CrimProf Blog

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

Saturday, September 8, 2012

Barkow on Prosecutorial Administration

Barkow rachelRachel E. Barkow (New York University (NYU) - School of Law) has posted Prosecutorial Administration on SSRN. Here is the abstract:

It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlimited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws. 

But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymaking. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter. 

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September 8, 2012 | Permalink | Comments (0)

Friday, September 7, 2012

Fagan, Davies & Carlis on Race and Selective Enforcement in Public Housing

Fagan jeffreyJeffrey Fagan (pictured), Garth Davies and Adam Carlis (Columbia Law School , Simon Fraser University (SFU) - School of Criminology and Columbia University - Law School) have posted Race and Selective Enforcement in Public Housing on SSRN. Here is the abstract:

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop.

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September 7, 2012 | Permalink | Comments (0)

Fettig on Applying Leon to Government Reliance on Wiretap Orders

Fettig derikDerik T. Fettig (Hamline University School of Law) has posted When 'Good Faith' Makes Good Sense: Applying Leon’s Exception to the Exclusionary Rule to the Government’s Reasonable Reliance on Title III Wiretap Orders (Harvard Journal on Legislation, Vol. 49, p. 373, 2012) on SSRN. Here is the abstract:

The good faith exception to the exclusionary rule, as set out by the Supreme Court in United States v. Leon, is well established when the government relies on a traditional search warrant. Its applicability to the government’s reliance on wiretap orders issued under Title III, the federal wiretap law, remains an open question, however. While there is a circuit split on the issue, commentators have uniformly opposed application of the good faith exception in Title III cases. By contrast, this Article makes a comprehensive case for a good faith exception for the government’s reasonable reliance on Title III wiretap orders. First, this Article briefly outlines Title III’s suppression remedy, the law related to the exclusionary rule outside the wiretap context, and the circuit split over application of the good faith exception in Title III wiretap cases. Next, this Article analyzes the current divide in the courts and considers the arguments of commentators opposed to a good faith exception in wiretap cases. It concludes that the text and legislative history of Title III support application of the good faith exception but acknowledges that outcome is not clear under the current version of the statute. Thus, this Article concludes by examining the normative and practical implications of a good faith amendment to Title III. It argues that the good faith exception is more applicable to reliance on wiretap orders than reliance on traditional search warrants, in part due to the more detailed requirements for the government to obtain authorization for electronic surveillance. It also addresses specific concerns raised by courts and commentators and explains why inclusion of a good faith amendment in Title III will not lead to increased government wiretapping or an erosion of Title III’s suppression remedy.

September 7, 2012 | Permalink | Comments (0)

Smyth on Holistic Defense in a Post-Padilla World

J. McGregor Smyth Jr. has posted 'Collateral' No More — The Practical Imperative for Holistic Defense in a Post-Padilla World...Or, How to Achieve Consistently Better Results for Clients (St. Louis University Public Law Review, Vol. 31, p. 139, 2011) on SSRN. Here is the abstract:

The Supreme Court’s seminal decision in Padilla v. Kentucky capped over a decade of increasing focus on the so-called “collateral” consequences of criminal proceedings. The Court held that to provide effective assistance of counsel, a criminal defense attorney has an affirmative duty to give specific, accurate advice to noncitizen clients of the deportation risk of potential pleas. The majority’s analysis in fact reaches far beyond advice on immigration penalties, extending to any and all serious and likely penalties intimately related to the criminal charges.

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September 7, 2012 | Permalink | Comments (0)

Thursday, September 6, 2012

"Federal judge upholds Arizona immigration law"

From Jurist:

A judge for the US District Court for the District of Arizona [official website] on Wednesday upheld [opinion, PDF] a controversial provision of Arizona's immigration law[SB 1070, PDF] that requires law enforcement officials to check the immigration status of persons they stop or arrest if there is a reasonable suspicion that the person is in the US illegally. Judge Susan Bolton, after hearing arguments [JURIST report] on the law in August, denied the plaintiff's request for a preliminary injunction in light of the US Supreme Court [official website] ruling in Arizona v. United States [opinion, PDF; JURIST report] which upheld the provision. Arizona Governor Jan Brewer [official website] praised [press release] the court's ruling, saying this "most critical section" of the law will "empower state and local law enforcement." Alessandra Soler, executive director of the American Civil Liberties Union of Arizona (ACLU) [advocacy website], expressed concern [press release] over the ruling.

