CrimProf Blog

Toomey on Scams and Seniors

James Toomey has posted Our Fraud Problem on SSRN. Here is the abstract:

We think of frauds and scams as primarily a problem for older adults. In the past few years, states and the federal government have passed a range of statutes designed to prevent seniors, as distinct from other adults, from scams—from more harshly punishing scams directed towards older adults to authorizing financial institutions to more closely monitor and rapidly freeze the accounts of older clients. This successful, popular, and bipartisan law reform movement has taken place without a thorough empirical understanding of whether in fact seniors are scammed more frequently than other age groups.

Continue reading

Perlin on Therapeutic Justice

Michael L. Perlin (New York Law School) has posted “In These Times of Compassion When Conformity’s in Fashion”: How Therapeutic Jurisprudence Can Root out Bias, Limit Polarization and Support Vulnerable Persons in the Legal Process on SSRN. Here is the abstract:

 

In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool – in rooting out bias, limiting polarization, and supporting vulnerable persons in the legal process. But, this cannot and will not happen until more judges and practicing attorneys understand the potentially reformative (and transformative) role of TJ. My review of some relevant caselaw (both domestically and internationally) – a review that, to the best of my knowledge, has never previously been undertaken -- suggests that an incorporation of TJ principles is by no means a sure thing.

Continue reading

Ferguson on "Blue Data"

Andrew Guthrie Ferguson (American University Washington College of Law; University of the District of Columbia - David A. Clarke School of Law) has posted Chapter: "Blue Data" (Excerpt from "The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement") on SSRN. Here is the abstract:

 

This chapter is an excerpt from "The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement" which focuses on the concept of "Blue Data." The theory of blue data accountability is to turn the lens of surveillance away from the community and towards the police themselves. The chapter offers examples of how existing data-driven policing can enhance police accountability if used to focus on police misconduct and unconstitutional practices.

Hong on The Parens Patriae Power

Esther Hong (Wake Forest University - School of Law) has posted A Reexamination of the Parens Patriae Power (Tennessee Law Review, Vol. 88, No. 277, 2021) on SSRN. Here is the abstract:

 

Juvenile law scholars are coalescing around the idea that the originating theory of the juvenile system—the theory of the state’s parens patriae power—is a largely obsolete relic of the past. This theory holds that when children commit offenses or crimes, the state as a super-parent should respond in a manner that cares, treats, and advances the best interest of the youth. Rather than live up to its ideals, however, these benevolent aims often masked abuse and limited minors’ constitutional rights. The new consensus in current juvenile law scholarship is that juvenile law policy and advocacy ought to rely on a developmental framework as the primary guide for state action.

This Article breaks from this emerging consensus.

Continue reading

Conklin on Binnall on Felons on Juries

Michael Conklin (Angelo State University - Business Law) has posted A Felon Among Us: Should Felons Be Allowed on Juries? (33 Regent U. L. Rev. ___ (forthcoming 2021)) on SSRN. Here is the abstract:

 

This is a review of James M. Binnall’s new book, Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System. The federal government and a majority of states have complete bans on felons serving on juries. Binnall makes a strong case for ending these bans, supported by his own personal experience as a felon who was denied jury service and by his own novel, empirical research. However, in his zeal to advocate for this position, he overstates favorable evidence and ignores potential counterarguments. This Review examines the strengths and weaknesses of Binnall’s arguments and provides missing counterarguments against allowing felons to serve on juries.

Gershowitz on Smart Cars and the Fourth Amendment

Adam M. Gershowitz (William & Mary Law School) has posted The Tesla Meets the Fourth Amendment on SSRN. Here is the abstract:

 

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open to warrantless searches under other exceptions to the warrant requirement. This article argues that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, there is a strong argument that the police can warrantlessly extract data stored in a vehicle’s infotainment system.

When a driver uses Bluetooth to connect their cell phone to a vehicle, the driver transfers text messages, call history, contacts, emails, photos, videos, and even social media information from their phone to the car’s infotainment system. Police departments can then use a sophisticated data extraction device to download all of that cell phone data.

