CrimProf Blog

"When a sex offender moves out of the country, does he have to tell anyone?"

Evan Lee (Hastings) has this post at ScotusBlog, previewing tomorrow's oral argument. In part:

The government’s chances thus seem to depend upon the Court’s receptiveness to the assertion that the purpose behind SORNA is to create a system that keeps track of sex offenders in every conceivable way, including when they are no longer in the United States. Not only must the Justices accept that premise, but they must agree that the Court is the appropriate body to fill out a statute that does not address the issue in so many words. The empty seat of the late Justice Antonin Scalia will undoubtedly catch the corner of every eye as this classic case of statutory interpretation is debated.

Krishnamurthy on Cross Border Searches of the Cloud

Vivek Krishnamurthy (Harvard University - Berkman Center for Internet & Society) has posted Cloudy with a Conflict of Laws on SSRN. Here is the abstract:

As more and more of our lives are lived online, so too are those who live lives of crime. Like everyone else, criminals of all stripes are increasingly using online services of all kinds to plan and commit their wrongful acts. Evidence of crime that not so long ago was on-the-ground and physical is now increasingly in-the-cloud and digital. All this has thrown the law parcelling the authority to search and seize among different jurisdictions into confusion, as clouds of data — like those in the sky — are everywhere and nowhere at once. Unless some clarity is brought to this situation and soon, the future of cloud computing as a unified global phenomenon may be hazy indeed.

This paper describes how the fractal complexity of cloud computing’s physical geography has fractured the system of Mutual Legal Assistance Treaties (MLATs) that arose during the jet age to help shuttle evidence of crime across borders.

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Robinson on Tasers

Paul H. Robinson (University of Pennsylvania Law School) has posted Tasers Help Police Avoid Fatal Mistakes (Baltimore Sun, Jan. 21, 2016) on SSRN. Here is the abstract:

This op-ed piece argues that police will inevitably be placed in impossible situations in which they reasonably believe they must shoot to defend themselves but where the shooting in fact turns out to be unnecessary. What can save the police, and the community, from these regular tragedies is a more concerted shift to police use of nonlethal weapons. Taser technology, for example, continues to become increasingly more effective and reliable. While we will always have reasonable mistakes by police in the use of force, it need not be the case that each ends in death or permanent injury. Such a change could go a long way to reducing a major source of police-community tensions, thereby improving the chances of greater cooperation, greater justice, and better crime control.

Berry on Furman's Comparative Proportionality

William W. Berry III (University of Mississippi School of Law) has posted Remembering Furman's Comparative Proportionality: A Response to Smith and Staihar (101 Iowa Law Review Online 65 (2016)) on SSRN. Here is the abstract:

This short paper responds to recent articles in the Iowa Law Review by Robert Smith and Jim Staihar. Specifically, it emphasizes the value of comparative proportionality in understanding both the Eighth Amendment and retributive theory.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	555	The Extraordinary Trajectory of Griffin v. California: The Aftermath of Playing Fifty Years of Scrabble with the Fifth Amendment James J. Duane Regent University - School of Law Date posted to database: 7 Jan 2016
2	211	The Constitutional Regulation of Forensic Evidence Brandon L. Garrett University of Virginia School of Law Date posted to database: 8 Feb 2016 [3rd last week]
3	200	Prosecutorial Accountability 2.0 Bruce A. Green and Ellen Yaroshefsky Fordham University School of Law and Yeshiva University - Benjamin N. Cardozo School of Law Date posted to database: 27 Jan 2016 [2nd last week]
4	190	Charging the Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons Neil L. Sobol Texas A&M University - School of Law Date posted to database: 16 Dec 2015
5	158	The Constitutionality of Civil Forfeiture Caleb Nelson University of Virginia School of Law Date posted to database: 11 Dec 2015
6	144	Conviction Review Units: A National Perspective John Hollway University of Pennsylvania Law School - Quattrone Center for the Fair Administration of Justice Date posted to database: 24 Dec 2015
7	114	Judicial Power to Regulate Plea Bargaining Darryl K. Brown University of Virginia School of Law Date posted to database: 21 Jan 2016
8	112	How Private Insurers Regulate Public Police John Rappaport University of Chicago Law School Date posted to database: 19 Feb 2016 [new to top ten]
9	97	In the Beginning Was Fortescue: On the Intellectual Origins of the Adversarial and Inquisitorial Systems Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date posted to database: 17 Dec 2015 [8th last week]
10	90	Orwell's Elephant and the Etiology of Wrongful Convictions James M Doyle Bassil, Klovee & Budreau Date posted to database: 2 Jan 2016

