CrimProf Blog

"Latest New York recidivism numbers provide more to be thankful for"

Doug Berman at Sentencing Law & Policy excerpts and links to the article.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	313	The Impact of Whistleblowers on Financial Misrepresentation Enforcement Actions  Andrew C. Call, Gerald S. Martin, Nathan Y. Sharp andJaron H. Wilde  Arizona State University (ASU) - School of Accountancy, American University - Kogod School of Business, Texas A&M University (TAMU) - Department of Accounting and University of Iowa - Henry B. Tippie College of Business  Date posted to database: 7 Oct 2014
2	299	Information Networks: Evidence from Illegal Insider Trading Tips  Kenneth R. Ahern  University of Southern California - Marshall School of Business  Date posted to database: 18 Oct 2014
3	190	A Conceptual Framework for the Regulation of Cryptocurrencies  Omri Y. Marian  University of Florida - Fredric G. Levin College of Law  Date posted to database: 15 Oct 2014
4	156	Stop and Frisk, Judicial Independence, and the Ironies of Improper Appearances  Anil Kalhan  Drexel University Thomas R. Kline School of Law  Date posted to database: 28 Sep 2014
5	147	Trial Bargaining  Gregory M. Gilchrist  University of Toledo College of Law  Date posted to database: 18 Sep 2014 [6th last week]
6	146	Laws of Cognition and the Cognition of Law  Dan M. Kahan  Yale University - Law School  Date posted to database: 30 Oct 2014 [7th last week]
7	142	Confronting Cognitive 'Anchoring Effect' and 'Blind Spot' Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw  Mark W. Bennett  U.S. District Court (Northern District of Iowa)  Date posted to database: 1 Oct 2014 [5th last week]
8	133	Why Crime Rates Are Falling Throughout the Western World  Michael Tonry  University of Minnesota - Twin Cities - School of Law  Date posted to database: 9 Nov 2014 [new to top ten]
9	129	Elevating Substance Over Procedure: The Retroactivity of Miller v. Alabama Under Teague v. Lane  Brandon Buskey and Daniel Korobkin  ACLU and ACLU of Michigan  Date posted to database: 14 Oct 2014 [8th last week]
10	129	Paperwork and Punishment: It's Time to Fix FBAR  Allison Christians  McGill University - Faculty of Law  Date posted to database: 17 Oct 2014 [9th last week]

Next week's criminal law/procedure arguments

Issue summaries are from ScotusBlog, which also links to papers:

Monday

• Elonis v. U.S.: (1) Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Tuesday

• Whitfield v. U.S.: Whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Stinneford on Dividing Crime, Multiplying Punishment

John F. Stinneford (University of Florida Levin College of Law) has posted Dividing Crime, Multiplying Punishments (48 U.C. DAVIS L. REV. __ (2015 Forthcoming)) on SSRN. Here is the abstract:

When the government wants to impose exceptionally harsh punishment on a criminal defendant, one of the ways it accomplishes this goal is to divide the defendant’s single course of conduct into multiple offenses that give rise to multiple punishments. The Supreme Court has rendered the Double Jeopardy Clause, the Cruel and Unusual Punishments Clause, and the rule of lenity incapable of handling this problem by emptying them of substantive content and transforming them into mere instruments for effectuation of legislative will. 

This article demonstrates that all three doctrines originally reflected a substantive legal preference for life and liberty, and a systemic bias against overpunishment.

Continue reading

Kuersten on Sexual Assault in the Military

Andreas Kuersten has posted Sexual Assault and the Military Petri Dish (Joint Force Quarterly, vol. 74, no. 3, pp. 91-97 (2014)) on SSRN. Here is the abstract:

The military is held to a higher standard in preventing sexual assault and in victim care, but it also has the resources and autonomy to institute change in depth. Its centralized control, remoteness from its parent culture, and ability to act quickly combine with the fact that the public often regards it as a medium of social experimentation to make it a natural leader in promoting fairness. It is comparatively free from political manipulation and trends, yet it has commonalities with civilian universities and other populations. Recent allegations are attention the military may not want, but it is in a position, through the confluence of forces and its identity and resources, to solve a problem for itself and wider society.

