CrimProf Blog

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

Tuesday, June 19, 2018

Brooks on Hegel on Crime and Punishment

Thom Brooks (Durham University) has posted Hegel on Crime and Punishment (in Brooks and Sebastian Stein (eds), Hegel's Political Philosophy: On the Normative Significance of Method and System. Oxford: Oxford University Press, pp. 202-221) on SSRN. Here is the abstract:
Perhaps the least controversial issue for most commentators on Hegel’s political and legal philosophy concerns his theory of punishment. The orthodox consensus is that Hegel was a retributivist who justified punishing deserving criminals in order to ‘annul’ their crimes. Broadly speaking, the classic ‘positive’ view of retribution is that punishment can only be justified where deserved and to the degree it is deserved. In that light, some commentators have claimed Hegel is ‘one of the most famous and important retributivists’. 

While they are often deeply divided on so many other issues in his philosophy, the orthodox consensus among Hegel scholars is no accident.

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June 19, 2018 | Permalink | Comments (0)

"What Happens When Prosecutors Break the Law?"

A defense attorney involved in several such cases has this piece in The New York Times. In part:

Mr. Kurtzrock’s case may be the most recent example of the system’s egregious failure to hold a rogue prosecutor accountable, but it’s hardly anomalous.

The National Registry of Exonerations, based out of the University of California, Irvine, reports that “official misconduct” — by police, prosecutors or both — was a factor in roughly half of the nearly 2,200 exonerations across the country since 1989.

To date, only one prosecutor in the country (Ken Anderson, who withheld exculpatory evidence from my former Texas client Michael Morton) has ever been jailed for misconduct causing a wrongful conviction. And Mr. Anderson served just eight days in the county jail — starkly different from the 25 years that Mr. Morton languished in state prison.

June 19, 2018 | Permalink | Comments (0)

Xenos on Positive Obligations of the Police

Dimitris Xenos (University of Suffolk) has posted The Protection Against Crime as a Human Right: Positive Obligations of the Police (in Ralf Alleweldt and Guido Fickenscher (eds) The Police and International Human Rights Law (2018), pp 181-215) on SSRN. Here is the abstract:
The police are seen as a professional service provider when their duties and standards of care are enforced by the clients of their service, that is ordinary individuals. Actual or potential victims of crime use constitutional review, which examines positive obligations of the police in relation to specific human rights. Within the scope and limits of constitutional review, police duties are determined before, as well as after, harm has been inflicted on innocent individuals. These duties encompass both systemic and more specific and practical measures of protection of human rights against crime. The individual form of protection is subject to certain conditions of proximity (such as the element of knowledge of the personal need for human rights protection). Additional limits are recognised where there is a conflict of rights, and in relation to the availability of resources. Accordingly, the professional duties and requisite performance standards of the police are determined, reviewed and enforced under a consistent legal framework.

June 19, 2018 | Permalink | Comments (0)

Monday, June 18, 2018

"What We Learned From the Videos of Stephon Clark Being Killed by Police"

From The New York Times:

So what exactly led to the deadly encounter, and what happened after? Our analysis establishes five critical moments and reveals a series of split-second decisions that resulted in the death of Stephon Clark, in his backyard.

The raw footage was released in March, and was widely shared on social media. After publishing an initial report, we decided to take a closer look. The result is the most comprehensive analysis to date — a detailed spatial and moment-by-moment record of the shooting.

June 18, 2018 | Permalink | Comments (0)

Adeyemi on Money Laundering in the UK

Adebola Adeyemi (School of Law, University of Manchester) has posted Slipping Through the Net: The FCA's Approach to Lessening the Incidence of Money Laundering in the UK (Journal of Money Laundering Control (2018) vol 21, issue 2, pg 203 - 214) on SSRN. Here is the abstract:
The financial services sector provides a crucial infrastructure for the promotion of wealth and innovation in the UK. This attractive infrastructure also appeals to criminals looking to launder the gains of their illicit activities. To this end, it is important to strengthen the regulatory approach to ensure the UK financial services continue to attract and appeal to investors looking to do legitimate business. The paper analyses the UK money laundering regime, highlighting specific challenging areas. The paper investigates the role of politically exposed persons and the use of corporate structures in promoting money laundering. In this context, it also becomes crucial to investigate the role of financial institutions and the sufficiency of their governance approach in lessening the incidence of money laundering. The paper recommends steps that can be employed to lessen the incidence of money laundering in the UK.

