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Rights for crime victims have been decried as myths; entitlements that have little enforceability. At the same time, they have been criticised as undermining the legal rights of the accused person....

Recently, major cities across the country have suffered dramatic spikes in homicides. These sudden spikes are remarkably large and widespread. At this rate, 2020 will easily be the deadliest year in America for gun-related homicides since at least 1999, while most other major crime categories are trending stable or slightly downward. This article attempts to explain why so many cities have seen extraordinary increases in murder during the summer of 2020. A close analysis of the emerging crime patterns suggests that American cities may be witnessing significant declines in some forms of policing, which in turn are producing the homicide spikes. Crime rates are increasing only for a few specific categories—namely homicides and shootings. These crime categories are particularly responsive to reductions in proactive policing. The data also pinpoint the timing of the spikes to late May 2020, which corresponds with the death of George Floyd while in police custody in Minneapolis and subsequent antipolice protests—protests that likely led to declines in law enforcement. The thesis of this article is that the recent spikes in homicides have been caused by a “Minneapolis Effect,” similar to the earlier “Ferguson Effect.” Specifically, law enforcement agencies have been forced to divert resources from normal policing to patrolling demonstrations. And even as the antipolice protests have abated, police officers have scaled back on proactive or officer-initiated law enforcement, such as street stops and other forms of policing designed to prevent firearm crimes. If this thesis is correct, it is reasonable to estimate that, as a result of de-policing during June and July 2020, approximately 710 additional victims were murdered and more than 2,800 victims were shot. Of course, this estimate relies on various assumptions, and further research on the issues surrounding the homicide spikes should be an urgent priority. If this article’s thesis about a Minneapolis Effect is correct, an important implication is that policy makers in major cities should proceed cautiously before taking steps to “defund” the police in ways that might reduce the proactive policing that is important in preventing gun violence.

In this amicus brief to the U.S. Supreme Court in U.S. v. Michael Andrew Gary, former federal district court judges Paul Cassell and Nancy Gertner argue that criminal defendants should not be penalized with plain-error review when they fail to raise in the district court objections that circuit courts have uniformly foreclosed. When an intervening change in law renders those once-futile claims viable, appellate courts should treat them as preserved and subject to the corresponding standard of appellate review, not the four-factor test elaborated in United States v. Olano, 507 U.S. 725 (1993). No doubt, claim preservation is important. When defendants raise their objections first in the district court, district judges—who are closest to the case—can avoid or fix errors, thereby sparing (or at least facilitating) appellate review and potentially averting remand or retrial. The contemporaneous-objection requirement and its appellate counterpart, the plain-error rule, also deter sandbagging by defense counsel. But the interests in judicial economy and fairness those rules ordinarily advance are not served when the would-be objection is entirely foreclosed by a circuit consensus this Court later sweeps away. In such a scenario, there is nothing to fix and no tactical advantage to be gained from failing to object. Rigid insistence on claim preservation in those circumstances instead actively undermines efficient judicial administration, as it forces defendants to object at every turn, clogging up cases with kitchen-sink briefs and wasting the resources of already overburdened counsel and courts. It also unfairly rewards defendants whose counsel was either preternaturally prescient or ignorant, undiscerning, or even downright obstructionist, while punishing those whose counsel appropriately focused on arguments that were more likely to succeed.

This petition for a writ of certiorari to the U.S. Supreme Court asks the Court to review the issue of whether the Crime Victims’ Rights Act (CVRA) required federal prosecutors confer with victims of Jeffrey Epstein before concluding non-prosecution agreements (NPA) with him. The petition arises from a NPA federal prosecutors in Florida reached with Epstein—blocking not only his prosecution for federal sex crimes but also that of his co-conspirators. The prosecutors never conferred with the victims about the non-prosecution agreement. After years of litigation about the validity of the secret NPA, the case reached the Eleventh Circuit. The Circuit ruled in an en banc decision, 7-4, that the CVRA does not give victims the ability to enforce their rights in court until the Justice Department formally files federal charges. This certiorari petition argues that the important legal issue of whether the nation’s preeminent crime victims’ rights statute permits the government to secretly conclude pre-indictment NPAs with targets of federal investigations warrants immediate review. Because such arrangements are, by definition, secret, other circuits may never be able to speak to the legality of such resolutions. Leaving the issue to percolate means that the Justice Department will be free to dispense with victims’ rights and orchestrate clandestine deals without affording victims any rights under the CVRA. The Supreme Court may well face a now-or-never opportunity to review the important question of whether the CVRA permits such secrecy. In addition, the illegitimacy of the Justice Department’s practice of covertly and deceptively arranging non-prosecution deals is far too serious for the Supreme Court to wait to see what other circuits might say. The Eleventh Circuit’s decision guts victims’ rights under the CVRA. Such a dubious interpretation runs counter to the statute’s plain language, which Congress designed to create a comprehensive bill of rights for crime victims—with enforceable rights.

This amicus brief was filed in the U.S. District Court for the District of Columbia in support of Dr. Carter Page’s motion to be recognized as a “victim” under the Crime Victims’ Rights Act (CVRA) in U.S. v. Clinesmith. The brief discusses the important issue who qualifies as a “victim” for purposes of obtaining CVRA protections and concludes that Dr. Page is a “victim” in the case. In the underlying criminal case, Page argues that he is a “victim” of Clinesmith’s false statement, made in connection with FISA warrant renewal application by the Government to surveil Dr. Page’s communications. The amicus brief provides background on the CVRA’s expansive protections, which cover any individual who is “directly and proximately harmed” as the result of a crime. In this case, because Clinesmith’s false statement subverted the FISA process by providing false information to the FISA Court, the false statement alone created sufficient harm to trigger CVRA “victim” status. The amicus organizations on this brief are the National Crime Victim Law Institute, The National Organization for Victim Assistance, The National Center for Victims of Crime, Arizona Voice for Crime Victims, The Network for Victim Recovery of the District Of Columbia, Ohio Crime Victim Justice Center, Rocky Mountain Victim Law Center, South Carolina Victim Assistance Network, And Utah Crime Victims Legal Clinic as Amici Curiae In Support of Motion for Relief Under the Crime Victims’ Rights Act

