CrimProf Blog

Jarecki on Perpetual Surveillance

John Jarecki has posted Privacy in the Panopticon: The Fourth Amendment Case Against Perpetual Surveillance (Vol. 48. No 1. University of Dayton Law Review 2022) on SSRN. Here is the abstract:

This article explores the need for greater Fourth Amendment protections against the practice of long term pole camera surveillance. Section II offers a history of the Fourth Amendment in the context of surveillance and reviews the development and pitfalls of the famous Katz test. It also recounts how courts have fractured in their efforts to apply Katz to cases involving lengthy video monitoring and considers the oft-cited Mosaic Theory in more detail. Section III argues that the United States Supreme Court, as the final arbiter of disputes among the circuit courts, is in the best position to reboot the now wearied Katz test to preserve privacy rights in the modern landscape and argues that Katz should be replaced with a test better suited to contend with the challenges of perpetual video surveillance in the modern age.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Black Guilt, White Guilt at the International Criminal Court Rachel López Drexel University Thomas R. Kline School of Law Date Posted: 06 Oct 2022	319
2.	Agree to Act Together: An Exposition of the Contemporary Laws on Conspiracy Under Ghanaian Criminal Jurisprudence Charles Boakye University of Ghana School of Law Date Posted: 27 Sep 2022	255
3.	Promise or Peril?: The Political Path of Prison Abolition in America Rachel E. Barkow New York University School of Law Date Posted: 03 Oct 2022	227
4.	A Human Rights-Based Critical Discourse on the Abolition of Child Sexual Abuse Manotar Tampubolon Christian University of Indonesia (UKI) Date Posted: 20 Oct 2022	197
5.	Towards Collective Safety: Transformative Methodologies Sarah T. Hamid and Rachel Kuo Independent and The University of Illinois at Urbana-Champaign Date Posted: 03 Nov 2022	162
6.	The Immigration Implications of Presidential Pot Pardons Jason A. Cade University of Georgia School of Law Date Posted: 01 Nov 2022	107
7.	Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence Kerri Froc and Elizabeth A. Sheehy University of New Brunswick Faculty of Law and University of Ottawa - Common Law Section Date Posted: 27 Sep 2022	100
8.	Accidental Abolition? Exploring Section 230 as Non-Reformist Reform Kendra Albert Harvard Law School Date Posted: 17 Oct 2022	92
9.	Thinking Outside the Dox: The First Amendment and the Right to Disclose Personal Information Frank LoMonte and Paola Fiku University of Florida Levin College of Law and Brechner Center for Freedom of Information Date Posted: 22 Sep 2022 [new to top ten]	85
10.	A Behavioral Ethics Perspective on the Theory of Criminal Law & Punishment Hadar Dancig-Rosenberg, Hadar Dancig-Rosenberg and Yuval Feldman Bar-Ilan UniversityUC Berkeley School of Law and Bar-Ilan University - Faculty of Law Date Posted: 21 Sep 2022 [new to top ten]	70

