CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, February 24, 2021

Neanidis & Rana on Crime and COVID-19

Kyriakos C. Neanidis and Maria Paola Rana (University of Manchester - School of Social Sciences and Salford University) have posted Crime in the Era of COVID-19: Evidence from England on SSRN. Here is the abstract:
 
The rapid spread of the COVID-19 pandemic and the prescribed countermeasures of restrictions to mobility and social distancing are disrupting economic activity around the world. This applies to legal economic activity but also to criminal behavior and illegal activity. In this study, we investigate the effects of COVID-19-induced lockdowns on recorded crime in England. The enforcement of lockdowns in the country at both the national and local levels, temporally and spatially, allows unveiling the impact on criminal activities by type of shutdown policy. We use official crime data across the universe of local authorities dating back to May 2013 for all recorded crime categories. We find that (1) National lockdowns decrease all types of criminal behavior, except for anti-social behavior, drug offences and crimes against public order which are recording increases. (2) Relaxing national lockdown restrictions attenuates the initial crime effects of strict lockdowns across all crimes. (3) Local lockdowns affect fewer crime categories, limited to increasing anti-social behavior and weapons possession offences and decreasing bicycle theft and other theft violations, with findings being driven by late-entry areas of such policies. (4) A change in the local lockdown scheme implemented by the government in October 2020 does not have a markedly dissimilar effect on criminal activity compared to the earlier scheme. (5) Back-of-the-envelope calculations suggest that government-mandated lockdowns reduced the economic costs of crime by approximately £4.3 billion for the country as a whole (in 2020 British pounds).

February 24, 2021 | Permalink | Comments (0)

Lynch et al. on Traumatic Brain Injury and the Criminal Trial Process

Alison LynchMichael L. Perlin and Heather Cucolo (Mental Disability Law & Policy Associates, New York Law School and New York Law School) have posted 'My Bewildering Brain Toils in Vain': Traumatic Brain Injury, the Criminal Trial Process, and the Case of Lisa Montgomery on SSRN. Here is the abstract:
 
Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.

A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced to death, and ultimately executed for the murder of a pregnant woman and the kidnapping of the woman’s unborn child. Her case reflects all that is wrong with the way we treat criminal defendants with traumatic brain injuries.

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February 24, 2021 | Permalink | Comments (0)

Berryessa & Balavender on Remorse and Sentencing

Colleen Berryessa and Ashley Balavender (Rutgers, The State University of New Jersey - School of Criminal Justice and Rutgers, The State University of New Jersey - School of Criminal Justice) have posted The Value of Remorse as a 'Therapeutic Tool' for Probation Officers in Sentencing (Forthcoming in M. Perlin & K. Frailing (Eds.), The Therapeutic Jurisprudence Implications of Judicial Decision-Making by Non-Judicial Officers. Philadelphia, PA: Temple University Press) on SSRN. Here is the abstract:
 
Although shame and guilt are often conceived as adverse sentiments in criminal contexts, defendants’ expressions of remorse may actually act as an effective “therapeutic tool” in the legal process in order to reduce negative emotions, decrease future recidivism, and increase both community and victim healing, as well as rehabilitation. As such, evaluations of remorse should be integrated into decision-making processes at different stages of the criminal-legal process. The current chapter discusses the potential role of remorse, as a form of “therapeutic guilt,” in the context of probation officer decision-making and the relevance of remorse to their pre-sentencing reports and sentencing recommendations. We argue that probation officers should evaluate, recognize, and adopt the therapeutic value of remorse as a type of “reintegrative shaming” that can provide genuine evidence of their clients’ potential for restoration and reintegration into the community. Ultimately, this chapter provides recommendations and a framework for probation officers on how to best recognize and assess true remorse, understand its therapeutic relevance within the Therapeutic Jurisprudence framework, and how it may be integrated into their reports and decision-making in sentencing moving forward.

