CrimProf Blog

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

Friday, April 20, 2018

"A Louisiana Bill Would Give Public Defenders More Funding. Public Defenders Aren’t Happy."

From Mother Jones, via the NACDL news scan:

But public defenders have been vocal in their opposition to the proposal. Why? It would likely fund the offices by slashing the budget of legal aid organizations like the Innocence Project New Orleans, which works to overturn wrongful convictions, and the Louisiana Center for Children’s Rights, which provides public defense for juveniles.

Louisiana’s public defenders have been in crisis for years. According to a 2016 reportreleased by the board, on average public defenders handle caseloads twice the recommended state limit: In a particularly egregious example, one rural district’s average caseload is 4.39 times the limit. 

April 20, 2018 | Permalink | Comments (0)

"Alabama Executes Mail Bomber, 83, the Oldest Inmate Put to Death in Modern Era"

From The New York Times:

Mr. Moody’s final efforts to avoid execution, which the United States Supreme Court rejected, were largely procedural, including whether the federal government could turn him over to Alabama — and its execution chamber — while Mr. Moody served his federal sentence of seven life terms, plus 400 years. (The federal case included charges connected to the bombs sent to Judge Vance and Mr. Robinson. Mr. Freeh, who prosecuted the federal case at Mr. Mueller’s behest, said he believed Mr. Robinson’s killing was intended “to create a diversion” to distract investigators.)

The Justice Department said Mr. Sessions, Alabama’s attorney general when Mr. Moody was tried in state court, had determined that the federal government did not object to Mr. Moody being in Alabama’s custody “for purposes of carrying out the capital sentence.”

April 20, 2018 | Permalink | Comments (0)

Calandrillo & Fulton on Risks of Marijuana Legalization

Steve Calandrillo and Katelyn J. Fulton (University of Washington - School of Law and University of Washington, School of Law, Students) have posted 'High' Standards: The Wave of Marijuana Legalization Sweeping America Conveniently Ignores the Hidden Risks (Ohio State Law Journal, Forthcoming)
 
As a tide of marijuana legalization sweeps across the United States, there is a surprising lack of scrutiny as to whether the benefits of recreational marijuana outweigh the risks. Notably, marijuana edibles present special risks to the population that are not present in smoked marijuana. States that have legalized recreational marijuana are seeing an increase in edible-related calls to poison control centers and visits to emergency rooms. These negative reactions are especially prevalent in vulnerable populations such as children, persons with underlying preexisting conditions, and out-of-state marijuana novices. 

Unfortunately, research on edible marijuana is scant and state regulatory regimes are not adequately accounting for the special risks that edibles pose. Edibles are metabolized differently than smoked marijuana, resulting in late-onset, longer-lasting, and unpredictable intoxication. Novices are particularly vulnerable because of inaccurate dosing and delayed highs. Children are also at risk because edibles are often packaged as chocolate and other forms of candy to which unsuspecting kids are attracted. To minimize these risks and maximize the social utility received from marijuana edibles, further study of their effects is required and tighter regulations are necessary. Conducting research studies and enforcing new regulations takes time, and in the interim a state-implemented ban on marijuana edibles may be necessary to halt the increase of edible-related harms and hospitalizations.

April 20, 2018 | Permalink | Comments (0)

Joy & McMunigal on Prosecutors' Use of Subpoenas

Peter A. Joy and Kevin C. McMunigal (Washington University in St. Louis - School of Law and Case Western Reserve University School of Law) have posted Prosecutors and Use of Subpoenas (33 Criminal Justice 44 (Spring 2018)) on SSRN. Here is the abstract:
 
How some prosecutors have been treating victims, witnesses, and others has recently been in the news. News reports include prosecutors arresting victims for failing to testify, including a rape victim who was incarcerated for 27 days in order to ensure that she would testify. The woman, who suffered from schizophrenia and bipolar disorder, had a mental breakdown on the stand on the first day of trial and spent 10 days in a mental hospital. In a recent disciplinary case, a disciplinary panel has recommended a public reprimand against a prosecutor who used subpoenas in an effort to pressure and embarrass people who filed character letters for use at a sentencing hearing. These instances illustrate the controversy surrounding some prosecutors’ use of subpoenas. When does a prosecutor cross the line when using coercive measures, such as subpoenas, to obtain cooperation by victims, witnesses, and others in pursuing the conviction and punishment of those accused of violating the law? In this paper, we explore where that line may be.

April 20, 2018 | Permalink | Comments (0)

Thursday, April 19, 2018

"Are Criminal Attempts Bumpy?"

