CrimProf Blog

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

Wednesday, October 12, 2016

McCaffrey on Aristotelian Modeling in Police Reforms

Alicia Elaine McCaffrey (University of Michigan Law School - JD Candidate Author) has posted U.S. v. Warren Oh: The Case for Applying Aristotelian Modeling in Police Reforms on SSRN. Here is the abstract:

Scholarship regarding police reform tends to emphasize the bureaucratic nature of problems in policing, and, in turn, proposes administrative solutions, such as providing more training or critiquing specific language in a manual. I argue that instead of viewing policing problems as at their core administrative, we should be willing to view them, at least in part, as moral failings warranting ethical solutions. This perspective allows research on police reform to draw from a much larger corpus of existing ethical writings. I realize the application of ethical theory to police reform in the specific context of U.S. v. Warren, arguing that the success of the reforms implemented in the Warren Police Department is due in large part to the department's use of Aristotle's theory of "ethical modeling," which argues that ethics is best taught by providing people with moral models whose behavior they can emulate. Other police departments can apply Aristotelian ethical theory by providing positive models from whom officers can learn proper policing practices. This can be accomplished in several ways, such as expanding the use of mentoring programs, using more hypothetical role playing in training, and publicizing stories of officers who properly de-escalated tense situations.

October 12, 2016 | Permalink | Comments (0)

Carpenter on Commander Bias in Sexual Assault Cases

Carpenter ericEric R. Carpenter (FIU College of Law) has posted An Empirical Look at Commander Bias in Sexual Assault Cases (21 Berkeley J. Crim. L. (2017 Forthcoming)) on SSRN. Here is the abstract:

In response to the American military’s perceived inability to handle sexual assault cases, the Uniform Code of Military Justice is undergoing its most significant restructuring since its creation in 1950. Critics point to the high rates of sexual assault case attrition as a sign that the system is failing sexual assault victims. The theory is that commanders are predisposed to believe the offenders, who are often good soldiers, and to disbelieve the victims, who may have behaved in ways that commanders dislike. This bias then causes high levels of attrition as the commanders undervalue the cases and divert them away from the legal process.

This study tests that causal inference.

Continue reading

October 12, 2016 | Permalink | Comments (0)

Corrado on The Double Track in Contintal European Criminology

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted The Double Track in Continental European Criminology (American Academy of Psychiatry and the Law Newsletter vol. 41, no. 3, 2016) on SSRN. Here is the abstract:

This is a brief history of the "double track" criminal justice approach in Germany, Italy, and elsewhere on the Continent.

October 12, 2016 | Permalink | Comments (0)

Ellison & Smith on Hate Crimes Against Sex Workers

Graham Ellison and Lucy Smith (Queen's University Belfast - School of Law and Independent) have posted Hate Crime Legislation and Violence Against Sex Workers in Ireland: Lessons in Policy and Practice (Forthcoming in: Haynes Amanda; Jennifer Schweppe, Seamus Taylor. (Eds) Critical Perspectives on Hate Crime Contributions from the island of Ireland, Palgrave Macmillan (with L.Smith) [2017]) on SSRN. Here is the abstract:

Although there is now a wide body of research evidence to suggest that sex workers experience a relatively high level of violence, threats and abuse in the course of their work (Campbell, 2014; Kinnell, 2008; Phipps, 2008; Serisier, 2010), it has only been comparatively recently that there have been calls for such violence to be regarded as a ‘hate crime’ (Campbell, 2014). The case with respect to crimes against sex workers is complicated somewhat by the varying experiences of sex workers who work in different strata (on-street vs. off-street) with up-scale escorts much less likely to experience the more extreme forms of violence and abuse to which street-based sex workers may be subjected (Phipps, 2008). Similarly, the experiences of cisgender and transgender, male and female, sex workers are also often very different which makes devising a coherent policy response difficult (Kinnell, 2008). Sex workers are often very resourceful and have developed complex coping and safety strategies outside official and statutory channels (Phipps, 2013; Campbell, 2014) but there is nevertheless a solid argument that such violence needs to be given some sort of official recognition, not least insofar as aspects of violence against female sex workers may be seen as a surrogate for violence against women generally (Angelari, 1994). Reflecting on an issue that rarely surfaces as something that should be considered within the ambit of ‘hate crime’, this chapter considers whether violence, assaults as well as a range of other threatening behaviours against sex workers should be viewed through the prism of hate crime and whether doing so might result in these issues being taken more seriously by the police and other statutory agencies than is currently the case, including in Ireland.

