CrimProf Blog

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

Friday, June 17, 2016

Binder on Application of Criminal Law to Disasters

Binder denisDenis Binder (Chapman University, The Dale E. Fowler School of Law) has posted The Application of Criminal Law to Disasters and Tragedies in Asia and the Pacific Islands on SSRN. Here is the abstract:

The New Millennium has witnessed a substantial increase in criminal prosecutions in disasters and tragedies. Common examples include structural failures, maritime accidents, and mining disasters. They may or may not entail substantial environmental damage. Loss of life is a common denominator. Even "natural disasters" usually have a major human component in causing the resulting magnitude of the catastrophe.

The Asian and Pacific Island countries are leading the way in these prosecutions, which often include officials for dereliction in office, often corruption. China and India have by far the most prosecutions.

Public attention are focused on these failures through social media and the omnipresence of smart phones and tablets with digital photo and video capabilities. Incidents quickly go viral on the internet.

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June 17, 2016 | Permalink | Comments (0)

"Making the case that Congress should, at the very least, make the Fair Sentencing Act fully retroactive"

Doug Berman at Sentencing Law & Policy links to and excerpts this commentary from The Huffington Post. In part:

For 4,900 people serving sentences Congress itself deemed unfair, members of the Senate and House need not wait a day longer. If prospects for passing a larger package of criminal justice reforms do not dramatically improve in the coming days, Congress should at least pass narrow legislation making the FSA retroactive.  Those serving discredited, excessive sentences for crack offenses should not be forced to wait any longer for justice.  The Sentencing Commission’s evidence suggests that giving retroactive relief to those serving excessive crack sentences does not harm public safety. To the contrary, making the FSA retroactive would save lives, money, and right a terrible wrong. That is a legacy both parties can be proud to share with their voters this Fall.

June 17, 2016 | Permalink | Comments (0)

"Old New York Police Surveillance Is Found, Forcing Big Brother Out of Hiding"

From The New York Times:

From the mid-1950s to the early 1970s, police surveillance of political organizations in New York was extensive enough to require more than half a million index cards, simply to catalog and cross-reference the many dossiers. But over the ensuing decades, the dossiers themselves were presumed missing or lost. Police Department lawyers said they had no idea where the files had gone.

Now, a significant portion of the missing files have been discovered during what the city said on Thursday was a routine inventory of a Queens warehouse, where archivists found 520 brown boxes of decades-old files, believed to be the largest trove of New York Police Department surveillance records from the era.


June 17, 2016 | Permalink | Comments (0)

Steel on Criminal Law and Doctrine

Alex Steel (University of New South Wales (UNSW) - Faculty of Law) has posted Shaking the Foundations: Criminal Law as a Means of Critiquing Assumptions of the Centrality of Doctrine in Law (Livings and Gledhill (ed) The Teaching of Criminal Law: The pedagogical imperatives, Routledge, Forthcoming) on SSRN. Here is the abstract:

While fundamental doctrines and legal principle figure strongly in textbook and superior court analyses of the criminal law, the practical operation of the law is far more open to other approaches. This chapter explores how it is useful to demonstrate to students the variable and political use of doctrine and principle in constructing and interpreting criminal law the way courses are constructed. This includes courses that range beyond the traditional offences such as homicide to include new offences that are significantly different in their construction - such as terrorism, drugs and sexual assault offences; and that include offences that are rarely appealed, such as public order and police powers offences. Doing so exposes students to how the different players in criminal justice define crime, and the different outcomes that can lead to in different offences and courts.

