CrimProf Blog

"Georgia bill is latest GOP effort targeting prosecutors"

From AP, via NACDL's news update:

A new Georgia commission to discipline and remove wayward prosecutors would be the latest move nationwide to ratchet up oversight on what Republicans see as “woke prosecutors” who aren’t doing enough to fight crime.

. . . 

The Georgia bill parallels efforts to remove prosecutors in Florida, Missouri, Indiana and Pennsylvania, as well as broader disputes nationwide over how certain criminal offenses should be charged. All continue anti-crime campaigns that Republicans ran nationwide last year, accusing Democrats of coddling criminals and acting improperly by refusing to prosecute whole categories of crimes including marijuana possession. All the efforts raise the question of prosecutorial discretion — a prosecutor’s decision of what cases to try or reject and what charges to bring.

"Idaho Is About To Become The First State To Restrict Interstate Travel For Abortion"

From The Huffington Post:

House Bill 242, which passed through the state House and is likely to move quickly through the Senate, seeks to limit minors’ ability to travel for abortion care without parental consent. The legislation would create a whole new crime — dubbed “abortion trafficking” — which is defined in the bill as an “adult who, with the intent to conceal an abortion from the parents or guardian of a pregnant, unemancipated minor, either procures an abortion … or obtains an abortion-inducing drug” for the minor. “Recruiting, harboring, or transporting the pregnant minor within this state commits the crime of abortion trafficking,” the legislation adds.

Holland on Venue Rights and Remedies

Brooks Holland (Gonzaga University School of Law) has posted Venue Rights and Remedies: Does a Constitutional Venue Violation Preclude a Retrial? (50.6 A.B.A. Supreme Court Preview Journal 45 (2023)) on SSRN. Here is the abstract:

 

This article previews the pending U.S. Supreme Court case of Smith v. United States, to be argued on March 28, 2023. This case will resolve a circuit split in whether a violation of the constitutional requirement of venue for a federal criminal trial precludes re-prosecution of the defendant, or instead permits re-trial in a proper venue.

"Biden Acts to Restrict U.S. Government Use of Spyware"

From The New York Times:

President Biden on Monday signed an executive order restricting American government use of a class of powerful surveillance tools that have been abused by both autocracies and democracies around the world to spy on political dissidents, journalists and human rights activists.

The tools in question, known as commercial spyware, give governments the power to hack the mobile phones of private citizens, extracting data and tracking their movements. The global market for their use is booming, and some U.S. government agencies have studied or deployed the technology.

Medwed on Ineffective Assistance and Habeas Doctrine

Daniel S. Medwed (Northeastern University - School of Law) has posted Ineffective Assistance of Case Law: The Supreme Court's Deficient Habeas Jurisprudence (Harvard Law & Policy Review, Forthcoming) on SSRN. Here is the abstract:

 

The poor safety record of trials, appeals, state postconviction procedures, and executive clemency in protecting innocent criminal defendants—coupled with barriers to raising innocence claims through federal habeas corpus—often prompt advocates to devise indirect litigation strategies to overturn wrongful convictions. One such strategy involves raising a constitutional claim of “ineffective assistance of counsel (IAC)” in a federal habeas corpus action. The heart of an IAC claim in this forum is frequently that the trial lawyer’s failure to investigate, mount an alibi defense, and/or challenge an assortment of prosecutorial and judicial missteps contributed to unwarranted incarceration. What lies beneath the surface is an intimation that an innocent person is trapped behind bars; IAC is the label affixed to a claim that seeks to rectify an injustice. Relying on IAC as a proxy for an actual innocence claim is not ideal.

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Holland on Confrontation and Confessions

Brooks Holland (Gonzaga University School of Law) has posted Confrontation and Confessions: Should Courts Consider Surrounding Context When Deciding Whether To Admit a Co-Defendant’s Confession in a Joint Criminal Trial? (50.6 A.B.A. Supreme Court Preview Journal 53 (2023)) on SSRN. Here is the abstract:

 

This article previews the pending U.S. Supreme Court case of Samia v. United States, to be argued on March 29, 2023. This case will re-examine the Sixth Amendment's "Bruton" rule dealing with the confrontation right implications in a joint criminal trial of admitting one defendant's confession that implicates another defendant. This case will determine whether a court when deciding whether to admit a nontestifying co-defendant's redacted confession must consider the other trial evidence or just the "four corners" of the confession when evaluating the sufficiency of the redactions to protect the other defendant's confrontation rights.

