CrimProf Blog

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

Sunday, March 31, 2013

Top-Ten Recent SSRN Downloads

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

1 544 The Leaky Leviathan: Why the Government Condemns and Condones Unlawful Disclosures of Information 
David Pozen
Columbia Law School, 
Date posted to database: February 25, 2013 [2nd last week]
2 396 Foreword: Accounting for Technological Change 
Orin S. Kerr
George Washington University - Law School, 
Date posted to database: March 17, 2013 [new to top ten]
3 365 Federal Tax Crimes, 2013 
John A. TownsendJohn A. Townsend,
University of Houston School of Law, Townsend and Jones, LLP, 
Date posted to database: February 7, 2013 
4 182 Targeting and the Concept of Intent
Jens David Ohlin
Cornell University - School of Law, 
Date posted to database: February 12, 2013 
5 149 Policing the Firm 
D. Daniel Sokol
University of Florida - Levin College of Law, 
Date posted to database: March 9, 2013 [8th last week]
6 138 Colorado Capital Punishment: An Empirical Study 
Justin F. MarceauSam KaminWanda Foglia
University of Denver - Sturm College of Law, University of Denver Sturm College of Law, Rowan University, 
Date posted to database: January 31, 2013 
7 127 Overcharging 
Kyle Graham
Santa Clara University School of Law, 
Date posted to database: March 3, 2013 [new to top ten]
8 125 Does International Law Matter? 
Shima BaradaranMichael Findley,Daniel NielsonJ. C. Sharman
Brigham Young University - J. Reuben Clark Law School , University of Texas at Austin, Brigham Young University, Griffith University, 
Date posted to database: February 8, 2013 
9 115 Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause 
Nicholas M. McLean
Yale University, 
Date posted to database: February 4, 2013 
10 113 Is Expert Evidence Really Different?
Frederick SchauerBarbara A. Spellman
University of Virginia School of Law, University of Virginia School of Law, 
Date posted to database: February 2, 2013 


March 31, 2013 | Permalink | Comments (0)

Saturday, March 30, 2013

Beety on the Local Impact of Capital Cases

Betty valenaValena Elizabeth Beety (West Virginia University - College of Law) has posted Risk and Execution: The Local Impact of Capital Cases on Mississippi Counties (Mississippi Law Journal, Forthcoming) on SSRN. Here is the abstract:

Mississippi codified the death penalty because people thought it was fair. Mississippians thought a death sentence was a fair punishment for the most heinous of crimes. And, as predicted by behavioral economics, people were willing to sacrifice their own material well-being – willing to pay – to punish wrongdoers.

But the death penalty is not fair. While it may or may not be just for the inmates, it’s not fair for the financial toll it takes on citizens and counties.

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March 30, 2013 | Permalink | Comments (0)

Moore on Drug Courts

Liz Moore (University of Tasmania) has posted Measures of Success: Capturing the Impact of Drug Courts on SSRN. Here is the abstract:

This paper discusses research completed in 2012 as part of a Master of Criminology and Corrections degree through the University of Tasmania into measures of success in drug court participation. Visits were made to nine drug courts and various associated programs internationally and interviews were conducted with a wide range of stakeholders. Data from interviews with 16 current participants in the Tasmanian Court Mandated Diversion program provided first-hand information about the benefits of program participation, and a form designed to collect this information is included. The emphasis of the paper is on capturing the impact of drug court participation and how success can be measured, evaluated and demonstrated. Cost savings are considered with a view to securing the ongoing financial viability of such programs as they are demonstrated to represent good use of public money. Practical recommendations from my observations of 16 drug courts worldwide are made for consideration by the local drug court program.

March 30, 2013 | Permalink | Comments (0)

Friday, March 29, 2013

Federal Sentencing Guidelines Seminar May 22-24 in Orlando

Info available at White Collar Crime Prof Blog.

March 29, 2013 | Permalink | Comments (0)

"Ex-Schools Chief in Atlanta Is Indicted in Testing Scandal"

She denies that she ever ordered cheating, but the story in The New York Times provides a nice example of how one can foster cheating (and other law breaking) without ever encouraging it:

In a 2011 interview with The New York Times, Dr. Hall said that people under her had allowed cheating but that she never had. “I can’t accept that there is a culture of cheating,” she said.

. . .

[A source] said teachers were under constant pressure from principals who feared they would be fired if they did not meet the testing targets set by the superintendent.

Dr. Hall was known to rule by fear. She gave principals three years to meet their testing goals. Few did; in her decade as superintendent, she replaced 90 percent of the principals.

Teachers and principals whose students had high test scores received tenure and thousands of dollars in performance bonuses. Otherwise, as one teacher explained, it was “low score out the door.”


