CrimProf Blog

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

Friday, November 17, 2017

Raza on Cyber Crimes

Aqa Raza has posted Laws Relating to Cyber Crimes: Theories and Legal Aspects on SSRN. Here is the abstract:
This paper mainly deals with the laws relating to the cyber crimes in India. The objectives of this research paper are four-fold: firstly, to analyze the concept of jurisdiction and the various theories to determine jurisdiction in cases where such offences are committed relating to cyber crimes; secondly, to analyze the jurisdiction theories applicable under Cybercrime Convention; thirdly, to analyze the jurisdiction theories applicable under the Information Technology Act, 2000; and fourthly, to analyze whether there can be one jurisdiction theory that may globally be applicable to all cyber crimes. For the sake of convenience, this research paper has been divided into various parts. The paper focuses on the various theories of jurisdiction and the jurisdiction principles applicable under the Cybercrime Convention, 2001 on cybercrime. The jurisdiction principle applicable under the Information Technology Act, 2000 have also been discussed in the paper.


November 17, 2017 | Permalink | Comments (0)

Thursday, November 16, 2017

Minson on Maternal Imprisonment

It is my contention that all the harms suffered by a child whose parent is being punished through imprisonment have their origin in prison culture and stigmatisation relating to the parent’s imprisonment, and consequently these harms are different to those suffered due to parent and child separation experienced for any other reason, for example marital breakdown or bereavement. Drawing on Comfort’s work I suggest that the harms raise particular concerns and have ‘corrosive’ damaging impacts on children because their origin is in punishment within the criminal justice system: the criminal justice system is distinct… in that it is charged with exacting control and distributing punishment, and hence a spillover effect is inherently more corrosive to bystanders than that of an institutional process concerned with providing a social good, such as medical treatment or education. 

I offer the suggestion that harms which children of imprisoned mothers experience come from two different social acts and attach to children in two specific ways.

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November 16, 2017 | Permalink | Comments (0)

Wesson on Crime Fiction

Wesson marianneMarianne Mimi Wesson (University of Colorado Law School) has posted The Chow: Depictions of the Criminal Justice System as a Character in Crime Fiction (51 New Eng. L. Rev. 101 (2017)) on SSRN. Here is the abstract:
Having been honored by a request to contribute to a Symposium honoring my talented friend Alafair Burke, I composed this essay describing the various ways the criminal justice system has been depicted in English-language crime fiction. This survey, necessarily highly selective, considers portrayals penned by writers from Dickens to Tana French. Various dimensions of comparison include the authors’ apparent beliefs about the rule of law (from ridiculously idealistic to uncompromisingly cynical), the characters’ professional perspectives (private detective, police officer, prosecutor, defense lawyer, judge, victim, accused), and the protagonists’ status as institutional insiders or outsiders or occupants of the uncomfortable middle. The essay considers as well the protagonists’ insights (often useful, too often nonexistent) regarding issues of gender, race, and economic status — in their own professional lives, and as determinants of how one accused of a crime, or victimized by one, will experience the institutions of criminal justice. The essay concludes with some worried observations about what the election of Donald Trump may portend for crime fiction, in its likely corrosion of the rule of law and thus of the institutions of criminal justice.

November 16, 2017 | Permalink | Comments (0)

Mungan on Wrongful Convictions and Deterrence

Mungan muratMurat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Wrongful Convictions, Deterrence, and Stigma Dilution on SSRN. Here is the abstract:
There is no consensus in the economics of law enforcement literature regarding the likely effects of wrongful convictions on deterrence. While many assert that wrongful convictions and wrongful acquittals are likely to cause similar reductions in deterrence, others, most notably Lando (2006), have claimed that certain types of wrongful convictions are unlikely to affect deterrence. However, the stigmatizing effects of convictions are not taken into account in the formulation of either view. Frequent wrongful convictions naturally make criminal records less meaningful, because they reduce the proportion of truly guilty individuals among the convicted population. This stigma dilution effect, along with similar effects regarding the probability of stigmatization, are formalized via a model wherein criminal records act as noisy signals of offenders' characteristics. The analysis reveals that when criminal records cause stigmatization, wrongful convictions reduce deterrence, even if they are caused by adjudication mistakes which were previously shown to have no effect on deterrence. This suggests that pro-defendant biases in various criminal procedures can potentially be explained through interactions between stigmatization and wrongful convictions.

