CrimProf Blog

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

Tuesday, October 17, 2017

Hannon on Race and Pedestrian Frisks

Lance Hannon (Villanova University - College of Liberal Arts and Sciences) has posted An Exploratory Multilevel Analysis of Pedestrian Frisks in Philadelphia (Forthcoming in Race and Justice) on SSRN. Here is the abstract:
 
The City of Philadelphia has faced significant litigation related to racial and ethnic disparities in stop-and-frisk practices. The Philadelphia Police Department has made much of its stop-and-frisk data publicly available in the name of transparency and to facilitate independent investigation (the data describe over 350,000 pedestrian stops with over 45,000 pedestrian frisks for 2014-15). The current analysis made use of this public dataset to explore whether the individual-level relationship between Black racial classification and being subjected to a frisk can be explained by associated neighborhood-level factors such as the violent crime rate. Additionally, the present analysis examined whether variation in the violent crime rate is similarly related to the likelihood of being frisked in predominantly Black versus non-Black areas and whether area racial composition affects the likelihood that an officer’s decision to frisk will be supported with uncovered contraband. The results were consistent with theories of neighborhood racial stigma. In particular, the violent crime rate was a significantly weaker predictor of being frisked in Black areas, and net of a variety of factors at the individual and neighborhood levels, Black citizens and Black places experienced a disproportionate amount of frisks where no contraband was found.

October 17, 2017 | Permalink | Comments (0)

Booth on Obstructing the IRS

Booth kathyrnKathryn Ward Booth (Vanderbilt University Law School) has posted Obstructing by Omission: The Troubling Expansion of the Criminal Offense of Obstructing the IRS and How DOJ Internal Policy Has Played a Role (University of Cincinnati Law Review, Vol. 86 (May 2018, Forthcoming)) on SSRN. Here is the abstract:
 
A majority of circuits hold that it is possible to be convicted of corruptly obstructing the administration of the Internal Revenue laws even if there is no pending IRS proceeding to obstruct. Even more strikingly, the Second Circuit recently held that making an omission is sufficient to obstruct the IRS, which means that it is a federal felony to corruptly not maintain records or to corruptly not provide records to an accountant. Despite the obvious potential problems with these issues, there is very little recent scholarship addressing them. In June, the Supreme Court granted certiorari to consider these issues. 

This article examines the circuit split over whether 26 U.S.C. § 7212(a), interfering with the administration of the Internal Revenue laws, requires that the defendant obstructed a known IRS proceeding.

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October 17, 2017 | Permalink | Comments (0)

Henning on Insider Trading Law

Henning peterPeter J. Henning (Wayne State University Law School) has posted Making Up Insider Trading Law as You Go Along (Washington University Journal of Law & Policy (2018)) on SSRN. Here is the abstract:
 
The law of insider trading has developed through a combination of ad hoc judicial decisions and administrative regulations, along with legislative inaction to correct or redirect its application. Although some might fear that traditional notions of due process and fair notice have not been adequately addressed, those concerns have not had an impact. Rather than rational legal development along a relatively clear statutory path, we continue to see that insider trading is for the most part made up as we go along by the courts, including the Supreme Court, and the Securities and Exchange Commission. This is what one should expect for a prohibition that is largely the product of common law development, despite the admonition that there are no federal common law crimes. The law has produced a reasonably stable set of rules that can be applied predictably to most instances of trading on confidential information. The Supreme Court’s decision in Salman v. United States in December 2016 shows that the justices are for the most part satisfied with how the prohibition is administered, even with no overarching theory of what should – or should not – constitute a violation. The very simplicity of the Court’s analysis in Salman belies any apprehension that the justices are bothered by the state of insider trading law, even if some might view the decision as a missed opportunity to rewrite the law. So when you just make it up as you go along, sometimes you can reach a point where those responsible for enforcement are relatively satisfied, with little prospect of significant change in the future.

