CrimProf Blog

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	285	Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010
2	284	The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law Alina Das, New York University School of Law Immigrant Rights Clinic, Date posted to database: October 17, 2010
3	214	The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes Maximo Langer, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: August 19, 2010
4	199	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010
5	190	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010
6	177	Is the Rome Statute Binding on Individuals? (And Why We Should Care) Marko Milanovic, University of Nottingham School of Law, Date posted to database: October 12, 2010 [new to top ten]
7	172	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [6th last week]
8	165	The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric? Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: October 11, 2010
9	160	A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office Mike Koehler, Butler University College of Business, Date posted to database: October 5, 2010
10	157	Talking About Prosecutors Alafair S. Burke, Hofstra University - School of Law, Date posted to database: September 24, 2010 [new to top ten]

"SCOTUS in decline in quality of work"

FourthAmendment.com links to Adam Liptak's column in The New York Times, which states in part:

Judge Frank M. Hull of the federal appeals court in Atlanta complained that the privacy decision featured “a marked lack of clarity,” and was almost aggressively unhelpful to judges and lawyers.

The Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is often criticized for issuing sweeping and politically polarized decisions. But there is an emerging parallel critique as well, this one concerned with the quality of the court’s judicial craftsmanship.

In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts.

Anderson on Innocence and Harmless Error

Helen A. Anderson  (University of Washington - School of Law) has posted Revising Harmless Error: Making Innocence Relevant to Direct Appeals on SSRN. Here is the abstract:

The direct appeal of a convicted defendant is almost never concerned with actual innocence. The system seems to privilege procedural claims, and it is extremely difficult, if not impossible, to get an appellate court to take seriously a claim of factual error such as the claim that a witness lied or was mistaken. The disconnect between appeals and actual innocence is ironic, since most jurisdictions provide funding for direct appeals, but not for collateral attacks where claims of actual innocence can be litigated. This article focuses on one aspect of appellate review that could in theory be made more likely to provide relief to the innocent through more reliable fact-finding: the harmless error analysis. It is in assessing whether an error was harmless that the courts come closest to thinking about innocence on appeal. According to the Innocence Project, the leading cause of wrongful convictions is eyewitness misidentification, followed by "unvalidated/improper forensics," false confessions, and informants. Current harmless error analysis runs contrary to these findings, giving undue weight to precisely the kind of evidence often implicated in wrongful convictions, and not sufficiently considering the impact of erroneously admitted evidence on the jury. This article looks at the history of harmless error analysis, how it is applied in cases where the likely causes of wrongful conviction are implicated, and what changes can be made to reinvigorate harmless error so that courts take seriously the possibility of innocence given what we have learned through DNA exoneration's.

Holbrook on Veterans' Courts and Criminal Responsibility

Justin G. Holbrook  (Widener University School of Law) has posted Veterans’ Courts and Criminal Responsibility: A Problem Solving History & Approach to the Liminality of Combat Trauma (YOUNG VETERANS: A RESILIENT COMMUNITY OF HONOR, DUTY & NEED, Diann Cameron Kelly, David Gitelson and Sydney Howe Barksdale, eds., Springer, Forthcoming) on SSRN. Here is the abstract:

In September 2010, a federal judge dismissed a criminal case involving a veteran accused of assaulting a federal police officer to allow the case to be heard by the Buffalo Veterans Treatment Court, a division of Buffalo City Court. For those involved in veterans’ advocacy and treatment, the case is significant for a number of reasons. First, it is the first criminal case nationwide to be transferred from federal court to a local veterans treatment court where the goal is to treat - rather than simply punish - those facing the liminal effects of military combat. Second, the case reignites the still unsettled controversy over whether problem-solving courts generally, and veterans courts specifically, unfairly shift the focus of justice away from the retributive interests of victims to the rehabilitative interests of perpetrators. Third, the case serves as a signal reminder to all justice system stakeholders, including parties, judges, attorneys, and treatment professionals, of the potential benefits of sidestepping courtroom adversity in favor of a coordinated effort that seeks to ameliorate victim concerns while advancing treatment opportunities for veterans suffering from combat-related trauma. This chapter explores these issues in light of the history of combat-related trauma and the development of veterans’ treatment courts around the country.

