CrimProf Blog

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

Thursday, September 24, 2015

"Daily Fantasy Sports and the Hidden Cost of America’s Weird Gambling Laws"

From The New York Times:

What I found is the strange hypocrisy and inconsistency around gambling that is embedded in United States law. The rules actively work against the interests of casual sports fans and low-stakes gamblers like me who just want to make the games more interesting.

The very complexity and opacity that make daily fantasy sports legal also make it more likely that the casual fan will lose money.

September 24, 2015 | Permalink | Comments (0)

"European Advocate General: transfer of EU user data violates privacy laws"

The story is at Jurist:

The advocate general of the European Court of Justice [official website] proclaimed [opinion; press release, PDF] on Wednesday that the copious amount of EU user data transferred to the US by various technology companies violates EU's data protection and rights to privacy laws. The Luxembourg court's advocate general Yves Bot suggested that the court do away with the "Safe Harbor" rules [backgrounder] that have spurred controversy in the wake of Edward Snowden's [BBC backgrounder] whistleblower situation from last year. US technology behemoths like Twitter, Facebook and Uber already have a huge presence in Europe so the amount of data being exchanged between the two constituencies is only increasing. The advocate general critiqued the commission for not uncovering how the Safe Harbor provisions were developed and for allowing data transfers to continue. The data transfers of EU citizen data to US mass surveillance systems goes against the EU's Charter of Fundamental Rights [official website].

September 24, 2015 | Permalink | Comments (0)

Khanna & Mahajan on Anticipatory Bail in India

Vikramaditya S. Khanna and Kartikey Mahajan (University of Michigan Law School and National Law University Jodhpur (NLUJ) ) have posted Anticipatory Bail in India: Addressing Misuse of the Criminal Justice Process? (Research Handbook on Comparative Criminal Procedure 2016 (Jacqueline Ross and Steven Thaman eds., Edward Elgar), Forthcoming) on SSRN. Here is the abstract:

Under the Criminal Law in India an individual can seek bail from a court before being arrested. This is referred to as “Anticipatory Bail” and although this does not prevent a criminal case from being filed or progressing through investigation and adjudication, it does prevent the individual from being taken into police custody. This novel concept is often justified on the grounds that it prevents the misuse of the criminal process by one party against its rivals or that it makes it more difficult to use the criminal process for extortion. This paper examines the development of this concept in India, its increasing use over the last few decades, and how it might operate as a window into the operations of the criminal investigation and adjudication processes in India. The paper also examines how this “corrective” compares to methods in other jurisdictions to address misuse of the criminal process and what alternatives or reforms might be considered to address the concerns associated with anticipatory bail in India.


September 24, 2015 | Permalink | Comments (0)

Lamparello on The Death Penalty

Lamparello adamAdam Lamparello (Indiana Tech - Law School) has posted Dead (and Innocent) Men Walking: Will Foster v. Chatman Mark the Beginning of the End for the Death Penalty? on SSRN. Here is the abstract:

The death penalty is a cancer on this country’s legal system, particularly its commitment to fairness, due process, and equal protection of the law. Whether it is the number exonerations, the mental illnesses and neurological disorders of inmates who are executed, the problems with lethal injection procedures, the ability of judges to Alabama to override a jury’s recommendation of life imprisonment, the quality of defense counsel, or the substantial barriers to meaningful appellate review, the death penalty is plagued with problems that make its existence contrary to any sense of common decency. 

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September 24, 2015 | Permalink | Comments (0)

Wednesday, September 23, 2015

Monahan & Skeem on Risk Assessment in Criminal Sentencing

John Monahan and Jennifer L. Skeem (University of Virginia School of Law and University of California, Berkeley) have posted Risk Assessment in Criminal Sentencing (Annual Review of Clinical Psychology, Forthcoming) on SSRN. Here is the abstract:

The past several years have seen a surge of interest in using risk assessment in criminal sentencing, both to reduce recidivism by incapacitating or treating high-risk offenders and to reduce prison populations by diverting low-risk offenders from prison. We begin by sketching jurisprudential theories of sentencing, distinguishing those that rely on risk assessment from those that preclude it. We then characterize and illustrate the varying roles that risk assessment may play in the sentencing process. We clarify questions regarding the various meanings of “risk” in sentencing and the appropriate time to assess the risk of convicted offenders. We conclude by addressing four principal problems confronting risk assessment in sentencing: conflating risk and blame, barring individual inferences based on group data, failing adequately to distinguish risk assessment from risk reduction, and ignoring whether, and if so, how, the use of risk assessment in sentencing affects racial and economic disparities in imprisonment.

