CrimProf Blog

NACDL Launches Domestic Drone Information Center

The news release announcing this new site states:

NACDL President Steven D. Benjamin said, “NACDL’s Domestic Drone Information Center will serve as a comprehensive source of cutting-edge information on the proliferation of drones.” Benjamin sees the DDIC as filling a critical public need: “At the moment, people’s concerns about how drones will be used domestically are increasing, but information online remains scattered. The Domestic Drone Information Center aims to put everything in one place.”

 

To that end, the Domestic Drone Information Center aggregates news from leading publications across the nation. It features a comprehensive listing of legislative developments – federally, in each of the 50 states, and in select municipalities. It contains sections devoted to relevant case law, scholarship, upcoming events, and data on drone usage. The DDIC also aggregates existing material, providing the public with a launching pad to additional information on domestic drones. For example, the DDIC features links to other leaders in this field, such as the Electronic Frontier Foundation and the documents it has compiled through an aggressive Freedom of Information Act lawsuit. As the status of domestic drones in America changes and new resources become available, the DDIC will continually offer the latest updates.

 

Kaloyares on Reactionary Gun Control Law

Aimee Elizabeth Kaloyares has posted Annie Get Your Gun? An Analysis of Reactionary Gun Control Law and Their Utter Failure to Protect Americans from Violent Gun Crimes (Southern University Law Review, Vol. 40.2, 2013) on SSRN. Here is the abstract:

Reactionary gun control legislation fails to halt gun crime because it consistently fails to address the underlying causes of gun crime; which current laws, if enforced, would prevent. Moreover, the guarantees of the Second Amendment to “bear arms” are in constant conflict with reactionary legislative proposals, resulting in the attempt to lessen the protections of the United States Constitution. A retrospective analysis of violent gun crimes in the United States such as the Columbine shootings, the Virginia Tech shootings, the Tucson Arizona shootings and the Aurora Colorado shootings will show that each reactionary law proposed failed strict scrutiny and offered no more protection than the existing laws. Further, a brief analysis of the positions groups or agencies like the National Rifle Association (NRA), the Brady Campaign to End Gun Violence, the Bureau of Alcohol, Tobacco and Firearms (ATF), the Clinton Administration and the Obama Campaign illustrate the controversy surrounding gun control legislation with an emphasis on the enforcement of current law over the institution of reactionary proposals. In the wake of continued gun violence, like the Sandy Hook shootings, it becomes clear that better enforcement of existing gun control laws is the key to providing safety to American citizens; not the continued proposal of reactionary gun control laws.

Findley on Harris on Failed Evidence

Keith A. Findley (University of Wisconsin Law School) has posted Book Review: Understanding Failed Evidence (28 Criminal Justice (Forthcoming)) on SSRN. Here is the abstract:

This is a short book review of David Harris's new book, Understanding Failed Evidence: Why Law Enforcement Resists Science. Harris's book neatly and comprehensively summarizes the social science research on wrongful convictions, focusing on three types of flawed evidence: eyewitness identifications, forensic sciences, and confessions. Where the book makes its most significant contributions is in its exploration of why the criminal justice system has largely not yet responded to and incorporated the social scientific research about these types of evidence (which Harris largely attributes to cognitive biases), and his prescriptions both for what to reform, and how to do it.

Blackjack and Cognitive Enhancement (Kolber)

Blackjack players who “count cards” keep track of cards that have already been played and use this knowledge to turn the probability of winning in their favor. Though many casinos eject card counters or otherwise make their task more difficult, card counting is perfectly legal. So long as card counters rely on their own memory and computational skills, they have violated no laws and can make sizable profits.

By contrast, if players use a device to count cards, like a smartphone, they have committed a serious crime. For example, several iPhone apps helps players count cards and at least one has a “stealth mode” that lets users surreptitiously enter data and receive feedback. In response, the Nevada Gaming Control Board issued an open letter reminding the public that using such an app when betting at blackjack violates the state’s antidevice statute which provides for up to 6 years imprisonment for a first offense. Somehow using a device to augment our abilities to remember and to calculate turns a perfectly legal activity into an offense with a very serious penalty.

The fact that we do not criminalize natural, unassisted card counting raises interesting questions of criminal and constitutional law: Could we criminalize natural card counting without violating fundamental principles that protect thought privacy? (Email me for a manuscript on that question.) In this recently published paper, however, I focus on a puzzle about technological enhancement. Namely, can we justify criminalizing device-assisted card counting but not unassisted card counting?