March 29, 2013 | Permalink | Comments (0)

Schlanger on Prison Segregation

Schlanger margoMargo Schlanger (University of Michigan Law School) has posted Prison Segregation: Symposium Introduction and Preliminary Data on Racial Disparities (Michigan Journal of Race & Law, Vol. 18, Forthcoming) on SSRN. Here is the abstract:

This short essay introduces the Michigan Journal of Race & Law Journal’s symposium, Inhumane and Ineffective: Solitary Confinement in Michigan and Beyond. I look at the extremely limited available demographic information about prisoners in solitary confinement, and present preliminary data that supports a working hypothesis of racialized skew in isolated confinement, compared to the already highly skewed demographics of general prison population. In four of eight datapoints (representing prisons in Arkansas, Colorado, Connecticut, and New York), non-white prisoners are substantially overrepresented in supermax facilities; statistical testing confirms that the difference is statistically significant. (In three of the other four — Massachusetts, New Jersey, Rhode Island — the small overrepresentation is not statistically significant; likewise, the tiny proportion of underrepresentation in Maryland lacks statistical significance.) The essay concludes with the customary call for further research.

March 29, 2013 | Permalink | Comments (0)

Baradaran on Rebalancing the Fourth Amendment

Baradaran shimaShima Baradaran (Brigham Young University - J. Reuben Clark Law School) has posted Rebalancing the Fourth Amendment (Georgetown Law Journal, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment decisions primarily rely on balancing tests. None of these tests account for the fundamental flaw that skews the balance in these cases. The Fourth Amendment aims to protect the privacy of all individuals against government intrusion but is always presented to courts by a criminal defendant whose hands are dirty. Thus, when a court considers a balance of privacy interests against a government’s interest in effective law enforcement, the government wins almost every time. Without mitigation of the central weakness in Fourth Amendment balancing — that a criminal defendant is protecting the rights of all of society — these constitutional inquiries fail to protect broader privacy rights and equal protection interests implicated by the Fourth Amendment.

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March 29, 2013 | Permalink | Comments (0)

Thursday, March 28, 2013

"How your movements create a GPS 'fingerprint'"


The study's authors said keeping data anonymous is not necessarily enough to ensure real privacy.

"A simply anonymized dataset does not contain name, home address, phone number or other obvious identifier," they wrote. "Yet, if individual's patterns are unique enough, outside information can be used to link the data back to an individual."

So, for example, say that you wake up at home every morning, head to the office five days a week, then hit the gym on three of those days. That's three data points already. Then maybe you go to the same church, or restaurant for brunch, every Sunday. There's the fourth -- plenty to figure out who you are, the authors say.

Hat tip:

March 28, 2013 | Permalink | Comments (0)

"After Plan for Speed Cameras Fails in Albany, a Tirade From Bloomberg"

From The New York Times:

Some opponents of the cameras have called them a warrantless attempt to raise revenue for the city and have expressed doubts as to whether they reduce speeding.

Mr. Golden said on Wednesday that other areas with speed cameras around the country had found them “unreliable.”

Janette Sadik-Khan, the city’s transportation commissioner, said on Wednesday that over 100 cities and states were already using cameras “and study after study has proved that they work.” The Transportation Department cited the example of Washington, D.C., where the police said last year that speeding at camera locations had fallen significantly since 2001, when the devices were first installed.


March 28, 2013 | Permalink | Comments (0)

Yin on the Death Penalty Spectacle

Yin tungTung Yin (Lewis & Clark Law School) has posted The Death Penalty Spectacle (University of Denver Criminal Law Review, Vol. 3, Spring 2013) on SSRN. Here is the abstract:

The death penalty in America has long been a spectacle of sorts, but a recent case in Oregon has verged into the absurd, where the inmate and the Governor are engaged in titanic litigation...except that the inmate is suing to allow his execution to go forward, and the Governor is fighting back in the courts to uphold the reprieve that he issued (and which the inmate purported to reject). 

This case is a fascinating commentary on, if nothing else, the fiscal waste of having a death penalty in a state that rarely sentences defendants to death (about one per year on average), and doesn’t execute them unless they “volunteer.”

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March 28, 2013 | Permalink | Comments (0)

Kim on Finality

Kim andrew chongsehAndrew Chongseh Kim (Washington University School of Law) has posted Beyond Finality: How Making Criminal Judgments Less Final Can Further the 'Interests of Finality' (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, will rarely affect the behavior of defense counsel, and can help reduce crime. 

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March 28, 2013 | Permalink | Comments (0)

Batra on Lafler and Frye

Batra rishiRishi Batra (Texas Tech University School of Law) has posted Lafler and Frye: A New Constitutional Standard for Negotiation (14 Cardozo Journal of Conflict Resolution 309 (2013)) on SSRN. Here is the abstract:

In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v.Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.” This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

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March 28, 2013 | Permalink | Comments (0)

Wednesday, March 27, 2013

"What is the State of the Jones Trespass Test After Florida v. Jardines?"

Orin Kerr has this thoughtful post, noting Justice Scalia's shift from referring to "trespass" in Jones to different formulations in Jardines. In part:

One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, theJones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts ofJones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.

March 27, 2013 | Permalink | Comments (0)

"3 Officers, Prolific at Stops, Will Get Their Say at Trial"

From the New York Times:

One officer described how car thieves might pretend to be beggars, sifting through curbside trash. “If someone is in the middle of a dark street, staring into the car and then when we drive by, they start ripping up garbage bags,” the police officer, Michael Noboa, said, “that would give me reasonable suspicion to conduct a stop, question” and possibly frisk.

