CrimProf Blog

"End Mandatory Minimums"

From the Brennan Center, via NACDL's news-of-interest:

Currently, the dominant paradigm in the criminal legal system is the myth that imposing harsh mandatory minimum sentences and locking people of color in cages are necessary to keep white people safe. At the federal level alone, mandatory minimum penalties form the cornerstone of the human caging system. Prosecutors’ use of mandatory minimums in over half of all federal cases disproportionately impacts poor people of color and has driven the exponential growth in the federal prison population in recent decades. All 50 states and DC also have mandatory minimum sentencing laws.

"When a Miscarriage Is Manslaughter"

Michelle Goldberg has this piece in The New York Times. In part:

The trial finally took place this month and lasted one day. According to a local television station, an expert witness for the prosecution testified that methamphetamine use may not have been directly responsible for the death of Poolaw’s fetus. Nevertheless, after deliberating for less than three hours, a jury found her guilty, and she was sentenced to four years in prison.

Tonry on Doing Justice in Sentencing

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted Doing Justice in Sentencing (Crime and Justice—A Review of Research, Forthcoming) on SSRN. Here is the abstract:

 

Anyone who would read a paper on this subject or with this title knows that sentences received by people convicted of crimes in American courts, especially serious ones, are much too often cruelly severe, racially disparate, and reflective more of a prosecutor’s or judge’s idiosyncrasies than of a reasoned assessment of what considerations of justice concerning this offense by this person require or permit. The process is ultimately casual, as if invasive intrusion into someone’s life is a matter of no great importance. To people sentenced, their families, and others who love them it is devastatingly important. Relatively simple ideas about justice, fairness, equality, and parsimony provide a framework to replace contemporary casual justice with a jurisprudence that takes human dignity seriously.

Smith on The Right to a Public Trial

Stephen Smith (Santa Clara University - School of Law) has posted What's in a Name? Strict Scrutiny and the Right to a Public Trial (Idaho Law Review, Vol. 57, No. 2, 2021) on SSRN. Here is the abstract:

 

The Sixth Amendment to the United States Constitution provides that the accused has a right to a public trial. The Supreme Court, in Waller v. Georgia, established that a trial court that seeks to close its courtroom must have a strong interest in closure and the closure must be narrowly tailored to further that interest. This apparent “strict scrutiny” applied to review courtroom closures ordered by trial courts should be conceived as a more lenient form of review. Waller should not be read to require strict scrutiny of courtroom closures. Ultimately, there is nothing especially objectionable about the language of Waller’s test. The reasons that justify a closure order, and possible alternatives to closure, should be considered by a court before it orders a closure. But those considerations should not be viewed through a strict scrutiny lens. Because the formulation of the strict scrutiny test is familiar to lower courts as something akin to a prohibition, that reading of the test may be misleading.

Tonry on The Frontier's Influence on American Criminal Justice

Michael Tonry (University of Minnesota - Twin Cities - School of Law) has posted  Fatalism and Indifference—The Influence of the Frontier on American Criminal Justice (Crime and Justice—A Review of Research, Forthcoming) on SSRN. Here is the abstract:

 

American criminal laws and criminal justice systems are harsher, more punitive, more afflicted by racial disparities and injustices, more indifferent to suffering, and less respectful of human dignity than those of other Western countries. The explanations usually offered—rising crime rates in the 1970s and 1980s, public anger and anxiety, crime control politics, neoliberal economic and social policies—are fundamentally incomplete. The deeper explanations are four features of American history and culture that shaped values, attitudes, and beliefs and produced a political culture in which suffering is fatalistically accepted and policy makers are largely indifferent to individual injustices. The four elements are the history of American race relations, the evolution of Protestant fundamentalism, local election of judges and prosecutors, and the continuing influence of political and social values that emerged during three centuries of western expansion. The last, encapsulated in Frederick Jackson Turner’s “frontier thesis,” is interwoven with the other three. Together, they explain long-term characteristics of American criminal justice and the extraordinary severity of penal policies and practices since the 1970s.

