CrimProf Blog

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

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Monday, December 8, 2014

MacMahon on The Inquest and the Virtues of Soft Adjudication

Paul MacMahon (London School of Economics - Law Department) has posted The Inquest and the Virtues of Soft Adjudication (Yale Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:

An inquest is a quasi-judicial proceeding resulting in a verdict as to the cause and manner of a suspicious or unusual death. Inquests are an important feature of most common-law legal systems, but have been ignored by American legal scholars for decades. In fact, inquests continue to be held in some American localities. Inquests are intriguing partly because they are inquisitorial proceedings in stereotypically adversarial common law systems. Their determinations do not directly affect anyone’s legal rights or duties, but may be highly consequential. This Article uncovers the American inquest, and explores the case for revamping and reviving the institution. Precisely because their verdicts do not carry coercive consequences, the Article contends, inquests can aim more squarely than other legal proceedings at establishing the truth about a contested event. Accordingly, they have significant advantages in the furtherance of important societal goals, including accountability for wrongful deaths, the collection and dissemination of information about risky activities, and helping the deceased’s family come to terms with a traumatic death. The Article focuses on one particular area where suitably designed inquests could be particularly effective: deaths at the hands of police and prison officers. More broadly, the inquest is an example of legal institutions providing non-binding-yet-formal-pronouncements about past events, a phenomenon I call “soft adjudication.”

December 8, 2014 | Permalink | Comments (0)

Sunday, December 7, 2014

"Mark Wahlberg should not be pardoned"

This commentary is at The Week:

In April 1988, Mark Wahlberg, 16, set upon a Vietnamese immigrant named Thanh Lam, and, with a wooden stick, beat him so severely that Lam fell to the ground, unconscious. Later that night, according to contemporaneous accounts, Wahlbergfound another Asian man, Hoa Trinh, and, calling him a "gook" and "slant eye," smashed him in the face.

. . .

His pardon application includes the following ambition: "My hope is that, if I receive a pardon, troubled youths will see this as an inspiration and motivation that they too can turn their lives around."

Interesting logic. It works better, though, with this rewrite: "My hope is that, by not seeking a pardon, troubled youths will know that their actions have repercussions, even if they later become wealthy celebrities. Although this wonderful country provides plenty of opportunity for them to turn their lives around, they can never use their renown to erase the indelible consequences of their decisions."

December 7, 2014 | Permalink | Comments (1)

"Duty to retreat ‘to the wall’"

Eugene Volokh has this post at The Volokh Conspiracy, excerpting the case report from which the phrase originated--not as a metaphor, but because the case involved retreating to an actual wall.

December 7, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 320 The Impact of Whistleblowers on Financial Misrepresentation Enforcement Actions 
Andrew C. CallGerald S. MartinNathan Y. Sharp andJaron H. Wilde 
Arizona State University (ASU) - School of Accountancy, American University - Kogod School of Business, Texas A&M University (TAMU) - Department of Accounting and University of Iowa - Henry B. Tippie College of Business 
Date posted to database: 7 Oct 2014 
2 308 Information Networks: Evidence from Illegal Insider Trading Tips 
Kenneth R. Ahern 
University of Southern California - Marshall School of Business 
Date posted to database: 18 Oct 2014 
3 195 A Conceptual Framework for the Regulation of Cryptocurrencies 
Omri Y. Marian 
University of Florida - Fredric G. Levin College of Law 
Date posted to database: 15 Oct 2014 
4 154 Laws of Cognition and the Cognition of Law 
Dan M. Kahan 
Yale University - Law School 
Date posted to database: 30 Oct 2014 [6th last week]
5 147 Why Crime Rates Are Falling Throughout the Western World 
Michael Tonry 
University of Minnesota - Twin Cities - School of Law 
Date posted to database: 9 Nov 2014 [8th last week]
6 145 Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 1 Oct 2014 [7th last week]
7 135 Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane 
Brandon Buskey and Daniel Korobkin 
ACLU and ACLU of Michigan 
Date posted to database: 14 Oct 2014 [9th last week]
8 133 Paperwork and Punishment: It's Time to Fix FBAR 
Allison Christians 
McGill University - Faculty of Law 
Date posted to database: 17 Oct 2014 [10th last week]
9 122 The Death Penalty: Should the Judge or the Jury Decide Who Dies? 
Valerie P. HansJohn H. BlumeTheodore Eisenberg,Amelia Courtney HritzSheri Lynn JohnsonCaisa E. Royerand Martin T. Wells 
Cornell University - School of Law, Cornell Law School, Cornell University - Law School, Cornell University, Cornell Law School, Cornell University and Cornell University - School of Law 
Date posted to database: 24 Oct 2014 [new to top ten]
10 115 Valuable Lies 
Ariel Porat and Omri Yadlin 
Tel Aviv University and Tel Aviv University - Buchmann Faculty of Law 
Date posted to database: 9 Oct 2014 [new to top ten]

