CrimProf Blog

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

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Monday, October 6, 2014

Kalhan on the New York Stop-and-Frisk Case

Kalhan anilAnil Kalhan (Drexel University Thomas R. Kline School of Law) has posted Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances (Georgetown Journal of Legal Ethics, Vol. 27, Issue 4, 2014, Forthcoming) on SSRN. Here is the abstract:

On October 31, 2013 — just days before New York City’s mayoral election — three federal appellate judges, José A. Cabranes, John M. Walker, Jr., and Barrington D. Parker, Jr., hastily issued an unusual order staying two major decisions by U.S. District Judge Shira A. Scheindlin, which held that the New York City Police Department’s “stop and frisk” practices involved unconstitutional racial profiling. Acting sua sponte and providing no reasoned explanation, the three judges dismissed Judge Scheindlin from presiding over the stop and frisk cases altogether, summarily concluding that she had “compromised” the “appearance of [im]partiality” surrounding the litigation. Two weeks later, after their order had been widely criticized, the three judges abruptly issued a new opinion casting aside the ostensible basis for their earlier decree in favor of other legal grounds. To support their decision, the three judges relied entirely upon extrajudicial information that — by their own acknowledgment — they “read [in] the newspapers.”

In this Article, I closely examine this episode, which highlights a growing fluidity between adjudication and public discourse.

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October 6, 2014 | Permalink | Comments (0)

Hernandez on Naturalizing Immigration Imprisonment

Hernandez cesarCésar Cuauhtémoc García Hernández (Capital University Law School) has posted Naturalizing Immigration Imprisonment (California Law Review, Forthcoming) on SSRN. Here is the abstract:

Only recently has imprisonment become a central feature of both civil and criminal immigration law enforcement. Apart from harms to individuals and communities arising from other types of immigration enforcement, such as removal, imprisonment comes with its own severe consequences, and yet it is relatively ignored. This Article is the first to define a new prison population as those imprisoned as a result of suspected or actual immigration law violations, whether civil or criminal, a population that now numbers more than half a million individuals a year. It is also the first to systematically map the many entryways into immigration imprisonment across every level of government and involving civil and criminal law enforcement tools.

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October 6, 2014 | Permalink | Comments (0)

"Concurrence laments "trend" of federal prosecutors seeking "significantly enhanced terms of imprisonment under the guise of 'relevant conduct'""

Doug Berman at Sentencing Law & Policy excerpts the concurrence by Judge Torruella of the First Circuit.

October 6, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 440 Decriminalizing Indoor Prostitution: Implications for Sexual Violence and Public Health 
Scott Cunningham andManisha Shah 
Baylor University and UCLA School of Public Affairs 
Date posted to database: 19 Jul 2014 
2 340 A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion 
Mark William Osler and Mark W. Bennett 
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa) 
Date posted to database: 1 Sep 2014 
3 325 Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team 
Jonathan Abel 
Stanford Law School - Constitutional Law Center 
Date posted to database: 27 Aug 2014 [4th last week]
4 268 The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime'
Michal Gilad 
University of Pennsylvania Law School 
Date posted to database: 19 Jul 2014 [5th last week]
5 218 Banks, Marijuana, and Federalism 
Julie Andersen Hill 
University of Alabama - School of Law 
Date posted to database: 30 Aug 2014 [7th last week]
6 210 Intellectual Property Infringement as Vandalism 
Irina D. Manta and Robert E. Wagner 
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law 
Date posted to database: 24 Aug 2014 
7 181 Waking the Furman Giant 
Sam Kamin and Justin F. Marceau 
University of Denver Sturm College of Law and University of Denver Sturm College of Law 
Date posted to database: 5 Aug 2014 [8th last week]
8 177 It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
Patricia Salkin and Bailey Ince 
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 5 Sep 2014 [new to top ten]
9 169 Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash 
Alison Siegler 
University of Chicago Law School 
Date posted to database: 23 Aug 2014 
10 164 Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission 
Owen D. JonesRichard J. BonnieBJ CaseyAndre DavisDavid L. Faigman,Morris B. HoffmanRead MontagueStephen Morse,Marcus E. RaichleJennifer A. RichesonElizabeth S. Scott,Laurence SteinbergKim A. Taylor-ThompsonAnthony D. Wagner and Gideon Yaffe 
Vanderbilt University - Law School & Dept. of Biological Sciences, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law, Stanford University - Psychology and Yale Law School 
Date posted to database: 31 Aug 2014 [new to top ten]

