CrimProf Blog

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

Sunday, February 25, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Brain Development, Social Context and Justice Policy

Columbia University - Law School, Temple University and Temple University - Department of Psychology
201
2.

The 'New' District Court Activism in Criminal Justice Reform

Yeshiva University - Benjamin N. Cardozo School of Law
106
3.

Mental Health Courts and Sentencing Disparities

University of Florida - Levin College of Law and University of Florida - Levin College of Law
96
4.

Privacy, Voyeurism, and Statutory Interpretation

College of Law, University of Saskatchewan
85
5.

Backdoor Man: A Radiograph of Computer Source Code Theft Cases

Babes-Bolyai University - Faculty of Law and Independent
82
6.

Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures

Mitchell Hamline School of Law
81
7.

Women, Crime and Character in Twentieth Century Law and Literature: In Search of the Modern Moll Flanders

London School of Economics - Law Department
72
8.

Why Rape Should Be a Federal Crime

University of San Diego School of Law
67
9.

Moral and Criminal Responsibility: Answering and Refusing to Answer

University of Stirling - Department of Philosophy
65
10.

#I🔫U: Considering the Context of Online Threats

University of Missouri School of Law and Brechner Center for Freedom of Information, University of Florida
41

February 25, 2018 | Permalink | Comments (0)

Saturday, February 24, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

State Criminal Appeals Revealed

Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students
183
2.

Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians

University of Arizona - Indigenous Peoples Law And Policy Program
168
3.

Who Killed Habeas Corpus?

U.S. District Court - Eastern District of WI
147
4.

Harmless Errors and Substantial Rights

Washington University in St. Louis - School of Law
125
5.

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

Stanford University - Stanford Law School Center for Internet and Society
124
6.

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

Harvard Law School and Harvard University, Law School, Students
106
7.

The 'New' District Court Activism in Criminal Justice Reform

Yeshiva University - Benjamin N. Cardozo School of Law
106
8.

Mental Health Courts and Sentencing Disparities

University of Florida - Levin College of Law and University of Florida - Levin College of Law
96
9.

Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa

Independent
94
10.

The Legal Sufficiency Analysis of Genuine Battles of the Experts in Criminal Trials: The Unrealized Potential of the Supreme Court’s Landmark Decision in Jackson v. Virginia

University of California, Davis - School of Law
75

February 24, 2018 | Permalink | Comments (0)

Next week's criminal law/procedure arguments

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

Tuesday

  • U.S. 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.
  • Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

February 24, 2018 | Permalink | Comments (0)

Friday, February 23, 2018

Beale & Berris on Hacking the Internet of Things

Sara Sun Beale and Peter Berris (Duke University School of Law and Duke University School of Law) have posted Hacking the Internet of Things: Vulnerabilities, Dangers, and Legal Responses (Duke Law & Technology Review, Vol. 16, No. 1) on SSRN. Here is the abstract:
 
The Internet of Things (IoT) is here and growing rapidly as consumers eagerly adopt internet-enabled devices for their utility, features, and convenience. But this dramatic expansion also exacerbates two underlying dangers in the IoT. First, hackers in the IoT may attempt to gain control of internet-enabled devices, causing negative consequences in the physical world. Given that objects with internet connectivity range from household appliances and automobiles to major infrastructure components, this danger is potentially severe. Indeed, in the last few years, hackers have gained control of cars, trains, and dams, and some experts think that even commercial airplanes could be at risk. Second, IoT devices pose an enormous risk to the stability of the internet itself, as they are vulnerable to being hacked and recruited into botnets used for attacks on the digital world. Recent attacks on major websites including Netflix and Twitter exemplify this danger. This article surveys these dangers, summarizes some of their main causes, and then analyzes the extent to which current laws like the Computer Fraud and Abuse Act punish hacking in the IoT.

Continue reading

February 23, 2018 | Permalink | Comments (0)

Epps on Harmless Error

Epps danielDaniel Epps (Washington University in St. Louis - School of Law) has posted Harmless Errors and Substantial Rights (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:
 
The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error analysis when it applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine's longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant's conviction was not actually obtained in violation of the defendant's rights. That approach can help solve the doctrine's longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless-error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless-error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values.

