CrimProf Blog

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

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Saturday, July 26, 2014

"Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?"

Doug Berman has this post at Sentencing Law & Policy, excerpting an opinion piece from The New York Times.

July 26, 2014 | Permalink | Comments (0)

Friday, July 25, 2014

Tillipman on Gifts, Hospitality & the Government Contractor

Tillipman jessicaJessica Tillipman (The George Washington University Law School) has posted Gifts, Hospitality & the Government Contractor on SSRN. Here is the abstract:

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services to the government.

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July 25, 2014 | Permalink | Comments (0)

"President Barack Obama to issue executive order on drone privacy"

FourthAmendment.com links to and excerpts this piece from Politico.

July 25, 2014 | Permalink | Comments (0)

Bowden et al. on Cross-Examining Vulnerable Witnesses

Phoebe Bowden Terese Henning and David Plater (University of South Australia - School of Law , University of South Australia - School of Law and University of South Australia - School of Law) have posted Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation? (Melbourne Univeristy Law Review, Vol. 37, 2014) on SSRN. Here is the abstract:

Cross-examination is fundamental to the adversarial criminal trial. However, when children and witnesses with an intellectual disability are cross-examined, it can lead to unreliable evidence and further trauma to the victim. Various reforms in Australian jurisdictions, England and elsewhere have had only limited practical elect as they fail to address the underlying problems that arise from the adversarial system itself. While any changes must maintain a defendant’s vital right to a fair trial, the current criminal trial may allow defendants an illegitimate advantage. Fairness to the defendant, victim and society can and must be balanced. In order to reduce any illegitimate advantage, direct cross-examination should be removed. Instead, cross-examination should be conducted in advance of trial by a suitable third party and video-recorded. A similar process is used in Norway. A wholesale transformation into an inquisitorial system is not required for the benefits of non-adversarial examination to be achieved.

July 25, 2014 | Permalink | Comments (0)

Thursday, July 24, 2014

"De-policing New York"

From City Journal:

The biggest threat facing minority New Yorkers now is not “over-policing,” and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner’s are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws—such as the one making officers financially liable for alleged “racial profiling”—NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner’s death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.

July 24, 2014 | Permalink | Comments (0)

"At Least 3/4 Of Newark Pedestrian Police Stops Had No Constitutional Basis, Justice Department Finds"

From ThinkProgress:

Police had no apparent constitutional basis for at least three-quarters of pedestrian stops in Newark, New Jersey, a three-year U.S. Department of Justice review concluded this week. That finding was just the top line of a report that also found gross racial disparities in those stops, a pattern of excessive force, retaliation against suspects, and officer theft from suspects during stops.

“Our investigation uncovered troubling patterns in stops, arrests and use of force by the police in Newark,” said U.S. Attorney General Eric Holder.

July 24, 2014 | Permalink | Comments (0)

"When may a felon, who is generally barred from possessing a gun, get it to break up a fight?"

Eugene Volokh at The Volokh Conspiracy excerpts a recent Eighth Circuit opinion discussing federal law on justifiable law violations and providing an interesting glimpse into what judges view as reasonable alternatives in a brawl.

July 24, 2014 | Permalink | Comments (0)

Pardo & Patterson on Morse, Mind, and Mental Causation

Michael S. Pardo and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Morse, Mind, and Mental Causation (Criminal Law and Philosophy, Forthcoming) on SSRN. Here is the abstract:

Stephen Morse's illuminating scholarship on law and neuroscience relies on a "folk psychological" account of human behavior in order to defend the law's foundations for ascribing legal responsibility. The heart of Morse's account is the notion of "mental state causation," in which mental states (e.g., beliefs, desires, and intentions) cause behavior. Morse argues that causation of this sort is necessary to support legal responsibility. We challenge this claim. First, we discuss problems with the conception of mental causation on which Morse appears to rely. Second, we present an alternative account to explain the link between mental states, reasons, and actions (the "rational-teleological" account). We argue that the alternative account avoids the conceptual problems that arise for Morse's conception of mental causation and that it also undergirds ascriptions of legal responsibility. If the alternative succeeds, then Morse's conception of "mental state causation" is not necessary to support legal responsibility.

