CrimProf Blog

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

Thursday, December 1, 2016

Welch on Clinical Torture

Michael Welch (Rutgers, The State University of New Jersey - Criminal Justice Program) has posted Clinical Torture: Drifting in the Atrocity Triangle (Oñati Socio-Legal Series, Vol. 6, No. 4, 2016) on SSRN. Here is the abstract:

So as to immunize the Bush White House against cases involving the abuse of detainees held under the war on terror, its legal advisors warped laws prohibiting torture. More recently, evidence reveals that the CIA colluded with the American Psychological Association (APA) to rewrite an ethics policy that would enable psychologists to participate in harsh interrogations as well as torture. The shift from consultant to that of a hands-on operational psychologist marks a significant development in what is described herein as clinical torture. Moreover, the adoption of a new role in the interrogation and torture program demonstrates the dynamics of drift in the atrocity triangle that features perpetrators, victims, and bystanders. Specifically, psychologists progress from bystanders to becoming perpetrators in ways that abandon their obligation to do no harm. This article explores the nuances of the atrocity triangle and the atrocity-producing situation set forth by Stanley Cohen and Robert Jay Lifton. Implications to the prosecution of group offenders are discussed throughout.

December 1, 2016 | Permalink | Comments (0)

Squires on Joint Enterprise Prosecution

Peter Squires (University of Brighton) has posted Voodoo Liability: Joint Enterprise Prosecution as an Aspect of Intensified Criminalisation (Oñati Socio-Legal Series, Vol. 6, No. 4, 2016) on SSRN. Here is the abstract:

Following the collapse of a number of 'gang-related' prosecutions in England and Wales from the late 1990s, the police and Crown Prosecution Service revived a practice of 'joint enterprise' prosecution. Joint enterprise was a historic common law principle holding co-defendants equally responsible for offences which appeared to evince a common collective purpose. Unfortunately, over time, a combination of (apparently 'wayward') judicial interpretation, and police and prosecutorial practice contributed to a lowering of the threshold of 'joint liability' such that involvement in a gang, and 'bad character' evidence admitted at trial were taken to imply the 'foreseeability' of violent offences. The apparent tendency of the police to over-define criminal activity by young black males as 'gang-related' has led to the construction of a spurious and 'voodoo criminal liability' leading to the intensified criminalisation (over-prosecution and over-incarceration) of young black men. Between the first presentations of the paper and the written version which follows, the law was amended (R v Jogee 2016) but, as will be argued, not in a way which fundamentally changes the construction of 'joint liability' discussed here.

December 1, 2016 | Permalink | Comments (0)

Wednesday, November 30, 2016

Eagly on Immigrant Protective Policies in Criminal Justice

Eagly ingridIngrid V. Eagly (University of California, Los Angeles (UCLA) - School of Law) has posted Immigrant Protective Policies in Criminal Justice (95 Texas Law Review (Forthcoming)) on SSRN. Here is the abstract:

The increasing focus of federal immigration enforcement on persons accused of crimes has hastened the creation of local criminal justice policies that govern the treatment of immigrants. In this Article, I report my findings from public records requests sent to prosecutor offices, city police departments, and county sheriffs in four large counties in California: Alameda, Los Angeles, Santa Clara, and Ventura. I analyze the text of three types of written criminal justice policies that emerged in every county: (1) police policies that prohibit inquiry into immigration violations during routine policing; (2) prosecutor policies that consider deportation penalties in negotiating pleas for low-level offenders; and (3) sheriff policies that reject certain federal requests to detain immigrants in their jails for deportation purposes. All of these policies function to protect at least some immigrants who come into contact with the criminal justice system from possible deportation. Yet, close analysis of these policies — which I refer to as “immigrant protective policies” — also reveals key differences in how these protections are structured and, hence, in which immigrants are covered by these policies. In short, some policies are more protective than others.

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November 30, 2016 | Permalink | Comments (0)

Svantesson on Law Enforcement Cross-Border Access to Data

Dan Svantesson (Bond University - School of Law) has posted Preliminary Report: Law Enforcement Cross-Border Access to Data on SSRN. Here is the abstract:

This Preliminary Report summarises the research findings of Professor Svantesson’s Australian Research Council Future Fellowship project (project number FT120100583) as of November 2016, and as far as they relate to law enforcement cross-border access to (typically cloud-based) data held by private parties.

