CrimProf Blog

Opinion on firearms possession statute

Justice Sotomayor delivered the opinion of the Court in United States v. Castleman. Justice Alito, joined by Justice Thomas, filed an opinion concurring in the judgment.

"Obama to Call for End to N.S.A.’s Bulk Data Collection"

From The New York Times:

WASHINGTON — The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.

Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order.

Symposium Honoring Professor Myrna S. Raeder

On Friday, November 14, 2014, the Southwestern Law Review will host a symposium honoring the work of renowned gender equity advocate and beloved Southwestern Law School Professor Myrna S. Raeder. The subject is "Locking Up Females, Failing to Protect Them, and Punishing Their Children and Families: Can A Human Rights Approach Eliminate Gender Bias That Is Currently Treated as Gender Neutral?" The press release follows the jump.

Continue reading

Schumacher on Sentencing in Tax Cases after Booker

Scott A. Schumacher (University of Washington - School of Law) has posted Sentencing in Tax Cases after Booker: Striking the Right Balance between Uniformity and Discretion (Villanova Law Review, Forthcoming) on SSRN. Here is the abstract:

It has been nearly ten years since the Supreme Court’s seminal decision in United States v. Booker, in which the Court invalidated the mandatory application of the United States Sentencing Guidelines. In the cases that followed, the Court addressed subsidiary issues regarding the application of the Guidelines and the scope of appellate review. However, despite — or perhaps because of — these opinions, there is little consensus regarding the status and extent of appellate review, as well as the discretion afforded sentencing courts. More troubling, what consensus there is seems to permit judges to impose any sentence they wish, as long as the appropriate sentencing procedures are followed. As a result, we are in danger of returning to “the shameful lack of parity, which the Guidelines sought to remedy.”

Continue reading

Hollway on A Systems Approach to Error Reduction in Criminal Justice

John Hollway (University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice) has posted A Systems Approach to Error Reduction in Criminal Justice on SSRN. Here is the abstract:

The “systems approach” has been used, improved, and refined over time to improve safety and reduce errors in a variety of complex, high-risk industries, including health care, aviation, and manufacturing, among others. Such an approach targets the system for improvement rather than specific individuals within the system, and seeks to provide an environment that maximizes each participant’s ability to act safely and in a way that achieves the goals of the system. It prizes a non-punitive culture of disclosure to identify errors, gathers and applies data to understand the causes of the error, and tests systems changes to prevent future errors. This focus on system improvement, rather than on individual punishment or blame, unites all participants around objective criteria and allows each participant to do his or her job more efficiently, accurately and safely.

Continue reading

"Hawaii Law Lets Police Have Sex With Prostitutes"

From AP, via TPM News:

HONOLULU (AP) — Honolulu police officers have urged lawmakers to keep an exemption in state law that allows undercover officers to have sex with prostitutes during investigations, touching off a heated debate.

Authorities say they need the legal protection to catch lawbreakers in the act. Critics, including human trafficking experts and other police, say it's unnecessary and could further victimize sex workers, many of whom have been forced into the trade.

Police haven't said how often — or even if — they use the provision. And when they asked legislators to preserve it, they made assurances that internal policies and procedures are in place to prevent officers from taking advantage of it.

But expert Derek Marsh says the exemption is "antiquated at best" and that police can easily do without it.

Hopkins & Neff on Campus Police

Jamie Patrick Hopkins and Kristina Neff (The American College and DLA Piper) have posted Jurisdictional Confusion that Rivals Erie: The Jurisdictional Limits of Campus Police (75 Mont. L. Rev. 123 (2014)) on SSRN. Here is the abstract:

This article examines the scope of lawful campus police jurisdiction and the power of campus police officers. Police jurisdiction has become a particularly thorny, though increasingly relevant, issue as colleges and universities continue to experience both intense population and physical growth culminating in a large amount of distance learning and commuting students, challenging the historical concept of an insular campus. As such, very important constitutional, procedural, and other legal questions are raised. For example, can a campus police officer pull over and arrest an individual off campus for a DUI? What happens when the school is a private religious university?

"Police Brutality and Deaf People"

From the ACLU Blog of Rights:

Many deaf people use their eyes and hands to communicate, as opposed to hearing people who more often rely on their ears and voice. Body language and facial expression are key components of sign language. As such, it is not uncommon for people who communicate through sign to create a bit of space between themselves and the other person to ensure that the receiver has full view of the hands, body and face. Officers who misunderstand these and other key components of Deaf culture and communication, may feel threatened and choose to retaliate against a deaf person. When police departments ensure that officers are aware of and sensitive to varied modes of communication used by deaf people, this will not only protect the deaf community, but also increase the safety of officers.