The importance of the question extends beyond the world of blackjack and casino gaming because it appears, at least superficially, that antidevice statutes criminalize a kind of technological enhancement. Some ethicists distinguish therapies that seek to return us to normal, healthy functioning from enhancements that promise to give us extraordinary abilities. People are often much more comfortable with therapies (e.g., drugs or devices to treat attention deficit disorder) than with enhancements (e.g., drugs or devices to give us better-than-normal concentration).

As a historical matter, casinos lobbied for antidevices statutes in the 1980s to protect their revenue as computers were becoming more popular and accessible. I focus on a deeper question: Is there any moral justification for permitting an activity, like card counting, when it uses only our natural abilities but severely punishing the activity when it is technologically enhanced? I consider a couple of possible justifications for the differential treatment and suggest that both are lacking.

[Adapted from Criminalizing Card Counting at the Blackjack Table; Originally posted at Prawfsblawg]

McClanahan on Citizen Participation in Japanese Criminal Trials

Jon P. McClanahan (UNC School of Law) has posted Citizen Participation in Japanese Criminal Trials: Reimagining the Right to Trial by Jury in the United States (North Carolina Journal of International Law and Commercial Regulation, Vol. 37, No. 3, 2012) on SSRN. Here is the abstract:

If the United States were to reform contemporary jury trials to match the Founders’ conception of the right to trial by jury, how might they look? In recent years, we have gained insight into how to answer that question from an unlikely source: Japan.

This Article examines the introduction of citizen participation into the Japanese judicial system (the saiban-in seido) from a different perspective. Rather than focusing on the contemporary American jury system, this Article evaluates the Japanese reforms in light of the Founders’ conception of the right to trial by jury.

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Lucas on Equality and Indigent Defense Reform

Lauren Sudeall Lucas (Georgia State University College of Law) has posted Reclaiming Equality to Reframe Indigent Defense Reform (Minnesota Law Review, Vol. 97, No. 4, p. 1197, 2013) on SSRN. Here is the abstract:

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance and its inability to directly address issues of underfunding or to prospectively set substantive standards for indigent defense representation. 

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Baron-Evans & Hillier on the Sentencing Commission's Legislative Agenda to Restore Mandatory Guidelines

Amy Baron-Evans and Thomas W. Hillier II (Federal Public and Community Defenders and Federal Public Defender Office, Western District of Washington) have posted The Commission's Legislative Agenda to Restore Mandatory Guidelines (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:

At a point in time when bipartisan Congressional leaders and the Attorney General are joining in a call to address the unsustainable costs and longstanding injustice associated with over-incarceration under mandatory sentencing rules, the United States Sentencing Commission has released a report on the impact of United State v. Booker, calling for a return to the very pre-Booker policies that caused our current crisis. In its rearview report, the Commission sets forth six recommendations to Congress that would constitute a return to a guideline system that is functionally no different than, and every bit as unconstitutional as, the mandatory system struck down in Booker. The proposals would eviscerate judges’ authority to consider the history and characteristics of the defendant and mitigating circumstances of the offense, and would suppress disagreement with the guidelines and policy statements, all contrary to Supreme Court law. If enacted into law, the proposals would result in years of litigation over their constitutionality and wreak havoc with a fully functional sentencing system to which judges, courts of appeals, probation officers, and lawyers have become accustomed over the past eight years.

Corn on Terrorist Threats and the Fourth Amendment

Geoffrey S. Corn (South Texas College of Law) has posted Terrorism, Tips, and the Touchstone of Reasonableness: Seeking a Balance between Threat Response and Privacy Dilution (Penn State Law Review, Vol. 118, 2012) on SSRN. Here is the abstract:

This article addresses the existing gap between the practical need to respond rapidly and decisively to anonymous tips of car bomb terrorist threats and the existing tests for compliance with the Fourth Amendment. More specifically, I explain how a search (or seizure) of an automobile identified as matching the description of an anonymous tip that it contains a car bomb would not be justified under any of the existing exceptions to the warrant requirement of the Fourth Amendment. I then argue that the threat associated with this tactic of choice for homegrown lone-wolf terrorists necessitates an adjustment of these existing standards for assessing the “reasonableness” of a police response to such an anonymous tip. However, because such an adjustment will dilute the existing framework that enables post-search judicial critique of police judgments, this adjustment poses an associated risk that police seeking to exploit my proposed “terrorist tip” exception to skirt the normal requirements of the Fourth Amendment will subject citizens to subterfuge searches. 

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Today's criminal law/procedure cert grant

Questions presented from ScotusBlog:

• Burrags v. United States: Whether the crime of distributing drugs causing death is a strict liability crime without a cause requirement. Whether a person can be convicted of that crime under jury instructions which allow a conviction when the heroin contributed to death but was not the sole cause of the death.

