CrimProf Blog

MacLean, Berles & Lamparello on Wrongful Convictions

Charles E. MacLean , James Berles and Adam Lamparello (Indiana Tech Law School , Indiana Tech - Law School and Indiana Tech - Law School) have posted Stop Blaming the Prosecutors: The Real Causes of Wrongful Convictions and Rightful Exonerations, and What Should Be Done to Fix Them on SSRN. Here is the abstract:

Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable. Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct is not the driving force behind wrong convictions, prosecutors can – and should – be part of a comprehensive solution that reduces the likelihood of wrongful convictions. This article proposes a number of solutions to reduce the number of wrongful convictions in our criminal justice system, and to ensure that criminal trials are conducted in a manner that is consistent with due process of law.

Hessick on Booker in the Circuits

Carissa Byrne Hessick (University of Utah - S.J. Quinney College of Law) has posted Booker in the Circuits: Backlash or Balancing Act? on SSRN. Here is the abstract:

In her essay, Rebellion: The Courts of Appeals’ Latest Anti-Booker Backlash, Alison Siegler identifies what she characterizes as a rebellion in the circuit courts against the Supreme Court’s recent sentencing decisions. Those decisions, which include the seminal case United States v. Booker, transformed the federal sentencing regime from a mandatory system, in which all judges were required to follow the Federal Sentencing Guidelines, into a system in which the Guidelines were only advisory. Professor Siegler perceives the circuits as rebelling against Booker because they have adopted rules that “underpolice within-Guidelines sentences.” 

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Semerad on Cumulative Error Claims

Ryan Semerad has posted What's the Matter with Cumulative Error?: Killing a Federal Claim in Order to Save It (Ohio State Law Journal, 2015 Forthcoming) on SSRN. Here is the abstract:

This note investigates the inefficacy of cumulative error claims raised by state death row inmates in their federal habeas corpus petitions. It surveys modern federal habeas precedents giving rise to cumulative error claims, investigates the various circuit standards used in evaluating these claims, and concludes that these claims fail due to the confluence of vague historical precedent and increasingly restrictive federal habeas law. It recommends constructing a mandatory pre-federal habeas review procedure wherein claims of cumulative error are evaluated on the merits by all the stakeholders in the state criminal justice systems in order to ensure the integrity of that system and the reliability of criminal convictions and sentences.

Litman on Resentencing after Johnson v. US

Leah M Litman has posted Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality (115 Columbia Law Review Sidebar 55 (2015)) on SSRN. Here is the abstract:

This Essay examines the impact a favorable decision in Johnson v. United States could have at the various stages of post-conviction relief for three categories of prisoners -- prisoners whose convictions have not yet become final; prisoners whose convictions have become final but who have not yet filed a petition seeking post-conviction relief; and prisoners whose convictions have become final and who have already filed at least one petition seeking post-conviction relief. In doing so, it offers a reading of the relevant cases and statutes that permits any defendant sentenced under the Armed Career Criminal Act to obtain relief based on a decision invalidating the residual clause. It also highlights some under-explored statutes and doctrinal questions that courts will confront as they determine which prisoners should be resentenced in light of Johnson.

Yang on Resource Constraints and the Criminal Justice System

Crystal S. Yang (Harvard Law School) has posted Resource Constraints and the Criminal Justice System: Evidence from Judicial Vacancies on SSRN. Here is the abstract:

Ten percent of federal judgeships are currently vacant, yet little is known on the impact of these vacancies on criminal justice outcomes. Using judge deaths and pension eligibility as instruments for judicial vacancies, I find that prosecutors decline more cases during vacancies. Prosecuted defendants are more likely to plead guilty and less likely to be incarcerated, suggesting more favorable plea deals. The incarceration effects are larger among defendants represented by private counsel. These estimates imply that the current rate of vacancies has resulted in 1000 fewer prison inmates annually compared to a fully staffed court system, a 1.6 percent decrease.

Moore, Sandys & Jayadev on Participatory Defense

Janet Moore , Marla Sandys and Raj Jayadev (University of Cincinnati College of Law , Indiana University Bloomington - Department of Criminal Justice and Albert Cobarrubius Justice Project, Silicon Valley De-Bug) have posted Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform (Albany Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration. This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems. After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives. First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard. Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy.

