CrimProf Blog

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

Tuesday, October 10, 2017

Garrido-Munoz on Democratic Standards in Transnational Proceedings

Asier Garrido-Muñoz (International Court of Justice) has posted Assessing Compliance by Third States with Democratic Standards in Transnational Criminal Proceedings: Neutrality Revisited by Domestic Courts? (European Society of International Law (ESIL) 2017 13th Annual Conference & Research Forum) on SSRN. Here is the abstract:
Consider the following: (1) a decision of an English High Court rejecting the extradition of an individual to Rwanda due to the risk of unfair trial by the requesting State; (2) a ruling of the EU General Court annulling the listing of a terrorist group on the basis of information given by the Indian government; and (3) a judgment of the Spanish Supreme Court requiring a prosecuting judge to assess the conditions upon which a criminal complaint has been investigated in Argentina, for the purposes of exercising universal jurisdiction. While apparently unrelated, the three judgments are ‘transnational criminal proceedings’ in which domestic courts assess the ‘democratic quality’ of the legal system of a third state. In the context of long-lasting debates on the interplay between international law’s ideological neutrality, democracy and the rule of law, this work discusses eighteen domestic court decisions by identifying three main approaches to this question: ‘deference’, ‘moderate interventionism’ and ‘interventionism’. It argues that, in assessing the democratic features of the legal order of third States, domestic courts may contribute to the spread of liberal values by re-distributing overlapping claims of normative authority and de-legitimising the exercise of public authority by third States. At the same time, it considers possible geographical or ‘reputational’ imbalances between States in conducting such assessments.

October 10, 2017 | Permalink | Comments (0)

Hughes on Sex Work and the Decriminalization of Abortion

Jula Hughes (University of New Brunswick - Fredericton - Faculty of Law) has posted Perfectly Legal, but Still Bad: Lessons for Sex Work from the Decriminalization of Abortion
(2017) (68 UNBLJ 232) on SSRN. Here is the abstract:
Sex workers’ rights advocates and prostitution abolitionists have argued for a causal link between decriminalization and destigmatization while criminal law theory and jurisprudence similarly suggest a close link between criminalization and stigma. Based on social stigma theory and an observational study of abortion laws in the Maritime provinces, this paper argues that this link is overdrawn. Following the complete decriminalization of abortion in 1988, destigmatization did not follow decriminalization. Instead, abortion stigma continued as all three Maritime provinces adopted restrictive regulatory frameworks. Social stigma theory supports the idea that criminal law plays a labelling function for stigma, but contends that rather than creating stigma, it tends to be responsive to pre-existing stereotypes. Experience with abortion law reform supports the view that public stigma is not very sensitive to changes in structural stigma such as criminal legislation and that the interaction between criminal law and social stigma is complex.

October 10, 2017 | Permalink | Comments (0)

Allen on Burdens of Persuasion

This brief paper presented at a celebration of the career of Michael Risinger, briefly reviews why the relative plausibility theory is to date the best explanation of juridical proof and the limits of its chief competitor, a probabilistic explanation. It is true that the legal system is structured to generate the most probable outcome as the verdict in cases; nonetheless, the conclusion of the most plausible (and thus most probable) outcome is achieved through plausible reasoning, not probabilistic reasoning, and virtually the entire procedural context supports, indeed forces the parties to pursue, this approach. A recent competitor to relative plausibility has been advanced in the form of fuzzy set theory that purportedly dissolves the “conjunction paradox,” which is taken as evidence of the inadequacies of the relative plausibility theory. This paper demonstrates that the purported intimate connection between the conjunction paradox and relative plausibility does not exist.

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October 10, 2017 | Permalink | Comments (0)

Monday, October 9, 2017

"New California law limits reach of registry for lower-level sex offenders"

Doug Berman has this post at Sentencing Law & Policy. From his excerpt of a local report:

The measure was introduced at the request of Los Angeles County Dist. Atty. Jackie Lacey and other law enforcement officials who said the registry, which has grown to more than 105,000 names, is less useful to detectives investigating new sex crimes because it is so bulky.

. . .

