CrimProf Blog

Mulroy on the "Childhood Onset" Requirement in Atkins Claims

Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted Execution by Accident: Evidentiary and Constitutional Problems with the 'Childhood Onset' Requirement in Atkins Claims on SSRN. Here is the abstract:

The article discusses claims by capital defendants asserting that they are mentally retarded (MR) and thus cannot be executed under the 2002 Supreme Court holding in Atkins v. Virginia. Courts hearing such claims require proof that any intellectual deficits first occurred during childhood. This “childhood onset” prong is problematic for practical and theoretical reasons. As a practical matter, courts often improperly: (a) expect (rarely available) IQ test results dating from childhood; (b) dismiss MR proof if the defendant has minimal day-to-day competence, despite the medical consensus that MR persons can drive, cook, etc.; and (c) reject Atkins claims because the defendant also suffers from mental illness, incorrectly supposing that such illness can be singled out as the sole cause of intellectual deficits. The article suggests several rules regarding burden-shifting and admissibility to address these problems. 

More fundamentally, the requirement itself is irrational and arguably constitutional. It means that a capital defendant with brain injury at age 17 will be treated differently from an identically challenged person injured at 19. In Atkins, the Supreme Court gave two reasons why MR and execution don’t mix: MR (i) reduces culpability and deterrability, and (ii) interferes with a defendant’s ability to get a fair trial. The onset requirement has no relevance to any of these reasons; it was adopted “accidentally” by states which simply copied without analysis a medical definition designed for distinct clinical purposes and which is referenced but not required by Atkins itself. The requirement arguably leads to “cruel and unusual punishment” under the Eighth Amendment, especially in light of the very recent Supreme Court cases involving juvenile defendants. Under Equal Protection challenge, it may merit heightened constitutional scrutiny since it burdens the fundamental right to life. Even under the more permissive “rational basis” standard, the onset requirement is constitutionally vulnerable.

"DOJ appeals injunction of indefinite detention law"

From Jurist:

The US Department of Justice [official website] on Friday filed an appeal of this week's order by the US District Court for the Southern District of New York [official website] thatpermanently enjoined [opinion, PDF; JURIST report] a law allowing US authorities to detain indefinitely anyone suspected of having aided known terrorist organizations. Section 1021(b)(2) of the National Defense Authorization Act (NDAA) [text, PDF] affirms the authority of the president under the Authorization for Use of Military Force (AUMF) to detain indefinitely any "person who was a part of or substantially supported al Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."

Kornreich & Platt on Legal Ethics in Habeas after Martinez v. Ryan

Lawrence Kornreich and Alexander I. Platt have posted The Temptation of Martinez v. Ryan: Legal Ethics for the Habeas Bar (Criminal Law Brief, Vol. 8, 2012) on SSRN. Here is the abstract:

After the Supreme Court’s decision in Martinez v. Ryan, some defendants whose first-tier state habeas counsel failed to adequately challenge the ineffectiveness of trial counsel will now be able to raise the ineffectiveness claim in a subsequent federal habeas proceeding. By introducing a new category of claims in federal habeas, however, the Court has also introduced a new and difficult choice for certain convicted defendants as their cases move along the procedural path from state to federal habeas review. Because lawyers must adhere to ethical rules that prohibit conflicts of interest in their representation, each client must choose whether (a) to retain his state habeas counsel through subsequent post-conviction appeals and forego a possible Martinez claim; or (b) to pursue a federal habeas Martinez claim with new counsel. To a habeas bar already burdened by resource scarcity and exacting procedural and timing requirements Martinez adds another potential source of friction between effective representation and professional ethical responsibilities. Because of the additional costs entailed in complying with ethical standards, individual lawyers and those who set the rules that govern them may be tempted to loosen these rules in the name of access to justice. This would be a mistake. To preserve the integrity and autonomy of the legal profession, this temptation must be resisted. This Essay aims to alert the habeas bar to the ethical responsibilities implicated by the Martinez decision, and to provide guidance for what counsel must do in order to comply with his or her professional ethical obligations. 

