CrimProf Blog

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

Thursday, October 11, 2018

Hu on Robot Criminals

Ying Hu has posted Robot Criminal Liability Revisited (Dangerous Ideas in Law, Jin Soo Yoon, Sang Hoon Han, and Seong Jo Ahn (eds.), Chapter 26, 494-509 (South Korea: Bobmunsa, 2018)) on SSRN. Here is the abstract:

Imagine the following scenario. A robot doctor is equipped with complex algorithms that weigh the costs and benefits of each medical procedure in order to maximize the benefit of its patients. One day, the doctor deliberately withholds resuscitation from a dying patient, John, against his and his family’s wishes. The robot doctor reasons, if it resuscitates John as requested, there is only a 0.1% chance that he might live for another week. In the meantime, John has to endure a tremendous amount of pain and suffering. On the other hand, if John dies, his organs can be harvested to save the lives of at least three people. On balance, the robot doctor concludes, the benefits of withholding treatment outweighs the costs. John’s family are infuriated by the robot doctor’s inaction. But do they have any grounds for accusing the doctor of criminal negligence or even murder?

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October 11, 2018 | Permalink | Comments (0)

Joy & Uphoff on Sentencing Reform

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis - School of Law and University of Missouri School of Law) have posted Sentencing Reform: Fixing Root Problems (87 UMKC Law Review 97 (2018)) on SSRN. Here is the abstract:

In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.

In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”

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October 11, 2018 | Permalink | Comments (0)

Wednesday, October 10, 2018

"Juvenile Rapists and Individualized Consideration"

Kent Scheidegger has this post at Crime & Consequences:

As Sacramento Bee columnist Marcos Bretón explained last month, this ill-considered legislation exempts everyone under 16 from transfer to adult court even for the more depraved offenses. 

Note how the calls for individualized consideration switch on and off depending on which way the default rule falls. In capital sentencing, sentencing of juveniles, and transfer of juveniles to adult court, we are first told that consideration of individual circumstances is essential to justice -- when the alternative is the harsher option -- and then we are told that a bright-line rule is essential when that line is drawn on the more lenient side.

October 10, 2018 | Permalink | Comments (0)

Two pieces on public defender systems

Both via the NACDL news scan:

  • Pa.’s unequal public defender system: Pennsylvania is the only state that does not provide state funding or oversight for its public defense system, leaving the job to its 67 different counties. Today, we’ll explore the effects that this has when it comes to citizens getting adequate representation in court as required by The Constitution. Also, we’ll explore how this funding method affects the politics of the state.
  • Indiana Public Defender Commission pushing for reforms to improve public defense resources: A state agency that helps fund public defense attorneys in Indiana and sets best practice standards plans to push state legislators for policy reforms they say will help protect defendants’ constitutional rights.

    

October 10, 2018 | Permalink | Comments (0)

Cover on The Pope and the Capital Juror

Aliza Cover (University of Idaho College of Law) has posted The Pope and the Capital Juror (Yale Law Journal Forum (Forthcoming)) on SSRN. Here is the abstract:
 
Counterintuitively, the Pope’s recent announcement that the death penalty is impermissible in all circumstances may make death sentences easier to come by, at least in the short term. The reason for this peculiarity is the “death qualification” of capital jurors – the process of questioning prospective jurors about their views on the death penalty and removing for cause those who are “substantially impaired” in their willingness to consider imposing a death verdict. This Essay anticipates three problematic consequences of the Pope’s declaration, given a capital punishment system that relies on death-qualified juries. First, prosecutors will likely be able to strike a greater number of death-averse jurors, thereby seating juries tilted in favor of death and obtaining death verdicts with greater ease. Second, with more believing Catholics excluded from jury service, the representativeness – and hence the legitimacy – of capital juries will suffer. Third, if the number of death verdicts rises with the ease of disqualification, one of the key “objective indicators” of “evolving standards of decency” will be skewed, registering more support for the death penalty despite – indeed, because of – societal movement against it. The potential for these unexpected consequences to flow from a major pronouncement against the death penalty highlights how death qualification shapes and distorts the practice of capital punishment in our country.

