed to keep their pledge to share that information.

June 24, 2016 | Permalink | Comments (0)

"Acquittal in Freddie Gray Case Casts Doubts About Future Trials"

From The New York Times:

The acquittal on Thursday of a Baltimore police officer charged with murder and six other crimes in the death of Freddie Gray has dealt a devastating blow to the prosecution, legal experts say, and raises questions about whether the state should press ahead with the trials of four other officers.

. . .

One calculation, if she does go forward, is whether to seek the removal of Judge Williams from future trials. The judge, a former federal prosecutor who tried police misconduct cases for the Justice Department’s Civil Rights Division, has presided over all three trials so far. The first trial was a jury trial; the other two were tried by the judge, at the request of the officers. In the process, though, he has tipped his hand as to his thinking about some of the other defendants.

 

 

June 24, 2016 | Permalink | Comments (0)

Bhatt-Mehta & Lenga-Long on The Trafficking Victims' Protection Act of 2000

Mala Bhatt-Mehta and Jennifer Lenga-Long (University of Washington School of Law and University of Washington School of Law) has posted Does the Trafficking Victims’ Protection Act of 2000 Have an Impact on the Anti-Trafficking Legislation in the Philippines? on SSRN. Here is the abstract:

Carla’s Story: Carla was 9 years old when she became a victim of human trafficking. She was asked to take off her clothes in front of a camera. Carla’s family was struggling. Carla’s neighbor in Cebu (her hometown in the Philippines), asked her whether she was interested in earning some money, she jumped at the opportunity. Unfortunately, little did poor Carla know that she would end up working in conditions that took sexual advantage of her and stripped her off her innocence.

A Waitress’s Story: A friend of a friend promises a well-paid waitressing job abroad to a young girl from a poor Filipino family. Of course, the girl accepts this offer because she wants to help her family. The paperwork for her to work in the Middle East is completed in record time. However, the young girl must get through Malaysia illegally. As the sun sets, she gets on a banca (traditional Filipino boat) from Tawi-tawi (southern part in the Philippines) to Sabah, Malaysia. The poor girl finds herself in a dark, cramped space, where her wrists are covered in metal. A box of condoms is handed to her and she is informed that if she wants to eat she will have to engage in sexual activity. To her greatest dismay, the poor, young girl who hoped to assist her family’s household income has now fallen into the nasty hands of human trafficking.

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June 24, 2016 | Permalink | Comments (0)

Evans on Hobby Lobby and the Death Penalty

Danieli Evans has posted Religious Objections to the Death Penalty after Hobby Lobby (Stanford Law & Policy Review, Vol. 27, No. 1, 2015) on SSRN. Here is the abstract:

In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty. I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.

June 24, 2016 | Permalink | Comments (0)

Thursday, June 23, 2016

Amarshi on Canadian Telewarrants

Hafeez S Amarshi (Public Prosecution Service of Canada) has posted Facial Attacks on Telewarrants: Failure to Define 'Impracticable' on SSRN. Here is the abstract:

The use of telewarrants is a significant tool for law enforcement in Canada. They are guided by the Criminal Code that lays out specific requirements before police can obtain a search warrant by fax, dispensing with the need for personal appearance before a justice. Telewarrants are most often sought when police seek to execute a warrant after court hours or if there is a particular urgency. Although the courts have strictly read the preconditions outlined in section 487.1(1) as mandatory, the failure of the police to follow those conditions is not necessarily fatal to the admission of evidence by trial courts.

June 23, 2016 | Permalink | Comments (0)

Mayson on Collateral Consequences and the Preventive State

Sandra G. Mayson has posted Collateral Consequences and the Preventive State (91 Notre Dame L. Rev. 301 (2015)) on SSRN. Here is the abstract:

Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.

This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.

June 23, 2016 | Permalink | Comments (0)

Bowman on "Loss" Under the Federal Sentencing Guidelines

Bowman frankFrank O. Bowman III (University of Missouri School of Law) has posted 'Loss' Revisited: A Guarded Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline (Missouri Law Review, Forthcoming) on SSRN. Here is the abstract:

This article discusses "loss," the concept at the heart of the Federal Sentencing Guidelines section governing economic crimes, Section 2B1.1. It notes the common criticism that "loss" plays too large a role in federal economic crime sentencing, but distinguishes between the sound observation that structural problems in Section 2B1.1 cause loss amount to generate too many "offense levels" and critiques of the core definition of "loss."

The article summarizes previous suggestions made by the author and others to address the arguably disproportionate role played by "loss," but it focuses primarily on the Guidelines' definition of "loss," whether actual or intended. The article defends the fundamental soundness of the existing "loss" definition, but suggests some points on which improvements might be made, particularly to the definition of intended loss.

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June 23, 2016 | Permalink | Comments (0)

Opinion precluding ACCA enhancement based on burglary law broader than generic burglary

Justice Kagan delivered the opinion of the Court in Mathis v. United States. Justices Kennedy and Thomas filed concurring opinions. Justice Breyer, joined by Justice Ginsburg, dissented. Justice Alito also dissented.

