CrimProf Blog

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

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Tuesday, July 1, 2014

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)

"Police Shoot, Kill Dog During Search for Missing Child"

From FindLaw:

SLCPD officers were looking for a missing 3-year-old child on June 18 when an officer entered Kendall's backyard and encountered his dog. Officers may generally not search a person's home without a warrant and probable cause, which is likely why Kendall was asking officers what probable cause there was.

. . .

This exception to the warrant requirement is intended to allow officers to assist civilians without worrying about violating their civil rights. According to the Deseret News, officers found the missing child inside his own home about 30 minutes after shooting and killing the dog.

July 1, 2014 | Permalink | Comments (0)

Monday, June 30, 2014

Weiss on Noncapital Proportionality Review under State Constitutions

Samuel Weiss has posted Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 49, No. 569, 2014) on SSRN. Here is the abstract:

The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences. 

States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment. Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result. 

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June 30, 2014 | Permalink | Comments (0)

Venkat on Drug Abuse

Aruna Bezawada Venkat (NALSAR University of Law) has posted Drug Abuse: Vulnerability or Inevitability? (International Journal of Social Science & Interdisciplinary Research, IJSSIR, Vol3, (5), May 2014) on SSRN. Here is the abstract:

Drug Abuse is a serious problem worldwide. This article elaborates Drug Laws, National Policy, Drug abuse-narcotics to pharmaceuticals, World Drug Report 2013, Drug abuse: A Family Matter, Education and Environment, Variant Protein and Drug Abuse. This would mean that we would need to work towards a collaborative framework where individuals from health care systems, legal spheres, social assistance collectives and educational organizations come together to discuss and implement some of the necessary mechanisms to effectively help those with problematic substance addictions. The collaborative framework would include contributions from experts, academics, policy makers, researchers and civil society. Therefore, drug abuse should be tackled through a multi-disciplinary approach for best and long lasting results.

June 30, 2014 | Permalink | Comments (0)

"Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?"

From Doug Berman at Sentencing Law & Policy:

The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences.  The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped.

June 30, 2014 | Permalink | Comments (0)

Today's criminal law/procedure cert grant

Issue summaries are from ScotusBlog, which also links to papers:

  • Mellouli v. Holder: Whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

June 30, 2014 | Permalink | Comments (0)

Sunday, June 29, 2014

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 753 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 
2 241 Can Employment Reduce Lawlessness and Rebellion? A Field Experiment with High-Risk Youth in a Fragile State 
Christopher Blattman and Jeannie Annan 
Columbia University - School of International & Public Affairs (SIPA) and International Rescue Committee 
Date posted to database: 2 May 2014
3 220 The Brave New World of Cell-Site Simulators 
Heath Hardman 
Albany Law School 
Date posted to database: 24 May 2014 
4 219 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 [new to top ten]
5 194 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 [6th last week]
6 194 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 [7th last week]
7 187 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 [5th 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 
9 148 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 
10 148 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 [new to top ten]

June 29, 2014 | Permalink | Comments (0)

"SCOTUS cellphone ruling resonates in NSA fight"

From Politico:

The Supreme Court’s blunt and unequivocal decision Wednesday giving Americans strong protection against arrest-related searches of their cell phones could also give a boost to lawsuits challenging the National Security Agency’s vast collection of phone call data.

Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

June 29, 2014 | Permalink | Comments (0)

Saturday, June 28, 2014

"Texas couple say they locked up son out of fear he is rapist"

From Reuters:

A Texas couple accused of locking up their son in an apartment garage for at least four years did so because they feared he was a rapist who put his family and community in danger, their lawyer told a bail hearing on Friday.

Dane Thyssen, 39, and his wife Jenifer Thyssen, 40, of the Austin suburb of Dripping Springs, were arrested this week and charged with the illegal confinement of their 22-year-old son in a shed-like structure with boarded-up windows.

June 28, 2014 | Permalink | Comments (0)

"How accurate are historical cell-site records?"

Orin Kerr has this post at The Volokh Conspiracy, linking to an article discussing the technology and concluding that the records only show location within a 20-mile radius, an suggestion relevant to how invasive it is to collect the data.