October 10, 2018 | Permalink | Comments (0)

Lee et al. on Victims of Investment Fraud

Steven LeeBenjamin F. Cummings and Jason Martin (The American College of Financial Services, Students, The American College of Financial Services and Swarthmore College) have posted Victim Characteristics of Investment Fraud on SSRN. Here is the abstract:
 
Investment fraud constitutes a major problem in the United States. While several studies have investigated various aspects of fraud, none have analyzed victim characteristics of investment fraud. This study posits five fraud languages that, when used by fraudsters, shut down the perceived need to conduct due diligence in their victims: perceived success; air of familiarity; claim to authority; noble pursuits; and framed authenticity. Using the Health and Retirement Study data from 2008, 2010, and 2012, the authors found that respondents who were male, were better educated, were single, and were younger disproportionately reported being defrauded in the past five years. This study also lays the groundwork for linking the five fraud languages to various factors such as financial literacy and dependency arising from questions within the HRS data set. Implications for such findings include protecting individuals near retirement from fraud and spreading public awareness about the importance of due diligence in the investment decision process.

October 10, 2018 | Permalink | Comments (0)

Johnston on Criminal Justice Reform and Mental Illness

E. Lea Johnston (University of Florida - Levin College of Law) has posted Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness (Florida Law Review, Vol. 71, 2019) on SSRN. Here is the abstract:

Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory—the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.

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October 10, 2018 | Permalink | Comments (0)

Mayson on Bias and Predictions

Mayson sandraSandra G. Mayson (University of Georgia School of Law) has posted Bias In, Bias Out (128 Yale Law Journal __ (2019 Forthcoming)) on SSRN. Here is the abstract:

Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.

This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself.

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October 10, 2018 | Permalink | Comments (0)

Tuesday, October 9, 2018

"Sugar Babies, Sexual Assault Claims, Takedown Demands, and Microaggressions"

Eugene Volokh has this post at The Volokh Conspiracy, excerpting an interesting case from Minnesota. In part:

Self-described "sugar baby" Shawdy Kiani initiated a four-month sexual relationship with "sugar daddy" John Huha, exchanging "companionship" for lavishments. Kiani spurned Huha's attempt to elevate the arrangement into a real romance, and the relationship ended.

When Huha refused to remove from his social-media page photographs of Kiani and Huha as a couple and an image of Kiani's text message describing herself as his "prostitute," Kiani moved for a harassment restraining order claiming that she had been too intoxicated to consent and was therefore sexually assaulted during their first sexual rendezvous. The district court rejected Kiani's sexual-assault claim as incredible and only partially granted her motion.

October 9, 2018 | Permalink | Comments (0)

"Philly program teaches defendants how to help themselves"

From WTIF, via the NACDL news scan. In part:

The participatory defense program, which meets weekly, teaches people how to present themselves as a whole person, by, among other things, tapping the resources of the community of people who know the defendant as more than a criminal.

That package includes training defendants about the facts of their case; teaching them how to write a biography; obtaining letters of support; and identifying friends and loved ones who will vouch for them in court.

Philadelphia Chief Defender Keir Bradford-Grey says she had to get creative to do battle with the better-resourced district attorney's office.

October 9, 2018 | Permalink | Comments (0)

Rothschild on More (Government) Police, More Crime

Daniel Rothschild (George Mason University, Department of Economics, Students) has posted More (Government) Police, More Crime on SSRN. Here is the abstract:
 
What do government police do and how does one measure whether if what they are doing is beneficial (i.e. engage in a cost-benefit analysis, absent market competition, profit and loss, and a price mechanism). Unlike private defense, government (or public) police are in the business, not of defending people from criminals, but in enriching themselves and enlarging their budgets and bureau size. The following essay will use an economic analysis of state police, what their incentives are, how they operate, some measurement problems, why the war on drugs exist and how civil asset forfeiture lead to the militarized police state that we have today.