November 30, 2016 | Permalink | Comments (0)

Brabenec & Montag on Criminals and the Price System

Tomáš Brabenec and Josef Montag (University of Economics, Prague and International School of Economics, Kazakh-British Technical University) have posted Criminals and the Price System: Evidence from Czech Metal Thieves on SSRN. Here is the abstract:

Objectives: This paper tests the economic theory of criminal behavior using a unique crime-level dataset on metal theft in the Czech Republic. Specifically, it looks at “the carrot” side of the theory, studying how thieves react to changes in monetary gains from crime.

Methods: We argue that variation in metal prices represents a quasi-experimental variation in gains from crime. This is because (i) people steal copper and other nonferrous metals only to sell them to scrapyard and (ii) prices at scrapyards are set by the world market. This facilitates causal interpretation of our estimates.

Results: Our results suggest that the long-term elasticity of supply of metal thefts with respect to the re-sale value of stolen metal is between one and 1.5 — a one-percent increase (decrease) in the re-sale price causes metal thefts to increase (decrease) by one to 1.5 percent. We show that the relationship between prices and thefts is very robust. Moreover, the system tends to equilibriate quickly — between 30 and 60 percent of a disequilibrium is corrected the following month and the monthly price elasticity estimates are around one, close to the long-term estimates.

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November 30, 2016 | Permalink | Comments (0)

Tuesday, November 29, 2016

Chavis on Criminal Justice Reform

Kami Chavis (Wake Forest University Law School) has posted Foreword: A New Frontier in Criminal Justice Reform (Wake Forest Journal of Law & Policy, Vol. 6(2), 2016) on SSRN. Here is the abstract:

Each author featured in this issue of the Wake Forest Journal of Law & Policy explores different aspects of the criminal justice system in the United States, and they come to the same conclusion that there is widespread consensus that in order for our system to fully embody the ideals of our nation and our great Constitution, critical reforms must occur at every stage within the criminal justice process.

There is currently strong momentum and bipartisan support to encourage changes that will impact not only those currently imprisoned, but also those in the pipeline to prison, and recent policy shifts suggest that we are at a crossroads in criminal justice. However, meaningful reforms will occur only with bold and innovative solutions at each stage of the criminal process, beginning with policing, which represents the entry point into the criminal justice system. Ensuring humane treatment of those convicted and sentenced to prison for their crimes, as well as providing needed services to ease the transition of those reentering society from prison, are all on the reform agenda. Policymakers have announced several important criminal justice policy changes that signify that the nation is indeed in the midst of a "criminal justice revolution." My introduction will contextualize the articles and discuss how the proposals they analyze compliment these recent policy shifts and embody the types of changes needed to ensure sustainable and effective criminal justice reforms.

November 29, 2016 | Permalink | Comments (0)

O'Hear on The Justice Reinvestment Initiative

O'hear michaelMichael M. O'Hear (Marquette University - Law School) has posted Justice Reinvestment and the State of State Sentencing Reform (Federal Sentencing Reporter, Vol. 29, No. 1, 2016) on SSRN. Here is the abstract:

The national Justice Reinvestment Initiative has arguably been the most important development in American sentencing policy in the past decade. This essay introduces an issue of the Federal Sentencing Reporter that focuses on the JRI. The essay highlights both strengths and weaknesses of the JRI, particularly from the standpoint of reducing mass incarceration in the United States.

November 29, 2016 | Permalink | Comments (0)

Opinion addressing double jeopardy issue preclusion and inconsistent verdicts

Justice Ginsburg delivered the opinion for a unanimous Court in Bravo-Fernandez v. United States, finding no preclusive effect. Justice Thomas filed a concurring opinion.

November 29, 2016 | Permalink | Comments (0)

Monday, November 28, 2016

Chavis on Montgomery v. Lousiana

Kami Chavis (Wake Forest University Law School) has posted Montgomery v. Louisiana: Baby Steps toward a More Benevolent Juvenile Justice System (George Washington Law Review, Docket, 2015) on SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court concluded that mandatory life sentences without the possibility of parole for juveniles violate the Eighth Amendment. Last week, three years after prohibiting mandatory life sentences for juvenile offenders, in Montgomery v. Louisiana, the Court held that the rule announced in Miller must apply retroactively. In Montgomery v. Louisiana, the Court determined that Miller’s prohibition on mandatory life sentences established a new substantive rule for constitutional rights. This recent ruling means that inmates currently serving mandatory life sentences for offenses they committed while they were children, and whose sentences were considered final at the time Miller was decided, will now have an opportunity for state courts to reconsider their original sentence or to argue for early release at a parole hearing. The Montgomery v. Louisiana decision is the most recent in a line of cases that spare juvenile offenders the harshest penalties our criminal justice system imposes, and vindicates the reasoning in Miller earlier cases that “children are different.” This Response, however, cautions that the decision in Montgomery v. Louisiana is only an incremental victory in what promises to be a long battle not only for those juvenile offenders now seeking their liberty, but also for criminal justice advocates seeking to ameliorate harsh punishments for juvenile in other contexts within the justice system. In Miller v. Alabama, the Court declined to issue a categorical ban on the practice of imposing life imprisonment without parole for juveniles, and notwithstanding the retroactivity of the rule in Miller, the decision in Montgomery v. Louisiana does not foreclose the possibility that some juvenile offenders will remain condemned to die in prison. This Response argues that in order to fully vindicate the principle that “children are different,” advocates should use the reasoning of these recent cases to push for greater limitations on the punishments our criminal justice system currently imposes upon juveniles.

