CrimProf Blog

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

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Wednesday, May 13, 2015

Stoughton on Evidentiary Rules as Police Reform

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted Evidentiary Rulings as Police Reform (69 U. Miami L. Rev. 429 (2015)) on SSRN. Here is the abstract:

How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. But the deterrent model is not the only method through which the law can affect police behaviors. In this article, I contend that evidentiary considerations have the potential to change both police training and agency culture.

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May 13, 2015 | Permalink | Comments (0)

Katner on Juvenile Competency

Katner davidDavid R. Katner (Tulane University - Law School) have posted Eliminating the Competency Presumption in Juvenile Delinquency Cases (24 Cornell Journal of Law and Public Policy 403 (2015)) on SSRN. Here is the abstract:

The legal presumption used in virtually all juvenile delinquency cases in the U.S. is that all juveniles are competent to stand trial. This article calls for the elimination of that legal presumption, which is historically based on the Dusky v. United States decision and in the adult criminal justice system. The recent decisions of the U.S. Supreme Court recognize the developmental and organic brain differences between adults and juveniles. Current research demonstrates a higher frequency rate of incompetence based on intellectual deficiencies among children when compared with adults found to be not legally competent to stand trial. 

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May 13, 2015 | Permalink | Comments (0)

Tuesday, May 12, 2015

Metzger on Data Collection and Public Defenders

Metzger pamelaPamela Metzger (Tulane University - Law School) has posted Me and Mr. Jones: A Systems-Based Analysis of a Catastrophic Defense Outcome (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:

Leo S. Jones spent four months in jail, accused of a probation that had long since expired. His incarceration was illegal. It was also preventable. 

In this essay, I describe the unique data collection project that identified Mr. Jones’ case. Then, I analyze the various individual, institutional, and systemic practices that contributed to Mr. Jones’ illegal incarceration. I show how an investigation of Mr. Jones’ case led to the discovery of widespread latent errors that may have adversely affected innumerable other detainees. I conclude by explaining what this case reveals about how data collection and analysis can improve public defender practice.

May 12, 2015 | Permalink | Comments (0)

Peters on Human Trafficking Victim Status

Peters amandaAmanda J. Peters (South Texas College of Law) has posted Reconsidering Federal and State Obstacles to Human Trafficking Victim Status and Entitlements (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Federal and state anti-trafficking laws describe the victim in the process of criminalizing the act of human trafficking. Nearly half of all states adopt the federal definition of victim, which requires proof of forced, defrauded or coerced labor, whereas the other half narrow this definition thereby limiting the number of victims qualifying for state victims services. Using this definition, victims must prove their status before they can access victim entitlements. Even when victims prove their status, they may be denied traditional crime victim benefits like restitution and Crime Victim Compensation funds. In this way, their victim status may be rendered meaningless.

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May 12, 2015 | Permalink | Comments (0)

Monday, May 11, 2015

Sandford on GPS Tracking of a Cell Phone

Bryan S Sandford has posted Comment: A Castle in the Sky: GPS Tracking of a Defendant's Cell Phone Post-Riley v. California (Wisconsin Law Review, Forthcoming) on SSRN. Here is the abstract:

For most Americans, smart cell phones are omnipresent and a fact of modern life. The technological capabilities of these devices have had a transformative effect on the way we do business, communicate and socialize with one another. One capability in particular, the ability to track and broadcast a user’s location in real time, presents a danger in the context of the Fourth Amendment: that privacy in one’s location will become a relic of the past. Though the judicial role as to this issue is still being fleshed out, courts should hesitate before discarding privacy in favor of law enforcement efficiency and carefully scrutinize searches that tip the scales too far in either direction.