September 23, 2015 | Permalink | Comments (0)

Davids & McMahon on Misconduct in Public Office

Cindy Davids and Marilyn M McMahon (Deakin University - Deakin Law School and Deakin University - Deakin Law School) have posted Police Misconduct as a Breach of Public Trust: The Offence of Misconduct in Public Office (Deakin Law Review, vol. 19, no. 1, pp. 89-121, 2014) on SSRN. Here is the abstract:

Until relatively recently, the common law offence of misconduct in public office has been regarded as anachronistic. The offence was perceived to have been supplanted by specific statutory offences that could more appropriately deal with criminal conduct by public officials. However, there has been a revival of the offence with successful prosecutions occurring in Australia, England and Hong Kong. Many of these contemporary cases have involved police officers. Examination of these cases reveals that the circumstances in which misconduct in public office has been identified have been diverse, including the unauthorised disclosure of confidential information, the use of false search warrants and the sexual exploitation of vulnerable persons. In many instances, police officers were charged with other criminal offences in addition to charges relating to misconduct in public office. The matters prosecuted as misconduct in public office typically involved matters that were serious and/or could not be adequately prosecuted as other criminal offences or as breaches of police regulations governing conduct. Consequently, despite the proliferation of statutory criminal offences in the 20th century it appears that there continues to be a place for the offence of misconduct in public office. It criminalises misconduct by police officers that may not be adequately dealt with by other offences and recognises the public trust dimension of wrongdoing by these officials. However, a continuing and fundamental challenge is to determine the appropriate definition and scope of the offence.

September 23, 2015 | Permalink | Comments (0)

Wright on Congressional Due Process

Wright andrewAndrew McCanse Wright (Savannah Law School) has posted Congressional Due Process (Mississippi Law Journal, Forthcoming) on SSRN. Here is the abstract:

Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. This article highlights differences between congressional and judicial proceedings with respect to such safeguards for witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have general applicability, and as such, it needs broad power to obtain information. However, while full and formal adjudicative rights may not apply to congressional proceedings, underlying constitutional values do. The goal of protecting individuals from abusive treatment at the hands of the government — a value that undergirds formal adjudicative due process rights — applies with equal force to legislative processes. Further, Congress wants its proceedings to be shown the respect accorded to the Judiciary without adopting commensurate notions of fair play.

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September 23, 2015 | Permalink | Comments (0)

Kolber on Free Will as a Matter of Law

KolberAdam J. Kolber (Brooklyn Law School) has posted Free Will as a Matter of Law (Philosophical Foundations of Law and Neuroscience, (Michael Pardo & Dennis Patterson eds., 2016), Oxford University Press) on SSRN. Here is the abstract:

Philosophers have long debated questions about free will, but their analyses obviously do not have the force of law. Whatever you think about free will, the law has its own perspective. Since cases and statutes say little directly on point, we turn, as we often must, to the intentions of those with authority to create law. The law’s crafters likely believed that we have souls that make choices unconstrained by the laws of physics. Such “soul-based libertarianism” conflicts with the modern scientific view that billions of particles have interacted since the beginning of time to make us take the precise actions we do in the precise circumstances we find ourselves. Since the law’s crafters aimed to punish evil-doing souls, they may never have intended to punish mechanisms like ourselves. 

Scholars such as Stephen Morse and Paul Litton, by contrast, have defended compatibilist interpretations of criminal law. They believe both moral and legal responsibility are consistent with mechanistic decision-making. But their interpretations of the law are largely grounded in controversial philosophical claims and should be distinguished from interpretations grounded in legal authority. Unless compatibilists can settle the philosophical debate to widespread satisfaction — an unlikely prospect given its centuries-long history — the law’s admittedly faint libertarian signals hold special weight. 

I argue that, from a legal perspective, the view that the criminal law was never intended to apply to mechanistic humans like ourselves is more plausible than the view that the law was intended to punish in a compatibilist fashion. Hence, if we focus on traditionally-recognized sources of legal authority, a plausible case can be made that our punishment policies are inconsistent with modern science and require updating.