Next week's criminal law/procedure arguments

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

Monday

• Voisine v. U.S.: (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.
• Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Tuesday

• Nichols v. U.S.: Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	281	The Insanity Defense: Nine Myths that Will Not Go Away Michael L. Perlin New York Law School Date posted to database: 16 Jan 2016
2	239	The Constitution and Revenge Porn John A. Humbach Pace University School of Law Date posted to database: 22 Dec 2015
3	108	The Opposite of Rape John Gardner University of Oxford - Faculty of Law Date posted to database: 5 Feb 2016
4	97	Backpedalling in Place: The Ali's Move from 'Affirmative' to 'Contextual' Consent Kevin Cole University of San Diego School of Law Date posted to database: 13 Jan 2016 [6th last week]
5	96	Addiction, Choice and Criminal Law Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Dec 2015 [4th last week]
6	93	Affirmative Consent Deborah Tuerkheimer Northwestern University - School of Law Date posted to database: 2 Jan 2016 [5th last week]
7	87	Consenting to Computer Use James Grimmelmann University of Maryland Francis King Carey School of Law Date posted to database: 5 Jan 2016
8	85	Two Views of First Amendment Thought Privacy Adam J. Kolber Brooklyn Law School Date posted to database: 18 Jan 2016 [10th last week]
9	85	Causation Actually Shahar Dillbary University of Alabama School of Law Date posted to database: 10 Feb 2016 [8th last week]
10	80	The Sports Bribery Act: A Law and Economics Approach John T. Holden and Ryan M. Rodenberg Florida State University and Florida State University Date posted to database: 20 Jan 2016 [9th last week]

Garretson on Post-Conviction Certificates

Heather Garretson (CUNY School of Law) has posted Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction on SSRN. Here is the abstract:

Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record.

States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism – often a certificate of some kind – that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has – until now – been assumed, but not examined.

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Garrett on An International Right to Claim Innocence

Brandon L. Garrett (University of Virginia School of Law) has posted Toward an International Right to Claim Innocence on SSRN. Here is the abstract:

In the past, wrongful convictions were traditionally seen as a local problem largely not deserving national or international attention. Very different legal systems shared a common approach emphasizing the finality of criminal convictions, making it very difficult to claim innocence relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert claims of innocence. Today, the procedures and underlying attitudes towards claims relying on newly discovered evidence of innocence are in flux. In this Article, I describe remarkable changes in the past few decades, driven by mounting numbers of exonerations, the development of DNA technology, the work of innocence projects initially pioneered in the United States, and a new international dialogue on research and legal methods to address wrongful convictions. Large and small countries, civil law and common law countries, and countries with very different attitudes towards criminal justice, increasingly converge in developing mechanisms to permit convicts to assert factual innocence. Countries now permit innocence-based challenges under various procedural labels, ranging from the writ of habeas corpus, amparo de libertad, revision, or other statutory or administrative remedies. In turn, international bodies have relaxed concerns with finality and opened the door to broader use of innocence claims, if not recognizing a freestanding right to make use of them. In a time of growing convergence and comparison of criminal procedure approaches, the movement towards permitting claims of innocence may lead in time to an outright recognition of an international right to claim innocence, or more plausibly, a customary international law right to claim innocence in domestic courts. Whether or not an international human right to claim innocence is formally recognized, the decades to come will bring far greater international prominence to claims of innocence.

Reid et al. on Trade Secrets in Federal Criminal Law

Gavin C. Reid , Nicola Searle and Saurabh Vishnubhakat (University of St Andrews , University of London - Goldsmiths College and Texas A&M University School of Law) have posted What's It Worth to Keep a Secret? (Duke Law & Technology Review, Vol. 13, 2015) on SSRN. Here is the abstract:

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation.

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Cook on Police Culture

Julian A. Cook (University of Georgia Law School) has posted Police Culture in the Twenty-First Century: A Critique of the President’s Task Force’s Final Report (91 Notre Dame Law Review Online 105 (2016)) on SSRN. Here is the abstract:

In May 2015, the Task Force on 21st Century Policing, established by President Barack Obama to address problems associated with aggressive policing, issued its Final Report which details a comprehensive set of recommendations. This essay examines an important theme of the Final Report -- the reforming of police culture -- and concludes that the report's well-intentioned recommendations are destined to fail absent meaningful revitalization of the Fourth Amendment exclusionary rule and the establishment of a robust standing doctrine.