Next week's criminal law/procedure arguments

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

• Ciminelli v. U.S.: Whether the U.S. Court of Appeals for the 2nd Circuit’s “right to control” theory of fraud — which treats the deprivation of complete and accurate information bearing on a person’s economic decision as a species of property fraud — states a valid basis for liability under the federal wire fraud statute.
• Percoco v. U.S.: Whether a private citizen who holds no elected office or government employment, but has informal political or other influence over governmental decisionmaking, owes a fiduciary duty to the general public such that he can be convicted of honest-services fraud.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problematic Structure of Indigent Defense Delivery Eve Brensike Primus University of Michigan Law School Date Posted: 04 Oct 2022	247
2.	The Initial Collateral Consequences of Pretrial Detention: Employment, Residential Stability, and Family Relationships Tiffany Bergin, Rene Ropac, Imani Randolph and Hannah Joseph NYC Criminal Justice Agency, NYC Criminal Justice Agency, NYC Criminal Justice Agency and NYC Criminal Justice Agency Date Posted: 06 Oct 2022 [5th last week]	152
3.	'Critical Legal Studies, Again?' 'Again and Again!' Evan D. Bernick Northern Illinois University - College of Law Date Posted: 27 Sep 2022 [4th last week]	148
4.	Telephone Pole Cameras Under Fourth Amendment Law Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 06 Oct 2022 [7th last week]	110
5.	Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond Nancy J. King Vanderbilt University - Law School Date Posted: 04 Nov 2022 [8th last week]	97
6.	El Marco Internacional para la Excelencia de las Cortes y Justicia Terapéutica: Creando excelentes cortes y mejorando el bienestar (The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing) Elizabeth Richardson, Pauline Spencer and David B. Wexler Monash University - Faculty of Law, Magistrates' Court of Victoria and University of Puerto Rico - School of Law Date Posted: 30 Sep 2022 [9th last week]	90
7.	Race and Wrongful Convictions in the United States 2022 Samuel R. Gross, Maurice Possley, Ken Otterbourg, Klara Stephens, Jessica Paredes and Barbara O'Brien University of Michigan Law School, University of California Irvine, Independent, Independent, Independent and Michigan State University - College of Law Date Posted: 25 Oct 2022 [10th last week]	87
8.	The Efficiency Mindset and Mass Incarceration Thea Johnson Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 21 Oct 2022 [new to top ten]	63
9.	Put the Juvenile Back in Juvenile Court Erin Fitzgerald New England Law | Boston Date Posted: 02 Sep 2022 [new to top ten]	61
10.	Time to Heal: Trauma's Impact on Rape & Sexual Assault Statutes of Limitations Fredrick E. Vars University of Alabama - School of Law Date Posted: 26 Sep 2022 [new to top ten]	61

 

"Chinese Court Sentences Canadian Singer to Prison for Rape"

From The New York Times:

Kris Wu, a Canadian Chinese pop singer who was once one of China’s most popular entertainers, was found guilty of rape by a Beijing court and sentenced to 13 years in prison on Friday, becoming one of the most prominent figures in the country to be punished for #MeToo allegations.

. . .

In its statement, the court said he would also be deported. Officials from the Canadian embassy in China attended the sentencing hearing, the court said. Mr. Wu, who had denied the allegations when they first surfaced, has the right to appeal his conviction and 13-year prison term. Mr. Wu’s lawyer could not be immediately reached.

In a separate announcement, the Chinese government said it would seek 600 million yuan, or about $83 million, from Mr. Wu for tax evasion, overdue fees, and fines, according to Xinhua, a state-owned news agency.

"What to Know Now That the N.Y.P.D. Is on Amazon’s Neighborhood Watch App"

From The New York Times:

The New York Police Department, which already relies on a high-tech toolbox that includes facial recognition software, drones and mobile X-ray vans, has joined Neighbors, a public neighborhood watch platform owned by Amazon’s Ring where video doorbell owners can post clips, and where precincts can enlist the help of the city’s residents in their investigations.

. . . 

But the vast growth of the initiative — over 2,000 of the nation’s public safety agencies have signed on, including in Los Angeles and Chicago — has alarmed digital rights and privacy activists who say that the platform could lead to over surveillance by the police, a burden historically borne by people of color. 

"High court primed to temper political bribery convictions in case with ex-Cuomo aide"

From Courthouse News Service, via NACDL's news update:

Two bribery schemes are at the heart of those convictions. In 2012, when Percoco was serving as Andrew Cuomo’s executive deputy secretary, he got his wife a job with a state lobbyist Todd Howe. Howe headed up an energy company seeking a contract with the state. After hiring Percoco’s wife as an education consultant where she worked a few hours a week for $90,000 a year, Percoco helped Howe’s energy company obtain an energy contract for the state. 

