CrimProf Blog

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

Wednesday, December 6, 2017

Gallagher & Fisher on Traffic Cameras

Justin Gallagher and Paul J. Fisher (Case Western Reserve University - Weatherhead School of Management and University of Arizona) have posted Criminal Deterrence When There are Offsetting Risks: Traffic Cameras, Vehicular Accidents, and Public Safety on SSRN. Here is the abstract:
 
Numerous cities have enacted electronic monitoring programs at traffic intersections in an effort to reduce the high number of vehicle accidents. The rationale is that the higher expected fines for running a red light will induce drivers to stop and lead to fewer cross-road collisions. However, the cameras also incentivize drivers to accept a greater accident risk from stopping. We evaluate the termination of a monitoring program via a voter referendum using 12 years of geo-coded police accident data. We find that the cameras changed the composition of accidents, but no evidence of a reduction in total accidents or injuries.

December 6, 2017 | Permalink | Comments (0)

Rapping on Public Defenders

Rapping jonathanJonathan Rapping (Atlanta's John Marshall Law School) has posted Public Defenders: The Vanguard of Redemption (A Tribute to David Bodiker) on SSRN. Here is the abstract:
 
In this annual David Bodiker lecture, Professor Rapping urges students and young lawyer to find purpose in the law. The lecture illustrates the power of lawyers to address society's most pressing challenges through an exploration of the role of public defenders in driving criminal justice reform.

December 6, 2017 | Permalink | Comments (0)

Tuesday, December 5, 2017

The President and Obstruction of Justice

The New York Times has two pieces:

December 5, 2017 | Permalink | Comments (0)

"Microsoft Challenged the Wrong Law. Now What?"

Orin Kerr has this post at LawFare. In part:

The Supreme Court recently agreed to hear an important electronic privacy case, United States v. Microsoft, on whether Microsoft has to comply with a United States search warrant for email stored by Microsoft on a server in Ireland. I’m going to explain in this post why I think the case comes to the court with a major problem. Specifically, Microsoft brought its challenge under the wrong statute. Microsoft is challenging its compliance under the Stored Communications Act (SCA), but it should be challenging its compliance under the All Writs Act (AWA).

The difference is important. Microsoft's focus on the Stored Communications Act leaves the Supreme Court with no good options. From a perspective of policy, you wouldn't want either rule that Microsoft's framing sets up. Had the challenge been brought under the All Writs Act, however, the court could use traditional interpretive principles to craft a sensible rule in the case. This post explains how.

December 5, 2017 | Permalink | Comments (0)

"Why New York City Created Its Own Fund to Bail People Out of Jail"

From CityLab, via the NACDL news scan:

Whiteside is part of a program that may seem counterintuitive. The Liberty Fund, created by the City of New York, sets free some of the very people that the city’s municipal judges have deemed a flight risk.

. . .

But the fund, which actually relies on money from a private donor for the bail costs, is one of several initiatives by the city to disassemble the bail system from the inside. New York City doesn’t get to make policy about bail—it doesn’t have the authority to decide whether to abolish or reform the criminal courts’ monetary policy for holding people in jail before they face trial. So, instead, the city has created a program that works within a system it wants to eradicate.

December 5, 2017 | Permalink | Comments (0)

Bazargan-Forward on Complicity

Saba Bazargan-Forward (UC San Diego) has posted Complicity (Routledge Handbook on Collective Intentionality, Eds. Marija Jankovic, Kirk Ludwig. Routledge University Press, 2017) on SSRN. Here is the abstract:
 
Complicity marks out a way that one person can be liable to sanctions for the wrongful conduct of another. After describing the concept and role of complicity in the law, I argue that much of the motivation for presenting complicity as a separate basis of criminal liability is misplaced; paradigmatic cases of complicity can be assimilated into standard causation-based accounts of criminal liability. But unlike others who make this sort of claim I argue that there is still room for genuine complicity in the law and in morality. In defending this claim, I sketch an approach to complicity which grounds our liability for what others do not in our causal relation to their actions but in our “agency-relations” with others. In such cases, one agent can be liable for the wrongs of second agent to the extent that first authorizes the second to act at her behest. This approach fills the gap where standard causation-based accounts of complicity fail – especially in where several agents cooperatively contribute to an overdetermined harm.

