CrimProf Blog

Chang on Criminalization of Homosexuality and Sex Ratios

Simon Chang (Central University of Finance and Economics - China Center for Human Capital and Labor Market Research) has posted Criminalization of Homosexuality and Sex Ratios on SSRN. Here is the abstract:

Sexual activities between consenting adults of the same sex are still criminalized in more than one third of the countries in the world despite a global wave of decriminalization in the past sixty years. This paper empirically investigates the effect of sex ratios, i.e. relative number of men to women, on the criminalization of same-sex sexual conducts. At the individual level, people in high sex ratio countries are found to be more hostile against homosexuality and the homosexuals than their counterparts in low sex ratio countries. At the country level, sex ratios have a positive effect on criminalization. In particular, the two-stage least squares estimate using temperature as instrumental variable suggests that adding another man per 100 women in a country would increase the probability of criminalization by nearly three percentage points. Moreover, the fixed-effect estimate based on a US state-level panel data show that adding another man per 100 women in a state would have lowered the probability of revoking the state sodomy law by nearly two percentage points. These findings suggest that a high sex ratio creates a homophobic social environment that facilitates (hampers) the criminalization (decriminalization) of homosexuality.

Witmer-Rich on Sneak-and-Peak Searches

Jonathan Witmer-Rich (Cleveland State University - Cleveland-Marshall College of Law) has posted The Fatal Flaws of the 'Sneak and Peek' Statute and How to Fix it (Case Western Reserve Law Review, Vol. 65, 2014) on SSRN. Here is the abstract:

In the USA PATRIOT Act, Congress authorized delayed notice search warrants — warrants authorizing a “sneak and peek” search, in which investigators conduct covert searches, notifying the occupant weeks or months after the search. These warrants also sometimes authorize covert seizures — a “sneak and steal” search — in which investigators seize evidence, often staging the scene to look like a burglary. 

Covert searches invade the privacy of the home and should be used only in exceptional cases. The current legal rules governing delayed notice search warrants are conceptually flawed. The statute uses a legal doctrine — “exigent circumstances” — that does not make logical sense when applied to covert searching of physical spaces because it permits investigators to manufacture a justification for a covert search in almost any case. Covert searches without sufficient justification run afoul of the Fourth Amendment’s “rule requiring notice” and are constitutionally unreasonable. 

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Scoggins & O'Brien on China's Unhappy Police

Suzanne E. Scoggins and Kevin J. O'Brien (University of California, Berkeley - Charles and Louise Travers Department of Political Science and University of California, Berkeley - Charles and Louise Travers Department of Political Science) have posted China's Unhappy Police (Asian Survey, Forthcoming) on SSRN. Here is the abstract:

China’s street-level police are frustrated. Facing heavy caseloads, administrative drudgery, and low pay, front-line officers find it difficult to focus on tasks they find worthwhile. Discontent often sets in when young recruits’ dreams of being respected and powerful run up against the realities of life on patrol and does not disappear after they advance to station leadership positions, where they cannot easily make changes that improve operations or ease the pressures of the job. Even older officers are dissatisfied with recent procedural reforms and their inability to command the respect they once did. These grievances lead to low morale and much more. In interviews conducted in Hunan, Hebei, Shaanxi, and Beijing from 2010-2013, local police report that discontent encourages shirking, corruption, and waste. Although the Ministry of Public Security has acknowledged police dissatisfaction and the low productivity it causes, reforms so far do little more than treat symptoms and, in some cases, make the situation worse. Interviewing disgruntled cops reveals a life filled with uncertainty, hardship and feelings of powerlessness. It also explains why officers are often seen as lazy and corrupt, and gives us cause to rethink the image of police as effective arms of a highly securitized state.

Husak on Hart on Punishment

Douglas Husak (Rutgers, The State University of New Jersey - Department of Philosophy) has posted A Framework for Punishment: What is the Insight of Hart’s Prolegomenon? on SSRN. Here is the abstract:

I try to identify what H.L.A. Hart got right in his seminal article about punishment. Inter alia, I challenge the adequacy of his celebrated definition and question whether he is correct to separate issues of general justifying aim from those of distribution.

