CrimProf Blog

Amicus brief in case exploring relationship between due process and ex post facto clauses

The brief submitted by Eric Freedman (Hofstra) and Justin Marceau (Denver) and signed by several law professors is attached.Download Selsor Amicus Final

Taslitz on Mass Incarceration

Andrew E. Taslitz (Howard University - School of Law) has posted The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration (Ohio State Journal of Criminal Law, Vol. 9, p. 133, 2011) on SSRN.  Here is the abstract: 

This article argues that a failure to embrace a particular form of governance, "populist deliberative democracy" (PDD), likely contributes to the rise and persistence of mass incarceration in the United States. The article relies on varied converging sources of data. First, the article examines international data, comparing degrees of PDD to incarceration rates in a variety of countries. Second, the article explores interstate data, finding that states with greater PDD have lower incarceration rates. Third, the article examines intrastate data, concluding that city councils in racially-diverse localities have higher PDD and less of a commitment to mass incarceration than do less racially-diverse state and federal legislatures. Fourth, the piece reviews "democratic social science" showing that higher PDD reduces individuals' and groups' willingness to embrace mass incarceration. Finally, the article explores happiness studies, suggesting that PDD raises happiness, which in turn raises empathy for those different from us; reduces an embrace of retributive, incarceration-prone justice; and increases the allure of therapeutic justice. Happiness should also contribute to lower crime rates. The article concludes that, though society-wide American commitment to PDD is likely to remain weak, even smaller, more modest PDD-like reforms within the criminal justice arena might make at least some small contribution to reducing mass incarceration as the ruling paradigm.

Buell on Corporate Civil and Criminal Liability

Samuel W. Buell (Duke University School of Law) has posted Potentially Perverse Effects of Corporate Civil Liability (PROSECUTORS IN THE BOARDROOM: USING CRIMINAL LAW TO REGULATE CORPORATE CONDUCT, Anthony S. Barkow, Rachel E. Barkow, eds., NYU Press, 2011) on SSRN. Here is the abstract: 

Inadequate civil regulatory liability can be an incentive for public enforcers to pursue criminal cases against firms. This incentive is undesirable in a scheme with overlapping forms of liability that is meant to treat most cases of wrongdoing civilly and to reserve the criminal remedy for the few most serious institutional delicts. This effect appears to exist in the current scheme of liability for securities law violations, and may be present in other regulatory structures as well. In this chapter for a volume on "Prosecutors in the Boardroom," I argue that enhancements of the SEC's enforcement processes likely would reduce the frequency of DOJ criminal enforcement against firms, an objective shared by many. Among other enforcement features, I address problems with the practice of accepting "neither admit nor deny" settlements in enforcement actions, a subject that has drawn greater attention since this chapter was published.

O'Hear on Good Time Programs in the American Penal System

Michael M. O'Hear (Marquette University - Law School) has posted Solving the Good Time Puzzle: Why Following the Rules Should Get You Out of Prison Early (Wisconsin Law Review, Forthcoming) on SRRN.  Here is the abstract: 

Good-time programs have long been an important part of the American penal landscape. At least twenty-nine states and the federal government currently offer prison inmates early release, sometimes by many years, in return for good behavior. 

Written a generation ago, the leading scholarly article on the subject presented a strong case against good time, which has yet to be effectively addressed. Although good time is traditionally justified by reference to its usefulness in deterring inmate misconduct — credits can be denied or withdrawn as a penalty for violations of prison rules — the article questioned how it could possibly be just to impose additional incarceration based on mere violations of administrative regulations.

