CrimProf Blog

"Can a spreadsheet improve fairness and justice in sentencing in Ohio courts? Some judges say yes"

From The Columbus Dispatch, via NACDL's news-of-interest:

Ohio Supreme Court Justice Michael Donnelly is spearheading a project to collect criminal sentencing data in a uniform way across courts. And Chief Justice Maureen O'Connor is backing it as well.

"I've become convinced that this isn't just a good idea, it's an absolute necessity to deal with the problem of disparate treatment and implicit bias that permeates our sentencing laws," Donnelly said.

"Bill Cosby Live Updates: Actor Freed After Sexual Assault Conviction Is Overturned"

From The New York Times:

In 2019, an interim court had upheld the trial verdict. But the Supreme Court, the state’s highest court, agreed to consider the case, and at a hearing in December, some of the court’s seven justices questioned prosecutors sharply.

In their 79-page opinion, the judges wrote that a “non-prosecution agreement” that had been struck with a previous prosecutor meant that Mr. Cosby should not have been charged in the case, and that he should be discharged. They barred a retrial in the case.

Guinchard on Computer Misuse Act 1990 and Misuse of Tools

Audrey Guinchard (University of Essex - School of Law) has posted The Criminalisation of Tools under the Computer Misuse Act 1990. The Need to Rethink Cybercrime Offences to Effectively Protect Legitimate Activities and Deter Cybercriminals (Chapter 12, Rethinking Cybercrime: Critical Debates, Edited by Dr Tim Owen and Jessica Marshall, University of Central Lancashire, UK, at Palgrave MacMillan 2020) on SSRN. Here is the abstract:

 

Fourteen years after its creation in 2006, s3A Computer Misuse Act 1990 remains as problematic, if not more problematic than ever. Established to support the fight against cybercrime, the offence of misuse of tools has not only the paradoxical effect of endangering legitimate security research, as foreseen in 2006, but has also become a threat to established newsgathering practices. Its broad structure, combined with the vagueness of the other CMA offences, and the absence of public interest defences, criminalises the very tools which facilitate the work of respectively security researchers, and whistle-blowers and journalists-, leaving these actors exposed to criminal liability for resorting to dual-use hacking tools and obfuscating tools. Ultimately this pattern of over-criminalisation harms the fight against cybercrime and crime, defeating the very objective of deterrence cybercrime offences harbour. It is time, not just for reforming the CMA and in particular s3ACMA, but also for the legislator, both in the UK and at international level, to properly engage with the security industry and civil society.

"Helping Drug Users Survive, Not Abstain: ‘Harm Reduction’ Gains Federal Support"

From The New York Times:

Overdose deaths rose by nearly 30 percent over the 12-month period that ended in November, to more than 90,000, according to preliminary federal data released this month — suggesting 2020 blew past recent records for such deaths. The staggering increase during the pandemic has many contributing factors, including widespread job loss and eviction; diminished access to addiction treatment and medical care; and an illegal drug supply that became even more dangerous after the country essentially shut down.

But the forced isolation for people struggling with addiction and other mental health issues may be one of the biggest. Now, with the nation reopening, the Biden administration is throwing support behind the contentious approach that the center here takes, known as harm reduction. Instead of helping drug users achieve abstinence, the chief goal is to reduce their risk of dying or acquiring infectious diseases like H.I.V. by giving them sterile equipment, tools to check their drugs for fentanyl and other lethal substances, or even just a safe space to nap.

"A whiff of pot alone no longer airtight probable cause for police to search cars in several states"

From The Washington Post, via NACDL's news-of-interest:

In other states where marijuana is legal, the rules regarding searches are being hammered out in the courts. In Maryland, for instance, where 10 grams or less of marijuana has been decriminalized, an appellate court concluded in April that the odor of marijuana by itself does not provide reasonable suspicion of criminal activity, and thus the search of a pedestrian on this basis was unreasonable under the Fourth Amendment.

The Colorado Supreme Court threw out a drug conviction in 2019 because police had no justification for having a dog sniff the defendant’s truck, given that they had no reasonable suspicion a crime was being committed now that marijuana is legal there.

Yet last year, the high court in Michigan said evidence of illegal guns and drugs should not be suppressed, saying the odor of marijuana was sufficient to justify a warrantless search, and that the defendant initially denying having any made the officer believe he had more than the 2.5 ounces allowed by law.

