CrimProf Blog

Hallvy on Dangerous Robots

Prof. Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted Dangerous Robots – Artificial Intelligence vs. Human Intelligence on SSRN. Here is the abstract:

 

If we are attacked by an intelligent robot, can we impose criminal liability upon robots? How can we defend ourselves legally? The technological world has changed rapidly. Simple human activities are being replaced by robots. As long as humanity used robots as mere tools, there was no real difference between robots and screwdrivers, cars or telephones. When robots became sophisticated, we used to say that robots "think" for us. The problem began when robots evolved from "thinking" machines into thinking machines (without quotation marks) – or Artificial Intelligence Robots (AI Robots). Could they become dangerous?

Monday's dissents from denial of cert in Florida capital case

Justice Breyer dissented, as did Justice Sotomayor, joined by Justice Ginsburg, in Middleton v. Florida.

Privileges, Justifications, and the Positive Law Model of the Fourth Amendment

Law review articles are rarely mentioned in Supreme Court oral arguments. William Baude and James Stern’s article, The Positive Law Model of the Fourth Amendment, is now an exception to the general rule. Justice Gorsuch displayed obvious interest in the theory during the recent argument on whether the Fourth Amendment protects a suspect’s cell site information location (Carpenter). He went a step further in oral argument over whether the Fourth Amendment protects the driver of a rental car who has the renter’s permission to drive the car but is not listed as an authorized driver on the rental agreement (Byrd), explicating referencing Baude and Stern’s article. In addition to its interest to Justice Gorsuch, the positive law theory deserves attention because of its potential to refigure “third-party doctrine,” which holds that people sometimes lack a reasonable expectation of privacy in material they voluntarily disclose to others, and hence that no Fourth Amendment search occurs when the material is obtained by police. As our lives have become increasingly digital, the third-party doctrine has been increasingly criticized.

While others have discussed the positive law model insightfully and at length, I've written a brief comment exploring an unexamined issue: how privileges and justifications impact the model. In brief, I think they pose some difficulties, particularly in the area of seizures, but that some elaboration of the model might nevertheless make it palatable in this setting. You can find the piece here. Comments welcome.

KC

 

SpearIt on Making Cultural Sense of Harsh Punishment

SpearIt (Texas Southern University - Thurgood Marshall School of Law) has posted Legal Punishment As Civil Ritual: Making Cultural Sense of Harsh Punishment (ECI Interdisciplinary Journal for Legal and Social Policy, Vol. 5 [2017], Iss. 1, Art. 1) on SSRN. Here is the abstract:

 

This work is an abridged version of 82 Miss. L.J. (2013), which examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more to do with culture than crime. This approach has been largely overlooked by legal scholars, yet ritual studies enhance understanding of law and legal institutions. A ritual perspective illuminates the religious history of criminal justice, challenges traditional dogmas that hold punishment as a rational response to crime, and explains why some people must suffer so that others may feel secure.

Zeidman on Assembly-Line Justice

Steven Zeidman (CUNY School of Law) has posted Eradicating Assembly-Line Justice: An Opportunity Lost by the Revised American Bar Association Criminal Justice Standards (Hofstra Law Review, Vol. 46, No. 293, 2017) on SSRN. Here is the abstract:

 

Every day in criminal courts across the country, thousands of people enter guilty pleas within hours of their arrest at their initial appearance or arraignment before a judge. The practice is so rampant that it has spawned its own phrase -- “meet ‘em, greet ‘em, and plead ‘em” -- that derisively, but accurately, captures the routine. At this critical moment in time, none of the institutional players -- judge, prosecutor or defense counsel -- has engaged in any kind of factual or legal investigation of the charges, or knows much of anything about the defendant, the arresting officer, or any potential victim or witnesses. And yet, the majority of misdemeanor cases will end then and there. While all institutional players bear responsibility for the blight of meet, greet, and plead, this Article focuses on whether defense counsel is providing constitutionally required effective assistance pursuant to the Sixth Amendment and adhering to the standards of professional behavior outlined in the American Bar Association’s (“ABA”) Standards for Criminal Justice.

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"Can the Trump Administration Ban Bump Stocks?"

Jonathan Adler has this post at The Volokh Conspiracy. In part:

At first it may seem that bump stocks can be covered because the definition expresslys include parts that can be used to turn a semi-automatic weapon into a fully automatic one -- but not so fast. The problem is that the language of the statute also specifies that what makes a weapon a machine gun is the ability to fire more than one shot automatically "by a single function of the trigger." This describes how fully automatic weapons work, but it does not describe how bump stocks operate.

