CrimProf Blog

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

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Sunday, October 12, 2014

"Judge Rejects Defense That FBI Illegally Hacked Silk Road—On a Technicality"

From Wired, following up on an earlier post:

But the Judge’s rejection of that argument comes down to what may be seen as a fateful technicality: she argues that even if the FBI did hack the Silk Road server, Ulbricht hadn’t sufficiently demonstrated that the server belonged to him, and thus can’t claim that his privacy rights were violated by its search. “Defendant has…brought what he must certainly understand is a fatally deficient motion to suppress [evidence],” the judge writes. “He has failed to take the one step he needed to take to allow the Court to consider his substantive claims regarding the investigation: he has failed to submit anything establishing that he has a personal privacy interest in the Icelandic server or any of the other items imaged and/or searched and/or seized.”

October 12, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 341 A 'Holocaust in Slow Motion?' America's Mass Incarceration and the Role of Discretion 
Mark William Osler and Mark W. Bennett 
University of St. Thomas - School of Law (Minnesota) and U.S. District Court (Northern District of Iowa) 
Date posted to database: 1 Sep 2014 [[2nd last week]
2 334 Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team 
Jonathan Abel 
Stanford Law School - Constitutional Law Center 
Date posted to database: 27 Aug 2014 [3rd last week\
3 237 Banks, Marijuana, and Federalism 
Julie Andersen Hill 
University of Alabama - School of Law 
Date posted to database: 30 Aug 2014 [5th last week]
4 212 Intellectual Property Infringement as Vandalism 
Irina D. Manta and Robert E. Wagner 
Hofstra University - Maurice A. Deane School of Law and City University of New York (CUNY) Baruch College Zicklin School of Business Department of Law 
Date posted to database: 24 Aug 2014 [6th last week]
5 198 It's a 'Criming Shame': Moving from Land Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts 
Patricia Salkin and Bailey Ince 
Touro College - Jacob D. Fuchsberg Law Center and Touro College - Jacob D. Fuchsberg Law Center 
Date posted to database: 5 Sep 2014 [8th last week]
6 182 Waking the Furman Giant 
Sam Kamin and Justin F. Marceau 
University of Denver Sturm College of Law and University of Denver Sturm College of Law 
Date posted to database: 5 Aug 2014 
Last Revised: 15 Aug 2014 [7th last week]
7 171 Rebellion: The Courts of Appeals' Latest Anti-Booker Backlash 
Alison Siegler 
University of Chicago Law School 
Date posted to database: 23 Aug 2014  [9th last week]
8 170 Law and Neuroscience: Recommendations Submitted to the President's Bioethics Commission 
Owen D. JonesRichard J. BonnieBJ CaseyAndre DavisDavid L. Faigman,Morris B. HoffmanRead MontagueStephen Morse,Marcus E. RaichleJennifer A. RichesonElizabeth S. Scott,Laurence SteinbergKim A. Taylor-ThompsonAnthony D. Wagner and Gideon Yaffe 
Vanderbilt University - Law School & Dept. of Biological Sciences, University of Virginia - School of Law, Sackler Institute for Developmental Psychobiology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Northwestern University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law, Stanford University - Psychology and Yale Law School 
Date posted to database: 31 Aug 2014 [10th last week]
9 138 Drafting an Effective 'Revenge Porn' Law: A Guide for Legislators 
Mary Anne Franks 
University of Miami School of Law 
Date posted to database: 21 Jul 2014 [new to top ten]
10 131 Scientizing Culpability: The Implications of Hall v. Florida and the Possibility of a 'Scientific Stare Decisis'
Christopher Slobogin 
Vanderbilt University - Law School 
Date posted to database: 9 Aug 2014 [new to top ten]

October 12, 2014 | Permalink | Comments (0)

Saturday, October 11, 2014

Woods on Decriminalization, Police Authority, and Routine Traffic Stops

Jordan Blair Woods (University of Cambridge) has posted Decriminalization, Police Authority, and Routine Traffic Stops (UCLA Law Review, Vol. 62, No. 3, 2015, Forthcoming) on SSRN. Here is the abstract:

Although there is no universal definition of "decriminalization," discussions about decriminalization largely focus on modifying how conduct is sanctioned or punished. This Article contends that there is a need to broaden discussions about decriminalization beyond sanctions to consider restrictions on police authority. As argued, sanction-focused approaches to decriminalization fail to capture the costs and harms imposed by formal institutions of social control — such as the police — at earlier stages of the criminal justice process.

To illustrate these points, this Article focuses on the most common form of civilian interaction with the police — the routine traffic stop. Through original research, this Article shows that since the 1970s twenty-two states have decriminalized minor traffic violations by removing criminal sanctions, reclassifying the violations as noncriminal offenses, and streamlining their adjudication to the administrative realm. It then exposes and examines an asymmetry in the criminal justice process that has emerged from the sanction-focused nature of traffic decriminalization. The heart of this asymmetry is that the primary focus on sanctions within the traffic decriminalization movement has enabled states to maintain full access to methods of social control via the policing of traffic to further crime-control policies (for example, drug interdiction). This access occurs even when police initially target noncriminal traffic conduct and comes at the expense of civilian physical security, privacy, liberty, and dignity. 