Adam Kolber has this interesting post at PrawfsBlawg. In part:

The law draws hard-to-justify lines around vague words. Those lines can lead to dramatically different consequences. In Smoothing Vague Laws, I argued that problems caused by legal vagueness can be eased in many instances by "smoothing" the law. If, for example, you have merely "prepared" to commit a crime, you have no criminal liability. When you cross the line from preparation to "attempt," however, you can have substantial liability--at least the mandatory minimum sentence for the attempt. If the attempt has no mandatory minimum, it's possible that a judge will sentence in a smooth fashion. But I suspect that judges don't think about sentencing in a smooth way. Though there should presumably be cases where a person gets a modest sentence for attempted murder or attempted rape because the crime falls right around the border between preparation and attempt, I suspect such sentences are rare because judges focus on the bumpy names of offenses rather than their often smooth underlying facts.

Doron Teichman takes issue with this discussion in his interesting recent article

April 19, 2018 | Permalink | Comments (0)

"Will the Supreme Court Rein in Civil Forfeiture?"

From The New Republic, via the NACDL news scan:

The trial court refused to authorize the seizure. Indiana law only allowed a $10,000 fine for Timbs’s sentence, and the court concluded that seizing a vehicle worth four times as much as that threshold would be “grossly disproportionate” relative to Timbs’s crime. The Indiana Court of Appeals upheld the decision after their own review of the circumstances. But the Indiana Supreme Court intervened and approved the seizure.

The judges’ unanimous opinion rested on a precedent, or lack thereof: The U.S. Supreme Court has never applied the Eighth Amendment’s Excessive Fines Clause to the states. Other lower courts have chosen to do so without waiting for the top justices, but Indiana’s Supreme Court was uninterested in following that path for Timbs’s benefit. “Indiana is a sovereign state within our federal system, and we elect not to impose federal obligations on the State that the federal government itself has not mandated,” the court declared.

April 19, 2018 | Permalink | Comments (0)

Levin on The Consensus Myth in Criminal Justice Reform

Levin benjaminBenjamin Levin (University of Colorado Law School) has posted The Consensus Myth in Criminal Justice Reform (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
 
It has become popular to identify a “bipartisan consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is largely illusory. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society. 

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April 19, 2018 | Permalink | Comments (0)

Fehr on De Minimis Offenses

Colton Fehr (University of Alberta - University of Alberta, Faculty of Law, Students) has posted Reconceptualizing De Minimis Non Curat Lex ((2017) 64:1 Criminal Law Quarterly 200) on SSRN. Here is the abstract:
 
The de minimis defence has been preserved under section 8(3) of the Criminal Code, which allows courts to preserve common law defences that are not inconsistent with any federal statutes. To be preserved, however, a defence must be a "justification, excuse, or other defence". I contend that the de minimis defence does not meet any of these definitions. The defence may, however, be preserved under section 7 of the Charter, which provides that criminal laws must not be able to deprive accused persons of liberty in a manner that is grossly disproportionate with a criminal offence's objective. Preserving the defence under the Charter, I maintain, provides the defence with a more cognizable and less indeterminate foundation.

April 19, 2018 | Permalink | Comments (0)

Wednesday, April 18, 2018

Kerr on Computer Crime Law

Kerr orinOrin S. Kerr (University of Southern California Gould School of Law) has posted Computer Crime Law (Introduction) ((4th Ed. 2018), West Academic Publishing, ISBN: 978-1-63459-899-6) on SSRN. Here is the abstract:

The book covers every aspect of crime in the digital age. Topics range from computer fraud laws and international computer crimes to Internet surveillance laws and the Fourth Amendment. It is part traditional casebook, part treatise. It both explains the law and presents many new and important questions of law that courts are only now beginning to consider. The book is suited either for a 3-credit course or a 2-credit seminar. It will appeal both to criminal law and procedure professors and those interested in cyberlaw or law and technology. No advanced knowledge of computers and the Internet is required or assumed.

