CrimProf Blog

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

Thursday, January 28, 2016

Lipman on The Third Party Exception

Rebecca Lipman has posted The Third Party Exception: Reshaping an Imperfect Doctrine for the Digital Age (8 Harvard Law & Policy Review 471 (2014)) on SSRN. Here is the abstract:

The third party exception allows the government to access information that individuals share with other parties without a warrant. This includes sensitive information such as financial records and cellular location data. The third party exception is based on a 1979 Supreme Court case, Smith v. Maryland. Given the dramatic technological advancements that have occurred since 1979, the third party exception needs to be reexamined and reigned in to more accurately reflect Americans' privacy expectations under the Fourth Amendment.

January 28, 2016 | Permalink | Comments (0)

Baude & Stern on The Positive Law Model of the Fourth Amendment

William Baude and James Y. Stern (University of Chicago - Law School and William & Mary Law School) have posted the abstract to The Positive Law Model of the Fourth Amendment
(129 Harvard Law Review (2016), Forthcoming) on SSRN. The entire paper is not available for download, but from the abstract:

For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused but viable alternatives have been slow to emerge. This article supplies one.

We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection depends on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to the private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.

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January 28, 2016 | Permalink | Comments (0)

Wednesday, January 27, 2016

Kolber on First Amendment Thought Protection

KolberAdam J. Kolber (Brooklyn Law School) has posted Two Views of First Amendment Thought Privacy (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:

For centuries, our thought privacy has been reasonably well protected by the difficulty of deciphering other people’s thoughts. This natural protection is in jeopardy, however, as emerging technologies improve our ability to, loosely speaking, read minds. When these methods get cheaper and more accurate, the state may seek to monitor and regulate thought in ways previously impossible.

The First Amendment undoubtedly protects thought privacy, but current law leaves open two very different levels of protection: On one view, thought is only protected when intertwined with expression. If so, we have rather limited First Amendment freedom of thought, since thought often goes unexpressed. Alternatively, thought may be protected independent of expression. If so, we have more expansive First Amendment freedom of thought.

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January 27, 2016 | Permalink | Comments (0)

Bowman on Federal Sentencing Reform Legislation

Bowman frankFrank O. Bowman III (University of Missouri School of Law) has posted Good Enough to Be Getting on With? The State of Federal Sentencing Reform Legislation, December 2015 (Federal Sentencing Reporter, Vol. 28, No. 105, 2015) on SSRN. Here is the abstract:

This Article addresses the current status of the push for federal sentencing and corrections reform, and describes and analyzes all of the major pieces of sentencing and corrections reform legislation pending in the United States Congress at the close of 2015. In particular, it considers the Justice Safety Valve Act of 2015, the Smarter Sentencing Act of 2015, the SAFE Justice Act of 2015, and the most likely candidate for passage -- the Senate's Sentencing Reform and Corrections Act of 2015 (SRACA) and its counterpart in the House. The Article discusses the merits and deficiencies of each bill, and estimates the likely effect of each on the population of current and future federal defendants and inmates.

The Article notes that the legislative proposals have become less expansive as the session has progressed, with each succeeding bill more cautious than the last. The final section of the Article considers whether the result of Congress's efforts will be worthy of support by those who favor significant federal sentencing and corrections reform. It concludes that, on balance, the front-end sentencing provisions of the legislation most likely to pass (SRACA) are "good enough to be getting on with," but that the back-end corrections measures with the most current legislative backing ought to be reconsidered and improved.

January 27, 2016 | Permalink | Comments (0)

Tuesday, January 26, 2016

Zalman & Larson on Serial Crimes, Wrongful Convictions, and Police Investigation

Marvin Zalman and Matthew Larson (Wayne State University and Wayne State University) have posted Elephants in the Station House: Serial Crimes, Wrongful Convictions, and Expanding Wrongful Conviction Analysis to Include Police Investigation on SSRN. Here is the abstract:

In this article we advocate that the study of miscarriages of justice be expanded to view the entirety of police crime investigation as a source of wrongful convictions. We set this proposal in a framework of how the inductive innocence paradigm was developed and analyze how the term “causation” is used in legal, scientific and case analysis. We then explore a subject not yet addressed by wrongful conviction scholarship but that may confront an investigator: whether an unsolved crime is the work of a serial criminal and whether a suspect is the serial criminal. We examine a convenience sample of forty-four exonerees convicted of crimes committed by thirty serial criminals. The analysis is aimed at opening up a discussion of the kind of complexity that investigators face in hard-to-solve cases.

