CrimProf Blog

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

Tuesday, May 31, 2011

Lan on China's Malleable Criminal Procedure Law

Rongjie Lan (Zhejiang University) has posted A False Promise of Fair Trials: A Case Study of China's Malleable Criminal Procedure Law (Pacific Basin Law Journal, Vol. 27, p. 101, 2010) on SSRN. Here is the abstract:

China revised its Criminal Procedure Law in 1996 adopting an adversarial-style trial model and granting remarkable procedural safeguards to the accused. Many have been tempted to conclude that this new law is capable of ensuring fair trials for criminal defendants and thus could improve China’s record of human rights protection.

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May 31, 2011 | Permalink | Comments (1)

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog:

  • Perry v. New Hampshire: Do the Due Process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances, as some courts have held, or only when teh suggestive circumstances were orchestrated by the police?

May 31, 2011 | Permalink | Comments (0)

Opinion in material witness/immunity case

The case is Ashcroft v. al-Kidd. Here is the syllabus:

Respondent al-Kidd alleges that, after the September 11th terrorist attacks, then-Attorney General Ashcroft authorized federal officials to detain terrorism suspects using the federal material-witness statute, 18 U. S. C. §3144. He claims that this pretextual detention policy led to his material-witness arrest as he was boarding a plane to Saudi Arabia. To secure the warrant, federal officials had told a Magistrate Judge that information “crucial” to Sami Omar al-Hussayen’s prosecution would be lost if al-Kidd boarded his flight.Prosecutors never called al-Kidd as a witness, and (as he alleges) never meant to do so. Al-Kidd filed suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, challenging the constitutionality of Ashcroft’s alleged policy. The District Court denied Ashcroft’s motion to dismiss on absolute and qualified immunity grounds. The Ninth Circuit affirmed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause of criminal wrongdoing, and that Ashcroft could not claim qualified or absolute immunity.

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May 31, 2011 | Permalink | Comments (3)

Monday, May 30, 2011

Cassell & Erez on Victim Impact Statements and Ancillary Harm

Cassell Paul G. Cassell (pictured) and Edna Erez (University of Utah - S.J. Quinney College of Law and University of Illinois at Chicago) have posted Victim Impact Statements and Ancillary Harm: The American Perspective (Canadian Criminal Law Review, Vol. 15, p. 149, 2011) on SSRN. Here is the abstract:

A recent article by Julian Roberts and Marie Manikis argues that the concept of “ancillary harm” explains why victim impact statements are useful at sentencing. Drawing on a recent decision from the Quebec Court of Appeals, they contend that impact statements help a judge assess foreseeable harm caused to a victim’s family member and others – “ancillary harm” – for which the defendant is properly held accountable under conventional retributive principles.

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May 30, 2011 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 567 The Law Enforcement Surveillance Reporting Gap
Christopher Soghoian,
Indiana University Bloomington - Center for Applied Cybersecurity Research,
Date posted to database: April 11, 2011 
2 446 Fetal Pain, Abortion, Viability and the Constitution
I. Glenn Cohen, Sadath Sayeed,
Harvard Law School, Harvard University - Harvard Medical School,
Date posted to database: April 11, 2011
3 291 Why Courts Should Not Quantify Probable Cause
Orin S. Kerr,
George Washington University - Law School,
Date posted to database: March 30, 2011
4 286 Nothing to Hide: The False Tradeoff between Privacy and Security
Daniel J. Solove,
George Washington University Law School,
Date posted to database: May 11, 2011 [5th last week]
5 264 FCPA Sanctions: Too Big to Debar?
Drury D. Stevenson, Nicholas J. Wagoner,
South Texas College of Law, South Texas College of Law,
Date posted to database: April 18, 2011 [4th last week]
6 257 The Objects of the Constitution
Nicholas Quinn Rosenkranz,
Georgetown University - Law Center,
Date posted to database: May 20, 2011 [new to top ten]
7 224 Making Padilla Practical: Defense Counsel and Collateral Consequences at Guilty Plea
Gabriel J. Chin,
University of Arizona James E. Rogers College of Law,
Date posted to database: April 16, 2011 [6th last week]
8 201 Is it Finally Time to Put 'Proof Beyond a Reasonable Doubt' Out to Pasture?
Larry Laudan,
Instituto de Investigaciones Filosoficas, UNAM,
Date posted to database: April 21, 2011
9 186 In Defense of Tax Privacy
Joshua D. Blank,
New York University School of Law,
Date posted to database: March 31, 2011
10 175 Mental Torture: A Critique of Erasures in U.S. Law
David J. Luban, Henry Shue,
Georgetown University Law Center, University of Oxford,
Date posted to database: March 30, 2011

May 30, 2011 | Permalink | Comments (0)

