CrimProf Blog

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

Thursday, February 22, 2018

"Justice Ginsburg Criticizes Lack of Due Process on Campus"

Jonathan Adler has this post at The Volokh Conspiracy. From his excerpt of her interview:

Rosen: What about due process for the accused?

Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenants of our system, as you know, everyone deserves a fair hearing.

 

February 22, 2018 | Permalink | Comments (0)

"ACLU Sues Milwaukee Over Alleged Racial Profiling"

From NPR, via the NACDL news scan. In part:

The ACLU alleges that between 2010 and 2017, Milwaukee police made more than 350,000 stops without reasonable suspicion of a crime being committed. Three experts, including a former Texas sheriff, reviewed hundreds of thousands of records compiled for the report. The Milwaukee Police Department denies that it has a stop-and-frisk policy. But a year ago, the ACLU filed nine lawsuits against the city over what it says is just that. ACLU attorney Karyn Rotker.

February 22, 2018 | Permalink | Comments (0)

Cohen & Park on Technology and Compelled Decryption

Aloni Cohen and Sunoo Park (Massachusetts Institute of Technology (MIT) and Massachusetts Institute of Technology (MIT)) have posted Compelled Decryption and the Fifth Amendment: Exploring the Technical Boundaries on SSRN. Here is the abstract:
 
Law enforcement access to encrypted data has lately been a topic of increasing interest. This article examines how the legality of governmentally compelled decryption can be surprisingly sensitive to technological nuances. As one example, precedent in the U.S. has well-nigh established that under the Fifth Amendment, fingerprint-based device unlocking may be compelled while password-based device unlocking is significantly more difficult to compel. How does such technological sensitivity of judicial outcomes arise? What are the implications of the notoriously fast pace of technological development, and unpredictability of future technologies, as the amount of encrypted digital data held by and about individuals continues to grow?

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February 22, 2018 | Permalink | Comments (0)

Kaye on Firearm-Mark Evidence: Looking Back and Looking Ahead

David H. Kaye (Pennsylvania State University, Penn State Law) has posted Firearm-Mark Evidence: Looking Back and Looking Ahead (Case Western Reserve Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This article, written as a contribution to a festschrift for Paul Giannelli, surveys the development of the law on one type of feature-matching evidence that repeatedly attracted Professor Giannelli’s attention — “firearm-mark evidence.” By inspecting toolmarks on bullets or spent cartridge cases, firearms examiners can supply valuable information on whether a particular gun fired the ammunition in question. But the limits on this information have not always been respected in court, and a growing number of opinions have tried to address this fact. 

The article explains how the courts have moved from a position of skepticism of the ability of examiners to link bullets and other ammunition components to a particular gun to full-blown acceptance of identification “to the exclusion of all other firearms.”

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February 22, 2018 | Permalink | Comments (0)

Wednesday, February 21, 2018

Gilbert on Transparency and Corruption

Gilbert michaelMichael D. Gilbert (University of Virginia School of Law) has posted Transparency and Corruption: A General Analysis (University of Chicago Legal Forum, Forthcoming) on SSRN. Here is the abstract:
 
This essay makes two claims: transparency in government causes the very corruption it aims to prevent, and the problem is universal. Some scholars, mostly philosophers and social scientists, appreciate the first point, but it has not caught on in law. Legal debates — on campaign finance, for example — proceed almost universally on the assumption that transparency deters corruption. Few people, if any, seem to appreciate the second point. Scholars see the corruptive potential of transparency in specific settings, like open ballots. In fact, the problem is general, extending from campaign finance to FOIA and beyond. Efforts to dampen corruption with transparency usually threaten to promote it. The source of the problem is easy to explain. Corruption requires bargaining. By sharing information, transparency lowers the transaction costs of corrupt bargaining.

February 21, 2018 | Permalink | Comments (0)

Geller et al. on Policing and Rights Tradeoffs

Amanda GellerJeffrey Fagan and Tom Tyler (NYU Department of Sociology, Columbia Law School and Yale University - Law School) have posted Do the Ends Justify the Means? Policing and Rights Tradeoffs in New York City on SSRN. Here is the abstract:
 
Policing has become an integral component of urban life. New models of proactive policing create a double-edged sword for communities with strong police presence. While the new policing creates conditions that may deter and prevent crime, close surveillance and frequent intrusive police-citizen contacts have strained police-community relations. The burdens of the new policing often fall on communities with high proportions of African American and Latino residents, yet the returns to crime control are small and the risks of intrusive, impersonal, aggressive non-productive interactions are high. As part of the proffered tradeoff, citizens are often asked to view and accept these invasive tactics as a necessary means to the ends of reduced crime and improved public safety. This paper examines the degree to which urban residents’ show a willingness to engage in a “rights tradeoffs” and sacrifice their civil liberties to maintain public safety. Using a telephone phone survey of 960 New York City residents, we find little openness to rights tradeoffs tied to perceived neighborhood danger. However, respondents who see the police as legitimate and effective in producing safety are more likely to support such tradeoffs. The results suggest that trust in the police can give them wide berth to infringe on civil liberties in the interest of crime control, regardless of local crime conditions, the abrasiveness of police contact, and the extent and type of the intrusions on privacy and liberty.