This amicus brief filed in the U.S. Supreme Court case of United States v. Briggs on behalf of a bipartisan group of thirteen members of Congress discusses the absence of any statute of limitation for rape prosecutions within the military. It argues that the Constitution entrusts Congress with authority over military discipline, including the authority to determine what (if any) statutes of limitations apply to crimes that occur within the military. By classifying rape as an “offense punishable by death” and stipulating that “offenses punishable by death” are not subject to statutes of limitations, Congress entrenched the policy that rape within the military is not subject to any statute of limitations at all. Whether the death penalty can be constitutionally imposed for the rape of an adult—an open question in the specialized military context—is wholly irrelevant to the key question in the case: Whether Congress determined that the death penalty is warranted for rape in the military. Congress’ policy judgment—that rape within the military is so heinous and so damaging to military effectiveness that no temporal restriction should be placed on its prosecution—is entitled to respect. Rape in the military has devastating effects on survivors individually and military readiness generally. And the military’s hierarchical command structure can exacerbate the understandable reluctance of rape survivors to come forward and report the crimes committed against them. In light of those considerations, the provisions in the Uniform Code of Military Justice that address rape in the military have been understood for decades to reflect Congress’ intent that those who commit the crime of rape should not be permitted to escape justice by hiding behind the passage of time.

This amicus brief in support of Kansas’ petition for certiorari in Kansas v. Boettger discusses the important issue of whether the First Amendment require proof of specific intent to criminally punish violent threats. The brief argues that the First Amendment does not contain any such requirement and that creating any such requirement would interfere with effective prosecution of domestic violence. The Kansas Supreme Court’s decision over which review is being sought required the state to prove that an abuser had a specific intent to cause fear. If allowed to stand, the decision will make prosecuting and preventing domestic violence even more challenging, without any corresponding benefit. In domestic violence cases, there is rarely direct evidence of specific intent, and domestic-violence victims often struggle to confront their abusers in court. Indeed, the impact of abusers’ psychological, emotional, and physical abuse is often so severe that victims frequently struggle even to seek help. The Kansas Supreme Court’s decision to impose a specific intent requirement in a case involving violent threats is inconsistent with decisions from other courts, the law in over a dozen states, the Model Penal Code, and the history and tradition of the First Amendment. This amicus brief concludes that the Supreme Court should grant certiorari to review the decision below and reverse it.

Recently bail reform issues have been in the news across the country, as concerns about fair treatment of defendants and possible public safety risks from expanding pretrial release have collided. These issues involve important empirical questions, including whether releasing more defendants before trial leads to additional crimes. An opportunity to investigate this public safety issue has developed in Chicago, our nation’s third largest city. There, the Office of the Chief Judge of the Cook County Courts adopted new bail reform measures in September 2017 and reviewed them empirically in May 2019. Cook County’s Bail Reform Study concluded that the new procedures had released many more defendants before trial without any concomitant increase in crime. This article disputes the Study’s conclusions. This article explains that, contrary to the Study’s assertions, the new changes to pretrial release procedures appear to have led to a substantial increase in crimes committed by pretrial releasees in Cook County. Properly measured and estimated, after more generous release procedures were put in place, the number of released defendants charged with committing new crimes increased by 45%. And, more concerning, the number of pretrial releasees charged with committing new violent crimes increased by an estimated 33%. In addition, as reported by the Chicago Tribune, the Study’s data appears to undercount the number of releasees charged with new violent crimes; and a substantial number of aggravated domestic violence prosecutions prosecutors dropped after the changes, presumably because batterers were able to more frequently obtain release and intimidate their victims into not pursuing charges. These public safety concerns call into question whether the bail “reform” measures implemented in Cook County were cost-beneficial. And because Cook County’s procedures are state-of-the-art and track those being implemented in many parts of the country, Cook County’s experience suggests that other jurisdictions may similarly be suffering increases in crime due to bail reform.

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country. Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic. Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States. Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.” In the ensuing years, lower courts have struggled to implement this holding. Just recently, Congress stepped in to ensure that victims will receive appropriate restitution. In November 2018, the Senate and House resolved their differences in how to handle the issue, passing the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 (or “AVAA” for short). President Trump signed the legislation into law on December 7, 2018. In this article, we describe the impact of this important new legislation. We set the stage by describing the need for restitution for child pornography victims, using the story of the lead victim in the Act (“Amy”) as an illustration of why restitution is needed. We then turn to the problematic legal regime that was created by the Supreme Court’s Paroline decision, noting some of the confusion in the lower courts following the ruling. Against this backdrop, we then discuss the AVAA, explaining how it will be a useful step forward for victims of these crimes. One even more important possibility is that the Act could set a precedent for expanding restitution for victims in the future.

This amicus brief filed in U.S. Supreme Court case of Kahler v. Kansas discusses how states (such as Kansas) are free under the Constitution to structure so-called “insanity” issues in various ways. In particular, states are free, if they choose, to require criminal defendants to prove that a mental disease or defect rose to the level of preventing the defendant from forming the required mens rea to commit the crime. In making such choices, it is important that states do not overlook the interests of crime victims, who want to see criminals held properly accountable for crimes they have committed.

This amicus brief in Bucklew v. Precythe discusses how undue delay in capital cases can harm crime victims’ families. After reviewing the facts of the cases, the brief draws on the available scholarship to show how extended delays in criminal cases – and particularly death penalty cases – can compound the harms and exacerbate the trauma that victims’ families suffer. The brief concludes that the important interests of victims should be vindicated by affirming the judgment reached below.

