CrimProf Blog

"Security Agencies and Congress Brace for Fight Over Expiring Surveillance Law"

From The New York Times:

The Biden administration is expected this week to ramp up a political battle over a high-profile warrantless surveillance program that traces back to the aftermath of the Sept. 11, 2001, attacks. A 2008 statute that legalized the program, known as Section 702, will expire at the end of December unless Congress votes to extend it.

A top national security official at the Justice Department is expected to urge Congress to reauthorize Section 702 during a speech at the Brookings Institution on Tuesday. Top F.B.I. and National Security Agency officials have already asked lawmakers to do so, portraying the authority as critical for gathering foreign intelligence and protecting against threats stemming from overseas hackers, spy services and terrorists.

Hoetger on Social Media and Evolving Expectations of Privacy

Lori A. Hoetger (University of Illinois College of Law) has posted Kids These Days: Social Media, Evolving Expectations of Privacy, and Implications for the Fourth Amendment (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

 

While scholars have suggested social media and other digital communications are eroding expectations of privacy, there has yet to be evidence supporting this concern. The present Article provides just that: two empirical studies examining whether age is related to expectations of privacy. The first study compares prior research on adult expectations of privacy and court holdings with adolescents’ expectations of privacy and finds that, while there are some similarities among these groups, adolescents’ expectations do differ from adults’ in several key aspects. The second study attempts to explain why there is this difference. By comparing expectations of privacy with age, experience with social media, and development of decision making capabilities, the second study provides evidence that social media may be changing expectations of privacy. The Article concludes with recommendations on ways courts can use empirical research to remain cognizant of evolving expectations of privacy in the digital age.

"Cruising around some early commentary on Cruz v. Arizona"

Douglas Berman has this post at Sentencing Law & Policy, canvassing a "good bit of early commentary regarding this past week's decision in Cruz v. Arizona, No. 21–846 (S. Ct. Feb 22, 2023) (available here), on behalf of a death row defendant."

"Prosecutors and Judges Push for Conviction Reviews, Ban on Junk Science of 911 Call Analysis"

From ProPublica, via NACDL's news update:

Revelations that a new type of junk science known as 911 call analysis has infiltrated the justice system have triggered calls by prosecutors, judges and defense attorneys nationwide to ban the use of the technique, review past convictions in which it was used and exact sanctions against prosecutors who snuck it into court despite knowing it was inadmissible.

. . . 

The technique’s chief architect, Tracy Harpster, developed a program to spread his methods and says police and prosecutors who take his training will learn how to identify guilt and deception from the word choice, cadence and grammar of those calling 911. So far, researchers who have tried to corroborate Harpster’s claims have failed.

Last year, ProPublica documented more than 100 cases in 26 states where law enforcement has employed his methods. Those responsible for ensuring honest police work and fair trials — including the FBI — have instead helped 911 call analysis metastasize. The investigation revealed that some prosecutors knew 911 call analysis would not be recognized as scientific evidence but still disguised it in trial against unwitting defendants anyway.

Today's criminal law/procedure cert grant

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

• Pulsifer v. United States: Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).

Gaes & Laskorunsky on Backend Release Decisions and Prison Population Levels

Gerry Gaes and Julia Laskorunsky (Florida State University and Robina Institute of Criminal Law and Criminal Justice at the University of Minnesota Law School) have posted The Relationship between Backend Release Decisions and Prison Population Levels on SSRN. Here is the abstract:

 

This paper examines the impact of prison release indeterminacy on prison populations. Prison release indeterminacy refers to the degree of control that government officials have over the duration of a person’s prison term after they have received a judicial sentence. This concept is particularly relevant to two-thirds of US states that use indeterminate sentencing systems, where parole boards play a significant role in release decisions. In addition, even in states with determinate sentencing, prison administrators have some level of discretion in awarding good time. The study uses data from the Bureau of Justice Statistics’ National Corrections Reporting Program and a series of reports on state prison release statutes and policies authored by Reitz and colleagues as part Robina Institute’s Degrees of Prison Release Indeterminacy Project (Robina Institute, 2021). Results show that states with higher levels of indeterminacy have greater potential for both prison population increases and decreases. However, it is more challenging to decrease prison populations through shifts in parole or prison discretion than to increase them.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply. 

