CrimProf Blog

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

Monday, January 22, 2018

"Peffer v. Stephens, on Probable Cause and Home Computer Searches"

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

On Thursday, the Sixth Circuit decided a Fourth Amendment case that is drawing a lot of criticism online. The case, Peffer v. Stephens, is authored by a new and somewhat controversial Trump appointee, John K. Bush. A few people have asked me to take a look at the case, wondering if it's as crazy and extreme as some (okay, Slate's Mark Stern) say.

My tentative take: I think the court reached out to answer a big question it didn't have to answer. I'm skeptical that the court was right to paint with such a broad brush. With that said, I don't think the decision is as far-reaching or harmful as others seem to think, in part because I suspect future courts will limit it to its facts.

January 22, 2018 | Permalink | Comments (0)

"Nation's Criminal Defense Bar is "Profoundly Disappointed" by Senate's Passage of Warrantless Surveillance Legislation"

NACDL posted this news release on its website. In part:

Instead of reforming overreaching and excessive powers under Section 702, including the collection of domestic communications without warrants, Congress expanded and codified them into law. This legislation reauthorizes U.S. warrantless surveillance under Section 702 until 2024. It also codifies the backdoor search loophole that allows the government to search the information collected under Section 702 for domestic investigations without meaningful limitation. Additionally, the bill allows for the practice referred to as "about" collection, whereby the government collects even purely domestic communications merely because they mention a target of Section 702 collection.

January 22, 2018 | Permalink | Comments (0)

"DOJ drops charges against 129 people involved in anti-Trump protests"

From Jurist:

The office of the US Attorney for the District of Columbia [official website] announced [text, PDF] Thursday that it was dropping charges against 129 people arrested in the Inauguration Day protests, proceeding with charges against 59 defendants.

. . .

Prosecutors said the decision was made "in light of the legal rulings by the court and the jury's verdicts in the first trial of these cases," which found the first six defendants to stand trial not guilty.

In the document, the US Attorneys Office stated they are focusing their "efforts on prosecuting those defendants who: (1) engaged in identifiable acts of destruction, violence, or other assaultive conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black-bloc tactic on January 20, 2017, to perpetrate, aid or abet violence and destruction."

The term black-bloc is significant, in that it was used by organizers to plan the protest, and "is frequently used when participants within the larger black-bloc group intend to commit violence or destruction of property."

January 22, 2018 | Permalink | Comments (0)

Zalman on Wrongful Convictions and the DNA Revolution

 
Review of anthology on twenty-five years of wrongful conviction scholarship development. Editor Daniel Medwed's volume includes chapter by leading experts on exonerations, innocence clinics, various causes of wrongful convictions, capital punishment, procedural issues, tradeoffs, the global innocence movement and other issues.

January 22, 2018 | Permalink | Comments (0)

Opinion finding probable cause for arrest and qualified immunity for officers

Justice Thomas delivered the opinion of the Court in District of Columbia v. Wesby. Justice Sotomayor concurred in part and concurred in the judgment. Justice Ginsburg concurred in the judgment in part.

January 22, 2018 | Permalink | Comments (0)

Sunday, January 21, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

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
191
2.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
85
3.

Backdoor Man: A Radiograph of Computer Source Code Theft Cases

Babes-Bolyai University - Faculty of Law and Independent
62
4.

Moral and Criminal Responsibility: Answering and Refusing to Answer

University of Stirling - Department of Philosophy
60
5.

Balancing Section 230 and Anti-Sex Trafficking Initiatives

Santa Clara University - School of Law
55
6.

Decoding the Impossibility Defense

California Western School of Law
49
7.

The Elusive Object of Punishment

University of Michigan Law School
49
8.

Why Rape Should Be a Federal Crime

University of San Diego School of Law
47
9.

Finality and the Capital/Non-Capital Punishment Divide

University of North Carolina School of Law
42
10.

Complicity

UC San Diego
34

January 21, 2018 | Permalink | Comments (0)

Saturday, January 20, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
414
2.

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
191
3.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
172
4.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
150
5.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
148
6.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
136
7.

