CrimProf Blog

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

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Tuesday, September 16, 2014

"Confession in Etan Patz’s Killing"

From The New York Times:

It was 2 a.m. on May 24, 2012, nearly 33 years to the day that 6-year-old Etan vanished on his way to school. His 1979 disappearance and presumed murder haunted New York City for decades, and forever changed perceptions across the country about how closely children should be watched.

. . .

Over the course of 24 hours, in police interviews in Camden, N.J., and then in New York, Mr. Hernandez confessed to killing Etan. The videotaped confession made in the city was made public for the first time at a hearing on Monday in State Supreme Court in Manhattan. . . .

Mr. Hernandez’s lawyer is seeking to have the confessions thrown out, suggesting that his client, who has an I.Q. of about 70 and a history of mental illness, gave a false or coerced confession. The matter is crucialto the prosecution, since there is no known physical evidence linking Mr. Hernandez to the crime.

September 16, 2014 | Permalink | Comments (0)

Monday, September 15, 2014

Kamali on Felony and Intentionality in Medieval England

Elizabeth Papp Kamali has posted Felonia Felonice Facta: Felony and Intentionality in Medieval England (Criminal Law and Philosophy (2014 Forthcoming)) on SSRN. Here is the abstract:

This paper explores the meaning of the word “felony” in thirteenth and fourteenth century England, i.e., during the first two centuries of the English criminal trial jury. To compile a working definition of felony, the paper presents examples of the language of felony drawn from literary and religious sources, in addition to considering the word’s more formulaic appearance in legal records. The paper then analyzes cases ending in acquittal or pardon, highlighting the factors that might take a criminal case out of the realm of felony. It suggests that the very definition of felony and felonious behavior — and thus the essence of criminal responsibility — may be bound up with the idea of mens rea during this period. The paper aims to uncover broader societal understandings of the nature of guilt and innocence, and to highlight connections and disconnections between the formal criminal law of felony, with its heavy emphasis on capital punishment, and popular and ecclesiastical understandings of culpability.

September 15, 2014 | Permalink | Comments (0)

Pratt on Schneckloth v. Bustamonte

Alexandra L. Pratt has posted The Need for 'Knowing': Why the Iowa Supreme Court Should Reject Schneckloth v. Bustamonte and Impose a 'Knowing' Standard to Evaluate the Voluntariness of Consent Under Article One, Section Eight (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

More than forty years ago, the United States Supreme Court decided Schneckloth v. Bustamonte. The decision, imposing a “totality of the circumstances” test to evaluate the voluntariness of consent, remains the binding federal standard and the subject of pervasive criticism — both then and now. In addition, consent continues to be law enforcement’s most common method to evade the constitutional requirements of both a warrant and probable cause. In its wake, state supreme courts remain free to independently interpret analogous state provisions and to either adhere to — or provide greater search protection than — the “totality” standard. Iowa has not yet resolved which standard article one, section eight necessitates. This Note argues that the analytical faults of Schneckloth, coupled with the numerous benefits and increased protections that a heightened standard provides, dictate that Iowa should adopt the standard Schneckloth rejected: “knowing” consent. Under this test, law enforcement must show that a suspect knew of his right to refuse consent to search.

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September 15, 2014 | Permalink | Comments (0)

Collins on Domestic Violence


Collins erinErin R. Collins (New York University School of Law) has posted The Evidentiary Rules of Engagement in the War Against Domestic Violence (New York University Law Review, May 2015, Forthcoming) on SSRN. Here is the abstract:

Our criminal justice system promises defendants a fair and just adjudication of guilt, regardless of the character of the alleged offense. Yet, from mandatory arrest to “no-drop” prosecution policies, the system’s front-end response to domestic violence reflects the belief that it differs from other crimes in ways that permit or require the adaptation of criminal justice response mechanisms. Although scholars debate whether these differential responses are effective or normatively sound, the scholarship leaves untouched the presumption that, once the adjudicatory phase is underway, the system treats domestic violence offenses like any other crime.

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September 15, 2014 | Permalink | Comments (0)

Sunday, September 14, 2014

"Is it a crime to expose someone to HIV?"