The new law signed by the governor creates a tiered registry, with high-risk offenders on the registry for life and others able to petition to be removed after either 10 or 20 years without re-offending, depending on the offense.  Offenses for which registrants can be removed from the list after 20 years include include rape by deception and lewd and lascivious behavior with a child under 14.


October 9, 2017 | Permalink | Comments (0)

"Sessions fleshes out plan to crack down on gangs, drugs and guns"

From Politico:

Attorney General Jeff Sessions is unveiling a new aspect of his promised crackdown on violent crime: the reinvigoration of a longstanding Justice Department program aimed at getting federal prosecutors to make a concerted effort to stem drug trafficking and violent gangs in their communities.

In a memo issued Thursday to U.S. attorneys across the country, Sessions announced plans to impose new requirements aimed at bolstering a 16-year-old initiative known as Project Safe Neighborhoods. The program calls on the chief federal prosecutors to dedicate personnel to violent crime reduction and to develop plans to collaborate with local police and prosecutors to try to get the most violent criminals off the streets.

October 9, 2017 | Permalink | Comments (0)

Bo on Piracy

Marta Bo has posted Piracy at the Intersection between International and National: Regional Enforcement of a Transnational Crime (Forthcoming in: 'Legal Responses to Transnational and International Crimes' (Elgar) edited by Harmen van der Wilt and Christophe Paulussen., T.M.C. Asser Institute for International & European Law 2017-4) on SSRN. Here is the abstract:

In this chapter, the author rebuts the more orthodox view that piracy is an international crime. This article discusses piracy as a transnational crime and contrasts its features with those of international crimes. It further discusses the problematic issues resulting from the multi-layered transnational legal framework applicable to piracy at both the substantive and procedural level. The author concludes by suggesting that a regional adjudicative mechanism may respond to the flaws inherent in transnational criminal law, in its enforcement and adjudication, and ultimately ensure that the rights of suspected pirates are respected and protected.

October 9, 2017 | Permalink | Comments (0)

Green on Prosecutorial Ethics

Green bruceBruce A. Green (Fordham University School of Law) has posted Prosecutorial Ethics in Retrospect (Georgetown Journal of Legal Ethics, Vol. 30, No. 461, 2017) on SSRN. Here is the abstract:
This Essay examines the ethical regulation of prosecutors over the past three decades. The topic is important from the perspective of criminal justice, no less than legal ethics, because prosecutors are centrally responsible for administering the criminal law. Courts assume that the principal role in regulating prosecutors should be played by the states’ formal attorney disciplinary processes rather than by civil liability or judicial oversight in criminal cases. However, there has been a well-justified academic and professional consensus that the disciplinary processes fail to fulfill their expected role because, when it comes to prosecutors, ethics rules are neither sufficiently restrictive nor adequately enforced. Consequently, proponents of criminal justice reform seek to hold prosecutors more accountable for conduct that undermines the fairness and reliability of the criminal justice process, in part, by advocating for stricter ethics rules governing prosecutors’ work and stricter enforcement of existing rules applicable to prosecutors. Those seeking prosecutorial ethics reform face an uphill battle, however, given the significant political influence of prosecutors, who are armed with a checklist of justifications for opposing efforts to regulate their conduct more strictly through the disciplinary process. Consequently, holding prosecutors more accountable may require either developing and strengthening alternatives to formal discipline or restructuring the process by which ethics rules for prosecutors are fashioned and enforced.

October 9, 2017 | Permalink | Comments (0)

Yadin on Virtual Reality Surveillance

Gilad Yadin (University of Haifa, Faculty of Law) has posted Virtual Reality Surveillance (Cardozo Arts & Entertainment Law Journal, Vol. 35, No. 3, 2017) on SSRN. Here is the abstract:
This article challenges government cybersurveillance norms and practices by introducing virtual reality, a unique digital environment which may be justifiably subject to constitutional physical privacy protection. In liberal democracies, government surveillance is driven by public security and enforcement interests, and checked by individual privacy rights. In recent years, this balance has been gradually shifting. Government surveillance of cyberspace has become extensive and constant, effectively unhindered by legal restrictions and judicial oversight; surveillance of physical spaces, subject to the Fourth Amendment, is not as prevalent nor as unrestrained.

