CrimProf Blog

Smith on Prior Sexual Misconduct Evidence in State Courts

Michael L. Smith has posted Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges (American Criminal Law Review, Vol. 52, No. 2, 2015) on SSRN. Here is the abstract:

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant’s propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime.

While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside.

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Freeman on Padilla and Termination of Parental Rights

Sarah Freeman has posted Ensuring Effective Counsel for Parents: Extending Padilla to Termination of Parental Rights Proceedings (Hofstra Law Review, Vol. 42, No. 303, 2013) on SSRN. Here is the abstract:

The increase in the number of incarcerated women, combined with the severe effects of ASFA's 15/22 rule, has dramatically increased the risk that a incarcerated mother face a termination of her parental rights. Currently, existing ethical and statutory protections have been insufficient to protect these parents’ rights to their children. However, after Padilla v. Kentucky, it is likely that there is a Sixth Amendment obligation on criminal defense attorneys to advise their clients about the effect of the criminal process on a TPR proceeding. This advice should not be limited to a mere suggestion that clients seek legal advice from an attorney specializing in TPR law. Instead, criminal defense attorneys are obligated to protect this unique population by providing advice and counsel throughout the criminal proceeding to their clients concerning how best to protect the family unit from TPR proceedings.

Johnson on Domestic Violence

Margaret Ellen Johnson (University of Baltimore - School of Law) has posted Changing Course in the Anti-Domestic Violence Legal Movement: From Safety to Security (Villanova Law Review, Vol. 60, No. 1, 2015) on SSRN. Here is the abstract:

This Article examines how the pursuit of domestic violence policy’s limited goal of safety, primarily focused on short-term physical separation to decrease physical intimate partner violence, is both too broad and too narrow a goal. Although being safe and free from violent harm is important, there is a difference between the woman subjected to abuse choosing to employ actions to be free of harm, and the state requiring the woman to physically separate from her abusive partner. In addition, there is a difference between the many ways she may act in order to reduce harm to herself -- such as having control over her own finances -- and the almost one-size-fits-all way in which the state says she should act to create safety -- physically separating from her partner. As a result, a woman’s own agency and dignity can be undermined in pursuit of what is deemed safe by others. This is despite the research that shows supporting a woman's agency is one of the best ways to decrease domestic violence.

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Baker on Rape

Katharine K. Baker (Illinois Institute of Technology - Chicago-Kent College of Law) has posted Why Rape Should Not (Always) Be a Crime (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

This article advances a novel and controversial argument, that the criminal law is simply not up to the task of policing sexual assault and has undermined the very anti-rape norms that reformers intended that law to cultivate. The on-going initiative to curb the prevalence of sexual misconduct on college campuses abandons the criminal law and uses discrimination doctrine to dislodge the norms that criminal rape reform tried, but failed, to transform. It is necessary because the rape reform movements of the 1970s and 80s asked too much of the criminal law. Rape reformers tried to make a woman’s willingness to have sex – her consent – the centerpiece of the rape inquiry. They wanted to upend a norm that validated men’s sense of entitlement to sex. While these efforts to shift norms may have gotten the theory of rape right, they failed to appreciate inherent limitations in the criminal process. The criminal burden of proof for non-consent is too high for an effective conviction rate for sexual assaults that do not involve force. The criminal stigma associated with rapists, reified by popular “tough-on-rapist” measures, undermines attempts to criminalize commonplace behavior. And the complicated relationship between rape’s injury, women’s agency and the criminal law means that many women are unwilling to see themselves as rape victims and especially unwilling to invoke the criminal process to vindicate their injury. Discrimination doctrine avoids all these problems, but still allows for the policing of predatory male behavior. Effective enforcement of discrimination doctrine could, in turn, affect more lasting change to the social norms that condone men’s appropriation of sex, and thus pave the way for comprehensive enforcement of the criminal law as reformed. The key will be treating what is happening on college campuses as something other than rape. The de facto monopoly of criminal law over rape should end not despite its effects on social norms, but because of it.

Hartung on Habeas Corpus for the Innocent

Stephanie Roberts Hartung (Suffolk University Law School) has posted Habeas Corpus for the Innocent (University of Pennsylvania Law School, Journal of Law and Social Change, Vol. 19, 2016 Forthcoming) on SSRN. Here is the abstract:

This year marks the 25th anniversary of the first DNA exoneration in the United States. In the last twenty-five years, the Innocence Movement has succeeded in achieving thousands of additional exonerations while bringing about significant reform in the criminal justice system. These reforms have particularly sought to address the primary causes of wrongful convictions, including eyewitness misidentification, false confessions, and flawed forensic science. However, as pre-trial and investigatory policy changes have taken hold, very few comparable systemic procedural reforms have been implemented. In fact, in 1996, on the eve of the Innocent Movement, Congress passed the Anti-Terrorism and Effective Death Penalty Act [“AEDPA”]. Rather than seeking to alter post-conviction procedure to more effectively address viable claims of innocence, AEDPA operated to radically restrict federal habeas review for state prisoners. Nowhere is AEDPA’s impact more devastating than in the context of factually innocence prisoners seeking review of their wrongful convictions.

