CrimProf Blog

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

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Sunday, December 30, 2012

Roach on the Charter versus the Government's Crime Agenda

Roach kentKent Roach (University of Toronto - Faculty of Law) has posted The Charter versus the Government's Crime Agenda (Supreme Court Law Review, Vol. 58, pp. 211-243, 2012) on SSRN. Here is the abstract:

The Safe Streets and Communities Act S.C. 2012 c. 1 (also known as Bill C-10) , like many other parts of the Canadian government’s crime agenda, relies on both prosecutorial discretion and a general judicial reluctance to strike down mandatory sentences. Successful Charter challenges to mandatory sentences are not impossible as seen by Justice Molloy’s recent decision in Smickle, but they will be difficult. In particular the use of reasonable hypotheticals in s.12 analysis may be precluded by reliance on the assumption that longer mandatory sentences will not be applied when the Crown has the power to avoid such sentences by electing to prosecute the relevant crime by way of summary conviction. Courts will then be reluctant to review directly such exercises of prosecutorial discretion. The Supreme Court will ultimately have to decide whether it wishes to maintain the level of judicial deference towards mandatory sentences that it has demonstrated in the past. The articles argues that a more traditional approach to proportionality that focus on the relationship between particular crimes and punishment is more promising than newer approaches based on arbitrariness in relation to legislative purposes or gross disproportionality in the costs and benefits of legislative interventions as conduct in the Insite case and Bedford. At the same time, the article suggests that a contextual approach to proportionality between crimes and punishment that factors in offender characteristics should be taken s in Smith and Ipeelee and not the more abstract approach taken in Morrisey. Should mandatory sentences be found to violate either ss.7 or 12 of the Charter, they will be difficult to justify under s.1 and that such policy analysis about the necessity and effects of mandatory sentences is best conducted under s.1 rather than within ss.7 and 12 of the Charter.

December 30, 2012 | Permalink | Comments (0)

Carroll on Nullification as Law

Carroll-jenny-lg_1Jenny Carroll (Seton Hall University - School of Law) has posted Nullification as Law on SSRN. Here is the abstract:

The Rule of Law is central to our notion of governance and our legal system. The ideal of a knowable, settled, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm in which competing theories seek to claim the mantle of the Rule of Law. While this article cannot claim to resolve the dispute over the precise meaning or construct of the Rule of Law, it does seek to consider the questions that jury nullification raises in the context of our republican democracy. In so doing a more nuanced conception of the Rule of Law emerges – one grounded in the daily realities of the lives the law would govern. 

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December 30, 2012 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 815 Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study 
Dan M. Kahan
Yale University - Law School, 
Date posted to database: November 30, 2012 
2 389 Prison Visitation Policies: A Fifty State Survey 
Chesa BoudinTrevor StutzAaron Littman
Yale University - Law School, Yale University - Law School, Yale University - Law School, 
Date posted to database: November 6, 2012
3 195 Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs 
Michal Gilad
American Association of University Women (AAUW), 
Date posted to database: November 8, 2012 
4 189 Prosecutors and Professional Regulation 
Bruce A. Green
Fordham University School of Law, 
Date posted to database: November 17, 2012 [5th last week]
5 166 Exclusion and Control in the Carceral State 
Sharon Dolovich
University of California, Los Angeles - School of Law, 
Date posted to database: November 6, 2012 [6th last week]
6 153 Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis
Paul R. WilliamsJ. Trevor UlbrickJonathan Worboys
American University - Washington College of Law, Public International Law & Policy Group, Public International Law & Policy Group, 
Date posted to database: November 13, 2012 [9th last week]
7 145 Peeking Behind the Plea Bargaining Process
Laurie L. Levenson
Loyola Law School Los Angeles, 
Date posted to database: December 11, 2012 [new to top ten]
8 144 Teaching Prison Law 
Sharon Dolovich
University of California, Los Angeles - School of Law, 
Date posted to database: November 6, 2012 [10th last week]
9 143 Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents 
Bruce A. GreenEllen S. Podgor
Fordham University School of Law, Stetson University College of Law, 
Date posted to database: December 6, 2012 [8th last week]
10 127 Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280 
Robert T. Anderson
University of Washington School of Law, 
Date posted to database: December 6, 2012 [new to top ten]

