CrimProf Blog

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

Monday, August 22, 2016

Romero on Profit-Driven Prosecution

Maybell Romero (Brigham Young University - J. Reuben Clark Law School) has posted Profit-Driven Prosecution and the Competitive Bidding Process on SSRN. Here is the abstract:

Prosecutors are the most powerful organs of the criminal justice system, enjoying discretion in decision-making far beyond that of law enforcement officials, defense attorneys, and judges. Perhaps due to this exceptional position, contemporary understandings and perceptions of criminal prosecutors have tended to be largely positive; evidence of such a normative understanding of the prosecutor and its role may be found from a variety of sources, from (other) law review articles to pop cultural touchstones in television and movies. The prevailing “prosecutorial norm” in the public consciousness embodies 1) a full-time government employee, 2) who devotes all of their time and professional energies to criminal prosecution, and 3) tries to somehow do or affect some vague notion of “justice.” Such norms, however, are regularly challenged and flouted when the prosecutorial function is outsourced. While the outsourcing of nearly every function of the criminal adjudicative process has attracted great attention among scholars and policymakers, a greater critical lens must be focused on prosecutors.

The hazards of prosecutorial outsourcing have largely been neglected because existing prosecutorial scholarship focuses on the United States Attorney or district attorneys’ offices in large, metropolitan areas. Not all prosecutorial offices are created equal, however. Cities, towns, and other small political subdivisions throughout the country frequently hire prosecutors on a part-time basis through a competitive bidding process, releasing requests for proposals (RFPs) in an effort to procure bids.

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August 22, 2016 | Permalink | Comments (0)

Leibovitch on Punishing on a Curve

Adi Leibovitch has posted Punishing on a Curve on SSRN. Here is the abstract:

Does the punishment of one defendant change because of how she fares in comparison to the other defendants on the judge’s docket? This article demonstrates that the troubling answer is yes. Judges sentence the same case more harshly when their caseloads contain relatively milder offenses, and more leniently when their caseloads contain more serious crimes. I call this problem “punishing on a curve.”

Consequently, the article shows how such relative sentencing patterns put into question the prevailing practice of establishing specialized courts or courts of limited jurisdiction. Because judges are punishing on a curve, the court’s jurisdiction systematically shapes sentencing outcomes. Courts of limited jurisdiction usually specialize in relatively less serious crimes (such as misdemeanors, drug offenses, or juvenile cases). They treat the mild offenses on their docket more harshly than generalist courts, that also see severe crimes, would have treated them. This leads to the disturbing effect of increasing punitive outcomes vis-à-vis these offenses, wholly contradictory to the missions of these courts. Such sentencing patterns undermine notions of justice and equitable treatment. They also undermine retributive principles and marginal deterrence across crimes of increasing severity.

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August 22, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 235 Sexual Advance Directives
Alexander A. Boni-Saenz
Chicago-Kent College of Law
Date posted to database: 25 Jul 2016 
2 149 Public Attitudes toward Data Fraud and Selective Reporting in Science
Justin Tyler Pickett and Sean Patrick Roche
School of Criminal Justice, University at Albany, SUNY and University at Albany
Date posted to database: 12 Jul 2016 
3 106 Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016 [4th last week]
4 90 Possession, Child Pornography and Proportionality: Criminal Liability for Aggregate Harm Offenses
Anthony M. Dillof
Wayne State University Law School
Date posted to database: 19 Jul 2016 [5th last week]
5 87 Privileging Professional Insider Trading
Sarah Baumgartel
Yale Law School
Date posted to database: 18 Jul 2016 [6th last week]
6 78 Why Lenity Has No Place in the Income Tax Laws
Andy Grewal
University of Iowa - College of Law
Date posted to database: 20 Jul 2016 [8th last week]
7 58 What Counts as Prostitution?
Stuart P. Green
Rutgers Law School
Date posted to database: 13 Jul 2016 [10th last week]
8 56 A Sure Bet? The Legal Status of Daily Fantasy Sports
Marc Edelman
City University of New York - Baruch College, Zicklin School of Business
Date posted to database: 22 Jun 2016 [9th last week]
9 52 Response: What is Criminal Law About?
Guyora Binder and Robert Weisberg
University at Buffalo Law School and Stanford Law School
Date posted to database: 3 Aug 2016 [new to top ten]
10 52 Sorcery Crimes, Laws, and Judicial Practice in Traditional China
Xiaohuan Zhao
University of Sydney, Department of Chinese Studies
Date posted to database: 7 Jul 2016 [new to top ten]

