CrimProf Blog

Yesterday's criminal law/procedure cert grants

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

• United States v. Briggs: Whether the U.S. Court of Appeals for the Armed Forces erred in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years.
• Walker v. United States: Whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the Armed Career Criminal Act.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019 [new to top ten]	321
2.	Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness Eve Brensike Primus University of Michigan Law School Date Posted: 08 Nov 2019 [new to top ten]	309
3.	The Law & Politics of Cyberattack Attribution Kristen Eichensehr University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019 [1st last week]	190
4.	Demise of 'One Country, Two Systems'? Reflections on the Hong Kong Rendition Saga Cora Chan The University of Hong Kong - Faculty of Law Date Posted: 23 Sep 2019 [3rd last week]	128
5.	Facial Recognition and the Fourth Amendment Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 25 Oct 2019 [4th last week]	126
6.	Amicus Brief of Professor Andrew Manuel Crespo in Kansas v. Glover (18-556) Andrew Manuel Crespo Harvard Law School Date Posted: 16 Sep 2019 [5th last week]	105
7.	Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases Jeffrey L. Kirchmeier CUNY School of Law Date Posted: 21 Oct 2019 [6th last week]	94
8.	The Consequences of Automating and Deskilling the Police Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 18 Sep 2019 [7th last week]	80
9.	Equal Protection Under Algorithms: A New Statistical and Legal Framework Crystal Yang and Will Dobbie Harvard Law School and Harvard University - Harvard Kennedy School (HKS) Date Posted: 11 Oct 2019	76
10.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [8th last week]	75

Conway on Justice, Reconciliation, and Police Violence

Olwyn Conway (The Ohio State University Moritz College of Law) has posted ‘How Can I Reconcile With You When Your Foot Is on My Neck?’: The Role of Justice in the Pursuit of Truth and Reconciliation (Michigan State Law Review, 2018) on SSRN. Here is the abstract:

 

The residents of Ferguson, Missouri may someday seek reconciliation. Yet in the wake of the death of Mike Brown, and in the half-year spent waiting for the slow wheels of the criminal system to turn, Ferguson did not ask for reconciliation; it sought justice. Citizens across the country reeling from the shooting of unarmed members of their community have echoed this demand. Cleveland demanded justice for the killings of Malissa Williams, Timothy Russell, and Tamir Rice; Baton Rouge demanded justice for the killing of Alton Sterling; Minnesota demanded justice for the killing of Philando Castile. The list, tragically, goes on. American communities recovering from the wounds of loss of life — particularly when those wounds are tinged with the pain of racial animus — want justice before reconciliation. To ignore these calls by pursuing informal justice practices in lieu of criminal prosecutions would likely undermine the objectives of reconciliation. It would reinforce the double standard citizens perceive when police officers are not charged with misconduct.

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Lee on The Trans Panic Defense

Cynthia Lee (George Washington University Law School) has posted The Trans Panic Defense Revisited (57 AM. CRIM. L. REV. ___ (2020), Forthcoming) on SSRN. Here is the abstract:

 

Violence against transgender individuals in general, and trans women of color in particular, is a significant problem today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand-alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female—an individual thought to be male when born who identifies as a woman—provoked him into a heat of passion, causing him to lose his self-control. If the jury finds that the defendant was actually and reasonably provoked into a heat of passion, it can acquit him of murder and find him guilty of a lesser offense.

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Henning on Cryptocurrency Enforcement Actions

Peter J. Henning (Wayne State University Law School) has posted A Taxonomy of Cryptocurrency Enforcement Actions (Brooklyn Journal of Corporate, Financial and Commercial Law (2020)) on SSRN. Here is the abstract:

 