September 6, 2012 | Permalink | Comments (1)

"Two District Court Rulings That Cell-Site Data Not Protected Under the Fourth Amendment"

Orin Kerr has this post at The Volokh Conspiracy

September 6, 2012 | Permalink | Comments (0)

"Informants as Pawns in the War on Drugs"

This post is at Talk Left, discussing inter alia an article at The New Yorker and another from The New York Times Magazine.

September 6, 2012 | Permalink | Comments (1)

Markoff on the Myth of the Corporate Death Penalty

Gabriel Markoff has posted Arthur Andersen and the Myth of the Corporate Death Penalty: Corporate Criminal Convictions in the Twenty-First Century on SSRN. Here is the abstract:

The conventional wisdom states that prosecuting corporations can subject them to terrible collateral consequences that risk putting them out of business and causing massive social and economic harm. Under this viewpoint, which has come to dominate the literature following the demise of Arthur Andersen after that firm’s prosecution in the wake of the Enron scandal, even a criminal indictment can be a “corporate death penalty.” The Department of Justice (“DOJ”) has implicitly accepted this view by declining to prosecute many large companies in favor of using criminal settlements called deferred prosecution agreements, or “DPAs.” Yet, there is no evidence to support the existence of the “Andersen Effect” and the much-hyped corporate death penalty. Indeed, no one has ever empirically studied what happens to companies after conviction. In this Article, I do just that. Using the database of organizational convictions made publicly available by Professor Brandon Garrett, I find that no publicly traded company failed because of a conviction in the years 2001–2010. Moreover, many convictions included plea agreements imposing compliance programs that advocates have pointed to as a key justification for using DPAs. Because corporate convictions do not have the terrible consequences they were assumed to have, and because they can be used to obtain compliance programs just as DPAs can, the DOJ should prosecute more lawbreaking companies and reserve DPAs for extraordinary circumstances. In the absence of some other justification for using DPAs, the DOJ should exploit the stronger deterrent value of corporate prosecution to its full capacity. 

September 6, 2012 | Permalink | Comments (0)

Aylingt on Deliberative Improvements for Serious Crime Legislation

Julie M. Ayling (Australian National University) has posted Haste Makes Waste: Deliberative Improvements for Serious Crime Legislation on SSRN. Here is the abstract:

Too often the making of laws on serious crime is conducted in haste. Unnecessary, ineffective or invalid laws on serious crime have major negative impacts on both individuals and societies. The processes that permit the creation of such laws clearly need reforming. In order to slow down and bring more rationality to the legislative process for serious crime, a clear and mandatory ex ante deliberative system that enables a thorough assessment of the costs and benefits of legislating and of particular legislative approaches is needed. This article draws on work by Dryzek to identify the elements of a deliberative system – authenticity, inclusiveness and the quality of being consequential. It assesses Australia’s current legislative processes for serious crime against this deliberative standard and concludes that they rarely meet it. Several practical steps that could be taken to incorporate deliberation into serious crime lawmaking are suggested: the creation of guides to legislative approaches for use by policy makers, the introduction of an ex ante impact assessment process (termed a Serious Crime Legislation Impact Assessment or SCLIA), and the establishment of actor networks registers to facilitate consultative processes. The adoption of such a deliberative system would result in better, more evidence-based and impact-sensitive serious crime legislation. 

September 6, 2012 | Permalink | Comments (0)

Vladeck on the New National Security Canon

Vladeck stephenStephen I. Vladeck (American University - Washington College of Law) has posted The New National Security Canon (61 Am. U. L. Rev. 1295 (2012)) on SSRN. Here is the abstract:

Why have victims of post-September 11 governmental misconduct met with virtually no success thus far in pursuing damages claims arising out of the government’s alleged abuses? One explanation is that these cases are nothing more than one piece of a larger puzzle in which fewer and fewer civil plaintiffs have been able to recover in any suit alleging official misconduct. After all, it is a familiar trope that the Supreme Court has shown increasing skepticism in recent years toward civil plaintiffs in damages suits against government officers. Complicating matters, because reasonable minds continue to disagree about the legality of the surveillance, detention, and treatment of terrorism suspects (and a host of other controversial measures) since September 11, different perspectives on the underlying legal questions will necessarily color our view of whether the absence of relief in these cases is a new — or troubling — development.