Cert dismissed in case alleging trial delay resulted from state's failure to fund defense counsel

The Court dismissed the writ as improvidently granted in a per curiam order in Boyer v. Louisiana. Justice Alito, joined by Justices Scalia and Thomas, filed a concurring opinion arguing that the delay in the case was not attributable to the facts alleged in the petition for certiorari. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Sotomayor.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	4246	The Dangers of Surveillance  Neil M. Richards,  Washington University in Saint Louis - School of Law,  Date posted to database: March 25, 2013
2	673	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
3	483	Foreword: Accounting for Technological Change  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: March 17, 2013
4	387	Knives and the Second Amendment  David B. Kopel, Clayton E. Cramer, Joseph Olson,  Independence Institute, College of Western Idaho, Hamline University - School of Law,  Date posted to database: March 24, 2013 [new to top ten]
5	309	Lanny Breuer and Foreign Corrupt Practices Act Enforcement  Mike Koehler,  Southern Illinois University School of Law,  Date posted to database: March 24, 2013
6	221	Self-Defensive Force Against Cyber Attacks: Legal, Strategic and Political Dimensions  Matthew C. Waxman,  Columbia Law School,  Date posted to database: March 21, 2013
7	202	Overcharging  Kyle Graham,  Santa Clara University School of Law,  Date posted to database: March 3, 2013
8	174	Policing the Firm  D. Daniel Sokol,  University of Florida - Levin College of Law,  Date posted to database: March 9, 2013 [9th previously]
9	159	Lafler and Frye: A New Constitutional Standard for Negotiation  Rishi Batra,  Texas Tech University School of Law,  Date posted to database: March 21, 2013 [10th previously]
10	147	Antitrust Corporate Governance and Compliance  Rosa M. Abrantes-Metz,D. Daniel Sokol,  Global Economics Group, LLC, University of Florida - Levin College of Law,  Date posted to database: April 10, 2013 [new to top ten]

 

Gallant on the Presumption Against Extraterritorial Effect of Statutes

Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted The Indeterminate International Law of Jurisdiction, the Presumption Against Extraterritorial Effect of Statutes, and Certainty in U.S. Criminal Law on SSRN. Here is the abstract:

It is, in certain cases, impossible for persons to tell in advance which states will have effective legislative jurisdiction over their acts. In these cases, it is impossible to tell in advance whose law the person must obey. This quandry arises where some national law purports to regulate outsiders and their acts in a manner arguably inconsistent with the international law of legislative jurisdiction. If the regulating state's courts do not allow challenges to jurisdiction based on international law, and the state of the outsider's nationality fails to protect her diplomatically, the outsider has no protection against excessive claims of jurisdiction.

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Jefferson-Jones on Exchanging Inmate Organs for Liberty

Jamila Jefferson-Jones (Barry University School of Law) has posted The Exchange of Inmate Organs for Liberty: Diminishing the 'Yuck Factor' in the Bioethics Repugnance Debate on SSRN. Here is the abstract:

Mississippi Governor Haley Barbour granted clemency to Jamie and Gladys Scott on December 29, 2010. This decision indefinitely suspended their double life sentences and freed them after 16 years in prison for armed robbery. The price of their liberty: Gladys’ kidney. 

The story of the Scott Sisters’ release and the condition imposed upon Gladys Scott reflexively elicits an intense negative response on the part of the listener who likely is focusing on the “yuck factor” – a strong sentiment that what they just heard is unfair, unseemly, or just plain wrong. 

What happens, then if the Scott Sisters’ story is replicated – if it is multiplied across prison populations?

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Slobogin on a Comparative Perspective on the Exclusionary Rule

Christopher Slobogin (Vanderbilt University - Law School) has posted A Comparative Perspective on the Exclusionary Rule in Search and Seizure Cases on SSRN. Here is the abstract:

The modern United States Supreme Court views the exclusionary rule as a means of deterring police conduct that unduly infringes privacy or autonomy interests. But in years past the Court also proffered two other reasons for exclusion: the importance of ensuring the integrity of the legal system (primarily by avoiding judicial complicity with police illegality) and the need to vindicate constitutional guarantees. Some version of one or both of the latter two rationales also appears to be the primary motivation behind the exclusionary rules in other countries. In contrast to the United States, however, in most of these countries exclusion is not very common. Those countries that focus on systemic integrity take into account not only the de-legitimizing impact of failing to exclude illegally seized evidence but also the truth-denigrating effect of excluding evidence. Those countries that focus on vindicating fundamental rights tend to define those rights narrowly, or undercut the vindication rationale in various other ways. After describing these developments, this paper examines, from both empirical and theoretical perspectives, the difficulties that arise in applying the deterrence, systemic integrity,and rights vindication models of the rule and concludes with thoughts about the possible alternatives to exclusion, the ways in which the exclusionary remedy can be refined, and the interaction of the exclusionary rule with substantive search and seizure law.

