CrimProf Blog

"Injunction granted against 6 gangs in Echo Park"

From the Los Angeles Times:

A Los Angeles County court last week granted a permanent injunction against six gangs in Echo Park and its surrounding neighborhoods, according to the city attorney's office.

The injunction prohibits known members of the gangs from associating with each other in public, possessing firearms or narcotics, or possessing alcohol in public, officials said. It also prohibits gang members from possessing aerosol paint containers, felt-tip markers and other items that can be used to apply graffiti.

. . .

A listed gang member will be removed automatically from the injunction after five years if the person does not engage in criminal behavior, officials said.

. . .

Critics of the injunction said that it was coming at a time when crime rates were down and that it was too difficult for former gang members to be removed from an injunction list even if they stayed out of trouble.

MacDonald on Terrorism Prevention and Investigation Measures

Stuart K. MacDonald (Swansea University - School of Law) has posted The Role of the Courts in Imposing Terrorism Prevention and Investigation Measures: Normative Duality and Legal Realism (Criminal Law and Philosophy (2013)) on SSRN. Here is the abstract:

This article argues that the courts, not the Home Secretary, should be empowered to issue Terrorism Prevention and Investigation Measures (TPIMs). It explains that at the heart of the debate are three questions: whether measures like TPIMs should be viewed primarily from the perspective of security or liberty; how we should conceive the executive and the courts; and the empirical question of how these two arms of government answer these questions. The non-mechanistic nature of legal reasoning means that legal reasons may be constructed to fit one’s normative viewpoint on each of the first two questions. Importantly, however, the case law on judicial scrutiny of control orders consistently demonstrates that the courts themselves regard TPIMs as being primarily a restriction on liberty, which require a fair hearing before an independent court. Whilst this does provide some protection of individual rights, the nature of law as an unfinished practice means that for stable protection of individual rights judicial independence must be promoted and nurtured in both the legal and political realms. The failure of the Terrorism Prevention and Investigation Measures Act 2011 to vest the power to issue TPIMs in the courts thus represents a missed opportunity to secure political endorsement of enhanced legal protection of individual liberty in cases involving national security.

Stoughton on Policing Facts

Seth W. Stoughton (Harvard Law School) has posted Policing Facts (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court’s understanding of police practices plays a significant role in the development of the constitutional rules that regulate officer conduct. As it approaches the questions of whether to engage in constitutional regulation and what form of regulation to adopt, the Court discusses the environment in which officers act, describes specific police practices, and explains on what motivates officers. Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too often gets it wrong.

This Article explores the influence that the Court’s conception of policing has on the creation and modification of constitutional norms.

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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	5191	Motivated Numeracy and Enlightened Self-Government  Dan M. Kahan, Paul Slovic, Ellen Peters, Erica Cantrell Dawson,  Yale University - Law School, Ohio State University - Psychology Department, Cornell University, Decision Research,  Date posted to database: September 8, 2013
2	717	Evidence-Based Sentencing and the Scientific Rationalization of Discrimination  Sonja B. Starr,  University of Michigan Law School,  Date posted to database: September 1, 2013
3	316	The Next Generation Communications Privacy Act  Orin S. Kerr,  George Washington University - Law School,  Date posted to database: July 30, 2013
4	232	Becker and Foucault on Crime and Punishment  Gary S. Becker, Bernard E. Harcourt, Francois Ewald,  University of Chicago - Department of Economics, Conservatoire National des Arts et Métiers, University of Chicago,  Date posted to database: September 8, 2013 [7th last week]
5	214	'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships  Michele LaVigne, Gregory Van Rybroek,  University of Wisconsin Law School, Mendota Mental Health Institute,  Date posted to database: August 22, 2013 [4th last week]
6	173	Beccaria's 'On Crimes and Punishments': A Mirror on the History of the Foundations of Modern Criminal Law  Bernard E. Harcourt,  University of Chicago,  Date posted to database: July 22, 2013 [5th last week]
7	170	Ripped from the Headlines: Juror Perceptions in the 'Law & Order' Era  Adam B. Shniderman,  University of California, Irvine - Department of Criminology, Law and Society,  Date posted to database: August 30, 2013 [new to top ten]
8	158	Attorney Competence in an Age of Plea Bargaining...and Econometrics  Jeffrey Bellin,  College of William and Mary - Marshall-Wythe School of Law,  Date posted to database: August 13, 2013
9	151	The Nat Turner Trials  Alfred L. Brophy,  University of North Carolina (UNC) at Chapel Hill - School of Law,  Date posted to database: July 20, 2013
10	138	Damages and Reliance under Section 10(b) of the Exchange Act  Joseph Grundfest,  Stanford University Law School,  Date posted to database: August 30, 2013 [new to top ten]

 

Lambert v. California: "DC Court of Appeals Strikes Down Law Making It a Felony to Be Present in a Car When There is a Gun in the Car"

Orin Kerr links to this "very interesting decision" at The Volokh Conspiracy. The opinion is one of the few you can find relying on Lambert v. California to recognize an ignorance of law defense.

