CrimProf Blog

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

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Friday, April 27, 2012

Miller on Race, Authority, and the Fourth Amendment

Eric J. Miller (Saint Louis University - School of Law) has posted Detective Fiction: Race, Authority, and the Fourth Amendment (Arizona State Law Journal, Vol. 44, p. 214, 2012) on SSRN. Here is the abstract:

In this article, I break from the usual liberal critiques of modern policing, and instead attempt to lay the theoretical and practical groundwork for a positive vision of police authority. Liberal theories of policing rightly worry about police discretion or state coercion given the history of racially discriminatory policing. That emphasis tends to produce negative accounts of police authority that emphasize curtailing police discretion. Equally important, however, is to define the nature of legitimate police authority under the Fourth Amendment.

While Fourth Amendment doctrine is nominally about a citizen’s reasonable expectations of privacy, the Court’s current approach appears to equate the reasonableness of police conduct with evidence that, whatever the police actually do, they are professional, experienced, and well trained. The Courts’ reasonableness-as-professionalism doctrine is, however, a fiction: it is a fiction that we know what good policing is; a fiction that graduation from the academy and exposure to crime on the street certifies the police as professional; and a fiction that professionalism requires an authoritarian and forceful stance towards suspects to maintain order and investigate crime.

Rather than relying a disappearing privacy doctrine to fight the Court’s Fourth Amendment doctrine, liberals must interrogate what skillful policing really entails. The proper response to the current Court’s fictional Fourth Amendment reasonableness doctrine is realism about skillful, legitimate policing. Realism requires that lawyers, and the academy, interrogate what training officers actually receive; what experience individual officers have; and to consider whether the officer’s training and experience matches our standards for skillful, legitimate policing.

Legitimate policing has two components, normative and empirical. The normative component establishes police authority as based in reason, not might. Normatively legitimate police authority is egalitarian, not subordinating. The empirical component focuses on the mutual exchange between citizen and police officer of respect for the dignity of the other. Following the work of Tom Tyler, I suggest that empirically legitimate policing induces compliance out of obligation not fear. The goal of policing (and of the Fourth Amendment’s reasonableness doctrine) should be to promote police-citizen encounters that develop along lines of consensus not coercion.

April 27, 2012 | Permalink | Comments (0)

Grubman on Inevitable Discovery and Arizona v. Gant

Scott Robert Grubman has posted Bark With No Bite: How the Inevitable Discovery Rule is Undermining the Supreme Court’s Decision in Arizona V. Gant (The Journal of Criminal Law & Criminology, Vol. 101, No. 1, pp. 119-170 (2011)) on SSRN. Here is the abstract:

In 2009, the Supreme Court issued its decision in Arizona v. Gant, in which it significantly limited the search incident to arrest exception in the automobile search context. Despite what many experts predicted, Gant did not open the floodgates of evidence suppression. This is because the Gant holding is substantially undermined by the inevitable discovery rule, under which otherwise illegally-seized evidence is deemed admissible under certain circumstances. This article discusses why the Court’s decision in Gant lacks real-world, practical effect, and how the Court can close the loophole in its Gant holding.

April 27, 2012 | Permalink | Comments (1)

Thursday, April 26, 2012

Grubman on the Necessity of Immigration Counsel in Criminal Prosecutions

Scott Robert Grubman (U.S. Department of Justice; U.S. Attorney's Office, Southern District of Georgia) has posted I Want My (Immigration) Lawyer! The Necessity of Court-Appointed Immigration Counsel in Criminal Prosecutions after Padilla v. Kentucky (Nevada Law Journal, Vol. 12, No. 2, pp. 364-394 (2012)) on SSRN. Here is the abstract:

In Padilla v. Kentucky, the Supreme Court held that, under the Sixth Amendment, counsel is required to advise a noncitizen of the possibility of deportation in the event of a criminal conviction in order for the representation to be constitutionally valid. In cases where the immigration consequences of a plea or conviction are clear and succinct, an attorney is required to discuss those consequences with the client. However, in cases where those consequences are less certain, an attorney is only required to advise the client regarding the possibility of such consequences. This Article discusses what happens when the immigration consequences are too complicated for a criminal attorney to ascertain but the client is indigent and cannot afford to hire an immigration attorney.