Walen on Proof Beyond a Reasonable Doubt

Alec D. Walen (Rutgers School of Law, Camden) has posted Proof Beyond a Reasonable Doubt: A Balanced Retributive Account on SSRN. Here is the abstract:

The standard of proof in criminal trials in many liberal democracies is proof beyond a reasonable doubt, the BARD standard. It is customary to describe it, when putting a number on it, as requiring that the fact finder be at least 90% certain, after considering the evidence, that the defendant is guilty. Strikingly, no good reason has yet been offered in defense of using that standard. A number of non-consequentialist justifications that aim to support an even higher standard have been offered; all are morally unsound. Meanwhile, consequentialist arguments plausibly support a substantially lower standard — in some cases so low as to undermine the idea that punishment is what is at stake. In this paper, I offer a new retributive justification that supports excluding the instrumental benefits of punishment from the balance that sets the standard. The resulting balance supports a standard arguably in the ballpark of the customary understanding of BARD: a standard requiring that the fact finder have a high, though not maximally high, degree of confidence that the defendant is guilty.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	1,018	Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence  Kent Roach and Craig Forcese  University of Toronto - Faculty of Law and University of Ottawa - Common Law Section  Date posted to database: 5 Feb 2015
2	305	Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence  Craig Forcese and Kent Roach  University of Ottawa - Common Law Section and University of Toronto - Faculty of Law  Date posted to database: 9 Jan 2015
3	253	Can the International Criminal Court Deter Atrocity?  Hyeran Jo and Beth A. Simmons  Texas A&M University (TAMU) - Department of Political Science and Harvard University - Department of Government  Date posted to database: 21 Jan 2015
4	226	California's New Vagrancy Laws: The Growing Enactment and Enforcement of Anti-Homeless Laws in the Golden State  Marina Fisher, Nathaniel Miller, Lindsay Walter andJeffrey Selbin  University of California, Berkeley, The Richard & Rhoda Goldman School of Public Policy, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley - School of Law  Date posted to database: 4 Feb 2015 [new to top ten]
5	193	The Uniform Voidable Transactions Act; or, the 2014 Amendments to the Uniform Fraudulent Transfer Act  Kenneth C. Kettering  Visiting Professor at Large  Date posted to database: 24 Dec 2014 [4th last week]
6	150	A Tale of Two (and Possibly Three) Atkins: Intellectual Disability and Capital Punishment Twelve Years after The Supreme Court's Creation of a Categorical Bar  John H. Blume, Sheri Lynn Johnson, Paul Marcus andEmily C. Paavola  Cornell Law School, Cornell Law School, William & Mary Law School and Cornell Law School  Date posted to database: 16 Jan 2015 [5th last week]
7	145	Fraudulent Income Overstatement on Mortgage Applications During the Credit Expansion of 2002 to 2005  Atif R. Mian and Amir Sufi  Princeton University - Department of Economics and University of Chicago - Booth School of Business  Date posted to database: 8 Feb 2015 [new to top ten]
8	134	Beyond a Reasonable Disagreement: Judging Habeas Corpus  Noam Biale  Independent  Date posted to database: 25 Jan 2015 [7th last week]
9	131	Regulating Sexual Harm: Strangers, Intimates, and Social Institutional Reform  Allegra M. McLeod  Georgetown University Law Center  Date posted to database: 18 Dec 2014 [6th last week]
10	123	Arrests as Regulation  Eisha Jain  Georgetown University Law Center  Date posted to database: 19 Dec 2014 [8th last week]

Next week's criminal law/procedure argument

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

Tuesday

• Henderson v. U.S.: Whether a felony conviction, which makes it unlawful for the defendant to possess a firearm, prevents a court under Rule 41(g) of the Federal Rules of Criminal Procedure or under general equity principles from ordering that the government (1) transfer non-contraband firearms to an unrelated third party to whom the defendant has sold all his property interests; or (2) sell the firearms for the benefit of the defendant.