June 18, 2018 | Permalink | Comments (0)

Dissent from cert denial in capital case in which instructions arguably diminished jurors' sense of responsibility

Justice Sotomayor filed the dissent in Kaczmar v. Florida.

June 18, 2018 | Permalink | Comments (0)

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which links to papers:

  • Timbs v. Indiana: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
  • Garza v. Idaho: Whether the “presumption of prejudice” recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.

June 18, 2018 | Permalink | Comments (0)

Gross on Counsel at Pretrial Release Proceedings

Gross johnJohn Gross (The University of Alabama School of Law) has posted The Right to Counsel but Not the Presence of Counsel: A Survey of State Criminal Procedures for Pre-Trial Release (Florida Law Review, Vol. 69, 2017) on SSRN. Here is the abstract:
There is a widely-held belief that the state provides counsel to indigent criminal defendants at their initial appearance in state court. However, the majority of states do not provide counsel to indigent defendants at their initial appearance when a judicial officer determines conditions of pretrial release. State criminal procedure codes fail to provide the same procedural protections that defendants have in federal court. Indeed, states systems are characterized by predictive determinations regarding guilt, an overemphasis on the potential dangerousness of defendants, a lack of adequate pretrial services, and continued reliance on financial securities.

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June 18, 2018 | Permalink | Comments (0)

Opinion affirming sentence imposed after guidelines amendment

Justice Breyer delivered the opinion of the Court in Chavez-Meza v. United States. Justice Kennedy dissented, joined by Justices Sotomayor and Kagan. Justice Gorsuch did not participate.

June 18, 2018 | Permalink | Comments (0)

Opinion holding that plain error in calculating guidelines range ordinarily calls for vacating sentence

Justice Sotomayor delivered the opinion of the Court in Rosales-Mireles v. United States. Justice Thomas, joined by Justice Alito, dissented.

June 18, 2018 | Permalink | Comments (0)

Opinion holding probable cause not to bar claim that arrest motivated by official policy to retaliate against speech

Justice Kennedy delivered the opinion of the Court in Lozman v. Riviera Beach. Justice Thomas dissented.

June 18, 2018 | Permalink | Comments (0)

Sunday, June 17, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

The Consensus Myth in Criminal Justice Reform

University of Colorado Law School

Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case

International Islamic University, Islamabad

Too High a Price 2: Move on to Where?

University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History

The Expansion of Child Pornography Law

University of North Carolina School of Law

Against Life Without Parole

Georgetown University

Buggery and Parliament, 1533-2017

University of York

If Embryos and Fetuses Have Rights

University of California, Irvine School of Law

The Science and Law Underlying Post-Conviction Challenges to Shaken Baby Syndrome Convictions: A Response to Professor Imwinkelried

University of Wisconsin Law School and Seton Hall University School of Law

American Evil: A Response to Kleinfeld on Punishment

Northwestern University School of Law

June 17, 2018 | Permalink | Comments (0)

Saturday, June 16, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

Opinion on the Constitutionality of Robert Mueller's Appointment

Northwestern University - Pritzker School of Law

The Writ-of-Erasure Fallacy

Stanford Law School

What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants

Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law

Challenging the Punitiveness of 'New-Generation' SORN Laws

Florida State University - College of Law

Relative Plausibility and its Critics

Northwestern University Law School and University of Alabama School of Law

Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts

Stanford Center for Law and History

Privacy and the Criminal Process: Selvi v State of Karnataka

Yale University - Law School

The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky

RTI International, RTI International, RTI International, RTI International, RTI International and RTI International

