CrimProf Blog

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

Monday, December 4, 2017

Donnelly-Lazarov on Intention

Bebhinn Donnelly‐Lazarov (University of Surrey - Faculty of Management & Law) has posted an abstract of Intention in Criminal Law: The Challenge from Non‐Observational Knowledge (Ratio Juris, Vol. 30, Issue 4, pp. 451-470, 2017) on SSRN. Here is the abstract:
 
Intention is at the heart of criminal law. If it is not the mens rea requirement found most often in offences, it is still the standard against which other grades of fault tend relatively to be judged. It has generated much controversy, as the crucial question, "Did the defendant intend X?" is resistant to clear answers. This paper argues that intention‐questions are difficult because intention is not the thing law takes it to be: Importantly, contrary to law's assumptions, it is neither a state of mind nor is it connected in an exclusive manner to the reasons for which we act.

December 4, 2017 | Permalink | Comments (0)

Lynch on Sentencing Youth for Murder

Nessa Lynch (Victoria University of Wellington - Faculty of Law) has posted Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder ((2018) 57 The Howard Journal of Crime and Justice) on SSRN. Here is the abstract:
 
This paper considers the principled approach to the sentencing of young people, requiring the recognition of the lesser capacity and culpability of the offender due to their personal characteristics. The author uses New Zealand as a case study to discuss whether, and how, judges would exercise this discretion for young people convicted of murder. This paper focuses on a jurisdiction which combines a highly punitive adult justice system and a tolerant, progressive youth justice system.

December 4, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
250
2.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Vanderbilt University - Law School
176
3.

Corpus Linguistics as a Tool in Legal Interpretation

Brooklyn Law School and Hofstra University
166
4.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
164
5.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
146
6.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
126
7.

The Real Law of Virtual Reality

Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
118
8.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
85
9.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
78
10.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
73

December 4, 2017 | Permalink | Comments (0)

Sunday, December 3, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402

The George Washington University Law School
1,319
2.

Understanding 'Sanctuary Cities'

University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School
257
3.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
249
4.

State Criminal Appeals Revealed

Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students
138
5.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
138
6.

Criminal Justice, Inc.

University of Chicago Law School
129
7.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
125
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
90
9.

Immigration Defense Waivers in Federal Criminal Plea Agreements

University of Texas at Austin - School of Law, University of Texas School of Law and University of Texas at Austin - School of Law
84
10.

Blank Slates

University of Utah - S.J. Quinney College of Law
78

December 3, 2017 | Permalink | Comments (0)

Saturday, December 2, 2017

Next week's criminal law/procedure argument

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

Wednesday

  • Marinello v. U.S.: Whether a conviction under 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action.

December 2, 2017 | Permalink | Comments (0)

Friday, December 1, 2017

"DOJ Issues New Guidelines on FCPA"

Ellen Podgor has this post at White Collar Crime Prof Blog, linking to and excerpting Rod Rosenstein's remarks regarding the guidelines. From the excerpt:

We expect that these adjustments, along with adding the FCPA Corporate Enforcement Policy to the U.S. Attorneys’ Manual, will incentivize responsible corporate behavior and reduce cynicism about enforcement.

December 1, 2017 | Permalink | Comments (0)

Smith on Criminal Proceeding in the New Zealand Supreme Court

A. T. H. Smith (Victoria University of Wellington - Faculty of Law) has posted Criminal Proceedings in the New Zealand Supreme Court: The First Ten Years (Eds A Stockleyand M Littlewood, The New Zealand Supreme Court – the First Ten Years (2015)) on SSRN. Here is the abstract:
 
In this paper, the author presents some overarching observations about the progress of criminal proceedings over the lifespan of the newly minted New Zealand Supreme Court. This includes examining the difference between the Crimes Act 1961, as a mature code of substantive criminal law, and the unsettled laws of evidence and procedure. This paper discusses how New Zealand has deviated from the common law of crime by adopting a Criminal Code, and the subsequent effect on decisions of the courts.

December 1, 2017 | Permalink | Comments (0)

Analyses of the Carpenter oral argument

ScotusBlog collects various commentaries here.

December 1, 2017 | Permalink | Comments (0)

"North Carolina’s plan to stymie judges who waive fines and fees"

From The Marshall Project, via the NACDL news scan:

The law is believed to be the first of its kind in the country. It runs counter to reform efforts in other states that are attempting to reduce the number of people jailed because they are unable to pay fines or fees or make bail.

. . .

North Carolina’s new law would not explicitly prohibit waivers for the poor, but would throw up a serious impediment, requiring judges to give 15 days notice to all affected agencies before issuing a waiver.In North Carolina, that would be a lot of notices. An offender in the state is subject to a vast array of fees, from $5 for being arrested to $200 for failing to appear.

The state charges a fee of $7.50 to underwrite the police and sheriff retirement funds and a fee of up to $40 a day for taking up space in jail. Perhaps inevitably, there is a $50 fee for failing to pay a fee.

December 1, 2017 | Permalink | Comments (1)

Thursday, November 30, 2017

Humphreys on Sports Betting Regulation

Brad R. Humphreys (West Virginia University - Department of Economics) has posted An Overview of Sports Betting Regulation in the United States on SSRN. Here is the abstract:
 
The United States employs an ad hoc, unconventional method of regulating sports betting, banning it almost everywhere while granting a monopoly to firms in a single state, Nevada. This approach encourages illegal sports betting markets, ignores negative externalities, and generates welfare losses among the large population of responsible recreational gamblers. I review the current state of sports betting regulation in the U.S. and assess its economic viability in advance of the Supreme Court of the United States decision on the landmark Christie v. National Collegiate Athletic Association case.

