CrimProf Blog

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

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Wednesday, July 22, 2015

Dusek on Simpler Criminal Procedure

Libor Dusek (University of Economics in Prague) has posted The Effects of a Simpler Criminal Procedure on Criminal Case Outcomes: Evidence from Czech District-Level Data on SSRN. Here is the abstract:

The paper estimates the effects of a simpler criminal procedure on case durations and the probabilities that the defendant is charged and convicted. The identification strategy exploits a policy reform in the Czech Republic as a quasi-natural experiment. The reform allowed petty offenses to be prosecuted via a simplified (fast-track) procedure but its actual implementation varied substantially across districts. The fast-track procedure reduced the average duration of the police/prosecutor phase of the criminal procedure by 27 days on average for the petty offenses. It increased the probability that the suspect is charged by 6 percentage points. The fast-track procedure released resources that could potentially be spent on prosecuting serious crimes; I therefore investigate for spillover effects. I find only weak evidence of such spillover effects on the probability that the suspect is charged and no evidence of spillover effects on other case outcomes.

July 22, 2015 | Permalink | Comments (0)

Tuesday, July 21, 2015

Alkon on Defense Discovery in Plea Bargaining

Alkon_cynthia1Cynthia Alkon (Texas A&M University School of Law) has posted The Right to Defense Discovery in Plea Bargaining Fifty Years After Brady v. Maryland (New York University Review of Law & Social Change, Vol. 38, No. 407, 2014) on SSRN. Here is the abstract:

Fifty years after Brady v. Maryland, defense attorneys around the United States continue to struggle to get basic information from prosecutors. This is even more of an issue in the ninety-four to ninety-seven percent of criminal cases that are resolved by guilty pleas. Unfortunately, the rule the Supreme Court established in Brady does little to prevent gamesmanship. In Brady, the Court required the prosecution to turn over “evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment.” The Brady standard developed, however, in the context of a case that went to trial; thus far the Court has not shown an understanding of the discovery concerns specific to plea bargaining. This failure persists despite the fact that our criminal justice system depends on plea bargaining and routinely penalizes defendants who either do not plead guilty or who do not plead guilty early in the process. As long as prosecutors do not withhold exculpatory information, Brady provides no protection against prosecutors who want to link plea offers to discovery.

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July 21, 2015 | Permalink | Comments (0)

Parness on Illinois Crime Victim Restitution

Parness jeffreyJeffrey A. Parness (Northern Illinois University - College of Law) has posted The New Illinois Constitutional Crime Victim Restitution Right: A Revolutionary Amendment? (27 DCBA Brief 26 (July 2015)) on SSRN. Here is the abstract:

Before 1992, any crime victim restitution rights in Illinois were subject to General Assembly direction and, perhaps, some nonconstitutional common law developments. A 1992 Illinois constitutional amendment expressly recognized for crime victims “the right to restitution,” though this right was only “as provided by law,” meaning continuing, and perhaps now exclusive, General Assembly authority. A 2014 Illinois constitutional amendment removed the “as provided by law” language while explicitly recognizing that a crime victim “has standing to assert” the restitution right “in any court exercising jurisdiction over the case,” albeit as nonparty. The 2014 amendment did leave to the General Assembly the responsibility for defining crime “victims.” Further, the 2014 amendment largely left the victims to their own devises since the new restitution right is not to be “construed to alter the powers, duties, and responsibilities of the prosecuting attorney” and since the “court shall not appoint an attorney for the victim.” Yet the trial court is required under the 2014 amendment to “promptly rule on a victim’s request.”

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July 21, 2015 | Permalink | Comments (0)