Bennett & Robbins on Judges' Views on Allocution in Sentencing

Mark W. Bennett and Ira P. Robbins (U.S. District Court (Northern District of Iowa) and American University - Washington College of Law) have posted Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing (Alabama Law Review, Vol. 65, No. 3, 2014) on SSRN. Here is the abstract:

Allocution — the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing — is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions — and many others — are answered directly in this first-ever study of judges’ views and practices regarding allocution.

Continue reading

"Durham Police bonus payments to informants could violate defendants’ rights "

The article is at IndyWeek, noting that defense attorneys were not told of the system. Hat tip: The Watch.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Jennings v. Stephens: Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	500	Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing  Mark W. Bennett and Ira P. Robbins  U.S. District Court (Northern District of Iowa) and American University - Washington College of Law  Date posted to database: 13 Mar 2014 [2nd last week]
2	339	The Due Process Exclusionary Rule  Richard M. Re  Yale Law School  Date posted to database: 28 Feb 2014 [new to top ten]
3	227	Will There Be a Neurolaw Revolution?  Adam J. Kolber  Brooklyn Law School  Date posted to database: 19 Feb 2014 [8th last week]
4	221	Flawed Convictions: 'Shaken Baby Syndrome' and the Inertia of Injustice: Introduction  Deborah Tuerkheimer  DePaul University - College of Law  Date posted to database: 3 Mar 2014
5	207	Bias in the Shadows of Criminal Law: The Problem of Implicit White Favoritism  Robert J. Smith, Justin D. Levinsonand Zoe Robinson  University of North Carolina School of Law, University of Hawaii at Manoa - William S. Richardson School of Law and DePaul University College of Law  Date posted to database: 27 Jan 2014 [3rd last week]
6	199	Intellectual Property and the Presumption of Innocence  Irina D. Manta  Hofstra University - Maurice A. Deane School of Law  Date posted to database: 5 Feb 2014
7	198	The Illusory Eighth Amendment  John F. Stinneford  University of Florida Levin College of Law  Date posted to database: 7 Feb 2014 [5th last week]
8	182	Law and Neuroscience  Owen D. Jones, Jeffrey D. Schall andFrancis X. Shen  Vanderbilt University - Law School & Dept. of Biological Sciences, Vanderbilt University - Department of Psychology and University of Minnesota Law School  Date posted to database: 19 Mar 2014 [new to top ten]
9	170	Willful Blindness, Plausible Deniability and Tippee Liability: SAC, Steven Cohen, and the Court's Opinion in Dirks  Joan MacLeod Heminway  University of Tennessee College of Law  Date posted to database: 9 Feb 2014
10	161	Putting the Trial Penalty on Trial  David Abrams  University of Pennsylvania Law School  Date posted to database: 4 Feb 2014

"Unique skill set helps save man from death row"

From CNN.com:

As D'Ambrosio languished on death row during the appeal process, Kookoothe agreed to look at his case. The priest saw a red flag, informed by his medical training.

He was stunned to learn that Klann's knife wounds were inconsistent with Espinoza's story that Klann screamed after his throat was cut.

. . .

Kookoothe got a local newspaper reporter, Martin Kuz, interested in the case. Klann's father told Kuz that, shortly before his son's death, Klann had been subpoenaed in a rape case. Kuz told Kookoothe what he had learned.

That's when Kookoothe's legal training came in handy.

Kookoothe pored through case files looking for information about the rape case. His search revealed a stunning fact: the man accused in the rape case for which Klann had been subpoenaed to testify was Paul "Stoney" Lewis, the same man Espinoza said they were looking for the night of the murder.

Rosenberg on Drag Racing, Assumption of Risk, and Homicide

Roni M. Rosenberg (Carmel Academic Center - Law School) has posted Drag Racing, Assumption of Risk, and Homicide (51(2) Criminal Law Bulletin) on SSRN. Here is the abstract:

U.S. courts are divided with regard to the question of whether it is appropriate to convict a participant in a drag race of homicide for the death of another participant. The context is not one in which decedent is killed as a result of colliding with the defendant; rather the death is cause by a collision with a third party or a guard rail. The controversy revolves around on central question: whether there is a causal connection between defendant's participation in the race and the death of decedent. Courts that convict of manslaughter hold that such a causal connection exists, while courts that acquit believe that there is the need for a more direct causal connection in order to convict for manslaughter.

This essay emphasizes the fact that such instances raise questions that reaches to the roots of criminal jurisprudence, questions that were not addressed in these decisions: Who owns the protected interest at the core of manslaughter? What is the content of that interest? What is the significance of the autonomous agreement of the injured party to assume a risk that may lead to death?