October 17, 2017 | Permalink | Comments (0)

Sheehy on Sexual Assault on Campus

Elizabeth A. Sheehy (University of Ottawa - Common Law Section) has posted Making Universities Safe for Women: Sexual Assault on Campus (in Wayne Antony, Jessica Antony & Les Samuelson, eds. Power and Resistance: Critical Thinking About Canadian Social Issues, 6th ed (Black Point, NS: Fernwood 2017) 260-284) on SSRN. Here is the abstract:
 
Sexual assault perpetrated by men in Canada constitutes a major barrier to women’s freedom, security of the person and their right to equality before and under the law. Women students in post-secondary institutions suffer additional consequences beyond the trauma and chaos of rape: they may be unable to avoid the perpetrator if he shares a residence, classes, activities or even campus routes; their academic success will be imperiled such that they may fail their courses or be forced to withdraw from their programs; and they face financial penalties of wasted tuition, loss of Teaching and Research Assistantships and the costs of counseling. Men’s sexual violence thus has material consequences for women’s access to educational equity.

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October 17, 2017 | Permalink | Comments (0)

Monday, October 16, 2017

Joh on Deadly Force by Private Security Robots

Joh elizabethElizabeth E. Joh (University of California, Davis - School of Law) has posted 'A Certain Dangerous Engine': Private Security Robots, Artificial Intelligence, and Deadly Force (UC Davis L. Rev., 2017, Forthcoming) on SSRN. Here is the abstract:
 
Robots equipped with artificial intelligence will transform existing notions of work in fields as diverse as fast food, health care, manufacturing and the military. A recent use of a remote controlled robot equipped with lethal force has raised the question of how police might use robots to supplement or replace existing police work. Those same questions apply equally to private individuals who will want security robots, some of which are already in development and for lease. What about a future in which people employ autonomous and lethally armed security robots for protecting their homes and themselves? How would courts characterize security robots? One possibility involves spring guns. While spring guns may not ultimately be well suited as a way to discuss security robots, it turns out that many of the questions considered in the spring gun cases may begin the framework that courts will have to develop as robots enter the security business.

October 16, 2017 | Permalink | Comments (0)

Cook on Sex Offender Registration

Blanche Bong Cook (Wayne State University Law School) has posted Complicit Bias: Sex Offender Registration as a Penalty for Obstructing Sex-Trafficking Prosecutions (Preliminary Draft) (Nebraska Law Review, Vol. 96, p. 138, 2017) on SSRN. Here is the abstract:
 
As a matter of statutory interpretation, it is unclear whether criminal defendants who obstruct federal sex-trafficking prosecutions must register as sexual deviants on the national sex offender registry when the defendants do not directly engage in sex trafficking. This unresolved legal question presents a tangled web of statutory construction. At best, the anomaly results from a congressional drafting oversight in the Sex Offender Registration and Notification Act (SORNA). At worst, requiring defendants to register as sex offenders where they have solely engaged in obstruction may reflect a legislative and prosecutorial overzealousness emblematic of the War on Crime and the War on Drugs, which have made the United States the most carceral nation in history and which may undermine the very purposes of SORNA. Moreover, sex trafficking victims who refuse to cooperate against their assailants risk exposure to mandatory registration if they are convicted of obstruction, an outcome completely incongruous with the purposes of SORNA or the federal sex trafficking statute. The overuse and abuse of SORNA, embodied in mandating obstructionist registration, unmoors SORNA from its legitimate concerns, purposes, and justifications. No court has addressed the issue. Ultimately, congressional intervention is fundamentally necessary to make clear that pure obstructionists are not required to register under SORNA.

October 16, 2017 | Permalink | Comments (0)

Webb on Race and Fourth Amendment Seizures

Webb lindseyLindsey Webb (University of Denver Sturm College of Law) has posted Legal Consciousness As Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity (Seton Hall Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free to refuse law enforcement requests or otherwise terminate the encounter. Courts disregard the racial dynamics of the interaction as falling outside of the objective parameters of the seizure inquiry.