June 17, 2016 | Permalink | Comments (0)

Sadat on The Nuremberg Trial

Sadat leilaLeila N. Sadat (Washington University in Saint Louis - School of Law) has posted The Nuremberg Trial, Seventy Years Later on SSRN. Here is the abstract:

The trial of the major German war criminals by the International Military Tribunal is universally recognized as a pivotal juncture in the development of international criminal law. Seventy years on, what can be learnt from that experience? This essay examines the Nuremberg Principles and their legacy in national and international law in the seven decades since they took place. It first examines the Nuremberg trials themselves along with the important role played by Robert H. Jackson, chief prosecutor for the United States, before turning to the impact of the trials on the development of international law, national case law of individual states and the establishment of the ad hoc international criminal tribunals. It then examines two modern challenges to the Nuremberg legacy: firstly, the unfinished business of codifying and enforcing the Nuremberg principles themselves, including the need for a new global convention on crimes against humanity and universal ratification of the ICC Statute: and. secondly the challenges posed by the noncompliance of states with the Nuremberg Principles, particularly with respect to the unlawful use of force and the commission of war crimes and crimes against humanity. Finally, the essay concludes that: (1) international justice does not need to be perfect to work; (2) international criminal trials are not the only way to ensure accountability; and (3) both the Nuremberg trials themselves and the subsequent establishment of the International Criminal Court have had long-lasting and extraordinary effects on the modern world.

June 17, 2016 | Permalink | Comments (0)

Thursday, June 16, 2016

Moore on The Antidemocratic Sixth Amendment

Moore janetJanet Moore (University of Cincinnati College of Law) has posted The Antidemocratic Sixth Amendment (Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

Criminal procedure experts often claim that poor people have no Sixth Amendment right to choose their criminal defense lawyers. These experts insist that the Supreme Court has reserved the Sixth Amendment right to choose for the small minority of defendants who can afford to hire counsel. This Article upends that conventional wisdom with new doctrinal, theoretical, and practical arguments supporting a Sixth Amendment right to choose for all defendants, including the overwhelming majority who are indigent. The Article’s fresh case analysis shows the Supreme Court’s “no-choice” statements are dicta, which the Court’s own reasoning and rulings refute. The Article’s new theoretical framework exposes the “no-choice” stance as an antidemocratic concentration of judicial power, which blocks pressure from poor people to strengthen the right to counsel. Finally, the Article addresses practical objections to an equal right of attorney choice with innovative strategies that promote meaningful choice for all defendants.

June 16, 2016 | Permalink | Comments (0)

Steel on Distracted Driving

Alex Steel (University of New South Wales (UNSW) - Faculty of Law) has posted Criminalisation and Technology: What's the Harm of Using Mobile Phones While Driving (Thomas Crofts, Arlie Loughnan (ed), Criminalisation and Criminal Responsibility in Australia, Oxford, 2015) on SSRN. Here is the abstract:

Despite a wide range of driver distractions that can cause vehicle crashes and road trauma, the use of mobile phones has been largely singled out for criminal prohibition. In this paper the underlying justification for criminalising the use of phones while driving is examined. The offence provides an opportunity to go beyond philosophical or moral justifications and consider underlying empirical evidence.

June 16, 2016 | Permalink | Comments (0)

Renan on The Fourth Amendment as Administrative Governance

Renan daphnaDaphna Renan (Harvard Law School) has posted The Fourth Amendment as Administrative Governance (Stanford Law Review, Vol. 68, No. 5, 2016) on SSRN. Here is the abstract:

Fourth Amendment law is transactional: it focuses on the one-off interaction typified by the singular investigatory search against a particular suspect for a specific crime. Yet surveillance is increasingly programmatic. It is ongoing and cumulative, and the scope of the executive’s search and seizure power is determined by administrative practice. Vindicating Fourth Amendment values today requires more than what the conventional transactional approach has to offer. This Article recasts problems of surveillance as problems of governance and develops an administrative framework to help address them. Administrative law suggests a way to flesh out the requirement for Fourth Amendment “reasonableness” in the exercise of agency discretion, where today’s Fourth Amendment often punts. Administrative law also provides a mechanism, independent of criminal procedure, through which courts can impose more systemic safeguards on privacy. Finally, administrative law points to a set of extrajudicial strategies for addressing surveillance at the level of governance.

