CrimProf Blog

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

Monday, June 4, 2018

Kaye on Forensic Scientists and Factfinders

Kaye davidDavid H. Kaye (Pennsylvania State University, Penn State Law) has posted The Nikumaroro Bones: How Can Forensic Scientists Assist Factfinders? (Virginia Journal of Criminal Law, Volume 6, 2018) on SSRN. Here is the abstract: 
 
Criminalistics compare traces of unknown origin from crime scenes to traces from specimens of known origin to help determine whether the two specimens have a common origin. They typically testify by giving a firm opinion as to whether a suspect is or is not the source of the trace. This Article describes an alternative to source attribution that has a strong following among students of inference in forensic science. It can be called an evidentiary-value approach that uses relative “likelihoods” or “support” to indicate the weight or probative value of evidence. Essentially, it consists of describing the noteworthy features being compared and explaining how strongly the observations of these features support competing conclusions. To underscore and clarify the differences between the traditional, conclusion-centric approach and the newer evidence-centric perspective, the article uses a recent analysis of data from bones that might be those of the celebrated aviator, Amelia Earhardt, to distinguish between data from the specimens, inferences from the data (conclusions), and statements about the probativity of the data with respect to those inferences
 

June 4, 2018 | Permalink | Comments (0)

Rap & Daniella on Child Suspects

Stephanie Rap and Zlotnik Daniella (Department of Child Law, Leiden Law School and Independent) have posted The Right to Legal and Other Appropriate Assistance for Child Suspects and Accused. Reflections on the Directive on Procedural Safeguards for Children Who are Suspects or Accused Persons in Criminal Proceedings (European Journal of Crime, Criminal Law and Criminal Justice, 26, 110-131, Forthcoming) on SSRN. Here is the abstract:
 
In this article the development and background of the Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings is sketched out. Two key rights are reflected upon: the right to legal assistance and the right to other appropriate assistance. The main challenge with regard to the implementation of the right to legal assistance is the possibility of member states to derogate from this right on the basis of the circumstances of the particular criminal case(s) involving the child. The right to legal assistance is contingent upon the proportionality clause that has been built in the Directive and therefore legal assistance is not guaranteed for every child suspect or accused. The right to other appropriate assistance is given separate attention in the Directive, which strengthens the child’s legal position and his support during the proceedings.

June 4, 2018 | Permalink | Comments (0)

Nevitt on Fidell on Military Justice

Mark Nevitt has posted Military Justice: a Very Short Introduction (Book Review) (Journal of National Security Law & Policy, Vol. 10, 2018 Forthcoming) on SSRN. Here is the abstract:
 
This short essay reviews Professor Eugene Fidell’s recently published book, “Military Justice A Very Short Introduction” (Oxford Press). This book is a welcome addition to military law and military justice literature more generally. Eugene Fidell, a professor at Yale Law School, brings a tremendous breadth of experience as both a scholar and military justice practitioner. He also possesses a keen observational and critical eye to the subject of military justice practiced here and abroad.

The book review first provides an overview of Professor Fidell’s book, its organizational set-up, and where it sits in the broader context of military justice literature.

Continue reading

June 4, 2018 | Permalink | Comments (0)

Dissent from cert denial in procedural default case involving ineffective counsel claim

Justice Sotomayor, joined by Justice Ginsburg, dissented in Trevino v. Davis.

June 4, 2018 | Permalink | Comments (0)

Opinion denying sentencing reduction after guidelines amendment for defendant who received substantial assistance reduction from mandatory minimum

Justice Alito delivered the opinion for a unanimous Court in Koons v. United States

June 4, 2018 | Permalink | Comments (0)

Opinion authorizing reduced sentence because of guidelines amendment after type-C plea agreement

Justice Kennedy delivered the opinion of the Court in Hughes v. United States. Justice Sotomayor filed a concurring opinion. Chief Justice Roberts dissented, joined by Justices Thomas and Alito.

June 4, 2018 | Permalink | Comments (0)

Sunday, June 3, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Opinion on the Constitutionality of Robert Mueller's Appointment

Northwestern University - Pritzker School of Law
3,552
2.

Computer Crime Law (Introduction)

University of Southern California Gould School of Law
442
3.

The Consensus Myth in Criminal Justice Reform

University of Colorado Law School
307
4.

Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case

International Islamic University, Islamabad
198
5.

Protectors of Predators or Prey: Bystanders and Upstanders Amid Sexual Violence

Yale University - Law School
161
6.