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May 11, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 1,540 Rethinking Presumed Knowledge of the Law in the Regulatory Age 
Michael Anthony Cottone 
Date posted to database: 24 Mar 2015 
2 504 'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment 
Dan M. KahanDavid A. HoffmanDanieli EvansNeal DevinsEugene A. Lucci andKatherine Cheng 
Yale University - Law School, Temple University - James E. Beasley School of Law, Yale Law School, William & Mary Law School, Government of the State of Ohio - Court of Common Pleas and Cultural Cognition Lab, Yale Law School 
Date posted to database: 22 Apr 2015 [3rd last week]
3 427 Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know 
Mike Koehler 
Southern Illinois University School of Law 
Date posted to database: 4 May 2015 [new to top ten]
4 329 Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law 
Marc Edelman 
City University of New York - Baruch College, Zicklin School of Business 
Date posted to database: 1 Apr 2015 
5 238 Conflict Assessment: Northern Kenya and Somaliland 
Ken Menkhaus 
Davidson College 
Date posted to database: 4 Apr 2015 
6 220 Using the 'Smart Return' to Reduce Tax Evasion 
Joseph BankmanClifford Nass and Joel B. Slemrod 
Stanford Law School, Stanford University and University of Michigan, Stephen M. Ross School of Business 
Date posted to database: 16 Mar 2015 [7th last week]
7 164 Database Infamia: Exit from the Sex Offender Registries 
Wayne A. Logan 
Florida State University - College of Law 
Date posted to database: 15 Apr 2015 [10th last week]
8 151 Symposium on Minds, Brains, and Law: A Reply 
Michael S. Pardo and Dennis Patterson 
University of Alabama School of Law and European University Institute 
Date posted to database: 11 Mar 2015 [new to top ten]
9 124 Measuring Illegal and Legal Corruption in American States: Some Results from the Edmond J. Safra Center for Ethics Corruption in America Survey 
Oguzhan C. Dincer andMichael Johnston 
Illinois State University - Department of Economics and Colgate University 
Date posted to database: 18 Mar 2015 [new to top ten]
10 109 Arendt on the Crime of Crimes 
David J. Luban 
Georgetown University Law Center 
Date posted to database: 4 Apr 2015 [new to top ten]

May 11, 2015 | Permalink | Comments (0)

Saturday, May 9, 2015

Binford on Compensation for Child Pornography Victims

Binford_warrenWarren Binford (Willamette University College of Law) has posted A Global Survey of Country Efforts to Ensure Compensation for Child Pornography Victims (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

This article summarizes the results of a survey conducted of the country reports of states parties to the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Children Prostitution and Child Pornography to determine compliance with Article 9(4), which requires that all states parties ensure victims of child pornography have access to adequate procedures to seek damages from those legally responsible. The survey showed that almost half of the parties to the Optional Protocol have not filed country reports. Of those 89 nations who filed a country report, almost all describe only general jurisprudential systems of compensation available to all crime victims in the country, with few unique compensation systems tailored specifically to the offenses identified in the Optional Protocol. This is concerning because of the unique nature of the crimes covered under the Optional Protocol, such as distribution and possession of child pornography, where an increasing body of research shows the enduring mental harm to victims, but it often is difficult for victims to prove causation and damages. The survey also revealed that an increasing number of countries are (1) integrating victim compensation with the criminal process to avoid re-traumatizing victims through a separate civil process; (2) appointing legal advocates to assist victims; and (3) setting up state-sponsored compensation systems to provide victims access to compensation, especially where damages cannot be recovered from the offender. Finally, the article identifies gaps in child pornography compensation systems and opportunities for greater compliance both by states parties and the global community.

May 9, 2015 | Permalink | Comments (0)

Friday, May 8, 2015

Harmon on Federal Programs and the Real Costs of Policing

Harmon rachelRachel Harmon (University of Virginia School of Law) has posted Federal Programs and the Real Costs of Policing (New York University Law Review, Vol. 90, June 2015) on SSRN. Here is the abstract:

Dozens of federal statutes authorize federal agencies to give money and power to local police departments and municipalities in order to improve public safety. While these federal programs encourage better coordination of police efforts and make pursuing public safety less financially costly for local communities, they also encourage harmful policing. Of course, policing often interferes with our interests in autonomy, privacy, and property, and those harms are often worthwhile in exchange for security and order. Federal public safety programs, however, are designed, implemented, and evaluated without reference to the nonbudgetary costs of policing. When those costs are high, federal programs can make local policing seem cheaper for communities, but actually make it more costly in its impacts and therefore less efficient. 

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May 8, 2015 | Permalink | Comments (0)

Klinkner on Digital Evidence and the Right to Deletion

Blake Anthony Klinkner has posted Digital Evidence and the Fourth Amendment: United States v. Ganias and Judicial Recognition of the 'Right to Deletion' (The Wyoming Lawyer, p. 52, April 2015) on SSRN. Here is the abstract:

In United States v. Ganias, the United States Court of Appeals for the Second Circuit decided an important case that will have far-reaching implications for digital evidence in criminal cases. In Ganias, the court held that a defendant's Fourth Amendment rights were violated when the government, under a valid search warrant, made copies of the defendant's computer drives but then failed to delete the files which were outside the scope of the search warrant. This decision marks the first time a court has recognized a "right to deletion" under the Fourth Amendment of the United States Constitution.

