CrimProf Blog

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

Wednesday, November 25, 2015

Hallevy on Criminal Liability for Artificial Intelligence Entities

Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted AI v. IP - Criminal Liability for Intellectual Property IP Offenses of Artificial Intelligence AI Entities on SSRN. Here is the abstract:

Most legal systems protect IP rights through criminal law, amongst various legal protections. This legal situation reflects the society's wide interest in protecting IP rights. When IP rights are violated, and the violation fulfils the basic requirements of the relevant offense, the society may indict the violator, regardless the violator's identity (corporation or human). But what if the violator is an AI entity?

Most modern AI entities do have the technological capability of violating IP rights. Illegal copying of software is a common example. Could the AI entity itself be criminally liable, beyond the criminal liability of the manufacturer, end-user or owner, and beyond their civil liability? The proposed research suggests the examination of a positive answer. Using the current definitions of criminal liability, the imposition of criminal liability upon AI entities for committing IP offenses is quite feasible. The proposed research suggests feasible solutions for sentencing AI entities as well.

November 25, 2015 | Permalink | Comments (0)

Tuesday, November 24, 2015

"Chicago Officer Charged in Death of Black Teenager"

From The New York Times:

The charges against Officer Jason Van Dyke, 37, come more than a year after the shooting, but only days after a judge ordered Chicago officials to release the video from the shooting, captured by a dashboard camera in a police car. The judge had ruled that the video, described by some who have seen it as graphic and deeply disturbing, must be released by Wednesday.

. . .

Dan Herbert, a lawyer for Officer Van Dyke, has said the officer, a 14-year police veteran, believed the shooting was justified because he feared for his safety. Mr. Herbert said his client intended to go to trial.

Ms. Alvarez said she was not aware of a Chicago officer previously being charged with murder for an on-duty incident.

November 24, 2015 | Permalink | Comments (0)

Jackson et al. on Communicating the Results of Forensic Science Examinations

Graham Jackson , David H. Kaye , Cedric Neumann , Anjali Ranadive and Valerie F. Reyna (Abertay University, Dundee , Pennsylvania State University, Penn State Law , South Dakota State University , SciLawForensics, Ltd and Cornell University) have posted Communicating the Results of Forensic Science Examinations (Final Technical Report for NIST Award 70NANB12H014 (Cedric Neumann, Anjali Ranadive & David H. Kaye eds.), 2015) on SSRN. Here is the abstract:

During the 20th century, forensic scientists traditionally relied on heuristic techniques to analyze and compare forensic science evidence that can help link a suspect or defendant to the location or victim of a crime. They commonly reported categorical opinions on the evidence in courts. Drawing on developments in forensic statistics and DNA evidence, legal and scientific scholars have pressed forensic scientists to measure the validity and reliability of their techniques and to evaluate and quantify the weight of the evidence in each case in a fair, balanced and transparent fashion. A successful transition from an opinion-based system to one in which measurements are more quantitative and opinions are supported by statistical analyses requires investigating the nature of forensic inference processes and the findings of cognitive psychology on how to best convey scientific information to decision makers.

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November 24, 2015 | Permalink | Comments (0)

Skinner-Thompson on Outing Privacy

Scott Skinner-Thompson has posted Outing Privacy (Northwestern University Law Review, Vol. 110, No. 1, 2015) on SSRN. Here is the abstract:

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right.

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November 24, 2015 | Permalink | Comments (0)

Kennedy on Mental State Defences in Nineteenth Century Scotland

Chloe Kennedy (University of Edinburgh - School of Law) has posted 'Ungovernable Feelings and Passions': Common Sense Philosophy and Mental State Defences in Nineteenth Century Scotland (Edinburgh Law Review volume 20(3), September 2016 (Forthcoming)) on SSRN. Here is the abstract:

During the nineteenth century, changing conceptions of mental disorder had profound implications for the way that criminal responsibility was conceived. As medical writers and practitioners increasingly drew attention to the complexities of insanity, the grounds on which mentally abnormal offenders could be excused began to seem unduly restrictive. By way of a contribution to our understanding of this development, this article examines how the growing disparity unfolded in Scotland. I argue that the requirements of the insanity defence, as set out within judicial directions, reflect core facets of Scottish Common Sense philosophical thought, including Thomas Reid’s view of human agency and understanding of ‘common sense’. Building on this contention, I suggest that Scottish Common Sense philosophy played an important role in the development of Scottish mental state defences more broadly, and can provide an original interpretation of the way the doctrines of provocation and diminished responsibility changed during this era.