June 23, 2016 | Permalink | Comments (0)

Opinion permitting warrantless breath tests but not blood tests incident to DUI arrest

Justice Alito delivered the opinion for the Court in Birchfield v. North Dakota, which also precludes criminalizing the refusal to take the blood test or inducing compliance through the threat of criminal prosecution. Justice Sotomayor, joined by Justice Ginsburg, concurred in part and dissented in part. Justice Thomas concurred in part in the judgment and dissented in part.

June 23, 2016 | Permalink | Comments (0)

Grossman on Reasonable Suspicion

Grossman-stevenSteven P. Grossman (University of Baltimore - School of Law) has posted Whither Reasonable Suspicion: The Supreme Court's Functional Abandonment of the Reasonableness Requirement for Fourth Amendment Seizures (American Criminal Law Review, Vol. 53, pp 349-76, 2016) on SSRN. Here is the abstract:

Although the United States Supreme Court’s approach to issues governing application of the probable cause requirement of the Fourth Amendment has mutated over the years, at least one aspect of its approach has remained constant. Before information leading to probable cause or its lesser iteration of reasonable suspicion is found to exist, the government must demonstrate in some meaningful way the reliability of the person providing the information or of the information itself. Lacking such reliability, no search or seizure based on probable cause or reasonable suspicion is permitted.

In its recent decision in Navarette v. California, the Court largely abandoned the requirement that this reliability be meaningful. It did so by holding that an anonymous 911 call without any impactful corroboration could supply the reasonable suspicion necessary to effect a seizure protected by the Fourth Amendment. This abandonment significantly increases the ability of the government to deprive a person of his or her freedom in conducting a seizure.

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June 23, 2016 | Permalink | Comments (0)

Wednesday, June 22, 2016

Agan & Starr on Employment and Criminal Records

Amanda Y. Agan and Sonja B. Starr (Princeton University - Department of Economics and University of Michigan Law School) have posted Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment on SSRN. Here is the abstract:

“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race. To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.

Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race.

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June 22, 2016 | Permalink | Comments (0)

Hewitt on IoT Mandatory Backdoors

Carl Hewitt (MIT) has posted Security Without IoT Mandatory Backdoors: Using Distributed Encrypted Public Recording to Catch & Prosecute Suspects on SSRN. Here is the abstract:

This article explains how Citizens' civil liberties can be preserved by banning Internet of Things (IoT) mandatory backdoors while at the same time effectively catching and prosecuting suspects (such as alleged "terrorists").

IoT devices are becoming pervasive in all aspects of life including personal, corporate, government, and social. Adopting IoT mandatory backdoors ultimately means that security agencies of each country surveil and control IoT in their own country and perhaps swap surveillance information with other countries. Burr-Feinstein have proposed that it must be possible for security agencies to be able to secretly access and take control of any individual IoT device. However adopting their proposal would make it very difficult to prevent security agencies from accessing and controlling large numbers of devices and abusing their surveillance and control capabilities. Also, adopting IoT mandatory backdoors would be corrosive to civil liberties because any IoT device could be secretly accessed and controlled without any awareness by those using the device. A critical security issue is that after a backdoor has been exercised to take control of a citizen's IoT device without their awareness, the device thereby becomes somewhat less secure because of potential vulnerabilities in the new virtualized system used to take control of the device.

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June 22, 2016 | Permalink | Comments (0)

Ristroph on Regulation, Resistance, and Criminal Procedure

Ristroph_aliceAlice Ristroph (Seton Hall University - School of Law) has posted Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure (Boston University Law Review, Vol. 95, 2015) on SSRN. Here is the abstract:

As soon as modern constitutional criminal procedure appeared, the police were at center stage. In judicial opinions and in academic commentary, the Fourth Amendment and some provisions of the Fifth and Sixth Amendments have been framed for decades as regulations of the police. The regulatory project is now widely viewed as a failure, and some judges and many commentators seem ready to abandon, or at least scale back dramatically, the whole field of constitutional criminal procedure. But the framing of that field as police regulation was always a mistake. The enterprise of constitutional criminal procedure is, by design, a vehicle for defendants to resist punishment rather than a mechanism to regulate police. The prototypical Fourth or Fifth Amendment claim alleges police misconduct, to be sure, but the immediate goal is not better policing. Instead, the prototypical claim is an individual’s act of resistance against state coercion: it is an effort to avoid punishment by claiming that the state has overstepped its powers. Regulatory effects of such a claim are derivative of, and subsidiary to, the resistance. Importantly, the defendant's act of resistance is itself constitutionally sanctioned. The Bill of Rights sets conditions for legitimate punishment, including minimum standards for investigative procedures. Thus it is open to individual defendants to resist punishment by alleging an unreasonable search or seizure, or an unconstitutional interrogation. We should recognize and even celebrate this resistance as part of a truly adversarial system. Even when punishment is ultimately and appropriately imposed, the resistance itself pushes the state to articulate and defend the principles of coercion that underlie the operation and enforcement of the criminal law.