Saturday, May 28, 2011

Patriot Act updates

McKenna on Preconviction Indigent Defense Reform

William H. W. McKenna  has posted Comment: The Gideon Split: Preconviction Indigent Defense Reform Litigation in Hurrell-Harring and Duncan on SSRN. Here is the abstract:

Now forty-nine years after the U.S. Supreme Court’s decision in Gideon v. Wainwright (1963), many states continue to fail to effect its guarantee. Recently though, some have challenged states’ systemic neglect of indigent defense through pre-conviction class action suits seeking prospective relief, like the plaintiff classes in Hurrell-Harring v. State (N.Y. 2010) and Duncan v. State (Mich. 2010). This Comment argues pre-conviction systemic Sixth Amendment claims like those are not properly treated as ineffective assistance of counsel claims subject to Strickland, which would categorically bar them, but rather they present the (justiciable) question of whether a state has enabled Gideon's guarantee at all. When states systemically neglect indigent defense, they prevent public defenders from fulfilling their ethical obligations in individual cases, thereby constructively depriving indigent defendants’ Sixth Amendment right to counsel.

May 28, 2011 | Permalink | Comments (2)

Friday, May 27, 2011

Murphy on Capers on rape

Erin Murphy (Berkeley Law School) has posted this comment on Jotwell about I. Bennett Capers's article, "Real Rape Too," forthcoming on California Law Review. In part:

Whether in the domestic, professional, or sexual sphere, redefining the feminine is itself not enough; we must also redefine the masculine.  With regard to the law of rape, then, Capers’s Real Rape Too is exceedingly welcome, if long overdue.

May 27, 2011 | Permalink | Comments (0)

3d annual Shadow CrimProf Gathering at the Law and Society meeting

At Dan Markel's request, we reprint below a message he recently sent to the CrimProf listserv about next week's program in San Francisco. It looks like a great group of papers:

In anticipation of next week's 3d annual Shadow CrimProf Gathering at the Law and Society meeting in San Fran, I'm both attaching and pasting below the information regarding the ten panels we (Miriam Baer and I) have slated. You'll notice that our panels begin with "Criminal Justice 01, 02, etc"
As I understand it, all ten of our panels will be held in the same room, which is very convenient. Unfortunately, the preliminary program doesn't say what room that is in but once I know what it is next week, I'll share it here and on

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May 27, 2011 | Permalink | Comments (0)

Thursday, May 26, 2011

Opinion dismissing school interview/warrant case as moot

The case is Camreta v. Greene.

May 26, 2011 | Permalink | Comments (0)

Opinion in witness tampering case

The case is Fowler v. United States. Syllabus to follow.

May 26, 2011 | Permalink | Comments (0)

Opinion in Speedy Trial Act case

The case is United States v. Tinklenberg. Syllabus to follow.

May 26, 2011 | Permalink | Comments (0)

Wednesday, May 25, 2011

Roach on the Outcome Gap Between Different Types of Counsel for Indigents

Michael Roach has posted Explaining the Outcome Gap between Different Types of Indigent Defense Counsel: Adverse Selection and Moral Hazard Effects on SSRN. Here is the abstract:

County governments typically provide legal defense services for the indigent through one of two methods: public defenders and assigned counsel. I measure the differences in defendant outcomes between these two types of counsel and examine the extent to which adverse selection and moral hazard contribute to these differences. I find that, across a variety of outcome variables, assigned counsel generate significantly less favorable outcomes for defendants than do public defenders. Using variation in the fee structures through which assigned counsel are paid, I find evidence suggesting that moral hazard can affect the speed with which a case is resolved. I use variation in local attorney wages to measure the degree to which the decision to self-select onto an assigned counsel roster is sensitive to an attorney’s outside option. My results indicate that this selection effect is quite significant and robust to specification, strongly suggesting that adverse selection is of primary importance in explaining the outcome gap between public defenders and assigned counsel.

May 25, 2011 | Permalink | Comments (0)

Loughner ruled incompetent to stand trial

The story is in the New York Times:

TUCSON, Ariz. — A federal judge ruled Wednesday that Jared L. Loughner was not mentally competent to stand trial on charges that he opened fire at a constituent event for an Arizona congresswoman in January, killing six and injuring 13.

. . .

The ruling came after two experts who examined Mr. Loughner at a federal psychiatric facility in Missouri had determined that he was mentally incompetent and that he appeared to suffer from schizophrenia and experienced delusions and irrational thoughts.