February 23, 2018 | Permalink | Comments (0)

Kahn & Song on Violent Physical Force under the ACCA

Conrad Kahn and Danli Song (Federal Defender's Office, MDFL and Federal Defender's Office, MDFL) have posted A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force' (University of Miami Law Review, 2018) on SSRN. Here is the abstract:
 
In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life. 

Historically, a prior conviction could qualify as a “violent felony” if satisfied at least one of the three “violent felony” clauses — the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

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February 23, 2018 | Permalink | Comments (0)

Alkiviadou on Regulating Internet Hate

Natalie Alkiviadou (University of Central Lancashire - UCLan Cyprus) has posted Regulating Internet Hate: A Flying Pig? (7 JIPITEC – Journal of Intellectual Property, Information Technology and E-Commerce Law 3 (2016)) on SSRN. Here is the abstract:
 
This paper will assess the regulation of the internet in the ambit of hate speech expressed digitally through the internet. To do so, it will provide a definitional framework of hate speech, an overview of the internet’s role in the ambit of hate speech and consider the challenges in legally regulating online hate speech through a discussion of relevant case-law as well as the Additional Protocol to the Cybercrime Convention. The jurisprudential analysis will allow for a comparison of the stances adopted by the ECtHR and national courts of European countries on the one hand, and courts of the United States on the other, in the sphere under consideration. By looking at regional and national case-law and the initiative of the Council of Europe in the form of the Additional Protocol to the Cybercrime Convention, the paper seeks to provide an overview of the current state of affairs in the realm of regulating hate but also to demonstrate that such regulation, as occurring to date, is dysfunctional, predominantly due to the vast divergence of US-European approaches to the issues of free expression both on and off line. It is argued that due to the very nature of the internet as a borderless and global entity, this normative divergence cannot be overcome so long as traditional approaches to the issue of regulation continue to be taken. The paper’s analysis will emanate from the premise that there exists a need to strike an equitable balance between the freedom of expression on the one hand and the freedom from discrimination on the other.

February 23, 2018 | Permalink | Comments (0)

"The Space Shuttle and Reasonable Doubt"

Eugene Volokh posts about a prosecutor's interesting argument at The Volokh Conspiracy. From the opinion rejecting the prosecutor's argument (but concluding the error was harmless):

During voir dire, the prosecutor showed the potential jurors an incomplete puzzle of a space shuttle (with only sixty-six percent of the pieces present), stated that the image was a space shuttle "beyond a reasonable doubt," and asked the potential jurors whether anyone disagreed, which none did; the prosecutor also showed the image during closing arguments. By using the iconic and easily recognizable space shuttle image, the prosecutor "invite[d] the jury to jump to a conclusion about [the] defendant's guilt," especially because the jury was shown an image and told that it was a space shuttle "beyond a reasonable doubt." See also People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App. 2009) (concluding that a prosecutor improperly quantified the burden of proof by displaying an eight-piece puzzle of the Statue of Liberty missing two pieces and saying "this picture is beyond a reasonable doubt"). The prosecutor's use of a two-thirds completed puzzle analogy also improperly quantified the burden of proof, even where the prosecutor did not undertake to quantify the number or percentage of missing pieces.

February 23, 2018 | Permalink | Comments (0)

"California’s bail system doesn’t make us safer, attorney general says"

From The Sacramento Bee, via the NACDL news scan:

California Attorney General Xavier Becerra announced Tuesday that he will not appeal a recent court decision on excessive bail, adding his voice to the growing statewide push to overhaul a money bail system that criminal justice advocates argue is discriminatory to poor Californians.

Late last month, the appeals court in San Francisco ordered a new bail hearing for Kenneth Humphrey, a retired shipyard worker who had been held in jail for more than eight months on $350,000 bail. Humphrey was accused of breaking into a neighbor’s apartment, threatening to put a pillow over his head and stealing $5 and a bottle of cologne.

In its ruling, the panel said that setting bail so high a defendant cannot pay it is only justified when the suspect is too dangerous to release before trial, and it instructed the trial judge to reconsider what amount Humphrey could afford and whether he posed a risk to public safety.

February 23, 2018 | Permalink | Comments (0)

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?

Continue reading

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.”

Continue reading

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)