CrimProf Blog

Smith on Overcriminalization

Stephen F. Smith (Notre Dame Law School) has posted Overcoming Overcriminalization (Journal of Criminal Law and Criminology, Vol. 102, No. 3, 2012) on SSRN. Here is the abstract:

The literature treats overcriminalization (and, at the federal level, the federalization of crime) as a quantitative problem. Legislatures, on this view, have simply enacted too many crimes, and those crimes are far too broad in scope. This Article uses federal criminal law as a basis for challenging this way of conceptualizing the overcriminalization problem. The real problem with overcriminalization is qualitative, not quantitative: federal crimes are poorly defined, and courts all too often expansively construe poorly defined crimes. Courts thus are not passive victims in the vicious cycle of overcriminalization. Rather, by repeatedly interpreting criminal statutes broadly, courts have taken the features of federal criminal law that critics of federalization find objectionable — its enormous scope and its severity — and made them considerably worse. By changing how they interpret criminal statutes, the federal courts can help overcome overcriminalization even if Congress continues to be unrestrained in its use of the criminal sanction.

Kuennen on Domestic Violence and the Right to Petition

Tamara L. Kuennen (University of Denver Sturm College of Law) has posted Recognizing the Right to Petition for Victims of Domestic Violence (Fordham Law Review, Vol. 81, p. 837, 2012) on SSRN. Here is the abstract:

Like any citizen, a victim of domestic violence (DV) may call the police for help when she needs it. And yet, when a victim calls the police, she not only seeks law enforcement assistance but also invokes her constitutional right to seek one of the most fundamental services the government can provide-protection from harm. That right, recently described by the Supreme Court as "essential to freedom," is the right "to petition the Government for a redress of grievances" guaranteed by the First Amendment.

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"Montana lawmaker offers pain instead of prison"

Doug Berman at Sentencing Law & Policy has this post excerpting an article about a new sentencing proposal. In part:

A Montana lawmaker says convicts should be allowed to get out of prison time if they instead agree to the "infliction of physical pain" — an idea that so far is receiving a cool reception.

Republican Rep. Jerry O'Neil is drafting a bill that would allow those convicted of misdemeanors or felonies to negotiate corporal punishment instead of another sentence. The method used to inflict the pain would be decided by a judge.

Lerner on Miller v. Alabama

Craig S. Lerner (George Mason University School of Law) has posted Sentenced to Confusion: Miller v. Alabama and the Coming Wave of Eighth Amendment Cases (George Mason Law Review, Vol. 20, No. 1, Fall 2012, pp. 25-40) on SSRN. Here is the abstract:

In Miller v. Alabama, 132 S. Ct. 2455 (2012), the Supreme Court held unconstitutional roughly 2,000 life-without-parole (LWOP) sentences, which had been imposed on juveniles by twenty-eight states and the federal government. The Miller Court held that the Eighth Amendment permits the imposition of LWOP on juveniles, but only after what it airily calls an “individualized sentencing.” Justice Kagan, writing for the majority, presents the decision as a modest one, and as an exercise of the judicial craft she is successful in deflecting some of the criticisms of the dissenting Justices, and in portraying the majority opinion as following ineluctably from precedent, principally Graham v. Florida, 130 S. Ct. 2011 (2010). Yet Graham suffers from the faulty premises that juveniles who commit heinous crimes are typical juveniles, and that they are categorically less culpable than young adult offenders. The Miller Court adopts and then compounds these errors. The Essay questions whether LWOP, as opposed to other harsh sentences, and juveniles, as opposed to young adult offenders, are really so distinct as to merit special constitutional treatment. The Essay also draws attention to some of the potential areas of uncertainty after Miller: the ambiguity as to what qualifies as “individualized sentencing”; the possible expansion of Miller’s exemption from mandatory sentencing to offenders who are not juveniles; and unresolved questions about the constitutionality of long prison sentences that are the practical equivalent of LWOP.

Flanders on DeGirolami, Stephen, and Punishment Theory

Chad Flanders (Saint Louis University - School of Law) has posted In Defense of Punishment Theory, and Contra Stephen: A Reply to DeGirolami (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:

Marc DeGirolami’s searching recent essay in this Journal is — appropriately enough — hard to categorize, or even to summarize. It aims to criticize the rise of “theory” in the academic study of criminal punishment, but it does not stop at merely being critical. Rather, it attempts to revive the thought of James Fitzjames Stephen, and also to urge a better way of looking at the study of punishment: one that is more historically oriented as well as more pluralist. Stephen’s thought, DeGirolami complains, has been misunderstood and flattened, and it is our loss. We have lost not only the views of a surprising, and surprisingly relevant, historical figure, but more importantly we have lost a kind of sensitivity that is missing in much of contemporary philosophy of punishment.

