CrimProf Blog

"How ambiguous a statute may Congress pass?"

Sasha Volokh has this lengthy post at The Volokh Conspiracy, addressing the question in both civil and criminal contexts, including the Armed Career Criminal Act and the Sherman Act.

"India law commission recommends abolition of death penalty for all non-terrorists"

From Jurist:

The Law Commission of India [official website] has recommended [report, PDF] that the death penalty be abolished as a mode of punishment for all crimes except terrorism. This is the first time the Commission has addressed the death penalty since 1967, when they recommended the retention of the death penalty in India. The Supreme Court of India [official website] has upheld the death penalty in the past, though they have restricted it to "the rarest of rare cases, to reduce the arbitrariness of the penalty." In their concluding remarks, the Commission stated that "[t]he death penalty does not serve the penological goal of deterrence any more than life imprisonment," which, in India, truly means imprisonment for the duration of one's life. Further, in singling out acts of terrorism as those punishable by the death penalty, the Commission noted that there are many concerns that the abolition of the death penalty for these crimes will affect national security. Reasoning that the death penalty diverts attention from other problems infecting the criminal justice system, transforming retribution into vengeance. "The notion of an eye for an eye, tooth for a tooth has no place in our constitutionally mediated criminal justice system."

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	4,933	Concealed Carry Permit Holders Across the United States  John R. Lott, John E Whitleyand Rebekah C. Riley  Crime Prevention Research Center, Crime Prevention Research Center and Crime Prevention Research Center  Date posted to database: 20 Jul 2015
2	699	The Worst $90,000 Ever Spent: Ten Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System  Peter Sankoff  University of Alberta - Faculty of Law  Date posted to database: 22 Aug 2015 [new to top ten]
3	622	Constitutional Malware  Jonathan Mayer  Stanford University  Date posted to database: 21 Jul 2015 [2nd last week]
4	287	Gideon's Servants and the Criminalization of Poverty  Alexandra Natapoff  Loyola Law School Los Angeles  Date posted to database: 28 Jun 2015 [3rd last week]
5	267	Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data  Orin S. Kerr  The George Washington University Law School  Date posted to database: 9 Jul 2015 [4th last week]
6	255	An Economic Understanding of Search and Seizure Law  Orin S. Kerr  The George Washington University Law School  Date posted to database: 21 Jul 2015 [5th last week]
7	183	Prison Abolition and Grounded Justice  Allegra M. McLeod  Georgetown University Law Center  Date posted to database: 2 Jul 2015 [6th last week]
8	178	Sexuality and Incapacity  Alexander A. Boni-Saenz  Chicago-Kent College of Law  Date posted to database: 11 Jul 2015 [7th last week]
9	121	The Lost 'Effects' of the Fourth Amendment: Giving Personal Property Due Protection  Maureen E. Brady  Yale University - Law School  Date posted to database: 1 Jul 2015 [8th last week]
10	113	Surveillance Duration Doesn't Affect Privacy Expectations: An Empirical Test of the Mosaic Theory  Matthew B. Kugler and Lior Strahilevitz  University of Chicago - Law School and University of Chicago Law School  Date posted to database: 11 Jul 2015 [new to top ten]

Levin on Guns and Drugs

Benjamin Levin has posted Guns and Drugs (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession. The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have identified structural flaws in policing, prosecuting, and sentencing in the drug context; in the Article, I highlight the ways that the same issues persist in an area - possessory gun crime - that receives much less criticism. Appreciating the broader applicability of the drug war’s critiques, I contend, should lead to an examination of the flaws in the criminal justice system that lessen its capacity for solving social problems.

Sankoff on The Trial of Mike Duffy

Peter Sankoff (University of Alberta - Faculty of Law) has posted The Worst $90,000 Ever Spent: Ten Questions About Mike Duffy, Nigel Wright, the Criminal Code and the Canadian Criminal Justice System on SSRN. Here is the abstract:

Mike Duffy’s ongoing criminal trial has created a tremendous stir online and in the media. Unfortunately, the commentary is rife with speculation and error, much of it caused by the strange nature of the charges, and the conduct of the Crown and defence. In this piece, I examine the charges brought in relation to the infamous $90,000 cheque and discuss 10 key questions arising from the trial with the objective of clarifying what might be happening in this landmark criminal trial.