Rank	Paper	Downloads
1.	Murders in US Are Very Concentrated, and They Are Becoming Even More So John R. Lott Crime Prevention Research Center Date Posted: 18 Jan 2023	2,358
2.	Concealed Carry Permit Holders Across the United States: 2022 John R. Lott Crime Prevention Research Center Date Posted: 12 Dec 2022	1,112
3.	Climate Homicide: Prosecuting Big Oil For Climate Deaths David Arkush and Donald Braman Public Citizen and George Washington University - Law School Date Posted: 25 Jan 2023	399
4.	Vagueness Avoidance Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 02 Jan 2023 [new to top ten]	245
5.	Rape as Indignity Ben A. McJunkin Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 06 Feb 2023 [4th last week]	203
6.	The Illusory Promise of General Property Law Maureen E. Brady Harvard Law School Date Posted: 31 Jan 2023 [5th last week]	182
7.	Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt) Jeffrey Bellin William & Mary Law School Date Posted: 20 Dec 2022 [6th last week]	103
8.	Criminal Insider Trading in Personal Networks Joan MacLeod Heminway University of Tennessee College of Law Date Posted: 14 Dec 2022 [new to top ten]	71
9.	Rethinking the Balance of Interests in Non-Exculpatory Defenses Paul H. Robinson, Jeffrey Seaman and Muhammad Sarahne University of Pennsylvania Carey Law School, University of Pennsylvania and University of Pennsylvania Date Posted: 09 Feb 2023 [new to top ten]	64
10.	Our Troubling Failures in Catching Criminals: Rethinking Legal Limits on Crime Investigation Paul H. Robinson, Jeffrey Seaman and Muhammad Sarahne University of Pennsylvania Carey Law School, University of Pennsylvania and University of Pennsylvania Date Posted: 15 Feb 2023 [new to top ten]	57

Next week's criminal law/procedure argument

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

• Dubin v. U.S.: Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

Opinion rejecting adequacy of independent state procedural rule where interpretation was novel and unforeseeable

Justice Sotomayor delivered the opinion of the Court in Cruz v. Arizona. Justice Barrett dissented, joined by Justices Thomas, Alito, and Gorsuch.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Terms of Service and Fourth Amendment Rights Orin S. Kerr University of California, Berkeley School of Law Date Posted: 31 Jan 2023	638
2.	The Illusory Promise of General Property Law Maureen E. Brady Harvard Law School Date Posted: 31 Jan 2023	182
3.	Judging Firearms Evidence Brandon L. Garrett, Eric Tucker and Nicholas Scurich Duke University School of Law, Duke University School of Law and University of California, Irvine Date Posted: 19 Jan 2023 [5th last week]	154
4.	Cancel Culture and Criminal Justice Steven Arrigg Koh Boston University School of Law Date Posted: 13 Dec 2022 [new to top ten]	136
5.	From Mutual Trust to the Gordian Knot of Notifications: The EU E-Evidence Legislative Project Theodore Christakis University Grenoble-Alpes, CESICE, France. Senior Fellow Cross Border Data Forum & Future of Privacy Forum Date Posted: 28 Dec 2022 [new to top ten]	134
6.	Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How It Can Recover (Excerpt) Jeffrey Bellin William & Mary Law School Date Posted: 20 Dec 2022 [3rd last week]	103
7.	Fact Stripping Joseph Blocher and Brandon L. Garrett Duke University School of Law and Duke University School of Law Date Posted: 27 Dec 2022 [4th last week]	83
8.	The Problem With Criminal Records Sarah Lageson and Robert Stewart Rutgers, The State University of New Jersey - School of Criminal Justice and University of Maryland Date Posted: 09 Jan 2023 [9th last week]	66
9.	PAVED With Good Intentions? An Evaluation of a French Police Predictive Policing System Yann Lecorps and Gaspard Tissandier Le Mans University and Université Paris 1 Panthéon-Sorbonne Date Posted: 30 Dec 2022 [7th last week]	63
10.	Fourth Amendment Constraints on Automated Surveillance Technology in the Public to Safeguard the Right of an Individual to be 'Secure in Their Person' Srivats Shankar University of California, Irvine School of Law Date Posted: 04 Jan 2023 [6th last week]	59

"Atlanta ‘Cop City’ Cases Test Use of Domestic-Terrorism Charges Against Protesters"

From The Wall Street Journal, via NACDL's news update:

Georgia prosecutors have deployed a unique strategy against a group of mostly out-of-town protesters who opposed a new police and fire training center here, using a state domestic-terrorism law to charge more than a dozen people in recent months.

It is the first time the law has been used in this manner, according to legal experts and the state chapter of the American Civil Liberties Union, and it is being watched closely by state and city governments, legal scholars and protest groups across the country.

Supporters of the legal tactic say it is necessary to impose stiffer penalties against those who want to commit violence under the guise of protest. Activists say the charges could stifle legitimate dissent. If successful in Georgia, such prosecutions could be used across the country to chill involvement in protests on a range of issues, they have argued.

