CrimProf Blog

Pickerell on Progressive Prosecutors

Heather Pickerell has posted How To Assess Whether Your District Attorney Is A Bona Fide Progressive Prosecutor (Harvard Law & Policy Review, Vol. 15, No. 1, 2020) on SSRN. Here is the abstract:

 

This article serves as a surgeon general’s warning that not all progressive prosecutors are alike and provides a “weighted constellation” framework that advocates can use to assess which district attorneys deserve the progressive name. Although the justice system’s structural landmines inhibit district attorneys’ efforts to substitute law-and-order policies with more forward-thinking approaches, local prosecutors still wield enormous power; they can reduce incarceration and more equitably enforce the law. Participants in local politics should elect and support district attorneys who effect authentically progressive policies. Because not all seemingly progressive district attorneys are in fact pursuing meaningful criminal justice reform, this article aims to help advocates separate the bona fide progressives from those in sheep’s clothing. Those keen to assess their district attorney can use this article’s proposed analytical framework, which accounts for the totality of each district attorney’s circumstances but draws clear lines between progressive and non-progressive prosecution practices. This article presents fourteen buckets of prosecutorial policies that further a more dignified and fair American justice system. Advocates should use these fourteen buckets to evaluate a district attorney and—depending on the history of the prosecutor’s office and the local justice system—assign weights to each of the metrics. Advocates should then examine the district attorney’s performance for each metric, including whether the prosecutor falls outside the metric’s outer bounds, the distance between the prosecutor’s policies and the theoretically most progressive iteration of the metric, and the prosecutor’s policies compared with their peers’ policies. To aid with the last analytical step, this article provides a comparative analysis of twenty-one prosecutors’ performance against a subset of seven of the metrics — the death penalty, bail reform, decarceration and the New Jim Crow, non-prosecution and diversion, wrongful convictions, police accountability, and prosecutorial accountability.

Bellin on Prosecutors

Jeffrey Bellin (William & Mary Law School) has posted The Changing Role of the American Prosecutor (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

This paper is an edited version of the author's November 2019 presentation to the Louisiana District Attorneys Association, Fall Meeting of Elected District Attorneys. It argues that many of the reforms spotlighted by the Progressive Prosecution movement should be attractive to all prosecutors, including those who are unlikely to adopt the "progressive" label.

Opinion on reach of Major Crimes Act on "Indian country" in Oklahoma

Justice Gorsuch delivered the opinion of the Court in McGirt v. Oklahoma. Chief Justice Roberts filed a dissenting opinion, joined by Justices Alito and Kavanaugh and joined in part by Justice Thomas, who also filed a dissenting opinion.

Opinions allowing state subpoena but rejecting congressional subpoena for president's tax records

Justice Roberts delivered the opinion of the Court in Trump v. Vance. Justice Kavanaugh filed an opinion concurring in the judgment, joined by Justice Gorsuch. Justices Thomas and Alito filed dissenting opinions. Justice Roberts delivered the opinion of the Court in Trump v. Mazars USA, LLP. Justices Thomas and Alito filed dissenting opinions.

Casey on Deviance and Contextual Privacy

Timothy Casey (California Western School of Law) has posted The Value of Deviance: Understanding Contextual Privacy (Loyola University Chicago Law Journal, Vol. 51, No. 65, 2019) on SSRN. Here is the abstract:

 

Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements under the state’s Biometric Information Privacy Act (BIPA) were not “merely technical in nature” and did not require additional allegations of harm. These decisions move away from a binary conception of privacy - which ignores distinctions between types of information disclosures and the harm emanating from them - toward a contextual conception of privacy - which takes into account the quality and quantity of information as well as the original purpose of the disclosure.

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Shestak & Adigamov on EU Cybercrime Regulation

Viktor Shestak and Artur Adigamov (Moscow State Institute of International Relations (MGIMO) and Moscow State Institute of International Relations (MGIMO)) have posted The General and the Specific in the Penal Law of the EU Member States, Which Regulates Liability for Cybercrimes (Issues of improving law enforcement: the interaction of science, rulemaking and practice: All-Russian Scientific and Practical Conference) on SSRN. Here is the abstract:

 

Problems of harmonization of penal law in the sphere of cybercrimes control are particularly evident in the penal legislation of EU States. Despite the highest integration of legal systems in the world, legal regulation of cybercrimes even in EU States сcannot keep pace with the development of cybernetic technologies. The reasons of such backlog can be discovered through analysis of national penal law of EU countries.