February 24, 2021 | Permalink | Comments (0)

Gold & Wright on The Political Patterns of Bail Reform

Russell M. Gold and Ronald F. Wright (University of Alabama School of Law and Wake Forest University - School of Law) have posted The Political Patterns of Bail Reform (Wake Forest Law Review, Vol. 55, No. 4, 743) on SSRN. Here is the abstract:
 
In this introduction to the Wake Forest Law Review’s symposium on pretrial detention reform, we examine the politics of the issue at the state and local levels. First, reforms in different places do not all share the same objectives. Some places seek less pretrial detention, while others wish to eliminate the use of cash bail that releases dangerous wealthy people and incarcerates other people solely for being poor. Second, localism is a powerful force in the choice of reform methods. There is no single sequence of reforms that state and local governments have followed to protect pretrial liberty. Even if the recent proposal from the Uniform Law Commission were to become a uniform statutory floor nationwide, some jurisdictions would nonetheless pursue more ambitious reforms.

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February 24, 2021 | Permalink | Comments (0)

Tuesday, February 23, 2021

Natapoff on Criminal Municipal Courts

Alexandra Natapoff (Harvard Law School) has posted Criminal Municipal Courts (Harvard Law Review, Vol. 134, No. 3, p. 964, 2021) on SSRN. Here is the abstract:
 
Municipal courts are the lowest and least scrutinized echelon of the U.S. criminal system. Largely ignored by judicial theorists, municipal governance scholarship, and criminal theory alike, these city-controlled courts operate on the intellectual sidelines; even basic public information about their dockets and operations is scarce. This Article brings municipal courts into the broader legal and scholarly conversation, offering the first comprehensive analysis of the enormous municipal court phenomenon. Nationwide, there are over 7,500 such courts in thirty states. Collectively they process over three and a half million criminal cases every year and collect at least two billion dollars in fines and fees. Created, funded, and controlled by local municipalities, these courts — sometimes referred to as “summary” or “justice” or “police” courts — are central to cities’ ability to police, to maintain public safety, and to raise revenue. At the same time, they often exhibit many of the dysfunctions for which lower courts have been generally criticized: cavalier speed, legal sloppiness, punitive harshness, and disrespectful treatment of defendants. Unlike their state counterparts, however, the U.S. Supreme Court has formally excused municipal courts from some basic legal constraints: judges need not be attorneys and may simultaneously serve as city mayors, while proceedings are often summary and not of record. These hybrid institutions thus pose thorny conceptual challenges: they are standalone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions. As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity.

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February 23, 2021 | Permalink | Comments (0)

Campbell on Protests and Police Lethal Force

Travis Campbell (University of Massachusetts at Amherst - College of Social and Behavioral Sciences - Department of Economics) has posted Black Lives Matter's Effect on Police Lethal Use-of-Force on SSRN. Here is the abstract:
 
Has Black Lives Matter influenced police lethal use-of-force? A difference-in-differences design finds census places with Black Lives Matter protests experience a 15% to 20% decrease in police homicides over the ensuing five years, around 300 fewer deaths. The gap in lethal use-of-force between places with and without protests widens over these subsequent years and is most prominent when protests are large or frequent. This result holds for alternative specifications, estimators, police homicide datasets, and population screens; however, it does not hold if lethal use-of-force is normalized by violent crime or arrests. Protests also influence local police agencies, which may explain the reduction. Agencies with local protests become more likely to obtain body-cameras, expand community policing, receive a larger operating budget, and reduce the number of property crime-related arrests, but forego some black officer employment and college education requirements.

February 23, 2021 | Permalink | Comments (0)

Greenberg on Wrongful Convictions of Indigenous Youth

Jeremy Greenberg has posted When One Innocent Suffers: Phillip James Tallio and Wrongful Convictions of Indigenous Youth (Criminal Law Quarterly, Vol. 67) on SSRN. Here is the abstract:

This paper examines the causes - sociological, psychological, and legal - for the wrongful conviction of Indigenous persons, and in particular, Indigenous youth, in Canada. The paper includes an overview of research on causes of wrongful conviction, as well as background on the systemic over-incarceration of Indigenous persons in Canada.

