CrimProf Blog

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

Monday, August 6, 2018

Bonnie on Mental Illness, Severe Emotional Distress and the Death Penalty

Bonnie_richard_0Richard J. Bonnie (University of Virginia - School of Law) has posted Mental Illness, Severe Emotional Distress and the Death Penalty: Reflections on the Tragic Case of Joe Giarratano (Washington and Lee Law Review, Vol. 73:3, 2016) on SSRN. Here is the abstract:
 
Joe Giarratano was on death row for twelve years, and remains incarcerated today, because mental illness and severe emotional distress wholly undermined reliable adjudication in his case. Using Joe’s remarkable story as a case study, I illustrate some of the ways in which mental illness and acute emotional distress can lead to unreliable findings and judgments and—even worse—can actually propel the criminal justice system toward a death sentence. I cover the unreliability of his confession, his impaired ability to assist counsel, his impaired capacity to make a rational decision regarding whether to initiate or continue post-conviction proceedings, his diminished mental responsibility at the time of the alleged offenses if he actually committed them, and an issue that fortunately never arose—his competence to be executed.

August 6, 2018 | Permalink | Comments (0)

Sunday, August 5, 2018

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security

University of Texas School of Law and University of Maryland Francis King Carey School of Law
1,141
2.

Brief Amicus Curiae of Gail Heriot and Peter N. Kirsanow, Members of the United States Commission on Civil Rights, in Support of Petitioner in Randy Joe Metcalf V. United States (Cert Stage)

University of San Diego School of Law and Independent
163
3.

Behavioral Law and Economics - Introduction

Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law
126
4.

Why Is It Wrong To Punish Thought?

University of Michigan Law School
111
5.

Immigration and Crime and the Criminalization of Immigration

University of California - Irvine - Department of Sociology, California State University, Los Angeles - Department of Sociology and California State University, Los Angeles - Department of Sociology, Students
73
6.

Sanctions for Acts or Sanctions for Actors

University of Virginia School of Law
71
7.

The Institutional Design of Punishment

University of California Hastings College of the Law
68
8.

Sexual Consent and Disability

UC Davis School of Law
62
9.

Congress Has Not Created an Inferior Office of Special Counsel Since 1999

Northwestern University - Pritzker School of Law
48
10.

Impeachment As Punishment

Harvard Law School
41

August 5, 2018 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.

Initial Reactions to Carpenter v. United States

University of Southern California Gould School of Law
334
2.

The Hidden Law of Plea Bargaining

Harvard Law School
307
3.

Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct

United States Attorney's Office - Eastern District of Tennessee
226
4.

Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence

Northwestern University - Pritzker School of Law and Minnesota Court of Appeals #315B
153
5.

Procedural Justice and Risk-Assessment Algorithms

Yale Law School
97
6.

It's Not a Match: Why the Law Can't Let Go of Junk Science

Lewis & Clark Law School and Oregon Innocence Project
84
7.

Procedural Justice in Transnational Contexts

University of California, Berkeley, School of Law and University of California, Berkeley - Human Rights Program
79
8.

Gideon Incarcerated: Access to Counsel in Pre-Trial Detention

Loyola University New Orleans College of Law
79
9.

Democratic Policing Before the Due Process Revolution

University of Iowa College of Law
75
10.

Policing the Smart City

University of California, Davis - School of Law
74

August 5, 2018 | Permalink | Comments (0)

Friday, August 3, 2018

Root on the FCPA

Root veronicaVeronica Root (Notre Dame Law School) has posted The Outsized Influence of the FCPA (2018 Illinois Law Review __ (2018) (Forthcoming)) on SSRN. Here is the abstract:
 
The current power and influence of the Foreign Corrupt Practices Act (“FCPA”) is really quite remarkable when one considers the statute was largely ignored for its first twenty-five years of existence. This statute, meant to reign in corruption by United States companies doing business abroad; has generated billions of dollars in revenue for the United States government; prompted the development of law firm practice groups and law school courses; become the subject of numerous scholarly articles; and has, arguably, made anti-bribery efforts the highest of priorities for multinational corporations engaged in robust compliance efforts. Corporations, scholars, and the public would be silly to discount the importance of understanding and maintaining compliance with the FCPA and its international counterparts.