Davies & Clark on Providing Counsel in Rural Places

Andrew Davies and Alyssa Clark (Deason Criminal Justice Reform Center and Independent) have posted Gideon in the Desert: An Empirical Study of Providing Counsel to Criminal Defendants in Rural Places ((2019) 71(2) Maine Law Review 245-272) on SSRN. Here is the abstract:

 

Access to counsel for criminal defendants is a continuing challenge in rural localities, notwithstanding the mandates of Sixth Amendment jurisprudence. In this Article, we first review the state of the law on access to counsel in criminal cases, noting the latitude allowed to state and local governments in their policy decisions. We then examine empirical approaches to measuring access to counsel and describe in detail both the law and the data on this issue from the state of Texas. We present exploratory analyses of those data comparing rural and urban places for various aspects of access to counsel, including rules governing eligibility for, and rates of actual use of, appointed attorneys. We find that Texas counties appointed counsel to an average of 29% of misdemeanor defendants in 2016-17, but that rates were significantly lower in rural than urban counties. Total expenditures averaged $278 per case, though 8% of that amount was recouped from defendants. In rural areas specifically, we find the absence of any local towns and low lawyer populations were associated with especially low levels of access to counsel. The presence of an organized defense provider such as a public defender office, however, was associated with significantly higher rates of access to counsel in counties. Finally, we review our findings in the light of other research on the impact of programs targeting rural areas intended to improve access to counsel for defendants.

Turner on Transparency in Plea Bargaining

Jenia Iontcheva Turner (Southern Methodist University - Dedman School of Law) has posted Transparency in Plea Bargaining (Notre Dame Law Review, Vol. 96, No. 1, Forthcoming) on SSRN. Here is the abstract:

 

Plea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it replaces, plea bargaining occurs privately and off-the-record. Victims and the public are excluded, and the defendant is typically absent. While the Sixth and First Amendments rights of public access extend to a range of pretrial criminal proceedings, they do not apply to plea negotiations. For the most part, rules and statutes also fail to require transparency in the process. As a result, plea bargaining is largely shielded from outside scrutiny, and critical plea-related data are missing.

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Lynch on Regressive Prosecutors in Trump's DOJ

Mona Lynch (University of California, Irvine - Department of Criminology, Law and Society) has posted Regressive Prosecutors: Law and Order Politics and Practices in Trump’s DOJ (Hastings Journal of Crime and Punishment, 1 (2),195-220) on SSRN. Here is the abstract:

 

This essay examines how the “Trump/Sessions/Barr”6 regime has approached criminal justice policy in an era of progressive reform. It first details the contours of the Trump-era DOJ criminal justice policies and practices to illustrate its countertrend status, then it delineates the DOJ policy statements and actual efforts to impose on state and local criminal justice operations through various initiatives. Specifically, it examines how federal law enforcement itself is being mobilized to reinvigorate a “law and order” approach to street crime, including direct targeting of jurisdictions that have adopted more progressive policies and practices. It argues that a dangerous turn has happened in the Barr DOJ that extends and multiplies the threats posed by the Sessions regime, with significant negative consequences for individual defendants and, potentially, the larger criminal justice reform movement that is exemplified by the progressive prosecutor movement. It concludes by considering the limits of the federal countermovement to progressive criminal system reform efforts.