A growing body of academic literature discusses the problem of wrongful convictions — i.e., convictions of factually innocent defendants for crimes they did not commit. But how often do such miscarriages of justice actually occur? Justice Scalia cited a figure of 0.027% as a possible error rate. But the conventional view in the literature is that, for violent crimes, the error rate is much higher — at least 1%, and perhaps as high as 4% or even more. This Article disputes that conventional wisdom. Based on a careful review of the available empirical literature, it is possible to assemble the component parts of a wrongful conviction rate calculation by looking at error rates at trial, the ratio of wrongful convictions obtained through trials versus plea bargains, and the percentage of cases resolved through pleas. Combining empirically based estimates for each of these three factors, a reasonable (and possibly overstated) calculation of the wrongful conviction rate appears, tentatively, to be somewhere in the range of 0.016%–0.062% — a range that comfortably embraces Justice Scalia’s oftencriticized figure. If this Article’s tentative error-rate range is correct, it means that previous scholarship has significantly overstated the risk of wrongful conviction. Moreover, it is possible to compare the lifetime risk of being wrongfully convicted to the risk of being a victim of a violent crime. The relative risk ratio appears to be about 30,000 to 1. This decidedly skewed ratio suggests that reform measures for protecting the innocent may need to be cautiously assessed to ensure that they do not interfere with the important goal of prosecuting the guilty.

Homicides increased dramatically in Chicago in 2016. In 2015, 480 Chicago residents were killed. The next year, 754 were killed–274 more homicide victims, tragically producing an extraordinary 58% increase in a single year. This article attempts to unravel what happened. This article provides empirical evidence that the reduction in stop and frisks by the Chicago Police Department beginning around December 2015 was responsible for the homicide spike that started immediately thereafter. The sharp decline in the number of stop and frisks is a strong candidate for the causal factor, particularly since the timing of the homicide spike so perfectly coincides with the spike. Regression analysis of the homicide spike and related shooting crimes identifies the stop and frisk variable as the likely cause. The results are highly statistically significant and robust over a large number of alternative specifications. And a qualitative review for possible “omitted variables” in the regression equations fails to identify any other plausible candidates that fit the data as well as the decline in stop and frisks. Our regression equations permit quantification of the costs of the decline in stop and frisks. Because of fewer stop and frisks in 2016, it appears that (conservatively calculating) approximately 239 additional victims were killed and 1129 additional shootings occurred in that year alone. And these tremendous costs are not evenly distributed, but rather are concentrated among Chicago’s African-American and Hispanic communities. The most likely explanation for the fall in stop and frisks that appears to have triggered the homicide spike is a consent decree entered into by the American Civil Liberties Union (ACLU) with the Chicago Police Department (CPD). Accordingly, modifications to that consent decree may be appropriate. More broadly, these findings shed important light on the on-going national debate about stop and frisk policies. The fact that America’s “Second City” suffered so badly from a decline in stop and frisks suggests that the arguably contrary experience in New York City may be an anomaly. The costs of crime — and particularly gun crimes — are too significant to avoid considering every possible measure for reducing the toll. The evidence gathered here suggests that stop and frisk policies may be truly lifesaving measures that have to be considered as part of any effective law enforcement response to gun violence.

This article focuses on trade-offs that inhere in the criminal justice system, tradeoffs neatly encapsulated in Blackstone’s famous ten-to-one ratio of guilty persons who should be allowed escape justice rather than an innocent suffer. Blackstone’s aphorism reminds us not only of the importance of ensuring that innocent persons are not convicted, but also that unbounded protections might unduly interfere with convicting the guilty. In my contribution to a symposium in honor of Professor Michael Risinger, I respond to thoughtful articles written by both Professors Laudan and Zalman and make two main points. First, in Part I, I turn to Professor Laudan’s policy proposal for reducing the number of wrongful acquittals – e.g., lowering the prosecution’s burden of proof at trial for previously-convicted felons to clear and convincing evidence. This proposal is unconstitutional under existing Supreme Court precedents, which interpret the Constitution to require the prosecutor to prove a defendant’s guilty by proof beyond a reasonable doubt. And in addition, Laudan has failed to demonstrate that his proposal is cost-beneficial because he has not persuasively articulated a way to weigh the costs of wrongful convictions against those of wrongful acquittals. But I offer a “friendly amendment” to Laudan’s idea. It should be possible to capture almost all of the benefits of his proposal by placing violent felons on extended periods of parole or supervised release – a condition of which would be that they not commit new crimes. Then, when a previously-convicted felon is arrested for a new crime, he could be tried for a parole violation rather than given a new trial. Supreme Court precedent allows parole violations to be tried under a lower burden of proof. Reconfigured in this way, there are strong reasons for thinking that the proposal might well be a cost-beneficial way of reducing wrongful acquittals. In Part II, I challenge Professor Zalman’s claim that he is truly writing from an innocentric perspective. Someone proceeding from this vantage should be willing to endorse a criminal justice reform measure if it meets three criteria: first and most important, it reduces wrongful convictions of the innocent; second, it does not reduce (and ideally would increase) the number of guilty persons convicted; and third, it should not significantly impair any other competing values. With these evaluative criteria in mind, Zalman appears to be a mere fair-weather friend of the innocent, as he does not appear to truly privilege innocence over other competing values. In contrast, my reform proposals (which Zalman is reluctant to endorse) reorient the criminal justice system away from adjudicating procedural issues and toward adjudicating substantive issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure – and someone who truly holds an innocentric perspective should endorse reforms that move the criminal justice system in that direction.

In this point/counterpoint exchange, Professors Paul Cassell and Amos Guiora debate the U.S. Supreme Court’s decision in Miranda v. Arizona. Cassell challenges the decision, arguing that it has had harmful effects on American law enforcement efforts. Cassell cites evidence that the decision led to reduction in crime clearance rates and urges that the restrictions in the decision be replaced by a requirement that the police videotape interrogations. Cassell urges prosecutors to consider arguing that modern tools like videotaping creates a legal regime that allows the technical Miranda rules to be regarded as superseded relics of an outmoded and harmful prophylactic regime. Guiora responds that the Miranda decision was required to protect vulnerable suspects during inherently coercive police interrogation. Guiora reviews the language Chief Justice Warren used in the Miranda decision, noting that Warren was concerned to ensure that a suspect’s basic constitutional rights were respected by law enforcement while conducting custodial interrogation. Guiora concludes that the decision remains as important today as it was when handed down in 1966.