This article looks at how the Securities and Exchange Commission and the Department of Justice have pursued cases involving cryptocurrencies. A number of prosecutions have been brought against defendants who misled investors into believing that they were obtaining cryptocurrencies when in fact there were simply false statements and schemes to defraud, such as Ponzi schemes. When a company has attempted to issue a cryptocurrency to investors, the S.E.C. has relied on Section 5(a) and 5(c) of the Securities Act of 1933 to require that issuers file a registration statement with the Commission. This is not an easy process, and requires extensive disclosures that issuers of cryptocurrencies have found confounding. There is one possible way around those restrictions if an issuer relies on Regulation D or Regulation A+ to issue the cryptocurrency, but even that may require approval by the S.E.C. before proceeding, so there is some risk in using that route. So will we see broader issuance of cryptocurrencies? The short answer is “no” because the S.E.C., apart from Commissioner Hester Peirce, has shown a distinct hostility toward companies trying to issue cryptocurrencies. Is there a way around this? Perhaps, if a firm is willing to follow all the rules for a Regulation D or Regulation A+ offering it might be possible, but no one should be holding their breath for the S.E.C. to approve the issuance of a cryptocurrency.

Mantouvalou on The UK Modern Slavery Act 2015

Virginia Mantouvalou (University College London - Faculty of Law) has posted The UK Modern Slavery Act 2015 Three Years On ((2018) 81 Modern Law Review 1017-1045) on SSRN. Here is the abstract:

 

This article provides a critical assessment of the UK Modern Slavery Act 2015 (MSA) three years after its enactment. It puts forward the following claims: first, that while criminalisation of individuals who engage in severe labour exploitation is welcome, the legislation has failed to increase prosecutions and provide adequate remedies to victims; second, that heavy reliance on criminal law for the regulation of severe labour exploitation is insufficient, because the broader political and legislative context suggests that there is no political will to address structural factors, including legal structures, that create vulnerability to exploitation; and third, that the MSA is too weak in tackling modern slavery by businesses in their supply chains, as existing evidence from business responses to the MSA indicates. The article concludes that despite the passing of the Act, there is much scope for improvement in measures for eliminating labour exploitation, even with regard to its most severe forms.

Caruso et al. on A Decisional Paradigm for Assisted Dying

David Caruso, Alex Biedermann, Joëlle Vuille and Danielle Gilby (University of Adelaide - Law School, University of Lausanne, University of Fribourg and affiliation not provided to SSRN) have posted In Support of a Decisional Paradigm for Assisted Dying (Criminal Law Journal, 2019, vol. 43, PT 4, 254–273) on SSRN. Here is the abstract:

 

In May 2018, a centenarian travelled from Australia to Switzerland to end his life. He was not suffering from a terminal or incurable illness. The deceased travelled to Switzerland because that country permits self-determination of death, unconditional on it being consequential to palliative treatment for a terminal illness. Australia, like the United Kingdom and most developed nations, does not permit euthanasia and assisted suicide is criminal. This article examines the discretionary issues around criminal culpability for the journey of the deceased from Australia to Switzerland for the known purpose of suicide. We argue the allocation of prosecutorial discretion in cases of assisted suicide is contrary to public interest. We consider the decisional framework that informed the centenarian’s decision. We explain why a decisional paradigm, rather than medical, moral or other structures, should inform law and policy regarding assisted dying and give developed nations, such as Australia, cause for reform.

Provost & Denoy on Victimhood and Children Born of War

Rene Provost and Myriam Denov (McGill University - Faculty of Law and McGill University) have posted From Violence to Life: Children Born of War and Constructions of Victimhood on SSRN. Here is the abstract:

 

Despite all the attention given to sexual and gender-based violence, the reality of stigma, victimization, violence and socio-economic marginalisation of children born of war (CBW) has largely remained unexamined. Although CBW consider themselves as victims, domestic and international actors largely have failed to include them within legal conceptions of victimhood. Whether a child born of harmful behaviour should be seen as a victim has been significantly explored in law only in relation to so-called ‘wrongful life’ and ‘wrongful birth’ cases in the law of private responsibility. On the whole, courts have been extremely reluctant to accept claims of that nature because of a perceived tension between what has been refereed to as the “gift of life” and any harm associated with the circumstances of birth. In criminal law, with the exception of international criminal law, the concept of the victim has remained under-theorised.