Monday, July 20, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 323 'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics 
Ira Mark Ellman and Tara Ellman 
Arizona State University College of Law and Independent 
Date posted to database: 9 Jun 2015 [2nd last week]
2 269 Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students 
Vanessa Walsh 
Date posted to database: 23 May 2015 [3rd last week]
3 258 Ten Years of Commitment Decisions Under Article 9 of Regulation 1/2003: Too Much of a Good Thing? 
Wouter P. J. Wils 
King's College London 
Date posted to database: 13 Jun 2015 [4th last week]
4 162 Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 9 Jul 2015 [new to top ten]
5 154 Invisible Women: Mass Incarceration's Forgotten Casualties 
Michele Goodwin 
University of California, Irvine School of Law 
Date posted to database: 10 Jun 2015 [6th last week]
6 142 Anti-Impunity and the Turn to Criminal Law in Human Rights 
Karen Engle 
University of Texas at Austin - School of Law 
Date posted to database: 15 May 2015 [7th last week]
7 127 Riders on the Storm: An Analysis of Credit Card Fraud Cases 
Ioana Vasiu and Lucian Vasiu 
Babes-Bolyai University - Faculty of Law and Independent 
Date posted to database: 4 Jun 2015 [new to the top ten]
8 125 Implementing Just Mercy 
William W. Berry 
University of Mississippi School of Law 
Date posted to database: 25 May 2015 [9th last week]
9 120 This is Your Brain on Human Rights: Moral Enhancement and Human Rights 
I. Glenn Cohen 
Harvard Law School 
Date posted to database: 28 May 2015 [10th last week]
10 116 Sex Offender Law and the Geography of Victimization 
Amanda Y. Agan and J.J. Prescott 
Princeton University - Department of Economics and University of Michigan Law School 
Date posted to database: 4 Jun 2015 [new to top ten]

July 20, 2015 | Permalink | Comments (0)

Yin on Congressional Violations of Taxpayer Privacy

George K. Yin (University of Virginia School of Law) has posted Preventing Congressional Violations of Taxpayer Privacy (Tax Lawyer, Forthcoming) on SSRN. Here is the abstract:

This article claims that the U.S. House Ways & Means Committee violated the law in 2014 when it voted (strictly along party lines) to release to the public the tax return information of 51 taxpayers. The committee acted under the belief that an obscure tax law provision authorized its action. But the provision required the committee to have a legitimate purpose for the disclosures and — incredibly — the committee failed to satisfy this almost trivial, common-sense restriction. Although the disclosures occurred in connection with the committee’s allegations of possible criminal misconduct by a high-ranking IRS official (Lois Lerner), most of the return information released was completely unrelated to the oversight objective and none of it was necessary for the committee’s claims. In fact, there does not appear to have been any purpose whatsoever for the disclosures other than possibly providing a partisan political advantage to the committee majority. Because the Speech or Debate Clause of the Constitution insulated the committee from prosecution for the violation, the incident reveals a serious gap in taxpayer privacy protections. A future tax committee, for no legitimate reason, might release with impunity the return information of any taxpayer, including sensitive information belonging to a political enemy of those controlling the committee at the time.

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July 20, 2015 | Permalink | Comments (0)

Sunday, July 19, 2015

Kerr on Use Restrictions on Nonresponsive Data

Kerr orinOrin S. Kerr (The George Washington University Law School) has posted Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data (Texas Tech Law Review (Forthcoming)) on SSRN. Here is the abstract: 

This article considers how the Fourth Amendment should limit the process of executing search warrants for digital evidence. Warrants for digital evidence are normally executed in two stages. First, agents enter the physical place to be searched and seize all computers. Second, agents conduct an electronic search for the responsive data described in the warrant. The two-stage process raises the prospect that warrants for digital evidence will be executed in ways that resemble general warrants. If agents can seize everything at the first stage, and see all the data at the second stage, what stops agents from accessing and using a target’s entire digital world every time a computer warrant is executed? 

This article argues that the Fourth Amendment should be interpreted to impose a use restriction on nonresponsive data seized during the execution of computer warrants.

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July 19, 2015 | Permalink | Comments (0)

Sosnov on Brady Rights and Remedies

Sosnov leonardLeonard Sosnov (Widener University - School of Law) has posted Brady Reconstructed: An Overdue Expansion of Rights and Remedies (New Mexico Law Review, Vol. 45, No. 1, 2014) on SSRN. Here is the abstract:

Over fifty years ago, the Supreme Court held in Brady v Maryland, 373 U.S. 83 (1963), that the Due Process Clause requires prosecutors to disclose materially favorable evidence to the defense. The Brady Court emphasized the need to treat all defendants fairly and to provide each accused with a meaningful opportunity to present a defense. While Brady held great promise for defendants to receive fundamentally fair access to evidence, the subsequent decisions of the Court have fallen short of meeting this promise.

Since Brady, the Court has limited the disclosure obligation by failing to separately determine rights and remedies. Additionally, in cases involving access to evidence that is not Brady material, the Court has required the defendant to demonstrate that the government withheld the evidence in bad faith. The Court’s commingling of rights and remedies, along with its insertion of a bad faith requirement, has made it nearly impossible for defendants to succeed on due process challenges to the government’s failure to preserve evidence or to provide evidence to the defense for examination and testing.

