CrimProf Blog

"Teens, Confessions, and Culpability"

Kent Scheidegger has this post at Crime & Consequences, summarizing and discussing an article in the L.A. Times.

Natapoff on Negotiating Accuracy

Alexandra Natapoff (Loyola Law School Los Angeles) has posted Negotiating Accuracy: DNA in the Age of Plea Bargaining (Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (ed., Daniel Medwed), Cambridge University Press, Forthcoming) on SSRN. Here is the abstract:

Hundreds of exonerations have made DNA a kind of poster child for the innocence movement and the demand for more accurate evidence in criminal cases. But most wrongful convictions are not simply the result of evidentiary mistakes. In the marketplace of plea bargaining, convictions are the result of numerous inputs — a defendant’s criminal record, prosecutorial bargaining habits, the size of the trial penalty, whether the defendant is out on bail — that have nothing to do with the accuracy of the evidence. The bargained nature of these convictions means that accurate evidence is just one piece — and not always the most important piece — of the larger negotiation process that establishes guilt. We might say that the plea process is structurally tolerant of inaccuracy, precisely because it transforms accuracy into a commodity that may be traded and negotiated away in exchange for agreement. This is a recipe for wrongful conviction. The innocence movement, for example, has uncovered numerous cases where innocent defendants pled guilty to homicide and rape in order to avoid the death penalty. The pressures to plead are likewise pervasive in the misdemeanor system, in which thousands of people are rushed through assembly-line processes and routinely plead guilty to minor crimes of which they are demonstrably innocent. Ultimately, we should recognize plea bargaining as a source of wrongful conviction in its own right, and add it to the canonical list of wrongful conviction sources such as mistaken eyewitness testimony, lying informants, and bad forensics.

 

du Bois-Pedain on Hegel and Punishment

Antje du Bois-Pedain (University of Cambridge, Faculty of Law) has posted Hegel and the Justification of Real-World Penal Sanctions on SSRN. Here is the abstract:

This paper revisits Hegel’s writings on punishment to reconstruct from them a justification for the imposition of real-world penal sanctions. Tracing Hegel’s argumentative path from a bare retributive principle to his mature justification of state punishment, it argues that Hegel offers us convincing reasons for endorsing, in broad shape, the distinctive penal institutions and practices of a modern nation-state. Hegel is also right to stress that punishment is – not merely conceptually, but also in the reality of our social world – a recognition of an offender’s status as a bearer of rights and participant in a system of mutual recognition that allows us to collectively build and maintain an order of freedom. This understanding of punishment sets significant limits to punishment’s permissible forms, particularly – but not only – with regard to the death penalty. By focusing on what it means to honour an offender through punishment and by drawing attention to what legal punishment has in common with reactions to transgressions by the will more generally, I question whether the infliction of penal suffering can, as such, be a legitimate aim of penal agents. In conclusion, I argue that only a commitment to penal minimalism, developable from Hegel’s thought, can give those subjected to real-world penal sanctions a complete answer to the question why they should accept their punishment as justified.

Top-Ten Recent SSRN Downloads

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

Rank	Downloads	Paper Title
1	388	Big Data and Tax Haven Secrecy Arthur J. Cockfield Queen's University - Faculty of Law Date posted to database: 6 Oct 2015
2	279	The Future of Parole Release: A Ten-Point Reform Plan Edward Rhine, Joan Petersiliaand Kevin R Reitz Ohio State University (OSU) - Department of Sociology, Stanford University and University of Minnesota Law School Date posted to database: 11 Oct 2015
3	242	How Federal Judges Contribute to Mass Incarceration and What They Can Do About It Lynn Adelman and Jon Deitrich U.S. District Court - Eastern District of WI and United States District Court, Milwaukee Date posted to database: 4 Nov 2015
4	231	Do Ammunition Background Checks Reduce Murder Rates? Clayton E. Cramer College of Western Idaho Date posted to database: 29 Oct 2015
5	200	Better Sex Through Criminal Law: Proxy Crimes, Covert Negligence, and Other Difficulties of 'Affirmative Consent' in the ALI's Draft Sexual Assault Provisions Kevin Cole University of San Diego School of Law Date posted to database: 8 Oct 2015
6	197	Background Checks for Firearms Sales and Loans: Law, History, and Policy David B. Kopel Independence Institute Date posted to database: 26 Sep 2015
7	196	An Appraisal of the Administration of Criminal Justice Act, 2015 Reason Emma Abajuo Independent Date posted to database: 26 Sep 2015 [10th last week]
8	193	Dismantling the School-to-Prison Pipeline: Tools for Change Jason P. Nance University of Florida Levin College of Law Date posted to database: 9 Oct 2015 [7th last week]
9	191	The Uncomfortable Truths and Double Standards of Bribery Enforcement Mike Koehler Southern Illinois University School of Law Date posted to database: 28 Oct 2015 [8th last week]
10	165	Why Arrest? Rachel Harmon University of Virginia School of Law Date posted to database: 13 Oct 2015 [new to top ten]