There is no dispute that Percoco was employed by the state in that matter, but his other convictions fall under a much murkier timeline. In 2014, Percoco left Cuomo’s office for about eight months to manage the governor's reelection campaign. During this time, Percoco is alleged to have helped a real estate developer avoid signing a costly labor agreement in exchange for $35,000. 

The eight months where Percoco worked for Cuomo’s reelection campaign are key to the case before the high court. Percoco claims his role in this scheme sets him squarely in lobbyist — not criminal — territory. 

"Man Charged With Breaking Window Repeatedly at Manhattan Gay Bar"

From The New York Times:

Sean Kuilan, 34, of Hell’s Kitchen, the Manhattan neighborhood where the attacks occurred, was charged with criminal possession of a weapon, criminal mischief and reckless endangerment, according to the Police Department.

Keechant Sewell, the police commissioner, reiterated the charges in a statement on Twitter, but did not say if Mr. Kuilan would be charged with a hate crime. Still, in an appeal to the public before his arrest, the police described the string of attacks as a “hate crime pattern” and the department email identifying the arrested man had “hate crime” in its subject line.

. . . 

Mr. Bottcher posted footage from the bar’s security camera on Twitter that showed the attacker’s face, and on Monday the police posted footage from the security camera of a nearby bodega that showed the man walking through its aisles. The man wore a dark jacket, jeans and glasses and he purchased a drink before leaving, the video shows.

"What a hate crime case might look like for the Colorado Springs shooter"

From NPR, via NACDL's news update:

Officials are investigating the Colorado Springs nightclub shooting as a possible hate crime. Last year, state lawmakers made it easier for prosecutors to pursue hate crime charges.

"Jail Is a Death Sentence for a Growing Number of Americans"

From The New York Times:

Houston, whose jail has reached its highest population count in over a decade, is far from the only city where jails have become more fatal. Deaths have spiked in cities across the country, including New York, Oklahoma City, Seattle, Pittsburgh and Louisville, Ky. California, Texas and Georgia have also recorded statewide increases in deaths. Covid-19 accounts for only part of the rising toll — suicides and fatal overdoses have also increased in some places.

Jail officials blame a host of factors, including crowding, staff shortages, mental health issues exacerbated by the pandemic and the repurposing of beds in solitary confinement, once available to isolate violent detainees, that now must be used for quarantining the ill.

Janes on State Constitutions and Extreme Sentencing of Emerging Adults

Katharine M. Janes has posted Life or Death: Employing State Constitutional Principles of Proportionality to Combat the Extreme Sentencing of Emerging Adults (Virginia Law Review, Forthcoming) on SSRN. Here is the abstract:

The United States Supreme Court has repeatedly held that, when facing criminal punishment, juvenile offenders must be treated differently from adults. Because those under the age of eighteen lack maturity, have heightened vulnerability to external influence, and possess a unique capacity for rehabilitation, the imposition of extreme sentences—including the death penalty, mandatory life without parole, and discretionary life without parole for non-homicide offenses—is disproportionate and unconstitutional under the Eighth Amendment.

Emerging neuroscientific research strongly indicates that the immaturity, impressionability, and corrigibility of juveniles are also characteristics of emerging adults, defined here as individuals ages eighteen through twenty. Courts, however, have consistently resisted extending Federal Eighth Amendment protections to this demographic. As such, this Note proposes challenging the extreme sentencing of emerging adults as disproportionate under state, instead of federal, constitutional law. All fifty states prohibit cruel and/or unusual punishment, or its equivalent, in their state constitution. Further, recent litigation in Washington and Illinois demonstrates how successful challenges to disproportionate emerging-adult sentencing under state constitutional law can be achieved. This Note advocates that litigants launch facial challenges, in particular, under state constitutional provisions as a desirable mechanism for change.

"BREAKING DOWN THE ARTICLES OF IMPEACHMENT AGAINST KRASNER"

From the Philadelphia Inquirer, via NACDL's news of interest:

Philadelphia District Attorney Larry Krasner was impeached by the Pennsylvania House on Wednesday after Republican lawmakers said he engaged in “misbehavior in office” that justifies his removal.