"N.S.A. Gathers Data on Social Connections of U.S. Citizens"

From The New York Times:

WASHINGTON — Since 2010, the National Security Agency has been exploiting its huge collections of data to create sophisticated graphs of some Americans’ social connections that can identify their associates, their locations at certain times, their traveling companions and other personal information, according to newly disclosed documents and interviews with officials.

The spy agency began allowing the analysis of phone call and e-mail logs in November 2010 to examine Americans’ networks of associations for foreign intelligence purposes after N.S.A. officials lifted restrictions on the practice, according to documents provided by Edward J. Snowden, the former N.S.A. contractor.

"Senators Push to Preserve N.S.A. Phone Surveillance"

From the New York Times:

WASHINGTON — The Senate Intelligence Committee appears to be moving toward swift passage of a bill that would “change but preserve” the once-secret National Security Agency program that is keeping logs of every American’s phone calls, Senator Dianne Feinstein, the California Democrat who leads the panel, said Thursday.

. . .

The measure would require public reports of how often the N.S.A. had used the calling log database, she said. It would also reduce the number of years — currently five — that the domestic calling log data is kept before it is deleted. It would also require the N.S.A. to send lists of the phone numbers it searches, and its rationale for doing so, to the Foreign Intelligence Surveillance Court for review.

By contrast, a rival bill drafted by skeptics of government surveillance, including two members of the committee, Senators Ron Wyden of Oregon and Mark Udall of Colorado, would ban the mass call log collection program.

That more extensive step is unlikely to pass the committee. Ms. Feinstein contended that “a majority of the committee” believed that the call log program was “necessary for our nation’s security.”

 

Robinson & Barton on the Structure and Limits of Criminal Law

Paul H. Robinson (pictured) and Joshua Samuel Barton (University of Pennsylvania Law School and Sullivan & Cromwell - New York Headquarters) have posted The Structure and Limits of Criminal Law (The Structure and Limits of Criminal Law, Ashgate, Forthcoming) on SSRN. Here is the abstract:

The forthcoming book The Structure and Limits of Criminal Law (Ashgate) collects and reprints classic articles on three topics: the conceptual structure of criminal law doctrine, the conduct necessary and that sufficient for criminal liability, and the offender culpability and blameworthiness necessary and that sufficient for criminal liability. The collection includes articles by H.L.A. Hart, Sanford Kadish, George Fletcher, Herbert Packer, Norval Morris, Gordon Hawkins, Andrew von Hirsch, Bernard Harcourt, Richard Wasserstrom, Andrew Simester, John Darley, Kent Greenawalt, and Paul Robinson. This essay serves as an introduction to the collection, explaining how each article fits into the larger debate and giving a brief summary of each that will orient the (primarily student) reader.

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"Arrests Made in Colorado Outbreak of Listeria"

From The New York Times:

DENVER — The owners of a Colorado cantaloupe farm were arrested on Thursday on charges stemming from a 2011 listeria epidemic that killed 33 people in one of the nation’s deadliest outbreaks of food-borne illness.

Federal prosecutors said the owners, the brothers Eric and Ryan Jensen, were arrested on misdemeanor charges of introducing adulterated food into interstate commerce. The Jensens’ lawyer did not immediately return a call seeking comment.

Prosecutors said the Food and Drug Administration and theCenters for Disease Control and Prevention had determined that the Jensens had not adequately cleaned the cantaloupe.

 

Cassidy on a Prosecutor's Ethical Duty to Support Sentencing Reform

R. Michael Cassidy (Boston College Law School) has posted (Ad)ministering Justice: A Prosecutor's Ethical Duty to Support Sentencing Reform (Loyola University Chicago Law Journal, Vol. 45, No. 4, 2014) on SSRN. Here is the abstract:

This article stakes out an ethical argument in favor of prosecutorial leadership on sentencing reform. Prosecutors have a duty as “ministers of justice” to go beyond seeking appropriate conviction and punishment in individual cases, and to think about the delivery of criminal justice on a systemic level ― promoting criminal justice policies that further broader societal ends. While other authors have explored the tensions between a prosecutor’s adversarial duties and “minister of justice” role in the context of specific litigation, few have explored what it means to be an “administer” of justice in the wider political arena. The author sets forth a new construct of what is required for a prosecutor to be a neutral, nonpartisan “administer of justice” in her legislative and public advocacy activities. 