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July 19, 2015 | Permalink | Comments (0)

Friday, July 17, 2015

Rothstein on Confrontation and Opinion Writing

Rothstein paulPaul F. Rothstein (Georgetown University Law Center) has posted two pieces on SSRN. The first is A Comment on the Supreme Court's Decision in Ohio v. Clark: The Court's Confrontation Clause Jurisprudence Evolves. Here is the abstract:

In Ohio v. Clark, decided this week, the U.S. Supreme Court held admissible in defendant’s criminal trial for child abuse, a teacher’s testimony that the three-year-old victim, upon being pressed for an answer, told his pre-school teacher that the defendant was responsible for the physical abuse noted by the teachers on the child. This on-the-stand report of the child’s out-of-court statement, was admissible even though the child did not take the witness stand for possible cross examination and jury scrutiny of his demeanor to gauge his accuracy.

The second is Two Excursions into Current U.S. Supreme Court Opinion-Writing. The abstract follows the jump.

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July 17, 2015 | Permalink | Comments (0)

Findley et al. on Shaken Baby Syndrome/Abusive Head Trauma

Keith A. Findley Diana Rugh Johnson Katherine H. Judson Melissa L. Staas Diane L. Redleaf and Charles Joel Hyman (University of Wisconsin Law School , Independent , University of Wisconsin - Madison - UW Madison Law School , Independent , Independent and Independent) have posted Shaken Baby Syndrome/Abusive Head Trauma: A Complicated Child Welfare Issue (37 The Guardian 1 (June 2015)) on SSRN. Here is the abstract:

This is a short response to a recent paper by Dr. Sandeep Narang and Dr. Christopher Greeley, in which we raise concerns about the diagnostic reliability of certain medical findings used as the basis for allegations of child abuse, particularly shaken baby syndrome and abusive head trauma.

July 17, 2015 | Permalink | Comments (0)

Stevenson on The Path to Criminality in Juvenile Jails

Megan Stevenson (Quattrone Center- University of Pennsylvania Law School) has posted Breaking Bad: Mechanisms of Social Influence and the Path to Criminality in Juvenile Jails on SSRN. Here is the abstract:

Using rich data on youths in juvenile correctional facilities, I conduct a series of tests of peer influence on future crime motivated by three mechanisms: criminal skill transfer, the formation of new criminal networks, and the social contagion of crime-oriented attitudes and behavioral habits. Identifying peer influence off of natural variation in small cohorts within the same facility, I find evidence consistent with the social contagion mechanism: exposure to peers who come from unstable homes and who have behavioral/emotional problems leads to a large increase in crime after release, as well as an increase in crime-oriented non-cognitive factors. I also find evidence consistent with persistent network formation, but only in settings which unite youths from the same local area. Multiple tests of the identifying assumptions support the causal argument.

July 17, 2015 | Permalink | Comments (0)

Fischman on The Economic Perspective on Sentencing

Fishman joshuaJoshua B. Fischman (Northwestern University - School of Law) has posted The Economic Perspective on Sentencing (46 Loyola University Chicago Law Journal 345 (2014)) on SSRN. Here is the abstract:

Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious. This Essay considers what economists have to contribute to the study of sentencing. One common explanation — that economists’ use of rational choice modeling has applicability to the study of deterrence — does not adequately account for much of the sentencing research that economists are producing.

This Essay considers two alternative explanations. First, empirical research in both fields is predominately observational. Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of which have also proved useful in the study of criminal sentencing. Second, both fields are policy-oriented social sciences. Methods developed by economists for relating data to theoretical normative constructs, such as surplus and social welfare, have also proven useful in sentencing research, particularly in the study of inter judge disparity.

July 17, 2015 | Permalink | Comments (0)

Thursday, July 16, 2015

Birckhead & Pryal on Vulnerable Defendants

Tamar R. Birckhead and Katie Rose Guest Pryal (University of North Carolina (UNC) at Chapel Hill - School of Law and Independent) have posted Introduction: Symposium 2014: Vulnerable Defendants and the Criminal Justice System (North Carolina Law Review, Vol. 93, No. 1211, 2015) on SSRN. Here is the abstract:

The News and Observer (Raleigh, N.C.) recently reported that, on a national scale, “studies estimate between 15 and 20 percent of jail and prison inmates have a serious mental illness.” However, due to lack of state and federal resources and a punitive rather than treatment-oriented approach to misconduct, the mentally ill are often incarcerated rather than provided with appropriate therapeutic care. Indeed, the mentally ill represent one of the most vulnerable groups that interact with the criminal justice system. Other particularly fragile groups caught up in the criminal justice system include people of color, undocumented immigrants, the physically and developmentally disabled, the homeless, and LGBTQ persons, including those who identify with more than one of these broad categories. Defendants from these groups face the challenge of not merely defending their liberty from the prosecutorial power of the state but attempting to do so from a place of extreme vulnerability.