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Pardo & Patterson on Neuroscience, Normativity, and Retributivism

Michael S. Pardo (pictured) and Dennis Patterson (University of Alabama School of Law and European University Institute) have posted Neuroscience, Normativity, and Retributivism (THE FUTURE OF PUNISHMENT, Thomas Nadelhoffer, ed., Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

Advocates for the increased use of neuroscience in law have made bold and provocative claims about the power of neuroscientific discoveries to transform the criminal law in ways large and small. Perhaps the boldest and most provocative of these claims are made in an influential article by Joshua Greene and Jonathan Cohen. They claim that neuroscience will reveal that criminal defendants are not morally responsible for their actions and that this revelation will thereby undermine retributivist justifications for criminal punishment. In the process of resolving previously intractable debates between consequentialism and retributivism, neuroscience will also, they contend, resolve age-old debates about free will. In this essay, we discuss several serious problems with their argument. We maintain that no neuroscientific discoveries will lead to the sorts of changes predicted by Greene and Cohen and, even if they did, those changes would not be the product of neuroscientific insight but result from unwarranted and problematic inferences which ought to be resisted.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	304	Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November 29, 2011
2	259	A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights Christopher R. Green, University of Mississippi - School of Law, Date posted to database: October 20, 2011
3	257	Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis Wouter P. J. Wils, European Commission, Date posted to database: November 9, 2011
4	188	Foreign Corrupt Practices Act Fundamentals Jessica Tillipman, The George Washington University Law School, Date posted to database: September 6, 2011
5	172	Marriage as Punishment Melissa E. Murray, University of California, Berkeley - School of Law, Date posted to database: November 2, 2011
6	133	Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force Susan W. Brenner, University of Dayton - School of Law, Date posted to database: October 29, 2011 [7th last week]
7	127	Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute, Date posted to database: December 6, 2011 [8th last week]
8	125	Legal N-Grams? A Simple Approach to Track the ‘Evolution’ of Legal Language Daniel Martin Katz, Michael James Bommarito, Michael James Bommarito, Julie Seaman, Adam Candeub, Eugene Agichtein, Michigan State University - College of Law, University of Michigan, Department of Financial Engineering, University of Michigan, Department of Political Science, Emory University School of Law, Michigan State University College of Law, Unaffiliated Authors - affiliation not provided to SSRN, Date posted to database: December 16, 2011 [new to top ten]
9	118	Do They Do It for the Money? Utpal Bhattacharya , Cassandra D. Marshall, Indiana University Bloomington - Department of Finance, University of Richmond - Department of Finance, Date posted to database: November 9, 2011 Last Revised: November 18, 2011
10	98	Adoption of the Responsibility to Protect William W. Burke-White, University of Pennsylvania - Law School - Faculty, Date posted to database: November 16, 2011 Last Revised: November 16, 2011

Ruce on criminal liability of banks for suspicious activity by customers

Philip J. Ruce has posted The Bank Secrecy Act: Considerations for Continuing Banking Relationships after the Filing of a Suspicious Activity Report (Quinnipiac Law Review, Vol. 30, No. 1, 2011) on SSRN. Here is the abstract:

Law enforcement has a vested interest in catching alleged money launderers. Suspicious Activity Reports (SARs) filed by financial institutions are a useful tool in this endeavor and can potentially direct law enforcement to criminal enterprises. But SARs are just that — reports of suspicious activity. A financial institution will not generally conduct a complex investigation of every SAR it files; there are far too many reports for that.

But financial institutions face a dilemma that has not been solved via the courts or academia: despite the Bank Secrecy Act (BSA) safe harbor provision, filing a SAR does not excuse a financial institution from liability for continuing to transact business with a client. The institution may in effect be aiding and abetting a criminal if it continues to transact business with an alleged money launderer. But closing the account would likely tip off the alleged wrongdoer that his or her suspicious activity has been spotted, thereby thwarting an otherwise golden opportunity for investigators.

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Klingele on The Early Demise of Early Release

Cecelia M. Klingele (University of Wisconsin Law School) has posted The Early Demise of Early Release (West Virginia Law Review, Vol. 114, No. 1, 2011) on SSRN. Here is the abstract:

Reversing the tough-on-crime policies that have defined American criminal justice for the past two decades, cash-strapped states across the nation have begun reducing the number of people they confine in prisons and jails. In their efforts to reduce correctional populations, numerous states have passed laws that allow parole boards, prison officials, or judges to shorten the sentences of people already serving time in custody. These so-called "early release" laws have proven highly controversial, and in at least three states have been repealed outright. In others, they remain on the books but have provided less savings than anticipated because of the failure of decision-makers to utilize their newly-conferred authority. This Article examines the early demise of early release in several jurisdictions, identifying practical, political, and moral obstacles to the practice of early release that may account for the failure of recent legislation. Responding to those concerns, I suggest principles to guide future efforts to reduce custodial populations through the use of early release. These include drafting laws that respect the limits of institutional capacity, adopting principled rules about who may be released early and for what reasons, and emphasizing the moral concerns that justify efforts to reduce prison populations.

