CrimProf Blog

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

Saturday, March 13, 2010

Back to the future on sentencing disparity

Doug Berman at Sentencing Law and Policy has an interesting post on the troubling implications of a recently released report by the U.S. Sentencing Commission indicating that the post-Booker increase in sentencing discretion has led to an increased correlation between sentence length and "the demographic characteristics" of some offenders. Doug's preliminary thought:

Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges.  I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders. 

March 13, 2010 | Permalink | Comments (0)

Objections to NYPD database holding information on those frisked and released

Bob Herbert's New York Times column is entitled Big Brother in Blue.

The speaker of the New York City Council and the head of the Council’s Public Safety Committee are calling on Police Commissioner Ray Kelly to get rid of his huge, noxious database of completely innocent New Yorkers who are stopped, questioned and often frisked by the police.

. . .

Ms. Quinn and Mr. Vallone believe it should stop. In a letter this week to Commissioner Kelly, they said that his intent to keep a permanent record of all the information gathered during the stops “raises significant privacy right concerns and suggests that these innocent people are more likely to be targeted in future criminal investigations.”

March 13, 2010 | Permalink | Comments (0)

Friday, March 12, 2010

"Mandatory minimum sentencing busts budgets and bloats non-violent prison rolls"

Deborah Fleischaker, director of state legislative affairs for Families Against Mandatory Minimums, has this piece at Jurist:

[T]here is no evidence to suggest that repealing mandatory sentences would lead to an increase in crime. In fact, states that have significantly reformed mandatory minimums, as Michigan did in 1998 and 2003, have not experienced increasing levels of crime. More and more states - notably, both red and blue states - are employing proven alternatives, such as drug courts and risk-based sentencing policies, which are more effective and cost-efficient than lengthy, mandatory sentences, especially when dealing with non-violent drug offenders.

March 12, 2010 | Permalink | Comments (0)

Ainsworth on Zappers

Richard Thompson Ainsworth (Lecturer, Boston University - School of Law) has posted Zappers - Retail VAT Fraud on SSRN. Here is the abstract:

Zappers skim cash sales at retail. Zappers are add-on programs used by merchants with electronic cash registers (ECRs) or point-of-sale (POS) systems. Zappers are smart and selective. They do not skim all sales, and they never skim credit card transactions. 

Although they are present in every jurisdiction, Zappers appear to be most widely used in developed economies that combine high levels of cash sales with high rates of consumption tax. Sweden, for example, has a cash-intensive economy, one of the world’s highest VAT rates (25%), and also reports that 70% of the ECRs in the country are either “… constructed for manipulation or have had software installed that allow sales to be manipulated (Zappers)…” 

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March 12, 2010 | Permalink | Comments (2)

Orenstein on Crawford's Effect on Domestic Violence Cases

Orenstein aviva Aviva Orenstein (Indiana University School of Law - Bloomington) has posted Sex, Threats, and Absent Victims: The Lessons of Regina v. Bedingfield for Modern Confrontation and Domestic Violence Cases on SSRN. Here is the abstract:

In 2004, Crawford v. Washington, authored by Justice Antonin Scalia, revolutionized the law of confrontation by requiring that, aside from two discrete exceptions, all testimonial statements (those made with the expectation that they will serve to prosecute the accused) be subject to cross-examination. This new interpretation of the Sixth Amendment confrontation clause has profoundly affected domestic violence cases, making it much harder to prosecute them successfully. 

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March 12, 2010 | Permalink | Comments (1)

Thursday, March 11, 2010

Innovation in Using Brain Imaging to Assess Memories (Kolber)

Here's the actual research, here's a news story, and here's an excerpt from the news story:

In the study, Maguire and her colleagues Martin Chadwick, Demis Hassabis, and Nikolaus Weiskopf showed 10 people each three very short films before brain scanning. Each movie featured a different actress and a fairly similar everyday scenario.

The researchers scanned the participants' brains while the participants were asked to recall each of the films. The researchers then ran the imaging data through a computer algorithm designed to identify patterns in the brain activity associated with memories for each of the films.

Finally, they showed that those patterns could be identified to accurately predict which film a given person was thinking about when he or she was scanned.

The results imply that the traces of episodic memories are found in the brain, and are identifiable, even over many re-activations, the researchers said.