November 24, 2015 | Permalink | Comments (0)

Monday, November 23, 2015

"In France, Some See the Police Security Net as Too Harsh"

From The New York Times:

All over France, from Toulouse in the south to Paris and beyond, the police have been breaking down doors, conducting searches without warrants, aggressively questioning residents, hauling suspects to police stations and putting others under house arrest.

The extraordinary steps are now perfectly legal under the state of emergency decreed by the government after the attacks on Nov. 13 in Paris that left 130 dead — a rare kind of mobilization that will continue. The French Parliament last week voted to extend the emergency for another three months, which means more warrantless searches, more interrogations, more people placed under house arrest.

November 23, 2015 | Permalink | Comments (0)

"California narcotics detective arrested on bribery and drug charges"

From Jurist:

[JURIST] Narcotics detective Damacio Diaz of theBakersfield Police Department (BPD) [official website] in California wasarrested [press release] on Friday on charges[indictment, PDF] of bribery, drug trafficking, obstruction and filing false tax returns. The 16-count indictment, announced by US Attorney Benjamin B. Wagner [official profile] in charge of the investigation, claims that Diaz, "in exchange for bribes from the dealer, provided the dealer with intelligence on law enforcement practices and activities, disclosed the names and identities of police informants, tipped the dealer off as to police investigations and attempted to provide the dealer protection from search, seizure, arrest and prosecution." The indictment goes on to also charge him with "bribery, retaining seized narcotics on multiple occasions for his own unlawful gain, disclosing contents of a wiretap investigation and two counts of filing false tax returns." Diaz plead not guilty [Reuters report] to all charges in federal court on Friday and was released on $200,000 bond. He faces a potential sentence of life in prison if convicted.

Diaz, 43, gained fame recently after he was portrayed in the Disney film McFarland, USA[IMDb] earlier this year.

November 23, 2015 | Permalink | Comments (0)

Shniderman & Solberg on Reducing Crime and Recidivism Through Cognitive Intervention

Adam B. Shniderman and Lauren B. Solberg (Texas Christian University and University of Florida College of Medicine) have posted Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention (Neuroethics, December 2015, Volume 8, Issue 3, pp 315-326) on SSRN. Here is the abstract:

Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime. A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system. For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population. Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders. However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention. This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.

November 23, 2015 | Permalink | Comments (0)

Howe on Public Defending

Howe scottScott Howe (Chapman University, The Dale E. Fowler School of Law) has posted The Perilous Psychology of Public Defending (2015 Journal of the Professional Lawyer pp. 157-175) on SSRN. Here is the abstract:

This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of certain guilty offenders, such as murderers or child molesters, but to representation of those who claim to be innocent and especially those who actually seem to be innocent, where a full-blown defense, through trial, would be expected to require an extraordinary commitment of time and effort from an overtaxed public defender.

November 23, 2015 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads

Ssrn logoin criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank Downloads Paper Title
1 369 Big Data and Tax Haven Secrecy
Arthur J. Cockfield
Queen's University - Faculty of Law
Date posted to database: 6 Oct 2015 
2 277 The Future of Parole Release: A Ten-Point Reform Plan
Edward Rhine, Joan Petersilia andKevin R Reitz
Ohio State University (OSU) - Department of Sociology, Stanford University and University of Minnesota Law School
Date posted to database: 11 Oct 2015[3rd last week]
3 232 How Federal Judges Contribute to Mass Incarceration and What They Can Do About It
Lynn Adelman and Jon Deitrich
U.S. District Court - Eastern District of WI and United States District Court, Milwaukee
Date posted to database: 4 Nov 2015 [new to top ten]
4 230 Do Ammunition Background Checks Reduce Murder Rates?
Clayton E. Cramer
College of Western Idaho
Date posted to database: 29 Oct 2015 [6th last week]
5 200 Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of 'Affirmative Consent' in the ALI's Draft Sexual Assault Provisions
Kevin Cole
University of San Diego School of Law
Date posted to database: 8 Oct 2015 [8th last week]
6 194 Background Checks for Firearms Sales and Loans: Law, History, and Policy
David B. Kopel
Independence Institute
Date posted to database: 26 Sep 2015 [9th last week]
7 186 Dismantling the School-to-Prison Pipeline: Tools for Change
Jason P. Nance
University of Florida Levin College of Law
Date posted to database: 9 Oct 2015 [new to top ten]
8 186 The Uncomfortable Truths and Double Standards of Bribery Enforcement
Mike Koehler
Southern Illinois University School of Law
Date posted to database: 28 Oct 2015 [10th last week]
9 169 Johnson v. United States and the Future of the Void-for-Vagueness Doctrine
Carissa Byrne Hessick
University of Utah - S.J. Quinney College of Law
Date posted to database: 21 Sep 2015 [new to top ten]
10 169 An Appraisal of the Administration of Criminal Justice Act, 2015
Reason Emma Abajuo
Date posted to database: 26 Sep 2015 [new to top ten]