February 21, 2018 | Permalink | Comments (0)

Joy & McMunigal on Postconviction Prosecutorial Duties

Peter A. Joy and Kevin C. McMunigal (Washington University in St. Louis - School of Law and Case Western Reserve University School of Law) has posted Postconviction Prosecutorial Duties (32 Criminal Justice 53 (Winter 2018)) on SSRN. Here is the abstract:
 
A prosecutor’s ethical duty to disclose exculpatory information prior to conviction has long been recognized. The wrongful convictions revealed through the work of the original Innocence Project and its offspring around the country have focused attention in recent years on the ethical obligations of prosecutors who learn of exculpatory information after a conviction. Must a prosecutor disclose such information? When a prosecutor learns of exculpatory information after a conviction, must the prosecutor investigate further to determine whether the defendant was wrongfully convicted? Must the prosecutor seek to remedy a conviction if the exculpatory evidence is sufficiently strong? In this legal ethics column, we review how the American Bar Association (ABA) and various state ethics authorities have answered these three questions.

February 21, 2018 | Permalink | Comments (0)

Opinion holding guilty plea did not bar challenge to constitutionality of statute of conviction

Justice Breyer delivered the opinion of the Court in Class v. United States. Justice Alito filed a dissenting opinion, joined by Justices Kennedy and Thomas.

February 21, 2018 | Permalink | Comments (0)

Choi et al. on Too Big to Jail

Hansoo ChoiChangmin Lee and Hyoung Goo Kang (KIPF (Korea Institute of Public Finance), Hanyang University - School of Business and Hanyang University) have posted What Constitutes Too-Big-To-Jail? on SSRN. Here is the abstract:
 
This paper investigates judicial size premium, the judicial bias in favor of large economic organizations. The Korean judiciary is biased with regard to chaebols (large family business groups). Convicted chaebol-related defendants receive 9.9%p more jail-sentence suspension and 19 month shorter jail term than non-chaebol counterparts do. The leniency remains robust after controlling for the quality of defense attorneys and other sentencing factors. We hypothesize that this bias occurs because (1) the judiciary worries that strict sentences against chaebols may cause system risk; and (2) the court follows the civil law tradition of being generous to in-group transactions. The results support both hypotheses. The larger the chaebol, the larger the judicial bias. Controlling for the in-group transactions explains much of the bias. With great victories in the court, chaebol-related offenders defend their wrongdoings, arguing that illegal in-group transactions are for the interest of entire business group, not for their private gain.

February 21, 2018 | Permalink | Comments (0)

Tuesday, February 20, 2018

"Russia indictments lay the foundation for broader conspiracy charges, says former FBI special counsel"

The piece is at PBS.org. In part:

This indictment is a foundational indictment. It establishes the bedrock foundation of this conspiracy charge on which the special counsel can now build a broader case. And I think there’s every reason to expect, given the extraordinary detail in this indictment, as well as the fact that there are a number of cooperating witnesses who have pled guilty now and are assisting the special counsel, including, for example, Mike Flynn, to expect that there will be additional charges on top of this foundational charging document.

February 20, 2018 | Permalink | Comments (0)

Kotiswaran on Sex Workers and India's Rape Law Reforms

Prabha Kotiswaran (King's College London – The Dickson Poon School of Law) has posted Governance Feminism's Others: Sex Workers and India's Rape Law Reforms (Introduction) (Governance Feminism: Notes from the Field, eds. Janet Halley, Prabha Kotiswaran, Rachel Rebouche, Hila Shamir, University of Minnesota Press, Forthcoming) on SSRN. Here is the abstract:
 
In Governance Feminism: An Introduction (University of Minnesota Press 2018), I used the concept of governance feminism (GF) to analyse one of the most significant new Indian legislations to address violence against women (VAW), the Criminal Law (Amendment) Act, 2013 (CLA) passed by the Indian Parliament in the wake of the rape and murder of Jyoti Singh Pande in 2012. I argued that Indian feminism has entered a governance mode and is today a crucial part of the law-making process even if significant feminist demands of the state have not materialised. However, GF is not limited to tracking feminist influence in the corridors of state power; state power extends well beyond the juridical into the discursive or governmental realm. How then do feminists relate to or reconfigure feminism given the shift in the state’s political functions from government to governance whereby the state uses both its juridical and discursive powers to govern its political subjects? I consider this question by examining the Indian legal regimes on sex work and trafficking, because these regimes took birth in the crucible of feminist governmentality and have been cultivated by GFeminists ever since. Moreover, since the 1990s, sex workers have been subjects of the state’s governmental power exercised through myriad public health initiatives. By comparing the politics of criminal law reform which informed the strategies of feminists (on rape, sex work and trafficking) versus that of sex workers’ groups (on sex work), I argue that it is only by studying GF’s ‘others’, namely, sex workers that we can fully grasp the political possibilities and futures of GF.

