CrimProf Blog

Giessen on The Continued Erosion of Miranda's Protections

Michael L. Vander Giessen  has posted Berghuis v. Thompkins: The Continued Erosion of Miranda's Protections (Gonzaga Law Review, Vol. 46, No. 1, 2011) on SSRN.  Here is the abstract: 

In the forty-four years since the Supreme Court of the United States decided Miranda v. Arizona, the “procedural safeguards” set forth in that case have become ingrained in American law enforcement practices. However, subsequent Supreme Court decisions interpreting and applying Miranda have weakened its impact, causing some to question its significance and efficacy as a tool protecting suspects’ privilege against self-incrimination. The Court’s decision in Berghuis v. Thompkins continues this emasculating trend, first, by expressly heightening the standard necessary for suspects to invoke the right to remain silent and, second, by implicitly lowering the standard necessary to establish waiver. This comment focuses on how the Court reached its decision, what the Court ought to have decided, what negative impacts Berghuis may have on the American criminal justice system, and how those negative impacts may be limited.

Stein on Services Fraud Offenses

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Corrupt Intentions: An Essay on Bribery, Unlawful Gratuity, and Honest-Services Fraud (Law and Contemporary Problems, Vol. 74, 2012) on SSRN.  Here is the abstract: 

This Essay develops an economic understanding of bribery, unlawful gratuity, and honest-services fraud offenses. Given the inherently transactional and private nature of these offenses, courts should elicit the parties’ intent from the economics of their exchange. When the exchange yields the parties a benefit not available on the open market, then - depending on the exchange’s particulars - it constitutes bribery, unlawful gratuity, or honest-services fraud. Based on this simple insight, I criticize the Supreme Court’s jurisprudence of criminal corruption.

Fishing in the Park (Kolber)

The New York Times Metropolitan Diary raises the less familiar interpretive question: what does it mean to fish in the park?

-AJK

Giessen on Legislative Reforms for Washington State's Criminal Monetary Penalties

Michael L. Vander Giessen  has posted Legislative Reforms for Washington State's Criminal Monetary Penalties (Gonzaga Law Review, Vol. 47, No. 2, 2012) on SSRN.  Here is the abstract: 

Balancing the present racial and ethnic disparities in Washington’s criminal justice system requires state legislators to carefully assess contributing factors and seriously consider sentencing reforms. One contributing factor can be found in the State’s laws governing criminal monetary penalties, known as legal financial obligations (“LFOs”). Many have criticized LFOs as creating de facto debtors’ prisons that disproportionately impact racial and ethnic minorities. These critics have also identified potential reforms but offered little practical guidance on how to implement them in Washington. As a complement to their work, this comment offers a discussion draft of proposed legislation. Specifically, this comment proposes that the Washington State Legislature alleviate the negative effects of LFOs by enacting legislation with four results: first, structuring the amount of nonrestitution LFOs to reflect the seriousness of the offense and the offender’s ability to pay; second, repealing the interest accrual on nonrestitution LFOs; third, reducing the annual interest rate on restitution LFOs from twelve percent to six percent; and finally, empowering the sentencing court to modify or convert nonrestitution LFOs when the offender’s financial circumstances change.

Fershee on Increased Criminal Liability in Environmental Law

Joshua P. Fershee (University of North Dakota - School of Law) has posted Choosing a Better Path: The Misguided Appeal of Increased Criminal Liability after Deepwater Horizon (William & Mary Environmental Law and Policy Review, Vol. 36, No. 1, 2011) on SSRN.  Here is the abstract: 