December 5, 2017 | Permalink | Comments (0)

Engel et al. on Order of Proof

Christoph EngelAndreas Glöckner and Sinika Timme (Max Planck Institute for Research on Collective Goods, Max Planck Institute for Research on Collective Goods and University of Göttingen) have posted Defendant Should Have the Last Word – Experimentally Manipulating Order and Provisional Assessment of the Facts in Criminal Procedure on SSRN. Here is the abstract:

From a normative perspective the order in which evidence is presented should not bias legal judgment. Yet psychological research on how individuals process conflicting evidence suggests that order could matter. The evidence shows that decision-makers dissolve ambiguity by forging coherence. This process could lead to a primacy effect: initial tentative interpretations bias the view on later conflicting evidence. Or the process could result in a recency effect: the evidence presented last casts decisive light on the case. In two studies (N1 = 221, N2 = 332) we test these competing hypotheses in a mock legal case. Legal orders sometimes even expect judges to provisionally assess the evidence. At least they have a hard time preventing this from happening. To test whether this creates or exacerbates bias, in the second dimensions, we explicitly demand experimental participants to express their leaning, after having seen half of the evidence. We consistently observe recency effects and no interactions with leanings. If the legal order wants to preempt false convictions, defendant should have the last word.

December 5, 2017 | Permalink | Comments (0)

Owusu-Bempah on Hate Crime

Abenaa Owusu-Bempah (London School of Economics - Law Department) has posted Hate Crime and the Legal Process: Options for Law Reform on SSRN. Here is the abstract:
 
Hate crime is a priority area for the Government and policymakers. Among other initiatives to tackle and respond to hate crime, the Government published hate crime ‘action plans’ in 2012 and 2016, the Law Commission completed a project on hate crime legislation in 2014, and, in 2017, the Crown Prosecution Service published new public statements on how it prosecutes hate crime. Public awareness of hate crime has also grown, particularly since the 2016 EU referendum which led to a huge spike in the number of hate crimes reported to the police.

More generally, following the referendum, there have been reports of increased levels of anxiety and fear among minority groups and marginalised communities. But what happens when a hate crime is reported to the police? How effectively does the law (and legal professionals) respond to allegations of hate crime? This Briefing Paper presents findings from a 24-month empirical study on the operation of hate crime legislation. These findings indicate that significant reform is necessary to ensure justice for both victims and defendants in hate crime cases.

December 5, 2017 | Permalink | Comments (0)

Lewis on Lay Participation in Criminal Trials in Taiwan

Lewis margaretMargaret K. Lewis (Seton Hall University - School of Law) has posted Who Shall Judge? Taiwan's Exploration of Lay Participation in Criminal Trials (Human Rights Performance of Taiwan – Self-Inclination and International Context: Edited by William P. Alford, Jerome A. Cohen, & Chang-fa Lo (Springer, 2018 Forthcoming)) on SSRN. Here is the abstract:
 
International human rights law does not demand lay participation in criminal trials. The International Covenant on Civil and Political Rights provides that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law” but does not dictate the composition of the tribunal. In recent years, Taiwan has tussled with the extent to which public access to observing trials should transform into direct public participation in the outcome of those trials. To date, however, the role that lay people will serve in the adjudication process remains contested. As Taiwan moves towards formulating a specific plan for lay participation, this chapter questions whether proponents of lay participation are expecting too much of proposed reforms and encourages greater focus on how lay participation could impact the rights of the accused.

