CrimProf Blog

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

Monday, November 16, 2015

Copeland on The Crime of Being in Charge

Copeland katrice bridgesKatrice Bridges Copeland (Pennsylvania State University, Penn State Law) has posted The Crime of Being in Charge: Executive Culpability and Collateral Consequences (American Criminal Law Review, Vol. 51, No. 799, 2014) on SSRN. Here is the abstract:

This Article argues that the government's exclusion of executives who have been convicted as "responsible corporate officers" for a period longer than three years without any showing of moral blameworthiness is misguided. The responsible corporate officer doctrine is flawed because under the doctrine it is irrelevant that the executive did not intend for the misconduct to occur. It is not a defense that the executive delegated responsibility in good faith. Nor is it a defense that the executive is not knowledgeable about or did not participate in the misconduct. The only potential defense is impossibility, but it has never been used successfully. Even if those shortcomings in the responsible corporate officer doctrine were overlooked due to the fact that it is a misdemeanor charge, the piling on of long periods of exclusion significantly raises the stakes for the executives.

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November 16, 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
1 339 Big Data and Tax Haven Secrecy
Arthur J. Cockfield
Queen's University - Faculty of Law
Date posted to database: 6 Oct 2015 
2 303 Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism
Dustin A. Lewis, Naz 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 
3 269 The Future of Parole Release: A Ten-Point Reform Plan
Edward Rhine, Joan Petersiliaand Kevin R Reitz
Ohio State University (OSU) - Department of Sociology, Stanford University and University of Minnesota Law School
Date posted to database: 11 Oct 2015 
4 251 Risk Assessment in Criminal Sentencing
John Monahan and Jennifer L. Skeem
University of Virginia School of Law and University of California, Berkeley
Date posted to database: 17 Sep 2015 
5 231 Law and Neuroscience
Owen D. Jones and Matthew R. Ginther
Vanderbilt University - Law School & Dept. of Biological Sciences and Vanderbilt University - Law School
Date posted to database: 18 Sep 2015 
6 222 Do Ammunition Background Checks Reduce Murder Rates?
Clayton E. Cramer
College of Western Idaho
Date posted to database: 29 Oct 2015 [8th last week]
7 208 Free Will as a Matter of Law
Adam J. Kolber
Brooklyn Law School
Date posted to database: 16 Sep 2015 [6th last week]
8 194 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 [7th last week]
9 187 Background Checks for Firearms Sales and Loans: Law, History, and Policy
David B. Kopel
Independence Institute
Date posted to database: 26 Sep 2015 [10th last week]
10 182 The Uncomfortable Truths and Double Standards of Bribery Enforcement
Mike Koehler
Southern Illinois University School of Law
Date posted to database: 28 Oct 2015 [9th last week]

November 16, 2015 | Permalink | Comments (0)

Duff & Marshall on Civic Punishment

R. A. Duff and S. E. Marshall (University of Minnesota Law School and University of Stirling) have posted Civic Punishment (Democratic Theory and Mass Incarceration, A. W. Dzur, I. Loader & R. Sparks (eds.), Oxford: Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

We argue that in a democratic republic of free and equal citizens, criminal punishment can be adequately justified only if it can be portrayed as a civic duty that offenders ought to undertake — as a duty that they owe to their fellow citizens. To make this argument, we sketch the key features of such a democratic republic, and of the kind of criminal law to which its members can properly subject themselves and each other. A crucial aspect of such a criminal law is that citizens have active roles to play in its enterprise; such roles include, we argue, the roles of offender and convicted offender, who should be seen as citizens who have, through their offending, acquired distinctive new civic responsibilities to their fellow citizens. This is an idealized conception of what criminal law ought to be; but it is an important ideal, since it shows how criminal law could treat offenders with the respect that should still be due to them as citizens.

November 16, 2015 | Permalink | Comments (0)

Sunday, November 15, 2015

Beety on Thompson on Forensic Labs

Valena Elizabeth Beety (West Virginia University - College of Law) has posted Cops in Lab Coats and Forensics in the Courtroom (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

Law enforcement’s past cover-ups of faulty forensics is at the heart of Sandra Guerra Thompson’s new book, Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories. Thompson posits that forensic labs should be independent, rather than controlled by prosecutors and used to convict persons no matter the human cost. In brief, Thompson’s book captures the recent history of forensic validation — and invalidation — and its critical impact on the criminal justice system. Her inclusion of wrongful convictions mirrors the national conversation where innocence is the primary impetus to ensure that forensic disciplines become more reliable, forensic findings more testable, and forensic inquiries more independent.