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Shen on Sentencing Enhancement for Mental Injuries

Francis X. Shen (University of Minnesota Law School) has posted Sentencing Enhancement and the Crime Victim's Brain (46 Loyola University Chicago Law Journal 405 (2014)) on SSRN. Here is the abstract:

Criminal offenders who inflict serious bodily injury to another in the course of criminal conduct are typically sentenced more harshly than those who do not cause such injuries. But what if the harm caused is “mental” or “psychological” and not “physical”? Should the sentencing enhancement still apply? Federal and state courts are already wrestling with this issue, and modern neuroscience offers new challenges to courts’ analyses. This Article thus tackles the question: In light of current neuroscientific knowledge, when and how should sentencing enhancements for bodily injury include mental injuries?

The Article argues that classification of “mental” as wholly distinct from “physical” is problematic in light of modern neuroscientific understanding of the relationship between mind and brain.

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Mandiberg & Harris on Addiction and Recidivism

Susan F. Mandiberg and Richard Harris (Lewis & Clark Law School and Independent) have posted Alcohol- and Drug-Free Housing: A Key Strategy in Breaking the Cycle of Addiction and Recidivism (McGeorge Law Review, Forthcoming) on SSRN. Here is the abstract:

Drug addicts and alcoholics commit an enormous number of crimes. The only successful strategy for managing the criminality is to get these offenders into recovery. However, many, if not most offenders fail to achieve sustained abstinence from addictive substances while in prison. The problem is that addicts and alcoholics who return to a social milieu that either supports or does not discourage the use of drugs and alcohol are more likely to fail to overcome their addictions, even when they have participated in traditional treatment. Drug addicts and alcoholics can avoid this dilemma by choosing to live in a community of people committed to live free of drugs and alcohol, whether or not they are on parole or probation. Experience and evidence show that living in properly structured and operated alcohol- and drug-free housing, combined with outpatient treatment and other services, is an effective way to address addiction and the criminality that accompanies it, and thus to stop the cycle of recidivism for those ex-convicts who participate in that community. This article traces the experience of Central City Concern, a private, nonprofit housing, social service, and health care agency in Portland, Oregon, that has successfully developed this type of recovery housing over the past 30 years. The article places this experience in the legal context of federal and state laws that both support and potentially frustrate the operation of such alcohol- and drug-free housing: federal anti-discrimination law, federal housing law, and state and local landlord-tenant law.

Vasiu & Vasiu on Computer Damage Cases

Ioana Vasiu and Lucian Vasiu (Babes-Bolyai University - Faculty of Law and Independent) have posted Break on Through: An Analysis of Computer Damage Cases (Pittsburgh Journal of Technology Law & Policy, Volume XIV – Spring 2014, pp. 158-201) on SSRN. Here is the abstract:

This article is an extensive inquiry into computer damage cases through a comprehensive study of over three hundred computer damage cases. Based on an empirical categorization of the essential aspects of computer damage cases, the article analyzes the most relevant issues, interpretations, and arguments available for each computer damage category. These categories include fundamental facets, such as legal elements; motive and intent; results; profile of perpetrators; and means of perpetration, including, if applicable, the software involved.

Ferguson on the Internet and Fourth Amendment "Effects"

Andrew Guthrie Ferguson (University of the District of Columbia - David A. Clarke School of Law) has posted The Internet of Things and the Fourth Amendment of Effects (California Law Review, Vol. 104, 2016, Forthcoming) on SSRN. Here is the abstract:

By 2020 there will be billions of “things” connected through the “Internet of Things.” These smart devices built within our homes, cars, smartphones, clothing, and accessories present new possibilities for technological surveillance for law enforcement.

This network of smart devices also poses a new challenge for a Fourth Amendment built around “effects.” The constitutional language protecting “persons, houses, papers, and effects” from unreasonable searches and seizures must confront this change. This article addresses how a Fourth Amendment built on old-fashioned “effects” can address a new world when things are no longer just inactive, static objects, but objects that create and communicate data with other things.

The article seeks to answer two questions. First, what is the definition of an “effect” for Fourth Amendment purposes in a world defined by an interconnected, network-like Internet of Things? Second, assuming that a Fourth Amendment “effect” has a broader definition that potentially includes the digital information embedded in the object and the wireless communication signals emanating from the device, then what expectation of security should attach to these effects?

