CrimProf Blog

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

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Wednesday, June 17, 2015

Butler on Digital Privacy Rights

Alan Butler (Electronic Privacy Information Center) has posted Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California (Duke Journal of Constitutional Law & Public Policy, Vol. 10, 2015) on SSRN. Here is the abstract:

The Roberts Court will likely be remembered for its decision to uphold the Affordable Care Act, its same-sex marriage-rulings, and its decisions in First Amendment and corporate-speech cases; but this Court should also be remembered for ushering in the era of digital Fourth Amendment rights. The Court has not only addressed how Fourth Amendment standards will apply to changing communications technologies, it has also gone out of its way to learn and understand how new technologies will affect the balance of power between the government and citizens. We have come a long way from Chief Justice Roberts’ question during oral argument in City of Ontario, California v. Quon: “[M]aybe everyone else knows this, but what is the difference between a pager and e-mail?”

In Riley v. California the Court answered — in a unanimous, nine- to-zero decision — the question of whether the police must obtain a warrant prior to searching an individual’s cell phone incident to a lawful arrest.

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June 17, 2015 | Permalink | Comments (0)

McLellan on Proving Innocence to be Compensated for Wrongful Conviction

Myles Frederick McLellan (Algoma University) has posted Compensation for Wrongful Convictions and Presumptive Innocence on SSRN. Here is the abstract:

While an exoneration is welcome relief to the wrongly accused and convicted, more often than not there are significant hurdles in the pursuit of compensation to redress the significant damages caused by a wrongful imprisonment. In Canada there is relief by way of discretionary payments from federal, provincial and territorial governments in very limited circumstances. Likewise, thirty-two jurisdictions in the United States offer a legislative remedy for compensation with various thresholds to entitlement that vary from state to state. One of the fundamental criterion post-exoneration to access a financial remedy is a requirement that an applicant for compensation must prove factual innocence. The problem inherent therein is that there is no mechanism in the criminal justice system to do so. This is an unprincipled approach in light of the legal effect that the presumption of innocence and the assumption of factual innocence should have in framing a finding of not guilty. In the event that a prosecution does not result in a conclusion of criminality, there is no basis at law to hold an individual wrongly accused as culpable. The threshold of factual innocence should be presumed to have been met by whatever finding was made to terminate a criminal prosecution in favor of the applicant. In this way and in whatever forum the state has provided for relief, the burden shifts to the prosecution to adduce evidence of guilt to the burden of proof the state deems appropriate. In so doing, the thousands of individuals who are egregiously and wrongly damaged with an accusation of criminality each year will have a fighting chance to recoup some financial recovery when the state fails in its quest to prove that accusation.

June 17, 2015 | Permalink | Comments (0)

Delaney on Kerr on the Fourth Amendment and the Global Internet

Delaney davidDavid G. Delaney (Indiana University Maurer School of Law) has posted Widening the Aperture on Fourth Amendment Interests: A Comment on Orin Kerr's 'The Fourth Amendment and the Global Internet' (68 STAN. L. REV. ONLINE 9) on SSRN. Here is the abstract:

Physical-world law may not be suitable for cyberspace. For example, the Supreme Court's "sufficient connection" test in U.S. v. Verdugo-Urquidez (1990) is inconsistent with the century-long trend for courts to find greater constitutional protections for those subject to U.S. jurisdiction outside the United States. Courts must maintain flexibility to conceive of a Fourth Amendment that does not depend exclusively on territory to fulfill its twin aims of ordering government and enabling redress of liberty infringements. Federal and state courts and legislatures addressing searches, seizures, and surveillance in cyberspace should seek simple rules that can easily adapt as cyberspace and government uses of cyberspace evolve.

June 17, 2015 | Permalink | Comments (0)

Quinn on Minors in Municipal Court

Quinn maeMae C. Quinn (Washington University in Saint Louis - School of Law) has posted In Loco Juvenile Justice: Minors in Munis, Cash from Kids, and Adolescent Pro Se Advocacy – Ferguson and Beyond on SSRN. Here is the abstract:

In recent years many have challenged the imposition of lengthy adult prison terms for kids convicted of serious crimes. Given their special vulnerabilities, advocates argue young felony offenders should have their cases handled in our country’s specialized juvenile courts where they might receive age-appropriate interventions intended to support redirection and development. However, these conversations have largely overlooked another set of legal venues and their juvenile justice implications - those adjudicating low-level offenses such as local traffic and ordinance violations. Thus, there has been little scholarly, judicial, or advocacy address of the phenomenon of prosecuting minors in municipal courts. 