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Russo on Garbage Pulls Under the Physical Trespass Test

Tanner Russo has posted Garbage Pulls Under the Physical Trespass Test (Virginia Law Review, Vol. 105, No. 6, 2019) on SSRN. Here is the abstract:

By reintroducing the physical trespass test to the Fourth Amendment search inquiry, United States v. Jones (2012) and Florida v. Jardines (2013) supplemented the Katz privacy test with a property-based trespassory inquiry. Jones asks courts to consider whether police have physically trespassed on a personal effect with an investigatory purpose, and Jardines asks courts to consider whether police have engaged in an unlicensed physical intrusion into a constitutionally protected area, such as the curtilage of a home. This Note addresses one area of doctrinal uncertainty in the wake of Jones and Jardines: garbage pulls, a practice the Supreme Court found in California v. Greenwood (1988) did not constitute a Fourth Amendment search where garbage awaits collection on the curb.

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Kim on Lenient Admissibility of Defense Forensic Evidence

Myeonki Kim (Korean National Police University) has posted The Need for a Lenient Admissibility Standard for Defense Forensic Evidence (University of Cincinnati Law Review, Vol. 86, No. 4, 2018) on SSRN. Here is the abstract:

 

While the unreliability of forensic evidence is becoming increasingly well known, the courts are still reluctant to apply a strict admissibility standard, particularly against government forensic evidence. Even the National Research Council’s groundbreaking report in 2009 has not changed the courts’ practices. This article finds that the status quo is problematic, because without strict review from the courts, the forensics community will not embrace genuine scientific standards. To resolve this problem, this article argues an asymmetry admissibility standard that is relaxed for defense. This asymmetric standard first levels the playing field, because the current admissibility standard favors the State. In addition, counter-intuitively, this new standard would ultimately help strengthen the government’s forensic evidence, which make this proposal more acceptable. This article also presents legal grounds to support the asymmetrical standard and provides specific examples of how the standard would be applied. Considering the continued resistance before and after the report, this proposal would be a practical method to strengthen forensic evidence.

Denno & Suruinath on AI and Robotics

Deborah W. Denno and Ryan Surujnath (Fordham University School of Law and Blackstone Group - GSO Capital Partners) have posted Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law (Symposium Foreword) (88 Fordham Law Review 381-404 (2019)) on SSRN. Here is the abstract:

 

This Foreword provides an overview of Rise of the Machines: Artificial Intelligence, Robotics, and the Reprogramming of Law, a symposium hosted by the Fordham Law Review and cosponsored by the Fordham Law School’s Neuroscience and Law Center. As the Symposium spotlights, artificial intelligence (AI) and robotics are no longer the products of science fiction. AI is used by millions of people every day, from hedge fund managers to health-care professionals and even consumers of personalized assistants like Siri, Cortana, and Alexa. Neuroscience — “the branch of life sciences that studies the brain and nervous systems,” — is integral to AI development, as programmers seek to improve machines by understanding human thought patterns.

Nonetheless, AI is something of a buzzword across the legal industry. There is still a certain mystique to the technology’s functionality that this Symposium intended to clarify while also assessing how it can affect legal regimes. In particular, this Symposium focused on problems posed by current and very near-future AI research and development with the aim to facilitate a dialogue among those who will shape the future of this impactful technology: neuroscientists, computer scientists, attorneys, and business professionals. As researchers continue to use neuroscience to make AI more “human” in its reasoning, the technology has encountered a range of human legal problems, including discrimination and bias, civil liability for risk-taking, and ownership of data and creative content.

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Amjad & Riaz on Restorative Justice in Developed Countries

Sohail Amjad and Nagina Riaz (University of Siena - Faculty of Political Science and affiliation not provided to SSRN) have posted Restorative Justice System and the Rights of Aboriginal and Juvenile Offenders and Victims: An Appraisal of the Statutes of Developed Countries (International Journal of Law, Policy and Social Review, January 2019) on SSRN. Here is the abstract:

 

