CrimProf Blog

Cain on Presumed Guilt

Terrence Cain (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Presumed Guilty on SSRN. Here is the abstract:

It would probably surprise the average American that prosecutors need only prove guilt beyond a reasonable doubt sometimes. Although the Due Process Clauses of the Constitution require that the government prove each element of an alleged criminal offense beyond a reasonable doubt, the use of statutory presumptions has relieved the government of this responsibility, and in some cases, has even shifted the burden to the defendant to disprove the presumption. Likewise, the Sixth Amendment grants a criminal defendant the right to have the jury and the jury alone determine whether the government has met its burden and ultimately whether the person is guilty or not. By legislative fiat, statutory presumptions have taken the place of proof, and as a consequence, usurped the jury’s role as the ultimate authority on whether the prosecution has satisfied its burden of proof. These presumptions violate the constitutional guarantees of the right to have the government prove each element of an offense beyond a reasonable doubt and the right to have a jury find all facts necessary to convict. The Supreme Court has heard this argument before and rejected it. It has not, however, reconsidered it in the aftermath of its decisions in Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker. These cases breathed much needed new life into the Sixth Amendment jury trial guarantee, and in the process put an end to a two decade legislative encroachment on the jury’s historic function as the sole arbiter of whether the government has proved all the essential facts necessary to convict a person of a crime. Apprendi, Blakely, and Booker cast doubt on the validity of statutory presumptions in criminal cases. This article will explain why that is so.

Mungan on Escalating Punishment Schemes

Murat C. Mungan (Florida State University - College of Law) has posted A Behavioral Justification for Escalating Punishment Schemes on SSRN. Here is the abstract:

The standard two-period law enforcement model is considered in a setting where individuals rarely lose self-control or commit crime without first comparing expected costs and benefits. Where escalating punishment schemes are present, there is an inherent value in keeping a clean criminal record; a person with a record may unintentionally become a repeat offender if he fails to exert self-control, and be punished more severely. If the punishment for repeat offenders is sufficiently high, one may rationally forgo the opportunity of committing a profitable crime today to avoid being sanctioned as a repeat offender in the future. Therefore, partial deterrence can be achieved at a very low cost through the use of escalating penalties, providing a behavioral justification for punishing repeat offenders more severely.

Henderson on ABA Standards on Law Enforcement Access to Third Party Records

Stephen E. Henderson (University of Oklahoma College of Law) has posted American Bar Association Criminal Justice Standards on Law Enforcement Access to Third Party Records on SSRN. Here is the abstract:

Drafted over the past six years and adopted by the American Bar Association (ABA) House of Delegates in February, 2012, these Criminal Justice Standards on Law Enforcement Access to Third Party Records provide much needed guidance to legislatures, courts, and administrative agencies having to decide how to regulate law enforcement access to existing records in the hands of third parties. It is the first framework of its kind, and it can do much to improve the current system of ad hoc protections in both state and federal systems. Decision makers are struggling to determine when law enforcement access to medical records, cell site location information, and myriad other information should be permissible, and these Standards provide a framework via which they can bring greater consistency to existing law, and, where necessary, frame new law that accounts for changing technologies and social norms, the needs of law enforcement, and the interests of privacy, freedom of expression, and social participation.

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"Can Magistrate Judges Deny Statutory Surveillance Orders Based on Prospective Fourth Amendment Concerns?"

From Orin Kerr at The Volokh Conspiracy:

This is a first in a series of posts on the issues I raised in an amicus brief I filed in the case. In my view, the Fifth Circuit must reverse because the Fourth Amendment issues in the case are not ripe and cannot be reached at this stage. There are no facts yet, so the courts can’t yet adjudicate the law. And magistrate judges cannot get around the absence of facts by just relabeling predictions of what might happen as “facts.” Rather, judicial rulings on Fourth Amendment questions have to follow the usual requirements of ripeness: There needs to be a real factual record formed in an adversarial setting on which courts can apply the very fact-specific principles of Fourth Amendment law.

