CrimProf Blog

Jochnowitz on The (Uncertain) "Withering Away" of the Death Penalty

Leona Deborah Jochnowitz (Curry College) has posted The (Uncertain) 'Withering Away' of the Death Penalty Due to Decreasing Popularity and Super-Regulatory Costs on SSRN. Here is the abstract:

 

This concept paper examines three new books on the death penalty, published from 2016-2018 for differing theses regarding possible abolition. Scholars during this period have interpreted the decreasing popularity of capital punishment and a super-regulatory costly legal environment as “the withering away” of the death penalty. The themes of the books center both on the slow demise of the death penalty due to expensive, time consuming legal regulation and racial inequality and on the expectations and upset results of the 2016 presidential race related to prospective Supreme Court appointments and the death penalty’s judicial abolition. The end result is not certain. 

Opinion on ACCA's coverage of robbery

Justice Thomas delivered the opinion of the Court in Stokeling v. United States. Justice Sotomayor filed a dissenting opinion, joined by the Chief Justice and Justices Ginsburg and Kagan.

Grace on Restrictions on Algorithmic Police Intelligence Analysis Tools

Jamie Grace (Sheffield Hallam University) has posted Human Rights, Regulation and the Right to Restrictions on Algorithmic Police Intelligence Analysis Tools in the UK on SSRN. Here is the abstract:

 

The deployment of machine-learning technologies around decision-making and decision-support contexts in UK policing raises some new, and in some ways some very familiar, human rights issues. This paper discusses the extent to which Part 3 of the Data Protection Act 2018 offers scope for the judicial review of the design or control of an algorithmic police intelligence analysis tool (an APIAT) to be used in the UK criminal justice context. This discussion is centred around key considerations of the right to restriction of law enforcement processing (of data points in an algorithm) where the data processing may lead to 'inaccuracy' that is misleading - and which in turn might lead to errors in the treatment of a data subject in the justice system that may be a breach, not just of data protection rights, but of fundamental human rights, as a result.

de Moncuit on Legitimacy, Criminal Law, and Antitrust

Godefroy de Moncuit (University of Paris saclay) has posted Legitimacy Test for Criminal Sanction: Antitrust Law Perspective (11 Global Competition Litigation Review, Issue 4 (November 2018)) on SSRN. Here is the abstract:

 

The issue of imprisonment as a means to deter competition law offences is widely debated in doctrine. The purpose of this article is not to expound the ideas already mentioned in the legal literature on the advantages/disadvantages of such a sentence. This paper will focus on the question of whether imprisonment is a legitimate punishment to deter anti-competitive behaviours, regarding the theoretical, legal and/or practical difficulties encountered for a successful policy of European antitrust criminalization. To answer this question, the prison sentence issue against managers involved in cartel practices requires the application of a legitimacy test. Regarding this test, three conditions must be examined to legitimize the imprisonment of individuals responsible for an anticompetitive practice: the seriousness of the practice, the risk of type 1 error, and the social consensus on the seriousness of market violations.

Hill on Corporate Crime

Jennifer G. Hill (The University of Sydney Law School) has posted Legal Personhood and Liability for Flawed Corporate Cultures (European Corporate Governance Institute (ECGI)) on SSRN. Here is the abstract:

 

A number of recent corporate law scandals (including the Wells Fargo fraudulent accounts scandal, the Volkswagen emissions scandal, sexual harassment claims at Fox News and CBS, and various banking scandals currently under investigation in a high profile Australian Royal Commission) epitomize the danger posed by flawed corporate cultures. These scandals demonstrate that such organizational cultures can inflict damage on stakeholders, communities and society as a whole. The aim of this study is to explore, from a theoretical and comparative perspective, the issue of accountability for misconduct arising from flawed corporate cultures. This situation raises unique questions as to whom the law should target for misconduct in these circumstances. The research paper examines two specific types of liability which may be relevant in the context of misconduct arising from defective corporate cultures – (i) entity criminal liability and (ii) personal liability of directors and officers for breach of duty to their company. The study compares these forms of liability in the United States, the United Kingdom and Australia, to assess the extent to which they are well-suited to providing accountability for misconduct arising from flawed corporate cultures. As this comparative analysis shows, there are significant jurisdictional differences in these areas of law, which, in some cases, make such forms of liability ill-suited to achieve such accountability.