Langleben & Moriarty on Brain Imaging for Lie Detection

Daniel D. Langleben and Jane Campbell Moriarty (pictured) (University of Pennsylvania - School of Medicine and Duquesne University - School of Law) have posted Using Brain Imaging for Lie Detection: Where Science, Law, and Policy Collide (Psychology, Public Policy, and Law, September 2012) on SSRN. Here is the abstract:

Progress in the use of functional magnetic resonance imaging (fMRI) of the brain to differentiate lying from truth-telling has created an expectation of a breakthrough in the search for objective methods of lie detection. In the last few years, litigants have attempted to introduce fMRI-based lie detection evidence in courts. Both the science and its possible use as courtroom evidence have spawned much scholarly discussion. This article contributes to the interdisciplinary debate by identifying the missing pieces of the scientific puzzle that need to be completed if fMRI-based lie detection is to meet the standards of either legal reliability or general acceptance. The article provides a balanced analysis of the current science and the cases in which litigants have sought to introduce fMRI-based lie detection. Identifying the key limitations of the science as expert evidence, the article explores the problems that arise from using scientific evidence before it is proven valid and reliable. We conclude that the Daubert’s “known error rate” is the key concept linking the legal and scientific standards. We suggest that properly controlled clinical trials are the most convincing means to confirm or disprove the relevance of this promising laboratory research. Given the controversial nature and potential societal impact of this technology, collaboration of several government agencies may be required to sponsor impartial and comprehensive clinical trials that will guide the development of forensic fMRI technology. 

Finegan on the Need for Limits on Neighborhood Watch Associations

Sharon G. Finegan (South Texas College of Law) has posted Watching the Watchers: The Growing Privatization of Criminal Law and the Need for Limits on Neighborhood Watch Associations on SSRN. Here is he abstract:

On the night of February 26, 2012, George Zimmerman, a member of a neighborhood watch program, was patrolling his community in Sanford, Florida when he spotted Trayvon Martin, a 17-year-old African-American high school student, walking through the neighborhood. Zimmerman called 911 and indicated that he was following "a real suspicious guy." Zimmerman then disregarded the police dispatcher's request that he discontinue following Martin and approached the teenager. In the resulting confrontation, Zimmerman used his legally-owned semi-automatic handgun to shoot and kill Martin. Martin had been returning from a local convenience store to his father's fiancée's house, where he was spending the night. He was unarmed.

George Zimmerman is currently being charged with second-degree murder. It is unclear whether Zimmerman will be proven guilty of the offense, but what is certain is that despite the fact that Zimmerman was engaged in law enforcement activities, Zimmerman's conduct in approaching and confronting Martin is not governed by the same constitutional restrictions that limit the actions of police. The Fourth and Fifth Amendments that restrict police in detaining, searching, and interrogating suspects do not apply to neighborhood watch organizations. At the same time, in many states neighborhood watch members can carry firearms and are protected under Stand Your Ground laws from having to retreat when confronted by a suspect. Thus, neighborhood watch members wield significant authority, but with neither the training that police officers receive nor the restrictions that govern their conduct.

While neighborhood watch groups, just like police, perform a valuable service to the community, they are also in need of statutory oversight and restrictions, just like the police. This Article proposes statutory provisions that could effectively address the problems posed by the growing privatization of criminal law enforcement as it relates to neighborhood watch associations. By enacting statutes that limit the abilities of neighborhood watch members to confront suspects, mandate training for those engaged in law enforcement activities, and expand the exclusionary rule to bar evidence seized illegally by private citizens engaged in law enforcement functions, legislatures would better ensure that due process guarantees are not abandoned when private actors participate in law enforcement activities. 

Donohue on Remote Biometric Identification

Laura Donohue (Georgetown University Law Center) has posted Technological Leap, Statutory Gap, and Constitutional Abyss: Remote Biometric Identification Comes of Age (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition — much less the pairing of facial recognition with video surveillance — in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, vascular patterns, hormones, and gait, which, when paired with surveillance of public space, give rise to novel questions of law and policy.

These technologies constitute what can be termed Remote Biometric Identification (“RBI”). That is, they give the government the ability to ascertain the identity (1) of multiple people, (2) at a distance, (3) in public space, (4) absent notice and consent, and (5) in a continuous and on-going manner. RBI fundamentally differs from what can be understood as Immediate Biometric Identification (“IBI”) — i.e., the use of biometrics to determine identity at the point of arrest, following conviction, or in conjunction with access to secure facilities. IBI, in contrast, tends to be focused (1) on a single individual, (2) close-up, (3) in relation either to custodial detention or in the context of a specific physical area related to government activity, (4) in a manner often involving notice and often consent, and (5) is a one-time or limited occurrence. The types of legal and policy questions raised by RBI significantly differ from those accompanying IBI.

