CrimProf Blog

Next week's criminal law/procedure arguments

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

Monday

• Foster v. Chatman: Whether the Georgia courts erred in failing to recognize race discrimination under Batson v. Kentucky in the extraordinary circumstances of this death penalty case.

Tuesday

• Torres v. Lynch: Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.
• Lockhart v. U.S.: Whether the mandatory minimum sentence of 18 U.S.C. § 2252(b)(2) is triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals.

Engle on Mandatory Reporting of Campus Sexual Assault and Domestic Violence

Jill C. Engle (Pennsylvania State University, Penn State Law) has posted Mandatory Reporting of Campus Sexual Assault and Domestic Violence: Moving to a Victim-Centric Protocol that Comports with Federal Law (Temple Political & Civil Rights Law Review, Vol. 24, No. 401, 2015) on SSRN. Here is the abstract:

This Article will examine "mandatory reporting" of campus domestic violence and sexual assault' by faculty members when a student discloses this kind of incident to them. This Article describes the legal and social landscape of mandatory reporting and the attendant challenges, along with the policies and practices that colleges should adopt for faculty reporting to comply with federal law while still remaining sensitive to victim needs.

Wall on The Organization of Cybercrime

David S. Wall (Centre for Criminal Justice Studies) has posted Dis-Organised Crime: Towards a Distributed Model of the Organization of Cybercrime (The European Review of Organised Crime, 2(2), 2015, 71-90) on SSRN. Here is the abstract:

There exists a widespread and uncritical assumption that the internet and society have been brought to their knees by Mafia-driven organised crime groups. Yet, this rhetorical narrative is not supported by research into the organisation of online crime groupings which finds that the organisation of crime online follows a different logic to the organisation of crime offline, a difference which is also reflected in other organised crime groupings though with different actors. Such findings identify instead a ‘disorganised’ or distributed model of organization, rather than a hierarchical command and control structure. This article maps out the logic behind the organisation of criminal behaviour online before looking critically at the organised cybercrime debates. It then draws upon a simple analysis of the structures of known cybercrime groups and then three case studies of different cybercrime types to explore their organization.

"States Struggle With What to Do With Sex Offenders After Prison"

From The New York Times:

Behind razor wire and locked metal doors, hundreds of men waited on a recent morning to be counted, part of the daily routine inside a remote facility here that was built based on a design for a prison.

But this is not a prison, and most of these men — rapists, child abusers and other sex offenders — have completed their sentences. They are being held here indefinitely under a policy known as civil commitment, having been deemed “sexually dangerous” or “sexual psychopathic personalities” by courts. The intent, the authorities say, is to provide treatment to the most dangerous sex offenders until it is safe for the public for them to go home.

"HRW: Evidence of unlawful police killings in Mexico"

From Jurist:

There is evidence of recent unlawful police killings in Mexico said [press release]Human Rights Watch (HRW) [advocacy website] on Wednesday. The report suggests that police action which left eight civilians dead in the city of Apatzingán on January 6, and 42 civilians and one police officer dead in Tanhuato on May 22 was an "excessive use of force against unarmed civilians." HRW collected witness reports that said police officers were shooting civilians after the initial confrontations were over. Daniel Wilkinson, managing director of the Americas Division at HRW said, "[w]hile the government insists that police acted appropriately in both cases, what witnesses describe clearly involves extrajudicial killings." TheState Attorney General's Office [official website, in Spanish] is handling the investigation into both incidents, and according to HRW the government has denied all allegations of unlawful use of lethal force and continues to portray the victims as aggressors.

