CrimProf Blog

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

Saturday, July 6, 2013

Stutsman on Experimental Psychology and Criminal Justice Reform

Thomas Stutsman (University of Wisconsin) has posted Experimental Psychology and Criminal Justice Reform (in CRIMINAL JUSTICE IN CHINA: COMPARATIVE PERSPECTIVES (Michael McConville & Eva Pils eds., 2013)) on SSRN. Here is the abstract:

This paper summarizes the state of legal psychology research in China, explains how beliefs and assumptions regarding human behavior and mental processes permeate the formulation and implementation of evidentiary procedures, illustrates how experimental psychology provides a unique perspective on the criminal process and avenues for reform, discusses the main advantages and disadvantages of using laboratory experiments to study psychological phenomena, and outlines several obstacles to the development of experimental psychology as an approach to understanding and guiding reform of the Chinese criminal justice system.

July 6, 2013 | Permalink | Comments (0)

Friday, July 5, 2013

The Third Amendment and criminal investigation

Ilya Somin at The Volokh Conspiracy has this interesting post, excerpting an article discussing the case:

Henderson [Nevada] police arrested a family for refusing to let officers use their homes as lookouts for a domestic violence investigation of their neighbors, the family claims in court.

Professor Somin's take:

The most obvious obstacle to winning a Third Amendment claim here is that police arguably do not qualify as “soldiers.” On the other hand, as Radley Balko describes in his excellent new book The Rise of the Warrior Cop, many police departments are increasingly using military-style tactics and equipment, often including the aggressive use of force against innocent people who get in the way of their plans. If the plaintiffs’ complaint is accurate, this appears to be an example of that trend. In jurisdictions where the police have become increasingly militarized, perhaps the courts should treat them as “soldiers” for Third Amendment purposes.


July 5, 2013 | Permalink | Comments (1)

"3-D gun printing: Here's the software that stops it"


"The likely buyers are 3-D printer manufacturers who want to minimize their liability risk and offer a firearm parental control feature to their customers," Create It REAL's CEO Jeremie Pierre Gay told CNBC.

"The feature creates a unique digital fingerprint of the firearm ... the manufacturer could decide to block the print or to simply give a warning to the user of the potential danger."

July 5, 2013 | Permalink | Comments (0)

Litton on Physician Participation on Executions

Litton paulPaul Litton (University of Missouri School of Law) has posted Physician Participation in Executions, the Morality of Capital Punishment, and the Practical Implications of Their Relationship (41 Journal of Law, Medicine, & Ethics 333 (2013)) on SSRN. Here is the abstract:

Evidence that some executed prisoners suffered excruciating pain has reinvigorated the ethical debate about physician participation in lethal injections. In widely publicized litigation, death row inmates argue that the participation of anesthesiologists in their execution is constitutionally required to minimize the risk of unnecessary suffering. For many years, commentators supported the ethical ban on physician participation reflected in codes of professional medical organizations. However, a recent wave of scholarship concurs with inmate advocates, urging the law to require or at least permit physician participation.

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July 5, 2013 | Permalink | Comments (0)

Brown on Prosecutors and Plea Bargaining

Brown darryl kDarryl K. Brown (University of Virginia School of Law) has posted American Prosecutors' Powers and Obligations in the Era of Plea Bargaining (The Prosecutor in Transnational Perspective (E. Luna & M. Wade eds.) (OUP 2012)) on SSRN. Here is the abstract:

This chapter appears in "The Prosecutor in Transnational Perspective" (Oxford Univ. Press 2012) assesses American prosecutors' obligations, authority and discretion, with special reference to U.S. plea bargaining rules. It highlights some differences between prosecutors in federal and state systems and, to a lesser degree, differences with prosecutorial duties and powers in jurisdictions outside the U.S

July 5, 2013 | Permalink | Comments (0)

Thursday, July 4, 2013

Segev on Mistake of Law

Re'em Segev (Hebrew University of Jerusalem – Faculty of Law) has posted Moral Rightness and the Significance of Law: Why, How and When Mistake of Law Matters (University of Toronto Law Journal, Forthcoming) on SSRN. Here is the abstract:

The question of whether a mistake of law should negate or mitigate criminal liability is commonly considered to be pertinent to the culpability of the agent, often examined in light of the (epistemic) reasonableness of the mistake. I argue that this view disregards an important aspect of this question, namely whether a mistake of law affects the rightness of the action, particularly in light of the moral significance of the mistake. I argue that several plausible premises, regarding moral rightness under uncertainty, the nature of law and the moral significance of law, entail a positive answer to this question. Specifically, I consider this argument: (1) one (subjective) sense of moral rightness depends on the (epistemically justified) belief of the agent concerning a non-moral fact that is morally significant; (2) a law is (partly) a non-moral fact; (3) a legal fact might be morally significant; (4) therefore an action that is compatible with an applicable moral standard, in light of the mistaken (justified) belief of the agent concerning a morally significant law, is (subjectively) right or less wrongful; (5) the (subjective) moral rightness of an action counts against criminal liability for this action; (6) therefore an action that is compatible with the applicable moral standard, in light of the mistaken (epistemically justified) belief of the agent, counts against criminal liability for the action if the law is morally significant.

July 4, 2013 | Permalink | Comments (0)

Wednesday, July 3, 2013

"Courts Can’t Agree on Whether Cops Can Track Your Cell Without a Warrant"


Federal law enforcement agents have been using warrantless cell-tower locational tracking of criminal suspects in the wake of the Supreme Court’s ruling 18 months ago that they need probable-cause warrants from judges to affix covert GPS devices to vehicles.

But the law on cell-site locational tracking is all over the books, with judges offering mixed rulings on whether warrants are needed. While dozens of lower courts have ruled on the issue, only two appellate courts have. All of which means some suspects are being convicted based on locational data of what towers their cell phones are pinging, and others are not, because some courts are requiring warrants.

“Only a few courts of appeal have considered this, although a number of lower courts have. They’ve been all over the map,” said Nathan Wessler, an American Civil Liberties Union staff attorney.


July 3, 2013 | Permalink | Comments (0)

"U.S. Postal Service Logging All Mail for Law Enforcement"

From the New York Times:

Mr. Pickering was targeted by a longtime surveillance system called mail covers, but that is only a forerunner of a vastly more expansive effort, the Mail Isolation Control and Tracking program, in which Postal Service computers photograph the exterior of every piece of paper mail that is processed in the United States — about 160 billion pieces last year. It is not known how long the government saves the images.

. . .

In a criminal complaint filed June 7 in Federal District Court in Eastern Texas, the F.B.I. said a postal investigator tracing the ricin letters was able to narrow the search toShannon Guess Richardson, an actress in New Boston, Tex., by examining information from the front and back images of 60 pieces of mail scanned immediately before and after the tainted letters sent to Mr. Obama and Mr. Bloomberg showing return addresses near her home. Ms. Richardson had originally accused her husband of mailing the letters, but investigators determined that he was at work during the time they were mailed.

July 3, 2013 | Permalink | Comments (0)

Citron & Gray on Total Surveillance

Danielle Keats Citron and David C. Gray (University of Maryland Francis King Carey School of Law and University of Maryland-Francis King Carey School of Law) have posted Addressing the Harm of Total Surveillance: A Reply to Professor Neil Richards (Harvard Law Review Forum, Vol. 126, p. 262, 2013) on SSRN. Here is the abstract:

In his insightful article, "The Dangers of Surveillance," 126 Harvard Law Review 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work; we, therefore, recommend that judges, legislators, and executives focus, instead, on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate surveillance.

