CrimProf Blog

States Snub Execution Drug Approved by Supreme Court

The story is in The New York Times. In part:

Experts in lethal-injection law said some states were reluctant to turn to the drug in part because of its involvement in high-profile executions last year in Oklahoma, Ohio and Arizona in which prisoners appeared to suffer.

. . .

Of the nation’s 31 death-penalty states, only a handful use midazolam or include it as an option in their official protocols, including Florida, Virginia, Alabama, Oklahoma, Louisiana and Arizona, lethal-injection experts said. The other states use other drugs, including pentobarbital, or do not specify the drugs they use. Oklahoma had not rescheduled its first execution after the ruling.

Browde on Increased Penalties for Identity Theft-Based Refund Fraud

Pippa Browde (University of Montana - School of Law) has posted Many Unhappy Returns: The Need for Increased Tax Penalties for Identity Theft-Based Refund Fraud (Vol. 18, Fla. Tax Rev., Forthcoming) on SSRN. Here is the abstract:

The growing problem of fraudulent tax returns being submitted based on stolen identities is a “tsunami of fraud,” and victims, lawmakers, and law enforcement are struggling with how to deal with the fallout. The issues surrounding identity theft-based tax fraud are complex. Current IRS efforts to stem the tide involve pouring resources into assisting victims, updating IRS processes to detect and prevent refund fraud, and increasing the number of criminal investigations and prosecutions it pursues. The IRS’s approach and pending proposed legislation are not enough to address the problems created by identity theft-based tax fraud. This article argues the IRS and Congress must use a holistic approach to attack this specie of tax fraud. To that end, this article supports enhanced criminal penalties and proposes new civil tax penalties aimed specifically at identity theft tax fraud.

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Tyler, Jackson & Mentovich on Potential Pitfalls of Proactive Police Contact

Tom Tyler , Jonathan Jackson and Avital Mentovich (Yale University - Law School , London School of Economics & Political Science - Department of Methodology and University of California, Los Angeles (UCLA) - Department of Psychology) has posted The Consequences of Being an Object of Suspicion: Potential Pitfalls of Proactive Police Contact (Journal of Empirical Legal Studies, Forthcoming) on SSRN. Here is the abstract:

During the latter half of the 20th century American policing became more professional (Skogan & Frydl, 2004) and the rate of violent crime declined dramatically (Blumstein & Wallman, 2000). Yet public trust and confidence in the police increased at best marginally and there has been a large and continuing racial gap in police legitimacy. This article reviews changes in police policy and practice to explore the reasons for this seeming paradox. It is argued that a new model of proactive police stops has increased both the frequency of and the range of police contact with people in the community. Such police contact need not inherently undermine public trust in the police, but the style of such contact, through which the police communicate suspicion of ongoing or future criminal contact and seek to prevent it via the threat or use of coercion has not increased trust. This paper examines how such policies developed and why they are problematic. The result of a survey of Americans shows that perceived suspicion damages the social bonds between the police and the community and undermines trust in the police. It concludes by arguing that police contact need not be inherently negative and contact in which the police use fair procedures can addresses issues of crime and disorder while building trust and confidence.

Jackson et al. on The Nature of Duty to Obey

Jonathan Jackson , Ben Bradford , Sarah MacQueen and Mike Hough (London School of Economics & Political Science - Department of Methodology , University of Oxford - Centre for Criminology , University of Edinburgh - School of Law and University of London - Institute for Criminal Policy Research) have posted Truly Free Consent? On the Nature of Duty to Obey on SSRN. Here is the abstract:

Duty to obey is central to nearly all definitions of police legitimacy. When people believe that a police force is an appropriate, moral and just institution, they feel a corresponding duty to obey police commands and directives. Authorization and civic responsibility thus sits at the heart of the motivating force of legitimacy. Yet scholars have recently questioned whether – as currently measured – we are really capturing truly free consent. Tankebe and others have raised the possibility that people can feel obligated to obey the police for reasons that extend beyond the acceptance of – and deference to – legitimate authority. If this is so, then duty to obey may be better viewed as a downstream effect of (among other things) legitimacy rather than legitimacy itself. Drawing on data from a randomized controlled trail (MacQueen and Bradford, forthcoming) we make the case that provided it is appropriately defined and measured, duty to obey can reasonably be seen as a constituent part of legitimacy. In support of this claim are the strong empirical links that we find between a moral duty to obey, positive encounters with police officers, social identity and normative alignment with the police. We also show that a kind of coerced obligation – based on dull compulsion and fear of reprisal – is negatively correlated with trust and legitimacy. Methodological and theoretical implications of the study are discussed.

