CrimProf Blog

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

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Monday, July 7, 2014

Simon on Accuracy

Simon danDan Simon (USC Gould School of Law, USC Department of Psychology) has posted Criminal Law at the Crossroads: Turn to Accuracy (Southern California Law Review, Vol. 87, 2014) on SSRN. Here is the abstract:

Given the pressing societal need to punish criminal behavior and the solemn nature of depriving people of their liberty and even life, one would expect that the accuracy of these fateful determinations would be the paramount goal of the criminal justice process. This article critically examines the system’s low prioritization of the accuracy of the verdicts it produces, and focuses on four key factors that hinder the attainment of accuracy: problems with the reliability of the evidence produced by police investigations, the opacity of criminal investigations, the intensity of the adversarial process, and the muddled understanding of the system’s goals. 

Special attention is paid to the fourth factor which can be deemed responsible for the relegation of accuracy in favor of competing interests and constraints that are borne primarily by bureaucratic considerations and system defensiveness.

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July 7, 2014 | Permalink | Comments (0)

Dervan on Finality and White Collar Prosecutions

Dervan lucianLucian E. Dervan (Southern Illinois University School of Law) has posted The Quest for Finality: Five Stories of White Collar Criminal Prosecution (4 Wake Forest Journal of Law & Policy 91, 2014) on SSRN. Here is the abstract:

In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent. 

Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.

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July 7, 2014 | Permalink | Comments (0)

"In NSA-intercepted data, those not targeted far outnumber the foreigners who are"

From the Washington Post:

Ordinary Internet users, American and non-American alike, far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency from U.S. digital networks, according to a four-month investigation by The Washington Post.

Nine of 10 account holders found in a large cache of intercepted conversations, which former NSA contractor Edward Snowden provided in full to The Post, were not the intended surveillance targets but were caught in a net the agency had cast for somebody else.

July 7, 2014 | Permalink | Comments (0)

Sunday, July 6, 2014

"Despite Supreme Court Ruling, Smartphones Can Still Be Searched by Border Cops"

The post is at

July 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
1 762 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 
2 289 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 [4th last week]
3 223 The Brave New World of Cell-Site Simulators 
Heath Hardman 
Albany Law School 
Date posted to database: 24 May 2014 
4 207 Expert Testimony on Interrogation and False Confession 
Brian L. CutlerKeith A. Findley andDanielle Loney 
University of Ontario Institute of Technology (UOIT), University of Wisconsin Law School and University of Ontario Institute of Technology (UOIT) 
Date posted to database: 15 May 2014 [5th last week]
5 206 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 [6th last week]
6 191 Uncovering the Cover Ups: Death in Camp Delta 
Mark DenbeauxCharles Richard ChurchRyan K GallagherAdam KirchnerJoshua Wirtshafter,Chrystal LoyerBahadir EkizKelly Ann Taddonio and Michael J. Ricciardelli 
Seton Hall University - School of Law, Seton Hall University, School of Law '71, Seton Hall University, School of Law '14, Seton Hall University, School of Law '15, Seton Hall University, School of Law '14, Seton Hall University, School of Law '13, Seton Hall University, School of Law '13, Seton Hall University, School of Law '13 and Seton Hall University, School of Law '08 
Date posted to database: 17 May 2014 [7th last week]
7 162 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 [10th last week]
8 160 Re-Balancing Fitness, Fairness, and Finality for Sentences 
Douglas A. Berman 
Ohio State University (OSU) - Michael E. Moritz College of Law 
Date posted to database: 3 May 2014 
9 157 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 
10 136 Law and Neuroscience 
Owen D. JonesRene MaroisMartha J. Farah and Henry T. Greely 
Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology
Center for Integrative and Cognitive Neuroscience, University of Pennsylvania and Stanford Law School 
Date posted to database: 7 May 2014 [new to top ten]

July 6, 2014 | Permalink | Comments (0)

Saturday, July 5, 2014

"Manhattan prosecutor issued sweeping, secret Facebook warrant" has the story.

