CrimProf Blog

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

Wednesday, January 3, 2018

Tanovich on Rap on Trial

David M Tanovich (University of Windsor - Faculty of Law) has posted Rap on Trial: How Courts Are Using Song Lyrics to Convict Young Black Men (The Walrus (18 May 2016)) on SSRN. Here is the abstract:
 
In the US, rap is frequently on trial, even in death penalty cases. It also appears to be a growing trend in England. And so, I began to study the issue in Canada. I was able to document thirty-six cases of attempts by the Canadian criminal justice system to put rap on trial in a recently published article “R v. Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases” (available on SSRN at http://ssrn.com/abstract=2730123). This Walrus piece provides a summary of some of the Canadian cases and explores how our criminal justice system should respond.

January 3, 2018 | Permalink | Comments (0)

Levin on The Boundaries of "Criminal Justice"

Levin benjaminBenjamin Levin (University of Colorado Law School) has posted Rethinking the Boundaries of 'Criminal Justice' (Book Review) (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
 
This review of The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff, eds.) tracks the shifting and uncertain contours of “criminal justice” as an object of study and critique. 

Specifically, I trace two themes in the book: 

(1) the uncertain boundaries of the “criminal justice system” as a web of laws, actors, and institutions; and 

(2) the uncertain boundaries of “criminal justice thinking” as a universe of interdisciplinary scholarship, policy discourse, and public engagement. 

Continue reading

January 3, 2018 | Permalink | Comments (0)

Rodriguez et al. on Reconstituting Constitutional Orders

Cristina RodriguezManuel Cepeda-EspinosaHarold Hongju KohDieter GrimmThe Hon. Frank IacobucciClare RyanMiguel Poiares MaduroKim Lane ScheppeleKate StithMarta CartabiaTracey L. MearesTom TylerCarlos Rosenkrantz and Judith Resnik (Yale Law School, Constitutional Court of Colombia, Yale Law School, Wissenschaftskolleg zu Berlin, Government of Canada - Supreme Court of Canada, Yale University, European University Institute, Program in Law and Public Affairs, Princeton University, Yale University - Law School, Constitutional Court of Italy, Yale University - Law School, Yale University - Law School, University of San Andres and Yale University - Law School) have posted Reconstituting Constitutional Orders (2017 Volume of Yale's Global Constitutionalism Seminar, a Part of the Gruber Program for Global Justice and Women's Rights, Yale Law School) on SSRN. Here is the abstract:
 
The 2017 volume of Yale's Global Constitutionalism Seminar, a part of the Gruber Program for Global Justice and Women's Rights, Reconstituting Constitutional Orders (co-edited by Judith Resnik and Clare Ryan) inquires into the authority exercised by constitutional courts and reflects on the political and legal shifts that have taken place over the course of 2016-2017.

The first chapter, focused on Brexit and its immediate aftermath, is emblematic of a reconstitution of political-legal orders and provides a backdrop for the chapters to follow. Chapter II, Democratic Authority, Executive Prerogatives, and the Courts, considers how, within given polities, courts respond to claims that the outcomes or structures of democratic processes are unlawful. Chapter III, Disassociation, reflects on disengagement efforts across the globe. Courts have been called upon to examine the domestic processes required to authorize withdrawal and to decide what role (if any) international law plays in determining when a country can reject what were binding treaty obligations. Chapter IV, Exiting by Degree, centers on disengagement within Europe and deepens the puzzle about what disassociation means. It raises the question: when do acts of domestic resistance to what were thought to be accepted norms (such as judicial independence) become a form of disassociation from within?

The last two chapters address a historic function of sovereignty: maintaining peace and security through criminal law and policing.

