CrimProf Blog

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

Saturday, April 20, 2013

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:


  • Sekhar v. U.S.: Whether the "recommendation" of an attorney, who is a salaried employee of a governmental agency, in a single instance, is intangible property that can be the subject of an extortion attempt under 18 U.S.C. § 1951 (a)(the Hobbs Act) and 18 U.S.C. § 875(d).


  • Metrish v. Lancaster: (1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, seeRogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

April 20, 2013 | Permalink | Comments (0)

"Legal Questions Riddle Boston Marathon Case"

From the New York Times:

The capture of the Boston Marathon bombing suspect raises a host of freighted legal issues for a society still feeling the shadow of Sept. 11, including whether he should be read a Miranda warning, how he should be charged, where he might be tried and whether the bombings on Boylston Street last Monday were a crime or an act of war.

. . .

Civil libertarians have objected to the more aggressive interpretation of the exception to the Miranda rule, which protects the Constitutional right against involuntary self-incrimination. Anthony D. Romero, the executive director of the American Civil Liberties Union, said that it would be acceptable to withhold Miranda before asking whether there were any more bombs hidden in Boston, but that once the F.B.I. went into broader questioning, it must not “cut corners.”

But some prosecutors suggested that if any confession was unnecessary to convict him, then the F.B.I. might keep him talking without a warning without ultimately invoking the more disputed version of the public-safety exception to introduce it in court.

“I see a fairly strong case against this young man based on a great deal of evidence so, as a prosecutor, the top of my list would not be necessarily to Mirandize him and get a usable confession,” said David Raskin, a former federal prosecutor in terrorism cases in New York.


April 20, 2013 | Permalink | Comments (0)

Friday, April 19, 2013

Brown on Material Support of Terrorism

Brown georgeGeorge D. Brown (Boston College Law School) has posted Notes on a Terrorism Trial – Preventive Prosecution, 'Material Support' and the Role of the Judge after United States v. Mehanna (Harvard National Security Journal, Vol. 4 No. 1, pp. 1-57) on SSRN. Here is the abstract:

The terrorism trial of Tarek Mehanna, primarily for charges of providing “material support” to terrorism, presented elements of a preventive prosecution as well as the problem of applyingHolder v. Humanitarian Law Project (HLP) to terrorism-related speech. This Article examines both aspects of the case, with emphasis on the central role of the trial judge. As criminal activity becomes more amorphous, the jury looks to the judge for guidance. His rulings on potentially prejudicial evidence — which may show just how much of a “terrorist” the defendant is — are the key aspect of this guidance. If the defendant is found guilty, the sentence imposed by the judge can have a profound impact on future preventive prosecutions, particularly the judge’s handling of the Sentencing Guidelines’ “Terrorism Enhancement.” 

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April 19, 2013 | Permalink | Comments (0)

McLellan on Innocence Compensation

Myles Frederick McLellan (University of Ottawa - Department of Criminology) has posted Innocence Compensation: A Comparative Look at the American and Canadian Approaches (Criminal Law Bulletin, Vol. 49, No. 2, p. 218, 2013) on SSRN. Here is the abstract:

The plight of the wrongfully convicted is gaining prominence with the growing awareness of the prodigious harms to innocent persons at the hands of the criminal justice system. Most of the attention, both scholarly and legislatively, has been focused on the causes of miscarriages of justice. What needs to now be addressed more comprehensively is the issue of how to provide redress to those persons whose lives have been inexorably damaged; and how to best compensate them in their efforts to rebuild a life. Virtually all western democracies have turned their attention to this issue, some more effectively than others. This paper looks at the similarities and the differences in the approaches between the United States and Canada in this regard. Lessons can be learned from both.