Morrissey et al. on Prosecutions for Drug-Induced Homicide

Brandon Morrissey, Taleed El-Sabawi, and Jennifer J. Carroll (North Carolina State University, Florida International University (FIU) - College of Law and North Carolina State University) have posted Prosecuting Overdose: An Exploratory Study of Prosecutorial Motivations for Drug-Induced Homicide Prosecutions in North Carolina on SSRN. Here is the abstract:

 

Prosecutorial use of drug-induced homicide (DIH) laws (laws charging persons with criminal killings for supplying drugs that cause an overdose death) varies. We conducted a descriptive, exploratory analysis of the variation of DIH enforcement by prosecutorial district to assess whether district-level variables are associated with DIH prosecutions. We also surveyed 24 N.C. prosecutors to explore motivations in pursuing DIH cases. We did not find any associations between overdose deaths and DIH charges. Survey data suggested that perceived justice for the deceased, individual case characteristics (i.e. fentanyl-involvement and intent of the drug supplier), and the perceived need to respond to overdose deaths may influence prosecutorial use of DIH charges.

Datta on Medical Compassionate Release

Nikita Datta has posted Compassion Without COVID-19: The Potential for Continued Expansion of Federal Compassionate Release After the Coronavirus Pandemic (Columbia Human Rights Law Review, Vol. 51) on SSRN. Here is the abstract:

This Note examines courts' novel analysis of medical compassionate release petitions during the pandemic and consider the future of medical compassionate release. This Note argues that the framework for analysis of medical compassionate release used to evaluate pandemic-related petitions was both more appropriate than and meaningfully different from the one applied to non-pandemic related petitions.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply. 

Rank	Paper	Downloads
1.	Climate Homicide: Prosecuting Big Oil For Climate Deaths David Arkush and Donald Braman Public Citizen and George Washington University - Law School Date Posted: 25 Jan 2023 [2nd last week]	1,818
2.	Blockchain Forensics and Crypto-Related Cybercrimes Lin William Cong, Kimberly Grauer, Daniel Rabetti and Henry Updegrave Cornell University - Samuel Curtis Johnson Graduate School of Management, Chainalysis, Tel Aviv University - Coller School of Management and Chainalysis Date Posted: 16 Feb 2023 [5th last week]	273
3.	Vagueness Avoidance Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 02 Jan 2023	271
4.	After the Criminal Justice System Benjamin Levin University of Colorado Law School Date Posted: 13 Mar 2023 [new to top ten]	220
5.	Rape as Indignity Ben A. McJunkin Arizona State University (ASU) - Sandra Day O'Connor College of Law Date Posted: 06 Feb 2023 [4th last week]	214
6.	Restorative Justice as Regenerative Tribal Jurisdiction Lauren van Schilfgaarde UCLA School of Law Date Posted: 06 Mar 2023	169
7.	Brief of Professor Joel S. Johnson in Support of Petitioner, Dubin v. United States Joel S. Johnson Pepperdine University - Rick J. Caruso School of Law Date Posted: 04 Jan 2023 [8th last week]	150
8.	Our Troubling Failures in Catching Criminals: Rethinking Legal Limits on Crime Investigation Paul H. Robinson, Jeffrey Seaman and Muhammad Sarahne University of Pennsylvania Carey Law School, University of Pennsylvania and University of Pennsylvania Date Posted: 15 Feb 2023 [9th last week]	112
9.	The Power of Antitrust Personhood Herbert Hovenkamp University of Pennsylvania Carey Law School Date Posted: 10 Feb 2023 [10th last week]	99
10.	Territoriality in American Criminal Law Emma Kaufman New York University School of Law Date Posted: 09 Jan 2023 [new to top ten]	95

Next week's criminal law/procedure arguments

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

Monday

• U.S. v. Hansen: Whether the federal criminal prohibition against encouraging or inducing unlawful immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional on First Amendment overbreadth grounds.

