CrimProf Blog

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

Saturday, March 17, 2012

Next week's criminal law/procedure arguments

Issue summaries from ScotusBlog, which also links to papers:


  • Southern Union Company v. U.S.: Whether the Fifth and Sixth Amendment principles that this Court established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, apply to the imposition of criminal fines.


  • Miller v. Alabama: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.
  • Jackson v. Hobbs: Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.


  • Reichle v. Howards: (1) Whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim; and (2) whether the court below erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent's arrest, the arrest comported with the Fourth Amendment, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.
  • Vasquez v. U.S.: Whether the Seventh Circuit violated this Court's precedent on harmless error when it focused its harmless error analysis solely on the weight of the untainted evidence without considering the potential effect of the error (the erroneous admission of trial counsel's statements that his client would lose the case and should plead guilty for their truth) on this jury; and (2) whether the Seventh Circuit violated Mr. Vasquez's Sixth Amendment right to a jury trial by determining that Mr. Vasquez should have been convicted without considering the effects of the district court's error on the jury that heard the case.

March 17, 2012 | Permalink | Comments (0)

Thursday, March 15, 2012

Tepfer & Nirider on Adjudicated Juveniles and Post-Conviction Litigation

Tepfer joshuaJoshua A. Tepfer (pictured) and Laura H. Nirider (Northwestern University - School of Law and Northwestern University - School of Law) have posted Adjudicated Juveniles and Post-Conviction Litigation (Maine Law Review, Spring 2012) on SSRN. Here is the abstract:

Post-conviction relief is a vital part of the American justice system. By filing post-conviction petitions after the close of direct appeal, defendants can raise claims based on evidence outside the record that was not known or available at the time of trial. One common use of post-conviction relief is to file a claim related to a previously unknown constitutional violation that occurred at trial, such as ineffective assistance of counsel. If a defendant’s trial attorney performed ineffectively by failing to call, for instance, an alibi witness, then that omission is unlikely to be reflected in the trial record – but in post-conviction proceedings, the defendant may seek to expand the record to include evidence of such ineffectiveness.

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March 15, 2012 | Permalink | Comments (1)

Issacs on Baseline Framing in Sentencing

Daniel M. Isaacs has posted Baseline Framing in Sentencing (Yale Law Journal, Vol. 121, p. 426, 2011) on SSRN. Here is the abstract:

When judges sentence criminal offenders, they begin their analysis with a baseline sentence established by statutes or guidelines. Cognitive biases will likely cause this initial baseline to frame judges’ thought processes, such that judges will impose different sentences in identical cases depending on the baseline sentence from which the judge’s analysis begins. This Note shows that baseline framing will lead to disproportionately low sentences in a floor baseline regime, disproportionately high sentences in a ceiling baseline regime, and sentences disproportionately clustered around the typical sentence in a typical crime baseline regime.

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March 15, 2012 | Permalink | Comments (0)

Noll on Race, Gangs, and Violence in California Prisons

Dale Noll has posted Building a New Identity: Race, Gangs, and Violence in California Prisons on SSRN. Here is the abstract:

The California Prison system is notorious for its highly racialized environment. A history of numerous instances of prison violence - labeled as 'race riots' - paints a picture of a system where inmates of different races require segregation to prevent brutal beatings, murders, and rapes. For example, following an incident deemed a 'race riot' at the California Correctional Training Facility, North prison, prison officials locked 300 inmates in isolation until inmates complained that their Eighth Amendment and Due Process rights were violated. In 2000, the Pelican Bay State Prison locked down a portion of the prison following a riot, presumed to be racially motivated, involving 300 inmates. In August, 2009, 1,175 inmates were involved in a riot that officials deemed 'stemmed from racial tensions,' in which 249 inmates were injured and seven dorm units, holding 1,300 beds, were destroyed at the California Institution for Men in Chino, California. The media and prison officials point to events similar to these as evidence that California prisons are racially charged.