Hannan et al. on Racial Sympathy and Capital Punishment

Kellie Hannan, Frank Cullen, Leah Butler, Amanda Graham, Alexander Burton and Velmer Burton, Jr. (University of Cincinnati, University of Cincinnati, University of Nebraska at Omaha, Georgia Southern University, University of Cincinnati and University of Arkansas at Little Rock) have posted Racial Sympathy and Support for Capital Punishment:A Case Study in Concept Transfer on SSRN. Here is the abstract:

 

Beliefs about race, especially racial resentment, are key predictors of public support for capital punishment and punitiveness generally. Drawing on a conceptual innovation by political scientist Jennifer Chudy, we explore the utility of transferring into criminology her construct of racial sympathy—or Whites’ concern about Blacks’ suffering. First, across three data sets, we replicate Chudy’s finding that racial sympathy and resentment are empirically distinct constructs. Second, based on a national-level 2019 YouGov survey (n = 760 White respondents) and consistent with Chudy’s thesis, racial sympathy is then shown to be significantly related to the race-specific view that capital punishment is discriminatory but not support for the death penalty or harsher courts. Racial sympathy also is positively associated with advocacy of rehabilitation as the main goal of prison. Notably, in all models, racial resentment has robust effects, increasing punitive sentiments. Taken together, the results suggest that racial sympathy is a concept that can enrich criminologists’ study of how race shapes crime policy preferences in the United States and beyond.

Tefft & Dunn on Mortality, Drinking, and Driving

Nathan Tefft and Richard A. Dunn (Bates College and University of Connecticut - Department of Agricultural and Resource Economics) have posted The Excess Mortality Risk and Prevalence of Drinking-and-Driving in the United States: 1983–2017 on SSRN. Here is the abstract:

 

Drinking-and-driving remains a leading cause of preventable mortality and morbidity in the United States, yet reliable estimates of its prevalence and the increased risk it imposes on other road users remain elusive. The tendency of respondents to under-report illicit and socially stigmatized behavior and the likelihood that they select out of random sample designs suggests survey-based prevalence estimates are biased downward, resulting in upward biased estimates of excess mortality risk. Moreover, in 2015 the House of Representatives voted to prohibit the use of federal funds to plan or administer the National Roadside Survey (NRS). Therefore, in this article, we apply a statistical approach to document how the excess mortality risk, prevalence, and externality of drinking-and-driving in the United States has evolved over the past four decades. We find that drinking-and-driving declined significantly between 1983 and 1992, but has since plateaued. We also find that the excess mortality risk of drinking drivers rose steadily between 1983 and 2012, but the associated external cost of drinking drivers decreased, suggesting that ‘sober-biased technical change’ may have made all driving less dangerous, but had a smaller impact on drivers influenced by alcohol. For the latest five-year period, however, we identify a sharp reversal in both these trends.

Alschuler on Justice, Mercy, and Equality

Albert W. Alschuler (University of Chicago Law School) has posted an abstract of Justice, Mercy, and Equality in Discretionary Criminal Justice Decision Making (Journal of Law and Religion, Vol. 35, No. 1, 2020) on SSRN. Here is the abstract:

 

This essay examines whether, in exercising their discretion, criminal justice officials should do justice, grant mercy, and treat alleged or convicted offenders equally. Although it endorses doing justice, the essay maintains that officials should almost never reduce a just punishment simply to be merciful. Public officials are fiduciaries, and they ordinarily have no authority to make unmerited gifts. Sometimes, however, deciding not to inflict a just penalty can reflect the willingness of an entire society to forgive. That may be the case, for example, when truth and reconciliation commissions approve amnesties. The essay focuses on the teachings of Jesus Christ and questions some of them. It asks, for example, whether a modern chief executive would merit praise or condemnation if this executive followed Jesus’s example in the case of the woman taken in adultery. The essay also suggests that — unlike other officials — chief executives exercising their pardon power need not act affirmatively to treat like cases alike. A conclusion notes that it would have been out of character for Jesus Christ to refuse a plea for mercy. Nevertheless, few Christians have endorsed an implication of his willingness to forgive — the abolition of criminal punishment.