July 5, 2014 | Permalink | Comments (0)

Friday, July 4, 2014

Boles on Commercial Bribery

Jeffrey R. Boles (Temple University - Department of Legal Studies in Business) has posted Examining the Lax Treatment of Commercial Bribery in the United States: A Prescription for Reform (American Business Law Journal, Vol. 51, No. 1, 2014) on SSRN. Here is the abstract:

This article explores the discordant nature of commercial bribery, public sector bribery's neglected twin. It maintains that the existing set of federal and state legislation inadequately protects companies and the public from commercial bribery, and it argues for specific reforms to curtail the offense in the private sector. Part I explores the history of commercial bribery criminalization in the United States and details the inadequate contemporary federal and state law approaches to punish the offense. Part II analyzes the public policy justifications for punishing the offense. Part III advocates for legislative action and proposes specific statutory reforms for federal and state governments to strengthen their responses to commercial bribery. It also recommends a series of self-regulatory measures for companies to adopt in order to protect themselves from the offense's corrupting effects.

July 4, 2014 | Permalink | Comments (0)

Thursday, July 3, 2014

"Should ‘I reasonably believed she (or he) wasn’t underage’ be a defense in statutory rape cases?"

Eugene Volokh has this post at The Volokh Conspiracy, discussing recent opinions in Texas.

July 3, 2014 | Permalink | Comments (0)

Maclin on Maryland v. King and Terry v. Ohio

Maclin traceyTracey Maclin (Boston University - School of Law) has posted Maryland v. King: Terry v. Ohio Redux (2013 Supreme Court Review 359) on SSRN. Here is the abstrct:

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene. 

In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government. 

Although Justice Kennedy's opinion suggests otherwise, Maryland v. King has the potential to fundamentally alter Fourth Amendment law. Indeed, it is analogous to Terry v. Ohio. Like Terry, King alters the "rules of the game" and significantly expands the government's authority to search persons subject to custodial arrest. Just as a balancing test made it easy for the Court to extend Terry's rationale to different scenarios between police and suspicious persons, King's reasoning can be used to support collection and analysis of DNA samples from other persons subjected to governmental restraint, or from those who possess diminished privacy interests vis-a-vis the government.

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July 3, 2014 | Permalink | Comments (0)

NACDL Report on Restoration of Rights

The National Association of Criminal Defense Lawyers has posted this report on SSRN. In part:

Jessica Chiappone could not volunteer at her children’s school because of a conviction that was 15 years in her past. Darrell Langdon needed a dedicated attorney, a sympathetic judge, and media attention to persuade school officials, 25 years after his drug possession conviction, to let him return to his longtime work as a boiler room engineer. Mr. C, a business executive who learned crisis management during his military service, was turned away from volunteer work with the American Red Cross because of a minor fraud conviction. 

These individuals all told their stories to the National Association of Criminal Defense Lawyers’ Task Force on the Restoration of Rights and Status After Conviction, which just published Collateral Damage: America's Failure to Forgive or Forget in the War on Crime - A Roadmap to Restore Rights and Status After Arrest or Conviction. These witnesses described just a few of the approximately 45,000 laws and rules in U.S. jurisdictions that restrict opportunities and benefits in one way or another based upon a conviction (or, in some cases, charges that are dismissed).

July 3, 2014 | Permalink | Comments (0)

Wednesday, July 2, 2014

"An (overly?) optimistic account of how GPS technology could "solve" mass incarceration"

Doug Berman has this post at Sentencing Law & Policy:

This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism. 

July 2, 2014 | Permalink | Comments (0)

Kaye on "Junk DNA"

Kaye davidDavid H. Kaye (Penn State Law) has posted 'Open to Dispute': CODIS STR Loci as Private Medical Information (Forensic Magazine, May 2014) on SSRN. Here is the abstract:

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court upheld the constitutionality of collecting and using DNA soon after a person is arrested. In doing so, the Court wrote that “[t]he argument that the testing at issue in this case reveals any private medical information at all is open to dispute.” Emphasizing that “[t]he CODIS loci are from the non-protein coding junk regions of DNA,” the majority of the Justices seemed to question whether it was even possible that “non-coding alleles could provide some information.”

But if the issue is open to dispute, what evidence is available to resolve it, and what should the scientific community, and forensic scientists in particular, do to help? This essay recommends that forensic analysts address this issue with caution in their testimony and writing, that they avoid the confusing phrase “junk DNA,” and that genomic databases and the biomedical literature be monitored regularly to assess the extent to which individuals with access to law enforcement databases could make valid inferences about an individual’s medically or socially sensitive phenotypes.

