CrimProf Blog

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

Saturday, March 5, 2011

Smith on prison rape

Smith brenda Brenda V. Smith (American University - Washington College of Law) has posted Side by Side Comparison of Standard to Address Prison Rape: National Prison Rape Elimination Commission Standards and Proposed Standard of U.S. Department of Justice for Adult Prisons and Jails on SSRN. Here is the abstract:

This is a side by side comparison chart of the National Prison Rape Elimination Standards and the newly revised U.S. Department of Justice Standards.

This comparison chart was developed as an analytical tool and to assist individuals and organizations in understanding and commenting on the standards. Each chart contains: (1) the initial National Prison Rape Elimination Commission (NPREC) standard; (2) the revised DOJ standard; (3) DOJ’s reasoning for the change to the extent they provided one; (4) questions DOJ posed in relation to that specific standard; and (5) an area for analysis.

March 5, 2011 | Permalink | Comments (0)

Friedman on last week's confrontation clause developments

Richard Friedman (Michigan) has two interesting posts on last week's decision in Michigan v. Bryant and oral argument in Bullcoming v. New Mexico.

March 5, 2011 | Permalink | Comments (1)

Thursday, March 3, 2011

Opinion on post-sentencing rehabilitation under the guidelines

The case is Pepper v. United States. Here is the syllabus:

After pleading guilty to drug charges, petitioner Pepper was sentenced under the Federal Sentencing Guidelines to 24 months’ imprisonment, a nearly 75 percent downward departure from the low end of the Guidelines range based in part on his substantial assistance, followed by five years of supervised release. In Pepper I, the Eighth Circuit reversed and remanded for resentencing in light of, inter alia, United States v. Booker, 543 U. S. 220. Pepper, who had begun serving his supervised release, testified at his resentencing hearing that he was no longer a drug addict, having completed a 500-hour drug treatment program while in prison; that he was enrolled in community college and had achieved very good grades; and that he was working part time. Pepper’s father testified that he and his son were no longer estranged, and Pepper’s probation officer testified that a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low recidivism risk. The District Court again sentenced Pepper to 24 months, granting a 40 percent downward departure based on Pepper’s substantial assistance and a further downward variance based on, inter alia, Pepper’s rehabilitation since his initial sentencing. In Pepper II, the Eighth Circuit again reversed and remanded for resentencing, concluding that Pepper’s postsentencing rehabilitation could not be considered as a factor supporting a downward variance, and directing that the case be assigned to a different district judge. After this Court vacated and remanded the Pepper II judgment in light of Gall v. United States, 552 U. S. 38, the Eighth Circuit, in Pepper III, reversed and remanded once more. At the second resentencing hearing, Pepper informed the new district judge that he was still in school, was about to be promoted at his job, and had married and was supporting his new family. Noting the nearly identical remand language of Pepper II and Pepper III, the court observed that it was not bound to reduce Pepper’s range by 40 percent for substantial assis-tance. Instead, it found him entitled to a 20 percent reduction and refused to grant a further downward variance for, inter alia, postsentencing rehabilitation. It imposed a 65-month prison term and 12 months of supervised release. In Pepper IV, the Eighth Circuit once again rejected Pepper’s postsentencing rehabilitation argument. It also rejected his claim that the law of the case from Pepper II and Pepper III required the District Court to reduce the applicable Guidelines range by at least 40 percent.

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March 3, 2011 | Permalink | Comments (0)

Argument transcript on case involving pretextual use of material-witness statute

The case is Ashcroft v. al-Kidd.

March 3, 2011 | Permalink | Comments (0)

Argument transcript in forensic reports case

The case is Bullcoming v. New Mexico.

March 3, 2011 | Permalink | Comments (0)

Tuesday, March 1, 2011

Garnett on Land Use and Policing Policies

Garnett nicole Nicole Stelle Garnett  (Notre Dame Law School) has posted The People Paradox on SSRN. Here is the abstract:

American land-use regulators increasingly embrace mixed-land-use "urban" neighborhoods, rather than single-land-use "suburban" ones, as a planning ideal. This shift away from traditional regulatory practice reflects a growing endorsement of Jane Jacobs’s influential argument that mixed-land-use urban neighborhoods are safer and more socially cohesive than single-use suburban ones. Proponents of regulatory reforms encouraging greater mixing of residential and commercial land uses, however, completely disregard a sizable empirical literature suggesting that commercial land uses generate, rather than suppress, crime and disorder and that suburban communities have higher levels of social capital than urban communities. This Article constructs a case for mixed-land-use planning that tackles the uncomfortable reality that these studies present. That case is built upon an apparent paradox: In urban communities, people do not, apparently, make us safer. But they do make us feel safer. This "People Paradox" suggests that, despite an apparent tension between city busyness and safety, land-use regulations that enable mixed-land-use neighborhoods may advance several important urban development goals. It also suggests an often-overlooked connection between land-use and policing policies.