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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	1,835	Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence  Kent Roach and Craig Forcese  University of Toronto - Faculty of Law and University of Ottawa - Common Law Section  Date posted to database: 5 Feb 2015
2	517	California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State  Marina Fisher, Nathaniel Miller,Lindsay Walter and Jeffrey Selbin  University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law  Date posted to database: 4 Feb 2015
3	192	Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005  Atif R. Mian and Amir Sufi  Princeton University - Department of Economics and University of Chicago - Booth School of Business  Date posted to database: 8 Feb 2015 [5th last week]
4	171	Police Body-Worn Cameras  Alexandra Claudia Mateescu, Alex Rosenblat and danah boyd  Data & Society Research Institute, Data & Society Research Institute and Data & Society Research Institute  Date posted to database: 26 Feb 2015 [new to top ten]
5	157	A Slow Motion Lynching? The War on Drugs, Mass Incarceration, Doing Kimbrough Justice, and a Response to Two Third Circuit Judges  Mark W. Bennett  U.S. District Court (Northern District of Iowa)  Date posted to database: 2 Mar 2015 [10th last week]
6	148	Beyond a Reasonable Disagreement: Judging Habeas Corpus  Noam Biale  Independent  Date posted to database: 25 Jan 2015 [7th last week]
7	144	Copwatching  Jocelyn Simonson  New York University School of Law  Date posted to database: 1 Mar 2015 [new to top ten]
8	136	Moving Forward on Mainstreaming Therapeutic Jurisprudence: An Ongoing Process to Facilitate the Therapeutic Design and Application of the Law  David B. Wexler  University of Puerto Rico - School of Law  Date posted to database: 15 Feb 2015
9	132	Find It and Tax It: From TIEAs to IGAs  Reuven S. Avi-Yonah and Gil Savir  University of Michigan Law School and University of Michigan Law School  Date posted to database: 21 Feb 2015 [new to top ten]
10	127	Back to the Future: The Influence of Criminal History on Risk Assessment  Melissa Hamilton  University of Houston Law Center  Date posted to database: 27 Jan 2015 [9th last week]

Today's criminal law/procedure cert grants

Lyle Denniston at ScotusBlog reports on the grant in three cases:

In three newly granted cases, the Court will be deciding whether a judge in a case that may lead to a death sentence has a constitutional duty to tell the jury that a more relaxed standard of proof applies when the jurors are deciding whether there are any “mitigating” factors that suggest that a death penalty should not be imposed.

That is an issue in two cases involving the joint murder trial of brothers in Wichita, who killed five people in a crime spree, and in a separate murder case involving an individual convicted of killing a woman who was believed to have shared evidence with police to convict that person.

. . . 

In the two Carr cases, the separate question the Court will decide is whether it was unconstitutional for the state court to hold a death-sentencing proceeding on the two brothers at the same time, rather than separately. 

Opinion rejecting conclusion that it is clearly established that attorney is ineffective when briefly absent during testimony regarding other defendants

The per curiam opinion in Woods v. Donald is here.

Opinion holding placement of GPS monitor on person to be a search notwithstanding "civil" purpose

The per curiam opinion in Grady v. North Carolina, remanding for consideration of whether the search is reasonable, is here. 

Next week's criminal law/procedure argument

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

Monday

• Brumfield v. Cain: (1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkinsand Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Ravich on Drones

Timothy M. Ravich (University of Central Florida, College of Health and Public Affairs) has posted Courts in the Drone Age (Northern Kentucky Law Review, Forthcoming) on SSRN. Here is the abstract:

Few subjects encapsulate legal informatics more than “drones.” Aviation is nothing new in public, military, and private settings, but the use of unmanned aerial vehicles (“UAVs”) for civic, law enforcement, national security, and commercial purposes is novel. This is not because UAV technology necessarily offers anything groundbreaking in the way of aeronautics or engineering; rather, UAVs are transformational information systems in terms of digital forensics. The range of intelligence, surveillance, and reconnaissance (“ISR”) gathered by sensor suites and software solutions deployed on UAV platforms seems limitless. This boundless use extends to legal processes, where the job of litigants and triers of fact could be eased and optimized through the use of drone-acquired evidence, for example high-definition video of accident or crime scenes. Current federal and state laws inhibit the collection, storage, and use of data gathered and delivered by UAVs from finding their way into criminal court hearings, civil depositions and mediations, and trials, however. A robust system of legal rules and practices designed to ensure the reliable, resilient, and uncompromised collection and use of UAV data is imperative. 