July 2, 2014 | Permalink | Comments (0)

"U.S. Privacy Panel Backs N.S.A.’s Internet Tapping"

From The New York Times:

WASHINGTON — The federal privacy board that sharply criticized the collection of the phone records of Americans by the National Security Agency has come to a starkly different conclusion about the agency’s exploitation of Internet connections in the United States to monitor foreigners communicating with one another abroad.

. . .

“The Section 702 program has enabled the government to acquire a greater range of foreign intelligence than it otherwise would have been able to obtain — and to do so quickly and effectively,” the report said. While it found little value in the bulk collection of Americans’ telephone data, the board said that the 702 program, aimed at foreigners, “has proven valuable in the government’s efforts to combat terrorism as well as in other areas of foreign intelligence.”

July 2, 2014 | Permalink | Comments (0)

Levin on The Global Prison Market

Benjamin Levin has posted Inmates for Rent, Sovereignty for Sale: The Global Prison Market (Southern California Interdisciplinary Law Journal, Vol. 23, No. 3, 2014) on SSRN. Here is the abstract:

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space.

In the Article, I suggest three possible doctrinal and discursive frames through which we might view the Belgian-Dutch exchange: (1) prison labor in the context of globalized labor markets; (2) democracy, sovereignty, and the role of community in criminal punishment; and (3) international trade or the exchange and regulation of resources. Further, in focusing on U.S. analogs to this exchange, I emphasize that this ostensibly unique treaty bears much in common with contemporary carceral policy. I argue that this exchange is actually emblematic of a departure from traditional "theories of punishment" and represents a normalization of the prison as a staple of social and economic life.

July 2, 2014 | Permalink | Comments (0)

DiVita on Substantial Assistance and Sentence Reductions for Crack Offenders

Catherine DiVita has posted 'Cracking' the Code: Interpreting Sentence Reduction Requirements in Favor of Eligibility for Crack Cocaine Offenders Who Avoided a Mandatory Minimum for Their Substantial Assistance to Authorities (Boston College Law Review, Forthcoming) on SSRN. Here is the abstract:

In 2010, the Fair Sentencing Act increased the quantities triggering mandatory minimums for crack cocaine offenses and directed the United States Sentencing Commission to make similar reductions to the crack cocaine guideline ranges. After the Commission made these changes retroactive, offenders sentenced in accordance with the previous scheme sought sentence reductions. Due to the circuits’ differing interpretations of the eligibility requirements for a reduction, offenders who avoided a mandatory minimum for their substantial assistance to authorities have been held both eligible and ineligible, though similarly situated. This Note argues that courts should consistently hold such offenders eligible because this interpretation comports with the text of the United States Sentencing Guidelines and furthers the policy goals behind the FSA, the Commission and the criminal justice system in general.

July 2, 2014 | Permalink | Comments (0)

Levy on Impossibility

Levy kenKen Levy (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted It's Not Too Difficult: A Plea to Resurrect the Impossibility Defense (New Mexico Law Review, Vol. 45, No. 1, 2014) on SSRN. Here is the abstract:

Suppose you are at the gym trying to see some naked beauties by peeping through a hole in the wall. A policeman happens by, he asks you what you are doing, and you honestly tell him. He then arrests you for voyeurism. Are you guilty? We don’t know yet because there is one more fact to be considered: while you honestly thought that a locker room was on the other side of the wall, it was actually a squash court. Are you guilty now? 

Probably. You might argue that your scopophiliac ambition was impossible to satisfy given that you were peeping into a squash court, not a locker room. But this “Impossibility Defense” would fail because most jurisdictions follow the very influential Model Penal Code (MPC), which says that what is important about attempt is not the likelihood of success but rather what was going on in your head. You tried to peer into a locker room with the intention of seeing some nudity; that is enough for culpability. The fact that you were mistaken about the location does not exonerate you. 