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Shoebotham on Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs

Leslie A. Shoebotham (Loyola University New Orleans College of Law) has posted Off the Fourth Amendment Leash?: Law Enforcement Incentives to Use Unreliable Drug-Detection Dogs (Loyola Journal of Public Interest Law, 2013) on SSRN. Here is the abstract:

After United States v. Place and Illinois v. Caballes, the central concern for courts asked to determine the admissibility of positive, canine drug-detection sniffs was whether the sniff was performed by a “well-trained” detection dog - which most courts equated with “reliability” for purposes of establishing probable cause. Florida v. Harris asks the U.S. Supreme Court to resolve the dispute concerning what evidence trial courts are permitted to consider in determining whether a drug-detection dog is well trained. This Article responds to the State of Florida’s assertions in Harris that trial courts must defer to law enforcement determinations of canine-reliability, and should be prohibited from performing independent determinations of reliability by examining detection-dog field performance records.

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Clark on Jurors and the Presumption of Innocence

Sherman J. Clark (University of Michigan Law School) has posted The Juror, The Citizen, and The Human Being: The Presumptions of Innocence and the Burden of Judgment (Criminal Law and Philosophy, 2013) on SSRN. Here is the abstract:

In this essay, I suggest that the criminal trial is not only about the guilt or innocence of the defendant, but also about the character and growth of the jurors and the communities they represent. In earlier work, I have considered the potential impact of law and politics on the character of citizens, and thus on the capacity of citizens to thrive – to live full and rich human lives. Regarding the jury, I have argued that aspects of criminal trial procedure work to fix in jurors a sense of agency in and responsibility for verdicts of conviction. Here, I draw on those ideas with respect to the presumption of innocence. I suggest that the presumption of innocence works not primarily as legal rule, but rather as a moral framing device – a sort of moral discomfort device – encouraging jurors to feel and bear the weight of what they do. I offer an account of character development in which virtues are conceived of not merely as modes of conduct developed through habituation and practice, but also as capacities and ways of being developed in part through understanding and experience. The criminal trial, framed by the presumption of innocence, can be an experience through which jurors and their communities, by learning what it means and feels like to carry a certain sort of moral weight, may engender a certain set of moral strengths – strengths valuable to them not just as jurors, but also as citizens, and as human beings.

"Judge Approves BP Criminal Settlement"

From the New York Times:

HOUSTON — A federal judge in New Orleans on Tuesday approved an agreement between BP and the Justice Department for the company to plead guilty to manslaughter and pay $4 billion in criminal penalties for the 2010 oil well blowout and spill in the Gulf of Mexico that left 11 workers dead.

. . .

Several dozen people submitted letters to Judge Sarah S. Vance, of Federal District Court in New Orleans, requesting that she reject the plea agreement. Some wanted additional financial compensation, while others requested stronger punishment for BP supervisors or a more powerful apology.

Reynolds on Charging Discretion

Glenn Harlan Reynolds (University of Tennessee College of Law) has posted Ham Sandwich Nation: Due Process When Everything is a Crime on SSRN. Here is the abstract:

Though extensive due process protections apply to the investigation of crimes, and to criminal trials, perhaps the most important part of the criminal process -- the decision whether to charge a defendant, and with what -- is almost entirely discretionary. Given the plethora of criminal laws and regulations in today's society, this due process gap allows prosecutors to charge almost anyone they take a deep interest in. This Essay discusses the problem in the context of recent prosecutorial controversies involving the cases of Aaron Swartz and David Gregory, and offers some suggested remedies, along with a call for further discussion.

Primus on Effective Trial Counsel after Martinez v. Ryan

Eve Brensike Primus (University of Michigan Law School) has posted Effective Trial Counsel after Martinez v. Ryan: Focusing on the Adequacy of State Procedures (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon. Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform given the many procedural obstacles that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state criminal cases. This year, in Martinez v. Ryan, the Supreme Court relied on equitable principles to sweep aside procedural barriers to federal habeas review and permit state prisoners to raise ineffective-assistance-of-trial-counsel claims in federal court.

