CrimProf Blog

Baldus et al. on Peremptory Challenges and the Miller-El Line of Cases

David C. Baldus , Catherine M. Grosso , Robert Dunham , George G. Woodworth and Richard Newell (University of Iowa - College of Law , Michigan State University - College of Law , affiliation not provided to SSRN , University of Iowa - Department of Statistics & Actuarial Science and University of Iowa - College of Law) have posted Statistical Proof of Racial Discrimination in the Use of Peremptory Challenges: The Impact and Promise of the Miller-El Line of Cases as Reflected in the Experience of One Philadelphia Capital Case (Iowa Law Review, Vol. 97, 1425) on SSRN. Here is the abstract:

The jurisprudence that has developed in the last twenty-five years under Batson v. Kentucky may be fairly described as indeterminate, unprincipled, and generally ineffective. Scholarly literature points to a variety of reasons for this state of affairs. This Article focuses on one source of the problem — the lack of clarity in the law concerning the evidentiary framework (methodology) needed for a reliable analysis of statistical evidence in Batson cases. United States Supreme Court decisions beginning with Miller-El v. Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v. California (2005), and Snyder v. Louisiana (2008) clarified a number of issues related to the use of statistical evidence and laid the foundation for the development of a more rigorous and principled methodology for use in Batson cases. In that regard, this line of cases may be usefully compared to the Supreme Court’s Title VII decisions in the 1970s, which laid the foundation for the development of an exhaustive body of evidentiary and methodological law that informs the use of statistical evidence in employment cases.

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Frakt on Mandatory Sentences under the UCMJ

David Jason Rankin Frakt (University of Pittsburgh School of Law) has posted When Mandatory Isn’t Required: Mandatory Sentences under the UCMJ on SSRN. Here is the abstract:

Unlike the federal guidelines system, and many state sentencing regimes, the Uniform Code of Military Justice (UCMJ) typically vests unfettered discretion with the sentencing authority, limited only by the statutorily authorized maximum for the offenses of which the accused is convicted. Indeed, “no punishment” is an authorized punishment for virtually every offense under the UCMJ, and the members are advised of this option in the standard jury instructions. There are two exceptions to this general rule of broad sentencing discretion. The UCMJ prescribes a mandatory sentence for one crime, and a mandatory minimum sentence for two other offenses. Specifically, the UCMJ imposes a mandatory death penalty for a conviction of Article 106, Spies, and a mandatory minimum of a life sentence with the possibility of parole for a violation of Article 118, subsection (1) premeditated murder, or subsection (4) felony murder. In this article, I explore how these “mandatory” sentencing terms operate in practice, and consider the various pathways around the statutorily mandated sentences.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	659	Shaken Baby Syndrome, Abusive Head Trauma, and Actual Innocence: Getting It Right  Keith A. Findley, Patrick David Barnes, David A. Moran, Waney Squier,  University of Wisconsin Law School, Stanford University - School of Medicine, University of Michigan at Ann Arbor - The University of Michigan Law School, John Radcliffe Hospital,  Date posted to database: April 30, 2012
2	355	The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem  Lucian E. Dervan, Vanessa Edkins,  Southern Illinois University School of Law, Florida Institute of Technology,  Date posted to database: May 31, 2012
3	282	Predictive Policing: The Future of Reasonable Suspicion  Andrew Guthrie Ferguson,  UDC David A. Clarke School of Law,  Date posted to database: May 2, 2012
4	259	Human Trafficking and Regulating Prostitution  Samuel Lee, Petra Persson,  New York University (NYU) - Leonard N. Stern School of Business, Columbia University,  Date posted to database: May 14, 2012 [5th last week]
5	225	Cartels, Corporate Compliance and What Practitioners Really Think About Enforcement  D. Daniel Sokol,  University of Florida - Levin College of Law,  Date posted to database: June 7, 2012 [6th last week]
6	221	Jewish Law and the Tragedy of Sexual Abuse of Children: The Dilemma within the Orthodox Jewish Community  Steven H. Resnicoff,  DePaul University College of Law,  Date posted to database: June 2, 2012 [4th last week]
7	204	The Nature and Purpose of Evidence Theory Michael S. Pardo,  University of Alabama School of Law,  Date posted to database: May 16, 2012
8	167	The Unexonerated: Factually Innocent Defendants Who Plead Guilty  John H. Blume, Rebecca K. Helm,  Cornell Law School, Unaffiliated Authors -affiliation not provided to SSRN,  Date posted to database: July 11, 2012 [new to top ten]
9	162	The Oral Hearing in Competition Proceedings Before the European Commission  Wouter P. J. Wils, Wouter P. J. Wils,  European Commission, University of London - School of Law,  Date posted to database: May 3, 2012 [8th last week]
10	145	The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion  Robert J. Smith, Robert J. Smith, Justin D. Levinson,  DePaul University College of Law, The Charles Hamilton Houston Institute for Race and Justice , University of Hawaii at Manoa - William S. Richardson School of Law,  Date posted to database: April 25, 2012 [9th last week]