December 7, 2014 | Permalink | Comments (0)

Saturday, December 6, 2014

"Seen It All Before: 10 Predictions About Police Body Cameras"

From The Atlantic:

But a debate very similar to the one around body cameras has happened before. Two decades ago, law enforcement agencies—and activists hoping to change them—argued about a different kind of mass video surveillance. That technology was not body cameras but in-car dashboard cameras, tape recorders that filmed the action in front of the car and preserved the audio of an officer’s interactions with citizens.

. . .

The body camera debate now, in other words, is where the dash-cam debate was 15 years ago. We can look back at the promises that dash-cam advocates made and see where they fell short—we can, in a limited way, predict the future from the past. And while history doesn’t exactly repeat itself, understanding what was supposed to happen with dash cams—and what actually did—takes us out of the the fanciful future of shining screens and dystopian omniscience and puts us in our own—where cops get tired, camera lenses get scummy, and it’s harder to fix things than it is to buy them.

December 6, 2014 | Permalink | Comments (0)

"California DNA collection law struck down"

From Jurist:

California's First District Court of Appeals [official website] on Wednesdaystruck down [opinion, PDF] a California law which requires the collection of DNA from anyone arrested on suspicion of committing a felony. The case had been remanded from the California Supreme Court [official website] with orders to affirm the law due to the decision rendered by the US Supreme Court [official website] in Maryland v. King [JURIST report]. However, the First District Court again ruled in favor of the defendant, characterizing the collection of DNA as a search that does not pass the reasonableness standard. Under the DNA collection law, the sample must be taken as soon as administratively possible, meaning that the arrestee need not be formally charged or detained. The First District Court held that a collection at that point in time is unreasonable because an arrestee that has not had a judicial determination of probable cause has a higher privacy expectation, which the collection of DNA would violate. Furthermore, should the arrestee be released without being charged, the DNA sample would still be on record and would require substantial time and effort to expunge, again further infringing upon privacy rights. Finally, the court held that the law violates the California Constitution [text] on unreasonable searches and seizures, which is more exacting than the US Constitution's Fourth Amendment [text].

December 6, 2014 | Permalink | Comments (0)

"Rolling Stone Cites Doubts on Its Story of University of Virginia Rape"

The story in The New York Times:

An account of sexual assault in Rolling Stone magazine that shook the University of Virginia and horrified readers showed signs of crumbling on Friday as the magazine admitted to doubts about its report of a premeditated gang rape at a fraternity party and the fraternity issued its first rebuttal of some details.

. . .

On Friday, the magazine published a note to readers from Will Dana, the managing editor, stating, “In the face of new information, there now appear to be discrepancies in Jackie’s account, and we have come to the conclusion that our trust in her was misplaced.” In a statement, the fraternity, Phi Kappa Psi, said it did not have a fraternity function on the weekend when the woman said she was raped upstairs in the fraternity house while a party raged downstairs. And while the article said the initiator of the assault was a fraternity member who worked as a lifeguard at a university pool, Phi Kappa Psi said its review indicated that no member of the fraternity worked there during the time in question.