August 22, 2016 | Permalink | Comments (0)

Sunday, August 21, 2016

"Civil rights group releases scorecard on police body camera policies"

From Jurist:

The Leadership Conference on Civil and Human Rights and data analysis company Upturn [official websites] released the Body Worn Cameras Scorecard [statistical report] on Saturday, a report which concluded that the policies concerning civil rights and the use of body cameras varied widely in more than 50 police departments that were evaluated. Each department's body camera policies were evaluated based upon eight criteria derived from civil rights principles on body worn cameras. The study considered whether the department: 1) makes the policies publicly and readily accessible, 2) limits officer discretion on when to record, 3) addresses personal privacy concerns, 4) prohibits officer pre-report viewing, 5) limits retention of footage, 6) protects the footage against tampering and misuse, 7) makes the footage available to individuals filing complaints and 8) limits the use of biometric technologies. The report found [NBC News report] that the Ferguson and Fresno police departments failed every single criterion on the scorecard, while San Francisco, DC and Chicago's policies were recognized as "model" examples. Additionally, it was found that the Milwaukee police department, while prohibiting officers from gaining unauthorized access to footage, did not prohibit officers from "modifying, deleting, or otherwise tampering with footage." Baton Rouge, Minneapolis, and Baltimore do not make their policies available on their website, while Pittsburgh and Detroit do not make their policies available at all. President and CEO of Leadership Conference Wayne Henderson [official profile] stated: "There is an assumption that these cameras protect the civil rights and privacy of communities under surveillance but ... cameras are just a tool and not a substitute for broader reforms."


August 21, 2016 | Permalink | Comments (0)

"How Rape Victims' Social-Media Feeds Are Being Used Against Them in Court"

From, via NACDL:

The man accused of sexually assaulting Stella, Di Yang, was acquitted in March. While reading her decision, Ontario court justice Leslie Chapin said "the fact that [Stella] did look up articles about consent when she was home leads me to think that there was some genuine confusion on her part as to whether or not she was consenting."

. . .

During cross-examination, Yang's lawyer Naomi Lutes brought up the fact that Stella had once posted a comment on Facebook that said "when a woman says 'no,' it is the beginning of a negotiation."

"I couldn't prepare for that," Stella told VICE, noting the post was six years old.

August 21, 2016 | Permalink | Comments (0)

"Judge Refers Arizona Sheriff Joe Arpaio for Criminal Prosecution"

From The New York Times:

PHOENIX — A federal judge on Friday referred Sheriff Joe Arpaio and his second-in-command for criminal prosecution, finding that they ignored and misrepresented to subordinates court orders designed to keep the sheriff’s office from racially profiling Latinos.

. . .

Sheriff Arpaio and Mr. Sheridan had also made numerous false statements under oath, Judge Snow wrote, and “there is also probable cause to believe that many if not all of the statements were made in an attempt to obstruct any inquiry into their further wrongdoing or negligence.”


August 21, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.



Rank Downloads Paper Title
1 260 The Downstream Consequences of Misdemeanor Pretrial Detention
Paul S. Heaton, Sandra G. Mayson and Megan Stevenson
University of Pennsylvania Law School, University of Pennsylvania Law School and University of Pennsylvania Law School
Date posted to database: 17 Jul 2016 
2 150 The Drug Court Paradigm
Jessica Eaglin
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016 [new to top ten]
3 137 A New Era for Expungement Law Reform? Recent Developments at the State and Federal Levels
Brian M. Murray
Temple University, Beasley School of Law
Date posted to database: 27 Jul 2016 [9th last week]
4 135 Importance of State Law in Police Reform
Roger L. Goldman
Saint Louis University - School of Law
Date posted to database: 4 Aug 2016 
5 129 Indians, Race, and Criminal Jurisdiction in Indian Country
Alexander Tallchief Skibine
University of Utah - S.J. Quinney College of Law
Date posted to database: 12 Aug 2016 [new to top ten]
6 125 The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016 [new on top ten]
7 122 Prosecuting Collateral Consequences
Eisha Jain
University of North Carolina School of Law
Date posted to database: 7 Jul 2016 [3rd last week]
8 116 Arresting Batson: How Striking Jurors Based on Arrests Violates Batson
Vida B. Johnson
Georgetown University Law Center
Date posted to database: 2 Jul 2016 [5th last week]
9 109 An Insurance-Based Typology of Police Misconduct
John Rappaport
University of Chicago Law School
Date posted to database: 12 Jul 2016 [6th last week]
10 106 Vilifying the Vigilante: A Narrowed Scope of Citizen's Arrest
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 19 Jun 2016 [7th last week]