 

Davis & Leo on Acute Suggestibility in Police Interrogation

Deborah Davis and Richard A. Leo (pictured) (University of Nevada, Reno and University of San Francisco - School of Law) have posted Acute Suggestibility in Police Interrogation: Self-Regulation Failure as a Primary Mechanism of Vulnerability (Anne Ridley, ed., Investigative Suggestibility: THEORY, RESEARCH AND APPLICATIONS (John Wiley & Sons, Ltd. 2012)) on SSRN. Here is the abstract:

This chapter examines the failure of police, attorneys, judges, and juries to appreciate the magnitude of acute impairments of will and cognition in interrogation. The authors explore sources of enhanced susceptibility to interrogative influence triggered by the nature of the suspect’s immediate circumstances, rather than by chronic personal characteristics, which they call “acute interrogative suggestibility.” The authors consider the role of “interrogation-related regulatory decline” or IRRD in producing acute interrogative suggestibility -- that is, the decline in self-regulation resources necessary to control thinking and behavior in service of resisting interrogative influence. In particular, the authors concentrate on three common but underappreciated sources of IRRD in police interrogation, one or more of which are present in most cases involving claims of involuntary or false confession: acute emotional distress, fatigue and sleep deprivation, and glucose depletion. The chapter concludes by arguing that much more weight should be given to issues of acute sources of vulnerability to influence and suggestion than is presently the case.

Richman, Stith & Stuntz on Defining Federal Crimes

Daniel C. Richman , Kate Stith and William J. Stuntz (Columbia Law School , Yale University - Law School and Harvard Law School) have posted Defining Federal Crimes - Chapters 2-4 (DEFINING FEDERAL CRIMES, Aspen Publishing, Forthcoming) on SSRN. Here is the abstract:

These are three chapters from a forthcoming Federal Criminal Law casebook that will focus on institutional interactions -- between Congress and the courts; the courts and prosecutors, and among elements within the federal enforcement bureaucracy. Chapter 2 focuses on criminal jurisdiction under the Commerce Clause. Chapter 3 generally considers how separation of powers issues play out in the interpretation of federal criminal statutes. Chapter 4 explores mail and wire fraud.

Minzner on the Criminal Rules Enabling Act

Max Minzner (University of New Mexico School of Law) has posted The Criminal Rules Enabling Act (46 University of Richmond Law Review 1047 (2012)) on SSRN. Here is the abstract:

The Rules Enabling Act authorizes the Supreme Court to prescribe “general rules of practice and procedure” as long as those rules do not “abridge, enlarge or modify” any substantive right. The Supreme Court has frequently considered the effect of these restrictions on the Federal Rules of Civil Procedure. In order to avoid Enabling Act concerns, the Court has imposed limiting constructions on a number of the Civil Rules. A significant academic literature has grown up analyzing and criticizing the Court’s approach in these cases, frequently arguing for more expansive interpretations of the REA that would place more significant constraints on the Civil Rules. The impact of these statutory restrictions on the Rules of Criminal Procedure, though, has been virtually unstudied. Neither the Supreme Court nor academics have focused on the Criminal Rules when interpreting the REA. 

