CrimProf Blog

Donohue on the Death Penalty

John J. Donohue III (Stanford Law School) has posted An Empirical Evaluation of the Connecticut Death Penalty System Since 1973: Are There Unlawful Racial, Gender, and Geographic Disparities? (Journal of Empirical Legal Studies, 11:4, December 2014) on SSRN. Here is the abstract:

This article analyzes the 205 death-eligible murders leading to homicide convictions in Connecticut from 1973-2007 to determine if discriminatory and arbitrary factors influenced capital outcomes. A regression analysis controlling for an array of legitimate factors relevant to the crime, defendant, and victim provides overwhelming evidence that minority defendants who kill white victims are capitally charged at substantially higher rates than minority defendants who kill minorities, that geography influences both capital charging and sentencing decisions (with the location of a crime in Waterbury being the single most potent influence on which death-eligible cases will lead to a sentence of death), and that the Connecticut death penalty system has not limited its application to the worst of the worst death-eligible defendants. The work of an expert hired by the State of Connecticut provided emphatic, independent confirmation of these three findings, and found that women who commit death-eligible crimes are less likely than men to be sentenced to death. 

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Colgan on Paying for Gideon

Beth A. Colgan (University of California, Los Angeles (UCLA) - School of Law) has posted Paying for Gideon (Iowa Law Review, Vol. 99, p. 1929, 2014) on SSRN. Here is the abstract:

To protect the “noble ideal” that “every defendant stands equal before the law,” Gideon v. Wainwright guaranteed the right to defense counsel for those who cannot afford it. Gideon’s concept is elegantly simple: if you are too poor to pay for counsel, the government will provide. The much more complicated reality, however, is that since Gideon, courts have assigned counsel to millions of American defendants too poor to pay for an attorney, have required those defendants to pay for their counsels’ services, and have punished those unable to do so. 

This essay examines how we moved from Gideon’s guarantee to this reality. I assert that Gideon’s protection against recoupment for those with no ability to pay has remained hidden in plain sight due to misinterpretations in two lines of cases. The first line involves a series of cases in which the Court held that the Due Process and Equal Protection Clauses of the Fourteenth Amendment required the waiver of financial barriers to accessing the courts. The second line involves the misapplication of the Fifth Amendment’s collateral consequences doctrine to the Sixth Amendment’s effective assistance of counsel jurisprudence, leading to a misunderstanding that to be constitutionally effective, counsel need not advise a client about collateral consequences. 

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"Exonerated Innocent Man Describes 21 Year Prison Nightmare"

The story is at TalkLeft. In part:

[Attorney]William Bloss said his client was wrongfully convicted based on the false testimony of a couple who claimed Ireland told them he committed the crime after the state offered a $20,000 reward for information leading to the arrest and conviction of the killer.

"The Drug War, the Fourth Amendment, and anal cavity searches in New Mexico"

FourthAmendment.com links to and excerpts the story from Reason TV.

Levy-Pounds on Incarceration and Marginalization of Poor Black Men

Nekima Levy-Pounds (University of St. Thomas School of Law) has posted Par for the Course?: Exploring the Impacts of Incarceration and Marginalization on Poor Black Men in the U.S. (14 Journal of Law and Society 29 (2013)) on SSRN. Here is the abstract:

African Americans represent 13% of the U.S. population, but represent nearly 40% of those who are incarcerated in local jails and state and federal prisons. Poor black men in particular are more susceptible to experiencing incarceration due to high rates of poverty, unemployment, marginalization, and exclusion from mainstream society. Additionally, laws and policies that comprise the war on drugs have fueled a tremendous growth in rates of incarceration for this segment of the population, with devastating consequences to boot for the children, families, and communities of those who are incarcerated. Further, this paper explores the links between the historical links between Thirteenth Amendment to the Constitution and the current over-representation of African Americans within the criminal justice system. Finally, this paper examines disturbing trends in unemployment, poverty, and incarceration of African American men in Detroit, Michigan.

Fanu-Moca on Corruption Offenses

Adrian Fanu-Moca (The West University of Timisoara, Law Faculty) has posted Evolution of the Regulation of Corruption Offenses (Journal of Eastern European Criminal Law issue 1/2014) on SSRN. Here is the abstract:

Criminal conduct in the sphere of civil service has experienced serious mutations post-1990, particularly through the particularization of criminal liability in the area of combating corruption as a social phenomenon, the fight against corruption and, especially, the fight against the corruption of the public power’s agents becoming a priority for Romania, being, at the same time, considered as a priority at European Union level as well.