Levenson on Cynical Prosecutors' Syndrome

Laurie L. Levenson (Loyola Law School Los Angeles) has posted The Cure for the Cynical Prosecutors’ Syndrome: Rethinking a Prosecutor’s Role in Post-Conviction Cases (Berkeley Journal of Criminal Law, Vol 20, Issue 2 (2015)) on SSRN. Here is the abstract:

One of the biggest challenges facing the criminal justice system is dealing with the growing tide of post-conviction petitions claiming wrongful conviction. Each year, the number of exonerees grows. In 2014, an unprecedented 125 exonerations were recorded in the United States. In analyzing how post-conviction matters are handled, it becomes apparent that one of the key roadblocks to remedying these injustices is not, as some have suggested, the attitude of young prosecutors. Rather, senior prosecutors also suffer from a type of “Cynical Prosecutors’ Syndrome” that impairs their ability to play a constructive role in the exoneration process. This article discusses the role of prosecutors in the post-conviction process, analyzes current studies of prosecutorial attitudes, and proposes reforms to ensure that meritorious post-conviction challenges are handled properly.

Priester on The Constitutional Law of Sentencing Factfinding

Benjamin J. Priester (Florida Coastal School of Law) has posted From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding on SSRN. Here is the abstract:

With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law. Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints. The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.

"Bystander’s Death Shows Risks in Gun-Buy Stings"

From The New York Times:

In a dangerous profession, it is among the most dangerous of jobs. The police officers who go undercover to arrest illegal firearms dealers can quickly find themselves at the mercy of their targets, conducting big-money transactions in close quarters with jumpy, suspicious criminals quick to draw guns.

One wrong step, and bullets will fly.

The hazards of the job were made tragically clear on Friday, when an illegal-firearms sting involving an undercover New York City officer erupted in gunfire on a suburban street in Mount Vernon, N.Y., resulting in the death of an innocent bystander named Felix Kumi.

"Federal court lifts injunction on NSA phone surveillance program"

The story is at Jurist:

The US Court of Appeals for the District of Columbia Circuit [official website] on Fridayreversed [opinion, PDF] a ruling that blocked theNational Security Agency (NSA) [official website] from obtaining call detail records from US citizens. Plaintiffs contended that the NSA's collection of such data violated their Fourth Amendment rights against unreasonable search and seizure. The DC Circuit disagreed and reversed the district court's ban on NSA metadata collection, finding that the plaintiffs lacked standing for failure to prove that NSA had actually collected their own telephone data. The case will now return to the lower court for further proceedings.

Kelly on Effects of Asset Forfeiture on Policing

Brian D. Kelly (Seattle University - Department of Economics) has posted Further Results Concerning the Effects of Asset Forfeiture on Policing on SSRN. Here is the abstract:

Earlier work evaluated the association of asset forfeiture with the clearances of crimes reported to police and with the distribution of arrests by type. This paper provides further results concerning the impact of forfeiture on policing.

Asset forfeiture refers to a government seizure of assets that are the instrumentalities or fruits of a crime. Criminal forfeiture requires the criminal conviction of the owner of the assets. However, forfeiture often occurs even when a crime is not prosecuted. Under civil forfeiture, the property itself is the defendant and generally does not have the “beyond a reasonable doubt” protection afforded to people; instead, the standard of proof is usually a weaker standard, such as probable cause or preponderance of the evidence. The actual owner of the property has the status of a third party intervener and may bear the burden of proof to show that the asset is not implicated in a crime. If the seizure of an asset is not challenged by the owner, a non‐judicial, administrative forfeiture occurs. The low standards of proof, the locus of the burden of proof, and widespread use of administrative and civil forfeiture raise difficult civil rights questions. Even more controversial, however, is the fact that police agencies often can retain the cash and other assets that they seize. This has led to accusations that civil forfeiture encourages “policing for profit.”

Freedman on Habeas Corpus as a Legal Remedy

Eric M. Freedman (Hofstra University - Maurice A. Deane School of Law) has posted Habeas Corpus as a Legal Remedy (Northeastern University Law Journal, Vol. 8, 2016) on SSRN. Here is the abstract:

This is the second part of a project whose first part — inspired by the interest in the common law writ of habeas corpus spurred by the Guantanamo Bay litigations — was published as Habeas Corpus as a Common Law Writ, 46 Harv. C.R.-C.L. L. Rev. 591 (2011).

This part of the project argues that understanding habeas corpus during the colonial and early national periods — and ultimately reclaiming its power today — requires understanding that it was just one strand in a web of public and private legal remedies restraining abuses of government power. This article documents, with heavy reliance on previously-unpublished sources, the extent to which in the colonial and early national periods habeas existed within an elaborate structure of public and private mechanisms for constraining government actors.

