CrimProf Blog

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

A Member of the Law Professor Blogs Network

Tuesday, August 12, 2014

Call for papers on "The Snowden Effect"

The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee. The review's call for papers follows the jump.

Continue reading

August 12, 2014 | Permalink | Comments (0)

"F.B.I. Steps In Amid Unrest After Police Kill Missouri Youth"

From The New York Times:

The F.B.I. on Monday opened a civil rights inquiry into the fatal shooting by a police officer of an unarmed black teenager here as protests bubbled into a third night in this St. Louis suburb.

. . .

The circumstances of Mr. Brown’s death on Saturday afternoon as he and a friend walked from a convenience store were disputed. The police said he had hit the officer who shot him; his family and friends denied that.

In a local television interview, the friend who was walking with him, Dorian Johnson, said the officer opened fire when the young men refused to move from the middle of the street to the sidewalk. He said Mr. Brown’s hands were over his head. The autopsy showed Mr. Brown was shot a number of times.

August 12, 2014 | Permalink | Comments (0)

Joy & Uphoff on Waivers and Effective Assistance of Counsel in Plea Bargaining

Peter A. Joy and Rodney J. Uphoff (Washington University in Saint Louis - School of Law and University of Missouri School of Law) have posted Systemic Barriers to Effective Assistance of Counsel in Plea Bargaining on SSRN. Here is the abstract:

In a trio of recent cases, Padilla v. Kentucky, Missouri v. Frye, and Lafler v. Cooper, the U.S. Supreme Court has focused its attention on defense counsel's pivotal role during the plea bargaining process . At the same time that the Court has signaled its willingness to consider ineffective assistance of counsel claims at the plea stage, prosecutors are increasingly requiring defendants to sign waivers that include waiving all constitutional and procedural errors, even unknown ineffective assistance of counsel claims such as those that proved successful in Padilla and Frye. Had Jose Padilla and Galin Frye been forced to sign a waiver of any ineffective assistance of counsel claim as a condition of entering their pleas, and if the Supreme Court approved of such waivers, then neither Padilla nor Frye would have secured the relief the Court held that they deserved. 

Waivers of ineffective assistance of counsel claims pose both legal and ethical issues.

Continue reading

August 12, 2014 | Permalink | Comments (0)

Drinan on The Miller Revolution

Drinan caraCara H. Drinan (Catholic University of America (CUA)) has posted The Miller Revolution on SSRN. Here is the abstract:

In Miller v. Alabama, the Supreme Court held that the Eighth Amendment prohibits mandatory life without parole sentences for juveniles – even those convicted of homicide. In this Article, I argue that the Miller decision was, indeed, revolutionary and that, if lower courts and legislators heed the moral leadership of the Miller Court, they could set in motion a return to the juvenile justice model this country began with more than a century ago. 

Continue reading

August 12, 2014 | Permalink | Comments (0)

Monday, August 11, 2014

Papailiou, Yokum & Robertson on New Jersey's Novel Eyewitness Instruction

Athan P. Papailiou David V. Yokum and Christopher T. Robertson (University of Arizona , University of Arizona - James E. Rogers College of Law and University of Arizona - James E. Rogers College of Law) have posted The Novel New Jersey Eyewitness Instruction Induces Skepticism But Not Sensitivity on SSRN. Here is the abstract:

In recent decades, social scientists have shown that the reliability of eyewitness identifications is much worse than laypersons tend to believe. The courts have only recently begun to react to this evidence, and New Jersey has, in particular, reformed its instructions to jurors, notifying them about the frailties of human memory, the potential for lineup administrators to nudge witnesses towards suspects that they police have already identified, and the advantages of certain lineup procedures including blinding of the administrator. 

Our experiment tested the efficacy of New Jersey’s real-world intervention.