October 12, 2016 | Permalink | Comments (0)

Tuesday, October 11, 2016

"Despite Ken Thompson’s Short Stint as Brooklyn Prosecutor, Agenda May Endure"

From The New York Times:

Though he could be a prickly manager and was recently fined for using taxpayer money to buy his daily meals, Mr. Thompson instinctively grasped the broader implications of his work, Ms. Reiss and others said, and established policies that sought to mitigate the damaging effects of overprosecution. He is perhaps best known for announcing early in his term that he would no longer prosecute many low-level marijuana cases, a decision that occasioned a fight with the New York Police Department. He also expanded Mr. Hynes’s Conviction Review Unit, transforming it into a national model that in the last two years alone has exonerated more than 20 people found guilty of crimes they did not commit. Then there was his program called Begin Again, which allowed Brooklyn residents with summonses and warrants for many small offenses to easily clear their names.

“Many prosecutors — Thompson, among them — have recognized that they need to pick more carefully the cases where they use the full force of the state,” Ronald Wright, a professor at the Wake Forest University School of Law, said. “They’re beginning to treat the big cases like they’re big cases, but the small cases like they’re small cases.”


October 11, 2016 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

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

  • Hernández v. Mesa(1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) Whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; (3) Whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents.
  • Ziglar v. Turkmen, consolidated with Ashcroft v. Turkmen and Hasty v. Turkmen(1) Whether the Court of Appeals, in finding that Respondents' Fifth Amendment claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality where Respondents challenge the actions taken in the immediate aftermath of the attacks of September 11, 2001 regarding the detention of persons illegally in the United States whom the FBI had arrested in connection with its investigation of the September 11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers; (2) whether the Court of Appeals, in denying qualified immunity to Petitioner Ziglar erred: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar's specific conduct was at the time clearly established, instead defining the “established law” at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law; and (3) whether the Court of Appeals erred in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal , and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims.

October 11, 2016 | Permalink | Comments (0)

Opinion insisting that only SCOTUS can overrule Booth v. Maryland

The opinion in Bosse v. Oklahoma is per curiam. Justice Thomas, joined by Justice Alito, concurred. 

October 11, 2016 | Permalink | Comments (0)

Schulz on Law and Justice on TV

Jennifer L. Schulz (University of Manitoba, Faculty of Law) have posted A Transnational Study of Law & Justice on TV: Canada (A Transnational Study of Law & Justice on TV, Peter Robson & Jennifer L. Schulz (eds.) published by Hart, available Nov. 2016) on SSRN. Here is the abstract:

Our book examines law and justice on television in 14 different countries around the world. It is a rare empirical study of how much justice material viewers were able to access in November 2014, looking at three phases: apprehension (police), adjudication (lawyers), and disposition (prison). In my chapter on Canada I note that there were 5020 law-related programs in the month of our analysis, not including the law-related content found on news and magazine programs. Although this is a vast amount of legally-themed television, only 26.6% of the shows were Canadian. Seventy-two percent of all the legal shows available on television were American and 81% of the legally-themed television available to be watched in Canada was about police officers, not lawyers.

October 11, 2016 | Permalink | Comments (0)

"Civil rights groups demand data on nationwide police shootings"

From The Washington Examiner, courtesy of the NACDL news scan:

The American Civil Liberties Union and nearly 100 other civil rights groups are pressuring the Justice Department to force state and local law enforcement agencies to report to the FBI in more detail about deaths that occur when people are in police custody.

In a notice published in the Federal Register in August, DOJ announced that it would be streamlining how state and local law enforcement agencies, as well as medical examiner's or coroner's offices, report that a person died while in police custody. However, it is hard to get the more than 18,000 agencies to voluntarily participate.

Now, the groups are proposing in a letter to the Justice Department that grants be withheld from the police departments that refuse to report the data.