October 6, 2014 | Permalink | Comments (0)

Sunday, October 5, 2014

"Ebola Patient's Dallas Family Quarantined, Raising Legal Issues"

From FindLaw:

States and counties are given wide berth to regulate and protect public health under their general "police powers." Although the spread of Ebola is fairly new, local governments since the times of America's founders have had to deal with outbreaks of deadly diseases and how to legally contain them. Sometimes this mandated draining swamps or cesspools (thought to be the genesis of diseases), but it also included the power to quarantine infected individuals.

. . .

Though these quarantine measures are not derived from criminal authorities, Duncan's family may face criminal charges if they try to break quarantine. The Texas Department of State Health Services stated on Thursday that if a person does not follow a "control measure," including quarantine, then that person can potentially face criminal charges.

October 5, 2014 | Permalink | Comments (0)

High profile grant of suppression motion


Bullets found in an apartment rented by ex-New England Patriots player Aaron Hernandez and a magazine found in his Hummer were thrown out as evidence in his murder case Thursday by a judge who said state police didn't demonstrate probable cause for the searches.

Judge E. Susan Garsh said there were "absolutely no facts'' linking Hernandez "in any way at all to the crime under investigation'' in an affidavit supporting the warrant application to search his Franklin apartment. That warrant was for a cellphone belonging to co-defendant Carlos Ortiz, who was with Hernandez when Odin Lloyd was killed.

October 5, 2014 | Permalink | Comments (0)

Saturday, October 4, 2014

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog:


  • Heien v. North Carolina: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.

October 4, 2014 | Permalink | Comments (0)

Friday, October 3, 2014

Phelps on Sociological Research on Probation Supervision

Michelle S. Phelps (University of Minnesota - Twin Cities - Dept of Sociology) has posted The Curious Disappearance of Sociological Research on Probation Supervision (Criminal Justice and Law Enforcement Annual: Global Perspectives, no. 2 (April 2015 Forthcoming)) on SSRN. Here is the abstract:

At the start of the prison boom, scholars in the U.S. vigorously debated the future of “alternative” sanctions, particularly community supervision, and whether they represented a true avenue for potential decarceration or a widening of the net of social control. Community supervision, particularly probation, was central to these debates and the empirical literature. Yet as the carceral state ballooned, sociological scholarship on punishment shifted almost entirely to imprisonment (and, to a lesser extent, parole supervision), despite the fact that probationers comprise nearly 60 percent of the correctional population. This article invites criminologists to turn their attention to sociological or macro-level questions around mass probation. To help start this new wave of research, I provide an intellectual history of sociological research on probation and parole, review the national-level data available on probationers and probationer supervision today, and outline an agenda for future research.

October 3, 2014 | Permalink | Comments (0)

Metzger & Ferguson on Defending Data

Pamela Metzger (Tulane University - Law School) and Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) have posted Defending Data (88 Southern California Law Review (2015))  on SSRN. Here is the abstract:

Defending Data proposes a data-driven, systems-based approach to improving public defense in America. 

Public defenders represent millions of defendants every year. Yet, public defense remains a largely data-less enterprise, a black box of discretionary decisions disconnected from any systemic analysis about the relationship between defender practices and case outcomes. Defending Data adopts a novel approach to the crisis of public defense. Building off of the successful implementation of system-based approaches in other complex, high-risk industries such as aviation and medicine, Defending Data explains how defenders can develop a data-driven systems approach to public defense. 

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October 3, 2014 | Permalink | Comments (0)

Thursday, October 2, 2014

"Supreme Court takes case on duration of traffic stops"

Orin Kerr has this post at The Volokh Conspiracy discussing the case on which the Court today granted cert.