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March 15, 2012 | Permalink | Comments (0)

Nakao & Tsumagari on Discretionary vs. Mandatory Prosecution

Keisuke Nakao and Masatoshi Tsumagari (University of Hawaii at Hilo and affiliation not provided to SSRN) have posted Discretionary vs. Mandatory Prosecution: A Game-Theoretic Approach to Comparative Criminal Procedure on SSRN. Here is the abstract:

Using a game-theoretic model of criminal procedure, we investigate relative merits and demerits between discretionary and mandatory prosecution. The game illustrates a prosecutor's dilemma associated with his two tasks: evidence production and case screening. Discretionary prosecution makes use of incriminating evidence to dispose of weak cases, but it may suffer the moral-hazard problem in evidence production more seriously than mandatory prosecution. Our welfare analyses suggest that mandatory prosecution outperforms discretionary prosecution when evidence transmission from the prosecutor to the judge is accurate and/or when the cost of litigation incurred by the prosecutor is large.

March 15, 2012 | Permalink | Comments (0)

Wednesday, March 14, 2012

Cooper on Post-Racialism and Searches Incident to Arrest

Cooper frank rudyFrank Rudy Cooper (Suffolk University Law School) has posted Post-Racialism and Searches Incident to Arrest (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

For 28 years the Court held that an officer’s search incident to arrest powers automatically extended to the entire passenger compartment of a vehicle. In 2009, however, the Arizona v. Gant decision held that officers do not get to search a vehicle incident to arrest unless they satisfy (1) the Chimel v. California Court’s requirement that the suspect has access to weapons or evanescent evidence therein or (2) the United States v. Rabinowitz Court’s requirement that the officer reasonably believe evidence of the crime of arrest will be found therein. While many scholars read Gant as a triumph for civil liberties, I see it as a failure to fully address racial profiling.

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March 14, 2012 | Permalink | Comments (0)

Levine & Wright on Prosecutors, Office Structure, and Professional Identity

Wright ronKay L. Levine and Ronald F. Wright (pictured)(Emory University School of Law and Wake Forest University - School of Law) have posted Prosecution in 3-D on SSRN. Here is the abstract:

Despite the multi-dimensional nature of the prosecutor’s work, legal scholars tend to offer a comparatively flat portrait of the profession, providing insight into two dimensions that shape the prosecutor’s performance. Accounts in the first dimension look outward toward external institutions that bear on prosecutor case handling decisions, such as judicial review or the legislative codes that define crimes and punishments. Sketches in the second dimension encourage us to look inward, toward the prosecutor’s individual conscience.

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March 14, 2012 | Permalink | Comments (0)

Tuesday, March 13, 2012

Christopher & Christopher on the Paradox of Statutory Rape

Russell Christopher and Kathryn Hope Christopher (University of Tulsa College of Law and affiliation not provided to SSRN) have posted The Paradox of Statutory Rape (Indiana Law Journal, Vol. 87, No. 2, p. 505, 2012) on SSRN. Here is the abstract:

What once protected only virginal girls under the age of ten now also protects sexually aggressive males under the age of eighteen. While thirteenth-century statutory rape law had little reason to address the unthinkable possibility of chaste nine-year-old girls raping adult men, twenty-first-century statutory rape law has failed to address the modern reality of distinctly unchaste seventeen-year-old males raping adult women. Despite dramatically expanding statutory rape's protected class, the minimalist thirteenth-century conception of the offense remains largely unchanged -- intercourse with a juvenile. Overlooked is the new effect of this centuries-old offense -- a sexually aggressive seventeen-year-old raping an adult now exposes the adult rape victim to statutory rape liability. By being raped, the adult rape victim satisfies the minimal elements of the offense, lacks any defenses, and thereby commits statutory rape of her juvenile rapist. Therefore, the offense of statutory rape criminalizes being raped; that is, it criminalizes being the victim of rape. Paradoxically, while the offense of rape prohibits committing rape, the offense of statutory rape prohibits being raped. What the law of rape seeks to protect us from -- being raped -- the law of statutory rape punishes us for.