August 21, 2016 | Permalink | Comments (0)

Saturday, August 20, 2016

Thompson on Zero Tolerance in Schools

Jeremy L Thompson has posted Eliminating Zero Tolerance Policies in Schools: Miami-Dade Public School's Approach (Brigham Young University Education and Law Journal, Vol. 2016, No. 2, 2016) on SSRN. Here is the abstract:

The United States has the highest prison population rate in the world. As a result, taxpayers spend over several billion dollars a year on prison costs. At a time where the United States has the highest incarceration rate and the highest amount of debt in history, saving money by reducing the prison population should be one of the highest priorities of U.S. citizens. More importantly, despite the fact that the U.S. Criminal Justice System is “race neutral,” racial minorities represent a disproportionately higher rate of the United States prison population despite the fact that they represent only a small fraction of the U.S.

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August 20, 2016 | Permalink | Comments (1)

Friday, August 19, 2016

Skibine on Indians, Race, and Criminal Jurisdiction

Skibine alexanderAlexander Tallchief Skibine (University of Utah - S.J. Quinney College of Law) has posted Indians, Race, and Criminal Jurisdiction in Indian Country (Albany Government Law Review, Forthcoming) on SSRN. Here is the abstract:

With the possible exception of the Indian Major Crimes Act, the classification of “Indian” for the purposes of the ICCA and the Duro Fix is not “racial” even if it includes non-enrolled people of Indian ancestry with significant connections to tribal communities. Furthermore, although the first prong of the Rogers test should be eliminated on policy grounds, the holding of the Zepeda court that the first prong could be satisfied by proof of blood quantum from any Indian tribe, recognized or not, is highly suspicious, seems to be arbitrary, and boosts the argument that the classification of “Indian” in such cases is a racial classification.

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August 19, 2016 | Permalink | Comments (0)

Mulroy on Pre-Charge Attachment of the 6th Amendment Right to Counsel

Mulroy steveSteven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted The Bright Line’s Dark Zone: Pre-Charge Attachment of the 6th Amendment Right to Counsel on SSRN. Here is the abstract:

In this Article, Prof. Mulroy discusses an unsettled issue which arises with some frequency in the federal courts: whether the Sixth Amendment right to counsel can ever apply prior to the filing of a formal charge by a prosecutor. There are a number of situations - most notably, pre-indictment plea negotiations involving the prosecutor - where a defendant most decidedly needs the assistance of counsel, even before formal charges are filed. Language in Supreme Court cases has suggested that the right does not attach until a prosecutor files a charge in court, or the defendant appears before a magistrate. Some lower courts have relied on this language to fashion a “bright-line rule” preventing Sixth Amendment protection prior to formal charges being filed. But these Supreme Court cases were decided prior to recent rulings by the Court that a Sixth Amendment ineffective assistance of counsel claim could cover plea negotiations. The circuit courts are split on this issue, with some accepting and some rejecting the notion of a bright-line rule.

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August 19, 2016 | Permalink | Comments (0)

Mailland on Roman Polanski

Julien Mailland (Indiana University Bloomington - Department of Telecommunications) has posted Roman Polanski and the 'Artists' Minister': American Criminal Law v. French Cultural Diplomacy (ASU Sports & Entertainment Law Journal, Vol. 5, No. 2, 2016) on SSRN. Here is the abstract:

In 1977, famed Hollywood director Roman Polanski was convicted by a California court of unlawful sexual intercourse with a 13-year old he had drugged. The night before the sentencing hearing, he fled to France where, as a French citizen, he was immune from deportation and would spend the next thirty years as a fugitive. In 2009, Polanski was arrested in Switzerland at the bequest of the United States.

The arrest triggered a violent reaction from the French executive branch and intellectual elites, and caused a still-ongoing disagreement between France and the U.S. This case study of the international imbroglio reveals a profound misunderstanding. While French elites fail to understand the importance of the rule of law in American society, U.S. jurists and international political scholars fail to understand the significance of French operational code — a set of political beliefs originating from the cultural matrix of a society.

