CrimProf Blog

Witmer-Rich on Whren

Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted Arbitrary Law Enforcement is Unreasonable: Whren's Failure to Hold Police Accountable for Traffic Enforcement Policies on SSRN. Here is the abstract:

A core mistake in Whren v. United States is the Court’s failure to hold police accountable for their own enforcement policies and practice. The Whren Court found itself at loss to imagine a world in which police would be constitutionally prohibited from making a traffic stop in the face of clear evidence that a traffic violation had in fact occurred. The Court’s error was its unspoken decision to evaluate police conduct against the written traffic code, as opposed to evaluating police conduct against police enforcement practices.

In other contexts, the Court has recognized that arbitrary intrusions into privacy are unreasonable under the Fourth Amendment. When the police consistently choose to enforce the law — here, the traffic code — by using standards different from those written into the code, then the appropriate baseline for assessing the reasonableness of police conduct is by evaluating that conduct against the police department’s own chosen enforcement practices and policies. Pretextual stops for traffic violations that ordinarily would not trigger police enforcement are arbitrary, and therefore unreasonable. Ignoring police enforcement practice represents a failure to hold police to the standards that police create themselves, resulting in a clear practice of arbitrary — and thus constitutionally unreasonable — policing.

Recent criminal law/procedure cert grants

From Friday, issue summaries from ScotusBlog, which also links to papers:

• Packingham v. North Carolina: Whether, under the court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a wide array of websites – including Facebook, YouTube, and nytimes.com – that enable communication, expression, and the exchange of information among their users, if the site is “know[n]” to allow minors to have accounts, is permissible, both on its face and as applied to petitioner, who was convicted based on a Facebook post in which he celebrated dismissal of a traffic ticket, declaring “God is Good!”
• Esquivel-Quintana v. Lynch: Whether a conviction under one of the seven state statutes criminalizing consensual sexual intercourse between a 21-year-old and someone almost 18 constitutes an “aggravated felony” of “sexual abuse of a minor” under 8 U.S.C. § 1101(a)(43)(A) of the Immigration and Nationality Act – and therefore constitutes grounds for mandatory removal.
• Dean v. United States: Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcherand related opinions from the U.S. Court of Appeals for the 8th Circuit to the extent that those opinions limit the district court's discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c) in determining the appropriate sentence for the felony serving as the basis for the Section 924(c) conviction.

"Court sends Arizona life-without-parole cases back to state courts"

The post is at ScotusBlog, describing the opinion in Tatum v. Arizona. Justice Sotomayor concurred in the decision. Justice Alito, joined by Justice Thomas, dissented.

Lederman on The Lincoln Assassination

Martin Lederman (Georgetown University Law Center) has posted The Law (?) of the Lincoln Assassination (Scholarship @ GEORGETOWN LAW, 2016) on SSRN. Here is the abstract:

Shortly after John Wilkes Booth killed Abraham Lincoln, President Andrew Johnson directed that Booth’s alleged coconspirators be tried in a makeshift military tribunal, rather than in the Article III court that was open for business just a few blocks from Ford’s Theater. Johnson’s decision implicated a fundamental constitutional question that had been a source of heated debate throughout the Civil War: When, if ever, may the federal government circumvent Article III’s requirements of a criminal trial by jury, with an independent, tenure-protected judge presiding, by trying individuals other than members of the armed forces in a military tribunal?

This Article III question has been debated in several of the nation’s major wars, yet remains unresolved, particularly with respect to the trial of domestic-law offenses.

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Thaxton on Capital Charging

Sherod Thaxton (University of California, Los Angeles (UCLA) - School of Law) has posted Un-Gregg-ulated: Capital Charging and the Missing Mandate of Gregg v. Georgia (Duke Journal of Constitutional Law & Public Policy, Vol. 11, No. 1 & 2, 2016) on SSRN. Here is the abstract:

