CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, May 31, 2016

"Cincinnati gorilla incident: Police investigating boy's family"


The family of a boy who entered a Cincinnati Zoo gorilla's enclosure last weekend -- spurring zoo officials to shoot and kill the animal -- will be the focus of an investigation into the incident, Cincinnati police said Tuesday.

. . .

Cincinnati police said Tuesday that their review "is only regarding the actions of the parents/family that led up to the incident and not related to the operation or safety of the Cincinnati Zoo."

May 31, 2016 | Permalink | Comments (1)

"Poland Revives Effort to Extradite Roman Polanski"

From The New York Times:

The Polish government said on Tuesday that it would revive an effort to extradite the filmmaker Roman Polanski, whom the American authorities have wanted for decades. He pleaded guilty in 1977 to having sex with a 13-year-old girl but fled to Europe the next year, on the eve of his sentencing.

The announcement is the latest twist in a long-running legal battle that, at least in Poland, seemed to have ended.


May 31, 2016 | Permalink | Comments (0)

Comiskey on Decision Trees for Juries

Marie Comiskey (University of Toronto) has posted Tempest in a Teapot – The Role of the Decision Tree in Enhancing Juror Comprehension and Whether It Interferes with the Jury's Right to Deliberate Freely? (Oñati Socio-Legal Series, Vol. 6, No. 2, 2016) on SSRN. Here is the abstract:

This article explores the potential of the decision tree (also referred to as a flow-chart, “Route to Verdict” or question-trail) to improve the legal comprehension of jurors in criminal trials. It examines why the decision tree has not yet been adopted as a mainstream jury aid in the United States and suggests that the hesitancy is rooted in longstanding distrust of any attempt to encroach on the freedom of the jury and the concern that a list of questions to guide jury deliberations may unduly influence and compel a verdict that the jury would not otherwise render. The findings from research from England, Canada, Australia and the United States on the effectiveness of decision trees in enhancing juror comprehension is discussed. The reliance on decision trees in medicine to facilitate patient comprehension of treatment options and in assisting physicians to navigate through complex treatment protocols is also considered as instructive for the legal system. The paper suggests that decision trees neither interfere with a defendant’s constitutional right to a jury trial nor with a jury’s right to deliberate freely, and that greater use of this tool should be considered given the promising indications from empirical research that decision trees can enhance jurors’ recall and comprehension of legal concepts. Any concerns about the potential misuse of decision trees are overstated and can be remedied through clear instructions to the jury.

May 31, 2016 | Permalink | Comments (0)

Skolnik on Reasonable Suspicion in Canada

Terry Skolnik (University of Toronto, Faculty of Law, Students) has posted The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe (Ottawa Law Review, Vol. 47, No. 1, 2016) on SSRN. Here is the abstract:

Canadian Criminal law distinguishes between the thresholds of “reasonable suspicion” and “reasonable grounds to believe” required in order for police officers to lawfully arrest persons, conduct certain forms of searches, and to obtain warrants. Officers wishing to lawfully exercise these powers must satisfy the requisite legal standard, or risk violating individuals’ constitutional rights with the ensuing possibility of exclusion of evidence. Unfortunately, recent attempts to clarify differences between the two thresholds is complex to articulate, confusing, and impracticable.

This article examines the fundamental difficulties related to the current theoretical and practical distinctions between both standards. These issues are important for legal practitioners and judges interpreting whether the standards have been reached and whether constitutional rights have been violated, and, as a theoretical and pragmatic basis upon which to interpret the scope of new police powers.

It is argued that the current confusion between both standards arises from the faulty usage of notions of “possibility” and “probability.” Furthermore, in identifying new police powers, courts have sometimes imposed legal standards which cannot safely or reasonably be met. Ultimately, I will attempt to provide a more coherent theoretical basis for distinguishing between both standards based on comprehensible pragmatic considerations. As a result, I hope to not only articulate a more simple and meaningful distinction between both standards based on certain overarching considerations, but which will also assist in identifying which standard ought to apply in identifying new police powers.

May 31, 2016 | Permalink | Comments (0)

Opinion dissenting from cert denial on constitutionality of death penalty

Justice Breyer, joined by Justice Ginsburg, dissented from the denial of certiorari in Tucker v. Louisiana.