December 5, 2017 | Permalink | Comments (0)

Monday, December 4, 2017

Law & Mills on Financial Advisors with Criminal Records

Kelvin Law and Lillian F. Mills (Nanyang Technological University (NTU) and University of Texas at Austin - McCombs School of Business) have posted Do Financial Gatekeepers Under-Protect Investors? Evidence from Criminal Background Checks on SSRN. Here is the abstract:
 
2.6% of financial advisors have criminal records, half of which are for felonies. This paper examines whether the hiring of financial advisors with pre-existing criminal records poses higher risks for investors than hiring those without. Financial advisors with pre-advisor criminal records are more likely to receive future customer complaints. Their complaints are more likely to receive arbitration awards or settlements and are more likely to involve large settlements exceeding $100,000. Our results flag financial advisors with pre-existing criminal records as high-risk individuals, especially when the crimes were recent, and even when the advisors were not convicted. Regulators appear to underestimate the risk of these advisors. Investors also should demand greater protection when dealing with their advisory firms, even if their own advisors have no criminal records, as firms that hire advisors with criminal records are more likely to have their licenses canceled or be expelled from the securities industry.

December 4, 2017 | Permalink | Comments (2)

Donnelly-Lazarov on Intention

Bebhinn Donnelly‐Lazarov (University of Surrey - Faculty of Management & Law) has posted an abstract of Intention in Criminal Law: The Challenge from Non‐Observational Knowledge (Ratio Juris, Vol. 30, Issue 4, pp. 451-470, 2017) on SSRN. Here is the abstract:
 
Intention is at the heart of criminal law. If it is not the mens rea requirement found most often in offences, it is still the standard against which other grades of fault tend relatively to be judged. It has generated much controversy, as the crucial question, "Did the defendant intend X?" is resistant to clear answers. This paper argues that intention‐questions are difficult because intention is not the thing law takes it to be: Importantly, contrary to law's assumptions, it is neither a state of mind nor is it connected in an exclusive manner to the reasons for which we act.

December 4, 2017 | Permalink | Comments (0)

Lynch on Sentencing Youth for Murder

Nessa Lynch (Victoria University of Wellington - Faculty of Law) has posted Manifest Injustice? The Judiciary as Moderator of Penal Excess in the Sentencing of Youth for Murder ((2018) 57 The Howard Journal of Crime and Justice) on SSRN. Here is the abstract:
 
This paper considers the principled approach to the sentencing of young people, requiring the recognition of the lesser capacity and culpability of the offender due to their personal characteristics. The author uses New Zealand as a case study to discuss whether, and how, judges would exercise this discretion for young people convicted of murder. This paper focuses on a jurisdiction which combines a highly punitive adult justice system and a tolerant, progressive youth justice system.

December 4, 2017 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
250
2.

Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability

Vanderbilt University - Law School
176
3.

Corpus Linguistics as a Tool in Legal Interpretation

Brooklyn Law School and Hofstra University
166
4.

The Challenges of Prediction: Lessons from Criminal Justice

Georgetown University Law Center
164
5.

Decoding Guilty Minds

Court of Federal Claims - Office of Special Masters, University of Minnesota Law School, University of Virginia - School of Law, Second Judicial District Court Judge, State of Colorado, Vanderbilt University - Law School & Dept. of Biological Sciences and University of California, Irvine School of Law
146
6.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
126
7.

The Real Law of Virtual Reality

Stanford Law School and University of California, Los Angeles (UCLA) - School of Law
118
8.

A New Mens Rea for Rape: More Convictions and Less Punishment

Boston College - Law School
85
9.

White Paper of Democratic Criminal Justice

Northwestern University - Pritzker School of Law, Willamette University College of Law, Wayne State University Law School, University of Illinois College of Law, University of Virginia School of Law, Australian National University (ANU) - Research School of Social Sciences (RSSS), Northwestern University - Pritzker School of Law, University of Stirling, Bowling Green State University, Northwestern University - Pritzker School of Law
78
10.

How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of ‘A Condition Analogous to That of a Slave’ in Modern Brazil

University of Michigan Law School, CEFOR (Center for Continuing Education and Professional Development) - Chamber of Deputies and UFMG
73

December 4, 2017 | Permalink | Comments (0)

Sunday, December 3, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402

The George Washington University Law School
1,319
2.

Understanding 'Sanctuary Cities'

University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School
257
3.

The Idea of 'The Criminal Justice System'

Vanderbilt University - Law School
249
4.

State Criminal Appeals Revealed

Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students
138
5.

Why Civil and Criminal Procedure Are So Different: A Forgotten History

University of Wisconsin Law School
138
6.

