CrimProf Blog

"Court closely divided on the exclusionary rule"

Orin Kerr has this post at ScotusBlog. In part:

Only six Justices spoke during this morning’s oral argument in Utah v. Strieff. The six voices suggested that the Justices are deeply divided on the scope of the exclusionary rule, perhaps dividing four to four in Justice Antonin Scalia’s absence.

As I explained in my preview, the question in this case is whether the exclusionary rule applies when a police officer makes a unlawful stop of a suspect, that stop leads to a warrant check, and the officer learns of a warrant and makes a search incident to the arrest.

At the argument, the case for suppression could be boiled down to one word: Ferguson. Edward Strieff’s brief included statistics on the surprisingly high rates in which members of some communities have warrants out for their arrest from minor traffic offenses. In Ferguson, Missouri, a Justice Department report found that over seventy-five percent of the population had outstanding warrants.

Tanovich on Rap Lyrics in Criminal Cases

David M. Tanovich (University of Windsor - Faculty of Law) has posted R v Campbell: Rethinking the Admissibility of Rap Lyrics in Criminal Cases ((2016) 24 Criminal Reports (7th) 27-43) on SSRN. Here is the abstract:

R v Campbell is one of the few cases in North America to exclude rap lyrics as evidence of guilt in criminal cases. Unlike in Canada, the issue of criminalizing rap has received considerable attention in the United States. This article begins by documenting the Canadian experience. It is a response to the call for research by two leading American scholars on the phenomenon of putting rap on trial, Professors Charis Kubrin and Erik Nielson. After documenting and discussing 36 Canadian cases, the article examines the Supreme Court of Canada decision in R v Simard and the two leading trial decisions R v Campbell and R v Williams.

Generally speaking, the Canadian cases have failed to apply a culturally competent lens when assessing probative value and, to address the relevance of race and bias, when assessing prejudicial effect. The article urges our courts to put the rap back in rap by taking a culturally competent and critical race approach to admissibility.

O'Malley on Neoliberalism, Crime and Criminal Justice

Pat O'Malley (University of Sydney - Faculty of Law) has posted Neoliberalism, Crime and Criminal Justice on SSRN. Here is the abstract:

Neoliberalism has played a prominent role in criminological accounts of criminal justice and penal policy. Neoliberalism’s place ranges from the core of neo-Marxist visions of a systematic global crime control program, through its place as one element in a punitive Anglophone ‘culture of control’, down to more modest claims that neoliberal shaping of risk techniques has transformed specific aspects of policy and practice. In such work neoliberalism is inconsistently defined, and linked with divergent changes in criminal justice. International studies indicate major differences between different ‘neoliberal’ regimes’ stances on crime control. There are often tenuous and very variable connections made between neoliberal politics and crime policies. The necessary interplay of neoliberalism with other factors (other political rationalities, prevailing local conditions etc.) in shaping criminal justice make the impact of neoliberalism unclear. As a result, there are increasing calls to abandon the use of neoliberalism as an explanatory category and move to more specific understandings of how politics shapes the governance of crime.

Thomas on Corporate Criminal Punishment

W. Robert Thomas has posted Of Systems and Persons: The Ability and Responsibility of Corporate Law to Improve Criminal Punishment on SSRN. Here is the abstract:

The federal government has used criminal fines to punish corporations for as long as it has been punishing corporations. Yet to this day, with more than a century in which to get the punishment right, corporate-criminal fines fail to satisfy virtually any standard justification that underlies criminal punishment.

Attempts to address the failure of corporate-criminal fines founder on two shoals. First, there is a deep and abiding ambiguity about what it means to designate corporate fines as a failed punishment. Second, there is a tendency to see the failure of punishment as a problem for criminal law to solve, and in doing so to treat corporate law as a fixed, immutable feature of the legal background. This particularly is a profound mistake: the failure of corporate-criminal fines is as much a corporate-law problem as it is a criminal-law problem.

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Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	549	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	180	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 [3rd last week]
3	178	The Constitutional Regulation of Forensic Evidence Brandon L. Garrett University of Virginia School of Law Date posted to database: 8 Feb 2016 [new to top ten]
4	172	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 [2nd last week]
5	151	The Constitutionality of Civil Forfeiture Caleb Nelson University of Virginia School of Law Date posted to database: 11 Dec 2015 [4th last week]
6	131	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	107	Judicial Power to Regulate Plea Bargaining Darryl K. Brown University of Virginia School of Law Date posted to database: 21 Jan 2016 [10th last week]
8	96	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 [7th last week]
9	85	A Fresh Look at Jurors Questioning Witnesses: A Review of Eighth Circuit and Iowa Appellate Precedents and an Empirical Analysis of Federal and State Trial Judges and Trial Lawyers Thomas D. Waterman, Mark W. Bennett and David C. Waterman Iowa Supreme Court, U.S. District Court (Northern District of Iowa) and United States Courts - United States Court of Appeals for the Eighth Circuit Date posted to database: 7 Jan 2016 [new to top ten]
10	87	Orwell's Elephant and the Etiology of Wrongful Convictions James M Doyle Bassil, Klovee & Budreau Date posted to database: 2 Jan 2016 [9th last week]

