CrimProf Blog

"U.S. Weighs Wider Wiretap Laws to Cover Online Activity"

From the New York Times:

WASHINGTON — The Obama administration, resolving years of internal debate, is on the verge of backing a Federal Bureau of Investigation plan for a sweeping overhaul of surveillance laws that would make it easier to wiretap people who communicate using the Internet rather than by traditional phone services, according to officials familiar with the deliberations.

The F.B.I. director, Robert S. Mueller III, has argued that the bureau’s ability to carry out court-approved eavesdropping on suspects is “going dark” as communications technology evolves, and since 2010 has pushed for a legal mandate requiring companies like Facebook and Google to build into their instant-messaging and other such systems a capacity to comply with wiretap orders. That proposal, however, bogged down amid concerns by other agencies, like the Commerce Department, about quashing Silicon Valley innovation.

Gilad & Gat on Prison Nursery Programs

Michal Gilad and Tal Gat have posted The Invisible Victims (Arizona State Law Journal, 2012) on SSRN. Here is the abstract:

Since the mid-1980’s the U.S. women prison population has increased by more than 430%. More than 66% of incarcerated women are mothers. It was estimated that in the U.S. alone more than 250,000 minor children suffer from maternal separation due to incarceration. Similar trends of a growing number of children affected by maternal incarceration are also identified in Europe and other regions. We argue that, in this reality, Prison Nursery Programs, which allow children to accompany their mothers to prison, provide a valuable alternative. These programs, if properly implemented, can benefit not only the best interests of the child, but also the mother, the state and the general public.

Tracey Maclin's new book on the exclusionary rule (Dripps)

Anyone teaching crim pro/police who has not already seen Tracey Maclin’s new book, The Supreme Court and the Fourth Amendment Exclusionary Rule (OUP 2013) should do so before teaching Mapp, Linkletter, Alderman, Calandra and Leon.    The book does not break new normative or empirical ground.  Rather, it integrate Supreme Court history, both from the papers of the justices and the biographical literature, into the history of e-rule doctrine.  The book is a goldmine for scholars and indispensable background for classroom teaching.

--DD

Girvan on the Economic Model of Deterrence

Erik James Girvan (University of Oregon School of Law) has posted Rethinking the Economic Model of Deterrence: How Insights from Empirical Social Science Could Affect Policies Towards Crime and Punishment (5 REV. LAW & ECON. 461 (2009)) on SSRN. Here is the abstract:

Game-theoretic models incorporating neo-classical economic assumptions can be a powerful tool for identifying and analyzing issues relevant to legal policy. In this paper I argue that, where those assumptions are deficient, the efficacy of and insights from such models can be improved by incorporating insights from experimental social sciences. Following this paradigm, I propose an expansion of the neo-classical deterrence model of criminal behavior to incorporate, as reputation effects, social scientific theory regarding the effects of in-group norms on behavior. Analysis of the expanded model shows that there are material differences between the classic and expanded models in predictions, the latter of which are more consistent with macro-level observations. I then discuss some substantive implications of the predictions of the expanded model for criminal legal policy.

Sturgis on Community Caretaking and Assistance Seizures

John Sturgis has posted Help! I Need Somebody (or Do I?): A Discussion of Community Caretaking and 'Assistance Seizures' Under Iowa Law (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

Police officers often engage in activity that extends beyond their role as criminal investigators. Whether it is helping with a flat tire or providing directions, police officers serve as “community caretakers” by providing aid to individuals and the general public. Some police activities, however, are more invasive than others and constitute searches or seizures under the Fourth Amendment. Predominantly, state courts evaluate the reasonableness of these activities under the community caretaking doctrine. The formulation and application of this doctrine is far from uniform. In State v. Kurth, the Iowa Supreme Court suggested its willingness to address the community caretaking doctrine under Article I, Section 8 of the Iowa Constitution, which is identical to the Fourth Amendment in content. This Note argues that the Court should reevaluate its treatment of a specific type of community caretaking activity, the “assistance seizure,” which occurs when an officer stops a vehicle (therefore “seizing” it) for the purpose of providing aid. In determining the reasonableness of assistance seizures, this Note proposes two modifications to Iowa’s existing jurisprudence. First, the Court should adopt a requirement that an officer act with subjective good faith in providing aid, and that his actions be objectively reasonable. Second, it should adopt the view that seizures performed to help the subject of the seizure, as opposed to the general public, are presumptively unreasonable.