June 16, 2016 | Permalink | Comments (0)

Chacon on Human Trafficking, Immigration Regulation and Sub-Federal Criminalization

Chacon jenniferJennifer M. Chacón (University of California, Irvine School of Law) has posted Human Trafficking, Immigration Regulation and Sub-Federal Criminalization (New Criminal Law Review, 2016, Forthcoming) on SSRN. Here is the abstract:

In less than two decades, the issue of human trafficking has evolved from a relatively obscure concept to a widely discussed international social problem that has engendered a host of interventions at the international, national, and sub-national level. The purpose of this article is to shed light on how anti-trafficking efforts have been instantiated at the local level. This article assesses the record of sub-federal anti-trafficking efforts in the United States by looking at state anti-trafficking legislation, newspaper coverage of anti-trafficking efforts within states, and published cases involving state trafficking prosecutions in nine different states in the United States in the period from 2004-2014. These states’ anti-trafficking laws have varied histories. Some state legislators appear to have been motivated primarily by concerns about migration control, others by concerns about the need to further criminalize sexual exploitation. This article discusses these histories and then analyzes the implementation of anti-trafficking laws at the state level by looking at criminal prosecutions brought under these state trafficking laws.

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June 16, 2016 | Permalink | Comments (0)

"Why our emotional reactions to terrorist attacks and other tragedies are a poor guide to policy"

Ilya Somin has this post at The Volokh Conspiracy. In part:

First, much of the public is ignorant about public policy issues, and forms opinions without serious consideration of the evidence. Such ignorance is not necessarily a sign of stupidity or bad moral character, but is usually just a result of rational behavior by individual citizens. Nonetheless, if you know very little about terrorism, gun control, radical Islamism, and so on, your immediate emotional reactions to a terrorist attack are unlikely to be a good guide to policy. Anger and sorrow are not substitutes for knowledge. Unfortunately, however, in the aftermath of a terrible tragedy, there is an even stronger instinct than usually to just “do something” that feels good in reaction to the event instead of carefully considering our options, or at least acknowledging the limitations of your insight. At such times, politicians have incentives to cater to angry, but poorly-informed public opinion, often with harmful results.

Second, most people have a strong tendency to evaluate political events in a highly biased manner. Instead of acting as truth-seekers and weighing new evidence objectively, we often react to events “political fans,” overvaluing any new information that seems to reinforce our preexisting views, while ignoring or dismissing anything that cuts the other way. Often people reinterpret inconvenient evidence in ways that supports their views, even if it actually does not, a process known to experts as “confirmation bias.” Such bias is particularly strong in an era of high political polarization, where we also have strong partisan bias in favor of our own party’s ideas, and against those associated with the opposition.

. . .

There is a long history of dubious and counterproductive policies enacted as a consequence of knee-jerk emotional reactions to high-profile tragedies. Examples include such cases as Megan’s Law (enacted in the aftermath of public outrage against high-profile cases of sexual predation against children) and the “zero tolerance” policies adopted in many schools in the aftermath of the 1999 Columbine shootings, which have done little to reduce crime, and much to harm school children. High-profile terrorist attacks also often generate counterproductive knee-jerk reactions that harm innocent people without doing much to prevent future terrorism.

June 16, 2016 | Permalink | Comments (0)

"L.G.B.T. People Are More Likely to Be Targets of Hate Crimes Than Any Other Minority Group"

From The New York Times:

Even before the shooting rampage at a gay nightclub in Orlando, Fla., lesbian, gay, bisexual and transgender people were already the most likely targets of hate crimes in America, according to an analysis of data collected by the Federal Bureau of Investigation.

L.G.B.T. people are twice as likely to be targeted as African-Americans, and the rate of hate crimes against them has surpassed that of crimes against Jews.