"Notable new publication on deterrence from The Sentencing Project"

Doug Berman has the story at Sentencing Law and Policy, discussing this project from The Sentencing Project entitled Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment by Dr. Valerie Wright.

"Verdict dims outlook for civilian trials of terrorism detainees"

From the Washington Post:

What was a very bad day for Ahmed Ghailani, now a convicted felon likely to spend many years in a supermax prison, was also, because of the super-charged politics surrounding Guantanamo Bay, a pretty bad day for the Obama administration.

. . .

[T]he political reality is that the prospect of a tough sentence for conspiracy to destroy U.S. property by fire or explosives was largely swallowed up by a stunning verdict in which Ghailani was acquitted of 284 counts, including all 224 murder counts.

. . .

Jack Goldsmith, a former Justice Department official in the George W. Bush administration and now a Harvard Law School professor, wrote on the Lawfare blog Thursday that the military detention option is a "tradition-sanctioned, congressionally authorized, court-blessed, resource-saving, security-preserving, easier-than-trial option for long-term terrorist incapacitation. And this morning it looks more appealing than ever."

"Pat-Downs at Airports Prompt Complaints"

The New York Times story is here:

In the three weeks since the Transportation Security Administration began more aggressive pat-downs of passengers at airport security checkpoints, traveler complaints have poured in.

Some offer graphic accounts of genital contact, others tell of agents gawking or making inappropriate comments, and many express a general sense of powerlessness and humiliation. In general passengers are saying they are surprised by the intimacy of a physical search usually reserved for police encounters.

Alderman & Lichstein on Discussing Ineffective Assistance Claims with Trial Counsel

Kim Alderman and Byron Lichstein  (University of Wisconsin Law School and affiliation not provided to SSRN) have posted Pitfalls of Discussing IAC Claims with Trial Counsel (Wisconsin Law Journal, November 2010) on SSRN. Here is the abstract:

This is the second article in a two-part series on how to effectively litigate ineffective assistance of counsel (IAC) post-conviction claims. This article focuses on communicating with trial counsel in advance of an IAC hearing.

Saul on Criminality and Terrorism

Ben Saul  (University of Sydney - Faculty of Law) has posted Criminality and Terrorism (COUNTER-TERRORISM, THE SECURITY IMPERATIVE AND THE RULE OF LAW, Katja Samuel et al., eds., World Justice Project: Nottingham University & Club of Madrid, Forthcoming) on SSRN. Here is the abstract:

This chapter identifies threats to the rule of law posed by criminal law responses to terrorism at the national, regional and international levels, including the controversial shift over time from treating terrorism as ordinary crime to stigmatizing terrorism as a special kind of offence against political life, public order, and international social values. First, vague or over-inclusive definitions of terrorism raise serious concerns about freedom from retroactive criminal punishment. Secondly, ancillary, preparatory or inchoate offences (frequently attracting disproportionate penalties) which hang off the primary definition of terrorism in various legal systems have sometimes been crafted too broadly. Thirdly, group-based offences (such as membership, association or ‘material support’ offences) linked to the proscription of terrorist organizations often deny procedural fairness and rights of review. Fourthly, speech-related offences including incitement, advocacy or glorification of terrorism engage concerns about freedom of expression, of religion and from non-discrimination. Fifthly, the modification of traditional criminal procedure in dealing with terrorism impairs fair trial rights and the independence and impartiality of tribunals. Finally, boundaries of different branches of law (including domestic criminal law and international humanitarian law) have been blurred, risking double jeopardy and generating problems for the integrity of all such branches of law.

"Federal judge denies motion for mistrial in ex-Guantanamo detainee trial"

Jurist has this story:

The motion came after an anonymous juror's note was read in court, indicating that the juror was alone in her views and was being attacked for her conclusions [NYT report]. The juror requested to be removed or replaced.