 

December 30, 2012 | Permalink | Comments (0)

Saturday, December 29, 2012

Griffin on Narrative, Truth & Trial

Griffin lisa kernLisa Kern Griffin (Duke University - School of Law) has posted Narrative, Truth & Trial (101 Georgetown Law Journal 281 (2012)) on SSRN. Here is the abstract:

This article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication — according to which jurors process testimony by organizing it into competing narratives — has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials contain opportunities to promote more systematic consideration of evidence. Second, the article asserts that, to the extent the story model is descriptively correct with respect to the structure of juror decision making, it also gives rise to normative concerns about the tension between characteristic features of narrative and the truth-seeking aspirations of trial. Viewing trials through the lens of narrative theory brings sources of bias and error into focus and suggests reasons to increase the influence of analytic processes. The article then appraises improvements in trial mechanics — from prosecutorial discovery obligations through appellate review of evidentiary errors — that might account for the influence of stories. For example, a fuller understanding of narrative exposes the false assumption within limiting instructions that any piece of evidence exists in isolation. And to better inform how adjudicators respond to stories in the courtroom, the article argues for modifying instructions in terms of their candor, explanatory content, and timing.

December 29, 2012 | Permalink | Comments (0)

Lee on Deigh & Dolinko on the Philosophy of Criminal Law

Lee youngjaeYoungjae Lee (Fordham University School of Law) has posted What is Philosophy of Criminal Law? (Criminal Law and Philosophy, 2013, Forthcoming) on SSRN. Here is the abstract:

Review of John Deigh & David Dolinko, The Oxford Handbook of Philosophy of Criminal Law (2011).

December 29, 2012 | Permalink | Comments (0)

Young on U.S Firearms Trafficking and Mexican Drug Cartel Violence

Young stuart mStewart M. Young (University of Wyoming - College of Law) has posted Going Nowhere 'Fast' (or 'Furious'): The Nonexistent U.S. Firearms Trafficking Statute and the Rise of Mexican Drug Cartel Violence (University of Michigan Journal of Law Reform, Vol. 46, p. 1, 2012) on SSRN. Here is the abstract:

Drug trafficking violence in Mexico, now reaching epidemic proportions, greatly impacts both the Mexican and United States governments. Despite the escalation of the “War on Drugs,” drug trafficking from Mexico to the United States continues largely unabated, stifling tourism revenue and lawful economic opportunities, and causing violence previously unknown in Mexico. Thus far, the United States’ efforts to deal with this drug trafficking and violence include the recent debacle of Operation Fast and Furious. News regarding this Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) operation shocked citizens and lawmakers alike, as Fast and Furious allowed firearms to “walk” down to Mexico unimpeded in a futile attempt to identify firearms traffickers in Mexican drug cartels. Ultimately, this operation led to the presence of over two thousand additional firearms in Mexico, contributing to continued violence south of the U.S. border and the possibility of spillover violence back into the United States. An analysis of Operation Fast and Furious and other law enforcement attempts to stop firearms trafficking and drug cartel violence in Mexico demonstrates that the development and tactics of these operations require a more comprehensive approach to the problems facing Mexico and the United States.

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December 29, 2012 | Permalink | Comments (0)

Friday, December 28, 2012

Nemerov on Castle Doctrine Laws and Violent Crime

Howard Ross Nemerov (Texas A&M University) has posted Do Castle Doctrine Laws Impact Violent Crime? on SSRN. Here is the abstract:

Cheng Cheng and Mark Hoekstra, both of the Texas A&M University Economics Department, recently published a paper entitled “Does Strengthening Self-Defense Law Deter Crime or Escalate Violence? Evidence from Castle Doctrine.” They concluded that Castle Doctrine enhancements to self-defense law had no deterrent effect on burglary, robbery and aggravated assault, and increased murder. However, there are a number of errors, assumptions, and miscalculations in their research that justify revisiting the question of whether or not Castle Doctrine laws have any impact on crime.