Continue reading

January 3, 2018 | Permalink | Comments (0)

Tuesday, January 2, 2018

Sekhri on Plea Bargaining in India

Abhinav Sekhri (Harvard University, Law School, Students) has posted Plea Bargaining's Resounding Defeat? The Indian Experiment with Plea Bargaining on SSRN. Here is the abstract:
 
Plea bargaining has been on the statute books in India since 2006, and yet, after over a decade since opening shop, it has managed to capture less than 0.5% of cases filed for offenses under the Indian Penal Code as per most recent government data. This paper explores the reasons why, arguing that the foremost cause for low rates of plea bargaining in India is that it is a 'poor fit' within the overall architecture of the Indian criminal process. In doing so, the paper juxtaposes the basic architecture of the Indian criminal justice system with the U.S. federal system, to show why plea bargaining has 'triumphed' in America. The paper concludes that the design flaws in the Indian plea bargaining model are fatal, and legislators and policymakers must turn elsewhere for answers to the pervasive problems of delays in case disposal and overcrowded prisons, policy objectives that plea bargaining was intended to achieve.

January 2, 2018 | Permalink | Comments (0)

Cassell & Garvin on Victims' Rights

Paul G. Cassell and Margaret Garvin (University of Utah - S.J. Quinney College of Law and Defense Advisory Committee on Investigation, Prosecution, and Defense or Sexual Assault in the Armed Forces (DAC-IPAD)) have posted Policy Paper: The Need to Enhance Victims’ Rights in the Florida Constitution to Fully Protect Crime Victims’ Rights on SSRN. Here is the abstract:
 
Given the emerging consensus concerning victims' rights as reflected in many state constitutions as well as in federal law, Florida should not simply rest on the nearly thirty-year-old provison currently in its constitution. Instead, Florida should, through its established and recognized procedures, expand the protections contained in its provision to cover the rights reflected in provisions enacted across the country and reflected in Marsy's Law.

January 2, 2018 | Permalink | Comments (2)

Monday, January 1, 2018

Harris on Racial Profiling

Harris davidDavid A. Harris (University of Pittsburgh - School of Law) has posted Racial Profiling (In 2 Reforming Criminal Justice: Policing 117 (Erik Luna ed., 2017)) on SSRN. Here is the abstract:
 
This chapter [in the multi-volume Reforming Criminal Justice project] will explore the topic of racial profiling by police. First, the chapter defines the term racial profiling for purposes of the discussion. Next, the chapter describes the points at which racial profiling arises in law enforcement, and the legal tools and incentives that drive it. It then describes the harm that racial profiling does to people, and to the criminal justice system as a whole. The chapter explores the cost to public safety that racial profiling entails, and closes with five concrete suggestions for combatting this long-term problem.

January 1, 2018 | Permalink | Comments (0)

Sunday, December 31, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
193
2.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
3.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
100
4.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
86
5.

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation

New York University School of Law Immigrant Rights Clinic
83
6.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
79
7.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
70
8.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
63
9.

Law, Coercive Enforcement, and Practical Reason

University of Washington - School of Law
61
10.

Clockwork Corporations: A Character Theory of Corporate Punishment

University of Iowa - College of Law
58

December 31, 2017 | Permalink | Comments (0)

Saturday, December 30, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
310
2.

Criminal Justice, Inc.

University of Chicago Law School
187
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
168
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
145
6.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
139
7.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
128
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
97
9.

Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence — How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Independent
90
10.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
86

December 30, 2017 | Permalink | Comments (0)

Friday, December 29, 2017

"Warrantless Border Searches: The officer ‘searched through every email and intimate photos of my wife’"

From Just Security, via the NACDL news scan:

Earlier this year, the U.S. government released statistics confirming that border agents are searching thousands of travelers’ laptops, cell phones, and other electronic devices each month. Now, as Charlie Savage and Ron Nixon report for the New York Times, the Knight First Amendment Institute at Columbia University has obtained a trove of traveler complaints that illuminates the experiences behind those statistics. These complaints reveal the range of discriminatory, demeaning, and gratuitously intrusive searches that travelers have endured at the border.

December 29, 2017 | Permalink | Comments (0)

"Why Trials Are Disappearing"

Bill Otis has this post at Crime & Consequences. In part:

My years as an AUSA tell me that the reason defendants take the deal is that they are ice cold on the evidence and understandably prefer that their behavior not get the full airing a trial would bring.
 