February 20, 2018 | Permalink | Comments (0)

FISA court considering request to release hearings regarding Carter Page

From Jurist:

The Foreign Intelligence Surveillance Court (FISC) released two [Goodlatte, PDF] letters [Nunes, PDF] on Thursday stating that it would consider requests from two Congressional Representatives to release the hearing transcripts which caused former Trump advisor Carter Page to be put under surveillance.

Representative Bob Goodlatte (R-VA) wrote to the FISC in January requesting the transcripts, and Representative Devin Nunes (R-CA) [official websites] sent a second letter at the beginning of February.

Judge Rosemary Collyer wrote in her response that "the Court has never previously received a request from Congress for the contents of any specific FISA application or order, nor has the Court provided any to Congress." The judge says that this request will "present novel and significant questions." She added that she has no objection to the Executive Branch releasing the transcripts.

February 20, 2018 | Permalink | Comments (0)

Domingo on Penal Law in the Roman Catholic Church

Rafael Domingo (Emory University School of Law) has posted Penal Law in the Roman Catholic Church (Ecclesiastical Law Journal 20 (2018), Forthcoming) on SSRN. Here is the abstract:
 
This article surveys the general framework of the law of sanctions or penal law in the Roman Catholic Church, the largest Christian church. The recent and devastating crisis of clergy sexual abuses of minors has challenged the whole ecclesiastical penal system, which in our day is undergoing revision. The first part of the chapter makes some relevant terminological clarifications to facilitate proper understanding of the scope of penal canon law in the Catholic Church. The second part explains the most important features of the current universal penal canon law system in the Code of Canon Law for the Latin Church (1983) and in the Code of Canons of the Eastern Churches (1990), as well as in subsequent legislation. The last part makes an evaluation of the system of penal law and offers some proposals for its improvement.

February 20, 2018 | Permalink | Comments (0)

Joy on Judges and Ineffective Assistance

Joy peterPeter A. Joy (Washington University in St. Louis - School of Law) has posted A Judge's Duty to Do Justice: Assuring the Accused's Right to the Effective Assistance of Counsel (Hofstra Law Review, Vol. 46, No. 139, 2017) on SSRN. Here is the abstract:
 
Every judge has a duty to do justice, which is found not only the oath the judge takes, but also in the Code of Judicial Conduct. The American Bar Association (ABA) Criminal Justice Standards Regarding the Special Functions of the Trial Judge provides more specific guidance including the responsibility to safeguard the rights of the accused and the public’s interest in the fair administration of criminal justice.

I contend that a trial judge needs to be committed to a duty to do justice by ensuring the accused’s right to effective assistance of counsel, especially in light of the excessive caseloads and inadequate resources for state public defenders and other publicly provided defense lawyers. Instead of continuing to pigeon-hole ineffective assistance of counsel claims as a post-trial inquiry, there are some circumstances when a trial judge’s duty to do justice requires an inquiry into whether defense counsel is providing effective assistance of counsel at the trial level.

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February 20, 2018 | Permalink | Comments (1)

Ramsey on Firearms Prohibitions for Domestic Violence Offenders

Carolyn B. Ramsey (University of Colorado Law School) has posted Firearms in the Family (78 Ohio State L.J. 1257 (2017)) on SSRN. Here is the abstract:
 
This Article considers firearms prohibitions for domestic violence offenders, in light of recent Supreme Court decisions and the larger, national debate about gun control. Unlike other scholarship in the area, it confronts the costs of ratcheting up the scope and enforcement of such firearms bans and argues that the politicization of safety has come at the expense of a sound approach to gun control in the context of intimate-partner abuse. In doing so, it expands scholarly arguments against mandatory, one-size-fits-all criminal justice responses to domestic violence in a direction that other critics have been reluctant to go, perhaps because of a reflexive, cultural distaste for firearms. 