Corn on Miranda, Surreptitious Questioning, and the Right to Counsel

Geoffrey S. Corn (South Texas College of Law) has posted Miranda, Surreptitious Questioning, and the Right to Counsel on SSRN. Here is the abstract:

This article analyzes police surreptitious questioning of a suspect following invocation of the Miranda right to counsel. I conclude that although never addressed by the Supreme Court, this tactic should be permissible. The article focuses on the intersection of the rule established by Illinois v. Perkins, where the Supreme Court held surreptitious questioning of a suspect prior to Miranda invocation does not implicate the Miranda warning and waiver requirement, and the Edwards/Minnick rule, where the court held as per se invalid any Miranda waiver resulting from police re-initiation of questioning following an invocation of the Miranda right to counsel. This brings into focus the question of which of these two rules takes precedence in the post-invocation surreptitious questioning situation? 

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Gallini on Schneckloth v. Bustamonte

Brian Gallini (University of Arkansas School of Law) has posted Rethinking Schneckloth v. Bustamonte (Search & Seizure Law Report, Vol. 40, No. 2, p. 9, February 2013) on SSRN. Here is the abstract:

Why provide warnings to criminal suspects subject to custodial interrogation, but decline to require that citizens be informed of their right to refuse consent? And a related question: why did the Schneckloth majority opinion’s author, Justice Stewart, go so far as to assert that administering a right to refuse consent warning would be “thoroughly impractical”? This piece argues that Schneckloth should be overruled in light of dramatic changes in politics and our factual understanding of consent searches.

Chanenson on Sentencing Guidelines in the United States

Steven L. Chanenson (Villanova University School of Law) has posted Sentencing Guidelines in the United States (Encyclopedia of Criminology and Criminal Justice, E. Gerben Bruinsma & David Weisburd, eds., Springer, 2013) on SSRN. Here is the abstract:

This essay surveys the history, features and future of sentencing guidelines in the United States.

"New Medical Exam Policy for Sexual Assault Cases"

From the New York Times:

On Wednesday, the Department of Justice issued new national guidelines for forensic medical examinations in cases of sexual assault.

. . .

The guidelines emphasize that the rape victim’s physical and emotional needs should take precedence over criminal justice considerations.

. . .

“Research shows that once victims get support, they’re more likely to cooperate with the criminal justice system,” [said Bea Hanson, acting director of the Justice Department’s Office on Violence Against Women].

Osler on Reform of the Federal Clemency Process

Mark William Osler (University of St. Thomas - School of Law (Minnesota)) has posted Clemency for the 21st Century: A Systemic Reform of the Federal Clemency Process on SSRN. Here is the abstract:

Federal clemency is in crisis. In response to that crisis, a remarkable bipartisan consensus has formed in support of systemic reform. This short statement acknowledges that consensus, and lays out a framework for change. The reforms described here are achievable without significant congressional action, consistent with best practices in the states, and cost-effective. We urge that this administration take the clemency process out of the Department of Justice, create an independent and bipartisan Clemency Board that would report directly to the President, and establish a regular and systemic process for executive consideration of individual cases.

Freedman on Counsel in Capital State Post-Conviction Proceedings

Eric M. Freedman (Hofstra University - School of Law) has posted Enforcing the ABA Guidelines in Capital State Post-Conviction Proceedings after Martinez and Pinholster (41 Hofstra L.Rev. (2013 Forthcoming)) on SSRN. Here is the abstract:

This piece, to be published in Part 1 of Hofstra Law Review’s forthcoming symposium marking the tenth anniversary of the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, considers the converging pressures now impelling the states to provide the effective assistance of counsel in state capital post-conviction proceedings. On the one hand, Martinez v. Ryan, 132 S. Ct. 1309 (2012) - a case that will likely be expanded to a number of additional procedural and substantive contexts - warns the states that if they fail to provide such counsel, their capital convictions will be subject to searching federal review. On the other hand, Cullen v. Pinholster, 131 S.Ct. 1388 (2011), offers the states the promise that if they do provide such counsel their capital convictions will be very deferentially treated on federal review. Thus, the forces of federalism may cause the states to adopt a beneficial reform that the Supreme Court has been unwilling to mandate under the Constitution.