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September 6, 2012 | Permalink | Comments (0)

Wednesday, September 5, 2012

Vandervort on Sexual Consent as Voluntary Agreement

Lucinda Vandervort (University of Saskatchewan) has posted Sexual Consent as Voluntary Agreement: Tales of 'Seduction' or Questions of Law? (New Criminal Law Review: An International and Interdisciplinary Journal, Vol. 16, No. 1, (January, 2013)) on SSRN. Here is the abstract:

This draft of a forthcoming article proposes a rigorous method to “map” the law on to the facts in the legal analysis of “sexual consent” using a series of mandatory questions of law designed to eliminate the legal errors often made by decision-makers who routinely rely on personal beliefs about and attitudes towards “normal sexual behavior” in screening and deciding cases. In Canada, sexual consent is affirmative consent, the communication by words or conduct of “voluntary agreement” to a specific sexual activity, with a specific person. As in many jurisdictions, however, the sexual assault laws are often not enforced. Reporting is lowest and non-enforcement highest in cases involving the most common type of assailants, those who are not strangers but instead persons the complainant knows, often quite well -- acquaintances, supervisors or co-workers, and family members. Reliance on popular narratives about “seduction” and “stranger-danger” leads complainants, police, prosecutors, lawyers, and trial judges, to truncate legal analysis of the facts and leap to erroneous conclusions about “consent.” Wrongful convictions and perverse acquittals, questionable plea bargains and ill-considered decisions not to charge, result. This proposal is designed to curtail the impact of pre-judgments, assumptions, and biases in legal reasoning about voluntariness and affirmative agreement and produce decisions that are legally sound, based on the application of the rule of law to the material facts. Law has long had better tools than the age-old and popular tales of “ravishment” and “seduction.” Those tools can and should be used.

September 5, 2012 | Permalink | Comments (0)

Bradford et al. on Police Legitimacy in Less Secure Societies

Huq azizBen Bradford , Aziz Z. Huq (pictured), Jonathan Jackson and Benjamin J. Roberts (University of Oxford - Centre for Criminology , University of Chicago Law School , London School of Economics & Political Science - Methodology Institute and Human Sciences Research Council of South Africa (HSRC)) have posted What Price Fairness When Security is at Stake? Police Legitimacy in South Africa on SSRN. Here is the abstract:

The legitimacy of legal authorities – particularly the police – is central to the state’s ability to function in a normatively justifiable and effective manner. Studies, mostly conducted in the US and UK, regularly find that procedural justice is the most important antecedent of police legitimacy, with judgements about other aspects of its behaviour – notably, its effectiveness – appearing less relevant. But this idea has received only sporadic testing in less cohesive societies where social order is more tenuous, resources to sustain it scarcer, and where the position of the police is less secure. This paper considers whether the link between process fairness and legitimacy holds in the challenging context of present day South Africa. In a high crime and socially divided society do people still emphasise procedural fairness, or are they more interested in instrumental effectiveness? How is the legitimacy of the police influenced by the wider problems faced by the South African state? We find procedural fairness judgements play a key role, but also that South Africans place greater emphasis on police effectiveness (and concerns about crime). We also find that police legitimacy is associated with citizens’ judgements about the wider success and trustworthiness of the state. This opens up new directions for legitimacy research in the context of policing and criminal justice.

September 5, 2012 | Permalink | Comments (0)

Tuesday, September 4, 2012

Call for papers on family interactions with the criminal justice system

The Journal of Gender, Race & Justice is holding its annual symposium on March 7-8, 2013. Titled Modern Families: Changing Families, Challenging Laws, the symposium focuses on three specific areas within family law: families of racial minorities, LGBT families, and family interactions with the criminal justice system. The Journal would like to invite legal authors of all perspectives to submit proposals for articles for the symposium to fill Volume 17 of our publication. Articles or propsoal submissions, along with a curriculum vitae, should be sent to Iain Johnson at The submission deadline is November 30, 2012. 

September 4, 2012 | Permalink | Comments (0)

Caldwell on Gang Injunctions

Caldwell bethBeth Caldwell (Thomas Jefferson School of Law) has posted Criminalizing Day-to-Day Life: A Socio-Legal Critique of Gang Injunctions (American Journal of Criminal Law, Vol. 37, No. 3, 2010) on SSRN. Here is the abstract:

Civil gang injunctions criminalize a wide range of day-to-day activities, such as riding bicycles or appearing in public view with others subject to an injunction. In practice, gang injunctions severely limit people's rights. However, the California Supreme Court has found that injunctions do not violate the United States Constitution. Their reasoning is based on misconceptions about the impacts of injunctions on people's lives and, in turn, their liberty interests. This article incorporates social science theory about gang involvement with narrative examples demonstrating the extent to which gang injunctions burden people's liberty interests to highlight unconstitutional aspects of gang injunctions. 