Another officer in the same Brooklyn precinct, Kha Dang, explained how gang members often stash a gun nearby when they congregate outdoors. So he might grow suspicious, he explained, if he observed people repeatedly glancing over at a trash can or “at the bushes, you know, no person would sit there and keep looking at the bushes like that.”

. . .

Officer Gonzalez said he might grow suspicious if someone were waiting at a bus stop and “every possible bus that they could possibly get on has come through and went, and this person is still there.”

Officer Dang said that men “randomly looking in apartment windows” had led to a number of stops.


March 27, 2013 | Permalink | Comments (0)

Kitai-Sangero on Statutes of Limitations

Rinat Kitai-Sangero (Academic Center of Law & Business) has posted Between Due Process and Forgiveness: Revisiting Criminal Statutes of Limitations (Drake Law Review, Vol. 61, p. 423, 2013) on SSRN. Here is the abstract:

The Article seeks to explicate the purposes behind criminal statutes of limitations, especially in regard to serious crimes. It examines the coherency and persuasiveness of possible rationales for such statutes, focusing on personality change by the perpetrator as a possible explanation or justification for barring prosecution after the lapse of substantial time following the commission of a crime. The Article concludes that the passage of time by itself does not carry enough moral weight to overcome countervailing considerations.

March 27, 2013 | Permalink | Comments (0)

Flanders on the Death Penalty

Flanders chadChad Flanders (Saint Louis University - School of Law) has posted The Case Against the Case Against the Death Penalty (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Despite the continuing belief by a majority of Americans that the death penalty is morally permissible, the death penalty has few academic defenders. This lack of academic defenders is puzzling because of the strong philosophical justification the death penalty finds in traditional theories of punishment. The three major theories of punishment (the deterrent, the retributive, and the rehabilitative), far from showing that the death penalty is not justified, tend to provide good reasons to favor of the death penalty. Indeed, every attempt to show that the major theories of punishment rule out the death penalty either involves smuggling in other assumptions that are not intrinsic to the theory of punishment or puts into question that theory’s ability to serve as a theory of punishment in general. Punishment theory provides little basis for sound arguments against the death penalty. Perhaps one could mount a better attack on the death penalty using ideas outside of punishment theory, such as “dignity,” “decency” or “civilization,” but so far, the death penalty's opponents have not met their burden of persuasion.

March 27, 2013 | Permalink | Comments (1)

Corrado on Indefinite Detention of Suspected Terrorists

Corrado michaelMichael Louis Corrado (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Terrorists and Outlaws (Preventing Danger: New Paradigms in Criminal Justice, eds. Caianiello and Corrado (Carolina Academic Press, 2013)) on SSRN. Here is the abstract:

In this paper I continue the discussion, begun in my “Sex Offenders, Unlawful Combatants, and Preventive Detention,” of the indefinite detention of suspected terrorists. I examine recent developments in legislation and executive action concerning suspected terrorists, and in particular the National Defense Authorization Act of 2012.

March 27, 2013 | Permalink | Comments (0)

Rosenthal on the Exclusionary Rule

Rosenthal_LawrenceLawrence Rosenthal (Chapman University - School of Law) has posted Seven Theses in Grudging Defense of the Exclusionary Rule (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Much has been written about the rule that prevents the use of evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure. The quantity of the literature, however, threatens to obscure important areas of emerging agreement. This paper, part of a symposium in the Ohio State Journal of Criminal Law to appear for the 100th anniversary of Weeks v. United States, presents seven theses.

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March 27, 2013 | Permalink | Comments (0)

Opinion holding broad waiver of sovereign immunity under Federal Tort Claims Act

Justice Thomas wrote the opinion for the unanimous Court in Millbrook v. United States, determining that the waiver for intentional torts by an "investigative or law enforcement officer" extends to torts by such officers within the scope of their employment even if it does not arise in the course of executing a search, seizing evidence, or making an arrest.

March 27, 2013 | Permalink | Comments (0)

Tuesday, March 26, 2013

Leo on Interrogation Contamination

Leo richardRichard A. Leo (University of San Francisco - School of Law) has posted Why Interrogation Contamination Occurs (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The problem of police interrogation contamination (disclosing or leaking of non-public facts) is pervasive in documented false confessions leading to wrongful conviction. The presence of unique and detailed crime facts in a false confession creates the illusion that the defendant volunteered inside information about the crime that “only the true perpetrator could have known,” thus seemingly corroborating a false confession as verifiably true. This article argues that confession contamination occurs because (1) the guilt-presumptive psychology of American police interrogation is designed to trigger and perpetuate confirmation biases that (2) lead investigators - seemingly inadvertently - to provide detailed case information to suspects as part of their pre- and post-admission accusatory interrogation strategies, but (3) has no internal corrective mechanism to catch or reverse investigators’ misclassification errors or their confirmatory interrogation techniques.

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March 26, 2013 | Permalink | Comments (0)