Arbitrariness and bias in the administration of capital punishment persist after many decades of procedural reforms designed specifically to eliminate these problems. Why have capital punishment systems failed to satisfy the conditions set forth by the U.S. Supreme Court — requiring the death penalty to be administered fairly and consistently, or not at all — despite functioning under the tremendous scrutiny of both the capital defense bar and general public? In this essay, I argue that at least part of the reason capital punishment systems continue to proceed in a constitutionally impermissible manner is the Court's significant narrowing of its holding announced in Gregg v. Georgia. In Gregg, the Court emphasized the importance of proportionality review, entailing the comparison of a defendant's case with similarly situated defendants for the assessment of the appropriateness of the death penalty in each particular case. Less than a decade later, the Court significantly narrowed its holding in Gregg by ruling comparative proportionality review was not constitutionally required. As a result, the Court removed one of the most important procedural safeguards announced in Gregg, especially in light of the growing evidence at the time that capital punishment statutes were being applied arbitrarily and discriminatorily.

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"Verdict in Oregon Draws Surprise and Questions About Equity"

From The New York Times:

Though the exact reasoning of the jurors, who came from across Oregon and were never identified by name in court, remains unknown, most onlookers blamed prosecutorial overreach — that the government stretched its case too far to fit the events at the refuge — or stumbles in the presentation of evidence.

 

The conspiracy charges leveled against the occupiers did not help either. Though often used for criminal enterprises — like a plot to steal money or to sell illegal drugs — conspiracy appeared to be a cloudier explanation for the occupation, which drew an array of people with grievances against Washington.

"Pennsylvania Senate approves bill preventing public officials from identifying police officers who use force"

From Jurist:

JURIST - Pennsylvania Senate approves bill preventing public officials from identifying police officers who use force

The Pennsylvania Senate on Wednesday approved a contentious bill [legislative materials] that allows public officials to be charged with a crime for identifying a police officer who used force against someone. The new statutory requirements would bar any public officials or employees from identifying police officers until 30 days after the use of force incident or after the investigation is complete. Anyone who violates the proposed law would face a second-degree misdemeanor charge. The American Civil Liberties Union of Pennsylvania [advocacy website] criticized the bill [press release] for diminishing transparency and suggested that the bill may increase distrust between communities and police officers. The bill was amended by the Senate, so it now returns to the House for a vote. If the House agrees to the Senate's changes, it will head to Governor Tom Wolf [official website] for approval. A spokesperson for Wolf said [PennLive report] the governor is still reviewing the bill and has not yet made a decision.

 

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

 

Rank	Downloads	Paper Title
1	618	Student Surveillance, Racial Inequalities, and Implicit Racial Bias Jason P. Nance University of Florida Levin College of Law Date posted to database: 29 Aug 2016
2	244	What Lurks Below Beckles Leah M. Litman and Shakeer Rahman University of California, Irvine School of Law and Independent Date posted to database: 28 Aug 2016
3	239	Principled Policing: Warrior Cops and Guardian Officers Seth W. Stoughton University of South Carolina School of Law Date posted to database: 27 Aug 2016 [4th last week]
4	224	The Constitutional Right to Collateral Post-Conviction Review Carlos Manuel Vazquez andStephen I. Vladeck Georgetown University Law Center and University of Texas School of Law Date posted to database: 16 Sep 2016  [3rd last week]
5	180	Plausible Cause Kiel Robert Brennan-Marquez New York University School of Law Date posted to database: 22 Aug 2016 [6th last week]
6	177	Moonlighting: The Private Employment of Off-Duty Officers Seth W. Stoughton University of South Carolina School of Law Date posted to database: 27 Aug 2016 [5th last week]
7	174	The Judicial Presumption of Police Expertise Anna Lvovsky Columbia University - Law School Date posted to database: 30 Sep 2016
8	155	Terry's Original Sin Jeffrey Fagan Columbia Law School Date posted to database: 18 Sep 2016 [new to top ten]
9	151	Unpacking the Relationship between Prosecutors and Democracy in the United States David Alan Sklansky Stanford University Date posted to database: 30 Aug 2016 [10th last week]
10	146	Comment on R v K(A): Carding, Racial Profiling and Police Perjury David M. Tanovich and Donald R. Stuart University of Windsor - Faculty of Law and Queen's University Date posted to database: 4 Mar 2016 [8th last week]

 