Vagle on Structural Surveillance

Jeffrey L. Vagle (University of Pennsylvania Law School) has posted The History, Means, and Effects of Structural Surveillance on SSRN. Here is the abstract:

The focus on the technology of surveillance, while important, has had the unfortunate side effect of obscuring the study of surveillance generally, and tends to minimize the exploration of other, less technical means of surveillance that are both ubiquitous and self-reinforcing — what I refer to as structural surveillance — and their effects on marginalized and disenfranchised populations. This Article proposes a theoretical framework for the study of structural surveillance which will act as a foundation for follow-on research in its effects on political participation.

Diab on Counter-Terrorism Law in Canada

Robert Diab (Thompson Rivers University - Faculty of Law) has posted Chapter 3: Canada (From 'Comparative Counter-Terrorism Law') (COMPARATIVE COUNTER-TERRORISM LAW, Kent Roach, ed., Cambridge UP, 2015) on SSRN. Here is the abstract:

This chapter sets out a general overview of key facets of Canada’s counter-terrorism law enacted between 2001 to 2015 and related case law. It addresses the definition of terrorism and new terrorism offences added to the Criminal Code in 2001; terrorism prosecutions and sentences; investigative powers of police and intelligence agencies (the Canadian Security Intelligence Service and the Canadian Security Establishment); the listing of terrorism offences or individuals; terrorism financing and related offences; immigration detention; the use of evidence obtained by torture; the role of the military and extra-territorial counter-terrorism activities; secrecy claims and evidence; and remedies for serious violations of human rights in the course of counter-terrorism. The chapter also contains a brief post-script addressing the content of bills C-44 (Protection of Canada from Terrorism Act) and C-51 (Anti-Terrorism Act, 2015).

Taylor et al. on Lead Emissions and Aggressive Crime

Mark Patrick Taylor , Miriam K Forbes , Brian Opeskin , Nick Parr and Bruce P. Lanphear (Macquarie University , Macquarie University , Macquarie Law School , Macquarie University and University of British Columbia (UBC) - BC Children's Hospital and Child & Family Research Institute) have posted The Relationship between Atmospheric Lead Emissions and Aggressive Crime: An Ecological Study (Environmental Health 2016:15 (BioMed Central)) on SSRN. Here is the abstract:

Background
Many populations have been exposed to environmental lead from paint, petrol, and mining and smelting operations. Lead is toxic to humans and there is emerging evidence linking childhood exposure with later life antisocial behaviors, including delinquency and crime. This study tested the hypothesis that childhood lead exposure in select Australian populations is related to subsequent aggressive criminal behaviors.

Methods
We conducted regression analyses at suburb, state and national levels using multiple analytic methods and data sources. At the suburb-level, we examined assault rates as a function of air lead concentrations 15-24 years earlier, reflecting the ubiquitous age-related peak in criminal activity. Mixed model analyses were conducted with and without socio-demographic covariates. The incidence of fraud was compared for discriminant validity. State and national analyses were conducted for convergent validity, utilizing deaths by assault as a function of petrol lead emissions.

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Arlen & Kahan on Mandates Under Pretrial Diversion Agreements

Jennifer Arlen and Marcel Kahan (New York University School of Law and New York University School of Law) have posted Corporate Governance Regulation Through Non-Prosecution on SSRN. Here is the abstract:

Over the last decade, federal corporate criminal enforcement policy has undergone a significant transformation. Firms that commit crimes are no longer simply required to pay fines. Instead, prosecutors and firms enter into pretrial diversion agreements (PDAs). Prosecutors regularly use PDAs to impose mandates on firms creating new duties that alter firms’ internal operations or governance structures. This Article evaluates PDA mandates to determine whether and when prosecutors can appropriately use them to deter corporate crime. We find that mandates can be justified. But, contrary to DOJ policy favoring mandates for any firm with a deficient compliance program at the time of the crime, we find that mandates should be imposed more selectively. Specifically, mandates are only appropriate if a firm is plagued by “policing agency costs” — in that the firm’s managers did not act to deter or report wrongdoing because they benefitted personally from tolerating wrongdoing or from deficient corporate policing. We show that this policing agency cost justification provides guidance on how to reform federal policy to make appropriate use of mandates, guidance which reveals that many mandates are inappropriate.

Wood on Mens Rea in the Endangered Species Act

Jonathan Wood (Pacific Legal Foundation) has posted Overcriminalization and the Endangered Species Act: Mens Rea and Criminal Convictions for Take on SSRN. Here is the abstract:

The Endangered Species Act makes it a crime to “knowingly” take any member of an endangered species. The government has generally interpreted this to require a defendant to have knowledge of each of the elements of the offense, i.e. that his actions will result in take and what species will be taken. However, it has not been consistent in this interpretation. In several cases, it has argued that the defendant need only have knowingly engaged in an act; knowledge of its consequences for a particular species is unnecessary. When challenged, this interpretation has been upheld by the Fifth and Ninth Circuits.