July 24, 2014 | Permalink | Comments (0)

"Prosecutors Are Reading Emails From Inmates to Lawyers"

From The New York Times:

The issue has spurred court battles over whether inmates have a right to confidential email communications with their lawyers — a question on which federal judges have been divided.

. . .

All defendants using the federal prison email system, Trulincs, have to read and accept a notice that communications are monitored, prosecutors in Brooklyn pointed out. Prosecutors once had a “filter team” to set aside defendants’ emails to and from lawyers, but budget cuts no longer allow for that, they said.

While prosecutors say there are other ways for defense lawyers to communicate with clients, defense lawyers say those are absurdly inefficient.

July 24, 2014 | Permalink | Comments (0)

Wednesday, July 23, 2014

Levmore & Porat on Credible Threats

Saul Levmore and Ariel Porat (University of Chicago Law School and Tel Aviv University) have posted Credible Threats on SSRN. Here is the abstract:

“Your money or your life” is a classic threat, and it is one that law is prepared to penalize. The sanction may occasionally do more harm than good, but for the most part the law’s treatment of such serious threats is sensible. In contrast, “If you do not lower the price of that automobile I hope to buy, I will never return to this dealership” is a threat that law ignores. The buyer is free to return the next day and reveal that the threat was a bluff. In both cases the threat is a more valuable signal if the listener can weed out bluffs. This Article suggests that there is a good case to be made for legal intervention on behalf of some commercial threats, in order to enhance their credibility and signaling value. Third-party effects do, however, complicate the analysis. We suggest that the best remedy in support of valuable threats is to put the nonthreatening party at risk in the event that it enters into an arrangement that the threat-maker previously forswore.

The analysis develops the ingredients for credibility in commercial, criminal, and international contexts, including the cost of executing a threat, the role of repeat play, and the calculus of what we call secondary credibility – the likelihood that a threat will be carried out even though the target complies and the danger that capitulation will bring about another threat.

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July 23, 2014 | Permalink | Comments (0)

Kinports on Probable Cause

Kinports kitKit Kinports (Penn State Law) has posted Probable Cause and Reasonable Suspicion: Totality Tests or Rigid Rules? (University of Pennsylvania Law Review Online, Forthcoming) on SSRN. Here is the abstract:

This piece argues that the Supreme Court's April 2014 decision in Navarette v. Calfornia, like last Term's opinion in Florida v. Harris, deviates from longstanding Supreme Court precedent treating probable cause and reasonable suspicion as totality-of-the-circumstances tests. Instead, these two recent rulings essentially rely on rigid rules to define probable cause and reasonable suspicion. The article criticizes the Court for selectively endorsing bright-line tests that favor the prosecution, and argues that both decisions generate rules that oversimplify and therefore tend to be overinclusive.

July 23, 2014 | Permalink | Comments (0)

Lavin on Japanese Criminal Justice

Levin_MarkMark Levin (University of Hawaii at Manoa - William S. Richardson School of Law) has posted Considering Japanese Criminal Justice from an Original Position (「無知のヴェール」から日本の刑事司法を考える) (世界 SEKAI, no. 857, pp. 112-121, June 2014) on SSRN. Here is the abstract:

The criminal justice systems of the United States and Japan are both severely flawed. While some have worked hard to present these deep-seated problems to the public, the overall situation in either country is of stalled reform initiatives and ongoing injustices. 

Race underlies a difference in how reform discussions proceed in the two nations. It is at the core of what ails the system in the U.S., as authors such as Professor Michelle Alexander have powerfully demonstrated. On the other hand, Japan’s would-be reformers operate in an atmosphere of widespread race obliviousness despite there being meaningful racial dynamics at play in Japan today. 

This article, published in a leading Japanese public policy journal, offers that differences in public awareness of race in the two nations are salient.