Arizona’s pending certiorari petition in Arizona v. Goodman provides the Supreme Court with an opportunity to review the important issue of the circumstances under which the Constitution permits an accused sex offender to be denied bail pending trial. In 2002, Arizona voters amended their state constitution, rendering a defendant categorically ineligible for bail if “the proof is evident or the presumption great” that he committed sexual assault. In a narrowly divided opinion, the Arizona Supreme Court found that this measure unconstitutional. And yet the Court’s opinion makes clear that the Constitution does not prohibit denying bail to defendants who present (1) “a continuing danger to the community” or (2) “a risk of flight.” Nor does the Constitution prohibit categorically denying bail based on the nature of the charged offense. Indeed, thirty-four states categorically deny bail to persons charged with capital offenses, murder, specified sex offenses, or offenses punishable by life imprisonment. Review of the Arizona Supreme Court’s decision is needed to resolve the conflict between it and the Court’s precedent on an important issue of constitutional law that affects the criminal justice system, crime victims, and community safety in States across the Nation. The Court’s review is especially needed because of the serious implications for victims and their communities if the judgment below is permitted to stand. Given sex offenders’ high recidivism rates, and the life-altering harm suffered by their victims, Arizona’s legislature was entirely reasonable when it opted to categorically deny bail to sexual-assault defendants on the ground that sexual assault is an adequate proxy for future dangerousness - and to build in procedural protections that go above and beyond in ensuring due process. The Constitution does not prohibit States like Arizona and others from taking these steps to ensure sex offenders are brought to justice, victims are protected, and communities are safeguarded.

Determining an error rate for wrongful convictions remains among the most pressing problems in the criminal justice literature. In a response to my earlier article, Professor George Thomas has offered an intriguing way to make that determination—through examining innocence cases uncovered through North Carolina’s Innocence Inquiry Commission. This Reply reassesses Thomas’s North Carolina estimate rate, concluding it to be somewhat too high. This Reply then looks at another state—my home state of Utah—to find another possible jurisdictionspecific error rate. Properly calculated, the wrongful conviction rates for North Carolina and Utah support my earlier-offered suggestion of a wrongful conviction rate in this country much lower than the rates commonly suggested in other wrongful conviction literature. This Reply underscores the important point of convergence between Thomas’s estimate and my estimates: both are much lower than the conventional wisdom on the subject suggests.

This is a petition filed in the Utah Supreme Court on behalf of four women (Jane Does 1, 2, 3, and 4) who were sexually assaulted, and yet the public prosecutor with jurisdiction refused to file criminal charges against their attackers. The petition relies on Utah Constitution, article VIII, § 16, which anticipates situations where a crime victim might need her own avenue for initiating criminal prosecution. Accordingly, this constitutional provision provides that “[i]f a public prosecutor fails or refuses to prosecute, the Supreme Court shall have power to appoint a prosecutor pro tempore.” Indeed, to underscore the fact that other ways to initiate a prosecution are available, the provision specifically states that public prosecutors in this state shall have the “primary responsibility” for prosecuting crimes. “Primary” responsibility is, of course, not the same as exclusive responsibility. This petition explains why the Utah Supreme Court to use its power to appoint a prosecutor, both to bring justice for these four particular sexual assault victims and, more broadly, to help protect a class of victims – women and girls who have been sexually assaulted – who are under-protected by current prosecutorial practices in our country. The petition argues that the Court can address systemic under-prosecution of rape cases through its power under the Utah Constitution, not only under the Court-Appointed Prosecutor Provision, art. VIII, § 16, but also to protect rights contained in Utah’s Victims’ Rights Amendment, art. I, § 28, the Utah Uniform Operation of Laws Clause, art. I, § 24, and the Utah Equal Rights Provision, art. IV, § 1. It also has power to act through the federal Equal Protection Clause, U.S. Const., amend. XIV. The petition concludes by asking for the Court to appoint a prosecutor to prosecute the sexual assaults committed against the four Jane Does.

Over the last 40 years, advocates for crime victims have succeeded in enshrining victims’ rights in state constitutions and other enactments. These provisions show that a consensus has developed around the country on certain core victims’ rights. Included in the core are, among other things, the right to notice of court hearings, to attend court hearings, to be heard at appropriate court hearings, to proceedings free from unreasonable delay, to consideration of the victims’ safety during the process, and to restitution. The current challenge for the country is ensuring that these core rights are fully and effectively implemented and that victims have a means for enforcing these rights. Strengthened enforcement language in state constitutions and, ultimately, perhaps placing victims’ rights in the United States Constitution offer the best prospects for fully protecting crime victims’ interests in the criminal justice system.

It is fundamentally important that the criminal justice system accurately separate the guilty from the innocent. But many recent reform measures from the innocent movement rest on shaky ground. Protecting against wrongful convictions can create tradeoffs. If poorly crafted, a reform measure might not only prevent convicting innocent persons but also guilty persons, allowing dangerous criminals to avoid incarceration and continue to victimize innocent persons. From a public policy perspective, these tradeoffs create concern that reform measures may be cures worse than the disease. With this caution in mind, it is possible to craft reforms that help to protect the innocent without allowing the escape of the guilty. A common theme underlying many of these proposals is that they reorient the criminal justice system away from adjudicating procedural issues and toward considering substantive issues – i.e., issues of guilt or innocence. The truly innocent will benefit in a system that values substance over procedure. We ought to give serious consideration to measures that move the criminal justice system in that direction.