November 30, 2017 | Permalink | Comments (0)

"Thoughts on property and positive law after the Carpenter oral argument"

Will Baude has this post at The Volokh Conspiracy, excerpting and analyzing the transcript after this introduction:

Justice Neil Gorsuch seems to have surprised and concerned some observers during yesterday’s oral arguments in Carpenter v. United States. He came out with a number of questions quite skeptical of the government’s position, but focusing on reasons that Carpenter might have a property right in his personal cell-site records. These included both provisions of federal law and possibly state common law.

November 30, 2017 | Permalink | Comments (0)

"The Impenetrable Program Transforming How Courts Treat DNA Evidence"

From Wired, via the NACDL news feed:

But most of these samples couldn’t be analyzed with typical methods: They were too fragile or included a mix of DNA from multiple people, a combination that makes analysis difficult.

So the lab turned to TrueAllele, a program sold by Cybergenetics, a small company dedicated to helping law enforcement analyze DNA where regular lab tests fail. They do it with something called probabilistic genotyping, which uses complex mathematical formulas to examine the statistical likelihood that a certain genotype comes from one individual over another. It’s a type of DNA testing that’s becoming increasingly popular in courtrooms.

. . .

But now legal experts, along with Johnson’s advocates, are joining forces to argue to a California court that TrueAllele—the seemingly magic software that helped law enforcement analyze the evidence that tied Johnson to the crimes—should be forced to reveal the code that sent Johnson to prison. This code, they say, is necessary in order to properly evaluate the technology. In fact, they say, justice from an unknown algorithm is no justice at all.

November 30, 2017 | Permalink | Comments (0)

Tranter on Autonomous Cars

Kieran Mark Tranter (Griffith University - Griffith Law School) has posted The Challenges of Autonomous Motor Vehicles for Queensland Road and Criminal Laws on SSRN. Here is the abstract:
 
This article examines the challenges of autonomous motor vehicles for Queensland road and criminal laws. Autonomous vehicles refer to motor vehicles where driver decision making has been augmented or replaced by intelligent systems. Proponents of autonomous vehicles argue that they will virtually eliminate road accidents, boost productivity and provide significant environmental benefits. The key issue is that autonomous vehicles challenge the notion of human responsibility which lies at the core of Queensland’s road and criminal laws. The road rules are predicated on a driver in control of the vehicle, the intoxication regime is concerned with the person in charge of the vehicle and the dangerous driving offences require a person who operates a vehicle. Notwithstanding this challenge, it can be seen that much of Queensland’s law is adaptable to autonomous vehicles. However, there are some identifiable anomalies that require reform.

November 30, 2017 | Permalink | Comments (0)

Shaley on Solitary Confinement in Europe

Sharon Shalev (SolitaryConfinement.org) has posted Solitary Confinement: The View from Europe (Canadian Journal of Human Rights (2015) 4:1 Can J Hum Rts) on SSRN. Here is the abstract:
 
This article examines the extent and nature of the use of solitary confinement in Europe. It offers insight into how different jurisdictions manage those they classify as requiring longer term segregation from the wider prison population, and asks if and how such practices differ to those prevalent in the US “supermax” prisons - massive isolation prisons where upwards of 25,000 human beings are confined in conditions of extreme isolation and abject deprivation for prolonged stretches of time for ill defined reasons and without clear exit routes. The article concludes by suggesting that though things are done on a much smaller scale and though some of the peculiarly extreme way of “doing” solitary confinement in the American supermax does not appear to have caught up in European prisons, solitary confinement is a common prison practice in Europe.

November 30, 2017 | Permalink | Comments (0)

Mannheimer on A Unified Approach to Fourth Amendment Search Doctrine

MannheimerMichael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted A Unified Approach to Fourth Amendment Search Doctrine on SSRN. Here is the abstract:
 
In examining the threshold question for Fourth Amendment analysis – what constitutes a search? – both courts and commentators have generally premised their analysis on a sharp dichotomy between an approach based on trespass to real or personal property, on the one hand, and one grounded in non-property-based expectations of privacy, on the other. The trespass-based regime seemed to have given way in 1967 to the “reasonable expectation of privacy” standard. But the resurgence of a trespass-based approach in recent Supreme Court cases has served to highlight the supposed distinction between the two methodologies.

When subjected to close scrutiny, the dichotomy between the two approaches becomes highly questionable. Whether analyzed in terms of trespass or reasonable expectations of privacy, the question in close cases concerning whether government conduct constitutes a Fourth Amendment search comes down to the same essential touchstone: social norms governing privacy and seclusion.

Continue reading

November 30, 2017 | Permalink | Comments (0)

Wednesday, November 29, 2017

Yeager on Impossibility

Yeager danielDaniel B. Yeager (California Western School of Law) has posted Decoding the Impossibility Defense (University of Louisville Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. 

Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters.

November 29, 2017 | Permalink | Comments (0)

Duncan on Amanda Knox and Strangeness

 
One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. 

While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique.

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November 29, 2017 | Permalink | Comments (0)

Two articles on money bail reform

Carpenter argument transcript

is available here.

November 29, 2017 | Permalink | Comments (0)

Kwan on Mistake of Age

 
Concerning the mistake of age defence in Canada under section 150.1(4) Criminal Code, RSC 1985, c. C-46 in relation to sexual offences against under-aged juveniles, the correct test for the "all reasonable steps" analysis is "objective all reasonable steps" test. However, the Canadian courts have erroneously mixed it up with 3 other different tests, namely "honest belief", "reasonable belief" and "quasi-objective all reasonable steps" test. The 4 tests are legally and conceptually very different, but the courts have not noticed it. There are significant implications in applying the wrong test, which will affect the factual analysis and reduce the level of protection to juveniles intended by the legislature.

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November 29, 2017 | Permalink | Comments (0)