Easteal et al. on Victims' Reality of Domestic Violence

Patricia L. Easteal, Lorana Bartels and Reeva Mittal (University of Canberra - School of Law and Justice, University of Canberra - School of Law and Justice and University of Canberra - Faculty of Business, Government and Law) has posted The Importance of Understanding the Victims’ ‘Reality’ of Domestic Violence (Alternative Law Journal, OI:/10.1177/1037969X18790040, 2018) on SSRN. Here is the abstract:

 

We argue that unconscious assumptions may filter out the diverse ‘realities’ of domestic violence victims. Despite legal and policy reform, it seems that these biases may continue to affect how relevant legislation is applied and interpreted. We examine a small sample of sentencing remarks in recent Queensland domestic violence order breach cases to illustrate the importance of judicial officers’ awareness of the seriousness and harm of psychological or mental abuses – the victims’ ‘reality’ of domestic violence. We conclude that sentencing for domestic violence offences and breaches of protection orders needs to be underpinned by knowledge of the long-term effects of emotional abuse.

Lee on Juries and Moral Judgments

Youngjae Lee (Fordham University School of Law) has posted The Criminal Jury, Moral Judgments, and Political Representation (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? The- se are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury — that the jury routinely decides normative questions — is frequently noted but is rarely examined. What does it exactly mean when we say that juries make normative determinations, and what is the nature of the inquiry that the jurors are engaging in when they consider moral questions in this particular setting? More specifically, this Article asks whether a juror, when making moral judgments, should follow his or her individual moral beliefs or identify and implement the community’s perspective.

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Diamantis on Character Theory of Corporate Punishment

Mihailis Diamantis (University of Iowa - College of Law) has posted Duck-Rabbit: A Reply to Professor Hasnas (103 Iowa L. Rev. Online 133 (2018)) on SSRN. Here is the abstract:

 

In an earlier article, I introduced the character theory of corporate punishment. Inspired by virtue ethics, the theory proposes that criminal law should punish corporations only by coercively reforming the criminogenic organizational traits responsible for the corporation's crime. In a response, Professor Hasnas argued that character theory is better viewed as a theory of corporate regulation rather than punishment. This reply concessively counters that one of character theory's strengths is that its recommendations have both regulatory and punitive dimensions.

Stoughton on Evidence-Based Policing

Seth W. Stoughton (University of South Carolina School of Law) has posted The Legal Framework for Evidence-Based Policing in the United States (in Evidence Based Policing: An Introduction (Renée J. Mitchell & Laura Huey, eds., 2018)) on SSRN. Here is the abstract:

 

This book chapter examines the existing legal framework for evidence-based policing in the United States, identifying three areas in which contemporary constitutional and sub-constitutional law create obstacles to evidence-based policing and exploring how reforms to the legal system could instead create incentives.

First, constitutional decision-making by the Supreme Court is often predicated on the justices’ understanding of police practices and the environment in which officers operate. The Court has proven willing to rely on its own factual assumptions even when there is a noticeable lacuna of evidence that support its assertions. With the improved availability of information, evidence-based policing can offer the Court and other judicial decision-makers a more robust and accurate understanding of the world that they are regulating. In the same vein, courts can inspire police agencies to adopt evidence-based practices by relying more heavily on reliably gathered data rather than anecdotes and speculation.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Crime Follies: Overcriminalization, Independent Prosecutors, and the Rule of Law Glenn Harlan Reynolds University of Tennessee College of Law Date Posted: 20 Dec 2018	1,355
2.	Drug-Induced Homicide Defense Toolkit Valena Elizabeth Beety, Alex Kreit, Jeremiah Goulka and Leo Beletsky West Virginia University - College of Law, Ohio State University - Michael E. Moritz College of Law, Drug Enforcement and Policy Center, Health in Justice Action Lab and Northeastern University - School of Law; Northeastern University - Bouvé College of Health Sciences Date Posted: 11 Nov 2018	465
3.	The Time Frame Challenge to Retributivism Adam J. Kolber Brooklyn Law School Date Posted: 12 Nov 2018  Last Revised: 16 Nov 2018 [4th last week]
4.	Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt University of Zurich - Department of Economics, University of Pennsylvania, Behavioral Ethics Lab, Harvard University - Edmond J. Safra Center for Ethics and University of Kiel - Institute of Economics Date Posted: 31 Dec 2018 [new to top ten]	59
5.	Criminal Law and the Constitution of Civil Order R. A. Duff University of Stirling - Department of Philosophy Date Posted: 27 Nov 2018 [7th last week]	54
6.	Knowledge and Belief as Criminal Law Mental States Kevin Cole University of San Diego School of Law Date Posted: 26 Nov 2018	53
7.	Prosecution and Punishment of Corporate Criminality Mihailis Diamantis and William S. Laufer University of Iowa - College of Law and University of Pennsylvania - Legal Studies Department Date Posted: 20 Dec 2018 [new to top ten]	50
8.	Reinvigorating Criminal Antitrust? D. Daniel Sokol University of Florida Levin College of Law Date Posted: 27 Dec 2018 [new to top ten]	48
9.	Unwitting Justification Peter K. Westen University of Michigan Law School Date Posted: 14 Nov 2018 [8th last week]	42
10.	Writing Vagrant Nation Risa L. Goluboff University of Virginia School of Law Date Posted: 03 Dec 2018 [new to top ten]	40

