CrimProf Blog

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

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Tuesday, June 25, 2013

"Leahy/Paul and Mandatory Minimum Sentencing"

From Bill Otis at Crime & Consequences. In part:

Senators Patrick Leahy (D-VT) and Rand Paul (R-KY) have introduced a bill (S.619) that would effectively end mandatory minimum sentencing in federal law.  Judges would be able to sentence at any level below the minimum they wished, provided only that they explain the sentence (which should be routine anyway under existing sentencing standards).  The government would be able to appeal, but that prospect is largely both illusory   --  given the resistance at Main Justice to approving any sentencing appeals except in the most egregious cases  --  and ineffective even when it happens, given the very deferential appellate standards imposed on the circuits by Booker, Gall and Kimbrough.  The overall effect is that district judges so inclined would be able to go below the mandatory minimum whenever they wished, and almost always get away with it.
 
The Leahy/Paul bill is a disaster, both for US Attorneys Offices and, more importantly, for the country. 

June 25, 2013 | Permalink | Comments (0)

Metzger on Confrontation Control

Metzger pamelaPamela Metzger (Tulane University - Law School) has posted Confrontation Control (45 Texas Tech Law Review 83 (2012)) on SSRN. Here is the abstract:

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses. 

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule.

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June 25, 2013 | Permalink | Comments (0)

Mack on Jury Trials in Japan and Russia

MackRanetaRaneta Lawson Mack (Creighton University School of Law) has posted Reestablishing Jury Trials in Japan: Foundational Lessons from the Russian Experience (2 Creighton Int'l & Comp. L.J. 100) on SSRN. Here is the abstract:

This Article examines the foundational and systemic impact of Japan's transition to a lay participation jury in an inquisitorial system accustomed to near-perfect conviction rates. Part I of the Article discusses Japan's Act Concerning Participation of Lay Assessors in Criminal Trials, the statute outlining the criteria for participation in the jury trial process as well as the responsibilities of lay assessors. Next, for purposes of comparison, Part II explores Russia's transition to a lay jury system in the early 1990s. Russia's "experiment" with jury trials is a very instructive comparative assessment because, like Japan, Russia reestablished jury trials after a sweeping reform of its judge dominated criminal justice system with near universal conviction rates. However, Russia's revival of lay participation in the criminal justice system was short-lived, and a mere fifteen years later jury trials were eliminated for most cases primarily due to a perception that leniency by jurors was resulting in excessive acquittals. The political and social dynamics that led to Russia's shift away from citizen participation in the criminal justice system is a cautionary tale that is discussed with an eye toward analyzing whether Japan's new system might suffer a similar fate.

June 25, 2013 | Permalink | Comments (0)

Monday, June 24, 2013

"Merely asking for one’s ID, without demanding it, is not a seizure of the person"

From FourthAmendment.com, summarizing a recent California case and concluding, "This borders on the ridiculous. This is another example of an appellate court detached from the real world of criminal cases. How is asking not understood as a command?"

June 24, 2013 | Permalink | Comments (0)

"Girlfriend Who Had Permission to Use Boyfriend’s Computer Can Consent to Search of It While a Weekend Guest At His Parents’ Home, Wisconsin Supreme Court Holds"

Orin Kerr has this post at The Volokh Conspiracy, excerpting and analyzing the opinion.

June 24, 2013 | Permalink | Comments (0)

Wayland & O'Brien on Prejudicial Psychiatric Labels

Kathleen Wayland and Sean O'Brien (Habeas Corpus Resource Center and University of Missouri at Kansas City - School of Law) have posted Deconstructing Prejudicial Psychiatric Labels: A Guidelines-Based Approach (42.1 Hofstra L. Rev. (2013), Forthcoming) on SSRN. Here is the abstract:

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases and the Supplementary Guidelines on the Mitigation Function of Defense Teams in Death Penalty Cases will lead to more fruitful avenues of mitigation and enable the defense to avoid or refute prejudicial psychiatric labels in virtually every case.