March 1, 2011 | Permalink | Comments (0)

Fourth Amendment conference at Ole Miss March 10-11

The National Center for Justice and the Rule of Law, at the University of Mississippi School of Law, presents its 10th annual symposium, entitled The Future of Fourth Amendment Analysis, on March 10-11.   March 10 examines fundamental aspects of search and seizure principles, including the concepts of a search, seizure, security, and reasonableness.  March 11 examines digital searches and seizures.  It is web cast.  The link and agenda are here.

March 1, 2011 | Permalink | Comments (0)

Mikhail on Emotion, Neuroscience, and Law

Mikhail john John Mikhail (Georgetown University Law Center) has posted Emotion, Neuroscience, and Law: A Comment on Darwin and Greene (Emotion Review, Forthcoming) on SSRN. Here is the abstract:

Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et al. 2007) in their fMRI and behavioral studies of emotional engagement in moral judgment involve violent crimes or torts. These studies thus do much more than highlight the role of emotion in moral judgment; they also support the classical rationalist thesis that moral rules are engraved in the mind.

March 1, 2011 | Permalink | Comments (0)

Opinion holding corporations lack privacy objection to FOIA disclosure

The case is FCC v. AT&T Inc. Here is the syllabus:

The Freedom of Information Act requires federal agencies to make records and documents publicly available upon request, subject to several statutory exemptions. One of those exemptions, Exemption 7(C),covers law enforcement records the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” 5 U. S. C. §552(b)(7)(C). CompTel, a trade association, submitted a FOIA request for documents AT&T had provided to the Federal Communications Commission Enforcement Bureau during an investigation of that company. The Bureau found that Exemption 7(C) applied to individuals identified in AT&T’s submissions but not to the company itself, concluding that corporations do not have “personal privacy” interests as required by the exemption. The FCC agreed with the Bureau, but the Court of Appeals for the Third Circuit did not. It held that Exemption 7(C) extends to the “personal privacy” of corporations, reasoning that “personal” is the adjective form of the term “person,” which Congress has defined, as applicable here, to include corporations, §551(2).

Held: Corporations do not have “personal privacy” for the purposes ofExemption 7(C). Pp. 3–12.

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March 1, 2011 | Permalink | Comments (0)

Monday, February 28, 2011

Argument transcript on meaning of "cocaine base"

The case is DePierre v. United States.

February 28, 2011 | Permalink | Comments (0)

Opinion in case limiting Confrontation Clause

The opinion in Michigan v. Bryant is here. Here is the syllabus:

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because they had a "primary purpose . . . to enable police assistance to meet an ongoing emergency." Davis, 547 U. S., at 822. Therefore, their admission at Bryant’s trial did not violate the Confrontation Clause. Pp. 5– 32.




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February 28, 2011 | Permalink | Comments (1)

Sunday, February 27, 2011

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 358 Who May Be Killed? Anwar al-Awlaki as a Case Study in the International Legal Regulation of Lethal Force
Robert Chesney,
University of Texas School of Law,
Date posted to database: February 4, 2011
2 341 Is the Fourth Amendment Relevant in a Technological Age?
Christopher Slobogin,
Vanderbilt University - Law School,
Date posted to database: January 10, 2011
3 334 An Equilibrium-Adjustment Theory of the Fourth Amendment
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: January 26, 2011
4 304 Plan Now or Pay Later: The Role of Compliance in Criminal Cases
Charlotte Simon, Ryan D. McConnell, Jay Martin,
University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 11, 2011
5 237 Prosecuting the Exonerated: Actual Innocence and the Double Jeopardy Clause
Jordan M. Barry,
University of San Diego - School of Law,
Date posted to database: February 11, 2011 [new to top ten]
6 218 EU Antitrust Enforcement Powers and Procedural Rights and Guarantees: The Interplay Between EU Law, National Law, the Charter of Fundamental Rights of the EU and the European Convention on Human Rights
Wouter P. J. Wils,
European Commission,
Date posted to database: February 12, 2011 [new to top ten]
7 209 'Death is Different’ No Longer: Graham v. Florida and the Future of Eighth Amendment Challenges to Noncapital Sentences
Alison Siegler, Barry Sullivan,
University of Chicago Law School, Loyola University Chicago School of Law,
Date posted to database: January 27, 2011 [5th last week]
8 191 Who May Be Held? Military Detention Through the Habeas Lens
Robert Chesney,
University of Texas School of Law,
Date posted to database: December 16, 2010 [6th last week]
9 175 Must Virtue Be Particular?
Frederick Schauer,
University of Virginia School of Law,
Date posted to database: January 14, 2011 [7th last week]
10 166 Emotion, Neuroscience, and Law: A Comment on Darwin and Greene
John Mikhail,
Georgetown University - Law Center,
Date posted to database: February 14, 2011 [new to top ten]

February 27, 2011 | Permalink | Comments (0)