The fiftieth anniversary of Miranda v. Arizona offers a chance to assess how the decision has played out in the real world and, in particular, to determine whether it has harmed law enforcement. In this Article, we take advantage of the time since the Miranda decision—now a little more than fifty years—to see whether it has produced the predicted harmful consequences. In particular, we survey the available empirical evidence about Miranda’s effects on law enforcement. We collect confession rate data, both from the time of Miranda and since, to assess whether Miranda caused confession rates to fall. We also review the FBI’s nationwide data on crime clearance rates to shed light on any changes in the ability of police to solve crimes. Specifically, we report the results of regression equations on crime clearance rates from 1950 to 2012, controlling for factors apart from Miranda that might be responsible for changes in clearance rates. Even controlling for these factors, we find statistically significant reductions in crime clearance rates after Miranda for violent and property crimes, as well as for robbery, larceny, and vehicle theft. We also quantify the number of lost clearances that appear to be due to Miranda. We also briefly conclude by encouraging the Supreme Court, as well as commentators and policy makers, to consider alternative ways of regulating police interrogation that do not have such detrimental effects on police efforts to apprehend potentially dangerous criminals.

219 Federal Sentencing Reporter, Vol. 23, No. 3, pp. 219–227, ISSN 1053-9867 electronic ISSN 1533-8363. ©2011 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, http://www.ucpressjournals.com/reprintInfo.asp. DOI: 10.1525/fsr.2011.23.3.219. Sense and Sensibility in Mandatory Minimum Sentencing

Type 2 diabetes is characterised by elevated blood glucose and fatty acid concentrations, and aberrant expression of exocytotic soluble N-ethylmaleimide-sensitive factor attachment protein receptor (SNARE) proteins. Restoration of normoglycaemia is often accomplished through use of the thiazolidinedione drug rosiglitazone (RSG), although little is known of its actions on the pancreas. Here we report that high glucose resulted in 96.6+/-0.2% inhibition of secretagogue-stimulated insulin secretion and 44.9+/-6.2% reduction in beta-cell insulin content. High glucose and lipid resulted in altered target-SNARE expression, syntaxin 1 becoming barely detectable whilst SNAP-25 was greatly up-regulated. RSG intervention further increased the expression of SNAP-25, but did not up-regulate syntaxin 1 expression. In summary, high glucose results in almost total attenuation of stimulated insulin secretion, partial depletion of beta-cell insulin stores and dysregulation of SNARE protein expression. RSG up-regulates SNAP-25 expression, but crucially not syntaxin 1 and hence fails to enhance insulin secretion.

It is conventional wisdom that crime should not pay. Unfortunately, federal law has struggled to implement this wisdom and pass constitutional muster. Current law violates the Constitution by targeting only certain forms of profiting that raise First Amendment concerns, such as writing books or making movies. This Article contends that Congress must avoid the embarrassment of allowing crime to pay by removing the law’s focus on expressive activity. The Article begins by reviewing the current unconstitutional federal law. It proceeds to argue that Congress should require courts to prohibit profiting as a mandatory condition of supervised release and redraft the federal anti-profiting statute to forbid all profiting from federal crimes. Finally, the Article proposes a revised anti-profiting statute.

Calpain-10 (CAPN10) is the first diabetes gene to be identified through a genome scan. Many investigators, but not all, have subsequently found associations between CAPN10 polymorphism and type 2 diabetes (T2D) as well as insulin action, insulin secretion, aspects of adipocyte biology and microvascular function. However, this has not always been with the same single nucleotide polymorphism (SNP) or haplotype or the same phenotype, suggesting that there might be more than one disease-associated CAPN10 variant and that these might vary between ethnic groups and the phenotype under study. Our understanding of calpain-10 physiological action has also been greatly augmented by our knowledge of the calpain family domain structure and function, and the relationship between calpain-10 and other calpains is discussed here. Both genetic and functional data indicates that calpain-10 has an important role in insulin resistance and intermediate phenotypes, including those associated with the adipocyte. In this regard, emerging evidence would suggest that calpain-10 facilitates GLUT4 translocation and acts in reorganization of the cytoskeleton. Calpain-10 is also an important molecule in the β-cell. It is likely to be a determinant of fuel sensing and insulin exocytosis, with actions at the mitochondria and plasma membrane respectively. We postulate that the multiple actions of calpain-10 may relate to its different protein isoforms. In conclusion, the discovery of calpain-10 by a genetic approach has identified it as a molecule of importance to insulin signaling and secretion that may have relevance to the future development of novel therapeutic targets for the treatment of T2D. Copyright © 2005 John Wiley & Sons, Ltd.

Mutations in the EIF2AK3 gene underlie susceptibility to the Wolcott-Rallison syndrome, which is a monogenic disease associated with insulin-deficient neonatal diabetes. Furthermore, suggestive evidence of linkage between type 1 diabetes (T1DM) and the EIF2KA3 chromosomal region has been reported in Scandinavian families. We have investigated the hypothesis that polymorphic variants in and around the EIF2AK3 gene might partially account for susceptibility to T1DM in South Indian subjects. Excess transmission of the common alleles of two polymorphic markers (D2S1786 and 15INDEL, located within the gene) downstream of EIF2AK3, either singly (D2S1786, P = 0.01) and 15INDEL (P = 0.02) or as a combination (P0.001), were found in 234 families with a T1DM proband. There was also a clear paternal effect for the 15INDEL marker (P = 0.005) on disease susceptibility. The presence of the common allele of both markers was found in decreased frequency in the subjects with normal glucose tolerance compared to probands with T1DM (both Por= 0.0001). Major common mutations of the EIF2AK3 gene in T1DM were excluded. In conclusion, this pilot study demonstrates an association between the region around the EIF2AK3 locus and T1DM susceptibility.