October 11, 2016 | Permalink | Comments (0)

Trinkner et al. on Police Behavior and Bounded Authority

Rick Trinkner, Jonathan Jackson and Tom Tyler (Arizona State University, London School of Economics & Political Science - Department of Methodology and Yale University - Law School) have posted Expanding ‘Appropriate’ Police Behavior Beyond Procedural Justice: Bounded Authority & the Legitimation of the Law on SSRN. Here is the abstract:

This paper draws upon recent work in the field of legal socialization (Trinkner & Tyler, in press; Tyler & Trinkner, in press) to expand previous conceptualizations of appropriate police behavior beyond procedural justice. The focus of the current study is on the role of bounded authority – i.e. respecting the limits of one’s power – and its association with perceptions of police legitimacy, legal legitimacy, and compliance. Using survey data from a nationally representative sample of US adults, we show that concerns over bounded authority, respectful treatment, and neutral decision-making combine to form a strong predictor of police and legal legitimacy. Additionally, legal legitimacy is associated with greater compliance behavior, even while controlling for personal morality and perceived likelihood of sanctions. Our conclusions address some future directions of research, particularly in the extension of procedural justice theory.

October 11, 2016 | Permalink | Comments (0)

Monday, October 10, 2016

"San Francisco Fields a Mental-Health SWAT Team"

From The New York Times:

Officials said the idea was to let highly trained clinicians try to pacify troubled individuals, and hopefully avoid the sorts of deadly police confrontations that have recently set off protests around the country.

During any encounter, law enforcement officers would take the lead in determining when it is safe for their mental health colleagues, who will be unarmed, to approach a subject.


October 10, 2016 | Permalink | Comments (0)

"UN expert: US e-mail surveillance raises human rights concerns"

From Jurist:

JURIST - UN expert: US e-mail surveillance raises human rights concerns

David Kaye, the top UN expert on free expression, stated [press release] Friday that reports that Yahoo allowed the US government to search hundreds of millions of customers' e-mails "raise serious human rights concerns." According to recent reports [NYT report], Yahoo is alleged to have created software to scan all incoming e-mail for specific criteria provided by either the US National Security Agency (NSA) or FBI. Kaye expressed his concerns that the alleged e-mail surveillance meets "the standards of necessity and proportionality for the protection of legitimate government interests." Kaye acknowledged "[s]tates place undeniable pressures on the private information and communication technology sector that often lead to serious restrictions on the freedom of expression," but said that those companies have varying degrees of leverage in their relationships with the government and should exercise this leverage so as to "resist or mitigate the harm caused by the abusive application of the law." In closing, Kaye said companies like Yahoo should be evaluated in regards to the steps they take to promote freedom of expression, even in circumstances where promoting that right is difficult.


October 10, 2016 | Permalink | Comments (0)

Guest post: Rory Little: Manuel v. City of Joilet: Don’t forget “unreasonable” in the Fourth Amendment

  Little rory        Over at, I’ve been noodling this case currently pending in the Supreme Court for over a week, posting both pre- and post-argument accounts.  It is a difficult case to figure out, because it involves not only constitutional principles but also statutory considerations about how to administer “constitutional torts” in federal court under 42 U.S.C. §1983.

         Now that I’ve actually listened to the oral argument, I think some confusion is clearing up, at least for me.  After a quick recap of the facts below, I’ll suggest that the key to the case is determining what an unreasonable Fourth Amendment seizure is, in the context of prolonged detention in the criminal process based on false police evidence that the courts don’t discover til later.  And that the need for a clear determination of “unreasonableness” in the federalism context of §1983 suits aimed at state criminal proceedings is what supports adopting a “favorable termination” requirement for when such a Fourth Amendment claim accrues.

The facts, Manuel’s allegations, and the rulings below.

         Elijah Manuel was arrested for unlawful possession of the drug ecstasy.  He was detained, through a first appearance before a judge and a later grand jury indictment.  But after a police lab report came back showing that the substance Manuel possessed was not illegal, the prosecution dismissed the charges and he was released after 48 days in jail.

