CrimProf Blog

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

Wednesday, September 20, 2017

Vitiello on Brock Turner and Judicial Recall

Vitello MichaelMichael Vitiello (University of the Pacific - McGeorge School of Law) has posted Brock Turner: Sorting Through the Noise (McGeorge Law Review, Forthcoming) on SSRN. Here is the abstract:
 
This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.”

In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence.” Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes. 

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye. While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year. 

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September 20, 2017 | Permalink | Comments (0)

Laufer on Progressive Corporate Criminal Law

William S. Laufer (University of Pennsylvania - Legal Studies Department) has posted  The Missing Account of Progressive Corporate Criminal Law on SSRN. Here is the abstract:
 
This Article offers a modern progressive account of corporate criminal law using foundational principles of twentieth century progressivism. The central role of science and advancing technology define the architecture of this account. Some of the intractable challenges of using the criminal law to regulate corporations are reviewed, followed by a recognition of a remarkable convergence of corporate compliance standards, measures, practices, and insights from conventional, plural, and polycentric theories of regulation. This is a convergence of informal corporate social controls offering a potentially powerful opportunity for the promotion of modern progressive interests, practices, and advocacy. Next, the two pillars of twentieth century progressivism, the instrumental use of science and social control, are discussed. A “compliance conundrum,” it is argued, undermines corporate commitments to compliance science, technology, and more effective social controls. This conundrum contributes to a compliance game where corporate and regulatory players placate each other with an outcome that often has little to do with greater law abidance. With a glimmer hope, this Article concludes by considering the unique position of progressives to disrupt the compliance game while promoting corporate criminal justice.

September 20, 2017 | Permalink | Comments (0)

Billings on Parental Arrest and Incarceration

Stephen B. Billings (University of Colorado - Boulder) has posted Parental Arrest, Incarceration and the Outcomes of Their Children on SSRN. Here is the abstract:
 
Parental arrest and incarceration represents a profound and traumatic experience for almost 3 million children in the U.S. and scholars in sociology and criminology consistently find negative impacts of parental incarceration on children across a range of academic and behavioral outcomes. Unfortunately, the challenge of disentangling parental incarceration from other parenting attributes has limited causal inference in this literature. The research presented here provides compelling evidence that parental arrest coincides with negative outcomes for children, but that the incarceration of a parent may have short term benefits for the child. Results suggest that incarceration removes negative role models and leads to changes in a child's home environment.

September 20, 2017 | Permalink | Comments (0)

Tuesday, September 19, 2017

Pushing back on criticisms of AG Sessions returning Justice Department to "failed mindset of its past"

Doug Berman at Sentencing Law & Policy has this informative post, excerpting from a substantial piece in the National Review. From Doug's commentary:

In red and blue states nationwide for nearly a decade, in various initiative votes from California to Oklahoma and from Alaska to Florida, the American people and their representative have been amending penal codes to be less harsh in many ways (especially to nonviolent offenders and marijuana users). But very little similar work has gotten done in Congress largely because leadership will not even allow reform bills to come up for a full vote. There are good reasons to think we could and would get many amendments to the federal penal code if up-or-down votes were allowed on various leading reform proposals --- e.g., the GOP-controlled Senate Judiciary Committee voted 75% in support of a massive sentencing reform bill in October 2015. In light of the reality that significant federal sentencing reform seems to gets significant majority support when it gets a vote, one cannot quite say that full enforcement of existing federal criminal laws is fully compliant with the will of the people.

September 19, 2017 | Permalink | Comments (0)

"Should Massachusetts require police to obtain search warrants to use drones for investigations?"

From The Boston Globe, via NACDL news scan:

Several other states – including Florida, Maine, North Dakota and Virginia – already have similar requirements in place, and Massachusetts residents should be able to enjoy these same protections.

Requiring warrants for drone surveillance would in no way hinder law enforcement’s ability to investigate suspected criminal activity. Rather, it would simply ensure that state and municipal police departments are following the same procedures they already use when conducting an investigation without the use of drone technology.

September 19, 2017 | Permalink | Comments (0)

Adelstein on Governing Exchange

Richard Adelstein (Wesleyan University) has posted Introduction: Governing Exchange (The Exchange Order: Property and Liability as an Economic System, New York: Oxford University Press, 2017) on SSRN. Here is the abstract:
 
This is the introduction to The Exchange Order: Property and Liability as an Economic System, New York: Oxford University Press, 2017. It briefly describes the exchange order, the comprehensive social system comprising explicit markets, tort liability and criminal liability. These institutions are portrayed as different ways to govern exchanges, compensated transfers from lower to higher valuing owners, across a range of environments. Every transfer involves both the taking of goods and the imposition of costs, and exchange means that cost bearers are fully compensated by takers for their losses. Markets govern exchanges in environments where property rights are secure, so all trades are consensual and compensation occurs at the moment of taking. Tort and criminal liability operate in environments where property is insecure, completing involuntary transfers of entitlements, rights to be free of unlawful cost imposition, by imposing compensatory liability prices on takers equal to the cost of the taking. All three systems thus operate to move rights and objects to higher valuing owners through the payment of compensatory prices.