Aims The aim of this work was to study the nature of the diabetes affecting six sibs of one generation of a family. Methods Full clinical histories of all six members of the family were ascertained plus an assessment of beta cell reserve and insulin gene sequencing. Only one member of the family had children and these, and his grandchildren, were investigated for diabetes by glucose tolerance testing and for insulin C-peptide and proinsulin release to detect possible abnormalities. Results Except in one instance, the onset of the disease was gradual and treatment was initiated with diet or oral hypoglycaemic agents. The BMI at onset of diabetes was low. Insulin treatment was required between the ages of 69 and 74. Insulin dosage was generally small and tests on some members of the family revealed residual beta cell function. No abnormalities in carbohydrate metabolism were shown in the children of one member of the family or in his grandchildren. The insulin gene investigated in two members of the family was normal. Antibodies to glutamic acid decarboxylase or tyrosine phosphatase were not detected in the propositus and her niece. Conclusions This case report describes familial diabetes progressing to insulin dependency in later life that affected six members of one generation of a family. It is tempting to assume that the diabetes in this family is a consequence of a shared environmental factor. However, it is equally possible that an as yet unidentified gene variant predisposing to diabetes will account for the clinical picture. Copyright © 2001 John Wiley & Sons, Ltd.

BACKGROUND: Several Type 1 diabetes susceptibility loci have been located to chromosome 2q12-21. However, results have not always been consistent and this may reflect study design and the population analysed. We have used a family-based design to look for an association between Type 1 diabetes and markers located to 2q12-21. METHODS: Ninety-one South Indian families consisting of subjects with Type 1 diabetes and their parents were genotyped for eight polymorphic markers localised to 2q12-21, which includes the interleukin-1 gene cluster. Radiation hybrid mapping was used to localise the map position of D2S308 and D2S363 on 2q12-21. The extended transmission disequilibrium test was used for statistical analysis. RESULTS: No associations were found between Type 1 diabetes and markers located in and around the interleukin-1 gene cluster or the interleukin-1 Type 1 receptor. In contrast, a suggestive association was found between Type 1 diabetes and two closely-linked markers telomeric of the interleukin-1 gene cluster (D2S308 and D2S363, separated by 3.3 cR) (p=0.004 and p=0.002, respectively). CONCLUSION: This preliminary study suggests that a locus close to D2S308 and D2S363 is involved in the aetiology of Type 1 diabetes in the South Indian population.

Background A distinct type of pancreatitis associated with diabetes, termedfibrocalculous pancreatic diabetes (FCPD), has been reported in tropicaldeveloping countries including Bangladesh. The molecular basis forautosomal dominant hereditary pancreatitis (HP) has recently beenattributed to mutations in exons 2 and 3 of the trypsinogen gene. We haveinvestigated the hypothesis that mutations in the aforementioned exons ofthis gene might also predispose to FCPD.Methods Seventy Bangladeshi and 50 South Indian unrelated FCPDpatients and seven South Indian families with FCPD probands were studied.Pancreatic calcification was confirmed by abdominal X-ray, ultrasound and/or ERCP. Established mutations of exons 2 and 3 of the trypsinogen gene werestudied in these subjects by PCR-RFLP analysis and DNA sequencing.Results The mutations found in hereditary pancreatitis were not observedin this collection of FCPD subjects, and complete DNA sequencing of exons 2and 3 of the fourth cationic trypsinogen gene also excluded any newmutations.Conclusions These results indicate that chronic pancreatitis of FCPD isunlikely to be caused by common mutations in the trypsinogen gene.Copyright # 2000 John Wiley & Sons, Ltd.Keywords fibrocalculous pancreatic diabetes; tropical calcific pancreatitis;pancreatitis; trypsinogen gene; mutation; diabetes

Proceeding from the perspective of “innocentrism” (that is, the idea that exoneration of the “innocent” ought to be privileged over other values in the criminal justice system), I suggest eight proposals for reform: (1) researching the frequency and causes of wrongful conviction; (2) allowing waiver of rights for greater freedom to raise post-conviction innocence claims (Professor Gross’s proposal in this symposium); (3) improving the implementation of existing rules on disclosing exculpatory evidence; (4) increasing resources for defense counsel and prosecutors to focus on issues relating to actual innocence; (5) abolishing the Fourth Amendment exclusionary rule; (6) replacing the Miranda regime with a system of videotaping custodial interrogation; (7) barring prisoners from filing for habeas relief without a colorable claim of actual innocence; and (8) requiring defense attorneys to directly ask their clients if they are actually innocent. These discriminating proposals offer a far greater prospect of providing help to the innocent without blocking conviction of the guilty. A common theme underlying many of them is that they reorient the focus of the criminal justice system away from procedural issues and toward substantive issues of guilt or innocence. Sadly, Bakken’s proposals seem to offer too much procedure and not enough substance, a recipe for helping the guilty. The truly innocent will benefit in a system that values substance over procedure.

My goal in this article is to provide a clause-by-clause analysis of the current version of the Victims’ Rights Amendment, explaining how it would operate in practice. In doing so, it is possible to draw upon an ever-expanding body of case law from the federal and state courts interpreting state victims’ enactments. The fact that these enactments have been put in place without significant interpretational issues in the criminal justice systems to which they apply suggests that a federal amendment could likewise be smoothly implemented.Part II of this article briefly reviews the path leading up to the current version of the Victims’ Rights Amendment. Part III then reviews the version clause-by-clause, explaining how the provisions would operate in light of interpretations of similar language in the federal and state provisions. Part IV draws some brief conclusions about the project of enacting a federal constitutional amendment protecting crime victims’ rights.

Recently Utah became the only state in the nation to interpret its constitution to require preliminary hearings for certain classes of misdemeanors. In State v. Hernandez, the Utah Supreme Court held that for “Class A” misdemeanors (misdemeanors punishable by up to a year in jail), article I, section 13 of the Utah Constitution required preliminary hearings. Article I, section 13 provides for preliminary hearings for “[o]ffenses heretofore required to be prosecuted by indictment.” The court concluded that the phrase “offenses heretofore required to be prosecuted by indictment” referred not only to felony offenses but under Utah’s modern classification of offenses, to Class A misdemeanors as well.This Article does not debate the historical accuracy of the court’s decision. Rather, it asks whether the decision is sound public policy. This Article concludes that requiring preliminary hearings for Class A misdemeanors is undesirable for two simple reasons. First, the court’s decision will result in hundreds of additional preliminary hearings a year, thus imposing substantial costs on taxpayers and burdens on an already overwhelmed criminal justice system. Second, the decision will create substantial hardships for crime victims, who will now be twice subjected to cross-examination by defense attorneys — once at the preliminary hearing and again later at trial. And these costs will generate no significant benefit in return.