The Assumptions Underlying England's Adoption of Trial by Jury for Crime

Harvard Law School and University of Michigan Law School

Arrests As Guilt

Seattle University School of Law

June 16, 2018 | Permalink | Comments (0)

Friday, June 15, 2018

Cook on Expert Witnesses in Sex Trafficking Prosecutions

Cook blancheBlanche Cook (Wayne State University Law School) has posted Stop Traffic: Using Expert Witnesses to Disrupt Intersectional Vulnerability in Sex Trafficking Prosecutions (FORTHCOMING — Berkeley Journal of Criminal Law — (2019)) on SSRN. Here is the abstract:
Sex trafficking thrives on intersectional inequality and reinforcing layers of vulnerability. Sex trafficking exists on a continuum of sexualized violence, from microaggressive sexual harassment to macroaggressive gang rapes, all of which create vulnerability in the victim and perfect sovereignty in the perpetrator. Sexualized violence performs power, as it is raced, classed, and gendered. Power not only requires performance, but it necessitates repetitive reenactments of domination in order to normalize its compulsive and pathological nature. Lynchings, police shootings, gang rapes, and sex trafficking are all performances of power on vulnerable bodies through which power perfects itself. The same inequality that creates the necessary preconditions for vulnerability to violence in the first instance, also obfuscates or masks power’s pathology and compulsivity in the investigative and adjudicative processes. By way of illustration, victim blaming renders the pathology of the perpetrator invisible because it removes accountability from the perpetrator and shifts blame onto the victim. Shifting blame onto the victim obfuscates or hides power’s omnipresence, compulsiveness, and pathology. The victim blaming process is pervasive, systemic, and entrenched.

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June 15, 2018 | Permalink | Comments (0)

King et al. on AI Crime

Thomas KingNikita AggarwalMariarosaria Taddeo and Luciano Floridi (University of Oxford - Oxford Internet Institute, University of Oxford - Oxford Internet Institute, University of Oxford - Oxford Internet Institute and University of Oxford - Oxford Internet Institute) have posted Artificial Intelligence Crime: An Interdisciplinary Analysis of Foreseeable Threats and Solutions on SSRN. Here is the abstract:
Artificial Intelligence (AI) research and regulation seek to balance the benefits of innovation against any potential harms and disruption. However, one unintended consequence of the recent surge in AI research is the potential re-orientation of AI technologies to facilitate criminal acts, which we term AI-Crime (AIC). We already know that AIC is theoretically feasible thanks to published experiments in automating fraud targeted at social media users, as well as demonstrations of AI-driven manipulation of simulated markets. However, because AIC is still a relatively young and inherently interdisciplinary area—spanning socio-legal studies to formal science—there is little certainty of what an AIC future might look like. This article offers the first systematic, interdisciplinary literature analysis of the foreseeable threats of AIC, providing law enforcement and policy-makers with a synthesis of the current problems, and a possible solution space.

June 15, 2018 | Permalink | Comments (0)

Grucza et al. on Cannabis Decriminalization

Rick GruczaMelissa KraussAndrew PlunkArpana AgrawalFrank J. Chaloupka and Laura Bierut (Washington University in St. Louis - Department of Psychiatry, Washington University in St. Louis - Department of Psychiatry, Eastern Virginia Medical School - Department of Pediatrics, Washington University in St. Louis - Department of Psychiatry, University of Illinois at Chicago - Department of Economics and Washington University in St. Louis - Department of Psychiatry) have posted Cannabis Decriminalization: A Study of Recent Policy Change in Five States on SSRN. Here is the abstract:
Background: A number of public health professional organizations support the decriminalization of cannabis due to adverse effects of cannabis-related arrests and legal consequences, particularly on youth. We sought to examine the associations between cannabis decriminalization and both arrests and youth cannabis use in five states that passed decriminalization measures between the years 2008 and 2014: Massachusetts (decriminalized in 2008), Connecticut (2011), Rhode Island (2013), Vermont (2013), and Maryland (2014). 