November 16, 2017 | Permalink | Comments (0)

Wednesday, November 15, 2017

"He thought he had a free court-appointed lawyer. Then he got a bill for $10,000"

From The Texas Tribune, via the NACDL news scan:

In Texas and across the country, defendants are sometimes asked to repay part or all of the costs of their court-appointed lawyer through a practice called recoupment. Texas counties recouped more than $11 million from poor defendants in 2016, 4.5 percent of the total amount spent on indigent defense statewide.

Data maintained by the Texas Indigent Defense Commission shows wild variation in how much money Texas counties recoup from poor defendants. Johnson County, where Unterburger was charged, recouped nearly 15 percent of the money it spent on indigent defense last year. According to the data, Andrews County made back nearly 70 percent of its public defense costs in 2016, while 51 others recouped nothing at all.

November 15, 2017 | Permalink | Comments (0)

"U.S. Commission on Civil Rights issues statement in support of sentencing provisions of Sentencing Reform and Corrections Act of 2017"

Doug Berman at Sentencing Law & Policy links to and excerpts the statement, which supports a bill that "proposes to reduce mandatory minimum sentences for particular nonviolent offenses and to return discretion to judges in more cases."

November 15, 2017 | Permalink | Comments (0)

"More Defenders Get Access to 'Bad Cops' Database"

From WNYC, via NACDL news scan:

State law makes police disciplinary records confidential without a court order. Even though prosecutors have a constitutional obligation to disclose material that could help the defense, there's no real requirement they go looking for such evidence that might kill a case. As a result, many defendants never had a chance to learn about the misconduct history of police officers involved in their case — records that could sway jurors.

So Legal Aid launched the database in 2015, which it formally calls the Cop Accountability Project.

Paralegal Julie Ciccolini has been adding records ever since, including information from lawsuits, news reports, Internal Affairs and Civilian Complaint Review Board filings that are sometimes revealed in court, and even offensive social media posts that might call into question an officer’s truthfulness.

The database also tracks when judges deem an officer’s testimony not credible. The database has information on more than 160 officers with a formal credibility ruling against them, including nearly 80 a judge deemed incredible in the last three years.

November 15, 2017 | Permalink | Comments (0)

Finchett-Maddock on Street Art and Graffiti

Lucy Finchett-Maddock (Sussex School of Legal Studies) has posted In Vacuums of Law We Find: Outsider Poiesis in Street Art and Graffiti (Duncan Chappell and Saskia Hufnagel, Art Crime Handbook (Palgrave MacMillan, Forthcoming)) on SSRN. Here is the abstract:
This piece seeks to demonstrate the striating role of property within street art and graffiti, creating a threshold where criminal and intellectual property meet to both outlaw and protect street art at the same time. Street art reveals a legal vacuum for poiesis, protest and property on the threshold of aesthetic and juridical legitimacy and illegitimacy, illustrating where law means all and nothing at once. Legal sanction is argued as affecting the aesthetics of street art, where criminalisation protects the rights of property owners over the creative rights of artists, reasserting the exclusionary nature of law, intertwined with reasserting the ‘outsider’ nature of their art. This is argued as not coincidental, but that notions of aesthetics are not only prioritised by the art ‘establishment’, but also supported by law, to the detriment of other forms of aesthetics such as street art and graffiti. As such, street art and graffiti reveals the elixir of property in both the art and legal establishments, coming to pass as a result of violent histories of expropriation through art property and real property. Ultimately, street art and graffiti is argued as a protest against the legal-aesthetic hegemony, the analysis of criminal, real and intellectual property meeting points telling us more about the congenital role of art in law and vice versa than solely explaining the legalities of random acts of illicit expression.

November 15, 2017 | Permalink | Comments (0)

Soohoo on Solitary Confinement and Youth Justice

Cynthia Soohoo (City University of New York Law School) has posted Human Rights, Solitary Confinement, and Youth Justice in the United States (Human Rights and Legal Judgments: The American Story, Austin Sarat, ed.; ISBN-13: 978-1107198302) on SSRN. Here is the abstract:
Over the last 15 years, US activists working on a range of domestic issues – from police violence and mass criminalization to reproductive rights to access to water – have incorporated human rights claims into their work. But even as it becomes more commonplace to hear activists make human rights claims, the question remains, what impact do the claims have? When are they successful in contributing to changes in attitudes, laws, and policies?