"Extortion, Government Style"

Solomon Wisenberg has this post at While Collar Crime Prof Blog. In part:

If you  want to know why companies settle with the government, even when they aren't guilty of anything, look no further than Ally Financial LLC's $98 million "no admit or deny" settlement with the Consumer Financial Protection Bureau (CFPB) over alleged racial bias in auto lending. As Wednesday's Wall Street Journal reports here, the CFPB chose questionable statistical methods, had questionable legal authority, and used the threat of unfavorable action by the Federal Reserve and the FDIC in a wholly separate matter, to coerce a settlement.

"Chicago to Expand Use of Police Body Cameras"

From The New York Times:

Mayor Rahm Emanuel announced on Sunday that the city would soon increase the number of police officers wearing video cameras, an expansion of a pilot program started in January in one police district.

The announcement came five days after Chicago officials released video from a police dashboard camera of a white police officer shooting a black teenager 16 times, even after he had fallen to the ground. Since the video’s release, protesters have held demonstrations almost daily, complaining, in part, that Mr. Emanuel and other city leaders fought for months to keep the graphic video from becoming public, and released it only after a county judge ordered them to do so.

 

Dripps on Amsterdam on the Fourth Amendment

Donald A. Dripps (University of San Diego School of Law) has posted 'Perspectives on the Fourth Amendment' Forty Years Later: Toward the Realization of an Inclusive Regulatory Model (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

The Minnesota Law Review published Anthony Amsterdam’s celebrated Holmes Lectures just over forty years ago. Those lectures defended a normative, or at least very generally historical approach to the definition of “searches and seizures,” and a “regulatory model” as opposed to an “atomistic model” for assessing when "searches and seizures" are reasonable or “unreasonable.” Fourth Amendment jurisprudence substantially, but not yet completely, adopts these normative and regulatory templates.

The Article argues that technological and institutional changes may finally usher in a Fourth Amendment regime much like the one Professor Amsterdam defended. Technological change is driving a practical merger of historical and normative interpretive approaches. A sophisticated historical approach concerns itself less with founding-era rules than with the values those rules reflected. The contemporary quest for historical value judgments is unlikely to veer very far from the quest for sound value judgments today. As examples, the Article considers historical analogues to GPS location tracking and to third-party subpoenas, and concludes that while historical evidence cuts against the third-party doctrine and in favor of the mosaic theory, history neither clearly requires nor clearly forbids either doctrine.

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Next week's criminal law/procedure argument

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

Monday

• Musacchio v. U.S.: (1) Whether the law-of-the-case doctrine requires the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment; and (2) whether a statute-of-limitations defense not raised at or before trial is reviewable on appeal.

"A confusing proposal to reform the ‘mens rea’ of federal criminal law"

Orin Kerr has this post at The Volokh Conspiracy. It nicely works through the myriad problems with the proposed language.

"Mother Who Left Baby at Queens Church Is Found; No Charges Will Be Filed"

From The New York Times:

The mother of a baby who was left this week in an unadorned crèche inside a Roman Catholic church in Queens was found and will not face criminal prosecution, the county district attorney said late Wednesday.

 

. . .

“The mother followed the spirit of New York’s ‘Safe Haven’ Law, which allows a parent to leave a child not older than 30 days with an appropriate person or in a suitable location where the parent promptly notifies an appropriate person of the child’s location,” he said. “It appears that the mother, in this case, felt her newborn child would be found safely in the church and chose to place the baby in the manger because it was the warmest place in the church, and further she returned the following morning to make certain that the baby had been found.”

 

Green on Tax Evasion as Crime

Stuart P. Green (Rutgers, The State University of New Jersey - School of Law-Newark) has posted Tax Evasion as Crime (Monica Bhandari (ed.), Philosophical Foundations of Tax Law (Oxford U. Press, Forthcoming)) on SSRN. Here is the abstract:

From the perspective of the criminal law, tax evasion is a baffling and anomalous offense. It deviates from the traditional paradigm of crime in that the harms it causes are highly diffuse, significant only in the aggregate, and hard to identify with any certainty. Tax evasion also differs from other offenses in terms of its incidence, which is probably higher than that of any other serious white collar crime. The laws concerning tax evasion are also enforced in a highly irregular and selective manner. Despite, or perhaps because of, such anomalies, tax evasion is a crime that has tended to fall between the cracks of normative analysis. Criminal law theorists have largely avoided the subject of tax evasion altogether, while tax law theorists, though not avoiding the subject as such, have only rarely applied to it the basic tools of criminal law theory. In this chapter, I will seek to do just that, by arguing, first, that an understanding of how taxes differ from fees, fines, penalties, forfeitures, and other types of government assessments is crucial to an understanding of why tax evasion is morally wrong. Second, I will offer an account of the moral content of tax evasion, explaining the role that the concepts of cheating, disobedience to the law, and what I call “deceptive covering up” play in defining its moral content; and why, further, the concept of stealing is largely inapposite. Finally, I will consider the extent to which my analysis of tax evasion might be helpful in assessing the moral content of tax avoidance.

Zeidman on The Failure of the Criminal Court

Steven Zeidman (CUNY School of Law) has posted Due Process and the Failure of the Criminal Court (Fordham Urban Law Journal, Vol. 42, No. 1, 2015) on SSRN. Here is the abstract:

To anyone remotely familiar with the workings of Criminal Courts, the notion of a thorough due process system is quite foreign. More than half of the cases that enter the court end at the accused’s initial appearance before a judge. At that moment, none of the parties involved – prosecutor, defense attorney or judge – have done any kind of fact or legal investigation, and precious little is known about the charges or the accused. Cases are resolved in a matter of minutes in what has been described over and over again as assembly line justice. Rather than providing the accused with an opportunity to argue his or her case, the process has been described, derisively but accurately, as meet ‘em, greet ‘em, and plead ‘em.

Perlin & Lynch on the UN Convention and Institutionalized Persons with Disabilities

Michael L. Perlin and Alison J. Lynch (New York Law School and Disability Rights New York) have posted 'The Distant Ships of Liberty': Why Criminology Needs to Take Seriously International Human Rights Laws that Apply to Persons with Disabilities on SSRN. Here is the abstract:

Persons institutionalized in forensic psychiatric facilities have been hidden from the public view for decades – physically, socially, and legally. The forensic population also faces multiple forms of discrimination, both for their criminal history and mental illness. This reality must be radically reconsidered in light of the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), the first legally binding instrument devoted to the comprehensive protection of the rights of persons with disabilities. There has been, however, virtually no attention paid by criminologists to the potential impact of this Convention on forensic populations. In this paper, we will highlight some of the key issues that must be examined in this context, and examine the issues in question through the lens of therapeutic jurisprudence. We will focus, in part, on the lack of attorneys and advocates who represent this population, the lack of attention paid to this issue by the “psychiatric survivor” movement, and the special problems faced by forensic patients who are intellectually disabled. Additionally, we will explore social attitudes towards forensic patients, the reasons why this population is often left behind as new paradigms in mental health and human rights continue to emerge, and why is it essential that criminologists begin to take this issue seriously.

Ocen on Race and Sexually Exploited Minors

Priscilla A Ocen (Loyola Law School Los Angeles) has posted (E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors (UCLA Law Review, Vol. 62, No. 6, 2015) on SSRN. Here is the abstract:

Over the last twenty years, domestic sexual trafficking of children has received increased attention from state and national policymakers and advocates. Indeed, states across the country have enacted laws establishing harsh new penalties for individuals convicted of domestic sexual trafficking. At the same time, arrest and conviction rates for Black girls within the juvenile justice system are increasing, often as a result of prostitution-related offenses. In this Article, I explore the race, gender, and class dynamics that animate these trends. In particular, I highlight the ways in which historic constructions of childhood, innocence, and sexuality shape antitrafficking law enforcement practices and how they have functioned in racialized and gendered ways to exclude Black girls from protection. Consequently, Black girls who are subject to sexual exploitation in the contemporary era are often labeled as offenders rather than victims. In sum, I contend that the intersectional identities of poor Black girls at once render them vulnerable to sexual exploitation and deny them access to protective antitrafficking regimes. To combat the discrimination that Black girls experience as a result of this exclusion, I propose decriminalization of girls who are subject to trafficking and robust investment in supportive race- and gender-conscious institutions that can prevent sexual exploitation.

Holland on Miranda

Brooks Holland (Gonzaga University School of Law) has posted Miranda v. Arizona: 50 Years of Judges Regulating Police Interrogation (16 Insights on Law & Society 4, 2015) on SSRN. Here is the abstract:

This article commemorates the 50th anniversary of Miranda v. Arizona (1966) by examining the history, meaning, and impact of the Miranda rule. The article's main audience is teachers of history, civics, government, social studies, and law at the high school and college levels. The article, however, also would be an effective introduction or review resource on Miranda for law students and legal professionals.