Dove on Scam Victims

Martina Dove has posted The Voices of Scam Victims: A Psychological Model of the Experience of Fraud (Chapter from Predicting Individual Differences in Vulnerability to Fraud (Doctoral dissertation, University of Portsmouth), 2018) on SSRN. Here is the abstract:

Fraud has become omnipresent and the number of victims is rising. The variety of scams in operation and the easy delivery, especially online, means that more and more people are targeted by fraudulent offers, which increases the risk of victimisation. However, little has been done to understand the stages of the scam process and its surrounding themes. Using evidence from 12 interviews with victims of face-to-face, phone and online scams, different scam stages are identified; circumstances leading to engagement with the scam, factors connected to continuous engagement and fraud aftermath. The stages are broken down into themes and subthemes that help explain intricate connections and natural progression through scam stages.

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Ryan on The First Step Act

Sarah Ryan (Wesleyan University) has posted Judicial Authority under the First Step Act What Congress Conferred through Section 404 (Loyola University Chicago Law Journal, Vol. 52, No. 1, 2020) on SSRN. Here is the abstract:

 

The First Step Act of 2018 promised relief to inmates serving disproportionately long sentences for cocaine base distribution. Section 404, the focus of this article, seemed straight-forward. But in the spring and summer of 2019, district judges began reviewing § 404 cases and reaching dissonant results. Appeals followed, focused on four questions of judicial authority: (1) Who may judges resentence?; (2) May judges engage in plenary resentencing or merely sentence reduction?; (3) May judges resentence all concurrent criminal convictions or only crack cocaine convictions?; and (4) Must judges adopt the operative drug quantity from the original sentencing? Today, the law of § 404 remains incomplete in every circuit. This article reviews the legislative history, text, and legal context of § 404. It finds that Congress intended broad judicial authority in § 404 resentencings.

Murray on Retributive Expungement

Brian Murray (Seton Hall Law School) has posted Retributive Expungement (169 University of Pennsylvania Law Review, (2020) Forthcoming) on SSRN. Here is the abstract:

 

Expungement relief was introduced in the mid-twentieth century to reward and incentivize rehabilitation for arrestees and ex-offenders and to protect their privacy. Recently, many states have broadened their expungement remedies, and those remedies remain useful given the negative effects of public criminal records on reentry. But recent scholarship has suggested an “uptake gap,” meaning many who are eligible never obtain relief. Despite broadening eligibility, petitioners face substantial obstacles to filing, pre-hearing hurdles, waiting periods, and difficult standards of review without the assistance of counsel. And even when expungement is granted, the recipients are basically left on their own to guarantee the efficacy of the remedy. Some of these attributes of expungement were originally conceived as features, designed to ensure only the most rehabilitated received relief, allowing the state to continue to pursue public safety objectives with public criminal records. But the cold reality of expungement procedure leaves many petitioners facing insurmountable obstacles that amplify the effects of the punishment originally imposed.

In exploring this reality, this Article illustrates that expungement procedure is stuck in a rehabilitative and privacy-centric paradigm.

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Plaxton on Privacy, Voyeurism, and Statutory Interpretation

Michael Plaxton (College of Law, University of Saskatchewan) has posted Privacy, Voyeurism, and Statutory Interpretation: Reading Jarvis ((2020) Criminal Law Quarterly (Forthcoming)) on SSRN. Here is the abstract:

 

In Jarvis, a high school teacher was found to have used a camera pen to video-record the chest and cleavage of female students and one female teacher. The central issue was whether this constituted voyeurism under section 162(1)(c). In resolving that question, the Supreme Court of Canada was called upon to interpret the phrase “circumstances that give rise to a reasonable expectation of privacy” – which I will reference as “the privacy clause”.

Ultimately, a majority of the Court concluded that the defendant’s conduct was indeed encompassed by the provision. That result squared nicely with the moral intuitions of many onlookers. In this comment, however, I do not focus on the substantive implications of the majority’s ruling. Instead, I dwell on the techniques used by the majority to interpret the privacy clause. For the majority’s approach is intriguing both for what it says and does not say about how it is appropriate to interpret criminal offence provisions.

Greene on Ecocide

Anastacia Greene (University of Florida Levin College of Law) has posted The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative? (Fordham Environmental Law Journal, Vol. 30, No. 3, 2019) on SSRN. Here is the abstract:

 

Can anything be done to prevent environmental destruction? This is the stark question that confronts the international legal community. Environmental destruction is a global problem; many environmental disasters affect multiple countries. Further, issues like global warming and the thinning ozone layer do not affect just one country, but the entire world. However, international law has not addressed the issue, leaving this matter to individual countries.