Despite the potential appeal of dramatically increased liability and sentences in the wake of environmental disasters like the Deepwater Horizon oil blowout in the Gulf of Mexico, this Article argues that more aggressive criminal provisions and enforcement related to environmental harms, up to and including strict criminal liability, are not likely to protect the environment better or lead to safer work environments. This Article first considers the history and legality of, and the rationale behind, policies designed to make it easier to convict allegedly responsible parties and also discusses the pursuit of increased liability in relation to disaster-related and tragedy-related events in the financial and criminal sectors. The Article then discusses the use of reduced burdens and strict liability in environmental law in both civil and criminal contexts, and argues that the use of strict liability is less effective than a negligence standard because it tends to reduce penalties, which can limit the direct punishment to violators, as well as the prophylactic potential of the laws. Finally, the Article concludes that, rather than reducing mens rea standards and increasing criminal liability, U.S. energy and environmental law needs to focus on encouraging proper risk assessment and risk management to promote safe and effective energy extraction and production while encouraging and protecting both the environment and the economy.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	394	Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November 29, 2011
2	271	How Law Protects Dignity Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 17, 2011
3	230	Turning the Corner on Mass Incarceration? David Cole, Georgetown University Law Center, Date posted to database: December 15, 2011
4	201	Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein, Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 16, 2011
5	180	Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute, Date posted to database: December 6, 2011
6	139	Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms Charles D. Weisselberg, Su Li, University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society, Date posted to database: January 11, 2012 [new to top ten]
7	132	Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences M. Marit Rehavi, Sonja B. Starr, University of British Columbia, University of Michigan Law School, Date posted to database: January 16, 2012 [new to top ten]
8	97	False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary Mark Godsey, University of Cincinnati College of Law, Date posted to database: January 12, 2012 [new to top ten]
9	89	Circumvention Tourism I. Glenn Cohen, Harvard Law School, Date posted to database: December 1, 2011 [8th last week]
10	129	Revisiting a Foreign Corrupt Practices Act Compliance Defense Mike Koehler, Butler University College of Business, Date posted to database: January 11, 2012 [new to top ten]

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	394	Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November 29, 2011
2	271	How Law Protects Dignity Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 17, 2011
3	230	Turning the Corner on Mass Incarceration? David Cole, Georgetown University Law Center, Date posted to database: December 15, 2011
4	201	Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein, Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 16, 2011
5	180	Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute, Date posted to database: December 6, 2011
6	139	Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms Charles D. Weisselberg, Su Li, University of California, Berkeley - School of Law, University of California, Berkeley- School of Law, Center for the Study of Law and Society, Date posted to database: January 11, 2012 [new to top ten]
7	132	Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences M. Marit Rehavi, Sonja B. Starr, University of British Columbia, University of Michigan Law School, Date posted to database: January 16, 2012 [new to top ten]
8	97	False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary Mark Godsey, University of Cincinnati College of Law, Date posted to database: January 12, 2012 [new to top ten]
9	89	Circumvention Tourism I. Glenn Cohen, Harvard Law School, Date posted to database: December 1, 2011 [8th last week]
10	129	Revisiting a Foreign Corrupt Practices Act Compliance Defense Mike Koehler, Butler University College of Business, Date posted to database: January 11, 2012 [new to top ten]

Mirabella on Italian Criminal Procedure and the Amanda Knox Trial

Julia Grace Mirabella has posted Scales of Justice: Assessing Italian Criminal Procedure Through the Amanda Knox Trial (Boston University International Law Journal, Vol. 30, No. 1, 2012) on SSRN. Here is the abstract:

The Italian criminal procedure code of 1989 reformed Italy’s criminal procedure system from an inquisitorial model into a hybrid scheme that draws inspiration from the United States’ adversarial system. However, despite including adversarial processes into its criminal procedure code, Italy’s inquisitorial foundations have continued to exert considerable influence over trial procedures. In the wake of the Amanda Knox case Italian criminal procedure has increasingly come under fire.

The purpose of this note is to explore the changes made to the Italian criminal procedure code, to assess the current state of Italian criminal proceedings and to consider whether proper comparative methodologies have been used in assessing how Italian criminal procedure relates to traditional adversarial systems.