While bump stocks facilitate rapid firing, they do so by rapidly and repeatedly engaging the trigger, not by enabling true automatic fire, a point Robert VerBruggen makes at NRO. In other words, a bump stock is not something that enables true automatic fire as defined by the statute. It is for this reason that bump stocks of the sort used by the Las Vegas shooter were not regulated as machineguns by the Obama Administration, which considered the question in 2013.

Reingold & Thomas on Parole and the Ex Post Facto Clause

Paul D. Reingold and Kimberly Thomas (University of Michigan Law School and University of Michigan Law School) have posted Wrong Turn on the Ex Post Facto Clause (California Law Review, Vol. 106, 2018) on SSRN. Here is the abstract:

 

The Ex Post Facto Clause bars any increase in punishment after the commission of a crime. But deciding what constitutes an increase in punishment can be tricky. At the front end of a criminal case, where new or amended criminal laws might lengthen prisoners’ sentences if applied retroactively, courts have routinely struck down such changes under the Ex Post Facto Clause. At the back end, however, where new or amended parole laws or policies might lengthen prisoners’ sentences in exactly the same way if applied retroactively, courts have used a different standard and upheld the changes under the Ex Post Facto Clause. Because the harm is identical and lies at the core of what the Ex Post Facto Clause is supposed to protect against, we think the asymmetry is mistaken.

Parole is an integral part of punishment: it determines how much time people will serve on their sentences. Until the 21st century, black-letter law forbade even modest parole changes that were adverse to prisoners. If a change in the parole regime might lead to longer sentences, then courts insisted that the change be applied prospectively only. Over the last two decades, relying on language in two US Supreme Court parole cases decided in 1995 and 2000, the lower courts have shifted parole–ex post facto doctrine by 180 degrees. Prisoners can no longer prevail even when the change in the state parole regime is almost certain to lead to significantly longer sentences.

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"Final Pre-Argument Thoughts on the Microsoft Case"

Orin Kerr has this post at The Volokh Conspiracy. In part:

However the Justices decide the case, I hope they don't think of Microsoft as a Fourth Amendment case. Microsoft is a statutory dispute involving a statute that was enacted because the Fourth Amendment itself was suspected not to apply. As I wrote back in 2004 in A User's Guide to the Stored Communications Act, the SCA reflected the understanding in 1986 that Internet architecture would likely thwart Fourth Amendment protection. It therefore "creates a set of Fourth Amendment-like privacy protections by statute, regulating the relationship between government investigators and service providers in possession of users' private information." Whatever the SCA means, I don't think it is answered by modern interpretations of the Fourth Amendment.

To be sure, there are fascinating Fourth Amendment issues raised by the facts of Microsoft. I go into great detail on those issues in my article, The Fourth Amendment and the Global Internet, 67 Stan. L. Rev. 286 (2015). Questions include, who has Fourth Amendment rights online? When a government agent copies information online in one country, and then zips it to another country where it is opened, where has the search or seizure occurred? And if there are different standards of reasonableness in different countries, as lower court caselaw has held, what standards of reasonableness should apply to a copy made in one country and a disclosure made in another country?

 

Jaros on Criminal Doctrines of Faith

David Michael Jaros (University of Baltimore - School of Law) has posted Criminal Doctrines of Faith on SSRN. Here is the abstract:

 

Decisions like Miranda v. Arizona helped popularize a conception of the courts as a protector of criminal defendants and a bulwark against overly aggressive law enforcement. But from arrest through trial, the Court has fashioned criminal constitutional procedure with a deep and abiding faith in the motivations of criminal justice system actors. Even decisions that vindicate individual constitutional rights at the expense of police and prosecutorial power are shaped by the Court’s fundamental trust in those same actors. They establish, in essence, “Criminal Doctrines of Faith.”

Criminal Doctrines of Faith pervade each stage of the criminal process — from cases that govern the pursuit of suspects and searches of homes to the disclosure of exculpatory evidence and the defendant’s capacity to waive a jury trial. This faith in law enforcement takes several forms. Some decisions reflect a simple faith in police and prosecutors’ character, while others, a faith in the institutions in which they work or in the courts’ ability to identify and deter misconduct.

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"HOW CHICAGO KEEPS TABS ON ITS FOOD TRUCKS AND DESTROYS THE FOURTH AMENDMENT"

From Newsweek, via the NACDL news scan:

But your enthusiasm drops precipitously as you learn that GPS devices have been installed on both the car and phone, allowing the company to continuously track your location.

And your shock turns to horror when you are informed that the (mandatory) use of these items requires that you consent to the police having unfettered access to the resulting information, thus waiving your Fourth Amendment rights.