The paper also includes recommendations on reducing wrongful conviction risk factors, including, inter alia, false confessions, plea bargaining, bias and "tunnel vision" by police and other state actors, the overlap between the child welfare and criminal justice systems, the prevalence of mental illness and disabilities in the criminal justice system, the legacy of Residential Schools and ongoing marginalization of Indigenous persons, and the evolving philosophy of youth criminal justice. The experience of one Indigenous youth, Phillip James Tallio, is situated against this backdrop.

February 23, 2021 | Permalink | Comments (0)

Ouziel on The Bureaucratic Afterlife of the Controlled Substances Act

Lauren M. Ouziel (Temple University - James E. Beasley School of Law) has posted The Bureaucratic Afterlife of the Controlled Substances Act (Ohio State Journal of Criminal Law, Vol. 18, No. 1, 2020) on SSRN. Here is the abstract:
 
Fifty years after its enactment, it is clear that in key respects, the original aims of the Controlled Substances Act, and the larger statutory scheme of which it was a part, have not been realized. Intended to reduce demand through investments in treatment and prevention programs, demandreduction expenditures instead trailed supply-reduction expenditures for decades. Designed to steer federal criminal enforcement towards highlevel traffickers and kingpins, today’s federal prisons are filled with nonviolent, relatively lower-level offenders. What explains this divergence? This essay locates a contributing source in the organizational dynamics of federal agency advancement. Twelve different executive branch agencies are tasked with responsibility for reducing drug supply or demand (or both), and they operate under diverse constraints, incentives and pressures. Collectively, these dynamics have generated a political economy of federal drug control that values outputs over outcomes and rewards autonomous agency decision-making over collective action. In turn, that economy pushes federal drug control towards criminal enforcement and away from other potentially more effective methods. The essay concludes with suggestions for reform. More broadly, it offers an account of the interaction between federal drug legislation and the institutional actors who bring it to life—illuminating the many ways in which bureaucratic dynamics have, both intentionally and inadvertently, “made” federal drug control policy on the ground.

February 23, 2021 | Permalink | Comments (0)

Yesterday's criminal law/procedure cert grant

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

  • Wooden v. United States: whether offenses that were committed as part of a single criminal spree, but sequentially in time, were “committed on occasions different from one another” for purposes of a sentencing enhancement under the Armed Career Criminal Act.

February 23, 2021 | Permalink | Comments (0)

Monday, February 22, 2021

Regan on Police Militarization

Milton C. Regan, Jr. (Georgetown University Law Center) has posted Citizens, Suspects, and Enemies: Examining Police Militarization (Texas National Security Review, Winter 2020/2021) on SSRN. Here is the abstract:
 
Concern about the increasing militarization of police has grown in recent years. Much of this concern focuses on the material aspects of militarization: the greater use of military equipment and tactics by police officers. While this development deserves attention, a subtler form of militarization operates on the cultural level. Here, police adopt an adversarial stance toward minority communities, whose members are regarded as presumptive objects of suspicion. The combination of material and cultural militarization in turn has a potential symbolic dimension. It can communicate that members of minority communities are threats to society, just as military enemies are threats to the United States. This conception of racial and ethnic minorities treats them as outside the social contract rather than as fellow citizens. It also conceives of the role of police and the military as comparable, thus blurring in a disturbing way the distinction between law enforcement and national security operations.