June 16, 2016 | Permalink | Comments (0)

Ahdar on Euthanasia and Assisted Suicide

Rex Ahdar (University of Otago - Faculty of Law) has posted The Case Against Euthanasia and Assisted Suicide (New Zealand Law Review, Forthcoming) on SSRN. Here is the abstract:

The arguments in favour of legalising voluntary euthanasia and doctor-assisted suicide initially appear convincing. We should, it is said, respect people’s autonomy, euthanasia is a compassionate response to unbearable suffering, it has (supposedly) worked well in those nations that have implemented it, and so on. But on closer analysis, the arguments are far less persuasive. Such a new law is unnecessary given the current legal ability of all but the most incapacitated to take their own life and the availability of palliative care. Any euthanasia law — even one carefully drafted with requisite safeguards — is susceptible to noncompliance and vulnerable to abuse. Moreover, any law would face the ineradicable reality of self-imposed pressure the vulnerable experience to “do the right thing”. This article sets out ten reasons why euthanasia should not be legalised and contends that the case for decriminalising it has not been made out by the proponents of it.

June 16, 2016 | Permalink | Comments (0)

Bellovin et al. on Content, Metadata, and the Third Party Doctrine

Steven M. Bellovin , Matt Blaze , Susan Landau and Stephanie K. Pell (Columbia University - Department of Computer Science , University of Pennsylvania - School of Engineering & Applied Science , Worcester Polytechnic Institute and West Point--Army Cyber Institute) have posted It's Too Complicated: The Technological Implications of IP-Based Communications on Content/Non-Content Distinctions and the Third Party Doctrine (Harvard Journal of Law and Technology, Forthcoming) on SSRN. Here is the abstract:

For more than forty years, electronic surveillance law in the United States developed under constitutional and statutory regimes that, given the technology of the day, distinguished content from metadata with ease and certainty. The stability of these legal regimes and the distinctions they facilitated was enabled by the relative stability of these types of data in the traditional telephone network and their obviousness to users. But what happens to these legal frameworks when they confront the Internet? The Internet’s complex architecture creates a communication environment where any given individual unit of data may change its status — from content to non-content or visa-versa — as it progresses Internet’s layered network stack while traveling from sender to recipient. The unstable, transient status of data traversing the Internet is compounded by the fact that the content or non-content status of any individual unit of data may also depend upon where in the network that unit resides when the question is asked.

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June 16, 2016 | Permalink | Comments (0)

Wednesday, June 15, 2016

Mungan on Salience and the Severity Versus the Certainty of Punishment

Mungan muratMurat C. Mungan (George Mason University School of Law) has posted Salience and the Severity Versus the Certainty of Punishment on SSRN. Here is the abstract:

The certainty aversion presumption (CAP) in the economics of law enforcement literature asserts that criminals are more responsive to increases in the certainty rather than the severity of punishment. In simple economic models, this presumption implies that criminals must be risk-seeking. Some scholars claim that this and similar anomalous implications are caused by the exclusion of various behavioral considerations in theoretical analyses. This article investigates whether a model in which criminals over-weigh probabilities attached to more salient outcomes (as in Bordalo et al. (2012) and (2013)) performs better than the simple expected utility theory model in explaining CAP-consistent-behavior. The analysis reveals that the answer is negative unless the probability of punishment is unreasonably high. This finding suggests that we should exercise caution in incorporating salience -- a la Bordalo et al. -- in simple law enforcement models.

June 15, 2016 | Permalink | Comments (0)

"Andrew Caspersen, Charged in $40 Million Fraud, Had Gambling Addiction, Lawyer Says"

From the New York Times:

[O]n Tuesday, Mr. Caspersen’s lawyer contended that his client, a former Wall Street executive with an Ivy League pedigree, was the victim of an uncontrollable gambling addiction that drove him for more than a decade. So gripping was Mr. Caspersen’s addiction, the lawyer said, that he checked his phone throughout the day for updates on the stock market’s direction and his “all in” bearish bets that ran into tens of millions of dollars.

. . .

As recently as Feb. 11, Mr. Caspersen had $112.8 million in a brokerage account and could have easily paid back the $38.5 million he had owed family and friends. Instead, the very next trading day he ordered his broker, at an unnamed Wall Street firm, to place a new round of all-in bets that the market would fall that week.

. . .

Mr. Shechtman said news media reports have wrongly characterized his client as a man driven by greed and self-interest.

“This is not about Wall Street greed,” he said. “This is about addiction and mental illness.”