The neurogenic differentiation-1 (NEUROD1), neurogenin-3 (NEUROG3), and hepatic nuclear factor-1α (TCF1) genes are interacting transcription factors implicated in controlling islet cell development and insulin secretion. Polymorphisms of these genes (Ala45Thr [NEUROD1], Ser199Phe [NEUROG3], and Ala98Val [TCF1]) have been postulated to influence the development of type 2 diabetes. We have investigated the role and interaction between these variants using PCR/restriction fragment–length polymorphism assays in 454 subjects recruited as part of a population survey in South India. Additionally, 97 South Indian parent-offspring trios were studied. Polymorphisms of all three genes were associated with either fasting blood glucose (FBG) and/or 2-h blood glucose (BG) in either the total dataset or when restricted to a normoglycemic population. A monotonically increasing effect, dependent on the total number of risk-associated alleles carried, was observed across the whole population (P < 0.0001 for FBG and 2-h BG), raising FBG by a mean of 2.9 mmol/l and 2-h BG by a mean of 4.3 mmol/l. Similarly, an ascending number of the same risk alleles per subject increased the likelihood of type 2 diabetes (P = 0.002). In conclusion, we observed a combined effect of variations in NEUROD1, NEUROG3, and TCF1 in contributing to overall glucose intolerance in a South Indian population.

Summary Biallelic markers, such as single nucleotide polymorphisms (SNPs), provide greater information for localising disease loci when treated as multilocus haplotypes, but often haplotypes are not immediately available from multilocus genotypes in case-control studies. An artificial neural network allows investigation of association between disease phenotype and tightly linked markers without requiring haplotype phase and without modelling any evolutionary history for the disease-related haplotypes. The network assesses whether marker haplotypes differ between cases and controls to the extent that classification of disease status based on multi-marker genotypes is achievable. The network is “trained” to “recognise” affection status based on supplied marker genotypes, and then for each multi-marker genotype it produces outputs which aim to approximate the associated affection status. Next, the genotypes are permuted relative to affection status to produce many random datasets and the process of training and recording of outputs is repeated. The extent to which the ability to predict affection for the real dataset exceeds that for the random datasets measures the statistical significance of the association between multi-marker genotype and affection. This permutation test performs well with simulated case-control datasets, particularly when major gene effects are present. We have explored the effects of systematically varying different network parameters in order to identify their optimal values. We have applied the permutation test to 4 SNPs of the calpain 10 (CAPN10) gene typed in a case-control sample of subjects with type 2 diabetes, impaired glucose tolerance, and controls. We show that the neural network produces more highly significant evidence for association than do single marker tests corrected for the number of markers genotyped. The use of a permutation test could potentially allow conditional analyses which could incorporate known risk factors alongside marker genotypes. Permuting only the marker genotypes relative to affection status and these risk factors would allow the contribution of the markers to disease risk to be independently assessed.

Fibrocalculous pancreatic diabetes (FCPD) is a secondary cause of diabetes due to chronic pancreatitis. Since the N34S variant of the SPINK1 trypsin inhibitor gene has been found to partially account for genetic susceptibility to chronic pancreatitis, we used a family-based and case-control approach in two separate ethnic groups from the Indian subcontinent, to determine whether N34S was associated with susceptibility to FCPD. Clear excess transmission of SPINK1 N34S to the probands with FCPD in 69 Bangladeshi families was observed (P

Haplotype combination 112/121 and its intrinsic variants (UCSNP43, -19, and -63) identified within the calpain 10 gene are associated with increased risk of type 2 diabetes in Mexican-Americans. We evaluated whether this haplotype combination and its constituent haplotypes and variants contribute to increased susceptibility to impaired fasting glucose (IFG)/impaired glucose tolerance (IGT) and type 2 diabetes in a South Indian population. Two study groups were used: 95 families ascertained through a proband with type 2 diabetes and 468 subjects recruited as part of an urban survey (69.1% with normal glucose tolerance, 12.8% with IFG/IGT, and 18.2% with type 2 diabetes). The four-locus haplotype combination 1112/1121 (UCSNP44, -43, -19, and -63) in South Indians conferred both a 10.7-fold increased risk for IFG/IGT (P 0.001) and a 5.78- to 6.52-fold increased risk for type 2 diabetes in the two study groups (families P 0.025, urban survey P 0.015). A combination of the 1112 haplotype with the 1221 haplotype also appeared to increase risk for both IFG/IGT and type 2 diabetes. Contrary to what might be expected, quantitative trait analysis in the families found that transmission of the disease-related 1121 and 1112 haplotypes was associated with a reduced hip size and lower waist-to-hip ratio, respectively. This study supports the paradigm that specific haplotype combinations of calpain 10 variants increase risk of both IFG/IGT and type 2 diabetes. However, the relative infrequency of the “at-risk” combinations in the South Indian population suggests that calpain 10 is not a common determinant of susceptibility to type 2 diabetes. Diabetes 51:1622‐1628, 2002

