CrimProf Blog

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

Wednesday, August 26, 2015

"From the Bench, a New Look at Punishment"

From The New York Times:

Through everything from protest movements to bipartisan legislation addressing the high prison population, the nation is in the midst of a searching examination of the criminal-justice system, taking up long-simmering criticisms about race, inequality and law enforcement. While much of the focus has been on the police and prosecutors’ work, some judges are now taking a more active role, pushing for a reassessment of how defendants are punished.

. . .

Among the moves: In June, Justice Anthony Kennedy wrote five pages denouncing solitary confinement in a Supreme Court case where solitary confinement was not the issue. Judge Jed S. Rakoff of Federal District Court in Manhattan has written essays recently attacking plea bargaining and mass incarceration. In a June law-review article, Alex Kozinski, a United States Court of Appeals judge for the Ninth Circuit, criticized a range of criminal-justice issues, from fingerprint evidence to prosecutorial discretion to long sentences. These “are some of the reasons to doubt that our criminal justice system is fundamentally just,” he wrote. Other judges are putting out their point of view in decisions in individual cases.

August 26, 2015 | Permalink | Comments (0)

"Federal judge halts use of lethal injection drugs in Mississippi"

From Jurist:

A judge for the US District Court for the Southern District of Mississippi [official website] issued a temporary restraining order Tuesday blocking the use of two drugs for lethal injections. The order was issued [AP report] in a phone conference with Jim Craig, a lawyer for two plaintiffs challenging the constitutionality of the drug combination used in executions in the state. The plaintiffs claim the drugs cause pain, violating the Eighth Amendment. . . .

In July the US Supreme Court [official website] ruled [JURIST report] 5-4 in that Oklahoma's use of the sedative midazolam as part of its lethal injection protocol does not violate the Eighth Amendment ban on cruel and unusual punishment. In the case, the inmates alleged that a negligent administering of the drug can cause one to be conscious for the remainder of the lethal injection process, as evidenced by Oklahoma's botched execution [JURIST report] of former inmate Clayton Lockett.

August 26, 2015 | Permalink | Comments (0)

Keene on Shootings of Unarmed Black Males

Keene sheri leeSherri Lee Keene (University of Maryland Francis King Carey School of Law) has posted Victim or Thug? Examining the Relevance of Stories in Cases Involving Shootings of Unarmed Black Males (Howard Law Journal, Vol. 58, No. 3, 2015 Forthcoming) on SSRN. Here is the abstract:

In recent years, the shootings of unarmed African American men and boys by individuals with real or purported police authority have garnered significant public attention. Moreover, studies about these incidents have revealed stark contrasts in perspectives between African Americans and White Americans concerning jury decisions not to charge or not to convict the shooters, and the role that race may have played in these cases. Recent polls reveal that African Americans express significantly greater dissatisfaction with these jury decisions and often share the belief that race has played a role. While it is not possible to know the extent to which race actually impacted recent jury decisions, this article explains how matters of race can find their way into jurors’ assessments of cases involving shootings of unarmed African American males. This essay focuses on what we now know about the role of stories in jury decision-making, and the opportunities that stories afford for jurors’ pre-existing attitudes and beliefs, including their biases and prejudices, to factor into their evaluations of cases. Ultimately, this essay argues that the quality of justice and public perceptions would be improved if courts reconsider how they address bias and prejudice in the courtroom. It encourages courts to acknowledge the role that jurors’ perspectives play in decision-making, and employ practices that raise jurors’ awareness of their own biases and encourage the selection of jurors who bring diverse perspectives.

August 26, 2015 | Permalink | Comments (1)

Rasmusen on Law, Coercion, and Expression

Eric Bennett Rasmusen (Indiana University - Kelley School of Business - Department of Business Economics & Public Policy) has posted Law, Coercion, and Expression: A Review Essay on Frederick Schauer's The Force of Law and Richard McAdams's The Expressive Powers of Law (Journal of Economic Literature, Forthcoming) on SSRN. Here is the abstract:

What is law and why do people obey it? This question from jurisprudence has recently been tackled using the tools of economics. The field of law-and-economics has for many years studied how fines and imprisonment affect behavior. Nobody believes, however, that all compliance is motivated by penalties and it is questionable whether that is even the typical motivation. Two books published in 2015, Frederick Schauer's The Force of Law and Richard McAdams's The Expressive Powers of Law, consider alternative motivations, Schauer skeptically and McAdams more sympathetically. While coercion, either directly or in its support of internalized norms, seems to dominate law qua law (and not as a mere expression of morality), a considerable portion of law serves other uses such as coordination, information provision, expression, and reduction of transaction costs.

