Sex Crimes

Changes at Sex Crimes Blog

I'm excited to announce that there will be a new face joining Sex Crimes. Truthfully, though, he is not a new face at all. He has been my research assistant for two years and has been an indispensable part of the blog. He graduated in January and is in private practice handling sex offender and other criminal law cases with a small firm. He is Miguel Larios and I am sure you all will enjoy his contributions.

Go Hawkeyes!

http://espn.go.com/ncf/recap?gameId=300050059

Blogging to Resume Soon

I apologize for the break in blogging. The end of a semester drastically increases my time in the office working with students. And, more significantly, I have been working on an amicus brief in Carr v. United States that will be out the door soon. Once that is done, blogging will resume on a normal schedule.

The New Typepad

Since I started this blog nearly three years ago, Typepad has undergone two major revisions of its interface for bloggers. With each one, I have noticed no increase in functionality applicable to my blogging. However, new bugs have been introducted and never fixed. Last time around, I emailed Typepad about a bug related to indenting and junior authors. It was never fixed. In the new version of the interface, the bug is actually worse and makes the editing of junior author posts (like posts by my students) into a total nightmare. The new interface is also less responsive. And just minutes ago, I posted one of the student posts and it has yet to appear on the blog (although it is listed as "published" in my interface, albeit with none of the edits I made to the post). If anyone has any information about working around the bugs of the new system, let me know. I'm also, yet again, considering switching blogging platforms.

Blog Update

The Sex Crimes Blog was recently featured in a couple of places.  First, the blog appeared in a list of the Top 50 Criminal Justice Blogs. Second, John Schwartz, of the New York Times, included Sex Crimes on his short list of recommended legal blogs. Meanwhile, the ABA is compiling its list of Best Legal Blogs. Like Crime & Consequences, we don't encourage a campaign for Sex Crimes (which the ABA does not want), but I certainly wouldn't object if you sent a message on our behalf.

To all our visitors, thanks for reading.

Welcome (Back)!

To all the JMLS students who began classes today, welcome or welcome back (as the case may be). If you happen to be in my Criminal Law class this semester, feel free to read along. Reading about the cases and issues here will certainly help you in your Criminal Law studies. If you are in my Sex Crimes class, then you should definitely read along as you will be posting here at some point during the semester.

Legal Educator Blog Census

My colleague, Colin Miller, at EvidenceProf, undertook the enormous task of compiling a list of all blogs authored by legal educators. His census is divided into two parts that you can find here and here.

The Emerging Criminal War on Sex Offenders

I have just uploaded a draft of my new article, The Emerging Criminal War on Sex Offenders, to SSRN. You can find the article here. This is the abstract:

This article addresses four central questions. First, what is the difference between normal law enforcement policy and a “war” on crime? Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex criminals? Third, if such a criminal war is emerging, what will be the likely effects of such a transition? Fourth, if such a criminal war is emerging with substantial negative consequences, how can it be stopped?
By reviewing America’s history of criminal wars, primarily the War on Drugs, the article identifies three essential characteristics of a criminal war: marshalling of resources, myth creation, and exception making. It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes. This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

Now that I have the article draft completed (along with another article about judicial activism), blogging will finally resume on a regular schedule.

Judicial Activism by Judges on the Courts of Appeals

Although this has nothing to do with sex crimes, I have posted another article of mine Defining and Measuring Judicial Activism: An Empirical Study of Judges on the United States Courts of Appeals on SSRN. This is the abstract:

Existing empirical scholarship about judicial activism has almost exclusively focused on 1) the United States Supreme Court; and 2) actions by the judiciary which invalidate legislative, executive, and state actions. This article contends that such limitations give an extremely narrow, and potentially flawed, vision of activism and judicial decisionmaking. The Supreme Court is a less than ideal institution to study because the ever-shrinking docket of the Court creates small population sizes, the writ of certiorari process creates significant selection effects, the lack of restraints on Justices makes it difficult to identify a “correct” baseline to measure against, and the areas of law reviewed by the Court are quite limited. Studying the United States Courts of Appeals gives a fuller picture of activism, restraint, and decisionmaking among federal court judges. For the federal appellate courts, focusing on inter-branch and inter-governmental actions offers little insight because cases involving such issues constitute a very small percentage of the overall docket. Instead, this article considers the activity that is the primary duty of such courts: reviewing the judgments of federal district courts. 

Activism, at its core, is about judges elevating their judgment above other constitutionally significant actors when a formal model of the law would predict otherwise. By analyzing how individual judges respect both deferential and non-deferential standards of review of district court judgments, this study captures a judge’s privileging of his or her judgment above others. Using a newly created dataset which includes 2008 cases which applied a standard of review from the eleven numbered circuits and the D.C. Circuit, the study is able to assess the activism of individual federal appellate judges. The article finds that there is no statistically significant correlation between activism of judges and the political party of the appointing President, the particular President who appointed the judge, and whether the majority of the Senate and the President were of the same party at the time of appointment. However, the study does find that individual Courts of Appeals vary substantially in their levels of judicial activism.

This draft analyzes data from nine Circuits including 6,626 cases and 19,869 judicial votes.

More related to sex crimes, in the next couple of weeks, I will be posting a draft of my new article, The Undeclared Criminal War on Sex Offenders.

Sotomayor's Criminal Law Record

As I mentioned in my previous post, I have quite a bit of data about Sotomayor's performance in 2008 as related to other appellate judges. I decided to break down some of her numbers as compared to her peers in criminal cases. Sotomayor, like many appellate judges, was a former prosecutor. As a result, one might expect her to not be particularly friendly to criminal defendants. However, the conventional wisdom is that appellate judges appointed by Democratic presidents are softer on crime. So, how did Sotomayor stack up? As to her overall record in finding for the criminal defendant, here is how she performed based upon my 2008 dataset:

Average judge 7.16% of criminal appeals were decided in favor of the defendant 

Average judge appointed by a GOP President 7.23%

Average judge appointed by a Dem President 7.11%

Average judge with prosecutor experience Exp 6.17%

Sotomayor 7.27% (55 cases)

Interestingly, GOP and Democratic appointees are very similar in finding for criminal defendants. This might be due to Clinton appointees not being terribly concerned about criminal defendants relative to other Democratic president appointees. Sotomayor is in line with the overall average. Notably, she is a bit tougher on the government than other appellate judges with some prosecutor experience.

The breakdowns don't change by much if we limit the data to instances where the criminal defendant was appealing (since a government appeal is something of an odd duck):

Average judge 6.28% of criminal appeals were decided in favor of the defendant 

Average judge appointed by a GOP President 6.16%

Average judge appointed by a Dem President 6.53%

Average judge with prosecutor experience Exp 5.44%

Sotomayor 7.41%  (54 cases)

In such cases, Sotomayor looks a tad more defendant friendly relative to her peers. However, given the small sample sizes, the difference is not significant.

In applying my activism score to just criminal cases, described here, to Sotomayor, this is how she stacked up (lower score is more activist):

Average judge in criminal cases 22.65

Sotomayor 19.05

Given that Sotomayor was less activist overall, the fact that she is more activist in criminal cases could be noteworthy. This may be due to the fact that she is bolder in criminal cases because of her experience. In contrast, she might be more apt to defer to district court judgment in non-criminal cases because she has less expertise. I will be looking at that relationship as my project moves forward.

I should add the usual cautionary notes. We are dealing with small sample sizes for criminal cases in which Sotomayor was participating. My dataset also specifically excludes habeas cases because of the special standard of review issues in such cases. And, all data here is preliminary. Nonetheless, I think it is interesting to see that Sotomayor is pretty much average in regard to criminal law cases.