Continue reading

August 3, 2018 | Permalink | Comments (0)

Bublitz on Neuro-Rehabilitation

Christoph Bublitz (Universität Hamburg) has posted 'The Soul is the Prison of the Body' – Mandatory Moral Enhancement, Punishment & Rights Against Neuro-Rehabilitation (David Birks & Thomas Douglas (eds). Treatment for Crime: Philosophical Essays on Neurointerventions in Criminal Justice. Oxford University Press, 2018) on SSRN. Here is the abstract:
 
The promise of neurobiological interventions that afford improving pro-social behavior is particularly interesting for criminal justice systems. After all, rehabilitation of offenders is one of their central objectives. This raises the question whether states can deploy such means to rehabilitate offenders against the latters’ will, as part of – or instead of – punishment. Some advocates of compulsory treatments of offenders consider them more humane (and effective) than current forms of hard treatment such as incarceration. This chapter critically engages with suggestions to treat legally competent offenders for rehabilitative purposes against their will by emphasizing two aspects: First, strong human rights of offenders – summarily the right to mental self-determination – oppose mandatory interventions into criminogenic psychological states or processes.

Continue reading

August 3, 2018 | Permalink | Comments (0)

Thursday, August 2, 2018

Karteron on Seizures and Force in Schools

Karteron alexisAlexis Karteron (Rutgers, The State University of New Jersey - Rutgers Law School) has posted Arrested Development: Rethinking Fourth Amendment Standards for Seizures and Uses of Force in Schools (Nevada Law Journal, Vol. 18, No. 3, 863, 2018) on SSRN. Here is the abstract:
 
Fourth Amendment standards regarding seizures and uses of force against juveniles in schools require a critical reassessment. Although jurists and scholars have paid it scant attention, this branch of Fourth Amendment doctrine offers a valuable lens for understanding the school-to-prison pipeline and the power of law enforcement officers to detain, handcuff, and use force against schoolchildren. While the Supreme Court has announced principles regarding the Fourth Amendment in schools generally, it has never addressed this issue directly.

Continue reading

August 2, 2018 | Permalink | Comments (0)

Schauer on Sanctions for Acts or for Actors

Schauer-fredFrederick Schauer (University of Virginia School of Law) has posted Sanctions for Acts or Sanctions for Actors on SSRN. Here is the abstract:
 
As a number of modern sexual misconduct cases demonstrate, often there are multiple charges against a single individual under circumstances in which the proof of an individual charge may fall short of the required standard of proof, but in which it is clear – overwhelmingly, or beyond a reasonable doubt – that at least one of the charges is true, even if we cannot be sure which one. Building on earlier work by myself and Richard Zeckhauser, by Alon Harel and Ariel Porat, and by Ariel Porat and Eric Posner, among others, this paper, prepared for the World Congress on Evidential Reasoning at the University of Girona, offers a sympathetic examination of sanction imposition – in and out of formal legal proceedings – on the basis of aggregate probabilities, and addresses a series of common objections. And the paper suggests that the greatest value of aggregating low (or lower) probability charges may be greatest outside of the official judicial process. It hints as well, although inconclusively, at the larger question of why the law focuses on acts when it is imposing sanctions, rather than focusing on the actors who may have committed those acts
 

August 2, 2018 | Permalink | Comments (0)

Esberg & Mummolo on Misperceptions of Crime

Jane Esberg and Jonathan Mummolo (Stanford University and Princeton University) have posted Explaining Misperceptions of Crime on SSRN. Here is the abstract:
 
Promoting public safety is a central mandate of government. But despite decades of dramatic improvements, most Americans believe crime is rising—a mysterious pattern that may pervert the criminal justice policymaking process. What explains this disconnect? We test five plausible explanations: survey mismeasurement, extrapolation from local crime conditions, lack of exposure to facts, partisan cues and the racialization of crime. Cross-referencing over a decade of crime records with geolocated polling data and original survey experiments, we show individuals readily update beliefs when presented with accurate crime statistics, but this effect is attenuated when statistics are embedded in a typical crime news article, and confidence in perceptions is diminished when a copartisan elite undermines official statistics. We conclude Americans misperceive crime because of the frequency and manner of encounters with relevant statistics. Our results suggest widespread misperceptions are likely to persist barring foundational changes in Americans’ information consumption habits, or elite assistance.