April 26, 2012 | Permalink | Comments (0)

Parkes & Daniel on Political Protest, Mass Arrests, and Mass Detention

Debra L. Parkes and Meaghan Daniel (University of Manitoba - Faculty of Law and Falconer Charney LLP) have posted Political Protest, Mass Arrests, and Mass Detention: Fundamental Freedoms and (Un)Common Criminals on SSRN. Here is the abstract:

“No Justice. No Peace.” The mass arrest and detention of over 1,105 people during the Toronto G20 summit in June 2010, including author Meaghan Daniel, prompted reflection on the connections between justice and peace and in particular, between peaceful protest, policing, detention and the justice system. The record breaking weekend of mass arrests and temporary detention of people described as “innocent bystanders” and “peaceful protestors” provoked an ongoing conversation about the criminalization of protest. It is the authors’ hope to extend this conversation beyond these (un)common criminals to the “every day” processes of criminalization and imprisonment that go largely unquestioned in this country. The article shares the narrative of Meaghan’s arrest and detention while participating as a legal observer during the G20 summit weekend. In the course of telling that story, the authors briefly reflecting on two themes: (1) the criminalization of dissent, including through the power to arrest for “breach of the peace” and the apparent impotence of constitutionally entrenched rights to free expression and peaceful assembly to restrain such police power; and (2) connections between the experiences and activism of the G20 detainees and the thousands of other prisoners in Canada – these “common criminals” with whom progressive social movements have not always seen common cause.

April 26, 2012 | Permalink | Comments (0)

Wednesday, April 25, 2012

Bierschbach on Proportionality and Parole

Bierschbach richardRichard A. Bierschbach (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Proportionality and Parole (University of Pennsylvania Law Review, Vol. 160, No. 5, Forthcoming 2012) on SSRN. Here is the abstract:

Commentators analyzing the Supreme Court’s watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of punishment to the institutional structure of sentencing. By requiring the state to revisit its first-order sentencing judgments at a later point in time, Graham mandates a procedural space for granular, individualized, and ultimately more reliable sentencing determinations. I expose this procedural and institutional side of parole’s constitutional significance, situate it within the constitutional landscape of sentencing, and sketch some of its implications for the future of sentencing regulation.

April 25, 2012 | Permalink | Comments (0)

Vazquez & Vladeck on State Law, the Westfall Act, and Bivens Actions

Carlos Manuel Vazquez and Stephen I. Vladeck (Georgetown University Law Center and American University - Washington College of Law) have posted State Law, the Westfall Act, and the Nature of the Bivens Question after Minneci v. Pollard (161 U. Pa. L. Rev. (Forthcoming 2012)) on SSRN. Here is the abstract:

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

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April 25, 2012 | Permalink | Comments (0)

Giannelli on Literature Discussing the 2009 NAS Forensic Science Report

Paul C. Giannelli (Case Western Reserve University School of Law) has posted The 2009 NAS Forensic Science Report: A Literature Review (48 Crim. L. Bulletin 378 (2012)) on SSRN. Here is the abstract:

In February 2009, the National Academy of Sciences (NAS) released its report on forensic science: Strengthening Forensic Science in the United States: A Path Forward (2009). The popular press immediately trumpeted the report’s release, with headlines such as (1) “Report Urges Overhaul of Crime Lab System,” (2) “Real-life Police Forensics Don’t Resemble ‘CSI’: Reliability is ‘Low or Non-existent,’ Report Finds” and (3) “Science Found Wanting in Nation’s Crime Labs.”