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Nadler on Consent, Dignity, and Scattershot Policing

Janice Nadler (Northwestern University School of Law) has posted Consent, Dignity, and the Failure of Scattershot Policing (The Constitution and the Future of Criminal Justice in America, Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:

Law enforcement officers often work under conditions that afford them a great deal of individual discretion about how to exercise their power to police. In this chapter, I explore how Fourth Amendment doctrine, as formulated by the US Supreme Court, and as interpreted and applied by lower courts, influences law enforcement policy and individual officers’ exercise of this discretion. It does so not only by articulating specific rules for conduct, but by expressing opinions and values about the power relationships between law enforcement officers and those they police. I argue that the Court’s Fourth Amendment jurisprudence has encouraged the aggressive targeting of large numbers of people for stops and searches, the vast majority of whom are innocent of any crime. Many of these searches are premised on the highly questionable notion that the individuals targeted have freely consented to a search of their persons, vehicles, or belongings.

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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	929	Ideology, Motivated Reasoning, and Cognitive Reflection: An Experimental Study  Dan M. Kahan,  Yale University - Law School,  Date posted to database: November 30, 2012
2	398	Grading the Foreign Corrupt Practices Act Guidance  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: December 14, 2012
3	204	Oasis or Mirage: The Supreme Court's Thirst for Dictionaries in the Rehnquist and Roberts Eras  James J. Brudney, Lawrence Baum,  Fordham University - School of Law, Ohio State University (OSU) - Department of Political Science,  Date posted to database: January 2, 2013 [5th last week]
4	200	Peeking Behind the Plea Bargaining Process Laurie L. Levenson,  Loyola Law School Los Angeles,  Date posted to database: December 11, 2012
5	199	Unregulated Corporate Internal Investigations: Achieving Fairness for Corporate Constituents  Bruce A. Green, Ellen S. Podgor,  Fordham University School of Law, Stetson University College of Law,  Date posted to database: December 6, 2012 [6th last week]
6	153	What is Philosophy of Criminal Law?  Youngjae Lee,  Fordham University School of Law,  Date posted to database: December 16, 2012 [7th last week]
7	139	Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280  Robert T. Anderson,  University of Washington School of Law,  Date posted to database: December 6, 2012 [8th last week}
8	136	Prison, Foster Care, and the Systemic Punishment of Black Mothers  Dorothy E. Roberts,  University of Pennsylvania - Law School - Faculty,  Date posted to database: December 4, 2012 [new to top ten]
9	120	Review of Patricia S. Churchland, 'Braintrust: What Neuroscience Tells Us About Morality'  John Mikhail,  Georgetown University - Law Center,  Date posted to database: December 29, 2012 [new to top ten]
10	117	Narrative, Truth & Trial  Lisa Kern Griffin,  Duke University - School of Law,  Date posted to database: December 16, 2012 [new to top ten]

 

van Ours & Vollaard on Strengthening Victim Precaution

Jan C. van Ours and Ben Vollaard (Tilburg University - Department of Economics and TILEC, Tilburg University) have posted The Engine Immobilizer: A Non-Starter for Car Thieves on SSRN. Here is the abstract:

We provide evidence for a beneficial welfare impact of a crime policy that is targeted at strenghtening victim precaution. Regulation made application of the electronic engine immobilizer, a simple and low-cost anti-theft device, mandatory for all new cars sold within the European Union as of 1998. We exploit the regulation as source of exogenous variation in use of the device by year of manufacture of cars. Based on detailed data at the level of car models, we find that uniform application of the security device reduced the probability of car theft by an estimated 50 percent on average in the Netherlands during 1995-2008, accounting for both the protective effect on cars with the device and the displacement effect on cars without the device. The costs per prevented theft equal some 1,500 Euro; a fraction of the social benefits of a prevented car theft.

Derrick on Qualified Immunity and Recording Police

Geoffrey J. Derrick has posted Qualified Immunity and the First Amendment Right to Record Police (Boston University Public Interest Law Journal, Forthcoming) on SSRN. Here is the abstract:

This draft article explores Pearson v. Callahan, 129 S. Ct. 808 (2009), in the context of recent nationwide litigation over the First Amendment right to record police officers in public. Pearson v. Callahan gives judges considering a qualified immunity defense to a civil rights lawsuit the discretion to never reach the merits of the lawsuit, deciding only that the right is not “clearly established.” The Court’s opinion in Pearson uprooted Saucier v. Katz, 533 U.S. 194 (2001), which required courts to address the merits before deciding whether a defendant is entitled to qualified immunity.

The doctrinal shift from Saucier to Pearson coincides with an increase in civil rights litigation nationwide concerning the First Amendment right to record police officers in public.

