CrimProf Blog

Gless on the exclusionary rule in Germany

Sabine Gless (University of Basel) has posted Truth or Due Process? The Use of Illegally Gathered Evidence in Criminal Trials - Germany on SSRN. Here is the abstract:

Theories of admissibility of evidence provide insights into concepts that ensure the reconstruction of facts, reliability of proof, fair trial and respect for individual rights in a nutshell. In the German criminal justice system different frameworks form a rather complex system for monitoring the use of illegally gathered evidence. Overall, however, two issues constantly occur: (a) references to the adherence to the rule of law, which mingle with a more modern concept of “fair trial,” and (b) growing emphasis on the protection of the individual’s right to privacy – may it concern a suspect, a victim or a witness. The paper discusses the relevant constitutional and statutory rules as well as legal doctrine and case law, marking the tension between the duty to determine the truth and exclusionary rules. During the last two decades, new, especially covert methods of information gathering were established that challenge traditional concepts, such as the defendant’s rights and potential consequences for the exclusion of evidence. This requires new solutions for balancing the right to privacy, principles of fair trial and law enforcement tasks.

The Subjective Experience of Being a "Giant" in Prison (Kolber)

According to this BBC article, a 6' 9'', 500+ pound Dutch prisoner is arguing that keeping him in an ordinary cell violates the European Convention on Human Rights.

The issue relates to a more general phenomenon that I discuss in The Subjective Experience of Punishment (as well as here and here).  Namely, not all prisoners experience conditions of confinement in the same way.  Though we typically ignore differences in punishment experience, I argue that, according to our best justifications of punishment, we are morally required to take such differences into account.

In many cases, it is difficult to accurately assess or anticipate an inmate's punishment experiences.  In a case like this one, however, it is easy to see why the prisoner will have an especially difficult time.  According to the article, he has to duck his head to fit in the door of his cell.  He cannot fit comfortably on his bed, and in order to shower, "he must first wedge himself into the cubicle, then crouch down under the head."  No doubt, we must consider the costs involved in accommodating this prisoner, but we cannot pretend that he is likely to experience the confined conditions of incarceration in the same way as the average prisoner. 

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Wexler on Therapeutic Jurisprudence and the Sentencing Guidelines

David B. Wexler (University of Puerto Rico - School of Law) has posted Advice for the U.S. Sentencing Commissioners: The Relevance of Therapeutic Jurisprudence and its Literature (Federal Sentencing Reporter, Vol. 23, 2011) on SSRN. Here is the abstract:

This short essay will be part of an issue of the Federal Sentencing Reporter devoted to recommended action for the U.S. Sentencing Commission. The present essay calls attention to the relevance of therapeutic jurisprudence to the sentencing function. It looks at some legal rules and guidelines that do not effectively motivate convicted persons to focus on the future, and it also shows how judges need guidance not only on what sentences to impose but also on the manner and process of sentence imposition.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	238	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011 [5th last week]
2	213	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010 [3rd last week]
3	190	The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case Hedi Viterbo, London School of Economics - Law Department, Date posted to database: December 8, 2010 [4th last week]
4	189	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [8th last week]
5	182	The Substance-Procedure Relationship in Criminal Law Donald W. Dripps, University of San Diego - School of Law, Date posted to database: December 8, 2010 [6th last week]
6	174	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 [7th last week]
7	137	Must Virtue Be Particular? Frederick Schauer, University of Virginia School of Law, Date posted to database: January 14, 2011 [new to top ten]
8	131	Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases Stanley A. Goldman, Loyola Marymount University - Loyola Law School Los Angeles, Date posted to database: November 26, 2010 [10th last week]
9	124	Torture, Suicide, and Determinatio Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: December 11, 2010 [new to top ten]
10	117	Children of Incarcerated Parents: The Child’s Constitutional Right to the Family Relationship Chesa Boudin, Yale University - Law School, Date posted to database: November 14, 2010 [new to top ten]

Achutti on Restorative Justice

Daniel Achutti (Institute for Criminology and Alterity has posted The Strangers in Criminal Procedure: Restorative Justice as a Possibility to Overcome the Simplicity of the Modern Paradigm of Criminal Justice on SSRN. Here is the abstract:

The present paper addresses the crisis of penal procedure in the contemporary society from its epistemological basis to, then, present restorative justice as a concrete alternative to the traditional criminal procedure. The intention is to describe how criminal procedure got established since its modern scientific roots and, then, to show the impossibility of a satisfactory management of social conflicts according to its standardized rules. After it, is argued that restorative justice is able to better deal with social conflicts than criminal procedure, once that system does not have standardized rules and allows the stakeholders to decide the situation according to their own deliberation, instead of being obliged to follow a decision from another person, usually a judge.