June 22, 2016 | Permalink | Comments (0)

"Lawsuit accuses Louisiana judge of running debtors' prison"

From Jurist:

A lawsuit [complaint, PDF] is accusing a Louisiana judge of running a modern-day debtors' prison. The lawsuit, filed Tuesday by the Southern Poverty Law Center [advocacy website], alleges that Judge Robert Black is sending poor defendants to jail when they cannot pay fines and charging them an "extension fee" to avoid jail time. The lawsuit contents that the judge routinely jails people who cannot pay fines for minor offenses without verifying why they cannot pay. One example [AP report] given is of a man who was fined $450 for stealing $5 worth of groceries and then jailed for four hours when he could not pay the fine or extension fee until a cousin paid the fee. Beyond just jailing the poor, the lawsuit contends that the extension fee created by Black to allow defendants to buy additional time in order to pay their fines is illegal and not authorized by state law. The lawsuit is seeking a declaration condemning Black and the Bogalusa City Court for their actions and an injunction against their practices.

June 22, 2016 | Permalink | Comments (0)

"‘Who’s Miranda?’ Suspect in Kayak Killing Didn’t Understand Her Rights, Lawyer Says"

From The New York Times:

Angelika Graswald, the woman accused of killing her fiancé while on a kayak outing last year, asked an investigator who “Miranda” was — a few hours after she had been read her Miranda rights, according to testimony in a pretrial hearing here on Tuesday.

. . .

During the hearing, Mr. DeQuarto said that he had read Ms. Graswald her Miranda rights only after they had spoken for more than three hours at the police barracks in Orange County. The questioning came 10 days after Mr. Viafore’s kayak had capsized in the river; an autopsy report ruled the cause of death a drowning and the manner of death homicide, citing the “kayak drain plug intentionally removed by other.”

. . .

A native Russian speaker, Ms. Graswald arrived in the United States as an au pair more than 15 years ago. Mr. Portale has portrayed Ms. Graswald as struggling with English, but during the police investigation she demonstrated a sophisticated grasp of the language.

In a video clip of the interrogation shown last fall on ABC’s “20/20,” a detective asked: “When you watched him in the water, was a part of you saying, ‘My worries are going away now?’ Were you almost ...” He paused, but she filled in the word, offering “euphoric.” The detective said, “Euphoric that he was gone — you felt that way?” She answered, “I still do.”

June 22, 2016 | Permalink | Comments (0)

Medwed on Post-Conviction Prosecutors and Capital Punishment

Medwed danielDaniel S. Medwed (Northeastern University - School of Law) has posted Grand Finality: Post-Conviction Prosecutors and Capital Punishment (Chapter in Final Judgments: The Death Penalty and American Law, Austin Sarat, ed. (Cambridge University Press, Forthcoming)) on SSRN. Here is the abstract:

In the years since the United States Supreme Court permitted reinstatement of the death penalty, scholars have paid close attention to the question of why prosecutors charge a crime as a capital offense. But the scholarly community has largely ignored some related questions. Why do many prosecutors assigned to handle the appellate and post-conviction phases of a capital case — those entrusted with the task of defending death — fight tooth-and-nail to preserve the trial outcome? Even more, why might those prosecutors reject defense overtures to join in a request for an evidentiary hearing or new trial in situations where they had nothing to do with the original charging decision and have misgivings about the propriety of the trial proceedings?

As this author has discussed in depth elsewhere, these reactions may be influenced by a range of professional, political, and psychological factors. This Chapter asserts that another explanation should be added to the mix in the capital context: how the value of “finality” plays a key role in prompting prosecutors to neglect to reexamine convictions.

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June 22, 2016 | Permalink | Comments (0)

Fagan, Tyler & Meares on Street Stops and Police Legitimacy in NY

Jeffrey Fagan , Tom Tyler  and Tracey Meares (Columbia Law School, Yale University - Law School and Yale University - Law School) have posted Street Stops and Police Legitimacy in New York (in Jacqueline E. Ross and Thierry Delpeuch (eds.), Comparing the Democratic Governance of Police Intelligence: New Models of Participation and Expertise in the United States and Europe 203 (2016)) on SSRN. Here is the abstract:

Police-initiated citizen encounters in American cities often are non-neutral events. Encounters range from routine traffic stops to police interdiction of pedestrians during their everyday movements through both residential and commercial areas to aggressive enforcement of social disorder offenses. As a crime detection and control strategy central to the “new policing,” these encounters often are unproductive and inefficient. They rarely result in arrest or seizure of contraband, and often provoke ill will between citizens and legal authorities that discourages citizen cooperation with police and compliance with law. In this chapter, we describe the range of potentially adverse reactions or harms that SQF or ‘street’ policing may produce. We next link those harms to a broader set of normative concerns that connect dignity, harm and police legitimacy. In the third section we review the evidence that connects citizen views of police – as well as their experience with police – to their perceptions of the legitimacy of the police and criminal legal institutions generally. We also review the evidence that links those perceptions to how citizens behave with respect to law, and identify the consequences of adverse reactions of citizens to harsh forms of street policing. We discuss alternative frameworks for regulation and democratic control of the new policing to link police legitimacy with guardianship of communities.

June 22, 2016 | Permalink | Comments (0)