Aboriginal and Juvenile offenders and victims have suffered more then they deserved as an offender for the crime or offence on the one hand and as a victim for their rights on the other hand. The story of their suffering has been carried on for centuries but no strategy was made to secure them like the adult and normal citizens of communities. Aboriginal women specially had been targeted at even the world’s most educated and developed societies due to lack of legislation and social security. Juvenile offenders must be treated differently than the adult offenders whether they are in prison or in probation for their future growth and to avoid the impact of intentional or intentional offence committed by him or he being the victim of a crime. This paper throws light on the statutes of different countries where they have tried to provide legal assistance and a distinct status to Aboriginal female and young offenders and such other recommendations are in the development of legislation to provide them with an ideal environment where they will be restored to societies without an impact of crime on them and to assure the community of non occurrence of such offences from them and towards them.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [2nd last week]	74
2.	Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion Susan A. Bandes DePaul University - College of Law Date Posted: 30 Sep 2019 [3rd last week]	66
3.	The Problem of Algorithmic Corporate Misconduct Mihailis Diamantis University of Iowa - College of Law Date Posted: 10 Oct 2019 [9th last week]	63
4.	Methods and Severity: The Two Tracks of Section 12 Lisa Kerr and Benjamin L. Berger Queen's University - Faculty of Law and York University - Osgoode Hall Law School Date Posted: 17 Oct 2019 [8th last week]	58
5.	Pop Culture's Influence on Recreational Marijuana Use & Legislation: A Case Study on Snoop Dogg Abby Graves Independent Date Posted: 12 Oct 2019 [new to top ten]	52
6.	Will the Supreme Court Rein in 'Excessive Fines' and Forfeitures?: Don’t Rely on Timbs v. Indiana Nora V. Demleitner Washington and Lee University Date Posted: 14 Oct 2019 [new to top ten]	48
7.	Data Scams Roger Allan Ford University of New Hampshire Franklin Pierce School of Law Date Posted: 04 Dec 2018 [new to top ten]	45
8.	Explaining Criminal Sanctions in Intellectual Property Law Irina D. Manta Hofstra University - Maurice A. Deane School of Law Date Posted: 29 Oct 2019 [new to top ten]	45
9.	When Cute Becomes Criminal: Emoji, Threats, and Online Grooming Marilyn McMahon and Elizabeth A Kirley Deakin University, Geelong, Australia - Deakin Law School and Deakin School of Business and Law Date Posted: 30 Sep 2019 [new to top ten]	39
10.	Execution of Youth under Age 21 on the Date of Offense: Ending with a Bang or a Whimper? Hollis Whitson and Eric Samler Samler and Whitson, PC and Samler and Whitson, PC Date Posted: 24 Sep 2019 [new to top ten]	35

Kim on The Effects of Body Worn Camereas on Police Work

Taeho Kim (University of Chicago - Department of Economics) has posted The Power of Observation: An Empirical Analysis of the Effects of Body Worn Cameras on Police Use of Force and Productivity on SSRN. Here is the abstract:

 

Using the staggered adoption of body worn cameras (BWCs) by police departments in the 2010s, this paper examines the effects of introducing BWCs on police use of force and performance. Previous studies on BWCs in single-agency settings have been hampered by empirical challenges of spillover effects and common agency-wide effects, which likely explain why some studies found null effects. As the first cross-agency study on BWCs, this paper is able to overcome these empirical challenges. I find that BWCs are associated with a drop of 43% in use of force, a reduction of 81% in subject injury, yet not with officer injury, or other productivity measures such as crime and clearance rates. These findings imply that BWCs can be a powerful tool in the recent efforts to reduce use of force and improve public trust in police.

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

Tuesday

• Hernandez v. Mesa: Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Law & Politics of Cyberattack Attribution Kristen Eichensehr University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019	179
2.	The Missing Regulatory State: Monitoring Businesses in an Age of Surveillance Rory Van Loo Boston University - School of Law Date Posted: 05 Sep 2019	167
3.	Demise of 'One Country, Two Systems'? Reflections on the Hong Kong Rendition Saga Cora Chan The University of Hong Kong - Faculty of Law Date Posted: 23 Sep 2019	118
4.	Facial Recognition and the Fourth Amendment Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 25 Oct 2019 [10th last week]	100
5.	Amicus Brief of Professor Andrew Manuel Crespo in Kansas v. Glover (18-556) Andrew Manuel Crespo Harvard Law School Date Posted: 16 Sep 2019 [4th last week]	98
6.	Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases Jeffrey L. Kirchmeier CUNY School of Law Date Posted: 21 Oct 2019 [5th last week]	90
7.	The Consequences of Automating and Deskilling the Police Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 18 Sep 2019 [6th last week]	79
8.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [7th last week]	74
9.	Equal Protection Under Algorithms: A New Statistical and Legal Framework Crystal Yang and Will Dobbie Harvard Law School and Harvard University - Harvard Kennedy School (HKS) Date Posted: 11 Oct 2019	72
10.	Plea Bargaining, Trial-Avoiding Conviction Mechanisms, and the Global Administratization of Criminal Convictions Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019 [new to top ten]	65