November 15, 2015 | Permalink | Comments (0)

Logan on Interstate Recognition of Ex-Offender Rights

Logan wayneWayne A. Logan (Florida State University - College of Law) has posted 'When Mercy Seasons Justice': Interstate Recognition of Ex-Offender Rights (49 U.C. Davis Law Review 1 (2015)) on SSRN. Here is the abstract:

To the great relief of many, states are now rethinking their draconian criminal justice policies of the past several decades. In addition to shrinking prison and jail populations, reforms are now underway to expand opportunities for relief from the collateral consequences of conviction, such as the loss of the right to vote, serve as a juror, or work in certain occupations, which can impede the ability of ex-offenders to successfully reintegrate into society. In coming years, as states seek to reduce their high recidivism rates, such relief efforts will likely continue to grow in number; as they do, we should expect to see parallel growth in an important horizontal federalism challenge.

The challenge comes when ex-offenders, having secured collateral consequences relief in one state, relocate to another and seek to have their restored status recognized there.

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November 15, 2015 | Permalink | Comments (0)

Saturday, November 14, 2015

"How Gun Traffickers Get Around State Gun Laws"

From The New York Times:

How Gun Traffickers Get Around State Gun Laws - The New York Times

In California, some gun smugglers use FedEx. In Chicago, smugglers drive just across the state line into Indiana, buy a gun and drive back. In Orlando, Fla., smugglers have been known to fill a $500 car with guns and send it on a ship to crime rings in Puerto Rico.

In response to mass shootings in the last few years, more than 20 states, including some of the nation’s biggest, have passed new laws restricting how people can buy and carry guns. Yet the effect of those laws has been significantly diluted by a thriving underground market for firearms brought from states with few restrictions.



November 14, 2015 | Permalink | Comments (0)

Ouss on Incentives Structures and Criminal Justice

Aurelie Ouss has posted Incentives Structures and Criminal Justice on SSRN. Here is the abstract:

The conventional assumption in economics of crime is that criminal justice system actors behave like social planners, choosing punishment levels to equate the marginal benefits and costs from society’s perspective. This paper presents empirical evidence suggesting in practice, punishment is based on a much narrower objective function, leading to over-incarceration. The costs and benefits of various punishment options are reflected at different government levels in the US. The 1996 California Juvenile Justice Realignment can be used as a natural experiment: it shifted the costs of juvenile corrections from states to counties, keeping overall costs and responsibilities unchanged. Moving the cost of incarceration from state to counties resulted in a discontinuous drop in the number of juveniles being sent to state facilities, but no change in juvenile arrests. This indicates that when costs and benefits of incarceration are not borne by the same agency, there is excess incarceration: not only is there more demand for prison than when costs are fully internalized; but there are no gains in terms of crime reduction from this extra incarceration.

November 14, 2015 | Permalink | Comments (0)

Beety on Wrongful Convictions and Eyewitness Identification

Valena Elizabeth Beety (West Virginia University - College of Law) has posted Wrongful Convictions and the National Academy of Sciences: From Forensics to Eyewitness Identification (Tennessee Law Review, Forthcoming) on SSRN. Here is the abstract:

In creating a test to admit eyewitness identifications, the Supreme Court in Manson v. Brathwaite held as its most important value the reliability of this evidence. Thirty-five years later, hundreds of tests, research projects, and papers have shown exactly how unreliable the Court’s admissibility test is. The Supreme Court has failed to live up to its own standard.

The National Academy of Sciences new Report, Identifying the Culprit: Assessing Eyewitness Identification, may be the needed impetus to change the nationally governing standard. The Report takes readers above and beyond the current Manson test. Indeed, Identifying the Culprit predicts a national impact on our executive, judicial, and legislative branches. Five years from today, the U.S. Supreme Court may use these findings to completely overhaul the admission of eyewitness testimony in the courtroom.