Graduating Economic Sanctions According to Ability to Pay

University of California, Los Angeles (UCLA) - School of Law
80
8.

How Daubert and Its Progeny Have Failed Criminalistics Evidence and a Few Things the Judiciary Could Do About It

Pennsylvania State University, Penn State Law
67
9.

Cops, Docs, and Code: A Dialogue between Big Data in Health Care and Predictive Policing

Harvard Law School and Harvard University, Law School, Students
65
10.

Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis?

Stanford University - Stanford Law School Center for Internet and Society
65

January 20, 2018 | Permalink | Comments (0)

Friday, January 19, 2018

Diamantis on Reforming Corporations

Mihailis Diamantis (University of Iowa - College of Law) has posted Ditching Deterrence: Preventing Crime by Reforming Corporations Rather than Fining Them (Compliance & Enforcement (2018)) on SSRN. Here is the abstract:
 
This short paper proposes abandoning the corporate criminal fine and exclusively punishing criminal corporations by reforming them. Fining corporations is not an effective way to prevent corporate misconduct. Corporate fines cannot reliably deter at the entity level because corporations faced with fines can invest in concealing misconduct rather than avoiding it. Corporate fines also fail to deter individuals within corporations because the corporate structure distributes the impact of fines among all corporate stakeholders. This paper argues that replacing corporate fines with corporate reform would address both these problems. Coerced reform could directly target entity-level compliance vulnerabilities and would give individuals within corporations stronger incentives to obey the law.

January 19, 2018 | Permalink | Comments (0)

Shiner & Ho on Deferred Prosecution Agreements

Roger Shiner and Henry Ho (University of British Columbia Okanagan and Melbourne Law School) have posted Deferred Prosecution Agreements and the Presumption of Innocence (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:
 
A deferred prosecution agreement, or DPA, allows a corporation, instead of proceeding to trial on a criminal charge, to settle matters with the state by acknowledging the facts on which any charge would be based, paying a reduced fine, and agreeing to change the way they conduct business. Critics of DPAs have suggested that, because the defendant corporation must pay a fine and submit to structural reform without having been found guilty at trial, DPAs violate the Presumption of Innocence. This paper argues that they do not. The paper appeals to the role of civic trust in a liberal political community. The obligations a corporation assumes in a DPA can be framed as a reasonable retributive response to a breach by that corporation of the community’s laws, and an appropriate reassurance by that corporation to the community that such breaches will not reoccur. This framing is sufficient to deny that DPAs violate the PoI.

January 19, 2018 | Permalink | Comments (0)

Thursday, January 18, 2018

Johnston & Flynn on Mental Health Courts and Sentencing Disparities

E. Lea Johnston and Conor Flynn (University of Florida - Levin College of Law and University of Florida - Levin College of Law) have posted Mental Health Courts and Sentencing Disparities (62 Vill. L. Rev. 685 (2017)) on SSRN. Here is the abstract:
 
Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants. This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts. Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score. Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials. The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades. 

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January 18, 2018 | Permalink | Comments (0)

"Lies, damn lies and fascinating statistics in the US Sentencing Commission FY 2017 sentencing data"

Doug Berman has this post at Sentencing Law & Policy. In part:

One can mine a lot more data from the FY 2017 report to tell a lot more stories about how, at least so far, formal and informal changes by AG Sessions have not yet made a dramatic impact on federal sentencing statistics.  Indeed, one might be heartened by the fact that fewer federal cases were sentenced in FY 2017 than in the last 15 years, and I think fewer federal drug trafficking sentences were imposed in FY17 than in nearly any other year in the past two decades (though the uptick in average sentence is interesting and may prompt a future post). 

Of course, these data may start looking very different in FY 2018 and beyond as new US Attorneys appointed by Prez Trump take over and their new cases make it all the way to sentencing. Still, I think it notable and interesting that the first run of federal sentencing data of the Trump Era shows a continued decline in overall sentences imposed and in drug trafficking sentences imposed.