December 28, 2012 | Permalink | Comments (1)

Thursday, December 27, 2012

Chen on California's Three-Strikes Law in Operation

Elsa Y. Chen (Santa Clara University--Political Science) has posted In the Furtherance of Injustice, Injustice, or Both? A Multilevel Analysis of Courtroom Context and the Implementation of Three Strikes (Justice Quarterly, pp. 1-30, 2012) on SSRN. Here is the abstract:

A hierarchical logistic model is used to analyze data on Three Strikes-eligible offenders in California and the counties in which they are sentenced. The analysis finds that discretion is widely exercised by elected prosecutors and judges in the administration of Three Strikes. Discretion functions as a “safety valve” and preserves some sentencing proportionality, but may also allow political concerns to influence sentencing decisions. A more conservative political environment is strongly associated with stricter application of the law. Consistent with racial threat theory, eligible felons are more likely to receive Three Strikes sentences in counties with larger Latino populations. However, the size of the black population has no significant effect. Higher unemployment rates are associated with more stringent application of the law. Prosecutorial and judicial discretion benefits offenders unequally. Controlling for legally relevant factors, black offenders are more likely to receive Three Strikes sentences, while younger ones are less likely.

December 27, 2012 | Permalink | Comments (1)

Leary on Commercial Erosion of Fourth Amendment Protection

Leary maryMary Leary (Catholic University of America (CUA)) has posted The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post-Google Earth World (15 University of Pennsylvania Journal of Constitutional Law 331 (2012)) on SSRN. Here is the abstract:

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the Court has stated that it would adjust the definition of a search if the government tried to “condition” citizens to have no expectation of privacy. 

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December 27, 2012 | Permalink | Comments (0)

Koehler on the Foreign Corrupt Practices Act Guidance

Mike Koehler (Southern Illinois University School of Law) has posted Grading the Foreign Corrupt Practices Act Guidance (White Collar Crime Report, 7, 961, December 2012) on SSRN. Here is the abstract:

This article is a critical analysis of the Foreign Corrupt Practices Act Guidance released by the Department of Justice and Securities and Exchange Commission. Issues discussed in the article include the following: (i) the enforcement agencies' motivations in issuing the Guidance and the fact that it should have been issued years ago; (ii) the utility of the Guidance from an access-of-information perspective and how the Guidance can be used as a measuring stick for future enforcement agency activity; (iii) how the Guidance is an advocacy piece and not a well-balanced portrayal of the FCPA as it is replete with selective information, half-truths, and, worse information that is demonstratively false; (iv) how, despite the Guidance, much about FCPA enforcement remains opaque; and (v) how, despite the Guidance, FCPA reform remains a viable issue.

December 27, 2012 | Permalink | Comments (0)

Sarma on Cultural Competence and Capital Jury Selection

Sarma bidishBidish Sarma (University of Califonia, Berkeley School of Law) has posted Challenges and Opportunities in Bringing the Lessons of Cultural Competence to Bear on Capital Jury Selection (University of Memphis Law Review, Vol. 42, No. 907, 2012) on SSRN. Here is the abstract:

The growing call to teach lawyers, investigators, mitigation specialists, and law students the skills required to provide culturally competent representation should be welcomed by all. A culturally insensitive criminal justice system has tolerated unfair processes and delivered unjust outcomes for too long. While the push for cultural competence has appropriately prioritized the attorney client relationship (reaching defense teams as a first step), at the present time less attention has been given to how to influence the views of other key actors, including prosecutors, legislators, judges, and jurors. This article specifically considers jurors in death penalty cases and contemplates how defense teams can utilize the lessons of cultural competence in questioning and selecting the jurors who will decide whether their client lives or dies. 

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December 27, 2012 | Permalink | Comments (0)

Wednesday, December 26, 2012

Penney on Police Questioning in the Charter Era

Steven Penney (University of Alberta - Faculty of Law) has posted Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-Making and the Problem of False Confessions ((2012) 57 Supreme Court Law Review (2d) 263 , Unsettled Legacy: Thirty Years of Criminal Justice under the Charter, p. 297, Benjamin L. Berger and James Stribopoulos, eds., LexisNexis, 2012) on SSRN. Here is the abstract:

Unlike in the areas of detention and search, Parliament has played no role in regulating the questioning of adult criminal suspects by police. This paper examines the implications of this legislative silence. Critics of the courts’ use of the ancillary powers doctrine in the law of detention and search have argued that the optimal regulation of police investigative practices requires robust legislative input. I argue that the same is true of police questioning. But given the improbability that this will happen, I argue that appellate courts should adopt a more robustly “regulatory” (as opposed to “adjudicative”) approach to both the common law confessions rule and section 10(b) of the Charter. I then explore how such an approach could better address the chief policy issue raised by police questioning: false confessions.