This piece provides a brief sketch of a prior NAS Report, Strengthening Forensic Science in the United States: A Path Forward, and the impact it has had on all branches of government.

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November 14, 2015 | Permalink | Comments (1)

Friday, November 13, 2015

"DraftKings Leaves Door Unlocked for Barred Fantasy Sports Players"

From The New York Times:

But for DraftKings, the ruling and any courtroom battle may be easily circumvented. The New York Times, working with users in all six states where daily fantasy sports is already considered illegal, was able to make bets on the DraftKings site using the most basic, easily accessible service for disguising a computer’s true location.

Called a proxy server, the service is available for a few dollars a month from numerous companies. . . .

David Briggs, chairman of GeoComply Ltd., the technical arm of the firm that provides geolocation services to legal gambling companies in New Jersey, Nevada and elsewhere, said that enforcing laws at state boundaries is perfectly feasible — if the companies are serious about enforcing the laws. The services are sometimes called geofencing.


November 13, 2015 | Permalink | Comments (0)

"Federal appeals court rejects California death penalty challenge"

From Jurist:

The US Court of Appeals for the Ninth Circuit [official website] on Thursday reversed[opinion, PDF] a lower court decision that had held that California's death penalty system wasunconstitutional [JURIST report]. The appeals court held that the excessive delay between sentencing and execution did not violate the Eighth Amendment's prohibition against cruel and unusual punishment. Ninth Circuit Judge Susan Graber in writing the majority opinion stated, "[b]ecause Petitioner asks us to apply a novel constitutional rule, we may not assess the substantive validity of his claim." Currently, California has the largest death row population [WP report] in the nation and has not recently carried out any executions.

November 13, 2015 | Permalink | Comments (0)

Ahern et al. on Child Forensic Interviews

Elizabeth C. Ahern , Samantha J. Andrews , Stacia N. Stolzenberg and Thomas D. Lyon (University of Cambridge , University of Cambridge , Arizona State University (ASU) - School of Criminology & Criminal Justice and University of Southern California - Gould School of Law) have posted The Productivity of Wh-Prompts in Child Forensic Interviews (Journal of Interpersonal Violence, Forthcoming) on SSRN. Here is the abstract:

Child witnesses are often asked wh-prompts (what, how, why, who, when, where) in forensic interviews. However, little research has examined the ways in which children respond to different wh-prompts and no previous research has investigated productivity differences among wh-prompts in investigative interviews. This study examined the use and productivity of wh-prompts in 95 transcripts of 4- to 13-year-olds alleging sexual abuse in child investigative interviews. What-how questions about actions elicited the most productive responses during both the rapport building and substantive phases. Future research and practitioner training should consider distinguishing among different wh-prompts.

November 13, 2015 | Permalink | Comments (0)

Maclin on Analysis of Shed DNA

Maclin traceyTracey Maclin (Boston University - School of Law) has posted Government Analysis of Shed DNA is a Search Under the Fourth Amendment (Texas Tech Law Review, 2015 Criminal Law Symposium: The 4th Amendment in the 21st Century, Vol. 48, Forthcoming) on SSRN. Here is the abstract:

This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.

Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection.

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November 13, 2015 | Permalink | Comments (1)

Rowe & Ross on Comparative Police Recruiting

Mike Rowe and Jeffrey Ian Ross (Northumbria University and University of Baltimore - School of Law) have posted Comparing the Recruitment of Ethnic and Racial Minorities in Police Departments in England and Wales with the USA (Policing: A Journal of Policy and Practice, Vol. 9, No. 1, pp. 26-35, 2015) on SSRN. Here is the abstract:

In the late 1820s, when British Home Secretary Sir Robert Peel introduced legislation into the British parliament to create the very first police department, the phrase that the ‘police are the public, and the public are the police’ was developed to allay public fears that the new institution would become an oppressive army of an overmighty central state. Unwittingly perhaps, this set the stage for efforts to create modern day police departments that are inclusive of the general community and reflect the racial and ethnic diversity of the wider population.

