CrimProf Blog

Chapman on Due Process Abroad

Nathan S. Chapman (University of Georgia School of Law) has posted Due Process Abroad on SSRN.. Here is the abstract:

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. This month the Supreme Court will hear oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican child across the border. Meanwhile the federal courts are scrambling to evaluate the constitutionality of an Executive Order that, among other things, deprives immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause — the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, and property” — remains obscure.

Up to now, scholars have uniformly concluded that the founding generation did not understand due process to apply abroad, at least not to aliens. This Article challenges that consensus.

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Chow on Cultural Barriers to Enforcing FCPA

Daniel C. K. Chow (Ohio State University College of Law) has posted Cultural Barriers to Effective Enforcement of the Foreign Corrupt Practices in China (University of Toledo Law Review, Forthcoming) on SSRN. Here is the abstract:

Many multinational companies (MNCs) doing business in China find that issues of corruption in business are common and dangerous problems. Such problems can expose MNCs to liability under the U.S. Foreign Corrupt Practices Act (FCPA) with all of its attendant serious consequences. MNCs need to realize that certain cultural elements -- respect for authority and a gift giving tradition -- create special pressures on their local employees to submit to requests for cash and non-cash benefits from government officials. It is not enough for MNCs to acknowledge that there may be cultural issues, but it is necessary for MNCs to understand, in detail, the common scenarios in which these cultural elements create social pressures on their employees to comply with requests from Chinese officials for payments. Only by understanding these common scenarios and implementing guidelines on how to respond in these specific situations, can the MNC implement an FCPA compliance program designed to effectively address these problems.

Bates on Stingrays

Adam Bates (Cato Institute) has posted Stingray: A New Frontier in Police Surveillance (Cato Institute Policy Analysis No. 809) on SSRN. Here is the abstract:

Police agencies around the United States are using a powerful surveillance tool to mimic cell phone signals to tap into the cellular phones of unsuspecting citizens, track the physical locations of those phones, and perhaps even intercept the content of their communications.

The device is known as a stingray, and it is being used in at least 23 states and the District of Columbia. Originally designed for use on the foreign battlefields of the War on Terror, “cell-site simulator” devices have found a home in the arsenals of dozens of federal, state, and local law enforcement agencies.

In addition, police agencies have gone to incredible lengths to keep information about stingray use from defense attorneys, judges, and the public. Through the use of extensive nondisclosure agreements, the federal government prevents state and local law enforcement from disclosing even the most elementary details of stingray capability and use. That information embargo even applies to criminal trials, and allows the federal government to order evidence withheld or entire cases dropped to protect the secrecy of the surveillance device.

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Galic on Surveillance of Privileged Consultations

Maša Galič (Tilburg Institute for Law, Technology, and Society (TILT)) has posted Covert Surveillance of Privileged Consultations and the Weakening of the Legal Professional Privilege (European Data Protection Law Review, 4 (2016) 2, 602-607) on SSRN. Here is the abstract:

Covert surveillance of privileged consultations with a lawyer at a police station, as in the case of R.E. v The United Kingdom (App no 62498/11, 27 October 2015), constitutes an extremely high degree of intrusion into a person’s right to respect for his or her private life. The European Court of Human Rights confirmed that interference with the legal professional privilege (LPP) is possible but only under specific circumstances (the interference needs to correspond to a pressing social need and be proportionate to the aim pursued) and covered by a very high level of procedural safeguards. Domestic law thus needs to be sufficiently clear, giving citizens an adequate indication as to the circumstances and the conditions in which public authorities are empowered to resort to any such measures. Exceptional circumstances in Northern Ireland, particularly relating to violent paramilitary groups as in the case of R.E., certainly warrant some exceptions to LPP. Although the ECtHR in R.E. did find a violation of a person’s right to private life, it was generally satisfied with the plethora of legislation in the UK covering covert surveillance of consultations covered by LPP, allowing it for the catch-all purpose of national security, with no limitations to persons that may be subjected to it, and without prior judicial scrutiny. This decision, hence, seems to weaken the requirement of foreseeability and the status of LPP.

Feeney on Privacy and Police Drones

Matthew Feeney has posted Surveillance Takes Wing: Privacy in the Age of Police Drones (Cato Institute Policy Analysis No. 807) on SSRN. Here is the abstract:

Unmanned aerial vehicles, commonly referred to as “drones,” are being used in a range of industries, including conservation, journalism, archeaology, and policing. (In this paper I will use the word “drone” to apply to unmanned aerial vehicles, excluding unmanned aquatic vehicles and terrestrial robots.) Law enforcement drones have clear benefits: allowing police to more easily find missing persons, suspects, and accident victims, for example. They also allow police to investigate dangerous situations such as bomb threats and toxic spills. Yet without strict controls on their use, drones could present a very serious threat to citizens’ privacy. Regrettably, while the Supreme Court has tackled privacy issues amid the emergence of new technologies, the Court’s rulings on aerial surveillance are not well suited for today, now that police are using drones.