In the absence of a statutory framework, we are driven to Constitutional considerations, where the Court’s jurisprudence proves inadequate as a way of addressing the concerns that present in the realm of RBI. The Fourth Amendment’s guarantee to protection against unreasonable search and seizure and the probable cause requirement for the issuance of warrants; the Fifth Amendment’s right against self-incrimination; the First Amendment’s protection of speech and assembly; and the Fifth and Fourteenth Amendments’ due process protections fail to account for the way in which such measures fundamentally challenge the current norms. The article calls for Congressional action and a judicial framing commensurate with the threat posed by these new and emerging technologies. 

Miller on Retroactive Application of FREs 413-14 and State Counterparts

Colin Miller (University of South Carolina School of Law) has posted Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause on SSRN. Here is the abstract:

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”

Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause. 

Thaxton on the Effect of the Death Penalty in Inducing Pleas

Sherod Thaxton (University of Chicago Law School) has posted Leveraging Death (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

Empirical research addressing the use of the death penalty as leverage in plea negotiations is virtually nonexistent. This is particularly surprising given the fact that both plea bargaining and capital punishment have been the focus of much scholarly attention. The U.S. Supreme Court has explicitly approved guilty pleas induced out of fear of the death penalty, yet the impact of the threat of the death penalty on the likelihood of parties reaching a plea agreement is far from obvious. On the one hand, prosecutors, defense attorneys, and defendants may have especially strong incentives to plea-bargain in death-eligible cases. On the other hand, many of these advantages may be offset by forces pushing against compromise on both sides of the aisle precisely because the death penalty is an option, so the role the death penalty is playing in plea negotiations in the aggregate remains ambiguous.

To date, the only empirical study to explore this issue concluded that the threat of capital punishment does not impact the likelihood of reaching a plea agreement. Unfortunately the study suffers from several limitations that may have ultimately masked any true effect that the death penalty has on plea bargaining rates. This article reexamines this question using an originally constructed dataset of recent capital charging-and-sentencing decisions in Georgia (1993-2000) that is able to avoid many of the shortcomings of the sparse prior research. The results provide strong evidence that the threat of the death penalty has a robust causal effect on the likelihood of a plea agreement — the threat of the death penalty increases the probability of a plea agreement by approximately 20 to 25 percentage points across various model specifications. Not only is this finding important in its own right by illuminating capital defendants’ behavioral response to the death penalty, but it also has important implications for other purported benefits of plea bargaining in the capital context. The paper briefly considers one of the most commonly identified benefits of plea bargaining — cost-reduction — and concludes that the death penalty fails to deter sufficient numbers of murder defendants from opting for trial to offset the significant expense of a capital case and subsequent appeals. 

Kolber on Criminalizing Cognitive Enhancement at the Blackjack Table

Adam J. Kolber (Brooklyn Law School) has posted Criminalizing Cognitive Enhancement at the Blackjack Table (Memory and Law, p. 307, L. Nadel & W. Sinnott-Armstrong, eds., Oxford University Press, 2012) on SSRN. Here is the abstract:

Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though casinos try to eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits. By contrast, if players use a “device” to help them count cards, like a calculator or smartphone, they have committed a serious crime.

I consider two potential justifications for anti-device legislation and find both lacking. The first is that, unlike natural card counting, device-assisted card counting requires cognitive enhancement. It makes card counting less natural and is unfair to casinos and should therefore be prohibited. The second potential justification relies on the privacy of our thoughts. On this view, natural card counting is a kind of cheating that warrants punishment. We do not criminalize natural card counting, however, because such laws would interfere with our thought privacy. Since concerns about thought privacy are less applicable to device-assisted counting, we can prohibit device-assisted counting without violating our rights to freedom of mind. While I do not purport to show that these justifications are hopeless, I present reasons to doubt that they will ultimately prove successful.

Bennion on the Insanity Defense and Graham v. Florida

Elizabeth Bennion (Brigham Young University - J. Reuben Clark Law School) has posted Death is Different No Longer: Abolishing the Insanity Defense is Cruel and Unusual Under Graham v. Florida (DePaul Law Review, Vol. 61, pp. 1-56, 2011) on SSRN. Here is the abstract:

The U.S. Supreme Court's obliteration of the "death is different" doctrine in Graham v. Florida (2010) has opened the door for Eighth Amendment-based categorical protections from punishments beyond death. Among the first through that door should be this nation's severely mentally ill -- beginning with categorical protection from any criminal punishment for those who did not understand the nature of their actions, did not understand the wrongfulness of their actions, or could not control their actions at the time of their alleged crimes. Such constitutional protection of insanity defenses is logically required by Graham and would be an important first step in stemming the insanity of some American insanity laws. 