February 22, 2021 | Permalink | Comments (0)

McJunkin on Crimes of Homelessness

Ben A. McJunkin (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted Homelessness, Indignity, and the Promise of Mandatory Citations for Urban Camping (52 Arizona State Law Journal 955 (2020)) on SSRN. Here is the abstract:
 
Custodial arrests for the crimes intrinsically connected to homelessness, such as urban camping, inflict needless indignity on Arizona’s homeless residents. Arizona has an estimated 10,000 individuals currently experiencing homelessness, nearly half of whom are unsheltered—living on the streets, in desert washes, in vehicles, or other places not meant for human habitation. Yet the state has responded to its homelessness crisis as most states do: criminalizing simple behaviors that define the homeless experience, such a loitering in parks, resting at bus stops, obstructing sidewalks, or sleeping just about anywhere. Legal academics have long understood that treating homelessness as a crime traps individuals in cycles of poverty, pushes them toward further criminality, and is ultimately more expensive and less effective than non-carceral alternatives, such as housing-first solutions. To date, however, academic solutions have challenged criminalization itself, typically centered either on aspirational calls for code reform or on constitutional litigation strategies. These solutions have overlooked the ways in which the process of arrest itself exacerbates homelessness and imposes increased risks on those who experience it. This article, therefore, proposes a simple reform: Arizona police departments should adopt mandatory citation policies for urban camping, and similar offenses attendant to homelessness. This small, attainable reform would immediately protect the dignity of countless homeless Arizonans.

February 22, 2021 | Permalink | Comments (0)

Chen on Universities and Sexual Misconduct

Jianlin Chen (University of Melbourne - Melbourne Law School) has posted The Hidden Sexual Offence: The (Mis)Information of Fraudulent Sex Criminalisation in Australian Universities (42(4) Sydney Law Review 425-467 (2020)) on SSRN. Here is the abstract:
 
In response to sexual assault on campus, most Australian universities have websites that educate the university community on sexual consent and policies that deal with sexual misconduct. This article systematically examines the websites and policies of 42 Australian universities to catalogue the prevalence and manifestation of legal errors regarding fraudulent sex criminalisation. In finding that problematic legal errors are the norm, the article discusses possible reforms to university governance . The findings are also situated within feminist legal literature on the persistence of rape myths. Regrettably, the findings are yet another example of how societal attitude towards sexual assault remains frustratingly disconnected with progressive legislative changes.

February 22, 2021 | Permalink | Comments (0)

Sunday, February 21, 2021

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Michigan, Ann Arbor and University of Chicago - Harris School of Public Policy

Date Posted: 01 Feb 2021 

690
2.
Angelo State University

Date Posted: 27 Jan 2021 

344
3.
University of Oklahoma - College of Law and Loyola University Chicago School of Law

Date Posted: 19 Jan 2021 

181
4.
Mental Disability Law & Policy Associates and New York Law School

Date Posted: 23 Dec 2020 

129
5.
Washington and Lee University

Date Posted: 23 Jan 2021 

118
6.
Georgetown University Law Center

Date Posted: 28 Dec 2020 

92
7.
University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct

Date Posted: 01 Feb 2021 [8th last week]

85
8.
Wake Forest University - School of Law and Wake Forest University, School of Law, Students

Date Posted: 11 Jan 2021 [7th last week]

80
9.
Haifa University - Faculty of Law and University of California, Irvine School of Law

Date Posted: 15 Dec 2020 

72
10.
University of Pennsylvania Law School and United States District Court for the Eastern District of Pennsylvania

Date Posted: 30 Jan 2021 

February 21, 2021 | Permalink | Comments (0)

Saturday, February 20, 2021

Next week's criminal law/procedure argument

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

Wednesday

  • Lange v. California: Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.

February 20, 2021 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrnare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Fourth Amendment Limits of Internet Content Preservation

University of California, Berkeley School of Law
826
2.

The Stress of Injustice: Public Defenders and the Frontline of American Inequality

Rutgers, The State University of New Jersey - School of Criminal Justice, Rutgers, The State University of New Jersey - School of Criminal Justice and Drexel University - Department of Criminology and Justice Studies
406
3.

Policing and 'Bluelining'

University of Colorado Law School
326
4.

Separating Crime from Punishment: What India’s Prisons Might Tell Us about Its Criminal Process

Delhi High Court
216
5.

Risk Assessment Tools in Criminal Justice: Is There a Need for Such Tools in Europe and Would Their Use Comply with European Data Protection Law?

affiliation not provided to SSRN
184
6.