December 6, 2014 | Permalink | Comments (0)

Friday, December 5, 2014

Zarrow & Milliken on Retroactivity of Substantive Rules on Collateral Review

Jason Zarrow and William Milliken have posted The Retroactivity of Substantive Rules to Cases on Collateral Review and the AEDPA, with a Special Focus on Miller v. Alabama (Indiana Law Review, Forthcoming) on SSRN. Here is the abstract:

Teague v. Lane established a general bar on the retroactive application of criminal rules in habeas proceedings. Substantive rules, however, are not subject to that bar. In this Article, we consider whether a habeas petitioner may retroactively invoke a substantive rule notwithstanding 28 U.S.C. § 2254(d)(1), a provision of the Anti-Terrorism and Effective Death Penalty Act that precludes federal courts from granting habeas relief to state prisoners unless the state-court adjudication was contrary to “clearly established Federal law.” We answer this question through the lens of the Supreme Court’s decision in Miller v. Alabama, holding that sentencing schemes mandating life-without-parole sentences for juveniles are unconstitutional. By tracing the Court’s jurisprudence on substantive rules to its historical roots, we conclude that Miller, while not substantive in toto, contains a substantive component, and that § 2254(d)(1) does not bar habeas petitioners from relying on substantive rules announced after their convictions become final.

December 5, 2014 | Permalink | Comments (0)

Ambos on Possession as a Criminal Offense

Kai Ambos (University of Goettingen (Gottingen)) has posted Possession as a Criminal Offence and the Function of the Mental Element: Reflections from a Comparative Perspective (Suzannah Linton, Gerry Simpson & William A Schabas (eds), 'For the sake of present and future generations': Essays in Honour of Roger Clark (Brill, 2015 Forthcoming)) on SSRN. Here is the abstract:

Possession offences present many problems in terms of their foundation and their compatibility with a liberal and fair system of criminal law. I will examine in this little study the structure, rationale and concept of these offences, including their subjective side. I will draw on the relevant Anglo-American and German writings on the matter which, as is mostly the case, mutually ignore each other. The paper will be structured as follows: I will first inquire into the structure and rationale of ‘possession offences’, and highlight some of the ensuing conceptual problems. I will then take a closer look at the concept of possession with regard to the conduct requirement in criminal law and the functions accorded to the mental element. Finally, I will propose a concept of possession offences compatible with a liberal system of criminal law.

December 5, 2014 | Permalink | Comments (0)

Mackey et al. on Mexico's Drug Policy Reform

Tim Mackey Daniel Werb Leo Beletsky Gudelia Rangel Jaime Arredondo and Steffanie A. Strathdee (University of California, San Diego (UCSD) - Department of Anesthesiology , University of California, San Diego – School of Medicine, Division of Global Public Health , Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences , US-Mexico Border Commission , University of California, San Diego – School of Medicine, Division of Global Public Health and University of California, San Diego – School of Medicine, Division of Global Public Health) have posted Mexico's 'Ley De Narcomenudeo' Drug Policy Reform and the International Drug Control Regime (Harm Reduction Journal, Vol 11, No. 31 (2014)) on SSRN. Here is the abstract:

It has been over half a century since the landmark Single Convention on Narcotic Drugs was adopted, for the first time unifying international drug policy under a single treaty aimed at limiting use, manufacture, trade, possession, and trafficking of opiates, cannabis, and other narcotics. Since then, other international drug policy measures have been adopted, largely emphasizing enforcement-based approaches to reducing drug supply and use. Recently, in response to concerns that the historic focus on criminalization and enforcement has had limited effectiveness, international drug policies have begun to undergo a paradigm shift as countries seek to enact their own reforms to partially depenalize or deregulate personal drug use and possession. This includes Mexico, which in 2009 enacted national drug policy reform partially decriminalizing possession of small quantities of narcotics for personal consumption while also requiring drug treatment for repeat offenders. As countries move forward with their own reform models, critical assessment of their legal compatibility and effectiveness is necessary. In this commentary we conduct a critical assessment of the compatibility of Mexico's reform policy to the international drug policy regime and describe its role in the current evolving drug policy environment.

Continue reading

December 5, 2014 | Permalink | Comments (0)

Analyses of the Garner grand jury's decision

Sean Davis has a post at The Federalist, arguing that probable cause existed to indict for reckless manslaughter, as the officer used a restraining technique that had previously been explicitly banned by the department because of its ability to cause death. Evidence Prof Blog has a more detailed analysis coming to the same conclusion. 

