CrimProf Blog

Rosenthal on The Law and Economics of De-Policing

Lawrence Rosenthal (Chapman University, The Dale E. Fowler School of Law) has posted The Law and Economics of De-Policing (Federal Sentencing Reporter, Vol. 33, No. 1-2, pp. 128–141 (Oct./Dec. 2020)) on SSRN. Here is the abstract:

 

There is mounting evidence for what some have dubbed “De-Policing" — police retreat in the face of hostile public scrutiny, often in the wake of a highly publicized incident of police misconduct. Recent data reviewed by Professors Richard Rosenfeld and Paul Cassell in their important papers document sharp spikes in violent crime in major cities following the outbreak of widespread protests against police violence beginning in May 2020, after the killing of George Floyd by Minneapolis police officers.

It is a devilishly difficult business to ascertain the causes of changes in crime rates. Even granting the ineradicable uncertainties, this article argues that there is an impressive case that the 2020 crime spike reflects de-policing. This paper first examines the data reflecting what Professor Cassell dubs a "Minneapolis Effect" because it followed the police killing of George Floyd in Minneapolis, and then considers the likely mechanism that produces this type of de-policing effect.

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Robbins on Sham Subpoenas and Prosecutorial Ethics

Ira P. Robbins (American University - Washington College of Law) has posted Sham Subpoenas and Prosecutorial Ethics (American Criminal Law Review, Vol. 58, No. 1, 2021) on SSRN. Here is the abstract:

 

Prosecutors are given broad freedom to conduct their investigations throughout the grand jury process; their power is not without legal and ethical limits, however. For example, courts have discretion to quash subpoenas that have been issued without a proper purpose.

Unlike law enforcement officials who may use deceptive tactics throughout an investigation, prosecutors are subject to professional rules of responsibility. All lawyers are subject to some variation of Rule 4.2 of the Model Rules of Professional Responsibility--the No-Contact Rule--which prohibits a lawyer from communicating with a represented individual. Prosecutors, however, have escaped the Rule’s reach by communicating with represented individuals through the use of undercover informants.

Moreover, some prosecutors have abused the grand jury process by creating sham subpoena documents that have targeted witnesses and victims of crime.

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Bell on Nosy Questions by Police

Jeannine Bell (Indiana University Maurer School of Law) has posted The Violence of Nosy Questions (Boston University Law Review, Vol. 100) on SSRN. Here is the abstract:

 

This Essay examines a little-studied aspect of police procedure: police officers’ unfettered power to ask questions of motorists. The questions officers ask after they have stopped a car can run the gamut from questions about the nature of the motorist’s travel plans to nosy personal questions. Such questions are often intrusive, and drivers report feeling degraded by having to answer them. This Essay argues that these questions should be regulated because giving officers complete control over what they ask motorists provides a significant space for racial discrimination in policing, creates resentment, and encourages minorities to distrust the police.

Morse on Internal and External Challenges to Culpability

Stephen Morse (University of Pennsylvania Law School) has posted Internal and External Challenges to Culpability (Arizona State Law Journal, Vol. 53, No. 2, Forthcoming) on SSRN. Here is the abstract:

 

This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to the importance of mental states in the context of mental abnormalities and of external challenges to personhood and agency based on the new behavioral neuroscience and genetics. The latter challengers argue that the central role the criminal law gives to mental states is deeply misguided. All these challenges should fail on conceptual and empirical grounds.

Ward on Causality and Attenuation

Bryan H. Ward (Ohio Northern University - Pettit College of Law) has posted Restoring Causality to Attenuation: Establishing the Breadth of a Fourth Amendment Violation on SSRN. Here is the abstract:

 