November 23, 2015 | Permalink | Comments (0)

Green on The Conceptual Utility of Malum Prohibitum

GREEN,-STUARTStuart P. Green (Rutgers, The State University of New Jersey - School of Law-Newark) has posted The Conceptual Utility of Malum Prohibitum (Dialogue: The Canadian Philosophical Review, p. 39, 2015) on SSRN. Here is the abstract:

For retributivists, who believe that criminal sanctions should be used to punish only conduct that is blameworthy, the so-called mala prohibita offenses have always been a source of concern: When the conduct being criminalized is wrongful prior to and independent of its being illegal - as it is with presumptive mala in se offenses like murder and rape - the path to blameworthiness is relatively clear. But when the wrongfulness of the conduct depends on the very fact of its being illegal - as is said to be the case with presumptive mala prohibita offenses like fishing without a license and buying drugs without a prescription - the argument in favor of criminalization becomes more difficult to sustain. Unless one believes that law-breaking as such is morally wrongful, criminal penalties would seem hard to justify. That, in any event, is the standard liberal, retributivist view. As I shall argue, however, things are considerably more complicated than this account would suggest. No offense, at least in the real world, is wholly malum in se or wholly malum prohibitum. Rather, the concepts of malum in se and malum prohibitum should be understood as contrasting, scalar qualities that all criminal offenses, to one degree or another, possess. Under such a conception, an offense could be, say, 80 percent malum in se and 20 percent malum prohibitum, or 20 percent malum in se and 80 percent malum prohibitum. Thinking about malum in se and malum prohibitum in this way can help us make a more precise assessment of the moral content of criminal offenses, taking account of the various ways in which law and legal institutions inform their moral content, the reasons people obey such laws, and what it means to “obey” the law in the first place.

November 23, 2015 | Permalink | Comments (1)

Joy & McMunigal on Innocent Defendants Pleading Guilty

Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis - School of Law and Case Western Reserve University School of Law) have posted Innocent Defendants Pleading Guilty (30 Crim. Just. 45 (Spring 2015)) on SSRN. Here is the abstract:

United States District Judge Jed Rakoff recently wrote an interesting and timely article in the New York Review of Books highlighting the risk of innocent defendants pleading guilty and offering a proposal aimed at reducing this risk. (Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. BOOKS, NOV. 20, 2014). Judge Rakoff recommends changing the Federal Rules of Criminal Procedure to allow federal magistrate judges to participate in plea negotiations early in criminal cases just as they now participate in settlement negotiations in civil cases. In this column we examine the reasons why we share Judge Rakoff’s concern and offer an assessment of his proposal.

November 23, 2015 | Permalink | Comments (1)

Boyle on Employing Trafficking Law to Cult Leaders

Boyle robinRobin Boyle (St. John's University - School of Law) has posted Employing Trafficking Laws to Capture Elusive Leaders of Destructive Cults on SSRN. Here is the abstract:

In the 1970’s and 80’s in the United States, American newspapers raised public awareness about cults. Capturing headlines were articles about women, and later men, who followed Charles Manson to the extreme length of committing “Helter Skelter,” a cold-blooded killing spree. Cults continued to exist, out of sight and unobserved, until each next tragic occurrence when they would again be the topic of a news story. Even when cults did not achieve “front-page” status in the news, they continued to recruit adults and raise children born into the group.

Because cults are undocumented and do not appear in our census, it is difficult to estimate how many are in the United States today. Estimates range from 2,500 to 8,000 cults in the United States, with their membership ranging from a few individuals to tens of thousands in any given cult. According to the International Cultic Studies Association (“ICSA”), an organization that monitors cults and provides education and counseling, approximately 2,500,000 Americans have joined cultic groups since the 1970s.