This Article suggests a novel pathway to a racially conscious reasonable person standard that does not require courts to abandon their allegiance to objectivity.

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October 16, 2017 | Permalink | Comments (0)

Sheehy on Domestic Violence Death Reviews

Elizabeth A. Sheehy (University of Ottawa - Common Law Section) has posted A Feminist Reflection on Domestic Violence Death Reviews (in Myrna Dawson, ed. Domestic Homicides and Death Reviews: An International Perspective (Hampshire: Palgrave Macmillan, 2017) 373-398) on SSRN. Here is the abstract:
 
This paper interrogates what contribution feminist knowledge and praxis might make to assessing and deepening the work of Domestic Violence Death Review Committees (DVDRCs). While DVDRCs may be struck by governments or civil society and may differ in terms of the form and content of their governance, all DVDRCs have their origins in the work of frontline feminist activists who documented the unique features that differentiate woman killing from other forms of homicide and demonstrated that intimate femicide is predictable and therefore preventable. Another uniting characteristic of DVDRCs is that their work is overwhelmingly focused on the deaths of women, since women account for the vast majority of domestic violence deaths -- 83% of such deaths in Canada. 

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October 16, 2017 | Permalink | Comments (0)

Weisselberg on Exporting and Importing Miranda

Weisselberg charlesCharles D. Weisselberg (University of California, Berkeley - School of Law) has posted Exporting and Importing Miranda (Boston University Law Review, Vol. 97, No. 3, 2017) on SSRN. Here is the abstract:
 
This article examines Miranda v. Arizona from a comparative perspective. Although many scholars have documented Miranda’s inability to protect the Fifth Amendment privilege in interrogations in the U.S., a significant number of nations are implementing Miranda-like procedures.

The article begins by setting the framework for a comparative approach, examining aspects of criminal justice systems, legal culture, the function of interrogation, and conditions for reform. Japan provides an example of a reform effort that never gained traction.

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October 16, 2017 | Permalink | Comments (0)

Ahranjani on Prisonized Schools

Ahranjani maryamMaryam Ahranjani (University of New Mexico - School of Law) has posted The Prisonization of America's Public Schools (Hofstra Law Review, Vol. 45, No. 4, 2017) on SSRN. Here is the abstract:
 
Over the past generation, episodes of mass school violence in American public schools have led to the “prisonization” of schools. The problems associated with prisonization practices have been identified and well-documented in the legal literature over the past few years, and they include the school-to-prison pipeline, as well as the over-policing of vulnerable populations like students with disabilities and African-American and Latino children. This piece seeks to contribute to existing literature in two ways. While national attention has turned to the lack of rigorous research on the effectiveness of prisonization practices, and studies are underway to identify whether prisonization practices are effective deterrents to crime in around schools and the effects on school climate (students’ learning, self-perceptions, etc.), gaps in a full picture of this alarming trend exist. First, the piece coins the term prisonization to describe the practices that reflect our tragic willingness to value security over individual rights despite the reality that school violence is relatively rare but also there is no evidence at this time to support the likelihood that prisonization practices actually diminish school violence. Second, the piece argues that America should abandon the prisonization of public schools in favor of more effective methods to prevent school violence. Applying the theoretical presumption that in our democracy, individual liberty outweighs security unless a true need arises to tip the scale of Constitutional analysis in the other direction, this piece offers policy suggestions that align with evidence-based risk factors.

October 16, 2017 | Permalink | Comments (0)

Dissents from cert denial in death penalty case

Justice Sotomayor, joined by Justices Ginsburg and Breyer, dissented in Truehill v. Florida. Justice Breyer filed a separate dissent.

October 16, 2017 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

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

  • Currier v. Virginia: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.
  • Dahda v. United States: Whether Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510–2520, requires suppression of evidence obtained pursuant to a wiretap order that is facially insufficient because the order exceeds the judge's territorial jurisdiction.
  • United States v. Microsoft Corp.: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.