November 28, 2016 | Permalink | Comments (0)

Manikis on Mandatory Minimums

Marie Manikis (McGill Faculty of Law) has posted The Recognition of Prosecutorial Obligations in an Era of Mandatory Minimum Sentences of Imprisonment and Over-Representation of Aboriginal People in Prisons ((2015) 71 Supreme Court Law Review 277-300) on SSRN. Here is the abstract:

The presence of mandatory minimum sentences does not allow for judges to find alternatives to incarceration or go below the legislated minimum — effectively denying judges the ability to adequately take into account specific background as a possible mitigating factor. For these reasons, this article suggests that Gladue should be recognized as a stand-alone principle that is not rooted in the principle of proportionality in sentencing – and applies notably to prosecutors.

November 28, 2016 | Permalink | Comments (0)

Sunday, November 27, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 298 Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper
Craig Forcese and Kent Roach
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law
Date posted to database: 8 Oct 2016 
2 139 'Revenge Porn' Reform: A View from the Front Lines
Mary Anne Franks
University of Miami School of Law
Date posted to database: 19 Oct 2016 [4th last week]
3 123 Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus?
Lawrence M. Solan and Tammy A Gales
Brooklyn Law School and Hofstra University
Date posted to database: 13 Oct 2016 [5th last week]
4 98 A Catharsis for U.S. Trust Law: American Reflections on the Panama Papers
Reid K. Weisbord
Rutgers Law School
Date posted to database: 20 Oct 2016 [6th last week]
5 94 Extreme Prison Sentences: Legal and Normative Consequences
Melissa Hamilton
University of Houston Law Center
Date posted to database: 7 Nov 2016 [new to top ten]
6 89 Criminal Law, Neuroscience and Voluntary Acts
Dennis Patterson
European University Institute
Date posted to database: 25 Oct 2016 [7th last week]
7 85 How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence
Deborah W. Denno
Fordham University School of Law
Date posted to database: 7 Nov 2016 [10th last week]
8 78 Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories
Michael Tonry
University of Minnesota - Twin Cities - School of Law
Date posted to database: 18 Oct 2016 
9 65 Regulating Gun Rentals
Ira P. Robbins
American University - Washington College of Law
Date posted to database: 30 Sep 2016 [new to top ten]
10 63 State v. Brelo and the Problem of Actual Causation
Ben Gifford
Harvard University, Law School, Students
Date posted to database: 16 Oct 2016 [new to top ten]

 

November 27, 2016 | Permalink | Comments (0)

Next week's criminal law/procedure oral arguments

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

Monday

  • Beckles v. U.S.: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whether Johnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Tuesday

  • Moore v. Texas: Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Wednesday

  • Jennings v. Rodriguez: (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.

November 27, 2016 | Permalink | Comments (0)

Saturday, November 26, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

 

Rank Downloads Paper Title
1 200 The Judicial Presumption of Police Expertise
Anna Lvovsky
Columbia University - Law School
Date posted to database: 30 Sep 2016 [2nd last week]
2 192 Debunking the Stranger in the Bushes Myth: The Case for Sexual Assault Protection Orders
Shawn Fields
University of San Diego School of Law
Date posted to database: 11 Oct 2016 [3rd last week]
3 180 Comment on R v K(A): Carding, Racial Profiling and Police Perjury
David M. Tanovich and Donald R. Stuart
University of Windsor - Faculty of Law and Queen's University
Date posted to database: 4 Mar 2016 [5th last week]
4 166 The Original Meaning of 'Cruel'
John F. Stinneford
University of Florida - Levin College of Law
Date posted to database: 1 Oct 2016 [new to top ten]
5 160 Forensics and Fallibility: Comparing the Views of Lawyers and Judges
Brandon L. Garrett andGregory Mitchell
University of Virginia School of Law and University of Virginia School of Law
Date posted to database: 7 Nov 2016 [6th last week]
6 150 Rethinking Prosecutors’ Conflicts of Interest
Bruce A. Green and Rebecca Roiphe
Fordham University School of Law and New York Law School
Date posted to database: 9 Oct 2016 [7th last week]
7 139 If George Washington Did It, Does that Make It Constitutional?: History's Lessons for Wartime Military Tribunals
Martin Lederman
Georgetown University Law Center
Date posted to database: 21 Sep 2016 [8th last week]
8 125 Victim Impact Statements and Expressive Punishment in the Age of Social Media
Erin L. Sheley
University of Calgary Faculty of Law
Date posted to database: 22 Sep 2016 [9th last week]
9 113 From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence
Devon W. Carbado
University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 28 Sep 2016 [new to top ten]
10 100 The Law (?) of the Lincoln Assassination
Martin Lederman
Georgetown University Law Center
Date posted to database: 20 Oct 2016 [new to top ten]