Too High a Price 2: Move on to Where?

University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project
136
7.

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History
126
8.

Regulatory Police

Boston University School of Law
120
9.

The Expansion of Child Pornography Law

University of North Carolina School of Law
119
10.

Buggery and Parliament, 1533-2017

University of York
102

June 3, 2018 | Permalink | Comments (0)

Saturday, June 2, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Scale of Misdemeanor Justice

George Mason University - Antonin Scalia Law School, Faculty and University of Georgia School of Law
273
2.

The Writ-of-Erasure Fallacy

Stanford Law School
163
3.

What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants

Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
155
4.

Privatizing Criminal Procedure

Washington and Lee University
132
5.

Relative Plausibility and its Critics

Northwestern University Law School and University of Alabama School of Law
127
6.

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History
126
7.

Privacy and the Criminal Process: Selvi v State of Karnataka

Yale University - Law School
117
8.

The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky

RTI International, RTI International, RTI International, RTI International, RTI International and RTI International
99
9.

Arrests As Guilt

Seattle University School of Law
92
10.

Civil Rights Notes: American Indians and Banishment, Jury Trials, and the Doctrine of Lenity

The University of North Dakota
90

June 2, 2018 | Permalink | Comments (0)

Friday, June 1, 2018

Lema on Scamming Immigrants

Bizuayehu Lema (University of Southern Mississippi - Department of Political Science and International Development) has posted Thematic Analysis of Consumer Frauds and Scams Against Ethiopian Immigrants in the USA; A Phenomenological Case Study in Washington Seattle on SSRN. Here is the abstract:
 
The purpose of this study is to assess electronic consumer frauds and scams against vulnerable Ethiopian immigrants living in Seattle area. The research contributes to understanding the patterns and typologies of consumer frauds and scam specific to immigrants. The study looks at the physical, emotional, mental and economic impact of the fraud on the immigrants interviewed. Employment frauds, romance scam, and grandparent scam were common. The fraudsters and scammers contacted frequently the new entrants to the United States of America through unsolicited texting, fake e-mail, letting them click on unsecured ads link and social media. This study suggests on consumer protection laws and policy. This phenomenological study is based on in-depth interviews by the author with ten migrant victims. The demographic characteristics such as age, sex, level of education, and the form of employment, type, and level of financial knowledge were the leading risk factors of the phenomenon. Consumer product and services frauds and scams such as tax return service fraud, immigration service scam, ‘‘Microsoft tech support’’ scam, craigslist car sale scam, and ‘‘journal publish’’ scam took the lion share of the prevalence. The sufferers realized the phenomena as frauds and scams understanding activities on their debit card, e-mail, and mail-alert. Most respondents haven’t reported and not filed a complaint with the concerned legal bodies due to the determining factors and socio-economic and cultural constraints. Psychologically, they lost their faith and confidence in the world; lost their time and lost personal information privacy. These effects outweighed the material and monetary loss. As a result, the victims planned to use the traditional in-person deal instead of e-commerce businesses.

June 1, 2018 | Permalink | Comments (0)

Daughety & Reinganum on Modeling Evidence Suppression by Prosecutors

Andrew F. Daughety and Jennifer F. Reinganum (Department of Economics, Vanderbilt University and Vanderbilt University - College of Arts and Science - Department of Economics) have posted Evidence Suppression by Prosecutors: Violations of the Brady Rule on SSRN. Here is the abstract:
 
We develop a model of individual prosecutors (and teams of prosecutors) to address the incentives for the suppression of exculpatory evidence. Our model assumes that each individual prosecutor trades off a desire for career advancement (by winning a case) and a disutility for knowingly convicting an innocent defendant. We assume a population of prosecutors that is heterogeneous with respect to this disutility, and each individual’s disutility rate is their own private information. A convicted defendant may later discover exculpatory information; a judge will then void the conviction and may order an investigation. Judges are also heterogeneous in their opportunity costs (which is each judge’s private information) of pursuing suspected misconduct. We show that the equilibrium information configuration within the team involves concentration of authority about suppressing/disclosing evidence. We further consider the effect of angst about teammate choices, office culture, and the endogenous choice of effort to suppress evidence.