Kaye on Presenting Forensic Identification Findings

David H. Kaye (Pennsylvania State University, Penn State Law) has posted Presenting Forensic Identification Findings: The Current Situation (Communicating the Results of Forensic Science Examinations (Cedric Neumann, Anjali Ranadive & David H. Kaye eds. 2015)) on SSRN. Here is the abstract:

Forensic science practitioners asked to identify fibers, fingerprints, handwriting, blood, semen, or other trace evidence report their findings in a variety of ways. The basic findings consist of observations or measurements of features — the bifurcations in a fingerprint, the striations on a bullet, the slant of letters in a signature, the concentrations of certain elements in a fiber, the number of short tandem repeats in certain DNA sequences, and so on. Because the measurement process for these tasks varies in the degree of subjective judgment required, human interpretation often is present in producing data on the set of features that the analyst uses in comparative examinations.

Even when the measurements are incontrovertible, however, a second level of interpretation is required to resolve questions of identity. What do the measurements imply? Typically, at least two items must be compared. One sample may come from a crime-scene or a victim, and another from a known source (such as a suspect). What does the degree of similarity reveal about the origins of the two samples? Do they originate from a common source or from two different sources? The factfinder must not only consider whether to accept the data as accurate, but also must assess the extent to which those data support (or undermine) the hypothesis of a common source.

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Hallevy on Criminal Liability for Artificial Intelligence Entities

Gabriel Hallevy (Ono Academic College, Faculty of Law) has posted AI v. IP - Criminal Liability for Intellectual Property IP Offenses of Artificial Intelligence AI Entities on SSRN. Here is the abstract:

Most legal systems protect IP rights through criminal law, amongst various legal protections. This legal situation reflects the society's wide interest in protecting IP rights. When IP rights are violated, and the violation fulfils the basic requirements of the relevant offense, the society may indict the violator, regardless the violator's identity (corporation or human). But what if the violator is an AI entity?

Most modern AI entities do have the technological capability of violating IP rights. Illegal copying of software is a common example. Could the AI entity itself be criminally liable, beyond the criminal liability of the manufacturer, end-user or owner, and beyond their civil liability? The proposed research suggests the examination of a positive answer. Using the current definitions of criminal liability, the imposition of criminal liability upon AI entities for committing IP offenses is quite feasible. The proposed research suggests feasible solutions for sentencing AI entities as well.

"Chicago Officer Charged in Death of Black Teenager"

From The New York Times:

The charges against Officer Jason Van Dyke, 37, come more than a year after the shooting, but only days after a judge ordered Chicago officials to release the video from the shooting, captured by a dashboard camera in a police car. The judge had ruled that the video, described by some who have seen it as graphic and deeply disturbing, must be released by Wednesday.

. . .

Dan Herbert, a lawyer for Officer Van Dyke, has said the officer, a 14-year police veteran, believed the shooting was justified because he feared for his safety. Mr. Herbert said his client intended to go to trial.

Ms. Alvarez said she was not aware of a Chicago officer previously being charged with murder for an on-duty incident.

Jackson et al. on Communicating the Results of Forensic Science Examinations

Graham Jackson , David H. Kaye , Cedric Neumann , Anjali Ranadive and Valerie F. Reyna (Abertay University, Dundee , Pennsylvania State University, Penn State Law , South Dakota State University , SciLawForensics, Ltd and Cornell University) have posted Communicating the Results of Forensic Science Examinations (Final Technical Report for NIST Award 70NANB12H014 (Cedric Neumann, Anjali Ranadive & David H. Kaye eds.), 2015) on SSRN. Here is the abstract:

During the 20th century, forensic scientists traditionally relied on heuristic techniques to analyze and compare forensic science evidence that can help link a suspect or defendant to the location or victim of a crime. They commonly reported categorical opinions on the evidence in courts. Drawing on developments in forensic statistics and DNA evidence, legal and scientific scholars have pressed forensic scientists to measure the validity and reliability of their techniques and to evaluate and quantify the weight of the evidence in each case in a fair, balanced and transparent fashion. A successful transition from an opinion-based system to one in which measurements are more quantitative and opinions are supported by statistical analyses requires investigating the nature of forensic inference processes and the findings of cognitive psychology on how to best convey scientific information to decision makers.

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Skinner-Thompson on Outing Privacy

Scott Skinner-Thompson has posted Outing Privacy (Northwestern University Law Review, Vol. 110, No. 1, 2015) on SSRN. Here is the abstract:

The government regularly outs information concerning people’s sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy — a right to limit the government’s ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary’s reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy’s ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right.

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