The seven articles of impeachment make a range of accusations, including that Krasner, a Democrat, has fueled the city’s surge in homicides, mishandled criminal cases, and violated the rights of crime victims. The impeachment resolution passed 107-85, almost exclusively along party lines, with one Republican voting against it.

Concannon on Transphobic and Homophobic Hate Crime

Liam Concannon has posted an abstract of Protecting Difference: A Discussion on Transphobic and Homophobic Hate Crime in the Irish Context (Critical Social Policy 2022) on SSRN. Here is the abstract:

Ireland has been applauded internationally for its legislative progress in supporting the rights of LGBT+ citizens. Yet much of the positive change within the social and political context of sexuality and gender expression, has been achieved by campaign groups operating outside government boundaries. Notwithstanding these advances, LGBT+ people continue to face discrimination, abuse and violence. Concerns surrounding acts of aggression towards transgender and gay people call for an on-going dialogue between legislators, policy makers, and practitioners to explore ways in which safety can be ensured. This article draws from an emerging body of scholarship and research to question the effectiveness of current policy and legislation in Ireland. It offers a discourse on hate crime related to transphobia and homophobia, while challenging the existing political thinking. Multi-agency collaborative working is suggested as key to fostering solutions, together with changes in legal paradigms, and the continued formation of policy aimed at safeguarding the LGBT+ community.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Black Guilt, White Guilt at the International Criminal Court Rachel López Drexel University Thomas R. Kline School of Law Date Posted: 06 Oct 2022	307
2.	Agree to Act Together: An Exposition of the Contemporary Laws on Conspiracy Under Ghanaian Criminal Jurisprudence Charles Boakye University of Ghana School of Law Date Posted: 27 Sep 2022	221
3.	Promise or Peril?: The Political Path of Prison Abolition in America Rachel E. Barkow New York University School of Law Date Posted: 03 Oct 2022 [4th last week]	211
4.	A Human Rights-Based Critical Discourse on the Abolition of Child Sexual Abuse Manotar Tampubolon Christian University of Indonesia (UKI) Date Posted: 20 Oct 2022 [6th last week]	167
5.	Towards Collective Safety: Transformative Methodologies Sarah T. Hamid and Rachel Kuo Independent and The University of Illinois at Urbana-Champaign Date Posted: 03 Nov 2022	155
6.	The Immigration Implications of Presidential Pot Pardons Jason A. Cade University of Georgia School of Law Date Posted: 01 Nov 2022 [8th last week]	100
7.	Last Among Equals: Women’s Equality, R v Brown, and the Extreme Intoxication Defence Kerri Froc and Elizabeth A. Sheehy University of New Brunswick Faculty of Law and University of Ottawa - Common Law Section Date Posted: 27 Sep 2022 [new to top ten]	88
8.	Accidental Abolition? Exploring Section 230 as Non-Reformist Reform Kendra Albert Harvard Law School Date Posted: 17 Oct 2022 [9th last week]	88
9.	Bipartisan Safer Communities Act Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 19 Sep 2022 [new to top ten]	84
10.	The Moral Foundation of Criminal Defences and the Limits of Constitutional Law Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 12 Sep 2022 [new to top ten]	83