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Spamann on Arbitrary Sentencing

Holger Spamann (Harvard Law School) has posted Are Sleepy Punishers Really Harsh Punishers?: Comment on SSRN. Here is the abstract:

This comment points out four severe reservations regarding Cho et al.’s (PS 2017) finding that U.S. federal judges punish more harshly on “sleepy Mondays,” the Mondays after the start of Daylights Savings Time. First, Cho et al.’s finding pertains to only one of at least two dimensions of harshness, and the opposite result obtains in the second dimension. Second, even within the first dimension, Cho et al.’s result is statistically significant only because of a variable transformation and sample restrictions that are neither transparent in the article nor theoretically sound. Third, reanalysis of the data with superior methods reveals no significant “sleepy Monday” effect in the years 1992-2003. Fourth, sentences were on average shorter on “sleepy Mondays” out of sample, namely in 2004-2016.

Walters et al. on Hate Crimes

Mark Walters, Rupert Brown and Susann Wiedlitzka (University of Sussex Law School, Independent and University of Sussex - School of Law, Politics and Sociology) have posted Causes and Motivations of Hate Crime on SSRN. Here is the abstract:

This report is the result of work commissioned by the Equality and Human Rights Commission (EHRC, hereafter the Commission) on the causes and perpetration of hate crime in Great Britain.

Pascoe & Miao on Victim-Perpetrator Reconciliation in Murder Cases

Daniel Pascoe and Michelle Miao (City University of Hong Kong (CityUHK) - School of Law and The Chinese University of Hong Kong, Faculty of Law) have posted Victim-Perpetrator Reconciliation Agreements in Murder Cases: What Can Muslim-Majority Jurisdictions and the PRC Learn from Each Other? on SSRN. Here is the abstract:

As states that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic Law and the People’s Republic of China share a crucial commonality: their frequent use of victim-perpetrator reconciliation agreements to remove convicted murderers from the threat of execution. In both cases, rather than a prisoner’s last chance at escaping execution being recourse to executive clemency, victim-perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the state concerned to reduce execution numbers without formally limiting the death penalty’s scope in law. Utilizing the functionalist approach of comparative law methodology, this article compares the thirteen death penalty retentionist nations that have incorporated Islamic Law principles into their positive criminal law with the People’s Republic of China, as to the functions underpinning victim-perpetrator reconciliation agreements in death penalty cases.

Dissent from cert denial in death penalty case raising question of geographical arbitrariness

Justice Breyer dissented from the denial of cert in Reed v. Louisiana.

Today's criminal law/procedure cert grant

Issue summary is from ScotusBlog, which also links to papers:

• Wilson v. Sellers: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker – that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision – as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

 

Rank	Downloads	Paper Title
1	344	Law and Moral Dilemmas Bert I. Huang Columbia Law School Date posted to database: 9 Jan 2017
2	117	From Economic Recession to Legal Opportunity: The Case for Cartel Criminalisation in Europe Anna Tzanaki University College London, Centre for Law, Economics and Society Date posted to database: 9 Jan 2017
3	79	Punishment and Moral Risk Adam J. Kolber Brooklyn Law School Date posted to database: 10 Jan 2017 [4th last week]
4	73	McDonnell and the Criminalization of Politics George D. Brown Boston College Law School Date posted to database: 2 Feb 2017 [6th last week]
5	69	Strict Liability's Criminogenic Effect Paul H. Robinson University of Pennsylvania Law School Date posted to database: 7 Jan 2017
6	65	Reforming and Resisting the Criminal Law: Criminal Justice and the Tragically Hip Kent Roach University of Toronto - Faculty of Law Date posted to database: 5 Jan 2017 [7th last week]
7	65	Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs Sahar F. Aziz Texas A&M University School of Law Date posted to database: 9 Feb 2017 [new to top ten]
8	65	Rape, Truth, and Hearsay I. Bennett Capers Brooklyn Law School Date posted to database: 9 Jan 2017 [9th last week]
9	64	Intervening in the Context of White Settler Colonialism: West Coast LEAF, Gender Equality and the Polygamy Reference Suzanne Lenon University of Lethbridge Date posted to database: 29 Dec 2016 [8th last week]
10	57	Analogical Reasoning and Extensive Interpretation Giovanni Tuzet and Damiano Canale Bocconi University - Department of Law and Bocconi University - Department of Law Date posted to database: 21 Dec 2016

 

Next week's criminal law/procedure arguments

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

Monday

• 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!”

