CrimProf Blog

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

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Wednesday, February 18, 2015

Steussy et al. on Microbial Forensics

Edwin Eugene Steussy Jonathan Eisen Edward J. Imwinkelried and Anne-Mieke Vandamme (Orrick, Herrington and Sutcliffe , UC Davis Genome Center , University of California, Davis - School of Law and University of Leuven, Department of Microbiology and Immunology) have posted Microbial Forensics: The Biggest Thing Since DNA? (Criminal Law Bulletin (Forthcoming)) on SSRN. Here is the abstract:

We live in a microbial cloud. Our bodies are home to between two and six pounds of microbial life-cells that do not share our DNA but replicate and live on our skin and hair, in our colons, between our toes, and in our mouths. Although some microbes are pathogenic, most are benign; and many are beneficial. For instance, the microbes in our colons are essential to proper digestion. We now realize that bacteria aid in the development of the immune system, fight off pathogens, and regulate our metabolism. Understandably, scientists are paying increasing attention to the human microbiome. 

The growing appreciation of human micobiome is already having a profound effect on the practice of medicine. By way of example, physicians are now using fecal transplants to “infect” a patient with healthy intestinal bacteria to treat microbe-related diseases. 

The new insights into the microbial cloud also have forensic implications. As this article explains, microbial analysis can potentially be employed in: 
–tracing infections to a source; 
–more broadly, making personal identifications; 
–improving estimates of post-mortem interval; 
–identifying types of body fluids; and 
–soil mapping. 

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February 18, 2015 | Permalink | Comments (0)

Hovenkamp on Neoclassical Legal Thought

Herbert J. Hovenkamp (University of Iowa - College of Law) has posted The Opening of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue (Oxford, 2015) on SSRN. Here is the abstract:

The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal sanctions, as well as controversy over the respective role of genetics and environment in human welfare and behavior. The marginalist revolution in economics provided the common law with a set of forward looking theories of risk management. One champion of these developments was Holmes, whose thought was much more marginalist than Darwinian. 

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February 18, 2015 | Permalink | Comments (0)

Tuesday, February 17, 2015

Fisher et al. on Homelessness and New Vagrancy Laws

Marina Fisher Nathaniel Miller Lindsay Walter and Jeffrey Selbin (University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students , University of California, Berkeley, School of Law, Students , University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law) have posted California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State on SSRN. Here is the abstract:

Vagrancy laws conjure up a distant past when authorities punished people without a home or permanent residence. Whether the objects of pity or scorn, vagrants could be cited or jailed under laws selectively enforced against anyone deemed undesirable. Although such laws have generally been struck down by courts as unconstitutionally vague, today’s “vagrants” are homeless people, who face growing harassment and punishment for their presence in public.

More than one in five homeless people in the country lives in California, and two-thirds are unsheltered. The state legislature has done little to respond to this widespread problem, forcing municipal governments to address homelessness with local laws and resources. Cities have responded by enacting and enforcing new vagrancy laws — a wide range of municipal codes that target or disproportionately impact homeless people.

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February 17, 2015 | Permalink | Comments (0)

Ristroph on Just Violence

Ristroph_aliceAlice Ristroph (Seton Hall University - School of Law) has posted Just Violence (Arizona Law Review, Vol. 56, 2014) on SSRN. Here is the abstract:

Ethical reflections on war — and the positive laws these reflections have inspired — have framed their undertaking as the effort to limit and regulate state violence. Ethical reflections on punishment have not been framed in the same way, but they should be. Three characteristics of the philosophy (and laws) of war prove especially instructive for the philosophy (and laws) of punishment. First, the ethics of war is an ethics of violence: it acknowledges and addresses the gritty and often brutal realities of actual armed conflict. Punishment theory too often denies the violence of punishment or otherwise neglects the realities of penal practices. Second, philosophers of war tend to keep the usual agent of war’s violence — the state — squarely in view, whereas punishment theory tends to focus on the target of punishment rather than its agent. Third, and most importantly, commentators on the ethics of war have come to realize that the humanitarian project of limiting violence is a different and more difficult task than the project of justifying violence. This insight has produced the jus in bello: a set of principles aimed at limiting the violence of war without adopting a view of the war’s justification. Punishment theory has long been focused on the project of justifying punishment, but this Article sketches the contours of a jus in poena: philosophical and legal principles designed to regulate the conduct of punishment without adopting any particular theoretical justification for punishment.