June 1, 2018 | Permalink | Comments (0)

Beety on The Overdose/Homicide Epidemic

Valena Elizabeth Beety (West Virginia University - College of Law) has posted The Overdose/Homicide Epidemic (Georgia State University Law Review, Forthcoming) on SSRN. Here is the abstract:
 
With the rising rates of opioid overdose deaths nationally, political players in rural counties — coroners and district attorneys — are increasingly responding with hard-on-crime reactionary behavior. These prosecutors are bringing drug-induced homicide charges — that a death was not only an overdose but also a homicide — and placing the blame on the distributor of the drug. In the vast majority of these prosecutions, the distributor is simply a friend or acquaintance who shared the drug with the deceased. Coroners, appointed to investigate suspicious deaths, are now also increasingly determining these unexplained accidental deaths to be homicides.

The joint effort of county coroners and county prosecutors to bring homicide charges that are unlikely to suffice legally, yet make a point politically about the opioid epidemic, highlight the lack of regulation and lack of impartiality in death investigations, and imply the goal of a death investigation is a criminal charge. When death certificates are unreliable but used for prosecutorial purposes, our history of court reliance on faulty forensic evidence continues its dishonest trajectory of mass incarceration. This use furthermore belies the intended purpose of a medicolegal death investigation according to the National Association of Medical Examiners: public health.

Continue reading

June 1, 2018 | Permalink | Comments (0)

Hanlon on Case Refusal

Stephen F. Hanlon (General Counsel, National Association for Public Defense) has published Case Refusal: A Duty for  a Public Defender and a Remedy for All of a Public Defender's Clients in the Indiana Law Review

June 1, 2018 | Permalink | Comments (0)

Deitch on Retributivism and Conjoined Twins

Brittany Deitch has posted Retributivist Theories' Conjoined Twins Problems (University of Cincinnati Law Review, Vol. 87, 2019) on SSRN. Here is the abstract:
 
This Article expands a previously published article, which introduced a novel problem to the centuries-old debate on the retributivist justification of punishment. The first article applied the problem of conjoined twins, where one commits a crime and the other is innocent, to pure retributivism. The conjoined twins problem showed that pure retributivism, which holds absolute duties to punish all who are guilty and none who are innocent, fails as a complete theory of punishment. This Article broadens the application of the conjoined twins problem by applying the problem to other versions of retributivism, including deontological, consequentialist, threshold, negative/weak, victim-conscious, and mixed retributivist theories. Exploring each version in turn, this Article uses the conjoined twins problem to show that no version of retributivism can serve as a complete theory of punishment.

June 1, 2018 | Permalink | Comments (0)

Zeidman on The Right to a Partisan Lawyer

Zeidman steveSteven Zeidman (CUNY School of Law) has posted Raising the Bar: Indigent Defense and the Right to a Partisan Lawyer (Forthcoming, Mercer Law Review Vol. 69, No. 3, Spring 2018) on SSRN. Here is the abstract:
 
In Ake v. Oklahoma, the Supreme Court held that an indigent defendant is entitled to the assistance of an expert in cases where it is established that mental health is at issue. Thirty two years later, in McWilliams v. Dunn, the Court finally addressed the open question of whether that expert must be independent of the prosecution. During oral argument, counsel for McWilliams argued that the expert must be part of the defense team and on the defendant’s side. Justice Gorsuch, in only his second week on the Court, stated dubiously that if that were the case then “surely [it] would also require a partisan lawyer.” Although certainly not his intent, Justice Gorsuch’s question should compel a reexamination of the contours of the right to counsel and the nature of the relationship between client and lawyer. 

In many jurisdictions, indigent defendants are represented by individual lawyers from Assigned Counsel Programs, rather than by lawyers from Public Defender offices or organizations that provide defense services pursuant to contracts with state or local government. Often, former prosecutors comprise a significant number of lawyers on Assigned Counsel Program panels. This article argues that indigent defendants should indeed be entitled to a partisan lawyer and that former prosecutors cannot and should not fulfill that crucial role.

June 1, 2018 | Permalink | Comments (0)

Mayeux on Federal Judicial History and Criminal Justice

Mayeux saraSara Mayeux (Vanderbilt University - Law School) has posted Approaches to Federal Judicial History: The Federal Courts and Criminal Justice (Approaches to Federal Judicial History, Forthcoming) on SSRN. Here is the abstract:
 
Mass incarceration has long constituted not only a sociological fact and a moral disaster in the United States, but also a major sector of the public and private economy; a significant component of ideologies of race, gender, and sexuality; and a distorting influence upon electoral processes and deliberative democracy. What role has the federal judiciary played in this complex history? This short historiographical essay provides a brief and necessarily selective introduction to exemplary scholarship addressing the relationship between the federal courts and criminal justice in U.S. history, and seeks to encourage historians of the carceral state—even or especially those who do not define themselves primarily as legal historians—to join the conversation. The essay is structured around three of the most significant ways in which the federal judiciary has historically made and enforced criminal justice policy: by adjudicating federal criminal prosecutions; by reviewing state-court convictions, via federal habeas jurisdiction; and by reforming state prisons and local jails, via constitutional conditions-of-confinement litigation. This essay was prepared at the invitation of the Federal Judicial History Office for a forthcoming volume.