Continue reading

Berryessa on Public Support for "Second Chance" Mechanisms Regarding Drug Sentences

Colleen M. Berryessa(Rutgers, The State University of New Jersey - School of Criminal Justice) has posted Public Support for Using “Second Chance” Mechanisms to Reconsider Long-Term Prison Sentences for Drug Crimes ((2021) Federal Sentencing Reporter, 34(1), 71-79) on SSRN. Here is the abstract:

 

Using a national sample of U.S. adults (N = 371), this study experimentally examines (1) public support for the use of strategies that provide early release (i.e., “second chance” mechanisms) to individuals serving long-term prison sentences for drug crimes; and (2) how levels of support, and reasons for support, may vary depending on the type of drug-related offense. Results show moderate levels of support for using second chance mechanisms, both generally and in relation to specific strategies commonly available across jurisdictions, for a range of drug offenders. Yet participants showed significantly more support for using presumptive parole, elimination of parole revocations for technical violations, second-look sentencing, and compassionate release in the cases of those incarcerated long term for serious trafficking of marijuana, as compared to serious trafficking of serious drugs. Data also suggest that the public finds a range of factors—including the original sentence being extreme by international standards, extreme due to racially biased practices, out of step with current sentencing values/practices, too costly, and continuing to incarcerate someone unlikely to be a public safety threat—as at least moderately important to their support for the use of second chance mechanisms across drug crimes, and the importance of these factors to that support does not appear to differ significantly based on the type of drug offense. The importance of these results for policy making and utilization are discussed, as well
as implications for reducing our historical reliance on drug-related incarceration.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	But We Haven't Got Corporate Criminal Law! Mihailis Diamantis and W. Robert (Will) Thomas University of Iowa - College of Law and University of Michigan Ross School of Business Date Posted: 11 Oct 2021	189
2.	Proximate Cause Untangled Mark Geistfeld New York University School of Law Date Posted: 28 Aug 2021	136
3.	Why De Minimis is a Defence: A Reply to Professor Coughlan Colton Fehr Simon Fraser University Date Posted: 04 Oct 2021	132
4.	Law of the Gun: Unrepresentative Cases and Distorted Doctrine Eric Ruben SMU Dedman School of Law Date Posted: 01 Sep 2021	88
5.	Victims as Instruments Rachel J. Wechsler The Peter L. Zimroth Center on the Administration of Criminal Law, New York University School of Law Date Posted: 11 Oct 2021	71
6.	Challenging Domestic Injustice Through International Human Rights Advocacy: Addressing Homelessness in The United States Eric Tars, Tamar Ezer, Melanie Ng, David Stuzin and Conor Arevalo National Law Center on Homelessness and Poverty, University of Miami - School of Law, University of Miami - School of Law, University of Miami - School of Law and University of Miami - School of Law Date Posted: 26 Oct 2021	64
7.	Is there a Rational Basis for NH's War on Marijuana Anymore? Michael Lewis and Cassandra Moran Rath, Young and Pignatelli and Independent Date Posted: 28 Oct 2021	63
8.	Obstruction of Journalism Erin Carroll Georgetown University Law Center Date Posted: 13 Sep 2021	60
9.	A Comparative Analysis of Cyberstalking Legislations in UK, Singapore and Sri Lanka Paramie Munasinghe and Kushanthi Harasgama Sri Lanka Institute of Information Technology (SLIIT) - Law School and Sri Lanka Institute of Information Technology (SLIIT) - Law School Date Posted: 18 Aug 2021 [10th last week]	45
10.	Invisible Victims Mihailis Diamantis University of Iowa - College of Law Date Posted: 28 Sep 2021 [9th last week]	44

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Aftermath of Carpenter: An Empirical Study of Fourth Amendment Law, 2018-2021 Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 28 Sep 2021 [new to top ten]	615
2.	How to be a Better Plea Bargainer Cynthia Alkon and Andrea Kupfer Schneider Texas A&M University School of Law and Marquette University - Law School Date Posted: 04 Oct 2021 [1st last week]	437
3.	The Broken Fourth Amendment Oath Laurent Sacharoff University of Arkansas School of Law Date Posted: 08 Jun 2021 [2nd last week]	265
4.	Congressional Surveillance Aaron Cooper Georgetown University Law Center Date Posted: 27 Aug 2021 [3rd last week]	189
5.	The Living Rules of Evidence G. Alexander Nunn University of Arkansas - School of Law Date Posted: 09 Aug 2021 [4th last week]	183
6.	Grounding Legal Proof Michael S. Pardo Georgetown University Law Center Date Posted: 10 Sep 2021 [new to top ten]	89
7.	Reforming State Bail Reform Shima Baradaran Baughman, Lauren Boone and Nathan H. Jackson University of Utah - S.J. Quinney College of Law, University of Utah - S.J. Quinney College of Law and University of Utah, S.J. Quinney College of Law, Students Date Posted: 01 Oct 2021 [9th last week]	88
8.	Do Hobocops Dream of the Rule of Law? Evan D. Bernick Northern Illinois University - College of Law Date Posted: 22 Sep 2021 [10th last week]	83
9.	How Algorithms Expose the Law Colin Doyle Harvard Law School Date Posted: 02 Aug 2021 [8th last week]	82
10.	An Experimental Exploration of Reasonable Doubt Jason Anthony Aimone, Stanton Hudja, Wilson Law, Charles M. North, Jason Ralston and Lucas Rentschler Baylor University - Department of Economics, Baylor University - Hankamer School of Business, Baylor University, Baylor University Department of Economics, Whitman College and Utah State University - Department of Economics and Finance Date Posted: 28 Oct 2021 [new to top ten]	60