Pabsdorff, Rytterbro, Sambou & Uotila on Victim-Offender Mediation

Mari-Louise Pabsdorff (pictured), Lise-Lotte Rytterbro , Saija Sambou and Erika Uotila (University of Oslo - Department of Criminology and Sociology of Law , Stockholm University , affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Victim-Offender Mediation: Observations from Scandinavia (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011) on SSRN. Here is the abstract:

The focus of this article is the discourse between parties and mediator(s) in Victim-Offender Mediation in Scandinavia. The analysis show that mediation talk is concentrated on what happened in the actual crime situation, and what the parties and other persons present at the time did or did not do. Different "accounts" are used actively by the parties, to excuse or justify their behaviour. The explanations for crime are thus primarily found on an individual level, leaving societal issues out. A normative and evaluative inquiry of crimes and why crimes occur plays a minimal (if any) role in VOM in Scandinavia.

Federalist Society Criminal Law and Procedure Practice Group facebook page

Crime and Consequences links to this new page.

"An Equilibrium-Adjustment Theory of the Fourth Amendment"

Orin Kerr has this post at The Volokh Conspiracy on his new article, which you can find here. Here's the abstract:

Fourth Amendment law is often considered a theoretical embarrassment. The law consists of dozens of rules for very specific situations that seem to lack a coherent explanation. Constitutional protection varies dramatically based on seemingly arcane distinctions.

This Article introduces a new theory that explains and justifies both the structure and content of Fourth Amendment rules: The theory of equilibrium-adjustment. The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of protection in response to new facts in order to restore the status quo level of protection. When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection. Existing Fourth Amendment law therefore reflects many decades of equilibrium-adjustment as facts change. This simple argument explains a wide range of puzzling Fourth Amendment doctrines including the automobile exception; rules on using sense-enhancing devices; the decline of the “mere evidence” rule; how the Fourth Amendment applies to the telephone network; undercover investigations; the law of aerial surveillance; rules for subpoenas; and the special Fourth Amendment protection for the home.

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Kempinen on Problem-Solving Courts

Ben Kempinen (University of Wisconsin Law School) has posted Problem-Solving Courts and the Defense Function: The Wisconsin Experience (Hastings Law Journal, Vol. 62, No. 5, 2011) on SSRN. Here is the abstract:

Problem-solving courts have emerged as one of the fastest growing innovations in the criminal justice system. Their growth has not been without controversy, given their dramatic departure from a traditional adversary model in favor of a collaborative approach in dealing with offenders with serious alcohol, substance abuse, or mental health issues. The most outspoken criticism of this approach has come from the defense bar. This paper suggests much of the criticism is misplaced, and, that if care is exercised in separating the roles that defense counsel play in communities with problem-solving courts the promise of this approach for appropriate offenders can be realized without compromising the core duties that counsel owes his client. The template proposed here for reconciling these conflicting interests is based in large part on the work and experiences of shareholders in Wisconsin problem-solving courts. It is further suggested that the proposed ABA Standards for the Defense Function fail to address most, if not all, of the unique defense function issues presented by the problem-solving court model.

Chao on Interpreters

David H. Chao has posted Bifurcated Review of Interpreter Determinations Under the Court Interpreters Act (Connecticut Public Interest Law Journal, Vol. 10, No. 1, Fall-Winter 2010) on SSRN. Here is the abstract:

Since the passage of the Court Interpreters Act in 1978, defendants have had a statutory right to a language interpreter when the district court determines that the defendant’s language barrier inhibits his comprehension. When defendants have appealed their convictions, claiming that the court erroneously denied them an interpreter, courts of appeals review the lower court determinations for clear error or abuse of discretion. This Article argues that this deferential standard is not proper for reviewing interpreter determinations under the Act, which are mixed questions of law and fact. Instead, appellate courts should review findings of fact for clear error and legal conclusions de novo.