For the most part, the United States’ human rights obligations cannot be directly enforced in US courts. The lack of a legally enforceable human rights charter or text leaves both the substantive rights and the forums and spaces to implement them up for grabs. Indeed, while Americans have a commitment to human rights, we often lack a common understanding of what is encompassed by the term. But the fluidity of the term also creates opportunities for social justice activists. US activists often seek to expand the public’s understanding of what can be claimed as a right beyond the confines of rights formally recognized under US law. 

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November 15, 2017 | Permalink | Comments (1)

Tuesday, November 14, 2017

"The troubling spread of plea-bargaining from America to the world"

From The Economist, via the NACDL news scan:

In plea-bargaining, as the promise of a lesser penalty in return for a guilty plea is commonly known, prosecutors offer to drop some charges, to replace the original charge with a less serious one or to seek a lower sentence. It has long been central to America’s criminal-justice system. But over the past three decades it has spread across the world. A study of 90 countries by Fair Trials International, a campaigning group, found that in 1990 just 19 used some form of plea-bargaining. Now 66 do.

November 14, 2017 | Permalink | Comments (0)

"Trump Shatters Longstanding Norms by Pressing for Clinton Investigation"

From The New York Times:

Mr. Sessions has made no decision, and in soliciting the assessment of department lawyers, he may be seeking a way out of the bind his boss has put him in by effectively putting the matter in the hands of professionals who were not politically appointed. But if he or his deputy authorizes a new investigation of Mrs. Clinton, it would shatter norms established after Watergate that are intended to prevent presidents from using law enforcement agencies against political rivals.

The request alone was enough to trigger a political backlash, as critics of Mr. Trump quickly decried what they called “banana republic” politics of retribution, akin to autocratic backwater nations where election losers are jailed by winners. The issue will almost certainly energize what was already shaping up to be a contentious hearing scheduled for Tuesday morning, when Mr. Sessions is scheduled to testify before the House Judiciary Committee.

November 14, 2017 | Permalink | Comments (0)

"FBI report reveals an approximate 5% increase in hate crimes in 2016"

From Jurist:

The FBI [official website] released [press release] the 2016 Hate Crime Statistics [materials] on Monday revealing 7,321 recorded criminal offenses motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender and gender identity in comparison to 6,885 [press release] of such bias-motivated offenses in the previous year.

According to the report, there were 6,063 single-bias incidents involving 7,509 victims of which approximately 59 percent were targeted because on racial, ethnic and/or ancestral bias; 21 percent because of religious bias, 17 percent on sexual orientation bias, 2 percent on gender identity bias, 1 percent on disability bias, and 0.5 percent on gender bias. Additionally there were 58 multiple-bias hate crime incidents involving 106 victims.

November 14, 2017 | Permalink | Comments (0)

Garrett on Punishing Business Crimes

Garrett brandonBrandon L. Garrett (University of Virginia School of Law) has posted The Boom and Bust of American Imprisonment (Texas Law Review, 2017) on SSRN. Here is the abstract:
We are teetering at the edge of a mass incarceration binge. Lawmakers are reconsidering overly harsh criminal punishments. At the same time, eight years later, people are still furious that elite criminals and CEOs avoided criminal punishment in the wake of the last financial crisis. Many have complained that no Wall Street bankers went to jail. What do these conflicting tendencies mean? In this book review, first, I discuss the new book by business professor Eugene Soltes titled "Why They Do It," which explores psychological research on risk-taking by corporate criminals. Second, I discuss law professor Sam Buell's "Capital Offenses," an engaging book that examines why it is so challenging to punish business crimes due to the structure of the economy, corporations, and our federal criminal justice system. Third, I turn to law professor Darryl Brown's "Free Market Criminal Justice," which explores the role of free market ideology in the divide in American criminal justice. I conclude by exploring the implications of these arguments and this research for mass incarceration as well as corporate accountability at the high and low ends of our criminal justice system — we are finally turning a corner on mass incarceration in this country, and the problems and solutions that these authors identify partly explain why and whether better things or new fears lie around that corner. We are at a crossroads. We need voices of reason like Soltes's, Buell's, and Brown's, today more than ever.