Within three months of its publication, Justice Scalia cited the report in a Supreme Court decision, writing: “Forensic evidence is not uniquely immune from the risk of manipulation. . . Serious deficiencies have been found in the forensic evidence used in criminal trials.” Both the Senate and the House held hearings, and a bill was introduced in Congress. In addition, the President appointed a committee on forensic science.

Several law schools held conferences on the report, and a number legal journals published symposia. Law review articles variously described the report as a “blockbuster,” “a watershed,” “a scathing critique,” “a milestone,” and “pioneering.” This essay briefly discusses some of these articles as well as aspects of the congressional hearings.

April 25, 2012 | Permalink | Comments (0)

Argument transcript in Arizona immigration case

The transcript in Arizona v. United States is here.

April 25, 2012 | Permalink | Comments (0)

Tuesday, April 24, 2012

Weissman on Domestic Violence

Weissman deborahDeborah M. Weissman (University of North Carolina School of Law) has posted Law, Social Movements, and the Political Economy of Domestic Violence (Duke Journal of Gender Law & Policy, Forthcoming) on SSRN. Here is the abstract:

This article uses the occasion of the 2012 Reauthorization of the Violence Against Women Act (VAWA) to review the circumstances by which legal theory and social movement discourse have acted to circumscribe the scope of VAWA and the dominant approach to domestic violence. It seeks to explore the relationship between domestic violence advocacy and feminist theory of the type that has functioned as “the ideological reflection of one’s own place in society” with insufficient attention to superstructures. It argues for the re-examination of the current domestic violence/criminal justice paradigm and calls for the consideration of economic uncertainty and inequality as a context for gender-based violence. It argues that as an epistemology, domestic violence scholarship has fallen behind other fields of study due to its failure to address the structural context of gender-based violence. The article then proposes a redefinition of the parameters of domestic violence law and presents new (and provocative) ways to think about law-related interventions to ameliorate gender violence.

April 24, 2012 | Permalink | Comments (0)

King on Counsel in Misdemeanor Cases

King johnJohn Derek King (Washington and Lee University) has posted Beyond 'Life and Liberty': The Evolving Right to Counsel (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), 2013) on SSRN. Here is the abstract:

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The hidden consequences of a conviction may never be explained to the person choosing to plead guilty, leading to unjust results that happen more regularly and with more severe consequences than ever before.

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April 24, 2012 | Permalink | Comments (0)

Kaye on Chimeric Criminals

Kaye davidDavid H. Kaye (The Pennsylvania State University) has posted Chimeric Criminals (Minnesota Journal of Law, Science & Technology, Vol. 14, No. 1, Fall 2012) on SSRN. Here is the abstract:

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains why.

April 24, 2012 | Permalink | Comments (0)

Court says 10th Circuit should not have raised deliberately waived AEDPA time limitation

Justice Ginsburg wrote the opinion for the Court in Wood v. Milyard. Justice Thomas, joined by Justice Scalia, concurred in the judgment.

April 24, 2012 | Permalink | Comments (0)

Monday, April 23, 2012

Blank & Staudt on Corporate Shams

Joshua D. Blank and Nancy C. Staudt (New York University School of Law and USC Law School) have posted Corporate Shams (New York University Law Review, Vol. 87, 2012) on SSRN. Here is the abstract:

Many people — perhaps most — want to make money and lower their taxes, but few want to unabashedly break the law. These twin desires have led to a range of strategies, such as the use of “paper corporations” and off-shore tax havens, that produce sizable profits with minimal costs. The most successful and ingenious plans do not involve shady deals with corrupt third-parties, but strictly adhere to the letter of the law. Yet the technically legal nature of the schemes has not deterred government lawyers from challenging them in court as “nothing more than good old-fashioned fraud.”

