CrimProf Blog

Dixon on Interrogation Law and Practice

David Dixon (University of New South Wales (UNSW) - Faculty of Law) has posted Interrogation Law and Practice in Common Law Jurisdictions (Forthcoming, Darryl Brown, Jenia I Turner and Bettina Weißer (eds) The Oxford Handbook of Criminal Process) on SSRN. Here is the abstract:

 

Forthcoming in the Oxford Handbook of Criminal Process, this chapter’s central theme is the interactive, dialectical relationship between interrogation law and practice, focusing on contrasts within common law jurisdictions. Sections discuss: myths about interrogation and sources of our knowledge about it; the need to focus on routine practices and everyday bureaucracy as well as headline cases and appeal decisions; the purposes, uses and functions of interrogation; interrogation by agencies at or beyond the edges of criminal justice; modes of regulating interrogation, including judicial decisions, rules, training and electronic recording; the impact of miscarriages of justice; the contrast between the Reid Technique and investigative interviewing; and the development of new interrogation strategies in terrorism investigations and elsewhere.

Monahan on Risk Assessment in Sentencing

John Monahan (University of Virginia School of Law) has posted Risk Assessment in Sentencing (Academy for Justice, a Report on Scholarship and Criminal Justice Reform (Erik Luna ed., 2017, Forthcoming)) on SSRN. Here is the abstract:

 

One way to reduce mass incarceration and the fiscal and human sufferings intrinsic to it is to engage in a morally constrained form of risk assessment in sentencing offenders. The assessment of an offender’s risk of recidivism was once a central component of criminal sentencing in the United States. In the mid-1970s, however, sentencing based on forward-looking assessments of offender risk was abolished in many jurisdictions in favor of set periods of confinement based solely on backward-looking appraisals of offender blameworthiness. This situation is rapidly changing, however. After a hiatus of 40 years, there has been a resurgence of interest in risk assessment in criminal sentencing. Across the political spectrum, advocates have proposed that mass incarceration can be shrunk without simultaneously jeopardizing the historically low crime rate if we put a morally constrained form of risk assessment back into sentencing.

Smith on Overfederalization

Stephen F. Smith (Notre Dame Law School) has posted Overfederalization on SSRN. Here is the abstract:

 

Since the 1960s, Congress has steadily expanded the crime-fighting reach of the federal government. Unfortunately, the constant drumbeat to “federalize” criminal law by passing more federal statutes, ratcheting up already severe federal punishments, and expanding the federal prison population has accomplished precious little in terms of public safety. The failed drug war proves as much. Worst still, the virtually limitless and unchecked charging authority of federal prosecutors undermines the effectiveness of American criminal justice. Instead of complementing state efforts by focusing on areas of federal comparative advantage, federal prosecutors waste scarce resources “playing district attorney” — that is to say, pursing the same kinds of crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams, and a national drug problem that has never been worse. The solution is for Congress to undertake a major overhaul of federal criminal law. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcement to offenses that are of peculiar concern to the federal government and offenses that defy adequate response within the state system. Sentencing policies that generate unusually severe punishment in federal court, such as harsh statutory mandatory minimums for drug and nonviolent weapons offenses, and overbroad asset forfeiture laws, should be repealed or at least reformed to eliminate incentives for prosecutors to pursue garden-variety criminal matters in federal court. In this context, as in many others, “less is more”: a streamlined federal criminal code limited to the nation’s worst offenses, which reserves major penalties for major crimes, will better protect the public than our costly and ineffective current system of overfederalization.

"More context for contemplating Prez Trump's pardon of Joe Arpaio"

Doug Berman at Sentencing Law & Policy links to and excerpts commentary.

"How Phoenix-area police use planes and helicopters for surveillance"

From AZ Central, via NACDL news scan:

Across the nation, police in cities such as Baltimore, New York and Oakland engage in constant aerial surveillance to fight crime. Some call it necessary, while critics see it as an intrusion into their privacy.

Arizona law-enforcement agencies don't appear to use constant surveillance. Most metro Phoenix police departments do not have air units.