Ribstein on Prosecuting Crimes by Corporate Agents

Larry E. Ribstein (University of Illinois College of Law) has posted Agents Prosecuting Agents on SSRN. Here is the abstract:

Significant questions have been raised concerning the efficiency of criminalizing agency costs and the problems of excessive prosecution of crimes committed by corporate agents. This paper provides a new perspective on these questions by analyzing them from the perspective of agency cost theory. It shows that there are close analogies between the agency costs associated with prosecutors in corporate crime cases and those of the agents being prosecuted. The important difference between the two contexts is that prosecutors are not subject to many of the standard mechanisms for dealing with corporate agency costs. An implication of this analysis is that society must decide if prosecuting corporate agents is worth incurring the agency costs of prosecutors.

Torture, Acquitted Counts Not Enough to Reduce Sentence for Ex-Detainee

From the New York Times:

Ahmed Khalfan Ghailani, the first former detainee at Guantánamo Bay, Cuba, to be tried in the civilian court system, was sentenced to life in prison on Tuesday for his role in the 1998 bombings of two United States Embassies in East Africa.

. . .

The defense had asked the judge for a lesser sentence, citing the extraordinary circumstances of Mr. Ghailani’s case, like the years he spent in detention in a so-called black site run by the C.I.A., where his lawyers say he was tortured.

But the judge, Lewis A. Kaplan of Federal District Court in Manhattan, said that no matter how Mr. Ghailani was treated while in detention, “the impact on him pales in comparison to the suffering and the horror that he and his confederates caused.”

. . .

Although Mr. Ghailani was acquitted of more than 280 charges of murder and conspiracy, the judge focused on the solitary conviction of conspiracy to destroy government buildings and property.

Westen on Self Incrimination

Peter K. Westen (University of Michigan Law School) has posted Answer Self-Incriminating Questions or Be Fired (American Journal of Criminal Law, Vol. 37, No. 2, p. 97, Spring 2010) on SSRN. Here is the abstract:

Can a public employee be fired for refusing to answer self-incriminating questions or be prosecuted based on answers he gives under threat of firing?

These are questions that underlie a 2009 U.S. District Court decision dismissing prosecutions against the Blackwater employees for killing Iraqi civilians in Baghdad in September, 2007. They are also questions that the U.S. Supreme appeared to answer in a series of five cases from 1967-77. Yet the lower federal remain sharply divided about what those five decisions mean and, specifically, about whether the government must inform public employees that they possess immunity should they respond to a threat of discharge by answering self-incriminating questions.

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Monasky on Comprehensive Prostitution Reform

Heather Monasky has posted On Comprehensive Prostitution Reform: Criminalizing the Trafficker and the Trick, But Not the Victim - Sweden’s Sexköpslagen in America (William Mitchell Law Review, Vol. 37, No. 4, Forthcoming) on SSRN. Here is the abstract:

Sex trafficking of women and children - one of the most urgent human rights violation confronting the world today - incorporates prostitution into its end product. While the world focuses on the nature of prostitution - i.e., forced (trafficked) or voluntary (sex worker) - the author‘s research indicates that few women in prostitution choose that path.

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Today's criminal law/procedure cert grants

Summaries from ScotusBlog, which includes links to papers and opinions below:

• Howes v. Fields: Whether this Court’s clearly established precedent under 28 U.S.C. § 2254 holds that a prisoner is always "in custody" for purposes of Miranda any time that prisoner is isolated from the general prison population and questioned about conduct occurring outside the prison regardless of the surrounding circumstances.
• Reynolds v. United States: Validity of the Sex Offender Registration and Notification Act and its implementing regulations.

Summary reversal in cases involving federal habeas relief based on alleged failure to apply state parole standard

The case is Swarthout v. Cooke. In part:

In granting habeas relief based on its conclusion that the state courts had misapplied California’s "some evidence" rule, the Ninth Circuit must have assumed either that federal habeas relief is available for an error of state law, or that correct application of the State’s "some evidence" standard is required by the federal Due ProcessClause. Neither assumption is correct.