Continue reading

October 11, 2014 | Permalink | Comments (0)

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Wednesday

  • Jennings v. Stephens: Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

October 11, 2014 | Permalink | Comments (0)

Friday, October 10, 2014

Yung on Concealing Campus Sexual Assault

Yung coreyCorey Rayburn Yung (University of Kansas School of Law) has posted Concealing Campus Sexual Assault: An Empirical Examination on SSRN. Here is the abstract:

This study tests whether there is substantial undercounting of sexual assault by universities. It compares the sexual assault data submitted by universities while being audited for Clery Act violations with the data from years before and after such audits. If schools report higher rates of sexual assault during times of higher regulatory scrutiny (audits), then that result would support the conclusion that universities are failing to accurately tally incidents of sexual assault during other time periods. The study finds that university reports of sexual assault increase by approximately 44% during the audit period. However, after the audit is completed, the reported sexual assault rates drop to levels statistically indistinguishable from the pre-audit time frame.

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October 10, 2014 | Permalink | Comments (0)

"Feds “Hacked” Silk Road Without a Warrant. Was That Legal?"

From Slate.com:

With only a month until the scheduled trial of Ross Ulbricht, the alleged creator of the drug site Silk Road, Ulbricht’s defense lawyers have zeroed in on the argument that the U.S. government illegally hacked the billion-dollar black market site to expose the location of its hidden server. The prosecution’s latest rebuttal to that argument takes an unexpected tack: Prosecutors claim that even if the FBI did hack Silk Road without a warrant—and prosecutors are careful not to admit they did—that intrusion would be a perfectly law-abiding act of criminal investigation.

. . .

“Even if the FBI had somehow ‘hacked’ into the [Silk Road] Server in order to identify its IP address, such an investigative measure would not have run afoul of the Fourth Amendment,” the prosecutors’ new memo reads. “Given that the SR Server was hosting a blatantly criminal website, it would have been reasonable for the FBI to ‘hack’ into it in order to search it, as any such ‘hack’ would simply have constituted a search of foreign property known to contain criminal evidence, for which a warrant was not necessary.”

October 10, 2014 | Permalink | Comments (0)

Thursday, October 9, 2014

"Executing Search Warrants in the Cloud"

Kent Scheidegger at Crime & Consequences links to an article on the topic in the FBI Law Enforcement Bulletin.

October 9, 2014 | Permalink | Comments (0)

Vladeck on Terrorism Prosecutions and "Cross-Ruffing"

Vladeck stephenStephen I. Vladeck (American University - Washington College of Law) has posted Terrorism Prosecutions and the Problem of Constitutional 'Cross-Ruffing' (36 Cardozo Law Review, 2014, Forthcoming) on SSRN. Here is the abstract:

Under current U.S. law, certain terrorism suspects are potentially subject to both military detention and civilian criminal prosecution if and when they are apprehended by the United States. This result may seem wholly unsurprising in light of the hybrid approach the United States has pursued with respect to combating the threats posed by al Qaeda and its affiliates — relying simultaneously on the very separate legal regimes governing uses of military force and ordinary law enforcement. But the flexibility available to the government by combining these historically distinct paradigms in individual cases raises a host of thorny legal questions; the implications of which have not adequately been explored.

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October 9, 2014 | Permalink | Comments (0)

Bennett on "Anchoring Effect" and "Blind Spot" Biases in Federal Sentencing

Mark W. Bennett has posted Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw (Journal of Criminal Law and Criminology, Vol. 104, No. 3, p. 489, 2014) on SSRN. Here is the abstract:

Cognitive "anchoring effect" bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by "anchoring" a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range.

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October 9, 2014 | Permalink | Comments (0)

"Trying not to get too excited about SCOTUS relist in Jones/Ball acquitted conduct case"

Doug Berman has this post at Sentencing Law & Policy. In part:

But, while the Dougie Downer voice in my head will keep telling me not to get too excited by all this, the optimist voice in my head keeps imaginging that the big baseball and Sixth Amendment fans on the Supreme Court, namely Justices Scalia and Sotomayor, are going to convince enough of their colleague to finally be willing to "play Ball" and take up the acquitted conduct issue in Jones v. US.   