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Implementing Carpenter Orin S. Kerr University of Southern California Gould School of Law Date Posted: 18 Dec 2018	549
2.	The Uncertain Future of Forensic Science Jennifer Mnookin University of California, Los Angeles (UCLA) - School of Law Date Posted: 13 Dec 2018 [3rd last week]	307
3.	Fictional Pleas Thea Johnson University of Maine School of Law Date Posted: 18 Nov 2018 [6th last week]	200
4.	The Place of 'the People' in Criminal Procedure Jocelyn Simonson Brooklyn Law School Date Posted: 13 Nov 2018 [5th last week]	199
5.	Statement of Commissioner Gail Heriot in the U.S. Commission on Civil Rights’ report, Police Use of Force: An Examination of Modern Policing Practices Gail L. Heriot University of San Diego School of Law Date Posted: 16 Nov 2018 [7th last week]	152
6.	The Paradoxes of Legal Proof: A Critical Guide Michael S. Pardo University of Alabama School of Law Date Posted: 11 Dec 2018 [9th last week]	130
7.	Fourth Amendment Reasonableness After Carpenter Alan Z. Rozenshtein University of Minnesota Law School Date Posted: 04 Jan 2019 [new to top ten]	109
8.	Where Have All the Innocents Gone? George Thomas Rutgers University, New Brunswick Date Posted: 26 Nov 2018 [new to top ten]	64
9.	An Unappreciated Constraint on the President's Pardon Power Aaron J. Rappaport University of California Hastings College of the Law Date Posted: 03 Dec 2018 [new to top ten]	63
10.	Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions Eve Brensike Primus University of Michigan Law School Date Posted: 11 Dec 2018 [new to top ten]

Yesterday's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

• Rehaif v. United States: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.
• Mitchell v. Wisconsin: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.
• McDonough v. Smith: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.
• Quarles v. United States: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

Alimardani & Chin on Neurolaw in Australia

Armin Alimardani and Jason Chin (University of New South Wales (UNSW) - Faculty of Law and The University of Queensland - T.C. Beirne School of Law) have posted Neurolaw in Australia: The Use of Neuroscience in Australian Criminal Proceedings (Neuroethics, Forthcoming) on SSRN. Here is the abstract:

 

Recent research has detailed the use of neuroscience in several jurisdictions, but Australia remains a notable omission. To fill this substantial void we performed a systematic review of neuroscience in Australian criminal cases. The first section of this article reports the results of our review by detailing the purposes for which neuroscience is admitted into Australian criminal courts. We found that neuroscience is being admitted pre-trial (as evidence of fitness to stand trial), at trial (to support the defence of insanity and substantial impairment of the mind), and during sentencing. In the second section, we evaluate these applications. We generally found that courts admit neuroscience cautiously, and to supplement more well-established forms of evidence. Still, we found some instances in which the court seemed to misunderstand the neuroscience. These cases ranged from interpreting neuroscience as “objective” evidence to admitting neuroscience when the same non-neuroscientific psychiatric evidence would be inadmissible for being common sense. Furthermore, in some cases, neuroscientific evidence presents a double-edged sword; it may serve to either aggravate or mitigate a sentence. Thus, the decision about whether or not to tender this evidence is risky.

Bowie on Criminality and Impeachment

Nikolas Bowie (Harvard Law School) has posted High Crimes Without Law (132 Harv. L. Rev. F. 59 (2018)) on SSRN. Here is the abstract:

 

Professor Bowie has authored one of two Responses the Forum is running in December inspired by Professor Laurence Tribe and Joshua Matz’s recently published book on impeachment, To End a Presidency. These pieces are being published contemporaneously with Professor Michael Stokes Paulsen’s book review. Bowie offers a theory of the proper scope of the impeachment power that neither Paulsen nor Tribe and Matz embrace — namely, that Congress may only impeach for conduct that violated an extant criminal law. In other words, “high Crimes and Misdemeanors” can only refer to conduct that is in fact a crime or a misdemeanor, and impeachment is best understood as a criminal, rather than civil, process. This was the theory articulated by then-former Supreme Court Justice Benjamin Curtis as he defended President Andrew Johnson from impeachment, and Bowie asserts that Curtis’s theory has been right all along. Among his many arguments, Bowie closes with a practical one: Insisting that impeachment be grounded in positive criminal law is the most effective way to ensure that, both now and in the future, it does not become a mere political weapon.