Kreit on Marijuana Law

Alex Kreit (Thomas Jefferson School of Law) has posted four articles related to marijuana laws on SSRN. The first is  The 2015 Federal Budget's Medical Marijuana Provision: An 'End to the Federal Ban on Marijuana' or Something Less Than That? (North Illinois University Law Review, Vol. 35, No. 537, 2015) on SSRN. Here is the abstract:

 

In 2014, Congress began to face the nearly 20-year conflict between state medical marijuana laws and federal prohibition. It did so in a some- what curious way, however -- tacking on an rider to the 2015 federal budget to block the Department of Justice from spending money to “prevent” medical marijuana States from “implementing” their laws. Some news reports trumpeted the development as an “end” to the federal ban on marijuana. But the handful of court decisions to consider the 2015 budget provision so far suggest it might not have much effect at all on federal marijuana enforcement. This essay, written for the Northing Illinois University Law Review’s symposium on medical marijuana laws, examines the 2015 federal budget’s medical marijuana provision and offers an argument in favor of interpreting it broadly.

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Rovner on Solitary Confinement

Laura L. Rovner (University of Denver Sturm College of Law) has posted 'Everything Is at Stake if Norway Is Sentenced. In that Case, We Have Failed': Solitary Confinement and the 'Hard' Cases in the United States and Norway (UCLA Criminal Justice Law Review, 1(1)) on SSRN. Here is the abstract:

 

While the harms caused by solitary confinement and its overuse in American prisons have gained increased recognition over the last decade, most states and the federal government maintain that extensive solitary confinement is both necessary and appropriate for those people deemed “the worst of the worst.” As a result, many of those who have been so labeled have languished in solitary confinement for years or even decades. With limited exceptions, they are there with the blessing of the federal courts, which have generally held that even very lengthy periods of solitary confinement do not violate the Eighth Amendment’s Cruel and Unusual Punishments clause. In this Article, I examine a Norwegian court’s holding that Anders Behring Breivik’s long-term solitary confinement violates the European Convention on Human Rights to consider the lessons it holds for American Eighth Amendment conditions of confinement jurisprudence.

Cicchini on Prosecutorial Misconduct in Closing Arguments

Michael D. Cicchini has posted Combating Prosecutor Misconduct in Closing Arguments (Oklahoma Law Review, Vol. 70, No. 3, Forthcoming) on SSRN. Here is the abstract:

Prosecutor misconduct in closing argument is rampant. Prosecutors make improper arguments because it is a highly effective, yet virtually risk-free, strategy. That is, even if the defense lawyer quickly identifies and objects to the misconduct, the jury still hears the improper argument, the available remedies are toothless, and the offending prosecutor rarely suffers any consequences. This Article proposes an alternative approach for combating this problem. Instead of waiting to object until after the prosecutor makes the improper argument, defense counsel should consider a more aggressive strategy: the pretrial motion in limine. This motion seeks a pretrial order to prevent the misconduct before it occurs, and, in cases where the prosecutor violates the order, it establishes a framework for addressing the misconduct in a meaningful way.

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Pickles on Feticide

Camilla Pickles (University of Oxford - Faculty of Law) has posted Feticide: Continuing the Search for a Unified Approach to the Unborn (Journal of Contemporary Roman-Dutch Law, Vol. 80, p. 44-61, 2017) on SSRN. Here is the abstract:

 

Generally, feticide concerns the “killing” of the unborn through the infliction of violence and today it is a fairly common statutory crime found throughout the United States. Feticide is yet to take root in South Africa but academics (for example, Kruuse “Fetal ‘rights’”? The need for a unified approach to the fetus in the context of feticide” 2009 THRHR 126; Du Plessis “Feticide: Creating a statutory crime in South African law” 2013 Stell LR 73) are calling for its introduction after S v Mshumpa 2008 1 SACR 126 (E). In Mshumpa, the court found that the common law crime of murder does not apply to those who are not yet born. In essence, the judgment emphasises that there is no crime assigned to conduct that terminates a pregnancy without a pregnant woman’s consent and this position stands irrespective of whether the foetus is viable or not. Some academics (see above) are calling for law reform in so far as South African criminal law should recognise the crime of feticide. The calls for reform are all in reaction to the perceived injustice stemming from Mshumpa, in that the law failed to recognise the loss of prenatal life as a result of unlawful violent conduct inflicted on a pregnant woman. This article will focus on Kruuse’s law reform suggestions and serves as a response to her argument that a statutory crime of feticide should be introduced in South Africa.

"Higher penalty for statutory rape when victim’s culture sharply condemns premarital sex?"

