CrimProf Blog

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

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Friday, May 15, 2015

Mikos on Indemnification and Federalism

Mikos robRobert A. Mikos (Vanderbilt University - Law School) has posted Indemnification as an Alternative to Nullification (76 Montana Law Review 57 (Winter 2015)) on SSRN. Here is the abstract:

The federalization of criminal law arguably threatens the states’ traditional police powers. Congress has criminalized myriad activities the states condone (or at least tolerate); it has denied federal criminal defendants rights they would enjoy in state proceedings; and it has imposed harsher punishments for crimes proscribed by both levels of government. In many instances, Congress’s decision to supplant the policy choices made by the states appears unjustified by any legitimate federal interest. The conventional wisdom suggests there is very little the states themselves can do to stop the federalization of criminal law and the resultant diminution of state prerogatives. The states, of course, have no authority to nullify federal law, nor can they interfere with the enforcement of federal law. But the conventional wisdom has overlooked a tactic that the states could adopt — and at least once did adopt — to take some of the bite out of federal criminal laws they deem objectionable. Namely, the states could indemnify the legal expenses of residents caught in the crosshairs of federal law enforcement agents. Indemnification could lessen the federal government’s appetite for and success at enforcing certain federal criminal laws. This essay, prepared for a Symposium on the Future of Federalism, briefly discusses how and why state indemnification could help protect state prerogatives across a variety of issues ranging from marijuana to abortion to gambling to firearms.

May 15, 2015 | Permalink | Comments (0)

Hernandez on Immigration Law by Proxy

Hernandez cesarCésar Cuauhtémoc García Hernández (Capital University Law School) has posted Immigration Law by Proxy: The Case of Colorado’s Human Smuggling Crime (Denver University Law Review, Vol. 92, p. 41, 2015) on SSRN. Here is the abstract:

Despite the federal government’s well known expansive reach in creating and enforcing immigration law, the states retain substantial authority to play an important role in migrants’ lives. Through their traditional powers to adopt criminal statutes and police their communities, states can indirectly — but intentionally — inject themselves into the incidents of ordinary life as a migrant. Colorado’s human smuggling statute, currently being challenged before the state supreme court, illustrates this type of state regulation of migration. This essay addresses the statute’s reach, its shaky constitutional footing, and places it in a broader context in which states criminalize immigration-related activity.

May 15, 2015 | Permalink | Comments (0)

Thursday, May 14, 2015

Weaver & Friedland on Texting, Driving, and Punishment

Russell L. Weaver and Steven Friedland (University of Louisville - Louis D. Brandeis School of Law and Elon University School of Law) have posted Driving While 'Intexticated': Texting, Driving, and Punishment (47 Tex. Tech L. Rev. 101 2014-2015) on SSRN. Here is the abstract:

In this short article, we argue that texting while driving presents a special danger to society for which preventive solutions are needed. Although a variety of societal responses might be possible, and some other (softer) approaches should generally be preferred (e.g., education), since this is a symposium on homicide, it is appropriate to note that there will be situations when a prosecutor might justifiably (and probably should) bring murder or manslaughter charges against a driver whose texting causes a fatal accident. This article outlines the problems associated with texting, explains the legal basis on which homicide charges might be brought, and suggests some less drastic alternatives for dealing with the problem.

May 14, 2015 | Permalink | Comments (0)

Klingele on Deterrence-Based Correctional Programs

Klingele ceceliaCecelia M. Klingele (University of Wisconsin Law School) has posted What are We Hoping for? Defining Purpose in Deterrence-Based Correctional Programs (99 Minn. L. Rev. 101) on SSRN. Here is the abstract:

One of the most popular program models in criminal justice today is that popularized by Hawaii Opportunity Probation with Enforcement (HOPE). HOPE and other programs like it grow out of research suggesting that the most effective way to prevent violations of conditions of supervision is to more accurately detect them, respond to them immediately, and impose consistent and predictable sanctions for every detected violation. Proponents of these programs assert that they not only change behavior for the better, but that they increase the legitimacy of probation by addressing violations as they occur. Even if program compliance rates are as high as supporters claim, serious questions remain about whether these programs, while advancing compliance, may undermine the larger goal of promoting desistance from crime. Anecdotal evidence suggests that both the conditions and sanctions imposed on program participants are often significantly more severe than the model itself requires, and are sometimes at odds with encouraging behavior that is known to foster desistance. This Essay argues that system actors have an obligation to consider the purpose of correctional intervention when evaluating program "success."