This essay calls for greater attention to the issue. It does so in the wake of recent events in Ferguson, Missouri which have generated wide-spread agreement that local courts need to change the ways they process, prosecute, and punish low-level ordinance violations. Indeed, as the nation has now learned, aggressive pursuit of fines and court fees through traffic cases and related quality-of-life actions are one of the most troubling aspects of life for many poor residents in St. Louis and beyond.

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June 17, 2015 | Permalink | Comments (1)

Tuesday, June 16, 2015

Hofer on Ranking Drug Harms

Paul Jeffrey Hofer (Sentencing Resource Counsel Project) has posted Ranking Drug Harms for Sentencing Policy on SSRN. Here is the abstract:

Unidimensional rankings comparing the harmfulness of different drugs have been criticized as too simplistic for policy making. A type of unidimensional ranking of direct drug harms is needed for sentencing policy making, however, in order to implement the sentencing principle of just desert. Available empirical evidence of the relative harmfulness of illegal drugs on several measures of direct harm is reviewed. Data on typical dosage weight is used to evaluate the proportionality of current federal mandatory minimum statutes and guidelines for drug trafficking offenses. Several drugs that rank relatively low on harms are punished as, or more, severely than drugs that are far more harmful. Mandatory minimum statutes and congressional directives to the United States Sentencing Commission must be repealed or revised before recommendations of the federal sentencing guidelines will result in proportionate punishment.

June 16, 2015 | Permalink | Comments (0)

Fondacaro & O'Toole on American Punitiveness and Mass Incarceration

Mark R. Fondacaro, J.D., Ph.D. and Megan O'Toole (John Jay College - CUNY and CUNY, John Jay College of Criminal Justice) have posted American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates. Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform. Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime. Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts. However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally. This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.

June 16, 2015 | Permalink | Comments (0)

Schwartz on Privacy and the Public-Private Divide

Schwartz victoriaVictoria L. Schwartz (Pepperdine University School of Law) has posted Overcoming the Public-Private Divide in Privacy Analogies (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:

When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography would likely constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This scenario illustrates a public-private divide in which privacy violations by the government are treated separately from privacy violations by the private sector. Despite this divide, some courts have analogized from the Fourth Amendment into the trade secret context, while the Supreme Court has rejected such an analogy in the opposite direction. 

A similar but reverse phenomenon occurs in the workplace privacy context.

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June 16, 2015 | Permalink | Comments (1)

Ramseyer on Extortion and Social Capital in Japan

Ramseyer markJ. Mark Ramseyer (Harvard Law School) has posted Nuclear Power and the Mob: Extortion and Social Capital in Japan on SSRN. Here is the abstract:

Nuclear reactors entail massive non-transferrable site-specific investments. The resulting appropriable quasi-rents offer the mob the ideal target. In exchange for large fees, it can either promise to "protect" the utility (and silence the reactor's local opponents) or "extort" from it (and desist from inciting local opponents). Using municipality-level (1742 cities, towns, villages) and prefecture-level (47) Japanese panel data covering the years from 1980 to 2010, I find exactly this phenomenon: when a utility announces plans to build a reactor, the level of extortion climbs. 

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June 16, 2015 | Permalink | Comments (0)

Jackson et al. on Justice Abroad, New Crimes, and Legitimacy

Jonathan Jackson Ben Bradford and Mike Hough (London School of Economics & Political Science - Department of Methodology , University of Oxford - Centre for Criminology and University of London - Institute for Criminal Policy Research) has posted  Trust in Justice 'Abroad' and the Role of Legitimacy in 'New-Crimes' on SSRN. Here is the abstract:

A key goal of the Fiducia project is to extend procedural justice theory in the context of new forms of criminal behaviour and the portability of legitimacy across national borders. In this Fiducia report we present some preliminary findings from a survey of seven European countries.