October 2, 2014 | Permalink | Comments (0)

Logan on Decriminalization and Legalism's Limits

Logan wayneWayne A. Logan (Florida State University - College of Law) has posted After the Cheering Stopped: Decriminalization and Legalism's Limits (Cornell Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

To the great relief of many, American criminal law, long known for its harshness and expansive prohibitory reach, is now showing signs of softening. A prime example of this shift is seen in the proliferation of laws decriminalizing the personal possession of small amounts of marijuana: today, almost twenty states and dozens of localities have embraced decriminalization in some shape or form, with more laws very likely coming to fruition soon. Despite enjoying broad political support, the decriminalization movement has however failed to curb a core feature of criminalization: police authority to arrest individuals suspected of possessing marijuana. Arrests for marijuana possession have skyrocketed in number in recent years, including within decriminalization jurisdictions. This essay examines the chief reasons behind this disconnect, centering on powerful institutional incentives among police to continue to make arrests, enabled by judicial doctrine that predates the recent shift toward decriminalization. The essay also identifies ways to help ensure that laws decriminalizing simple marijuana possession, as well as other low-level offenses, better achieve decriminalization’s goal of limiting the arrest authority of police and the many negative personal consequences of arrest.

October 2, 2014 | Permalink | Comments (0)

Defenders in the Legal Academy: The PDS Experience

This symposium will be held at Georgetown University Law Center on Nov. 7-8. The event is free but advance registration is required. Further information follows the jump.

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October 2, 2014 | Permalink | Comments (0)

Wednesday, October 1, 2014

"Peculiar (judicial?) screed against evidence-based sentencing "fad" based on the "need to be realistic"?!!?"

Doug Berman at Sentencing Law & Policy reprints and takes issue with a recent op-ed by Judge Morris Hoffman 

October 1, 2014 | Permalink | Comments (0)

Lamparello on Georgia's Reasonable Doubt Standard for Intellectual Disability

Adam Lamparello (Indiana Tech - Law School) has posted Hall v. Florida: The Death of Georgia's Beyond a Reasonable Doubt Standard on SSRN. Here is the abstract:

Welcome: We’re Glad Georgia is On Your Mind. 

Georgia is on many minds as Warren Hill prepares for a state court hearing to once again begin the process of trying to show that he is intellectually disabled. As Warren Hill continues to flirt with death, one must ask, is Georgia really going to execute someone that nine experts and a lower court twice found to be mentally retarded? The answer is yes, and the Georgia courts do not understand why we are scratching our heads. The answer is simple: executing an intellectually disabled man is akin to strapping a ten-year old child in the electric chair. 

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October 1, 2014 | Permalink | Comments (0)

Capers on Unsexing the Fourth Amendment

Capers i bennettI. Bennett Capers (Brooklyn Law School) has posted Unsexing the Fourth Amendment (U.C. Davis Law Review (Forthcoming) on SSRN. Here is the abstract:

Although rarely remarked upon in Fourth Amendment jurisprudence, traditional notions of sex and gender matter in a host of areas, from stop and frisks on the streets, to strip searches in schools and prisons, to the pat downs and body scans that have become the new normal at airports. The first goal of this Article is to uncover and draw attention to this aspect of the Fourth Amendment. The second concededly more ambitious goal is to interrogate this reliance on tradition. A Fourth Amendment preference for same-gender searches may comport with notions of modesty and societal norms. But at what cost to the Fourth Amendment? And at what cost to true equality?

October 1, 2014 | Permalink | Comments (0)

Tuesday, September 30, 2014

"[CA] Governor vetoes bill that would have limited police use of drones" links to this article from the L.A. Times.

September 30, 2014 | Permalink | Comments (0)

Eldar & Laist on The Misguided Concept of Partial Justification

Shachar Eldar and Elkana Laist (Ono Academic College Faculty of Law and Government of the State of Israel) have posted The Misguided Concept of Partial Justification (Legal Theory, Vol. 20, 2014) on SSRN. Here is the abstract:

Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find however that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law, and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meet this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness, indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defence.