September 23, 2015 | Permalink | Comments (0)

Tuesday, September 22, 2015

Top-Ten Recent SSRN Downloads

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

RankDownloadsPaper Title
1 5,220 Concealed Carry Permit Holders Across the United States 
John R. LottJohn E Whitleyand Rebekah C. Riley 
Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center 
Date posted to database: 20 Jul 2015 
2 754 The Worst $90,000 Ever Spent: Ten Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System 
Peter Sankoff 
University of Alberta - Faculty of Law 
Date posted to database: 22 Aug 2015 
3 637 Constitutional Malware 
Jonathan Mayer 
Stanford University 
Date posted to database: 21 Jul 2015 
4 267 An Economic Understanding of Search and Seizure Law 
Orin S. Kerr 
The George Washington University Law School 
Date posted to database: 21 Jul 2015 [previously 6th]
5 179 Reinvigorating and Enhancing Jury Trials Through an Overdue Juror Bill of Rights: WWJW — What Would Jurors Want? — A Federal Trial Judge's View 
Mark W. Bennett 
U.S. District Court (Northern District of Iowa) 
Date posted to database: 28 Aug 2015 [new to top ten]
6 171 American Criminal Record Exceptionalism 
Kevin Lapp 
Loyola Law School Los Angeles 
Date posted to database: 3 Sep 2015 [new to top ten]
7 140 Speech: The Legal Status of Fantasy Sports in a Changing Business Environment 
Marc Edelman 
City University of New York - Baruch College, Zicklin School of Business 
Date posted to database: 25 Aug 2015 [new to top ten]
8 136 Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century 
Meg BeardsleySam Kamin,Justin F. Marceau and Scott Phillips 
Washington and Lee University - School of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law and University of Denver 
Date posted to database: 5 Aug 2015 [new to top ten]
9 133 Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism 
Dustin A. LewisNaz K. Modirzadeh and Gabriella Blum 
Harvard Law School Program on International Law and Armed Conflict (PILAC), HLS Program on International Law and Armed Conflict and Harvard Law School 
Date posted to database: 8 Sep 2015 [new to top ten]
10 131 The New Peonage 
Tamar R. Birckhead 
University of North Carolina (UNC) at Chapel Hill - School of Law 
Date posted to database: 29 Aug 2015 [new to top ten]

September 22, 2015 | Permalink | Comments (0)

"Slouching in the wrong neighborhood leads to a stop — and a decade in jail"

Orin Kerr has this post at The Volokh Conspiracy, excerpting a recent Sixth Circuit case and concluding, "Judgments about reasonable suspicion are always about line-drawing and inference. With that said, I think this decision is wrong."

September 22, 2015 | Permalink | Comments (0)

Puzone on Counsel Abandonment and Post-Conviction Relief

Puzone katherineKatherine Puzone (Barry University - Dwayne O. Andreas School of Law) has posted When Counsel Abandonment Forecloses Post-Conviction Relief: An Argument for Applying the Doctrine of Cause and Prejudice to the AEDPA Statute of Limitations (Georgetown Journal on Poverty Law Policy, Vol. 21, No. 3, 2014) on SSRN. Here is the abstract:

If a post-conviction petitioner is abandoned by counsel, the ability of the petitioner to have his case heard by a federal court depends on whether the abandonment is a procedural default or a statute of limitations default. Federal courts arrived at different results in two similar cases because in one, counsel’s abandonment resulted in a procedural default and in the other, it resulted in a statute of limitations default. In the procedural default case, the Supreme Court held that counsel’s abandonment could constitute cause under the doctrine of cause and prejudice and excuse the procedural default, thus allowing federal review of the petitioner’s case. In the statute of limitations default case, the petitioner was required to demonstrate extraordinary circumstances and due diligence on his part in order to qualify for equitable tolling of the statute of limitations. Given the cognitive limitations of the petitioner, and many similarly situated petitioners, the courts held that he had not exercised due diligence in following his case through byzantine post-conviction proceedings. As such, the federal court held that it was barred from reviewing his petition for a writ of habeas corpus on the merits. The facts of the two cases are similar, the results diametrically opposed. This article argues that the same standard – cause and prejudice – should be applied to both procedural defaults and statute of limitations defaults when a post-conviction petitioner is abandoned by counsel.

September 22, 2015 | Permalink | Comments (1)

Ryan on Lessons from Gitmo

Ryan meghanMeghan J. Ryan (Southern Methodist University - Dedman School of Law) has posted Lessons from Gitmo on SSRN. Here is the abstract:

I recently returned from a trip to Guantanamo Bay Naval Base, where I spent a week at Camp Justice — the site of the Military Commissions proceedings for the alleged terrorists and war criminals who have been held on the base since the “War on Terror” began after 9/11. I was observing military commission proceedings in the case of high-value detainee Abd al Hadi al-Iraqi, who was allegedly “one of Osama bin Laden’s closest advisors.” He has been charged with “Denying Quarter, Attacking Protected Property, Using Treachery or Perfidy, and Attempted Use of Treachery or Perfidy in a series of attacks in Afghanistan and Pakistan between about 2003 and 2004, and Conspiracy to commit law of war offenses.” I was tasked with observing the proceedings to ascertain whether they comply with human rights principles and relevant rules of law. During the course of this weeklong adventure, I learned a number of Guantanamo lessons, which I detail in this brief essay.

