CrimProf Blog

"Could the Government Get a Search Warrant for Your Thoughts?"

From the Atlantic:

We don't have a mind reading machine. But what if we one day did? The technique of functional MRI (fMRI), which measures changes in localized brain activity over time, can now be used to infer information regarding who we are thinking about, what we have seen, and the memories we are recalling. As the technology for inferring thought from brain activity continues to improve, the legal questions regarding its potential application in criminal and civil trials are gaining greater attention.

. . .

So far, concerns regarding reliability have kept thought-inferring brain measurements out of U.S. (but not foreign) courtrooms. But is technology theonly barrier? Or, if more mature, reliable brain scanning methods for detecting truthfulness and reading thoughts are developed in the future, could they be employed not only by defendants hoping to demonstrate innocence but also by prosecutors attempting to establish guilt? Could prosecutors armed with a search warrant compel an unwilling suspect to submit to brain scans aimed at exploring his or her innermost thoughts?

"In L.A. County, a juvenile suspect assigned an attorney for a flat fee is likely to fare much worse than one who gets a public defender"

This op-ed is from the L.A. Times:

Three hundred fifty dollars. That's the amount Los Angeles County pays a private attorney to represent a child charged with crimes when the public defender has a conflict of interest and can't handle the case. That $350 has to cover all legal work, even when the child is charged with a serious crime such as murder or rape. About 11,000 kids a year end up being represented by such appointed counsel.

. . .

Public defenders are hired through a highly selective national recruiting process. They are trained by senior attorneys and work in an office that rewards zealous advocacy with promotions and raises.

The county requires no vetting of appointed attorneys, nor does it have requirements for special training or experience. 

 

"Is 898-year federal sentence symbolic and meaningful or senseless and misguided?"

From Doug Berman at Sentencing Law and Policy:

I tend not to be a fan of legal fictions or of treating the imposition of hundreds of years in prison as just numbers on a page.  While I suspect that a life sentence was not possible because none of the charges carried such a statutory term, I also suspect that a potent message without such a crazy number would have been sent had Chief Judge Biery imposed a terms of, say, 100 years.

"Big Marijuana lobby fights legalization efforts"

From Politico:

Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.

Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut out competitors. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.

"U.S. Prison Populations Decline, Reflecting New Approach to Crime"

From the New York Times:

The prison population in the United States dropped in 2012 for the third consecutive year, according to federal statistics released on Thursday, in what criminal justice experts said was the biggest decline in the nation’s recent history, signaling a shift away from an almost four-decade policy of mass imprisonment.

. . .

Imprisonment rates in the United States have been on an upward march since the early 1970s. From 1978, when there were 307,276 inmates in state and federal prisons, the population increased annually, reaching a peak of 1,615,487 inmates in 2009.

But in recent years, tightened state budgets, plummeting crime rates, changes in sentencing laws and shifts in public opinion have combined to reverse the trend. Experts on prison policy said that the continuing decline appears to be more than a random fluctuation.

 

"U.S. Government Getting Password Information? (And Why the Story Raises More Questions Than Answers)"

From Orin Kerr at The Volokh Conspiracy, commenting on a piece at CNET. In part:

There are three distinct legal issues here, so let’s take them one by one.

(a) The first issue is obtaining the passwords pursuant to legal process. As long as the government has a valid warrant, the legal process should be sufficient as I indicate above. As I mention above, there are some interesting questions about whether the government needs a warrant or if it can obtain the information using less legal process. But those questions are pretty complicated, so I’ll spare you the details.

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Pryal on Reframing Sanity

Katie Rose Guest Pryal (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted Reframing Sanity: Scapegoating the Mentally Ill in the Case of Jared Loughner (RE/FRAMING IDENTIFICATIONS 159-168 (Michelle Ballif ed., 2013)) on SSRN. Here is the abstract:

Rhetoric scholars (Predergast, Leweicki-Wilson, Pryal) have examined the rhetorical disempowerment of the mentally ill, whose perceived lack of reason isolates them from public discourse. Such isolation can be explained using Kenneth Burke's theory of identification (and its "ironic counterpart," division) which shows how the discursive markers of "sane" and "insane" function to create an in-group, the sane, that relies upon the rhetorical and physical isolation of the insane. The article argues that the mentally ill make an ideal Burkean scapegoat, and that the criminal acts of a few mentally ill people provides the necessary justification for the scapegoating of the entire group, taking the case of Jared Loughner's shootings in Tucson, Arizona.

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Carson on Restoring Law in Comparative Law and Economics

Lindsey D. Carson (University of Toronto Faculty of Law) has posted Restoring Law in Comparative Law and Economics on SSRN. Here is the abstract:

This article examines the explanatory potential and limitations of the use of economic models and quantitative analytic techniques in comparative law. It suggests that the incorporation of comprehensive, rigorous legal analysis in both the design of empirical models and the interpretation of quantitative results can improve the accuracy of descriptive and prescriptive conclusions by addressing concerns related to variable selection; data selection, collection, and coding; the robustness of causal claims; and appreciation (or lack thereof) for the complex roles and functions of laws and their interactions with social norms and other institutions. This article argues that, while large-scale quantitative research methods can provide valuable information to inform policy decisions and strategies, the limitations of their explanatory and predictive powers must be acknowledged and tempered by context-specific, nuanced analysis of legal rules and systems, especially when guiding reform efforts within and across countries.