October 16, 2017 | Permalink | Comments (0)

Sunday, October 15, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Congressional Control of Presidential Pardons

University of Tennessee College of Law
3,679
2.

Revenge Against Robots

Brooklyn Law School
199
3.

Corpus Linguistics and the Criminal Law

University of North Carolina School of Law
120
4.

Corpus Linguistics as a Tool in Legal Interpretation

Brooklyn Law School and Hofstra University
112
5.

Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives

University of Mississippi, School of Law, Students
110
6.

Why Fiction?

Hofstra University - Maurice A. Deane School of Law
83
7.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Vanderbilt University - Law School
77
8.

Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine

University of San Diego School of Law
64
9.

Marijuana Legalization and Nosy Neighbor States

Thomas Jefferson School of Law
53
10.

'Innocence' and the Guilty Mind

Notre Dame Law School
49

October 15, 2017 | Permalink | Comments (0)

Saturday, October 14, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
The George Washington University Law School

Date Posted: 04 Oct 2017 [new to top ten]

744
2.
Case Western Reserve University School of Law

Date Posted: 06 Sep 2017 [first last week]

399
3.
University of California, Davis - School of Law

Date Posted: 21 Aug 2017 [2nd last week]

331
4.
University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School

Date Posted: 02 Oct 2017 [new to top ten]

155
5.
University of Calgary

Date Posted: 30 Aug 2017 [3rd last week]

149
6.
University of California, Irvine School of Law

Date Posted: 16 Aug 2017 [5th last week]

121
7.
Duke University School of Law

Date Posted: 03 Aug 2017 

120
8.
Independent

Date Posted: 23 Aug 2017 [10th last week]

119
9.
University of the District of Columbia - David A. Clarke School of Law

Date Posted: 17 Aug 2017 [6th last week]

117
10.
Loyola Law School

Date Posted: 15 Sep 2017 [new to top ten]

90

October 14, 2017 | Permalink | Comments (0)

Friday, October 13, 2017

"Many law enforcement agencies don’t follow state lineup, interrogation rules, study says"

From The Columbus Dispatch, via the NACDL news scan:

The law, passed in 2010, requires law enforcement agencies to use “blind” suspect lineups in which the investigator or officer administering the lineup either isn’t involved in the case or doesn’t know the identity of the suspect. Law enforcement can also use a photo lineup technique in which only the witness can see the pictures to ensure they aren’t biased. It also recommends, but doesn’t require, recording interrogations.

. . .

“Very few departments are complying with the full letter of the law, and that’s very disappointing,” said Mark Godsey, director of the Ohio Innocence Project. “We need to do better in Ohio.”

 

October 13, 2017 | Permalink | Comments (0)

Tsesis on Social Media Accountability for Terrorist Propaganda

Tsesis alexanderAlexander Tsesis (Loyola University Chicago School of Law) has posted Social Media Accountability for Terrorist Propaganda (Fordham Law Review, Vol. 86, 2017) on SSRN. Here is the abstract:
 
Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff.

This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction.

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October 13, 2017 | Permalink | Comments (0)

Silver on Credibility Assessment

Lisa A Silver (University of Calgary, Faculty of Law) has posted The WD Revolution on SSRN. Here is the abstract:
 
The W(D) decision matters. As a paradigm of the core principles of fundamental justice, W(D) has empowered the credibility assessment and given it meaning. From its release in 1991, the essence of the decision, invoked by the case initials, reverberated through the appellate and trial courts and changed the legal landscape. From its modest beginnings as an admonishment to beware of the impermissible “credibility contest,” W(D) radically transformed the everyday to the infra-ordinary by imbedding the presumption of innocence and the inextricably connected reasonable doubt standard into the decision-making analysis. But the revolutionary path has not been easy as the courts struggle with the tension between the “ideal” and the “real.” Yet, W(D) has survived this ordeal to become an essential trial concept. How W(D) has made this not-so “magical” transition is discussed in this paper as we trace the impact of the decision through statistics, case law, the judicial lens and the personal perspective. At the end of this examination, we will see W(D) anew; not as a worn-out overplayed “mantra” but as an invigorating principle representing the plurality of what is at stake in a criminal trial. To apply W(D) is to know it. This paper attempts that very task.

