CrimProf Blog

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

Saturday, March 6, 2010

Norton on the Quarles Exception to Miranda

Rorie Norton has posted Matters of Public Safety and the Current Quarrel Over the Scope of the Quarles Exception to Miranda (Fordham Law Review, Vol. 78, pp. 101-139, 2010) on SSRN. Here is the abstract:

In October 1984, the Burger Court set forth an exception to the Miranda doctrine in New York v. Quarles permitting officers to intentionally abstain from administering Miranda warnings to suspects where a threat to the safety of the public, or officers, exists. However, latent ambiguity arising from the Quarles opinion authored by Justice William Rehnquist has resulted in a split among the U.S. Courts of Appeals as to what constitutes a “public safety threat.” Some courts broadly extend the Quarles exception to inherently dangerous situations, including the threat of an officer mishandling an undiscovered weapon. Other courts narrowly apply Quarles to exigent circumstances where there is actual evidence that a suspect or other third party could inflict immediate harm to officers or the public.

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March 6, 2010 | Permalink | Comments (0)

Perlin on Neuroimaging and Competency after Panetti

Perlin Michael L. Perlin (New York Law School) has posted Neuroimaging and Competency to Be Executed after Panetti on SSRN. Here is the abstract:

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing. 

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March 6, 2010 | Permalink | Comments (0)

Friday, March 5, 2010

"US death penalty stance increasingly at odds with international community"

Jurist has the piece by Richard Dieter, executive director, Death Penalty Information Center.

March 5, 2010 | Permalink | Comments (0)

Thursday, March 4, 2010

"The Good Faith Exception and Changing Law" links to "three great posts by Orin Kerr on the good faith exception and changing law."

March 4, 2010 | Permalink | Comments (0)

"Chelsea King tragedy heats up politics around sex offender monitoring"

Doug Berman links to and excerpts the story at Sentencing Law and Policy.

March 4, 2010 | Permalink | Comments (2)

Wednesday, March 3, 2010

Police, "Flipping the Bird," and the First Amendment (Kolber)

Man claims police retaliated against him for "flipping them the bird".  (How often did he do it? "Not once, not twice, but three times.")


(via BoingBoing)


March 3, 2010 | Permalink | Comments (0)

"2d Amendment extension likely"

Lyle Denniston reviews yesterday's much anticipated argument in McDonald v. City of Chicago at ScotusBlog.

March 3, 2010 | Permalink | Comments (1)

Tuesday, March 2, 2010

Opinion in Johnson v. United States

is here. The syllabus:

Petitioner Johnson pleaded guilty to possession of ammunition by a convicted felon. 18 U. S. C. §922(g)(1). The Government sought sentencing under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates §922(g) and who “has three previous convictions” for “a violent felony,” §924(e)(1), defined as, inter alia, an offense that “has as an element the use . . . of physical force against the person of another,” §924(e)(2)(B)(i). Among the three prior felony convictions the Government proffered was Johnson’s 2003 Florida conviction for simple battery, which ordinarily is a first-degree misdemeanor, Fla. Stat. §784.03(1)(b), but was a felony conviction for Johnson because he had previously been convicted of another battery, Fla. Stat. §784.03(2). Under Florida law, a battery occurs when a person either “[a]ctually and intentionally touches or strikes another person against [his] will,” or “[i]ntentionally causes bodily harm to another person.” §784.03(1)(a). Nothing in the record permitted the District Court to conclude that Johnson’s 2003 conviction rested upon the “strik[ing]” or “[i]ntentionally caus[ing] bodily harm” elements of the offense. Accordingly, his conviction was a predicate conviction for a “violent felony” under the Armed Career Criminal Act only if “[a]ctually and intentionally touch[ing]” another constitutes the use of “physical force” under §924(e)(2)(B)(i). Concluding it does, the District Court enhanced Johnson’s sentence under §924(e)(1), sentencing him to a term of 15 years and 5 months.The Eleventh Circuit affirmed.

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March 2, 2010 | Permalink | Comments (0)

Argument transcript from McDonald v. City of Chicago

is here.

March 2, 2010 | Permalink | Comments (0)

Gwin on the Federal Sentencing Guidelines and Community Values

James Gwin has posted Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values? (Harvard Law & Policy Review, Vol. 4, pp. 173-200, 2010) on SSRN. Here is the abstract:

Do the Federal Sentencing Guidelines reflect community sentiment regarding appropriate punishment? This paper describes a study where juries were surveyed after they had given guilty verdicts. The author then compared the jurors' recommendations with the Federal Sentencing Guidelines recommended sentence. Combining 22 cases of various types, the median juror recommended sentence was only 19% of the median Guidelines ranges and only 36% of the bottom of the Guidelines ranges.

