CrimProf Blog

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

Wednesday, September 5, 2018

Simmons on Children Witnessing Parental Arrest and Detainment

Tiffany SimmonsBahiyyah M. Muhammad and Kasandra Dodd (Government of the District of Columbia - Department of Corrections, Howard University and Government of the District of Columbia - D.C. Human Trafficking Task Force) have posted The Cost of the Government's Failure to Protect Children Witnessing Parental Arrest and Detainment (American University Business Law Review, Vol. 7, No. 2, p. 199, 2018) on SSRN. Here is the abstract:
 
The purpose of this Article is to explore the failure of law enforcement to safeguard children of detained and arrested parents. It draws upon interviews with children of incarcerated parents who witnessed the arrest and/or detainment of their loved one, as well as interviews with the arrested and/or detained parents. It also provides critical analysis of the laws that have been created to protect and serve these young citizens following the arrest or detainment of their parents or guardians. The strength of the Article rests in its interdisciplinary approach and ability to address failures of the law and those who enforce it.

September 5, 2018 | Permalink | Comments (0)

Steinbert on Morphed Child Pornography

Stacey Steinberg (University of Florida - Levin College of Law) has posted Changing Faces: Morphed Child Pornography and the First Amendment (Emory Law Journal, 2019) on SSRN. Here is the abstract:
 
Technology has changed the face of child pornography. The Supreme Court has held that child pornography harms a child both in the creation of the image and the circulation of the image, and thus has ruled that the possession and distribution of child pornography falls outside the realm of First Amendment protections. However, today’s images depicting child pornography do not always depict an actual child engaged in a pornographic act. Instead, some images depicting child pornography are “morphed images.” Morphed child pornography is created when the innocent image of a child is combined with a separate, sexually explicit image, usually of an adult. The children depicted in these images were not harmed in the creation of the image, as they were not photographed while engaging in a sexual or obscene act. Nevertheless, the circulation of these images harms children. The distribution, or potential distribution, is damaging to the depicted child’s emotional well-being and reputation. Furthermore, these morphed images could cause additional harm to other children, as pedophiles use child pornography to groom future victims. In response to the changing face of child pornography and the harms associated with it, Congress enacted the PROTECT Act, which bans morphed images like the ones described above.

Continue reading

September 5, 2018 | Permalink | Comments (0)

Ocen on Incapacitating Motherhood

Priscilla A Ocen Ocen-Priscilla-2017(Loyola Law School Los Angeles) has posted Incapacitating Motherhood (51 U.C. Davis Law Review 2191) on SSRN. Here is the abstract:
 
Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country. Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world. Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

Continue reading

September 5, 2018 | Permalink | Comments (0)

Bown on Binary Classification

William Cullerne Bown has posted The Criminal Justice System as a Problem in Binary Classification (Forthcoming in the International Journal Evidence & Proof, October 2018) on SSRN. Here is the abstract:

Attempts to establish a quantitative framework for thinking about the criminal justice system have been made at least since Kaplan’s influential 1968 article. Here I avoid the probabilistic approaches that Kaplan inspired and instead characterize the law’s underlying problem as one of measurement. I then exploit statistical techniques developed in recent years in other disciplines to evaluate systems that also face the challenge of “binary classification” to solve it. This approach entails the mathematization of the criminal justice system’s core epistemic concern of distinguishing the guilty from the innocent with Van Rijsbergen’s F-measure and empirical measurements of effectiveness. Once one adopts the perspective of a sovereign, it yields a meta-meta-epistemology that allows traditional arguments like those that refer to Blackstone’s ratio to be made rigorous. This provides a clearer relationship between values and policies and, in a narrowly epistemic sense, a complete answer to questions of evidence and procedure.

September 5, 2018 | Permalink | Comments (0)

Tuesday, September 4, 2018

Gohara on Reform During the Trump Era

Miriam Gohara (Yale Law School) has posted Keep On Keeping On: Maintaining Momentum for Criminal Justice Reform During the Trump Era (Stanford Journal of Civil Rights and Civil Liberties, Vol. XIV, No. Special Issue, 2018) on SSRN. Here is the abstract:
 
This paper suggests a way forward for criminal justice reform in the Trump era. To borrow a phrase from civil rights workers who put their bodies on the line to dismantle Jim Crow, criminal justice progressives seeking to dismantle mass incarceration need to “keep on keeping on.” They must remain aware of threats to their momentum, while maintaining steadfast commitment to their missions. A three-point strategy provides a useful, though by no means exhaustive, framework for progress: First, reward, replicate, and expand bipartisan reform efforts at the local level; second, maintain a reform agenda that addresses violent crime; and third, engage crime victims and formerly incarcerated people as co-architects of a new framework for justice.

September 4, 2018 | Permalink | Comments (0)

Hu on Robot Criminals

Ying Hu has posted Robot Criminals (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:
 
When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is not rendered redundant by the latter. It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action. Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots. Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.