Further to this founding principle, in many countries, the need to recruit a more ethnically and racially diverse police service has been a pressing concern for several decades. Although this imperative is regarded as a core task for police services in liberal democratic countries with a common law tradition, it is worth noting that this aspect of the ‘diversity agenda’ has not been confined to such contexts. Indeed a more diverse pattern of recruitment has been sought by police services in imperialist and segregated societies too.

November 13, 2015 | Permalink | Comments (0)

Adelman & Deitrich on Federal Judges' Role in Mass Incarceration

Lynn Adelman and Jon Deitrich (U.S. District Court - Eastern District of WI and United States District Court, Milwaukee) have posted How Federal Judges Contribute to Mass Incarceration and What They Can Do About It on SSRN. Here is the abstract:

Talk of reforming federal sentencing law by eliminating some mandatory minimum sentences is much in the air. The fact is, however, that many federal offenders are unnecessarily imprisoned in cases where there is no mandatory minimum. This article attempts to expand the conversation about excessive imprisonment by discussing first how the federal sentencing guidelines place far too much emphasis on prison and far too little on sentences served in the community. Next, we discuss federal judges' excessive attachment to the guidelines despite their deep flaws and even after the Supreme Court has made clear that judges are free to reject them. Finally, we propose an approach to federal sentencing that is much less deferential to the guidelines and places much more emphasis on 18 U.S. § 3553(a), the parsimony statute, which requires judges to impose the least punitive sentence necessary to achieve the goals of sentencing.

November 13, 2015 | Permalink | Comments (0)

Thursday, November 12, 2015

Ross on Prison Voyeurism

Ross jeffrey ianJeffrey Ian Ross (University of Baltimore - School of Law) has posted Varieties of Prison Voyeurism: An Analytic/Interpretive Framework (The Prison Journal, Vol. 95, No.3, pp. 397-417, 2015) on SSRN. Here is the abstract:

The public learns, experiences, and knows about jails, prisons, and the people who live and work there through a variety of mediums and/or methods. Not all situations are equal in terms of the cost to the individual, the reality of the experience, and the effect it may have on the participant. In an effort to better contextualize this process, this article develops a typology to better understand these methods of participation. Ten methods by which people can experience correctional facilities include, on one end of the spectrum, the highly personal experience of incarceration, and on the other end, attempts by individuals to understand and/or experience corrections without intimately engaging with the subject matter. This latter method, termed prison voyeurism, fails to contextualize the myths, misrepresentations, and stereotypes of prison life rather than clarifying or explaining them. The author develops a framework to interpret the jail and prison experience. Examples are drawn primarily from the American prison experience.

November 12, 2015 | Permalink | Comments (0)

Heyman on How Equal Protection Treats Juries Differently

Jessica Heyman has posted Introducing the Jury Exception: How Equal Protection Treats Juries Differently (NYU Annual Survey of American Law, Vol. 69, No. 1, 2013) on SSRN. Here is the abstract:

For nearly a century after the Fourteenth Amendment was passed, Equal Protection did little to protect people of color. With one exception: the jury box. Throughout the last hundred and thirty years, beginning with the seminal 1879 case of Strauder v. West Virginia and continuing to the present, the Supreme Court has consistently affirmed its protection of blacks on jury venires, grand juries, and petit juries. This course has not been an unblemished one, but overall it is emphatically the most protected area of Equal Protection jurisprudence.

But that’s not all. Jury jurisprudence is the only area of Equal Protection jurisprudence that employs something akin to a disparate impact standard and uses a burden-shifting test. The only other areas of civil rights law that use a similar test are those in which Congress intervened: Title VII and Section 2 of the Voting Rights Act.

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November 12, 2015 | Permalink | Comments (0)

Duff & Marshall on Criminalizing Hate?

R. A. Duff and S. E. Marshall (University of Minnesota Law School and University of Stirling) have posted Criminalizing Hate? (Hate, Politics, Law, T. Brudholm & B. Schepelern Johansen (eds.), Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

This paper explores the role that criminal law might play in combating ‘hatred’, in particular whether and why we might appropriately criminalize ‘hatred’. In s. 1 it sketches some salient features of a liberal, democratic republic (as the kind of polity in which we can aspire to live, and whose citizens can be expected to be committed to combating ‘hatred’). In ss. 2-3, we then explain why a certain kind of ‘hatred’ should concern members of such a polity, as a distinctive civic vice manifested in a distinctive kind of civic wrong. In ss. 4-5, we discuss the limited but significant role that criminal law can play, in principle, in responding to such hatred. Finally, in s. 6, we say a little about the difficulties involved in turning ‘in principle’ into ‘in practice’, particularly those concerning offence definitions.