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October 9, 2017 | Permalink | Comments (0)

Lawless on HIV Criminalization

Joseph F. Lawless (College of William and Mary, Arts and Sciences, American Studies) has posted The Deceptive Fermata of HIV-Criminalization Law: Rereading the Case of 'Tiger Mandingo' Through the Juridico-Affective (Columbia Journal of Gender and Law, Vol. 35, No. 1, 2017) on SSRN. Here is the abstract:
In July 2015, Michael Johnson, a twenty-three-year-old Black queer college student in Missouri, was sentenced to slightly over thirty years in prison on one count of reckless transmission of Human Immunodeficiency Virus (HIV) to another person and on four counts of reckless attempted transmission of HIV. Johnson’s conviction and exorbitant carceral sentence are not unique, however. State penal laws criminalizing the transmission of HIV have existed for well over twenty-five years and have remained nearly impervious to legal challenge throughout that time. This Article queries the continued vitality of HIV-criminalization laws and argues that their survival reflects their investment in appeals to the affective — the sensations of bodily impingement and intrusion that the terrifying spectacle of HIV is meant to conjure. The injection of the affective into the jurisprudential regime of HIV criminalization is shown to be at the core of Michael Johnson’s prosecution and conviction, animating Johnson’s unwitting transformation into HIV itself. Reflecting on this disturbing genealogy, the discussion concludes with both legal and critical prescriptions to combat the persistence of HIV stigma.

October 9, 2017 | Permalink | Comments (0)

Sunday, October 8, 2017

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

Congressional Control of Presidential Pardons

University of Tennessee College of Law

Revenge Against Robots

Brooklyn Law School

Corpus Linguistics and the Criminal Law

University of North Carolina School of Law

Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives

University of Mississippi, School of Law, Students

Why Fiction?

Hofstra University - Maurice A. Deane School of Law

A Trespass Framework for the Crime of Hacking

University of Virginia - School of Law and U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division

Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine

University of San Diego School of Law

Marijuana Legalization and Nosy Neighbor States

Thomas Jefferson School of Law

'Innocence' and the Guilty Mind

Notre Dame Law School

Dissecting the ABA Texas Capital Punishment Assessment Report of 2013: Death and Texas, a Surprising Improvement

Texas Tech University School of Law

October 8, 2017 | Permalink | Comments (0)

Saturday, October 7, 2017

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

Ssrn logoare here.  The usual disclaimers apply.

Rank Paper Downloads

Forensic Science: Daubert's Failure

Case Western Reserve University School of Law

Feeding the Machine: Policing, Crime Data, & Algorithms

University of California, Davis - School of Law

Reconceiving the Standard Conception of the Prosecutor's Role

University of Calgary

Data Extraterritoriality

University of California, Los Angeles (UCLA) - School of Law


University of California, Irvine School of Law

Carpenter v. United States: Brief of Scholars of Criminal Procedure and Privacy as Amici Curiae in Support of Petitioner

University of the District of Columbia - David A. Clarke School of Law

The Fragile Promise of Open File Discovery

Duke University School of Law

A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age

Western Carolina University and Western Carolina University

Legal Remedies for Police Misconduct

University of Virginia School of Law

Combating Prosecutor Misconduct in Closing Arguments


October 7, 2017 | Permalink | Comments (0)

Friday, October 6, 2017

"Amicus brief in the Fourth Amendment cell-site case"

Orin Kerr posts his brief at The Volokh Conspiracy. From his introduction:

Carpenter is an extremely important case. It’s actually less important for what it will decide directly (rights in cell-site records) than what it will set the framework for indirectly (rights in the entire universe of non-content network records). But that indirect importance will be huge. The big question: Will the court stick with the traditional framework that leaves non-content records unprotected, or will it adopt a new approach — and if adopts a new approach, what will that be?

October 6, 2017 | Permalink | Comments (0)

"US Intelligence Unit Accused Of Illegally Spying On Americans’ Financial Records"

From Buzzfeed, via NACDL news scan:

The intelligence division at the Treasury Department has repeatedly and systematically violated domestic surveillance laws by snooping on the private financial records of US citizens and companies, according to government sources.