May 14, 2015 | Permalink | Comments (0)

Kerr on Computer Trespass

Kerr orinOrin S. Kerr (The George Washington University Law School) has posted Norms of Computer Trespass (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal and state laws prohibit computer trespass, codified as a ban on unauthorized access to a computer. In the last decade, however, courts have divided sharply on what makes access unauthorized. Some courts have interpreted computer trespass laws broadly to prohibit trivial wrongs such as violating Terms of Service to a website. Other courts have limited the laws to harmful examples of hacking into a computer. Courts have struggled to interpret authorization because they lack an underlying theory of how to distinguish authorized from unauthorized access. 

This Essay offers such a theory. It contends that authorization is inherently contingent on social norms. Starting with trespass in physical space, it shows how concepts of authorization necessarily rest on shared understandings of what technologies and its users are allowed to do.

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May 14, 2015 | Permalink | Comments (0)

Gray on Collective Fourth Amendment Rights

Gray david cDavid C. Gray (University of Maryland Francis King Carey School of Law) has posted Dangerous Dicta (Washington and Lee Law Review, Vol. 72, 2015 (Forthcoming)) on SSRN. Here is the abstract:

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is also dangerous. That is because the security of the people guaranteed by the Fourth Amendment presently is imperiled by the rapidly expanding surveillance capacities of governments and their agents.

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May 14, 2015 | Permalink | Comments (0)

Levy on Situationism and Excuse

Levy kenKen Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Does Situationism Excuse? The Implications of Situationism for Moral Responsibility and Criminal Responsibility (68 Arkansas Law Review (2015, Forthcoming)) on SSRN. Here is the abstract:

In this Article, I will argue that a person may be deserving of criminal punishment even in certain situations where she is not necessarily morally responsible for her criminal act. What these situations share in common are two things: (a) the psychological factors that motivate the individual’s behavior are environmentally determined and (b) her crime is serious, making her less eligible for sympathy and therefore less likely to be acquitted.

To get to this conclusion, I will proceed in four steps. In Part II, I will offer the first two of these steps. First, I will argue that our foundational assumption that moral responsibility is necessary for just blame and punishment is not self-evident and is actually rather difficult to explain and justify. Second, I will offer an explanation and justification that appeals to our moral psychology. Specifically, I will argue that we subscribe to this assumption (that moral responsibility is necessary for just blame and punishment) ultimately because we sympathize with agents who lack responsibility for their actions.

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May 14, 2015 | Permalink | Comments (0)

Wednesday, May 13, 2015

Stoughton on Evidentiary Rules as Police Reform

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted Evidentiary Rulings as Police Reform (69 U. Miami L. Rev. 429 (2015)) on SSRN. Here is the abstract:

How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, I contend that evidentiary considerations have the potential to change both police training and agency culture.

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May 13, 2015 | Permalink | Comments (0)

Katner on Juvenile Competency

Katner davidDavid R. Katner (Tulane University - Law School) have posted Eliminating the Competency Presumption in Juvenile Delinquency Cases (24 Cornell Journal of Law and Public Policy 403 (2015)) on SSRN. Here is the abstract:

The legal presumption used in virtually all juvenile delinquency cases in the U.S. is that all juveniles are competent to stand trial. This article calls for the elimination of that legal presumption, which is historically based on the Dusky v. United States decision and in the adult criminal justice system. The recent decisions of the U.S. Supreme Court recognize the developmental and organic brain differences between adults and juveniles. Current research demonstrates a higher frequency rate of incompetence based on intellectual deficiencies among children when compared with adults found to be not legally competent to stand trial. 

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May 13, 2015 | Permalink | Comments (0)

Tuesday, May 12, 2015

Metzger on Data Collection and Public Defenders

Metzger pamelaPamela Metzger (Tulane University - Law School) has posted Me and Mr. Jones: A Systems-Based Analysis of a Catastrophic Defense Outcome (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:

Leo S. Jones spent four months in jail, accused of a probation that had long since expired. His incarceration was illegal. It was also preventable. 

In this essay, I describe the unique data collection project that identified Mr. Jones’ case. Then, I analyze the various individual, institutional, and systemic practices that contributed to Mr. Jones’ illegal incarceration. I show how an investigation of Mr. Jones’ case led to the discovery of widespread latent errors that may have adversely affected innumerable other detainees. I conclude by explaining what this case reveals about how data collection and analysis can improve public defender practice.

