CrimProf Blog

Humphreys on Sports Betting Regulation

Brad R. Humphreys (West Virginia University - Department of Economics) has posted An Overview of Sports Betting Regulation in the United States on SSRN. Here is the abstract:

 

The United States employs an ad hoc, unconventional method of regulating sports betting, banning it almost everywhere while granting a monopoly to firms in a single state, Nevada. This approach encourages illegal sports betting markets, ignores negative externalities, and generates welfare losses among the large population of responsible recreational gamblers. I review the current state of sports betting regulation in the U.S. and assess its economic viability in advance of the Supreme Court of the United States decision on the landmark Christie v. National Collegiate Athletic Association case.

"Thoughts on property and positive law after the Carpenter oral argument"

Will Baude has this post at The Volokh Conspiracy, excerpting and analyzing the transcript after this introduction:

Justice Neil Gorsuch seems to have surprised and concerned some observers during yesterday’s oral arguments in Carpenter v. United States. He came out with a number of questions quite skeptical of the government’s position, but focusing on reasons that Carpenter might have a property right in his personal cell-site records. These included both provisions of federal law and possibly state common law.

"The Impenetrable Program Transforming How Courts Treat DNA Evidence"

From Wired, via the NACDL news feed:

But most of these samples couldn’t be analyzed with typical methods: They were too fragile or included a mix of DNA from multiple people, a combination that makes analysis difficult.

So the lab turned to TrueAllele, a program sold by Cybergenetics, a small company dedicated to helping law enforcement analyze DNA where regular lab tests fail. They do it with something called probabilistic genotyping, which uses complex mathematical formulas to examine the statistical likelihood that a certain genotype comes from one individual over another. It’s a type of DNA testing that’s becoming increasingly popular in courtrooms.

. . .

But now legal experts, along with Johnson’s advocates, are joining forces to argue to a California court that TrueAllele—the seemingly magic software that helped law enforcement analyze the evidence that tied Johnson to the crimes—should be forced to reveal the code that sent Johnson to prison. This code, they say, is necessary in order to properly evaluate the technology. In fact, they say, justice from an unknown algorithm is no justice at all.

Tranter on Autonomous Cars

Kieran Mark Tranter (Griffith University - Griffith Law School) has posted The Challenges of Autonomous Motor Vehicles for Queensland Road and Criminal Laws on SSRN. Here is the abstract:

 

This article examines the challenges of autonomous motor vehicles for Queensland road and criminal laws. Autonomous vehicles refer to motor vehicles where driver decision making has been augmented or replaced by intelligent systems. Proponents of autonomous vehicles argue that they will virtually eliminate road accidents, boost productivity and provide significant environmental benefits. The key issue is that autonomous vehicles challenge the notion of human responsibility which lies at the core of Queensland’s road and criminal laws. The road rules are predicated on a driver in control of the vehicle, the intoxication regime is concerned with the person in charge of the vehicle and the dangerous driving offences require a person who operates a vehicle. Notwithstanding this challenge, it can be seen that much of Queensland’s law is adaptable to autonomous vehicles. However, there are some identifiable anomalies that require reform.

Shaley on Solitary Confinement in Europe

Sharon Shalev (SolitaryConfinement.org) has posted Solitary Confinement: The View from Europe (Canadian Journal of Human Rights (2015) 4:1 Can J Hum Rts) on SSRN. Here is the abstract:

 

This article examines the extent and nature of the use of solitary confinement in Europe. It offers insight into how different jurisdictions manage those they classify as requiring longer term segregation from the wider prison population, and asks if and how such practices differ to those prevalent in the US “supermax” prisons - massive isolation prisons where upwards of 25,000 human beings are confined in conditions of extreme isolation and abject deprivation for prolonged stretches of time for ill defined reasons and without clear exit routes. The article concludes by suggesting that though things are done on a much smaller scale and though some of the peculiarly extreme way of “doing” solitary confinement in the American supermax does not appear to have caught up in European prisons, solitary confinement is a common prison practice in Europe.