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April 18, 2018 | Permalink | Comments (0)

Migai on Facilitating Tax Evasion

Clement Migai (Vienna University of Economics and Business - Institute for Austrian and International Tax Law) has posted UK Criminal Finances Act 2017: The Interplay between the New Corporate Offence for the Failure to Prevent the Criminal Facilitation of Tax Evasion and Legal Professional Privilege (2nd High-Level Conference on High Net-Worth Individuals: The Challenge They Pose for Tax Administrations, FIUs and Law Enforcement Agencies) on SSRN. Here is the abstract:
 
According to the European Commission, Member States lose between 2% to 2.5% of their combined GDP annually to tax crimes. Tax avoidance and tax evasion have also dominated news recently especially following the Panama Papers/Mossack Fonseca Leak and the Paradise Papers. Whereas these leaks, particularly the Paradise Papers, encompassed arrangements that may have involved tax evasion, a lot of the arrangements involved legal tax avoidance, albeit highly aggressive. In response many governments are using the Automatic Exchange of Information and the Common Reporting Standard as a lever to encourage voluntary disclosure of non-reported offshore income among other tools to fight tax evasion. In the United Kingdom, the Criminal Finance Act 2017 received Royal Assent on 27 April 2017 and came into effect on 30 September 30, 2017. Among other objectives, it created a new corporate offence of failure to prevent the facilitation of tax evasion by an associated person, whether in the United Kingdom or in a foreign jurisdiction. It paves way for holding corporate entities liable where those “associated” with it have engaged in the criminal facilitation of tax evasion.

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April 18, 2018 | Permalink | Comments (0)

Landeo & Spier on Optimal Law Enforcement and Ordered Leniency

Claudia M. Landeo and Kathryn E. Spier (University of Alberta - Department of Economics and Harvard University - Law School - Faculty) have posted Optimal Law Enforcement with Ordered Leniency on SSRN. Here is the abstract:
 
This paper studies the design of enforcement policies to detect and deter harmful short-term activities committed by groups of injurers. With an ordered-leniency policy, the degree of leniency granted to an injurer who self-reports depends on his or her position in the self-reporting queue. By creating a "race to the courthouse," ordered-leniency policies lead to faster detection and stronger deterrence of illegal activities. The socially-optimal level of deterrence can be obtained at zero cost when the externalities associated with the harmful activities are not too high. Without leniency for self-reporting, the enforcement cost is strictly positive and there is underdeterrence of harmful activities relative to the first-best level. Hence, ordered-leniency policies are welfare improving. Our findings for environments with groups of injurers complement Kaplow and Shavell's (1994) results for single-injurer environments. Experimental evidence provides support for our theory.

April 18, 2018 | Permalink | Comments (0)

Tuesday, April 17, 2018

Cassidy on Catholic Social Thought and Criminal Justice Reform

Cassidy r michaelR. Michael Cassidy (Boston College - Law School) has posted Catholic Social Thought and Criminal Justice Reform (Journal of Catholic Social Thought, Forthcoming) on SSRN. Here is the abstract:
 
Professor Cassidy examines the criminal justice reform movement in the United States through the lens of Catholic social thought. In particular, he focuses on God’s gift of redemption and the Gospels’ directives that we love one another and show mercy toward the poor, the oppressed and the imprisoned. Cassidy then examines the implications of these fundamental Catholic teachings for the modern debate about the death penalty, sentencing reform, prisoner reentry and parole.

April 17, 2018 | Permalink | Comments (0)

Bezdek on Policing, Poverty, and Despair

Bezdek barbaraBarbara L. Bezdek (University of Maryland - Francis King Carey School of Law) has posted Policing that Perpetuates Baltimore's Islands of Poverty and Despair (16 University of Maryland Law Journal of Race, Religion, Gender & Class 153 (2016)) on SSRN. Here is the abstract:
 
 
Freddie Gray lived and died in the Sandtown neighborhood in west Baltimore, a 72-block area whose dismal, toxic, and episodically deadly physical and social realities should not be tolerable as part of the American landscape. More than one-third of its residents live below the poverty line, and 20% are unemployed. The unconstitutional policing practices detailed in the U.S. Department of Justice Report contribute to this economic distress. Maryland taxpayers spend nearly $290 million each year to incarcerate Baltimore residents who make up one-third of all prisoners in the state. The majority of Maryland’s state prison population hail from, and return to, Sandtown, according to the Justice Policy Institute. 

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April 17, 2018 | Permalink | Comments (0)

Opinion declaring Microsoft case moot because of CLOUD Act

The per curiam opinion was issued in United States v. Microsoft Corp.

April 17, 2018 | Permalink | Comments (0)

Opinion explaining how to review on federal habeas an unexplained state-court decision

Justice Breyer filed the opinion of the Court in Wilson v. Sellers. Justice Gorsuch filed a dissenting opinion, joined by Justices Thomas and Alito.