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August 19, 2016 | Permalink | Comments (0)

Thursday, August 18, 2016

Eaglin on The Drug Court Paradigm

Eaglin jessicaJessica Eaglin (Indiana University Maurer School of Law) has posted The Drug Court Paradigm (American Criminal Law Review, Vol. 53, No. 595, 2016) on SSRN. Here is the abstract:

Drug courts are specialized, problem-oriented diversion programs. Qualifying offenders receive treatment and intense court-supervision from these specialized criminal courts, rather than standard incarceration. Although a body of scholarship critiques drug courts and recent sentencing reforms, few scholars explore the drug court movement’s influence on recent sentencing policies outside the context of specialized courts.

This Article explores the broader effects of the drug court movement, arguing that it created a particular paradigm that states have adopted to manage overflowing prison populations. This drug court paradigm has proved attractive to politicians and reformers alike because it facilitates sentencing reforms for low-level, nonviolent drug offenders that provide treatment-oriented diversions from incarceration.

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August 18, 2016 | Permalink | Comments (0)

"Federal district judge assails prosecutors for not seeking more prison time for cooperators in government corruption cases"

Doug Berman has this post at Sentencing Law & Policy, excerpting a news report. From the excerpt:

A federal judge repeatedly criticized the U.S. Attorney's Office in Newark during a hearing Wednesday, scolding prosecutors for seeking light sentences -- sometimes with no prison time -- for people who plead guilty to corruption and related offenses.

Before sentencing a Guttenberg contractor who conspired with Union City officials to steal federal housing funds, U.S. District Judge William H. Walls spent several minutes upbraiding the U.S. Attorney's Office for a "ridiculous" pattern of bringing corruption cases and then seeking lenient sentences for defendants who plead guilty.

August 18, 2016 | Permalink | Comments (0)

"Ninth Circuit bars federal prosecutions for state-law-authorized medical marijuana"

Eugene Volokh has this post at The Volokh Conspiracy. In part:

Starting in December 2014, Congress has provided that “[n]one of the funds made available … to the Department of Justice may be used … to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana” (§ 542 of the Consolidated Appropriations Act). Today, the Ninth Circuit held (in United States v. McIntosh) that federal judges should enforce this law by stopping prosecutions for conduct that is authorized by state medical marijuana laws.


August 18, 2016 | Permalink | Comments (0)

Bond on Counsel Funding and Trial Delay in Canada

Jennifer Bond (University of Ottawa - Common Law Section) has posted Failure to Fund: The Link between Canada's Legal Aid Crisis & Unconstitutional Delay in the Provision of State-Funded Legal Counsel (National Journal of Constitutional Law, Vol. 35, No. 1, 2015) on SSRN. Here is the abstract:

Access to state-funded legal counsel is a constitutional right in Canada for at least some criminal accuseds. This counsel is currently being provided through two primary mechanisms — administrative legal aid programs and a court-order process. The latter is contingent on showing that all legal aid remedies have been exhausted and, when used to address the unique circumstances of a particular accused, has the potential to complement a well functioning administrative process by providing extraordinary relief for exceptional cases.

Unfortunately, the potential of this model has not been realized. Instead, the court-order process is being routinely and increasingly used to compensate for a chronically under-funded legal aid program that uses financial eligibility criteria as a rationing device rather than as a metric with which to assess an accused’s actual ability to pay for her own legal counsel. This article argues that delay resulting from such a system is attributable to the state and must be assessed under s. 11(b) of the Charter, which guarantees the right to be tried within a reasonable time. Further, the singular remedy available for violations of s. 11(b) means that the ongoing failure to sufficiently fund legal aid programs could ultimately result in an inability to prosecute certain criminal accuseds regardless of the strength of the substantive case against them.

August 18, 2016 | Permalink | Comments (0)

Bierschbach & Bibas on Sentencing Equality

Richard A. Bierschbach and Stephanos Bibas (Yeshiva University - Benjamin N. Cardozo School of Law and University of Pennsylvania Law School) have posted What's Wrong With Sentencing Equality? (Virginia Law Review, Vol. 102, No. 6, 2016) on SSRN. Here is the abstract:

Equality in criminal sentencing often translates into equalizing outcomes and stamping out variations, whether race-based, geographic, or random. This approach conflates the concept of equality with one contestable conception focused on outputs and numbers, not inputs and processes. Racial equality is crucial, but a concern with eliminating racism has hypertrophied well beyond race. Equalizing outcomes seems appealing as a neutral way to dodge contentious substantive policy debates about the purposes of punishment. But it actually privileges deterrence and incapacitation over rehabilitation, subjective elements of retribution, and procedural justice, and it provides little normative guidance for punishment. It also has unintended consequences for the structure of sentencing. Focusing on outcomes centralizes power and draws it up to higher levels of government, sacrificing the checks and balances, disaggregation, experimentation, and localism that are practically baked into sentencing’s constitutional framework. More flexible, process-oriented notions of equality might better give effect to a range of competing punishment considerations while still policing punishments for bias or arbitrariness. They also could bring useful nuance to equality debates that swirl around restorative justice, California’s Realignment experiment, federal use of fast-track plea agreements, and other contemporary sentencing practices.