Tuesday

• Whether the Supreme Court's decision in Pepper v. United States overruled United States v. Hatcher and 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.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	463	Judge Gorsuch and Johnson Resentencing (This is Not a Joke) Leah M. Litman University of California, Irvine School of Law Date posted to database: 24 Jan 2017
2	387	fMRI and Lie Detection Anthony D. Wagner, Richard J. Bonnie, BJ Casey, Andre Davis, David L. Faigman, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott,Laurence Steinberg, Kim A. Taylor-Thompson and Gideon Yaffe Stanford University - Psychology, University of Virginia - School of Law, Yale University - Department of Psychology, US Court of Appeals - Fourth Circuit, University of California Hastings College of the Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute, University of Pennsylvania Law School, Washington University School of Medicine, Yale University - Department of Psychology, Columbia University - Law School, Temple University, New York University School of Law and Yale Law School Date posted to database: 23 Dec 2016
3	169	In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes Scott Meisler Independent Date posted to database: 10 Jan 2017
4	154	The Progressive Prosecutor's Handbook David Alan Sklansky Stanford University Date posted to database: 15 Feb 2017 [new to top ten]
5	137	The Battle over the Burden of Proof: A Report from the Trenches Michael D. Cicchini Independent Date posted to database: 14 Feb 2017 [new to top ten]
6	128	The Structure of Federal Public Defense: A Call for Independence David Patton Federal Defenders of New York [4th last week] Last Revised: 20 Dec 2016
7	124	When Interviewing Children: A Review and Update Karen J. Saywitz, Thomas D. Lyonand Gail S. Goodman University of California, Los Angeles (UCLA), University of Southern California - Gould School of Law and University of California, Davis Date posted to database: 5 Jan 2017 [5th last week]
8	121	Machine Testimony Andrea L. Roth University of California, Berkeley - School of Law Date posted to database: 7 Jan 2017 [6th last week]
9	106	Constitutional Reasonableness Brandon L. Garrett University of Virginia School of Law Date posted to database: 23 Jan 2017 [7th last week]
10	103	The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century Christopher Slobogin Vanderbilt University - Law School Date posted to database: 15 Dec 2016 [8th last week]

Davies on The Musgrave Ritual

Ross E. Davies (George Mason University - Antonin Scalia Law School, Faculty) has posted Some Sort of Map or Chart of the Adventure of the Musgrave Ritual (Green Bag Single Sheet Classic No. 5 (2017)) on SSRN. Here is the abstract:

When and where did the Musgrave Ritual germinate, when and where did Sherlock Holmes solve the mysteries of the Ritual and of the disappearance of Rachel Howells, and when and where did Holmes tell the whole story to John Watson? This map and its companion explain. Maybe.

Morse on Neuroethics

Stephen Morse (University of Pennsylvania Law School) has posted Neuroethics: Neurolaw (In Oxford Handbooks Online (February 2017)) on SSRN. Here is the abstract:

This is a pre-copyedited version of a chapter in the Oxford Handbooks Online (Philosophy) edited by Sandy Goldberg. In altered form, it was published online in February, 2017 and can be found at the Oxford Handbooks Online website. The entry discusses whether the findings of the new neuroscience based largely on functional brain imaging raise new normative questions and entail normative conclusions for ethical and legal theory and practice. After reviewing the source of optimism about neuroscientific contributions and the current scientific status of neuroscience, it addresses a radical challenge neuroscience allegedly presents: whether neuroscience proves persons do not have agency. It then considers a series of discrete topics in neuroethics and neurolaw, including the “problem” of responsibility, enhancement of normal functioning, threats to civil liberty, competence, informed consent, end of life issues, and the ethics of caution. It suggests that the ethical and legal resources to respond to the findings of neuroscience already exist and will do so for the foreseeable future.