Kastellec on Race-Based Effects in Death Penalty Appeals

Jonathan P. Kastellec (Princeton University - Department of Politics) has posted Race, Context and Judging on the Courts of Appeals: Race-Based Panel Effects in Death Penalty Cases on SSRN. Here is the abstract:

I examine how the identities of judges on multimember courts interact with case context to influence judicial decision making. Specifically, I leverage the variation in both panel composition and defendant race to examine race-based panel effects in death penalty cases on the Courts of Appeals. Using a dataset that accounts for several characteristics of a defendant and his crime, I find that the random assignment of a black judge to an otherwise all-non-black panel substantially increases the probability that the panel will grant relief to a defendant on death row - but only in cases where the defendant is black. The size of the increase is substantially large: conditional on the defendant being black, a panel composed of a single African-American judge is 15 percentage points more likely to grant relief than an all-non-black panel. These results have important implications for assessing the role of minority judges in generating substantive representation on the federal courts and contribute to the empirical literature on the application of the death penalty in the United States.

Webb on The Immortal Accusation

Lindsey Webb (University of Denver Sturm College of Law) has posted The Immortal Accusation (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

In the American criminal justice system, accusations have eternal life. Prosecutors, judges, and prison officials regularly consider dismissed charges and even prior acquittals in the defendant’s criminal history when making decisions ranging from the filing of charges to the imposition of punishment. This Article argues that the criminal justice system’s reliance on “accusation evidence” should be understood as furthering its larger allegiance to attaining and preserving findings of guilt.

Once the government obtains a guilty plea or verdict, appellate courts rarely overturn convictions based on concerns about the accuracy of the conviction; indeed, post-conviction review procedures often are structured to prevent meaningful consideration of innocence claims.

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Georgakopoulos on Trials with Large DNA Databases

Nicholas L. Georgakopoulos (Indiana University - Robert H. McKinney School of Law) has posted Visualizing Trials with Large DNA Databases on SSRN. Here is the abstract:

This essay seeks to help the reader follow the analysis by Ayres and Nalebuff of the use of probability theory in assessing DNA evidence drawn from large databases. I first guide the reader through visualizing a simpler paradox of probability theory: the rare disease test. I then offer a visual understanding of their paradigmatic setting: DNA evidence from a large database identifies an individual, but a deceased prime suspect also exists whose DNA is not available. A third unknown perpetrator whose DNA is not in the database is also a possibility. Consider the three possible scenarios. In the first scenario, the deceased prime suspect is the perpetrator, and the DNA test produces a false positive identification. In the second scenario the unknown perpetrator is guilty, and again the court observes a false positive. The third scenario has the perpetrator in the database, and the court observes a true positive. Effectively, the court needs to ascertain the probability of the third scenario, which turns out to be highly likely. This approach makes visible the possibility of a false positive after a false negative.

Fay-Ramirez on Family Treatment Court

Suzanna Fay-Ramirez (University of Queensland - Institute for Social Science Research (ISSR)) has posted Therapeutic Jurisprudence in Practice: Changes in Family Treatment Court Norms Overtime (Law and Social Inquiry, Vol. 40, No. 1, 2015) on SSRN. Here is the abstract:

Family Treatment Court (FTC) is an example of an increasing number of problem-centered courts currently operating in the US. Problem-centered courts such as FTC encompass the ideas of therapeutic jurisprudence but operate within the broader court system. Presented are the results of an FTC case study that seeks to understand the evolution of courtroom norms and practice over time. Observations of courtroom interactions and interviews with courtroom personnel show that initial observations are consistent with the ideals of therapeutic jurisprudence. However, overtime, daily demands and pressures on the courtroom undermine the therapeutic approach.

Wang on Mail and Wire Fraud Prosecution for Insider Trading and Tipping

William K. S. Wang (University of California, Hastings College of the Law) has posted Application of the Federal Mail and Wire Fraud Statutes to Criminal Liability for Stock Market Insider Trading and Tipping (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:

SEC Rule 10b-5 covers a great deal of stock market insider trading and tipping, but certainly not all. 

For insider trading defendants, some elements of criminal liability may be different and possibly easier to satisfy under mail/wire fraud than under SEC Rule 10b-5 (e.g., materiality, and the requirements for tipper and tippee liability recently tightened for Rule 10b-5 by the Second Circuit). Generally, courts have not addressed these possible differences. 