"Soros-Funded DAs Presiding Over a Bloodbath"

From Crime & Consequences. In part:

All of the progressive candidates ran on the same narrative;  longer sentences for repeat felons is racist, the police are racists, and less policing and shorter sentences will help rehabilitate offenders and make communities safer.   Every part of the narrative is a lie,  and the proof is playing out every day on the streets of their cities.

In Larry Krasner’s Philadelphia over 2,240 people were shot last year, the most ever recorded and 499 died, a 40% increase from 2019.  Officials claimed that the pandemic was a major factor but that doesn’t explain why homicides have increased by 14% so far this year.  What’s racist is who’s getting shot.  80% of the shooting victims are black.

 

"More Capitol Riot Defendants are Foregoing Lawyers"

From TalkLeft. In part:

U.S. District Court Judge Royce Lamberth told one such defendant he hadn't seen a successful case of self-representation since he took the bench in 1987. New York Civil Rights Lawyer Ron Kuby says he hasn't seen a successful case of self-representation in his 40 years as a lawyer.

I say this all the time on TalkLeft, but I'll do it one more time: You have the right to remain silent. Use it or lose it. Our jails are filled with people who thought if they could only tell their side of the story, the police (or judge or jury) would see it their way. It rarely happens.

Many of these under-informed defendants think that if they represent themselves, they will be able to put the corrupt "system" on trial. It won't happen. The system is not on trial, you are. Judges, not defendants, decide what is admissible at a trial. Any hint of something that seeks jury nullification won't be permitted in federal court.

Guttel et al. on Sentencing Co-Offenders

Ehud Guttel, Ittai Paldor and Gideon Parchomovsky (Hebrew University of Jerusalem - Faculty of Law, Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law) have posted Sentencing Co-Offenders (Washington University Law Review (2022)) on SSRN. Here is the abstract:

 

Tort law and criminal law are the two main vehicles utilized by the state to deter wrongful behavior. Despite the many similarities between the two legal fields, they differ in their treatment of collaborations. While tort law divides liability among joint-tortfeasors, criminal law abides by a no-division rule that imposes on each co-offender the full brunt of the sanction. Thus, each of two offenders who jointly steal $1,000, will be subject to the full corresponding penalty (rather than the divided penalty for stealing $500).

This Article demonstrates that in property and financial crimes, the no-division regime of criminal law harms both offenders and victims. Specifically, it creates three troubling distortions that have been overlooked by theorists and judges. First, the no-division rule violates the frugality principle, which mandates that sanctions be kept to the minimum level necessary to prevent the offense. Second, it disadvantages vulnerable victims, while favoring the well-to-do. Third, it prompts all potential victims to engage in excessive procurement of private precautions, to the detriment of society at large. The Article proposes two possible solutions to these problems. One option is to substitute the no-division rule with a division regime similar to the one endorsed by tort law. Alternatively, if lawmakers opt to retain the no-division rule, they can, and should, allocate greater public resources to the protection of the vulnerable.

Today's criminal law/procedure cert grant

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

• Denezpi v. United States: Whether the Court of Indian Offenses of Ute Mountain Ute Agency is a federal agency such that Merle Denezpi’s conviction in that court barred his subsequent prosecution in a United States district court for a crime arising out of the same incident.

Opinions applying qualified immunity because of factual differences with prior authority

The Court issues per curiam opinions in Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond. The cases are summarized at ScotusBlog.

Freeburn & Ramsay on Individual Liability for Corporate Misconduct

Lloyd Freeburn and Ian Ramsay (University of Melbourne and Melbourne Law School - University of Melbourne) have posted The Recent Australian Debate About Individual Liability for the Criminal Misconduct of Corporations (Business Law Review, Vol. 42, No. 5, 2021, pp. 214-220) on SSRN. Here is the abstract:

 