May 25, 2011 | Permalink | Comments (0)

Porter on Binding Plea Agreements Post-Booker

Porter wes Wes R. Porter (Golden Gate University School of Law) has posted The Pendulum in Federal Sentencing Can Also Swing Toward Predictability: A Renewed Role for Binding Plea Agreements Post-Booker (William Mitchell Law Review, Vol. 37, p. 469, 2010) on SSRN. Here is the abstract:

Binding plea agreements once served an important function of counterbalancing the vast judicial discretion at sentencing. The federal judiciary enjoyed wide discretion in imposing a sentence; the government and defendant’s freedom to contract for an appropriate sentence mirrored that discretion. The United States Sentencing Guidelines (the Guidelines) effectively replaced, and marginalized the role of, binding plea agreements. Binding plea agreements became a stigmatized novelty in federal criminal practice. The valuable tool has remained underutilized and unavailable to criminal defendants for more than 20 years.

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May 25, 2011 | Permalink | Comments (0)

Tuesday, May 24, 2011

Wechsler on Criminal Enforcement of IP Law

Andrea Wechsler (Max Planck Institute for Intellectual Property and Competition Law) has posted Criminal Enforcement of Intellectual Property Law – An Economic Approach (CRIMINAL ENFORCEMENT OF INTELLECTUAL PROPERTY: A BLESSING OR A CURSE?, Geiger, Christophe, ed., Edward Elgar, 2011) on SSRN. Here is the abstract:

With piracy and counterfeiting constituting an ever-growing international phenomenon that threatens the world social and economic order, criminal sanctions in intellectual property law are fervently debated as to their aptitude to address particular infringement situations. A “beacon of hope” for guidance in this highly contentious law and policy area is the economic approach to law. However, the area of criminal enforcement of IP law is still a closed book and has carelessly been neglected by economic research.

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May 24, 2011 | Permalink | Comments (0)

Wright on Padilla and Integrated Criminal Defense

Wright ron Ronald F. Wright (Wake Forest University - School of Law) has posted Padilla and The Delivery of Integrated Criminal Defense (UCLA Law Review, Vol. 58, 2011) on SSRN. Here is the abstract:

The traditional starting point for the Sixth Amendment jurisprudence is the individual defense attorney, acting alone. Padilla v. Kentucky, however, replaced the image of the lawyer as a heroic and individualistic figure with a focus on the lawyer’s responsibility to consult others and to create an effective defense team. This evolving conception of the lawyer as a team manager is a long-term trend that applies throughout the legal profession. Public defender organizations already experiment with various methods for delivering the best service to clients with potential immigration issues mixed in with their criminal law issues. Some of those methods contracted out the immigration work to specialists outside the organization; others brought the immigration expertise inside the organization, either through placing experts in a single state-level position, or by disseminating immigration experts in local offices. The Padilla holding gives some impetus to the insider strategy. It increases the costs to a defender organization if one of its lawyers fails to recognize a straightforward immigration issue. As a result, Padilla tilts the field towards larger defender organizations with greater specialization of function and more coordination of effort among attorneys - in short, toward a more bureaucratic criminal defense.

May 24, 2011 | Permalink | Comments (0)

Monday, May 23, 2011

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers and opinion below:

  • Kawashima v. Holder: (1) Whether the Ninth Circuit erred in holding that petitioners’ convictions of filing, and aiding and abetting in filing, a false statement on a corporate tax return in violation of 26 U.S.C. §§ 7206(1) and (2) were aggravated felonies involving fraud and deceit under 8 U.S.C. § 1101(a)(43)(M)(i), and petitioners were therefore removable; and (2) whether the Ninth Circuit’s 2010 amendment of its 2007 final judgment concerning petitioner Fusako Kawashima violated Federal Rule of Appellate Procedure 41, where the government did not seek rehearing or other review of that final judgment in 2007.

May 23, 2011 | Permalink | Comments (0)

Opinion in California prison overcrowding case

The case is Brown v. Plata. Here is the syllabus:

California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisons was deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.

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May 23, 2011 | Permalink | Comments (1)

Sunday, May 22, 2011

Terwindt on Allegations of Torture

Carolijn Terwindt has posted Were They Tortured or Did They Make that Up? Ethnographic Reflections on Torture Allegations in the Basque Country in Spain on SSRN. Here is the abstract:

Academic literature about torture has addressed a wide range of questions. An important facet, however, has not yet received sufficient attention. Given that torture tends to occur in secrecy, how does the lack of information (that is perceived to be objective and authoritative) affect the societal response to allegations of torture and the social consequences of such allegations? In this article, the controversy about torture allegations in Spain is used to examine this issue and explore the insidious effects the uncertainty has on society. The Spanish state is unable to provide a generally accepted account in response to the continuous torture allegations from Basque prisoners accused of terrorism or street violence. Based on ethnographic research, this article describes how Spanish and Basque society can be divided into believers, non-believers and people who do not care about torture allegations. Because of the centrality of such allegations in many criminal cases, this division also polarizes public perceptions of the entire criminal justice system.

May 22, 2011 | Permalink | Comments (0)