January 18, 2018 | Permalink | Comments (0)

Rodriguez-Lopez on Corporations and Child Trafficking

Silvia Rodríguez-López (University of A Coruña, Faculty of Law) has posted Perpetrators or Preventers? The Double Role of Corporations in Child Trafficking in a Global Context (Oñati Socio-Legal Series, Vol. 8, No. 1, 2018) on SSRN. Here is the abstract:
 
In recent years, the engagement of corporations in child trafficking has become a matter of growing importance. Many corporations have adopted global subcontracting systems and complex structures that boost their productivity and profits, but might also create more opportunities for trafficking and exploitation of both adults and children. Taking this context into account, the ways in which corporations can commit child trafficking are explored and exemplified to highlight their diversity. This paper also offers a brief overview of the response given by international and European anti-trafficking instruments concerning corporate criminal liability for child trafficking. Moreover, the mechanisms adopted by some companies to prevent trafficking and promote transparency within their supply chains are also addressed. Overall, this paper serves to illustrate the pivotal role of corporations from two perspectives: as potential perpetrators of this serious crime, and as necessary actors to prevent it.

January 18, 2018 | Permalink | Comments (0)

Delgado & Stefancic on Cops and Non-English Speakers

Richard Delgado and Jean Stefancic (University of Alabama - School of Law and University of Alabama - School of Law) have posted ‘Alto, Cabron. A Ver Las Manos’: A Police Officer's Expectations of Instant Obedience When a Civilian Does Not Speak English - A Comment on United States v. Parker (68 Ala. L. Rev. Online 101 (2016)) on SSRN. Here is the abstract:
 
Analyzes a notorious federal court ruling absolving an Alabama police officer who threw an unarmed, slightly built Indian grandfather to the ground, injuring him badly, when the grandfather, who spoke little English, was slow to respond to commands.

January 18, 2018 | Permalink | Comments (0)

Pfefferkorn on The Fourth Amendment and Side-Channel Cryptanalysis

Riana Pfefferkorn (Stanford University - Stanford Law School Center for Internet and Society) has posted Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis? (Connecticut Law Review, Vol. 49, No. 5, 2017) on SSRN. Here is the abstract:
 
Encryption shields private information from malicious eavesdroppers. After years of slow adoption, encryption is finally becoming widespread in consumer-oriented electronic devices and communications services. Consumer-oriented encryption software is now more user-friendly, and much of it turns on encryption by default. These advances enhance privacy and security for millions of people.

However, encryption also poses an impediment to law enforcement’s ability to gather electronic evidence. Law enforcement calls this the “going dark” problem. U.S. law enforcement agencies have responded through both legal and technological means to encryption’s perceived threat to their capabilities. The scope of encryption’s impact on those capabilities is not yet clear, and police still have a wealth of data and technical tools at their disposal. Nevertheless, sophisticated criminals can use encryption to stymie investigators, forcing them to resort to resource-intensive, tailored measures to investigate those individuals.

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January 18, 2018 | Permalink | Comments (0)

Wednesday, January 17, 2018

Schwartz et al. on Justice Reinvestment

Melanie SchwartzDavid Bentley Brown and Chris Cunneen (University of New South Wales (UNSW), University of New South Wales (UNSW) - Faculty of Law and University of New South Wales (UNSW) - Faculty of Law) have posted Justice Reinvestment ((2017) Brief 21, Indigenous Justice Clearinghouse, Sydney) on SSRN. Here is the abstract:
 
Justice Reinvestment (JR) is a strategy for reducing the number of people in the prison system by investing funds drawn from the corrections budget into communities that produce large numbers of prisoners. This research brief provides a brief introduction to JR with a particular focus on developments in Indigenous communities in Australia.