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February 20, 2018 | Permalink | Comments (0)

Koffler on Juror Impeachment

Jason Koffler has posted What Comes Next: Expansion of the Pena-Rodriguez Racial Bias Exception to the No-Impeachment Rule on SSRN. Here is the abstract:

In the recent case of Pena-Rodriguez v. Colorado, the Supreme Court announced a constitutional exception to the juror no-impeachment rule--a traditional evidentiary rule barring jurors from testifying about what occurred during jury deliberations in an effort to impeach the verdict. Under this exception, where a juror makes a clear statement evincing that he or she convicted a criminal defendant on the basis of racial stereotypes or animus, the trial court may consider evidence of such juror statements. While the Court framed its decision as a necessary means of protecting the Sixth Amendment right to a fair and impartial trial, the Court discussed at length the need to rid the jury system of racial bias and prejudice, seemingly placing the case within a long line of cases intended to eliminate the impact of racism in the criminal justice system. As such, the Court limited its holding, and the newly created exception, strictly to instances of racial bias. 

While the Supreme Court limited the Pena-Rodriguez exception to instances of only racial bias, judges and commentators alike have questioned whether such a limitation is possible in practice.

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February 20, 2018 | Permalink | Comments (0)

Smith on Illegal Immigration and Violent Crime Rates

Jinkinson Smith (Oglethorpe University) has posted Illegal Immigration and Violent Crime Rates in the United States, 2009-2014 on SSRN. Here is the abstract:
 
The question of whether illegal immigration is positively related to crime rates in the United States has been heavily publicized since current U.S. president Donald Trump announced his candidacy for president in 2015. This study explores the relationship between changes in illegal immigration and changes in violent crime rates at the state level during the period from 2009 to 2014. Data came from the Pew Research Center and the FBI's Uniform Crime Reports. It is found that changes in the percent of a population made up of undocumented immigrants is not significantly correlated with changes in violent crime rates among U.S. states for which data on both parameters exist (n=13). The finding of a lack of statistically significant association between undocumented immigration and crime is generally consistent with previous research on this topic.

February 20, 2018 | Permalink | Comments (0)

Monday, February 19, 2018

McMurtrie on Prosecutors and Exculpatory DNA Results

 
This article addresses a prosecutor’s development of new and bizarre theories, particularly in cases involving confession evidence, to explain away exculpatory DNA results. In Juan Rivera’s case, the prosecutor’s theory for why sperm found inside the 11-year-old victim on the day she was murdered did not belong to Rivera was that she had sex with someone before Rivera came along and raped (but did not ejaculate) and murdered her. The unnamed-lover theory is used so often by prosecutors that it has a moniker: “the unindicted co-ejaculator.” In the case of the Dixmoor Five, teenagers convicted of the rape and murder of a 14-year-old girl were exonerated after DNA from semen found on the victim’s body was linked to a man with a lengthy record of sexual assault and armed robbery. However, the state’s attorney accepted the possibility that the convicted rapist wandered past an open field and had sex with the deceased 14-year-old victim as a means of validating the teenagers’ confessions.

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February 19, 2018 | Permalink | Comments (0)

Pauli on Gordon on Atrocity Speech

Pauli carolCarol Pauli (Texas A&M University School of Law) has posted Atrocity Speech Law: Addressing Hate that Does Grave Harm on SSRN. Here is the abstract:
 
Atrocity Speech Law, by Gregory Gordon, offers a bold, holistic framework to repair gaps and discrepancies in the international laws regarding speech that can trigger grave crimes. The book shows how current treaties and conventions were constructed piecemeal in the urgency to prosecute those responsible for such horrors as the Holocaust and the Rwandan genocide. Now, as hostile speech regains a political foothold and as new forms of communication disrupt old norms, Gordon proposes a "Unified Liability Theory," a more thorough, consistent, and rigorous law to clarify the line between legitimate protest and crime.

February 19, 2018 | Permalink | Comments (0)

Carpenter & Marshall on Walking While Trans

Leonore Carpenter and R Barrett Marshall (Temple University - James E. Beasley School of Law and Philadelphia VIP) have posted Walking While Trans: Profiling of Transgender Women by Law Enforcement, and the Problem of Proof (William & Mary Journal of Women and the Law, Vol. 24, No. 1, 2017) on SSRN. Here is the abstract:
 
This Article discusses law enforcement profiling of transgender women as sex workers, a phenomenon so pervasive that it has earned its own nickname, “walking while trans.” The term “walking while trans” is both a nod to the racial profiling term “driving while Black” and a descriptor of the circumstances under which many transgender women find themselves subjected to intrusive and often harassing police stops and interrogations. In other words, in the experience of the transgender community, one need only be a transgender woman and exist in a public space to create in the minds of law enforcement officers the assumption that one is currently engaged in sex work, and thus a person who ought to be subjected to unwanted police contact.

The Article describes the significant anecdotal evidence available to demonstrate the existence of widespread police profiling of transgender women. The Article explores the wide variety of harms caused to this vulnerable community by the profiling activity captured by the phrase “walking while trans.”

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February 19, 2018 | Permalink | Comments (0)