Lever on Race and Racial Profiling

Annabelle Lever (University of Geneva - Department of Political Science) has posted Race and Racial Profiling (Oxford Handbook of the Philosophy of Race, ed. Naomi Zack (OUP 2016)) on SSRN. Here is the abstract:

Philosophical reflection on racial profiling tends to take one of two forms. The first sees it as an example of ‘statistical discrimination,’ (SD), or when, if ever, probabilistic generalisations about group behaviour or characteristics can be used to judge particular individuals.(Applbaum 2014; Harcourt 2004; Hellman, 2014; Risse and Zeckhauser 2004; Risse 2007; Lippert-Rasmussen 2006; Lippert-Rasmussen 2007; Lippert-Rasmussen 2014). This approach treats racial profiling as one example amongst many others of a general problem in egalitarian political philosophy, occasioned by the fact that treating people as equals does not always require, or permit, us to treat them the same. The second form is concerned with how racial profiling illuminates the nature, justification, and reproduction of hierarchies of power and privilege based on skin colour and morphology. This form of reflection on racial profiling is therefore less about the justification for judging people based on the characteristics of the group to which they (appear to) belong, and more concerned with the specific ways in which the association of racialised minorities – and, in particular, black people – with crime, contributes to, and reflects, racial inequality, unfreedom, and oppression.(Kennedy 1998; Zack, 2015; Lever, 2005; Lever 2007). Both approaches to profiling have much to recommend them and, taken together, they form an essential component of the political philosophy of race. The statistical approach has the merits of linking racial profiling, as practice, to a body of other practices that generate and justify inequalities based on factors other than race, but it typically offers little by way of insight into the role of racial profiling itself in sustaining racial inequality and injustice. The racial construction approach, for obvious reasons, is rather better at the latter task, but its insights tend to come at the price of a broader understanding of the ways in which inequality is reproduced and justified, or of the ethical dilemmas raised by our competing claims to security. As we will see, insights from both approaches can be synthesized to clarify what, if anything, is wrong with racial profiling and what broader conclusions for equality and security follow from the study of profiling.

Marks et al. on Technology, Crime and Social Control

Amber Marks , Ben Bowling and Colman Keenan (Queen Mary University of London, Law Department , King's College London – The Dickson Poon School of Law and King’s College London, Dickson Poon School of Law, Student) have posted Automatic Justice? Technology, Crime and Social Control (R. Brownsword, E. Scotford and K. Yeung (eds), The Oxford Handbook of the Law and Regulation of Technology, OUP, Forthcoming) on SSRN. Here is the abstract:

This paper examines how forensic science and technology are reshaping crime investigation, prosecution and the administration of criminal justice. It illustrates the profound effect of new scientific techniques, data collection devices and mathematical analytical procedures on the traditional criminal justice system. These blur the boundary between the innocent person, the suspect, the accused and the convicted. They also blur the boundary between evidence collection, testing its veracity and probative value, the adjudication of guilt and punishment. The entire process is being automated and temporally and procedurally compressed. At the same time, the start and finish of the criminal justice process are now indefinite and indistinct as a result of the introduction of mass surveillance and the erosion against ‘double jeopardy’ protections caused by scientific advances that make it possible to revisit conclusions reached in the distant past. This, we argue, indicates a move towards a system of ‘automatic justice’ that is mediated by technology in ways that minimise human agency and undercuts the due process safeguards built into the traditional criminal justice model. The paper concludes that in order to re-balance the relationship between state and citizen in an automatic criminal justice system, we may need to accept the limitations of the existing criminal procedure framework and deploy privacy and data protection law which are now highly relevant to criminal justice.

"Queens Prosecutors Indict 17 in Internet Gambling Ring"

From The New York Times:

An illegal gambling ring with more than 2,000 bettors in the United States moved millions of dollars through banks and credit card companies and used an overseas website to place the wagers and keep the accounts, the office of the Queens district attorney, Richard A. Brown, said on Wednesday.

. . .

Like many large gambling rings in the Internet age, this one relied on old-fashioned street runners, bookies and agents to move the money and settle up with bettors. But setting the betting lines themselves, keeping the accounts of bettors’ wins and losses, and giving the bookies access to this information on their customers was all done by website,www.365ACTION.com.

. . .

Anti-gambling laws have been on the books for decades. But in 2006, Congress tried to help prosecutors stamp out the criminal rings with a law that prohibited online payments for illegal bets. An investigation by The Times and the PBS series ‘Frontline’ has found that the law, pushed through hastily and voted on by many members of Congress who had little understanding of its content, has failed in that aim.