Can Prosecutors Help To End Mass Incarceration?

New York University School of Law
175
7.

Misuse of the 498-A IPC on the Persons Suffering From Disabilities- (An Overview on the Provisions of 498-A I.P.C, & Disability Act in India)

Alumini of LC-1, Faculty Of Law, University Of Delhi
133
8.

Bargained Justice: The Rise of False Testimony for False Pleas

Southern Illinois University School of Law, Florida Institute of Technology and Belmont University School of Law
125
9.

EU-US Negotiations on Law Enforcement Access to Data: Divergences, Challenges and EU Law Procedures and Options

Institut Universitaire de France and Sciences Po Grenoble - Université Grenoble Alpes
117
10.

Social Norms in Fourth Amendment Law

University of Utah - S.J. Quinney College of Law and Northeastern University
116

February 20, 2021 | Permalink | Comments (0)

Friday, February 19, 2021

Carroll on The Due Process of Bail

Jenny E. Carroll (University of Alabama - School of Law) has posted The Due Process of Bail (Wake Forest Law Review, Vol. 55, No. 4, 2020) on SSRN. Here is the abstract:
 
The Due Process Clause is a central tenet of criminal law’s constitutional canon. Yet defining precisely what process is due a defendant is a deceptively complex proposition. Nowhere is this more true than in the context of pretrial detention, where the Court has relied on due process safeguards to preserve the constitutionality of bail provisions. This Essay considers the lay of the bail due process landscape through the lens of the district court’s opinion in O’Donnell v. Harris County and the often convoluted historical description of pretrial due process. Even as the O’Donnell court failed to characterize pretrial process as a substantive due process right – as countless courts before it had -- the case offers a compelling possibility that such a characterization is in fact appropriate in defining due process in a pretrial setting. And so, this Essay concludes by reimagining pretrial due process as procedural and substantive in nature.

February 19, 2021 | Permalink | Comments (0)

Washington on Compelled Decryption and Self-Incrimination

Michael Washington (The Cordell Institute for Policy in Medicine & Law at Washington University in St. Louis) has posted Compelled Decryption and the Right Against Self-Incrimination: Obsta Principiis ((2020) (JSD dissertation, Washington University in St. Louis School of Law)) on SSRN. Here is the abstract:
 
Amidst the debate over compelled decryption, most courts and commentators have failed to recognize that the Act of Production Doctrine has swallowed the right against self-incrimination. The right against self-incrimination was created for the express purpose of preventing the government from compelling self-incrimination, particularly in the form of oral or written testimony, or by the production of incriminating books and papers. The English and early-American cases make this point in no uncertain terms. “[T]he reason why in such cases a man needs not to answer, is, because that no man ought to accuse himself” and “the defendant is never forced to produce any evidence, though he should hold it in his hands in court.” Yet, in the compelled decryption cases, the right against self-incrimination sounds quite different. In addressing the question of whether a person can be compelled to “produce” a password under the Act of Production Doctrine, one court expressed its understanding that “[t]here is some support for the idea that the written disclosure of the password would amount to direct testimony.” Another court held that the compelled verbal disclosure of a password did not offend the Fifth Amendment because “the communication was sought only for its content and the content has no other value or significance.”

The stakes in the compelled decryption cases are immense.

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February 19, 2021 | Permalink | Comments (0)

McWilliams et al. on Interviewing Maltreated Children

Kelly McWilliamsShanna WilliamsStacia StolzenbergAngela D. Evans and Thomas D. Lyon (City University of New York - John Jay College of Criminal Justice, University of Southern California Gould School of Law, Arizona State University (ASU) - School of Criminology & Criminal Justice, Institute of Child Study (Brock University) and University of Southern California Gould School of Law) have posted Don't Know Responding in Young Maltreated Children: The Effects of Wh- Questions Type and Enhanced Interview Instructions (Forthcoming, Law & Human Behavior) on SSRN. Here is the abstract:
 