From Salon. In part:

For as long as there have been sexually transmitted diseases, there have been ethical questions about disclosure and transmission. The CDC says that there are currently laws pertaining persons with HIV in 33 US states. In 24 of them, a person who knows he or she is positive is required to disclose that information to a sexual partner, and in 14, he or she is required to tell it to a needle sharing partner. But it also notes that most of those laws do not reflect current treatment protocols for HIV, and that “most do not account for HIV prevention measures that reduce transmission risk, such as condom use.”

September 14, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 384 Gifts, Hospitality & the Government Contractor 
Jessica Tillipman 
The George Washington University Law School 
Date posted to database: 18 Jul 2014 
2 344 The Consequences of Error in Criminal Justice 
Daniel Epps 
Harvard Law School 
Date posted to database: 9 Jul 2014 
3 344 Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health 
Scott Cunningham andManisha Shah 
Baylor University and UCLA School of Public Affairs 
Date posted to database: 19 Jul 2014 
4 223 Why on Earth Do People Use Bitcoin? 
Catherine Martin Christopher 
Texas Tech University School of Law 
Date posted to database: 25 Jul 2014 
5 198 The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
Michal Gilad 
University of Pennsylvania Law School 
Date posted to database: 19 Jul 2014 
6 189 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 [new to top ten]
7 167 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 [10th last week]
8 160 Morse, Mind, and Mental Causation 
Michael S. Pardo and Dennis Patterson 
University of Alabama School of Law and European University Institute 
Date posted to database: 17 Jul 2014 [9th last week]
9 144 Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons 
Joan Petersilia and Francis T. Cullen 
Stanford University and University of Cincinnati 
Date posted to database: 24 Jun 2014 [6th last week]
10 143 Moneyball Sentencing 
Dawinder S. Sidhu 
University of New Mexico - School of Law 
Date posted to database: 12 Jul 2014 [8th last week]

September 14, 2014 | Permalink | Comments (0)

Saturday, September 13, 2014

"Ray Rice Case Draws Attention to a Crime Often Obscured"

From The New York Times:

In the criminal justice system, however, many of those who routinely handle domestic violence cases say the episode is simply a highly public example of a well-known fact: Violent domestic assaults rarely lead to jail time or serious legal consequences, especially when they involve offenders like Rice, who had no prior record. . . .

Despite decades of increased public attention on domestic violence, many first-time assault cases are still handled as noncriminal matters across the country, legal experts say. Even in New Jersey, one of the states with the most stringent laws and court rules, offenders often walk away with little more than court-ordered counseling in the small percentage of cases that are elevated to involve felony charges, as Rice’s case was.

September 13, 2014 | Permalink | Comments (0)

"Feds release guidance on police body cameras"

From Politico:

Body-worn cameras on police officers can increase accountability of police and improve evidence gathering, but if departments are going to use them they must address concerns of officers and the community, according to guidance released by the Justice Department Friday.

. . .

The report makes 33 recommendations to police agencies on implementing body-worn cameras, including determining which officers will wear the cameras, when and where they will record, how to communicate to the community and subjects of the recording, what kind of discretion officers have in recording and what the storage procedures are.

September 13, 2014 | Permalink | Comments (0)

Friday, September 12, 2014

Umsted on Deterring Racial Bias Through Sentencing

Zane Umsted has posted Deterring Racial Bias in Criminal Justice Through Sentencing (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In 2013, the American Civil Liberties Union (“ACLU”) published a report revealing stark racial disparities in the national enforcement of marijuana laws. The report suggested that police officers often use their law enforcement discretion to selectively patrol predominantly African American communities. This Note examines this and other methods by which police officers — and prosecutors — can, and frequently do, use their discretionary powers in a racially selective manner. Because the criminal justice system currently provides little institutional protection against discriminatory exercise of police and prosecutorial discretion, this Note proposes a two-step revision to federal sentencing practices to empower federal judges to combat racially biased law enforcement. By removing a provision from the Federal Sentencing Guidelines and adding a component to presentence reports, sentencing judges will gain the discretion necessary to issue lighter sentences to offenders subjected to racially biased law enforcement, which will effectively limit and deter racial bias in the future.