May 8, 2015 | Permalink | Comments (1)

Thursday, May 7, 2015

Garcia on Miranda

Garcia alfredoAlfredo Garcia (St. Thomas University - School of Law) has posted Regression to the Mean: How Miranda Has Become a Tragicomical Farce (25 St. Thomas L. Rev. 293 (2013)) on SSRN. Here is the abstract:

In my original article, I examined Miranda's historical and social background, discussed its precursors, traced the evolution of the case, and documented the dismantling of the Miranda doctrine. I also argued that the doctrine's "seductive appeal" lulled defense counsel into a false sense of security, thereby deflecting reliance on the "voluntariness" standard as a failsafe to Miranda. Further, I maintained that a waiver of Miranda in some instances served to sanitize an otherwise involuntary confession. Finally, I proposed to "do away" with Miranda, to return to the voluntariness standard with one caveat: that the government be precluded from relying on a Miranda waiver to establish the voluntariness of a confession.

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May 7, 2015 | Permalink | Comments (1)

Stokes on Revenge Porn

Jenna K. Stokes has posted The Indecent Internet: Resisting Unwarranted Internet Exceptionalism in Combating Revenge Porn (29 BERKELEY TECH. L.J. 929 (2014)) on SSRN. Here is the abstract:

This Note explores the rise of revenge porn, as well as the civil and criminal strategies that scholars and legislators have offered to address it. It argues that these suggested approaches needlessly complicate the law, and concludes that the existing tort of intentional infliction of emotional distress is already Stokes on Rewell-suited for revenge porn cases.

May 7, 2015 | Permalink | Comments (0)

Wednesday, May 6, 2015

Corrado on Giving Up Desert

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Withdrawal Pains: Giving Up Desert on SSRN. Here is the abstract:

Underlying our present conception of punishment is the moral notion of desert. As Hodgson sets the problem, either we treat people as sometimes deserving punishment, or we treat them as “vehicles for treatment to be manipulated for the general good.” But treating them as mere vehicles to be dealt with for the common good, he says, (1) is an inappropriate way to treat rational people, and (2) does not encourage them to take responsibility for their conduct. I’m not sure about the second claim, since if human beings are not in fact responsible for what they do, I’m not entirely sure what it would mean for them take responsibility for their actions. I think it’s worth saying a word or two about that. 

I entirely agree with him about the first of these claims, though: treating human beings as mere instruments to be used for the common good is an inappropriate way to deal with rational people. Where, however, do we find the root of that claim?

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May 6, 2015 | Permalink | Comments (0)

Barry on Retroactive Death Penalty Abolition

Barry kevinKevin M. Barry (Quinnipiac University - School of Law) has posted Going Retro: Abolition for All (46 Loyola University Chicago Law Journal 669 (2015)) on SSRN. Here is the abstract:

The opening of the twenty-first century has seen a flurry of death penalty repeals. This development is encouraging, but only partly so. Amidst the cheers for abolition, there is an unfairness of the highest order: the maintenance of the death penalty for some, but not others, for no other reason than the date of their crimes. State legislatures are repealing the death penalty prospectively only, and these states’ executive branches are leaving their prisoners on death row. In New Mexico and Connecticut, a total of thirteen prisoners remain on death row after those states abolished the death penalty.

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May 6, 2015 | Permalink | Comments (0)

Greenberg on Prior Convictions in Drug Prosecutions

Deena Greenberg has posted Closing Pandora's Box: Limiting the Use of 404(b) to Introduce Prior Convictions in Drug Prosecutions (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Forthcoming) on SSRN. Here is the abstract:

The federal circuit courts diverge in the approach they take in deciding when to admit prior drug convictions, particularly in possession with intent to distribute (“PWID”) cases. Currently, six circuits presumptively allow the introduction of at least some prior convictions under 404(b) in PWID cases without identifying non-propensity reasoning. The First, Second, Third, Fourth, Seventh, and Tenth Circuits, however, have demanded a “case-by-case” analysis in which they require the prior conviction to have a probative, non-propensity purpose. This Note identifies five lines of reasoning employed by courts following the former approach — the presumptive admission of prior convictions in PWID. It argues that such reasoning not only eliminates desirable protections placed on the defendant elsewhere in the Federal Rules of Evidence but also often introduces propensity evidence, which is specifically prohibited by Federal Rule of Evidence 404. Instead, this Note advocates an approach in line with the reasoning followed by courts adopting a “case-by-case” analysis: that 404(b) evidence of prior convictions can be introduced only when it is a disputed element of the crime and only when it has probative, non-propensity purposes specific to the facts of that case. Furthermore, this Note argues that an exacting 403 analysis in which courts seriously consider the prejudicial impact of prior convictions would prevent the admission of highly prejudicial prior convictions with minimal probative value.

May 6, 2015 | Permalink | Comments (0)

Tuesday, May 5, 2015

Ehrman on Pay-to-Play Daily Fantasy Sports

Nathaniel J Ehrman has posted Out of Bounds?: A Legal Analysis of Pay-to-Play Daily Fantasy Sports (The Sports Lawyers Journal, Vol. 22, p. 79, 2015) on SSRN. Here is the abstract:

Daily fantasy sports are one of the fastest growing, most popular aspects of sports today. Due to its popularity, daily fantasy sports are growing much faster than the laws in place to monitor them. Although many articles have been written that focus on the legality of traditional fantasy sports leagues, daily leagues have been relatively unexplored. I hope to provide a framework for analyzing how daily fantasy sports will be treated under current state and federal law. Part I of this Article provides a brief history of the growth and popularity of daily fantasy sports. Part II begins to analyze the legal framework regulating fantasy sports on a federal level. Part III focuses on how state laws approach fantasy sports. Part IV contains the skill versus chance analysis that is central to the ongoing debate and is what the legality of daily fantasy sports hinges on in many states. Part V explores the public policy arguments surrounding daily fantasy sports. 

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May 5, 2015 | Permalink | Comments (0)

Robbins on Reimbursement of Expenses for Acquitted Defendants

Robbins iraIra P. Robbins (American University - Washington College of Law) has posted The Price Is Wrong: Reimbursement of Expenses for Acquitted Criminal Defendants (Michigan State Law Review, Vol. 2014, No. 5, 2015) on SSRN. Here is the abstract:

“Not guilty” — these two simple words elicit intense relief from any defendant at the conclusion of a criminal trial. As one harrowing ordeal ends, however, a new one inevitably takes shape: picking up the pieces of a life shattered physically, emotionally, and, for non-indigent defendants, financially. Where do defendants who have successfully defended themselves against criminal prosecution turn for assistance in paying the debts incurred in securing their freedom?

Some states, as well as the federal government, have implemented laws that allow acquitted defendants to seek public reimbursement of certain legal expenses they incurred in their defense. These reimbursement methods differ substantially from one another — some offering limited reimbursement to all acquitted defendants and others offering greater reimbursement to smaller categories of defendants, such as public employees or defendants prosecuted maliciously. Moreover, state and federal courts alike must grapple with various issues that arise when interpreting and applying these laws.

Reimbursement laws incentivize the government to use restraint in making prosecutorial decisions and reduce the likelihood that innocent defendants will be prosecuted. Existing laws, however, generally suffer from the same defect: they do not provide comprehensive reimbursement for non-indigent defendants who incur legal expenses in successfully defending against criminal charges.

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May 5, 2015 | Permalink | Comments (0)

Piopiunik & Ruhose on Immigration and Crime

Marc Piopiunik and Jens Ruhose (CESifo (Center for Economic Studies and Ifo Institute) - Department Human Capital and Innovation and CESifo (Center for Economic Studies and Ifo Institute) - Ifo Institute) have posted Immigration, Regional Conditions, and Crime: Evidence from an Allocation Policy in Germany on SSRN. Here is the abstract:

After the collapse of the Soviet Union, more than 3 million people with German ancestors immigrated to Germany under a special law granting immediate citizenship. Exploiting the exogenous allocation of ethnic German immigrants by German authorities across regions upon arrival, we find that immigration significantly increases crime. The crime impact of immigration depends strongly on local labor market conditions, with strong impacts in regions with high unemployment. Similarly, we find substantially stronger effects in regions with high preexisting crime levels or large shares of foreigners.