The results reinforce the findings of a 2008 US study that showed similar scans can determine what images people are seeing based on brain activity.


March 11, 2010 | Permalink | Comments (0)

11yo Charged With Murder May Be Tried as Adult (Kolber)

An eleven-year-old boy in Pennsylvania is charged with murdering his future stepmother.  A judge will soon decide whether he will be tried as an adult and possibly face life in prison without the possibility of parole.  (In unrelated cases, the Supreme Court is deciding whether juvenile life-without-the-possibility-of-parole sentences violate the Constitution).  Here's a clip from Good Morning America about the case, including comments from law professor Doug Berman (at about 2minutes 50seconds):

You'll notice that the Good Morning America writers seem to suggest (at about 3 minutes and 10 seconds) that brain imaging evidence was relevant to the Supreme Court's decision in Roper v. Simmons (which held that the death penalty is unconstitutional when applied to those who were younger than 18 at the time they murdered).  While there was quite a bit of brain imaging evidence provided to the Supreme Court, I don't think there's much reason to believe that brain imaging evidence affected the court's decision.


March 11, 2010 | Permalink | Comments (0)

"Criminal Prosecutors Push for Tougher Gang Laws"

The story is at FindLaw. In part:

Police and prosecutors say changes would strengthen the law by defining "criminal gangs" and "criminal gang members," to broaden the types of crime considered gang activity.

. . .

Some of the proposed revision of the existing gang prevention act that would define a member as someone who fits at least two of these categories:

  • You proclaim yourself a member.
  • You use a gang's name, sign or symbol.
  • You associate with other known gang members and demonstrate aspiration to become a member by adopting style of dress, tattoos or hand signals or participate in gang activities.
  • The prison system has determined you are a gang member.
  • Photos or electronic communication provide evidence of your gang membership.

March 11, 2010 | Permalink | Comments (0)

Barkow on Federalism and Criminal Law

Barkow rachel Rachel E. Barkow (New York University - School of Law) has posted Federalism and Criminal Law: What the Feds Can Learn from the States on SSRN. Here is the abstract:

Criminal law enforcement in the United States is multi-jurisdictional. Local, state, and federal prosecutors all possess the power to bring criminal charges. An enduring question of criminal law is how authority should be allocated among these levels of government. In trying to gain traction on the question of when crime should be handled at the federal level and when it should be left to local authorities, courts and scholars have taken a range of approaches. Oddly, one place that commentators have not looked for guidance is within the states themselves to see how they handle the issue of law enforcement allocation. States have the option of vesting authority in a state-level actor – typically, the Attorney General – or in local district or county attorneys. This choice, like the choice between federal and state authority, also requires a balancing of the advantages of centralization against the loss of local values. How states choose to strike that balance is therefore informative for the question of local versus federal authority because states are weighing the same issues. 

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March 11, 2010 | Permalink | Comments (0)

Wednesday, March 10, 2010

Jones, Buckholtz, Schall & Marois on Brain Imaging

Owen D. Jones Jones (Vanderbilt University School of Law), Joshua Buckholtz (Vanderbilt University), Jeffrey D. Schall (Vanderbilt University), and Rene Marois (Vanderbilt University) have posted Brain Imaging for Legal Thinkers: A Guide for the Perplexed (Stanford Technology Law Review, Symposium Issue: "Neuroscience and the Courts: The Implications of Advances in Neurotechnology", Vol. 5, 2009).  Here is the abstract:

It has become increasingly common for brain images to be proffered as evidence in criminal and civil litigation. This Article - the collaborative product of scholars in law and neuroscience - provides three things.

First, it provides the first introduction, specifically for legal thinkers, to brain imaging. It describes in accessible ways the new techniques and methods that the legal system increasingly encounters.

Second, it provides a tutorial on how to read and understand a brain-imaging study. It does this by providing an annotated walk-through of the recently-published work (by three of the authors - Buckholtz, Jones, and Marois) that discovered the brain activity underlying a person’s decisions: a) whether to punish someone; and b) how much to punish. The annotation uses the “Comment” feature of the Word software to supply contextual and step-by-step commentary on what unfamiliar terms mean, how and why brain imaging experiments are designed as they are, and how to interpret the results.