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Problematic Structure of Indigent Defense Delivery Eve Brensike Primus University of Michigan Law School Date Posted: 04 Oct 2022	246
2.	Using Consent to Expand Tribal Court Criminal Jurisdiction Grant Christensen Stetson University - College of Law Date Posted: 14 Sep 2022 [3rd last week]	166
3.	Dobbs Online: Digital Rights as Abortion Rights Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 22 Sep 2022 [5th last week]	145
4.	'Critical Legal Studies, Again?' 'Again and Again!' Evan D. Bernick Northern Illinois University - College of Law Date Posted: 27 Sep 2022	142
5.	The Initial Collateral Consequences of Pretrial Detention: Employment, Residential Stability, and Family Relationships Tiffany Bergin, Rene Ropac, Imani Randolph and Hannah Joseph NYC Criminal Justice Agency, NYC Criminal Justice Agency, NYC Criminal Justice Agency and NYC Criminal Justice Agency Date Posted: 06 Oct 2022 [6th last week]	133
6.	State Constitutionalism and the Crisis of Excessive Punishment Robert J. Smith, Zoe Robinson and Emily Hughes Harvard Law School (Fair Punishment Project, a joint initiative of the Charles Hamilton Houston Institute & Criminal Justice Institute), Australian National University, School of Politics and International Relations and University of Iowa - College of Law Date Posted: 23 Sep 2022 [7th last week]	110
7.	Telephone Pole Cameras Under Fourth Amendment Law Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 06 Oct 2022 [8th last week]	104
8.	Constitutional Limits on the Imposition and Revocation of Probation, Parole, and Supervised Release After Haymond Nancy J. King Vanderbilt University - Law School Date Posted: 04 Nov 2022 [new to top ten]	95
9.	El Marco Internacional para la Excelencia de las Cortes y Justicia Terapéutica: Creando excelentes cortes y mejorando el bienestar (The International Framework for Court Excellence and Therapeutic Jurisprudence: Creating Excellent Courts and Enhancing Wellbeing) Elizabeth Richardson, Pauline Spencer and David B. Wexler Monash University - Faculty of Law, Magistrates' Court of Victoria and University of Puerto Rico - School of Law Date Posted: 30 Sep 2022	86
10.	Race and Wrongful Convictions in the United States 2022 Samuel R. Gross, Maurice Possley, Ken Otterbourg, Klara Stephens, Jessica Paredes and Barbara O'Brien University of Michigan Law School, University of California Irvine, Independent, Independent, Independent and Michigan State University - College of Law Date Posted: 25 Oct 2022 [new to top ten]	69

"188 Convictions Tied to Discredited N.Y.P.D. Officers Are Tossed Out"

From The New York Times:

The move follows similar actions by prosecutors across the city in a sweeping effort to review cases that relied on police officers who were convicted of official misconduct and other crimes related to their work.

In September, the Brooklyn prosecutor’s office announced that it was seeking to dismiss 378 low-level criminal convictions that relied on 13 former police officers who were convicted of crimes. As of Thursday, all the convictions — 47 felonies and 331 misdemeanors — had been vacated, a spokesman for the office said.

Hoffmann & Zontek on H.L.A. Hart and Discretion in Criminal Justice

Joseph L. Hoffmann and Witold Zontek (Indiana University-Bloomington, Maurer School of Law and Katedra Prawa Karnego Uniwersytet Jagielloński /Department of Criminal Law Jagiellonian University) have posted Discretion in Criminal Justice: Reflections Prompted by H.L.A. Hart's "Lost" Essay on SSRN. Here is the abstract:

 

In his so-called “Lost” Essay, H.L.A. Hart asked, “What is discretion?” Hart sought to explain the nature and characteristics of discretion by close examination of several examples of discretion in law and in life, and he suggested further study along the same lines. In this draft article, we take up Hart’s suggestion by examining the role played by discretion in the American and Polish criminal justice systems. The article describes various aspects or stages of the American and Polish criminal justice systems that involve discretion, or something like it, and through analyzing these examples draws some tentative conclusions about the nature and characteristics of discretion in criminal justice.