May 31, 2016 | Permalink | Comments (0)

Opinion recognizing defendant's right to inform jury of parole ineligibility in death case

The per curiam opinion was filed today in Lynch v. Arizona. Justice Thomas, joined by Justice Alito, dissented.

May 31, 2016 | Permalink | Comments (0)

Opinion finding procedural default on habeas

The per curiam opinion was filed today in the case captioned Johnson v. Lee, reversing the Ninth Circuit's decision. 

May 31, 2016 | Permalink | Comments (0)

Monday, May 30, 2016

Leasure & Andersen on Certificates of Recovery

Peter Leasure and Tia Stevens Andersen (University of South Carolina and University of South Carolina) have posted An Experimental Study of the Effectiveness of Certificates of Recovery as Collateral Consequence Relief Mechanisms on SSRN. Here is the abstract:

Securing stable, quality employment is one of the most robust predictors of desistance from offending. Yet, obtaining gainful employment is difficult for ex-offenders due to the stigma of a criminal record. In recognition of employment-related barriers to re-entry, some state legislatures have created certificates of recovery/relief, which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure employment decisions about certificate-holders are made on a case-by-case basis. The present study presents the results of the first empirical test of the effectiveness of such certificates. Using an experimental correspondence design, fictitious applicants applied to entry-level jobs advertised in the Columbus metropolitan area using fabricated resumes with identical names, educational backgrounds, employment experience, and skills. Because the only differences between the resumes were the type of criminal record and the presence of a Certificate of Qualification for Employment (CQE), the results isolate the specific impacts of criminal records and certificates on employment opportunities. Results indicate that, for job seekers with a one-year-old felony drug conviction, having a certificate of recovery increases the likelihood of receiving an interview invitation or job offer more than threefold. Importantly, certificate-holders and their counterparts with clean criminal backgrounds were equally likely to receive an interview invitation or job offer. These promising preliminary results suggest certificates of recovery/relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

May 30, 2016 | Permalink | Comments (0)

Perlin on The Death Penalty and Mental Disability

PerlinMichael L. Perlin (New York Law School) has posted 'Merchants and Thieves, Hungry for Power': Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities (Washington and Lee Law Review, Vol. 73, 2016, Forthcoming) on SSRN. Here is the abstract:

In spite of the Supreme Court’s decisions in Ford v. Wainwright (1986), Atkins v. Virginia (2002), and Hall v. Florida (2014), persons with severe psychosocial and intellectual disabilities continue to be given death sentences, in some cases leading to actual execution. Although the courts have been aware of this for decades -- dating back at least to the infamous Ricky Rector case in Arkansas -- these base miscarriages of justice continue and show no sign of abating. Scholars have written clearly and pointedly on this issue (certainly, more frequently since the Atkins decision in 2002), but little has changed.

Continue reading

May 30, 2016 | Permalink | Comments (0)

Sunday, May 29, 2016

"Judge temporarily suspends extradition of "El Chapo" to US"

From Jurist:

A Mexican judge granted a temporary suspension [El Mundo report, in Spanish] on the extradition of Joaquín "el Chapo" Guzmán to the US on Saturday. The decision comes after Guzmán's lawyers filed [El Pais report, in Spanish] an appeal arguing that extradition to the US would be unconstitutional. The Mexican foreign ministry had approved [Fox News report] the extradition of Guzmán so that he could be tried in US federal courts. The judge gave a "non-postponable" 48-hour window for the foreign ministry to present an argument that the extradition will comply with the extradition agreement. Furthermore, the judge provided that if the court does not receive the argument, the extradition decision will be reviewed by the justice department in June.

May 29, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here. The usual disclaimers apply.