March 13, 2012 | Permalink | Comments (1)

Duane on Invoking the Right to Remain Silent

DuaneJames J. Duane (Regent University - School of Law) has posted The Right to Remain Silent: A New Answer to an Old Question (Criminal Justice, Vol. 25, No. 2, 2010) on SSRN. Here is the abstract:

When a witness is summoned to testify before a grand jury or at a judicial or legislative proceeding, the lawyer for the witness frequently concludes that it may be in the client's best interest to assert the Fifth Amendment "right to remain silent," at least with respect to certain topics. The lawyer will often give the witness a card to read aloud when asserting that privilege. But precisely what words should the lawyer advise the client to read when invoking the Fifth Amendment privilege?

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March 13, 2012 | Permalink | Comments (0)

McCannon on Baad

Bryan C. McCannon (Saint Bonaventure University) has posted A Game-Theoretic Analysis of Baad on SSRN. Here is the abstract:

The institution known as baad is an mechanism used typically in criminal justice systems of Pashtun societies. In baad the family of a harmed individual abducts a young girl from the family of the one who caused the harm. The abducted girls are typically treated very poorly and held against their will. Consequently, outrage over this cultural institution has arisen. I use the tools of game theory to assess the hypothesis that such an institution exists only because men in the society place a low value on women. The model shows, though, that baad arises only when, from the perspective of heads of households, women have intermediate values. If they are valued too highly, the threat deters all activity and baad abductions never occur. If they are valued too low, the abduction is found insufficient by the aggrieved and alternative punishment are sought. The model is able to identify the factors that contribute to the prevalence of the institution as well.

March 13, 2012 | Permalink | Comments (0)

Goldby on Money Laundering and English Law

Miriam A. Goldby has posted Anti-Money Laundering Reporting Requirements Imposed by English Law: Measuring Effectiveness and Gauging the Need for Reform (Journal of Business Law, Forthcoming) on SSRN. Here is the abstract:

The past decade has seen a flurry of legislative activity in the area of money laundering control that has resulted in ever-greater and more costly regulatory burdens being imposed on certain sectors, most notably banks and financial services providers. This article focuses on reporting requirements under which private entities must make disclosures on the activities of their clients, when such activities are suspicious. Its overall aim is to attempt to gain some insight into whether the provisions of English law that impose reporting requirements on private entities, in particular banks, are achieving the aims behind the legislation efficiently and effectively or whether there is evidence that these aims could be achieved better through a reconsideration of the law. The article examines the nature of the requirements, the justifications put forward for imposing them, the problems of measuring effectiveness against these justifications, and the difficulties of establishing a risk-based approach to enforcing the requirements. It finds that though there are clear indications that the current regime may be effective against certain types of predicate offences such as tax evasion, there is insufficient evidence to establish its effectiveness against organized crime, and argues that certain currently unavailable data needs to be collected and analyzed in order better to be able to gauge effectiveness and determine how the regime could be improved to this end. It makes suggestions as to how such data may be collected. The article concludes by indicating possible steps that could be taken towards making the regime more effective.

March 13, 2012 | Permalink | Comments (0)

Monday, March 12, 2012

Dripps on Contextual Change, Legal Dynamism, and Interpreting the Fourth Amendment

DrippsDonald A. Dripps (University of San Diego School of Law) has posted Responding to the Challenges of Contextual Change and Legal Dynamism in Interpreting the Fourth Amendment
(Mississippi Law Journal, Vol. 81, No. 3, p. 133, 2011) on SSRN. Here is the abstract:

Granting for purposes of argument the general theoretical case for interpreting constitutional text according to some version of the original understanding, this contribution to the University of Mississippi's 2011 Fourth Amendment symposium argues that consulting founding-era practices at the particular level is not a faithful approach to the original understanding. I develop two lines of objection to specific-practices originalism (SPO). I call one the contextual critique and the second the dynamism critique.

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March 12, 2012 | Permalink | Comments (0)

Armstrong on Short Prison Sentences

Sarah Armstrong (Glasgow University) has posted Persistent Punishment: User Views of Short Prison Sentences on SSRN. Here is the abstract:

Semi-structured interviews were conducted of 22 prisoners to gather information about the characteristic features of short prison sentences. Themes raised in comments included: the frequency and quality of sentences, addiction, family, and penal legitimacy. Most of the participants had extensive experience of prison, and the effects of this played out across sentences and years, accumulating and amplifying impacts. And, despite expressions of guilt and remorse, most participants saw their sentence as unjust, and mainly a reaction to offending history. We conclude by suggesting the need for research to shift focus from evaluating individual penal interventions towards more holistic and narrative accounts that cut across sentences.