Eugene Volokh has this post at The Volokh Conspiracy, excerpting an English case. From the excerpt:

In this regard [the trial judge] was, entirely properly, having regard to the particular harm caused to the victims by this offending. As it happened, that harm was aggravated by the impact on the victims and their family within this particular community

 

"How the war on drugs fueled the fentanyl crisis"

From The Guardian, via NACDL news scan:

But there is no mystery to why fentanyl is taking over. It is the direct consequence of market pressures produced by the war on drugs. Eradication efforts targeting acres of South American poppy fields aiming to cut off the heroin supply have instead encouraged the growth of fentanyl-producing labs with much smaller footprints in China and Mexico.

. . .

This is a pattern that we have seen before. It is sometimes referred to as the “iron law of prohibition” – more interdiction, stronger drugs. In the 1920s alcohol prohibition drove down the consumption of relatively weak beer and drove up the consumption of stronger wine and spirits.

Opderbeck on Encryption and the Fifth Amendment

David W. Opderbeck (Seton Hall University - School of Law) has posted The Skeleton in the Hard Drive: Encryption and the Fifth Amendment on SSRN. Here is the abstract:

 

Courts are grappling with the question whether forced decryption of computer files violates the Fifth Amendment privilege against self-incrimination. This paper supplies the background necessary for courts to address this question. It explains how full disk encryption works and discusses the nature of encryption technology from a semantic and information theory perspective. It also compares how similar questions have been addressed in other areas of the law that have dealt with computer code as speech: the First Amendment and Copyright law. The paper argues that disclosure of a password or encryption key is not a testimonial act and therefore is not privileged under the Fifth Amendment.

Russell & Denholtz on Procedures for Proportionate Sentences

Sarah French Russell and Tracy L. Denholtz (Quinnipiac University School of Law and Quinnipiac University - School of Law) have posted Procedures for Proportionate Sentences: The Next Wave of Eighth Amendment Noncapital Litigation on SSRN. Here is the abstract:

 

With its 2010 decision in Graham v. Florida, the U.S. Supreme Court for the first time placed categorical Eighth Amendment limits on noncapital sentences. Graham prohibits life-without-parole sentences for juveniles in nonhomicide cases and requires states to provide these juveniles with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” In 2012, in Miller v. Alabama, the Court again set a categorical Eighth Amendment limit — prohibiting mandatory life-without-parole sentences for all juveniles and requiring sentencers to give mitigating effect to youth-related factors when juveniles face life-without-parole sentences. 

Following Graham and Miller, 23 states have enacted statutes responding to the decisions and there has been extensive litigation nationwide. The first wave of litigation has largely focused on the scope of the Court’s categorical holdings, with lower courts considering questions such as: How long is a “life” sentence? Which crimes are “nonhomicides?” Do the decisions apply retroactively?

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du Bois-Pedain on Sentencing Discretion

Antje du Bois-Pedain (University of Cambridge, Faculty of Law) has posted In Defense of Substantial Sentencing Discretion (Criminal Law Forum, Forthcoming) on SSRN. Here is the abstract:

 

This article develops an ideal of sentencing discretion as consisting in sufficient dispositional flexibility for the trial judge to set, on behalf of the polity, reasonable terms for the continuance of relations with the offender in view of his crime. This ideal requires trial judges to have what may be termed “substantial” sentencing discretion: discretion that is exercised with direct reference to the values and goals penal sanctions are expected to serve, and where it is this quality of value-based engagement that provides the justification for the decision. The article engages with empirical research into sentencing that helps us address the strength of the case for and against substantial sentencing discretion, and ultimately defends substantial sentencing discretion on functional as well as ethical-political grounds.

"Trump to Fully Restore Military Surplus Transfers to Police"

From The New York Times:

It cited two academic articles that said the program helped reduce crime and did not lead to an increase in police-involved deaths. It also said that a military-style helmet saved the life of an officer who responded to the 2016 shooting that killed 49 people at the Pulse nightclub in Orlando.

And it called much of the equipment provided through the program “entirely defensive in nature,” a characterization certain to draw the ire of those opposed to the police deploying certain heavy weapons and vehicles in tense but not clearly dangerous situations.

"Court: Locating suspect via stingray definitely requires a warrant"

From Ars Technica, via NACDL news scan:

As Ars has been reporting for years, Ellis has provided rare insight into stingrays are used in practice to find suspects and the seeming lengths the government is willing to go to keep usage quiet. The surveillance tool has come under increasing scrutiny by lawmakers and activists in recent years. Since this case began, both the Department of Justice, which oversees the FBI, and the State of California now require a warrant when a stingray is used in most circumstances.