And in March in Florida, where only medical marijuana has been decriminalized, an appellate court ruled the smell of marijuana was enough to justify a search, particularly if the vehicle was being driven recklessly or erratically.

Carroll on The Challenges of Representation

Jenny E. Carroll (University of Alabama - School of Law) has posted If Only I Had Known: The Challenges of Representation (Fordham Law Review, Vol. 89, 2021) on SSRN. Here is the abstract:

 

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to contemplate representation beyond my anecdotal experiences. It proceeds in three parts. Part I considers the challenges of representation as a premise and in reality. Part II examines the mental health implications of such representation for the attorneys who undertake it. Finally, Part III turns, ever hopeful, to the possibility of what the lawyer’s role as an advocate and a participant in the criminal courts might be if it sought to take into account what it means to represent.

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"Cops Say Encryption Hinders Investigations. These Documents Say Otherwise."

From Reason, via NACDL's news-of-interest:

Despite much whining on the part of law enforcement about the alleged perils to public order posed by encryption, it's no secret that cops can often bypass measures intended to protect privacy. Now, documents obtained by Vice's Motherboard describe just how police agencies use one tool to extract data from Apple devices. It's more evidence that officials aren't stymied by encryption half as often as they claim, but just want to paw through our information without effort or expense.

"'How to unlock and EXTRACT DATA from Apple Mobile Devices with GrayKey,' the instructions, seemingly written by the San Diego Police Department, read," Vice's Joseph Cox reveals of the documentation obtained with a public records request. "The instructions describe the various conditions it claims allow a GrayKey connection: the device being turned off (known as Before First Unlock, or BFU); the phone is turned on (After First Unlock, or AFU); the device having a damaged display, and when the phone has low battery," he adds.

Faculty openings in criminal law and procedure at LSU

Details follow the jump.

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Opinion requiring clarification in excessive-force case

The Court issued a per curiam opinion in Lombardo v. St. Louis. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Gorsuch.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Neuroscience and the Model Penal Code's Mens Rea Categories Andreas Kuersten and John D. Medaglia Georgetown University - Center for Clinical Bioethics and Assistant Professor Date Posted: 28 May 2021 [2nd last week]	191
2.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021 [1st last week]	178
3.	Vicarious Liability for AI Mihailis Diamantis University of Iowa - College of Law Date Posted: 24 May 2021	133
4.	Disability Law and HIV Criminalization Joshua Blecher-Cohen Yale Law School Date Posted: 07 May 2021	115
5.	Race-Based Remedies in Criminal Law Ion Meyn University of Wisconsin Law School Date Posted: 22 Apr 2021	111
6.	Objectives and Applicability of the POCSO Act, 2012 Explained Through Cases Neelakshi Bhaskar and Neolexvision Blogs Guru Gobind Singh Indraprastha (GGSIP) University - Vivekananda Institute of Professional Studies (VIPS) and Aequitas Victoria Foundation Date Posted: 24 Apr 2021 [7th last week]	104
7.	Race, History, and Immigration Crimes Eric S. Fish University of California, Davis - School of Law Date Posted: 19 Apr 2021 [8th last week]	90
8.	Mob Lynching: A Criminal Injustice towards Humanity? Bhaswat Prakash Ajeenkya DY Patil University Date Posted: 26 Apr 2021 [9th last week]	87
9.	Unnecessary, Counterproductive, and Unjust: The Case Against Hate Crime Legislation Michael Conklin Angelo State University - Business Law Date Posted: 20 Apr 2021 [10th last week]	64
10.	Mala Prohibita and Proportionality Youngjae Lee Fordham University School of Law Date Posted: 24 May 2021 [new to top ten]	58