March 12, 2012 | Permalink | Comments (0)

Wright on Free Will and Criminal Law

Wright r georgeR. George Wright (Indiana University Robert H. McKinney School of Law) has posted Criminal Law and Sentencing: What Goes with Free Will? on SSRN. Here is the abstract:

This Article notes that increasing numbers of scholars have argued that if we were to minimize our collective belief in the possibility of genuine free will and moral responsibility, we would as a result likely see a more humane, compassionate, enlightened, and generally progressive criminal justice and sentencing system.

As it turns out, though, we must instead conclude that such optimism does not seem warranted.

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March 12, 2012 | Permalink | Comments (0)

Bowers on The Normative Case for Normative Grand Juries

Josh Bowers- univ of virgina

Josh Bowers (University of Virginia School of Law) has posted The Normative Case for Normative Grand Juries (Wake Forest Law Review, 2012) on SSRN.  Here is the abstract: 

The contemporary criminal justice system disposes of order-maintenance cases without much of any substantive litigation or public influence or oversight. Rather, these prosecutions are typically products of professional decision-making and are resolved by summary guilty pleas. This is no new insight. Indeed, a number of scholars have offered a range of reforms to address the perceived problems of assembly-line criminal justice. Inordinately, however, these adjudicative reforms tend to focus on the wrong question - the question of legal guilt. Instead, the issue with many order-maintenance prosecutions is not that the charges lack legal merit, but that the charges are equitably unfounded. Thus, the more appropriate focus of reform efforts is on the nontransparent discretionary charging decision.

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March 12, 2012 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

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

Rank Downloads Paper Title
1 1061 Law Deans in Jail
Morgan Cloud, George B. Shepherd,
Emory University School of Law, Emory University School of Law,
Date posted to database: January 25, 2012
2 466 Racial Disparity in Federal Criminal Charging and Its Sentencing Consequences
M. Marit Rehavi, Sonja B. Starr,
University of British Columbia, University of Michigan Law School,
Date posted to database: January 16, 2012
3 419 The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France
Brett Danaher, Michael D. Smith, Rahul Telang, Siwen Chen,
Wellesley College - Department of Economics, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management , Carnegie Mellon University - H. John Heinz III School of Public Policy and Management, Unaffiliated Authors - affiliation not provided to SSRN,
Date posted to database: January 22, 2012
4 393 Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms
Charles D. Weisselberg, Su Li,
University of California, Berkeley - School of Law, University of California at Berkely - Center for the Study of Law and Society,
Date posted to database: January 11, 2012
5 266 Revisiting a Foreign Corrupt Practices Act Compliance Defense
Mike Koehler,
Butler University College of Business,
Date posted to database: January 11, 2012 [10th last week]
6 217 Thoughts on the Corporation as a Person for Purposes of Corporate Criminal Liability
Joan MacLeod Heminway,
University of Tennessee College of Law,
Date posted to database: January 31, 2012
7 215 The Law and Economics of Fluctuating Criminal Tendencies
Murat C. Mungan,
Florida State University - College of Law,
Date posted to database: January 19, 2012 [8th last week]
8 207 Smooth and Bumpy Laws
Adam J. Kolber,
NYU School of Law,
Date posted to database: January 27, 2012 [7th last week] 
9 181 The Empirical Turn in International Legal Scholarship
Gregory Shaffer, Tom Ginsburg,
University of Minnesota - Twin Cities - School of Law, University of Chicago Law School,
Date posted to database: February 14, 2012 [new to top ten]
10 169 False Justice and the 'True' Prosecutor: A Memoir, Tribute, and Commentary
Mark Godsey,
University of Cincinnati College of Law,
Date posted to database: January 12, 2012 [9th last week]

March 12, 2012 | Permalink | Comments (0)