In the United States, Italian criminal procedure had not received much consideration until the details of the Amanda Knox trial became a national sensation. Using the Knox case as a foundation, this note will explore whether the vehement American critique of the Italian system has merit. The analysis suggests that the criticism may stem from a misunderstanding of how the system works, from a basic disconnect between concepts of 'truth' in common law and civil law systems, and from an imperfect comparison of fundamentally different systems of criminal procedure.

Rothstein & Coleman on Bullcoming and Confrontation

Paul F. Rothstein (pictured) and Ronald J. Coleman (Georgetown University Law Center and Georgetown University Law Center) have posted Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-Type Reports (Nebraska Law Review, Vol. 90, p. 502, 2011) on SSRN. Here is the abstract:

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to confront was enshrined in the Sixth Amendment to the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him..." The right to confront applies at both the federal level and at the state level (through the Fourteenth Amendment).

Although there is some consensus that the Constitution grants criminal defendants some right to confront their accuser, there is much less agreement on exactly who must be confronted and for what kinds of accusations or statements. Particularly controversial is whether the Confrontation Clause requires a scientific analyst to testify in criminal cases where such an analyst conducts a test, perhaps using a machine or other apparatus, and then prepares a report communicating the results of that test, and that report (or evidence of it) is offered at trial against an accused.

The purpose of this Article is to highlight the issues raised by, and potential consequences of, the applicability (or inapplicability) of the Confrontation Clause to forensic scientists creating purportedly objective reports, in various situations. Part I introduces the Article. Part II provides some case law history of Confrontation Clause jurisprudence so that the issues may be placed in their historical and analytical context. Part III sets forth the facts, the lower court proceedings, and the Supreme Court decision, in Bullcoming v. New Mexico. Part IV identifies the nine important issues that arose prior to Bullcoming and discusses where they stand after that decision. Also considered in that Part are some consequences to law enforcement policy. Finally, Part V presents our conclusions. Even though the Supreme Court in Bullcoming chose to refrain from laying to rest most of the issues we identify, we hope that this paper will, at least, add to the ongoing dialogue on forensics and confrontation rights, and encourage more work in this important and developing area of law.

Luppi & Parisi on Jury Size and Hung Juries

Barbara Luppi and Francesco Parisi (Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics and University of Minnesota - Law School) have posted Jury Size and the Hung-Jury Paradox on SSRN. Here is the abstract:

In the United States, the 1970 Supreme Court decision Williams v. Florida 399 U.S. 78 (1970) reduced from twelve to six the minimum number of jurors required under the Sixth and Fourteenth Amendments. In the hope of improving the legal process with faster deliberation and fewer mistrials, eleven states have used juries of less than twelve in felony cases. This has given origin to an unprecedented natural experiment on jury decision-making. Contrary to the predictions of probability theory, the reduction in jury size has not brought the expected reduction in the number of mistrials. In this paper we provide a possible explanation for this fact. We formulate some propositions considering the case of jury deliberation in the presence of informational cascades. These results have implications not only for juries, but also for democratic theory.

Tusikov on Measuring Organised Crime-Related Harms

Natasha Tusikov (Australian National University) has posted Measuring Organised Crime-Related Harms: Exploring Five Policing Methods (Crime Law and Social Change, November 2011) on SSRN. Here is the abstract:

Many law enforcement agencies around the world have adapted risk assessment methodology to analyse organised crime. These assessments, which are intended to provide law enforcement management with rigourous analysis to enable rational and objective decision-making processes, are an integral part of intelligence-led policing. Despite the prevalence of these assessments, as the assessments and their methodologies are often tightly restricted within the law enforcement community, it is often unclear how law enforcement defines, analyses and makes decisions about organised crime. While the use of risk assessment methodology to analyse organised crime in policing is generally under-evaluated, critics point to serious methodological weaknesses. Another aspect that is less explored in the scholarly literature is how law enforcement conceptualises and measures the impact or ‘harm’ from organised crime and uses this analysis to inform priority-setting processes. This article explores how law enforcement assess organised crime-related harm by examining five policing methods — one each from Australia and the Netherlands and three from the United Kingdom. The article finds that the methods have significant shortcomings: the main concepts are generally ill-defined and the operationalisation of these concepts is problematic. More importantly, the problems evident in the harm methods raise several critical questions, specifically whether measuring organised crime-related harms is empirically feasible and, if so, can be undertaken in a manner that meaningfully informs law enforcement’s decision-making and limits undue political interference.