Often, the best evidence is the surveillance tape.  For example, this one

December 29, 2017 | Permalink | Comments (0)

Thursday, December 28, 2017

"Pot Legalization Is Transforming California’s Criminal Justice Landscape. Here’s How."

Mother Jones has the story, via the NACDL news scan:

We answer many of your legalization questions right here. But with legal sales on the horizon, you might also be wondering: What happens to the people already in jail on marijuana charges? And how will pot be policed? And will that old conviction still be on my record?

In fact, the punishment schemes changed in November 2016, at which time people serving sentences for or previously convicted of a cannabis-related offense could start applying to have their sentences reduced or convictions “redesignated.” More than 4,500 people have already done so, and the legal changes could have a profound impact on hundreds of thousands of lives down the road. Here’s a rundown of what’s changed, and what to expect come January.

December 28, 2017 | Permalink | Comments (0)

"Garden State perspective on sex offender castration ... for no obvious reason"

Doug Berman has this post at Sentencing Law & Policy, introducing an excerpt as follows:

This lengthy new local article from New Jersey, headlined "New Jersey child molesters won’t face castration threat any time soon," provides an example of how castration of sex offenders interests reporters even absent having an obvious reason to focus on the issue. 

December 28, 2017 | Permalink | Comments (0)

Wednesday, December 27, 2017

"Sessions rescinds protection against excessive fining by local courts"

From Jurist:

Since taking over the DOJ, Sessions has disapproved of using guideline protocols to drive policy. In a November memo [text, PDF], Sessions stated that:

the Department has in the past published guidance documents—or similar instruments of future effect by other names, such as letters to regulated entities—that effectively bind private parties without undergoing the rulemaking process. The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities . . .

December 27, 2017 | Permalink | Comments (0)

"Reconciling Katz and the Fourth Amendment Text"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Monday was the 50th Anniversary of Katz v. United States, the Supreme Court's big decision on the Fourth Amendment's "search" test. I often hear that Katz created a vague and non-textual notion of "privacy" that is unmoored from the text. But it seems to me that it's easy to reconcile Katz with the text of the Fourth Amendment. To be sure, Katz was decided in an era when text and history wasn't particularly important. If you follow what opinions say on their face, rather what they actually do, Katz seems weirdly inattentive to the text. But if you focus on what the Katz framework actually does, it seems to me, the decision is readily reconcilable with the text.

 

December 27, 2017 | Permalink | Comments (0)

Tuesday, December 26, 2017

"The Duty to Retreat in the Founding Era"

Eugene Volokh has this post at The Volokh Conspiracy. In part:

Well, it turns out that Founding-era views on this subject were rather more complex than our guesses -- based on our sense of their world-view -- might suggest.

. . .

And perhaps the complexity of the view, with its distinction between what is required for justifiable homicide and what is required for excusable, helped promote some of the uncertainty in early American law -- and that uncertainty quickly (by 1806) turned into the general stand-your-ground / duty-to-retreat debate.

So we have a longstanding debate here, and one that the Framing generation wouldn't have found to be open-and-shut in either direction.

December 26, 2017 | Permalink | Comments (0)

"Jury Finds First Batch Of Inauguration Protesters Not Guilty Of Riot Charges"

From NPR, via the NACDL news scan:

"From the start, government prosecutors did not attempt to prove that any of the defendants had personally committed acts of violence or vandalism. Instead they argued that the entire group of protesters, many of whom wore face masks, was guilty of supporting and providing cover as others smashed windows downtown and set fire to a parked limo on K Street. ...

"Much of the evidence consisted of a variety of videos, from security cameras, police helicopters and, in some cases, posted to social media by the defendants themselves. Prosecutors also interviewed dozens of witnesses, but none who could identify any of the defendants as a perpetrator."

December 26, 2017 | Permalink | Comments (0)

Sunday, December 24, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
194
2.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
192
3.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
4.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
99
5.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
85
6.

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation

New York University School of Law Immigrant Rights Clinic
82
7.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
79
8.