Solum on Vice Laws

Lawrence B. Solum (Georgetown University Law Center) has posted Virtue as the End of Law: An Aretaic Theory of Legislation (Jurisprudence, Forthcoming) on SSRN. Here is the abstract:

This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by creating opportunities for the meaningful work and play. Taking virtue as the end of law does not entail that legislation must require virtuous action and prohibit behavior that expresses human defects or vices. Instead, the law might pursue indirect strategies that encourage (but do not require) virtue and discourage (but do not prohibit) vice.

Ingram on Order Maintenance Policing

Andrew Ingram (Department of Philosophy UT Austin) has posted Breaking Laws to Fix Broken Windows: A Revisionist Take on Order Maintenance Policing (Berkeley Criminal Law Journal, Vol. 19, No. 2, 2014). Here is the abstract:

Today, there is a family of celebrated police strategies that teach the importance of cracking down on petty crime and urban nuisance as the key to effective crime control. Under the “broken windows” appellation, this strategy is linked in the public mind with New York City and the alleged successes of its police department in reducing the rate of crime over the past two decades. This paper is critical of such order maintenance approaches to policing: I argue that infringements of civil liberty by such departments could be reduced if the departments looked at law more as a good to be served for its own sake and less as an instrument for the promotion of order. In other words, a shot of legalism is the correct medicine to reduce police misconduct that pierces the law’s protections of citizen freedom.

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Otey on RICO and Extraterritoriality

Melvin L Otey (Faulkner University - Thomas Goode Jones School of Law) have posted Why Rico's Extraterritorial Reach is Properly Coextensive with the Reach of its Predicates (Hofstra Journal of International Business and Law, 2015) on SSRN. Here is the abstract:

Advocates and courts have historically adopted an unnecessarily dualistic approach to the extraterritorial application of RICO. At one poll are those suggesting the statute absolutely cannot be applied extraterritorially because it does not announce congressional intention for such application. At the other, there are those suggesting that Congress has manifested clear intention that the statute be applied extraterritorially in a wholesale fashion. As is so often the case, neither extreme is merited, and the truth is in the middle. 

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McAdams, Dharmapala & Garoupa on The Law of Police

Richard H. McAdams , Dhammika Dharmapala and Nuno M. Garoupa (University of Chicago Law School , University of Chicago Law School and University of Illinois College of Law) have posted The Law of Police (University of Chicago Law Review, Vol. 82, 2014) on SSRN. Here is the abstract:

Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how “police are different,” focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one’s threshold of doubt — the perceived probability of guilt at which one would search or seize a suspect. That police have a lower threshold of doubt plausibly justifies more judicial scrutiny of police searches than of nonpolice searches (as well as more-permissive rules when police perform tasks outside the scope of law enforcement). We also consider and critique Bill Stuntz’s alternative explanation of the relevant doctrine.

Bonner on Brady, Contempt, and the Forensic Trifecta

Mark H Bonner (Ave Maria School of Law) has posted The Inquisition by Special Prosecutor in United States V. Senator Ted Stevens: Of Brady, Contempt, and the Forensic Trifecta (51 No. 1 Criminal Law Bulletin Art 2, Winter 2015, Forthcoming) on SSRN. Here is the abstract:

This Article will examine important issues raised by this unusual case and its lingering aftermath, concerning the limits of the trial court’s authority to order prosecutors to comply with the discovery requirements of the Constitution, to order a private attorney as special prosecutor to investigate Assistant United States Attorneys (AUSAs), and to punitively imprison them sua sponte for Brady violation. 

Part I sets forth the proposition that criminal contempt for a Brady violation is not available to the court, and that so-called “Brady orders” are legally unsound. An amendment to the criminal contempt statute is proposed. 

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Stein on Evidence Theory

Alex Stein (Yeshiva University - Benjamin N. Cardozo School of Law) has posted The New Doctrinalism: Implications for Evidence Theory (University of Pennsylvania Law Review, Vol. 163, 2015) on SSRN. Here is the abstract:

This Essay revisits and refines the organizing principles of evidence law: case-specificity, cost-minimization and equal-best. These three principles explain and justify all admissibility and sufficiency requirements of the law of evidence. The case-specificity principle requires that factfinders base their decisions on the relative plausibility of the stories describing the parties’ entitlement-accountability relationship. The cost-minimization principle demands that factfinders minimize the cost of errors and the cost of avoiding errors as a total sum. The equal-best principle mandates that factfinders afford every person the maximal feasible protection against risk of error while equalizing that protection across the board. 