Methods: Data on cannabis possession arrests were obtained from federal crime statistics; data on cannabis use were obtained from state Youth Risk Behavior Survey (YRBS) surveys, years 2007-2015. Using a “difference in difference” regression framework, we contrasted trends in decriminalization states with those from states that did not adopt major policy changes during the observation period.

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June 15, 2018 | Permalink | Comments (0)

Thursday, June 14, 2018

"The 96-Year-Old Brooklyn Judge Standing Up to the Supreme Court"

The story is in The New York Times. In part:

In a spirited decision issued Monday, the judge, Jack B. Weinstein, argued that the justices had gone too far in a pair of recent rulings expanding qualified immunity, a legal doctrine that protects law-enforcement officers from being sued for actions they perform on the job. Judge Weinstein complained that the broadened doctrine now protects “all but the plainly incompetent.”

“The Supreme Court’s recent emphasis on shielding public officials and federal and local law enforcement means many individuals who suffer a constitutional deprivation will have no redress,” he wrote.

June 14, 2018 | Permalink | Comments (0)

"Katherine Mangu-Ward and I Podcasting About Crime-Facilitating Speech"

Eugene Volokh has this post at The Volokh Conspiracy, linking to the podcast.

June 14, 2018 | Permalink | Comments (0)

Kaplan & Puracal on Junk Science

Aliza B. Kaplan and Janis Puracal (Lewis & Clark Law School and Oregon Innocence Project) has posted It's Not a Match: Why the Law Can't Let Go of Junk Science (Albany Law Review, Vol. 81, 2018) on SSRN. Here is the abstract:
In this article, we argue that there is a need to increase validity and reliability of forensic science in the criminal justice system through a collaborative approach. In part II, we explain the legal rules governing the admissibility of scientific evidence in criminal cases and the evolution of that law over time. Parts III and IV describe a 2016 report by the President’s Council of Advisors on Science and Technology (“PCAST”), which analyzed the methodology and validity of many “pattern identification” or “feature-comparison” methods. PCAST asked whether DNA analysis, bite marks, latent fingerprints, firearms identification, and footwear analysis are supported by reproducible research, and is, therefore, reliable evidence. PCAST concluded that many of these forensic methods lack validation studies and need to be addressed. The PCAST Report followed an earlier report by the National Academy of Sciences (“NAS”) in 2009, which enumerated the problems in the forensic science community and the need for significant improvement. In Part V, we address the opposition to the PCAST Report from the National Association of District Attorneys, United States Attorney General, and FBI, along with PCAST’s response to that opposition. Part VI focuses on the promise of the PCAST Report, in particular how implementing its recommendations could help reduce the numbers of wrongful convictions, massive case reviews, and crime lab scandals. We also discuss the broader impact of forensic reform to protect the integrity of our justice system. Unfortunately, as we discuss in Parts VII and VIII, there has been little change in the law to prevent the admissibility of faulty forensics and in fact, courts continue to regularly admit questionable and invalid forensic science into evidence. We explore the reasons for the lack of change, including our reliance on past precedent that makes the legal system a poor venue for forensic reform with a more concerted effort. In Part IX, we note that the likelihood of change coming from the federal government is low as the Obama Administration failed to implement any plan for change after the PCAST Report and the current Administration announced last April that it would not renew the National Commission on Forensic Science. In Parts X and XI, we discuss the need for further collaboration between scientists and lawyers/judges, and we propose a specialized role of forensic resource counsel to help facilitate that collaboration.

June 14, 2018 | Permalink | Comments (0)

Wednesday, June 13, 2018

"Notable new analysis of US incarceration levels and recent (modest) changes"

Doug Berman has this post at Sentencing Law & Policy. From  his excerpt:

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year — more states than had experienced decreases in any recent year. The average decrease was three percent. In 42 states, prison populations were lower than they had been recently.  Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations. If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like to reduce prison populations to half of what they are today for another 50 years, until 2068.


June 13, 2018 | Permalink | Comments (0)