Mannheimer on A Unified Approach to Fourth Amendment Search Doctrine

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted A Unified Approach to Fourth Amendment Search Doctrine on SSRN. Here is the abstract:

 

In examining the threshold question for Fourth Amendment analysis – what constitutes a search? – both courts and commentators have generally premised their analysis on a sharp dichotomy between an approach based on trespass to real or personal property, on the one hand, and one grounded in non-property-based expectations of privacy, on the other. The trespass-based regime seemed to have given way in 1967 to the “reasonable expectation of privacy” standard. But the resurgence of a trespass-based approach in recent Supreme Court cases has served to highlight the supposed distinction between the two methodologies.

When subjected to close scrutiny, the dichotomy between the two approaches becomes highly questionable. Whether analyzed in terms of trespass or reasonable expectations of privacy, the question in close cases concerning whether government conduct constitutes a Fourth Amendment search comes down to the same essential touchstone: social norms governing privacy and seclusion.

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Yeager on Impossibility

Daniel B. Yeager (California Western School of Law) has posted Decoding the Impossibility Defense (University of Louisville Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Impossible attempts were first officially recognized as non-criminal in 1864, the idea being that a person whose anti-social bent poses no appreciable risk of harm is no criminal. To reassure myself the subject doesn’t “smell of the lamp,” I tapped “impossibility” into Westlaw, which designated over 3000 criminal cases as on point, 1200 or so more recent than 1999. Impossible attempts thus turn out to be not merely a professorial hobby horse, but instead, expressive of a non-trivial tension between risk-taking and harm-causing within the very real world of criminal litigation. 

Although it is now hornbook that impossible attempts are punishable as crimes, there remains a sense of a non-trivial difference between failing at larceny by picking the empty pocket of a passerby on a sidewalk and by picking the empty pocket of a mannequin in a department store. What remains up in the air is what accounts for that difference. Here I decode the impossibility defense by “hounding down the minutiae” of what it means to make a mistake. I am certainly not the first to insist that the impossibility defense lives on. I am, however, the first to base such a claim on the grammar or criteria of mistakes, which can get us closer to the bottom of what makes attempts impossible and why it matters.

Duncan on Amanda Knox and Strangeness

Martha Grace Duncan (Emory University School of Law) has posted What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System on SSRN. Here is the abstract:

 

One of the most widely publicized cases of our time is that of Amanda Knox, the college student from West Seattle who was convicted of murdering her British roommate in Italy and served four years in prison before being acquitted and released. Retried in absentia, she was convicted again, only to be exonerated by the Italian Supreme Court, which handed down its final opinion in September, 2015. Throughout its eight-year duration, the case garnered worldwide attention, in part because of the pretty, photogenic defendant and the drug-fueled sex game that the prosecutor adduced as the motive for the crime. Interest in the case spiked again with the release of a Netflix original documentary, Amanda Knox, in the fall of 2016. 

While the Amanda Knox case has been remarkable for its ability to fascinate an international audience, it is not altogether unique.

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Two articles on money bail reform

both courtesy of the NACDL news scan:

• Don’t let judges hijack California bail reform
• Time for a national fund that chips away at money bail and stops criminalizing poverty

Carpenter argument transcript

is available here.

Kwan on Mistake of Age

Mark Kwan (OBOR Legal Research Centre) has posted Mistake of Age Defence in Canada: The Pressing Need to Clarify the Correct Test - Honest Belief vs. Reasonable Belief vs. Objective All Reasonable Steps vs. Quasi-Objective All Reasonable Steps Test (Canadian Law Series, 2017) on SSRN. Here is the abstract:

 

Concerning the mistake of age defence in Canada under section 150.1(4) Criminal Code, RSC 1985, c. C-46 in relation to sexual offences against under-aged juveniles, the correct test for the "all reasonable steps" analysis is "objective all reasonable steps" test. However, the Canadian courts have erroneously mixed it up with 3 other different tests, namely "honest belief", "reasonable belief" and "quasi-objective all reasonable steps" test. The 4 tests are legally and conceptually very different, but the courts have not noticed it. There are significant implications in applying the wrong test, which will affect the factual analysis and reduce the level of protection to juveniles intended by the legislature.