January 26, 2016 | Permalink | Comments (0)

Perlin on The Insanity Defense

PerlinMichael L. Perlin (New York Law School) has posted The Insanity Defense: Nine Myths that Will Not Go Away (The Insanity Defense: Multidisciplinary Views on Its History, Trends, and Controversies (Mark D. White, Editor; Praeger, 2016 Forthcoming)) on SSRN. Here is the abstract:

Writing about the insanity defense over a quarter of a century ago, the author of this chapter stated: "Until we 'unpack' the empirical and social myths that underlie our misconceptions about the insane and the insanity defense and hold us in a paralytic thrall, we cannot begin to move forward." Some five years later, he began a full-length book on the insanity defense by alleging, "Our insanity defense jurisprudence is incoherent." Five years after that, he concluded that "we as a society remain fixated on the insanity defense as a symbol of all that is wrong with the criminal justice system and as a source of social and political anger." Returning to this issue two years ago, he concluded that "nothing has happened in the intervening decade to lead me to change my mind." The myths have stayed with us, and we willfully blind ourselves to the empirical and behavioral realities.

At the roots of this incoherence and fixation is our nation's irrational belief system in a series of myths about the defense, each of which has been discredited, yet each of which continues to dominate political and social discourse.

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January 26, 2016 | Permalink | Comments (0)

Lewis on Active Pursuit and Inevitable Discovery

Reginald R. Lewis has posted A Common Sense Understanding of Inevitable Discovery: Why Nix v. Williams Does Not Require Active Pursuit in the Application of the Inevitable Discovery Doctrine on SSRN. Here is the abstract:

Suppose that an officer has the requisite probable cause necessary to obtain a search warrant to seize evidence, but seizes the evidence that a search warrant would have rendered before obtaining the warrant. Should the evidence that was seized be admissible under the theory of inevitable discovery? This question is ultimately answered depending on the jurisdiction’s position on “active pursuit.” The idea of active pursuit was born out of the facts of Nix v. Williams, and has caused a divide amongst the various circuits of the United States Court of Appeals. Some have required it while others have expressly held it unnecessary.

This article is the first draw upon the Court’s dicta from Hudson v. Michigan to advance the argument that active pursuit should not be required and that the inevitable discovery doctrine should be analyzed through a “but-for” causal analysis.

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January 26, 2016 | Permalink | Comments (0)

Bean on FIFA

Bean bruceBruce W. Bean (Michigan State University - College of Law) has posted An Interim Essay on FIFA's World Cup of Corruption: The Desperate Need for International Corporate Governance Standards at FIFA (ILSA Journal of International & Comparative Law, Vol. 22, 2016) on SSRN. Here is the abstract:

Played by hundreds of millions of people in every country in the world, from four-year old girls and boys to millionaire superstars, “football” (the term used throughout the world to refer to the game North Americans and Samoans call “soccer”) is unquestionably the world’s most popular sport. Since 1904 international football has been under the administration of the Fédération Internationale de Football Association, commonly known as FIFA, and now comprised of 209 national football associations.

In 1977 the Brazilian football legend, Pelé, published My Life and the Beautiful Game. The phrase “beautiful game” has long been synonymous with football. In 2014 a WikiLeaks-type whistleblower leaked “hundreds of millions” of documents to Heidi Blake and Jonathan Calvert, journalists at the London Sunday Times. Early in 2015 they published The Ugly Game: The Corruption of FIFA and the Qatari Plot to Buy the World Cup, describing a not-very-beautiful sport. A partial explanation for these different views is the increase in globalization and commercialization of football during the intervening four decades.

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January 26, 2016 | Permalink | Comments (0)

Monday, January 25, 2016

"Will 'deal' with prosecutor sink Cosby case?"