June 15, 2016 | Permalink | Comments (0)

Randall & Venkatesh on the Marital Rape Exemption

Melanie Randall and Vasanthi Venkatesh (University of Western Ontario - Faculty of Law and University of California, Berkeley, School of Law, Students) have posted Why Sexual Assault in Intimate Relationships Must Be Criminalized as Required by International Human Rights Law: A Response to the Symposium Comments (American Journal of International Law Unbound, May 17, 2016) on SSRN. Here is the abstract:

Ending the marital rape exemption in criminal law is a demand for legal equality and autonomy for women, rights that are enshrined in international human rights law. Drawing on international human rights law as a source of authority for challenging the marital rape exception in criminal law allows feminist and other social justice organizations, within their specific national and local contexts, to seek greater state action and accountability toward ending this form of violence against women and this violation of women’s human rights. In this reply, we challenge the arguments in the symposium that oppose or caution against criminalizing sexual violence in intimate relationships as a necessary legal strategy, and that refute our view that ending the marital rape exemption is required by international human rights law.

June 15, 2016 | Permalink | Comments (0)

"Conservatives and Criminal Justice Reform"

David Fontana has this post at PrawfsBlawg, commending this book by David Dagan and Steven Teles for explaining "why many conservatives changed their mind about criminal justice issues."

June 15, 2016 | Permalink | Comments (0)

Simon-Kerr on Impeachment

Simon-Kerr juliaJulia Ann Simon-Kerr (University of Connecticut School of Law) has posted Credibility by Proxy (George Washington Law Review, Forthcoming) on SSRN. Here is the abstract:

Evidence jurisprudence assumes that impeachment rules are intended to help determine the truth of the matter by identifying liars. For example, a witness’s credibility can be impeached with evidence that she has a fraud conviction because in theory that conviction suggests she is deceitful and is therefore likely to lie under oath. Scholars, judges and rulemakers have criticized this system of impeachment, demonstrating again and again that the rules are ineffective at identifying liars and lack any social science basis. Yet the impeachment rules endure.

This Article identifies the reason for their endurance in the face of overwhelming evidence: impeachment rules are not and never have been about identifying false statements in order to get to the truth. The purpose of these rules is to identify which persons have the culturally recognized moral integrity or honor to be worthy of belief in court. In other words, impeachment rules enforce not a scientific but a status-based view of truth in which status markers, such as reputation and prior crimes, determine who will be deemed a probable liar. I show this using both historical and modern examples. The effect of this categorical error (confusing status with veracity) is to abandon the avowed purpose of evidence law – truth seeking – in favor of the very different, and potentially contrary goal of norm enforcement. The side-effect is that it perpetuates systemic biases in the justice system. It may be that soon we will have some scientific way to identify liars. In the interim, though, we should abandon status as a proxy for credibility.

June 15, 2016 | Permalink | Comments (0)

Tuesday, June 14, 2016

"Virginia felon voting rights challenged"

From Jurist:

Judicial Watch [advocacy website] filed alawsuit [complaint; press release] Tuesday challenging an executive order by VirginiaGovernor Terry McAuliffe [official website] restoring the voting rights of certain felons. McAuliffe signed an executive order in Aprilrestoring the voting rights [JURIST report] of individuals who have completed the terms of incarceration and have been released from supervised probation or parole for any and all felony convictions. . . . This is the second lawsuit against the order, following a similar challenge [WP report] by Republican lawmakers.

June 14, 2016 | Permalink | Comments (0)

"Omar Mateen’s Wife Under Scrutiny by F.B.I., Official Says"

From The New York Times:

The wife, Noor Zahi Salman, told the F.B.I. that she had driven him to the Pulse nightclub at some point before the attack and that she had also been with him when he purchased ammunition, the official said. But she also said she had tried to talk him out of waging an attack, the official said.

. . .

While a person who withholds knowledge of a crime could face criminal charges, she is not facing imminent arrest, and no decisions have been made on whether she might be prosecuted, the official said.

June 14, 2016 | Permalink | Comments (0)