CrimProf Blog

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

Tuesday, December 19, 2017

Janhuba & Cechova on Monitoring, Deterrence, and Football

Radek Janhuba and Kristyna Cechova (Charles University in Prague - CERGE-EI (Center for Economic Research and Graduate Education - Economics Institute) and Charles University in Prague - Faculty of Social Sciences) have posted Criminals on the Field: A Study of College Football on SSRN. Here is the abstract:
 
Economists have found mixed evidence on what happens when the number of police increases. On the one hand, more law enforcers means a higher probability of detecting a crime, which is known as the monitoring effect. On the other hand, criminals incorporate the increase into their decision-making process and thus may commit fewer crimes, constituting the deterrence effect. This study analyzes the effects of an increase in the number of on-field college football officials, taking players as potential criminals and officials as law enforcers. Analyzing a novel play by play dataset from two seasons of college football, we report evidence of a monitoring effect being present in the overall dataset. This effect is mainly driven by offensive penalties which are called in the area of jurisdiction of the added official. Decomposition of the effect provides evidence of the presence of the deterrence effect in cases of penalties with severe punishment or those committed by teams with moderate to high ability, suggesting that teams are able to strategically adapt their behavior following the addition of an official.

December 19, 2017 | Permalink | Comments (0)

Monday, December 18, 2017

Kaye on Daubert and Criminalistics Evidence

Kaye davidDavid H. Kaye (Pennsylvania State University, Penn State Law) has posted How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It (Fordham Law Review, Vol. 86, No. 4, 2018, Forthcoming) on SSRN. Here is the abstract:
 
A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to this type of evidence. It shows how ambiguities and flaws in the terminology adopted in Daubert have been exploited to shield some test methods from critical judicial analysis. Second, it notes how part of the Supreme Court’s opinion in Kumho Tire Co. v. Carmichael has enabled courts to lower the bar for what is presented as scientific evidence by maintaining that there is no difference between that evidence and other expert testimony (that need not be scientifically validated). It suggests that if the theory of admissibility is that the evidence is nonscientific expert knowledge, then only a “de-scientized” version of evidence should be admitted. Third, it sketches various meanings of the terms “reliability” and “validity” in science and statistics on the one hand, and in the rules and opinions on the admissibility of expert evidence, on the other. Finally, it articulates two distinct approaches to informing judges or jurors of the import of similarities in features—the traditional one in which examiners opine on the truth and falsity of source hypotheses—and a more finely grained one in which criminalists report only on the strength of the evidence. It contends that courts should encourage the latter, likelihood based testimony when it has a satisfactory, empirically established basis.

December 18, 2017 | Permalink | Comments (0)

Parkes on Women in Prison

Debra L. Parkes (Peter A. Allard School of Law) has posted Women in Prison: Liberty, Equality, and Thinking Outside the Bars (Journal of Law & Equality, Vol. 12, 2016) on SSRN. Here is the abstract:
 
This article considers the potential of rights-based advocacy to respond to the troubling reality of a growing women's prison population, and it makes an attempt to sketch out an approach to advocacy and scholarship that seeks both liberty and substantive equality for criminalized and imprisoned women. It proceeds in four parts. First, it documents some of the legislative and policy changes made to sentencing and penal law in the last decade. Next, it identifies some of the ways that these changes have an impact on women and on particular groups of women. It then suggests some ways that academics, lawyers, law students, and other feminist advocates might have a role in resisting the punishment agenda and seeking liberty and substantive equality for criminalized women. Finally, it considers "thinking outside the bars" in the light of the exploding number of incarcerated Indigenous women in Canada.