April 17, 2018 | Permalink | Comments (0)

Opinion holding residual clause in immigration statute void for vagueness

Justice Kagan delivered the opinion of the Court in Sessions v. Dimaya with respect to certain parts and was joined by Justices Ginsburg, Breyer, and Sotomayor as to others. Justice Gorsuch concurred in part and concurred in the judgment. Chief Justice Roberts filed a dissenting opinion, joined by Justices Kennedy, Thomas, and Alito. Justice  Thomas also filed a dissenting opinion, joined in part by Justices Kennedy and Alito.

April 17, 2018 | Permalink | Comments (0)

Monday, April 16, 2018

Simmons on Legitimacy and Predictive Algorithms

Simmons ricRic Simmons (Ohio State University (OSU) - Michael E. Moritz College of Law) has posted Big Data, Machine Judges, and the Legitimacy of the Criminal Justice System (University of California Davis Law Review, Vol. 52, 2018) on SSRN. Here is the abstract:
 
Predictive algorithms are rapidly spreading throughout the criminal justice system. They are used to more efficiently allocate police resources, identify potentially dangerous individuals, and advise judges at bail hearings and sentencing determinations. These algorithms have the potential to increase the accuracy, efficiency, and fairness of the criminal justice system, and they have been criticized on the grounds that they may reinforce pre-existing biases against minorities. But one aspect of these tools that has not yet been discussed in the literature is whether they will be accepted as legitimate. For centuries, these critical decisions that affect people’s safety and liberty have been made by human beings; now, for the first time in human history, we are delegating large aspects of these decisions to machines. This article addresses whether people will be willing to accept this change, and if not, how we can adapt the algorithms in order to make them more acceptable.

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April 16, 2018 | Permalink | Comments (0)

Capers on Evidence Without Rules

Capers i bennettI. Bennett Capers (Brooklyn Law School) has posted Evidence Without Rules (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:
 
In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the courtroom, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. “Evidence Without Rules” calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters in ways that have real consequences. Jurors use this other evidence to decide whether to find for a plaintiff or defendant, whether a defendant should go free or be deprived of liberty, and whether the defendant is deserving of life or death. Even in cases that do not go to trial, this unregulated evidence has outsized consequences, since these cases are negotiated and settled in the “shadow of trial” with prospective jurors in mind. More broadly, the role of other evidence belies what we tell ourselves about the way justice works, that it is based on the “rule of law.” The truth is less comforting. The determination of outcomes, notwithstanding the Rules of Evidence, is often rule-less. To address this state of affairs, this article first offers a modest proposal, a simple jury instruction and directive. It then offers a solution that is anything but modest—a radical rethinking of the Rules of Evidence.

April 16, 2018 | Permalink | Comments (0)

Kreag on Disclosing Prosecutorial Misconduct

Kreag jasonJason Kreag (University of Arizona Rogers College of Law) has posted Disclosing Prosecutorial Misconduct (72 Vanderbilt Law Review ___ 2019) on SSRN. Here is the abstract:
 
Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the system. Commentators have responded by proposing a range of reforms to increase Brady compliance going forward. Yet these reforms have largely ignored the need to remedy the harms from past Brady violations. Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors’ Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure. This Article proposes a new remedy to supplement the current responses to Brady misconduct: the Brady Violation Disclosure Letter. It proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation. This disclosure is a partial remedy for the range of harms Brady violations create. It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque. Importantly, this proposal can be implemented immediately without adopting new rules or statutes and without expanding Brady’s exiting constitutional protections.

April 16, 2018 | Permalink | Comments (0)

Sunday, April 15, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Washington - School of Law, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering, University of Washington - Paul G. Allen School of Computer Science & Engineering and University of Washington School of Law

Date Posted: 28 Mar 2018 

360
2.
Santa Clara University - School of Law

Date Posted: 08 Mar 2018 [3rd last week]

227
3.
University of North Carolina School of Law

Date Posted: 16 Mar 2018 [4th last week]

196
4.
Massachusetts Institute of Technology (MIT), Rutgers University, New Brunswick and Georgetown University Law Center

Date Posted: 03 Mar 2018 [6th last week]

124
5.
University of Virginia - School of Law and University of Virginia - School of Law, Alumnus or Degree Candidate Author

Date Posted: 22 Feb 2018 

123
6.
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

Date Posted: 05 Mar 2018 [7th last week]

110
7.
American University - Washington College of Law

Date Posted: 14 Mar 2018 [9th last week]

104
8.
Yale University - Law School

Date Posted: 03 Apr 2018 [new to top ten]

97
9.
University of Virginia - School of Law

Date Posted: 29 Mar 2018 [new to top ten]

88
10.
Willamette University College of Law

Date Posted: 19 Mar 2018 [8th last week]

78

April 15, 2018 | Permalink | Comments (0)