Riana Pfefferkorn, a lawyer affiliated with the Stanford Center for Internet and Society, said that the judge’s ruling was "careful," but she noted that it may not specifically matter, given that both state and federal policy has changed since Ellis and his co-defendants were arrested in 2013.

Joh on Policing, Crime Data & Algorithims

Elizabeth E. Joh (University of California, Davis - School of Law) has posted Feeding the Machine: Policing, Crime Data, & Algorithms (__ William & Mary Bill of Rights J. __ (2017 Forthcoming)) on SSRN. Here is the abstract:

 

Discussions of predictive algorithms used by the police tend to assume the police are merely end users of big data. Accordingly, police departments are consumers and clients of big data -- not much different than users of Spotify, Netflix, Amazon, or Facebook. Yet this assumption about big data policing contains a flaw. Police are not simply end users of big data. They generate the information that big data programs rely upon. This essay explains why predictive policing programs can’t be fully understood without an acknowledgment of the role police have in creating its inputs. Their choices, priorities, and even omissions become the inputs algorithms use to forecast crime. The filtered nature of crime data matters because these programs promise cutting edge results, but may deliver analyses with hidden limitations.

Wright & Levine on Career Motivations of State Prosecutors

Ronald F. Wright and Kay L. Levine (Wake Forest University - School of Law and Emory University School of Law) have posted Getting beyond Superheroes versus Trojan Horses: Career Motivations of State Court Prosecutors on SSRN. Here is the abstract:

 

As part of a broader effort to reshape criminal justice, voters in some U.S. cities recently have elected more progressive prosecutors. While these campaigns promised a change in prosecution priorities, real transformation requires commitment not just from elected chief prosecutors but also from line prosecutors, the attorneys who handle the daily caseloads of the office. But their motivations, amenability to reform goals, and sense of professional identity may be at odds with the leadership and hard to gauge from the outside.

To better understand this group of criminal justice professionals and their power to influence system reforms, we set out to learn what motivates state prosecutors to do their work. Using original interview data from more than 260 prosecutors in nine different offices, we identify four principal career motivations for working state prosecutors: reinforcing one’s core absolutist identity, gaining trial skills, performing a valuable public service, and sustaining a work-life balance. However, only two of these motivations – fulfilling one’s core identity and serving the public – are acceptable for applicants to voice in the hiring context, even in offices that employ a significant number of former defense attorneys. From this finding we offer a cautionary tale to job applicants as well as to office leaders, particularly in offices hoping to adopt a new vision of the prosecutor’s job.

Robinson & Robinson on Tragedy, Outrage & Reform

Paul H. Robinson and Sarah M. Robinson (University of Pennsylvania Law School and Independent) have posted two pieces on SSRN two pieces from their forthcoming work. The first is Tragedy, Outrage & Reform: Crimes That Changed Our World: 1963 – Birmingham Church Bombing – Civil Rights (In TRAGEDY, OUTRAGE & REFORM: Crimes that Changed Our World (Paul H. Robinson & Sarah M. Robinson, eds., Forthcoming). Here is the abstract:

 

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

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Lim on Bribery

Ren-En Lim has posted Parting the Fog of the UK Bribery Act 2010: A Critical Discussion of What We Do Know about the Act and Why It Is in the Company's Interests to Comply with Its Provisions ((2014) 25(1) International Company and Commercial Law Review 1) on SSRN. Here is the abstract:

 

The Bribery Act 2010 (“the Act”) received Royal Assent in April 2010, finally coming into effect on July 1, 2011. As Jack Straw indicated at the 5th European Forum on Anti-Corruption in June 2009, the aim of the Act is to foster a “zero-tolerance culture” towards corruption in business. In furtherance of this aim, compliance advice, the Ministry of Justice's (“MOJ”) “Guidance for Relevant Commercial Organisations” has been released. While the MOJ was required by the Act to publish this guidance, businesses should not treat the guidance as fully authoritative since the guidance does not change the wording of the Act. Nevertheless, the guidance provided is comprehensive, focusing in particular on how the adequate procedures defence to the s.7 offence (failure of commercial organisations to prevent bribery) may be established. Despite the guidance, however, there remains considerable uncertainty among businesses on the key issues of corporate hospitality and facilitation payments, as well as the potential costs of prosecution under the Act.

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