Graham did not address the mentally ill, but much of its reasoning is remarkably applicable to that population. This Article argues that Justice Thomas is correct in his dissent in Graham that the case's reasoning logically leads to constitutional protection of other groups besides juveniles who have not been convicted of homicide. But this Article takes issue with his claim that there are “[n]o reliable limiting principle[s]” to establish boundaries regarding which groups should be protected from which punishments. Applying limiting principles derived from Graham, the absolute abolishment of insanity as an independent defense is unconstitutionally cruel and unusual. 

This Article’s Part II examines the historical development of the Cruel and Unusual Punishment Clause jurisprudence, highlighting the battles within the Court that led to the Justices' positions in Graham as well as noting relevant references to mental illness. Part III presents an in-depth analysis of the principles and rules arising out of Graham and how the case has changed the playing field. Part IV applies the rules and principles derived from Graham to show why the case logically requires the conclusion that abolishment of insanity defenses is unconstitutionally cruel and unusual. It also briefly examines which states have abolished the defense and why the reasoning of their respective supreme court opinions cannot withstand a Graham analysis.

Beety on Criminalization of Acts by Pregnant Women

Valena Elizabeth Beety  (West Virginia University - College of Law) has posted Mississippi Initiative 26: Personhood and the Criminalization of Intentional and Unintentional Acts by Pregnant Women (Mississippi Law Journal, Vol. 81, p. 55, 2011) on SSRN. Here is the abstract:

The intent of Initiative 26 is to criminalize abortion in the State of Mississippi by defining life — and rights of citizenship — as beginning at fertilization. Other possible outcomes include criminal charges against pregnant women accused of harming fetuses and increases in the prison population from newly incarcerated women. Such a trend is already observable in Alabama. There the state prosecutes pregnant women who test positive for drugs while at the hospital, even if they are giving birth to apparently healthy newborns.

Initiative 26, however, will not grant the state permission to pursue such prosecutions. In Mississippi, the state currently does not have the authority to prosecute a pregnant woman for actions, intentional or unintentional, that are harmful to her unborn child. If Initiative 26 passes, the state still will not have the direct authority to criminally prosecute a mother for harm to the fetus, because the initiative only changes the definition of person within the limited scope of the Mississippi Bill of Rights. The definition of person for all other statutes, including statutes defining crimes, will not be altered.

Notably, this lack of authority for criminal prosecutions may be of little significance. The State of Mississippi is currently prosecuting pregnant women for unintentional, harmful acts toward a fetus, with or without any statutory basis. Already, the courts are challenged with determining whether the state may prosecute pregnant women on behalf of the unborn child. Initiative 26 only heightens the possible statutory confusion. Ultimately, politics may influence the end result more than a strict interpretation of the law. In the cautionary words of National Advocates for Pregnant Women on the potential impact of Initiative 26: “Never before have rights been given to a new class of people while taking away the rights of others.” If the rules of statutory interpretation are carelessly disregarded, that day may indeed come. 

Colbert on Counsel at the Initial Bail Hearing

Douglas Colbert (University of Maryland Francis King Carey School of Law) has posted When the Cheering (for Gideon) Stops: The Defense Bar and Representation at Initial Bail Hearings (The Champion, June 2012, p. 10-14) on SSRN. Here is the abstract:

This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority. 

Kovarsky on Habeas

Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Habeas Verite (Tulsa Law Review, Vol. 47, No. 1, 2011, p. 13) on SSRN. Here is the abstract:

Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinating governing institutions, and the power of dominant political coalitions over the opposition. 

"The FBI's $1 Billion Face Recognition Project Proceeding as Scheduled"

From TalkLeft:

The FBI's $1 billion Next Generation Identification (NGI) programme is proceeding on schedule and should be fully launched by 2014. It's already in use in several states as test pilots, including Michigan, Hawaii, Maryland, and possibly Oregon.

"Trenton Mayor Is Arrested in Corruption Investigation"

From AP, as reported in The New York Times:

TRENTON — Federal agents arrested the mayor of Trenton on Monday as part of a corruption investigation into bribery allegations related to a parking garage project that was concocted as part of an F.B.I. sting operation.