Continue reading

August 11, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 346 The Failure of Mitigation? 
Robert J. SmithSophie Culland Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 [2nd last week]
2 342 Katz Has Only One Step: The Irrelevance of Subjective Expectations 
Orin S. Kerr 
George Washington University - Law School 
Date posted to database: 13 Jun 2014 [1st last week]
3 311 Gifts, Hospitality & the Government Contractor 
Jessica Tillipman 
The George Washington University Law School 
Date posted to database: 18 Jul 2014 [new to top ten]
4 254 Sales Suppression as a Service (SSaaS) & the Apple Store Solution 
Richard Thompson Ainsworth 
Boston University - School of Law 
Date posted to database: 6 Jun 2014 [3rd last week]
5 240 The Consequences of Error in Criminal Justice 
Daniel Epps 
Harvard Law School 
Date posted to database: 9 Jul 2014 [4th last week]
6 121 Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons 
Joan Petersilia and Francis T. Cullen 
Stanford University and University of Cincinnati 
Date posted to database: 24 Jun 2014 [5th last week]
7 115 Moneyball Sentencing 
Dawinder S. Sidhu 
University of New Mexico - School of Law 
Date posted to database: 12 Jul 2014 [new to top ten]
8 113 State Law Reporting and Disclosure Mandates Under ERISA 
Albert Feuer 
Law Offices of Albert Feuer 
Date posted to database: 16 Jul 2014 [6th last week]
9 101 White Collar Over-Criminalization: Deterrence, Plea Bargaining, and the Loss of Innocence 
Lucian E. Dervan 
Southern Illinois University School of Law 
Date posted to database: 28 Jun 2014 [8th last week]
10 92 Morse, Mind, and Mental Causation 
Michael S. Pardo and Dennis Patterson 
University of Alabama School of Law and European University Institute 
Date posted to database: 17 Jul 2014 [new to top ten]

August 11, 2014 | Permalink | Comments (0)

Sunday, August 10, 2014

"May the government try John Hinckley for James Brady’s murder?"

Eugene Volokh has this interesting post at The Volokh Conspiracy, discussing double jeopardy issues and the year-and-a-day rule.

August 10, 2014 | Permalink | Comments (0)

Saturday, August 9, 2014

"Minnesota Expungement Bill Example of Bipartisan Success"

From ACSBlog, by the legislation's sponsor:

It is very difficult for a former offender to integrate into our communities when an overwhelming majority of employers refuse to hire anyone with an arrest or criminal record, regardless of how long ago it was or the crime’s relevance to the position for which an applicant is being considered. A key provision in my expungement bill will change that. It requires business screening services to delete expunged records if they know a criminal record has been sealed, expunged or is the subject of a pardon.

In addition, the expungement bill passed in 2014 will allow people convicted of misdemeanors, gross misdemeanors and some low-level felonies to get their records sealed. My expungement bill maintains public safety while providing redemptive justice for all Minnesotans. Sealing or limiting access to criminal records is an important component in successful reintegration into society.

August 9, 2014 | Permalink | Comments (0)

Friday, August 8, 2014

"New York mayor formally drops appeal in NYPD stop-and-frisk lawsuit"

From Jurist:

New York City on Wednesday formally dropped [motion, PDF] the city's appeal of rulings in lawsuits [CCR backgrounder] involving the New York Police Department's (NYPD) [official website] use of stop-and-frisk tactics. Mayor Bill De Blasio's[official website] administration agreed to end the lawsuit against the NYPD after reaching a settlement [New York Post report] requiring three years of NYPD oversight by a court-appointed monitor. The city filed a motion to withdraw its appeal in the US Court of Appeals for the Second Circuit [official website].

August 8, 2014 | Permalink | Comments (0)

Sklansky on Privacy and the Fourth Amendment

Sklansky davidDavid Alan Sklansky (Stanford Law School) has posted Two More Ways Not to Think About Privacy and the Fourth Amendment (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

This brief essay challenges two increasingly common ideas about privacy and the Fourth Amendment. The first is that any protections needed against government infringements of privacy in the Information Age are best developed outside of the courts and outside of constitutional law. The second is that the various puzzles encountered when thinking about privacy and the Fourth Amendment can be solved or circumvented through some kind of invocation of the past: either a focus on the text of the Fourth Amendment, or the study of its history, or an effort to preserve the amount privacy that used to exist, either when the Fourth Amendment was adopted or at some later point.