December 18, 2017 | Permalink | Comments (0)

Mendlow on The Elusive Object of Punishment

Mendlow gabrielGabriel Mendlow (University of Michigan Law School) has posted The Elusive Object of Punishment on SSRN. Here is the abstract:
 
This essay explores a phenomenon most scholars have neglected and none has studied systematically: judges may agree on a law’s elements even as they disagree about the identity of the wrong the law punishes. One goal of the essay is to show that these largely unexamined disagreements underlie an assortment of familiar disputes — over venue and vagueness and mens rea, over whether an offender’s sentence is proportionate to his offense, and over whether the offense itself is a legitimate object of punishment. All of these disputes may hinge on deeper disagreements about the identity of the wrong a law punishes. These deeper disagreements can be surprisingly hard to resolve, and it is another goal of the essay to explain why. Thanks to the complex inner structure of penal laws and the discretionary mechanisms of their administration, the object of an offender’s punishment can be elusive and obscure.

December 18, 2017 | Permalink | Comments (0)

Sunday, December 17, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
265
2.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
189
3.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
186
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
161
5.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
98
6.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
82
7.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
78
8.

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation

New York University School of Law Immigrant Rights Clinic
78
9.

Ordinary Meaning and Corpus Linguistics

UC Santa Barbara - Department of Linguistics and University of the Pacific - McGeorge School of Law
76
10.

Immigration Equity's Last Stand: Sanctuaries & Legitimacy in an Era of Mass Immigration Enforcement

University of Georgia Law School

December 17, 2017 | Permalink | Comments (0)

Saturday, December 16, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
265
2.

Criminal Justice, Inc.

University of Chicago Law School
171
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
161
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
161
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
140
6.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
114
7.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
93
8.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
82
9.

Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence — How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Independent
81
10.

Blank Slates

University of Utah - S.J. Quinney College of Law
80

December 16, 2017 | Permalink | Comments (0)

"It's still too easy to push blacks, minorities off of juries"

Jeffrey Bellin (William & Mary) has this piece at USA Today. In part:

The ruling in Connecticut v. Holmes — the appeal of a Connecticut murder case that ultimately landed a black man in prison after a potential African-American juror was eliminated — should alarm anyone who cares about democracy.

During jury selection in the original case, "W.T.," who was African American and being interviewed by both the prosecution and the defense as a potential juror, expressed concerns about law enforcement in answer to questions posed by the prosecutor.

. . .

But W.T. also emphasized that he would follow the law and "judge (the case) by the facts."

Still, the prosecutor eliminated W.T. The state explained that the elimination was "race-neutral" and expressed concern about the fact that W.T.'s family members "have been convicted and have served time. ... If we had a Caucasian who was in the same situation," they would also have eliminated him from the jury, the state said.

December 16, 2017 | Permalink | Comments (1)

Friday, December 15, 2017

"New drug law makes it ‘harder for us to do our jobs,’ former DEA officials say "

From The Washington Post:

The Ensuring Patient Access and Effective Drug Enforcement Act of 2016 was pushed through Congress by a small band of lawmakers backed by a powerful array of drug companies. The law has undermined the DEA’s most potent tools in the war against the opioid epidemic, according to agency investigators, agents, lawyers and the DEA’s chief administrative law judge.

. . .

During a Senate Judiciary Committee hearing Tuesday, the head of the DEA office that regulates the pharmaceutical industry said the law has made enforcement more difficult in urgent circumstances and should be revised.

December 15, 2017 | Permalink | Comments (0)

"UN expert urges US accountability for torture"

Jurist has this report:

Melzer urged US authorities to take action on the findings in the 2014 Senate Intelligence Committee Report [JURIST report], which found that the Central Intelligence Agency (CIA) [official website] deliberately misled Congress and the White House about information obtained using enhanced interrogation techniques between 2002 and 2007, and that those techniques were more brutal than the public was led to believe. Melzer noted that, to date, "the perpetrators and policymakers responsible for years of gruesome abuse have not been brought to justice" and called on the US to "end its policy of impunity" by "bringing its own perpetrators to justice."

December 15, 2017 | Permalink | Comments (0)

Deitch on Jury Selection

Brittany L. Deitch has posted The Unconstitutionality of Criminal Jury Selection (William & Mary Bill of Rights Journal, Forthcoming) on SSRN. Here is the abstract:
 
The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments. The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression. This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection. Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial. Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power. After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.