Hull on Lawyers and Marijuana Counselling

Helia Garrido Hull (Barry University Dwayne O. Andreas School of Law) has posted Lost in the Weeds of Pot Law: The Role of Legal Ethics in the Movement to Legalize Marijuana (Penn State Law Review, Vol. 119, No. 2, 2014) on SSRN. Here is the abstract:

Every day attorneys face ethical dilemmas in trying to meet client needs while complying with professional rules of conduct. Perhaps nowhere is the risk of violating ethics rules more apparent than in states that have diverged from federal drug policy on marijuana. Attorneys currently engaged in marijuana-related counseling may violate federal law even where their actions are otherwise legal under state law. Changes in public opinion regarding the legality of marijuana that are driving some states to legalize or decriminalize certain marijuana-related activities provide no basis for attorneys to breach the covenant they have made with the public to uphold the rule of law. This article argues that attorneys should refrain from counseling clients on the use, possession, and distribution of marijuana until doing so does not violate federal law. Attorneys who favor marijuana legalization should utilize their specialized training and advocacy skills to change the existing law. Current state action to relax ethics standards applicable to marijuana related activities to insulate attorneys from ethics violations could produce the anomalous result of having an attorney criminally prosecuted under federal law for an action that does not violate state ethics rules. Such a result creates internal inconsistency within the state, confuses the public, and could lead to questions regarding the integrity of the profession.

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"Second Circuit grants rehearing in Ganias computer search and seizure case"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Big news in the field of computer search and seizure today: The Second Circuit has granted rehearing in the full case of United States v. Ganias, the blockbuster case from last year on access to overseized files. . . .

Notably, the DOJ’s petition for rehearing in the case was limited to the remedy question of whether the exclusionary rule applied. In contrast, the Second Circuit granted rehearing on the whole case — 4th Amendment violation and remedy.

 

Roberts on Impeaching Defendants

Anna Roberts (Seattle University School of Law) has posted Reclaiming the Importance of the Defendant’s Testimony (University of Chicago Law Review, Vol. 83, 2016) on SSRN. Here is the abstract:

Implicit courtroom stereotypes are an urgent problem. When, as is disproportionately the case, trial defendants are African-American, they are vulnerable to implicit fact finder stereotypes that threaten the presumption of innocence: unconscious associations linking the defendants with violence, weaponry, and guilt. Implicit social cognition reveals that one valuable tool in combating this threat is individuating information — information that, through methods such as defendant testimony, brings an individual to unique life. 

Yet current case law frequently chills defendant testimony by permitting impeachment by prior conviction. Courts determining whether criminal defendants should be impeached by their prior convictions use a multi-factor test, of which one factor is “the importance of the defendant’s testimony.” This factor was designed to prevent defendant testimony from being chilled: if the testimony was important, then impeachment was to be avoided. Now, courts often invert the factor’s meaning: they find that if the defendant’s testimony is important, the government should be able to impeach it. The distortion of this factor means not only that impeachment is typically permitted, and defendants frequently silenced, but also that a valuable opportunity to tackle courtroom bias is lost. 

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Batra on Judicial Participation in Plea Bargaining

Rishi Batra (Texas Tech University School of Law) has posted Judicial Participation in Plea Bargaining: A Dispute Resolution Perspective (Ohio State Law Journal, Vol. 76, No. 3, 2015) on SSRN. Here is the abstract:

There is a common perception that the plea bargaining process is not a judicial matter and therefore judges do not or should not participate in the criminal plea bargaining discussions between prosecutors and defense counsel. However, in many state jurisdictions, judicial participation is allowed or even encouraged in the criminal plea bargaining process by statute or by case law. This Article briefly summarizes some of the issues with judicial participation in the plea bargaining process from a dispute resolution perspective, including how structural issues with the way defense counsel are appointed and compensated, along with the power of prosecutors, makes good representation for defendants less likely. By then performing a fifty-state survey of rules for judicial participation in plea bargaining, the Article explicates both advantages and disadvantages of judicial participation in the plea bargaining process and the creation of a neutral dispute resolution style bargaining perspective. Most importantly, it makes five recommendations for how states can involve judges in the plea bargaining process to retain the advantages while minimizing the disadvantages of judicial participation: having a separate judge or magistrate judge manage the plea process, recording plea bargains for future review, ensuring judges take a facilitative role during the plea process, involving defendants in the process where possible, and holding plea bargains in an informal setting.

Court upholds method of capital punishment

Justice Alito delivered the opinion of the Court in Glossip v. Gross. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer, and Kagan. Justice Breyer also filed a dissenting opinion, joined by Justice Ginsburg, expressing the view that "the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].” Justice Scalia, joined by Justice Thomas, filed a concurring opinion responding to Justice Breyer's dissent. Justice Thomas also concurred in an opinion joined by Justice Scalia. 