Allen on corporate criminal liability for maritime negligence

Craig H. Allen (University of Washington - School of Law) has posted Proving Corporate Criminal Liability for Negligence in Vessel Management and Operations: An Allision-Oil Spill Case Study on SSRN. Here is the abstract:

Maritime policy analysts often invoke the 'vessel safety net' metaphor to explain the independent but overlapping risk management roles and responsibilities of the vessel master and crew, owner and charterer, operating company, classification society, flag state and port states. Oil spills from the 2002 M/T Prestige break up off the coast of Galicia, Spain, the 2007 M/V Cosco Busan bridge allision in San Francisco Bay and the 2010 Deepwater Horizon debacle in the Gulf of Mexico, among others, demonstrate that any or all of the components of that safety net may come under scrutiny following a marine casualty, possibly leading to civil and even criminal liability.

It now seems clear that criminal liability for the harm caused by a marine casualty can extend beyond those on board the vessels who might have been guilty of 'operational negligence.' This article examines one particular aspect of the emerging development: the potential criminal liability of the vessel owner or operator, typically a corporation, for a discharge of oil in violation of the Clean Water Act. Recent cases have demonstrated that the owner’s or operator’s criminal liability may be based on either vicarious liability for the criminal acts of a mariner employed by the owner or operator or on a direct liability theory. Civil liability based on vicarious liability is nothing new. But vicarious criminal liability remains somewhat controversial. However, because vicarious criminal liability - if permitted under the governing law - is relatively easy to establish, this article will only briefly examine the duties relevant to a vicarious liability theory before turning to the alternative direct liability theory for what some refer to as 'negligent management.' It does so by examining the possible means by which the direct criminal liability of the operator of the Cosco Busan might have been established if the operator had not pled guilty and the case had gone to trial.

Alderman on Incarceration on the Ordinary Family

Kimberly Alderman (University of Wisconsin Law School) has posted The Long Arm of the Law: Incarceration and the Ordinary Family (Howard Law Journal, 2011) on SSRN. Here is the abstract:

This Article examines how the ordinary family uses popular narratives about the criminal justice system to cope with and reconcile the increasing intrusion of the system into the family experience. It explores these narratives in the context of a morality play, discussing common perceptions about the court, law enforcement, criminals, and the law itself, as reflected through dramatic television shows and movies. The Article argues that these narratives cultivate a common bond that crosses race and class, giving ordinary families a common enemy: a dysfunctional criminal justice system that systematically overpunishes and overincarcerates.

Farber on Parental Consent to Searches

Hillary B. Farber (University of Massachusetts School of Law ) has posted A Parent’s 'Apparent' Authority: Why Intergenerational Coresidence Requires a Reassessment of Parental Consent to Search Adult Children’s Bedrooms (Cornell Journal of Law and Public Policy, Vol. 21, No. 1, p. 39, 2011) on SSRN. Here is the abstract:

For most of the last century, the structure of the American family shifted from a multigenerational model to a nuclear one. However, since the 1980s, the pendulum has shifted back. This shift has been especially acute for the younger generation — aged 25 to 34 — who have been hurt by the economic downturn in 2008; one in five of these adults now live in a multigenerational household. Despite this demographic shift, Fourth Amendment apparent authority doctrine has not adapted to take account of these changes.

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Ex Post Facto and Due Process brief seeking signatures from criminal law scholars

From Justin Marceau (Denver Law):

We are writing a brief in support of certiorari in a capital case out of the 10th Circuit.  The brief will be filed on behalf of interested criminal law and constitutional law scholars and we are looking for persons who might be willing to join the brief in this capacity.  The short version of the facts are:

(1) The defendant, Michael Selsor, was convicted of capital murder in Oklahoma in 1976.