September 4, 2012 | Permalink | Comments (0)

Dillard on Competency Doctrine in Capital Cases

Dillard amyAmy Dillard (University of Baltimore - School of Law) has posted Madness Alone Punishes the Madman: The Search for Moral Dignity in the Court's Competency Doctrine as Applied in Capital Cases (Tennessee Law Review, Vol. 79, p. 461, 2012) on SSRN. Here is the abstract:

The purposes of the competency doctrine are to guarantee reliability in criminal prosecutions, to ensure that only those defendants who can appreciate punishment are subject to it, and to maintain moral dignity, both actual and apparent, in criminal proceedings. No matter his crime, the “madman” should not be forced to stand trial. Historically, courts viewed questions of competency as a binary choice, finding the defendant either competent or incompetent to stand trial. However, in Edwards v. Indiana, the Supreme Court conceded that it views competency on a spectrum and offered a new category of competency — borderline-competent. The Court held that borderline-competent defendants may proceed to trial so long as they are represented by counsel. This Article examines borderline- competent defendants in the context of capital prosecution and argues that those defendants, like mentally retarded defendants, pose a special risk that the death penalty will be imposed in spite of factors that may call for a less severe penalty. In the death penalty context where the proceedings are complex, the risks are enormous, and the demand for moral dignity is greatest, using competent counsel as a proxy for the capital defendant’s competency violates the defendant’s due process rights. This Article maintains that those defendants who are incompetent to proceed to trial without counsel should be categorically exempted from death.

September 4, 2012 | Permalink | Comments (0)

Monday, September 3, 2012

Weisberg on Reality-Challened Philosophies of Punishment

Weisberg robertRobert Weisberg (Stanford Law School) has posted Reality-Challenged Philosophies of Punishment (Marquette Law Review, Vol. 95, No. 4, 2012) on SSRN. Here is the abstract:

This paper, derived from the 2012 Barrock Lecture delivered at Marquette University Law School, explores the radical disconnection between the contemporary jurisprudence of punishment in the American academy and the raw facts of American imprisonment, the condition generally decried as “mass incarceration.” Most obviously, retributivism, which has been the dominant purported rationale for American punishment over the last 40 years and also the dominant force modern philosophical debates about the purposes of punishment, pays virtually no heed to the anomaly that we have the highest imprisonment rate in the nation’s history and arguably the highest in the world. More specifically, while relying on assumptions about moral desert and proportionate penalty, retributivism ignores that our system takes its heaviest toll on, and arguably worsens the social and economic condition of, poor minority men of limited education, and that it imposes a lifetime economic penalty far behind the loss of liberty and income during the time of incarceration.

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September 3, 2012 | Permalink | Comments (0)

Sunday, September 2, 2012

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 362 Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration 
Heather CucoloMichael L. Perlin
New York Law School, New York Law School, 
Date posted to database: July 26, 2012 
2 356 Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps 
Caleb E. Mason
Southwestern Law School, 
Date posted to database: August 13, 2012 [new to top ten]
3 313 Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason 
Emir Crowne
University of Windsor - Faculty of Law, 
Date posted to database: July 13, 2012 
4 310 The Unexonerated: Factually Innocent Defendants Who Plead Guilty 
John H. BlumeRebecca K. Helm
Cornell Law School, Unaffiliated Authors -affiliation not provided to SSRN
Date posted to database: July 11, 2012 [2nd last week]
5 163 Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury 
Mona LynchCraig Haney
University of California, Irvine - Department of Criminology, Law and Society, University of California, Santa Cruz - Department of Psychology, 
Date posted to database: June 26, 2012 
6 151 Does Corruption Pay in Indonesia? If so, Who are Benefited the Most? 
Rimawan Pradiptyo
Universitas Gadjah Mada, 
Date posted to database: July 16, 2012 [6th last week]
7 150 Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, & Substantive Equality in Bedford v. Canada 
Max Waltman
Stockholm University - Department of Political Science, 
Date posted to database: June 25, 2012 
8 142 The International Commission of Inquiry on Libya: A Critical Analysis 
Kevin Jon Heller
Melbourne Law School, 
Date posted to database: August 5, 2012 [9th last week]
9 141 The Mandatory Meaning of Miller 
William W. Berry
University of Mississippi School of Law, 
Date posted to database: July 19, 2012 [new to top ten]
10 130 Exonerations in the United States, 1989–2012 
Samuel R. GrossMichael Shaffer
University of Michigan Law School, University of Michigan Law School, 
Date posted to database: June 26, 2012 


September 2, 2012 | Permalink | Comments (0)