August 8, 2014 | Permalink | Comments (0)

Sankoff & Funk on Confinement as a Crime

Peter Sankoff and Adrienne Funk (University of Alberta - Faculty of Law and University of Alberta - Faculty of Law) have posted Why Should a Confinement Need to Be 'Significant' to Attract Liability? A Proposal to Clarity and Reform the Current Approach to Forcible Confinement (Criminal Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

On the surface, the crime of forcible confinement set out in s 279(2) of the Criminal Code of Canada is straightforward enough. Nonetheless, because of some strange turns in the jurisprudence, the common law now requires confinement to be of a “significant” duration before a conviction can be imposed, even though the statute says nothing along these lines. This article explores how this confusing state of affairs came to be, considers the ramifications of this development, and proposes a solution.

August 8, 2014 | Permalink | Comments (0)

Thursday, August 7, 2014

"Detroit-Area Man Convicted of Murdering Woman Who Banged on His Door"

From The New York Times:

Mr. Wafer, an airport maintenance worker who lived alone, claimed self-defense in the shooting, testifying that he was awakened about 4:30 a.m. by violent pounding on his front and side doors. He panicked, he said, and within minutes scrambled for his shotgun, believing that someone was attempting to break into his home, a small bungalow in Dearborn Heights, just across the city line from Detroit.

But after less than two days of deliberations, the jury appeared to agree with the prosecution that Mr. Wafer had acted recklessly, killing Ms. McBride with a single shotgun blast through his locked screen door rather than calling the police and seeking help.

August 7, 2014 | Permalink | Comments (0)

Turner on Interstate Conflict and Cooperation

Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Interstate Conflict and Cooperation in Criminal Cases: An American Perspective (European Criminal Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions. These competing interests have produced relatively uniform rules on extradition, but much more diverse and fragmented laws concerning the gathering of evidence, the admissibility of evidence, and the recognition of foreign penal judgments. 

Continue reading

August 7, 2014 | Permalink | Comments (0)

Conflicting views on the Willingham execution

Jonathan Adler has this post at The Volokh Conspiracy commenting on a recent article and concluding that the "materials may not make a compelling case that Willingham was innocent, but it certainly does show there should have been reasonable doubt about his guilt." Crime & Consequences collects its prior posts disputing the claim.

August 7, 2014 | Permalink | Comments (0)

Gordon on The Forgotten Nuremberg Hate Speech Case

Gregory S. Gordon (University of North Dakota - School of Law) has posted The Forgotten Nuremberg Hate Speech Case: Otto Dietrich and the Future of Persecution Law (Ohio State Law Journal, Vol. 75, No. 3, 2014) on SSRN. Here is the abstract:

Among international jurists, the conventional wisdom is that atrocity speech law sprang fully formed from two judgments issued by the International Military Tribunal at Nuremberg (IMT): the crimes against humanity conviction of Nazi newspaper editor Julius Streicher, and the acquittal on the same charge of Third Reich Radio Division Chief Hans Fritzsche. But the exclusive focus on the IMT judgments as the founding texts of atrocity speech law is misplaced. Not long after Streicher and Fritzsche, and in the same courtroom, the United States Nuremberg Military Tribunal (NMT) in the Ministries Case, issued an equally significant crimes against humanity judgment against Reich Press Chief Otto Dietrich, who was convicted despite the fact that the charged language did not directly call for violence. So why is the Dietrich judgment, a relatively obscure holding, issued sixty-five years ago, so significant today, after the development of a substantial body of ad hoc tribunal jurisprudence on atrocity speech? It is because the seemingly antithetical holdings in Streicher and Fritzsche are more than just the subject of academic discourse. The next generation of atrocity speech decisions, it turns out, is at loggerheads about the relationship between hate speech and persecution as a crime against humanity.