June 28, 2014 | Permalink | Comments (0)

Friday, June 27, 2014

Leo on Silence and Miranda Waivers

Leo richardRichard A. Leo (University of San Francisco - School of Law) has posted The Sound of Silence: Miranda Waivers, Selective Literalism and Social Context (in Lawrence Solan, Janet Ainsworth, & Roger Shuy, eds., Speaking of Language and Law (Oxford Univ. Press 2014)) on SSRN. Here is the abstract:

This chapter examines the 2010 United States Supreme Court case, Berghuis v. Thompkins, which ruled that waiver of a suspect’s Miranda right to counsel can be implied through silence. The chapter argues that the Thompkins decision is flawed for two reasons. First, the Court held criminal defendants to a higher linguistic standard than police, requiring suspects to be direct and assertive when invoking constitutional rights while allowing police speech to be more indirect and implied. Second, the Court failed to take social context into account when interpreting custodial suspects’ speech patterns. Women and individuals with lower socioeconomic status tend to use more indirect language and hedging phases when speaking to men and individuals with higher socioeconomic status. But courts are less likely to interpret these indirect modes of speech as qualifying as assertions of constitutional rights. The Thompkins Court should have required the interrogator to ask the suspect to clarify why he refused to sign the Miranda waiver and whether he wished to voluntarily participate in the interrogation given his almost complete silence in response to the detective’s questions. More generally, courts should look to suspects’ communicative intent when interpreting whether through words or actions they wish to invoke the right to silence during police interrogation.

June 27, 2014 | Permalink | Comments (1)

Brumfield on Domestic Drones and Use of Force

Eric Brumfield has posted Armed Drones for Law Enforcement: Why it Might Be Time to Re-Examine the Current Use of Force Standard (McGeorge Law Review, Vol. 46, 2014-2015) on SSRN. Here is the abstract:

This comment discusses how the use of an armed drone by law enforcement agencies within the United States affects the current use of force standard under the Fourth Amendment and whether the use of force standard needs to change. This is an important debate for two reasons. First, there is an inevitable progression towards law enforcement agencies using a drone armed with non-lethal or lethal weapons. Second, the growing interest in armed drones is matched by a growing concern by civil rights groups over domestic armed drone use. This comment argues that allowing domestic law enforcement agencies to operate an armed drone in order to protect the public is constitutional but will likely require agencies to create a separate armed drone use of force policy to address material differences in how an officer uses armed force with a drone and to provide guidance for officers in the field.

June 27, 2014 | Permalink | Comments (0)

Thursday, June 26, 2014

Dunlap on Technology and Intimate Terrorism

Justine A. Dunlap has posted Intimate Terrorism and Technology: There's an App for That (University of Massachusetts Law Review, Vol. 7, 2012) on SSRN. Here is the abstract:

Technology enhances the ability of the domestic violence perpetrator. It also holds the promise of assisting domestic violence survivors in their quest for safety. This is true in practical, daily ways and is becoming increasingly true in the legal treatment of these cases. Perpetrators can use technology to stalk and find their victims; survivors can use it to access necessary information to get away from their batterers. Laws are being amended to take into account cyber-enhanced domestic violence techniques. Domestic or intimate terrorists are among the class of criminals targeted for use of GPS monitoring. This article discusses the way that technology is used in circumstances of intimate terrorism. It will examine how technology is used as a batterer's tool in exerting coercive control over a victim. It will also look at the changes in the laws as the legal system strives to keep pace with the rapid advancement of technology. In particular, the recent use of GPS monitoring of intimate terrorists will be analyzed. This analysis will identify some of the problems associated with the on-going legal changes.

June 26, 2014 | Permalink | Comments (0)

"No-fly list violates constitutional rights"

FourthAmendment.com links to and excerpts news reports on a district court opinion focusing on the lack of a way to challenge one's inclusion on the no-fly list.

June 26, 2014 | Permalink | Comments (0)

Wednesday, June 25, 2014

Dysart on Immunity for Prostituted Children

Dysart tessaTessa L. Dysart (Regent University School of Law) has posted Child, Victim, or Prostitute? Justice Through Immunity for Prostituted Children (Duke Journal of Gender Law & Policy, Vol. 21, 2014) on SSRN. Here is the abstract:

Whether minors should be prosecuted for prostitution is a contentious question. Although the federal Trafficking Victims Protection Act (TVPA) criminalizes the prostitution of minors under the age of eighteen the anti-trafficking community is split on how best to handle prostituted minors. Those who support immunity note that finding prostituted children delinquent for engaging in prostitution can further victimize them, create inconsistencies between federal and state law, and serve as an obstacle to full rehabilitation by saddling the victim with a record. Those opposed to immunity argue that prosecutors must retain the ability to charge a prostituted child to ensure the child’s cooperation in the prosecution of her traffickers, and that providing immunity to prostituted minors both “leave[s] them at the mercy of pimps and johns and without the judicial system to advocate for their treatment and rehabilitation” and leads to increases in the prostitution of children.