"Nearly a year into clemency initiative, turkeys remain more likely to get Prez Obama pardon than people"

Doug Berman has this post at Sentencing Law & Policy. In part:

At the risk of being a holiday party pooper, I cannot help but note that it has now been a full 10 months since the Obama Administration publicly announced (as detailed here) that it was eager to identify low-level, nonviolent drug offenders for possible clemency relief. Since that time, however, the President has granted clemency to a grand total of one prisoner and now to two turkeys.

Assy & Menashe on Risk Assessment in Israel's Parole Law

Rabeea Assy and Doron Menashe Sr. (University of Haifa - Faculty of Law and University of Haifa - Faculty of Law) have posted The Catch-22 in Israel's Parole Law (Criminal Justice and Behavior, Volume 41, pp 1422-1436 (2014)) on SSRN. Here is the abstract:

This article reviews the general legal framework governing risk assessment of prisoners in the Israeli parole process. It highlights the excessive power the Israeli courts have accorded to the professional body responsible for providing risk assessments, which severely limits the parole board’s discretion to order conditional release when prisoners persist in denying their crimes. Such prisoners, especially sex offenders, tend to be precluded from participation in treatment courses, thus substantially reducing their prospects of obtaining parole.

More commentary on Ferguson grand jury

At Slate, "Shadow Trial": 

This move to morph a grand jury inquiry, which is typically a short rundown of the case for the prosecution, into a trial-like parade of mountains of evidence raises serious issues about the rights of Michael Brown’s family to have a fair process for their dead son, as well as highlighting concerns about unequal treatment of different kinds of criminal defendants. But seemingly lost in this jumble of legal concerns is the fact that McCulloch’s decision to shift the truth-seeking function of a criminal trial into the secret realm of the grand jury room violated another set of constitutional rights—ours. It violated our collective public right to an open criminal justice system. And if ever there was a trial to which Americans deserved a meaningful right of access, Wilson’s trial was it. Instead, we have a post-hoc document dump.

At CNN.com, Jeffrey Toobin writes under the headline "Decision to announce grand jury verdict at night devastating":

[Prosecutor] McCulloch started his announcement late, and he was not finished until around 9 p.m., local time. His tone was icy and divisive. His sympathy for the Brown family was perfunctory. He seemed more angry at the news media than about the death of a young man.

The predictable reaction ensued. Protests began, some of them violent. Police responded with tear gas. Fires burned. Cars were destroyed. Gunshots were heard. The full scale of the damage was difficult to assess last night.

"Cleveland video shows police shot boy within seconds"

From Reuters:

Cleveland officials on Wednesday released a video of the fatal police shooting of a 12-year-old boy that shows him pointing a pellet gun around a park before police arrive and shoot him within two seconds.

Tamir E. Rice was shot by a patrol officer on Saturday after a 911 call reported someone pointing a gun at people at the Cudell Recreation Center. The caller said the gun could be a fake.

When the ham sandwich speaks: "Suspect testimony in the grand jury room"

Orin Kerr has this incisive post discussing the Ferguson grand jury and co-blogger Paul Cassell's view at The Volokh Conspiracy. In part:

Paul writes: “Only if there was good reason to discount [Wilson's] testimony, should the grand jury have returned a true bill.”

I’m not so sure. Isn’t there always “good reason” to discount a suspect’s exculpatory grand jury testimony? A guilty suspect has an obvious incentive to lie. It’s particularly easy to lie in a homicide case where the other participant is dead. The grand jury proceeding isn’t adversarial, or at least ordinarily is not, so the suspect is not cross examined and the holes in his story will remain unknown. And the fact that Wilson’s testimony seems so well-tailored to self-defense law could be seen as highly suspicious, rather than highly exculpatory.