Third, the Article offers some general guidelines about how to avoid misunderstanding brain images in legal contexts and how to identify when others are misusing brain images.

March 10, 2010 | Permalink | Comments (0)

Hallevy on Culture Crimes Against Women

Gabriel Hallevy (OnoGabi-halevi(1) Academic College, Faculty of Law) has posted Culture Crimes Against Women on SSRN.  Here is the abstract:

About five thousand women are murdered by their families each year in the name of family honor. A young Muslim girl was murdered in Berlin by her own brother, because she "behaved like a German." Both of them had German citizenship. He was sentenced to nine years of incarceration, and was released after six years. His family celebrated his release from prison. Fatima Sehindel, a Muslim Swedish girl, was a student. She wanted to assimilate in Swedish society. She spoke to the Swedish parliament. She even had a Swedish boyfriend. She was murdered by her own father. These crimes were committed in advanced western countries.

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March 10, 2010 | Permalink | Comments (0)

Tuesday, March 9, 2010

Hessick and Hessick on Recognizing Constitutional Rights at Sentencing

F. Andrew Hessick III (Arizona State University - Sandra Day O'Connor College of Law) Hessick and Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) have posted Recognizing Constitutional Rights at Sentencing (California Law Review, Forthcoming) on SSRN.  Here is the abstract:

There are a number of traditional sentencing factors, which judges use when Hessick-2 selecting the precise sentence within the statutory sentencing range, that appear to infringe on the constitutional rights of criminal defendants. Yet courts have not engaged in traditional constitutional analysis when permitting the use of these factors. Instead, they have rejected constitutional challenges to sentencing factors on the grounds that recognizing substantive constitutional limits on sentencing considerations would be inconsistent with historical practice and would interfere with the judiciary’s ability to impose a proper sentence. This Article challenges these claims. It demonstrates both that there is not a historical practice of disregarded rights at sentencing, that constitutional rights frequently impair the government’s ability to accomplish its goals, and that there is nothing unique about sentencing that warrants the judiciary’s disregard of constitutional rights because of these impediments. It further argues that recognizing constitutional limits on sentencing considerations is particularly important given that sentencing is the means by which the government restricts individual liberty.

March 9, 2010 | Permalink | Comments (0)

Pettys on Jurors and Abandoning the Exclusionary Rule

Todd E. Pettys (University of Iowa - College of Law) Pettys_todd_sq has posted Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule (Fordham Urban Law Journal, Forthcoming) on SSRN.  Here is the abstract:
In this symposium contribution, I contend that the application of the Fourth Amendment exclusionary rule in cases tried by juries raises troubling moral issues that are not present when a judge adjudicates a case on his or her own. Specifically, I argue that the exclusionary rule infringes upon jurors’ deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court’s deterrence objectives. After considering ways in which those moral problems could be at least partially mitigated, I contend that the best approach might be to abandon the exclusionary rule entirely. I suggest that the Supreme Court might already be willing to abandon the rule, provided that Congress enacts reforms aimed at making the threat of financial liability for Fourth Amendment violations more robust. I close by identifying several ways in which Congress could help pave the way for the exclusionary rule’s demise.

March 9, 2010 | Permalink | Comments (1)

Monday, March 8, 2010

Guiora on "Enemy Belligerent Interrogation, Detention and Prosecution Act of 2010"

Amos Guiora (University of Utah College of Law) critiques this recent proposal in a piece at Jurist.The bill

mandates that any person detained on suspicion of terrorist acts or material support for terrorism be placed in military custody. The detainee will not be entitled to Miranda rights and will remain in detention – and can be interrogated – while the Executive Branch makes a status determination. If determined to be an unprivileged enemy belligerent, the detainee will be held until the end of hostilities. Needless to say, unlike the POW in the war paradigm, for detainees, end of hostilities in the terrorism paradigm is a euphemism for ‘indefinite detention’.

The legislation’s panic response can be seen not only in the due process and rights denied, but in the categories of persons it addresses. By encompassing those suspected of material support for terrorism – a federal crime indeed but never part of the law of war – the bill subjects an extraordinarily broad group of persons to indefinite detention.