Criminal Justice, Inc.

University of Chicago Law School
129
7.

What Not to Do When Your Roommate Is Murdered in Italy: Amanda Knox, Her 'Strange' Behavior, and the Italian Legal System

Emory University School of Law
125
8.

Fourth Amendment Fairness

University of California, Los Angeles (UCLA) - School of Law
90
9.

Immigration Defense Waivers in Federal Criminal Plea Agreements

University of Texas at Austin - School of Law, University of Texas School of Law and University of Texas at Austin - School of Law
84
10.

Blank Slates

University of Utah - S.J. Quinney College of Law
78

December 3, 2017 | Permalink | Comments (0)

Saturday, December 2, 2017

Next week's criminal law/procedure argument

Issue summaries are from ScotusBlog, which also links to papers:

Wednesday

  • Marinello v. U.S.: Whether a conviction under 26 U.S.C. 7212(a) for corruptly endeavoring to obstruct or impede the due administration of the tax laws requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action.

December 2, 2017 | Permalink | Comments (0)

Friday, December 1, 2017

"DOJ Issues New Guidelines on FCPA"

Ellen Podgor has this post at White Collar Crime Prof Blog, linking to and excerpting Rod Rosenstein's remarks regarding the guidelines. From the excerpt:

We expect that these adjustments, along with adding the FCPA Corporate Enforcement Policy to the U.S. Attorneys’ Manual, will incentivize responsible corporate behavior and reduce cynicism about enforcement.

December 1, 2017 | Permalink | Comments (0)

Smith on Criminal Proceeding in the New Zealand Supreme Court

A. T. H. Smith (Victoria University of Wellington - Faculty of Law) has posted Criminal Proceedings in the New Zealand Supreme Court: The First Ten Years (Eds A Stockleyand M Littlewood, The New Zealand Supreme Court – the First Ten Years (2015)) on SSRN. Here is the abstract:
 
In this paper, the author presents some overarching observations about the progress of criminal proceedings over the lifespan of the newly minted New Zealand Supreme Court. This includes examining the difference between the Crimes Act 1961, as a mature code of substantive criminal law, and the unsettled laws of evidence and procedure. This paper discusses how New Zealand has deviated from the common law of crime by adopting a Criminal Code, and the subsequent effect on decisions of the courts.

December 1, 2017 | Permalink | Comments (0)

Analyses of the Carpenter oral argument

ScotusBlog collects various commentaries here.

December 1, 2017 | Permalink | Comments (0)

"North Carolina’s plan to stymie judges who waive fines and fees"

From The Marshall Project, via the NACDL news scan:

The law is believed to be the first of its kind in the country. It runs counter to reform efforts in other states that are attempting to reduce the number of people jailed because they are unable to pay fines or fees or make bail.

. . .

North Carolina’s new law would not explicitly prohibit waivers for the poor, but would throw up a serious impediment, requiring judges to give 15 days notice to all affected agencies before issuing a waiver.In North Carolina, that would be a lot of notices. An offender in the state is subject to a vast array of fees, from $5 for being arrested to $200 for failing to appear.

The state charges a fee of $7.50 to underwrite the police and sheriff retirement funds and a fee of up to $40 a day for taking up space in jail. Perhaps inevitably, there is a $50 fee for failing to pay a fee.

December 1, 2017 | Permalink | Comments (1)

Thursday, November 30, 2017

Humphreys on Sports Betting Regulation

Brad R. Humphreys (West Virginia University - Department of Economics) has posted An Overview of Sports Betting Regulation in the United States on SSRN. Here is the abstract:
 
The United States employs an ad hoc, unconventional method of regulating sports betting, banning it almost everywhere while granting a monopoly to firms in a single state, Nevada. This approach encourages illegal sports betting markets, ignores negative externalities, and generates welfare losses among the large population of responsible recreational gamblers. I review the current state of sports betting regulation in the U.S. and assess its economic viability in advance of the Supreme Court of the United States decision on the landmark Christie v. National Collegiate Athletic Association case.

November 30, 2017 | Permalink | Comments (0)