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July 16, 2015 | Permalink | Comments (0)

Arkles on Prison Sexual Violence

Arkles gabrielGabriel Arkles (Northeastern University - School of Law) has posted Regulating Prison Sexual Violence (Northeastern University Law Journal, Vol. 7, No. 1, pp. 71 - 130, 2015) on SSRN. Here is the abstract:

An end to sexual violence requires bodily autonomy, sexual self-determination, redistribution of wealth and power, and an end to subordination-based on gender, race, disability, sexuality, nationality, and class. Because the project of incarceration does not align with bodily autonomy, sexual self-determination, redistribution, or anti-subordination, tensions arise within areas of law that purport to prohibit sexual violence in or through prisons. This article examines these tensions, analyzing the ways in which constitutional, statutory, and administrative law permit or require correctional staff, medical personnel, and law enforcement officers to control, view, touch, and penetrate bodies in nonconsensual, violent, and intimate ways — sometimes while using the rhetoric of ending sexual violence. In particular, the article focuses on searches, nonconsensual medical interventions, and prohibitions of consensual sex as ways that prison systems perpetrate sexual violence against prisoners while often complying with First, Fourth and Eighth Amendment law and the Prison Rape Elimination Act. While these practices harm all prisoners, they can have particularly severe consequences for prisoners who are transgender, women, queer, disabled, youth, or people of color. This article raises questions about the framing of sexual violence as individual acts that always take place outside or in violation of the law, suggesting that in some contexts the law still not only condones sexual violence, but also acts as an agent of sexual violence.

July 16, 2015 | Permalink | Comments (0)

Wednesday, July 15, 2015

Tubex on Contemporary Penal Policies

Hilde Tubex (University of Western Australia - Faculty of Law) has posted Contemporary Penal Policies (Oxford Handbooks Online (Oxford University Press, 2014)) on SSRN. Here is the abstract:

This article provides an overview of the literature leading comparative penological research. Starting from the concept of “punitiveness” as measured in imprisonment rates, it explores and critically assesses how differences in prison populations, and changes over time, have been explained by comparative criminologists. In doing so, it identifies drivers of contemporary penal policies on a global, national, and regional scale. It does, however, also pay particular attention to anomalies, deviating patterns, and overrepresented groups and discusses the validity of the explanatory models in this respect. Finally, it looks at the future of penal policy and prospects for penal reform.

July 15, 2015 | Permalink | Comments (0)

Stubbs & Wangmann on Victims of Domestic Violence

Julie Stubbs and Jane M. Wangmann (University of New South Wales (UNSW, Australia) - Faculty of Law and University of Technology Sydney, Faculty of Law) have posted Competing Conceptions of Victims of Domestic Violence within Legal Processes (Forthcoming in D Wilson and S Ross (eds) Crime, victims and policy. Palgrave Macmillan) on SSRN. Here is the abstract:

Victims of crime are often measured against an idealised standard of victimhood, typically to the detriment of those who are seen to depart in significant ways from notions of the ideal. In this paper we develop this issue further by reference to the multiple and competing conceptions of the victim of domestic violence that emerge in different domains of legal practice. We focus on victims of domestic violence who are mothers as being more likely to be subjected to particular scrutiny and to competing and often conflicting requirements and obligations. We examine three particular legal sites that demonstrate that the battered woman of legal discourse is subject to multiple renderings that reconfigure, reinterpret and re-value her experiences in different legal domains: child protection, criminal law and proceedings for protection orders, and family law.

July 15, 2015 | Permalink | Comments (0)

Tuesday, July 14, 2015

Ananian-Welsh on Preventive Detention

Rebecca Ananian-Welsh (The University of Queensland - T.C. Beirne School of Law) has posted Preventative Detention Orders and the Separation of Judicial Power ((2015) 38(2) University of New South Wales Law Journal 748-783) on SSRN. Here is the abstract:

Preventive detention extends traditional legal frameworks into new territory. Not only may preventive detention orders act to imprison citizens outside criminal justice frameworks, they may also challenge fundamental constitutional values such as equality, openness and, crucially, the independence of judges who may be appointed to issue such orders. This is demonstrated in the preventative detention order ('PDO') provisions of the Criminal Code Act 1995 (Cth) schedule 1 ('Criminal Code'). These provisions empower serving federal, state and territory judges to personally order the brief incarceration of citizens to protect the community from terrorism. These orders are issued in secretive, ex parte proceedings that lack ordinary judicial process.