When should a director or manager of a company be personally liable because their company has committed a criminal offence? The question is both important and controversial because many of the laws that impose this type of liability (called deemed liability provisions) do so without the need to prove that the director or manager was personally at fault. The question has received much attention recently in Australia because of proposals by the Australian Law Reform Commission to significantly expand the circumstances when this type of liability would be imposed on directors and managers. Following much criticism, the Commission withdrew its proposals and instead called for a wide-ranging review of the effectiveness of individual accountability mechanisms for corporate misconduct – in effect calling for another inquiry. This article outlines the Commission’s proposals and their objectives. It describes the criticisms that were made of the proposals and considers the proposals in the context of prior reviews and principles applying to deemed liability provisions. It is argued that the Commission was right to withdraw its proposals as they did not reflect a proper balancing of the advantages and disadvantages of deemed liability provisions, the proposals were not well drafted, and the formulation of the proposals did not appropriately consider earlier research and inquiries on deemed liability provisions.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	360
2.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021	104
3.	Proximate Cause Untangled Mark Geistfeld New York University School of Law Date Posted: 28 Aug 2021 [new to top ten]	99
4.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021 [4th last week]	67
5.	Law of the Gun: Unrepresentative Cases and Distorted Doctrine Eric Ruben SMU Dedman School of Law Date Posted: 01 Sep 2021 [new to top ten]	65
6.	Why De Minimis is a Defence: A Reply to Professor Coughlan Colton Fehr Simon Fraser University Date Posted: 04 Oct 2021 [new to top ten]	62
7.	Should be Marijuana Legalized in India? Mohd Rameez Raza Faculty of Law, Integral University Date Posted: 16 Aug 2021 [7th last week]	61
8.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021 [6th last week]	58
9.	Achieving Social Equity in the Cannabis Industry Samuel DeWitt Ohio State University (OSU), Michael E. Moritz College of Law, Students Date Posted: 08 Jun 2021 [8th last week]	51
10.	Past as Prologue: Intercept and Surveillance Rules Under Hong Kong's National Security Law Stuart Hargreaves The Chinese University of Hong Kong (CUHK) - Faculty of Law Date Posted: 31 Aug 2021	47

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021	401
2.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	360
3.	Congressional Surveillance Aaron Cooper Georgetown University Law Center Date Posted: 27 Aug 2021 [new to top ten]	147
4.	The Living Rules of Evidence G. Alexander Nunn University of Arkansas - School of Law Date Posted: 09 Aug 2021 [3rd last week]	146
5.	Implicit Bias and the Admissibility of Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 17 Sep 2021 [4th last week]	131
6.	The Role of Emotion in Constitutional Theory J. Joel Alicea Catholic University of America — Columbus School of Law Date Posted: 23 Aug 2021 [5th last week]	116
7.	Law, Fact, and Procedural Justice G. Alexander Nunn University of Arkansas - School of Law Date Posted: 12 Jul 2021 [6th last week]	103
8.	The Color of Justice Alexis Hoag Brooklyn Law School Date Posted: 23 Sep 2021 [7th last week]	103
9.	Survived & Coerced: Epistemic Injustice in the Family Regulation System S. Lisa Washington University of Wisconsin Law School Date Posted: 01 Sep 2021 [new to top ten]	78
10.	Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter Robert Fairbanks University of California, Berkeley, School of Law, Date Posted: 18 Aug 2021 [9th last week]	73

Alkon & Schneider on Becoming Better Plea Bargainers

Cynthia Alkon and Andrea Kupfer Schneider (Texas A&M University School of Law and Marquette University - Law School) have posted How to be a Better Plea Bargainer (Washington University Journal of Law and Policy, Vol. 66, No. 1, 2021) on SSRN. Here is the abstract:

 

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of the parties, the facts of the case, the law, policies behind the law, elements of an agreement, how to communicate with the other parties, and more. The serious power imbalances and constraints inherent in the plea bargaining process make preparation crucial. Alkon and Schneider urge lawyers, scholars, and clinicians to become part of the ongoing conversation so that the practice of law can be improved for the benefit of all.

Gilligan & Ramsay on Corporate Criminal Law Enforcement

George Gilligan and Ian Ramsay (University of Melbourne - Centre for Corporate Law and Melbourne Law School - University of Melbourne) have posted Is There Underenforcement of Corporate Criminal Law? An Analysis of Prosecutions Under the ASIC Act and Corporations Act: 2009–2018 (Company and Securities Law Journal, Vol. 38 No. 6, 2021, pp. 435-458) on SSRN. Here is the abstract:

 