April 19, 2013 | Permalink | Comments (0)

Porter on the Sentencing Guidelines

Wes R. Porter (Golden Gate University School of Law) has posted Viewpoint: Sentencing Guidelines Needn't Be Scrapped (The Recorder, March 2013) on SSRN. Here is the abstract:

U.S. District Judge Jed Rakoff of the Southern District of New York has offered an important voice on a wide range of issues in federal practice, typically from the bench. In 2011, for example, he refused to rubber-stamp a $285 million proposed civil settlement between the Securities and Exchange Commission and banking giant Citigroup. Rakoff recently sounded off from the podium on the current state of federal sentencing. On March 7, as the keynote speaker at the 27th Annual National Institute on White Collar Crime in Las Vegas, Rakoff railed against the numerical calculations and formulaic approach that still drives criminal sentencing in federal court: the U.S. Sentencing Guidelines.

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April 19, 2013 | Permalink | Comments (0)

Thursday, April 18, 2013

Sweeny on the History of Adultery and Fornication Laws

Sweeny joanneJoAnne Sweeny (University of Louisville Louis D. Brandeis School of Law) has posted History of Adultery and Fornication Criminal Laws on SSRN. Here is the abstract:

This is a portion of a paper I am working on about the history of fornication and adultery criminal laws. This portion of the paper examines evidentiary issues in fornication and adultery prosecutions, how those issues were overcome by the courts, and the historical rationales for criminalizing adultery and fornication.

April 18, 2013 | Permalink | Comments (0)

Roiphe on the History of the Entrapment Defense

Roiphe rebeccaRebecca Roiphe (New York Law School) has posted The Serpent Beguiled Me: A History of the Entrapment Defense on SSRN. Here is the abstract:

This article argues that the entrapment defense grew as a response to the increasingly pervasive and invasive forms of law enforcement, but it was not an inevitable reaction to the sudden expansion in the nature and scope of state and federal police power. Entrapment emerged as a piece of a puzzle: an innovative way to police the boundaries between government and the individual in the newly drawn precincts of the modern state.

April 18, 2013 | Permalink | Comments (0)

Argument on pre-arrest silence

The transcript in Salinas v. Texas is here.

April 18, 2013 | Permalink | Comments (0)

Argument in SORNA case

The transcript in United States v. Kebodeaux is here.

April 18, 2013 | Permalink | Comments (0)

Wednesday, April 17, 2013

Jones on an Apology Privilege

Jones michaelMichael Jones (Phoenix School of Law) has posted Can I Say I'm Sorry? Examining the Potential of an Apology Privilege in Criminal Law on SSRN. Here is the abstract:

This paper is written for the purpose of addressing the power and possibility of early apologies in the criminal justice system. As constructed, our criminal justice system rewards defendants that learn early in their case to remain silent, and punishes those that talk. Defendants that may want to offer an apology or allocution for the harm they’ve caused are often required to wait until a sentencing hearing, which may come months, or even years after the event in question. This paper proposes that the Arizona Rules of Criminal Procedure be modified to provide an exception for apology to criminal defendants. Apologies can play an invaluable role in the healing process for victims, defendants, family members and others tied together by the unfortunate events of a criminal prosecution. This paper seeks to further the comprehensive law movement approach that promotes a healing process for those involved in the criminal justice system.

April 17, 2013 | Permalink | Comments (0)

Opinion rejecting per se warrant exception for DUI blood tests

Justice Sotomayor delivered the opinion of the Court in Missouri v. McNeely as to some issues and an opinion joined by Justices Scalia, Ginsburg, and Kagan as to others. Justice Kennedy concurred in part. Chief Justice Roberts, joined by Justices Breyer and Alito, concurred in part and dissented in part. Justice Thomas dissented.

April 17, 2013 | Permalink | Comments (0)

Tuesday, April 16, 2013

Baer on Corporate Fraud

Baer_miriamMiriam H. Baer (Brooklyn Law School) has posted Some Thoughts on the Porous Boundary between Ordinary and Extraordinary Corporate Fraud (14 U. Penn. J. Bus. L. 927 (2012)) on SSRN. Here is the abstract:

This is a book review of Tom Baker and Sean Griffith’s 'Ensuring Corporate Misconduct'. Their book provides an exhaustive and illuminating analysis of how corporations contract for director and officer (D&O) liability insurance. Based on extensive interviews with insurance carriers and corporate risk officers, Baker and Griffith conclude that D&O liability insurance has created a moral hazard within the public corporation. Managers, who have incentives to take advantage of shareholders, are inadequately deterred by civil liability for securities fraud because D&O insurance effective shields them from any payout. Accordingly, Baker and Griffith argue for reforms that would reduce this moral hazard. 