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Wexler on Offender Release and Supervision

David B. Wexler (University of Puerto Rico - School of Law) has posted A Forward-Looking Foreword (OFFENDER RELEASE AND SUPERVISION: THE ROLE OF COURTS AND THE USE OF DISCRETION ___ (Martine Herzog-Evans ed., 2015)) on SSRN. Here is the abstract:

This is a Foreword to Professor Martine Herzog-Evans' volume on offender release and supervision, a book that examines several post-incarceration release systems, principally in Europe and the US, and looks at the functioning of the various structures, which differ with respect to whether the releasing authority is a court or executive agency, whether release on supervision occurs automatically or through the exercise of discretion, and the like. In the Foreword, I look at and compare the structures using the perspective of therapeutic jurisprudence(TJ), examining, for example, whether a given legal structure ("bottle") does or does not fit well with the use of rehabilitative techniques ("wine" or "liquid") recommended by the TJ literature. The inquiry is whether the particular bottle is "TJ-friendly" in the sense of permitting the introduction of the TJ wine. Examples are drawn from traditional discretionary parole, automatic supervised release, the "judge of execution of sentence" schemes common in Europe and Latin America, and US tribal court provisions allowing for discretionary parole.

Logan on Exiting Sex Offender Registries

Wayne A. Logan (Florida State University - College of Law) has posted Database Infamia: Exit from the Sex Offender Registries (Wisconsin Law Review, 2015) on SSRN. Here is the abstract:

Since originating in the early-mid 1990s, sex offender registration and community notification laws have swept the country, now affecting the lives of hundreds of thousands of individuals. The laws require that individuals provide, update and at least annually verify personal identifying information, which governments make publicly available via the Internet and other means. Typically retrospective in their reach, and sweeping in their breadth, the laws can target individuals for their lifetimes, imposing multiple hardships. This symposium contribution surveys the extent to which states now afford registrants an opportunity to secure relief from registration and community notification and examines the important legal and policy ramifications of the limited exit options made available.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	1,516	Rethinking Presumed Knowledge of the Law in the Regulatory Age  Michael Anthony Cottone  Independent  Date posted to database: 24 Mar 2015
2	487	Police Body-Worn Cameras  Alexandra Claudia Mateescu,Alex Rosenblat and danahboyd  Data & Society Research Institute, Data & Society Research Institute and Data & Society Research Institute  Date posted to database: 26 Feb 2015
3	281	Navigating the Legal Risks of Daily Fantasy Sports: A Detailed Primer in Federal and State Gambling Law  Marc Edelman  City University of New York - Baruch College, Zicklin School of Business  Date posted to database: 1 Apr 2015
4	223	Conflict Assessment: Northern Kenya and Somaliland  Ken Menkhaus  Davidson College  Date posted to database: 4 Apr 2015
5	222	Copwatching  Jocelyn Simonson  New York University School of Law  Date posted to database: 1 Mar 2015
6	176	Using the 'Smart Return' to Reduce Tax Evasion  Joseph Bankman, Clifford Nass and Joel B. Slemrod  Stanford Law School, Stanford University and University of Michigan, Stephen M. Ross School of Business  Date posted to database: 16 Mar 2015 [10th last week]
7	174	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 [6th last week]
8	146	Database Infamia: Exit from the Sex Offender Registries  Wayne A. Logan  Florida State University - College of Law  Date posted to database: 15 Apr 2015 [new to top ten]
9	145	The Shifted Paradigm: Forensic Sciences's Overdue Evolution from Magic to Law  M. Chris Fabricant andWilliam Tucker Carrington  Innocence Project, Inc. and University of Mississippi - School of Law  Date posted to database: 4 Mar 2015 [new to top ten]
10	145	Symposium on Minds, Brains, and Law: A Reply  Michael S. Pardo and Dennis Patterson  University of Alabama School of Law and European University Institute  Date posted to database: 11 Mar 2015

Next week's criminal law/procedure arguments

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

Monday

• Kingsley v. Hendrickson: Whether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.

Wednesday

• Glossip v. Gross: (1) Whether it is constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious; (2) whether the plurality stay standard of Baze v. Rees applies when states are not using a protocol substantially similar to the one that this Court considered in Baze; and (3) whether a prisoner must establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment.

Sekhon on Purpose, Policing, and the Fourth Amendment

Nirej Sekhon (Georgia State University College of Law) has posted Purpose, Policing, and the Fourth Amendment ((Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

Fourth Amendment cases are replete with references to “purpose.” Typically, these references pertain to the motivations of individual officers and occasionally to those of public institutions. That courts pay attention to purpose is unsurprising. Across many areas of law, an alleged wrongdoer’s intentions are often critical to determining liability, a remedy, or both. Purpose analysis in Fourth Amendment cases however, is surprisingly confused. The Supreme Court has, without explanation, advanced separate frameworks for analyzing purpose – objective, subjective, and programmatic. The only consistent thing about the three approaches is that they all fail to ensure that law enforcement agents behave transparently and honestly. The failure is particularly worrisome because of the increasingly salient role that purpose analysis has played in recent Supreme Court cases.