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July 23, 2014 | Permalink | Comments (0)

Tuesday, July 22, 2014

Shimick on Pretextual Prosecution and "Breaking Bad"

Scott Shimick (SUNY at Geneseo) has posted Heisenberg's Uncertainty: An Analysis of Criminal Tax Pretextual Prosecutions in the Context of Breaking Bad's Notorious Anti-Hero (Tulsa Law Review, Forthcoming) on SSRN. Here is the abstract:

Commentators have roundly criticized pretextual prosecutions, such as prosecuting Al Capone for tax evasion rather than bootlegging, arguing that the government should minimize the use of pretextual prosecutions. However, pretextual prosecutions serve as a valuable tool for law enforcement.

In Breaking Bad, Walter White becomes a violent criminal who produces and sells narcotics. Throughout the series, he is very careful to conceal or destroy any evidence linking him to the violence and drug trafficking. However, as the bootleggers and gangsters of the Prohibition-era learned, the government holds the trump card, criminal tax prosecution. By charging drug traffickers with criminal tax fraud, the government can imprison dangerous criminals without having to prove beyond a reasonable doubt that the drug traffickers actually produced and sold narcotics. This article examines criminal tax fraud statutes and methods of proof, analyzing these statutes and methods in the context of whether Walter White should have fled from prosecution. Through this analysis, this article demonstrates the value of pretextual criminal tax fraud prosecutions.

July 22, 2014 | Permalink | Comments (1)

Bergman & Sokol on Leniency and Cartel Enforcement

Howard Bergman and D. Daniel Sokol (Howard J. Bergman Consulting and University of Florida - Levin College of Law) have posted The Air Cargo Cartel: Lessons for Compliance (ANTI-CARTEL ENFORCEMENT IN A CONTEMPORARY AGE - LENIENCY RELIGION (Caron Beaton-Wells, editor), Forthcoming) on SSRN. Here is the abstract:

Cartel enforcement and leniency are issues of increased academic attention. Most of the academic work in this area focuses on scholarship regarding formal modeling of leniency, empirical work, and analyses of broader legal theories, analytical trends and specific decisions. Scholarship has not focused on how leniency works in practice to detect wrongdoing and how robust and effective compliance programs may be used as a tool to take advantage of leniency. This chapter fills in the gap by offering a case study of an effective compliance program that uncovered what was at the time the largest ever international cartel. To do so, the authors undertook interviews with the legal team of Lufthansa, the leniency applicant in the air cargo conspiracy.

July 22, 2014 | Permalink | Comments (0)

Monday, July 21, 2014

"Boston Bombing Suspect’s Friend Is Convicted of Conspiracy and Obstruction"

From The New York Times:

In the case that ended on Monday, prosecutors said that after Mr. Tazhayakov and another friend, Dias Kadyrbayev, realized Mr. Tsarnaev was a suspect in the bombing, they removed items including a backpack and a laptop from Mr. Tsarnaev’s dorm room, and agreed to throw out the backpack. The men attended the University of Massachusetts Dartmouth. The jury found Mr. Tazhayakov guilty in connection with the removal of the backpack, but not the laptop.

. . .

Prosecutors asserted that he was contacted by Mr. Kadyrbayev shortly after surveillance photos of the Tsarnaev brothers were released by the F.B.I. on April 18 — three days after the bombing. The government contended that the two met and looked at those photos on Mr. Kadyrbayev’s phone, and that Mr. Kadyrbayev showed Mr. Tazhayakov a text message from Mr. Tsarnaev imploring him to “go to my room and take what’s there.”