Rethinking the Boundaries of 'Criminal Justice' (Book Review)

University of Colorado Law School
66
9.

Daredevil: Legal (and Moral?) Vigilante

University of Oklahoma College of Law
63
10.

Law, Coercive Enforcement, and Practical Reason

University of Washington - School of Law
61

December 24, 2017 | Permalink | Comments (0)

Saturday, December 23, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Assessing Risk Assessment in Action

George Mason University - Antonin Scalia Law School, Faculty
298
2.

Criminal Justice, Inc.

University of Chicago Law School
185
3.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
166
4.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
165
5.

Evading Miranda: How Siebert and Patane Failed to Save Miranda

University of Houston Law Center
143
6.

The Unconstitutionality of Criminal Jury Selection

Harvard Law School
136
7.

Remorse Bias

University of Nevada, Las Vegas, William S. Boyd School of Law
126
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
96
9.

Critical Issues Affecting the Reliability and Admissibility of Handwriting Identification Opinion Evidence — How They Have Been Addressed (or Not) Since the 2009 NAS Report, and How They Should Be Addressed Going Forward: A Document Examiner Tells All

Independent
87
10.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
85

December 23, 2017 | Permalink | Comments (0)

Friday, December 22, 2017

Penney on Interrogating Uncounseled Detainees in Canada

Steven Penney (University of Alberta - Faculty of Law) has posted Should Prosper Warnings Be Given to Non-Diligent Detainees Who Waive the Right to Counsel? (Criminal Reports (7th), vol. 39, p. 33 (2017)) on SSRN. Here is the abstract:
 
In R v Fountain, the Ontario Court of Appeal grappled with an issue that has vexed courts for over three decades: how to define and apply the “reasonable opportunity” that police must afford detainees to exercise their right to counsel under section 10(b) of the Charter. As many commentators have observed, the jurisprudence on this question is troublingly inconsistent. It has also been complicated by the Supreme Court of Canada’s directive in R v Prosper, which requires police to issue a special caution to detainees who invoke the right to counsel but later purport to waive it. That warning informs detainees that they are entitled to a reasonable opportunity to contact a lawyer and that police are obliged to “hold off” from questioning them or inducing other self-incriminating evidence until that opportunity expires. However, as did the Ontario Court of Appeal in Fountain, most courts have held that police need not give this “Prosper warning” to detainees who have failed to diligently pursue their opportunity to talk to counsel.

Continue reading

December 22, 2017 | Permalink | Comments (0)

Soreide on Unenforced Anti-corruption Laws

Tina Soreide (Norwegian School of Economics (NHH) - Department of Accounting, Auditing and Law) have posted Regulating Corruption in International Markets: Why Governments Introduce Laws They Fail to Enforce (The Oxford Handbook on International Economic Governance and Market Regulation. Edited by Eric Brousseau, Jean Michel Glachant and Jérôme Sgard. 2018 Forthcoming) on SSRN. Here is the abstract:
 
Corruption allows firms to earn profits unfairly. In exchange for bribes and inducements that occupy a gray zone of uncertain legality, government officials and politicians offer firms better deals, terms, or benefits than they would otherwise obtain. These unfair advantages are sought by companies for a wide variety of reasons --to win contracts; to obtain production licenses, import permits, or permits to acquire a competitor; to secure subsidies, tax rates (or tax holidays), or tolerance for cartel collaboration; or to achieve any number of other corporate goals. Through corruption, firms can effectively buy impunity for an equally wide range of harmful actions, from producing poor-quality or even dangerous products and services to polluting the environment, violating human rights violations, and conducting illegal trade.

This drafted book chapter explains why many initiatives against bribery in international markets seem dysfunctional. Reasons are categorized as (i) “technical reasons” including inherent challenges associated with the crime and barriers for efficient enforcement; (ii) “institutional reasons” meaning challenges associated with the organization of various enforcement functions, and (iii) “political reasons” comprising the backdrop for political priorities as well as the relevance of government’s coordination of anticorruption strategies internationally.

Continue reading

December 22, 2017 | Permalink | Comments (0)