In this regard, under the aegis of the Council of Europe, on January 27th 1999, in Strasbourg, was adopted the Criminal Law Convention on Corruption, which entered into force on July 1st 2002, ratified by Romania through Law no. 27/2002, according to which “corruption threatens the rule of law, democracy and human rights, undermines good governance, fairness and social justice, distorts competition, hinders economic development and endangers the stability of democratic institutions and the moral foundations of society”.

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"Are Opponents Of The Death Penalty Contributing To Its Problems?"

Doug Berman at Sentencing Law & Policy links to and excerpts a report from NPR.

Butt on the Death Penalty in Indonesia

Simon Butt (University of Sydney - Faculty of Law) has posted Asia-Pacific: Judicial Responses to the Death Penalty in Indonesia (Alternative Law Journal, Vol. 39, No. 2, pp. 134-135, 2014) on SSRN. Here is the abstract:

In two recent cases, judges of the Indonesian Supreme Court have commuted death penalties for drug offences to terms of imprisonment, holding that the death penalty is unconstitutional because it breaches the right to life. This article argues, however, that these decisions are exceptional and probably not indicative of a general judicial movement away from imposing the death penalty in Indonesia, particularly for drug offences.

"Trial Monday on Production of Missing Video From OKC Bombing"

From TalkLeft:

On Monday, a three-day trial is scheduled to begin in U.S.District Court in Salt Lake City on a lawsuit by lawyer Jesse Trentadue. He filed a request under the Freedom of Information Act (FOIA) seeking documents and videotapes from the bombing investigation — including one tape he believes shows two suspects exiting a Ryder truck parked in front of the Alfred P. Murrah Federal Building and the detonation of explosives in the vehicle.

Arcila on Predictive Policing and Reasonable Suspicion

Fabio Arcila, Jr. (Touro College - Jacob D. Fuchsberg Law Center) has posted Nuance, Technology, and the Fourth Amendment: A Response to Predictive Policing and Reasonable Suspicion (63 Emory Law Joural Online 87 (2014)) on SSRN. Here is the abstract:

In an engaging critique, Professor Arcila finds that Professor Ferguson is correct in that predictive policing will likely be incorporated into Fourth Amendment law and that it will alter reasonable suspicion determinations. But Professor Arcila also argues that the potential incorporation of predictive policing reflects a larger deficiency in our Fourth Amendment jurisprudence and that it should not be adopted because it fails to adequately consider and respect a broader range of protected interests.

Pasca on Romania's New Penal Code

Viorel Pasca (West University of Timisoara) has posted Romania's New Penal Code and the Saga of its Adoption (Journal of Eastern European Criminal Law issue 1/2014) on SSRN. Here is the abstract:

The decision to proceed to the drafting of a new Penal Code was not a mere manifestation of the political will, but equally represented a corollary of the economic and social evolution and also of the doctrine and case-law and was based on a series of shortcomings in the regulation of the 1968 Penal Code.

A very important role in the harmonization of the legislation with the constitutional provisions has been played by the Constitutional Court, both through its a priori and a posteriori judicial review, the latter taking the form of the settlement of the constitutional challenges raised before the courts.

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Howe on Deselecting Biased Juries

Scott Howe (Chapman University, The Dale E. Fowler School of Law) has posted Deselecting Biased Juries (Utah Law Review, Forthcoming) on SSRN. Here is the abstract:

Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky, 476 U.S. 79 (1986), by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. But the article shows that something other than inequality harm to excused persons is actually the central problem. The Court in the Batson cases only obliquely confronted it, because constitutional rulings cannot appropriately resolve it. That problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. The problem can arise often -- whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias.

Gilad on Child Victims of Crime

Michal Gilad (University of Pennsylvania Law School) has posted The Young and the Helpless: Re-Defining the Term 'Child Victim of Crime' on SSRN. Here is the abstract:

Children are the most highly victimized segments of our society. At present, the victimization of children is estimated to be one of the most costly public health and public safety problem is our society. 

Have you asked yourself what is done to resolve this dire situation and to protect our children? 

Despite the proliferation of literature and policy proposals pertinent to childhood victimization, thus far, no significant efforts have been made to design a coherent legal definition to the term ‘child victim of crime’ that is specifically geared towards the distinct developmental needs of this age group, and realistically reflects the unique effect of crime on children.The result of this lacuna is a colossal failure of our legal system to protect the most vulnerable and impressionable group, our children. 