"Will New Bipartisan Criminal Justice Reform Plan Fly?"

Doug Berman at Sentencing Law & Policy excerpts this article by Ted Gest at Crime Report. In part:

As support for criminal justice reform has spread, many states have left the federal government behind when it comes to reducing their prison populations. There were 208,598 federal inmates as of yesterday, dwarfing the state with the most in the last national count: Texas, with about 168,000. Prisons are consuming at least a quarter of the U.S. Justice Department's budget, putting a squeeze on other spending.

Until yesterday, most discussion of the issue in Congress has taken place in the Senate, where several members, ranging from conservative Republican Rand Paul of Kentucky to liberal Democrat Cory Booker of New Jersey have filed competing bills that would change federal sentencing laws and help inmates return successfully to society.

Now, two key House members from both major political parties are weighing in with a "Safe, Accountable, Fair, and Effective Justice Act"-- dubbed SAFE -- they suggest could go even farther than the Senate measures.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	662	Ten Seldom Discussed Foreign Corrupt Practices Act Facts that You Need to Know  Mike Koehler  Southern Illinois University School of Law  Date posted to database: 4 May 2015
2	463	Washington's War on the Visibly Poor: A Survey of Criminalizing Ordinances & Their Enforcement  Justin Olson, Scott MacDonald and Sara Rankin  Seattle University School of Law, Seattle University School of Law and Seattle University School of Law  Date posted to database: 8 May 2015 [3rd last week]
3	431	Norms of Computer Trespass  Orin S. Kerr  The George Washington University Law School  Date posted to database: 3 May 2015 [4th last week]
4	296	'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics  Ira Mark Ellman and Tara Ellman  Arizona State University College of Law and Independent  Date posted to database: 9 Jun 2015 [6th last week]
5	291	Brain Science and the Theory of Juvenile Mens Rea  Jenny E. Carroll  University of Alabama - School of Law  Date posted to database: 8 May 2015
6	257	Disparities in Discipline: A Look at School Disciplinary Actions for Utah's American Indian Students  Vanessa Walsh  Independent  Date posted to database: 23 May 2015 [7th last week]
7	206	Towards a Theory of Mitigation  Carissa Byrne Hessick andDouglas A. Berman  University of Utah - S.J. Quinney College of Law and Ohio State University (OSU) - Michael E. Moritz College of Law  Date posted to database: 14 May 2015 [new to top ten]
8	202	The Wrong Side of History: A Comparison of Modern and Historical Criminalization Laws  Javier Ortiz, Matthew Dick andSara Rankin  Seattle University School of Law, Seattle University School of Law and Seattle University School of Law  Date posted to database: 8 May 2015 [10th last week]
9	191	Discrimination at the Margins: The Intersectionality of Homelessness & Other Marginalized Groups  Kaya Lurie, Breanne Schusterand Sara Rankin  Seattle University School of Law, Seattle University School of Law and Seattle University School of Law  Date posted to database: 8 May 2015 [new to top ten]
10	206	At What Cost: The Minimum Cost of Criminalizing Homelessness in Seattle and Spokane  Joshua Howard, David Tranand Sara Rankin  Seattle University School of Law, Seattle University School of Law and Seattle University School of Law  Date posted to database: 8 May 2015 [8th last week]

"Long Taught to Use Force, Police Warily Learn to De-escalate"

From The New York Times:

Across the country, police departments from Seattle to New York and Dallas to Salt Lake City are rethinking notions of policing that have held sway for 40 years, making major changes to how officers are trained in even the most quotidian parts of their work.

The changes that departments are considering include revising core training standards and tactics, reassessing when and how to make arrests, and re-evaluating how officers approach and interact with members of the public during street and traffic stops.

At the forefront are de-escalation tactics, the variety of methods officers use to defuse potentially violent encounters, such as talking and behaving calmly and reasonably with sometimes unreasonable people.

But some of the officers’ reactions in Seattle show just how hard it might be to change entrenched ideas about what their job involves.

Duff on Legal Moralism and Public Wrongs

R. A. Duff (University of Minnesota Law School) has posted Legal Moralism and Public Wrongs (Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S Moore, K. K. Ferzan & S. Morse (eds), Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

After sketching the main features of Moore’s version of legal moralism, and its connection to the type of retributivism that he espouses, I note its expansiveness, both as to the kinds of wrong and as to the range of agents that we have in principle reason to criminalise. I argue that we should instead ground a more modest legal moralism in the traditional idea of crimes as public wrongs and (in response to Moore’s criticisms of that idea) that we can begin to give it substantial content by beginning with the idea of the public realm that any polity must determine for itself; the way in which codes of professional ethics are developed on the basis of an account of the proper scope of the profession provides a useful illustration of this method.