Top-Ten Recent SSRN Downloads

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	350	Post Padilla: Padilla’s Puzzles for Review in State and Federal Courts Gray Proctor, Nancy J. King, Fourth Circuit Court of Appeals, Vanderbilt University - Law School, Date posted to database: November 11, 2010
2	310	Vagueness and the Guidance of Action Jeremy Waldron, New York University (NYU) - School of Law, Date posted to database: October 31, 2010
3	208	Theorizing Mental Health Courts E. Lea Johnston, University of Florida - Fredric G. Levin College of Law, Date posted to database: November 21, 2010
4	187	The Age of Conflict: Rethinking Childhood, Law, and Age Through the Israeli-Palestinian Case Hedi Viterbo, London School of Economics - Law Department, Date posted to database: December 8, 2010
5	181	Plan Now or Pay Later: The Role of Compliance in Criminal Cases Charlotte Simon, Ryan D. McConnell, Jay Martin, University of Houston - Law Center, Haynes and Boone LLP, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: January 11, 2011 [new to top ten]
6	177	The Substance-Procedure Relationship in Criminal Law Donald W. Dripps, University of San Diego - School of Law, Date posted to database: December 8, 2010 [5th last week]
7	169	Who May Be Held? Military Detention Through the Habeas Lens Robert Chesney, University of Texas School of Law, Date posted to database: December 16, 2010 Last Revised: January 13, 2011
8	135	Is the Fourth Amendment Relevant in a Technological Age? Christopher Slobogin, Vanderbilt University - Law School, Date posted to database: January 10, 2011 [new to top ten]
9	131	Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction Deborah W. Denno, Fordham University School of Law, Date posted to database: November 15, 2010 [8th last week]
10	124	Searching for the Fourth Amendment: Looking for Law in All the Wrong Cases Stanley A. Goldman, Loyola Marymount University - Loyola Law School Los Angeles, Date posted to database: November 26, 2010 [9th last week]

Vollaard on Selective Incapacitation

Ben Vollaard (TILEC, Tilburg University) has posted Preventing Crime Through Selective Incapacitation on SSRN. Here is the abstract:

Making the length of a prison sentence conditional on an individual’s offense history is shown to be a powerful way of preventing crime. Under a law adopted in the Netherlands in 2001, prolific offenders could be sentenced to a prison term that was some ten times longer than usual. We exploit quasi-experimental variation in the moment of introduction and the frequency of application across 12 urban areas to identify the effect. We find the sentence enhancements to have dramatically reduced theft rates. The size of the crime-reducing effect is found to be subject to sharply diminishing returns.

University of Pennsylvania Criminal Law Research Group on Offense Grading in New Jersey

Paul H. Robinson (University of Pennsylvania Law School) and several students from the University of Pennsylvania Law School (Rebecca Levenson , Nicholas Feltham , Andrew Sperl , Kristen-Elise Brooks , Agatha Koprowski , Jessica Peake , Benjamin Probber and Brian Trainor) have posted Report on Offense Grading in New Jersey on SSRN. Here is the abstract:

The University of Pennsylvania Criminal Law Research Group was commissioned to do a study of offense grading in New Jersey. After an examination of New Jersey criminal law and a survey of New Jersey residents, the CLRG issued this Final Report. (For the report of a similar project for Pennsylvania, see Report on Offense Grading in Pennsylvania, http://ssrn.com/abstract=1527149, and for an article about the grading project, see The Modern Irrationalities of American Criminal Codes: An Empirical Study of Offense Grading, http://ssrn.com/abstract=1539083, Journal of Criminal Law and Criminology (forthcoming 2011).)

The New Jersey study found serious conflicts between the relative grading judgments of New Jersey residents and those contained in existing New Jersey criminal law, as well as instances where mandatory minimum sentences often require sentences that exceed the maximum appropriate punishment, inconsistencies among the grading of similar offenses, overly broad offenses that impose similar grades on conduct of importantly different seriousness, and a flawed grading structure that provides too few grading categories, thereby assuring pervasive problems in failing to distinguish conduct of importantly different seriousness.

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MTV's "Skins" and Child Pornography Laws (Kolber)

Yesterday, the New York Times ran a story about a popular new show on MTV called "Skins."  Apparently, the show's producers "are particularly concerned about the third episode of the series, which is to be broadcast Jan. 31. In an early version, a naked 17-year-old actor is shown from behind as he runs down a street."  They are concerned that the episode may violate child pornography laws:

It is unclear when MTV first realized that the show may be vulnerable to child pornography charges. On Tuesday, a flurry of meetings took place at the network’s headquarters in New York, according to an executive who attended some of the meetings and spoke only on the condition of anonymity. In one of the meetings, the executives wondered aloud who could possibly face criminal prosecution and jail time if the episodes were broadcast without changes.

One imagines that these meetings are especially uncomfortable:  If they are worried about criminal prosecution for broadcasting the episode, then perhaps they also have to worry about the knowing possession of the media containing the episode. 

-AJK