December 26, 2012 | Permalink | Comments (0)

Gaughan on Federal Prosecutions for State and Local Campaign Contributions

GaughanAnthonyAnthony Gaughan (Drake University Law School) has posted The Case for Limiting Federal Criminal Jurisdiction over State and Local Campaign Contributions (Arkansas Law Review, Vol. 65, No. 3, October 2012) on SSRN. Here is the abstract:

The thesis of this article is that Congress should amend the honest services fraud statute, 18 U.S.C. §1346, to bar the Justice Department from using it to prosecute individuals for making or receiving allegedly “corrupt” campaign contributions in state or local elections. This reform is necessary for three reasons. First, it is deeply unfair to subject state and local defendants to federal criminal liability on the basis of a vague federal statute and at a time when campaign finance law at all levels of government is in a state of flux. Second, federal prosecutors’ controversial use of Section 1346 to prosecute state and local candidates and contributors undermines the Justice Department’s reputation for political neutrality. Third, Section 1346 prosecutions of state and local candidates and contributors contradict basic principles of federalism. Curtailing the use of the honest services fraud statute will prevent federal prosecutors from imposing their own vision of campaign finance law on candidates and contributors in state and local elections. It will restore state attorneys general to their proper place as the principal enforcers of state campaign finance law. And it will help reduce, if not eliminate, the growing perception that political considerations improperly influence honest services fraud prosecutions.

December 26, 2012 | Permalink | Comments (0)

Bartels on Sentencing Scammers

Lorana Bartels (University of Canberra - School of Law and Justice) has posted Sentencing Scammers: Law and Practice (Trends and Issues in Crime and Criminal Justice No 443, Australian Institute of Criminology, 2012) on SSRN. Here is the abstract:

Consumer fraud costs Australians almost $1b a year and most of this fraud involves scams in which individuals are persuaded to part with an upfront, or advance, fee, with the promise of large financial or other gain in the future.

In this paper, consideration is given to the sentencing issues that apply in cases of this nature. In particular, the author examines the application of the key sentencing purposes, such as deterrence and rehabilitation, and the sentencing principles applied by courts, such as the proportionality principle, and the challenges that may arise in this context.

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December 26, 2012 | Permalink | Comments (0)

Tuesday, December 25, 2012

Carrington on Counseling Conscience

Carrington tuckerWilliam Tucker Carrington (University of Mississippi - School of Law) has posted Counseling Conscience (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The "innocent accused" scenario, in which a client comes to a lawyer and confesses a crime for which an innocent man has been accused is frequent fodder in legal ethics classes. Typically the focus is on concepts of confidentiality and privilege or, perhaps, whether a lawyer can, or should, reveal what the client has confessed in the interest of “justice” or "truth." The focus in this article, which is one of several comprising a symposium edition in The Ohio State Journal of Criminal Law – entitled "Confidential Confessions: How Lawyers, Clergy and Psychologists Counsel the Guilty" – is different. Its charge is to compare how members of various professional disciplines would counsel the confessing client in this situation, particularly about whether “moral considerations” ought to be a part of the counseling, and, if so, in what form. (The factual aspect of the hypothetical is based loosely on Morales v. Portuondo, 154 F. Supp. 2d 706 (2001)). The jumping off point, as it were, is that a former client, named Steven, has come to the lawyer's office and, after explaining the situation in which he finds himself, asks: "What do you think I should do?"

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December 25, 2012 | Permalink | Comments (0)

Kim on Bills of Attainder and Non-traditional Punishments

Andrew Kim has posted Falling from the Legislative Grace: The ACORN Defunding and the Proposed Restraint of Congress' Appropriations Power Through the Bill of Attainder Clause on SSRN. Here is the abstract:

This Comment discusses the interplay between the Bill of Attainder Clause and the Appropriations Clause. It uses the ACORN case to highlight the issues that result from applying the prohibition against attainder to non-traditional "punishment," e.g., an appropriations ban.