Slobogin on Virtual Searches

Christopher Slobogin recently published a book called Virtual Searches: Regulating the Covert World of Technological Policing (NYU Press), available here. An audio version is available here. Here's an abstract:

A host of technologies—among them digital cameras, drones, facial recognition devices, night-vision binoculars, automated license plate readers, GPS, geofencing, DNA matching, datamining, and artificial intelligence—have enabled police to carry out much of their work without leaving the office or squad car, in ways that do not easily fit the traditional physical search and seizure model envisioned by the framers of the Constitution. Virtual Searches develops a useful typology for sorting through this bewildering array of old, new, and soon-to-arrive policing techniques. It then lays out a framework for regulating their use that expands the Fourth Amendment’s privacy protections without blindly imposing its warrant requirement, and that prioritizes democratic over judicial policymaking. The coherent regulatory regime developed in Virtual Searches ensures that police are held accountable for their use of technology without denying them the increased efficiency it provides in their efforts to protect the public. Whether policing agencies are pursuing an identified suspect, constructing profiles of likely perpetrators, trying to find matches with crime scene evidence, collecting data to help with these tasks, or using private companies to do so, Virtual Searches provides a template for ensuring their actions are constitutionally legitimate and responsive to the polity.

Kendall & Walker-Munro on Enviro-Terrorism and Enviro-Sabotage

Sarah Kendall and Brendan Walker-Munro (University of Queensland - T.C. Beirne School of Law and University of Queensland - T.C. Beirne School of Law) have posted Environmental Damage as a Threat to National Security: Australia's Legal Vulnerability to Enviro-Terrorism and Enviro-Sabotage (Forthcoming, Public Law Review) on SSRN. Here is the abstract:

 

This article examines whether Australia’s domestic criminal laws effectively address the threat of environmental damage that is intended to undermine our national security. It focuses on two specific types of conduct – enviro-terrorism (destruction of the natural environment to further the political and/or ideological agendas of terrorist organisations) and enviro-sabotage (damage to the environment caused by foreign powers seeking to harm Australia’s national security). Through an analysis of Australia’s federal sabotage offences, state and territory sabotage offences and crimes under environmental protection legislation, the article shows that Australia’s domestic laws fail to adequately protect Australia’s diverse and irreplaceable natural environment from deliberate attack by terrorists or foreign powers. The article concludes by making recommendations for law reform to better protect Australia’s natural environment from attacks intended to undermine our national security.

Regensburger on Res Gestae and Intrinsic Evidence

Derek Regensburger has posted Would Res Gestae Smell as Sweet by Any Other Name? Why the Colorado Supreme Court Got it Wrong in Rojas V. People by Replacing the Res Gestae Doctrine with the Intrinsic Evidence Test (Criminal Law Bulletin 2022) on SSRN. Here is the abstract:

The Colorado Supreme Court dispensed with the res gestae doctrine in Colorado in Rojas v. People in 2022. It replaced the res gestae doctrine with the intrinsic evidence test fashioned by the 3rd Circuit. In order to be exempt from Rule 404(b), evidence must now be either direct proof of the charged offense or a contemporaneous act carried out in furtherance of the charged crime or its planning. The Colorado Supreme Court erred in issuing this decision. The new test unnecessarily excludes evidence that it is so entangled or intertwined with the charged conduct that it should rightfully be considered as inseparable res gestae and exempt from Rule 404(b). The new test also is vague. The definition of intrinsic evidence--that the evidence must provide direct proof of the charged conduct--is unclear and too restrictive to be of real value. The Colorado Supreme Court also failed to correctly apply the new test to the facts of the case. The act of reapplying for welfare benefits, using the same act of unemployment, should have constituted evidence of ongoing fraud, and thus direct proof of the charged theft, even though it was not part of the charged conduct. Thus, the evidence should have been exempt from Rule 404(b). I propose a new test be put in place of the intrinsic evidence test adopted by the Colorado Supreme Court. This new test would classify evidence of other acts as intrinsic to the crime charged and not independent offenses if they are: 1) probative of an element of the crime charged and are linked in time, purpose, and design to a charged offense such that they should be considered part of the same criminal scheme or episode; or 2) linked in time, purpose, and design to the charged offense and are offered to show the facilitation or planning of that offense; or 3) inseparable from the witness testimony about proof of the charged offense such that their exclusion or excision from that testimony would leave geographical or chronological gaps that would render it incomprehensible or significantly less credible to the factfinder.