December 15, 2017 | Permalink | Comments (0)

Marks on Drug Trafficking

Amber Marks (Queen Mary University of London, Law Department) has posted Legal Perspectives on Drug Trafficking (draft chapter for Research Handbook on Transnational Crime, V. Mitsilegas, S. Hufnagel, and A. Moiseienko (eds), Edward Elgar, Forthcoming) on SSRN. Here is the abstract:
 
The two terms ‘trafficking’ and ‘personal consumption’ provide the conceptual framework for the international drug control regime. Neither term is defined. The principal disagreement behind the consensus reached on drug trafficking in the 1988 Convention was the extent to which conduct related to ‘personal consumption’ should fall within the scope of ‘drug trafficking’. This consensus left the scope of drug trafficking ambiguous and “elastic”, providing states with the freedom to abstain from criminalising acts for personal consumption where to do so would conflict with their constitution or the basic principles of their legal system, and the freedom to abstain from punishing such conduct where it is criminalised. Attempts at harmonisation regarding the notion of drug trafficking within the European Union underline a deep ambiguity regarding the scope of the term ‘personal consumption’, which is evident both within and beyond the European Union. In the law and/or practice of some jurisdictions, the notion of ‘social supply’ is clearly treated as belonging outside the scope of drug trafficking. Having explored the frustration of international and European efforts to clarify the legal parameters of the notion of drug trafficking, this chapter concludes that it is time to consider human rights law as providing a more robust and transparent legal framework for drug policy and outlines the foundations for its application in an emergent body of comparative law recognising recreational drug use as coming within the constitutionally protected realms of privacy, autonomy and free assembly.

December 15, 2017 | Permalink | Comments (0)

Thursday, December 14, 2017

Montag & Sobek on Subjective Punishment

Josef Montag and Tomáš Sobek (International School of Economics, Kazakh-British Technical University and Masaryk University - Faculty of Law) have posted an abstract for Subjective Punishment (In Marciano, Alain and Giovanni Battista Ramello (Eds.). 2019. Encyclopedia of Law and Economics. Springer, Forthcoming) on SSRN. Here is the abstract:
 
A punishment implies some discomfort for its recipient --- else it would not punish. Indeed, criminal justice can be viewed as an intricate system that calibrates the severity of punishment --- and therefore the amount of the associated discomfort --- to individual offenses and offenders. This is done primarily by adjusting the nominal size of punishment, given by the length of a prison sentence, the number of hours of community service, or the amount of a fine. However, the discomfort from a punishment is co-determined by a host of other factors such as differences across prison facilities, judicial delays, the punishee’s psychological set up, her wealth, luck, family relations, and so on. It is the interaction of the nominal punishment with these subjective factors that determine the total amount of discomfort that a punishment creates in a punishee. “Subjective punishment” (or individualized sentencing) is an umbrella term for a variety of theories that suggest these factors should be accounted for when courts decide on a punishment. Their common denominator is that --- in order to maintain the equality of the (total) punitive effect for the same crime --- they often imply that different offenders should receive different nominal punishment. This essay aims to provide a broad overview of these theories and their potential implications for criminal justice.

December 14, 2017 | Permalink | Comments (0)

Erbas on DNA Databases

Rahime Erbaş (Istanbul University, Faculty of Law) has posted The Tension between Genome Privacy and Criminal Justice in the Wake of DNA Databases (Journal of Penal Law and Criminology 2017; 5 (2):163-178) on SSRN. Here is the abstract:
 
Using DNA databases has a significant role in finding truths in criminal law; therefore, national DNA databases are becoming common worldwide. Consequently, their size is increasing every year. However, do we actually need a DNA database for the sake of criminal justice? Within this context, this study first demonstrates how common it is to create DNA databases today and how much information is retained in these databases. Then, the key question emerges: how do we find the balance between the competing interests of ensuring the right to privacy while facilitating the state’s interest in solving crimes? This is where the main implementation criteria for data entry, storage and destruction become significant. More concretely, we examine the criteria that should be adopted around whether DNA samples for particular criminals should be included. For example, should DNA samples be included in the case of serious crimes, e.g., crimes against life, sexual abuse, and robbery, as well as crimes requiring punishment of more than a certain time period, such as more than one year? Further, is it possible to remove DNA information from the database? This study is based on the proposal that these criteria play a significant role in softening the tension between breaching privacy and the State's interest in fighting and solving crimes. This study will focus on these criteria, summarized as data entry, storage and destruction by considering comparative law including the EU, the ECHR and the USA analysis.