Wright on Haack on Legal Proof

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Haack on Legal Proof (La Pruebra Legal Segun Haack) (68 Estudios Filosoficos 517-528 (2018)) on SSRN. Here is the abstract:

 

In this paper, I discuss and agree with Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding required evidence and the related standards of proof in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. However, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.

Coleman & Rothstein on Forensic Analysis Evidence and the Confrontation Clause

Ronald J. Coleman and Paul F. Rothstein (Georgetown University Law Center and Georgetown University Law Center) have posted A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause (American Criminal Law Review (Forthcoming)) on SSRN. Here is the abstract:

 

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions.

Stefan & Fuster on Cross-border Access to Electronic Data

Marco Stefan and Gloria González Fuster (Centre for European Policy Studies (CEPS) and Vrije Universiteit Brussel (VUB)) have posted Cross-border Access to Electronic Data Through Judicial Cooperation in Criminal Matters (CEPS Paper in Liberty and Security in Europe, No. 2018-07, November 2018) on SSRN. Here is the abstract:

 

In the digital age, access to data sought in the framework of a criminal investigation often entails the exercise of prosecuting powers over individuals and material that fall under another jurisdiction.

Mutual legal assistance treaties, and the European Investigation Order allow for the lawful collection of electronic information in cross-border proceedings. These instruments rely on formal judicial cooperation between competent authorities in the different countries concerned by the investigative measure. By subjecting foreign actors’ requests for data to domestic independent judicial scrutiny, they guarantee that the information sought during an investigation is lawfully obtained and admissible in court.

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Buckenmaier on Timing and Uncertainty of Punishment

Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt (University of Zurich - Department of Economics, University of Pennsylvania, Behavioral Ethics Lab, Harvard University - Edmond J. Safra Center for Ethics and University of Kiel - Institute of Economics) have posted Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment on SSRN. Here is the abstract:

 

This paper presents the first controlled economic experiment to study celerity, i.e. the effectiveness of swiftness of punishment in reducing illicit behavior. We consider two dimensions: timing of punishment and timing of the resolution of uncertainty regarding the punishment. We find a surprising u-shaped relation between deterrence and the delays of punishment and uncertainty resolution. Institutions that either reveal detection and impose punishment immediately or maintain uncertainty about the state of detection and impose punishment sufficiently late are equally effective at deterring illicit behavior. Our results yield strong implications for the design of institutional policies to mitigate misconduct and reduce recidivism.

Zali & Maulidi on Money Laundering

Moh Zali and Ach Maulidi (University of Madura and University of Edinburgh) has posted Fighting Against Money Laundering (BRICS LAW JOURNAL, Volume V (2018), Issue 3) on SSRN. Here is the abstract:

 

This paper argues for the formation of a new deterrence concept which is useful for banks and state policymakers to fight against elite money laundering. The paper offers insights to enhance our understanding of the nexus of corruption, local business and money laundering scandals. These insights are synthesised from contemporary thinking and current research findings by adopting conspiracy theory. The evidence shows that fraud schemes involving corruption syndicates have become intractable, either because of influence peddling or high-profile people implicated in corruption scandals, making it difficult for anti-corruption provisions to be implemented. Therefore, it is clearly necessary to provide a cautionary note and to consider the analysis of structural forces that reveal the logic of criminal forms and conduct. The paper also points out that the establishment of money laundering laws and the creation of anti-money laundering agencies (strict law enforcement) can effectively deter predatory activities of financial intermediaries in facilitating money laundering practices. In an aggregative analysis of the underlying economic model of crime, the findings of the study provide significant support for a number of the postulates of the conspiracy theory of crime. These include the deterrence effect in respect of perpetrators such as unscrupulous local business staff, corruptors and launderers.

Appleton et al. on The Developing Brain

Susan Frelich Appleton, Deanna M. Barch and Anneliese Schaefer (Washington University in St. Louis - School of Law, Washington University in St. Louis - Department of Psychological and Brain Sciences and Washington University in St Louis - Department of Neurology) have posted The Developing Brain: New Directions in Science, Policy, and Law--Introduction (57 Washington University Journal of Law & Policy 1 (2018)) on SSRN. Here is the abstract:

 

Scientific findings on brain development increasingly are influencing how we understand children’s social and emotional development and how we interpret their behavior. Such understandings and interpretations, in turn, can shape public policy and legal precedent, as shown by the U.S. Supreme Court’s recognition of constitutional limitations on criminal punishments imposed on young offenders.

This essay introduces a transdisciplinary symposium that explores new learning about the negative impact of “early stressors” on brain development and the opportunities that such learning presents for law and policy reforms.

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