November 12, 2015 | Permalink | Comments (0)

Wednesday, November 11, 2015

Feldman on Kozinski on Eyewitness Identifications

Laurie N. Feldman (Government of the State of Connecticut, Office of the Chief State's Attorney) has posted The Unreliable Case Against the Reliability of Eyewitness Identifications: A Response to Judge Alex Kozinski (Quinnipiac Law Review, Forthcoming) on SSRN. Here is the abstract:

Judge Alex Kozinski’s recent critique of our criminal justice system begins by positing that jurors believe that eyewitnesses are highly reliable, and arguing that this belief is “undermined” by social scientific research showing that eyewitnesses are, in fact, “highly unreliable.” Hon. Alex Kozinski, Criminal Law 2.0, 44 Geo. L.J. Ann. Rev. Crim. Proc. iii (2015). In so doing, Judge Kozinski joins the defense bar, the Innocence Project, many social scientists and legal academics, the media, and an increasing number of courts in treating claims that juries pervasively accept unreliable eyewitness evidence as if they are firmly grounded in the rigorous testing of social science. To the contrary, this essay argues that (1) there is no reliable evidence that jurors routinely over-rely on eyewitness evidence; (2) there is no reliable basis in social science for generalizations about eyewitness identifications being unreliable; (3) eyewitness identification scholarship is often distorted by agenda-driven advocacy; (4) exonerations do not show that eyewitnesses are generally unreliable; (5) courts have uncritically adopted measures of questionable benefit regarding eyewitness evidence; and (6) reliable social science does not support the adoption of the “reforms” suggested by Judge Kozinski.

November 11, 2015 | Permalink | Comments (1)

Kolber on The Bumpiness of Criminal Law

KolberAdam J. Kolber (Brooklyn Law School) has posted The Bumpiness of Criminal Law (Alabama Law Review, Forthcoming) on SSRN. Here is the abstract:

Criminal law frequently requires all-or-nothing determinations. A defendant who reasonably believed his companion consented to sex may have no criminal liability, while one who fell just short of being reasonable may spend several years in prison for rape. Though their levels of culpability vary slightly, their legal treatment differs dramatically. True, the law must draw difficult lines, but the lines need not have such dramatic effects. We can precisely adjust fines and prison sentences along a spectrum.

Leading theories of punishment generally demand smooth relationships between their most important inputs and outputs. An input and output have a smooth relationship when a gradual change to the input causes a gradual change to the output. By contrast, actual criminal laws are often quite bumpy: a gradual change to the input sometimes has no effect on the output and sometimes has dramatic effects. Such bumpiness pervades much of the criminal law, going well beyond familiar complaints about statutory minima and mandatory enhancements. While some of the bumpiness of the criminal law may be justified by interests in reducing adjudication costs, limiting allocations of discretion, and providing adequate notice, I will argue that the criminal law is likely bumpier than necessary and suggest ways to make it smoother.

November 11, 2015 | Permalink | Comments (0)

Baker on R. v. Gnango

Dennis J Baker has posted Mutual Combat Complicity, Transferred Intention/Defenses and the Exempt Party Defense (UNIVERSITY OF LA VERNE LAW REVIEW, Vol. 37, 2016) on SSRN. Here is the abstract:

In this article, I shall explore the role of oblique intention in the law of complicity. I shall use the recent Supreme Court decision from the United Kingdom in R. v. Gnango to argue the case for recognizing oblique intention as an alternative mental element in complicity. R. v. Gnango also raises the issue of transferred intention and transferred defenses, so I will explore those doctrines in the context of the law of complicity. A further issue raised in R. v. Gnango is the scope of the victim rule. Since the victim rule has implications for the transferred intention and transferred defense doctrines and ultimately for the fault and conduct elements for complicity, I examine it in the third part of this article.

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November 11, 2015 | Permalink | Comments (0)