Two studies examined 4-7-year-old maltreated children’s “I don’t know” (IDK) responses to wh- questions after receiving various interview instructions. We predicted (H1) children would be less inclined to give IDK responses and more inclined to guess to color/number questions compared to other wh- questions, (H2) IDK instructions would increase children’s IDK responding compared to no instructions, with an increase in accuracy, but (H3) instructions would be less effective in reducing guessing for color/number questions than other wh- questions. In Study 1 we predicted that (H4) verbalizing a commitment to answer IDK would be particularly effective. In Study 2 we predicted that (H5) IDK instructions would reduce children’s accurate corrective responses, but that (H6) the negative effect of IDK instructions on corrective responses would be alleviated by a “correct the interviewer” instruction. Method. Across two studies, 301 4-7-year-old ( M = 5.60, SD = 1.09) maltreated children viewed videos and answered wh- questions about true and false details. Both studies included a within-subjects manipulation of wh- types (color/number & wh- detail) and a between-subjects manipulation of instructions (Study 1: IDK practice, IDK practice/verbalize, Control ; Study 2: IDK, Correct Me, IDK+Correct Me, Control ). Results. In both studies (1) color/number questions elicited more guessing than wh- detail questions, (2) IDK instructions decreased inaccurate responses, but they also decreased accurate responses, including accurate corrective responses, and (3) IDK instructions had a larger effect on wh- detail questions, reducing accurate corrective responses. In Study 1, verbalization failed to enhance the effect of instructions. In Study 2, the negative effect of IDK instructions on accurate corrective responses was not alleviated by instructions to correct the interviewer. Among young maltreated children, color/number questions elicit higher rates of guessing than other wh- questions. IDK instructions reduced inaccurate responses, but also reduced accurate responses.

February 19, 2021 | Permalink | Comments (0)

Morse on Legal Insanity in the United States

Stephen Morse (University of Pennsylvania Law School) has posted Before and After Hinckley: Legal Insanity in the United States (In The Insanity Defence: International and Comparative Perspectives (Ronnie Mackay & Warren Brookbanks eds., Oxford, forthcoming 2022)) on SSRN. Here is the abstract:
 
This chapter first considers the direction of the affirmative defense of legal insanity in the United States before John Hinckley was acquitted by reason of insanity in 1982 for attempting to assassinate President Reagan and others and the immediate aftermath of that acquittal. Since the middle of the 20th Century, the tale is one of the rise and fall of the American Law Institute’s Model Penal Code test for legal insanity. Then it turns to the constitutional decisions of the United States Supreme Court concerning the status of legal insanity. Finally, it addresses the substantive and procedural changes that have occurred in the insanity defense since the wave of legal changes following the Hinckley decision.

February 19, 2021 | Permalink | Comments (0)

Perlin et al. on Therapeutic Jurisprudence, Mental Disability, and Sexual Autonomy and Offending

Michael L. PerlinHeather Cucolo and Alison Lynch (New York Law School, New York Law School and Mental Disability Law & Policy Associates) have posted A TJ Approach to Mental Disability Rights Research: On Sexual Autonomy and Sexual Offending (THE METHODOLOGY AND PRACTICE OF THERAPEUTIC JURISPRUDENCE (Nigel Stobbs, Lorana Bartels & Michel Vols, eds. 2019) (Carolina Academic Press)) on SSRN. Here is the abstract:
 
We believe it is impossible to understand the development and the power of therapeutic jurisprudence (TJ) without acknowledging that its roots in mental disability law have continued to expand and flourish over the decades, and that there is no other substantive area of the law in which every aspect – substantive and procedural, civil and criminal, statutory and constitutional. domestic and international – has been weighed and evaluated using a TJ lens. In this chapter, we consider how those roots have shaped the last three decades of research and the implications of what has developed. We look carefully at two sub-sets of mental disability law developments: the law of sexual autonomy and the law of sexually violent predators.

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February 19, 2021 | Permalink | Comments (0)