When the police violate a suspect’s Fourth Amendment rights what often follows is the discovery of incriminating evidence. Sometimes the evidence is discovered directly after the Fourth Amendment violation. In other situations, the evidence comes by a more indirect route and may occur long after the original Fourth Amendment violation. Courts struggle when trying to decide if the discovery of this indirectly obtained evidence was caused by the police misconduct. This causal question is important because causality acts as a limiting principle when deciding when to apply the exclusionary rule. A basic view of the exclusionary rule suggests that evidence should not be excluded when its discovery was not caused by the misconduct of the police. Yet, courts struggle with deciding the scope of a Fourth Amendment violation. The United States Supreme Court crafted the attenuation doctrine to assist in establishing the breadth of a Fourth Amendment violation. Attenuation simply stands for the proposition that not all evidence that is discovered subsequent to a Fourth Amendment violation is a consequence of that violation. Sometimes, the evidence results from an altogether different cause. If that is the case, the evidence is “attenuated” and the exclusionary rule should no longer be an issue. Yet, over time, the Supreme Court has whittled away the straightforward causal nature of attenuation and has substituted other policy-based tests to assess indirectly discovered evidence.

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Shang on The SEC's Deterrence of Corporate Fraud

Botong Shang (University of Rochester - Simon Business School) has posted The SEC’s Deterrence Effect on Corporate Fraud on SSRN. Here is the abstract:

 

I develop and estimate, using hand-collected data, a game-theoretic model of strategic corporate fraud, that incorporates and quantifies firms' adjustments in fraud propensities in response to regulators' information processing capacity. The findings are economically significant. A one standard deviation change in different regulatory interventions is associated with an annual increase of 10 to 58 fraudulent cases. I exploit the 2005 option backdating scandal as an exogenous shock to regulatory attention, and find further support for both the opportunism in fraud and the deterrence effect. I document that fraudulent behavior is heterogeneous in executive incentives and firm complexity.

Willis on Capacity and Insanity

Roxana Willis (University of Oxford - University College) has posted Critical Perspectives on Capacity & Insanity: A Lecture Transcript on SSRN. Here is the abstract:

 

Working draft of a lecture transcript on capacity and insanity. The lecture is split into two parts. The first lecture looks at capacity and how children under the age of ten lack criminal responsibility. The second lecture examines insanity. Before examining the substantive law, the paper introduces some background theoretical concepts to aid thinking about capacity and insanity and the criminal law and legal system more broadly.

Aharonson & Shaffer on Drug Legalization and International Law

Ely Aharonson and Gregory Shaffer (Haifa University - Faculty of Law and University of California, Irvine School of Law) have posted Introduction To Symposium on Drug Decriminalization, Legalization and International Law (114 AJIL Unbound, 274 (2020)) on SSRN. Here is the abstract:

 

The UN Drug Conventions have nearly universal membership. For decades, the Conventions were widely interpreted as requiring signatory countries to criminalize the cultivation, distribution, sale, and possession of the substances that the Conventions listed in their most restricted schedules. These schedules included cannabis. However, over the past few years, countries around the globe have decriminalized or legalized the personal use of cannabis for medical and recreational purposes. A number of states – including Uruguay, Canada, and eleven states in the United States – have established new regulatory frameworks for governing legal cannabis markets. This symposium explores the implications of the current proliferation of cannabis liberalization reforms for the international drug regime, and for the development of international law and local practice more broadly. Are decriminalization and legalization reforms in conflict with states’ treaty obligations, in letter or in spirit? Is this a moment of transformation for the international drug regime, or an existential threat to its future? While of great practical importance, these dynamics also bear more broadly on questions of how regimes interact (such as drug prohibition, human rights, and public health regimes), how treaties and international institutions evolve and change, and how domestic politics, law, and practice bear on the development and transformation of international law.

Chan et al. on State Versus Federal Wiretap Orders

Jason Chan, Jin-Hyuk Kim and Liad Wagman (University of Minnesota - Twin Cities - Carlson School of Management, University of Colorado at Boulder and Illinois Institute of Technology - Stuart School of Business, IIT) have posted State Versus Federal Wiretap Orders: A Look at the Data on SSRN. Here is the abstract:

 

Title III, codified at Title 18 USC \S\S 2510-2521, allows for federal and state law enforcement interceptions of wire, oral, or electronic communications, which requires obtaining a court order. For the two parallel court systems in the United States, however, the operational standard being followed by law enforcement agencies may differ. This paper compares the outcomes from wiretap orders authorized by the federal and the state courts. Guided by an economic model of criminal behavior, we show that arrests and convictions increase in wiretap intensity (at a diminishing rate), but federal orders reach the peak point faster than state orders so. We do not find cross effects between the two layers of wiretap orders.