May 12, 2015 | Permalink | Comments (0)

Peters on Human Trafficking Victim Status

Peters amandaAmanda J. Peters (South Texas College of Law) has posted Reconsidering Federal and State Obstacles to Human Trafficking Victim Status and Entitlements (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal and state anti-trafficking laws describe the victim in the process of criminalizing the act of human trafficking. Nearly half of all states adopt the federal definition of victim, which requires proof of forced, defrauded or coerced labor, whereas the other half narrow this definition thereby limiting the number of victims qualifying for state victims services. Using this definition, victims must prove their status before they can access victim entitlements. Even when victims prove their status, they may be denied traditional crime victim benefits like restitution and Crime Victim Compensation funds. In this way, their victim status may be rendered meaningless.

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May 12, 2015 | Permalink | Comments (0)

Monday, May 11, 2015

Sandford on GPS Tracking of a Cell Phone

Bryan S Sandford has posted Comment: A Castle in the Sky: GPS Tracking of a Defendant's Cell Phone Post-Riley v. California (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:

For most Americans, smart cell phones are omnipresent and a fact of modern life. The technological capabilities of these devices have had a transformative effect on the way we do business, communicate and socialize with one another. One capability in particular, the ability to track and broadcast a user’s location in real time, presents a danger in the context of the Fourth Amendment: that privacy in one’s location will become a relic of the past. Though the judicial role as to this issue is still being fleshed out, courts should hesitate before discarding privacy in favor of law enforcement efficiency and carefully scrutinize searches that tip the scales too far in either direction.

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May 11, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

RankDownloadsPaper Title
1 1,540 Rethinking Presumed Knowledge of the Law in the Regulatory Age 
Michael Anthony Cottone 
Independent 
Date posted to database: 24 Mar 2015 
2 504 'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment 
Dan M. KahanDavid A. HoffmanDanieli EvansNeal DevinsEugene A. Lucci andKatherine Cheng 
Yale University - Law School, Temple University - James E. Beasley School of Law, Yale Law School, William & Mary Law School, Government of the State of Ohio - Court of Common Pleas and Cultural Cognition Lab, Yale Law School 
Date posted to database: 22 Apr 2015 [3rd last week]
3 427 Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know 
Mike Koehler 
Southern Illinois University School of Law 
Date posted to database: 4 May 2015 [new to top ten]
4 329 Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law 
Marc Edelman 
City University of New York - Baruch College, Zicklin School of Business 
Date posted to database: 1 Apr 2015 
5 238 Conflict Assessment: Northern Kenya and Somaliland 
Ken Menkhaus 
Davidson College 
Date posted to database: 4 Apr 2015 
6 220 Using the 'Smart Return' to Reduce Tax Evasion 
Joseph BankmanClifford Nass and Joel B. Slemrod 
Stanford Law School, Stanford University and University of Michigan, Stephen M. Ross School of Business 
Date posted to database: 16 Mar 2015 [7th last week]
7 164 Database Infamia: Exit from the Sex Offender Registries 
Wayne A. Logan 
Florida State University - College of Law 
Date posted to database: 15 Apr 2015 [10th last week]
8 151 Symposium on Minds, Brains, and Law: A Reply 
Michael S. Pardo and Dennis Patterson 
University of Alabama School of Law and European University Institute 
Date posted to database: 11 Mar 2015 [new to top ten]
9 124 Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey 
Oguzhan C. Dincer andMichael Johnston 
Illinois State University - Department of Economics and Colgate University 
Date posted to database: 18 Mar 2015 [new to top ten]
10 109 Arendt on the Crime of Crimes 
David J. Luban 
Georgetown University Law Center 
Date posted to database: 4 Apr 2015 [new to top ten]

May 11, 2015 | Permalink | Comments (0)