Over the past year, at least a dozen employees in another branch of the Treasury Department, the Financial Crimes Enforcement Network, have warned officials and Congress that US citizens’ and residents’ banking and financial data has been illegally searched and stored. And the breach, some sources said, extended to other intelligence agencies, such as the National Security Agency, whose officers used the Treasury’s intelligence division as an illegal back door to gain access to American citizens’ financial records. The NSA did not respond to requests for comment.


October 6, 2017 | Permalink | Comments (0)

"Federal judge upholds Arpaio pardon and dismisses contempt case"

From Jurist:

Last month, 33 members of Congress filed an amicus brief [text] in the matter, asking the court to invalidate Trump's pardon as an unconstitutional violation of the separation of powers. The Congressmen argued that the pardon, as it was handed down, was an infringement on the judiciary's powers by the executive branch. Bolton concluded that no such constitutional issues existed and that Trump acted within his powers when granting Arpaio his pardon.

October 6, 2017 | Permalink | Comments (0)

Patel on Legal Change and the Incidence of Insider Trading

Menesh Patel (Columbia Law School and Columbia Business School, Program in the Law and Economics of Capital Markets) has posted Does Insider Trading Law Change Behavior? An Empirical Analysis on SSRN. Here is the abstract:
Few issues in securities law have excited the popular imagination and generated scholarly interest like insider trading. Yet, a simple but foundational question about insider trading law has received relatively little scholarly attention: Does insider trading law actually influence the amount of insider trading that occurs? This Article tackles this question in the context of one of the highest-profile changes in insider trading law in decades — the Second Circuit’s seminal 2014 decision in United States v. Newman, which substantially weakened insider trading law concerning so called “tippee” liability. The Article’s empirical approach exploits Newman’s change in law to empirically evaluate the effects of changes in insider trading law on insider trading. The Article focuses on insider trading in advance of mergers announced in periods before and after Newman and, for its measure of the extent of insider trading, uses the runup in the stock price of the merger target in advance of the merger’s public announcement. Based on that measure, the Article finds that Newman had a dramatic effect on insider trading, with significantly greater insider trading occurring after Newman than before, thereby providing empirical evidence that insider trading is responsive to changes in insider trading law. The Article provides the first empirical analysis of whether and the extent to which a specific judicial change in insider trading law can influence the amount of insider trading beyond just the trading of corporate insiders. The Article’s empirical findings advance our understanding of the functioning of securities law and inform important policy debates concerning insider trading.

October 6, 2017 | Permalink | Comments (0)

Garrett & Mitchell on The Proficiency of Experts

Brandon L. Garrett and Gregory Mitchell (University of Virginia School of Law and University of Virginia School of Law) have posted The Proficiency of Experts (University of Pennsylvania Law Review, Vol. 66, 2018) on SSRN. Here is the abstract:
Expert evidence plays a crucial role in civil and criminal litigation. Changes in the rules concerning expert admissibility, following the Supreme Court’s Daubert ruling, strengthened judicial review of the reliability and the validity of an expert’s methods. However, judges and scholars have neglected the threshold question for expert evidence: whether a person should be qualified as an expert in the first place. Judges traditionally focus on credentials or experience when qualifying experts without regard to whether those criteria are good proxies for true expertise. We argue that credentials and experience are often poor proxies for proficiency. Qualification of an expert presumes that the witness can perform in a particular domain with a proficiency that non-experts cannot achieve, yet many experts cannot provide empirical evidence that they do in fact perform at high levels of proficiency. To demonstrate the importance of proficiency data, we collect and analyze two decades of proficiency testing of latent fingerprint examiners.

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October 6, 2017 | Permalink | Comments (0)

Thursday, October 5, 2017

"Prosecutors slammed for ‘lack of moral compass,’ withholding evidence in widening Mass. drug lab scandal"

From The Washington Post:

All of this led to a six-day hearing in December 2016 on the prosecutorial misconduct of Kaczmarek and Foster, and then a scathing 127-page order in June by Superior Court Judge Richard J. Carey. Carey concluded that Foster’s denial “of having made any mistakes underscores her lack of a moral compass” and that her and Kaczmarek’s conduct was “reprehensible and magnified by the fact that it was not limited to an isolated incident, but a series of calculated misrepresentations. The ramifications from their misconduct are nothing short of systemic.”