. . .

The sting was similar to the “Bid Rig” sting that resulted in criminal charges against 46 people — many of them local officials — in 2009. Then, bribes were attached to fictitious development projects. Prosecutors have had mixed success in winning convictions.

"Montana judge strikes down state lethal injection law"

From Jurist:

Montana's Lewis and Clark County District Court [official website] ruled[opinion, PDF] Thursday that the state's lethal injection method [technical manual, PDF] violates the provision of the Montana constitution [text, PDF] that forbids cruel and unusual punishment. The lawsuit was filed by the American Civil Liberties Union of Montana [advocacy website] on behalf of two death row inmates. Judge Jeffrey Sherlock held that Montana's execution procedure, which involves injections of three different drugs, is cruel and unusual under US Supreme Court [official website] precedent. 

Segev on Consequentialism, Responsibility and Retribution

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted Consequentialism, Responsibility and Retribution: Comments on Victor Tadros’ Theory of Punishment (Jerusalem Review of Legal Studies, Forthcoming) on SSRN. Here is the abstract:

This paper considers some of the arguments in Victor Tadros’ book on the moral justification of criminal punishment. While the final end of the book is a theory of punishment, it discusses along the way also general topics in moral and political philosophy and considers the analogy between punishment and defensive force. Therefore, the book is of interest not only to people who are interested in the justification of punishment, but also to those who are interested in ethical theory more generally. In what follows, I first describe, very briefly, the main arguments in the book and then consider a few aspects of some of these arguments. 

Sherman on Justice for Girls

Francine T. Sherman (Boston College - Law School) has posted Justice for Girls: Are We Making Progress? (UCLA Law Review, Vol. 59, 2012) on SSRN. Here is the abstract:

Over the course of more than a century, structural gender bias has been a remarkably durable feature of United States juvenile justice systems. Consequently, as these systems have developed over the years, reducing gender bias and addressing girls in helpful, rather than harmful, ways has required specific and concerted efforts on the part of federal and state governments. Currently, there are a number of positive trends in juvenile justice, including policy and practice that is increasingly developmentally centered and data-driven. The question for those focused on girls in the juvenile justice system is how to ensure that girls are the beneficiaries of these positive trends.

This article discusses the history of federal leadership on girls’ issues and then considers the impact on girls of current trends toward developmentally centered and data-driven juvenile justice. It considers the application of developmentally centered policy in relation to girls who experience family violence and those who are commercially sexually exploited. The movement toward data-driven decision-making is examined for its potential to reduce embedded gender bias and particularly bias at the intersection of race and gender. It examines the impact on girls of the increasing use of assessment instruments and the consequences of greater reliance on evidence-based practice as further illustrations of the new data-driven approaches. Throughout, the Article discusses the implications of these trends for girls and suggests ways that systems can ensure that girls’ issues are considered and addressed. 

Schlanger on Plata v. Brown and Realignment

Margo Schlanger (University of Michigan Law School) has posted Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 48, No. 1, 2013) on SSRN. Here is the abstract:

Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993. At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms. 

This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented. The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes. The Article proceeds in four parts. Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation. Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation. It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime. Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms. Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement. Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered. Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	428	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 [2nd last week]
2	401	Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration  Heather Cucolo, Michael L. Perlin,  New York Law School, New York Law School,  Date posted to database: July 26, 2012 [1st last week]
3	322	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 [3rd last week]
4	320	The Unexonerated: Factually Innocent Defendants Who Plead Guilty  John H. Blume, Rebecca K. Helm,  Cornell Law School, Unaffiliated Authors - affiliation not provided to SSRN,  Date posted to database: July 11, 2012
5	165	Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury  Mona Lynch, Craig 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	156	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 [7th last week]
7	152	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]
8	150	The Mandatory Meaning of Miller  William W. Berry,  University of Mississippi School of Law,  Date posted to database: July 19, 2012 [9th last week]
9	149	The International Commission of Inquiry on Libya: A Critical Analysis  Kevin Jon Heller,  Melbourne Law School,  Date posted to database: August 5, 2012 [new to top ten]
10	142	A Technology-Centered Approach to Quantitative Privacy  David C. Gray, Danielle Keats Citron,  University of Maryland-Francis King Carey School of Law, University of Maryland - Francis King Carey School of Law,  Date posted to database: August 15, 2012 [new to top ten]