"Federal judge dismisses challenge to NSA surveillance"

From Jurist:

A judge for the US District Court for the District of Maryland [official website] on Fridaydismissed [opinion, PDF; ACLU press release] alawsuit [materials] filed by the American Civil Liberties Union (ACLU) [advocacy website] and other human rights organizations challenging surveillance by the National Security Agency (NSA) [official website]. Judge TS Ellis III granted the government's motion to dismiss, finding, "any alleged burdensome measures taken [by plaintiffs] as a result of subjective fear of surveillance are not fairly traceable to Upstream surveillance" and that common law precedent dictates that "a threatened injury must be certainly impending to constitute injury in fact and that allegations of possible future injury are not sufficient" for relief. The court modeled its opinion on the US Supreme Court's 2013 decision in Clapper v. Amnesty International [JURIST report] that on matters of unconstitutionality surrounding intelligence gathering, the court is to be particularly rigorous.

The suit was filed [JURIST report] in March, challenging "the NSA's "upstream" surveillance, which involves the NSA's tapping into the Internet backbone inside the United States—the physical infrastructure that carries Americans' online communications with each other and with the rest of the world."

Gutterman on the Foreign Corrupt Practices Act

Ellen Gutterman (York University) has posted Banning Bribes Abroad: U.S. Enforcement of the Foreign Corrupt Practices Act (Osgoode Hall Law Journal, Vol. 53, No. 1, Forthcoming) on SSRN. Here is the abstract:

The United States has been at the forefront of international efforts to combat corruption in the global economy for almost forty years, chiefly through its Foreign Corrupt Practices Act (FCPA). Over the past decade, US enforcement of the FCPA has surged - both in increased numbers of enforcement actions and through the application of increasingly expansive interpretations of jurisdiction through which to enforce the FCPA on an extraterritorial basis. On one hand, extraterritorial enforcement of the FCPA has promoted anti-corruption policies and the banning of bribes abroad. At the same time, three aspects of FCPA enforcement shape and constrain the broader goals of global anti-corruption governance in ways that limit effective governance practices and meaningful anti-corruption reform in the global economy: the narrow conception of corruption upon which the FCPA is based; the strategic trade frame which underlies the FCPA’s internationalization; and the legitimacy problems these suggest.

Miller on Sexual Assault, Publication Bans, and Victim Impact Statements

Karen-Lee Miller (Ontario Ministry of Health and Long-Term Care) has posted Frenemies? Policy Initiatives with Positive Benefits and Unintended Negative Consequences for Sexually Assaulted Women. (A presentation to the End Violence Against Women International (EVAWI) Conference, New Orleans, April 9, 2015) on SSRN. Here is the abstract:

The presentation examined the history, efficacy and use of the Publication Ban and the Victim Impact Statement to question common assumptions about who benefits from their application in sexual assault trials. 

Co-presenters Jane Doe and Karen-Lee Miller drew on two qualitative studies to demonstrate the ways in which the Publication Ban and the Victim Impact Statement may be perceived as “frenemies” of victims/survivors. The term frenemy is defined in Wikipedia as a blend of the words ‘friend’ and ‘enemy.’ It refers to someone who pretends to be a friend but actually is an enemy, or someone who really is a friend but is also a rival and therefore potentially dangerous.

Kosta & Valcke on Traffic and Location Data Retention

Eleni Kosta and Peggy Valcke (Tilburg University - Tilburg Institute for Law, Technology, and Society (TILT) and KU Leuven - Faculty of Law) has posted Retaining the Data Retention Directive on SSRN. Here is the abstract:

The retention of traffic (and location) data for law enforcement purposes is an issue that has been discussed within the European Union for several years. After months of legal uncertainty as to whether the legal instrument regulating this issue should be based on the first or the third pillar, the data retention directive was finally adopted on the 15th of March 2006. The directive prescribes the kind of data that has to be retained by the providers of publicly available electronic communications services or of public communications networks and the retention period. In this article we examine critically the choices made by the European Institutions, thereby referring to existing national legislations on traffic data retention and assessing the impact on the industry. In the last chapter we evaluate the compatibility of data retention in the electronic communications sector with Article 8 ECHR.