And it seems that the terms of the verbal agreement were that if Cosby gave up his constitutional rights and gave deposition testimony in a civil case, there would not be a criminal case against him.

This is unfamiliar legal ground. Some say the "non-prosecution agreement" is unenforceable. As for me? It appears there was a valid non-prosecution agreement, or at least an enforceable promise not to prosecute. But, that doesn't mean that the court will dismiss the case.

The district attorney's office will argue that there was never any valid, binding non-prosecution agreement. It will claim that even if there were loose discussions about forgoing criminal charges, the non-prosecution agreement failed to comply with procedural criteria -- in other words, putting it in writing.

January 25, 2016 | Permalink | Comments (0)

Opinion in computer access case holding that sufficiency claim measured against statute, not jury instructions, and that statute of limitations argument waivable

Justice Thomas delivered an opinion for a unanimous court in Musacchio v. United States.

January 25, 2016 | Permalink | Comments (0)

Opinion giving retroactive effect on state collateral review to decision on mandatory life without parole for juveniles

Justice Kennedy delivered the opinion of the Court in Montgomery v. Louisiana. Justice Scalia filed a dissenting opinion joined by Justices Thomas and Alito. Justice Thomas also filed a dissenting opinion.

January 25, 2016 | Permalink | Comments (0)

Sunday, January 24, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 142 The Constitution and Revenge Porn
John A. Humbach
Pace University School of Law
Date posted to database: 22 Dec 2015 
2 124 Neuroscience, Free Will, and Criminal Responsibility
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 9 Dec 2015 
3 68 Addiction, Choice and Criminal Law
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 16 Dec 2015 
4 66 Affirmative Consent
Deborah Tuerkheimer
Northwestern University - School of Law
Date posted to database: 2 Jan 2016 
5 62 Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket
Myriam E. Gilles
Benjamin N. Cardozo School of Law
Date posted to database: 6 Dec 2015 
6 53 Conceptualizing Rape as Coerced Sex
Scott Allen Anderson
University of British Columbia (UBC) - Department of Philosophy
Date posted to database: 23 Nov 2015 
7 52 Commentary: Reflections on Remorse
Stephen Morse
University of Pennsylvania Law School
Date posted to database: 4 Dec 2015 
8 46 Consenting to Computer Use
James Grimmelmann
University of Maryland Francis King Carey School of Law
Date posted to database: 5 Jan 2016 
9 45 Mens Rea and Mental Disorder
Craig A. Stern
Regent University School of Law
Date posted to database: 15 Dec 2015 
10 43 Federal White Collar Crime: Six Case Studies Drawn from Ongoing Prosecutions to Protect Public Health, Worker and Consumer Safety, and the Environment
Rena I. Steinzor
University of Maryland Francis King Carey School of Law
Date posted to database: 25 Nov 2015 

January 24, 2016 | Permalink | Comments (0)

Saturday, January 23, 2016

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here. The usual disclaimers apply.

Rank Downloads Paper Title
1 498 The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment
James J. Duane
Regent University - School of Law
Date posted to database: 7 Jan 2016 
2 294 The Path to Exoneration
Jon B Gould and Richard A. Leo
American University - School of Public Affairs and University of San Francisco - School of Law
Date posted to database: 24 Nov 2015 
3 183 What's Missing from Sexual Assault Prevention and Response
Reggie D. Yager
Government of the United States of America - Judge Advocate General’s Corps
Date posted to database: 3 Dec 2015 
4 122 Civil Forfeiture and the Constitution
Caleb Nelson
University of Virginia School of Law
Date posted to database: 11 Dec 2015 
5 116 Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons
Neil L. Sobol
Texas A&M University - School of Law
Date posted to database: 16 Dec 2015 
6 110 Privacy in Public Spaces: What Expectations of Privacy Do We Have in Social Media Intelligence?
Lilian Edwards and Lachlan Urquhart
University of Strathclyde Law School and University of Nottingham, School of Computer Science
Date posted to database: 16 Dec 2015 
7 100 Democratic Policing
Barry Friedman and Maria Ponomarenko
New York University School of Law and New York University School of Law
Date posted to database: 25 Nov 2015 
8 99 Negotiating Accuracy: DNA in the Age of Plea Bargaining
Alexandra Natapoff
Loyola Law School Los Angeles
Date posted to database: 20 Nov 2015 
9 79 In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems
Maximo Langer
University of California, Los Angeles (UCLA) - School of Law
Date posted to database: 17 Dec 2015 
10 114 Conviction Review Units: A National Perspective
John Hollway
University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice
Date posted to database: 24 Dec 2015 