September 4, 2018 | Permalink | Comments (0)

Cooper on Stop and Frisk

Frank Rudy Cooper (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted A Genealogy of Programmatic Stop and Frisk: The Discourse-to-Practice Circuit (University of Miami Law Review, Vol. 73, Forthcoming) on SSRN. Here is the abstract:
 
President Trump has called for increased use of the recently predominant policing methodology known as programmatic stop and frisk. One of this article’s contributions to the field is its identification of five key components of the practice: (1) administrator-mandated (2) pervasive Terry stops and frisks (3) aimed at crime prevention by means of (4) profiles of suspects that (5) target young racial minority men.

Whereas some scholars see programmatic stop and frisk as solely the product of individual police officer bias, this article argues for understanding how we arrived at any specific police practices by analyzing three levels of social activity. The macro level of analysis is that of broad social discourses, the meso level involves both criminological policy advocacy and criminal procedure doctrines, and the micro level is where police departments engage in specific practices.

Continue reading

September 4, 2018 | Permalink | Comments (0)

Bagaric et al. on Mitigating Sentencing for Childhood Physical and Sexual Abuse

Mirko Bagaric, Gabrielle Wolf and Peter Isham (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Deakin Law School and Northwestern University, School of Law, Students) have posted Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse (Stanford Law & Policy Review, Vol. 30, No. 1, Forthcoming) on SSRN. Here is the abstract:
 
People who lack guidance when they are young have an increased risk of committing crimes. The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior. Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime. The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration. Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions. In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty. We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain. There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing. Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity. Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes. Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans. This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.

September 4, 2018 | Permalink | Comments (0)

Perlin on Wexler and Therapeutic Jurisprudence

 
This article – a tribute to Professor David Wexler – explores how and why the idea of therapeutic jurisprudence first came to him, traces its early development, and contextualizes it in the changes in modern mental disability law in the 1980s. It then sketches out the core principles of this school of legal thought, and considers its expansion beyond mental disability law, both substantively (as it was applied to other areas of the law, some related to mental disability law, and some totally different), procedurally (considerations of how therapeutic jurisprudence methodologies could restructure all of the legal system, including the role of courts, legislatures, administrative agencies and lawyers), and professionally (as others beyond lawyers began to embrace it). Finally, it speculates as to the future, using as its fulcrum the just-created International Society of Therapeutic Jurisprudence.

September 4, 2018 | Permalink | Comments (0)

Robinson & Robinson on Tragedy, Outrage, and Reform

Paul H. Robinson and Sarah Robinson (University of Pennsylvania Law School and Independent) have posted CRIMES THAT CHANGED OUR WORLD: TRAGEDY, OUTRAGE, AND REFORM: Chapter One: 1911 Triangle Factory Fire: Building Safety Codes (Rowman & Littlefield, 2018) on SSRN. Here is the abstract:
 
This first chapter of the recently published book Crimes That Changed Our World: Tragedy, Outrage, and Reform, examines the process by which the tragic 1911 Triangle Factory Fire provoked enormous outrage that in turn created a local then national movement for workplace and building safety that ultimately became the foundation for today’s building safety codes. What is particularly interesting, however, is that the Triangle Fire was not the worst such tragedy in its day. Why should it be the one that ultimately triggers social progress?

The book has 21 chapters, each of which traces the tragedy-outrage-reform dynamic in a different context: from the war on drugs to the militarization of police, from domestic violence reform to three-strikes sentencing, from the creation of professional medical examiners to the establishment of the 9-1-1 emergency system. As the concluding chapter of the project makes clear, the dynamic of progress has many moving parts not all of which are rational and predictable.

September 4, 2018 | Permalink | Comments (0)

Monday, September 3, 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
1,214
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
164
3.

Behavioral Law and Economics - Introduction

Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law
131
4.

Why Is It Wrong To Punish Thought?

University of Michigan Law School
111
5.

Sanctions for Acts or Sanctions for Actors

University of Virginia School of Law
83
6.

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
74
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
63
9.

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

Northwestern University - Pritzker School of Law
49
10.