October 9, 2014 | Permalink | Comments (0)

Wednesday, October 8, 2014

Ayres on Using Dramatic Narratives to Teach Domestic Violence

Ayres_Susan_100webSusan Ayres (Texas A&M University (TAMU) - School of Law) has posted Using Dramatic Narratives to Teach Domestic Violence on SSRN. Here is the abstract:

The 2003 call of the ABA for teachers to incorporate domestic violence into the law school curricula remains gravely important today. Domestic violence intersects many areas — from family law, to torts, to criminal law. Along with sexual assault, it is one of the most difficult subjects to teach. Students, like the general public, find it hard to comprehend why a person batters, or why a victim stays with the batterer. While students may learn about domestic violence from case law and scholarly excerpts, the best lessons may be learned through narratives, which provide a window into the reasons for battering and the multi-faceted reasons a victim stays with a batterer. In this article, I describe a teaching approach that incorporates narratives by the award-winning, multi-racial writer, Ai (1947-2010). This valuable approach offers a picture of domestic violence that is more compelling than that of casebooks or statistics, and provides students — as future lawyers — with the ability to respond to clients experiencing domestic violence with greater empathy and understanding.

October 8, 2014 | Permalink | Comments (0)

Kirkup on Information about HIV Non-Disclosure Cases

Kyle Kirkup (University of Toronto - Faculty of Law) has posted Releasing Stigma: Police, Journalists, and Crimes of HIV Non-Disclosure in Canada (Ottawa Law Review, Vol. 46, No. 1, 2015) on SSRN. Here is the abstract:

In 2010, a 29-year-old gay man in Ottawa who had recently learned he was HIV-positive was arrested and charged with several criminal offences, including aggravated sexual assault and later attempted murder. Two days after his arrest, the Ottawa Police Service released his photo to the public, along with his name, details of the sexual encounters, and his personal health information. Using this series of events as a case study, this paper examines the complex questions raised when Canadian police services issue press releases in alleged HIV non-disclosure cases, and journalists subsequently convey these stories to the public. While recent legal scholarship has focused almost exclusively on whether HIV non-disclosure should be treated as a criminal law issue or as a public health issue, this paper makes an original contribution by turning to the complicated world of police practices and journalistic ethics to advance three central claims. It first argues that situating narratives of HIV/AIDS in their broader social, political, and historical context reveals that police and journalists have participated in a project of stigmatizing the condition itself, and those living with it, since the emergence of the epidemic. Second, the paper connects the conceptual dots between how the Ottawa case was conveyed to the public in 2010 and the familiar tropes of promiscuity, deviance, and pathology that became synonymous with discourse about gay male sexuality in the early 1980s. Third, the paper shifts to analyze legal reforms, namely expanding the contours of publication bans. Ultimately, however, the paper concludes that imposing ethical duties on police and journalists may constitute a more useful site in beginning to transform the ways that HIV non-disclosure stories are told in Canada.

October 8, 2014 | Permalink | Comments (0)

Tuesday, October 7, 2014

Osler on AIDS, Crack, and C. Everett Koop

Osler markMark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted 1986: AIDS, Crack, and C. Everett Koop (65 Rutgers Law Review (2014), Forthcoming) on SSRN. Here is the abstract:

In 1986, Ronald Reagan’s America confronted twin public health crises: AIDS and crack. There were striking similarities between the two, in that both developed quietly before public alarms were raised; both were identified with traditionally oppressed groups; both spread in a similar pattern; and both created fear in the American public. Where they differed, though, was in the reaction. After initial missteps, AIDS was approached through problem-solving doctors and researchers rather than quarantine. In contrast, crack was confronted with a heavy retributive hand. AIDS was transformed to a chronic, treatable illness. In contrast, crack not only continued to plague communities, but the use of mass incarceration created new problems.

Four striking personalities shaped these differing outcomes.

Continue reading

October 7, 2014 | Permalink | Comments (0)

Transcript from argument on traffic stop based on mistake of law

The transcript in Heien v. North Carolina is here.

October 7, 2014 | Permalink | Comments (0)

Monday, October 6, 2014

"Another civil asset forfeiture outrage"

FourthAmendment.com links to this story in the Washington Post. In part:

This is another common tactic. The cop tells the motorist he is “free to go,” then tosses out a couple of additional questions or asks to bring in the drug dog. The cop can then argue in court that the additional questions were voluntary, not a product of the official detainment. The insinuation here is that the motorist was free to leave, therefore the search was voluntary. It’s pure fiction. What would have happened if, after Simmons summoned the other trooper, Newmerzhycky simply got into his car and drove away? Would Simmons have let him go? Of course not. Driving away would have been cast as an attempt to flee and probably would have brought criminal charges.

October 6, 2014 | Permalink | Comments (0)

Kalhan on the New York Stop-and-Frisk Case

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

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

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

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October 6, 2014 | Permalink | Comments (0)

Hernandez on Naturalizing Immigration Imprisonment

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

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

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October 6, 2014 | Permalink | Comments (0)

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

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

October 6, 2014 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

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

October 6, 2014 | Permalink | Comments (0)

Sunday, October 5, 2014

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

From FindLaw:

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

. . .

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

October 5, 2014 | Permalink | Comments (0)