November 14, 2017 | Permalink | Comments (0)

Muangtham on Human Trafficking in Thailand

Wanwipa Muangtham (Sukhothai Thammathirat Open University) has posted Victims of Human Trafficking in Thailand: A Study of How Victim's Right is Protected in Criminal Proceedings (PSAKU International Journal of Interdisciplinary Research (PSAKUIJIR) Vol. 5 No. 2 (2016)) on SSRN. Here is the abstract:
No country can evade the threat of transnational organized crime. To cope with transnational crime in form of human trafficking, the United Nations Convention against Transnational Organized Crime along with the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children supplements sets out the legislative measures for states parties to harmonize the provisions for protecting victim and witnesses of trafficking particularly for children and women in their domestic law as these victims and witnesses play an essential role on bringing the trafficker to justice but they are often confronted with the threat of intimidation and retaliation. In the view of fact, the key problems in Thailand which are corruption and miscarriage of justice give a chance for some law enforcements and government officials to be involved in an abuse of power which results in victims and witnesses feeling reluctant to cooperate with the authorities. Therefore, truly comprehensive anti-human trafficking responses which are legislative measures, preventive measures, national coordination and cooperation and international cooperation and coordination must be implemented in Thailand. Equally important is, for some cases which government officials tend to relate to obstruction of justice or corruption, only the relocation of victims and witnesses within Thailand cannot guarantee their safety. The suggestion is the relocation of victims and witnesses to another country which could ensure the safety of victims and witnesses.

November 14, 2017 | Permalink | Comments (0)

Monday, November 13, 2017

"Special Counsels Are Sometimes Necessary"

Solomon L. Wisenberg has this post at White Collar Crime Prof Blog. In part:

Andrew McCarthy at National Review Online compares the aggressiveness of Special Counsel Bob Mueller's Russia collusion investigation to the disgraceful kid gloves DOJ-FBI treatment of Mrs. Clinton and her email server. He is right on all counts, but this is not Mueller's problem. Mueller is doing exactly what one would expect of a Special Counsel. History teaches us that a Special or Independent Counsel will get rolled if he does not establish, unequivocally and from the start, that he will not be trifled with, obstructed, or lied to.  I'm not aware of anything that Mueller has done to date that is outside ethical boundaries. The real outrage, as I have said many times before, is that a Special Counsel was not appointed to investigate Mrs. Clinton. The governing federal regulation plainly called for it.

November 13, 2017 | Permalink | Comments (0)

"Thousands of arrest warrants reviewed, following memo from S.C. Supreme Court judge"

From The Herald, via the NACDL news scan:

The chief justice of the South Carolina Supreme Court, Judge Donald Beatty, said in a September memorandum to all state summary court judges that it’s illegal to jail anyone who has neither waived their right to a lawyer nor had a lawyer in the first place.

. . .

The ruling means a person who skips court, and is convicted, cannot be sent to jail, according to Beatty’s memorandum.

November 13, 2017 | Permalink | Comments (0)

Riahi-Belkaoni on Accounting Fraud

Ahmed Riahi-Belkaoui (University of Illinois at Chicago - Department of Accounting) has posted The Architecture of Fraud in the Accounting Environment on SSRN. Here is the abstract:
This paper introduces an architecture of fraud in accounting by explicating the nature of fraud in the accounting environment, providing some theoretical explanations of the phenomenon from the field of criminology, and exploring some outcome situations arising from corporate fraud.

November 13, 2017 | Permalink | Comments (0)

Dissent from denial of cert in case alleging ineffective assistance

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented from the denial of cert in Reeves v. Alabama.

November 13, 2017 | Permalink | Comments (0)

Today's criminal law/procedure cert grant

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

November 13, 2017 | Permalink | Comments (0)

Chanenson on Federal Sentencing

Chanenson stevenSteven L. Chanenson (Villanova University School of Law) has posted Five Questions for the Next Thirty Years of Federal Sentencing (Federal Probation: A Journal of Correctional Philosophy and Practice, September 2017) on SSRN. Here is the abstract:
Like many milestones, both personal and professional, the impending 30th anniversary of the United States Sentencing Guidelines presents a useful opportunity to reflect on the modern federal sentencing scheme and to contemplate what should happen going forward. One way to do that is by asking questions in the context of one of the federal system’s state predecessors, the Pennsylvania Sentencing Guidelines. Like anything else, the Pennsylvania approach has strengths and weaknesses, but it can show that the federal model is not the only option. 

Sentencing is hard. This piece poses five questions, ranging from the use of discretionary parole release to the value of data and transparency to the role of sentencing guidelines and commissions in a well-functioning criminal justice system. The answers to these questions may offer possible opportunities for the improvement of federal sentencing over the next thirty years.

November 13, 2017 | Permalink | Comments (0)