December 25, 2012 | Permalink | Comments (0)

"Crime labs need greater scrutiny, discipline"

Martin Yant has this post at The Wrongful Conviction Blog, concluding, "Forensic fraud and error are major causes of wrongful convictions, and that’s not likely to change without a lot more housecleaning at the nation’s crime labs."

December 25, 2012 | Permalink | Comments (0)

Sunday, December 23, 2012

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 765 Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study 
Dan M. Kahan
Yale University - Law School, 
Date posted to database: November 30, 2012 
2 385 Prison Visitation Policies: A Fifty State Survey 
Chesa BoudinTrevor StutzAaron Littman
Yale University - Law School, Yale University - Law School, Yale University - Law School, 
Date posted to database: November 6, 2012 
3 178 Who Will Protect the Children? The Untold Story of Unaccompanied Minors in Witness Protection Programs 
Michal Gilad
American Association of University Women (AAUW), 
Date posted to database: November 8, 2012 [7th last week]
4 176 The Crime and Punishment of States 
Gabriella Blum
Harvard Law School, 
Date posted to database: October 22, 2012 
5 163 Prosecutors and Professional Regulation 
Bruce A. Green
Fordham University School of Law, 
Date posted to database: November 17, 2012 
6 162 Exclusion and Control in the Carceral State 
Sharon Dolovich
University of California, Los Angeles - School of Law, 
Date posted to database: November 6, 2012 
7 149 Can the CEO Learn from the Condemned? The Application of Capital Mitigation Strategies to White Collar Cases 
Todd Haugh
Illinois Institute of Technology - Chicago-Kent College of Law, 
Date posted to database: October 19, 2012 [8th last week]
8 136 Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents 
Bruce A. GreenEllen S. Podgor
Fordham University School of Law, Stetson University College of Law, 
Date posted to database: December 6, 2012 [new to top ten]
9 143 Preventing Mass Atrocity Crimes: The Responsibility to Protect and the Syria Crisis
Paul R. WilliamsJ. Trevor UlbrickJonathan Worboys
American University - Washington College of Law, Public International Law & Policy Group, Public International Law & Policy Group, 
Date posted to database: November 13, 2012 [10th last week]
10 143 Teaching Prison Law 
Sharon Dolovich
University of California, Los Angeles - School of Law, 
Date posted to database: November 6, 2012 [9th last week]

 

December 23, 2012 | Permalink | Comments (0)

Saturday, December 22, 2012

Baxter on How States Force Public Defenders to Violate Ethical Obligations

Baxter heatherHeather Baxter (Nova Southeastern University - Shepard Broad Law Center) has posted Too Many Clients, Too Little Time: How States are Forcing Public Defenders to Violate Their Ethical Obligations (Federal Sentencing Reporter, Vol. 25, No. 2, p. 91, 2012) on SSRN. Here is the abstract:

Budget cuts have had a devastating effect on public defenders and their ability to effectively represent indigent clients, mostly in the form of increasing caseloads. Much has been written about the effect these excessive caseloads have had on indigent defendants’ right to counsel. This article, instead, focuses on how excessive caseloads are placing public defenders in ethical dilemmas. Public defenders are bound by the Model Rules of Professional Conduct, but these high caseloads are making it increasingly difficult for them to meet these required ethical standards. Specifically, it is more challenging for an attorney to represent indigent clients diligently and competently when dealing with caseload numbers well beyond the recommended levels. The author discusses why the solutions being offered by the American Bar Association‘s Formal Opinion 06-441 are not tenable and concludes that true reform in indigent defense is the only way to alleviate the excessive caseloads.

December 22, 2012 | Permalink | Comments (0)

Field on Crimes Involving Intangible Property

Thomas G. Field Jr. (University of New Hampshire School of Law) has posted Crimes Involving Intangible Property on SSRN. Here is the abstract:

A well-known cliché came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal. 

It therefore considers bases for prosecuting the theft of such intangible interests under U.S. federal and state law. 

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December 22, 2012 | Permalink | Comments (0)