Rank Downloads Paper Title
1 368 De-Policing
Stephen Rushin and Griffin Sims Edwards
University of Alabama - School of Law and University of Alabama at Birmingham - Department of Marketing, Industrial Distribution & Economics
Date posted to database: 3 Apr 2016 
2 303 Racial Profiling Report: Bloomfield Police and Bloomfield Municipal Court
Mark Denbeaux, Kelley Kearns andMichael J. Ricciardelli
Seton Hall University, School of Law, Seton Hall University, School of Law '18 and Seton Hall University, School of Law '08
Date posted to database: 9 Apr 2016 
3 224 Everybody Talks About Prosecutorial Conduct But Nobody Does Anything About It: A 25-Year Survey of Prosecutorial Misconduct and a Viable Solution
Harry M. Caldwell
Pepperdine University - School of Law
Date posted to database: 10 Apr 2016 [4th last week]
4 191 Policing Predictive Policing
Andrew Guthrie Ferguson
University of the District of Columbia - David A. Clarke School of Law
Date posted to database: 18 Apr 2016 [5th last week]
5 165 Prosecutorial Analytics
Jason Kreag
University of Arizona Rogers College of Law
Date posted to database: 25 Apr 2016 [6th last week]
6 153 Why Vague Sentencing Guidelines Violate the Due Process Clause
Kelsey Heilman
Government of the United States of America - U.S. District Court for the District of Oregon
Date posted to database: 1 May 2016 [7th last week]
7 145 The Heavy Costs of High Bail: Evidence from Judge Randomization
Arpit Gupta, Christopher Hansmanand Ethan Frenchman
Columbia University - Columbia Business School, Columbia University, Barnard College - Department of Economics and Maryland Office of The Public Defender
Date posted to database: 6 May 2016 [10th last week]
8 119 Designing Plea Bargaining from the Ground Up: Accuracy and Fairness Without Trials as Backstops
Stephanos Bibas
University of Pennsylvania Law School
Date posted to database: 7 May 2016 [9th last week]
9 97 False Confessions in the Twenty-First Century
Richard A. Leo and Brian L. Cutler
University of San Francisco - School of Law and University of Ontario Institute of Technology (UOIT)
Date posted to database: 5 May 2016 [new to top ten]
10 96 Reconceptualizing the Eighth Amendment: Slaves, Prisoners, and 'Cruel and Unusual' Punishment
Alex Reinert
Yeshiva University - Benjamin N. Cardozo School of Law
Date posted to database: 6 Apr 2016 [new to top ten]

May 29, 2016 | Permalink | Comments (0)

Saturday, May 28, 2016

"Will Overreach Kill Mens Rea Reform?"

Kent Scheidegger has this post at Crime & Consequences. In part:

Yet neither the House bill nor the Senate bill includes recklessness in its defaultmens rea provision.  The Senate bill (S. 2298) requires "willfully" and the House bill (H.R. 4002) requires "knowing."  Why not include recklessness?  I have not found any explanation.

. . . 

Another troubling and potentially dangerous provision in the House bill is a requirement that the defendant know that his conduct is illegal. . . . 

The feds put some very bad gangsters away on weapons charges when witnesses to the other crimes they have committed are not available (e.g., deceased or afraid of becoming deceased).  The potentially crippling effect on such prosecutions of adding a very difficult to prove element of the defendant's knowledge of the law could have grave consequences for the future victims of gangsters who should have been put away.

Support for a recklessness standard seems sensible to me, but the objection to the mistake-of-law proposals seems to me to overstate the difficulties of proof--especially if something less than "knowledge" is required. Most folks in illegal possession of guns are probably at least consciously aware of a substantial and unjustifiable risk that their possession is illegal, and requiring proof of negligence regarding illegality would be even easier to satisfy and would still address many of the cases giving rise to the call for reform.