July 21, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 791 Not an 'Ebay for Drugs': The Cryptomarket 'Silk Road' as a Paradigm Shifting Criminal Innovation 
Judith Aldridge and David Décary-Hétu 
University of Manchester - School of Law and University of Montreal - School of Criminology 
Date posted to database: 15 May 2014 [first two weeks ago]
2 318 Katz Has Only One Step: The Irrelevance of Subjective Expectations 
Orin S. Kerr 
George Washington University - Law School 
Date posted to database: 13 Jun 2014 
3 234 Sales Suppression as a Service (SSaaS) & the Apple Store Solution 
Richard Thompson Ainsworth 
Boston University - School of Law 
Date posted to database: 6 Jun 2014 [5th last time]
4 230 The Brave New World of Cell-Site Simulators 
Heath Hardman 
Albany Law School 
Date posted to database: 24 May 2014 [3rd last time]
5 202 The Failure of Mitigation? 
Robert J. SmithSophie Cull and Zoe Robinson 
University of North Carolina School of Law, Independent and DePaul University College of Law 
Date posted to database: 8 Jun 2014 [7th last time]
6 185 Group Agency and Legal Proof; or, Why the Jury is an 'It' 
Michael S. Pardo 
University of Alabama School of Law 
Date posted to database: 18 May 2014 [9th last time]
7 137 Prosecutorial Discretion and the Duty to Seek Justice in an Overburdened Criminal Justice System 
Babe Howell 
CUNY School of Law 
Date posted to database: 16 May 2014 [new to top ten]
8 129 Histories of Crime and Criminal Justice and the Historical Analysis of Criminal Law 
Markus D. Dubber 
University of Toronto - Faculty of Law 
Date posted to database: 14 May 2014 [new to top ten]
9 128 Psychological Perspectives: Cognition and Decision Making 
Keith A. Findley and Barbara O'Brien 
University of Wisconsin Law School and Michigan State University - College of Law 
Date posted to database: 20 May 2014 [new to top ten]
10 124 When Do State Laws Determine ERISA Plan Benefit Rights? 
Albert Feuer 
Law Offices of Albert Feuer 
Date posted to database: 22 May 2014 [new to top ten]

July 21, 2014 | Permalink | Comments (0)

"FedEx indicted for drug dealing. Not a delivery guy — the whole company."

From The Washington Post:

According to prosecutors, the company knew the shipping services it provided to two Internet pharmacies ran afoul of the law.

“FedEx knew that it was delivering drugs to dealers and addicts,” said a press release from the U.S. Attorney’s Office of the Northern District of California.

The company didn’t just deny the charges — it said that monitoring packages for illegal substances isn’t its job.

July 21, 2014 | Permalink | Comments (0)

Saturday, July 19, 2014

Death of FSU CrimProf Dan Markel

Here's a link to an account of this sad news.

July 19, 2014 | Permalink | Comments (0)

"On Deterrence"

This post at Crime & Consequences seems to infer that deterrence arguments are always correct from the fact that deterrence arguments are sometimes correct, but it does report on an interesting example from the Christian Science Monitor:

In 2011, 237 ships were attacked by pirates around northeast Africa.  So far this year there have been seven attacks which all failed.  What happened?  Warships were dispatched to patrol the area and the shipping companies hired armed security guards to repel the pirates.  The pirates who have been captured have been prosecuted and imprisoned.  Interviews with gang leaders who had previously managed the pirates and the pirates themselves reveal that, due to the increased consequences for piracy, it is no longer worth the risk.

July 19, 2014 | Permalink | Comments (0)

Friday, July 18, 2014

Sidhu on Moneyball Sentencing

Sidhu dawinderDawinder S. Sidhu (University of New Mexico - School of Law) has posted Moneyball Sentencing on SSRN. Here is the abstract:

Sentencing is a backward- and forward-looking enterprise. That is, sentencing is informed by an individual’s past conduct as well as by the criminal justice system’s prediction of the individual’s future criminal conduct. Increasingly, the criminal justice system is making these predictions on an actuarial basis, computing the individual’s risk of recidivism according to the rates of recidivism for people possessing the same group characteristics (e.g., race, sex, socio-economic status, education). The sentencing community is drawn to this statistical technique because it purportedly distinguishes with greater accuracy the high-risk from the low-risk, and thereby allows for a more efficient allocation of sentencing resources, reserving incarceration for the truly dangerous and saving the low-risk from needless penal attention.

Despite these asserted benefits, risk-assessment tools are exogenous to the theories of punishment, the very foundation for sentencing in Anglo-American jurisprudence. This Article reviews the legality and propriety of actuarial predictive instruments, using these theories and governing constitutional and statutory law as the touchstone for this analysis.

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July 18, 2014 | Permalink | Comments (0)