CrimProf Blog

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

Saturday, September 18, 2010

Markel on the Confrontational Conception of Retributivism

Markel dan Dan Markel  (Florida State University College of Law) has posted What Might Retributive Justice Be? (RETRIBUTIVISM: ESSAYS ON THEORY AND POLICY, Mark D. White, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

There are many conceptions of retributive justice. This paper is designed to articulate and defend a particular kind of retributive justice, one that I call the “Confrontational Conception of Retributivism,” or the CCR. This particular conception is political, not comprehensive, and thus is interested in defending the claim that *state* punishment is, as a general matter, warranted as a response to legal wrongdoing. Accordingly, the focus is on the legal manifestations of punishment, particularly within a liberal democracy; it is not concerned with justifying punishment in other spheres such as parent-child relations. Related to this account of state punishment is that its contours should be devised principally ex ante and that such punishment should be distributed through actors upon whom there are checks with respect to their remaining discretion.

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September 18, 2010 | Permalink | Comments (0)

Friday, September 17, 2010

Controversy over Actual Innocence and Habeas

The L.A. Times has this story:

An attorney for a man wrongly convicted of murder accused California Atty. Gen. Jerry Brown's office Thursday of waiting until after the November election to seek to return the man to prison on a technicality.

. . .

Lisker . . . was released from prison last year after a judge found that he was convicted on "false evidence" and had been inadequately represented by his trial attorney.

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September 17, 2010 | Permalink | Comments (2)

Fan on Police Gamesmanship and Criminal Procedure

Fan mary Mary D. Fan  (University of Washington - School of Law) has posted The Police Gamesmanship Dilemma in Criminal Procedure (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:

Police gaming of the rules is a perennial challenge for constitutional criminal procedure, leading to twists and hazard zones in the law such as the recent decision in Arizona v. Gant and feared fallout from Maryland v. Shatzer. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves rule-pushing and dodging tactics of dubious propriety that exploit blind spots, blurry regions or gaps in rules and remedies. Currently, courts generally avoid peering into the Pandora’s Box of police tactics unless the circumvention of a protection becomes too obvious to ignore and requires a stop-gap rule-patch that further complicates the maze of constitutional criminal procedure. This approach leaves murky the line between fair and foul play and gives police perverse incentive to game covertly. A new approach is needed, founded on a better understanding of police gaming of the rules. This article takes up the task.

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September 17, 2010 | Permalink | Comments (3)

Robinson on Abnormal Mental States and Murder

Robinson paul Paul H. Robinson  (University of Pennsylvania Law School) has posted Abnormal Mental State Mitigations of Murder – The U.S. Perspective on SSRN. Here is the abstract:

This paper examines the U.S. doctrines that allow an offender's abnormal mental state to reduce murder to manslaughter. First, the modern doctrine of "extreme emotional disturbance," as in Model Penal Code Section 210.3(1)(b), mitigates to manslaughter what otherwise would be murder when the killing "is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse." While most American jurisdictions are based upon the Mode Code, this is an area in which many states chose to retain their more narrow common law "provocation" mitigation. Second, the modern doctrine of "mental illness negating an offense element," as in Model Penal Code Section 4.02, allows a killing to be mitigated to manslaughter (or less) upon a showing that a mental disease or defect negated the culpable state of mind required for murder. This Model Code provision too has met with some resistance among the states, many of whom limit the use of mental illness evidence to negate an offense element.

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September 17, 2010 | Permalink | Comments (0)

Thursday, September 16, 2010

Wagner on Military Law as a Model for a General Federal Attempt Provision

Wagner robert Robert E. Wagner  (Case Western Reserve University School of Law) has posted A Few Good Laws: Why Federal Criminal Law Needs a General Attempt Provision and How Military Law Can Provide One (University of Cincinnati Law Review, Vol. 78, p. 1043, 2010) on SSRN. Here is the abstract:

While the law is designed to provide just punishments for individuals who engage in criminal activity, the current absence of a general attempt provision in the federal criminal code frustrates this purpose. Criminal law should both have a deterrent effect on people who are contemplating a criminal act and treat individuals justly who have already perpetrated one. Prosecuting individuals who attempt crimes advances both of these goals. Under the current federal criminal law, however, only some attempted crimes can be prosecuted. Unlike most state criminal law systems, the federal one has no general provision that enables the prosecution of individuals who have taken actions that, if successful, would have resulted in crimes. Rather, some federal criminal laws have their own attempt provisions while others (often inadvertently) do not. This Article proposes as a solution adopting into the federal criminal code a provision from the Uniform Code of Military Justice (UCMJ) that would make it a crime to attempt any other crime in the federal criminal code.

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September 16, 2010 | Permalink | Comments (0)

"Pretrial DNA Database Collection"

Kent Scheidegger at Crime and Consequences notes the Ninth Circuit's recent opinion upholding this practice and predicts the case will go en banc.

September 16, 2010 | Permalink | Comments (0)

"U.S. Won't Seek Retrial of Former Merrill Lynch Official in Enron Case"

The Wall Street Journal has this story:

In the latest twist in the government's multi-year prosecution of the Enron Corp. scandal, the Justice Department moved Wednesday to drop charges against a former Merrill Lynch & Co. official days before a scheduled retrial involving the only criminal case brought against Wall Street figures in the alleged misdeeds at the onetime energy giant Enron Corp.

September 16, 2010 | Permalink | Comments (0)

Atkinson on the Fourth Amendment and Duties of Law-Abiding Citizens

L. Rush Atkinson V has posted The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

The Fourth Amendment protects the innocent only from “unreasonable” searches. In lieu of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to “unreasonable” searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often overlooked fact: Searches of innocent persons are often “bilateral accidents,” meaning that both the innocent suspect and the police can affect the likelihood of an erroneous search occurring. In bilateral conditions, a reasonableness rule induces both the searcher and searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections — like that within the Takings Clause — cannot.

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September 16, 2010 | Permalink | Comments (0)

Wednesday, September 15, 2010

Henderson on Fourth Amendment Third-Party Doctrine

Henderson stephen Stephen E. Henderson  (Widener University School of Law) has posted The Timely Demise of the Fourth Amendment Third Party Doctrine (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

In what may be a slightly premature obituary, in this response to a forthcoming paper by Matthew Tokson I argue that the Fourth Amendment third party doctrine "has at least taken ill, and it can be hoped it is an illness from which it will never recover." It is increasingly unpopular as a matter of state constitutional law, has long been assailed in scholarship but now thoughtful alternatives are percolating, and it cannot – or at least should not – withstand the pressures which technology and social norms are placing upon it. Even the Supreme Court seems loath to defend or invoke it, and lower courts seem to be responding to that shift. In the relatively short space allotted, I place Tokson's thoughtful argument in this greater context, and briefly reply to related arguments of Professor Kerr and Judge Posner.

September 15, 2010 | Permalink | Comments (0)

"Blagojevich asks judge to override false statements conviction"

Jurist has the story here. The motion claims that insufficient proof was adduced on the sole count of conviction and that prosecutors engaged in "obstructionist objections" during defense cross-examination of prosecution witnesses.

September 15, 2010 | Permalink | Comments (0)

Kerr on Overturned Caselaw and the Exclusionary Rule

Kerr orin Orin S. Kerr  (George Washington University - Law School) has posted Good Faith, New Law, and the Scope of the Exclusionary Rule (Georgetown Law Journal, Vol. 99, 2011) on SSRN. Here is the abstract:

Lower courts recently have divided on whether the good-faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned caselaw. This Article argues that the Supreme Court should reject the good-faith exception in this setting.

A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision-making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned caselaw exceed its costs, and the rule therefore should be retained.

September 15, 2010 | Permalink | Comments (0)

Tuesday, September 14, 2010

Simons on Statistical Knowledge

Simons ken Kenneth W. Simons  (Boston University - School of Law) has posted Statistical Knowledge Deconstructed on SSRN. Here is the abstract:

In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.