May 28, 2016 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Downloads Paper Title
1 481 The Federal Circuits’ Second Amendment Doctrines
David B. Kopel and Joseph G.S. Greenlee
Independence Institute and Independent
Date posted to database: 21 Apr 2016 
2 319 Like Snow to the Eskimos and Trump to the Republican Party: The Ali's Many Words for, and Shifting Pronouncements About, 'Affirmative Consent'
Kevin Cole
University of San Diego School of Law
Date posted to database: 24 Mar 2016
3 167 Living at the Intersection: Laws & Vehicle Residency
Jessica So, Scott MacDonald, Justin Olson, Ryan Mansell and Sara Rankin
Seattle University, School of Law, Students, Seattlle University, School of Law, Students, Seattlle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law
Date posted to database: 8 May 2016 
4 148 Campus Sexual Assault Adjudication and Resistance to Reform
Michelle J. Anderson
CUNY School of Law
Date posted to database: 21 Apr 2016
5 120 Causation: Linguistic, Philosophical, Legal and Economic
Richard W. Wright and Ingeborg Puppe
Illinois Institute of Technology - Chicago-Kent College of Law and University of Bonn - Department of Law
Date posted to database: 22 Apr 2016 [6th last week]
6 119 Shut Out: How Barriers Often Prevent Meaningful Access to Emergency Shelter
Suzanne Skinner and Sara Rankin
Seattle University School of Law and Seattle University School of Law
Date posted to database: 10 May 2016 [7th last week]
7 100 Belief States in Criminal Law
James A Macleod
Date posted to database: 27 Apr 2016 [8th last week]
8 80 Chapter One. Two Models of Criminal Justice
Michael Louis Corrado
University of North Carolina (UNC) at Chapel Hill - School of Law
Date posted to database: 6 Apr 2016 [new to top ten]
9 76 The Common Law of War
Jens David Ohlin
Cornell University - School of Law
Date posted to database: 18 Apr 2016 
10 75 Introduction to Causation, Liability and Apportionment: Comparative Interdisciplinary Perspectives
Richard W. Wright, Florence G'selland Samuel Ferey
Illinois Institute of Technology - Chicago-Kent College of Law, University of Lorraine and University of Lorraine
Date posted to database: 19 Apr 2016 


May 28, 2016 | Permalink | Comments (0)

Friday, May 27, 2016

"Why Amnesty International Is Calling for Decriminalizing Sex Work"

From The New York Times:

It’s official: On Wednesday night, Amnesty International released its long-awaited policy on an incredibly contentious issue, calling on governments around the world to “decriminalize consensual sex work.” Amnesty also wants countries to “include sex workers in the development of laws that affect their lives and safety” and ensure they are “protected from harm, exploitation and coercion.”

The hullabaloo over Amnesty’s stance on sex work started last summer, when 500 delegates from 80 countries voted in favor of an initial recommendation to decriminalize. The recommendation was denounced by groups whose goal is to end prostitution, which they see as a source of sexual inequality and harmful to women. Amnesty drew support from public-health advocates and activists who see decriminalization as the best means of reducing the harms associated with the sex industry, including underage prostitution, trafficking and violence. The debate will surely repeat itself, and it will almost as surely be rife with accusations of betrayal.

May 27, 2016 | Permalink | Comments (0)

"[Connecticut] Supreme Court Upholds Abolishment Of Death Penalty, Including For Death-Row Inmates"

From the Hartford Courant:

Following a second Supreme Court ruling that outlaws the death penalty for everyone in Connecticut, the state's top prosecutor said Thursday that the 11 men on death row would be re-sentenced to life in prison without the possibility of release.

Chief State's Attorney Kevin T. Kane's announcement signaled a definitive end to prosecutors' fight to keep in place the death sentences of those on death row and uphold the wishes of state legislators, who in 2012 repealed capital punishment with the caveat that those already sentenced to death could still face execution.

May 27, 2016 | Permalink | Comments (0)

"Iowa top court rules juveniles cannot be given life without parole"

From Jurist:

The Iowa Supreme Court [official website] on Friday ruled [opinion, PDF] that juvenile convicted of first-degree murder may not be sentenced to life without parole. The court reasoned that sentencing a juvenile to life without parole was cruel and unusual punishment and emphasized that "sentencing courts should not be required to make speculative up-front decisions on juvenile offenders' prospects for rehabilitation." The court noted that it may be determined that an individual is beyond rehabilitation after time has passed, "after a record of success or failure in the rehabilitative process is available." The court also emphasized that parole was not guaranteed to juveniles, but rather only needs to be left available.