Sarma on Peremptory Challenges

Bidish Sarma  (The Justice Center's Capital Appeals Project) has posted Response to 'Snyder v. Lousiana: Continuing the Historical Trend Towards Increased Scrutiny of Peremptory Challenges' (Michigan Law Review First Impressions, Vol. 109, p. 42, 2010) on SSRN. Here is the abstract:

John P. Bringewatt's recent note makes several important observations about the Supreme Court's opinion in Snyder v. Louisiana. Although he provides reasonable support for the claim that Snyder represents a sea change in Batson jurisprudence, the US Supreme Court's fresh opinion in Thaler v. Haynes (rendered on February 22, 2010) reads the Snyder majority opinion narrowly and suggests the possibility that Snyder is not as potent as it should be. The Haynes per curiam's guarded reading of Snyder signals the need for courts to continue to conduct the bird's-eye cumulative analysis that the Court performed in Miller-El v. Dretke [hereinafter Miller-El II]. If lawyers challenging discriminatory peremptory strikes and trial courts replicate Snyder's single-juror approach but ignore concomitant Miller-El circumstantial evidence of intentional discrimination, Snyder may (counterintuitively) sap Miller-El II of its on-the-ground transformative potential. In other words, lawyers should not rely too much on the "more individualized focus" observed and applauded by the author because a narrow framing of a Batson challenge in the Snyder opinion's image (rather than a wider framing with a focus on the Miller-El factors) may fail in front of courts that view Snyder differently than does Bringewatt. A slightly different interpretation of the historical arc of the relevant cases and a critical reconsideration of Snyder's circumstances foreshadow the outcome in Haynes and reveal nuances that suggest problems with Bringewatt's theory.

Giannelli on Scientific Fraud

Paul C. Giannelli  (Case Western Reserve University School of Law) has posted Scientific Fraud (Criminal Law Bulletin, Vol. 46, 2010) on SSRN. Here is the abstract:

Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.

"A Case of Dubious Federalization Reaches the Supreme Court"

Kent Scheidegger at Crime & Consequences weighs in on one of the Court's cert grants from Monday:

The drug crimes and bank robbery that Fowler committed and conspired to commit prior to the killing are offenses under both state and federal law, so Officer Horner's report might or might not have been forwarded to federal authorities.  It is most unlikely that Fowler was pondering issues of federalism when he shot Officer Horner.  The evidence makes clear that he did commit the killing to prevent a report of his crimes and that it was possible (whether he knew it or not) that the report would go to federal authorities.  Is that sufficient evidence to support a verdict of guilt in this case? . . .

I do not know the answer to the legal question.  As a matter of policy, I do not see any justification for charging this as a federal case.

"Indefinite Detention for KSM"

Jonathan Adler at The Volokh Conspiracy notes this article in the Washington Post:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

"Poll Shows Growing Support for Alternatives to the Death Penalty; Capital Punishment Ranked Lowest Among Budget Priorities"

This press release is on the website of the Death Penalty Information Center:

(Washington, D.C.)  The Death Penalty Information Center today released the results of one of the most comprehensive studies ever conducted of Americans’ views on the death penalty. A national poll of 1,500 registered voters conducted by Lake Research Partners shows growing support for alternatives to the death penalty compared with previous polls. A clear majority of voters (61%) would choose a punishment other than the death penalty for murder, including life with no possibility of parole and with restitution to the victim’s family (39%), life with no possibility of parole (13%), or life with the possibility of parole (9%).

In states with the death penalty, a plurality of voters said it would make no difference in their vote if a representative supported repeal of the death penalty; and a majority (62%) said either it would make no difference (38%) or they would be more likely to vote for such a representative (24%).

Sanchirico on Detection Avoidance and Enforcement Theory

Chris William Sanchirico  (University of Pennsylvania Law School) has posted Detection Avoidance and Enforcement Theory: Survey and Assessment on SSRN. Here is the abstract:

The conventional economic model of enforcement focuses on the cost and effect of the state’s efforts to detect violations. This survey considers attempts to add to this framework the cost and effect of violators’ efforts to avoid detection. The survey describes how the conventional model must be altered to accommodate detection avoidance, and how results derived within the conventional framework are accordingly effected. The survey also considers policies directed at detection avoidance itself. It describes how the recursive nature of detection avoidance effects the efficacy of sanctioning detection avoidance. It also considers alternative, "technological" approaches.

Today's crim law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to opinions below and cert papers:

• Tolentino v. New York: whether an individual’s motor vehicle records cannot be used as evidence, if the police had consulted those records only after making an illegal stop of the individual’s vehicle.
• Fowler v. United States: whether there must be proof that the victim actually intended to report the crime to a federal officer to get a conviction for murdering a person to prevent that individual from reporting a federal crime to a federal law enforcement officer or judge.