Tuesday

• Lora v. U.S.: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).
• Smith v. U.S.: Whether the proper remedy for the government’s failure to prove venue is an acquittal barring re-prosecution of the offense, as the U.S. Courts of Appeals for the 5th and 8th Circuits have held, or whether instead the government may re-try the defendant for the same offense in a different venue, as the U.S. Courts of Appeals for the 6th, 9th, 10th and 11th Circuits have held.

Wednesday

• Samia v. U.S.: Whether admitting a codefendant’s redacted out-of-court confession that immediately inculpates a defendant based on the surrounding context violates the defendant’s rights under the confrontation clause of the Sixth Amendment.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Terms of Service and Fourth Amendment Rights Orin S. Kerr University of California, Berkeley School of Law Date Posted: 31 Jan 2023	734
2.	Judging Firearms Evidence Brandon L. Garrett, Eric Tucker and Nicholas Scurich Duke University School of Law, Duke University School of Law and University of California, Irvine Date Posted: 19 Jan 2023	200
3.	Unconstitutional Police Pretexts Nadia Banteka University of the Pacific - McGeorge School of Law Date Posted: 28 Feb 2023	168
4.	From Mutual Trust to the Gordian Knot of Notifications: The EU E-Evidence Legislative Project Theodore Christakis University Grenoble-Alpes, CESICE, France. Senior Fellow Cross Border Data Forum & Future of Privacy Forum Date Posted: 28 Dec 2022	156
5.	Bail at the Founding Kellen Funk and Sandra G. Mayson Columbia University - Law School and University of Pennsylvania Carey Law School Date Posted: 28 Feb 2023 [6th last week]	152
6.	The Incoherence of Evidence Law G. Alexander Nunn University of Arkansas - School of Law Date Posted: 27 Feb 2023 [5th last week]	148
7.	How Do ‘Technical’ Design-Choices Made When Building Algorithmic Decisionmaking Tools for Criminal Justice Authorities Create Constitutional Dangers? (Part 1) Karen Yeung and Adam Harkens The University of Birmingham and University of Strathclyde, School of Law Date Posted: 09 Jan 2023	125
8.	The Unconstitutional Conditions Vacuum in Criminal Procedure Kay Levine, Jonathan Remy Nash and Robert A. Schapiro Emory University School of Law, Emory University School of Law and University of San Diego School of Law Date Posted: 02 Mar 2023 [10th last week]	107
9.	The Prosecution Bar William Ortman Wayne State University School of Law Date Posted: 03 Mar 2023 [8th last week]	106
10.	Detecting Deep Fake Evidence with Artificial Intelligence: A Critical Look from a Criminal Law Perspective Francesca Palmiotto Hertie School Date Posted: 10 Mar 2023 [new to top ten]	98

Nunna et al. on Victims with Disabilities in India

Bhanu P. Nunna, Gerd F. Kirchhoff, and Manjushree Palit (O.P. Jindal Global University, India, O.P. Jindal Global University, India and O.P. Jindal Global University, India) have posted Improving Criminal Justice System Responses to Crime Victims with Disabilities in India (Law and Humanities Quarterly Reviews, Vol.1 No.2 (2022)) on SSRN. Here is the abstract:

 

In the past three decades, significant progress has been made in advancing victims’ rights, ensuring comprehensive services for crime victims, and restoring victims as active participants in the criminal justice system in India. However, some victims, particularly those with disabilities, often remain marginalised. This paper examines how prejudices, stereotypes, and misconceptions contribute to the lack of participation of people with disabilities in the criminal justice process in India and how they are often compounded by societal assumptions, stereotyping, and misconceptions. It is argued that for too long, the criminal justice system has failed to adequately address the unique circumstances of people with disabilities. Specifically, this paper explores ways to assist crime victims with disabilities in accessing the criminal justice system, exercising their rights as victims of crime (some of which have legal standing, while others do not), and maximizing their participation in the criminal justice process. Finally, it is concluded that there must be a widespread cultural change among the police, the legal profession, the judiciary, the disability sector, and the general public to better assist victims with disabilities in the aftermath of crime.