 

November 26, 2016 | Permalink | Comments (0)

Friday, November 25, 2016

Friedman on Third-Party Doctrine

Perry Friedman has posted Revisiting the Third-Party Doctrine (Criminal Law Bulletin, Vol. 53, Forthcoming) on SSRN. Here is the abstract:

Developed during the 1970’s, the third-party doctrine states that one has no reasonable expectation of privacy regarding information that they voluntarily disclose to third parties. The Government can therefore access this information without a warrant. However, the cases giving rise to that doctrine misapplied well established Fourth Amendment law.

In addition, recent Supreme Court decisions make it clear that a proper Fourth Amendment analysis requires a consideration of the quality and quantity of data involved. Given the monumental differences in both the quality and quantity of data stored with third parties today as opposed to 40 years ago, the third-party doctrine is no longer applicable in modern society. Consequently, the Government should be required to obtain a warrant before obtaining data stored with third parties.

November 25, 2016 | Permalink | Comments (0)

DeVries on Browser Histories and Obstruction of Justice

Juliana DeVries (University of California, Berkeley, School of Law, Students) has posted 20 Years for Clearings Your Browser History? (Berkeley Crim. L. J., 2017, Forthcoming) on SSRN. Here is the abstract:

In today’s world, average people create and delete massive amounts of digital data every single day. And most of the time people can do so without expecting the Department of Justice to come knocking. But deleting digital data — including clearing browser history — can also result in federal felony obstruction of justice charges under 18 U.S.C. § 1519, the federal anti- shredding statute, which carries a 20-year maximum penalty. It is thus vital that citizens understand what is and is not illegal under § 1519.

Unfortunately, understanding what the statute prohibits is an almost impossible task. Indeed, this Article will argue that § 1519 has a vagueness problem. That is, the statute arguably fails “to provide a person of ordinary intelligence fair notice of what is prohibited” and “is so standardless that it authorizes or encourages seriously discriminatory enforcement.”1 This Article brings attention to § 1519’s vagueness problem and to suggest solutions. Specifically, it recommends that the courts either impose a “nexus requirement” on § 1519 or limit enforcement to the corporate crime context.

November 25, 2016 | Permalink | Comments (0)

Thursday, November 24, 2016

Amatrundo on Intention, Responsibility, and Joint Criminal Enterprises

Anthony Amatrudo (Middlesex University - School of Law) has posted Applying Analytic Reasoning to Clarify Intention and Responsibility in Joint Criminal Enterprise Cases (Oñati Socio-Legal Series, Vol. 6, No. 4, 2016) on SSRN. Here is the abstract:

This paper argues that both criminologists and lawyers need a far more philosophically robust account of joint action, notably as it relates to technical matters of intentionality and responsibility when dealing with joint criminal enterprise cases. Criminology seems unable see beyond the superficiality of cultural explanations ill-suited to understanding matters of action. Law seems wedded to mystical notions of foresight. As regards the law there seems common agreement that joint enterprise prosecutions tend to over-criminalise secondary parties. This paper suggests that the current discussions around joint criminal enterprise will benefit from a critical engagement with analytical philosophy. The paper will examine a series of technical accounts of shared commitment and intention in order to explain the problems of joint criminal enterprise (multi-agent criminal activity).