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Inwinkelried on Prior Untruthful Rape Accusations

Edward J. Imwinkelried (University of California, Davis - School of Law) has posted Should Rape Shield Laws Bar Proof that the Alleged Victim Has Made Similar, Untruthful Rape Accusations in the Past?: Fair Symmetry with the Rape Sword Laws (Pacific Law Journal, Forthcoming) on SSRN. Here is the abstract:

Traditionally, the common law enforced a general ban on character evidence. More specifically, the common law prohibited a proponent from introducing evidence of a person’s other conduct as proof of the person’s character trait and then using the trait as proof that on a particular relevant occasion, the person acted consistently with the trait. The prohibition applied to both sides in criminal as well as civil cases. Federal Rules 404-05 extend the prohibition to evidence on the historical merits, and to an extent Rules 608-09 apply the ban to evidence offered on a credibility theory. Rule 608(b) deviates from the ban by permitting cross-examination about a witness’s other untruthful acts but bars extrinsic evidence of the acts.

In 1995 Congress enacted the “rape sword” statutes, Rules 413-14. The statutes carve out an exception to the traditional prohibition and allow the prosecution to introduce evidence of an accused’s other sexual assaults or child molestations on a character theory to prove the accused’s commission of the charged offense. The available psychological research does not warrant drawing a character inference when there is only one or a few other instances of similar conduct. However, the proponents of the statutes contend that the statutes are defensible because these prosecutions often devolve into swearing contests and the prosecution has a legitimate need for evidence to break the credibility tie by corroborating the victim’s testimony that the offense occurred.

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Mastrobuoni & Rivers on Discount Factors and Deterrence

Giovanni Mastrobuoni and David A Rivers (University of Essex - Department of Economics and University of Western Ontario - Department of Economics) have posted Criminal Discount Factors and Deterrence on SSRN. Here is the abstract:

The trade-off between the immediate returns from committing a crime and the future costs of punishment depends on an offender’s time discounting. We exploit quasi-experimental variation in sentence length generated by a large collective pardon in Italy and provide non-parametric evidence on the extent of discounting from the raw data on recidivism and sentence length. Using a discrete-choice model of recidivism, we estimate an average annual discount factor of 0.74, although there is heterogeneity based on age, education, crime type, and nationality. Our estimates imply that the majority of deterrence is derived from the first few years in prison.

Anwar et al. on Female Jurors

Shamena Anwar , Patrick J. Bayer and Randi Hjalmarsson (RAND Corporation , Duke University - Department of Economics and University of Gothenburg) have posted A Jury of Her Peers: The Impact of the First Female Jurors on Criminal Convictions on SSRN. Here is the abstract:

This paper uses an original data set of more than 3000 cases from 1918 to 1926 in the Central Criminal Courts of London to study the effect of the Sex Disqualification (Removal) Act of 1919. Implemented in 1921, this Act made females eligible to serve on English juries, providing a novel setting for studying the impact of female representation on jury verdicts. Results based on a pre-post research design imply that the inclusion of females had little effect on overall conviction rates but resulted in a large and significant increase in convictions for sex offenses and on the conviction rate differential between violent crime cases with female versus male victims. The inclusion of women also increased the likelihood of juries being discharged without reaching a verdict on all charges and the average time taken to reach a verdict. A complementary analysis of cases in which the jury was carried over from a previous trial also implies that the inclusion of female jurors on the seated jury sharply increased conviction rates for violent crimes against women versus men.

Doherty on Indeterminate Sentencing Through Supervised Release

Fiona Doherty (Yale Law School) has posted Indeterminate Sentencing Returns: The Invention of Supervised Release (New York University Law Review, Vol. 88, 2013) on SSRN. Here is the abstract:

The determinacy revolution in federal sentencing, which culminated in the passage of the Sentencing Reform Act of 1984, has since been upended by a little-noticed phenomenon: the evolution of federal supervised release. A “determinate” sentencing regime requires that prison terms be of fixed and absolute duration at the time of sentencing. Because of the manner in which supervised release now operates, however, contemporary federal prison terms are neither fixed nor absolute. Instead, the court has discretion to adjust the length of a prison term after sentencing based on its evaluation of the post-judgment progress of the offender. This power to amend the duration of the penalty is the classic marker of the “indeterminate” sentence.

In this Article, I show how federal supervised release has dismantled the ambitions of the determinacy movement and made federal prison terms structurally indeterminate in length.

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