In recent decades, international law has created a solid body of law on international criminal law but has not done so with regard to environmental law.

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Ward on Trauma, Memory, and Sexual Assault Prosecutions

Cynthia V. Ward (William and Mary Law School) has posted Trauma and Memory in the Prosecution of Sexual Assault (Law & Psychology Review, Vol. 45 (forthcoming 2021)) on SSRN. Here is the abstract:

 

Despite its controversial standing among scientists, the phenomenon of traumatic memory has enjoyed remarkable longevity in the criminal law, particularly in the investigation and prosecution of sexual assault. Yet the concept of emotional trauma, and the nature of memory, are both notoriously difficult to define in legal settings -- and recent experience gives the criminal law good reason to proceed with caution. In the late 20th century, prosecutors across the country adopted a theory of traumatic memory and its treatment which became known as Recovered Memory Therapy (RMT). RMT became the basis for scores of criminal charges, including charges of sexual assault and murder, causing wrongfully convicted defendants to serve long prison terms for atrocities which in fact had never occurred. Although RMT itself has faded from the legal stage, the claims that (1) traumatic memory is importantly different from ordinary memory, and (2) that the criminal law should (therefore) amend its processes of investigating and adjudicating sexual assault cases, have now reappeared as the “Neurobiology of Trauma.” This article examines the wrongful convictions that resulted from the law’s adoption of recovered memory theory, identifies parallel structural problems with today’s “trauma-informed” approach, and argues that the phenomenon of “traumatic memory” is scientifically controversial; is structurally vulnerable to abuse; and is not necessary to achieve the goals of justice.

Suzuki & Pai on Culture-Inclusive Criminology in Asia

Masahiro Suzuki and Cheu-Fu Pai (Central Queensland University and affiliation not provided to SSRN) have posted Towards Culture-Inclusive Criminology in Asia (International Annals of Criminology, 2020) on SSRN. Here is the abstract:

 

Mainstream criminology has been mainly developed in the US and other English-speaking countries. With an expansion of criminology outside the English-speaking world, several scholars have started to cast doubts on the applicability of current mainstream criminology in their regions because it has failed to account for cultural differences. This question has led to a call for an “indigenized” criminology, in which knowledge and discourses are derived from or fixed to align with unique cultural contexts in each region. In this vein, Liu (2009, 2016, 2017a, 2017b) has proposed Asian Criminology. While it has significantly contributed to the development of criminology in Asia, we see two challenges in Liu’s Asian Criminology: lack of consideration for cultural diversity within Asia and its focus on the individualism–collectivism continuum. In this paper, we propose an alternative approach to developing criminology in Asia, which we call culture-inclusive criminology. It builds on a premise that Asia consists of a variety of cultural zones, and therefore calls for a shift from the Euro-American view on culture towards an understanding of culture in its context. Its goal is to develop indigenized criminologies in each cultural zone of Asia under an umbrella of culture-inclusive criminology.

Mensah on Cybercriminals

Ronald Osei Mensah (University of Cape Coast) has posted Assessing the Various Opportunities Explored by Cybercriminals in Accra (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

This study was embarked upon to examine the strategies internet fraudsters explore to dupe their potential victims. The research was carried out in the Accra metropolis. The researchers gathered detailed information about the cybercrime offenders from the CID headquarters and used the report to contact some of the participants. A total of eleven (11) internet scammers took part in the study. Structured interview guide was employed as data collection instrument. In the data analysis, each of the in-depth interviews was transcribed as soon as the information is gathered and developed them into codes. The investigation revealed that cybercriminals in Ghana engaged in different forms of internet crimes such as gold market, romance, online shopping, collaboration with security agencies, and criminal networking opportunities to co-opt their partners. It was concluded from the discussion that socioeconomic conditions create the right environment for cybercrime activities to thrive in Ghana because all their strategies are gearing towards amassing wealth.