August 2, 2018 | Permalink | Comments (0)

Weber on Game of Thrones

Weber davidDavid P. Weber (Creighton University - School of Law) has posted The Laws of the First Men and Those That Followed: Legal Structures in a Game of Thrones on SSRN. Here is the abstract:
 
For as long as we humans have recorded our existence, we have developed rules to govern our affairs. It is not surprising then that the rule of law predominates not only our own life, but also that of those worlds that only exist on paper or the screen. Generally, the more complex the society, the more complex the rules it has developed to govern it. The more you read of Game of Thrones, the more you realize you are reading about our society, our mores, our evolving rules and standards, and most especially about power and who wields it. The laws of this society of dragons, magic, and treachery at times feel shockingly different from our own, but many more similarities exist than we may prefer to acknowledge. Broad themes such as a border-length wall to keep out [the] Others, the abolishment of slavery, effective criminal procedures, and the very structure of the political system itself whether through a democracy, aristocracy, plutocracy or theocracy abound. This paper will look at significant legal topics such as political and legal structures, criminal law and procedure, and, briefly, immigration law, and will examine the applicable rules, laws and customs for each in the world of A Song of Ice and Fire. In addition, this paper will highlight stark differences and startling similarities to many of our current laws and customs demonstrating the underpinnings of what binds us together and makes us a society.

August 2, 2018 | Permalink | Comments (0)

Hundtofte & Rantala on Residential Real Estate and Money Laundering

Sean Hundtofte and Ville Rantala (Federal Reserve Bank of New York and University of Miami) have posted Anonymous Capital Flows and U.S. Housing Markets on SSRN. Here is the abstract:
 
Prior to 2016, all-cash purchases of residential real estate were a key loophole in US anti-money-laundering (AML) regulations. Beginning in January 2016, the Department of the Treasury announced orders requiring the owners of LLCs purchasing high-end residential real estate to identify themselves to authorities. We use a new detailed transactional dataset to identify all-cash purchases by corporate entities before and after the introduction of this new AML policy, and thus estimate the size and impact of anonymity-seeking capital on U.S. housing markets. We first find that all-cash purchases by corporate entities form approximately 10% of the dollar volume of housing purchases in our sample prior to the change in policy. After anonymity is no longer freely available to domestic and foreign investors, all-cash purchases by corporations fall by approximately 70%, indicating the share of anonymity-seeking investors using LLCs as “shell corporations.” Testing for potential distortionary market impacts, we find subsequent declines in luxury house prices in counties targeted by the policy relative to untargeted counties. Our findings are relevant to the (mis)measurement of international net investment flows, and to understanding a demand for anonymity that may impact certain asset classes (art, cryptocurrencies) regardless of their risk/reward characteristics.

August 2, 2018 | Permalink | Comments (0)

Wednesday, August 1, 2018

Sage & Laurin on Criminalization, Medicalization, and Poverty

William M. Sage and Jennifer E. Laurin (University of Texas at Austin School of Law and University of Texas School of Law) have posted If You Would Not Criminalize Poverty, Do Not Medicalize it (Journal of Law, Medicine, and Ethics, Forthcoming) on SSRN. Here is the abstract:

A growing number of health policy scholars argue, with strong empirical support, that U.S. social policy is substantially over-medicalized. Having observed in recent decades that American society tends to criminalize that which it does not medicalize, we suspect that the measurably harsh consequences of criminalizing poverty offer cautions for its continued medicalization. The American moral and economic ideal of self-sufficiency unavoidably links poverty, criminality, and infirmity. Juxtaposing medicalization and criminalization reveals the ambiguities of “opportunity” when capacity is compromised, and the consequent tension between liberty and welfare as the core objective of policy. Indeed, past reformers made arguments for a positive role of criminal justice in the relief of poverty that are similar to those aired in the healthcare context today. Ultimately, however, we urge policymakers to disconnect the relief of poverty from medical care as much as possible -- not only to avoid further disadvantaging the poor, but also to encourage investment in unadorned benefits to poorer Americans that have greater potential, particularly at the local level, to build trust and cooperation without the economic and social mischief that has accompanied the medical model.