Applying this paradigm to the ongoing national debate about sentencing reform, the author argues that a prosecutor’s administrative responsibilities as a leader in the criminal justice establishment and her fiduciary responsibilities as a representative of the sovereign should compel her to join in the effort to repeal mandatory minimum sentencing provisions for most drug and non-violent offenses.

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Cohen & Dolan on Discovery and Habeas Deference

Rachel Cohen and Krista A. Dolan (Georgetown University Law Center and American University - Washington College of Law) have posted Drowned Out Without Discovery: Postconviction Procedural Inadequacy in an Era of Habeas Deference (Criminal Law Practitioner, 2014, Forthcoming) on SSRN. Here is the abstract:

This paper discusses discovery mechanisms in Kentucky and the existing inadequacies of those mechanisms. It further discusses the need, in light of recent Supreme Court decisions and federal statute, to expand access to discovery in the postconviction context. It considers the “fast-track” provision of the Anti-Terrorism and Effective Death Penalty Act and its failure to address a postconviction litigant’s access to discovery. It also discusses the need for adequate postconviction discovery procedures, as well as an overview of existing state law. This paper analyzes Kentucky’s Open Records Act and associated issues with obtaining records via open records procedures, and finally, it discusses potential options for implementing a mechanism providing postconviction litigants with meaningful access to discovery.

Bennardo on Mandatory Minimums and Sentencing for Multiple Counts

Kevin Bennardo (Louisiana State University, Baton Rouge - Paul M. Hebert Law Center) has posted Sweeping Up Guideline Floors: The Misguided Policy of Amendment 767 to the U.S. Sentencing Guidelines Manual (60 UCLA Law Review Discourse 60 (2013)) on SSRN. Here is the abstract:

Amendment 767 to the U.S. Sentencing Guidelines Manual, effective November 1, 2012, significantly modified the calculation of Guidelines ranges for federal defendants convicted of multiple counts where at least one of the counts is subject to a mandatory minimum sentence. The amendment, which altered section 5G1.2 of the Guidelines and its commentary, provides that the minimum statutory sentence for any count in a multicount conviction raises the floor of the Guidelines range for all counts. 

The U.S. Sentencing Commission set forth two reasons for Amendment 767: to resolve a circuit split and to make it easier for district courts to calculate departures and variances by reducing the likelihood of arriving at multiple Guidelines ranges.

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"New trial for woman sentenced to 20 years for warning shot"

From UPI.com:

A Florida appeals court has ordered a new trial for a woman who was sentenced to 20 years in prison for firing a warning shot to scare off an abusive husband.

Although no one was injured in the August 2010, shooting, State Attorney Angela Corey prosecuted Alexander on an aggravated assault charge that carried a 20-year mandatory minimum sentence because a firearm was involved. . . .

The First District Court of Appeal ruled Thursday "the jury instructions on self-defense were erroneous" and ordered a retrial, U.S. News & World Report said.

. . .

Alexander's defense lawyer tried to use the state's "stand your ground" law, but a judge rejected that argument before her trial.

Read more: http://www.upi.com/Top_News/US/2013/09/26/New-trial-for-woman-sentenced-to-20-years-for-warning-shot/UPI-16491380218220/#ixzz2g2YDkbuj

McNeal & Warth on Seniors, Housing, and Sex Offense Registration

Mary Helen McNeal and Patricia Warth (Syracuse University College of Law and Center for Community Alternatives) have posted Barred Forever: Seniors, Housing and Sex Offense Registration (Kansas Journal of Law and Public Policy, Vol. 22, No. 2, p. 317, 2013) on SSRN. Here is the abstract:

Since the early 1990s, the federal government, states, and municipalities have enacted a series of laws and restrictions making it increasingly difficult for people convicted of a sex offense to reintegrate into their communities. These laws and restrictions include sex offender registries, community notification requirements, residency restrictions, and statutory bars to employment, public assistance, and housing. An examination of empirical research reveals that recidivism rates decline with age and length of time in the community after conviction, and that community notification policies and residency restrictions are destined to fail because such polices are designed to protect the public against repeat offenders and adults who prey on children unknown to them, but most sexual crimes are committed by first-time offenders, and most crimes against children are perpetrated by people well known to them. Research also demonstrates that stable housing is essential to reintegration into the community for those convicted of sex offenses, and further reduces re-offense rates.

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"Lengthy discussion of "Why Scandinavian Prisons Are Superior""

Douglas Berman has this post at Sentencing Law & Policy, excerpting an article from The Atlantic. 