Garrett on Models of Bail Reform

Brandon L. Garrett (Duke University School of Law) has posted Models of Bail Reform on SSRN. Here is the abstract:

 

Bail reform is an urgent topic in the United States and internationally, but what consists in reform, and how to accomplish reform goals remains contested. Jails are a modern epicenter of mass incarceration, with a stunning growth in American jail populations over the past four decades, despite declines in arrests and crime. Prior waves of bail reform gave us a system that still largely relied upon setting secured bonds, with up-front payments required, to determine who remains in jail while pending a criminal trial. Today, pre-trial policies and practices are contested and in flux. Recent bail reform legislation has inconsistently called for both local discretion and state-imposed rules, and restrictions on conditioning release on cash bail but also restrictions on release without cash bail. This Article seeks to shed light on key distinctions in bail reform approaches, by focusing on four models: (1) the procedural due process approach; (2) the risk assessment approach; (3) the categorical approach; (4) the community services approach; (5) an equal protection model; and (6) the use of alternatives to arrest. Each reflects a different normative agenda, targets different legal actors, and raises different constitutional and legal questions. Two of these models, the equal protection and arrest alternatives models have not been widely adopted and are not often included as part of bail reform conversations. This Article recommends a composite model that adopts elements of each model, using a separation-of-powers approach to target pretrial actors whose discretion can otherwise undermine each other’s compliance. This Article concludes by discussing a comprehensive vision for bail reform outside the criminal legal system.

Farhidi on Cops and Crime Rates

Faraz Farhidi (Georgia State University) has posted Do We Need More Cops? An Analysis of the Determinants of Metro Crime Rates on SSRN. Here is the abstract:

 

This paper studies and theorize the impact that law enforcement in cities has on criminal activities. Exploring primarily covariates, the results from two IV approaches show that increasing police officers in regions does not reduce the corresponding crimes. There are two sets of data used in this research for each IV strategy—first, the city-level data for more than a hundred cities across the US. Second is the state-level data for fifty states and DC. Falsification tests are conducted to validate the empirical conclusion. Based on the results, I propose an alternative theoretical model compared to the conventional framework, in which there is a trade-off between hiring more enforcement law forces and raising taxes in an economy.

Abramovaite et al. on Testing Deterrence Theory

Juste Abramovaite, Siddhartha Bandyopadhyay, Samrat Bhattacharya and Nick Cowen (University of Birmingham, University of Birmingham - Department of Economics, Fifth Third Bank - Asset Management Division and School of Social and Political Sciences, University of Lincoln) have posted Classical deterrence theory revisited: an empirical analysis of Police Force Areas in England and Wales (European Journal of Criminology) on SSRN. Here is the abstract:

 

The severity, certainty and celerity (swiftness) of punishment are theorised to influence offending through deterrence. Yet celerity is only occasionally included in empirical studies of criminal activity and the three deterrence factors have rarely been analysed in one empirical model. We address this gap with an analysis using unique panel data of recorded theft, burglary and violence against the person for 41 Police Force Areas in England and Wales using variables that capture these three theorised factors of deterrence. Police detection reduces subsequent burglary and theft but not violence while severity appears to reduce burglary but not theft or violent crime. We find that variation in the celerity of sanction has a significant impact on theft offences but not on burglary or violence offences. Increased average prison sentences reduce burglary only. We account for these results in terms of data challenges and the likely different motivations underlying violent and acquisitive crime.