August 26, 2015 | Permalink | Comments (0)

Strader on Insider Trading and the Intent to Defraud

Strader kellyKelly Strader (Southwestern Law School) has posted (Re)Conceptualizing Insider Trading: United States v. Newman and the Intent to Defraud (Brooklyn Law Review , Vol. 80, No. 4, 2015) on SSRN. Here is the abstract:

Insider trading law is a mens rea morass. The confusion concerning the mental element of this crime risks both the deprivation of fair notice to potential defendants and the abuse of prosecutorial discretion. In the wake of aggressive and high-profile insider trading prosecutions, these concerns are particularly salient. The Second Circuit’s decision in United States v. Newman takes an important first step in articulating the mens rea component of insider trading. Taking Newman as a starting point, this article seeks to re-conceptualize and systematize insider trading law. When articulating the mens rea of insider trading, courts should focus on the underlying concept of insider trading law: the harm caused by the breach of trust attendant to the theft of inside information. When a court clearly focuses on the core purpose of insider trading law, the second level of reform is possible. That is, we can assess the culpability of alleged inside traders by the harm that they intended to cause and assign levels of mens rea accordingly. Applying common law fraud principles, and using Model Penal Code terminology and methodology, this article identifies the elements of insider trading and attaches appropriate levels of mens rea to each element. The article concludes with a set of jury instructions that reflect these underlying principles.

August 26, 2015 | Permalink | Comments (0)

Vladeck on Petty Offenses and Article III

Vladeck stephenStephen I. Vladeck (American University - Washington College of Law) has posted Petty Offenses and Article III (19 Green Bag 2d, 2016, Forthcoming) on SSRN. Here is the abstract:

Federal law allows magistrate judges — jurists who are neither appointed by the President nor confirmed by the Senate, and who lack Article III’s salary and tenure protections — to preside over and render judgments in federal criminal trials for petty offenses without the defendant’s consent. This petty offense jurisdiction is unique; the only other circumstances in which magistrate judges are entitled by statute to render judgments (as opposed to serving as “adjuncts” to district judges) are in civil and misdemeanor criminal cases in which the parties expressly consent to having their claims resolved by a non-Article III federal judge. To be sure, whether (and when) consent is sufficient to ameliorate the constitutional objections to adjudication by non-Article III federal judges is certainly a hot topic. But in this short essay, I mean to ask a different question — and one which the Supreme Court has never directly answered: Why does Article III also permit non-Article III magistrate judges to try petty offenses without the defendant’s consent?

Continue reading

August 26, 2015 | Permalink | Comments (0)

Murphy on Exhaustion and Brady Claims

Murphy tiffanyTiffany Murphy (University of Arkansas - School of Law) has posted Futility of Exhaustion (University of Michigan Journal of Law Reform, Vol. 47, p. 697, 2014) on SSRN. Here is the abstract:

A defendant’s Fourteenth Amendment due process rights are violated when a state agency fails to disclose crucial exculpatory or impeachment evidence — so-called Brady violations. When this happens, the defendant should be provided the means not only to locate this evidence, but also to fully develop it in state post-conviction processes. When the state system prohibits both the means and legal mechanism to develop Brady claims, the defendant should be immune to any procedural penalties in either state or federal court. In other words, the defendant should not be required to return to state court to exhaust such a claim. Instead, once the federal court finds a viable claim, the court should be allowed to review the claim on the merits and grant relief. Because these claims arise from the failure of state actors to perform their duties properly, the federal courts should forfeit their right to demand adherence to the federal exhaustion requirement. Requiring a defendant to return to state court for exhaustion penalizes the defendant unjustly for a constitutional violation created solely by the state.

August 26, 2015 | Permalink | Comments (0)

Tuesday, August 25, 2015

"Maryland Restricts Racial Profiling in New Guidelines for Law Enforcement"

From The New York Times:

BALTIMORE — Eight months after the Justice Department announced new curbs on racial profiling, Maryland became on Tuesday the first state to follow suit, with guidelines aimed at severely restricting law enforcement officers from singling out suspects based on traits including race, ethnicity and sexual orientation.