"No Charges Filed on Harsh Tactics Used by the C.I.A."

From the New York Times:

Attorney General Eric H. Holder Jr. announced Thursday that no one would be prosecuted for the deaths of a prisoner in Afghanistan in 2002 and another in Iraq in 2003, eliminating the last possibility that any criminal charges will be brought as a result of the brutal interrogations carried out by the C.I.A.

. . .

The Justice Department did not say publicly which cases had been under investigation. But officials had previously confirmed the identities of the prisoners: Gul Rahman, suspected of being a militant, who died in 2002 after being shackled to a concrete wall in near-freezing temperatures at a secret C.I.A. prison in Afghanistan known as the Salt Pit; and Manadel al-Jamadi, who died in C.I.A. custody in 2003 at Abu Ghraib prison in Iraq, where his corpse was photographed packed in ice and wrapped in plastic.

"Missouri cell phone tracking law challenged"

Jurist has this story:

A Missouri law [HB 1108 materials] allowing police to track individuals' cell phones in emergencies was challenged in a federal lawsuit Monday claiming that the state law conflicts with federal law. The complaint [text, PDF], filed on behalf of a Bolivar resident, asserts that the Missouri law should be struck down under the supremacy clause of the US Constitution as it clashes with federal law. The Missouri lawrequires phone companies to help law enforcement agencies [AP report] in tracing cell phone signals of 911 callers or tracking a phone's location in emergency situations. The lawsuit seeks a restraining order or injunction prohibiting enforcement of the law.

Klick, MacDonald & Stratmann on Mobile Phones and Deterrence

Jonathan Klick (pictured), John MacDonald and Thomas Stratmann (University of Pennsylvania Law School , University of Pennsylvania and George Mason University - Buchanan Center Political Economy) have posted Mobile Phones and Crime Deterrence: An Underappreciated Link (Research Handbook on the Economics of Criminal Law, ed.: Alon Harel and Keith N. Hylton, August, 2012) on SSRN. Here is the abstract:

Between 1991 and 2001, crime rates dropped by about a third across all crime categories. We suggest that the introduction and growth of mobile phone technology may have contributed to the crime decline in the 1990s, specifically in the areas of rape and assault. Given that mobile phones increase surveillance and the risks of apprehension when committing crimes against strangers, an expansion of this technology would increase the costs of crime as perceived by forward-looking criminals. We use the available mobile phone data to show that there is a strongly negative association between mobile phones and violent crimes, although data limitations preclude us from being able to make any claims about causality. We show how the intuition about mobile phones providing crime deterrence fits in well with modern discussions in the crime literature regarding optimal policy and the expanding use of private security precautions in crime prevention.

Tumminello et al. on Criminal Specialization

Michele Tumminello , Christofer Edling , Fredrik Liljeros , Rosario N. Mantegna and Jerzy Sarnecki (Carnegie Mellon University - Department of Social and Decision Sciences , affiliation not provided to SSRN , Stockholm University - Department of Sociology , University of Palermo - Department of Physics and affiliation not provided to SSRN) have posted The Phenomenology of Specialization of Criminal Suspects on SSRN. Here is the abstract:

A criminal career can be either general, with the criminal commiting different types of crime, or specialized, with the criminal commiting a specific type of crime. A central problem in the study of crime specialization is to determine, from the perspective of the criminal, which crimes should be considered similar and which crimes should be considered distinct. We study a large set of Swedish suspects to empirically investigate generalist and specialist behavior in crime. We show that there is a large group of suspects who can be described as generalists. At the same time, we observe a non-trivial pattern of specialization across age and gender of suspects. Women are less prone to commit crimes of certain types, and, for instance, are more prone to specialize in crimes related to fraud. We also find evidence of temporal specialization of suspects. Older persons are more specialized than younger ones, and some crime types are preferentially committed by suspects of different ages.