September 19, 2017 | Permalink | Comments (0)

Ramseyer & Rasmusen on Outcaste Politics and Organized Crime in Japan

J. Mark Ramseyer and Eric Bennett Rasmusen (Harvard Law School and Indiana University - Kelley School of Business - Department of Business Economics & Public Policy) have posted Outcaste Politics and Organized Crime in Japan: The Effect of Terminating Ethnic Subsidies on SSRN. Here is the abstract:
 
In 1969, Japan launched a massive subsidy program for the "burakumin" outcastes. The subsidies attracted the mob, and the higher incomes now available through organized crime compensated those burakumin who abandoned the legal sector for criminal careers. In the process, the subsidies gave new support to the tendency many Japanese already had to equate the burakumin with the mob.

The government ended the subsidies in 2002. We explore the effect of the termination by merging 30 years of municipality data with a long-suppressed 1936 census of burakumin neighborhoods. First, we find that outmigration from municipalities with more burakumin increased after the end of the program. Apparently, the higher illegal income generated by the subsidies had restrained young burakumin from joining mainstream society. Second, we find that once the mob-tied corruption and extortion associated with the subsidies neared its end, real estate prices rose in municipalities with burakumin neighborhoods. With the subsidies gone and the mob in retreat, other Japanese found the formerly burakumin communities increasingly attractive places to live.

September 19, 2017 | Permalink | Comments (0)

Picinali on Nance on Burdens of Proof

 
In this review (forthcoming in Jurisprudence) I engage critically with specific aspects of the first four chapters of Dale A. Nance's book 'The Burdens of Proof: Discriminatory Power, Weight of the Evidence, and Tenacity of Belief'. Sometimes I raise objections to his arguments; sometimes I point out lines of enquiry that are opened by Nance's work and that invite further study. Nance considers also civil fact finding and bench trials; my focus, instead, is mainly on criminal fact finding and jury trials. Nance's book promises to stimulate scholarly discussion for years to come, by drawing attention to new lines of enquiry and bringing fresh air to longstanding debates. Whilst Nance may ultimately succeed in defending the several innovative theses of his captivating work, I hope that this review shows at least that he has not fully discharged his burdens of proof yet.

September 19, 2017 | Permalink | Comments (0)

Monday, September 18, 2017

Kim on Adversarial Interrogators

Myeonki Kim has posted When and Why Suspects Fail to Recognize the Adversary Role of an Interrogator in America: The Problem and Solution (Gonzaga Law Review, Vol. 52, No. 3, 2017) on SSRN. Here is the abstract:
 
What is the identity of the police interrogator who is questioning the suspect to get a confession: a neutral investigator or an adversary? What is different in each identity? Courts do not distinguish between these two roles and therefore leave a fundamental element of police interrogation unaddressed. This article attempts to fill this gap. American police interrogators are clearly adversarial and should be prohibited from confusing or concealing their adversarial role during interrogation. The adversarial criminal system and its complex evidentiary rules make the police and the prosecutor close allies. However, this is not evident to the subject of most interrogations. Police interrogators often confuse or conceal their identity, since this strategy is effective to make the suspect confess, but rarely regulated. This strategy should be more strictly controlled, because if it is sophisticatedly used, it could be not only coercive and but also unfair. For a realistic reform, this article considers that the revised police code of conduct could be a timely measure to ban that strategy. The Rule 4.3 in Model Rules of Professional Conduct, which regulates the lawyer’s contact with an unrepresented person, will serve as a good example.

September 18, 2017 | Permalink | Comments (0)

Menashe & Biber on False Convictions

Doron Menashe Sr. and Sivan Biber (University of Haifa - Faculty of Law and Independent) have posted Safety from False Convictions by Boaz Sangero - Book Review (THE JOURNAL JURISPRUDENCE, 2017) on SSRN. Here is the abstract:
 
In his new book "Safety from False Convictions" Boaz Sangero develops his thesis, that was originally conceived together with Mordechai Halpert, to view the criminal law system as a "safety-critical system", much like the aviation field and the pharmaceuticals and drugs field, where every accident could result in catastrophic damage, especially the loss of life. According to Sangero, A false conviction is no less an accident than a fighter airplane crash, because it can cause grave harm to the individual and society in general. This grave harm is manifested by the deprivation of liberty in the form of imprisonment and even loss of life through the death penalty. Sangreo claims that it is therefore the state's moral duty to adopt and implement safety measures in the criminal justice system, like it does in other safety-critical fields. Sangero further argues that there is also an economic rationale for safety in the criminal justice system.