March 8, 2010 | Permalink | Comments (2)

Today's Speedy Trial Act opinion

in Bloate v. United States is here. Here is the syllabus:

The Speedy Trial Act of 1974 (Act) requires a criminal defendant’s trial to commence within 70 days of his indictment or initial appearance,18 U. S. C. §3161(c)(1), and entitles him to dismissal of the charges if that deadline is not met, §3162(a)(2). As relevant here, the Act automatically excludes from the 70-day period “delay resulting from . . . proceedings concerning the defendant,” 18 U. S. C. A. §3161(h)(1)(hereinafter subsection (h)(1)), and separately permits a district court to exclude “delay resulting from a continuance” it grants, provided the court makes findings required by §3161(h)(7) (hereinafter subsection (h)(7)). Petitioner’s indictment on federal firearm and drug possession charges started the 70-day clock on August 24, 2006. After petitioner’s arraignment, the Magistrate Judge ordered the parties to file pretrial motions by September 13. On September 7, the court granted petitioner’s motion to extend that deadline, but on the new due date, September 25, petitioner waived his right to file pretrial motions. On October 4, the Magistrate Judge found the waiver voluntary and intelligent.

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March 8, 2010 | Permalink | Comments (1)

Arcila on the Death of Suspicion

Arcila fabio Fabio Arcila Jr. (Touro College - Jacob D. Fuchsberg Law Center) has posted The Death of Suspicion (William & Mary Law Review, Vol. 51, No. 4, pp. 1275, 2010) on SSRN. Here is the abstract:

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in which reasonableness serves as the constitutional touchstone for all governmental searches, and where neither warrants nor suspicion are primary mechanisms for protecting Fourth Amendment values. Therefore, new ways must be identified of assuring adequate Fourth Amendment protections. To that end some broad guidelines are offered.

March 8, 2010 | Permalink | Comments (0)

Sunday, March 7, 2010

Monahan & Walker on Social Science in (Criminal) Law

Monahan john John Monahan (pictured) and Laurens Walker (both of University of Virginia School of Law) have posted Twenty-Five Years of Social Science in Law (Law and Human Behavior, Forthcoming). While the piece addresses a range of legal issues, several criminal law and procedure topics are among those addressed. Here is the abstract:

In this Essay, we take the publication of the seventh edition of the casebook Social Science in Law (2010) as an opportunity to reflect on continuities and changes that have occurred in the application of social science research to American law over the past quarter-century. We structure these reflections by comparing and contrasting the original edition of the book with the current one. When the first edition appeared, courts’ reliance on social science was often confused and always contested. Now, courts’ reliance on social science is so common as to be unremarkable. What has changed - sometimes radically - are the substantive legal questions on which social science has been brought to bear.

March 7, 2010 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 378 The Emerging Law of Detention: The Guantanamo Cases as Lawmaking
Benjamin Wittes, Robert Chesney, Rabea Benhalim,
Unaffiliated Authors - affiliation not provided to SSRN, University of Texas School of Law, Brookings Institution,
Date posted to database: January 27, 2010
2 288 Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan
Jordan J. Paust,
University of Houston - Law Center,
Date posted to database: December 11, 2009
3 252 Fifty State Survey of Adult Sex Offender Registration Laws
Brenda V. Smith,
American University - Washington College of Law,
Date posted to database: December 3, 2009
4 239 The Greatest Legal Movie of All Time: Proclaiming the Real Winner
Grant H. Morris,
University of San Diego School of Law,
Date posted to database: January 12, 2010
5 233 The Case Against the Goldstone Report: A Study in Evidentiary Bias
Alan Dershowitz,
Harvard Law School,
Date posted to database: January 27, 2010
6 223 How Does International Law Work: What Empirical Research Shows
Tom Ginsburg, Gregory Shaffer,
University of Chicago Law School, University of Minnesota - Twin Cities - School of Law,
Date posted to database: December 19, 2009
7 183 Vagueness Challenges to the Computer Fraud and Abuse Act
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009
8 148 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [9th last week]
9 129 'The Look in His Eyes': The Story of State v. Rusk and Rape Reform
Jeannie Suk,
Harvard University - Harvard Law School,
Date posted to database: February 3, 2010 [new to top ten]
10 128 Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)
Doug Keller,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: December 1, 2009

March 7, 2010 | Permalink | Comments (0)