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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	329	Katz Has Only One Step: The Irrelevance of Subjective Expectations  Orin S. Kerr  George Washington University - Law School  Date posted to database: 13 Jun 2014 [2nd last week]
2	294	The Failure of Mitigation?  Robert J. Smith, Sophie Cull and Zoe Robinson  University of North Carolina School of Law, Independent and DePaul University College of Law  Date posted to database: 8 Jun 2014 [5th last week]
3	240	Sales Suppression as a Service (SSaaS) & the Apple Store Solution  Richard Thompson Ainsworth  Boston University - School of Law  Date posted to database: 6 Jun 2014
4	231	The Brave New World of Cell-Site Simulators  Heath Hardman  Albany Law School  Date posted to database: 24 May 2014
5	128	When Do State Laws Determine ERISA Plan Benefit Rights?  Albert Feuer  Law Offices of Albert Feuer  Date posted to database: 22 May 2014 [10th last week]
6	90	Retuning Gideon's Trumpet: Retelling the Story in the Context of Today's Criminal Justice Crisis  Jonathan Rapping  Atlanta's John Marshall Law School  Date posted to database: 22 May 2014 [new to top ten]
7	90	Awareness Regarding Cyber Victimization Among Students of University of Sindh, Jamshoro  Muhammad Abdullah Avais, Aijaz Ali Wassan, Hameeda Narejo andJameel Ahmed Khan  University of Sindh - Department of Sociology, University of Sindh - Department of Sociology, University of Sindh - Department of Sociology and University of Sindh - Department of Sociology  Date posted to database: 22 May 2014 [new to top ten]
8	80	Liberal but Not Stupid: Meeting the Promise of Downsizing Prisons  Joan Petersilia and Francis T. Cullen  Stanford University and University of Cincinnati  Date posted to database: 24 Jun 2014 [new to top ten]
9	76	Authority, Ignorance, and the Guilty Mind  Stephen P. Garvey  Cornell Law School  Date posted to database: 1 Jun 2014 [new to top ten]
10	75	Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard  Ray McKoski  The John Marshall Law School  Date posted to database: 30 May 2014 [new to top ten]

"NYT series on legalization of marijuana, still a Fourth Amendment issue"

FourthAmendment.com links to the New York Times series on legalization.

"Is Judge Kozinski recent opinion proof that "the death penalty is doomed"?"

Doug Berman has this post at Sentencing Law & Policy, excerpting an opinion piece from The New York Times.

Tillipman on Gifts, Hospitality & the Government Contractor

Jessica Tillipman (The George Washington University Law School) has posted Gifts, Hospitality & the Government Contractor on SSRN. Here is the abstract:

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services to the government.

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"President Barack Obama to issue executive order on drone privacy"

FourthAmendment.com links to and excerpts this piece from Politico.

Bowden et al. on Cross-Examining Vulnerable Witnesses

Phoebe Bowden , Terese Henning and David Plater (University of South Australia - School of Law , University of South Australia - School of Law and University of South Australia - School of Law) have posted Balancing Fairness to Victims, Society and Defendants in the Cross-Examination of Vulnerable Witnesses: An Impossible Triangulation? (Melbourne Univeristy Law Review, Vol. 37, 2014) on SSRN. Here is the abstract:

Cross-examination is fundamental to the adversarial criminal trial. However, when children and witnesses with an intellectual disability are cross-examined, it can lead to unreliable evidence and further trauma to the victim. Various reforms in Australian jurisdictions, England and elsewhere have had only limited practical elect as they fail to address the underlying problems that arise from the adversarial system itself. While any changes must maintain a defendant’s vital right to a fair trial, the current criminal trial may allow defendants an illegitimate advantage. Fairness to the defendant, victim and society can and must be balanced. In order to reduce any illegitimate advantage, direct cross-examination should be removed. Instead, cross-examination should be conducted in advance of trial by a suitable third party and video-recorded. A similar process is used in Norway. A wholesale transformation into an inquisitorial system is not required for the benefits of non-adversarial examination to be achieved.

"De-policing New York"

From City Journal:

The biggest threat facing minority New Yorkers now is not “over-policing,” and certainly not brutal policing. The NYPD has one of the lowest rates of officer shootings and killings in the country; it is recognized internationally for its professionalism and training standards. Deaths such as Garner’s are an aberration, which the department does everything it can to avoid. The biggest threat facing minority New Yorkers today is de-policing. After years of ungrounded criticism from the press and advocates, after highly publicized litigation and the passage of ill-considered laws—such as the one making officers financially liable for alleged “racial profiling”—NYPD officers have radically scaled back their discretionary activity. Pedestrian stops have dropped 80 percent citywide and almost 100 percent in some areas. The department is grappling with how to induce officers to use their lawful authority again to stop crime before it happens. Eric Garner’s death was a heartbreaking tragedy, but if the unjustified backlash against misdemeanor enforcement takes root and finds a sympathetic audience in Mayor Bill De Blasio, the consequences for all New Yorkers will be even more dire.