Guiora et al. on Enablers of Child Sexual Abuse

Amos N. Guiora, Valeri Craigle, and Aya Hibben (University of Utah - S.J. Quinney College of Law, James E. Faust Law Library and Honors College, University of Utah) have posted Holding Enablers of Child Sexual Abuse Accountable: The Case of Jeremy Bell (59 Criminal Law Bulletin 2023, Forthcoming) on SSRN. Here is the abstract:

 

In the United States, 1 in every 5 women and 1 in every 13 men report being sexually abused as a child. Of the child sexual abuse that occurs during the K-12 years, much of it is aided and abetted by those in positions of authority who look the other way when abuse is known or suspected. This article uses the novel approach of holding not just the perpetrators of child sexual abuse accountable for these crimes, but also those who enable their criminal acts by failing to report suspicious behaviors or witnessed accounts of abuse. No case in more indicative of the tragic repercussions of failing to report abuse - particularly by those who are mandated to do so - than the case of Jeremy Bell, a child who had been sexually abused and ultimately murdered by his teacher, Edgar Friedrichs, in 1997. By recounting the story of Jeremy’s murder, the circumstances surrounding the crime, and the damage inflicted on Friedrichs’ many victims and their families, this article seeks to make a compelling argument for criminalizing enablers beyond the relatively mild penalties written into the laws that currently address this issue across the 50 states.

Cassell & Morris on Defining "Victim" Through Harm

Paul G. Cassell and Michael Ray Morris, Jr. (University of Utah - S.J. Quinney College of Law and University of Utah, S.J. Quinney College of Law, Students) have posted Defining 'Victim' Through Harm: Crime Victim Status in the Crime Victims' Rights Act and Other Victims' Rights Enactments on SSRN. Here is the abstract:

 

Who qualifies as a “victim” is the critical foundational question for the Crime Victims’ Rights Act (CVRA) and other crime victims’ rights laws. This article provides the first comprehensive exploration of this “victim” definition question. It traces out how the CVRA (and many states) define the term “victim” as broadly covering anyone who has been harmed as the result of a crime. This article begins by reviewing how issues surrounding the definition of “victim” have evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” with precision. The definition of “victim” has gradually evolved from a person who was the target of a crime to a much broader understanding of a person who has suffered harm as the result of a crime.

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"US mass killings linked to extremism spiked over last decade"

From AP, via NACDL's news update:

The number of U.S. mass killings linked to extremism over the past decade was at least three times higher than the total from any other 10-year period since the 1970s, according to a report by the Anti-Defamation League.

The report, provided to The Associated Press ahead of its public release Thursday, also found that all extremist killings identified in 2022 were linked to right-wing extremism, with an especially high number linked to white supremacy. They include a racist mass shooting at a supermarket in Buffalo, New York, that left 10 Black shoppers dead and a mass shooting that killed five people at an LGBT nightclub in Colorado Springs, Colorado.

"Another Dissent from Denial of Certiorari from Justice Jackson"

From Jonathan Adler at The Volokh Conspiracy:

Although Justice Jackson has not yet written an opinion in an argued case, this is the second time she has dissented from a denial of certiorari, and her third dissenting opinion overall. She previously dissented from the denial of certiorari in Chinn v. Shoop, and dissented from the denial of a stay of execution in Johnson v. Missouri. In both of these opinons she was joined by Justice Sotomayor. As previously noted, Justice Jackson is also the most active justice at oral argument, and Justice Barrett is the only justice to have written a majority opinion in an argued case so far this term.

In Davis, Justice Jackson believes the Court should have taken the opportunity to clarify what is necessary for a criminal defendant to demonstrate ineffective assistance of counsel in the context of plea negotiations. 

Bonnie on Competence for Criminal Adjudication

Richard J. Bonnie (University of Virginia School of Law) has posted Competence for Criminal Adjudication: Client Autonomy and the Significance of Decisional Competence (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other state and federal courts of appeal for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making of persons accused of criminal behavior. During the past thirty years, some governing principles have come into view, but important issues remain unresolved. After a brief review of the historical and conceptual foundations of the competence requirement, this article focuses on two decisions in which the Supreme Court has addressed decisional competence. In Godinez v. Moran (1993), the Court ruled that a pretrial finding that a defendant was competent to stand trial established that he was competent to waive representation by counsel and plead guilty because the test for competence is the same in the two contexts. However, in Indiana v. Edwards (2007), the Court held that a defendant who was found competent to stand trial while being represented by counsel may nonetheless be found to be incompetent to represent himself at trial. Although these decisions are not strictly contradictory, they are in deep tension with one another. This article attempts to set the law on a coherent path by highlighting the significance of doubts about decisional competence in both cases and formulating a coherent approach to guide state and federal courts in the future. In so doing, it builds on the influential empirical contributions of the MacArthur Foundation Research Network on Mental Health and the Law and integrates the author’s writing on this subject that was grounded in the MacArthur Network’s deliberations and has evolved over three decades.