Acharya on Semantic Searches

Athul K. Acharya has posted Semantic Searches (Duke Law Journal, Forthcoming) on SSRN. Here is the abstract:

Courts and commentators have struggled with the problem of cabining digital searches while still allowing law enforcement sufficient latitude to be efficient and effective. Many solutions have been bandied about, including abandoning the plain view doctrine in the digital realm and requiring a search protocol in the warrant.

This Note examines the current proposals before proposing a solution of its own. The root of the problem with digital searches is that such searches have been wholly lacking in the constitutional requirement of particularity in the warrant. But the difficulty is in adequately describing, ex ante, 'where' to search within a corpus of seized data.

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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        839    Privacy Protests: Surveillance Evasion and Fourth Amendment Suspicion 
Elizabeth E. Joh, U.C. Davis School of Law, 
Date posted to database: June 26, 2013 

2        471    Safeguarding the Commander's Authority to Review the Findings of a Court-Martial 
Andrew S. Williams, Brigham Young University, 
Date posted to database: June 9, 2013                                                                                                                                                                                                                 

3        279    Administrative Segregation, Degrees of Isolation, and Incarceration: A National Overview of State and Federal Correctional Policies 
Judith Resnik, Jamelia Morgan, Alyssa Roxanne Work, Julia Spiegel, Hope Metcalf, Haran Tae, Samuel Oliker-Friedland, Brian Holbrook, 
Yale Law School, Independent, Independent, Yale University - Law School, Independent, Yale Law School, Independent, Independent, 
Date posted to database: July 1, 2013

4        220    Experiments in International Criminal Justice: Lessons from the Khmer Rouge Tribunal 
John D. Ciorciari, Anne Heindel, 
University of Michigan - Gerald R. Ford School of Public Policy, Documentation Center of Cambodia, 
Date posted to database: May 26, 2013 

5        198    A Daubert Analysis of Abusive Head Trauma/Shaken Baby Syndrome — Part II: An Examination of the Differential Diagnosis 
Sandeep K. Narang, John David Melville, Christopher S. Greeley,Shannon L. Carpenter, Betty Spivack,James D. Anderst, 
University of Texas at San Antonio - Health Science Center, UTHSCSA, UTHSC-Houston, Children's Mercy Hospital, Children's Mercy Hospital, Unaffiliated Authors - Independent, 
Date posted to database: July 4, 2013

6        179    Seven Ways Neuroscience Aids Law 
Owen D. Jones, 
Vanderbilt University - Law School & Dept. of Biological Sciences, 
Date posted to database: June 19, 2013 [10th last week]

7        167    The Impact of Neuroimages in the Sentencing Phase of Capital Trials
Michael J. Saks, N. J. Schweitzer, Eyal Aharoni, Kent Kiehl, 
Arizona State University (ASU) - Sandra Day O'Connor College of Law, Arizona State University, University of California, Santa Barbara - Department of Psychology, University of New Mexico, 
Date posted to database: June 6, 2013 [8th last week]

8        159    Should Law Improve Morality? 
Leslie Green, 
University of Oxford - Faculty of Law, 
Date posted to database: July 18, 2013 [new to top ten]

9        159    Judicial Gatekeeping of Suspect Evidence: Due Process and Evidentiary Rules in the Age of Innocence 
Keith A. Findley, 
University of Wisconsin Law School, 
Date posted to database: June 4, 2013 [6th last week]

10        139    Libertarian Paternalism, Path Dependence, and Temporary Law 
Richard H. McAdams, Tom Ginsburg,Jonathan S. Masur, 
University of Chicago Law School, University of Chicago - Law School, University of Chicago Law School, 
Date posted to database: June 19, 2013 [7th last week]

Stern on Blackstone's Commentaries

Simon Stern (University of Toronto - Faculty of Law) has posted William Blackstone, Commentaries on the Laws of England, Vol. 4 (1769) (Markus Dubber, ed., Foundational Texts in Modern Criminal Law (Oxford University Press), Forthcoming) on SSRN. Here is the abstract:

This book chapter discusses the fourth volume of Blackstone's Commentaries (1769), asking what contribution this volume makes to English criminal law. Issues addressed include the general structure of Blackstone's discussion, the relation between Blackstone's treatment and those of his precursors (especially Sir Matthew Hale and William Hawkins), the historical and literary range of Blackstone's references, the nature of his legal reform agenda, and his conception of the book's audience.