The New "Virginia Journal of Criminal Law" (Kolber)

The UVA School of Law has a new journal devoted to criminal law.  Blog readers may want to encourage their libraries to get a subscription if they don't already have one.  Some news via VJCL editor:

The inaugural issue of the Virginia Journal of Criminal Law (“VJCL”) features an article written by Professor Dan Markel, the D’Alemberte Professor of Law at Florida State University College of Law and a current Scholar-in-Residence at NYU Law’s Center on the Administration of Criminal Law.  The article is entitled “Retributive Justice and the Demands of Democratic Citizenship.”  For more info about subscription info, please contact Daniel Gude, Managing Editor of the VJCL, at dmg3ae@virginia.edu. 

-AJK

McCary and Sanga on Youth Offenders and the Deterrence Effect of Prison

Justin McCrary and Sarath Sanga (University of California, Berkeley and Yale Law School) has posted Youth Offenders and the Deterrence Effect of Prison on SSRN.  Here is the abstract: 

In this paper, we present evidence from six data sets on the participation of youth in crime near the age of criminal majority. The evidence suggests smooth behavior through the transition to adulthood, despite substantial changes in punitiveness. This is consistent with small deterrence effects of long prisons sentences for youthful offenders.

Salkin and Kansler on Ensuring the Public Trust at the Municipal Level

Patricia Salkin and Zachary Kansler (Albany Law School and Albany Law School) have posted Ensuring the Public Trust at the Municipal Level: Inspectors General Enter the Mix (Albany Law Review, Vol. 75, 2012) on SSRN.  Here is the abstract: 

Although federal, state and local government officials are subject to applicable codes of ethical conduct and are under the jurisdiction of ethics enforcement agencies created pursuant to these laws, ethics oversight agencies are limited in the breadth and scope of covered activities. With an increase in reported allegations of corruption, particularly at the local government level, this article explores the addition of the audit function, through inspectors general, to ensure greater transparency and accountability of public officials. 

The article begins with a very brief historical overview of the emergence of the inspector general concept in Europe and its adoption in the United States at the federal and state levels. The article continues with a focused examination of the reasons behind the creation of inspectors general at the municipal level and the various models or forms that have emerged in the establishment, jurisdiction, the operation of these offices and budget issues. 

The next section examines the interplay between inspectors general, ethics commissions and law enforcement agencies. Consideration is then given to the cost-benefit analysis of the municipal inspector general, exploring whether the expense can be justified by the savings and other associated benefits. Finally, the article concludes with a recommendation that in the current era of scarce fiscal resources, especially at the local level, municipalities should consider whether the establishment of an inspector general office can assist in not only furthering a commitment to ethical government, but in identifying cost-savings for the locality.

Sidhu on Religious Freedom and Inmate Grooming Standards

Dawinder S. Sidhu (University of New Mexico School of Law) has posted Religious Freedom and Inmate Grooming Standards (University of Miami Law Review, Forthcoming) on SSRN.  Here is the abstract: 

This Article explores the Eleventh Circuit's repeated rejection of challenges, under the First Amendment's Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), to "restrictive" inmate grooming policies (that require inmates to shave or cut their hair) in suits brought by plaintiffs who subscribe to a religion that mandates the growing of facial hair or long hair. It suggests, based on an analysis of case law, states' policies, and recent legal developments, that the Eleventh Circuit's approach in upholding these policies is no longer sustainable. 