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"Interesting Eighth Amendment attack waged against extreme application of Tennessee's "Drug Free School Zone" law"

Doug Berman has this post at Sentencing Law & Policy, excerpting a critique of the Tennessee law. From the excerpt:

Even though it was a first-time, non-violent offense — Mr. Bryant had no other criminal history of any kind — because Mr. Bryant’s residence was located within 1,000 feet of a school, Mr. Bryant received a mandatory minimum sentence of seventeen (17) years in prison.  As a result, Mr. Bryant received a considerably longer sentence for committing a first-time, non-violent drug offense than he would have received if he had committed a severe, violent crime such as Rape, Second Degree Murder, Aggravated Robbery, Aggravated Vehicular Homicide, or Attempted First Degree Murder.  Mr. Bryant has been incarcerated for the past decade.  He has at least six years in prison left to serve.

. . .

Tennessee’s intensely punitive Drug Free School Zone law was designed to keep drugs away from children.  Nobody disputes that this is a laudable goal.  However, many people, including several elected officials and judges in Tennessee, have disputed whether the law was ever intended to apply to drug sales between adults inside an adult’s residence and outside of school hours — especially when a government informant has set up a drug transaction inside a school zone on purpose....

"Does cellphone-sweeping ‘StingRay’ technology go too far?"

From WHYY, via the NACDL news scan:

Civil liberties and privacy groups are increasingly raising objections to the suitcase-sized devices known as StingRays or cell site simulators that can sweep up cellphone data from an entire neighborhood by mimicking cell towers. Police can determine the location of a phone without the user even making a call or sending a text message. Some versions of the technology can even intercept texts and calls, or pull information stored on the phones.

Part of the problem, privacy experts say, is the devices can also collect data from anyone within a small radius of the person being tracked. And law enforcement goes to great lengths to conceal usage, in some cases, offering plea deals rather than divulging details on the StingRay.

Thurschwell on Furman and Finitude

Adam Thurschwell has posted Furman and Finitude (Forthcoming, Kelly Oliver & Stephanie Straub, eds., Deconstructing the Death Penalty/Derrida's Seminars and the New Abolitionism (New York: Fordham University Press, 2018)) on SSRN. Here is the abstract:

Martin Heidegger's ontological interpretation of death as the possibility of an impossibility - Dasein's (Being-There's) not-being-there - had been a repeated object of Jacques Derrida's critique prior to the Death Penalty Seminar he delivered in 1999 and 2000, and he returned to it again in the Seminar, although only briefly. His primary goal lay elsewhere, in an investigation into the conceptual structure supporting capital punishment with the practical aim of its eventual abolition. Nevertheless, a critique of Heidegger's existential analysis lies at the center of the seminar's intention. 

In this essay, expanding on that insight, I first present Derrida’s notion that it is the phenomenon of the death penalty, not Heidegger's ontological analysis, that best expresses our precomprehension of the meaning of death.

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Call for papers: "From the Crime Scene to the Courtroom: The Future of Forensic Science Reform"

The Georgia State University Law Review invites legal scholars, advocates, attorneys, judges,
scientists, and other practitioners to submit pieces for its upcoming symposium issue on forensic science reform. Further details from the release follow the jump.

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Newell & Greidanus on Police Discretion in Activating Body-Worn Cameras

Bryce Clayton Newell and Ruben Greidanus (University of Kentucky and Independent) have posted Officer Discretion and the Choice to Record: Officer Attitudes Towards Body-Worn Camera Activation (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In the past few years, questions about when police officers should activate (or not activate) their body-worn cameras during police-public encounters have risen into the foreground of public and scholarly debate. Understanding how officers perceive body-worn cameras and policies surrounding activation (and how they view these as impacting their ability to make discretionary choices while on the job) can provide greater insight into why, when, and how officers may attempt to exercise their discretion in the form of resistance or avoidance to body cameras, seen as technologies of accountability. In this paper, we examine officer attitudes about how much discretion they ought to have about when (or when not) to activate their cameras, what concerns they have about overbroad, overly punitive, or ambiguous activation policies, and their perceptions about how frequently cameras ought to be activated in specific circumstances (i.e., general police-public interactions, arrest situations, domestic violence calls, traffic stops, when taking statements from witnesses or victims, and when responding to calls inside homes and medical facilities). These findings are drawn from a multi-year and mixed-methods study of police officer adoption of body-worn cameras in two municipal police departments in the Pacific Northwest region of the United States from 2014 to 2017.