Krent on Retroactivity and Crack Sentencing Reform

Harold J. Krent (Chicago-Kent College of Law) has posted Retroactivity and Crack Sentencing Reform on SSRN. Here is the abstract:

This article argues that the strong presumption against retroactive application of reduced punishments articulated in the Supreme Court’s recent decision in Dorsey v. United States is neither historically grounded nor constitutionally compelled. Although not dispositive in Dorsey, the presumption may prove pernicious in future cases, whether in dealing with marijuana decriminalization or lessened punishment for file sharing, and in no way should signal to Congress that future changes should apply prospectively only.

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Whitten on Marijuana Possession and Jury Trial

Taylor E. Whitten has posted Under the Guise of Reform: How Marijuana Possession Is Exposing the Flaws in the Criminal Justice System's Guarantee of a Right to a Jury Trial (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

Recent Supreme Court decisions have restricted a criminal defendant’s right to a jury trial. By setting the threshold to trigger a jury trial right at six months imprisonment, the Supreme Court once feared that the legislature might classify serious crimes as petty, and take away a defendant’s right to a jury trial. But what if the opposite happened? What if the legislature classified an offense that Americans no longer believed was a crime out of the reach of their input – the jury. This is what has occurred in some states with minor marijuana possession. Even though a majority of Americans believe that marijuana possession should be legalized, some states are continuing to prosecute it as a crime without a jury trial. While waiting for marijuana reform, thousands of defendants will be prosecuted for a crime without the judicial check of a jury trial. Perhaps the electorate will respond through their votes, but democracy takes time, and at a cost to all the offenders who await judgment. This Note will examine how this offense managed to fall through the cracks of the judicial and legislative system at both the federal and state level. In highlighting these issues, this Note argues that the justice system should correct its flaws, and prevent future offenses from the same fate.

Swan on Triangulating Rape

Sarah Lynnda Swan (Columbia University - Law School) has posted Triangulating Rape (New York University Review of Law & Social Change, Forthcoming) on SSRN. Here is the abstract:

Civil actions for rape and sexual assault have recently been undergoing significant changes in both quantity and quality. Quantitatively, the number of these kinds of cases has increased dramatically since the 1970s. Qualitatively, the litigation has shifted from a woman versus man paradigm to a triangulated tort claim involving a female plaintiff, a male defendant, and a corporate or institutional third party entity that either facilitated or somehow failed to prevent the sexual harm. While it may seem odd to think of sexual assault as involving three parties, the legal forms of rape have traditionally been triangulated. Historically, rape was a legal wrong between two men regarding one’s proprietary interest in a woman: one man’s rape of another man’s wife, daughter, or servant would be legally constructed as a wrong done to him. Then, as this triangulation faded and the criminal justice system became the main forum for rape redress, the criminal triangulation of state versus male defendant, regarding the wrong to a woman, became the dominant structure of rape law.

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"Florida Supreme Court Deepens Lower Court Split on Searching a Cell Phone Incident to Arrest"

From Orin Kerr at The Volokh Conspiracy. In part:

I recently mentioned my new short essay, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013), about how the Supreme Court should resolve the lower court division on the Fourth Amendment rule for searching a cell phone incident to arrest. In light of that, I thought I would flag this morning’s decision by the Florida Supreme Court deepening the lower court division. In the new case, Smallwood v. State, the court ruled that the police can routinely seize a cell phone incident to arrest, but they generally need a warrant to search it absent a demonstrated risk that evidence on the phone could be destroyed after it had been seized.

Cunningham on Deferred Prosecution and Corporate Governance

Lawrence A. Cunningham (George Washington University Law School) has posted Deferred Prosecutions and Corporate Governance: An Integrated Approach to Investigation and Reform (65 FLORIDA LAW REVIEW (2013, Forthcoming)) on SSRN. Here is the abstract:

When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous and implementing improvised reforms afterwards may have severe unintended consequences — particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases — Arthur Andersen, AIG and Bristol-Myers Squibb — this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions would promote public confidence in prosecutorial decisions to broker firm-specific governance reforms currently lacking and increase their effectiveness. The Article, therefore, contributes a novel perspective on the controversial practice: though substantial commentary urges prosecutors to avoid intruding into corporate governance, this Article explains the importance of prosecutors investing in it.