Impeachment As Punishment

Harvard Law School
41

September 3, 2018 | Permalink | Comments (0)

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads
1.
University of Southern California Gould School of Law

Date Posted: 10 Jul 2018 

339
2.
Harvard Law School

Date Posted: 25 Jun 2018 

319
3.
United States Attorney's Office - Eastern District of Tennessee

Date Posted: 24 Jul 2018 

235
4.
Northwestern University - Pritzker School of Law and Minnesota Court of Appeals #315B

Date Posted: 22 Jun 2018 

154
5.
New York Law School and New York Law School

Date Posted: 02 Aug 2018 

145
6.
Lewis & Clark Law School and Oregon Innocence Project

Date Posted: 08 Jun 2018 

100
7.
Yale Law School

Date Posted: 22 Jun 2018 

99
8.
University of California, Berkeley, School of Law and University of California, Berkeley - Human Rights Program

Date Posted: 19 Jun 2018 

82
9.
Loyola University New Orleans College of Law

Date Posted: 19 Jun 2018 

80
10.
University of Iowa College of Law

Date Posted: 16 Jun 2018 

75

September 3, 2018 | Permalink | Comments (0)

Saturday, September 1, 2018

Soubise on French Guilty Pleas

Laurène Soubise (University of Warwick) has posted Guilty Pleas in an Inquisitorial Setting – an Empirical Study of France (Journal of Law and Society, Vol. 45, Issue 3, pp. 398-426, 2018) on SSRN. Here is the abstract:
 
Anglo‐American guilty pleas have inspired criminal justice reformers in many inquisitorially based systems in recent years, in response to caseload pressures. In France, two different procedures based on the defendant's confession were introduced in 1999 and 2004 respectively: an out‐of‐court disposal (the composition pénale) and a prosecution pathway (the comparution sur reconnaissance préalable de culpabilité). Basing its analysis upon direct observations and interviews with French public prosecutors, this article examines the impact of these procedures on the French criminal justice system and its actors. Rather than a move from an inquisitorial to a more adversarial system, data collected for this study show a bureaucratization of the French criminal justice process. The role of public prosecutors is changing from that of judicial officers to caseload managers who have delegated part of their workload to less qualified staff for efficiency purposes.

September 1, 2018 | Permalink | Comments (0)

Friday, August 31, 2018

Holzman et al. on Spillover Effects of Accounting Misconduct

Eric HolzmanBrian P. Miller and Brian Williams (The Ohio State University - Department of Accounting & Management Information Systems, Indiana University - Kelley School of Business - Department of Accounting and Indiana University - Kelley School of Business - Department of Accounting) have posted The Local Spillover Effect of Corporate Accounting Misconduct: Evidence from City Crime Rates on SSRN. Here is the abstract:
 
This study examines whether the revelation of corporate accounting misconduct in a community is associated with an increase in neighborhood crime. We find that the revelation of an Accounting and Auditing Enforcement Release (AAER) in a city is associated with a subsequent increase in neighborhood-level financially motivated crime (robberies, thefts, etc.). We provide evidence that the increase in crime is incremental to the inclusion of a number of economic controls, the addition of local fixed effects, and a matched sample analysis. 

Further, we find that the association between the revelation of an AAER and neighborhood financial crime is strongest in communities where: 

1) the misconduct is more salient to the local citizenry (i.e., smaller locations) and, 

2) in locations where there is greater income inequality. 

Further, we find that the crime rate is approximately 3.3% higher in the year after the revelation of an AAER and remains at an elevated level for three to four years. In sum, our evidence suggests that accounting misconduct in corporations can spillover to crime in the local community.

August 31, 2018 | Permalink | Comments (0)

Gershowitz on Convincing Ethical Prosecutors about Brady Problems

Adam M. Gershowitz (William & Mary Law School) has posted The Challenge of Convincing Ethical Prosecutors That Their Profession Has a Brady Problem (Ohio State Journal of Criminal Law, Vol. 15, 2018) on SSRN. Here is the abstract:
 
In recent decades, both the media and legal scholars have documented the widespread problem of prosecutors failing to disclose favorable evidence to the defense – so called Brady violations. Despite all of this documentation however, many ethical prosecutors reject the notion that the criminal justice system has a Brady problem. These prosecutors – ethical lawyers who themselves have not been accused of misconduct – believe that the scope of the Brady problem is exaggerated. Why do ethical prosecutors downplay the evidence that some of their colleagues have committed serious errors? 

This essay, in honor of Professor Bennett Gershman, points to what psychologists have termed social identity theory and ingroup bias. Under these concepts, people derive part of their identity and self-esteem from membership in social groups. When someone from the group is accused of misconduct, members of the ingroup are psychologically less able to recognize or accept that a group member has committed the misconduct. Social scientists have documented this phenomenon in children, sports fans, Democrats, Republicans, racial groups, and warring religious factions. 

Continue reading

August 31, 2018 | Permalink | Comments (0)

Kovarsky on State Postconviction Review

Lee Kovarsky (University of Maryland, Francis King Carey School of Law) has posted Structural Change in State Postconviction Review (93 Notre Dame Law Review 443 (2017)) on SSRN. Here is the abstract:
 
Sandwiched between a state criminal trial and a federal habeas corpus proceeding is a lesser-known phase of criminal process called “state postconviction review” (“State PCR”). Whereas trials and federal habeas process have been lavished with centuries of legal attention, State PCR is a younger phenomenon that has persisted in what one might call a state of malign neglect. There is no federal right to a state postconviction lawyer because there is no federal right to state postconviction process at all. Until recently, State PCR was a phase of criminal process that federal institutions (if not scholarship) virtually ignored. Without federal intervention, it languished as an underfunded afterthought.