Variation in CAPN10, the gene encoding the ubiquitously expressed cysteine protease calpain-10, has been associated with type 2 diabetes in Mexican Americans and in two northern-European populations, from Finland and Germany. We have studied CAPN10 in white subjects of British/Irish ancestry, using both family-based and case-control studies. In 743 sib pairs, there was no evidence of linkage at the CAPN10 locus, which thereby excluded it as a diabetes-susceptibility gene, with an overall sib recurrence risk, lambda(S), of 1.25. We examined four single-nucleotide polymorphisms (SNP-44, -43, -19, and -63) previously either associated with type 2 diabetes or implicated in transcriptional regulation of calpain-10 expression. We did not find any association between SNP-43, -19, and -63, either individually or as part of the previously described risk haplotypes. We did, however, observe significantly increased (P=.033) transmission of the less common C allele at SNP-44, to affected offspring in parents-offspring trios (odds ratio 1.6). An independent U.K. case-control study and a small discordant-sib study did not show significant association individually. In a combined analysis of all U.K. studies (P=.015) and in combination with a Mexican American study (P=.004), the C allele at SNP-44 is associated with type 2 diabetes. Sequencing of the coding region of CAPN10 in a group of U.K. subjects revealed four coding polymorphisms-L34V, T504A, R555C, and V666I. The T504A polymorphism was in perfect linkage disequilibrium with the diabetes-associated C allele at SNP-44, suggesting that the synthesis of a mutant protein and/or altered transcriptional regulation could contribute to diabetes risk. In conclusion, we were not able to replicate the association of the specific calpain-10 alleles identified by Horikawa et al. but suggest that other alleles at this locus may increase type 2 diabetes risk in the U.K. population.

Aims/hypothesis. Uncoupling proteins are mitochondrial transmembrane carriers implicated in the regulation of energy balance. Dysfunction of UCP3 (the predominant uncoupling protein in skeletal muscle) might therefore be expected to reduce thermogenic capacity, alter energy homeostasis and influence predisposition to obesity and Type II (non-insulin-dependent) diabetes mellitus. A variant in the putative promoter region of UCP3 (–55 c→t) has recently been identified, and an association with obesity reported in French subjects. Our aim was to study the pathophysiological role of this variant in diabetes-related and obesity-related traits using two distinct ethnic populations. Methods. The –55 c→t variant was genotyped in 85 South Indian and 150 European parent-offspring trios ascertained through Type II diabetic probands and in 455 South Indian subjects initially recruited to an urban survey into the prevalence of diabetes. Results. In South Indian and European parent-offspring trios there was no preferential transmission of either allele at the –55 c→t polymorphism to diabetic offspring (South Indians, p = 0.60; Europeans, p = 0.15). When family members were analysed for intermediate traits, the t-allele was associated with increased waist-to-hip ratio but only in females (South Indian mothers p = 0.036, daughters p = 0.032: European mothers p = 0.037, daughters p = 0.14). These findings were replicated in South Indian females from the population-based survey (p = 0.039). Conclusion/interpretation. The consistent association between the t-allele at this locus and increased waist-to-hip ratio in women from three separate data sets indicates that variation at this polymorphism (or another locus with which it is in linkage disequilibrium) influences fat distribution but that this effect is restricted to females. [Diabetologia (2000) 43: 1558–1564]

Aims/hypothesis. Linkage between markers close to the uncoupling protein 2 and 3 genes (11q13) and resting metabolic rate and a pre-diabetic phenotype have been found. The syntenic region in mouse has been found to be linked to quantitative traits associated with obesity and diabetes. UCP2 and UCP3 could therefore have an important role in body weight regulation and susceptibility to diabetes. We investigated a recently identified variant of the UCP2 gene in exon 8 as a marker for glucose and weight homeostasis. Methods. Length variation of the UCP2 exon 8 variant was studied by the polymerase chain reaction and agarose gel electrophoresis. Sequence variants of the UCP3 gene were sought by semi-automated DNA sequencing. Results. In 453 South Indian subjects, we found an association in women between the UCP2 exon variant and body mass index (p = 0.018). These findings were replicated in a separate group of South Indian subjects (n = 143, p < 0.001) irrespective of sex. Although no association was found between the UCP2 exon 8 variant and overt obesity in British subjects, the UCP2 genotype of obese women (n = 83) correlated with fasting serum leptin concentration (p = 0.006) in the presence of extreme obesity. These observations could not be explained by tight linkage disequilibrium with a coding region variant in the region of the UCP3 gene of biological significance. Lastly, no association was found between UCP2 and Type II (non-insulin-dependent) diabetes using either a family based design (85 families) or case control study (normal glucose tolerance n = 335, impaired glucose tolerance n = 42, Type II diabetes n = 76). Conclusion/interpretation. We have described a UCP2 gene exon 8 variant that may affect susceptibility to weight gain by influencing regulation of leptin. [Diabetologia (1999) 42: 688–693]

Recent claims have been made that police have obtained "false" confessions from innocent persons and that these false confessions have even led to the conviction of innocent persons. This article scrutinizes these claims, examining in detail a number of alleged false confessions collected in a recent paper by Professors Richard Leo and Richard Ofshe. After close examination of trial court records and other similar sources, the article concludes that these allegedly false confessions were in all likelihood actually true confessions given by guilty criminals. The article concludes by exploring the lessons that might be drawn from the high proportion of guilty criminals in the collection of "innocent" false confessors. Academic research on miscarriages of justice should not rely on mass media descriptions of the evidence against criminal defendants. The media too often slants its coverage in the direction of discovering "news" by finding that an innocent person has been wrongfully convicted. Moreover, reliance on second-hand media accounts overgeneralizes the false confession problem, obscuring the fact that the false confession problem is apparently concentrated among a narrow and vulnerable population: the mentally retarded.

The next Amendment to our Constitution will likely be the Victims' Rights Amendment, which provides a bill of rights for victims of crime. As the amendment has moved closer to passage, its critics have raised various objections. This article responds to the critics, concluding that the Victims' Rights Amendment would properly recognize victims' compelling interests in the criminal justice process. Part I of the article reviews normative objections to the Amendment, concluding that the amendment will harm neither the legitimate interests of defendants nor prosecutors. For example, victims can be given the right to make "impact" statements at sentencing without harming the fairness of the process. Part II responds to those who have argued that the amendment is "unnecessary," explaining the undeniable practical problems that victims face in attempting to secure their rights without federal constitutional protection. Part III turns to structural objections to the amendment, explaining why the protection of the rights of victims to participate in the criminal justice process is an appropriate subject for a constitutional amendment.