June 16, 2015 | Permalink | Comments (0)

Monday, June 15, 2015

Agan & Prescott on Sex Offender Law and the Geography of Victimization

Amanda Y. Agan and J.J. Prescott (Princeton University - Department of Economics and University of Michigan Law School) have posted Sex Offender Law and the Geography of Victimization (Journal of Empirical Legal Studies Vol. 11, No 4, December 2014) on SSRN. Here is the abstract:

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated. We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs. Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live. To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders. We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk. Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs.

June 15, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 639 Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know 
Mike Koehler 
Southern Illinois University School of Law 
Date posted to database: 4 May 2015 
2 593 'Ideology' or 'Situation Sense'? An Experimental Investigation of Motivated Reasoning and Professional Judgment 
Dan M. KahanDavid A. HoffmanDanieli EvansNeal DevinsEugene A. Lucci andKatherine Cheng 
Yale University - Law School, Temple University - James E. Beasley School of Law, Yale Law School, William & Mary Law School, Government of the State of Ohio - Court of Common Pleas and Cultural Cognition Lab, Yale Law School 
Date posted to database: 22 Apr 2015 
3 431 Washington's War on the Visibly Poor: A Survey of Criminalizing Ordinances & Their Enforcement 
Justin OlsonScott MacDonald and Sara Rankin 
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law 
Date posted to database: 8 May 2015 
4 420 Norms of Computer Trespass 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 3 May 2015 
5 262 Brain Science and the Theory of Juvenile Mens Rea 
Jenny E. Carroll 
University of Alabama - School of Law 
Date posted to database: 8 May 2015 [6th last week]
6 246 Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students 
Vanessa Walsh 
Independent 
Date posted to database: 23 May 2015 [7th last week]
7 194 Database Infamia: Exit from the Sex Offender Registries 
Wayne A. Logan 
Florida State University - College of Law 
Date posted to database: 15 Apr 2015 [8th last week]
8 191 The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws 
Javier OrtizMatthew Dick andSara Rankin 
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law 
Date posted to database: 8 May 2015 [9th last week]
9 190 At What Cost: The Minimum Cost of Criminalizing Homelessness in Seattle and Spokane 
Joshua HowardDavid Tranand Sara Rankin 
Seattle University School of Law, Seattle University School of Law and Seattle University School of Law 
Date posted to database: 8 May 2015 [10th last week]
10 190 Towards a Theory of Mitigation 
Carissa Byrne Hessick andDouglas A. Berman 
University of Utah - S.J. Quinney College of Law and Ohio State University (OSU) - Michael E. Moritz College of Law 
Date posted to database: 14 May 2015 [new to top ten]

June 15, 2015 | Permalink | Comments (0)

Opinion regarding habeas review of opinions without reasoning

Justice Ginsburg, joined by Justice Kagan, concurred in the denial of certiorari in Hittson v. Chatman, suggesting her views on how to handle the situation in light of recent Supreme Court precedent.

June 15, 2015 | Permalink | Comments (0)

Saturday, June 13, 2015

MacDonald et al. on Police Surges

John MacDonald Jeffrey Fagan and Amanda Geller (University of Pennsylvania - Jerry Lee Center of Criminology , Columbia Law School and NYU Department of Sociology) have posted The Effects of Local Police Surges on Crime and Arrests in New York City on SSRN. Here is the abstract:

Since 2005, New York City's crime rate has remained at historically low levels not seen since the early 1960s. The New York Police Department's (NYPD) impact zone program has been identified as one of the leading casual factors for the city's low crime rate. These claims have not been subject to rigorous examination. We rely on difference-in-differences and stepped wedge designs to estimate the effect of the NYPD's impact zone program on reported crimes and arrests. The results indicate that the formation of impact zones reduced burglaries but increased overall amounts of reported crime. Most of the crime increase is a result of weapons, drugs, and other arrest related offenses. The increase in monthly civilian stops made by police after an impact zone is formed is associated with a small reduction in crime. However, the number of stops made per crime averted suggests that most stops occur with little crime reduction benefit. The net results indicate that impact zones had mixed and limited success as a crime reduction strategy, and raise fundamental questions about police saturation of neighborhoods and aggressive stop efforts in wake of due process concerns.