State PCR is a backwater no longer. The major structural changes lurking beneath the surface of American criminal punishment continue to undermine the premise that a meaningful “day in court” takes place in a single proceeding.

Continue reading

August 31, 2018 | Permalink | Comments (0)

Bazelon on Innocence-Denying Prosecutors

Lara Abigail Bazelon (University of San Francisco - School of Law) has posted Ending Innocence Denying: Changing the Narrative About What it Means to Be a Good Prosecutor on SSRN. Here is the abstract:
 
Prosecutors, the most powerful actors in the criminal justice system, also have the most difficult job: they must be “ministers of justice.” A prosecutor’s core mission is to vindicate the truth, however messy and inconvenient, rather than strive to “win” by accumulating a track record of convictions. When evidence comes to light suggesting that a wrongful conviction has occurred, a prosecutor’s ethical obligation—that “justice shall be done”—requires admitting to a terrible mistake and working to undo it. Many conscientious prosecutors accept this responsibility and confess error. But too many do not. There is a select but significant class of prosecutors who are innocence deniers. Racially, ethnically, geographically, and politically diverse, they are Republicans and Democrats, men and women. What innocence deniers have in common is a mindset: they insist, in the face of overwhelming evidence to the contrary, that wrongfully convicted people are in fact guilty. These prosecutors actively work to delay justice or to deny it altogether. Some are so committed to adhering to the original mistake that they fail to prosecute the actual perpetrators, even when there is evidence to convict them. 

Continue reading

August 31, 2018 | Permalink | Comments (0)

Manta on Sexual Consent and Online Lies

Manta irinaIrina D. Manta (Hofstra University - Maurice A. Deane School of Law) has posted Tinder Lies (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:
 
The rise of Internet dating — in recent years especially through the use of mobile-based apps such as Tinder, Bumble, or Hinge — forces us to re-examine an old problem in the law: that of how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit. Indeed, according to some studies, about 80% of individuals lie on at least some part of their online dating profiles, and a subset of those individuals tell lies that undermine the foundation of their sexual mates’ subsequent ability to give consent. Whether or how to criminalize this type of fraudulent behavior has been debated for some time, and the difficulties involved in prosecutions in this context have made the criminal law a fairly ineffective tool. Previous proposals for tort recovery have failed to gain many adherents for similar reasons.

Continue reading

August 31, 2018 | Permalink | Comments (0)

Thursday, August 30, 2018

Ortman on Second-Best Criminal Justice

William Ortman (Wayne State University School of Law) has posted Second-Best Criminal Justice (Washington University Law Review, Forthcoming) on SSRN. Here is the abstract:
 
Criminal procedure reform can be understood as a “second-best” enterprise. The general theory of second best applies where an ingredient necessary for a “first-best” ordering is unattainable. That’s the contemporary criminal process. Our normative ideals of criminal justice require fair and frequent trials to judge guilt or innocence, but the criminal trial rate has been falling for at least a century; today it is vanishingly close to zero, and there’s no good reason to expect it to change course. That is unfortunate, but not catastrophic. What is catastrophic is how we’ve eliminated trials — by imbuing prosecutors with enough lever-age to coerce guilty pleas. Excessive prosecutorial leverage is the source of criminal procedure’s deepest pathologies. This Article argues that we should — at least as a thought experiment — begrudgingly accept a negligible trial rate as a fixed constraint on criminal procedure reform. Then we can proceed to the crucial question — whether there is a less destructive way to ensure a negligible trial rate.
There is: inefficiency.

Continue reading

August 30, 2018 | Permalink | Comments (0)

Offit on Prosecutors and Jurors

Anna Offit (New York University School of Law) has posted Prosecuting in the Shadow of the Jury (113 Nw. U. L. Rev. __ (2019, Forthcoming)) on SSRN. Here is the abstract:
 
This article offers an unprecedented empirical window into prosecutorial discretion drawing on long-term participatory research between 2013 and 2017. The central finding is that jurors play a vital role in federal prosecutors’ decision-making, professional identities, and formulations of justice. This is because even the remote possibility of lay scrutiny creates an opening for prosecutors to make common sense assessments of (1) the evidence in their cases, (2) the character of witnesses, defendants and victims, and (3) their own moral and professional character as public servants. By facilitating explicit consideration of the fairness of their cases from a public vantage point, I argue that imagined jurors serve as an ethical resource for prosecutors. Part I reviews contemporary legal and interdisciplinary research on the declining number of jury trials and prosecutorial discretion in the United States.

Continue reading

August 30, 2018 | Permalink | Comments (0)