Mason & Bjerk on Sentencing Disparity in Drug Smuggling Cases

Caleb E. Mason and David Bjerk (Miller Barondess, LLP and Claremont Colleges - Robert Day School of Economics and Finance) have posted Inter-Judge Sentencing Disparity on the Federal Bench: An Examination of Drug Smuggling Cases in the Southern District of California (Federal Sentencing Reporter, Vol. 25, No. 3, 2013) on SSRN. Here is the abstract:

In this paper we exploit a unique dataset we collected directly from the arrest narratives filed in "border bust" drug smuggling cases to analyze inter-judge sentencing disparity. The comprehensiveness of our data combined with the specific sentencing laws that apply to drug trafficking allow us to control very precisely for variations in offense conduct, offender characteristics, and criminal history. We develop a new statistical model of sentencing disparity that we believe is more accurate than previous attempts.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	4420	The Dangers of Surveillance  Neil M. Richards,  Washington University in Saint Louis - School of Law,  Date posted to database: March 25, 2013
2	563	Foreword: Accounting for Technological Change  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: March 17, 2013 [3rd last week]
3	389	Knives and the Second Amendment  David B. Kopel, Clayton E. Cramer,Joseph Olson,  Independence Institute, College of Western Idaho, Hamline University - School of Law,  Date posted to database: March 24, 2013 [4th last week]
4	313	Lanny Breuer and Foreign Corrupt Practices Act Enforcement  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: March 24, 2013 [5th last week]
5	280	Background Checks and Murder Rates  Clayton E. Cramer,  College of Western Idaho,  Date posted to database: April 12, 2013 [new to top ten]
6	231	Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions  Matthew C. Waxman,  Columbia Law School,  Date posted to database: March 21, 2013
7	210	Overcharging  Kyle Graham,  Santa Clara University School of Law,  Date posted to database: March 3, 2013
8	182	Policing the Firm  D. Daniel Sokol,  University of Florida - Levin College of Law,  Date posted to database: March 9, 2013
9	176	Antitrust Corporate Governance and Compliance  Rosa M. Abrantes-Metz, D. Daniel Sokol,  Global Economics Group, LLC, University of Florida - Levin College of Law,  Date posted to database: April 10, 2013 [10th last week]
10	164	Lafler and Frye: A New Constitutional Standard for Negotiation  Rishi Batra,  Texas Tech University School of Law,  Date posted to database: March 21, 2013 [9th last week]

 

Murchison on Jury Nullification

Melanie Janelle Murchison (Queen's University Belfast - School of Law) has posted Law, Morality and Social Discourse: Jury Nullification in a Canadian Context on SSRN. Here is the abstract:

In the thirty years since the inception of the Canadian Charter of Rights and Freedoms there have been three cases of attempted jury nullification, resulting in varies degrees of success. This thesis will provide an overview of the process jury nullification as well as a discussion on the current Canadian jurisprudence, including all three cases (R. v. Morgentaler, R. v. Latimer and R. v. Krieger). This analysis will be undertaken using two competing theoretical viewpoints: those of neo-natural law theorist Ronald Dworkin and social theorists Alan Hunt and Michel Foucault. Ultimately this thesis will conclude that while it is beneficial to approach the phenomenon of jury nullification using Dworkin’s theory of “law as integrity”, it alone cannot sufficiently explain the process and it is through using both natural law and social theory that jury nullification can be best understood.

Materni on Criminal Punishment and the Pursuit of Justice

Mike C. Materni has posted Criminal Punishment and the Pursuit of Justice (2 Br. J. Am. Leg. Studies 263 (2013)) on SSRN. Here is the abstract:

Since the beginning of recorded history societies have punished offenders while at the same time trying to justify the practice on moral and rational grounds and to clarify the relationship between punishment and justice. Traditionally, deontological justifications, utilitarian justifications, or a mix of the two have been advanced to justify the imposition of punishment upon wrongdoers. In this article, I advance a new conceptual spin on the mixed theorist approach to criminal punishment – one that can hopefully resonate not just among legal philosophers, but also among ordinary citizens,i.e. the people who are most affected by the criminal law. Distancing myself from previous scholarship, which has used utilitarian arguments to point out the shortcomings of retributivism and vice-versa, on the one hand I attack the philosophical foundations of retributivism (currently the predominant rationale for punishment) on deontological grounds; on the other hand I attack the consequentialist rationales on consequentialist grounds. Concluding that neither approach – as they all fail under their own standards – is sufficient per se to justify criminal punishment in a liberal democracy, I argue that a mixed theory approach, which is usually presented as a matter of preference, is instead a matter of necessity if we want a criminal justice system that, while still not perfect, can be defended on both rational and moral grounds. In this sense, retributive considerations are meant to serve as the normative check on a system that aims at rationality and efficiency, and it is thus strongly utilitarian in character. I conclude by arguing that something more than punishment is required if we want to implement a system that really pursues justice, and I suggest that a path worth exploring in that regard is the one laid down by restorative justice. If nothing else, hopefully my blistering attack on retributivism will serve the purpose of rekindling a debate that seems to have accepted the dominance of retributivist positions.