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	275	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	228	The Constitution and Revenge Porn John A. Humbach Pace University School of Law Date posted to database: 22 Dec 2015
3	99	The Opposite of Rape John Gardner University of Oxford - Faculty of Law Date posted to database: 5 Feb 2016 [10th last week]
4	95	Addiction, Choice and Criminal Law Stephen Morse University of Pennsylvania Law School Date posted to database: 16 Dec 2015
5	93	Affirmative Consent Deborah Tuerkheimer Northwestern University - School of Law Date posted to database: 2 Jan 2016
6	90	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 [7th last week]
7	84	Consenting to Computer Use James Grimmelmann University of Maryland Francis King Carey School of Law Date posted to database: 5 Jan 2016 [6th last week]
8	77	Causation Actually Shahar Dillbary University of Alabama School of Law Date posted to database: 10 Feb 2016 [new to top ten]
9	76	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 [new to top ten]
10	67	Two Views of First Amendment Thought Privacy Adam J. Kolber Brooklyn Law School Date posted to database: 18 Jan 2016 [8th last week]

Zatz on Criminal Enforcement of Child Support Obligations

Noah Zatz (University of California, Los Angeles (UCLA) - School of Law) has posted A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond (Seattle University Law Review, Vol. 39, No. 3, 2016) on SSRN. Here is the abstract:

Child support enforcement is one of several contemporary contexts in which the state threatens to incarcerate people if they fail to work. This symposium essay explores whether this practice violates the Thirteenth Amendment’s ban on involuntary servitude. At first glance, such threats fall squarely within the ambit of the early 20th century peonage cases. There, the Supreme Court struck down criminal enforcement of legal obligations to work off a debt. Several modern courts have declined to reach a similar conclusion when child support enforcement puts obligors to a choice between paying, working, and going to jail. To do so, these courts have invoked the debtor’s freedom to choose for whom he works, as well as a variety of ad hoc exceptions to the Amendment’s reach. Those rationales are criticized and used to illustrate broader questions in the jurisprudence of free labor.

Dillbary on Causation

Shahar Dillbary (University of Alabama School of Law) has posted Causation Actually on SSRN. Here is the abstract:

The article debunks the consensus that in concerted action, concurrent causes and alternative liability situations, the actual causation requirement is missing. While courts and scholars insist that in these cases tort law holds liable parties who clearly did not cause the victim’s harm, this article offers a novel approach. Using a simple model and applying it to leading decisions, it shows that a party who did not and could not even potentially injure the victim could nevertheless be a but-for reason for the harm. The article also challenges claims that causation theories like concerted action, substantial factor and alternative liability are fair to the victim or that they are designed to deter actors from engaging in “antisocial” activities. In deviation from the prior literature, this article reveals that these causation theories reduce the parties’ incentives to take care and result in more, rather than fewer, accidents. This article further shows that, despite lip service to the contrary, tort law promotes harmful activities that judges declare immoral, antisocial and illegal. The article argues, however, that in many cases this result can be justified on efficiency grounds. The article concludes that the but-for test should have a larger role in causation analysis, and it provides a number of policy recommendations to courts and lawmakers.

Hewitt on White-Collar Sentencing

Jillian Hewitt has posted Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases (Yale Law Journal, Vol. 125, No. 4, 2016) on SSRN. Here is the abstract:

Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Guidelines advisory. This Note offers a picture of white-collar sentencing in “shades of gray.” It conducts an empirical analysis of sentencing decisions after Booker to assess the consequences of the return to judicial discretion. In particular, the Note examines major white-collar cases in the Southern District of New York, where many such cases of national and international significance are prosecuted. The Guidelines instruct judges in white-collar cases to calculate the amount of economic loss attributable to the defendant and apply a sentencing enhancement — often a sizable one — on the basis of that loss. The findings reveal that a significant majority of defendants in these cases receive sentences of imprisonment shorter than those recommended by the Guidelines. Moreover, when judges impose sentences below the Guidelines range, the resulting sentences are often dramatically shorter than those produced under the Guidelines. Based on these findings, this Note argues that the U.S. Sentencing Commission should revise its approach to white-collar cases in three ways. The Commission should amend the Guidelines to reduce the severity of the economic loss table; calculate economic “loss” differently; and add additional, though less severe, enhancements to punish pecuniary gain and intended loss. Absent such changes, judges will — and should — continue imposing sentences far below the Guidelines range. These proposed changes better capture the seriousness of the offense and the culpability of the offender, even if they do not resolve the fundamental tension between individualized sentencing and the rigid quantification that characterizes the Guidelines system.