January 23, 2016 | Permalink | Comments (0)

Aceves on Criminal Liability for Torture

Aceves williamWilliam Aceves (California Western School of Law) has posted United States v. George Tenet: A Federal Indictment for Torture (New York University Journal of International Law and Politics (JILP), Vol. 48, No. 1, 2015) on SSRN. Here is the abstract:

This article examines the criminal liability of George Tenet, who served as the Director of Central Intelligence during the early years in the War on Terror. Tenet was responsible for the development of the CIA’s Detention and Interrogation Program and the use of enhanced interrogation techniques. These techniques, which included waterboarding, beatings, stress positions, and sleep deprivation, caused severe physical and psychological harm to detainees. Tenet personally authorized the use of enhanced interrogation techniques on “high value” detainees who were held at CIA black sites. He also received detailed reports documenting the interrogation sessions. The article proposes a federal criminal indictment of Tenet based on the torture of four detainees: Abu Zubaydah, Khalid Shaykh Muhammad, Abd al-Rahim al-Nashiri, and Ramzi Bin Al-Shibh. Tenet is charged with conspiracy to commit torture and four separate counts of torture under U.S. law. The indictment references evidence that appears in the December 2014 report by the Senate Select Committee on Intelligence regarding the CIA’s Detention and Interrogation Program and other declassified sources. Under the guise of enhanced interrogation techniques, Tenet subjected the detainees to horrific treatment. They were, in fact, tortured.

January 23, 2016 | Permalink | Comments (0)

Friday, January 22, 2016

More Concerns Expressed about ALI’s “Affirmative Consent” Project by ALI Members

Last week, I posted about the latest iterations of the ALI’s draft provisions on sexual assault (the most recent of which was circulated in mid-December) and linked to my recent draft, Backpedalling in Place: The ALI’s Move from “Affirmative” to “Contextual” Consent. In short, my view is that the latest drafts differ only modestly from the approach of earlier drafts that have been sharply criticized, and that the differences do not address most of the problems.

This week, multiple ALI members provided me with a memorandum signed by more than 80 ALI members expressing concerns with the most recent draft. The memorandum follows the jump.

To an ALI outsider, the schedule for producing drafts seems a bit unusual. A draft was prepared in September 2015, shortly before a scheduled meeting of advisers to the group. Though the ALI website shows no other scheduled meeting of advisers, the December 2015 draft, labelled a “Council draft” and purporting to take a much different approach, was prepared for consideration by the ALI Council, the group that oversees all ALI projects. The Council draft apparently was presented to the Council this week before being presented at a meeting of the project’s advisers.

A large number of ALI members submitted an earlier memorandum expressing concerns about earlier drafts.


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January 22, 2016 | Permalink | Comments (1)

"How the Supreme Court can change politics as usual"

Jeffrey Bellin (William & Mary Law School) has this piece in The Washington Post. In part:

The Supreme Court does not take many cases, but it was right to agree last week to review the public-corruption convictions of former Virginia governorRobert F. McDonnell . While the conduct that led to the case against McDonnell was shameful, its criminality remains unclear. And since it is difficult as a legal matter to distinguish McDonnell’s actions from those routinely engaged in by American politicians, guidance is sorely needed.