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

 

Rank	Downloads	Paper Title
1	292	When and How Corporations Became Persons under the Criminal Law, and Why It Matters Now W. Robert Thomas Cleary Gottlieb Steen & Hamilton LLP Date posted to database: 7 Sep 2016
2	265	What is an International Crime? (A Revisionist History) Kevin Jon Heller University of London - School of Oriental and African Studies (SOAS) Date posted to database: 10 Sep 2016
3	211	Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper Craig Forcese and Kent Roach University of Ottawa - Common Law Section and University of Toronto - Faculty of Law Date posted to database: 8 Oct 2016
4	128	Clarity in Criminal Law Shon Hopwood Georgetown University Law Center Date posted to database: 16 Sep 2016 [5th last week]
5	107	Justice Scalia's Originalism and Formalism: The Rule of Criminal Law as a Law of Rules Stephanos Bibas University of Pennsylvania Law School Date posted to database: 2 Sep 2016 [7th last week]
6	96	Finding Ordinary Meaning in Law: The Judge, the Dictionary or the Corpus? Lawrence M. Solan andTammy A Gales Brooklyn Law School and Hofstra University Date posted to database: 13 Oct 2016 [new to top ten]
7	92	Killing Citizens: Core Legal Dilemmas in the Targeted Killing of Canadian Foreign Terrorist Fighters Craig Forcese and Leah Sherriff University of Ottawa - Common Law Section and University of Ottawa- Graduate Studies in Law Date posted to database: 29 Aug 2016 [8th last week]
8	91	Law in the Anthropocene Epoch Eric Biber University of California, Berkeley - School of Law Date posted to database: 4 Sep 2016 [9th last week]
9	87	Punishing Sexual Fantasy Andrew Gilden Willamette University - College of Law Date posted to database: 9 Sep 2016 [10th last week]
10	83	Dose of Reality: The Effect of State Marijuana Legalizations Angela Dills, Sietse Goffardand Jeffrey Miron Cato Institute, Cato Institute and Cato Institute Date posted to database: 23 Sep 2016 [new to top ten]

 

Tonry on Police Data

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted What Should We Expect from Police Data: Can They Tell Us Whether Crime Rates Rise or Fall?
Cahiers—Police Studies (Forthcoming) on SSRN. Here is the abstract:

Police data on registered crime are incomplete, inconsistent, and susceptible to manipulation. This has long been understood. Less well understood are changes over time in victims’ and others’ patterns of reporting to the police that sometimes make apparent changes in crime figures fundamentally misleading. Police data in recent decades in many countries, for example, overstated increases in violence rates, especially when the real incidence of violence was rising, and understated declines when the real incidence was falling. Changes in victim reporting are understandable; they partly reflect widely recognized changes in social norms and attitudes toward disturbing behavior. Behaviors affected include drunken driving and violence against women. Even more confounding are changes in thresholds of tolerance for violence and other disturbing behavior that shape citizens’ answers to victimization surveys and their decisions to report alleged crimes, and police decisions to register them. Disturbing behaviors, for example, minor violence, sexual misconduct, and impaired driving, that formerly were not viewed as criminal now are. Taken together, changes in victim reporting and in the effects on victims and police of changing thresholds of tolerance have in some European countries generated misleading police crime data that indicate that violent and sexual offending has increased in recent years, or been stable. The best evidence, however, is they are much more likely to have declined.

Cusack & Waranius on Visual Detection of Sex Offenders

Carmen M. Cusack and Matthew E. Waranius (Nova Southeastern University and Independent) have posted Visual Detection of Sex Offenders and Consequential Biases Among Christians (10 Journal of Law and Social Deviance 44 (2015)) on SSRN. Here is the abstract:

Appearance may be somewhat predictive of sexual history. This Article explains the foundation for this investigation and pilot study, which considered whether physical appearance evidences sex crime perpetration. Section II discusses facial features associated with non-traditional sexual preferences, sexual aggression, and sexual dominance. Section III, Methods, explains sampling and data collection strategies used to investigate relationships among race, bias, and perception of sex-offending. Section IV presents the data collected from surveying and Section V analyzes this data. Finally, Section VI, the Discussion Section, concludes that perception of sex offense perpetration may correlate with perception that a person is unlikely to be Christian.