(2) The capital sentencing scheme under which Selsor was convicted was soon after declared unconstitutional.  The state supreme court announced that all persons serving death sentences under that system must be sentenced to life, notwithstanding the enactment of a new death penalty statute - persons sentenced under the old statute were thus ineligible for death because they could not be re-sentenced under the amended statute.

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Murphy on the Romney Death Penalty Act

Russell G. Murphy (Suffolk University Law School) has posted Execution Watch: Mitt Romney’s 'Foolproof' Death Penalty Act and the Politics of Capital Punishment
(Suffolk University Law Review, Vol. 45, p. 1, 2011) on SSRN. Here is the abstract:

This article presents a legal and political analysis of the 2003 - 2005 effort of Governor Mitt Romney to make the death penalty available as a sentencing option in Massachusetts. It begins with a description of the history of capital punishment in the state as context for Mr. Romney’s creation of the Governor’s Council on Capital Punishment. The Council’s mandate, recommendations, and Final Report are set forth, followed by a summary of proposed legislation based thereon. Public, media, and academic reactions to the Governor’s plan are the basis for an analysis of the political implications of this undertaking, framed by the question “Was Governor Romney primarily interested in making good public policy or in advancing his political ambitions to be President of the United States?” The article then takes an objective look at the merits of the Romney plan in terms of current understandings about the practice and policy of capital punishment in the United States. With the defeat of the Romney bill and the strength of the legislative rejection of the death penalty in Massachusetts as a backdrop, the article concludes with a focus on what this process teaches about Mr. Romney’s governing style and the strength of his political beliefs.

Jochnowitz on Capital Jurors and Mitigating Evidence

Leona Deborah Jochnowitz has posted How Capital Jurors Respond to Mitigating Evidence of Defendant's Mental Illness, Retardation, and Situational Impairments: An Analysis of the Legal and Social Science Literature (Criminal Law Bulletin, Vol. 47, No. 5, p. 839, 2011) on SSRN. Here is the abstract:

This article provides a historical review and analysis of the legal and empirical literature regarding capital juror decision-making, focusing on how capital jurors respond to mitigating factors of mental health, cognitive, and situational impairments. The level of juror receptivity to mental evidence is explained through the perspective of various theories of capital juror decision-making. This article draws upon the precedents of the first contemporary systematic jury studies of the 1950s conducted by Chicago Jury Project researchers. It explores methodologies used to investigate juror decision-making. It analyzes studies on the effectiveness of mental health defenses in criminal trials, a subtopic of the jury research. It focuses on findings of the Capital Jury Project I, which furthered capital jury research through post-trial interviews with actual jurors in the 1990's. Thus, this article imparts a better understanding of how jurors perceive a defendant's extenuating mental disabilities, which may be also stigmatizing and aggravating.

Wolff on Cost, Recidivism, and Justice

Michael A. Wolff (Saint Louis University - School of Law) has posted Missouri Provides Cost of Sentences and Recidivism Data: What Does Cost Have to Do with Justice? (Federal Sentencing Reporter, Forthcoming) on SSRN. Here is the abstract:

The Missouri Sentencing Advisory Commission in 2010, which has an information-based sentencing information system, added two items of information to its Web-based Automated Sentencing Information feature: (1) the cost of each sentencing option and (2) the recidivism rate for offenders – with similar risk factors – who received sentences for the same offense or category of offenses. Because sentencing decisions in Missouri are discretionary, judges are free to use or to disregard the information. For many offenses, however, it is possible for an advocate to argue or for a judge (or the public) to conclude that a more harsh sentence not only may cost more, but may be followed by a higher rate of re-offending than a less severe punishment.

Cohen on Circumvention Tourism

I. Glenn Cohen (Harvard Law School) has posted Circumvention Tourism (Cornell Law Review, Vol. 97, 2012) on SSRN. Here is the abstract:

Under what circumstances should a citizen be able to avoid the penalties set by his or her home country’s criminal law by going abroad to engage in the same activity in a place where it is not criminally prohibited? Should we view the ability to engage in prohibited activities by traveling outside of the nation state as a way of accommodating cultural or political differences within our polity?