Rovner on Challenging Solitary Confinement

Laura L. Rovner (University of Denver Sturm College of Law) has posted Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement (American Constitution Society for Law and Policy, Issue Brief, September 2015) on SSRN. Here is the abstract:

The use of solitary confinement in U.S. prisons and jails has come under increasing scrutiny. Over the past few months, Supreme Court Justice Anthony Kennedy all but invited constitutional challenges to the use of solitary confinement, while President Obama asked, “Do we really think it makes sense to lock so many people alone in tiny cells for 23 hours a day for months, sometime for years at a time?” Even some of the most notorious prisons and jails, including California’s Pelican Bay State Prison and New York’s Rikers Island, are reforming their use of solitary confinement because of successful litigation and public outcry. Rovner suggests that in light of these developments and “the Supreme Court’s increasing reliance on human dignity as a substantive value underlying and animating constitutional rights,” there is a strong case to make that long-term solitary confinement violates the constitutional right to freedom from cruel and unusual punishment.

Joh & Joo on DOJ Guidelines on Prosecuting White Collar Crime

Elizabeth E. Joh and Thomas Wuil Joo (University of California, Davis - School of Law and University of California, Davis - School of Law) have posted The Corporation as Snitch: The New DOJ Guidelines on Prosecuting White Collar Crime (Virginia Law Review Online, 2015, Forthcoming) on SSRN. Here is the abstract:

Volkswagen, the world’s largest auto maker, acknowledged in September 2015 that it had equipped its cars with software designed to cheat diesel emissions tests. The VW scandal may become the first major test of the Department of Justice’s recently announced guidelines that focus on individual accountability in white collar criminal investigations. Criminal investigations into safety defects at two other leading car makers, General Motors and Toyota, yielded no criminal charges against any individuals. But in a recent speech announcing the new guidelines, Deputy Attorney General Sally Yates stated, “Crime is crime,” whether it takes place “on the street corner or in the boardroom.” “The rules have just changed.” We raise questions about this new approach and some of its possible implications. The new cooperation policy’s emphasis on individual prosecutions could itself result in leniency: prosecutors may award excessively generous credit to corporations in order to build cases against individuals.

Balkin on Information Fiduciaries and Privacy

Jack M. Balkin (Yale University - Law School) has posted Information Fiduciaries and the First Amendment (UC Davis Law Review, Vol. 49, No. 4, 2016, Forthcoming) on SSRN. Here is the abstract:

This article introduces the concept of an information fiduciary to explain how to protect digital privacy and prevent overreaching by online enterprises consistent with the First Amendment. 

An information fiduciary is someone who, because of their relationship with another, assumes special duties with respect to the information they obtain in the course of the relationship. Traditional information fiduciaries include professionals with special skills like doctors and lawyers. Clients cannot easily observe and monitor what professionals do and are dependent on professional expertise; moreover, professionals expect and encourage clients to have confidence in them. Lacking knowledge, skill, and the ability to monitor, clients must trust that these fiduciaries will not abuse their position and misuse the information they obtain from their clients.

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Glater on "Serial"

Jonathan Glater (University of California - Irvine School of Law) has posted When a Reporter Enters a Bamboo Grove: Reflections on Serial (Ohio State Journal of Criminal Law, 2015, Forthcoming) on SSRN. Here is the abstract:

The popular podcast Serial offers a careful, nuanced perspective on a criminal prosecution, but at the same time represents a missed opportunity to question the workings of criminal law enforcement. The narrative, which chronicles the re-investigation of a fifteen-year-old Baltimore murder case by a reporter, is brilliantly told. Serial illustrates how elusive and unreliable memory can be and how powerful the state’s enforcement machine is, and offers a gripping story of a possible miscarriage of justice. Yet this Essay suggests that Serial ultimately both fails to establish actual innocence of the young man convicted and sentenced for the killing and, more importantly, fails to challenge the enforcement regime that charged him with the crime.