While commenting on what a huge mistake accepting the position was on your way out the door, HR drops perhaps the biggest bombshell of all: “Sorry you feel that way, but it’s the city’s rule, not ours, and every other company in the field has the exact same rules… so good luck finding another job!”

Jones on The San Clemente Checkpoint

Elizabeth N. Jones (Western State College of Law) has posted Possible Problems at the San Clemente Checkpoint (6 Va. J. Crim. L. 43 (2018)) on SSRN. Here is the abstract:

 

This Article explores the U.S. Border Patrol’s administration of its interior checkpoint program at the southwest border. It examines the disparities between vehicle stops as originally approved in United States v. Martinez-Fuerte and the program as implemented today. Accusations persist that the Border Patrol runs these checkpoints as indiscriminate dragnets to advance general crime control interests. Moreover, prosecutorial strategies in cases such as United States v. Soto-Zuniga, a checkpoint conviction that was remanded by the Ninth Circuit and then quickly dismissed by the U.S. Attorney’s Office, present other potential concerns: is the government using the San Clemente checkpoint as a cover for engaging in a secretive and arguably unlawful practice known as parallel construction?

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Simic & Kazic on Minimum Age of Criminal Responsibility

Goran Šimić and Ena Kazić (International University of Sarajevo (IUS) and International University of Sarajevo (IUS)) have posted Legal Challenges in Regulation of Minimum Age of Criminal Responsibility with Special Emphasis on Bosnia and Herzegovina (Epiphany: Journal of Transdisciplinary Studies, Vol. 10, No. 1, (2017)) on SSRN. Here is the abstract:

 

Every minor can commit a criminal act, but in formal sense not every minor will be criminally responsible. Even if committing an act that in material sense have its consequences and all objective elements of a crime, possibility for imposing of criminal sanctions is still determined by minimum age of criminal responsibility (MACR). When reaching into certain age minors are held to be criminally responsible and punishable. This article is focusing to the matter of establishment of minimum age of criminal responsibility, so comparative review of systems for its establishment and contemporary world tendencies will be discussed in it. In particular, this paper will be devoted to the establishment of MACR in Bosnia and Herzegovina from both historical and positive law insight. The age from which one will be held criminally responsible is an issue predisposed by several factors and choosing the optimum age will be discussed as the challenging question in this paper because it includes or excludes minors from the reach of criminal justice system that has unquestionable impact in their future life.

New issue of Ohio State Journal of Criminal Law, featuring a symposium on Terry v. Ohio

is now available online. The full table of contents is available after the jump.

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Criminal law/procedure cert grant

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

• Madison v. Alabama: (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brain Development, Social Context and Justice Policy Elizabeth S. Scott, Natasha Duell and Laurence Steinberg Columbia University - Law School, Temple University and Temple University - Department of Psychology Date Posted: 06 Feb 2018	201
2.	The 'New' District Court Activism in Criminal Justice Reform Jessica Roth Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 17 Jan 2018	106
3.	Mental Health Courts and Sentencing Disparities E. Lea Johnston and Conor Flynn University of Florida - Levin College of Law and University of Florida - Levin College of Law Date Posted: 11 Jan 2018 [5th last week]	96
4.	Privacy, Voyeurism, and Statutory Interpretation Michael Plaxton College of Law, University of Saskatchewan Date Posted: 18 Jan 2018 [3rd last week]	85
5.	Backdoor Man: A Radiograph of Computer Source Code Theft Cases Ioana Vasiu and Lucian Vasiu Babes-Bolyai University - Faculty of Law and Independent Date Posted: 02 Jan 2018 [4th last week]	82
6.	Legal History of Medical Aid in Dying: Physician Assisted Death in U.S. Courts and Legislatures Thaddeus Mason Pope Mitchell Hamline School of Law Date Posted: 21 Jan 2018	81
7.	Women, Crime and Character in Twentieth Century Law and Literature: In Search of the Modern Moll Flanders Nicola Lacey London School of Economics - Law Department Date Posted: 18 Jan 2018 [9th last week]	72
8.	Why Rape Should Be a Federal Crime Donald A. Dripps University of San Diego School of Law Date Posted: 08 Jan 2018 [7th last week]	67
9.	Moral and Criminal Responsibility: Answering and Refusing to Answer R. A. Duff University of Stirling - Department of Philosophy Date Posted: 18 Dec 2017 [8th last week]	65
10.	#I🔫U: Considering the Context of Online Threats Lyrissa Barnett Lidsky and Linda Riedemann Norbut University of Missouri School of Law and Brechner Center for Freedom of Information, University of Florida Date Posted: 06 Feb 2018 [new to top ten]	41