Hanan on Incarcerated Activism During COVID-19

Eve Hanan (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Incarcerated Activism During COVID-19 (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

Incarcerated people have a notoriously difficult time advocating for themselves. Like other authoritarian institutions, prisons severely curtail and often punish speech, organizing, and self-advocacy. Also like other authoritarian institutions, prison administrators are inclined to suppress protest rather than respond to the grounds for protest. Yet, despite impediments to their participation, incarcerated people have organized during the pandemic, advocating for themselves through media channels, public forums, and the courts. Indeed, a dramatic increase in prisoner activism correlates with the onset of the COVID-19 pandemic.

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Parks & Grindell on Hazing

Gregory Scott Parks and Elizabeth Grindell (Wake Forest University - School of Law and Wake Forest University, School of Law, Students) have posted The Litigation Landscape of Fraternity and Sorority Hazing: Criminal and Civil Liability (Nebraska Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In this article, we explore the criminal liability that adheres to individuals and organizations as well as the development of criminal statutes in this domain. Also, we grapple with member, chapter, and national organization civil liability as well as university and university staff civil liability. This article is part of a series of articles that have tried to make sense of the underlying factors that undergird and propel hazing. It also serves as a basis for a book trilogy I am currently working on about hazing—its roots and solutions.

Lave on Arizona's Sex Offender Laws

Tamara Rice Lave (University of Miami, School of Law) has posted Arizona’s Sex Offender Laws: Recommendations for Reform (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

In this Article, I consider ways in which Arizona’s laws regarding sex offenders should be reformed. I begin by focusing on laws that are designed to deal with the danger posed by convicted sex offenders: registration requirements, residence restrictions, and civil commitment. I contend that the state has overstated the risk posed by convicted sex offenders and that the laws meant to control them may do more harm than good. Next, I turn to police sexual violence. I argue that the state needs to go further in criminalizing this abhorrent conduct in order to promote the rule of law and protect vulnerable persons.

Backer on The Semiotics of Consent in Sexual Assault

Larry Catá Backer (The Pennsylvania State University (University Park) – Penn State Law) has posted The Semiotics of Consent and the American Law Institute’s Reform of the Model Penal Code’s Sexual Assault Provisions (Coimbra Journal for Legal Studies 1(1) 2020) on SSRN. Here is the abstract:

 

The concept of consent is ubiquitous in the West. It is the foundation of its construction of meaning for sovereignty (and political legitimacy), and for personal autonomy (and human dignity). Ubiquity, however, has come with a price. The making of a transposable meaning for consent that bridges political community and interpersonal relations has drawn sharply into focus the malleability of the concept, and its utility for masking a power of politics behind an orthodoxy of meaning that is both politically correct, and at the same time its own inversion. This short essay on the semiotics of “consent” considers the manifestation of the concept as object, as symbol, and as a cluster of political interpretation that itself contains within it the Janus faced morality of political correctness. It takes as its starting and end point the idea that free consent is the product of a process of management that reduces consent to the sum of status and authority over the thing assented.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Banishing ‘Sex Offenders': How Meaningless Language Makes Bad Law Guy Padraic Hamilton-Smith Mitchell Hamline School of Law Date Posted: 03 Dec 2020 [2nd last week]	418
2.	Redeeming Justice Rachel Lopez, Terrell Carter and Kempis Songster Drexel University Thomas R. Kline School of Law, Villanova University and Amistad Law Project Date Posted: 13 Nov 2020 [3rd last week]	270
3.	The Legality of Presidential Self-Pardons Paul J. Larkin, Jr. The Heritage Foundation Date Posted: 09 Dec 2020 [4th last week]	261
4.	Police Prosecutions and Punitive Instincts Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 16 Nov 2020 [5th last week]	213
5.	Decarceration and Default Mental States Benjamin Levin University of Colorado Law School Date Posted: 20 Nov 2020 [7th last week]	117
6.	Invisible Prisons Eve Hanan University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 07 Dec 2020 [9th last week]	111
7.	Permission and Purpose: Does a Person Violate the Federal Computer Fraud Statute by Accessing a Computer with Authorization but for an Improper Purpose? Brooks Holland Gonzaga University School of Law Date Posted: 02 Dec 2020 [10th last week]	104
8.	Digital Age Samaritans Zachary D. Kaufman University of Houston Law Center Date Posted: 02 Dec 2020 [new to top ten]	103
9.	The DNA of Therapeutic Jurisprudence David B. Wexler University of Puerto Rico - School of Law Date Posted: 18 Nov 2020 [new to top ten]	90
10.	Unpunishable Criminals Mihailis Diamantis University of Iowa - College of Law Date Posted: 02 Dec 2020 [new to top ten]	86