September 12, 2014 | Permalink | Comments (0)

"A Trial Concludes, but for South Africans, the Debate May Be Just Starting"

From The New York Times:

The murder trial of the Paralympic star Oscar Pistorius lurched to a close on Friday when he was convicted of culpable homicide in the shooting death last year of his girlfriend, Reeva Steenkamp. But in a case that reflected South Africa’s complicated obsession with race, crime and celebrity, many South Africans found understanding the verdict to be as difficult as trying to fathom exactly what was in Mr. Pistorius’s mind the night he pulled the trigger.

It is unclear yet whether Mr. Pistorius, who was acquitted of the two more serious murder charges against him, will do time in jail. The sentence for culpable homicide, a crime roughly commensurate with involuntary manslaughter, is left to the discretion of the judge and can range from no jail time to, in the most extreme cases, 15 years in prison. Lawyers say that often the sentences are very light.

September 12, 2014 | Permalink | Comments (0)

Mungan & Klick on Reducing Guilty Pleas Through Exoneree Compensations

Murat C. Mungan and Jonathan Klick (Florida State University - College of Law and University of Pennsylvania Law School) have posted Reducing Guilty Pleas Through Exoneree Compensations on SSRN. Here is the abstract:

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals' plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals' incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.

September 12, 2014 | Permalink | Comments (0)

Archer on Cruel and Unusual Punishment in Iowa

Elisabeth A. Archer has posted Establishing Principled Interpretation Standards in Iowa's Cruel and Unusual Punishment Jurisprudence ​(Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In 2009, the Iowa Supreme Court decided State v. Bruegger, dramatically changing the court’s cruel and unusual punishment precedent under article I, section 17 of the Iowa Constitution. Prior to Bruegger, the court interpreted article I, section 17 in lockstep with federal Eighth Amendment interpretation, deeming the two provisions identical in scope, import, and purpose. However, Bruegger inexplicably altered this precedent by applying article I, section 17 more stringently than the Eighth Amendment. Defendants in Iowa began seeking heightened protection under the Iowa Constitution — protection Bruegger’s new interpretation seemingly afforded. When the Iowa Supreme Court decided State v. Null and State v. Pearson on August 16, 2013, and State v. Lyle on July 18, 2014, it solidified Bruegger’s standardless interpretation and again failed to enunciate a principled basis for interpreting article I, section 17 independent of the Eighth Amendment. These recent cases do not explain what in the Iowa Constitution justifies the new interpretation, or how the new interpretation will be applied to future cases. By evaluating the problems resulting from Null, Pearson, and Lyle, demonstrating several bases supporting adherence to federal interpretation, and suggesting alternative methods of interpretation, this Note demonstrates why the Iowa Supreme Court should reject Null, Pearson, and Lyle’s standardless interpretation and adopt a principled basis for independent interpretation of article I, section 17 in the future.

September 12, 2014 | Permalink | Comments (0)

Thursday, September 11, 2014

Wright on Moore on Causation and Responsibility

Wright richardRichard W. Wright (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Moore on Causation and Responsibility: Metaphysics or Intuition? (LEGAL, MORAL, AND METAPHYSICAL TRUTHS: THE PHILOSOPHY OF MICHAEL MOORE (Kimberly Ferzan & Stephen Morse, eds., Oxford University Press, 2015 Forthcoming)) on SSRN. Here is the abstract:

This paper was prepared for a festschrift in honor of Michael Moore to be published by Oxford University Press. Moore's magnum opus, Causation and Responsibility, amply demonstrates his encyclopedic knowledge of the relevant sources in law and philosophy and his analytical skill. Much can be learned from careful, critical reading.

However, I argue, Moore relies too much on intuition -- more specifically, his own -- in developing his account of causation and its pervasive and (he claims) dominant role in attributions of legal responsibility. Focusing on the NESS account that I have elaborated, he rejects "generalist" accounts of causation, which analyze singular instances of causation as instantiations of causal (natural) laws, instead opting for a "primitivist singularist" account, according to which we simply recognize causation when we see it in each particular instance without any even implicit reference to causal laws or any other "reductionist" test. He erroneously treats the "substantial factor" criterion in the first and second Restatements of Torts (which is properly strongly criticized and rejected in the third Restatement) as being such a primitivist singularist account. In addition, he seeks to replace all of the traditional normative limitations on legal responsibility with a supposed causal analysis, based on the "scalarity" of causation.