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Tate on Temporal Arbitrariness and the Death Penalty

Mary Kelly Tate (University of Richmond - School of Law) has posted Temporal Arbitrariness: A Back to the Future Look at a Twenty-Five-Year-Old Death Penalty Trial (University of Richmond Law Review, Vol. 49, 2015) on SSRN. Here is the abstract:

This essay grapples with a previously unexamined feature of the death penalty: temporal arbitrariness. How does the circumstance of time affect capital defendants? What might this mean for the stability of our notions of justice? I explore these questions using a 25-year-old death penalty trial as a case study, examining the procedural and factual highlights of the case and situating it in its temporal milieu. I then explore how the roles of doctrine, policy, and cultural attitudes would dramatically alter the nature and probable outcome of the case today, illustrating how temporal arbitrariness further exposes the death penalty’s unsteady administration and indeed, its crumbling legitimacy.

Nance on Police in Schools and the School-to-Prison Pipeline

Jason P. Nance (University of Florida Levin College of Law) has posted Students, Police, and the School-to-Prison Pipeline (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:

Since the terrible shootings at Sandy Hook Elementary School in Newtown, Connecticut, lawmakers and school officials continue to deliberate over new laws to keep students safe, including putting more police officers in schools. Yet not enough attention has been given to the potential negative consequences that these new laws may have on students and the school-to-prison pipeline. In the past, certain lower-level, common offenses that occurred at school, such as fighting or threats without use of a weapon, traditionally were handled only by educators, not by police officers. Drawing on recent restricted data from the U.S. Department of Education, this Article presents an original empirical analysis revealing that a police officer’s regular presence at a school significantly increases the odds that school officials will refer students to law enforcement for various offenses, including these lower-level offenses that should be addressed using more pedagogically-sound methods. This trend holds true even after controlling for (1) state statutes that require schools to report certain incidents to law enforcement; (2) general levels of criminal activity and disorder that occur at the school; (3) neighborhood crime; and (4) other demographic variables. The consequences of involving students in the criminal justice system are severe, especially for students of color, and may negatively affect the trajectory of students’ lives. Therefore, lawmakers and school officials should consider alternative methods to create safer learning environments.

Scurich on Comparing Erroneous Convictions and Acquittals

Nicholas Scurich (University of California, Irvine) has posted Criminal Justice Policy Preferences: Blackstone Ratios and the Veil of Ignorance (Stanford Law & Policy Review, Vol. 26, p. 23, 2015) on SSRN. Here is the abstract:

Erroneous convictions or erroneous acquittals are an inevitable aspect of the criminal justice system. Jurists have historically considered errors of the former type to be more egregious, while college undergraduates seem largely indifferent between the two types of error. This article reports the results of an original empirical study that elicited criminal justice error preferences from an online sample of over five hundred adult United States citizens. Consistent with previous research, participants were asked, as a matter of policy, which type of error is worse and to what extent that type of error is worse than the other. Participants’ error preferences were then elicited beneath a Rawlsian veil of ignorance. The veil of ignorance “universalizes” judgments by forcing individuals to evaluate a policy without knowledge of how it would affect him or her personally. Thus, participants were asked whether they would personally prefer to endure the consequences of an erroneous conviction vis-à-vis an erroneous acquittal. As a policy matter, a majority of participants indicated that erroneous convictions are worse than erroneous acquittals, though there was considerable variability as to how much worse. Over 25% of participants effectively switched their preference when the implications of such a policy applied to them personally. These findings have implications for the administration of substantive law and criminal justice policy, as well as policy discussions more generally.

Huq on Agency Slack and Criminal Justice Institutions

Aziz Z. Huq (University of Chicago - Law School) has posted Agency Slack and the Design of Criminal Justice Institutions (Forthcoming in, The Routledge Handbook of Criminal Justice Ethics (J.P. Jackson & J. Jacobs, eds. 2016)) on SSRN. Here is the abstract:

This book chapter analyzes the problem of state wrongs in criminal justice institutions. The chapter first evaluates the need for institutional design solutions, as opposed to political solutions, or other responses exogenous to the structure and basic operation of criminal justice institutions. The second half of the chapter defines and explores two pivotal design choices that a democratic principal must make in creating criminal justice institutions. First, should policy responses or remedies be ex ante or ex post? And second, should they be public or privatized?

Choi on Reunifying Fourth and Fifth Amendment Jurisprudence

Bryan H. Choi (New York Law School) has posted For Whom the Data Tolls: A Reunified Theory of Fourth and Fifth Amendment Jurisprudence on SSRN. Here is the abstract:

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and “possessed” simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect himself.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross purposes. The privacy community has already sounded the alarm on the “third party doctrine,” which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have noted the equally potent “required records doctrine,” which allows the government to circumvent the Fifth Amendment privilege against self-incrimination when demanding evidence directly from first persons. Taken together, the two exceptions swallow the rule, allowing the government to evade both Fourth and Fifth Amendment review at every turn.

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