February 17, 2015 | Permalink | Comments (0)

Kramer on Torture Warrants

Matthew H. Kramer (Churchill College, Cambridge University) has posted Alan Dershowitz's Torture-Warrant Proposal: A Critique on SSRN. Here is the abstract:

One major set of issues pertaining to the legal regulation of torture is centered on the question whether the use of torture should ever be legally authorized ex ante. Though punitive torture is no longer officially practiced in any liberal democracy, the matter of interrogational torture is still a live point of contention. One of the most widely discussed and frequently condemned proposals in recent years, floated chiefly by Alan Dershowitz, has submitted that certain torturous techniques of interrogation should indeed be legally authorized - provided that warrants for the plying of such techniques are sought and obtained beforehand by the relevant officials. Dershowitz’s torture-warrant proposal has been trenchantly criticized by quite a few of the other philosophers and legal theorists who write on these matters, but much remains to be said. The present paper undertakes a systematic demolition of Dershowitz's arguments.

February 17, 2015 | Permalink | Comments (0)

Vance on Prosecutors and Social Media

Emily Vance has posted Should Prosecutors Blog, Post, or Tweet?: The Need for New Restraints in Light of Social Media (Fordham Law Review, 2015) on SSRN. Here is the abstract:

Prosecutors’ out-of-court statements to the press and the public at large have been of concern for over a century. Consequently, ethical rules and standards have been implemented to protect defendants from undue reputational harm as well as to strike a balance between trial participants’ right to free speech and defendants’ right to due process. Although these rules and standards are periodically revised, they have not yet accounted for the differences between traditional media, for which the rules and standards were written, and social media. Recently, however, prosecutors have used social media to discuss pending cases and other aspects of the prosecutorial function, which has raised concern regarding how social media may magnify both the benefits and the harms associated with prosecutors’ extrajudicial statements. 

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February 17, 2015 | Permalink | Comments (1)

Monday, February 16, 2015

Howlin on The Role of Irish Jurors

Niamh Howlin (Sutherland School of Law, University College Dublin) has posted Irish Jurors: Passive Observers or Active Participants? ((2014) 35(2) Journal of Legal History 143-171) on SSRN. Here is the abstract:

What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may also have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.

February 16, 2015 | Permalink | Comments (0)

Sheehy et al. on Battered Women Charged with Homicide

Elizabeth A. Sheehy Julie Stubbs and Julia Tolmie (University of Ottawa - Common Law Section , University of New South Wales (UNSW, Australia) - Faculty of Law and University of Auckland) have posted Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls (Melbourne University Law Review, Vol. 38, No. 2, 2014) on SSRN. Here is the abstract:

Despite law reforms intended explicitly to improve their prospects of receiving fairer consideration within the criminal justice system, it is still the case that most battered women accused of homicide are not successful in relying on self-defence. Defending battered women charged with homicide offers substantial challenges for defence lawyers. Acquittals leave little trace in standard modes of legal reporting and thus there are few opportunities for defence lawyers to examine the advocacy of their peers. In this article we document strategies that may support successful outcomes with specific reference to R v Falls, in which a battered woman charged with murder in ‘non-confrontational circumstances’ was acquitted on the basis of self-defence.

February 16, 2015 | Permalink | Comments (0)

Levine, Turner & Wright on Evidence Laundering and the Exclusionary Rule

Kay L. Levine Jenia Iontcheva Turner and Ronald F. Wright (Emory University School of Law , Southern Methodist University - Dedman School of Law and Wake Forest University - School of Law) have posted Evidence Laundering: How Herring Made Ignorance the Best Detergent on SSRN. Here is  the abstract:

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who receives the evidence, develops it further, and delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash. 

In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights.

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February 16, 2015 | Permalink | Comments (0)

Mitchell on Deferred Corporate Prosecution

Lawrence E. Mitchell (Case Western Reserve University School of Law) has posted Deferred Corporate Prosecution as Corrupt Regime: The Case for Prison on SSRN. Here is the abstract:

This paper looks at the growing phenomenon of deferred corporate criminal prosecutions from a new perspective. The literature accepts the practice and is largely concerned with the degree to which efficient and effective criminal deterrence is achieved through pretrial diversion. I examine the practice and conclude that it presents, from a structural perspective, a case of a corrupt law enforcement regime centered in the United States Department of Justice. The regime works in effective – if unintentional – conspiracy with corporate officials to produce an inefficient enforcement regime that disregards democratic processes and threatens a loss of respect for the rule of law. I conclude that the use of individual prosecution with the possibility of prison for corporate executives is the most effective way to restore the corporate criminal regime to a functioning legal practice.