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September 11, 2014 | Permalink | Comments (0)

"John Doe" investigation of Wis. Gov. Walker

From Legal Newsline:

Gov. Walker, a Republican, is at the center of a sweeping and secretive four-year criminal investigation by Milwaukee District Attorney John Chisholm, a Democrat, and other prosecutors, that is now focused on alleged “illegal coordination” of campaign funding by the governor and 29 independent nonprofits — virtually the entire conservative movement in Wisconsin.

Those conservatives say that the long-running criminal investigation has unconstitutionally prevented them and their allies from participating in politics and tilted the political field to favor Democrats, whose campaign practices are almost identical to the Republicans’ but largely ignored by the prosecutors. The probe, conservatives say, has forced them to pay hundreds of thousands of dollars in legal bills and harassed some of them with pre-dawn raids on their suburban homes that seized cell phones and computers of all family members, including a child’s iPad. Prosecutors imposed “gag orders” to prevent the investigation’s targets from publicly complaining.

. . .

A “John Doe” is a legal proceeding under Wisconsin law that allows prosecutors, with a judge’s approval, to require complete secrecy from any one involved. This “gag order” provision, almost unique in American law, effectively disables targets or witnesses from publicly defending themselves or responding to damaging leaks.

September 11, 2014 | Permalink | Comments (0)

Osler & Bennett on 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)) have posted A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion (7 DePaul Journal for Social Justice 117 (2014)) on SSRN. Here is the abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

September 11, 2014 | Permalink | Comments (0)

Kinports on Rosemond and Complicity

Kinports kitKit Kinports (Penn State Law) has posted Rosemond, Mens Rea, and the Elements of Complicity (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

The confluence of two widely invoked federal statutes – one governing accomplice liability, the other imposing a sentencing enhancement when firearms are involved in a violent or drug-trafficking crime – reached the Supreme Court this past Term in Rosemond v. United States. The Court’s analysis of the mens rea issues raised in that case starkly illustrates the confusion characterizing this area of complicity law, which has attracted surprisingly little attention from courts, legislators, or scholars. The lack of clarity is particularly acute for crimes like the weapons offense in Rosemond that can plausibly be interpreted to include a circumstance element. This Article attempts to fill the gap in the law and academic literature, analyzing the competing ways in which the elements of the crime in question in Rosemond can be classified. Moving beyond the confines of Rosemond, the Article proposes generally that the mens rea of purpose traditionally required for accomplice liability extend to every conduct element of a crime, as well as to circumstance elements if criminal law narrowly defines the concept of conduct as the defendant’s willed movements. If, however, the line between conduct and circumstance elements is drawn such that conduct is more broadly conceived, this Article would attach the same mens rea vis-a-vis attendant circumstances to both the principal and her accessories. This approach, the Article concludes, appropriately limits accomplice liability to those demonstrating sufficient culpability with respect to the gravamen of the crime and thus preserves the rationales underlying complicity law’s imposition of a relatively onerous mens rea burden on the prosecution.

September 11, 2014 | Permalink | Comments (0)

Wednesday, September 10, 2014

"Group of world leaders call for end to criminal drug war and urges experiment with legalization"

Doug Berman has this post at Sentencing Law & Policy, excerpting an A.P. article. In part:

The Global Commission on Drug Policy said traditional measures in the "war on drugs" such as eradicating acres of illicit crops, seizing large quantities of illegal drugs, and arresting and jailing violators of drug laws have failed. The commission's 45-page report pointed to rising drug production and use, citing the U.N. Office on Drugs and Crime's estimate that the number of users rose from 203 million in 2008 to 243 million in 2012.

The commission includes former U.N. Secretary-General Kofi Annan; the former presidents of Brazil, Chile, Colombia, Mexico, Poland, Portugal and Switzerland; British tycoon Richard Branson and former U.S. Federal Reserve chief Paul Volcker. It was established in 2010 with a stated purpose of promoting "science-based discussion about humane and effective ways to reduce the harm caused by drugs to people and societies."