December 5, 2014 | Permalink | Comments (0)

Thursday, December 4, 2014

Haugh on Overcriminalization

Todd Haugh (Indiana University - Kelley School of Business) has posted SOX on Fish: A New Harm of Overcriminalization (Northwestern University Law Review Online, Vol. 109, Forthcoming) on SSRN. Here is the abstract:

The harms of overcriminalization are usually thought of in a particular way — that the proliferation of criminal laws leads to increasing and inconsistent criminal enforcement and adjudication. For example, an offender commits an unethical or illegal act and, because of the overwhelming breadth and depth of the criminal law, becomes subject to too much prosecutorial discretion or faces disparate enforcement or punishment. But there is an additional, possibly more pernicious, harm of overcriminalization. Drawing from the fields of criminology and behavioral ethics, this essay makes the case that overcriminalization actually increases the commission of criminal acts themselves, particularly by white collar offenders. This occurs because overcriminalization fuels offender rationalizations, which are part of the psychological process necessary for the commission of crime — rationalizations allow offenders to square their self-perception as “good people” with the illegal behavior they are contemplating. Overcriminalization, then, is more than a post-act concern. It is inherently criminogenic because it facilitates some of the most prevalent, and powerful, rationalizations used by would-be offenders. This phenomenon is on display in the recently argued Supreme Court case Yates v. United States. Using Yates as a backdrop, this essay explores a new way of understanding the detriments of overcriminalization.

December 4, 2014 | Permalink | Comments (0)

Schmelzer on Boumediene v. Bush

Dennis Schmelzer has posted Historically Unappealing: Boumediene v. Bush, Appellate Avoidance Mechanisms, and Black Holes Extending Beyond Guantanamo Bay (William & Mary Bill of Rights, Forthcoming) on SSRN. Here is the abstract:

This article revisits the historical questions raised by the U.S. Supreme Court in Boumediene v. Bush about the reach of the writ of habeas corpus at common law to territories like Guantanamo Bay. Despite extensive oral arguments and briefing about the significance of prior case law, both the Court’s majority and dissenting opinions concluded that there was no precedent definitively answering their historical questions about the reach of the Great Writ. Justice Kennedy suggested that there simply may not have been good historical parallels for the detentions at Guantanamo Bay given the “uniqueness” of the territory and the particular challenges of terrorism in the present age. Justice Scalia suggested that the absence of case law demonstrated on its own that the writ was simply unavailable at common law to similar foreign prisoners held outside the sovereign control of the United States or the English Crown. 

This Article provides a different explanation.

Continue reading

December 4, 2014 | Permalink | Comments (0)

Robinson on The Rise and Fall and Resurrection of American Criminal Codes

Robinson paulPaul H. Robinson (University of Pennsylvania Law School) has posted The Rise and Fall and Resurrection of American Criminal Codes on SSRN. Here is the abstract:

This brief essay summarizes the virtues of the modern American codification movement of the 1960s and 70s, putting it in a larger global context, then describes how these once-enviable codes have been systematically degraded with thoughtless amendments, a process of degradation that is accelerating each year. After exploring the political dynamics that promote such degradation, the essay suggests the principles and procedures for fixing the current codes and, more importantly, structural changes to the process that could avoid the restart of degradation in the future.

December 4, 2014 | Permalink | Comments (0)

Wednesday, December 3, 2014

"CA Lawmaker Offers New Bill to Regulate Drones" links to and excerpts this article from The Recorder:

A state lawmaker has revived legislation to curb public agencies’ use of drones just two months after Gov. Jerry Brown vetoed a bill with nearly identical aspirations.

Assemblywoman Nora Campos, D-San Jose, unveiled AB 37 on Monday, the first day of the new two-year legislative session. The bill would require law enforcement agencies to obtain warrants before using unpiloted aircraft, except in certain situations, including “hot pursuits,” and natural disasters. Drone-collected images would have to be destroyed within a year, and agencies would have to notify the public about their plans for using such aircraft.

December 3, 2014 | Permalink | Comments (0)

"No Indictment in Eric Garner Chokehold Case for N.Y.P.D. Officer"

From The New York Times:

A Staten Island grand jury voted on Wednesday not to bring criminal charges in the death of Eric Garner, a black man who died after being placed in a chokehold by a white police officer, a decision that triggered outrage by many public officials, spurred protesters to take to the streets and led President Obama to once again vow to help heal the rift that exists between the police and those they serve.