October 13, 2017 | Permalink | Comments (0)

Heise et al. on State Criminal Appeals

Michael HeiseNancy J. King and Nicole A. Heise (Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students) have posted State Criminal Appeals Revealed on SSRN. Here is the abstract:
 
Every state provides appellate review of criminal judgments, yet little research examines which factors correlate with favorable outcomes for defendants who seek appellate relief. To address this scholarly gap, this paper exploits the Survey of Criminal Appeals in State Courts (2010) dataset, recently released by the Bureau of Justice Statistics and the National Center for State Courts (hereinafter, “NCSC Study”). The NCSC Study is the first and only publicly available national dataset on state criminal appeals and includes unprecedented information from every state court in the nation with jurisdiction to review criminal judgments. We focus on two subpools of state criminal appeals: a defendant’s first appeal of right, and defense appeals to courts of last resort with the discretion to grant or deny review. Error correction, of course, is paramount in the first context, for typically an appeal of right is a defendant’s only chance at review. By contrast, courts of last resort with discretionary jurisdiction emphasize law development, selecting cases to clarify or alter legal rules, resolve conflicts, and remedy the most egregious mistakes. Our findings imply that defense appellate success rates may have declined in recent decades.

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October 13, 2017 | Permalink | Comments (0)

Buchhandler-Raphael on Fear-Based Provocation

Michal Buchhandler-Raphael (Washington and Lee University School of Law) has posted Fear-Based Provocation on SSRN. Here is the abstract:
 
Psychological research has long found that anger may lead to aggression, sometimes even fatal one. The provocation doctrine corresponds to this finding by providing that murder charges may be mitigated to voluntary manslaughter if evidence establishes that the defendant acted under the influence of a “sudden heat of passion”, resulting from “adequate provocation”. The modern rationale underlying provocation doctrine rests on the idea that defendant’s intense emotion of anger had resulted in loss of self-control, therefore he or she ought to be partially excused.

Case law demonstrates that defendants sometimes kill out of fear of serious physical violence threatened by the deceased.

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October 13, 2017 | Permalink | Comments (0)

Anderson on Context and Tendency Evidence in Sexual Assault Cases

John L Anderson (University of Newcastle (Australia) - Newcastle Law School) has posted The Fraught Dichotomy between Context and Tendency Evidence in Sexual Assault Cases - Suggestions for Reform (New Directions for Law in Australia: Essays in Contemporary Law Reform, Ron Levy, Simon Rice, Molly O'Brien, Pauline Ridge and Margaret Thornton (eds) (2017)) on SSRN. Here is the abstract:
 
In this chapter, it will first be argued that the admissibility of relationship/context evidence under the uniform Evidence Acts should be specifically governed by a statutory provision similar to section 34P Evidence Act 1929 (SA), which presumptively makes all evidence of ‘discreditable conduct’ inadmissible and sets a rigorous threshold for the prosecution to persuade the trial judge that the evidence is admissible. This will require a transparent judicial balancing process rather than simply relying on the outmoded notion that directions to the jury will ameliorate the unfair prejudice to the defendant. Second, it will be contended that increased use of expert evidence to explain so-called 'counter-intuitive' behaviours of sexual assault victims, particularly children, is an option in certain cases that will be a more objective way of maintaining the credibility of victims without the need for a detailed and highly prejudicial account of ‘misconduct’ and events leading to the charged offence.

October 13, 2017 | Permalink | Comments (0)