September 10, 2014 | Permalink | Comments (0)

Jones et al. on Law and Neuroscience

Owen D. Jones Richard J. Bonnie BJ Casey Andre Davis David L. Faigman Morris B. Hoffman Read Montague Stephen Morse Marcus E. Raichle Jennifer A. Richeson Elizabeth S. Scott Laurence Steinberg Kim A. Taylor-Thompson Anthony D. Wagner and Gideon 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) have posted Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission on SSRN. Here is the abstract:

President Obama charged the Presidential Commission for the Study of Bioethical Issues to identify a set of core ethical standards in the neuroscience domain, including the appropriate use of neuroscience in the criminal-justice system. The Commission, in turn, called for comments and recommendations. 

The MacArthur Foundation Research Network on Law and Neuroscience submitted a consensus statement, published here, containing 16 specific recommendations. These are organized within three main themes: 1) what steps should be taken to enhance the capacity of the criminal justice system to make sound decisions regarding the admissibility and weight of neuroscientific evidence?; 2) to what extent can the capacity of neurotechnologies to aid in the administration of criminal justice be enhanced through research?; and 3) in what additional ways might important ethical issues at the intersection of neuroscience and criminal justice be addressed?


September 10, 2014 | Permalink | Comments (0)

Ohlin on Cyber-Causation

Ohlin-JensJens David Ohlin (Cornell University - School of Law) has posted Cyber-Causation (CYBERWAR: LAW & ETHICS FOR VIRTUAL CONFLICTS, Jens David Ohlin, Claire Finkelstein, and Kevin Govern, eds., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

This Chapter argues that the increasing threat and deployment of cyber-weapons will force (or should force) the law of war to develop a sophisticated and nuanced account of causation. Part I will explain in greater detail why causation is largely irrelevant (or at the very least uncontroversial) to the basic structure of traditional International Humanitarian Law (IHL). Part II will then introduce various cyber-attack scenarios that will trigger immense pressure on IHL to develop an account of causation that is consistent with the unique ways that IHL is adjudicated. I will place less emphasis on which account of causation is abstractly correct and will instead support the more modest claim that cyber-attacks implicate the concept of causation in previously unseen ways. The result is the emergence of a primary research agenda for IHL at both levels: theory (scholarship) and codification (via state practice and potential treaty provisions). Finally, Part III will explain why some traditional theories of causation cannot be reflexively and uncritically grafted into IHL. Simply put, IHL demands a level of publicity and transparency that generates a significant asymmetry as compared to other fields of domestic law, where the fact-finding machinery of domestic courts is more suited to parsing complex causal phenomena. By deploying George Fletcher’s famous distinction between the pattern of subjective criminality and the pattern of manifest criminality, I will show that the former is appropriate for the criminal law’s extensive fact-finding system, but IHL, burdened by the lack of fact-finding resources, must rely on the pattern of manifest criminality. Cyberwar presents an especially acute case of this general phenomenon within IHL; the causal processes of a cyber-attack and its downstream consequences are difficult to chart, thus suggesting that the law governing cyberwar should place a premium on transparent rules that, like the pattern of manifest criminality, can be applied by a reasonable third-party observer.

September 10, 2014 | Permalink | Comments (0)

"States Lead - Will the Feds Follow?"

Megan Quattlebaum has this post at The Huffington Post. In part:

In the criminal justice reform arena, states have taken the lead. From rolling back harsh mandatory minimum sentences (at least 29 states have done so since 2000) to decreasing their prisons' populations (New York's declined 26 percent between 1999 and 2012, and violent crime rates fell) states are taking steps to be smart on crime.

Once a leader, the federal government now lags behind the states in criminal justice innovation. Congress has passed some laudable initiatives in recent years, including the Fair Sentencing Act, which reduced the disparity in sentencing for crack and powder cocaine offenses, and the Second Chance Act, which provided funding for reentry services. But the federal prison population nonetheless continues its seemingly inexorable rise, from 25,000 inmates in 1980 to about 219,000 today.

September 10, 2014 | Permalink | Comments (0)