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021	260
2.	Section 24(2) in the Trial Courts: An Empirical Analysis of the Legal and Non-legal Determinants of Excluding Unconstitutionally Obtained Evidence in Canada Steven Penney and Moin A. Yahya University of Alberta - Faculty of Law and University of Alberta - Faculty of Law Date Posted: 27 May 2021	131
3.	Punitive Surveillance Kate Weisburd George Washington Law School Date Posted: 22 Mar 2021 [4th last week]	118
4.	The Feminist Script for Punishment I. India Thusi Widener University - Delaware Law School Date Posted: 12 May 2021 [3rd last week]	112
5.	The Harms of Police Surveillance Technology Monopolies Elizabeth E. Joh and Thomas Wuil Joo University of California, Davis - School of Law and University of California, Davis - School of Law Date Posted: 27 Apr 2021	111
6.	Jailhouse Immigration Screening Eisha Jain University of North Carolina School of Law Date Posted: 20 Apr 2021	93
7.	The Private Prosecutor Safwaan Zamakda Allison University of the Highlands and Islands (UHI) Date Posted: 10 May 2021 [10th last week]	78
8.	#WeToo Kimberly Kessler Ferzan University of Pennsylvania Carey Law School Date Posted: 04 May 2021 [new to top ten]	66
9.	The Impact of Separate Opinions on International Criminal Law Nancy Combs William & Mary Law School Date Posted: 11 Mar 2021 [new to top ten]	65
10.	Qualifying Prosecutorial Immunity Through Brady Claims Brian Murray, Paul S. Heaton and Jon Gould Seton Hall Law School, University of Pennsylvania Law School and ASU School of Criminology and Criminal Justice Date Posted: 19 Apr 2021 [new to top ten]	65

"Judge Temporarily Stops the FBI From Seizing the Contents of Private Vaults"

From Vice, via NACDL's news-of-interest:

According to the feds, U.S. Private Vaults became a haven for drug dealers and criminals. According to Judge Klausner, the FBI went too far in seizing every asset in the vaults and failed to prove some customers were connected to any crimes. 

“The list of purported statutory bases for forfeiture is anything but specific,” the judge’s order said. The FBI painted with a broad brush when seizing the assets in the vaults, claiming the contents fell under a list of 35 separate possible violations. “These include code sections outlawing influencing a loan officer, forgery, counterfeiting, uttering counterfeit obligations, smuggling, loan fraud, computer fraud, and bank fraud among others. The notices therefore fall woefully short of the Government’s duty to provide ‘specific statutory provision allegedly violated.’”

Ouziel on Public and Private Prosecution

Lauren M. Ouziel (Temple University - James E. Beasley School of Law) has posted Prosecution in Public, Prosecution in Private (Notre Dame Law Review, Vol. 97, Forthcoming) on SSRN. Here is the abstract:

 

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power — and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges.

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"Iowa's Top Court Says Cops Can't Search People's Garbage Without A Warrant"

From techdirt, via NACDL's news-of-interest:

A search is a search, even when the intrusion is minimal. The court cites the US Supreme Court's Jones decision, which said the warrantless placement of a tracking device on a vehicle was a trespass.

Here, Heinz testified he opened the garbage to “obtain information about what Mr. Wright may have been doing inside [his] house” and obtain evidence “related to drug activity.” A constitutional search occurs whenever the government commits a physical trespass against property, even where de minimis, conjoined with “an attempt to find something or to obtain information.”

Warren on Comparative Law on Juries and Triers of Fact

Christie S. Warren (William and Mary Law School) has posted Comparative Legal Systems: Juries and Triers of Fact in Various Contexts (Oxford Constitutional Law, https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e341 (last updated June 2020)) on SSRN. Here is the abstract:

 

A jury is a body convened under oath to decide questions of fact, applications of law and at times sentencing issues during trial. Panels may be composed entirely of lay persons, or mixed panels of professional judges and lay jurors or assessors. Lay participation in trials is considered a symbol of democracy and popular sovereignty as well as a bulwark against abuses of governmental power and may also be viewed as a guarantor of community norms and values in the assessment of wrongful conduct by community members (Lanni 1775; Daly and Pattenden 680).

Thusi on Reality Porn

I. India Thusi (Widener University - Delaware Law School) has posted Reality Porn on SSRN. Here is the abstract:

 

Prostitution is illegal while pornography is constitutionally protected. Modern technology, however, is complicating the relationship between prostitution and pornography. Recent technological advances make the creation and distribution of recorded material more accessible. Within our smart phones we carry agile distribution networks as well as the technical equipment required to produce low-budget films. Today, sex workers may be paid to engage in sexual activities as part of performances that are recorded and broadcast to a public audience. No longer confined to the pornography industry, this form of sexual performance can be created by anyone with a cell phone and access to the internet. In addition, modern popular culture recognizes the expressive value of reality and ordinary life. Technological advances will only continue to make broadcasting and sharing everyday life possible, raising the possibility that there will be a growing audience for, and communities organized around, sexually expressive materials online. This Article is the first to analyze this increasingly important and common phenomenon that it defines as reality porn. It argues that reality porn is pornographic paid sex work that should be accorded First Amendment recognition, notwithstanding the criminalization of the underlying act of prostitution. This Article redefines pornography and provides a framework for analyzing this sexual expression. As long as the conduct is consentable—both consented to in fact and consensual in nature—it should not be deprived of constitutional protection.