. . .

Maryland law requires law enforcement agencies to have policies prohibiting racial and ethnic profiling during traffic stops; the new guidelines expand on that in two ways, Mr. Frosh’s office said. Under the law, officers may not use race and ethnicity in making police decisions; the guidelines also include national origin, identity, disability and religion as traits that may not be considered. They apply to routine operations, to investigations and to traffic stops.

Law enforcement officers may not consider personal characteristics while “conducting routine police activity,” the memorandum says. They may do so only if they have “credible information” that such characteristics are “directly relevant” to the investigation of a crime.

August 25, 2015 | Permalink | Comments (0)

"California lawmakers approve drone trespassing bills"

The story is at Jurist:

California lawmakers on Monday approved two bills intended to regulate drones. The Assembly voted 43-11 in favor of abill [SB 142] that would make it a crime to fly a drone over private property without permission. The Senate voted 40-0 to approve a bill[AB 856] targeted a paparazzi that would make it a crime to use a drone to take pictures or video on private property. Both bills return to the other chamber for a final vote.

August 25, 2015 | Permalink | Comments (0)

O'Malley on Rethinking Neoliberal Penality

Pat O'Malley (University of Sydney - Faculty of Law) has posted Rethinking Neoliberal Penality on SSRN. Here is the abstract:

The neoliberal penality thesis argues that over the past thirty years a major punitive shift has occurred, driven by the rise of neoliberal politics. While this thesis has been prominent for many years, it has recently been argued that it should be abandoned because of a dearth of consistent evidence supporting it. This paper analyses some recent developments in the critique of neoliberalism as a category and suggests that the term is used to refer to a diverse, labile and often inconsistent array of political rationalities. In turn, examination of the neoliberal penality thesis indicates as well that the linkages between ‘neoliberalism’ and penality are often vague or merely assumed, rendering the thesis highly problematic. Examination of work in the Chicago School on criminal justice - supposedly a major branch of neoliberalism - illustrates how such analysis should be carried out more rigorously. But it also shows that major variations in penology exist even within this apparently circumscribed and prominent ‘form’ of neoliberalism. It is argued that while ‘neoliberal penality’ may be retained as broad umbrella term, more specific uses should be abandoned.

August 25, 2015 | Permalink | Comments (0)

Ramachandran on Rubenfeld on Rape

Gowri Ramachandran (Southwestern Law School) has posted Delineating the Heinous: Rape, Sex, and Self-Possession (123 Yale Law Journal Online 371 (2013)) on SSRN. Here is the abstract:

In this Essay, Professor Ramachandran examines Professor Rubenfeld’s concept of self-possession, which Rubenfeld presents as a helpful way to define the harm of rape. She argues that if the concept represents exclusive physical control over one’s body, it is an elusive and undesirable ideal, and as problematic as the sexual autonomy concept that Rubenfeld critiques. Alternately, if it represents the narrower concept of mind-body integration, it makes a principled distinction between rape and battery impossible. The solution is to acknowledge that rape is a sex crime, unique because sex carries distinctive risks and meanings.

August 25, 2015 | Permalink | Comments (0)

Henderson on Fourth Amendment Time Machines

Henderson stephenStephen E. Henderson (University of Oklahoma College of Law) has posted Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras) (Forthcoming in the U. Pa. J. Const. L. (2016)) on SSRN. Here is the abstract:

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different from civilian equivalents that find their way into government hands, whether it be tomorrow’s drone flight, or today’s record of all of our internet activity compiled by our internet service provider, or a current record of all of our movements compiled by our mobile phone company? What of personalized time machines such as government over-seizure of digital data in every computer search? This Article considers the benefits and costs of these miraculous time-machine technologies, including as evidenced by several recent court opinions. Considering the very serious privacy implications — from the individual to the relational and societal — we have good reason to be wary of their coming ubiquity. Yet perhaps in very limited spheres we should welcome them, going so far as to entirely abandon front-end acquisition restrictions and rely solely upon ex post access, use, and disclosure limitations to protect the security in our persons, houses, papers, and effects. I suggest that one such sphere might be law enforcement body cameras, an instance in which full capture has great benefits, and via which we can experiment upon the utility of solely ex post restraints.