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November 23, 2015 | Permalink | Comments (0)

Sunday, November 22, 2015

Friedman on Race and Stop, Question & Frisk Policing

Matthew Friedman (New York University (NYU) - Brennan Center for Justice) has posted The Role of Race in Police Interdictions: Evidence from the New York Police Department's Use of Stop, Question & Frisk Policing on SSRN. Here is the abstract:

This paper investigates the impact taste-based racial preferences have on police officers' selection of suspects for interdiction. Using data provided by the New York Police Department I estimate that African-American suspects are less likely than their white counter parts to be found in possession of contraband when searched by police, a finding that is consistent with racially biased policing within the model of police-suspect interaction this paper puts forth.

I report two novel results. First, this paper identifies suspect responses to interrogation as a previously unresearched channel through which race can disproportionally affect the probability police will correctly select guilty suspects for searches. It also shows that the relative (to Caucasians) probability that police recover contraband from an African-American suspect diminishes with spatial proximity to areas where African-Americans are stopped most intensively. My paper shows this finding to be consistent with racially-differentiated suspect responses to intensive policing, making it the first to positively associate racial disparities in policing intensity with differential suspect behavior.

November 22, 2015 | Permalink | Comments (0)

Saturday, November 21, 2015

Saunders et al. on Psychological Indicators of Support for Stop-and-Frisk

Ben Saunders , Noah Paul Cohen , Elspeth Kelly and Christopher Guarino (Long Island University - Brooklyn , Icahn School of Medicine at Mount Sinai , Long Island University and Long Island University) on Right-Wing Authoritatianism and Social Dominance Orientation Indirectly Predict Support for New York City's Stop-&-Frisk Policy Through Prejudice (Current Psychology, 2015) on SSRN. Here is the abstract:

Until very recently, the New York City Police Department’s Stop, Question, and Frisk policy (i.e., Stop-&-Frisk) allowed NYPD officers to legally stop and detain New Yorkers under the suspicion that they may be involved in criminal activity. Previous research found that New Yorkers’ attitudes toward Stop-&-Frisk were generally mixed, and the current study tested whether authoritarianism, preferences for inequality, and prejudice predicted support for Stop-&-Frisk. One hundred forty-eight New York City college students reported their levels of right-wing authoritarianism (RWA), social dominance orientation (SDO), prejudice, and support for the NYPD’s Stop-&-Frisk policy. Both RWA and SDO had indirect effects through prejudice on support for Stop-&-Frisk. Limits and possible future developments of this research are discussed.

November 21, 2015 | Permalink | Comments (0)

Friday, November 20, 2015

Ehrenberg on Less Evidence, Better Knowledge

Kenneth M. Ehrenberg (University of Alabama - Department of Philosophy) has posted Less Evidence, Better Knowledge (McGill Law Journal, Vol. 60, No. 2, p 173-214, 2015) on SSRN. Here is the abstract:

In his 1827 work Rationale of Judicial Evidence, Jeremy Bentham famously argued against exclusionary rules such as hearsay, preferring a policy of “universal admissibility” unless the declarant is easily available. Bentham’s claim that all relevant evidence should be considered with appropriate instructions to fact finders has been particularly influential among judges, culminating in the “principled approach” to hearsay in Canada articulated in R. v. Khelawon. Furthermore, many scholars attack Bentham’s argument only for ignoring the realities of juror bias, admitting universal admissibility would be the best policy for an ideal jury. This paper uses the theory of epistemic contextualism to justify the exclusion of otherwise relevant evidence, and even reliable hearsay, on the basis of preventing shifts in the epistemic context. Epistemic contextualism holds that the justification standards of knowledge attributions change according to the contexts in which the attributions are made. Hearsay and other kinds of information the assessment of which rely upon fact finders’ more common epistemic capabilities push the epistemic context of the trial towards one of more relaxed epistemic standards. The exclusion of hearsay helps to maintain a relatively high-standards context hitched to the standard of proof for the case and to prevent shifts that threaten to try defendants with inconsistent standards.

November 20, 2015 | Permalink | Comments (1)

Henning on Deterrence in Sentencing of White-Collar Defendants

Henning peterPeter J. Henning (Wayne State University Law School) has posted Is Deterrence Relevant in Sentencing White-Collar Defendants? (61 Wayne Law Review 27 (2015)) on SSRN. Here is the abstract:

This article is part of the Wayne Law Review symposium “Sentencing White-Collar Defendants: How Much Is Enough?” held in October, 2014. The article looks at the primary justification for imposing punishment on a defendant convicted of a crime, which is deterrence of both the individual who committed the offense (special deterrence) and others similarly situated who will be dissuaded from pursuing similar misconduct (general deterrence). White-collar crimes are different from traditional street crimes, both in the type of conduct involved and the nature of the perpetrators. One would expect that well-educated individuals, the type of person who commits a white-collar crime, would be easily deterred from violations because of the penalties suffered by others and knowledge of the consequences that is communicated through sentences imposed on others in the same industry or profession. This article considers whether that message is heard because most white-collar offenses occur in seemingly unique circumstances, at least from the defendant’s point of view, and the person rarely expects to be caught, or may even believe that the conduct is not a crime. The real value of deterrence is in keeping judges from succumbing to the impulse to view white-collar defendants as offenders who, having many good qualities, should not suffer any significant punishment. Deterrence does not so much stop future crimes but acts as a means to inform judges about the need to impose punishments that do not let white-collar defendants use their social status and other resources to avoid the consequences of violations.

November 20, 2015 | Permalink | Comments (0)

O'Brien et al. on Race in Capital Charging and Sentencing

Barbara O'Brien , Catherine M. Grosso , George G. Woodworth and Abijah Taylor (Michigan State University - College of Law , Michigan State University - College of Law , University of Iowa - Department of Statistics & Actuarial Science and Michigan State University - College of Law) have posted Untangling the Role of Race in Capital Charging and Sentencing in North Carolina, 1990-2009 (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

The North Carolina Racial Justice Act (RJA) provided that a defendant may state a claim for relief based on statistical evidence of discrimination in capital charging and sentencing decisions. This paper reports the methodology and findings of a McCleskey-style study of capital charging and sentencing decisions in North Carolina between 1990 and 2009. The findings reported here show that white victim cases and black defendant/black victim cases pull strongly in the opposite direction in these decisions. The primary model analyzing death sentencing among all death-eligible cases shows that — even after controlling for multiple measures of culpability — cases with at least one white victim face odds of receiving a death sentence that are 2.17 times the odds faced by all other cases (p < .001). The evidence further suggests that this effect arises primarily in the charging decisions of prosecutors, where prosecutors systematically disregard cases in which black defendants kill black victims. The odds of a black defendant/black victim case advancing to a capital trial are 2.6 times lower than the odds faced by all other cases (p < .001). Juries were significantly less likely to impose a death sentence in the few white defendant/black victim cases (odds ratio 0.19, p < .05); without these cases, analysis of penalty trial decisions does not identify race effects. We do not find evidence of discrimination against black defendants generally or against black defendants who kill white victims specifically.

At the bottom line, although this study refines the methodology used in previous studies of charging and sentencing in North Carolina, its results echo their conclusions. Our findings are also largely consistent with the broad trends identified in capital charging and sentencing studies across many jurisdictions in the 25 years since McCleskey. This lends credibility to our conclusion that despite ongoing protestations to the contrary, race plays a significant in charging and sentencing decisions.

November 20, 2015 | Permalink | Comments (0)

Lerner on Life Without Possibility of Parole

Lerner_craigCraig S. Lerner (George Mason University School of Law) has posted Who's Really Sentenced to Life Without Parole?: Searching for 'Ugly Disproportionalities' in the American Criminal Justice System (Wisconsin Law Review, Vol. 2015, No. 5, pp. 789-862, Forthcoming) on SSRN. Here is the abstract:

Critics argue that the American criminal justice system is rife with “ugly disproportionalities” and “brutal penalties on the undeserving.” One particularly brutal punishment is the sentence of life without the possibility of parole (LWOP). The punishment, conceived decades ago as a substitute for the death penalty, scarcely exists in the rest of the world. Today, while capital punishment wanes in the United States, steadily increasing numbers of defendants are sentenced to LWOP. Furthermore, according to a recent ACLU Report, over 3,000 of the 50,000 inmates serving LWOP were convicted of nonviolent offenses. There is no uglier disproportionality than a defendant, guilty of a minor crime, banished to prison for the remainder of his life.

This Article questions this narrative and therewith the contemporary wisdom as to the brutality of American criminal justice, at least in its imposition of LWOP sentences.

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November 20, 2015 | Permalink | Comments (0)

"Feds secretly bugged courthouse grounds to eavesdrop on private conversations, motion says"

From the ABA Journal. In part:

With the OK of the Department of Justice and FBI lawyers, the government made the warrantless recordings with electronic bugs hidden in a planter, a wall-mounted metal sprinkler box and vehicles parked near an entrance to the San Mateo County courthouse in Redwood City, the defendants allege. This violated the defendants’ Fourth Amendment rights, says a motion to suppress (PDF) filed Friday in the San Francisco federal court case.

November 20, 2015 | Permalink | Comments (0)