. . .

Jacobstein said that the attorney general’s office had provided some lists of cases tested by Farak but that they were incomplete, with no case numbers or co-defendants. Some of the 11 district attorneys in Massachusetts have provided some lists of Farak defendants, and the public defenders were in negotiations with the prosecutors for a full list, but those were stopped until a ruling issued from Carey. His blistering opinion of the actions of the attorney general’s office has sparked not only the lawsuit demanding action  but also a bar complaint from the Innocence Project against Kaczmarek and Foster.

October 5, 2017 | Permalink | Comments (0)

"ACLU sues Chicago police for disability and race violations"

From Jurist:

The American Civil Liberties Union of Illinois(ACLU-IL) [advocacy website] filed a lawsuit [press release] Wednesday accusing the Chicago Police Department (CPD) [official site] of widespread abuses against people with disabilities and ethnic minorities.

The suit [complaint, PDF] follows the release of the US Department of Justice[official website] report[JURIST report], which found that the CPD repeatedly violates the rights of the disabled in addition to systemic abuses against people of color.

October 5, 2017 | Permalink | Comments (0)

Scandinavian Prisons

Two chapters from a recent book, Scandinavian Penal History, Culture and Prison Practice: Embraced by the Welfare State (2017), PS Smith and T Ugelvik (eds), London: Palgrave, have been posted on SSRN. The first is Peter Scharff Smith and Thomas Ugelvik (Independent and University of Oslo), Introduction: Punishment, Welfare and Prison History in Scandinavia. Here is the abstract:

This book is about Scandinavian prisons and their possible relationship with the Scandinavian welfare states and their associated values. One can argue that there exist multiple strong connections between the welfare and the penal systems in all these countries. It has even been claimed that it makes sense to call Scandinavian prisons welfare state institutions. On the other hand, one could perhaps say that all public institutions, including schools and hospitals, by nature are closely connected to the welfare state. If that is the case, however, then what is unique or even especially interesting about the relationship between prisons and welfare states in Scandinavian societies? Or to ask in another way, are Scandinavian schools, hospitals, etc. especially humane and well functioning compared to those in other countries, thanks to the Scandinavian welfare state model? It is not a question which will be answered nor researched in this volume but the hypothesis seems somewhat unlikely. But why then have welfare ambitions been found to be relatively high in Scandinavian prisons and how does that possibly reflect the quality, values and presence of the welfare state?

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October 5, 2017 | Permalink | Comments (0)

Kim & chae on Anchoring Effect of Prosecutor's Demand on Sentence

Jungwook Kim and Subok Chae (Korea Development Institute (KDI) and Korea Development Institute (KDI)) have posted Anchoring Effect of the Prosecutor's Demand on Sentence: Evidence from Korean Sexual Crime Case (KDI Journal of Economic Policy 2017, 39(3): 1–18) on SSRN. Here is the abstract:
The anchoring effect can be found when a decision shows cognitive prejudice towards the initial information given. Several studies have argued that such an effect is present even for judges in the courtroom. This paper seeks to find a relationship between judges’ decisions on penalty sentences and the sentences recommended by prosecutors. In this study, 2,773 actual court cases are considered in the analysis, and quantile regression is used to show that the sentencing decisions judges make are anchored by the recommendations of prosecutors. However, this reliance on recommendations differs according to the seriousness of the crime committed. Specifically, at the lowest penalty levels, a one-month increase in the prosecutors’ sentencing recommendation results in a 0.25-month increase in the judges’ sentence, while at the highest sentence level, the judges’ sentences increase by 0.78 months under an identical condition. The results of this research indicate the need to create more objective and clear sentencing guidelines in the future in an effort to mitigate the psychological pressure experienced by judges with regard to serious offences or heinous crimes.

October 5, 2017 | Permalink | Comments (0)