Baker on Prosecuting Complicity

Dennis J Baker (University of Surrey - School of Law) has posted Prosecuting Complicity: The CPS Legal Guidance on Secondary Liability on SSRN. Here is the abstract:

 

The CPS has revised its “legal guidance” on secondary liability (previously titled “Joint Enterprise”), following the decision of the Supreme Court in R. v. Jogee; Ruddock v. The Queen and has called a consultation on the revised guidance. The guidance sets out the core principles of secondary liability, as stated in R. v. Jogee and the subsequent Court of Appeal cases on secondary liability, R. v. Johnson & Others and R. v. Anwar. It is probably not surprising that the CPS has issued a consultation, because the law has changed very substantially. The decision in Chan Wing-Siu v. The Queen not only resulted in later courts interpreting the mental element in complicity as mere foresight, but also in those courts developing a doctrine of extended joint enterprise. R. v. Jogee held that the mental element in complicity prior to Chan Wing-Siu was intention and that the doctrine that became known as the extended joint enterprise doctrine did not exist at common law in England and Wales prior to that decision. The effect of the decision in R. v. Jogee is that factual scenarios involving collateral crimes now have to be brought within the purview of section 8 of the Accessories and Abettors Act 1861 where the conduct element is assistance or encouragement. 

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Som on Punishing Attempts

Eric M Som (City University London) has posted Punishing Attempts Less Than Completed Crimes: A Communicative Practice on SSRN. Here is the abstract:

 

This paper sets out the case for punishing a person who fails to commit a criminal act less severely than one who actually completes the same act. A common objection to this position is that the attempter is only different from the perpetrator in that his act failed for fortuitous, unanticipated reasons. This objection is misconceived. The basis for punishing attempts less than completed crimes does not lie solely in the normative issues associated with luck. Instead, it rests with the recognition that a lesser punishment communicates to the offender not only that his failed attempt is an opportunity to repent of his crime, but that he can give effect to his repentance by abstaining from further attempts to commit the same crime.

Lyon et al. on Child Witnesses

Thomas D. Lyon, Kelly McWilliams and Shanna Williams (University of Southern California - Gould School of Law, USC Gould School of Law and University of Southern California) have posted Child Witnesses (Forthcoming in N. Brewer & A.B. Douglass, eds., Psychology & Law (New York, NY: Guilford)) on SSRN. Here is the abstract:

 

In this chapter we provide an overview of psychological issues involving children’s capacities as witnesses. First, we discuss the kinds of cases in which children are usually involved. Across different courts, one most often sees children describing abuse at the hands of familiar adults. Second, we describe the difficulties children encounter in disclosing abuse, particularly when it is perpetrated by adults close to them. These dynamics lead most children to remain silent, and only the most forthcoming children to disclose. Third, we suggest a framework for assessing children’s allegations, in which child-generated and adult-generated information lie on opposite ends of a spectrum. Child-generated information is preferable because it minimizes the likelihood of adult influence. The primary problem with poorly trained interviewers is that they rely too much on recognition questions, in which the child merely accepts or rejects information the adult generates. Fourth, we discuss suggestibility, and review research demonstrating that recognition questions are not inherently suggestive. Rather, we argue that the primary problem with recognition questions is captured by the phenomenon of formal reticence, whereby children provide minimally responsive answers to questions based on the form of the question. Children routinely answer yes/no questions with unelaborated yes or no answers, and interviews filled with recognition questions lead to a host of problems, including responses that are underinformative and ambiguous, and questions that are linguistically difficult and fail to capture the child’s perspective.

"After 28 Years in Prison, a Rare Plea Deal Frees a Connecticut Man"

From The New York Times, via the NACDL news scan:

Earlier this year, after decades of fighting his appeals, the Connecticut state’s attorney’s office finally conceded that the evidence against him might be tainted. The prosecutors agreed to let him go — if he took a deal.

At the heart of the deal was something called an Alford plea, an odd legal paradox that required Mr. Harris to formally plead guilty to a set of lesser crimes, but not admit that he had actually committed them. After Mr. Harris played his role in this courtroom drama, the judge reduced his sentence to the years that he had served. Mr. Harris was freed on Tuesday evening, in time to spend Thanksgiving with his family.

But the prosecutors also walked away with what they wanted. At least on paper, they were able to preserve their conviction. That ensured they would not have to conduct a second trial — or face the consequences of bungling the first.