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Richards et al. on Restorative and Therapeutic Justice for Juveniles

Kelly Richards, Lorana Bartels and Jane Bolitho (School of Justice, Queensland University of Technology, University of Canberra - School of Law and Justice and University of New South Wales (UNSW) - School of Social Science and Policy) have posted Children's Court Magistrates' Views of Restorative Justice and Therapeutic Jurisprudence Measures for Young Offenders ((2016) Youth Justice, 1-19) on SSRN. Here is the abstract:

Restorative justice and therapeutic jurisprudence measures have recently been introduced into youth justice systems. As gatekeepers to these measures, Children’s Court magistrates play a crucial role in their success. However, little research has been undertaken on magistrates’ views of these measures. This article addresses this gap by presenting results of interviews undertaken with Children’s Court magistrates in New South Wales, Australia. Our research suggests that magistrates are enthusiastic about the philosophy of both restorative and therapeutic measures, but are reluctant to embrace them if they consider them underresourced, poorly understood and/or poorly implemented. The implications of these findings are discussed.

"A Digital Archive Documents Two Decades of Torture by Chicago Police"

From The Atlantic, courtesy of NACDL news scan:

The Chicago Police Department seems to be continuously embroiled these days in multiple, high-profile investigations of fatal incidents, corruption scandals, and mishandling of critical equipment. Now, the CPD will have to contend with an online, 10,000-document-strong archive of an even more troubling time in its history: the notorious two decades in which officers performed torture.  

 

The Chicago Torture Archive will open this month at the University of Chicago. The massive collection comes from efforts by the People’s Law Office, a civil-rights organization, to gather interrogations, criminal-trial files, civil-litigation documents, works of journalism, and records of activism spurred by the CPD torture cases documented between 1972 and 1991.

"Roommate in Tyler Clementi Case Pleads Guilty to Attempted Invasion of Privacy"

From The New York Times:

The former roommate of Tyler Clementi, the Rutgers University freshman who killed himself six years ago, pleaded guilty on Thursday to attempted invasion of privacy, one of the original 15 counts against him, ending a long and tortuous prosecution in a case that drew international attention.

The roommate, Dharun Ravi, who had used a webcam to spy on Mr. Clementi while he was having sex with another man, was sentenced to time already served and fines paid.

By pleading guilty to the third-degree felony, Mr. Ravi, 24, accepted a deal with state prosecutors to drop all charges after an appellate court threw out his conviction.

Ordower et al. on Misdemeanors as Revenue Producers

Henry Ordower, J. S. Onésimo Sandoval and Kenneth Warren (Saint Louis University - School of Law, Saint Louis University - Department of Sociology and Anthropology and Saint Louis University - Department of Political Science) have posted Out of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution and Constitutional Limitations on SSRN. Here is the abstract:

The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the taxing power in order to remain valid. Constitutional tax limitations in Missouri, however, prohibit the increase of existing or enactment of new taxes without an affirmative vote of the electorate. Municipalities have circumvented the constitutional taxing limitations by using laws enacted under policing powers in violation of the constitution. The police and the municipal courts enforcing traffic laws have produced a racially discriminatory and regressive local tax system that violates the tax limitations of the Missouri constitution.

Franks on Revenge Porn

Mary Anne Franks (University of Miami School of Law) has posted 'Revenge Porn' Reform: A View from the Front Lines (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

The legal and social landscape of “revenge porn” has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the term “revenge porn.” By August 2016, 34 states and Washington D.C. had criminalized the conduct, federal criminal legislation on the issue had been introduced in Congress, Google, Facebook, and Twitter had banned nonconsensual pornography from their platforms, and the term “revenge porn” had been added to the Merriam Webster dictionary. I have had the privilege of playing a role in many of these developments. In 2013, I argued that nonconsensual pornography required a federal criminal response and drafted a model statute to this effect. That statute served as the template for what eventually became the federal Intimate Privacy Protection Act of 2016, as well as for numerous state laws criminalizing nonconsensual pornography. As the Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, I have worked with tech industry leaders, legislators, attorneys, victims, and advocates to develop policies and solutions to combat this abuse. This article is an account from the front lines of the legislative, technological, and social reform regarding this evolving problem.