Rosenberg on Acts and Omissions

Roni M. Rosenberg (Carmel Academic Center - Law School) has posted Two Models of 'Absence of Movement' in Criminal Jurisprudence (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

The distinction between act and omission is deeply embedded in our legal thinking. In criminal jurisprudence, in order to convict someone of committing an act that caused harm, any act will suffice .On the other hand, to convict based on an omission that caused harm it is necessary to identify a duty to act on the part of the defendant, such that breach of that duty caused the harm. 

The generally accepted approach in criminal jurisprudence is to define act and omission under the bodily movement test. This essay critiques that approach and points to the fact that American jurisprudence is not uniform with regard to the definition of act and omission in the criminal-law context. The essay suggests that this lack of uniformity springs from the differing rationales that underpin the distinction between act and omission in criminal jurisprudence. 

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Ater, Givati & Rigbi on Organizational Structure, Police Activity, and Crime

Itai Ater , Yehonatan Givati and Oren Rigbi (Tel Aviv University - The Leon Recanati Graduate School of Business Administration , Hebrew University of Jerusalem - Faculty of Law and Ben-Gurion University of the Negev) have posted Organizational Structure, Police Activity and Crime on SSRN. Here is the abstract:

We examine the consequences of an organizational reform in Israel that transferred the responsibility for housing arrestees from the Police to the Prison Authority. Using the staggered introduction of the reform in different regions of the country, we document strong evidence that this organizational change led to an increase of 11 percent in the number of arrests and to a decrease of 4 percent in the number of reported crimes, with these effects concentrated in more minor crimes. The reform also led to a decrease in the quality of arrests, measured by the likelihood of being charged following an arrest. These findings are consistent with the idea that the reform externalized the cost of housing arrestees from the Police's perspective, and therefore led the Police to increase its activity against crime.

Kim on Insider Trading as Private Corruption

Sung Hui Kim (UCLA School of Law) has posted Insider Trading as Private Corruption (61 UCLA Law Review (2014), Forthcoming) on SSRN. Here is the abstract:

Deep confusion reigns over federal insider trading law, including even what the essential elements of an insider trading violation are. On the one hand, this uncertainty seems to have encouraged the Securities and Exchange Commission (SEC) and some lower courts to push the boundaries well beyond the limits previously established by the U.S. Supreme Court. On the other hand, influential academics continue to express normative skepticism about why insider trading is even banned at all. Without a satisfying theory of what's wrong with insider trading, doctrinal development in the lower courts has reached a crisis, with the economic stakes only getting higher. This Article offers a new theory of insider trading law. It is a form of private corruption, defined as the use of an entrusted position for self-regarding gain. The corruption theory not only provides answers to the normative skeptics but, as compared to the two leading alternatives, the property theory and the unjust enrichment theory, better fits the core features of the received doctrine. And, upon close analysis, the corruption theory reveals an implicit coherence to the doctrine that was previously unseen. Even better, the corruption theory provides relatively concrete guidance in hard cases, which is the sort of pragmatic theory that the SEC and the courts desperately need.

"Victims Push Laws to End Online Revenge Posts"

From the New York Times:

Revenge porn sites feature explicit photos posted by ex-boyfriends, ex-husbands and ex-lovers, often accompanied by disparaging descriptions and identifying details, like where the women live and work, as well as links to their Facebook pages. The sites, which are proliferating, are largely immune to criminal pursuit. But that may be changing. California lawmakers this month passed the first law aimed at revenge porn sites.

. . .

Eugene Volokh, a First Amendment scholar at the University of California, Los Angeles, said he saw no constitutional obstacle to a law written narrowly to address naked or sexual images distributed without permission.

“I think that’s a kind of invasion of privacy that the courts would say can be prohibited,” he said.

An example of what such a law might look like has been drafted by a law professor at the University of Miami, Mary Anne Franks, and posted on the Web site endrevengeporn.org, founded by Ms. Jacobs.

 

"When Prosecutor Turns Thug": A Debate on Mandatory Minimums

Bill Otis has this post at Crime & Consequences, critiquing Michael Cassidy's argument that prosecutors have an ethical obligation to oppose mandatory minimums. In part:

I have from time to time criticized the increasing tendency of liberals to use muscle when persuasion falls flat.  Prof. Cassidy is of course free to hold his beliefs and vocally to argue for them, as others, particularly in academia, have done.  One would hope he would accommodate the freedom of those still practicing as prosecutors to think and argue in opposition. But by branding their disagreement asunethical  --  and thus necessarily as sanctionable by the bar  --  he would, not only besmirch their integrity, but use the power of the court to punish them and coerce their genuflection.