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Blume & Helm on Factually Innocent Defendants Who Plead Guilty

John H. Blume (pictured) and Rebecca K. Helm (Cornell Law School and affiliation not provided to SSRN) have posted The Unexonerated: Factually Innocent Defendants Who Plead Guilty on SSRN. Here is the abstract:

Several recent high profile cases, including the case of the West Memphis Three, have revealed (again), that factually innocent defendants do plead guilty. And, more disturbingly in many of the cases, the defendant’s innocence is known, or at least highly suspected at the time the plea is entered. Innocent defendants plead guilty most often, but not always, in two sets of cases: first, low level offenses where a quick guilty plea provides the key to the cellblock door; and second, cases where defendants have been wrongfully convicted, prevail on appeal, and are then offered a plea bargain which will assure their immediate or imminent release. There are three primary contributing factors leading a criminal justice system where significant numbers of innocent defendants plead guilty to crimes they did not commit. The first is the perceived need that all defendants must plead. The second is the current draconian sentencing regime for criminal offenses. And, the final contributing factor is that plea bargaining is, for the most part, an unregulated industry. This article discusses cases in which innocent defendants plead guilty to obtain their release, thus joining the “unexonerated” and then propose several options the criminal justice system should embrace to avoid, or at least ameliorate the plight of innocent defendants who plead guilty.

Florida Man Foils Armed Robbery with Concealed Weapon (Kolber)

Here's how Boing Boing describes the video clip:

This surveillance video clip shows 71-year-old Samuel Williams thwarting an armed robbery at an internet cafe in Marion, Florida on Friday, July 13, 2012. Williams, a licensed gun owner, may now become the poster child for those who support "concealed carry" rights in the state.

There is also a flurry of comments at Boing Boing about the use of force in this case.

-AJK

Arcila on US v. Jones

Fabio Arcila Jr. (Touro College - Jacob D. Fuchsberg Law Center) has posted GPS Tracking Out of Fourth Amendment Dead Ends: United States v. Jones and the Katz Conundrum (North Carolina Law Review, Vol. 91, No. 1, 2012, Forthcoming) on SSRN. Here is the abstract:

United States v. Jones, which reviewed the constitutionality of warrantless GPS tracking, may be the most important Fourth Amendment opinion since the Supreme Court decided Katz v. United States over four decades ago. Jones was a highly anticipated decision because it was widely understood that the stakes at issue extended well beyond those of the specific parties involved or questions being reviewed. Depending upon how the Court resolved the case, its decision promised to have ramifications for numerous core Fourth Amendment doctrines, and in turn for many governmental activities either currently or potentially subject to the Fourth Amendment, activities as varied as routine criminal law enforcement investigations, technological surveillance for either criminal or civil purposes (through GPS but also other means, such as location tracking capabilities embedded in individuals’ cellular telephones), and national security, to name but a few.

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Duff on Modest Legal Moralism

R. A. Duff (University of Minnesota Law School) has posted Towards a Modest Legal Moralism (Criminal Law and Philosophy, Vol. 8, 2013) on SSRN. Here is the abstract:

After distinguishing different types of Legal Moralism (positive/negative; modest/ ambitious) I defend a modest, positive Legal Moralism: we have good reason to criminalize a type of conduct if and only if it constitutes a public wrong. Some of the central elements of the argument will be: the need to begin not (as many Legal Moralists begin) with the entire realm of moral wrongdoing, but with conduct falling within the public realm of civic life; the significance of the various different processes of criminalization (of which legislation is only one); and the need to attend to the relationship between criminal law and other modes of legal regulation. Criminal law focuses on wrongs: it identifies a set of public wrongs, and provides for those accused of committing such wrongs to be called to formal public account.

"Ariz. Immigration Law Opponents File New Offensive"

A.P. account at the New York Times site:

A coalition of civil rights groups, religious leaders and business organizations filed a new request seeking a court order that would prevent authorities from enforcing a rule that requires police to check the immigration status of people they stop for other reasons.

. . .

In a separate case, the U.S. Justice Department has accused Arpaio's office in a lawsuit of racially profiling Latinos in immigration patrols. The sheriff denies the allegations. That case goes to trial Thursday in federal court.