November 24, 2016 | Permalink | Comments (0)

Wednesday, November 23, 2016

Stuart on The Canadian Charter and Criminal Justice

Don Stuart (Queen's University, Faculty of Law) has posted The Canadian Charter and Criminal Justice (In Nathalie Des Rosiers, Patrick Macklem, & Peter Oliver, eds., The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press) (Forthcoming)) on SSRN. Here is the abstract:

This chapter analyses the pervasive impact of the Charter on the Canadian criminal justice system. Active judicial interpretation of Charter rights has put in place distinctive constitutional standards of substantive law, including those of fault and struck down oppressive laws for arbitrariness and overbreadth. Also examined are new standards for police powers to stop, detain and arrest, fair trial rights such as the duty of full Crown disclosure and for sentencing. The article describes and welcomes a robust exclusionary discretion for evidence obtained in violation of the Charter. It is suggested that the Canadian Charter standards are no panacea and are sometimes too weak but that they have often provided a welcome balance to the expedient lure of law and order politics.

November 23, 2016 | Permalink | Comments (0)

Smith on Criminal and Civil Remedies for Sex Trafficking

Charisa Kiyô Smith has posted No Quick Fix: The Failure of Criminal Law and the Promise of Civil Law Remedies for Domestic Child Sex Trafficking (71 U. Miami L. Rev 1 (2016)) on SSRN. Here is the abstract:

Pimps and johns who sexually exploit children garner instant public and scholarly outrage for their lust for a destructive “quick fix.” In actuality, many justifiably concerned scholars, policymakers, and members of the public continue to react over-simplistically and reflexively to the issue of child sex trafficking in the United States — also known as commercial sexual exploitation of children (CSEC) — in a manner intellectually akin to immediate gratification. Further, research reveals that the average john is an employed, married male of any given race or ethnicity, suggesting that over-simplification and knee-jerk thinking on CSEC are conspicuous. This Article raises provocative questions that too many others have avoided, while addressing a topic of immense public interest.

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November 23, 2016 | Permalink | Comments (0)

Tuesday, November 22, 2016

Manikis on Victim Impact Statements

Marie Manikis (McGill Faculty of Law) has posted Victim Impact Statements at Sentencing: Towards a Clearer Understanding of Their Aims ((2015) 65:2 University of Toronto Law Journal 85-123) on SSRN. Here is the abstract:

The aims of victim impact statements (VIS) can be classified into two main categories – instrumental and expressive. These different sorts of aims are associated with different, and often conflicting, sentencing objectives. This article argues that the VIS regime in Canada remains a legal no man’s land, with neither its role nor its aims being clearly defined and articulated. Indeed, recent appellate court decisions have shown a number of inconsistencies and conflicts in the instrumental and expressive purposes that VISs in Canada are meant to serve. Further, it is also argued, the proposed legislative amendments under Bill C-32 are not very promising, since this scheme also fails to clearly articulate the aims and rationales behind the statements and behind the proposed changes. It is shown, throughout the article, that VIS regime guidelines and parameters can take different shapes and forms, depending on the aims retained. Moreover, while a dualist scheme that reconciles instrumental and expressive aims may be possible, clarity would be necessary in order to craft adequate parameters. Certainly, more protective measures are necessary if instrumental aims are to be retained. Finally, having laid out the conceptual and foundational grounds required to understand the possible aims of VISs and how these different aims can shape the relevant parameters, the article proceeds by laying out an initial, more normative, proposal for a VIS multi-functional model inspired by evidence-based findings.

November 22, 2016 | Permalink | Comments (0)

Rollins & Nolas on The Retroactivity of Hurst v. Florida

Angela J. Rollins and Billy H. Nolas (Capital Habeas Unit, Office of the Federal Public Defender for the Northern District of Florida and Capital Habeas Unit, Office of the Federal Public Defender for the Northern District of Florida) have posted The Retroactivity of Hurst v. Florida, 136 S. Ct. 616 (2016) to Death-Sentenced Prisoners on Collateral Review (Southern Illinois University Law Journal, Forthcoming) on SSRN. Here is the abstract:

In Apprendi v. New Jersey the United States Supreme Court established that any finding that increases the maximum sentence to which a defendant may be sentenced is an element of the offense that must be found by a jury beyond a reasonable doubt. Applying that concept in Hurst v. Florida, the United States Supreme Court found that Florida’s death-sentencing scheme, which required a judge rather than the jury to make the ultimate factual findings for imposition of a death sentence, unconstitutional holding that “[t]he Sixth Amendment requires a jury, not a judge to find each fact necessary to impose a sentence of death.”

Hurst left no indication as to whether its holding applies retroactively to death-sentenced individuals seeking post-conviction relief. In federal-habeas review and in some states’ post-conviction review processes, this inquiry centers on applying the federal-retroactivity analysis announced in Teague v. Lane.

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November 22, 2016 | Permalink | Comments (0)