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June 25, 2014 | Permalink | Comments (0)

Larkin on Good-Time Laws and Risk-Needs Assessments

Paul J. Larkin Jr. (The Heritage Foundation) has posted Managing Prisons by the Numbers: Using the Good-Time Laws and Risk-Needs Assessments to Manage the Federal Prison Population (Harvard Journal of Law and Public Policy, Vol. 1, No. 1, 2014) on SSRN. Here is the abstract:

The criminal justice system directs actors to make predictions about an offender’s likely recidivism. Today, many criminal justice systems use some form of a risk-needs assessment as a classification tool at various stages of the criminal process, especially when deciding where a particular offender will be housed or whether he should be granted credit toward an early release. Research has shown that risk-needs assessments have valuable predictive power and therefore can be worthwhile tools for making the myriad predictions needed in the federal criminal justice system. Yet, risk-needs assessments also are controversial. Some commentators have criticized them on the ground that they offend equal protection principles. The Public Safety Enhancement Act (PSEA) and the Recidivism Reduction and Public Safety Act (RRPSA) attempt to navigate the path toward criminal justice reform by directing the Attorney General to study the value and legality of risk-needs assessments. Legislators who choose to pursue correctional reform by revising the back end of the process would find that the PSEA and the RRPSA are valuable efforts to improve the system.

June 25, 2014 | Permalink | Comments (0)

Opinion holding search-incident-to-arrest exception inapplicable to searches of data on cell phone

Chief Justice Roberts delivered the opinion of the Court in Riley v. California. Justice Alito filed an opinion concurring in part and concurring in the judgment.

June 25, 2014 | Permalink | Comments (1)

Tuesday, June 24, 2014

"Suspect in Seattle shooting spree to mount insanity defense"

From Reuters:

Attorneys for the defendant, Aaron Ybarra, 26, have said their client suffers from "significant and long-standing mental health issues" that were a factor in the shooting this month at Seattle Pacific University.

. . .

In court documents, prosecutors say Ybarra confessed to police detectives that he had been planning a mass shooting in which he wanted to kill as many people as possible before committing suicide.

They said entries in a journal he kept expressed admiration for the massacres committed at Columbine High School in Colorado in 1999 and Virginia Tech in 2007.

June 24, 2014 | Permalink | Comments (0)

Brooks on What Is Wrong with the Criminal Mind

Brooks thomThom Brooks (Durham University) has posted What is Wrong About the 'Criminal Mind'? (2014, Northern Ireland Law Quarterly, Forthcoming) on SSRN. Here is the abstract:

Retributivists argue for a strong link between a criminal’s mind-set at the time of an offence and our community’s response through punishment. This view claims that punishment can be justified depending on the possession of a criminal mind which can be affected by factors that may affect culpability, such as mitigating factors. Retributivism is a powerful influence on our sentencing practices reflected in policy. This article argues it is based on a mistake about what makes the criminal mind relevant for punishment. It will be argued that a currently popular view of retribution endorsed by Feinberg and Duff – ‘retributivist expressivism’ – incorrectly link punishment to a criminal’s possession of moral responsibility. This is a problem because its absence is no defence to strict liability offences, the largest subset of crimes. It is not a crime’s threat or harm to morals that is most salient, but instead its threat or harm to our rights.

June 24, 2014 | Permalink | Comments (0)

Fox on Open-File Discovery

Brian Fox has posted An Argument Against Open-File Discovery in Criminal Cases (Notre Dame Law Review, Vol. 89, No. 1, 2013) on SSRN. Here is the abstract:

This article argues that, for the most part, open-file discovery proponents fail to recognize the added burden that defense counsel would face under a regime in which all items of the prosecution’s evidence are available for investigation by the defense. This is particularly true in the eighty to ninety percent of criminal cases where the defendant is indigent, and the court appointed defense counsel is operating under strict resource constraints.

This article also argues that advocates of open-file discovery fail to recognize that in the majority of cases involving prosecutorial misconduct, the prosecutor’s intentional wrongdoing will be sufficient to overshadow any reasonable amount of diligence performed by defense counsel.

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June 24, 2014 | Permalink | Comments (2)