February 16, 2015 | Permalink | Comments (0)

Sunday, February 15, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 674 Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence 
Kent Roach and Craig Forcese 
University of Toronto - Faculty of Law and University of Ottawa - Common Law Section 
Date posted to database: 5 Feb 2015 [new to top ten]
2 282 Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence 
Craig Forcese and Kent Roach 
University of Ottawa - Common Law Section and University of Toronto - Faculty of Law 
Date posted to database: 9 Jan 2015 
3 229 Can the International Criminal Court Deter Atrocity? 
Hyeran Jo and Beth A. Simmons 
Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government 
Date posted to database: 21 Jan 2015 
4 177 The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act 
Kenneth C. Kettering 
Visiting Professor at Large 
Date posted to database: 24 Dec 2014 [5th last week]
5 140 A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar 
John H. BlumeSheri Lynn JohnsonPaul Marcus andEmily C. Paavola 
Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School 
Date posted to database: 16 Jan 2015 [10th last week]
6 127 Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform 
Allegra M. McLeod 
Georgetown University Law Center 
Date posted to database: 18 Dec 2014 [8th last week]
7 127 Beyond a Reasonable Disagreement: Judging Habeas Corpus 
Noam Biale 
Independent 
Date posted to database: 25 Jan 2015 [9th last week]
8 110 Arrests as Regulation 
Eisha Jain 
Georgetown University Law Center 
Date posted to database: 19 Dec 2014 [new to top ten]
9 110 Inevitable: Sports Gambling, State Regulation, and the Pursuit of Revenue 
Anastasios KaburakisRyan M. Rodenberg and John T. Holden 
Saint Louis University - John Cook School of Business - Department of Management, Florida State University and Florida State University 
Date posted to database: 12 Jan 2015 [new to top ten]
10 110 The Politics of Legal Challenges to Pornography: Canada, Sweden, and the United States 

Date posted to database: 20 Dec 2014 [new to top ten]

February 15, 2015 | Permalink | Comments (0)

"Hundreds Protest Fatal Police Shooting in Washington"

From The New York Times:

About 500 people gathered at a park to protest the death of Antonio Zambrano-Montes, 35, who was killed Tuesday after three officers chased him through a busy intersection with their guns drawn. As he turned to face them, raising his arms, he was felled by their bullets.

According to police reports, Mr. Zambrano-Montes had been throwing rocks at cars and officers.

His death was caught on video by a bystander and the footage has been widely disseminated on social media, fueling anger among the mainly Hispanic population of this quiet agricultural hub in southern Washington State, and drawing comparisons to the shooting of an unarmed black teenager, Michael Brown, in Ferguson, Mo.

February 15, 2015 | Permalink | Comments (1)

Death penalty news

Friday, February 13, 2015

Gerstein on Counsel at Bail Determinations

Charlie Gerstein has posted Plea Bargaining and the Right to Counsel at Bail Determination (Michigan Law Review, Vol. 111, No. 1513, 2013) on SSRN. Here is the abstract:

A couple million indigent defendants in this country face bail hearings each year, and most of them do so without court-appointed lawyers. In two recent companion cases, Lafler v. Cooper and Missouri v. Frye, the Supreme Court held that the loss of a favorable plea bargain can satisfy the prejudice prong of an ineffective assistance of counsel claim. If the Constitution requires effective assistance of counsel to protect plea bargains, it requires the presence of counsel at proceedings that have the capacity to prejudice those bargains. Pretrial detention has the capacity to prejudice a plea bargain because a defendant held on bail will plead guilty when faced with any deal that promises he will serve less time than he expects to wait in jail. Because a bad outcome at a bail hearing can prejudice the defendant in subsequent plea bargaining, bail is now a critical stage.

February 13, 2015 | Permalink | Comments (0)

Billauer on Daubert

Barbara P. Billauer (Institute of World Politics) has posted Dumping Daubert, Popping Popper and Falsifying Falsifiability: A Re-Assessment of First Principles on SSRN. Here is the abstract:

The Daubert mantra demands that judges, acting as gatekeepers, prevent para, pseudo or bad science from infiltrating the courtroom. To do so, the Judges must first determine what is ‘science’ and what is ‘good science.’ 

It is submitted that Daubert is deeply polluted with the notions of Karl Popper who sets ‘falsifiability’ and ‘falsification’ as the demarcation line for that determination. This philosophy has intractably infected case law, leading to bad decisions immortalized as stare decisis, and an unworkable system of decision-making which negatively impacts litigant expectations. Among other problems is the intolerance of Popper’s system for multiple causation, a key component of toxic tort law. Thus, the objective of this work is to sanitize the gatekeeping mindset from the philosophy of Popper, the first step in creating a new gatekeeping paradigm. 