Ram on Familial Forensic Identification

Natalie Ram (University of Maryland Carey School of Law) has posted Investigative Genetic Genealogy and the Problem of Familial Forensic Identification (Consumer Genetic Technologies: Ethical and Legal Considerations (I. Glenn Cohen, Nita Farahany, Henry T. Greely, and Carmel Shachar, eds., Cambridge Univ. Press) (2021 Forthcoming)) on SSRN. Here is the abstract:

 

Since the April 2018 arrest of the alleged Golden State Killer, law enforcement investigators have made arrests in a remarkable string of cold cases. In dozens of cases, investigators compared preserved crime DNA to other DNA profiles in an online genealogy database. These searches, in turn, uncovered partial genetic matches to known but distant genetic relatives of a putative suspect. Through sleuthing in the resulting family tree or trees, investigators have been able to identify suspects for investigation and, in some instances, arrest, prosecution, and conviction.

Proponents of using consumer genetics platforms to investigate and solve crimes have argued that the genetic data on which those investigations rely has been voluntarily uploaded and shared. Yet, in nearly every case thus far announced, the individual ultimately arrested did not himself upload his identifiable genetic information to a consumer genetics platform. Rather, he was identified through a match between crime scene DNA and the profile of a genetic relative—often a distant one. In other words, the individuals identified as suspects did not voluntarily upload their genetic data to a consumer genetics platform.

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Guiora on Sexual Assault Enablers

Amos N. Guiora (University of Utah - S.J. Quinney College of Law) has posted Sexual Assault Enablers, Institutional Complicity, and the Crime of Omission on SSRN. Here is the abstract:

 

Sex abuse, particularly of children, is a crime which any rational person would wish to prevent. However, when an individual’s loyalties and responsibilities to an institution put them at odds with preventing sex abuse, it is far too often the institution which takes precedence. This is the grim phenomenon of institutional complicity. It is a plague which, sadly, permeates institutions of all types, be it a school, hospital, sports team, church, military, or government agency. It also permeates countries as a global issue.

I have interviewed dozens of survivors who suffered under an abuser who was protected by an institution. The survivor’s expectation of the institution is simple: to be protected. Yet, time after time, these survivors found that it was the good name and reputation of the institution which was protected rather than themselves. Many survivors express that their anger towards those who enabled the abuse is greater than their anger towards the abuser.

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"U.S. Justice Department backs bill to end disparities in crack cocaine sentences"

From Reuters, via the NACDL's news-of-interest:

President Joe Biden's Justice Department is urging Congress to pass legislation to permanently end the sentencing disparities between crack cocaine and powder, a policy that has led to the disproportionate incarceration of African Americans across the United States.

In written testimony submitted to the Senate Judiciary Committee, the Justice Department lambasted the "unwarranted racial disparities" that have resulted from the differences in how drug offenses involving crack and powder cocaine are treated under current law, and said the misguided policy was "based on misinformation about the pharmacology of cocaine and its effects."

Lin on Carceral Strategy in Maoist China

Mao-hong Lin has posted Carceral Strategy and the Social Structure in Maoist China (UCLA Pacific Basin Law Journal, Vo.l 38, No.1, 2021) on SSRN. Here is the abstract:

This Article explores the connection between the carceral strategy utilized by the Chinese government and the social structure in the Mao era. From Mao’s view, thought reform and profit-seeking were the two primary goals of the Chinese socialist prison. Yet, by placing the system of labor camps and post-release management into a broader context, this Article demonstrates that the system was designed to make inmates depend on the socialist settings through the measures of party-state apparatus, prisoner cards and dossiers, classification of prisoners, hard labor, and thought remolding. Those measures had their counterparts in the general social structure in communist China, like work unit, household registration and political dossier. In addition, the unique feature of punishment-profit nexus made the system of labor camps and post-release management crucial for the purposes of economic development and political control in Mao’s time. In conclusion, the system of labor camps and post-release management was an integral part of the greater social control mechanism in Chinese society during Mao’s time. It was designed and operated in a way to reform an ill population into qualified workers so as to fit socialist requirements and maintain social stability.