Continue reading

Nelson on Binge Drinking, Alcohol Prices, and Alcohol Taxes

Jon P. Nelson (Pennsylvania State University - College of the Liberal Arts - Department of Economic) has posted Binge Drinking, Alcohol Prices, and Alcohol Taxes: A Systematic Review of Results for Youth, Young Adults, and Adults from Economic Studies, Natural Experiments, and Field Studies on SSRN. Here is the abstract:

Background: Heavy episodic (“binge”) drinking of alcohol has serious public health implications, especially for youth and young adults. However, previous reviews have failed to address in a comprehensive manner the effects of alcohol prices and taxes on binge drinking by gender and age group. Methods: A systematic review is performed for possible effects of alcohol prices and taxes on binge drinking for three age groups. Outcomes examined include binge participation, intensity and frequency. Fifty-six relevant economic studies were recovered, with results distributed equally among three age groups. Also recovered were five natural experiments for tax reductions and six field studies, which increased the country coverage.

Continue reading

"Prosecutors too often abuse unrestrained powers"

That's the subhead for a piece by Glenn Harlan Reynolds in USA Today. In part:

Here's how things all-too-often work today: Law enforcement decides that a person is suspicious (or, possibly, just a political enemy). Upon investigation into every aspect of his/her life, they find possible violations of the law, often involving obscure, technical statutes that no one really knows. They then file a "kitchen-sink" indictment involving dozens, or even hundreds of charges, which the grand jury rubber stamps. The accused then must choose between a plea bargain, or the risk of a trial in which a jury might convict on one or two felony counts simply on a "where there's smoke there must be fire" theory even if the evidence seems less than compelling.

. . .

[W]ith today's broad and vague criminal statutes at both the state and federal level, everyone is guilty of some sort of crime, a point that Harvey Silverglate underscores with the title of his recent book, Three Felonies A Day: How The Feds Target The Innocent, that being the number of felonies that the average American, usually unknowingly, commits.

"Toyota Is Fined $1.2 Billion for Concealing Safety Defects"

From The New York Times:

Eric H. Holder Jr., the United States attorney general, talked in impassioned tones on Wednesday about Toyota’s behavior in hiding safety defects from the public, calling it “shameful” and a “blatant disregard” for the law. A $1.2 billion criminal penalty, the largest ever for a carmaker in the United States, was imposed.

. . .

Investigators discovered internal Toyota documents that acknowledged serious problems with its vehicles. They matched those documents with the company’s public statements, which played down the problems, according to one federal law enforcement official who spoke on condition of anonymity.

“That’s when we knew for sure that this was a criminal fraud case,” the official said. “That’s what you’d call a smoking gun.”

Klingele on Sentencing Commissions and Imposition and Enforcement of Release Conditions

Cecelia M. Klingele (University of Wisconsin Law School) has posted The Role of Sentencing Commissions in the Imposition and Enforcement of Release Conditions (Federal Sentencing Reporter, Vol. 26, 2014) on SSRN. Here is the abstract:

Nationally, a substantial proportion of prison admissions are due to revocations of probation or post-prison release, rather than new convictions and sentences. Sentence revocations have helped fuel U.S. prison growth despite a significant decline in crime across the nation. The process for deciding who is revoked and who is not is a discretionary one that in most jurisdictions is wholly unguided by law or policy. As a result, decisions are often made haphazardly, and without regard to risk the offender poses to the community. Although many states now realize that the legal and policy problems surrounding sentence revocations are urgent and require new thinking and new solutions, there are few successful innovations upon which to build.

Continue reading

"Courts Cut Time Between Arrest And Arraignment"

From The New York Times:

[I]n the last year and a half, New York has made remarkable strides. For the first time since 2001, the average time it takes to bring a defendant before a judge for arraignment fell last year to below 24 hours in all five boroughs. The 24-hour benchmark had been set by the state’s highest court in a pivotal 1991 decision, but it proved mostly elusive, especially in the Bronx and Brooklyn.

The solution, according to many criminal justice officials, can largely be traced to a computer-tracking initiative spearheaded by Judge George A. Grasso, a former first deputy commissioner in the Police Department who was put in charge of arraignment courts in April 2012 — as well as the discovery of a cache of unused scanners that were bought to track case files.

Parry & Richardson on The Constitution and the Future of Criminal Justice in America

John T. Parry and L. Song Richardson (Lewis & Clark Law School and University of Iowa - College of Law) have posted The Constitution and the Future of Criminal Justice in America (Cambridge University Press, 2013) on SSRN. Here is the abstract:

This document contains the table of contents, notes on contributors, and introduction to The Constitution and the Future of Criminal Justice in America.

The chapters in this collection address a wide range of issues relating to criminal justice, from familiar topics such as the continuing problem of race and criminal justice, the right to counsel, and the exclusionary rule, to cutting edge issues relating to the intersection of criminal law with social science and neuroscience, to topics that are often overlooked in collections of this nature: immigration, terrorism, national security and transnational crime. Importantly, the goal of each chapter is not to rehash the past. Instead, each chapter looks forward to consider the future implications of legal doctrine and criminal justice policy.