Kagu on Criminal Justice's Ailing Role

Abubakar Bukar Kagu (University of Sussex - School of Law, Politics and Sociology) have posted Criminal Justice's Ailing Role (Advances in Social Sciences Research Journal, Vol. 4(2), p. 164-175, 2017) on SSRN. Here is the abstract:

The general philosophy of social contract is premised on the notion that the state assumes the role of maintaining social relation through diverse political ideas and strategies. Within the context of this historical arrangement, the institution of criminal justice has been foremost in shaping the relationship between members of the community by defining rights and sanctions. These socio-legal trajectories that developed through theories and policies have continued to define the various strategies of crime control as well as the jurisprudence of punishment. It has also been the key measure for the legitimacy of crime control and other dispute resolution techniques (Davies et al. 2009). Being a significant component in the formation of political systems, the institution of criminal justice has also developed to encapsulate the values of democracy, constitutionalism and human rights.

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Walters & Brown on Preventing Hate Crime

Mark Walters and Rupert Brown (University of Sussex Law School and Independent) have posted Preventing Hate Crime on SSRN. Here is the abstract:

This report provides a comprehensive review of interventions that are currently being used to combat hate crime in England and Wales. The report complements another piece of work which was commissioned by the Equality and Human Rights Commission on the causes and motivations of hate crime and we recommend that both of these reports be read together (Walters, Brown and Wiedlitzka 2016). We have divided the report into three parts, the first and second examine the evidence-base for criminalisation, policing, and criminal justice and education-based interventions aimed at tackling hate. Here we pinpoint a number of emerging practices, using case studies, to highlight the ways in which hate-based incidents can be effectively challenged. We note also the limitations in research and offer recommendations for better evidence gathering to support the improved use of such practices. The third part of this report focuses on barriers to the effective management of criminal justice interventions for hate crime. In this final part of the report we set out a list of recommendations to enhance the effective management of hate crime offenders and the prevention of hate crime more generally. These recommendations are based on extensive consultations with research, policy and practitioner experts working in the area of hate crime.

Steinhoff on Proportionality in Self-Defense

Uwe Steinhoff (The University of Hong Kong - Department of Politics and Public Administration) has posted Proportionality in Self-Defense (Journal of Ethics (2017)) on SSRN. Here is the abstract:

This article considers the proportionality requirement of the self-defense justification. It first lays bare the assumptions and the logic – and often illogic – underlying very strict accounts of the proportionality requirement. It argues that accounts that try to rule out lethal self-defense against threats to property or against threats of minor assault by an appeal to the supreme value of life have counter-intuitive implications and are untenable. Furthermore, it provides arguments demonstrating that there is not necessarily a right not to be killed in defense against theft or minor assaults. While there is a general moral right of self-defense and a general right to life, the scope of these rights (like the scope of the right to liberty and the scope of the right to property) depends on certain social facts that – even within a liberal framework – can differ from one society to another. Moreover, the proportionality of self-defense does not depend on the rights of the aggressor alone, but also on a precautionary rule, shaped by the balance of interests of the society in question and aimed at protecting innocent people and other social interests. This rule can protect an aggressor even in cases where he does not have the right to such protection.

Bartels on Hawaii's Opportunity Probation with Enforcement Program

Lorana Bartels (University of Canberra - School of Law and Justice) has posted Swift and Certain Sanctions: Is it Time for Australia to Bring Some HOPE into the Criminal Justice System? (Criminal Law Journal, 39(1): 53-66, 2015) on SSRN. Here is the abstract:

This article examines the Hawaii’s Opportunity Probation with Enforcement (HOPE) Program, first piloted in Hawaii in 2004, to determine whether it would be suitable for adoption in the Australian context. The article commences with an overview of the origins and operation of the HOPE program. It then considers the findings of outcome evaluations of the program, which demonstrated greater reductions in drug use and reoffending and fewer days in prison compared with the control group. The findings of a process evaluation, including the perspectives of probation officers, judicial officers, court staff and offenders, are also discussed. Other programs in the United States which also deliver swift and certain sanctions are considered. The article then examines current and future projects and research. The article acknowledges some of the concerns with programs of this nature, but concludes by calling for Australia to adopt an appropriately funded and evaluated pilot project based on the HOPE model.

Shearing on Public and Private Policing

Clifford Shearing (Griffith Institute of Criminology) has posted The Relation between Public and Private Policing (In: Tonry, M. & Morris, N. Eds. Modern Policing. Chicago: University of Chicago Press, 399-434) on SSRN. Here is the abstract:

Employment by private policing agencies equals or exceeds public police employment in many countries. Reigning conceptions of relations between public police and private policing have changed markedly. A state-centered view of police functions disparaged 'private armies' and saw order maintenance as a quintessential function of government. In recent decades, a laissez-faire view has emerged that celebrates 'private-public partnerships' and sees private policing as an industry providing both a service and a public benefit. Social theorists question the wisdom and the likely future directions of the privatisation of order maintenance.