Today, thirty-nine states, the Federal Bureau of Prisons, and D.C., do not have restrictive grooming policies or expressly grant religious exemptions to such policies, leaving only eleven states -- including the three states within the Eleventh Circuit -- that enforce restrictive grooming policies without the availability of a religious exemption. Also of note is the fact that the Department of Justice has intervened recently in two RLUIPA cases on behalf of inmates, arguing that the restrictive grooming policies of California and Alabama must be invalidated unless the state can present evidence that the "specific plaintiffs" in the suit have given rise to a penological concern that justifies the policies. California settled its case and agreed to eliminate its restrictive grooming policy. Against this backdrop, the Eleventh Circuit's routine defense of restrictive grooming policies seems out of step and at least worthy of scrutiny. 

Accordingly, I propose the following: assuming that a state's restrictive grooming policy requiring the cutting or shaving of hair substantially burdens a sincere religious practice of an inmate, and that the state’s penological interests undergirding the policies (such as security and order) are compelling, a court must probe the state as to why the existence of medical exemptions does not undermine these proffered interests and why restrictive grooming policies applied to inmates with relevant religious views is necessary given the fact that a vast and growing majority of jurisdictions do not have such policies or affirmatively grant religious exemptions despite sharing the same underlying penological interests as those states with restrictive grooming codes. A state with a restrictive grooming policy may satisfactorily defend these policies only by showing a particularized evidentiary basis for why the specific inmate in question poses an actual or threatened risk to a penological interest that supports the challenged policies. 

This searching standard, I posit, should replace the more deferential standard that the Eleventh Circuit has applied. If adopted, the Eleventh Circuit would not only maximize the religious freedom of inmates, but prevent states from circumventing liability and restricting religious exercise by merely reciting its penological interests and providing generalized support for its policies. The court would also bring itself in line with what appears to be a shift in the ability of states to meet its penological goals without resorting to restrictions on grooming.

Lyon on News Media and Criminal Defense

Andrea D. Lyon (DePaul University - College of Law) has posted Criminal Coverage: News Media, Legal Commentary, and the Crucible of the Presumption of Innocence (Reynolds Courts & Media Law Journal, Vol. 1, No. 4, p. 427, Fall 2011) on SSRN.  Here is the abstract: 

The criminal defense bar has always had a complex relationship with the media. There are competing parts of the Constitution to consider, namely, the First and the Sixth Amendments. Generally speaking, publicity hurts a criminal defendant. There are already so many presumptions against anyone charged — particularly anyone charged with a violent offense. That said, without the media, abuses of power would never come to light. For example, even though it was a long time coming, former police commander Jon Burge would never have gone to jail for the torture of those he arrested without the intervention of the press and the assiduity of a few lawyers and reporters. This article article identifies practical intrusions of these tensions in today’s world — the obtrusiveness of the twenty-four hour news cycle, pervasive legal commentators (I use the word “legal” advisedly) and the ethical implications of treating crime news as entertainment.

First reactions to GPS monitoring case

ScotusBlog collects the commentary here. At The Volokh Conspiracy, Orin Kerr raises some interesting questions about where the Court will go from here.

Opinion upholding qualified immunity for warrantless home entry

The Court's per curiam opinion in Ryburn v. Huff faults the Ninth Circuit for deviating from the district court's conclusion that an objectively reasonable officer would believe the entry was justified by the fear of imminent violence in case involving allegations that student was planning to shoot up his school.

Opinion on Sex Offender Registration Act

The case is Reynolds v. United States. Justice Breyer's opinion for the Court finds essential the validity of the Attorney General's specification of the Act's applicability to pre-Act offenders and remands for consideration of that issue. Justice Scalia, joined by Justice Ginsburg, dissented.

Unanimous Court reins in GPS monitoring for different reasons

The case is United States v. Jones. Justice Scalia's opinion for the Court views Katz as supplementing rather than replacing the earlier regulation of physical trespasses by government and relies on the trespass in placing a GPS device on a vehicle to conclude that a search occurred. Justice Alito's opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan, objects to the revival of the trespass focus but concludes a search occurred using the Katz test. Justice Sotomayor joined Justice Scalia's opinion but also concurred to agree with much of the Alito opinion.