Stinneford on Experimental Punishments

John F. Stinneford (University of Florida - Levin College of Law) has posted Experimental Punishments (Notre Dame Law Review, Vol. 95, 2019) on SSRN. Here is the abstract:

 

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice. The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage. This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces. It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by lethal injection to death by hanging. When the new method of punishment is introduced, it is often an experimental punishment whose constitutional status is not immediately clear.

This Article shows how usage over time clarifies the constitutional status of experimental punishments by revealing two types of data that may not be available at the time the punishment is adopted.

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Mikos on Federal Responses to State Marijuana Reforms

Robert A. Mikos (Vanderbilt University - Law School) has posted The Evolving Federal Response to State Marijuana Reforms (25 Widener Law Review - Forthcoming 2019) on SSRN. Here is the abstract:

 

The states have launched a revolution in marijuana policy, creating a wide gap between state and federal marijuana law. While nearly every state has legalized marijuana in at least some circumstances, federal law continues to ban the substance outright. Nonetheless, the federal response to state reforms has been anything but static during this revolution. This Essay, based on my Distinguished Speaker Lecture at Delaware Law School, examines how the federal response to state marijuana reforms has evolved over time, from War, to Partial Truce, and, next (possibly) to Capitulation. It also illuminates the ways in which this shifting federal response has alternately constrained and liberated states as they seek to regulate marijuana as they deem fit.

"Legal aspects of the GEDmatch warrant"

Orin Kerr has this post at The Volokh Conspiracy. In part:

Under the policy, if you or I want to search GEDmatch, we can. But if police officers want to search it, they have to tell GEDmatch that they are police officers.  GEDmatch then only lets the officers search the profiles of users that have affirmatively opted in to having their profiles searched by the police. It's sort of like a bar or restaurant putting up a sign saying that police aren't welcome. Anyone can enter except for the police, who have to declare they are the police and then can't go inside.

According to the story, a Florida detective wanted to search the same database as anyone else could.  Presumably he could have gone undercover and pretended he was not a detective, as on the Internet, no one know you're a cop.  Instead, the detective obtained a warrant requiring GEDmatch to "override the privacy settings" of GEDmatch and let him search like a civilian.

Arlen & Buell on Corporate Criminal Liability

Jennifer Arlen and Samuel W. Buell (New York University School of Law and Duke University School of Law) have posted The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Liability (University of Southern California Law Review (vol. 93, 2020, Forthcoming)) on SSRN. Here is the abstract:

 

The United States model of corporate crime control, developed over the last two decades, couples a broad rule of corporate criminal liability with a practice of reducing sanctions, and often withholding conviction, for firms that assist enforcement authorities by detecting, reporting, and helping prove criminal violations. This model, while subject to skepticism and critiques, has attracted interest among reformers in overseas nations that have sought to increase the frequency and size of their enforcement actions. In both the U.S. and abroad, insufficient attention has been paid to how laws controlling the conduct of corporate investigations are critical to regimes of corporate criminal liability and public enforcement. Doctrines governing self-incrimination, employee rights, data privacy, and legal privilege, among other areas, largely determine the relative powers of governments and corporations to collect and use evidence of business crime, and thus the incentives of enforcers to offer settlements that reward firms for private efforts to both prevent and disclose employee misconduct. This Article demonstrates the central role that the law controlling corporate investigations plays in determining the effects of corporate criminal liability and enforcement policies. It argues that discussions underway in Europe and elsewhere about expanding both corporate criminal liability and settlement policies—as well as conversations about changes to the U.S. system—must account for the effects of differences in investigative law if effective incentives for reducing corporate crime are, as they should be, a principal goal.