July 3, 2013 | Permalink | Comments (0)

Griffin on International Perspectives on Correcting Wrongful Convictions

Griffin lissaLissa Griffin (Pace University School of Law) has posted International Perspectives on Correcting Wrongful Convictions: The Scottish Criminal Cases Review Commission (William & Mary Bill of Rights, Vol. 21, No. 4, 2013) on SSRN. Here is the abstract:

Part I of this Article traces the history of the Scottish Criminal Cases Review Commission (SCCRC) and outlines the procedures employed by the SCCRC after an application is received, with particular attention to its extensive investigatory procedures. It also describes and analyzes the standards for referral of an application to the Scottish court. Part II briefly sets forth the statistics concerning applications, referrals, and judicial decisions. Part III includes an analysis of the SCCRC’s work by looking at the cases that have been referred and decided by the court. Those cases are divided into several categories: fresh evidence referrals, referrals based on a newly raised legal issue, and historic cases. It also includes a discussion of two sui generis, but very important decisions, and a consideration of how the SCCRC and the court deal with cases that do not involve any new factual or legal claims. Part IV reflects on and attempts to draw some conclusions about the SCCRC’s role in the correction of wrongful convictions.

July 3, 2013 | Permalink | Comments (0)

Tuesday, July 2, 2013

"Released sex offenders in Great Britain soon to be required to take regular polygraph tests"

Doug Berman at Sentencing Law & Policy has this post, excerpting an article discussing the proposal to use the tests to determine compliance with conditions of probation and assessing the plan as follows:

Though I suspect a number of civil rights and civil liberties groups in the US would be quick to express concerns about mandatory polygraph tests of sex offenders, I tend to be open-minded about the use of any form of technocorrections that might serve as a means to both increase public safety and ultimately offender liberty.  For if post-release polygraph testing serves as a means to better assess enduring threats from more-dangerous released sex offenders, then other sex offenders can and should be able to rely on such a program to argue for allowing earlier release of some likely less-dangerous sex offenders (e.g., those who download child pornography but have never been involved in any contact offenses).

July 2, 2013 | Permalink | Comments (0)

Turner on Effective Remedies for Ineffective Assistance

Turner jeniaJenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Effective Remedies for Ineffective Assistance (Wake Forest Law Review, Vol. 48, Oct. 2013, Forthcoming) on SSRN. Here is the abstract:

In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts do not always have to repair the harm caused by the ineffective assistance.

Continue reading

July 2, 2013 | Permalink | Comments (0)

Joh on Surveillance Evasion and Fourth Amendment Suspicion

JohElizabeth E. Joh (U.C. Davis School of Law) has posted Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion (Arizona Law Review, Vol. 55, No. 4, (2013), Forthcoming) on SSRN. Here is the abstract:

The police tend to think that those who evade surveillance are criminals. Yet the evasion may only be a protest against the surveillance itself. Faced with the growing surveillance capacities of the government, some people object. They buy "burners" (prepaid phones) or "freedom phones" from Asia that have had all tracking devices removed, or they hide their smartphones in ad hoc Faraday cages that block their signals. They use to surf the internet. They identify tracking devices with GPS detectors. They avoid credit cards and choose cash, prepaid debit cards, or bitcoins. They burn their garbage. At the extreme end, some "live off the grid" and cut off all contact with the modern world. 

Continue reading

July 2, 2013 | Permalink | Comments (0)

Term's final criminal law/procedure cert grants

Issue summaries from ScotusBlog, which also links to papers, for these cases granted on Thursday:

  • White v. Woodall(1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.
  • Paroline v. United States: In child pornography case, what, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?

July 2, 2013 | Permalink | Comments (0)

Monday, July 1, 2013

"The New Prostitutes"

From the New York Times:

While no one has yet measured exactly how significantly the Internet has increased the number of working escorts, it’s already clear that many Internet sex workers would never seriously consider working on the street. Scott Cunningham, an economist at Baylor University, conducted a survey of 700 sex workers in the United States and Canada. “The Internet is augmenting the sex market by bringing in women who would not have entered the sex market without the Internet,” he says. In one month chosen at random by Mr. Cunningham — May 2009 — an average of 1,690 sex-worker ads were posted online every day in the New York City area alone.

. . . .