Deitch on Pay-to-Stay Statutes and Inherited Property

Brittany Deitch (Capital University Law School) has posted Estate to State: Pay-to-Stay Statutes and the Problematic Seizure of Inherited Property (University of Colorado Law Review, Vol. 95, No. 4, Forthcoming) on SSRN. Here is the abstract:

 

Pay-to-stay statutes allow states to recover their incarceration-related expenditures from those who are currently or formerly incarcerated. Mass incarceration is expensive, and states have aimed to shift this financial burden from their taxpayers and government coffers to the individuals who experience incarceration. Although pay-to-stay laws take many forms, in general, they authorize the government to seek recompense for an individual’s incarceration costs from the currently or formerly incarcerated person’s assets and income. Many states permit the seizure of inherited property to satisfy this legal financial obligation.

Thus far, pay-to-stay laws have survived constitutional challenges, but recently some state legislatures have faced public pressure to abolish or limit the scope of their pay-to-stay regimes. This Article criticizes pay-to-stay statutes generally, while addressing the special concerns arising when states use these laws to take inherited property as reimbursement. In particular, when states seize inherited property to satisfy the costs of incarceration, the states interfere with the decedent’s testamentary freedom of disposition, as well as the beneficiary’s freedom to inherit. As a practical matter, these statutes apply inequitably by disparately impacting people without substantial wealth and people from communities that have historically been systemically excluded from intergenerational wealth.

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Roth et al. on Why Criminal Defendants Cooperate

Jessica Roth, Anna D. Vaynman, and Steven D. Penrod (Yeshiva University - Benjamin N. Cardozo School of Law, John Jay College - CUNY Graduate Center and John Jay College of Criminal Justice) have posted Why Criminal Defendants Cooperate: The Defense Attorney's Perspective (Forthcoming; Northwestern University Law Review, Vol. 117, No. 5, 2023) on SSRN. Here is the abstract:

 

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District of Virginia, and the Eastern District of Pennsylvania. Our study provides an entirely new and enriching perspective on the cooperation decision, building on prior theories from the cooperation and plea-bargaining literature, and providing for a more nuanced understanding of cooperation and its motivations. In several closed- and open-ended responses, attorneys shared their opinions—at times remarkably consistent, at times strikingly and informatively different—about cooperation practices in their respective districts. The results of this study can be used to further explore the theoretical foundations of cooperation and plea bargaining and can be used to build experimental studies to test causal relationships that are otherwise nearly impossible to determine.

Fissell on Police-Made Law

Brenner Fissell (Villanova University) has posted Police-Made Law (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Article presents evidence that police are writing the laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed through an anti-vaping ordinance because of news articles he read about the dangers of e-nicotine.

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Green on Prosecutors' Duties to Rectify Wrongful Convictions

Bruce A. Green (Fordham University School of Law) has posted Should Prosecutors Be Expected to Rectify Wrongful Convictions? (Forthcoming, Texas A&M L. Rev. (2023)) on SSRN. Here is the abstract:

 

In 2008, the American Bar Association amended the Model Rules of Professional Conduct to address prosecutors’ post-conviction conduct. Model Rules 3.8(g) and (h) establish the remedial steps a prosecutor must take after achieving a criminal conviction when confronted with significant new evidence of an injustice. They require prosecutors to disclose the new exculpatory evidence and to take reasonable steps to initiate an investigation, and if clear and convincing evidence then establishes the convicted defendant’s innocence, the prosecutors’ office must take reasonable steps to rectify the injustice. Since then, 24 state judiciaries have adopted versions of one or both rules. Although prosecutors in those states have not reported problems with the rules, state and federal prosecutors often oppose their adoption in the remaining states, including in Texas where the model provisions have been under consideration for over a year.