July 14, 2015 | Permalink | Comments (0)

Clark on Cell Phone Searches

William Clark has posted Protecting the Privacies of Digital Life: Riley v. California, the Fourth Amendment's Particularity Requirement, and Search Protocols for Cell Phone Search Warrants (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

In 2014, in Riley v. California, the U.S. Supreme Court held that the police must obtain a warrant before searching a cell phone. Lower courts have struggled to determine what scope limitations judges should place on cell phone warrants in order to ensure that these warrants do not devolve into general searches. This Note argues that the Fourth Amendment’s particularity requirement mandates that the government submit search protocols, technical documents that explain the search methods the government will use on the seized device, for cell phone search warrants. Detailed search protocols will ensure that cell phone search warrants have a particularized scope and thereby protect the privacies of life modern cell phones contain.

July 14, 2015 | Permalink | Comments (0)

Monday, July 13, 2015

Campbell & Walker on Pathological Error

Kathryn M. Campbell and Clive Walker (University of Ottawa and University of Leeds - Centre for Criminal Justice Studies (CCJS)) have posted Pathological Error: Reacting to the Limits of Expertise in Legal Process (Law & Justice Review, Year III, Issue 5) on SSRN. Here is the abstract:

The application of medical expertise within a legal context presents a number of difficulties that demand consideration if the courts are to continue to rely upon complex medico-scientific evidence in criminal cases. Using examples from England and Wales, this article examines how miscarriages of justice have systematically resulted from the expert testimonies of paediatric forensic pathologists in criminal cases involving Sudden Infant Death Syndrome (SIDS). Although there are regulatory bodies in place to ensure that forensic pathologists conduct themselves professionally, we argue that the courts must also recognize the intrinsic limits to their expertise. Paediatric forensic pathologists are ‘gate-keepers’ who determine how medical and legal institutions will deal with child fatalities when the cause of death is suspicious or unascertained. Over the course of their infant death investigations, paediatric forensic pathologists will make what are often subjective interpretations of complex data concerning the child’s medical, social, and familial histories. Such interpretation is open to dispute, so over-reliance upon a particular expert witness increases the likelihood that a verdict will be declared unsafe upon review. Comparisons will be made to the recent province of Ontario experience with the Goudge Commission of Inquiry into Paediatric Forensic Pathology and its subsequent recommendations.

July 13, 2015 | Permalink | Comments (1)

Czabanski on Consequentialist Retributivists

Jacek Czabanski (Polish Association of Law and Economics) has posted Why Consequentionalists Should Be Retributivists Too? on SSRN. Here is the abstract:

The author argues that it is fully rational for consequentionalist to be retributivists too. When there is no public law enforcement, rational victims will not be likely to punish the offenders, because the costs of punishment are higher then the potential deterrent gains for an individual. Therefore, rational offenders will not treat the threat of punishment as a credible one, and will continue to offend. Rational solution for potential victims is either to claim that it is retributive principle that they will follow, or to pay for the process of punishment in advance in order to avoid the temptation to save some money on the cost of general deterrence. In either way, it is a retribution principle that will be followed, although for consequentialist reasons. The author claims that both conseqentionalism and retributivism have their place within the theory of punishment, and one cannot be considered to be better than the other.

July 13, 2015 | Permalink | Comments (0)

Wheeler on Small Units of Analysis

Andrew Palmer Wheeler (John F. Finn Institute for Public Safety) has posted What We Can Learn from Small Units of Analysis on SSRN. Here is the abstract:

This article provides motivation for examining small geographic units of analysis based on a causal logic framework. Local, spatial, and contextual effects are confounded when using larger units of analysis, as well as treatment effect heterogeneity. I relate these types of confounds to all types of aggregation problems, including temporal aggregation, and aggregation of dependent or explanatory variables. Unlike prior literature critiquing the use of aggregate level data, examples are provided where aggregation is unlikely to hinder the goals of the particular research design, and how heterogeneity of measures in smaller units of analysis is not a sufficient motivation to examine small geographic units. Examples of these confounds are presented using simulation with a dataset of crime at micro place street units (i.e. street segments and intersections) in Washington, D.C.

July 13, 2015 | Permalink | Comments (0)