August 25, 2015 | Permalink | Comments (0)

Monday, August 24, 2015

"A different take on the Second Circuit’s Microsoft warrant case"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Microsoft is challenging a federal search warrant for e-mails that Microsoft has stored on a server in Ireland. According to Microsoft’s brief, the issue is whether the Stored Communications Act (SCA) applies to data stored overseas. Microsoft argues that the SCA regulates data and is being impermissibly applied extraterritorially, so the warrant should not be allowed. The United States responds that the SCA applies and the warrant should be enforced because the SCA regulates providers inside the U.S.. If you accept this framing, which side should win depends on whether the territorial SCA regulates providers (in this case inside the U.S.) or regulates data (in this case outside the U.S.).

I think this framing may be based on a mistaken view of the SCA.

August 24, 2015 | Permalink | Comments (0)

"In Rare Case, F.B.I. Tries to Fire Agent Who Shot Queens Suspect"

From The New York Times:

WASHINGTON — For the first time in decades, the F.B.I. is trying to fire an agent for intentionally shooting a suspect, after finding that the agent violated bureau policy when he wounded an unarmed man who had apparently helped break into his Lexus outside his home in Queens.

The agent, who was off duty, fired at the man from a second-story window, hitting him in the back. The man claimed that he was running away when the agent shot him, but a government investigation concluded otherwise. Still, the bureau deemed the decision to fire a “bad shoot,” in agents’ parlance.

. . .

Under the F.B.I.’s lethal force policy, agents may fire their weapons only if there is an imminent risk of death or serious bodily injury. A 12-member “shooting incident review group” that examined Mr. Kalicharan’s case said there was insufficient evidence to believe that a man “involved in a minor property crime out on the street” posed any immediate danger to people indoors and upstairs.

August 24, 2015 | Permalink | Comments (1)

Kamin & Marceau on Double Reasonableness and the Fourth Amendment

Sam Kamin and Justin F. Marceau (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Double Reasonableness and the Fourth Amendment (University of Miami Law Review, Vol. 68, No. 3, 2014) on SSRN. Here is the abstract:

Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. 

One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.

August 24, 2015 | Permalink | Comments (0)

Simons on Moore on Negligence

Simons kennethKenneth W. Simons (University of California, Irvine School of Law) has posted Reluctant Pluralist: Moore on Negligence (Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore (Kimberly Kessler Ferzan and Stephen J. Morse eds., Oxford University Press), 2015, Forthcoming) on SSRN. Here is the abstract:

Michael Moore has addressed the meaning and desirability of legal liability for negligence on several occasions. His early writings treat negligence as a consequentialist concept and as an appropriate basis for tort but not criminal liability. But in more recent writings, he is more pluralistic, recognizing that nonconsequentialist considerations play a proper role in tort negligence judgments, and tentatively endorsing negligence liability in criminal law as well. The evolution in his views is welcome. At the same time, neither Moore nor other scholars have yet provided a satisfactory account of this protean legal and moral concept. More attention should be paid to the questions whether negligence is a type of wrongdoing, a type of culpability, or both; and whether negligence differs from recklessness in kind or only in degree.

August 24, 2015 | Permalink | Comments (0)

Richardson on Racial Bias and Pretexts

Richardson l songL. Song Richardson (University of California, Irvine School of Law) has posted Response: Implicit Racial Bias and the Perpetrator Perspective: A Response to Reasonable But Unconstitutional (George Washington Law Review, Vol. 83, No. 3, 2015, Forthcoming) on SSRN. Here is the abstract:

In their article, “Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. U.S.,” Professor Chin and Mr. Vernon not only provide a withering critique of the U.S. Supreme Court’s unanimous decision in Whren v. U.S. but they also present novel doctrinal arguments for reversing its problematic dicta that racial discrimination is constitutionally reasonable. Their arguments are compelling and require no extension of current doctrine. For instance, Chin and Vernon embrace Whren’s endorsement of pretextual traffic stops as long as those stops do not involve racial profiling. Additionally, the authors implicitly embrace a central premise of the Courts’ current race jurisprudence, which is that only conscious racism violates the Constitution. Thus, their framework allows the Court to reach the identical outcome in Whren, without sanctioning race-based policing. However, this Response argues that there are some disadvantages to relying upon the Court’s existing jurisprudence when questions of race are concerned. First, their defense of pretextual policing is troubling because the practice likely will exacerbate the racial burdens that non-Whites experience at the hands of the police, even if conscious racial bias is non-existent. Furthermore, focusing solely on officers’ subjective racial motivations to determine whether discrimination has occurred ignores the victims’ experiences of profiling. In sum, the Court’s current conception of race discrimination is anemic and in urgent need of reform. Chin and Vernon’s arguments increase the likelihood that the Court will condemn racial discrimination as unreasonable under the Fourth Amendment. This would mark an important first step towards moving the Court to adopt a more realistic and broader conception of the harms of race discrimination.