Harcourt on Beccaria's "On Crimes and Punishments"

Bernard E. Harcourt (University of Chicago - Department of Political Science) has posted Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law (Foundational Texts in Modern Criminal Law (ed. Markus Dubber; Foundation Press), Forthcoming) on SSRN. Here is the abstract:

Beccaria’s treatise "On Crimes and Punishments" (1764) has become a placeholder for the classical school of thought in criminology, for deterrence-based public policy, for death penalty abolitionism, and for liberal ideals of legality and the rule of law. A source of inspiration for Bentham and Blackstone, an object of praise for Voltaire and the Philosophies, a target of pointed critiques by Kant and Hegel, the subject of a genealogy by Foucault, the object of derision by the Physiocrats, rehabilitated and appropriated by the Chicago School of law and economics — these ricochets and reflections on Beccaria’s treatise reveal multiple dimensions of Beccaria’s work and provide an outline of a history of the foundations of modern criminal law. In becoming a classic text that has been so widely and varyingly cited, though perhaps little read today, "On Crimes and Punishments" may be used as a mirror on the key projects over the past two centuries and a half in the domain of penal law and punishment theory — and this essay hopes to contribute, in a small way, to such an endeavor. In the end, we may learn as much about those who have appropriated and used Beccaria than we would about Beccaria himself — perhaps more.

Brophy on the Nat Turner Trials

Alfred L. Brophy (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted The Nat Turner Trials (91 North Carolina Law Review 1817-80 June 2013) on SSRN. Here is the abstract:

“The Nat Turner Trials” locates the trials of slaves in the wake of the Nat Turner rebellion in the context of common, and statutory, law and extra-legal responses to slavery in Virginia and North Carolina during the early 1830s. The Article shows how trials were part of the whole system of slavery, held together by norms of white supremacy promulgated in the press, the pulpit, and on plantations. Decisions from local courts to appellate courts gave broad power to slave owners to control enslaved people. There was little done in defense of slaves, though in some ways the states’ criminal procedure statutes and the actions of some slave owners and defense lawyers may have helped to limit the number of convictions.

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Slobogin on Chesterman on information collection and national security

Christopher Slobogin (Vanderbilt) has this piece at Jotwell on Simon Chesterman, One Nation Under Surveillance:  A New Social Contract to Defend Freedom Without Sacrificing Liberty (Oxford University Press, 2011)

"Petition: Save Federal Defender Services"

The petition, and information on how to sign, are at Prawfsblawg.

Rachlinski, Guthrie & Wistrich on Contrition in the Courtroom

Jeffrey J. Rachlinski , Chris Guthrie and Andrew J. Wistrich (Cornell Law School , Vanderbilt University - Law School and Independent) have posted Contrition in the Courtroom: Do Apologies Affect Adjudication? (Cornell Law Review, Vol. 98, No. 1189, 2013) on SSRN. Here is the abstract:

Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to a judge is often unhelpful and can even be harmful.

"House Defeats Effort to Rein In N.S.A. Data Gathering"

From the New York Times:

WASHINGTON — A deeply divided House defeated legislation Wednesday that would have blocked the National Security Agencyfrom collecting vast amounts of phone records, handing the Obama administration a hard-fought victory in the first Congressional showdown over the N.S.A.’s surveillance activities since Edward J. Snowden’s security breaches last month.

The 205-to-217 vote was far closer than expected and came after a brief but impassioned debate over citizens’ right to privacy and the steps the government must take to protect national security. It was a rare instance in which a classified intelligence program was openly discussed on the House floor, and disagreements over the  program led to some unusual coalitions.

"Cop Fired for Speaking Out Against Ticket and Arrest Quotas"

From Reason:

Hanners blew the whistle on the department’s tactics and was eventually fired for refusing to comply and keep quiet. He says that each officer was required to make 100 contacts each month, which included tickets, arrests, field interviews, and warnings. This equates to 72,000 contacts a year in a 50,000 person town. His claims are backed up by audio recordings of his superiors he made. The Auburn police department declined requests to be interviewed for this story.

"Sequestration's Biggest Victim: The Public Defender System"

From the Huffington Post:

The public defender system hasn't just been stripped bare by sequestration, its bones have been chiseled away as well. There has been a 9 percent reduction in the roughly $1 billion budget for federal public defender's offices, while federal defenders in more than 20 states are planning to close offices. Careers have been ended and cases have been delayed. All of it has occurred in the name of deficit reduction -- and yet, for all the belt-tightening being demanded of the nation's public defenders, money is not actually being saved.

When federal public defenders aren’t able to take a case because of a conflict, or because their workload is too great, the job falls to private court-appointed attorneys known as Criminal Justice Act panel attorneys. Those lawyers are paid from the same pool of money as federal public defenders, but they cost much more and, according to some studies, are less effective.

 

"White House, GOP push against amendment limiting NSA powers"

From the L.A. Times:

WASHINGTON -- The Obama Administration has joined with GOP leaders in a furious lobbying effort against a measure up for a vote late Wednesday in the House of Representatives that would curtail the National Security Agency’s bulk collection of U.S. calling records revealed last month by Edward Snowden.

The House is expected to vote this evening on an amendment by Rep. Justin Amash, (R-Michigan), a libertarian Republican who has enlisted some liberal Democrats to his cause—that would require the government to identify a person under investigation before it is able to collect records of calls made to and from that person and his associates.