August 18, 2016 | Permalink | Comments (0)

Sharpless on The Categorical Approach to Sentencing Enhancements

Sharpless rebeccaRebecca A. Sharpless (University of Miami - School of Law) has posted Finally, a True Elements Test on SSRN. Here is the abstract:

The fate of defendants facing lengthy federal sentence enhancements often turns on what the U.S. Supreme Court calls the categorical approach. The approach controls whether a federal defendant might face an additional decade or longer in prison based solely on having prior convictions of a certain type. At a time when many question the wisdom of the War on Crime started in the 1980s, the Court has taken great care to delimit the circumstances in which a federal sentencing judge can lengthen sentences based on recidivism. The categorical approach also governs most immigration cases involving deportation for a crime. As Congress has cut back deportation defenses for lawful permanent residents with criminal records, the Court has demanded that convictions used for deportation strictly correspond to a federal removal ground.

In both Descamps v. U.S. and Mathis v. U.S., recent Armed Career Criminal Act opinions authored by Justice Kagan, the Supreme Court interpreted the categorical approach as requiring a true elements test, declaring that at least two decades of the Court’s precedent required this result. Yet, Justice Breyer and Justice Ginsburg, two justices who had been in the majority in Descamps, dissented in Mathis. This Essay analyzes the trajectory of the Court’s categorical approach decisions, using the Mathis dissent authored by Justice Breyer, and joined by Justice Ginsburg, to explain an ambiguity in the Court’s jurisprudence that Descamps and Mathis have now settled. While Justice Kagan’s penchant for hyperbole oversimplifies the relationship between the Court’s early and late decisions regarding the categorical approach, the holdings of Descamps and Mathis are not only correct. They are likely constitutionally mandated.

August 18, 2016 | Permalink | Comments (0)

Wednesday, August 17, 2016

"Michigan moves slowly to fix shoddy indigent defense"

From NACDL, this op-ed in The Detroit Free Press:

There’s a lot to unpack around the pernicious incompetence that sent Davontae Sanford to jail for a murder he clearly didn’t commit. And the blame for the injustice Sanford endured gets spread wide — to a lying cop, an unsympathetic and unapologetic prosecutor, a system that moved way too slowly to correct what was wrong after it was well known.

But there’s another important systemic problem highlighted by the Sanford case: Michigan’s chaotic and under-funded system of public defense. Sanford’s lawyer coached him to plead guilty to killing four people in a Detroit drug house in 2007, even though his description of the murders didn’t match the details of the crime.


August 17, 2016 | Permalink | Comments (0)

"Prosecutors Say Trump Tower Climber Wanted Publicity"

From The New York Times:

Wearing a pale blue hospital outfit, his brown hair covering most of his face, Mr. Rogata sat quietly as prosecutors read the charges, including reckless endangerment and criminal trespassing.

. . . 

“This defendant’s crime endangered not only himself and people beneath him,” but also emergency responders, [the prosecutor] said.

August 17, 2016 | Permalink | Comments (0)

Yung on Title IX and Campus Sexual Assaults

Yung coreyCorey Rayburn Yung (University of Kansas School of Law) has posted Is Relying on Title IX a Mistake? (Kansas Law Review, Vol. 64, 2016) on SSRN. Here is the abstract:

This Article attempts to answer an essential question related to Title IX’s role in student sexual assault at universities: is it better to improve and universalize student safety and conduct codes or rely on the new Title IX framework that has emerged? The tentative answer offered is that it is a mistake to solely or primarily depend on Title IX to deter and punish offenders in university sexual assault cases. This conclusion is based upon the uncertainty related to various aspects of Title IX doctrine and the regulatory regime that has emerged to enforce the statute. Consequently, this Article concludes Congress should adopt a basic, uniform student safety and conduct code that will cure many of the shortcomings of a legal regime based entirely upon Title IX. This legislation, unlike proposals aimed at merely strengthening the Title IX framework, might potentially avoid some of the backlash that has emerged in the wake of Title IX’s growing application in student-to-student sexual assault cases at universities while better addressing the issue.

August 17, 2016 | Permalink | Comments (0)