September 18, 2017 | Permalink | Comments (0)

Cloud & Shepherd on Law Deans in Jail

Morgan Cloud and George B. Shepherd (Emory University School of Law and Emory University School of Law) have posted Law Deans in Jail on SSRN. Here is the abstract:
 
 
A most unlikely collection of suspects - law schools, their deans, U.S. News & World Report and its employees - may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents' crimes.

Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores.

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September 18, 2017 | Permalink | Comments (0)

"DOJ rolls back program intended to identify problems in police departments"

From The Hill:

As The Washington Post reported, DOJ’s civil rights division has for decades conducted “pattern or practice’’ probes of troubled police departments to determine whether there are systemic problems that require a court-appointed monitor to correct. The COPS office had reportedly been expanding in recent years.

“This is a course correction to ensure that resources go to agencies that require assistance rather than expensive wide-ranging investigative assessments that go beyond the scope of technical assistance and support," according to the DOJ.

September 18, 2017 | Permalink | Comments (0)

District of Columbia v. Wesby: Some Problems with a Fixed-Probability Approach to Probable Cause, with Potential Implications for Partial Marijuana Legalization

In response to my request for comments on the draft I recently posted on SSRN, Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine, Wayne Logan (Florida State) brought to my attention a pending Supreme Court case, District of Columbia v. Wesby, scheduled for argument on October 4. Raising as it does issues of qualified immunity, the case may be resolved in ways that provide no clear guidance regarding an important underlying question—what level of suspicion is required regarding facts that would need to be established at trial but might be hard to assess by police officers at the time a decision must be made whether to arrest. This underlying question is important generally, and will be of particular importance as more people are covered by state laws legalizing marijuana use.

              Wesby began with a complaint regarding possible illegal activity at a home in Washington, D.C. When police arrived, they heard loud music and observed “several scantily clad women with money tucked into garter belts, in addition to ‘spectators . . . drinking alcoholic beverages and holding [U.S.] currency in their hands.’” Some occupants told police they had been invited to a birthday party; others that they had been invited to a bachelor party. The invitations seemed traceable, either directly or indirectly, to a person named “Peaches,” who was not present. Reached by phone, Peaches apparently confirmed issuing invitations that were subsequently extended by others and said that she had permission from the owner of the house. But when the owner was reached, he said that he was “trying to work out a lease arrangement with Peaches but had yet to do so.” He also said that the people in the house did not have his permission to be there.

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September 18, 2017 | Permalink | Comments (0)

"Former St. Louis police officer acquitted in murder of black man"

From Jurist:

A St. Louis, Missouri, circuit judge on Friday acquitted [ruling, PDF] a former police officer accused of first degree murder for the shooting of a black man. Jason Stockley was pursuing Anthony Lamar during a high-speed chase when evidence post-chase becomes inconclusive according to the court. Judge Timothy Wilson [official profile] stated that the prosecution did not meet its burden of proof. "This Court, as trier of fact, is simply not firmly convinced of defendant's guilt. Agonizingly, this Court has poured over the evidence again and again ... This Court, in conscience, cannot say that the State has proven every element of murder beyond a reasonable doubt or that the State has proven beyond a reasonable doubt that defendant did not act in self-defense."

September 18, 2017 | Permalink | Comments (0)

Kobayashi & Burtis on Optimal Penalties for Price Fixing

Bruce H. Kobayashi and Michelle Burtis (George Mason University - School of Law and Charles River Associates (CRA) International) have posted The Effect of Optimal Penalties for Organizations Convicted of Price Fixing in the Presence of Criminal Sanctions for Individuals on SSRN. Here is the abstract:
 
This chapter examines the nature of optimal price fixing penalties on organizations in the presence of criminal sanctions for individuals employed by convicted firms. In other work, we examined the nature of optimal penalties for firms convicted for price fixing when the only sanction is the one placed on the firm. This chapter expands the economic analysis to examine how optimal organizational sanctions function when individuals employed by the firm are subject to criminal penalties, including incarceration. Our analysis demonstrates how sanctions on individuals can serve to complement firm level expenditures on monitoring and compliance, resulting in better deterrence and lower compliance costs.