January 22, 2016 | Permalink | Comments (0)

Thursday, January 21, 2016

Yilmazkuday on Pro-Competitive Effects of Anti-Crime Laws

Hakan Yilmazkuday (Florida International University) has posted Pro-Competitive Effects of Anti-Crime Laws on SSRN. Here is the abstract:

The fear of becoming a victim of crime imposes costs on individuals that act like barriers to retail trade. This paper attempts to measure the effects of the removal of such barriers on the degree of competition among retailers. A difference-in-difference approach is employed to identify the effects of an anti-panhandling ordinance issued by the County of Sacramento on gasoline prices at the retail level, by considering the gas stations in neighbor counties as the control group of a natural experiment. The results show that the anti-panhandling ordinance has increased the competition (measured by the reduction in retail prices) among gas stations in the County of Sacramento.

January 21, 2016 | Permalink | Comments (0)

Cruz on Policing v. Schooling

Ivan G. Lopez Cruz (Indiana University Bloomington - Center for Applied Economics and Policy Research) has posted Policing, Schooling and Human Capital Accumulation on SSRN. Here is the abstract:

A substantial body of empirical and policy literature argues that schooling can be a powerful tool against criminality and violence. On the other hand, recent work has demonstrated that low levels of public safety can have serious detrimental effects on educational outcomes. This paper develops a model to analyze the roles that investments in education and in public safety have for student's educational attainment. The model captures the main stylized facts of the literature and explores the optimal balance between investment in policing and schooling. The model analyses individual decisions to accumulate violence related skills ("street capital") at the expense of human capital accumulation in a setting where property rights require private efforts to be enforced. The model assumes that inhabitants of a region decide, during childhood, to allocate efforts to schooling and/or learning "street skills" that, as adults, will serve them in resolving violent conflicts in their favor. Hence, if the level of public safety, which is the only mean to prevent violent confrontations, is low, the incentives to study will also be lower. Moreover, one of the results establishes that those agents who accumulate more human capital, and hence are more productive, suffer a comparative disadvantage in exerting violence because their opportunity cost of doing so is higher. Therefore, if investments in public education increase the productivity spread between adult agents, the incentives to study might decrease and lead to a lower output, showing that the benefits of schooling can only be seized if they are complemented with enough public safety.

January 21, 2016 | Permalink | Comments (0)

Guest post: Are We Too Ready to Provide Trigger Warnings in Teaching Sexual Assault?

Subotnik danFrom Dan Subotnik (Touro Law):

At a program several weeks ago at AALS on teaching sexual assault, the various speakers seemed unanimous not only on the need to confront this difficult subject in criminal law head-on but also on the need to issue trigger warnings to protect those who had experienced such a crime and might be not be able to handle the discussion. The panel talked about the kinds of accommodation they would and would not make for these students.

Expressing dubiousness in the question-and- answer period about the enterprise of trigger warnings—based on thirty years of teaching women who seemed no less emotionally strong than the men in my classes – I pointed specially to estates and trusts, which I have taught to large classes for twenty years.  At the program microphone, I announced that not once has a student indicated that I was too close for comfort when I spoke about death of parents, siblings, disinheritance, and family squabbles over decedent property taken or promised.

A panel member responded that death was inevitable while rape was not, so students could be expected to brace themselves for such conversations. But the fact of the matter is that rape is so heavily covered in the media today that it would be hard to expect rape to be ignored in a criminal law class --although I hear tell that some professors do choose to avoid it. 

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January 21, 2016 | Permalink | Comments (1)

Gouldin on Redefining Reasonable Seizures

Gouldin_laurynLauryn P. Gouldin (Syracuse University College of Law) has posted Redefining Reasonable Seizures on SSRN. Here is the abstract:

The government’s power to seize individuals who are suspected of crimes — by arresting, stopping, or otherwise detaining them — has expanded significantly in the twenty-first century. The Supreme Court’s gradual redefinition of what constitutes a reasonable Fourth Amendment seizure has occurred without meaningful evaluation of whether the government needs additional seizure or detention power.

There are key differences between search and seizure doctrine that make the development of a general and unifying explanatory theory of modern Fourth Amendment search and seizure trends difficult, if not impossible. These differences suggest that a focused, independent analysis of Fourth Amendment seizure developments (uncoupled from search- and privacy-focused analyses) is overdue.

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January 21, 2016 | Permalink | Comments (0)