Opinion in firearm enhancement case

The opinion in Abbott v. United States is here. Here is the syllabus:

Petitioners Abbott and Gould, defendants in unrelated prosecutions, were charged with drug and firearm offenses, including violation of18 U. S. C. §924(c), which prohibits using, carrying, or possessing a deadly weapon in connection with "any crime of violence or drug trafficking crime," §924(c)(1). The minimum prison term for a §924(c) offense is five years, §924(c)(1)(A)(i), in addition to "any other term of imprisonment imposed on the [offender]," §924(c)(1)(D)(ii). Abbott was convicted on the §924(c) count, on two predicate drug-trafficking counts, and of being a felon in possession of a firearm. He received a 15-year mandatory minimum sentence for his felon-in-possession conviction and an additional five years for his §924(c) violation. Gould’s predicate drug-trafficking crime carried a ten-year mandatory minimum sentence; he received an additional five years for his §924(c) violation. On appeal, Abbott and Gould challenged their §924(c) sentences, resting their objections on the "except" clause prefacing §924(c)(1)(A). That clause provides for imposition of a minimum five year term as a consecutive sentence "[e]xcept to the extent that a greater minimum sentence is otherwise provided by [§924(c) itself] or by any other provision of law." Abbott urged that the "except" clause was triggered by his 15-year felon-in-possession sentence; Gould said the same of the ten years commanded by his predicate trafficking crime. The Third Circuit affirmed Abbott’s sentence, concluding that the "except" clause "refers only to other minimum sentences that maybe imposed" for §924(c) violations. Gould fared no better before the Fifth Circuit.

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Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	270	Good Faith, New Law, and the Scope of the Exclusionary Rule Orin S. Kerr, George Washington University - Law School, Date posted to database: September 11, 2010
2	258	The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law Alina Das, New York University School of Law Immigrant Rights Clinic, Date posted to database: October 17, 2010 [new to top ten]
3	210	The Diplomacy of Universal Jurisdiction: The Regulating Role of the Political Branches in the Transnational Prosecution of International Crimes Maximo Langer, University of California, Los Angeles (UCLA) - School of Law, Date posted to database: August 19, 2010 [2nd last week]
4	195	Deportation is Different Peter L. Markowitz, Benjamin N. Cardozo School of Law, Date posted to database: August 28, 2010
5	184	The New Habeas Revisionism Stephen I. Vladeck, American University - Washington College of Law, Date posted to database: August 30, 2010 [6th last week]
6	166	Jury 2.0 Caren Myers Morrison, Georgia State University - College of Law, Date posted to database: September 1, 2010 [7th last week]
7	155	Rethinking Proportionality Under the Cruel and Unusual Punishments Clause John F. Stinneford, University of Florida Levin College of Law, Date posted to database: August 20, 2010 [9th last week]
8	154	The Efficacy of Severe Child Pornography Sentencing: Empirical Validity or Political Rhetoric? Melissa Hamilton, University of South Carolina - School of Law, Date posted to database: October 11, 2010 [new to top ten]
9	152	A Conversation with Richard Alderman - Director of the United Kingdom Serious Fraud Office Mike Koehler, Butler University College of Business, Date posted to database: October 5, 2010 [8th last week]
10	149	The Concept of Evil in American and German Criminal Punishment Joshua Kleinfeld, Goethe University Frankfurt - Cluster of Excellence Normative Orders, Date posted to database: August 30, 2010

Thorburn on Criminal Law as Public Law

Malcolm Thorburn (Queen's University - Faculty of Law) has posted Criminal Law as Public Law on SSRN. Here is the abstract:

In this chapter, I propose a novel way of justifying the practices of the criminal justice system — a position I call a ‘public law account’ of criminal justice. I call it a ‘public law’ account because it conceives of the operations of the criminal justice system, insofar as they are legitimate, as concerned with the basic question of public law: when the use of state power is legitimate. Like the new legal moralism of Antony Duff and John Gardner, my account is an attempt to justify the workings of the criminal justice system by demonstrating that they are just what is required for us to be true to a set of roles and relationships that have intrinsic value. But the relevant roles and relationships for criminal justice are not those we understand from ordinary morality. Rather, they are the legally defined roles — such as private citizen, police officer, judge, etc — that we take up within a larger constitutional order that, I shall argue, we could not abolish without abandoning necessary preconditions for our moral life.

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