The grand jury decision was reached after months of testimony, including that provided by the officer who used the chokehold, Daniel Pantaleo. The grand jury reached its decision less than two weeks after a grand jury in Ferguson, Mo., declined to bring charges against a white officer who fatally shot an unarmed black teenager, Michael Brown.

December 3, 2014 | Permalink | Comments (1)

Delgado on Two Narratives of Youth

Delgado-RichardRichard Delgado (University of Alabama - School of Law) has posted Two Narratives of Youth (Seattle University Law Review, Vol. 37, p. xxxiii, Fall 2013) on SSRN. Here is the abstract:

In the course of a review of a colleague's book on the Beat generation of poets and novelists, I examine two narratives that society has adopted of youth -- at least certain rich and spoiled ones. 

The narratives -- boys will be boys and genius is a little bit crazy -- have implications for the police, educators, and parents inasmuch as they buy wide latitude for young people like Alan Ginsburg, Jack Kerouac, and their crowd, who went to good schools, were their teachers' darlings, drank and took drugs, and committed many crimes along the way to becoming famous. 

If you have a teen-age child or relative, you will perhaps enjoy my demonstration that teenagers are a social construction and do not really exist.

December 3, 2014 | Permalink | Comments (0)

Toone on The Absence of Agency in Indigent Defense

Robert E. Toone has posted The Absence of Agency in Indigent Defense (American Criminal Law Review, Vol. 52, No. 25, 2015) on SSRN. Here is the abstract:

Despite the fact that courts routinely hold indigent criminal defendants responsible for the acts and omissions of their lawyers under a theory of agency, there is effectively no agency in that lawyer-client relationship. Agency requires that the principal retain the right to control, but a series of Supreme Court rulings issued in the wake of Gideon v. Wainwright, 372 U.S. 335 (1963), established that the representation that indigent defendants receive comes at the cost of losing control over most aspects of their defense. This loss puts indigent defendants in a fundamentally different position than defendants who can retain their own counsel, and it is the primary reason why the overall quality of indigent defense is so poor. There is little incentive for appointed lawyers to expend effort or resources on particular cases beyond the minimum required to avoid court or employer sanction. Furthermore, the ability of lawyers to microallocate services by refusing clients’ reasonable, defense-related requests allows legislatures to starve resources at the systemic level. Ironically, it is the view of lawyers as removed and autonomous professionals who require protection from their clients’ interference that has allowed chronic underfunding and unmanageable caseloads to persist in indigent defense. A reexamination of the rules on decisionmaking control and the incentives governing the indigent defendant-lawyer relationship is in order if we are to avoid another fifty years of systemic failure.

December 3, 2014 | Permalink | Comments (0)

Miller on The Compliance Function

Miller geoffreyGeoffrey P. Miller (New York University School of Law) has posted The Compliance Function: An Overview on SSRN. Here is the abstract:

The compliance function consists of efforts organizations undertake to ensure that employees and others associated with the firm do not violate applicable rules, regulations or norms. It is a form of internalized law enforcement which, if it functions effectively, can substitute for much (although not all) of the enforcement activities provided by the state. Together with its close cousins, governance and risk-management, compliance is an essential internal control activity at corporations and other complex organizations. This paper will examine the following topics: the analysis of compliance within a general theory of enforcement; the development of the compliance function; the concept of internal control; the distribution of the compliance function among control personnel; oversight obligations of directors and executives; compliance programs and policies; internal investigations; whistleblowers; criminal enforcement; compliance outside the firm; and business ethics beyond formal compliance.

December 3, 2014 | Permalink | Comments (0)

Tuesday, December 2, 2014

"What Death Penalty Opponents Don’t Get"

Doug Berman at Sentencing Law & Policy has this post excerpting and commenting on this piece at The Huffington Post. From his comments:

I find compelling the assertion that some (many?) LWOP sentences can often involve a fate worse than death, and I find moving the concern that too much of modern opposition to "state-sponsored death" in the United States tends to advocate, both formally and functionally, for a kind of "state-sanctioned torture."

December 2, 2014 | Permalink | Comments (1)