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Sacharoff on the Relational Nature of Privacy

Laurent Sacharoff (University of Arkansas - School of Law) has posted The Relational Nature of Privacy (Lewis & Clark Law Review, Vol. 16, No. 4, p. 1249, 2012) on SSRN. Here is the abstract:

The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search”; if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.

But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage left curbside, this conduct does not amount to a search. The Court reasoned that a person does not expect privacy in his garbage in relation to animals, scavengers, or children, and therefore has no privacy in his garbage with respect to anyone, including the police.

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Grant on Consent by the Civilly Committed

Isabel Grant (University of British Columbia - Faculty of Law) has posted 'The Normal Ones Take Time': Civil Commitment and Sexual Assault in R. v. Alsadi ((2012), 24:2 Canadian Journal of Women and the Law 439-457) on SSRN. Here is the abstract:

This comment addresses the issue of whether a woman who is civilly committed in a psychiatric facility can ever give a valid consent to sexual activity with someone employed by that facility to ensure her safety and protection. The paper argues that such a consent would be involuntary and invalid because it was obtained as a result of an abuse of a position of trust. It is argued that the imbalance of power between a civilly committed psychiatric patient and, in Alsadi, a security guard employed by the hospital is so significant that no meaningful or voluntary consent can be given by the woman involved.

"Google Report on Increase in Law Enforcement Requests for Data"

From TalkLeft. In part:

Google has issued a transparency report detailing requests by law enforcement for user data. For the first time, the report includes a breakdown of the types of legal process used to compel companies to hand over user data.

Requests for user data are up 70% from 2009.

 

Caldwell on Coercive Plea Bargaining

Harry M. Caldwell (Pepperdine University - School of Law) has posted Coercive Plea Bargaining: The Unrecognized Scourge of the Justice System (Catholic University Law Review, Vol. 61, No. 829, 2011) on SSRN. Here is the abstract:

Part I of this Article briefly sets forth the ethical and professional duties of prosecutors. Part II examines the game-theory concepts at play in plea-and sentence-bargaining negotiations. For perspective, Part III explores the evolution of plea bargaining from common law and elucidates the problem of coercive plea bargaining. Part VI analyzes how other scholars' approaches fail to address the problem adequately and hence have not been implemented. Finally, in Part V, the Article concludes by offering a viable approach for limiting prosecutorial abuse in the charging process -- an approach that governments, both state and federal, can implement without disrupting the justice system and without significant costs.

Wells & Loftus on Eyewitness Memory for People and Events

Gary L Wells and Elizabeth F. Loftus (Department of Psychology and University of California, Irvine - Department of Psychology and Social Behavior) has posted Eyewitness Memory for People and Events (Chapter 25) (Handbook of Psychology, Vol. 11, 2013, Forensic Psychology, Chapter 25, R.K. Otto and & I.B. Weiner (Eds), Hoboken, NJ: John Wiley & Sons, Inc.) on SSRN. Here is the abstract:

This chapter begins with a summary of the case of Thomas Brewster, who was tried for murder based in large part on eyewitness testimony. Ultimately DNA came to Brewster’s rescue, and he was freed before the trial ended. Analyses of taped interviews in the case help reveal how the interviewing process itself may have tainted the eyewitness testimony. The chapter continues with discussions of new psychological research on memory for complex events. This work shows how the details of events can be changed when witnesses are exposed to post-event information that is misleading. And with enough suggestion, entire events can be planted into the mind of ordinary healthy adults. The final section discusses new findings concerning eyewitness memory for people. This includes eyewitness identification of previously seen strangers, and new findings on procedures that can reduce mistaken identifications.

"Stop and Frisk' May Be Working—But Is It Racist?"

FourthAmendment.com excerpts this article from The Atlantic, discussing inter alia a surreptitiously recorded police encounter:

"I just got stopped like two blocks ago," said a frustrated Harlem teenager to the two police officers who approached him.

This is the first recorded audio of a New York City "stop and frisk" recorded surreptitiously by a 16-year-old brown-skinned high schooler identified only as "Alvin." Soon after, the encounter escalates into shouting.

"Why are you carrying an empty book bag?" the police ask Alvin.

"Because I had my hoodie in there. It was cold."

"You want me to smack you?"

"Why you gonna smack me?"

"Who the fuck do you think you're talking to? Shut your fucking mouth."

Quick clicks of tightening handcuffs are heard on the recording as Alvin frantically asks, "What am I getting arrested for?"

One of the policemen responds, "For being a fucking mutt."

"That's against the law, being a mutt?" Alvin asks.

"I will break your fucking arm off right now," the policeman answers.