May 5, 2015 | Permalink | Comments (0)

Anderson et al. on Punishments for Repeat Offenders

Lisa R. Anderson Gregory J. DeAngelo Winand Emons Beth Freeborn and Hannes Lang (College of William and Mary - Department of Economics , Texas Tech University - Department of Economics and Geography , University of Bern - Department of Economics , Government of the United States of America - Federal Trade Commission and Rensselaer Polytechnic Institute (RPI)) have posted Penalty Structures and Deterrence in a Two-Stage Model: Experimental Evidence on SSRN. Here is the abstract:

Increasing penalty structures for repeat offenses are ubiquitous in penal codes, despite little empirical or theoretical support. Multi-period models of criminal enforcement based on the standard economic approach of Becker (1968) generally find that the optimal penalty structure is either flat or declining. We experimentally test a two-stage theoretical model that predicts decreasing penalty structures will yield greater deterrence than increasing penalty structures. We find that decreasing fine structures are more effective at reducing risky behavior. Additionally, our econometric analyses reveal a number of behavioral findings. Subjects are deterred by past convictions, even though the probability of detection is independent across decisions. Further, subjects appear to take the two-stage nature of the decision making task into account, suggesting that subjects consider both current and future penalties. Even controlling for the fine a subject faces for any given decision, being in a decreasing fine structure has a significant effect on deterrence.

May 5, 2015 | Permalink | Comments (2)

Broughton on Snowden and Treason

Broughton j richardJ. Richard Broughton (University of Detroit Mercy School of Law) has posted The Snowden Affair and the Limits of American Treason (Lincoln Memorial University Law Review, 2015, Forthcoming) on SSRN. Here is the abstract:

The revelations about Edward Snowden’s leak of American national security information helped to reinvigorate public rhetoric about the crime of treason, which Article III of the Constitution defines only as levying war against the United States or adhering to the enemy by giving aid and comfort. Political leaders and others regularly commented on whether Snowden was a “hero” or “traitor.” And more than one American political leader suggested that Snowden should be tried for treason. But these rhetorical episodes simply demonstrate that despite treason’s stature, numerous gaps remain in the public’s (and even in political leaders’) understanding of the rarely-invoked, rarely-discussed Treason Clause. This paper, written for a symposium on the ramifications of Snowden’s disclosures, therefore focuses on the constitutional provision that requires “adhering” to the enemy, giving them “aid and comfort” – what the paper calls Adherence Treason, which is the provision most likely at issue in a treason case involving actions like Snowden’s – and examines the relevance of the actor’s mental state to the interpretation and application of the Treason Clause. Drawing on the Supreme Court’s World War II treason cases, the paper examines treason in light of complicity doctrine in the criminal law. It demonstrates how information that reaches the enemy does not constitute treason – even if the information actually aids the enemy, as Snowden’s disclosures could have done – in the absence of a specific intent to betray America, which is the mens rea required for treason and which Snowden appears to have lacked. Still, when viewed in light of complicity law, even the narrow standard for American treason could be implicated by contemporary aid-to-the-enemy cases that are distinguishable from Snowden’s, such as the terrorist-aid cases that are now prevalent but are being prosecuted under the material support statutes instead. These terrorist-aid cases, especially when combined with the modern technology that can make it easier for one to communicate with and assist the enemy, could potentially keep the Treason Clause alive, but only in narrow circumstances where legally sufficient aid and the intent to betray coalesce.

May 5, 2015 | Permalink | Comments (1)

Monday, May 4, 2015

Kamin & Wald on Public Lawyers and Marijuana Regulation

Sam Kamin and Eli Wald (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Public Lawyers and Marijuana Regulation (23(1) The Public Lawyer 14 (2015)) on SSRN. Here is the abstract:

Although 23 states and the District of Columbia have now legalized marijuana for medical purposes, marijuana remains a prohibited substance under federal law. Because the production, sale, possession and use of marijuana remain illegal, there is a risk of prosecution under federal laws. Furthermore, those who help marijuana users and providers put themselves at risk — federal law punishes not only those who violate drug laws but also those who assist or conspire with them to do so. In the case of lawyers representing marijuana users and businesspeople, this means not only the real (though remote) risk of criminal prosecution but also the more immediate risk of professional discipline. 

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May 4, 2015 | Permalink | Comments (0)