August 1, 2018 | Permalink | Comments (0)

Covey and Misconduct and Suspect Evidence

Covey_RussellRussell D. Covey (Georgia State University College of Law) has posted Suspect Evidence and Coalmine Canaries (American Criminal Law Review, Vol. 55, 2018) on SSRN. Here is the abstract:
 
In recent years, it has become increasingly obvious that certain types of evidence commonly used in serious criminal cases, including microscopic hair comparison, bitemark comparison, and jailhouse informants, are deeply unreliable. For those close to the system, this is not likely all that surprising. Few with even a passing understanding of forensic practice would be have been shocked to learn that bite-mark evidence, for instance, is untrustworthy. The thesis of this paper is that use of formally admissible but facially unreliable evidence is an indicator that something might be amiss in the case. This study explores the hypothesis that use of certain types of unreliable evidence – such as jailhouse informants – acts as evidentiary “canaries in the coalmine,” indicating overly aggressive and potentially improper police and prosecutorial conduct. 

To test this hypothesis, the study uses data drawn from the National Registry of Exonerations database and from published cases available in online databases to examine correlations between various factors associated with wrongful convictions and indications of official misconduct.

Continue reading

August 1, 2018 | Permalink | Comments (0)

Medwed on Witness Preparation by Prosecutors

Medwed danielDaniel S. Medwed (Northeastern University - School of Law) has posted Coaxing, Coaching, and Coercing: Witness Preparation by Prosecutors Revisited (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
 
Witness preparation is a staple of good trial practice for prosecutors. A single ineffective or unprepared witness might imperil an otherwise airtight case. Yet there is a line between readying witnesses for trial and “coaching” them in a way that perverts their testimony. As the Supreme Court proclaimed more than 40 years ago, “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” The line between proper discussion and improper influence can be hard to discern. And for prosecutors, the most powerful players in our criminal justice system, the inability to toe this line can lead to the conviction of innocent defendants. 

Bennett Gershman has thought deeply about these issues, as is his wont. Using his 2002 article on the topic of witness coaching as a launching pad, this Article will take a renewed look at the ethics of witness preparation by prosecutors.

August 1, 2018 | Permalink | Comments (0)

Bonnie on Competence for Criminal Adjudication

Bonnie_richard_0Richard J. Bonnie (University of Virginia - School of Law) has posted Competence for Criminal Adjudication: The Emerging Significance of Decisional Competence on SSRN. Here is the abstract:
 
The practice of assessing and adjudicating competence for criminal adjudication in the United States developed largely without assistance from the U.S. Supreme Court or other appellate courts for most of the nineteenth and twentieth centuries. However, the need for appellate guidance became evident in the 1980s, especially regarding the significance of mental or emotional conditions that can impair capacity for rational decision-making. In a series of articles in the early 1990s, I called attention to emerging issues regarding “decisional competence” and speculated about possible approaches for resolving them. During the past twenty-five years, some governing principles have come into view, but important issues remain unresolved. After a brief review of the historical and conceptual foundations of the competence requirement, the article focuses on two decisions in which the Supreme Court has addressed decisional competence.

Continue reading

August 1, 2018 | Permalink | Comments (0)

cummings on Reforming Policing

Cummings andreandré douglas pond cummings (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Reforming Policing (10 Drexel Law Review 573 (2018)) on SSRN. Here is the abstract:

Law enforcement killing of unarmed black men and police brutality visited upon minority citizens continues to confound the United States. Despite protests, clarion calls for reform, admitted training shortcomings and deficiencies among U.S. law enforcement officers, conferences, summits, and movements to reform policing, the solution to ending undisciplined police violence and the hostile killings of unarmed minority individuals at the hands of U.S. police seems to elude us. Why should this be? The United States is home to some of the most creative, innovative, pathmarking, and course-changing thinkers the world has ever known. This challenge — police killing of unarmed minority citizens and law enforcement brutality — could be one that this nation can solve; that is, if there is a political and moral will to do so.