Continue reading

October 10, 2016 | Permalink | Comments (0)

MacKie-Mason on Proving Corruption

Andrew MacKie-Mason (University of Chicago, Law School, Students) has posted Proving Corruption: Extrinsic Evidence of Uncharged Perjury (University of Chicago Law Review, Vol. 83, 2016) on SSRN. Here is the abstract:

The Federal Rules of Evidence, and many corresponding state rules, allow extrinsic evidence to be introduced to prove a witness's bias or interest, but forbid it when used merely to show that the witness has a bad character for truthfulness. The District of Columbia Court of Appeals has coined a new phrase, "corruption bias," to admit extrinsic evidence of prior occasions on which a witness has attempted to distort the truth-seeking process, even though such instances appear to go only to character for truthfulness and not bias or interest.

This Comment argues that the District of Columbia approach should be adopted in the federal courts and the states, though under a different analytical framework. The Comment traces the historical development of a particular concept of corruption — a relationship in which the state fails to prosecute the wrongdoing of its own agents — and argues that it is distinct from, but on par with, bias and interest. Corruption, therefore, should be provable by extrinsic evidence when used to impeach a government witness in a criminal trial.

October 10, 2016 | Permalink | Comments (0)

Stinneford on The Original Meaning of "Cruel"

Stinneford_johnJohn F. Stinneford (University of Florida - Levin College of Law) has posted The Original Meaning of 'Cruel' (Georgetown Law Journal, Vol. 105, Forthcoming) on SSRN. Here is the abstract:

This Article demonstrates that the word “cruel” in the Cruel and Unusual Punishments Clause means “unjustly harsh,” not “motivated by cruel intent.” The word refers to the effect of the punishment, not the intent of the punisher. In prior articles, I have shown that the word “unusual” means “contrary to long usage,” and thus a punishment is cruel and unusual if its effects are unjustly harsh in light of longstanding prior practice.

This Article solves several important problems plaguing the Supreme Court’s Eighth Amendment jurisprudence.

Continue reading

October 10, 2016 | Permalink | Comments (0)

Barranco on Canadian Sexual Assault Laws

Kyla Barranco has posted Canadian Sexual Assault Laws: A Model for Affirmative Consent on College Campuses? (24 Mich. St. Int'l L. Rev. 801 (2016)) on SSRN. Here is the abstract:

Sexual assault is not a modern crime. Although the media has recently extensively covered the crime and culture that surrounds it, the crime, and its punishment and codification, dates back to some of civilization’s earliest societies. The crime itself is not modern, yet its definition, elements, and methods of prosecution have changed dramatically since the mid-1960s. While pre-1960s sexual assault laws followed the historical trend of punishing the perpetrator for his crime against another’s property, namely a woman’s father or husband, mid-1960s legal reforms began focusing on the act as a crime against the victim. Although not immediate, various countries began focusing on specific mentes reae involved in the crime, including both the perpetrator’s and victim’s mental states. This was a significant step forward in recognizing the crime’s various elements, but legal scholars, judges, and legislators have had difficulty in defining and applying a workable mens rea. While the mens rea represents only one aspect of the criminal act, it significantly alters how rapes are reported, how evidence is presented, what defenses are available to defendants, and how the crime is punished. Moreover, it significantly impacts and shapes the discussion and analysis of consent.

October 10, 2016 | Permalink | Comments (0)

Sunday, October 9, 2016

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.


Rank Downloads Paper Title
1 247 What is an International Crime? (A Revisionist History)
Kevin Jon Heller
University of London - School of Oriental and African Studies (SOAS)
Date posted to database: 10 Sep 2016 
2 229 When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now
W. Robert Thomas
Cleary Gottlieb Steen & Hamilton LLP
Date posted to database: 7 Sep 2016 
3 125 A Theory of Bribery
Deborah Hellman
University of Virginia - School of Law
Date posted to database: 25 Aug 2016
4 111 How to Think (Like a Lawyer) About Rape
Kimberly Kessler Ferzan and Peter K. Westen
University of Virginia, School of Law and University of Michigan Law School
Date posted to database: 24 Aug 2016
5 109 Clarity in Criminal Law
Shon Hopwood
Georgetown University Law Center
Date posted to database: 16 Sep 2016
6 88 Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters
Craig Forcese and Leah Sherriff
University of Ottawa - Common Law Section and Independent
Date posted to database: 29 Aug 2016
7 86 Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules
Stephanos Bibas
University of Pennsylvania Law School
Date posted to database: 2 Sep 2016 
8 69 Law in the Anthropocene Epoch
Eric Biber
University of California, Berkeley - School of Law
Date posted to database: 4 Sep 2016 [new to top ten]
9 74 Punishing Sexual Fantasy
Andrew Gilden
Willamette University - College of Law
Date posted to database: 9 Sep 2016 [10th last week]
10 74 Fast & Furious: The Misregulation of Driverless Cars
Tracy Hresko Pearl
Texas Tech University School of Law
Date posted to database: 10 Aug 2016 [9th last week]