These are general questions regarding the power and theory of extraterritorial application of domestic criminal law. In this Article, I examine the issues through a close exploration of one setting that urgently presents them: medical tourism.

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Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	281	Racial Critiques of Mass Incarceration: Beyond the New Jim Crow James Forman, Yale University - Law School, Date posted to database: November 29, 2011
2	259	A Textual Analysis of the Possible Impact of Measure 26 on the Mississippi Bill of Rights Christopher R. Green, University of Mississippi - School of Law, Date posted to database: October 20, 2011
3	242	Recidivism in EU Antitrust Enforcement: A Legal and Economic Analysis Wouter P. J. Wils, European Commission, Date posted to database: November 9, 2011
4	181	Foreign Corrupt Practices Act Fundamentals Jessica Tillipman, The George Washington University Law School, Date posted to database: September 6, 2011
5	165	Marriage as Punishment Melissa E. Murray, University of California, Berkeley - School of Law, Date posted to database: November 2, 2011
6	136	Unintentional Punishment Adam J. Kolber, Brooklyn Law School, Date posted to database: October 17, 2011
7	122	Fourth Amendment Future: Remote Computer Searches and the Use of Virtual Force Susan W. Brenner, University of Dayton - School of Law, Date posted to database: October 29, 2011
8	117	Neuroscience, Normativity, and Retributivism Michael S. Pardo, Dennis Patterson, University of Alabama School of Law, European University Institute, Date posted to database: December 6, 2011
9	102	Do They Do It for the Money? Utpal Bhattacharya , Cassandra D. Marshall, Indiana University Bloomington - Department of Finance, University of Richmond - Department of Finance, Date posted to database: November 9, 2011
10	91	Adoption of the Responsibility to Protect William W. Burke-White, University of Pennsylvania - Law School - Faculty, Date posted to database: November 16, 2011

Joffee on Compensating Victims of Child Pornography

Steven Joffee has posted Avenging 'Amy': Compensating Victims of Child Pornography Through 18 U.S.C. § 2259 (Whittier Journal of Child and Family Advocacy, Vol. 10, No. 2, p. 201, 2011) on SSRN. Here is the abstract:

Child Pornography is a vicious and heinous crime that preys on the most vulnerable and innocent members of our society. In recognition of the devastating impact that child pornography can have on its victims, Congress has enacted multiple anti-child-pornography statutes designed to address the problem. Among these statutes is the Mandatory Restitution for Victims of Sex Crimes Act, codified at 18 U.S.C. section 2259. Section 2259 was specifically enacted to ensure that victims of any defendant convicted of producing, distributing, or possessing child pornography would receive restitution for the full amount of the victim’s losses.

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Rickert on FRE 609 and Past Sex Crime Convictions

Julia Rickert has posted Denying Defendants the Benefit of a Reasonable Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions (Journal of Criminal Law and Criminology, Vol. 100, No. 1, 2010) on SSRN. Here is the abstract:

The vast majority of jurisdictions in the United States allow the credibility of testifying defendants to be impeached with evidence of prior felony convictions. This past crime evidence is admitted solely to show that the defendant may lack credibility. It is not admitted to show that the defendant has a tendency to commit crimes in general or that he or she is a bad, dangerous person. Juries are given a limiting instruction that is supposed to prevent improper use of the evidence, but courts and legislatures acknowledge that despite limiting instructions, past crime evidence can illegitimately prejudice a jury against a defendant. For this reason, judges are required to compare the prejudicial effect of past crimes evidence to its probative value before it is admitted. If the evidence is even slightly more prejudicial than probative of credibility, it is to be excluded.

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"Bonds Avoids Prison Time for Giving Evasive Testimony"

From the New York Times:

SAN FRANCISCO — Barry Bonds, baseball’s home run champion, avoided a prison term Friday when Judge Susan Illston sentenced him to 30 days of house arrest, 2 years of probation, 250 hours of community service with youth groups and a $4,000 fine for providing evasive testimony to a federal grand jury eight years ago.

Bonds’s lawyers stated their intention to appeal, and Illston agreed to stay the sentence through the appeal process.