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Murtagh on Immigration and Abortion Crimes

Lauren Murtagh has posted Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework (109 Va. L. Rev., Forthcoming) on SSRN. Here is the abstract:

Before Roe v. Wade was decided, the Board of Immigration Appeals (BIA) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could potentially be removed from or declared inadmissible to the United States if they were convicted of performing an illegal abortion. Since the BIA’s last decision pertaining to abortion and moral turpitude, however, Roe has been both decided and overruled, suggesting that society’s view on the “morality” of abortion is not necessarily consistent with its view at the time these cases were decided. Thus, these earlier decisions should not be taken as dispositive. The term “crimes involving moral turpitude” has been interpreted by courts and the BIA to evolve as the values of society change. This fluid definition has led to an inconsistent application of the term moral turpitude over time and across jurisdictions.

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Lau on Interrupting Gun Violence

Christopher Lau (Yeshiva University - Benjamin N. Cardozo School of Law) has posted an abstract of Interrupting Gun Violence (104 Boston University Law Review (Forthcoming April 2024)) on SSRN. Here is the abstract:

 

Against the backdrop of declining crime rates, gun violence and gun-related homicides have only risen over the last three years. Just as it historically has, the brunt of that violence has been borne by poor Black and Brown communities. These communities are especially impacted: they are not only far more likely to be the victims of gun violence but are the primary targets of police surveillance and harassment. People of color are disproportionately prosecuted for gun crimes, which, in part prompted the Black Public Defenders Amicus Brief in support of expanding gun rights in New York State Rifle & Pistol Association, Inc. v. Bruen.

Recognizing that the carceral approach of policing and prosecution has failed to prevent gun violence and has harmed Black and Brown communities, this Article sets forth community violence interruption groups as a promising decarceral alternative.

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Baker & Shortland on Crime and Insurance

Tom Baker and Anja Shortland (University of Pennsylvania Carey Law School and King's College, London) have posted How Crime Shapes Insurance and Insurance Shapes Crime (Journal of Legal Analysis, Forthcoming) on SSRN. Here is the abstract:

 

Crime creates demand for insurance but supplying insurance may promote crime. We examine five case studies of insured crimes (auto theft, art theft, kidnap and hijack for ransom, ransomware, and payment card fraud) and find a co-evolutionary process through which insurers engage with insureds, governments, and legal and extralegal third parties to mitigate losses, particularly when criminal innovations destabilize the insurance market. “Insurance as crime governance” stimulates demand for security, shapes criminal incentives, engages with the state to combat crime, and tolerates some crime in the interest of profitability.

Yeager on A History of Fruit of the Poisonous Tree

Daniel B. Yeager (California Western School of Law) has posted A History of Fruit of the Poisonous Tree (1916-1942) on SSRN. Here is the abstract:

 

This is a history of a little-known stage within an otherwise well-known area of criminal procedure. The subject, “fruit of the poisonous tree,” explains the exclusion from trial of evidence (the fruit) derived from unconstitutional police practices (the tree). The Supreme Court first deployed the metaphor in 1939; exclusion of fruits by any other name, however, dates to before the Court began reviewing state convictions. While academic interest in the 1963-to-present phase of fruits is keen, the first quarter of what is now a century of history is taken as given, described in only the most conclusory terms. The 1916-1942 era began with a recently expanded federal criminal law, followed by an expanded review of convictions in the Supreme Court, whose energies Prohibition would divert to other issues of enforcement. As a result, development of fruits doctrine was taken up by the lower federal courts, led by the Second Circuit, which in turn was led by Judge Learned Hand. As the first to articulate the admissibility of so-called derivative evidence (as in copies of illegally seized papers), Hand & Co. were ahead of their time, extending their insights to related matters (harmless error, standing), some of which remain undeveloped to this day (as in evidence derived from coerced confessions). Mostly, the Second Circuit manifested a sensibility toward fruits that is distinct from the wooden, causal, torts-based angle the Supreme Court would come to adopt.