Blinka on Character and Evidence Law

Daniel David Blinka (Marquette University Law School) has posted Character and the Protean Culture of Evidence Law on SSRN. Here is the abstract:

Although "character" is a core concept in evidence law, its meaning is unsettled and contentious. Character is often left undefined or generalized as a species of propensity evidence. Some vigorously debate whether it has a "moral" or "ethical" component. A recurring chord frames character as a psychological construct, criticizing current law for relying on "bad" science (trait theory) and hoping that neuroscience and psychology (interactionism?) will remedy the defect. Doctrinal disputes about character's meaning reveal telling fissures in evidence law that reflect a broader dissonance in contemporary society, particularly the fraying of liberalism and middle-class values since the 1960s and the culture wars that followed. 

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Anderson on Privacy as Intimacy

Heidi Reamer Anderson (Florida Coastal School of Law) has posted Plotting Privacy as Intimacy on SSRN. Here is the abstract:

This article introduces a two-dimensional Venn diagram on which to plot and evaluate a subset of privacy law decisions. In each plotted case, the general question was whether a person’s action should be afforded legal protection as private. How the court answered that question can be explained by examining whether the specific facts of the case fall within or outside two circles of intimacy. One circle represents the intimacy of the space in which the action occurs. This spatial intimacy is based primarily on the proximity of the identified space to a secluded area of the home. Within the other circle is bodily intimacy, which depends largely on the physically intimate nature of the act itself, i.e., how closely connected the act is to one’s own sexual or otherwise intimate body parts. When the facts of a single case are contained within the overlap of both circles of intimacy, legal privacy protection should be at its highest level.

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"Posner on “Staleness” of Digital Evidence"

Orin Kerr has this post at The Volokh Conspiracy, excerpting this Posner opinion suggesting that the ability to recover deleted files makes digital evidence particularly resistant to stale warrant challenges.

Strader on Skilling Reconsidered

Kelly Strader (Southwestern Law School) has posted  
Skilling Reconsidered: The Legislative-Judicial Dynamic, Honest Services Fraud, and the Ill-Conceived 'Clean Up Government Act' (Fordham Urban Law Journal, Vol. 39, No. 2, 2011) on SSRN. Here is the abstract:

In United States v. Skilling, the United States Supreme Court narrowed the reach of the federal honest services fraud statute in order to avoid holding the statute unconstitutionally vague. The decision subjected the Court to substantial criticism, both from those who believe that the Court improperly engaged in legislation and those who believe that the Court should have deferred to Congress and left the statute in place. This article provides a soft defense of the Skilling decision, and a critique of Congress's proposed response to the decision. The article argues that the honest services statute indeed created a vague crime that failed to provide fair notice to potential defendants or to cabin prosecutors' discretion. But, in light of Congress's complicity in creating the overcriminalization and overfederalization crises, the Court probably took the best (or least bad) route in attempting to provide rational boundaries for honest services prosecutions. Finally, the article analyzes proposed legislation designed to overturn Skilling, concluding that the legislation would do nothing to solve the vagueness challenge that Skilling addressed. 

Lacey on the Resurgence of Character

Nicola Lacey (University of Oxford - Faculty of Law) has posted The Resurgence of Character: Criminal Responsibility in the Context of Criminalisation (In A Duff & S Green (eds), Philosophical Foundations of Criminal Law (OUP 2011) 151-178) on SSRN. Here is the abstract:

This paper argues that the standard account of contemporary criminal responsibility as founded in engaged agentic capacities may be in need of revision in at least two respects. First, there is reason to doubt whether assumptions about responsibility as founded in bad character have ever been evacuated from criminal law doctrine in its path towards the refinement of a notion of individual capacity-responsibility. Second, there is particular reason to think that assumptions about character are enjoying a revival in contemporary English (and American) criminal responsibility-attribution in phenomena such as mandatory sentencing laws applying to particular categories of ‘dangerous’ offender; in phenomena such as sex offender notification requirements; in the substantive law, particularly that dealing with terrorism; and in the operation of evidential presumptions, detention rules and the renewed admissibility of evidence of bad character. The paper offers a differentiated conceptual framework for identifying and analysing the waxing and waning influence of ‘character’ in criminal law. Second, drawing on this model, it demonstrates the variety of ways in which contemporary criminal law is marked by a resurgence of ‘character’, paying particular attention to the ways in which this resurgence both resembles and differs from the reliance on ‘character’ typical of pre-modern or 18th Century criminal justice. Third, it sketches an explanation of why we have seen a resurgence of interest in and reliance on ideas of character responsibility. And finally, it draws some conclusions from this analysis for methodology in criminal law theory, and in particular for the appropriateness of a framework which typically distinguishes between issues going to substance and those going to procedure; between issues of doctrinal structure and those of substantive scope; and between questions of responsibility and questions of criminalisation and punishment more generally. 

Gray & Citron on a Technology-Centered Approach to Quantitative Privacy

David C. Gray (pictured) and Danielle Keats Citron (University of Maryland-Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted A Technology-Centered Approach to Quantitative Privacy on SSRN. Here is the abstract:

We are at the cusp of a historic shift in our conceptions of the Fourth Amendment driven by dramatic advances in technologies that continuously track and aggregate information about our daily activities. The Fourth Amendment tipping point was marked this term by United States v. Jones. There, law enforcement officers used a GPS device attached to Jones’s car to follow his movements for four weeks. Although Jones was resolved on narrow grounds, five justices signed concurring opinions defending a revolutionary proposition: that citizens have Fourth Amendment interests in substantial quantities of information about their public or shared activities, even if they lack a reasonable expectation of privacy in each of the constitutive particulars. This quantitative approach to the Fourth Amendment has since been the focus of considerable debate. Among the most compelling challenges are identifying its Fourth Amendment pedigree, describing a workable test for deciding how much information is enough to trigger Fourth Amendment interests, and explaining the doctrinal consequences. This Article takes up these challenges.

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"Critical Approaches to Int’l Criminal Law — Liverpool, England"

Details on this conference are available at Legal Scholarship Blog.

"Federal judge approves DOJ settlement over Seattle police department"

From Jurist:

A judge for the US District Court for the Western District of Washington[official website] on Friday tentatively approved a settlement agreement between the US Department of Justice (DOJ) and the City of Seattle relating to a DOJ investigation of the Seattle Police Department (SPD) [official websites]. Judge James Robart gave provisional approval for the agreement [joint motion, PDF], which will implement a package of reforms that overhauls police rules, especially on the use of force, and installs an independent monitor to oversee the department and make regular reports to the court and public.

Henning on Criminalizing Normal Adolescent Behavior in Communities of Color

Kristin N. Henning (Georgetown University Law Center) has posted Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform (Cornell Law Review, Forthcoming) on SSRN. Here is the abstract:

There is little dispute that racial disparities pervade the contemporary American juvenile justice system. The persistent overrepresentation of youth of color in the system suggests that scientifically supported notions of diminished culpability of youth are not applied consistently across races. Drawing from recent studies on implicit bias and the impact of race on perceptions of adolescent culpability, Professor Henning contends that contemporary narratives portraying black and Hispanic youth as dangerous and irredeemable lead prosecutors to disproportionately reject youth as a mitigating factor for their behavior. Although racial disparities begin at arrest and persist through every stage of the juvenile justice process, this Article focuses specifically on the unique opportunity and obligation that prosecutors have to address those disparities at the charging phase of the juvenile case. 