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	State Criminal Appeals Revealed Michael Heise, Nancy J. King and Nicole A. Heise Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students Date Posted: 31 Jan 2018 [2nd last week]	183
2.	Practicing Indian Law in Federal, State, and Tribal Criminal Courts and an Update on Recent Expansion of Criminal Jurisdiction Over Non-Indians James D. Diamond University of Arizona - Indigenous Peoples Law And Policy Program Date Posted: 23 Jan 2018 [3rd last week]	168
3.	Who Killed Habeas Corpus? Lynn Adelman U.S. District Court - Eastern District of WI Date Posted: 16 Jan 2018 [4th last week]	147
4.	Harmless Errors and Substantial Rights Daniel Epps Washington University in St. Louis - School of Law Date Posted: 16 Feb 2018 [new to top ten]	125
5.	Everything Radiates: Does the Fourth Amendment Regulate Side-Channel Cryptanalysis? Riana Pfefferkorn Stanford University - Stanford Law School Center for Internet and Society Date Posted: 09 Jan 2018	124
6.	Cops, Docs, and Code: A Dialogue between Big Data in Health Care and Predictive Policing I. Glenn Cohen and Harry Graver Harvard Law School and Harvard University, Law School, Students Date Posted: 05 Jan 2018	106
7.	The 'New' District Court Activism in Criminal Justice Reform Jessica Roth Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 17 Jan 2018	106
8.	Mental Health Courts and Sentencing Disparities E. Lea Johnston and Conor Flynn University of Florida - Levin College of Law and University of Florida - Levin College of Law Date Posted: 11 Jan 2018 [9th last week]	96
9.	Accountability in Policing: How Complicity Perpetuates Institutional Injustice and Inequities in the United States and South Africa Aditi Juneja Independent Date Posted: 05 Feb 2018 [8th last week]	94
10.	The Legal Sufficiency Analysis of Genuine Battles of the Experts in Criminal Trials: The Unrealized Potential of the Supreme Court’s Landmark Decision in Jackson v. Virginia Edward J. Imwinkelried University of California, Davis - School of Law Date Posted: 27 Jan 2018	75

Next week's criminal law/procedure arguments

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

Tuesday

• U.S. v. Microsoft Corp.: Whether a United States provider of email services must comply with a probable-cause-based warrant issued under 18 U.S.C. § 2703 by making disclosure in the United States of electronic communications within that provider's control, even if the provider has decided to store that material abroad.
• Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

Beale & Berris on Hacking the Internet of Things

Sara Sun Beale and Peter Berris (Duke University School of Law and Duke University School of Law) have posted Hacking the Internet of Things: Vulnerabilities, Dangers, and Legal Responses (Duke Law & Technology Review, Vol. 16, No. 1) on SSRN. Here is the abstract:

 

The Internet of Things (IoT) is here and growing rapidly as consumers eagerly adopt internet-enabled devices for their utility, features, and convenience. But this dramatic expansion also exacerbates two underlying dangers in the IoT. First, hackers in the IoT may attempt to gain control of internet-enabled devices, causing negative consequences in the physical world. Given that objects with internet connectivity range from household appliances and automobiles to major infrastructure components, this danger is potentially severe. Indeed, in the last few years, hackers have gained control of cars, trains, and dams, and some experts think that even commercial airplanes could be at risk. Second, IoT devices pose an enormous risk to the stability of the internet itself, as they are vulnerable to being hacked and recruited into botnets used for attacks on the digital world. Recent attacks on major websites including Netflix and Twitter exemplify this danger. This article surveys these dangers, summarizes some of their main causes, and then analyzes the extent to which current laws like the Computer Fraud and Abuse Act punish hacking in the IoT.

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Epps on Harmless Error

Daniel Epps (Washington University in St. Louis - School of Law) has posted Harmless Errors and Substantial Rights (Harvard Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error analysis when it applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine's longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant's conviction was not actually obtained in violation of the defendant's rights. That approach can help solve the doctrine's longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless-error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless-error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values.

Kahn & Song on Violent Physical Force under the ACCA

Conrad Kahn and Danli Song (Federal Defender's Office, MDFL and Federal Defender's Office, MDFL) have posted A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force' (University of Miami Law Review, 2018) on SSRN. Here is the abstract:

 

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA). If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life. 

Historically, a prior conviction could qualify as a “violent felony” if satisfied at least one of the three “violent felony” clauses — the elements clause, the enumerated-offenses clause, or the catch-all residual clause. But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

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