"UN rights expert urges halt to US executions of mentally disabled individuals"

From Jurist:

UN Special Rapporteur on arbitrary executions Christof Heyns [official website] on Tuesday urged the US not to execute [press release] two individuals with "psychosocial disabilities" who are set to be put to death in Georgia and Texas. Warren Hill was set to be executed Wednesday in Georgia, but after the Georgia State Board of Pardons and Parolesdenied his petition for clemency [JURIST report] Monday, the Georgia Department of Corrections delayed his execution for several days in order to make changes to its lethal injection protocol. . . . Yokamon Laneal Hearn is set to be executed Wednesday in Texas. 

Green & Kugler on Public Views on Criminalizing Insider Trading

Stuart P. Green (pictured) and Matthew B. Kugler (Rutgers, The State University of New Jersey - School of Law-Newark and Lehigh University) have posted When is it Wrong to Trade Stocks on the Basis of Inside Information? Public Views of the Morality of Insider Trading (Fordham Urban Law Journal, Vol. 39, p. 445, 2011) on SSRN. Here is the abstract: 

While the conduct that underlies traditional core offenses like murder and rape is viewed by the public as unambiguously wrong, there is less certainty about the behavior that underlies many newer white collar crimes. A previous study by the same authors examined public views of bribery, perjury, and fraud, and found an often blurry line between what subjects thought should be criminalized and what should not. The current set of studies focused on public perceptions of insider trading. Across three studies, lay participants were found to view the core case of insider trading, in which the trader obtained inside information by breaching a duty of loyalty to an employer or client, as highly blameworthy and worthy of criminalization. But when the same information was obtained by luck, trading was not viewed as blameworthy, despite the arguably unfair information advantage held. In this, lay views were consistent with current law in the U.S.

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Dearinger on Mandatory Release Conditions under the Adam Walsh Act Amendments

Bryan Dearinger has posted The Mandatory Pretrial Release Provision of the Adam Walsh Act Amendments: How 'Mandatory' Is It, and Is It Constitutional? (St. John's Law Review , Vol. 85, No. 4, 2011) on SSRN. Here is the abstract:

Eighty years ago, Justice Brandeis warned us to “be most on our guard to protect liberty when the government’s purposes are beneficent,” as great dangers to liberty often lurk in the “insidious encroachment by men of zeal, well-meaning but without understanding.” Although Congress meant well five years ago, when it enacted the Adam Walsh Act Amendments to the Bail Reform Act of 1984, it failed to understand the consequences of its actions. The Amendments were added without a stated purpose, a single substantive debate or a shred of congressional findings. A particular, undesignated provision of the Amendments requires that every defendant charged with one of an enumerated list of offenses be subject to a prescribed set of pretrial release conditions, even if the district court would find those conditions unwarranted during a bail hearing. This provision, which is unrivaled in American law, strips away any independent judicial evaluation by mandating that every arrestee be treated the same, regardless of the particular circumstances surrounding the arrestee and the charged offense.

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Caldwell on Presenting Mitigating Evidence for Juveniles in Adult Court

Beth Caldwell (Thomas Jefferson School of Law) has posted Appealing to Empathy: Counsel’s Obligation to Present Mitigating Evidence for Juveniles in Adult Court (64 Me. L. Rev. 391) on SSRN. Here is the abstract:

The Supreme Court’s recent decisions in Roper v. Simmons and Graham v. Florida demonstrate that mitigating information about a young person accused of a crime is important to courts. In both Roper and Graham, the Supreme Court considered the tragic life histories of young defendants in conjunction with adolescent development research. In Roper, the Court held that sentencing juvenile offenders to death violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Similarly, the Graham decision found the punishment of life without the possibility of parole unconstitutional for juveniles convicted of nonhomicide offenses. Mitigating information helped to frame the Court’s understanding of the complicated developmental issues impacting juvenile offenders in both of these landmark cases. 

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"Dear SCOTUS, please reverse my opinion"

From Kent Scheidegger at Crime and Consequences, commenting on this California Supreme Court case, "a capital case in which a juror was excused for cause, ultimately found improper under the Witherspoon-Witt rule."