October 9, 2018 | Permalink | Comments (0)

Monday, October 8, 2018

"First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history"

Doug Berman has this post at Sentencing Law & Policy:

A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act.  The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. Stitt.  

October 8, 2018 | Permalink | Comments (0)

"How Face ID could be a game-changer for aggressive US border agents"

From Ars Technica, via the NACDL news scan:

We concocted a scenario in which an American iPhone XS owner was crossing into the United States at an international airport from abroad. She gets taken aside for secondary screening. Her phone is confiscated. Under questioning across a table, an aggressive agent holds up the iPhone XS in front of her.

"Is this your phone?" the agent asks, facing the screen toward her. She looks directly at the screen, and, as Face ID is enabled, the phone unlocks—even though the traveler is sitting a few feet away and hasn’t touched her phone since it was seized. The agent then swipes up to reach the home screen and has access to most of the personal data on her phone. (In short, basically everything except Apply Pay or Keychain password data. That would require a second Face ID unlock or the passcode.)

October 8, 2018 | Permalink | Comments (0)

Lott on The U.S. Share of Mass Public Shootings

A paper on mass public shootings by Adam Lankford (2016) has received massive national and international media attention, getting coverage in the New York Times, the Wall Street Journal, plus hundreds of other news outlets spanning at least 35 different countries. Lankford’s claim was that over the 47 years from 1966 to 2012, an enormous amount of the world’s mass public shooters -- 31% -- occurred in the United States. Lankford attributed this to America’s gun ownership.

Lankford claims to have “complete” data on such shooters in 171 countries. However, because he has neither identified the cases nor their location nor even a complete description on how he put the cases together, it is impossible to replicate his findings.

It is particularly important that Lankford share his data because of the extreme difficulty in finding mass shooting cases in remote parts of the world going back to 1966. Lack of media coverage could easily lead to under-counting of foreign mass shootings, which would falsely lead to the conclusion that the U.S. has such a large share.

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October 8, 2018 | Permalink | Comments (0)

Bergelson on Rape by Fraud

Vera Bergelson (Rutgers Law School - Newark) has posted Chapter Eight: Sex, Lies, and Law: Rethinking Rape-by-Fraud (in: Consent and Control: Legal Perspectives on State Power (Cambridge Scholars Publishing) (2016)) on SSRN. Here is the abstract:

Recent cases in the US and abroad (UK and Israel in particular) have brought to the academic and public attention the question of whether criminal law should punish an individual who has obtained his partner’s sexual consent by fraudulent statements or actions.

Traditionally, sexual consent has been held invalid in cases of fraud in the factum. In cases of fraud in the inducement, on the other hand, consent has not been deemed vitiated. This distinction has been criticized: after all, if A would not have consented to sex with B but for B’s deception, why does it matter what kind of deception it was?

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October 8, 2018 | Permalink | Comments (0)

Sunday, October 7, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Tinder Lies

Hofstra University - Maurice A. Deane School of Law
285
2.

The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

The University of North Dakota
148
3.

Online Child Sexual Exploitation: Towards an Optimal International Response

Bournemouth University - School of Computing
108
4.

Lies, Deceit, and Bullshit in Law

Brooklyn Law School
106
5.

America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis

Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences
104
6.

Twenty Years of Web Scraping and the Computer Fraud and Abuse Act

Boston University School of Law
70
7.

Ipeelee and the Duty to Resist

University of Ottawa - Civil Law Section and University of Ottawa - Faculty of Law
62
8.

Robot Criminals

Yale University, Law School
61
9.

Sex Offenders, Custody and Habeas

University of Cincinnati - Blue Ash
56
10.

Con Men and Their Enablers: The Anatomy of Confidence Games

University of Arizona and Perkins Coie LLP
54

October 7, 2018 | Permalink | Comments (0)

Saturday, October 6, 2018

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Prosecuting Corporate Crime When Firms Are Too Big to Jail: Investigation, Deterrence, and Judicial Review

Yale Law School
180
2.

The Power of Prosecutors

William & Mary Law School
177
3.