Berry & Ryan on Eighth Amendment Values

William W. Berry and Meghan J. Ryan (University of Mississippi School of Law and Southern Methodist University - Dedman School of Law) have posted Eighth Amendment Values (The Eighth Amendment and Its Future in a New Age of Punishment (Cambridge U. Press)) on SSRN. Here is the abstract:

 

As with many constitutional provisions, the language of the Eighth Amendment is open-ended and vague in its proscription of excessive bail, excessive fines, and cruel and unusual punishments. Because the language of the Constitution does not provide any additional descriptive information concerning what might make bail or fines excessive, or punishments cruel and unusual, courts must look beyond the text itself to ascertain the meaning of the Eighth Amendment. With respect to the prohibition on cruel and unusual punishments, the U.S. Supreme Court has, over the course of several decades, articulated a number of relevant underlying values that offer some guidance in interpreting this Eighth Amendment provision. These values are also helpful in assessing the excessiveness of bail and fines.

This Chapter explores several of these core Eighth Amendment values, providing an overview of their origin and indicating how such values might apply in interpreting the Eighth Amendment in the future. Specifically, this Chapter discusses the principles of dignity, individualized sentencing, proportionality—both absolute and comparative, humanness, non-arbitrariness, and differentness. The Court has explicitly or implicitly invoked each of these values in its Eighth Amendment cases and detailed the scope and importance of these values to varying degrees. For the most part, though, the Court has remained opaque about how much each of these values influences, and should influence, its Eighth Amendment decisions.

Tyler on Habeas Corpus

Amanda L. Tyler (University of California, Berkeley - School of Law) has posted Habeas Corpus: A Very Short Introduction (Excerpt) (Oxford University Press 2021) on SSRN. Here is the abstract:

 

This Very Short Introduction will tell the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored will be Great Britain and the United States, but many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. Along the way, the book will chronicle the long-standing role of the common law writ as a vehicle for reviewing detentions for conformity with underlying law, as well as more specifically the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The book will highlight how under certain circumstances the common law writ has come up short. It will also, however, tell stories of how on other occasions the common law writ has proved immensely significant in the story of individual liberty, including, to offer but one example, as a vehicle for freeing slaves.

Continue reading

Elberg on Corporate Health Care Compliance

Jacob Elberg (Seton Hall Law School) has posted Neither Carrots nor Sticks: DOJ's Unfulfilled Commitment to Corporate Health Care Compliance (Wisconsin Law Review, Forthcoming 2022) on SSRN. Here is the abstract:

 

The Department of Justice (“DOJ”) has for decades sought to encourage four compliant behaviors in corporate actors: maintenance of an effective pre-existing compliance program, post-enforcement adoption of an effective compliance program, cooperation with a government investigation, and self-disclosure of misconduct. While DOJ’s public statements reflect a claimed commitment to all four, analysis of DOJ policy and resolved cases makes clear that as DOJ has increasingly prioritized and incentivized the latter three behaviors, the first—maintenance of an effective pre-existing compliance program, the only one aimed towards stopping fraud before it occurs—has been cast aside in one of DOJ’s highest-profile enforcement areas.

In criminal prosecutions, both DOJ policy and the United States Sentencing Guidelines (“USSG”) consider pre-existing compliance programs in determining whether a business entity should be prosecuted and the amount of a fine if a prosecution does occur.

Continue reading

Vaynman & Fondacaro on Prosecutorial Discretion and the Balance of Power

Anna D. Vaynman and Mark Robert Fondacaro (John Jay College - CUNY Graduate Center and John Jay College - CUNY Graduate Center) have posted Prosecutorial Discretion, Justice, and Compassion: Reestablishing Balance in our Legal System (Stetson Law Review, Vol. 52, Forthcoming) on SSRN. Here is the abstract:

 

The criminal justice system, wherein nearly all cases are resolved through a guilty plea, is tenuously balanced on prosecutorial discretion in the context of the plea-bargaining process. This shift in the balance of power away from judges and juries is particularly troubling given the lack of formal legal safeguards afforded to defendants engaging in plea bargaining rather than going to trial. The main issue is not prosecutorial discretion per se or even overzealous prosecutors, but the lack of oversight of the plea-bargaining process and the imbalance of power itself, which threatens the legitimacy and stability of the criminal justice system. This article argues for the importance of prosecutorial discretion as a potentially valuable tool, analyzes how and why it creates potential for abuse, and provides suggestions for recreating a balance of power. Overall, the analysis shifts away from blaming the personal characteristics of overzealous prosecutors for the imbalance and focuses on systemic, forward looking administrative and legislative solutions aimed at taking plea bargaining out of the shadows. The article concludes with specific suggestions for recreating a balance of power, by addressing issues arising from unequal access to information throughout the plea-bargaining process and recentering a defendant’s constitutional rights within the justice system.