June 24, 2013 | Permalink | Comments (0)

Alschuler on Lafler, Frye, and Plea Bargaining

AlschulerAlbert W. Alschuler (University of Chicago Law School) has posted Lafler and Frye: Two Small Band-Aids for a Festering Wound (Duquesne University Law Review, Forthcoming) on SSRN. Here is the abstract:

This article contends that two recent Supreme Court decisions concerning the assistance of counsel in plea bargaining do not warrant the hype bestowed upon them by professors and the press. Lafler v. Cooper and Missouri v. Frye did not significantly change the law, and even if these decisions had been bolder, they could not have done much to make effective legal assistance more likely. Our plea-bargaining system both subjects defense attorneys to serious temptations to disregard their clients’ interests and makes it impossible to determine whether defendants have received effective assistance.

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June 24, 2013 | Permalink | Comments (0)

Opinion concluding Ninth Circuit abused discretion in failing to issue mandate in death penalty case

The per curiam opinion of the Court in Ryan v. Schad is here.

June 24, 2013 | Permalink | Comments (0)

Opinion on sex offender registration and retroactive application

Justice Breyer authored the opinion for the Court in United States v. Kebodeaux. The Chief Justice and Justice Alito filed opinions concurring in the judgment. Justice Scalia filed a dissenting opinion, and Justice Thomas filed a dissenting opinion in parts of which Justice Scalia joined.

June 24, 2013 | Permalink | Comments (0)

Sunday, June 23, 2013

Zaring on the Revolving Door

David T. Zaring (University of Pennsylvania - Legal Studies Department) has posted Against Being Against the Revolving Door (University of Illinois Law Review, Vol. 2013, No. 2, 2013) on SSRN. Here is the abstract:

The revolving door between jobs in the public and private sector supposedly incentivizes government regulators to regulate on behalf of the industry interests for whom they will eventually work. It is a critical building block of the critique of government solutions to modern problems, and has, in the last two years, been the subject of one of the Obama administration’s first executive orders, made an appearance in financial regulatory reform legislation, and been blamed for the government’s failure to prevent the Gulf oil spill.

But the revolving door’s explanatory power is remarkably overstated, especially when the subject is law enforcement.

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June 23, 2013 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 400 Background Checks and Murder Rates 
Clayton E. Cramer
College of Western Idaho, 
Date posted to database: April 12, 2013 
2 272 Safeguarding the Commander's Authority to Review the Findings of a Court-Martial 
Andrew S. Williams
Brigham Young University, 
Date posted to database: June 9, 2013 [new to top ten]
3 228 Discovery and Darkness: The Information Deficit in Criminal Disputes 
Ion Meyn
University of Wisconsin Law School, 
Date posted to database: May 9, 2013 [second last week]
4 180 Federal Public Defense in an Age of Inquisition 
David Patton
Federal Defenders of New York, 
Date posted to database: May 2, 2013 [3rd last week]
5 176 Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal 
John D. CiorciariAnne Heindel
University of Michigan - Gerald R. Ford School of Public Policy, Documentation Center of Cambodia, 
Date posted to database: May 26, 2013 [4th last week]
6 163 Effective Plea Bargaining Counsel 
Jenny Roberts
American University, Washington College of Law, 
Date posted to database: April 20, 2013 [5th last week]
7 146 Crime in Cyberspace: Offenders and the Role of Organized Crime Groups 
Peter GraboskyRoderic Broadhurst,Brigitte BouhoursMamoun Alazab,Steve ChonChen Da
Australian National University (ANU), Australian National University (ANU) - Research School of Social Sciences (RSSS), Australian National University, Australian National University (ANU), Australian National University Cybercrime Observatory (ANU) - Regulatory Institutions Network (RegNet) , Australian National University (ANU) - School of Regulation, Justice and Diplomacy, 
Date posted to database: February 4, 2013 [6th last week]
8 118 Transplant Tourism: The Ethics and Regulation of International Markets for Organs 
I. Glenn Cohen
Harvard Law School, 
Date posted to database: April 22, 2013 
9 118 Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence 
Keith A. Findley
University of Wisconsin Law School, 
Date posted to database: June 4, 2013 [new to top ten]
10 114 Implicit Racial Bias in Public Defender Triage 
L. Song RichardsonPhillip Atiba Goff
University of Iowa - College of Law, UCLA Department of Psychology, 
Date posted to database: May 3, 2013 [9th last week]

 

June 23, 2013 | Permalink | Comments (0)