Continue reading

August 7, 2014 | Permalink | Comments (0)

Wednesday, August 6, 2014

Wilkes on Habeas Corpus History

Wilkes donaldDonald E., Jr. Wilkes (University of Georgia Law School) has posted Habeas Corpus Proceedings in the High Court of Parliament in the Reign of James I, 1603-1625 (54 Am. J. Legal Hist. 200 (2014)) on SSRN. Here is the abstract:

English parliamentary habeas corpus proceedings have been neglected by scholars. This Article ends that neglect. This Article focuses on the parliamentary habeas corpus proceedings that occurred in the reign of King James. The Article corrects several misunderstandings relating to the history of the writ of habeas corpus in England and to the history of the English Parliament (which in the seventeenth century commonly was referred to as the High Court of Parliament).

Continue reading

August 6, 2014 | Permalink | Comments (0)

Bartels on Sentencing Data in Australia

Lorana Bartels (University of Canberra - School of Law and Justice) has posted Sentencing Statistics, Sentencing Councils and the Quest for Data in the Australian Capital Territory (In P Easteal (ed) Justice Connections (Cambridge Scholars Publishing, 2013) pp 60-84) on SSRN. Here is the abstract:

This chapter examines the collection and dissemination of sentencing data in Australia, with particular emphasis on the Australian Capital Territory (ACT). It considers recent developments in the ACT, including the proposed development of a sentencing database and recent sentencing policy initiatives. The availability of public sentencing data and the role of sentencing councils in promoting public awareness and understanding of sentencing around Australia are also considered.

August 6, 2014 | Permalink | Comments (0)

Tuesday, August 5, 2014

"Visit the Wrong Website, and the FBI Could End Up in Your Computer"

From Wired:

Security experts call it a “drive-by download”: a hacker infiltrates a high-traffic website and then subverts it to deliver malware to every single visitor. It’s one of the most powerful tools in the black hat arsenal, capable of delivering thousands of fresh victims into a hackers’ clutches within minutes.

Now the technique is being adopted by a different kind of a hacker—the kind with a badge. For the last two years, the FBI has been quietly experimenting with drive-by hacks as a solution to one of law enforcement’s knottiest Internet problems: how to identify and prosecute users of criminal websites hiding behind the powerful Tor anonymity system.

August 5, 2014 | Permalink | Comments (0)

Carpenter & Stutsman on Corporate Liability Under the FCPA

William G Carpenter and Thomas Stutsman (Briol & Associates, PLLC and Department of Sociology, University of Wisconsin-Madison) have posted Corporate Liability Under the FCPA: Identifying Defense Opportunities (BENCH & BAR OF MINNESOTA, July 2014, at 24-28) on SSRN. Here is the abstract:

This article analyzes the Foreign Corrupt Practices Act (FCPA) enforcement action against Archer Daniels Midland Company to illustrate defense opportunities in FCPA cases.

August 5, 2014 | Permalink | Comments (0)

Harmon on Data on Policing

Harmon rachelRachel Harmon (University of Virginia School of Law) has posted Why Do We (Still) Lack Data on Policing? (Marquette Law Review, Vol. 96, No. 4, 2014) on SSRN. Here is the abstract:

The Wickersham Commission report on The Third Degree, found in the Commission’s famous Report on Lawlessness in Law Enforcement ended with the argument that the “real remedy” for police misconduct “lies in the will of the community,” which in turn depends on evidence about the nature and extent of police abuse. In this brief essay, I argue that the report’s call for information about policing has gone largely unanswered. Eighty years later, we still lack enough data about what the police do to shape their conduct effectively. Public policy and legal decisions about policing depend heavily on empirical judgments, but police chiefs and local government officials do not generate sufficient data about the police absent external regulation. Unfortunately, the Bureau of Justice Statistics and the Federal Bureau of Investigation, the primary federal agencies charged with collecting information on policing, have focused on serving the law enforcement community rather than facilitating governance of the police. The consequence is that we do not have the information we need to secure effective and rights-protecting policing.

August 5, 2014 | Permalink | Comments (0)