Dissents from order vacating stay of execution

Justice Breyer's and Justice Sotomayor's dissents in United States v. Higgs are here and here.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Fourth Amendment Limits of Internet Content Preservation Orin S. Kerr University of California, Berkeley School of Law Date Posted: 18 Dec 2020	773
2.	Movement Law Amna A. Akbar, Sameer M. Ashar and Jocelyn Simonson Ohio State University (OSU) - Michael E. Moritz College of Law, University of California, Irvine School of Law and Brooklyn Law School Date Posted: 23 Nov 2020	577
3.	Police Reform Through a Power Lens Jocelyn Simonson Brooklyn Law School Date Posted: 25 Nov 2020	453
4.	Policing and 'Bluelining' Aya Gruber University of Colorado Law School Date Posted: 04 Jan 2021 [9th last week]	240
5.	Police Prosecutions and Punitive Instincts Kate Levine Yeshiva University - Benjamin N. Cardozo School of Law Date Posted: 16 Nov 2020 [4th last week]	213
6.	The Corruption of the Pardon Power: What are the Limits? Albert W. Alschuler University of Chicago Law School Date Posted: 23 Nov 2020 [5th last week]	199
7.	Disbanding Police Agencies Anthony O'Rourke, Rick Su and Guyora Binder University at Buffalo Law School, University of North Carolina School of Law and University at Buffalo Law School Date Posted: 02 Dec 2020 [6th last week]	179
8.	Impact of the Law Enforcement Officers’ Bill of Rights on Police Transparency & Accountability Richard DeShay Elliott Johns Hopkins University- Department of Political Science Date Posted: 19 Nov 2020 [7th last week]	135
9.	COVID-19 Sewage Testing as a Police Surveillance Infrastructure Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 07 Dec 2020 [10th last week]	102
10.	How Federalism Built the FBI, Sustained Local Police, and Left Out the States Daniel C. Richman and Sarah Seo Columbia Law School and Columbia Law School Date Posted: 30 Nov 2020 [new to top ten]	91

Berryessa on Autism Spectrum Disorder

Colleen Berryessa (Rutgers, The State University of New Jersey - School of Criminal Justice) has posted Defendants with Autism Spectrum Disorder in Criminal Court: A Judges' Toolkit

(13 Drexel Law Review (Forthcoming)) on SSRN. Here is the abstract:

This Article acts as a toolkit for members of the judiciary on defendants with Autism Spectrum Disorder (ASD), and specifically looks to equip judges with knowledge, evidence, and resources on recognizing and understanding symptoms of ASD in order to better identify and evaluate diagnosed defendants and their offending behavior. This will allow judges to have impactful and beneficial interactions with defendants, potentially make appropriate procedural and sentencing adjustments before and during the legal process, and better ensure more positive and appropriate legal outcomes for defendants with ASD. First, this Article discusses ways in which judges can identify defendants with ASD in court by recognizing and understanding both distinctive characteristics of offending and courtroom behavior that may be exhibited in cases involving defendants with ASD. Recognizing the limited previous research on judges’ understanding of ASD’s legal relevance, this Article additionally provides judges guidance on three aspects of the legal process in which ASD may be forensically significant for defendants: fitness to stand trial, negating criminal elements necessary for criminal liability, and sentencing decisions. Finally, this Article puts forth recommendations for judges in order to improve the legal process for defendants with ASD.