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Simcock on Fourth Amendment Protections for Arrestees

Julian Simcock has posted Florence, Atwater & The Erosion of Fourth Amendment Protections for Arrestees (Stanford Law Review, Forthcoming) on SSRN. Here is the abstract:

If there is an animating imperative behind the Supreme Court’s 1979 decision in Bell v. Wolfish, it is this: when confronted with a question regarding strip searching arrestees, courts must seek a careful balance. The Fourth Amendment, the Court held, “requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Decades later, the Supreme Court appears to have deviated from Bell’s moorings. In Florence v. Chosen Board of Freeholders, the Court examined the constitutionality of blanket search policies, which require that all arrestees be strip searched regardless of individualized suspicion or the nature of the offense. In a 5-4 ruling, the Court upheld such searches as constitutional. For the first time, the Court ruled that prisons seeking to implement strip search policies were free to dispense with any level of reasonable suspicion or tailored justification. I argue in the following analysis that Florence constitutes an unnecessary erosion of Fourth Amendment protections for arrestees. In addition, the most unsettling issues posed by Florence — those which hint at the potential for future abuse — remain unresolved.

Morrison on Criminal Justice Responses to the Economic Crisis

( Caren Myers Morrison Georgia State University - College of Law) has posted Foreword: Criminal Justice Responses to the Economic Crisis (Georgia State University Law Review, Vol. 28, No. 4, 2012) on SSRN. Here is the abstract:

The epidemic rate of incarceration in the United States, long documented, has come at significant financial and social cost. But the global financial crisis has forced legislators and government officials to face issues that they had previously been able to ignore: whether incarceration is the best use of resources to deal with non-violent offenders, whether former inmates should be sent back to prison for violations of conditions of their post-conviction release, rather than for new criminal activity, whether sentences should be so long that the prison population becomes increasingly geriatric. At the same time, taxpayers are beginning to realize that they are not always getting a decent return on their corrections dollar. Crime, and the fear of it, is no longer dominating the domestic agenda. And fiscal conservatives are edging out “tough on crime” rhetoric with proposals to be “smart on crime.” 

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Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	349	Preventing Sex-Offender Recidivism Through Therapeutic Jurisprudence Approaches and Specialized Community Integration  Heather Cucolo, Michael L. Perlin,  New York Law School, New York Law School,  Date posted to database: July 26, 2012 [2nd last week]
2	305	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 [4th last week]
3	304	Jay-Z’s 99 Problems, Verse 2: The Canadian Response to Professor Mason  Emir Crowne,  University of Windsor - Faculty of Law, Date posted to database: July 13, 2012
4	162	Reconceptualizing the Burden of Proof  Edward K. Cheng,  Vanderbilt Law School,  Date posted to database: June 19, 2012 [6th last week]
5	157	Looking Across the Empathic Divide: Racialized Decision Making on the Capital Jury  Mona Lynch, Craig Haney,  University of California, Irvine - Department of Criminology, Law and Society, University of California, Santa Cruz - Department of Psychology,  Date posted to database: June 26, 2012 [7th last week]
6	151	Does Corruption Pay in Indonesia? If so, Who are Benefited the Most?  Rimawan Pradiptyo,  Universitas Gadjah Mada,  Date posted to database: July 16, 2012 [8th last week]
7	145	Ontario Disempowers Prostituted Persons: Assessing Evidence, Arguments, & Substantive Equality in Bedford v. Canada  Max Waltman,  Stockholm University - Department of Political Science,  Date posted to database: June 25, 2012 [9th last week]
8	138	Who's Guarding the Henhouse? How the American Prosecutor Came to Devour Those He is Sworn to Protect  Jonathan Rapping,  Atlanta's John Marshall Law School,  Date posted to database: June 11, 2012 [10th last week]
9	134	The International Commission of Inquiry on Libya: A Critical Analysis  Kevin Jon Heller,  Melbourne Law School,  Date posted to database: August 5, 2012 [new to top ten]
10	121	Exonerations in the United States, 1989–2012  Samuel R. Gross, Michael Shaffer,  University of Michigan Law School, University of Michigan Law School,  Date posted to database: June 26, 2012 [new to top ten]