Adelman on Mass Incarceration and Drug Offender Sentencing

Lynn Adelman (U.S. District Court - Eastern District of WI) has posted Sentencing Drug Offenders Justly While Reducing Mass Incarceration (Federal Sentencing Reporter, Volume 34, No. 1, October 2021) on SSRN. Here is the abstract:

 

In my paper, I discuss what I believe is the most effective approach to sentencing drug defendants. I start with the proposition that in many, if not most cases, incarcerating drug offenders does more harm than good. Imprisonment contributes to mass incarceration, does not deter unlawful drug activity and has an adverse racial impact. Thus, if a judge can reasonably avoid imposing a prison sentence, he or she should do so. Fortunately, this is the judge’s duty under the law. 18 U.S.C. §3553(a) requires a judge to impose a sentence that is “sufficient but not greater than necessary…” or, in other words, the least restrictive reasonable sentence. Thus, in every case, the judge must first consider whether a non-incarcerative sentence is sufficient. It often will be. In determining the appropriate sentence, a judge should focus on what the offender did and why and what he or she will likely do in the future and pay less attention to such factors as drug type and drug weight. Sometimes, a mandatory minimum sentence will apply and prevent a judge from imposing a fair sentence, but that is outside the judge’s control. Fortunately, because of Booker and its progeny, the Federal Sentencing Guidelines do not pose a similar problem. The judge, of course, must calculate and consider the applicable guideline but in many cases the guideline will be irrelevant to a just sentence. This is so because the guidelines are excessively oriented toward prison sentences and thus frequently conflict with the sufficient but not greater than necessary command of §3553(a). In my paper, I provide numerous examples of sentences that I have imposed and explanations of those sentences to illustrate this approach.

Crocker on The Supreme Court's Reticent Qualified Immunity Retreat

Katherine Mims Crocker (William & Mary Law School) has posted The Supreme Court's Reticent Qualified Immunity Retreat (Essay, 71 Duke Law Journal Online 1 (2021)) on SSRN. Here is the abstract:

 

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and optimistic impressions of these cases’ importance from the perspective of a qualified-immunity critic.

Continue reading

"Brock Turner 2.0 in New York?: privileged teen receives surprisingly lenient sentence for multiple sex offenses (and now national attention)"

Douglas Berman has this post at Sentencing Law and Policy, citing to several press accounts. In part:

Because there are literally tens of thousands of state and federal sentences imposed every month, one can always find an array of notable stories of notable leniency and notable severity in individual sentencings.  But only a handful of sentencing stories ever garner broad national attention, and a variety of predictable and unpredictable factors usually account for what gives certain sentencing stories particular salience.  The case of Stanford swimmer Brock Turner, the 20-year old given only six months in a California jail for a sexual assault, had a bunch of factors that led it to receive more attention than any single state sentence of recent vintage.  I am now wondering if the lenient sentence this week of Christopher Belter might also have similar factors.

This USA Today article provide these details under the headline, "A New York man pleaded guilty to rape and sexual abuse charges. He wasn't sentenced to prison."

"Groveland Four, the Black men accused in a 1949 rape, get case dismissed"

From NBC news, via NACDL's news-of-interest:

It took seven decades before the state of Florida formally recognized how the four accused — Charles Greenlee, Walter Irvin, Samuel Shepherd and Ernest Thomas — were failed by the criminal justice system. Thomas was gunned down by a mob in the wake of Padgett's allegations, and the others have also since died. In 2019, Gov. Ron DeSantis issued the Groveland Four a posthumous pardon.

But Monday morning, a circuit court judge in Lake County went further, clearing the charges against the men and issuing a ruling that effectively exonerated them of the crime. Bill Gladson, a local prosecutor, set the extraordinary move into motion last month when he filed paperwork to toss Thomas' and Shepherd's indictments and set aside the sentences and judgments imposed on Greenlee and Irvin.