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April 16, 2013 | Permalink | Comments (0)

Obrecht on Merger of Sentences

Alexander K. Obrecht has posted Criminal Law - Merger of Sentences: The Legislature Says You Can't Hang 'Em Twice; Najera v. State, 214 P.3d 990 (Wyo. 2009) (Wyoming Law Review, 12 Wyo. L. Rev. 141 (2012)) on SSRN. Here is the abstract:

Historically, few constitutional protections conjured more mutated conceptions in society than double jeopardy. The United States Supreme Court holds that the Double Jeopardy Clause embodies the freedom from successive prosecution and multiple punishments for the same offense. This case note focuses on the freedom from multiple punishments, specifically post-conviction merger of sentences.

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April 16, 2013 | Permalink | Comments (0)

"U.S. Engaged in Torture After 9/11, Review Concludes"

From the New York Times:

WASHINGTON — A nonpartisan, independent review of interrogation and detention programs in the years after the Sept. 11, 2001, terrorist attacks concludes that “it is indisputable that the United States engaged in the practice of torture” and that the nation’s highest officials bore ultimate responsibility for it.

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April 16, 2013 | Permalink | Comments (0)

A Challenge to Strict Proportional Punishment (Kolber)

Go_pic_crimprof_blogConsider two people who engaged in the same violent offense and are equally blameworthy for doing so. Assume they are alike in all pertinent respects except that one of them is known to be much more prone to violence. For those strictly committed to proportionality, these offenders should be punished equally because they committed the same offense with the same blameworthiness, and the theorists I am addressing ignore consequentialist considerations like future violence.

When we assign these offenders to prisons, however, the offender known to be more violent is likely to end up in a facility that allows less freedom and causes more distress. Whether we measure punishment severity in terms of bad experiences, liberty deprivations, or both, the more violent offender has a more severe punishment per day incarcerated.

How long should they be incarcerated in order to punish them equally? Giving them an equal number of days in prison does not give them equal punishment since each day is worse for the more violent offender. What strict proportionalists would have to do is give the more violent offender a shorter sentence in order to treat both offenders equally. This seems like a very unappealing conclusion: the more dangerous you are, the more we have to restrict you in prison, and the more quickly we have to release you relative to equally blameworthy but less dangerous offenders.

Proportionalists could try to put offenders in identical prison conditions, but doing so is extraordinarily impractical. Even if we could, I doubt most people think it is morally required. Alternatively, proportionalists could argue that so long as we intend to give both offenders equal punishments, then we have satisfied the requirement of proportionality even if we know one offender will get more harsh treatment. But that's an unduly restrictive view about intentions. In the rest of the criminal law (and in moral contexts more generally), we deem people responsible for actions they do knowingly and not just on purpose. The same principle applies to judges and the state more generally. If we are virtually certain more violent offenders will be more restricted in their liberty, we cannot artificially ignore this fact and declare by fiat that it's not part of their punishment. Surely we wouldn't say that a prisoner with a two-year sentence is punished the same amount as a prisoner with a four-year sentence if we declare that we only intend to punish the latter prisoner on even days of the month.

Therefore, even though proportional punishment is trumpeted as central to modern criminal justice and may seem like an ideal goal, when looked at more closely, it has some very unappealing implications.