December 14, 2017 | Permalink | Comments (0)

Wednesday, December 13, 2017

McAllister on Tiny Homes and the Fourth Amendment

Marc Chase McAllister (Texas State University, San Marcos - College of Business Administration) has posted Go Tiny or Go Home: How Living Tiny May Inadvertently Reduce Privacy Rights in the Home (South Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Seeking to live a more minimal lifestyle, people across America are choosing to leave their traditional homes and move into “tiny homes” averaging about 200 square feet of living space. As with many fads, this new form of dwelling has brought numerous legal obstacles, including finding a location where tiny homes are permitted by local zoning laws and designing the structure to comply with local building codes. As municipalities re-examine their housing regulations, another issue looms on the horizon, namely, what Fourth Amendment rights the occupants of tiny homes enjoy. This article explores that issue. 

This article specifically considers whether the Fourth Amendment’s warrant requirement would apply to tiny homes constructed on trailers, or whether instead such structures could be searched without a warrant under the automobile exception, an issue no court has addressed.

Continue reading

December 13, 2017 | Permalink | Comments (0)

Tuesday, December 12, 2017

"Rebellious Jurors Make the World a Better Place"

From Reason, via the NACDL news scan:

After criticism by some local officials of a new program that refers people caught with four ounces or less of marijuana for fines and community service, El Paso, Texas, Police Chief Greg Allen turned out to be a surprise defender of bypassing the usual criminal justice rigmarole of booking, mug shots, and jails. While careful to emphasize that he's no fan of drug legalization, Allen says it's a waste of his officers' time to put hours into an "an arrest that has no end result of a conviction because of jury nullification.".

. . .

"Jury nullification, though still rare, appears to be on the rise in drug cases that reach the trial stage," wrote Rice University's Prof. William Martin in the course of a discussion on the impact of jury nullification on the state's drug policy sponsored by Rice University's Baker Institute and the Houston Chronicle. "But even if the numbers remain small, their impact can ripple outward." He cited the case of a judge who experimentally offered jurors a chance to recommend penalties they believed appropriate in cases involving large quantities of drugs. "In the first case, they found the defendant guilty and gave him probation…We did another one just to see. Same result—huge amount of marijuana, probation. The prosecutors couldn't believe it."

December 12, 2017 | Permalink | Comments (0)

"LEGAL POT: WILL JEFF SESSIONS’S WAR ON MEDICAL MARIJUANA START NEXT WEEK?"

From Newsweek, via the NACDL news scan:

The legislation that prevents Attorney General Jeff Sessions from using federal law enforcement against medical marijuana in states where it's legal remains up in the air until December 22, the deadline for Congress to vote on the federal budget for next year.

. . .

Jeff Sessions has opposed the amendment, finding it “unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic," he wrote to lawmakers in May.

December 12, 2017 | Permalink | Comments (0)

Ocen on Pregnancy as a Status Offense

Ocen_priscillaPriscilla A Ocen (Loyola Law School Los Angeles) has posted Birthing Injustice: Pregnancy as a Status Offense (George Washington Law Review, Vol. 85, No. 4, 2017) on SSRN. Here is the abstract:
 
Over the last thirty years, pregnant women, particularly pregnant women of color, have increasingly come under the supervision and control of the criminal justice system. In July 2014, Tennessee became the first state in the country to pass a law criminalizing illegal drug use during pregnancy. Within weeks of its enactment, several women were arrested and subjected to prosecution under the statute. In Alabama, the State Supreme Court upheld convictions of several women after finding that the state’s chemical endangerment statute applied to fetal life. The women convicted of these crimes joined hundreds of other pregnant women arrested for or convicted of similar offenses. Indeed, according to recent studies, over 1000 women have been convicted of crimes ranging from child endangerment to second-degree murder as a result of conduct during pregnancy. In almost all of these cases, the conduct of the women prosecuted would have been lawful or subject to a lesser penalty had it been committed by a nonpregnant person.