October 9, 2016 | Permalink | Comments (0)

Saturday, October 8, 2016

Next week's criminal law/procedure arguments

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


  • Manrique v. U.S.: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.
  • Pena-Rodriguez v. Colorado:Whether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury. 

October 8, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.


Rank Downloads Paper Title
1 537 Student Surveillance, Racial Inequalities, and Implicit Racial Bias
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 29 Aug 2016 
2 230 What Lurks Below Beckles
Leah M. Litman and Shakeer Rahman
University of California, Irvine School of Law and Independent
Date posted to database: 28 Aug 2016
3 213 The Effect of Legislation on Fourth Amendment Interpretation
Orin S. Kerr
The George Washington University Law School
Date posted to database: 8 Aug 2016 
4 203 The Constitutional Right to Collateral Post-Conviction Review
Carlos Manuel Vazquez and Stephen I. Vladeck
Georgetown University Law Center and University of Texas School of Law
Date posted to database: 16 Sep 2016
5 192 Profit-Driven Prosecution and the Competitive Bidding Process
Maybell Romero
Brigham Young University - J. Reuben Clark Law School
Date posted to database: 12 Aug 2016 
6 188 The Drug Court Paradigm
Jessica Eaglin
Indiana University Maurer School of Law
Date posted to database: 12 Aug 2016
7 171 Principled Policing: Warrior Cops and Guardian Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [8th last week]
8 162 Moonlighting: The Private Employment of Off-Duty Officers
Seth W. Stoughton
University of South Carolina School of Law
Date posted to database: 27 Aug 2016 [9th last week]
9 158 Plausible Cause
Kiel Robert Brennan-Marquez
New York University School of Law
Date posted to database: 22 Aug 2016 [new to top ten]
10 149 Indians, Race, and Criminal Jurisdiction in Indian Country
Alexander Tallchief Skibine
University of Utah - S.J. Quinney College of Law
Date posted to database: 12 Aug 2016 


October 8, 2016 | Permalink | Comments (0)

Friday, October 7, 2016

Malkani on Dignity and the Death Penalty

Bharat Malkani (University of Birmingham) has posted Dignity and the Death Penalty in the US Supreme Court (Hastings Constitutional Law Quarterly, Vol. 44, No. 2, 2016) on SSRN. Here is the abstract:

The US Supreme Court has repeatedly invoked the idea of dignity in its Eighth Amendment jurisprudence, particularly in cases involving capital punishment. However, it has never articulated a clear and consistent conception of dignity. The first half of this paper examines the Court's inconsistent use, and highlights how various justices have used different conceptions of human dignity, communitarian dignity, and institutional dignity to uphold the constitutionality of capital punishment. This stands in contrast to how foreign and international authorities have used the idea of dignity to advance abolition.

The second half of this paper uses the Supreme Court's own accounts of dignity, and philosophical approaches to dignity, to argue that respect for dignity must pull towards a finding that the death penalty is unconstitutional. Respect for dignity, it is argued, requires a consideration of how human, communitarian, and institutional dignity inter-relate and inform one another. For example, it makes little sense to examine the death penalty and the dignity of the legal system without considering the human dignity of the people involved in administering capital punishment. When these three dignities are considered together, it becomes clear that the death penalty cannot comport with respect for dignity, as required by the Eighth Amendment.

October 7, 2016 | Permalink | Comments (0)