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Binder on Applying Criminal Law in Disasters and Tragedies

Denis Binder (Chapman University, The Dale E. Fowler School of Law) has posted The Increasing Application of Criminal Law in Disasters and Tragedies: A Global Phenomenon on SSRN. Here is the abstract:

Prosecutors have become aggressive in recent years in bringing criminal prosecutions of those they believe responsible either in creating or aggravating disasters and tragedies. Even large natural disasters usually contain elements of human error. The defendants include corporations, corporate officers, employees, government officials, such as regulators. These occur in both civil law and common law jurisdictions on a variety of theories.

Kaye on The Hair Evidence Debacle

David H. Kaye (The Pennsylvania State University Dickinson School of Law) has posted Ultracrepidarianism in Forensic Science: The Hair Evidence Debacle (Washington & Lee Law Review Online, Vol. 72 (2015 Forthcoming)) on SSRN. Here is the abstract:

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic science,” placed “pseudoscience in the witness box,” and palmed off “virtually worthless” and “scientifically indefensible” evidence as scientific truth. 

This essay questions these interpretations of the 90% figure.

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Dusek on Plea Bargaining in Cook County

Joe Dusek has posted The Effect of Plea Bargaining vs. Trial Conviction on the Sentencing of Offenders Charged with a Drug Offense in Cook County, Illinois on SSRN. Here is the abstract:

Traditional wisdom suggests those who lose at trial for a criminal charge receive a heftier prison sentence than those who plea-bargain. Plea-bargaining reduces strain on the courts, expedites adjudication and may indicate the defendant’s propensity for rehabilitation as they accept responsibility for their actions. Some ask why two people charged with the same crime should receive different sentences based on the adjudication method. The Constitution guarantees the right to a jury trial. Innocent defendants may decide to plead guilty for a sure short sentence rather than risk a trial conviction’s lengthier one. This study using statistical procedures examined 12,786 adjudicated drug crime cases between 2004 and 2007 from the Cook County Circuit Court in Illinois. It sought to determine if adjudication method, plea-bargain vs. trial conviction, predicted prison sentence while controlling for independent variables such as ethnicity, gender, statute violated, offense seriousness, quantity and interaction effects.

Kamin & Marceau on Smith on Furman

Sam Kamin and Justin F. Marceau (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Remember Not to Forget Furman: A Response to Professor Smith (Iowa Law Bulletin, (2015), Forthcoming) on SSRN. Here is the abstract:

Professor Robert J. Smith encourages readers, lawyers, and courts to forget Furman v. Georgia and to focus instead on death penalty challenges grounded in the diminished culpability of nearly all capital defendants. We applaud Professor Smith’s call to focus on the mental and emotional characteristics that reduce the blameworthiness of so many of those charged with capital crimes; recognizing diminished culpability as the rule rather than the exception among capital defendants conveys a reality that rarely finds its way into reported cases. We are troubled, however, by Professor Smith’s call to “forget Furman.” We believe the title and the article’s efforts to undermine Furman-based challenges disserve Professor Smith’s principal goal — addressing the United States’ broken death penalty system.

Penney on Digital Searches in Canada

Steven Penney (University of Alberta - Faculty of Law) has posted two pieces on SSRN. The first is The Digitization of Section 8 of the Charter: Reform or Revolution?((2014), 67 Supreme Court Law Review (2d) 505). Here is the abstract:

Police have conducted searches and seizures of computers and other digital devices for some time. But the ubiquity, portability, connectivity, and processing and storage capacities of contemporary devices present new challenges to the law of search and seizure, including the interpretation and application of section 8 of the Charter. Some contend that a wholesale conceptual overhaul of section 8 doctrine is in order. I argue in this Article, in contrast that digitization does not entail a radical reinterpretation of section 8. Technological change inevitably influences constitutional interpretation and application. But for the most part, the foundation set out by the Supreme Court of Canada in digital (and other) section 8 cases over the past two decades provides the conceptual and doctrinal tools needed to achieve reasonable accommodations between competing privacy and law enforcement interests in the digital era.