Tonry on Punishment Theory

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Punishment Theory for the Twenty-First Century: The Need to Replace Retributive and Mixed Theories (Censure Theory [working title] (Anthony E. Bottoms & Antje du Bois Pedain eds., Hart, 2017 Forthcoming) on SSRN. Here is the abstract:

The retributive conception of punishment as a process for censuring blameworthy conduct provides an important element of a complete theory of punitive justice, but by itself is not enough. Nor are “mixed” theories that attempt to reconcile traditional retributive and consequentialist elements. In the abstract, if punishment were unidimensional and based solely on the offenses of which offenders were convicted, they should be censured, and punished, precisely as much as they deserve relative to the censure and punishment of other offenders who commit the same and different offenses. All that would be needed is a sufficiently discriminant ordinal scale of offense seriousness tied to proportionate punishments. Punishment, however, cannot be unidimensional, as recent exploratory efforts to develop principled accounts of sentencing of individuals convicted of multiple offenses show. A complete theory of punitive justice must also take account of principles, values, and goals besides blameworthiness and crime prevention. These include fairness, equality, and human dignity, but not merely as side constraints. A conception of punishment based on blameworthiness, or blameworthiness and prevention, can be no more than one among several interacting normative frameworks governing just punishment of convicted offenders.

"Study: Indiana’s Public Defender System Underfunded, Inadequate"

From Indiana Public Media, including the study itself, via NACDL news scan:

A study released this week by a public defense advocacy group says Indiana’s public defender system fails to provide adequate representation.

The Boston-based Sixth Amendment Center studied eight Indiana counties over a period of several months last year to determine whether the state’s public defense system is working. According to the report, Indiana isn’t meeting its constitutional obligation to provide effective representation in misdemeanor, felony and juvenile cases

 

 

"Arizona Sheriff Arpaio charged with criminal contempt"

From Jurist:

JURIST - Arizona Sheriff Arpaio charged with criminal contempt

A federal judge on Tuesday ordered [order, PDF] Arizona Sheriff Joe Arpaio to be tried on a charge of criminal contempt. Judge Susan Bolton of the US District Court for the District of Arizona [official website] made the order after determining that Arpaio disobeyed a court order in a racial profiling case. This comes after Judge G Murray Snow requested [JURIST report] that the US Attorney's Office file criminal contempt charges against Arpaio. The criminal contempt charges are a result of a 2007 lawsuit claiming that Arpaio discriminated against Latinos in his enforcement of his immigration patrols. Bolton found [CNN report] that Snow had prohibited Arpaio from enforcing his immigration patrols where they detained persons without state charges, but Arpaio continued to detain such persons and deliver them to US Immigration and Customs Enforcement [official website] when there were no charges to bring against the detainees. Bolton ordered Arpaio's trial for December 6 in Phoenix. The charges against Arpaio could result in fines or jail time if he is convicted.

 

Tonry on The Multiple Offense Paradox

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Solving the Multiple Offense Paradox (More than One Crime: Sentencing the Multiple Offender (Jesper Ryberg, Julian V. Roberts & Jan de Keijser eds., Oxford University Press, 2017 Forthcoming)) on SSRN. Here is the abstract:

Retributive and most mixed theories of punishment provide little guidance for sentencing people convicted of multiple offenses at one time — say 5 robberies, 5 sexual assaults, or 100 drug sales; or a robbery, a sexual assault, and 10 drug sales — or who were previously convicted. Judicial practice in Western countries is typically to discount punishments for multiple current convictions but, to different degrees, to punish successive convictions progressively more severely. Unpersuasive efforts have been made to justify those divergent patterns in ways that are reconcilable with retributive theories. What needs instead to be recognized is that principles derived from punishment theories cannot by themselves provide adequate complete justifications of adequate frames of reference for the complex social practice of punishment. Other principles relating to fairness, equality, and human dignity must be taken into account.