May 27, 2016 | Permalink | Comments (0)

Richardson, Spencer & Wexler on Therapeutic Jurisprudence

Elizabeth Richardson , Pauline Spencer and David B. Wexler have posted The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing (25 Journal of Judicial Administration 148 (2016)) on SSRN. Here is the abstract:

There is a growing emphasis on the role of justice systems to improve the wellbeing of the individuals and the communities that justice systems serve. This has been the argument of therapeutic jurisprudence scholars for decades and has recently been recognized by the Productivity Commission in Australia in 2014 in its report Access to Justice Arrangements. This article discusses two important, but previously unrelated, tools that enable courts and tribunals to achieve this objective by improving the quality of justice and enhancing the wellbeing of individuals and communities in which those courts and tribunals operate: the International Framework for Court Excellence (IFCE or the Framework) and therapeutic jurisprudence (TJ). The IFCE, a quality management system for courts and tribunals, and TJ, an interdisciplinary discourse on the therapeutic and anti-therapeutic of the law and legal processes, are both aimed at improving the quality of justice. This article provides an outline of the Framework and TJ: the principles and the methodologies that each entails and the various types of innovation and reform that have arisen through their application. The way the two should work together is considered and it is suggested that there are benefits to be gained for courts and tribunals by incorporating principles of TJ into the Framework and by using the Framework to assess TJ reforms.

May 27, 2016 | Permalink | Comments (0)

Alanen on Forced Marriage

Julia Alanen has posted Custom or Crime?: Crafting a Competent Framework to Combat Forced Marriage (American Journal of Family Law, Forthcoming) on SSRN. Here is the abstract:

This article is the third in a four-part series about forced marriage in the USA. Part I aims to define forced marriage and distinguish it from arranged marriage, inform the reader about who could be a forced-marriage victim or perpetrator, and explore the catalysts and consequences of harmful marriage practices. Part II evaluates existing U.S. legal remedies and resources for combating forced marriage. Part III explores the fierce, ongoing debate over whether forced marriage laws should be civil or criminal in nature. And, Part IV sets forth recommendations for a comprehensive national response to protect and empower U.S.-based victims and survivors seeking to avoid or flee forced marriages. This piece includes excerpts from Alanen’s earlier article, Shattering the Silence Surrounding Forced and Early Marriage in the United States, Children's Legal Rights Journal, Vol. 32, No. 2 (Summer 2012).

May 27, 2016 | Permalink | Comments (0)

Thursday, May 26, 2016

"Louisiana Enacts Hate Crimes Law to Protect a New Group: Police"

From The New York Times:

Hate crime statutes originated as a response to bigotry, a special penalty for singling people out for abuse based on factors like race, ethnicity, sex, religion, sexual orientation or, most recently, gender identity. On Thursday, Louisiana became the first state to add law enforcement officers to that list.

A bill signed into law by Gov. John Bel Edwards on Thursday set off a debate over whether the measure was really needed to protect officers, or whether, as civil rights groups charged, it was an effort to dilute the basic meaning of hate crimes and to undermine the movement protesting the use of force by the police. A similar bill is pending in Congress.


May 26, 2016 | Permalink | Comments (0)

Wheeler & Phillips on Reducing Crimes Using Roadblocks and Automatic License Plate Readers

Andrew Palmer Wheeler and Scott W. Phillips (John F. Finn Institute for Public Safety and State University of New York (SUNY) - Department of Criminal Justice) have posted A Quasi-Experimental Evaluation Using Roadblocks and Automatic License Plate Readers to Reduce Crime in Buffalo, NY on SSRN. Here is the abstract:

Purpose: To evaluate the effectiveness of a hot spots policing strategy: using automated license plate readers at roadblocks.

Design: Different roadblock locations were chosen by the Buffalo Police Department every day over a two month period. We use propensity score matching to identify a set of control locations based on prior counts of crime and demographic factors before the intervention took place. We then evaluate the reductions in Part 1 crimes, calls for service, and traffic accidents at roadblock locations compared to control locations.

Findings: We find modest reductions in Part 1 violent crimes (10 over all roadblock locations and over the two months) using t-tests of mean differences. We find a 20% reduction in traffic accidents using fixed effects negative binomial regression models. Both results are sensitive to the model used though, and the fixed effects models predict increases in crimes due to the intervention.

Continue reading

May 26, 2016 | Permalink | Comments (0)