June 13, 2015 | Permalink | Comments (0)

Friday, June 12, 2015

Vasiu & Vasiu on Credit Card Fraud

Ioana Vasiu and Lucian Vasiu (Babes-Bolyai University - Faculty of Law and Independent) have posted Riders on the Storm: An Analysis of Credit Card Fraud Cases (Suffolk Journal of Trial & Appellate Advocacy, Vol. XX, pp. 184-217, 2015) on SSRN. Here is the abstract:

Credit card fraud presents an impressive array of forms and methods, often involving sophisticated means, organized crime aspects, and very significant criminal proceeds. Based on an extensive inquiry that involved the study of a large number of credit card fraud cases brought to the United States federal courts in violation of 18 U.S.C. § 1029(a)(1)-(5), press releases from law enforcement organizations, and information security reports, this article discusses the legal elements, the essential perpetration aspects, and the most relevant sentencing enhancements for these crimes, and proposes a number of improvements. The contributions of this article can be used for a more effective legal and judicial response in the process of risk identification and mitigation, and for developing awareness and training programs. Although the article focuses on one jurisdiction, the findings, particularly those in the perpetration aspects section, and the conclusion would be useful to a global audience.

June 12, 2015 | Permalink | Comments (0)

Kirk on Dispersing Parolees

David Kirk (University of Oxford) has posted A Natural Experiment of the Consequences of Concentrating Former Prisoners in the Same Neighborhoods (Proceedings of the National Academy of Sciences Vol 112(22): 6943-6948, 2015) on SSRN. Here is the abstract:

More than 600,000 prisoners are released from incarceration each year in the United States, and most end up residing in metropolitan areas, clustered within a select few neighborhoods. Likely consequences of this concentration of returning prisoners include higher rates of subsequent crime and recidivism. In fact, one-half of released prisoners return to prison within only 3 years of release. The routine exposure to criminogenic influences and criminal opportunities portends a bleak future for individuals who reside in neighborhoods with numerous other ex-prisoners. Through a natural experiment focused on post-Hurricane Katrina Louisiana, I examine a counterfactual scenario: if instead of concentrating ex-prisoners in geographic space, what would happen to recidivism rates if ex-prisoners were dispersed across space? Findings reveal that a decrease in the concentration of parolees in a neighborhood leads to a significant decrease in the re-incarceration rate of former prisoners.

June 12, 2015 | Permalink | Comments (0)

Terry on Lawyers, Money Laundering, and Terrorist Financing

Terry laurelLaurel S. Terry (The Pennsylvania State University Dickinson School of Law) has posted U.S. Legal Profession Efforts to Combat Money Laundering and Terrorist Financing  (59 New York Law School Law Review 487 (2015)) on SSRN. Here is the abstract:

This article was prepared for the Symposium on Combating Money Laundering and Terrorist Financing, which was the first academic symposium of its kind, and included speakers from the U.S. Department of the Treasury, the FDIC, and the IRS. It focuses on the legal profession and explains how the US has implemented the FATF Recommendations that address the role that "gatekeepers," including lawyers, can serve to combat money laundering and terrorist financing.

After setting forth introductory material about the intergovernmental organization called the Financial Action task Force or FATF, the FATF Recommendations, and the degree to which the FATF Recommendations have influenced lawyer regulation in other countries, this article examines the manner in which the U.S. government and the legal profession have implemented the FATF Recommendations. The article explains that U.S. lawyers are subject to both criminal and disciplinary sanctions for knowingly engaging in money laundering or terrorist financing or assisting clients involved in such activities. The US actively enforces these provisions and US lawyers have been criminally prosecuted, convicted, and disbarred for assisting clients in money laundering.