Escorts face danger not because of the Internet but because they’re still forced to work underground. In a different world, technology could be harnessed to reduce the dangers of prostitution. The University of Colorado law professor Scott Peppet has floated the possibility of a “technology-enabled sex market” where escorts and clients are all pre-vetted and predators are screened out. “The law, however, is hostile to such innovation,” Professor Peppet writes. “It currently criminalizes not just prostitution itself, but activities — including technologies — that advance or facilitate sex markets.” As it stands, escorts online remain invisible, where they are vulnerable to predators.

July 1, 2013 | Permalink | Comments (0)

Editorial favoring "split sentencing"

From the Los Angeles Times:

AB 109, the criminal justice realignment laws adopted in 2011 that gave counties new responsibilities over low-level felons, also proposed a reinvention of the reentry process to deal with criminal recidivism. Defendants could receive what is known as a "split sentence," with a portion of the time to be served in jail and another portion to be served in the community, under supervision by probation officers who would monitor mandatory participation in rehabilitation and other programs. The period served under supervision in the community, after release from jail, is known as a "tail."

. . . .

The reasons for the failure to use this proven tool are unimpressive. Defense lawyers and prosecutors are used to bargaining over custody time, not negotiating for tails. Defendants would rather do their time and return to the streets at full liberty. Prosecutors would rather maximize custody time than require post-custody programming. Judges defer to the lawyers' plea bargains when sentencing. The focus is shortsighted, aimed at efficient processing, not structured reentry or breaking the cycle of recidivism. The leader of a committee made up of local law enforcement officers, judges and county service providers told the Board of Supervisors last week that he expects no change in the number of split sentences here.

Lawmakers this year considered a bill that would have required courts to include at least a six-month tail on AB 109 sentences, helping sluggish counties to begin solving the recidivism problem even when they don't want to. Under heavy lobbying from prosecutors, the measure died in committee.


July 1, 2013 | Permalink | Comments (0)

"Exploding number of elderly prisoners strains system, taxpayers"


And they’re by no means alone: Prisoners older than 55 make up the single fastest-growing segment of the U.S. prison community – a largely invisible shadow population.

The number of elderly Americans doing hard time is swelling at a staggering rate and will only continue to balloon, researchers say.


July 1, 2013 | Permalink | Comments (0)

"Number of federal wiretaps rose 71 percent in 2012"

From the Washington Post:

The number of wiretaps secured in federal criminal investigations jumped 71 percent in 2012 over the previous year, according to newly released figures.

Federal courts authorized 1,354 interception orders for wire, oral and electronic communications, up from 792 the previous year, according to the figures, released Friday by the Administrative Office of the United States Courts. There was a 5 percent increase in state and local use of wiretaps in the same period.

. . . There is no explanation of why the federal figures increased so much, and it is generally out of line with the number of wiretaps between 1997 and 2009, which averaged 550 annually. A large number of wiretaps was also reported in 2010, when 1,207 were secured.


July 1, 2013 | Permalink | Comments (0)

Sunday, June 30, 2013

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 369 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 [2nd last week]
2 234 Discovery and Darkness: The Information Deficit in Criminal Disputes 
Ion Meyn
University of Wisconsin Law School, 
Date posted to database: May 9, 2013 [3rd last week]
3 191 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 [5th last week]
4 184 Federal Public Defense in an Age of Inquisition 
David Patton
Federal Defenders of New York, 
Date posted to database: May 2, 2013 
5 160 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 [7th last week]
6 127 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 [9th last week]
7 121 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 [10th last week]
8 110 The Impact of Neuroimages in the Sentencing Phase of Capital Trials
Michael J. SaksN. J. SchweitzerEyal AharoniKent Kiehl
Arizona State University (ASU) - Sandra Day O'Connor College of Law, Arizona State University, University of California, Santa Barbara - Department of Psychology, University of New Mexico, 
Date posted to database: June 6, 2013  [new to top ten]
9 94 Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Frye 
Nancy J. King
Vanderbilt University - Law School, 
Date posted to database: May 3, 2013 [new to top ten]
10 93 The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative 
Barbara Creel
University of New Mexico School of Law, 
Date posted to database: May 17, 2013 [new to top ten]


June 30, 2013 | Permalink | Comments (0)