September 18, 2017 | Permalink | Comments (0)

Sunday, September 17, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Tennessee College of Law

Date Posted: 28 Aug 2017 

3,655
2.
Brooklyn Law School

Date Posted: 10 Aug 2017 

186
3.
University of Mississippi, School of Law, Students

Date Posted: 26 Aug 2017 [6th last week]

81
4.
Hofstra University - Maurice A. Deane School of Law

Date Posted: 15 Aug 2017 [5th last week]

76
5.
Kelley School of Business, Indiana University

Date Posted: 19 Jul 2017 [8th last week]

75
6.
University of Toledo College of Law

Date Posted: 14 Jul 2017 [4th last week]

75
7.
University of Virginia School of Law and U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division

Date Posted: 04 Aug 2017 

68
8.
DePaul University College of Law

Date Posted: 17 Jul 2017 [10th last week]

62
9.
University of Missouri - Department of Philosophy and University of Missouri School of Law

Date Posted: 02 Aug 2017 [new to top ten]

52
10.
University of San Diego School of Law

Date Posted: 21 Aug 2017 [new to top ten]

51

September 17, 2017 | Permalink | Comments (0)

Saturday, September 16, 2017

Starger & Bullock on Bail

Colin P. Starger and Michael Bullock (University of Baltimore - School of Law and Maryland Court of Special Appeals) have posted Legitimacy, Authority, and the Right to Affordable Bail (William & Mary Bill of Rights, Forthcoming) on SSRN. Here is the abstract:
 
Bail reform is hot. Over the past two years, jurisdictions around the country have moved to limit or end money-bail practices that discriminate against the poor. While cheered by many, bail reform is vehemently opposed by the powerful bail-bond industry. In courts around the country, lawyers representing this industry have argued that reform is unnecessary and even unconstitutional. One particularly insidious argument advanced by bail-bond apologists is that a “wall of authority” supports the proposition that “bail is not excessive merely because the defendant is unable to pay it.” In other words, authority rejects the right to affordable bail.

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September 16, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of California, Davis - School of Law

Date Posted: 21 Aug 2017 

286
2.
University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Posted: 23 Jul 2017 

157
3.
University of Calgary

Date Posted: 30 Aug 2017 [4th last week]

133
4.
University of California, Los Angeles (UCLA) - School of Law

Date Posted: 31 Jul 2017 [6th last week]

113
5.
Duke University School of Law

Date Posted: 03 Aug 2017 [7th last week]

104
6.
University of the District of Columbia - David A. Clarke School of Law

Date Posted: 17 Aug 2017 [10th last week]

101
7.
University of California, Irvine School of Law

Date Posted: 16 Aug 2017 [8th last week]

99
8.
Western Carolina University and Western Carolina University

Date Posted: 24 Jul 2017 [new to top ten]

85
9.
University of Virginia School of Law

Date Posted: 10 Aug 2017 [new to top ten]

80
10.
Hofstra University - Maurice A. Deane School of Law

Date Posted: 15 Aug 2017 [new to top ten]

76

September 16, 2017 | Permalink | Comments (0)

Friday, September 15, 2017

Adams et al. on Record Clearance

Ericka B. AdamsElsa Y. Chen and Rosella Chapman (North Central College - Department of Sociology, Santa Clara University and Santa Clara University) have posted Erasing the Mark of a Criminal Past: Ex-Offenders’ Expectations and Experiences with Record Clearance (Punishment & Society Volume 19, Number 1 (January 2017), p. 23-52) on SSRN. Here is the abstract:
 
Through the process of record clearance, ex-offenders can have certain minor convictions removed from their criminal record or designated as expunged. This study analyzes data gathered from semi-structured interviews with 40 past offenders to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime. The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new identity. These benefits accrue from both the outcomes of the record clearance process and from the process itself. Increased availability of inexpensive or free opportunities for expungement can contribute to more successful reintegration of ex-offenders into the workforce, families, and communities. Not only would this improve quality of life for the ex-offenders, but it could also increase public safety and reduce public spending.

September 15, 2017 | Permalink | Comments (0)

Newton & Sidhu on The History of the Original US Sentencing Commission

Brent Evan Newton and Dawinder S. Sidhu (Georgetown University Law Center and University of Baltimore - School of Law) has posted The History of the Original United States Sentencing Commission, 1985-1987 (Hofstra Law Review, Vol. 45, 2017) on SSRN. Here is the abstract:
 
An eighteen-month period from the fall of 1985 to the spring of 1987 witnessed the most significant change to the federal criminal justice system in American history. In those eighteen months, the United States Sentencing Commission, a new and novel independent agency in the federal judicial branch, developed sentencing guidelines for all federal judges during the same period when Congress was enacting new mandatory minimum statutory penalties that dramatically increased existing penalties for drug trafficking and firearms offenses. This Article describes this founding era of structured federal sentencing, beginning with the Commission’s first meeting and ending with the transmittal of the initial Guidelines Manual to Congress on April 13, 1987, for its 180-day review period. As the guidelines remain the “lodestone” of federal sentencing thirty years later, and as improving the criminal justice system continues to be an important national bipartisan aspiration, a thorough exploration of the history of the original Commission is both timely and important.

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September 15, 2017 | Permalink | Comments (0)