September 22, 2015 | Permalink | Comments (1)

Wang on The Harm in Issuer-Licensed Insider Trading

Wang williamWilliam K. S. Wang (University of California, Hastings College of the Law) has posted The Importance of 'The Law of Conservation of Securities': A Reply to John P. Anderson's 'What's the Harm in Issuer-Licensed Insider Trading?' (University of Miami Law Review, Vol. 69, p. 811, 2015) on SSRN. Here is the abstract:

Professor John P. Anderson’s article, What’s the Harm in Issuer-Licensed Insider Trading?, argues that my “Law of Conservation of Securities” has no moral relevance to the question whether to allow such trading.

The Law of Conservation of Securities demonstrates that each stock market insider trade has specific victims and is “advantage-taking.” Some “advantage-taking” stock transactions are moral; others are not. To determine whether stock market insider trading is immoral, applying a principle such as utilitarianism or Professor Anthony Kronman’s “paretianism” requires consideration of the harm stemming from the conduct. The Law of Conservation of Securities identifies the victims of each insider trade and enables analysis of the indirect consequences of that injury, such as wider bid-ask spreads by market makers and impaired investor confidence -- both of which, in turn, increase firms’ cost of equity capital.

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September 22, 2015 | Permalink | Comments (0)

Monday, September 21, 2015

Ghosal & Sokol on Cartel Prosecutions

Vivek Ghosal and D. Daniel Sokol (Georgia Institute of Technology and University of Florida - Levin College of Law) have posted Policy Innovations, Political Preferences, and Cartel Prosecutions on SSRN. Here is the abstract:

While price-fixing cartel prosecutions have received significant attention, the policy determinants and the political preferences that guide such antitrust prosecutions remain understudied. We empirically examine the intertemporal shifts in U.S. antitrust cartel prosecutions during the period 1969-2013. This period has seen substantive policy innovations with increasing penalties related to fines and jail terms. There appear to be four distinct cartel policy regimes: pre-1978, 1978-1992, 1993-2003, and 2004-2013. Our empirical estimates show significant variation in the number of cartels prosecuted and the penalties imposed across the policy regimes. The more recent regimes are characterized by far fewer cartels prosecuted, but with substantially higher penalties levied on firms and individuals. While effective deterrence is one explanation for these patterns, we are more inclined to conclude that US cartel enforcement has seen an underlying shift away from focusing on smaller cartels to larger and multinational firms. In terms of political effects, our results reveal no clear inter-political party effect on cartel prosecutions, but there appear to be interesting intra-political party effects. We find that particular Presidencies matter for cartel prosecutions, and variation across Presidential administrations led to marked shifts in the total number of cartels prosecuted. Overall, the shifts in the number of cartels prosecuted and penalties levied portray changing policy priorities and a search for the optimal enforcement design to curtail one of the clearest sources of welfare loss, collusion.

September 21, 2015 | Permalink | Comments (0)

Turner on Plea Bargaining and Disclosure in Germany and the United States

Turner jeniaJenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Plea Bargaining and Disclosure in Germany and the United States: Comparative Lessons (William & Mary Law Review, 2016 Forthcoming) on SSRN. Here is the abstract:

This article analyzes recent trends in plea bargaining and disclosure of evidence in Germany and the United States. Over the last two decades, a number of U.S. jurisdictions have adopted rules requiring broader and earlier discovery in criminal cases. This development reflects a growing consensus that, in a system that resolves most of its cases through guilty pleas, early and extensive disclosure is necessary to ensure fair and informed outcomes. 

The introduction of broader discovery in criminal cases in the United States aligns our rules more closely with German rules on access to the investigative file. At the same time, through its increasing reliance on negotiations to resolve criminal cases, the German criminal justice system has itself moved closer to the U.S. model.

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September 21, 2015 | Permalink | Comments (2)

Godsoe on Punishment as Protection

Godsoe cynthiaCynthia Godsoe (Brooklyn Law School) has posted Punishment as Protection (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:

Each year, thousands of girls are prosecuted, and often incarcerated, for prostitution. Indeed, prostitution is the only crime for which girls are the majority of juveniles arrested. Why are girls below the age of consent victims of statutory rape when they have sex, yet become offenders if they are paid? This differential treatment cannot be justified on retributive or consequential grounds, as prostituted girls inflict only self-harm, usually deemed illegitimate grounds for criminal sanctions, and punishment does not deter their conduct. Criminal sanctions are not only unjustified, but counter-productive. They result in great harms to the individual girls and have not decreased the scope of juvenile prostitution. In short, the cure is worse than the ill.