January 17, 2018 | Permalink | Comments (0)

Langford et al. on Scandinavian Penal Practices

Malcolm LangfordAled Dilwyn FisherJohan Karlsson Schaffer and Frida Paréus (University of Oslo, Faculty of Law, Department of Public and International Law, University of Oslo - Department of Public and International Law, University of Oslo - Norwegian Centre for Human Rights and University of Oslo - Norwegian Centre for Human Rights) have posted The View from Elsewhere: Scandinavian Penal Practices and International Critique on SSRN. Here is the abstract:
 
While the Scandinavian model of detention has been favorably received in comparative criminology, its reception in the international human rights community has been ambiguous. Initial reviews by international bodies of Scandinavian practices were positive: “models to which most other countries should aspire’. However, an increasing chorus of critique of particular detention practices from UN and Council of Europe human rights has clouded the picture. These negative appraisals deserve consideration. This chapter describes the evaluations of Scandinavian detention and punishment practices by UN bodies and provides a comparative analysis by contrasting them with reviews of four other Western European states. The chapter also argues that causal explanations based on the welfare state are important but need to be balanced by theories which foreground politics and the interplay between agency and structure.

January 17, 2018 | Permalink | Comments (0)

Dubber on The Dual Penal State

Dubber markusMarkus D. Dubber (University of Toronto - Faculty of Law) has posted four manuscripts on SSRN from his forthcoming book, The Dual Penal State. Two are excerpted here. The first is The Dual Penal State: Criminal Law Science and Its Diversions (Pt. 1) . Here is the abstract:
 
This book is about the collective failure to address the fundamental challenge of legitimating the threat and use of penal violence in modern liberal states. The first part of the book investigates various ways in which criminal law doctrine and scholarship have managed not to meet this continuing struggle to legitimate state action that is so patently illegitimate on its face: the violent violation of the very autonomy of the very persons upon whose autonomy the legitimacy of the state is supposed to rest in a law state, or state under the rule of law. Part 1 focuses primarily on German criminal law, and German criminal law science, with regular comparative glances from outside the German penal system.

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January 17, 2018 | Permalink | Comments (0)

"State admits recording jail conversations between defense lawyers and clients"

From the Anchorage Daily News, via the NACDL news scan:

For four years, a tucked-away monitoring system in a certain visitation room at the Anchorage jail recorded conversations between attorneys and their clients — defendants in criminal court – without anyone knowing.

. . .

State corrections officials say the recordings generally were not listened to or provided to law enforcement, though in one case, that did happen. And defense lawyers suspect the problem may be prevalent.

January 17, 2018 | Permalink | Comments (0)

Larkin on Chevron and Federal Criminal Law

Paul J. Larkin Jr. (The Heritage Foundation) has posted Chevron and Federal Criminal Law
32 J. L. & Pol. 211 (2017) on SSRN. Here is the abstract:
 
The decision by the Supreme Court of the United States in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), launched a new approach to statutory interpretation in the post-New Deal administrative state based on the dubious presumption that, where it leaves ambiguity in a statute, Congress intended to delegate law-interpreting power to the federal agency charged with administering that act. That rule has come under attack on a variety of fronts, not the least of which is that it jettisons one of the oldest propositions in American legal history — that it is the duty of the courts to construe a law. Whatever the outcome of the challenges to the Chevron deference rule, it makes no sense to apply that rule to the Justice Department’s interpretation of a criminal law or to an agency’s non-scientific, non-technical, policy-laden judgment regarding what conduct should be made a crime.

January 17, 2018 | Permalink | Comments (0)

Tuesday, January 16, 2018

"Yes, the Positive Law Model of the Fourth Amendment is Originalist"

Will Baude has this post at The Volokh Conspiracy. In part:

I do think that our view is an originalist one, derived from what we know of the original law of the Fourth Amendment. In our article, we discuss both the original history of the Fourth Amendment and the original remedial structure, and I will let interested readers judge those arguments for themselves. But originalists should have no qualms about subscribing to it.

It is true that our article also contains other arguments in favor of our view, but at least for my part there are two good reasons for that. One is that you need not be an originalist to accept our view for the other reasons we give. The other is that even an originalist might think the historical evidence is equally consistent with more than one view, and might look to other arguments to decide which of the historically-permitted possibilities to adopt. In any event, consider this a correction of the record. We make an originalist argument, even if we also make some non-originalist arguments too.

January 16, 2018 | Permalink | Comments (0)