This article proposes a radical restructuring of United States law enforcement policies, procedures, and applications in order to address this critical challenge.

Continue reading

August 1, 2018 | Permalink | Comments (0)

Tuesday, July 31, 2018

Brennan-Marquez on Very Broad Laws

Kiel Brennan-Marquez has posted Very Broad Laws on SSRN. Here is the abstract:
 
Very broad laws offend due process. Like linguistic indeterminacy, breadth has the capacity to deprive ordinary people of fair notice about how the legal system is likely to respond to their conduct. Accordingly, the Fifth and Fourteenth Amendments, echoing ancient rule-of-law principles, impose limits on legislative authority to enact very broad laws. Those limits are forgiving; just as it would be unwise (and perhaps impossible) to banish all vagueness and ambiguity from law, so legislators have considerable latitude to enact broad statutes. But limits do exist, if only at the outer reaches — and they should be enforced. 

The problem has not been lost on courts. But their response, to date, has been to treat breadth as a species of linguistic indeterminacy, confusing analogy for identity.

Continue reading

July 31, 2018 | Permalink | Comments (0)

Jimeno-Bulnes on Brexit and European Criminal Law

Mar Jimeno-Bulnes (University of Burgos - Faculty of Law) has posted Brexit and the Future of European Criminal Law: A View From Spain (Crim Law Forum (2017) 28:325-347) on SSRN. Here is the abstract:
 
The UK public took a momentous decision when they voted to leave the EU in a referendum on 23 June 2016. As is well known, the UK has, since the entry into force of the Treaty of Lisbon on 1 December 2009, occupied a special position in relation to the Area of Freedom, Security and Justice (ELSJ, Title V TFEU). The Treaty introduced fundamental changes to the field of EU Criminal Law, from which the UK had been sheltered through the opt in/opt out clauses as well as the ‘emergency brakes’ solution. This singular arrangement for the UK after having signed the Treaty of Lisbon might, to some extent, have foreshadowed the present situation of Brexit, the consequences of which for EU Criminal Law are foreseen in this paper from a Spanish perspective. It presents an analysis of what the alternatives to the current relationships between Spain and UK could be in the future outside the EU framework, nevertheless while seeking to benefit from the improvements previously established through European institutions and instruments. In this context, three different areas are addressed: the natural framework through the relations that will inevitably exist with European agencies and institutions; the procedural framework in the area of judicial recognition through the application of the principle of mutual recognition; and, the framework in relation to procedural rights through the application of the principle of the approximation of laws. Finally, some brief remarks outline conclusions on a situation that is still unfolding.

July 31, 2018 | Permalink | Comments (0)

Harker on The Myth of Widespread Prosecutorial Misconduct

Timothy Harker (United States Attorney's Office - Eastern District of Tennessee) has posted Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct (Tennessee Law Review, Vol. 85, No. 4, 2018) on SSRN. Here is the abstract:
 
Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct—the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. The article also proffers a few explanations for the persistence of the myth that prosecutorial misconduct is endemic, discusses various problems related to the criminal justice system that are improperly attributed to prosecutors, and evaluates a few well-intentioned but misguided proposals intended to remedy prosecutorial misconduct.

July 31, 2018 | Permalink | Comments (0)

Mendlow on Punishing Thoughts

Gabriel Mendlow (Mendlow gabriel(University of Michigan Law School) has posted Why Is It Wrong To Punish Thought? (Yale Law Journal, Vol. 127, p. 2342, 2018) on SSRN. Here is the abstract:
 
It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained.

Continue reading

July 31, 2018 | Permalink | Comments (0)

Monday, July 30, 2018

Feldman on Regulating Human Behavior

Yuval Feldman (Bar-Ilan University, Israel) has published The Law of Good People: Challenging States' Ability to Regulate Human Behavior with Cambridge University Press. From the publisher's description:

Currently, the dominant enforcement paradigm is based on the idea that states deal with 'bad people' - or those pursuing their own self-interests - with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that 'good people' are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a 'law of good people' that should be read by scholars and policymakers around the world.

July 30, 2018 | Permalink | Comments (0)