Craig on Rape Trials

Elaine Craig (Dalhousie University - Schulich School of Law) has posted The Inhospitable Court (Forthcoming University of Toronto Law Journal) on SSRN. Here is the abstract:

Who speaks and with what authority, who is believed, what evidence is introduced, and how it is presented, is informed not only by the substantive law and the rules of evidence but also by the rituals of the trial. It is from this legal process as a whole that a judge or jury determines the (legal) ‘truth’ about a woman’s allegation of rape. A sexual assault complainant’s capacity to be believed in court, to share in the production of meaning about an incidence of what she alleges was unwanted sexual contact, requires her to play a part in certain rituals of the trial. Many of these rituals are hierarchical, requiring complainants to perform subordinate roles that mirror the gender, race, and socio-economic status based societal hierarchies in which the problem of sexual violence is rooted. Relying on the work of Robert Cover and interdisciplinary work on ritual for its conceptual framework, this article pursues two objectives. First, it attempts to depict, through the use of trial transcripts, the brutality of the process faced by sexual assault complainants. Second, it exposes some of the institutionalized practices, as manifested through courtroom rituals, that contribute to the inhospitable conditions faced by those that participate in the criminal justice response to sexualized violence.

"Video Shows Officer Flipping Student in South Carolina, Prompting Inquiry"

The New York Times has the story and the video:

The authorities in South Carolina are investigating a confrontation in which a white school police officer in Columbia is seen in a video flipping a black female high school student backward in her desk and dragging her on the floor as he tried to take her into custody.

The Richland County sheriff, Leon Lott, told a local television station that the uniformed officer was responding to a disruptive student who was refusing to leave class on Monday. The student was eventually placed under arrest, Sheriff Lott said, according to the station, WLTX.

"Florida death row inmate requests electric chair"

From Jurist:

A spokesperson for the Florida Department of Corrections on Thursday said that a death row inmate has requested death by electrocution for the first time in nearly twenty years. The inmate, Wayne Doty, was sentenced [Tampa Bay Times report] to death in 2011 after killing a fellow inmate. While the electric chair has not been used for executions in Florida in 16 years, the state has not declared the practice illegal. The practice has not completely disappeared in recent years, as a prisoner was executed by electrocution [WSJ report] in Virginia in 2013. That execution was also the result of a prisoner's request. Private investigator Sean Fisher, who used to work for Doty, believes he is motivated by wanting his death to occur quickly as he is worried about lethal injections being found unconstitutional. According to prison spokesperson McKinley Lewis, the request is currently under review.

George on Sodomy Decriminalization

Marie-Amelie George has posted The Harmless Psychopath: Legal Debates Promoting the Decriminalization of Sodomy in the United States (24 J. Hist. Sexuality 225 (2015)) on SSRN. Here is the abstract:

Sexual psychopath statutes, under which courts committed individuals charged with or convicted of certain crimes, typically sex offenses, to psychiatric institutions, proliferated in the United States between the late 1930s and early 1960s. Twenty-nine states and the District of Columbia enacted versions of these statutes in response to a sex-crime panic that swept the nation after a wave of publicity about violent sex crimes committed against children. While the statutes varied widely in terms of the crimes that triggered the laws’ application and in their definitions of sexual psychopathy, they were almost always applied to men convicted of consensual sodomy and were used to commit homosexual men to institutions. However, in 1955 -- only four years after the rush to enact sexual psychopath laws ended -- the American Law Institute (ALI) voted to exclude consensual sodomy from its Model Penal Code (MPC), indicating that consensual sodomy was not a criminal matter. Therefore, in a very short period, a group of influential legal thinkers had moved consensual homosexual activity from a sign of possible pathology to a legally benign, albeit still immoral, practice. The MPC, a model criminal statute aimed at stimulating penal law reform throughout the United States, became highly influential in legislative efforts to revise state criminal codes, leading twenty-two states to repeal their sodomy statutes by 1978. 

This article explains how American law evolved from the widespread implementation of sexual psychopath statutes to the decriminalization of sodomy, arguing that this shift emerged out of debates around sexual psychopath laws and Alfred Kinsey’s reports on male and female sexual behavior, which questioned many of the assumptions underlying both sexual psychopath statutes and criminal code provisions on consensual sodomy.

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