Denno on Neuroscientific Evidence

Deborah W. Denno (Fordham University School of Law) has posted Empirical Use of Neuroscientific Evidence in Criminal Justice (in THE ENCYCLOPEDIA OF BEHAVIOURAL NEUROSCIENCE (2nd ed.). Amsterdam, Netherlands: Elsevier _ (Sergio Della Salla, ed. 2021) (Forthcoming)) on SSRN. Here is the abstract:

 

The growing influx of neuroscientific evidence in various criminal justice systems has prompted several excellent assessments of the nature and degree of its impact in courtrooms in the United States and other countries. However, there have been few efforts to conduct a comparative analysis of systematic empirical research on the use of neuroscientific evidence in criminal cases, which is this chapter's goal. This review breaks new ground by detailing the critical similarities and differences among all seven empirical studies that researchers have conducted up to 2019. What is the main takeaway? Across most of the studies, neuroscientific evidence was firmly planted in five different countries' criminal justice systems, and defense attorneys primarily used it for purposes of mitigation. Research findings documented the extent of its impact at all phases of the criminal justice system, particularly sentencing. Most studies also reported that the use of such evidence in the courtroom was increasing over time or, if not, it was being more thoroughly discussed. In essence, neuroscientific evidence has a secure foothold in criminal justice that will only become stronger. That said, it is critically important to emphasize the studies' limitations and the nuances behind their results. While the studies employed a common framework and relied on widely accepted legal databases, they also shared deep structural challenges. Empirical research is showing more accurately how neuroscientific evidence is helping criminal justice systems better assess mental states and assign punishments. Yet, the legal system's process of collecting and organizing information needs to advance and modernize.

Verdier & Stephan on FCPA and Human Rights

Pierre-Hugues Verdier and Paul B. Stephan (University of Virginia School of Law and University of Virginia School of Law) have posted International Human Rights and Multinational Corporations: An FCPA Approach (Boston University Law Review, Forthcoming, Vol. 101 (2021)) on SSRN. Here is the abstract:

 

Recent Supreme Court decisions have severely curtailed the reach of the Alien Tort Statute (ATS), making it nearly impossible to hold multinational corporations accountable in the United States for grave human rights violations overseas. In this article, we propose a new strategy that borrows from the U.S. antibribery regime under the Foreign Corrupt Practices Act of 1977 (FCPA). We demonstrate that the fundamental aspects of this regime can be adapted to cover corporate involvement in human rights violations while remedying many of the serious shortcomings that compromised the effectiveness of civil litigation. A FCPA-based regime would clearly define the prohibited conduct by reference to existing U.S. statutes that criminalize grave human rights violations. It would delineate a clear jurisdictional scope, centered around U.S. corporations and foreign corporations who choose to access U.S. securities markets, and provide clear rules for holding corporations accountable for complicity in human rights violations committed by others. By placing enforcement decisions in the hands of federal prosecutors rather than private plaintiffs, it would avoid the separation of powers concerns that played a central role in the ATS’s demise. Like the FCPA has done for foreign bribery, this model would not only give multinational corporations a powerful incentive to avoid involvement in grave human rights violations but also give the United States a tool for inducing other states to pressure companies under their influence to do the same.

Gutman on Wrongful Conviction Compensation Statutes

Jeffrey S. Gutman (George Washington University - Law School) has posted Are Federal Exonerees Paid?: Lessons for the Drafting and Interpretation of Wrongful Conviction Compensation Statutes (Cleveland State Law Review, Vol. 69, No. 2, 2021) on SSRN. Here is the abstract:

 

In this third of a series of articles on wrongful conviction compensation statutes, Professor Jeffrey Gutman tackles the first statute attempted to be passed in the United States – the federal wrongful conviction compensation statute. Championed in concept by Edwin Borchard, it was in fact poorly drafted, and recommendations by Attorney General Homer Cummings to improve it were only partly successful. This Article retraces the long legislative history of the statute which is dotted with sloppy language and reasoning, unexplained amendments and an unfortunate focus on who was not to benefit from it, rather than who was. This tangled legislative history has resulted in two lines of cases, which either interpret it and the statute faithfully with poor results or rebel against it yielding better results as a matter of policy, but with dubious statutory support.

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