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June 12, 2015 | Permalink | Comments (1)

Clancy on Digital Searches

Clancy thomas kThomas K. Clancy (University of Mississippi School of Law) has posted Fourth Amendment Satisfaction -- The 'Reasonableness' of Digital Searches on SSRN. Here is the abstract:

The Fourth Amendment regulates – at least in part – the search and seizure of such evidence. This article discusses the Supreme Court’s only major decision in this area, Riley v. California, 134 S. Ct. 2473 (2014), and its impact on the evolution of the judicial treatment of Fourth Amendment satisfaction issues regarding governmental efforts to obtain digital evidence. Prior to Riley, the Supreme Court provided virtually no guidance and there was a fundamental split in the lower courts on how to treat governmental acquisition of digital evidence. Two principal approaches emerged. One view asserts that a computer – or any digital device – is a form of a container and that the data in electronic storage in that device are mere forms of documents. A second view maintains that searches for data require a "special approach," which supports new Fourth Amendment rules to regulate searches and seizures of digital evidence. Underlying that approach, in large part, is a concern for broad searches akin to general searches and unfettered application of the plain view doctrine. In my view, the proper view is that data searches are governed by the same Fourth Amendment rules regulating containers and document searches. However, what the prevalence of the acquisition of digital evidence teaches us is that some of those traditional rules need to be rethought and modified – yet, they still regulate all searches and seizures. The Court’s decision in Riley is here used to illustrate that view within the context of searches incident to arrest.

June 12, 2015 | Permalink | Comments (0)

Thursday, June 11, 2015

Bartlett et al. on Crimes Caused by Prescription Drugs

Francesca Bartlett Wayne Hall and Adrian Carter (The University of Queensland - T.C. Beirne School of Law , University of Queensland, Australia and The University of Queensland - T.C. Beirne School of Law) have posted Case and Comment. Tasmania v Martin (No 2): Voluntariness and Causation for Criminal Offending Associated with Treatment of Parkinson's Disease (Criminal Law Journal, 37 5: 330-341 (2013)) on SSRN. Here is the abstract:

In 2011, the former independent member of Tasmania's Upper House and Mayor of Glenorchy, Terry Martin, was found guilty of a number of criminal acts. His defence claimed that his behaviour was "caused" by the prescribed medication he was taking. While this is by no means an isolated case in its general outline, the decision and a handful of criminal prosecutions in other jurisdictions, raise interesting legal and philosophical questions about how the law ought to respond to offences committed by persons who engage in compulsive behaviour that they claim have been induced by medication prescribed for a serious, degenerative disease – in this case, Parkinson's disease.

In Martin, the criminal offending was serious. The accused was found guilty of one count of sexual intercourse with a young person under the age of 17, one count of producing child exploitation material, and, in a separate proceeding, one count of possessing child exploitation material. Martin received custodial sentences that were entirely suspended.

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June 11, 2015 | Permalink | Comments (0)

Jackson et al. on Extending Procedural Justice Theory

Jonathan Jackson Ben Bradford Mike Hough and Stephany Carrillo (London School of Economics & Political Science - Department of Methodology , University of Oxford - Centre for Criminology , University of London - Institute for Criminal Policy Research and Independent) have posted Extending Procedural Justice Theory: A Fiducia Report on the Design of New Survey Indicators on SSRN. Here is the abstract:

A key goal of the Fiducia project is to extend procedural justice theory in three new directions. The first relates to public perceptions of new forms of criminal behaviour. The second concerns the applicability of procedural justice theory to these new forms of behaviour. The third considers the notion that legitimacy crosses national borders. In this Fiducia report we motivate and outline core theory, concepts and measures. We also present the questionnaire to be fielded in seven European countries.

June 11, 2015 | Permalink | Comments (0)

Crowe on Fraud and Consent in Australian Rape Law

Jonathan Crowe (The University of Queensland - T.C. Beirne School of Law) has posted Fraud and Consent in Australian Rape Law (Criminal Law Journal, 38 4: 236-249, 2014) on SSRN. Here is the abstract:

This article examines the circumstances in which fraud will vitiate consent to sex for the purposes of Australian rape law. It begins by summarising the Australian common law position on fraud in rape law, before discussing the relevant legislative provisions and recent case law in the various Australian jurisdictions. It is argued that the common features of legal approaches to this issue in the Australian States and Territories raise potentially serious problems of vagueness and overbreadth. Three possible responses are then examined. The article concludes that the most promising immediate response lies in a purposive judicial attitude to interpreting and applying the statutory framework, rather than further legislative reform or systematic reading down of the relevant provisions.

June 11, 2015 | Permalink | Comments (0)