This Article examines the persistence of this criminalization model and argues that the protectionist rationale offered is pretextual, cover for moralism.

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September 21, 2015 | Permalink | Comments (1)

Shatz on Meaningful Appellate Review in Capital Cases

Shatz stevenSteven F. Shatz (University of San Francisco - School of Law) has posted The Meaning of 'Meaningful Appellate Review' in Capital Cases: Lessons from California (Santa Clara Law Review, Forthcoming) on SSRN. Here is the abstract:

In Furman v. Georgia, the Supreme Court's seminal death penalty case, the Court held that the death penalty, as then administered, violated the Eighth Amendment because the penalty decision was so unguided and the imposition of the death penalty was so infrequent as to create an unconstitutional risk of arbitrariness. The Court's remedy, developed in subsequent decisions, was to require the state legislatures to "genuinely narrow the class of persons eligible for the death penalty" and the state courts to provide "meaningful appellate review" of death sentences. In recent years, a number of scholars have addressed the genuine narrowing requirement with empirical research on particular state schemes. Less attention has been paid to the appellate review requirement and, in particular to Pulley v. Harris, the Court's key case on the issue.

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September 21, 2015 | Permalink | Comments (0)

Saturday, September 19, 2015

"Suit Alleges ‘Scheme’ in Criminal Costs Borne by New Orleans’s Poor"

From The New York Times:

On Thursday, Ms. Cain joined five other plaintiffs in a class-action lawsuit against the criminal district court here, among others, alleging that judges and court officials have been running an “illegal scheme” in which poor people are indefinitely jailed if they fall behind on payments of court fines, fees and assessments. The suit describes how fees are imposed with no hearing about a person’s ability to pay, and how nearly all components of the local criminal justice system — the judges, the prosecutors, the public defenders — benefit financially to some degree.

. . .

The funding of criminal justice systems through the fining of poor defendants has drawn intense scrutiny across the country over the past year. This is in part because the protests in Ferguson highlighted these funding arrangements. But it is also because the practice has become more widespread, said Lauren-Brooke Eisen, a lawyer with the Brennan Center for Justice.

September 19, 2015 | Permalink | Comments (0)

Johnston on Communication and Competence in Self-Representation

Johnston e leaE. Lea Johnston (University of Florida - Levin College of Law) has posted Communication and Competence for Self-Representation (Fordham Law Review, Vol. 84, 2016 Forthcoming) on SSRN. Here is the abstract:

In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. States have applied these standards to deny self-representation on grounds of stuttering, strong foreign accent, and low level of education, even when defendants have intact decision-making abilities. 

However, the extent to which the Sixth Amendment permits denial of self-representation on the basis of inadequate communication skills is dubious.

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September 19, 2015 | Permalink | Comments (0)

Friday, September 18, 2015

Kerrison on Race-Based Medicalization of Addiction

Erin M Kerrison (University of Pennsylvania - Jerry Lee Center of Criminology) has posted White Claims to Illness and the Race-Based Medicalization of Addiction for Drug-Involved Former Prisoners (Harvard Journal on Racial & Ethnic Justice, Vol. 31, 2015) on SSRN. Here is the abstract:

Critical Race Theory scholars have long argued that the War on Drugs is a war waged against low-income, Black urban citizens. However, as the spotlight has shifted somewhat from policing street drug use and trafficking among poor, inner-city Blacks, to concerns about the chronic pharmaceutical substance abuse of middle- and upper-class White suburban citizens, so, too has the rhetoric. Some aspects of contemporary penal discourse have evolved from the “Get Tough” orientation of yesteryear to a revived rehabilitative agenda, designed to treat and heal wayward souls. The depraved, incorrigible, and inherently pathological drug-using caricature of twenty years ago has taken on a lighter, more sympathetic hue. If White privilege confers upon its possessors the right to hold themselves in higher esteem, arguably even the deepest of drug entrenched individuals may be granted space to construct the onset and longevity of their addiction as processes external to their will. Rather than embrace the ineluctably criminal persona assigned to Black addicts, White users may instead claim their victimhood, illness, and eschew accountability. This essay examines interview narratives from a mixed-race sample of 304 drug-involved former prisoners, and focuses on how respondents conceive of their addiction and the extent to which race modifies ownership of a deviant status.

September 18, 2015 | Permalink | Comments (0)