June 1, 2018 | Permalink | Comments (0)

Thursday, May 31, 2018

Gardner on Racial Profiling

Gardner trevorTrevor George Gardner (University of Washington - School of Law) has posted Racial Profiling as Collective Definition (2 Soc. Inclusion, no. 3, 2014, at 52-59) on SSRN. Here is the abstract:
 
Economists and other interested academics have committed significant time and effort to developing a set of circumstances under which an intelligent and circumspect form of racial profiling can serve as an effective tool in crime finding–the specific objective of finding criminal activity afoot. In turn, anti-profiling advocates tend to focus on the immediate efficacy of the practice, the morality of the practice, and/or the legality of the practice. However, the tenor of this opposition invites racial profiling proponents to develop more surgical profiling techniques to employ in crime finding. In the article, I review the literature on group distinction to discern its relevance to the practice and study of racial profiling. I argue that the costs of racial profiling extend beyond inefficient policing and the humiliation of law-abiding minority pedestrians and drivers. Racial profiling is simultaneously a process of perception and articulation of relative human characteristics (both positive and negative); it binds and reifies the concepts of race and criminality, fixing them into the subconscious of the profiled, the profiler, and society at large.

May 31, 2018 | Permalink | Comments (0)

Siegel on McCleskey v. Kemp

Siegel revaReva Siegel (Yale University - Law School) has posted Blind Justice: Why the Court Refused to Accept Statistical Evidence of Discriminatory Purpose in Mccleskey V. Kemp—And Some Pathways for Change (Northwestern University Law Review, Vol. 112, Forthcoming) on SSRN. Here is the abstract:
 
In McCleskey v. Kemp, the Supreme Court refused to accept statistical evidence of race discrimination in an equal protection challenge to the death penalty. This lecture, on the decision’s thirtieth anniversary, locates McCleskey in cases of the Burger and Rehnquist Courts that restrict proof of discriminatory purpose in terms that make it exceedingly difficult for minority plaintiffs successfully to assert equal protection claims.

The lecture’s aims are both critical and constructive.

Continue reading

May 31, 2018 | Permalink | Comments (0)

Soubise & Woolley on Prosecutors and Justice

Laurène Soubise and Alice Woolley (University of Warwick and University of Calgary) have posted Prosecutors and Justice: Insights from Comparative Analysis (Fordham International Law Journal, Forthcoming) on SSRN. Here is the abstract:
 
This paper compares prosecutorial practices, regulation, norms and challenge in the United States, Canada and France in order to better understand prosecutorial misconduct and how to effectively address it. The paper argues that if we want to change prosecutorial behavior to a significant extent, we need to change the structural factors that produce the behavior we do not want. This includes introducing more effective and rigorous regulation of prosecutorial conduct. The paper acknowledges that these change would be difficult if not impossible to implement.
 

May 31, 2018 | Permalink | Comments (0)

Scott-Hayward & Ottone on California's Unconstitutional Bail System

Christine S. Scott-Hayward and Sarah Ottone (California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management and Georgetown University, Law Center, Students) has posted Punishing Poverty: California's Unconstitutional Bail System (70 Stan. L. Rev. Online 167 (2018)) on SSRN. Here is the abstract:
 
Relying on an empirical study of pretrial detention and bail that we recently conducted in Southern California, this Essay argues that bail schedules are unconstitutional because they are used presumptively in a way that typically denies defendants the individualized pretrial detention determination to which they are entitled.

May 31, 2018 | Permalink | Comments (0)

Lichtenberg on Problems with Life Without Parole Sentences

Judith Lichtenberg (Georgetown University) has posted Against Life Without Parole (Forthcoming in Washington University Jurisprudence Review) on SSRN. Here is the abstract:
 
Over 40,000 people in the United States today are serving life without parole sentences (LWOP) — more than triple the number in 1992. This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished. 

After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it.I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it.

Continue reading

May 31, 2018 | Permalink | Comments (0)