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McAdams on Empathy and Masculinity in To Kill a Mockingbird

Richard H. McAdams (University of Chicago Law School) has posted Empathy and Masculinity in Harper Lee's to Kill a Mockingbird (Ch. 13 (pp. 239-261) in American Guy: Masculinity in American Law and Literature, edited by Saul Levmore and Martha C. Nussbaum (Oxford University Press, 2014)) on SSRN. Here is the abstract:

Harper Lee’s To Kill a Mockingbird illustrates a troubled relationship between lawyering and empathy and between empathy and masculinity. To begin, empathetic understanding has two sides: it can produce compassionate or altruistic behavior, but there is also a strategic value: a competitor who understands the thoughts and feelings of others is better able to anticipate an opponent's next move and stay one step ahead. Atticus Finch demonstrates both aspects of empathy: his ability to imagine the world from the perspective of others makes him a more compassionate and helpful father and neighbor, but also a more effective lawyer, better able to cross-examine adverse witnesses and to make arguments that (might) appeal to jurors. Atticus understands better than anyone else in Maycomb the tragic predicament of Mayella Ewell, but he uses his empathy to harm her, that is, to help his client Tom Robinson by exposing her as a liar. The irony is that the empathetic insight that makes Atticus the best person to cross-examine Mayella also makes him (among all those who believe she is lying) feel the most compassion for her. But the role of zealous advocate leaves limited room for showing compassion to one's adversary.

Empathy connects with the novel’s focus on masculinity. The novel offers a new version of white manhood in the Jim Crow South. The conventional white southern male of the 1930s romanticized the Lost Cause of the Confederacy and adhered to a strict code of chivalry that required the use of violence to assuage insults to honor, particularly the honor of white southern women. According to this chivalric ideology, the greatest threat to white womanhood was black male predation, and the manly response was the lynching, not only of alleged black rapists but of other black men whose behavior seemed to question white supremacy.

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Ram on DNA by the Entirety

Natalie Ram (University of Baltimore - School of Law) has posted DNA by the Entirety (115 Colum. L. Rev. 873 (2015)) on SSRN. Here is the abstract:

The law fails to accommodate the inconvenient fact that an individual’s identifiable genetic information is involuntarily and immutably shared with her close genetic relatives. Legal institutions have established that individuals have a cognizable interest in controlling genetic information that is identifying to them. The Supreme Court recognized in Maryland v. King that the Fourth Amendment is implicated when arrestees’ DNA is analyzed, and the Genetic Information Nondiscrimination Act protects individuals from genetic discrimination in the employment and health-insurance markets. But genetic information is not like other forms of private or personal information because it is shared — immutably and involuntarily — in ways that are identifying of both the source and that person’s close genetic relatives. Standard approaches to addressing interests in genetic information have largely failed to recognize this characteristic, treating such information as individualistic.

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Franks on Constitutional Fictions and Their Discontents

Mary Anne Franks (University of Miami School of Law) has posted Where the Law Lies: Constitutional Fictions and Their Discontents (Law and Lies: Deception and Truth-Telling in the American Legal System, ed. Austin Sarat (Cambridge Univ. Press 2015)) on SSRN. Here is the abstract:

My contribution to the volume Law and Lies begins with the observation that America is built on a lie. That lie inheres in its foundational text, the Constitution of the United States, which begins in the false claim to speak of and for “we the people” even as the majority of its population – in particular black men and all women – were denied access to the most basic forms of political participation. This simultaneous act of symbolic inclusion and material exclusion has never been fully acknowledged or confronted, which is another way of saying that it has never really ended. As many lies are, America’s constitutional lie is generative: it produces other, secondary, mutually reinforcing legal fictions that obscure the deception buried deep in the social and political structure. These fictions serve multiple purposes, including providing reassurance to those holding abstract commitments to equality as well as seducing and subduing excluded groups that might otherwise demand recognition and reparation for injustices done to them. As long as these constitutional fictions persist, the political existence of women and black men remains fundamentally unstable.

Johnson & Osler on Drug Crimes and White-Collar Offenses

Thea Johnson and Mark William Osler (Stanford Law School and University of St. Thomas - School of Law (Minnesota)) has posted Why Not Treat Drug Crimes as White-Collar Crimes? (61 Wayne Law Review 1 (2015)) on SSRN. Here is the abstract:

Drug dealing is a business enterprise. At its core is the manufacture, transport, financing, and selling of illegal narcotics. The most successful drug dealers are the ones who are skilled in the tools of business, and success is measured in the profit generated. Given these undeniable realities, shouldn’t we treat narcotics trafficking the way we do other business-based crimes like fraud or embezzlement?

One odd point of distinction between narcotics and other business crimes has been the frequent use of harsh sentencing measures to create deterrence in the former but not the latter. This is odd because deterrence works where a potential violator both (1) is aware of possible sanctions, and (2) performs a rational cost-benefit analysis that incorporates those possible sanctions. White collar defendants are a better target for deterrence measures by both of these metrics, yet we use those tough measures often in addressing drug crimes and almost never in tackling other business crimes.

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