August 24, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 4,353 Concealed Carry Permit Holders Across the United States 
John R. LottJohn E Whitley andRebekah C. Riley 
Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center 
Date posted to database: 20 Jul 2015 
2 604 Constitutional Malware 
Jonathan Mayer 
Stanford University 
Date posted to database: 21 Jul 2015 
3 281 Gideon's Servants and the Criminalization of Poverty 
Alexandra Natapoff 
Loyola Law School Los Angeles 
Date posted to database: 28 Jun 2015 [4th last week]
4 263 Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 9 Jul 2015 [5th last week]
5 248 An Economic Understanding of Search and Seizure Law 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 21 Jul 2015 [6th last week]
6 178 Prison Abolition and Grounded Justice 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 2 Jul 2015 [7th last week]
7 172 Sexuality and Incapacity 
Alexander A. Boni-Saenz 
Chicago-Kent College of Law 
Date posted to database: 11 Jul 2015 [8th last week]
8 116 The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection 
Maureen E. Brady 
Yale University - Law School 
Date posted to database: 1 Jul 2015 [9th last week]
9 96 A Reassessment of Common Law Protections for 'Idiots' 
Michael A. Clemente 
Yale University, Law School, Students 
Date posted to database: 25 Jun 2015 [new to top ten]
10 96 The Post-Riley Search Warrant: Search Protocols and Particularity in Cell Phone Searches 
Adam M. Gershowitz 
William & Mary Law School 
Date posted to database: 23 Jul 2015 [new to top ten]

August 24, 2015 | Permalink | Comments (0)

Sunday, August 23, 2015

Criminal law position at Richmond Law

Corinna Barrett Lain reports:

Richmond Law is looking to hire a criminal law professor whose focus is criminal adjudication (bail to jail).  We’d love to get someone who has actually practiced criminal law (on either side), and demonstrated scholarly potential is a must.  The slot is entry-level, but we’d consider lateral candidates with a strong publication record.  Nominations & applications should be addressed to Jessica Erickson, chair of faculty appointments, at our faculty appointments inbox--lawfacultyapp@richmond.edu.

August 23, 2015 | Permalink | Comments (0)

Nelson-Butler on A Critical Race Feminist Perspective on Prostitution and Sex Trafficking

Butler cheryl nelsonCheryl Nelson-Butler (Southern Methodist University - Dedman School of Law) has posted A Critical Race Feminist Perspective on Prostitution & Sex Trafficking in America (Yale Journal of Law & Feminism, Vol. 27, No. 1, 2015) on SSRN. Here is the abstract:

This Article is one of the first to apply critical race feminism (CRF) to explore prostitution and sex trafficking in the United States. Several scholars have applied critical race feminism to explore several forms of sexual exploitation, including sexual harassment, domestic violence, and rape, but have yet to extend this discourse into the debate on prostitution and sex trafficking. Legal scholars have addressed prostitution and sex trafficking as gender oppression, while others have acknowledged the role of race in prostitution and trafficking in America. But few have considered prostitution from a critical race perspective, i.e., one that considers how race and gender intersect with other systems of oppression together to marginalize people of color in America. This Article applies critical race feminist theory to argue that racism intersects with other forms of structural oppression to obscure choice for people of color in America’s prostitution industry. America’s commercial sex industry perpetuates structural race, gender, and class-based inequalities. Racism and structural oppression trap a disproportionate number of women of color and girls of color into prostitution. Racism coerces women of color to engage in prostitution and obscures their consent. A critical race feminist lens informs our understanding of how traditional feminist discourse about prostitution has not fully considered the role of race, structural racism, and intersectional oppression in both the scholarly and policy discourse on prostitution. In contrast to dominant feminist narratives about prostitution, a critical race feminist perspective calls upon scholars and policymakers to focus on the role of racism and structural state sanctioned factors that push marginalized people of color into prostitution.

August 23, 2015 | Permalink | Comments (0)