In this Article, we focus on the government challenges to corporate financial plans — often labeled corporate shams — in an effort to understand how and why courts draw the line between legal and fraudulent behavior. Quite a few scholars and commentators have investigated this question and nearly all agree: judicial decision making in this area of the law is erratic and unpredictable. We build on the extant literature with the help of a large dataset — the first of its kind — and uncover important and heretofore unobserved trends. Indeed, courts have not produced a confusing morass of outcomes as some have argued, but have generated more than a century of opinions that collectively highlight the point at which ostensibly legal planning shades into abuse and fraud. After discussing our empirical results, we show how they can be exploited by both government and corporate attorneys and explore how they bolster many of normative views set forth by the scholarly and policymaking communities.

April 23, 2012 | Permalink | Comments (0)

Jackson et al. on Trust in the Police in England and Wales

Jonathan Jackson , Ben Bradford , Elizabeth A. Stanko and Katrin Hohl (London School of Economics & Political Science - Methodology Institute , University of Oxford - Centre for Criminology , affiliation not provided to SSRN and London School of Economics - Methodology Institute) have posted Just Authority? Trust in the Police in England and Wales (Pre-publication first chapter from 'Just Authority? Trust in the Police in England and Wales', to be published by Routledge in Summer 2012) on SSRN. Here is the abstract:

What does it mean to trust the police? What makes the police legitimate in the eyes of the policed? What builds trust, legitimacy and cooperation, and what undermines the bond between police and the public? These questions are central to current debates concerning the relationship between the British police and the public it serves. Yet, in the context of British policing they are seldom asked explicitly, still less examined in depth. Drawing on psychological and sociological explanatory paradigms, Just Authority presents a cutting-edge empirical study into public trust, police legitimacy, and people’s readiness to cooperate with officers. It represents, first, the most detailed test to date of Tom Tyler’s procedural justice model attempted outside the United States. Second, it uncovers the social ecology of trust and legitimacy. Third, it describes the relationships between trust, legitimacy and cooperation. This book contains many important lessons for practitioners, policy-makers and academics. As elsewhere the dominant vision of policing in Great Britain continues to stress instrumental effectiveness: the ‘fight against crime’ will be won by pro-active and even aggressive policing. In line with work from the United States and elsewhere, Just Authority casts significant doubt on such claims. When people find policing to be unfair, disrespectful and careless of human dignity, not only is trust lost, legitimacy is also damaged and cooperation is withdrawn as a result. Absent such public support, the job of the police is made harder and the avowed objectives of less crime and disorder placed ever further from reach.

April 23, 2012 | Permalink | Comments (0)

Gray on The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence

David C. Gray (Maryland School of Law)

David C. Gray (Maryland School of Law) has posted A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence (American Criminal Law Review, Vol. 50, No. 1, Forthcoming) on SSRN.  Here is the abstract: 

Much of the Supreme Court’s contemporary Fourth Amendment exclusionary rule jurisprudence is constructed upon an analytic mistake that H.L.A. Hart described in another context as a “spectacular non sequitur.” That path to irrelevance is paved by the Court’s recent insistence that the sole justification for excluding evidence seized in violation of the Fourth Amendment is the prospect of deterring law enforcement officers. This deterrence-only approach ignores or rejects more principled justifications that inspired the rule at its genesis and have sustained it through the majority of its history and development. More worrisome, however, is the conceptual insufficiency of deterrence considerations alone to justify core components of the Court’s Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the requirement to show standing.

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April 23, 2012 | Permalink | Comments (0)

Morse on Neuroscience and the Future of Personhood and Responsibility

Stephen Morse (University of Pennsylvania Law School)

Stephen Morse (University of Pennsylvania Law School) has posted Neuroscience and the Future of Personhood and Responsibility (Constitution 3.0: Freedom and Technological Change, Jeffrey Rosen, Benjamin Wittes eds., Brookings Institution Press, 2011) on SSRN.  Here is the abstract: 

This is a chapter in a book, Constitution 3.0: Freedom and Technological Change, edited by Jeffrey Rosen and Benjamin Wittes and published by Brookings. It considers whether likely advances in neuroscience will fundamentally alter our conceptions of human agency, of what it means to be a person, and of responsibility for action. I argue that neuroscience poses no such radical threat now and in the immediate future and it is unlikely ever to pose such a threat unless it or other sciences decisively resolve the mind-body problem. I suggest that until that happens, neuroscience might contribute to the reform of doctrines that do not accurately reflect truths about human behavior, to the resolution of individual cases, and to the efficient operation of various legal practices. If the power to predict and prevent dangerous behavior becomes sufficiently advanced, however, traditional notions of responsibility and guilt might simply become irrelevant.