An important international debate is whether there is underenforcement of corporate laws that reduces law’s deterrent value. This article examines this issue in the context of Australia by investigating prosecutions under the Australian Securities and Investments Commission Act 2001 (Cth) and the Corporations Act 2001 (Cth) from 2009 to 2018. The data was obtained from the Commonwealth Director of Public Prosecutions and had not previously been made available to researchers. Key findings are: limited levels of enforcement; substantial prosecutorial concentration upon a small number of sections in the legislation; low levels of prosecutions against corporations compared to individuals; high rate of successful prosecutions; high proportion of defendants are male; and penalties are limited in their severity. The article is a window upon 10 years of corporate law enforcement in Australia and its findings can act as a comparator empirical baseline regarding future research on enforcement of Australian corporate criminal law.

Baughman on 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) have posted Reforming State Bail Reform (74 SMU L. Rev. 447 (2021)) on SSRN. Here is the abstract:

 

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention in different states and have caused other unanticipated problems. This invited piece aims to create a relatively short guide for those contemplating the best path to reform bail. It lays out steps to reform state bail reform efforts by focusing on seven considerations often neglected in bail reform discussions.

Chien & Friedman on Crime and Punishment in Gold Country

Shih-Chun Steven Chien and Lawrence M. Friedman (American Bar Foundation and Stanford University - School of Law) have posted Crime and Punishment in Gold Country: A Historical Case-Study (24 Berkeley J. Crim. L. 81 (2019)) on SSRN. Here is the abstract:

 

This article provides a historical snapshot of the criminal justice system as it operated in El Dorado County, California, between 1951 and 1961. It examines the relationships between various elements of the criminal justice system as well as the relationships between the system and the larger society. This paper portrays a criminal justice system that, on the whole, dealt with crimes as a parent might deal with a disobedient child: firmly, but not harshly.

Heaton on Enhanced Public Defense, Pretrial Outcomes, and Racial Disparities

Paul S. Heaton (University of Pennsylvania Law School) has posted Enhanced Public Defense Improves Pretrial Outcomes and Reduces Racial Disparities (Indiana Law Journal, Vol. 96, P. 701, 2021) on SSRN. Here is the abstract:

 

Numerous jurisdictions are working to reform pretrial processes to reduce or eliminate money bail and decrease pretrial detention. Although reforms such as the abandonment of bail schedules or adoption of actuarial risk assessment tools have been widely enacted, the role of defense counsel in the pretrial process has received less attention.

This Article considers an approach to pretrial reform focused on improving the quality of defense counsel. In Philadelphia, a substantial fraction of people facing criminal charges are detained following rapid preliminary hearings where initial release conditions are set by bail magistrates operating with limited information. Beginning in 2017, the Defender Association of Philadelphia implemented a pilot program wherein “bail advocates” interviewed defendants shortly after arrest to collect individualized information that could be used to more effectively argue for pretrial release.

Continue reading

Yung on Sex Crimes

Corey Rayburn Yung (University of Kansas School of Law) has posted Sex Crimes: Second Edition on SSRN. Here is the abstract:

 

This is a textbook for an upper-level Sex Crimes course at a law school or graduate-level seminar in a variety of disciplines. It covers the criminalization of sexual deviance, rape, sexual assault, obscenity, non-consensual pornography, child molestation, incest, child pornography, sex trafficking, sex work, prostitution, sex offender registration, sex offender residency restrictions, and sex offender civil commitment. The included material is either public domain, Creative Commons, or included with the copyright owner's permission. The book itself is released under a Creative Commons license which you can find at the beginning of the book. I encourage editing, revising, and distributing under those permissive terms.

Martin et al. on Housing Assistance for Those Exiting Prison

Chris Martin, Rebecca Reeve, Ruth McCausland, Eileen Baldry, Pat Burton, Rob White and Stuart Thomas (City Futures Research Center, University of New South Wales, University of New South Wales (UNSW), University of New South Wales, University of Tasmania, University of Tasmania and RMIT University) have posted Exiting Prison with Complex Support Needs: The Role of Housing Assistance (AHURI Final Report 2021) on SSRN. Here is the abstract:

 

This research examined policies and programs relevant to the housing pathways of ex-prisoners with complex support needs in NSW, Victoria and Tasmania, including what criminal justice costs and benefits result from current housing assistance settings.