Is this reversibleper se?  The unanimous opinion of the Court by Chief Justice Cantil-Sakauye reluctantly concludes that this result is required by the U.S. Supreme Court's splintered opinion in Gray v. Mississippi, 481 U.S. 648 (1987).

But then the Chief Justice writes a separate petition for certiorari concurring opinion.  It's not terribly unusual in Cal. Supreme for the author of the opinion of the court to write a separate concurrence joined by less than a majority of the court, but this one is joined by a (bare) majority.  She notes Gray's lack of a majority opinion, limiting language in a subsequent case, and dubious policy basis in cases where the defendant ultimately receives a fair trial with an impartial jury.

 

"Woman Tells of Encounters With Killer in Martin Case"

From the New York Times:

MIAMI — An Orlando woman now in her mid-20s told investigators that George Zimmerman, who is charged with second-degree murder in the killing of Trayvon Martin, groped and touched her inappropriately over a decade, beginning when they were both young children, according to an audiotape released on Monday.

. . .

[T]he same witness describes Mr. Zimmerman’s family as routinely disparaging black people.

Mulroy on the 48-Hour Hold

Steven J. Mulroy (University of Memphis - Cecil C. Humphreys School of Law) has posted Hold On: The Remarkably Resilient, Constitutionally Dubious '48-Hour Hold' on SSRN. Here is the abstract:

For decades, various local jurisdictions used (and in some areas, still use) a constitutionally suspect procedure called a "48-hour hold." A suspect is detained for up to 48 hours without charge while an investigation continues; after 48 hours, the suspect is either charged or released. The practice continues despite occasional criticism by courts, the bar, and the press. In many cases, this practice unconstitutionally detains persons without probable cause. Even where probable cause exists, the practice improperly circumvents rights to get bail, to get a prompt bail determination, and to be free of interrogation without the presence of counsel. While similar procedures may occur in other countries, it is contrary to American principles of criminal justice. Understanding why may also help in current debates over the proposed use of "investigative holds" of terrorism suspects.

Kamin on Sexting

Correy Kamin has posted Unsafe Sexting: The Dangerous New Trend and the Need for Comprehensive Legal Reform (Ohio State Journal of Criminal Law, Vol. 9, No. 1, 2011) on SSRN. Here is the abstract:

Teenage "sexting"-- the practice of taking nude or semi-nude photographs and distributing them via cell phone text messages -- has been in and out of the media spotlight for several years. While the media often rightly focuses on these incidents from a bullying standpoint, most people are not fully aware of the potentially devastating legal consequences that could stem from these instances of so-called juvenile naivete. Federal and state child pornography laws make it illegal to create, possess, or distribute explicit images of a minor and, while these laws were enacted to protect children from adult predators, there is nothing in the language of most current legislation that prohibits the prosecution of minors -- even those who willingly take and send pictures of themselves. This article attempts to delve deeper into the sexting trend, exploring its psychological motivations and implications, as well as the legal consequences that may stem from pressing "send." Finally, the article proposes a more appropriate way to address sexting -- a combination between criminal sanctions and preventative education -- and suggests redrawing the line that would trigger legal action.

McCannon on Elected Prosecutors

Bryan C. McCannon (Saint Bonaventure University) has posted Prosecutor Elections, Mistakes, and Appeals on SSRN. Here is the abstract:

Public prosecutors exercise a significant amount of discretion in the criminal justice system. In the U.S. the dominant form of accountability is that prosecutors must be re-elected by the voters. Recent empirical work illustrates that election concerns open up the potential for distortion in the decisionmaking of prosecutors. Specifically, it has been shown that prosecutors take more cases to trial and plea bargain less when running for re-election. This effect is magnified when the incumbent is challenged. Does this hawkish behavior of prosecutors lead to inaccuracies in the criminal justice system? A panel data set of appellate decisions in western New York is analyzed. It is shown that if the initial felony conviction takes place in the six months prior to a re-election and is appealed, then the probability the appellate court upholds the lower court’s decision decreases by 5.1-7.1 percentage points. Thus, the popular election of prosecutors results in inaccurate sentences and wrongful convictions.