April 23, 2012 | Permalink | Comments (0)

"Bias Law Used to Move a Man Off Death Row"

From the New York Times:

FAYETTEVILLE, N.C. — Concluding that racial bias played a significant factor in a death sentence here 18 years ago, a judge on Friday ordered that it be changed to life in prison without parole, the first such decision under North Carolina’s controversial Racial Justice Act.

The landmark ruling could be the first of many under the law, which allows future defendants and current death row inmates to present evidence, including statistical patterns, suggesting that race played a major role in their being sentenced to death.

. . .

North Carolina’s law allows a defendant to argue that race was a significant factor in his death sentence by presenting evidence along any of three lines: that a death sentence was more likely to be sought or imposed on defendants of one race, that it was more likely when the victim was a certain race or that racial bias influenced jury selection.

April 23, 2012 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 1636 Law Deans in Jail
Morgan Cloud, George B. Shepherd,
Emory University School of Law, Emory University School of Law,
Date posted to database: January 25, 2012
2 265 SlutWalking in the Shadow of the Law: Rape and Sexuality in Legal Theory and Practice
Deborah Tuerkheimer,
DePaul University - College of Law,
Date posted to database: February 22, 2012
3 247 Implicit Bias in the Courtroom
Jerry Kang, Mark W. Bennett, Devon W. Carbado, Pamela Casey, Nilanjana Dasgupta, David L. Faigman, Rachel D. Godsil, Anthony G. Greenwald, Justin D. Levinson, Jennifer Mnookin,
University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of California, Los Angeles (UCLA) - School of Law, Unaffiliated Authors - affiliation not provided to SSRN, University of Massachusetts at Amherst - Psychology, University of California - UC Hastings College of the Law, Seton Hall University - School of Law, University of Washington - Graduate Department of Psychology, University of Hawaii at Manoa - William S. Richardson School of Law, University of California, Los Angeles (UCLA) - School of Law,
Date posted to database: March 21, 2012 [9th last week]
4 234 Misdemeanors
Alexandra Natapoff,
Loyola Law School Los Angeles,
Date posted to database: February 25, 2012  
5 232 Ensuring an Impartial Jury in the Age of Social Media
Amy J. St. Eve, Michael A. Zuckerman,
U.S. District Court Judge, U.S. District Court,
Date posted to database: March 13, 2012 [6th last week]
6 223 The Delaware Death Penalty: An Empirical Study
Sheri Lynn Johnson, John H. Blume, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells,
Cornell Law School, Cornell Law School, Cornell University - School of Law, Cornell University - School of Law, Cornell University - School of Law,
Date posted to database: March 11, 2012 [7th last week]
7 170 Prisons, Privatization, and the Elusive Employee-Contractor Distinction
Alexander Volokh,
Emory University - School of Law,
Date posted to database: February 25, 2012 [8th last week] 
8 136 From Peer-to-Peer Networks to Cloud Computing: How Technology Is Redefining Child Pornography Laws
Audrey Rogers,
Pace University - School of Law,
Date posted to database: February 18, 2012 [10th last week]
9 120 Protecting Liberty and Autonomy: Desert/Disease Jurisprudence
Stephen Morse,
University of Pennsylvania Law School,
Date posted to database: February 13, 2012 [new to top ten]
10 108 Thirteen Ways to Steal a Bicycle: Theft Law in the Information Age (Introduction)
Stuart P. Green,
Rutgers, The State University of New Jersey - School of Law-Newark,
Date posted to database: March 23, 2012 [new to top ten]

April 23, 2012 | Permalink | Comments (0)