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Bowling & Marks on Stop and Search

Ben Bowling and Estelle Marks (King's College London – The Dickson Poon School of Law and University of Oxford - Centre for Criminology) have posted Stop and Search: Towards a Transnational and Comparative Approach (Police Powers and Criminal Justice: Examining Stop and Search edited by Rebekah Delsol and Michael Shiner. London: Palgrave, Forthcoming) on SSRN. Here is the abstract:

The power to stop people in public places, to question them and to search their person and belongings is common to policing worldwide. Drawing on the small, but growing academic literature on ‘stop and search’ in a range of different geographical and institutional settings, this paper examines the use of this power in theory and in practice. It explores the range of purposes for which stop and search is deployed including the often vaguely defined general goals of security, crime prevention and counter-terrorism. The paper contends that stop and search is the widest and least circumscribed coercive power of government. Although it is often socially invisible, stop and search is among the first and most frequent contacts between police and public and has far-reaching consequences. The paper reflects on the problems of ensuring that police power is constrained by mechanisms of transparency, accountability and respect for human rights and that this is particularly important as police power globalizes. We argue that the way forward is to develop an agenda for transnational and comparative research to provide the basis for mechanisms to ensure that increasingly globally connected police power can be held to account.

Roach & Forcese on Advocating or Promoting Terrorism

Kent Roach and Craig Forcese (University of Toronto - Faculty of Law and University of Ottawa - Common Law Section) have posted Bill C-51 Backgrounder #1: The New Advocating or Promoting Terrorism Offence on SSRN. Here is the abstract:

In Bill C-51, the Canadian government wants to jail people who, by speaking, written, recording, gesturing or through other visible representations, knowingly advocate or promote the commission of terrorism offences in general, while aware of the possibility that the offences may be committed. 

This offence raises many serious issues, and should (at best) be considered extremely concerning. The scope of the new offence is not clear and the offence is sweeping in its criminalization of advocacy and promotion of “terrorism offences in general”, because terrorism offences themselves are sweeping.

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MacLean & Lamparello on Forensic DNA Phenotyping

Charles E. MacLean and Adam Lamparello (Indiana Tech Law School and Indiana Tech - Law School) have posted Forensic DNA Phenotyping in Criminal Investigations and Criminal Courts: Assessing and Mitigating the Dilemmas Inherent in the Science on SSRN. Here is the abstract:

Forensic DNA Phenotyping (“FDP”), estimating the externally visible characteristics (“EVCs”) of the source of human DNA left at a crime scene, is evolving from science fiction toward science fact. FDP can already identify a source’s gender with 100% accuracy, and likely hair color, iris color, adult height, and a number of other EVCs with accuracy rates approaching 70%. Patent applications have been filed for approaches to generating 3D likenesses of DNA sources based on the DNA alone. Nonetheless, criminal investigators, particularly in the United States, have been reticent to apply FDP in their casework. The reticence is likely related to a number of perceived and real dilemmas associated with FDP: is FDP racial profiling, should we test unknown and unseen physical conditions, does testing for behavioral characteristics impermissibly violate the source’s privacy, ought testing be permitted for samples from known sources or DNA databases, and should FDP be limited to use in investigations only or is FDP appropriate for use in a criminal court. As this article explains, although those dilemmas are substantive, they are not insurmountable, and can be quite easily managed with appropriate regulation and protocols. As FDP continues to develop, there will be less need for criminal investigators to shy away from FDP. Cold cases, missing persons, and victims in crimes without other evidence will one day soon all be well served by FDP.