Artificial Intelligence and Role-Reversible Judgment

University of Connecticut - School of Law and University of Oklahoma - College of Law
129
4.

Prosecuting in the Shadow of the Jury

New York University School of Law
128
5.

The Confluence of Factors Doctrine: A Holistic Approach to Wrongful Convictions

Northeastern University - School of Law
124
6.

Artificial Intelligence and Policing: Hints in the Carpenter Decision

University of California, Davis - School of Law
106
7.

Allocating Authority between Lawyers and Their Clients after McCoy v. Louisiana

Independent, Stanford University, Yale Law School and Independent
79
8.

Gas Chromatography-Mass Spectrometer (GC/MS): In Scientific Evidence, Even 'Gold Standard' Techniques Have Limitations

University of California, Davis and University of California, Davis - School of Law
79
9.

Autonomy Isn’t Everything: Some Cautionary Notes on McCoy v. Louisiana

Cornell University - School of Law
73
10.

Spin Doctors: Prosecutor Sophistry and the Burden of Proof

Independent
66

October 6, 2018 | Permalink | Comments (0)

Friday, October 5, 2018

Kleck on Donahue et al. on Right-to-Carry Laws and Violent Crime

Gary Kleck (Florida State University - College of Criminology and Criminal Justice) has posted A Critique of Donohue et al. (2018) Analysis of RTC Laws on SSRN. Here is the abstract:
 
John Donohue and colleagues recently assessed the impact of "right-to-carry" (RTC) laws on crime rates. These laws make it easier to get a carry permit. Donohue et al. claim that their analysis indicates that, contrary to what nearly all other researchers have found, these laws increase violent crime. This paper presents a critical analysis of the research by Donohue et al., and shows that their conclusions are unwarranted.

October 5, 2018 | Permalink | Comments (0)

Shamas on Coercion of Informants

Diala Shamas (Center for Constitutional Rights) has posted an abstract of A Nation of Informants: Reining in Post-9/11 Coercion of Intelligence Informants (83 Brook. L. Rev. 1175 (2018)) on SSRN. Here is the abstract:
 
This article challenges the adequacy of the existing legal and regulatory framework governing informant recruitment and coercion practices to protect fundamental rights, informed by the Muslim-American experience. It looks at the growing law enforcement practice of recruiting informants among Muslim-American communities for intelligence gathering purposes. Although the coercion of law-abiding individuals to provide information to federal law enforcement agencies for intelligence gathering purposes implicates significant rights, it is left unregulated. Existing, albeit limited, restraints on the government agents’ ability to coerce individuals to provide information either assume a criminal context, or are driven by historical concerns over FBI corruption. As the U.S. government engages in widespread surveillance of Muslim-American communities, it relies heavily on recruiting members of those communities as informants. These individuals are targeted for their community ties, or their religious or linguistic knowledge — and not because of any nexus they might have to criminal activity. This has led FBI agents to search for coercive levers outside of the criminal process and that have far fewer procedural protections — namely, immigration and watch-listing authorities. Thus, existing protections that have evolved to prevent civil rights violations in the criminal informant context — limited as those protections may be — do not apply. In light of these expanding authorities and the significant rights at stake, this article makes several proposals that would regulate the recruitment of intelligence informants.

October 5, 2018 | Permalink | Comments (0)

Thursday, October 4, 2018

Gupta-Kagan on Reevaluating School Searches

Josh Gupta-Kagan (University of South Carolina School of Law) has posted Reevaluating School Searches Following School-to-Prison Pipeline Reforms (Fordham Law Review, Vol. 87, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved searches, likening SROs to school officials and drawing a line between SROs and other police officers.

Reforms largely enacted in the 2010s, in contrast, draw a line between school officials and SROs, emphasizing that SROs are law enforcement officers, not school disciplinarians. Reflecting the consensus that law enforcement responses to school misbehavior harm children, these reforms limit SRO involvement to more serious crimes or immediate safety risks.

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October 4, 2018 | Permalink | Comments (0)