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July 2, 2014 | Permalink | Comments (0)

Tuesday, July 1, 2014

Rackley & McGlynn on Prosecution for the Possession of "Extreme Pornography"

Erika Rackley and Clare McGlynn (Durham University - Law School and Durham Law School, Durham University) have posted Prosecuting the Possession of Extreme Pornography: A Misunderstood and Misused Law (Criminal Law Review, p. 400, 2013) on SSRN. Here is the abstract:

On 8th August 2012, Simon Walsh was acquitted of five counts of possessing extreme pornography. The case was not, of course, the first prosecution under the extreme pornography provisions contained in the Criminal Justice and Immigration Act 2008 (CJIA). Crown Prosecution Service (CPS) figures indicate that there were 799 prosecutions in 2011. However, unlike many of the other prosecutions, Walsh’s case was the focus of extensive public debate. It was touted in the press as a ‘landmark’ case defining the boundaries of the extreme pornography provisions, in which ‘common sense prevailed’ through a ‘sensible jury verdict’. There are two particular features of this case which meant that it garnered such attention. First, Simon Walsh was a high profile defendant. At the time of his arrest he was a barrister, politician, and magistrate, as well as (according to newspaper reports) a close aide of the London Mayor, Boris Johnson. Second, his trial was live-tweeted by Walsh’s solicitor, Myles Jackman and by PhD student Alex Dymock to over 8,000 followers. Notwithstanding this publicity, R v Walsh is unreported. Accordingly, while this article draws on the public tweets and press reports, it is recognised that neither are authoritative sources of information and that it is important to treat both with great caution. Nonetheless, and with these caveats in mind, the Walsh case provides an opportunity to revisit what continues to be a misunderstood and, in this case, mis-used, law.

July 1, 2014 | Permalink | Comments (0)

Cannibal fantasy or cannibal conspiracy?

The New York Times has this article reporting on the reversal of the conviction in this case:

The judge, Paul G. Gardephe of Federal District Court in Manhattan, acquitted the former officer, Gilberto Valle, on the most serious count that he faced, kidnapping conspiracy. He could have faced life in prison on that count.

“The evidentiary record is such that it is more likely than not the case that all of Valle’s Internet communications about kidnapping are fantasy role-play,” Judge Gardephe said in a 118-page opinion issued late on Monday.

. . .

But federal prosecutors argued that Mr. Valle had taken “concrete steps” to further his plans, including illegally looking up potential victims in a law enforcement database, carrying out surveillance of them, and using the Internet to research ways to abduct, subdue and cook potential victims.

July 1, 2014 | Permalink | Comments (0)

Boles on Continuing Offenses and Statutes of Limitation

Jeffrey R. Boles (Temple University - Department of Legal Studies in Business) has posted Easing the Tension between Statutes of Limitations and the Continuing Offense Doctrine (Northwestern Journal of Law and Social Policy, Vol. 7, p. 219, 2012) on SSRN. Here is the abstract:

This Article is the first to analyze comprehensively the relationship between the continuing offense doctrine and criminal statutes of limitations. The continuing offense doctrine is a powerful tool for prosecutors who face statute of limitations challenges. It functions to delay the running of statutes of limitations for certain crimes by postponing the completion of those crimes. In order to trigger the operation of the doctrine, a court must conclude that a particular crime is a “continuing offense” for statute of limitations purposes. Identifying what crimes are continuing offenses has been a problematic exercise for federal courts, leading to a growing number of conflicting approaches and circuit splits. Moreover, courts are employing the continuing offense doctrine with increasing frequency, subjecting otherwise time-barred conduct to prosecution and boosting the risk of violation of the rights of the defendant, such as prosecution based upon stale evidence. This Article examines the shortcomings of the continuing offense doctrine and its potential for misuse in the statute of limitations context, and provides solutions to reform the doctrine and restore order in what has become a chaotic area of jurisprudence.

July 1, 2014 | Permalink | Comments (0)

Kyprianides on Foucault on Criminal Law

George P. Kyprianides (University of Reading) has posted Why Has Contemporary Criminal Law Ceased to Merely Identify and Penalize Acts? on SSRN. Here is the abstract:

For Foucault, criminal law in modern society has a considerably greater function than the mere identification and penalization of acts. As Foucault himself comments, one of the chief disparities between ancient and modern forms of criminal law is the creation of criminal procedure: this “institutional transformation”, he argues, consisted primarily of “the formulation of explicit, general codes and unified rules of procedure.” 

This unification process, Foucault contends, expanded the role of law in our everyday lives because it ushered in a form of disciplinary power and knowledge that acted as an invisible controller of our behaviour and our bodies. In some respects, therefore, Foucault contends that the modernization and formalization of criminal law created a series universal norms, or truths, that transformed the criminal legal institutional apparatus into a mechanism that could prohibit certain behaviours through the dissemination of shared knowledge that, for Foucault, is the primary repository for the construction of power relations among members of modern societies.

July 1, 2014 | Permalink | Comments (0)