Lee on Regulating Crimmigration

Evan Tsen Lee (University of California Hastings College of the Law) has posted Regulating Crimmigration on SSRN. Here is the abstract:

In the last decade, federal prison populations and deportations have both soared to record numbers. The principal cause of these sharp increases has been the leveraging of prior criminal convictions – mostly state convictions – into federal sentencing enhancements and deportations. These increases are controversial on political and policy grounds. Indeed, the political controversy has overshadowed the fact that the Nation’s Article III and immigration courts have struggled with an exquisitely difficult set of technical problems in determining which state criminal convictions should qualify for federal sentencing enhancements and/or deportation. The crux of the problem is that the underlying crime can be viewed in a fact-sensitive manner – which usually benefits the government – or in an abstract, “categorical” manner – which usually benefits the individual. In two recent decisions, Descamps v. United States and Moncrieffe v. Holder, the U.S. Supreme Court has squarely sided with a categorical approach. Yet the implementation of a categorical approach faces three huge challenges: first, it cuts against the widely shared intuition that just punishment should turn on the facts of the case in question; second, it presupposes that federal courts will always be able to ascertain the essential elements of state offenses; and third, a categorical approach resists application to a significant number of existing federal statutes. This Article sketches out a coherent framework for administering a categorical approach across both federal sentencing and immigration, in the process reconciling seemingly inconsistent Supreme Court decisions and suggesting how several circuit splits should be resolved.

Donohue on Terrorism Trials in Article III Courts

Laura Donohue (Georgetown University Law Center) has posted Terrorism Trials in Article III Courts (Harvard Journal of Law and Public Policy, Vol. 38, pp. 105-143, 2015) on SSRN. Here is the abstract:

Some individuals reject Article III courts as a forum for bringing terrorist suspects to justice on the grounds that the ordinary judicial system cannot handle such cases. As an empirical matter, this claim is simply false. Since 2001, myriad terrorism trials have progressed through the criminal system. The U.S. Department of Justice (DOJ) reports that between 2001 and 2010, there were 998 defendants indicted in terrorism prosecutions. Eighty-seven percent of the defendants were convicted on at least one charge. According to the Executive Office for the U.S. Attorneys, from FY 2004 to FY 2009, there were 3,010 terrorism prosecutions. It reported 2,663 terrorism convictions during the same time period. What these numbers demonstrate (reporting inconsistencies not-withstanding) is that Article III courts have routinely, and successfully, managed international and domestic terrorist cases. Nevertheless, there are important concerns driving such critiques that deserve further scrutiny. 

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Steussy et al. on Microbial Forensics

Edwin Eugene Steussy , Jonathan Eisen , Edward J. Imwinkelried and Anne-Mieke Vandamme (Orrick, Herrington and Sutcliffe , UC Davis Genome Center , University of California, Davis - School of Law and University of Leuven, Department of Microbiology and Immunology) have posted Microbial Forensics: The Biggest Thing Since DNA? (Criminal Law Bulletin (Forthcoming)) on SSRN. Here is the abstract:

We live in a microbial cloud. Our bodies are home to between two and six pounds of microbial life-cells that do not share our DNA but replicate and live on our skin and hair, in our colons, between our toes, and in our mouths. Although some microbes are pathogenic, most are benign; and many are beneficial. For instance, the microbes in our colons are essential to proper digestion. We now realize that bacteria aid in the development of the immune system, fight off pathogens, and regulate our metabolism. Understandably, scientists are paying increasing attention to the human microbiome. 

The growing appreciation of human micobiome is already having a profound effect on the practice of medicine. By way of example, physicians are now using fecal transplants to “infect” a patient with healthy intestinal bacteria to treat microbe-related diseases. 

The new insights into the microbial cloud also have forensic implications. As this article explains, microbial analysis can potentially be employed in: 
–tracing infections to a source; 
–more broadly, making personal identifications; 
–improving estimates of post-mortem interval; 
–identifying types of body fluids; and 
–soil mapping. 

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Hovenkamp on Neoclassical Legal Thought

Herbert J. Hovenkamp (University of Iowa - College of Law) has posted The Opening of American Law: Neoclassical Legal Thought, 1870-1970: Epilogue (Oxford, 2015) on SSRN. Here is the abstract:

The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal sanctions, as well as controversy over the respective role of genetics and environment in human welfare and behavior. The marginalist revolution in economics provided the common law with a set of forward looking theories of risk management. One champion of these developments was Holmes, whose thought was much more marginalist than Darwinian. 

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