Azmat on Mistake of Law

Ahson Azmat has posted What Mistake of Law Just Might Be: Legal Moralism, Liberal Positivism, and the Mistake of Law Doctrine (18 New. Crim. L. Rev. 3 (2015)) on SSRN. Here is the abstract:

This Article examines and evaluates a distinctive, increasingly popular account of the Mistake of Law doctrine. A growing number of legal theorists have criticized the traditional, positivist interpretation of the doctrine; legal moralists in particular have argued that the traditional interpretation is conceptually confused. Because the doctrine’s use of a strict liability punishment regime does not incentivize individuals to learn the law as well as a negligence regime might, legal moralists argue that the doctrine cannot be explained by a desire to incentivize legal knowledge. In evaluating this argument, the Article defends the traditional account, often identified with the liberal positivism of Justice Holmes. It concludes that the modal claims of legal moralists cannot be vindicated based on the arguments employed to defend them.

Moohr on White Collar Movies

Geraldine Szott Moohr (University of Houston Law Center) has posted White Collar Movies and Why They Matter (Texas Review of Entertainment & Sports Law (2015 Forthcoming)) on SSRN. Here is the abstract:

This article discusses how movies about white collar crimes can influence public perception of such crimes and the criminal justice system that enforces them. A change in public attitudes can ultimately affect not only the popular culture, from which such movies spring, but also popular understanding of legal culture. To evaluate how movies matter, the article reviews the basic tenets of federal white collar criminal law and presents the social theory that traces the relation between entertaining films and the popular culture. This relation is examined through an analysis of four films (Wall Street, Boiler Room, The Wolf of Wall Street, and Margin Call) that contrasts individual culpability and sole responsibility, individual and firm responsibility, and systemic problems for which no individual or firm bears responsibility. Finally, the issues raised by the films are related to current issues in addressing white collar frauds.

Coker & Macquoid on Intimate Partner Violence

Donna Coker and Ahjane Macquoid (University of Miami School of Law and Independent) have posted Alternative U.S. Responses to Intimate Partner Violence (in COMPARATIVE APPROACHES TO DOMESTIC VIOLENCE (Rashmi Goel and Leigh Goodmark eds. 2015) Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

The crime-centric approaches that characterize the dominant U.S. response to intimate partner violence (IPV) fail to adequately address the structural inequalities that create and maintain IPV and, simultaneously, often increases state control of people who are structurally vulnerable – poor women and men, particularly women and men of color, LGBT individuals and undocumented immigrants. 

But the dominant picture is not the whole picture. There are service providers and activists who labor to provide alternative programs and approaches.

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Russell on Jury Sentencing and Juveniles

Sarah French Russell (Quinnipiac University School of Law) has posted Jury Sentencing and Juveniles: Eighth Amendment Limits and Sixth Amendment Rights (Boston College Law Review, Vol. 56, p. 553, 2015) on SSRN. Here is the abstract:

Across the country, states are grappling with how to comply with the U.S. Supreme Court’s recent decision in Miller v. Alabama, which held that mandatory life-without-parole sentences for juveniles violate the Eighth Amendment. Following Miller, it appears a sentencer may impose life without parole on a juvenile homicide offender only in those rare instances in which the sentencer determines, after considering the mitigating qualities of youth, that the juvenile’s crime reflects “irreparable corruption.” Courts are preparing to conduct resentencing hearings in states nationwide, and new cases where juveniles face the possibility of life in prison are entering the courts. Yet courts and scholars have not addressed a fundamental question: Who is the sentencer? Can a judge decide that a particular juvenile should die in prison or does the Constitution give juveniles the right to require that a jury make that determination?

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The opinion everyone was waiting for: Court holds ACCA's residual clause unconstitutionally vague

Justice Scalia delivered the opinion for the Court in Johnson v. United States. Justices Kennedy and Thomas filed opinions concurring in the judgment. Justice Alito dissented.

"Google eavesdropping tool installed on computers without permission"

FourthAmendment.com links to this article in The Guardian. In part:

Privacy campaigners and open source developers are up in arms over the secret installing of Google software which is capable of listening in on conversations held in front of a computer.

First spotted by open source developers, the Chromium browser – the open source basis for Google’s Chrome – began remotely installing audio-snooping code that was capable of listening to users.

It was designed to support Chrome’s new “OK, Google” hotword detection – which makes the computer respond when you talk to it – but was installed, and, some users have claimed, it is activated on computers without their permission.

"France parliament adopts new surveillance bill"

Jurist has the story. In part:

The French Parliament [official website] on Wednesday adopted a surveillance bill[materials, in French] that would give French intelligence services the authority to monitor Internet use metadata. It isreported [AP report] that the bill also allows for court ordered surveillance of suspects homes and cars utilizing beacons and tracking devices.