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February 13, 2015 | Permalink | Comments (0)

Alper on The Execution Drug Shortage

Alper tyTy Alper (University of California, Berkeley) has posted The United States Execution Drug Shortage: A Consequence of Our Values (Brown Journal of World Affairs, 2014) on SSRN. Here is the abstract:

The recent inability of states to obtain drugs for use in executions has led to de facto moratoria in a number of states, as well as gruesomely botched executions in states that have resorted to dangerous and unreliable means to obtain these drugs. The refusal of some pharmaceutical companies to provide drugs to U.S. prisons has significantly impeded the imposition of the death penalty in a number of states. Despite this, it is the anti-death penalty activists who tend to draw the attention of the media, state officials, and politicians charged with carrying out executions. The media focuses particular attention on advocates in Europe who have campaigned to pressure European drug companies to stop distribution of their products to U.S. prisons for use in executions. This paper challenges that narrative and posits instead that it is the drug companies that have long sought to avoid the use of their products in executions, for moral and financial reasons, as well as to comply with European law. When we look back on the fourth decade of the modern era of capital punishment in the United States, we may consider it the decade that marked the beginning of the end. If so, it will not be the result of a handful of activists successfully thwarting the administration of capital punishment. Rather, it will be the consequence of U.S. states imposing the death penalty in the context of a modern world that generally abhors the practice, using a method of execution that is very much dependent on major players in that world.

February 13, 2015 | Permalink | Comments (0)

Thursday, February 12, 2015

Baer on Timing Brady

Baer_miriamMiriam H. Baer (Brooklyn Law School) has posted Timing Brady (Columbia Law Review, Vol. 115, No. 1, 2015) on SSRN. Here is the abstract:

Criminal discovery reform has accelerated in recent years, triggered in part by the prosecution’s widely perceived failure to abide by its constitutional obligation, articulated in Brady v. Maryland, to disclose exculpatory evidence. Practitioners and academics, disillusioned by the Supreme Court’s hands-off approach, have sought reform along three axes: legislatively expanding criminal discovery’s scope, increasing the degree and likelihood of prosecutorial sanctions, and altering the organizational dynamics that encourage prosecutors to withhold exculpatory evidence.

None of these approaches, however, addresses the issue of timing and its effect on prosecutors.

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February 12, 2015 | Permalink | Comments (0)

Jordan on Campaign Contributions as Implicit Bribery

Brian Francesco Jordan has posted Disclosing Bribes in Disguise: Campaign Contributions as Implicit Bribery and Enforcing Violations Impartially (University of Pennsylvania Journal of Constitutional Law, May 2015, Forthcoming) on SSRN. Here is the abstract:

Few Americans would question the appropriateness of assessing criminal sanctions on public officials who accept bribes in exchange for returning influence or power by wrongly capitalizing on their access to government resources. Less clear, is how government officials, federal courts, and election law scholars should solve problems relating to implicit forms of bribery that involve campaign contributions. Complicating this issue is the central role of privately funded campaigns in American elections and the idea that government officials should be able to actively solicit campaign contributions in order to run successful campaigns. Thus, any reforms in this area must strike a careful balance to avoid violating the First Amendment protections afforded to those participating in political campaigns.

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February 12, 2015 | Permalink | Comments (0)

Greenwood & Wattal on Ride Sharing and Alcohol Related Motor Vehicle Homicides

Brad N Greenwood and Sunil Wattal (Temple University - Department of Management Information Systems and Temple University - Department of Management Information Systems) have posted Show Me the Way to Go Home: An Empirical Investigation of Ride Sharing and Alcohol Related Motor Vehicle Homicide on SSRN. Here is the abstract:

In this work, we investigate how the entry of the driving service Uber influences the rate of alcohol related motor vehicle homicides. While significant debate has surrounded the entry of driving services like Uber and Lyft, limited rigorous empirical work has been devoted to uncovering the social benefits of such services (or the mechanism which drives these benefits). Using a difference in difference approach to exploit a natural experiment, the entry of Uber into markets in California between 2009 and 2013, findings suggest a significant drop in the rate of homicides during that time. Furthermore, results suggest that not all services offered by Uber have the same effect, insofar as the effect for the Uber Black car service is intermittent and manifests only in selective locations. These results underscore the coupling of increased availability with cost savings which are necessary to exploit the public welfare gains offered by the sharing economy. Practical and theoretical implications are discussed within.

February 12, 2015 | Permalink | Comments (0)

Wednesday, February 11, 2015

Caldwell & Hewitt on Jury Selection and Racial Stereotyping

Harry M. Caldwell and Adrienne M Hewitt (Pepperdine University - School of Law and Pepperdine University - School of Law) have posted Shades of Guilt: Combating the Continuing Influence Upon Jury Selection of Racial Stereotyping in Post-Batson Trials (American Journal of Trial Advocacy, Vol. 38, No. 67, 2014) on SSRN. Here is the abstract:

This Article addresses the role stereotypes, particularly racial stereotypes, play in the process of jury selection in criminal cases. This Article discusses the law that has evolved since Batson and uses empirical data to provide added insight into the exercise of peremptory challenges. Further, the authors consider how current scholarship in cognitive psychology reveals the influence of stereotypes on decision-making. In the final section, the authors offer practical approaches that both prosecutors and defense lawyers can use while making jury decisions.

February 11, 2015 | Permalink | Comments (1)