"New Plea Bargain Task Force Report Highlights the Trial Penalty, Calls for Transparency"

From a press release by the NACDL:

NACDL applauds the release of a new report from the Plea Bargaining Task Force, a group convened by the Criminal Justice Section of the American Bar Association.* The task force closely examines the role of plea bargaining in our criminal legal system and provides policy recommendations and goals for changes in the way plea bargaining operates. . . .

The task force recommends several major steps that legislatures, lawyers, judges, and court administrators can take to bring back fairness and transparency to the plea bargaining system and uphold the constitutional right to trial. 

Turner et al. on Neglected Discovery

Jenia Iontcheva Turner, Ronald F. Wright, and Michael Braun (Southern Methodist University - Dedman School of Law, Wake Forest University - School of Law and Southern Methodist University (SMU) Cox School of Business) have posted Neglected Discovery (Duke Law Journal, Vol. 73, 2023) on SSRN. Here is the abstract:

 

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Evidence from digital platforms, which courts use to enable the exchange of evidence between prosecution and defense, reveals that defense attorneys sometimes fail to carry out their professional duty to review discovery.

Analyzing a novel data set we obtained from digital evidence plat-forms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number felony cases between 2018-2020. We also found that the access rate varied by county, year, offense type, attorney category, attorney experience, and file type.

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"‘Rust’ Prosecutors Downgrade Alec Baldwin’s Manslaughter Charges"

From The New York Times:

Mr. Baldwin’s lawyers argued this month that the Santa Fe County district attorney had incorrectly charged the actor under a version of a New Mexico firearm law that was passed months after the fatal shooting in October 2021.

If convicted under that law, called a firearm enhancement, Mr. Baldwin would have received a minimum prison sentence of five years. Instead, he now faces a maximum of 18 months in prison.

In a statement, Heather Brewer, a spokeswoman for the district attorney, said the prosecution had dropped the firearm enhancement to “avoid further litigious distractions by Mr. Baldwin and his attorneys.”

. . .

This is not the only challenge Mr. Baldwin’s legal team has made to the prosecution’s case. The lawyers have also questioned the constitutionality of the district attorney’s appointment of a special prosecutor, Andrea Reeb. Ms. Reeb is also a newly elected state representative, and Mr. Baldwin’s lawyers have said that serving in two separate branches of government is unlawful and have asked for her to be disqualified.

 

“The prosecution’s priority is securing justice, not securing billable hours for big-city attorneys,” Ms. Brewer said on Monday.

Bock & Green on The Victim in Homicide

Stefanie Bock and Stuart P. Green (Philipps-University Marburg and Rutgers, The State University of New Jersey - Rutgers Law School) have posted Defining the Victim in the Law of Homicide (Core Concepts in Criminal Law and Criminal Justice: Volume III (Cambridge U. Press) Forthcoming) on SSRN. Here is the abstract:

 

This chapter focuses on five main issues related to the question of who or what can be a “victim” of homicide. We argue as follows: First, that homicide law should protect all living members of the human species regardless of their individual characteristics, abilities, achievements, or social status; though we recognize that, as technology and social norms continue to develop, this anthropocentric approach of homicide offences should potentially be supplemented by specialized norms providing for the adequate protection of animals and artificially intelligent beings. Second, that differentiations in grading or sentencing based on the age, gender, or occupation of the victim are unwarranted. Third, that homicide law should be limited to cases in which the victim has been born at the time the death-causing injury was inflicted and that other cases, involving fetuses that are injured by hostile third parties and then die (whether in utero or after birth) should be prosecuted, if at all, under the separate rubric of “feticide.” Fourth, that homicide law should be concerned exclusively with the killing of “others,” as opposed to “self” and that suicide therefore should not be a criminal offence; though we concede that where there is a risk that a person is being pressured to commit suicide or is doing so in error, it may be appropriate to prosecute for assistance to, or incitement of, suicide or indirect perpetration of homicide. Fifth, that in determining whether a victim should be regarded as “already dead” and therefore beyond the scope of homicide law, we should apply a set of criteria that is consistent with that applied in determining the beginning of life (viz, the irreversible cessation of brain stem function or the irreversible cessation of circulatory and respiratory function).