(Originally posted at Prawfsblawg)

April 16, 2013 | Permalink | Comments (0)

Monday, April 15, 2013

Vincent on Shifts-in-Purpose and Consensual Encounters

Charles B. Vincent has posted An Analysis of the Shift-in-Purpose Approach to Fourth Amendment Jurisprudence in Delaware (Delaware Law Review, Vol. 13, No. 2, 2012, pp. 95-111) on SSRN. Here is the abstract:

Over the past three years, the Delaware Supreme Court has issued a series of opinions analyzing police encounters with citizens and the encounters’ effects on subsequent motions to suppress. In these opinions, the Court has attempted to clarify the murky Fourth Amendment line where a consensual encounter may turn into something different. This article discusses those cases in the context of a Fourth Amendment continuum, and it proposes a straightforward framework counsel may use to explore the underlying encounter and aid the trial court’s analysis of a motion to suppress. Adopting the proposed “shift in purpose” framework could help prosecutors, defense counsel, and the trial judge determine whether and at what point (if at all) a police officer has violated a person’s rights under the Fourth Amendment or the Delaware Constitution. The article then examines additional doctrines that may apply when there has been such a violation. Finally, the article concludes with a brief examination of the Delaware Supreme Court’s recent decision in Moore v. State, which applied some of these principles.

April 15, 2013 | Permalink | Comments (0)

Schumacher on Prosecuting Professionals

SchumacherScottScott A. Schumacher (University of Washington - School of Law) has posted Magnifying Deterrence by Prosecuting Professionals (89 Ind. L.J. ___ (2014) Forthcoming) on SSRN. Here is the abstract:

This article examines the recent series of criminal prosecutions against tax professionals and offshore bankers. These criminal cases, brought against the largest Swiss bank (UBS), the oldest Swiss bank (Wegelin), one of the largest accounting firms in the world (KPMG), as well as numerous lawyers and accountants, was a dramatic shift for the U.S. Department of Justice. After decades of tolerating abusive tax shelters and tax haven banks, the Government changed its policy. However, rather than indicting the individuals and corporations who invested in tax shelters or hid money in offshore accounts, the Justice Department indicted the lawyers, accountants, and bankers who advised them. This article will analyze those prosecutions from a theoretical, historical, and practical perspective, and will examine the impact the new prosecution policy will have on the legal professional, the tax system, and international relations.

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April 15, 2013 | Permalink | Comments (0)

Argument transcript on judicial participation in plea bargain

The transcript in United States v. Davila is here.

April 15, 2013 | Permalink | Comments (0)

Sunday, April 14, 2013

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 3334 The Dangers of Surveillance 
Neil M. Richards
Washington University in Saint Louis - School of Law, 
Date posted to database: March 25, 2013 
2 615 The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information 
David Pozen
Columbia Law School, 
Date posted to database: February 25, 2013 
3 435 Foreword: Accounting for Technological Change 
Orin S. Kerr
George Washington University - Law School, 
Date posted to database: March 17, 2013 
4 398 Federal Tax Crimes, 2013 
John A. TownsendJohn A. Townsend,
University of Houston School of Law, Townsend and Jones, LLP, 
Date posted to database: February 7, 2013
5 293 Lanny Breuer and Foreign Corrupt Practices Act Enforcement 
Mike Koehler
Southern Illinois University School of Law, 
Date posted to database: March 24, 2013 [new to top ten]
6 195 Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions 
Matthew C. Waxman
Columbia Law School, 
Date posted to database: March 21, 2013 
7 189 Overcharging 
Kyle Graham
Santa Clara University School of Law, 
Date posted to database: March 3, 2013 
8 188 Targeting and the Concept of Intent 
Jens David Ohlin
Cornell University - School of Law, 
Date posted to database: February 12, 2013 [5th last week]
9 167 Policing the Firm 
D. Daniel Sokol
University of Florida - Levin College of Law, 
Date posted to database: March 9, 2013 [8th last week]
10 144 Lafler and Frye: A New Constitutional Standard for Negotiation 
Rishi Batra
Texas Tech University School of Law, 
Date posted to database: March 21, 2013 [new to top ten]


April 14, 2013 | Permalink | Comments (0)