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September 14, 2010 | Permalink | Comments (0)

Miller on the Anchoring Effect and Judicial Participation in Plea Discussions

Miller colin Colin Miller  (John Marshall Law School) has posted Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions on SSRN. Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

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September 14, 2010 | Permalink | Comments (0)

Monday, September 13, 2010

Podgor on Pre-Plea Discovery

Podgor ellen Ellen S. Podgor (Stetson University College of Law) has posted Pleading Blindly (Mississippi Law Review, Vol. 4, p. 80, Forthcoming) on SSRN. Here is the abstract:

In the criminal area, discovery violations are a continual concern. Recently, the Department of Justice (DOJ) was caught with discovery violations that reflected prosecutorial misconduct and improprieties. To its credit, the DOJ issued three Memos that sought to affirmatively promote office compliance with discovery obligations. The three Memos of former Deputy Attorney General David W. Ogden, however, fall short in an important area, discovery for defendants prior to entering into plea agreements.

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September 13, 2010 | Permalink | Comments (0)

Markel on Punishing through Punitive Damages

Markel dan Dan Markel  (Florida State University College of Law) has posted Overcoming Tradeoffs in the Taxation of Punitive Damages (Washington University Law Review, Forthcoming)  on SSRN. Here is the abstract:

As explained in a companion piece (Taxing Punitive Damages, co-authored with Gregg Polsky, available at, there is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in an amount that they believe will best “punish” the defendant. But, in fact, business defendants are not always punished to the degree that the jury intends. This is because jurors do not take into account the fact that these businesses are allowed to deduct their punitive damages awards. To solve this problem, President Obama recently proposed to make all punitive damages nondeductible, a proposal that has in the past been supported by a number of policymakers and academics. Unfortunately, the nondeductibility rule is doomed to fail in practice.

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September 13, 2010 | Permalink | Comments (1)

Sunday, September 12, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 191 Status as Punishment: A Critical Guide to Padilla v. Kentucky
Gabriel J. Chin, Margaret Colgate Love,
University of Arizona James E. Rogers College of Law, Law Office of Margaret Love,
Date posted to database: July 10, 2010 [4th last week]
2 190 Palestine and the International Criminal Court: Asking the Right Question
Michael G. Kearney,
Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: July 3, 2010 [3rd last week]
3 184 Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us About Who Should be Teaching Law
Lawrence Rosenthal,
Chapman University - School of Law,
Date posted to database: June 27, 2010 [5th last week]
4 142 Selected Salient Evidentiary Issues in Employment Discrimination Cases
Lynn McLain,
University of Baltimore School of Law,
Date posted to database: July 12, 2010 [7th last week]
5 141 Cracked Mirror: SB1070 and Other State Regulation of Immigration through Criminal Law
Gabriel J. Chin, Marc L. Miller,
University of Arizona James E. Rogers College of Law, University of Arizona - James E. Rogers College of Law,
Date posted to database: July 26, 2010 [8th last week]
6 121 Therapeutic Jurisprudence and its Application to Criminal Justice Research and Development
David B. Wexler,
University of Puerto Rico - School of Law,
Date posted to database: June 23, 2010 [10th last week]
7 120 One Hundred Years Later: Wrongful Convictions After A Century of Research
Jon B. Gould, Richard A. Leo,
George Mason University - School of Public Policy, University of San Francisco - School of Law,
Date posted to database: May 27, 2010 [9th last week]
8 98 Reconsidering Reprisals
Michael A. Newton,
Vanderbilt University - Law School,
Date posted to database: June 9, 2010 [new to top ten]
9 88 Some Reflections on Ethics and Plea Bargaining: An Essay in Honor of Fred Zacharias
Michael Cassidy,
Boston College Law School,
Date posted to database: August 9, 2010 [new to top ten]
10 87 Fourth Amendment Pragmatism
Daniel J. Solove,
George Washington University Law School,
Date posted to database: August 27, 2010 [new to top ten]

September 12, 2010 | Permalink | Comments (0)