Continue reading

December 12, 2017 | Permalink | Comments (0)

Hessick on Finality and the Capital/Non-Capital Divide

Hessick carissaCarissa Byrne Hessick (University of North Carolina School of Law) has posted Finality and the Capital/Non-Capital Punishment Divide (Final Judgments: The Death Penalty in American Law and Culture (A. Sarat ed.), 2017) on SSRN. Here is the abstract:
 
This book chapter examines the role that concerns about finality have played in both capital cases and juvenile life-without-parole sentencing cases. It will describe how finality has shaped the Supreme Court’s death penalty cases, as well as the role it has played in recent juvenile life-without-parole cases. It will then offer some tentative thoughts on whether the non-capital finality concerns – specifically, the perceived need for post-sentencing assessments – should be extended to capital defendants and how post-sentencing assessments might inform the ongoing debate over the death penalty abolition in the United States.

December 12, 2017 | Permalink | Comments (0)

Monday, December 11, 2017

"Portugal’s radical drugs policy is working. Why hasn’t the world copied it?"

Doug Berman at Sentencing Law & Policy links to and excerpts this article from The Guardian. From the excerpt:

In 2001, ... Portugal became the first country to decriminalise the possession and consumption of all illicit substances. Rather than being arrested, those caught with a personal supply might be given a warning, a small fine, or told to appear before a local commission — a doctor, a lawyer and a social worker — about treatment, harm reduction, and the support services that were available to them.

The opioid crisis soon stabilised, and the ensuing years saw dramatic drops in problematic drug use, HIV and hepatitis infection rates, overdose deaths, drug-related crime and incarceration rates. HIV infection plummeted from an all-time high in 2000 of 104.2 new cases per million to 4.2 cases per million in 2015. The data behind these changes has been studied and cited as evidence by harm-reduction movements around the globe. It’s misleading, however, to credit these positive results entirely to a change in law.

December 11, 2017 | Permalink | Comments (1)

Indigent defense

A couple of recent posts on the subject, via the NACDL news scan:

  • Public defenders nationwide say they’re overworked and underfunded

    Over the last year, as Barrett has come to lead the Missouri indigent defense program, he has tried to draw attention to the untenable workload that the state expects his office to take up. He went so far as to appoint Gov. Jay Nixon to represent an indigent defendant last year after Nixon vetoed a bill that would have capped public defenders' caseloads.

    Although the stunt briefly caught the national eye, he said, the state's number of cases has still grown from 74,000 in 2016 to 82,000 this year, and most public defenders in Missouri are expected to handle 80 to 100 cases a week.

  • Nevada’s Gideon Problem: Earlier this month, a team of lawyers from the ACLU of Nevada, the national ACLU’s Criminal Law Reform Project, pro bono attorneys from O’Melveny & Myers LLP, and former Nevada Federal Public Defender Franny Forsman filed suit to address these grave deficiencies. The class action asserts that Nevada has violated the Sixth Amendment and the Nevada Constitution by failing to provide meaningful representation to indigent defendants in eleven rural counties. It asserts that state officials, including the Governor of Nevada, have known about the crisis in these counties for far too long and have failed to correct it. Instead, eleven rural counties have been left without funding, oversight, guidelines, policies, programs or other critical resources needed to ensure long-guaranteed rights. The result is a betrayal of the constitutional guarantees of the right to counsel and due process that cannot be remedied, and that will continue to cause irreparable harm until the State acts to correct it.

December 11, 2017 | Permalink | Comments (0)