The author argues that the Federal Sentencing Guidelines correctly emphasized retribution as the most important sentencing purpose. If retributive considerations should dominate, the author says the ranges chosen should align with community sentiment. Although the study is limited, it suggests the current Guidelines values do not. The author recommends juror questionnaires as an easy facility to better guage community sentiment without diminishing the Guidelines desire to reduce sentencing disparities.

March 2, 2010 | Permalink | Comments (0)

Monday, March 1, 2010

Argument transcript from Skilling v. United States

is here.

March 1, 2010 | Permalink | Comments (0)

Argument transcript from Holland v. Florida

is here.

March 1, 2010 | Permalink | Comments (0)

Argument transcript from Berghuis v. Thompkins

is here.

March 1, 2010 | Permalink | Comments (0)

Today's Cert Grant: Testimonial or Not?

The Court granted cert in Michigan v. Bryant. Here's the issue as described on ScotusBlog, which also links to cert papers and the opinion below:

Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

March 1, 2010 | Permalink | Comments (0)

"Utah Bill Would Criminalize Illegal Abortions"

The story is in the New York Times:

Last May in a small town in eastern Utah, a 17-year-old girl, seven months pregnant, paid a man she had just met $150 to beat her up in hopes of inducing a miscarriage that would resolve her crisis. He obliged, taking her to a basement and kicking her repeatedly in the stomach.

. . .

The bill’s sponsor, Representative Carl D. Wimmer, a Republican and former police officer from the suburbs of Salt Lake City, said the beating case, and the decision by a judge last fall that the girl had committed no crime because seeking an abortion is not illegal, revealed “a loophole” in the law.

. . .

But critics say legislation inspired by an unusual, perhaps even freakish criminal case, could open up a vast frontier around the question of intent and responsibility and give local prosecutors huge new powers to inquire about a woman’s intentions toward her unborn child.

March 1, 2010 | Permalink | Comments (0)

Shannon on Sell v. United States

Shannon brian Brian D. Shannon (Texas Tech University School of Law) has posted Prescribing a Balance: The Texas Legislative Responses to Sell v. United States (St. Mary's Law Journal, Forthcoming) on SSRN. Here is the abstract.

In Sell v. United States, decided in 2003, the United States Supreme Court addressed the question of “whether the Constitution permits the Government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant – in order to render that defendant competent to stand trial for serious, but nonviolent crimes.” The Court concluded that the Constitution does permit doing so “in limited circumstances … upon satisfaction of conditions” that the Court delineated. This Article will first address the Court’s parameters for determining when the administration of antipsychotic medications on an involuntary basis is permissible. The remainder of the Article, however, will discuss the various approaches taken by the Texas Legislature to codify certain hearing mechanisms to address the thorny issues raised by Sell. Specifically, after briefly addressing Sell, this Article will analyze an array of Texas legislative enactments from 2003, 2005, 2007, and 2009, all of which have addressed the issue of a defendant’s refusal to take antipsychotic medication after having been adjudicated incompetent to stand trial, but prior to the criminal trial on the merits.

March 1, 2010 | Permalink | Comments (0)

"Boycotting of judges nothing new to DA"

This interesting story in yesterday's San Diego Union Tribune:

Since 2003, prosecutors have targeted at least three other Superior Court judges for whole or partial boycotts.

Sources in the courthouse, the local defense bar and the District Attorney’s Office said all three were targeted shortly after they made rulings that the District Attorney’s Office apparently disagreed with. Two of those judges, Judith Hayes and William McAdam, no longer work in the criminal courts.

Boycotting a judge is seen by some as ham-handed attempt to intimidate or even bully judges. It is done by using a peremptory challenge — a legal move available to prosecutors and defense lawyers — to block a new case from going to a particular judge. A specific reason does not have to be given. The challenge can also be used in a limited form, such as only on serious felony cases.

March 1, 2010 | Permalink | Comments (0)

Sunday, February 28, 2010

Top-Ten Recent SSRN Downloads

Ssrn logo are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 352 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
2 273 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
3 234 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
4 230 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
5 217 The Case Against the Goldstone Report: A Study in Evidentiary Bias
Alan Dershowitz,
Harvard Law School,
Date posted to database: January 27, 2010 [new to top ten}
6 215 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 [5th last week]
7 173 Vagueness Challenges to the Computer Fraud and Abuse Act
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: December 23, 2009 [6th last week]
8 129 Unintended Collateral Consequences: Defining Felony in the Early American Republic
Will Tress,
University of Baltimore - School of Law,
Date posted to database: December 4, 2009 [7th last week] 
9 123 Judging Police Lies: An Empirical Perspective
Melanie D. Wilson,
University of Kansas - School of Law,
Date posted to database: January 11, 2010 [10th last week]
10 120 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 [8th last week]

February 28, 2010 | Permalink | Comments (0)