September 30, 2014 | Permalink | Comments (0)

Monday, September 29, 2014

Mayeux on Lessons from History for the Future of the Right to Counsel

Sara Mayeux has posted Ineffective Assistance of Counsel Before Powell v. Alabama: Lessons from History for the Future of the Right to Counsel (Iowa Law Review, Vol. 99, p. 2161, 2014) on SSRN. Here is the abstract:

The doctrinal literature on ineffective assistance of counsel typically begins with the 1932 Supreme Court case of Powell v. Alabama. This symposium contribution goes back farther, locating the IAC doctrine’s origins in a series of state cases from the 1880s through the 1920s. At common law, the traditional agency rule held that counsel incompetence was never grounds for a new trial. Between the 1880s and the 1920s, state appellate judges chipped away at that rule, developing a more flexible doctrine that allowed appellate courts to reverse criminal convictions in cases where, because of egregious attorney ineptitude, there was reason to think the verdict might have been different with a competent lawyer. In 1932, the Supreme Court drew upon this line of state cases when it ratified the emerging doctrine in Powell. The persistence of similar complaints of unfair trials across very different time periods, and despite much ostensible doctrinal change, suggests that the inequities of the American criminal justice system are structurally embedded in the adversary process more than they are a function of the specifics of the current iteration of right-to-counsel doctrine. As such, this history lends support to arguments for criminal justice reform that emphasize the need for systemic legislative and policy change rather than merely doctrinal tinkering.

September 29, 2014 | Permalink | Comments (0)

Gilchrist on Trial Bargaining

Gilchrist gregoryGregory M. Gilchrist (University of Toledo College of Law) has posted Trial Bargaining on SSRN. Here is the abstract:

Jury trials are rare. Almost all criminal cases are resolved by guilty plea, and almost all guilty pleas are secured by prosecutorial offers of leniency. Our system of criminal procedure was developed around the norm of trials, and the shift to resolution-by-plea represents a massive change to the structure of the system.

The dominance of plea bargaining can best be explained by reference to a constitutionalized criminal procedure that renders formal adjudication too costly to provide in most cases. Plea bargaining dramatically enhances the efficiency of our system, serving as a safety valve against costly trials. The transformation of an adjudicatory system of criminal justice to a confessional one, however, generates severe costs for the legal system as a whole.

This article proposes trial bargaining as a new safety valve to counteract the negative consequences plea bargaining. Through the mechanism of waiver – the very tool that makes plea bargaining possible – trial bargaining allows the defendant to waive limited trial rights in exchange for limited leniency. As such, it promises to reinvigorate the jury trial, mitigate the costs of an excessive reliance on plea bargains, and allow a more vibrant and experimental approach to criminal justice than has been realized under our constitutionalized system.

September 29, 2014 | Permalink | Comments (0)

"Eric Holder’s Mixed Legacy on White-Collar Crime"

From The New York Times:

But the focus on misconduct by companies never resulted in any significant prosecutions of individual executives. The Justice Department passed on pursuing charges against officials at the American International Group, Lehman Brothers and Countrywide Financial, which were at the heart of the financial crisis. DealBook reported that the government now may pursue civil fraud chargesagainst Countrywide’s co-founder, Angelo R. Mozilo, and other executives at the mortgage lender, but that case would come more than six years after the financial crisis. That would hardly seem to redress the criticism about a lack of any signature prosecutions during Mr. Holder’s tenure.

The lack of individual prosecutions stands in stark contrast to Mr. Holder’s more aggressive approach to holding companies responsible for misconduct by seeking larger fines along with guilty pleas. That is especially true when those convictions do not have the same effect as a conviction of an individual. Mr. Holder seemed to raise the white flag on charging individuals for corporate misconduct in one of his last speeches before announcing he would step down. He lamented that “the buck still stops nowhere” when a corporation violates the law because “responsibility remains so diffuse, and top executives so insulated, that any misconduct could again be considered more a symptom of the institution’s culture than a result of the willful actions of any single individual.”

September 29, 2014 | Permalink | Comments (0)