Saturday, May 9, 2015

Binford on Compensation for Child Pornography Victims

Binford_warrenWarren Binford (Willamette University College of Law) has posted A Global Survey of Country Efforts to Ensure Compensation for Child Pornography Victims (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This article summarizes the results of a survey conducted of the country reports of states parties to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Children Prostitution and Child Pornography to determine compliance with Article 9(4), which requires that all states parties ensure victims of child pornography have access to adequate procedures to seek damages from those legally responsible. The survey showed that almost half of the parties to the Optional Protocol have not filed country reports. Of those 89 nations who filed a country report, almost all describe only general jurisprudential systems of compensation available to all crime victims in the country, with few unique compensation systems tailored specifically to the offenses identified in the Optional Protocol. This is concerning because of the unique nature of the crimes covered under the Optional Protocol, such as distribution and possession of child pornography, where an increasing body of research shows the enduring mental harm to victims, but it often is difficult for victims to prove causation and damages. The survey also revealed that an increasing number of countries are (1) integrating victim compensation with the criminal process to avoid re-traumatizing victims through a separate civil process; (2) appointing legal advocates to assist victims; and (3) setting up state-sponsored compensation systems to provide victims access to compensation, especially where damages cannot be recovered from the offender. Finally, the article identifies gaps in child pornography compensation systems and opportunities for greater compliance both by states parties and the global community.

May 9, 2015 | Permalink | Comments (0)

Friday, May 8, 2015

Harmon on Federal Programs and the Real Costs of Policing

Harmon rachelRachel Harmon (University of Virginia School of Law) has posted Federal Programs and the Real Costs of Policing (New York University Law Review, Vol. 90, June 2015) on SSRN. Here is the abstract:

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs can make local policing seem cheaper for communities, but actually make it more costly in its impacts and therefore less efficient. 

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May 8, 2015 | Permalink | Comments (0)

Klinkner on Digital Evidence and the Right to Deletion

Blake Anthony Klinkner has posted Digital Evidence and the Fourth Amendment: United States v. Ganias and Judicial Recognition of the 'Right to Deletion' (The Wyoming Lawyer, p. 52, April 2015) on SSRN. Here is the abstract:

In United States v. Ganias, the United States Court of Appeals for the Second Circuit decided an important case that will have far-reaching implications for digital evidence in criminal cases. In Ganias, the court held that a defendant's Fourth Amendment rights were violated when the government, under a valid search warrant, made copies of the defendant's computer drives but then failed to delete the files which were outside the scope of the search warrant. This decision marks the first time a court has recognized a "right to deletion" under the Fourth Amendment of the United States Constitution.

May 8, 2015 | Permalink | Comments (1)

Thursday, May 7, 2015

Garcia on Miranda

Garcia alfredoAlfredo Garcia (St. Thomas University - School of Law) has posted Regression to the Mean: How Miranda Has Become a Tragicomical Farce (25 St. Thomas L. Rev. 293 (2013)) on SSRN. Here is the abstract:

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on a Miranda waiver to establish the voluntariness of a confession.

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May 7, 2015 | Permalink | Comments (1)

Stokes on Revenge Porn

Jenna K. Stokes has posted The Indecent Internet: Resisting Unwarranted Internet Exceptionalism in Combating Revenge Porn (29 BERKELEY TECH. L.J. 929 (2014)) on SSRN. Here is the abstract:

This Note explores the rise of revenge porn, as well as the civil and criminal strategies that scholars and legislators have offered to address it. It argues that these suggested approaches needlessly complicate the law, and concludes that the existing tort of intentional infliction of emotional distress is already Stokes on Rewell-suited for revenge porn cases.

May 7, 2015 | Permalink | Comments (0)

Wednesday, May 6, 2015

Corrado on Giving Up Desert

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Withdrawal Pains: Giving Up Desert on SSRN. Here is the abstract:

Underlying our present conception of punishment is the moral notion of desert. As Hodgson sets the problem, either we treat people as sometimes deserving punishment, or we treat them as “vehicles for treatment to be manipulated for the general good.” But treating them as mere vehicles to be dealt with for the common good, he says, (1) is an inappropriate way to treat rational people, and (2) does not encourage them to take responsibility for their conduct. I’m not sure about the second claim, since if human beings are not in fact responsible for what they do, I’m not entirely sure what it would mean for them take responsibility for their actions. I think it’s worth saying a word or two about that. 

I entirely agree with him about the first of these claims, though: treating human beings as mere instruments to be used for the common good is an inappropriate way to deal with rational people. Where, however, do we find the root of that claim?

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May 6, 2015 | Permalink | Comments (0)

Barry on Retroactive Death Penalty Abolition

Barry kevinKevin M. Barry (Quinnipiac University - School of Law) has posted Going Retro: Abolition for All (46 Loyola University Chicago Law Journal 669 (2015)) on SSRN. Here is the abstract:

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.

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May 6, 2015 | Permalink | Comments (0)