Martin on Public Dissemination of Mug Shots During Ongoing Criminal Proceedings

Whitney T. Martin has posted From the Police Precinct to Your Neighbor's Coffee Table: Limiting Public Dissemination of Mug Shots During an Ongoing Criminal Proceeding Under the Freedom of Information Act (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract:

The Freedom of Information Act provides for public access to government agency records. Agencies have discretion, however, to withhold any information that falls under one of the Act’s exemptions, including, in some instances, private individual records. While the Supreme Court has recognized that criminal detainees have a privacy interest in restricted dissemination of their criminal records, it has yet to rule on whether the same privacy interest exists in mug shots. Currently, there is a circuit split over this issue. This Note analyzes the split in light of the purpose and history of the Freedom of Information Act, and argues that future courts that entertain the issue should adopt the reasoning employed by the Tenth Circuit — namely, recognizing a privacy right in detainees’ mug shots in ongoing criminal proceedings. The Supreme Court has already recognized the detrimental and lasting stigma on the not-yet convicted detainee. In holding that such a privacy interest exists, the Court will maintain consistency in tending towards increased privacy protection under the Act, minimize negative stigma, and still adhere to the Act’s purpose.

Sherman on Juvenile Detention Reform for Girls

Francine T. Sherman (Boston College - Law School) has posted Making Detention Reform Work for Girls: A Guide to Juvenile Detention Reform (Annie E. Casey Foundation Juvenile Detention Alternatives Practice Guides, No. 5, 2013) on SSRN. Here is the abstract:

Throughout the nation, court-involved girls frequently pose minimal risk to public safety but suffer with significant social service needs. Data on detention utilization show that girls are being disproportionately detained for misdemeanors, status offenses and technical violations of probation and parole. In short, many girls enter detention for the wrong reasons and many remain in detention for extended periods harmful to them and contrary to best practice.

This practice guide responds to a call from both mature and new sites from within the Juvenile Detention Alternatives Initiative (JDAI) network, which continue to find that effectively serving and supervising girls is among the most difficult issues in detention reform.

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Rapaport on Elderly Prisoners and Prison Downsizing

Elizabeth Rapaport (University of New Mexico - School of Law) has posted You Can't Get There from Here: Elderly Prisoners, Prison Downsizing, and the Insufficiency of Cost Cutting Advocacy on SSRN. Here is the abstract:

The prison population in the United States has peaked and begun to recede, reversing more than 30 years of growth. Mass incarceration is yielding to the imperative to reduce state budgets in recessionary times. As states turn away from the extravagant use of prison for nonviolent offenders, the percentage of the prison population serving long and life sentences for violent felonies will increase. By 2009 one in eleven prisoners were lifers. These are the prisoners growing old and dying in prison. High cost elderly prisoners who have aged out of crime should be good candidates for cost saving measures such as compassionate release, parole, and release through community corrections programs. This impression does not withstand scrutiny.

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Farrell & Marceau on the Voluntary-Act Requirement

Ian P. Farrell and Justin F. Marceau (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Taking Voluntariness Seriously (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

The near-unanimous belief among courts and commentators that the criminal law contains a voluntary act requirement obscures deep disagreement about the meaning, scope, and application of that requirement. This Article explores these longstanding and vexing theoretical disagreements, identifies practical problems that result from these uncertainties, and suggests a novel framework for substantially resolving the confusion. The resolution of these questions is no mere academic exercise. The difference in many cases, particularly strict liability prosecutions, will be the difference between guilt and innocence.

Murray on Punishment and the Costs of Knowledge

Yxta Maya Murray (Loyola Law School Los Angeles) has posted Punishment and the Costs of Knowledge (Hearing Heaney, Four Courts Press (2013/14)) on SSRN. Here is the abstract:

A too-bookish law professor doesn't know if literature has helped refine her position on the death penalty, or just turned her into an insufferable snob: An essay on elitism, bibliomania, confusion, and capital punishment.

Zeoli, Brenner & Norris on Warrantless Arrest Statutes for Domestic Violence

April M. Zeoli , Hannah Brenner and Alexis Norris (Michigan State University - School of Criminal Justice, Michigan State University - College of Law and Michigan State University) have posted A Summary and Analysis of Warrantless Arrest Statutes for Domestic Violence in the United States (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:

In the United States in 2005, more than 60% of the more than 564,000 nonfatal, violent incidents perpetrated by intimate partners were reported to the police. Whether police arrested the alleged perpetrators of domestic violence in response to these reports varied widely, based in part on state law governing the ability or duty of an officer to make a warrantless arrest. Although all 50 states and the District of Columbia currently allow officers to make warrantless arrests for domestic violence, state laws differ from one another in multiple, important ways. This article details, compares, and analyzes differences between state domestic violence warrantless arrest laws.