Meares on Stop and Frisk as a Program

Tracey L. Meares (Yale University - Law School) has posted Programming Errors: Understanding the Constitutionality of Stop and Frisk as a Program, not an Incident on SSRN. Here is the abstract:

This essay takes seriously the relevance of law enforcement effectiveness and the role of empiricism to understanding the constitutionality of the police practices at issue in the Floyd case and urban police practices more generally and also recasts the debate a bit. A critical, but obscured, issue is the mismatch between the level of analysis at which the Supreme Court articulated the relevant test for constitutional justification of a stop and frisk in Terry v. Ohio , and the scale at which police today (and historically) engage in stop and frisk as a practice. To put this more succinctly, while the Court in Terry authorized police intervention in an individual incident when the police officer possesses probable cause to believe that an armed individual is involved in a crime, in reality stop and frisk typically is carried out by a police force en masse as a program. Although the constitutional framework is based upon a one-off investigative incident, many of those who are stopped, the majority of them young men of color, do not experience the stops as one-off incidents. They experience them as a program to police them as a group, which is, of course, the reality. That is exactly what police agencies are doing. Fourth Amendment reasonableness must take this fact into account. I make an argument here about how we should approach this issue.

Leighton with a case study of corporate wrongdoing

Paul Leighton (Eastern Michigan University - Dept of Sociology, Anthropology & Criminology) has posted Mass Salmonella Poisoning by the Peanut Corporation of America on SSRN. Here is the abstract:

In late 2008, the Centers for Disease Control and Prevention first noted an outbreak of salmonella that would ultimately kill nine, hospitalize 166, cause up to 20,000 illnesses and lead to the recall of 4,000 products. Behind this mass poisoning was the Peanut Corporation of America (PCA) and CEO Stuart Parnell. This article provides a background about salmonella and the operations of PCA so readers can understand the criminal wrongdoing and outcome of the criminal trial. Using news reports and information from a former assistant plant manager, it documents the unsanitary conditions and the violation of virtually all Good Manufacturing Practices. These conditions cause widespread salmonella, thus adultrating their product and leading to fraud to cover up the problem.

Lott on Deterring Crime Through Private Security Efforts

John R. Lott Jr. (Crime Prevention Research Center) has posted Comment on 'The Deterrence of Crime Through Private Security Efforts: Theory and Evidence' on SSRN. Here is the abstract:

Unfortunately, many who have examined the impact of so-called "shall-issue" or "right-to-carry" laws assume that the adoption of such laws causes a large, immediate increase in the number of permits. But that is often not the case, for states differ widely as to how easily permits can be obtained. This problem is particularly problematic for studies that have looked at the period after 2000. In fact, the share of the adult population with permits increased less during the 1999-2010 period in the states that adopted right-to-carry laws than the states that they are being compared against.

"Woman Who Faked Son's Cancer Gets Probation [and 90 nights in jail]"

From the Colorado Springs Gazette:

Nguyen pleaded guilty in September to one count each of charitable fraud and child abuse.
Police say she convinced her son, family and others in the community that the boy had leukemia and had been receiving treatment since about September 2012.
. . .

Various community and school fundraisers raised about $25,000 for the family. According to her arrest affidavit, police said $23,000 in cash was found in her closet and Nguyen had used other money to pay for a family trip to Disneyland.

"Rand Paul: The Politicians Are To Blame in Ferguson"

From Time:

In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America. The War on Drugs has created a culture of violence and put police in a nearly impossible situation.

In Ferguson, the precipitating crime was not drugs, but theft. But the War on Drugs has created a tension in some communities that too often results in tragedy. One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.

Three out of four people in jail for drugs are people of color. In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?

Luther on Felon Firearm Rights Restoration

Robert Luther III has posted The Quiet Army: Felon Firearm Rights Restoration in the Fourth Circuit (23 William & Mary Bill of Rights Journal 237 (2014)) on SSRN. Here is the abstract:

This article discusses the restoration of firearm rights for felons and specifically addresses the methods by which individuals convicted of felonies under state law may be relieved of collateral federal firearms disabilities in the Fourth Circuit, with a particular emphasis on the practice in Virginia. It concludes by calling on the Fourth Circuit to make clear in an appropriate case that “a defendant’s ‘civil rights’ have been restored under state law for purposes of 18 U.S.C. § 921(a)(20) if the state has also restored the defendant’s right to possess firearms.” Due to the Supreme Court of Virginia's interpretation of the Virginia Constitution in Gallagher v. Commonwealth, which concluded that the governor lacked the authority to restore firearm rights and that only the state trial court could do so, the Fourth Circuit’s failure to construe 18 U.S.C. § 921(a)(20) as suggested will have the unintended and disparate effect of failing to relieve all state-convicted felons in Virginia from their collateral federal firearm disabilities. To read 18 U.S.C. § 921(a)(20) not to remove a federal firearms disability when the felon has received the unrestricted restoration of his firearm rights by a Virginia trial court would yield a perverse result because the purpose of this statute was to redirect the restoration process to the states.

Oehme, Stern & Mennicke on Women Law Enforcement Officer and Campus Sexual Assaults

Karen Oehme , Nat Stern and Annelise Mennicke (Florida State University College of Social Work, Institute for Family Violence Studies , Florida State University - College of Law and Florida State University - College of Social Work) have posted A Deficiency in Addressing Campus Sexual Assault: The Lack of Women Law Enforcement Officers (38 Harvard Journal of Law and Gender, 2015, Forthcoming) on SSRN. Here is the abstract:

The federal government has taken a range of measures to combat the scourge of sexual assault afflicting college campuses across the nation. Whatever the efficacy of these policies, however, they fail to address a major obstacle to curbing sexual violence on campus: the chronically low rate of reporting of this crime to the police. Research has produced data showing that reporting of sexual assault against women increases as female representation among officers increases. Yet, most university campus law enforcement agencies include strikingly few female officers. This Article proposes an increase in women’s representation in campus police agencies to foster more reporting by victims, and argues that schools failing to demonstrate consistent, ongoing, and genuine efforts to hire female officers are contributing to a hostile environment for complainants in Title IX litigation.

"It’s Incredibly Rare For A Grand Jury To Do What Ferguson’s Just Did"

This post is at FiveThirtyEight. In part:

There are at least three possible explanations as to why grand juries are so much less likely to indict police officers. The first is juror bias: Perhaps jurors tend to trust police officer and believe their decisions to use violence are justified, even when the evidence says otherwise. The second is prosecutorial bias: Perhaps prosecutors, who depend on police as they work on criminal cases, tend to present a less compelling case against officers, whether consciously or unconsciously.

The third possible explanation is more benign. Ordinarily, prosecutors only bring a case if they think they can get an indictment. But in high-profile cases such as police shootings, they may feel public pressure to bring charges even if they think they have a weak case.

"California man's conviction in 1978 murder overturned on DNA evidence"

From Reuters:

A California man who spent more than 30 years in prison for a 1978 murder was ordered released on Monday by a judge who overturned his conviction based on DNA analysis and investigative reports that were withheld from his defense.

. . .

Hanline, who worked security at the motorcycle sale events, and was romantically involved with McGarry's ex-girlfriend, was arrested on an unrelated charge that month after traveling to Northern California and using McGarry's credit card.

He was charged with murder by prosecutors who suggested his motive was jealousy over McGarry's on-again, off-again relationship with the ex-girlfriend.

But DNA analysis conducted at the request of the California Innocence Project found it matched the profile of an unidentified male, not Hanline. A magistrate judge also found that prosecutors at the time had failed to turn over relevant material to the defense.

"Will Texas Kill an Insane Man?"

Doug Berman at Sentencing Law & Policy links to and excerpts this piece from The New York Times. In part:

On Dec. 3, Texas plans to execute an inmate named Scott Panetti, who was convicted in 1995 for murdering his in-laws with a hunting rifle. There is no question that Mr. Panetti committed the murders. There is also no question that he is severely mentally ill, and has been for decades.

. . .

By any reasonable standard — not to mention the findings of multiple mental-health experts over the years — Mr. Panetti is mentally incompetent. But Texas, along with several other stubborn states, has a long history of finding the loopholes in Supreme Court rulings restricting the death penalty.  The state has continued to argue that Mr. Panetti is exaggerating the extent of his illness, and that he understands enough to be put to death — a position a federal appeals court accepted last year, even though it agreed that he was “seriously mentally ill.”