This Article contends that purpose should be an ex ante institutional design principle rather than what it currently is, a judicial device for ascertaining an actor’s past motivations.

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Stoughton on Law Enforcement's "Warrior" Problem

Seth W. Stoughton (University of South Carolina School of Law) has posted Law Enforcement's 'Warrior' Problem (128 Harv. L. Rev. Forum 225 (2015)) on SSRN. Here is the abstract:

Within law enforcement, few things are more venerated than the concept of the Warrior. Officers are trained to cultivate a “warrior mindset,” the virtues of which are extolled in books, articles, interviews, and seminars intended for a law enforcement audience. An article in Police Magazine opens with a sentence that demonstrates with notable nonchalance just how ubiquitous the concept is: “[Officers] probably hear about needing to have a warrior mindset almost daily.” Modern policing has so thoroughly assimilated the warrior mythos that, at some law enforcement agencies, it has become a point of professional pride to refer to the “police warrior.” This is more than a relatively minor change in terminology. Though adopted with the best of intentions, the warrior concept has created substantial obstacles to improving police/community relations. In short, law enforcement has developed a “warrior” problem.

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Rich on Automated Suspicion Algorithms and the Fourth Amendment

Michael Rich (Elon University School of Law) has posted Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment (University of Pennsylvania Law Review, Forthcoming) on SSRN. Here is the abstract:

At the conceptual intersection of machine learning and government data collection lie Automated Suspicion Algorithms, or ASAs, algorithms created through the application of machine learning methods to collections of government data with the purpose of identifying individuals likely to be engaged in criminal activity. The novel promise of ASAs is that they can identify data-supported correlations between innocent conduct and criminal activity and help police prevent crime. ASAs present a novel doctrinal challenge, as well, as they intrude on a step of the Fourth Amendment’s individualized suspicion analysis previously the sole province of human actors: the determination of when reasonable suspicion or probable cause can be inferred from established facts. This Article analyzes ASAs under existing Fourth Amendment doctrine for the benefit of courts who will soon be asked to deal with ASAs. In the process, the Article reveals how that doctrine is inadequate to the task of handling these new technologies and proposes extra-judicial means of ensuring that ASAs are accurate and effective.

Jones on Deceptive Police Practices

Elizabeth N. Jones (Western State College of Law) has posted The Good and (Breaking) Bad of Deceptive Police Practices (45 New Mexico Law Review 101 (2015)) on SSRN. Here is the abstract:

This article appears in a special edition of the New Mexico Law Review dedicated to the critically acclaimed television drama, Breaking Bad. It discusses the possible association between Breaking Bad’s depiction of investigative strategic police deception and the Department of Justice’s recent finding of a “pattern or practice of excessive force” by some Albuquerque Police Department officers. The shared timeline between the two phenomena provides an opportunity to explore the dual role of television as both entertainer and educator, and to analyze recognized research in behavioral social science. The article contrasts the favorable public exposure Breaking Bad bestowed upon Albuquerque with the possibility of its damaging influence on the local police subculture.

Gruber on Provocation

Aya Gruber (University of Colorado Law School) has posted A Provocative Defense (103 California Law Review 273 (2015)) on SSRN. Here is the abstract:

It is common wisdom that the provocation defense is, quite simply, sexist. For decades, there has been a trenchant feminist critique that the doctrine reflects and reinforces masculine norms of violence and shelters brutal domestic killers. The critique is so prominent that it appears alongside the doctrine itself in leading criminal law casebooks. The feminist critique of provocation embodies several claims about provocation’s problematically gendered nature, including that the defense is steeped in chauvinist history, treats culpable sexist killers too leniently, discriminates against women, and expresses bad messages. This article offers a (likely provocative) defense of the provocation doctrine. While fully acknowledging widespread gender inequity in society, the Article argues that the feminist critique may overestimate the provocation doctrine’s contribution to such inequality and underestimate its value to marginalized defendants. Provocation, like many legal doctrines, has a complex history. Further, the limited empirical evidence available appears to undermine rather than confirm assertions that the defense disproportionately burdens women and proves strategically vital to murderous men. Moreover, efforts to utilize criminal punishment to express an anti-masculinity, anti-violence message may, in the end, reinforce destructive masculine norms, exacerbate racial hierarchies, justify extant unequal power distributions, and, ironically, increase violence and suffering. In the end, the Article cautions that the feminist critique of provocation and similar progressive critiques of doctrinal leniency may unintentionally instantiate and entrench the punitive impulses that create and sustain mass incarceration.