Garvey on Authority, Freedom, and the Guilty Mind

Stephen P. Garvey (Cornell Law School) has posted Authority, Freedom, and the Guilty Mind on SSRN. Here is the abstract:

Imagine an actor who commits a crime in thrall to a powerful desire. Think, for example, about those we call addicts, phobics, maniacs, philiacs, provokees, and so forth. Do any conditions exist under which such actors should be immune to criminal liability when they choose to commit a crime in order to mollify their enthralling desire? Yes. An actor should be immune to criminal liability when, assuming he freely chooses to commit a crime (and thus satisfies the demand that his act be guilty or his actus reus), he nonetheless fails to manifest a guilty mind or mens rea, i.e., his choice to commit the crime reflected no ill will for the state’s authority or its criminal laws. I doubt this condition will obtain very often, but when it does, any actor fulfilling it is beyond the state’s authority to punish.

Manning on Prosecuting Cybercrime

Colin Manning (Cork Institute of Technology) has posted Old Laws, New Crimes: Challenges of Prosecuting Cybercrime in Ireland on SSRN. Here is the abstract:

Developments in the law often lag behind social and technological changes. Some areas of the law, such as contract law, have adapted elegantly to technological developments. Criminal law, however, is less adaptable since the courts must interpret statutes more strictly. The traditional approach to cybercrime views computer related crimes as recent incarnations of existing crimes. Such approach is understandable since it firmly roots the law in familiar territory. But extending the reach of existing law and existing legal concepts my eventually stretch them beyond the point where they continue to be appropriate. Determination to address cybercrime entirely within pre-existing legal concepts may result in legislation that especially broad or vague. It may also generate statutes poorly adapted to the peculiarities of the technology. More importantly, however, this approach may result in delayed recognition of entirely new categories of crime.

Garrett on Corporate Criminal Prosecutions

Brandon L. Garrett (University of Virginia School of Law) has posted The Metamorphosis of Corporate Criminal Prosecutions (Virginia Law Review Online, 2016) on SSRN. Here is the abstract:

Corporate criminal enforcement has exploded in this country. Billion dollar fines are now routine across a range of industries, where they were unimaginable a decade ago. We have federal prosecutors and the Department of Justice, together with the white-collar bar, to thank for this. Their innovations have transformed what was, in decades past, a backwater area of criminal practice. Yet deep concerns remain that corporate prosecution settlements offer lenient and non-transparent deals that fail to hold either the corporations or the culpable individuals adequately accountable. Now, the DOJ has begun to rethink the evolving corporate prosecution approach through the adoption of new guidelines. This Essay explores the most recent set of changes to the evolving DOJ approach, responding to an incisive critique offered by Professors Elizabeth Joh and Thomas Joo. While a commendable and overdue effort, I agree with Joh and Joo that the changes are incremental and may have perverse consequences. Still more troubling, the changes entirely fail to address separate concerns, including regarding calculation of fines, scope and effectiveness of compliance reforms, treatment of recidivists, and supervision of agreements. A deeper rethinking of the federal approach towards enforcing corporate crime is much needed. During a time of broader rethinking of our criminal justice priorities, the paramount concern with leniency and rehabilitation in corporate prosecutions should instead be directed to the benefit of individuals.

Robertson & Kesselheim on Blinding as a Solution to Bias

Christopher T. Robertson and Aaron S. Kesselheim (University of Arizona - James E. Rogers College of Law and Brigham and Women's Hospital/Harvard Medical School) have posted Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law (Elsevier 2016) on SSRN. Here is the abstract:

This document includes the foreword, introduction, and table of contents for the edited book,Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law. The book ranges across the history of blinding -- from Ben Franklin's living room testing the healing powers of Mesmerism to the sham surgeries used today -- and looks forward to explore novel uses of blinding in the courts and forensic science. By asking who needs to know what, scholars can improve scientific research studies, policymakers can enhance regulatory institutions, and advocates can reduce wrongful convictions. With a foreword by Larry Lessig, the book draws upon leading authors with diverse areas of expertise including law, forensic sciences, medicine, philosophy, economics, psychology, sociology, and statistics.

Finn et al. on Sex Trafficking

Kathleen Finn , Erica Gajda , Thomas Perrin and Carla F Fredericks (University of Colorado at Boulder, School of Law, Students , University of Colorado at Boulder, School of Law, Students , University of Colorado at Boulder, School of Law, Students and University of Colorado Law School) have posted Responsible Resource Development and Prevention of Sex Trafficking: Safeguarding Native Women and Children on the Fort Berthold Reservation on SSRN. Here is the abstract:

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation, home to the Mandan, Hidatsa, and Arikara Nation (“MHA Nation” or “Three Affiliated Tribes” or “the Tribe”). However, rapid oil and gas development has brought an unprecedented rise of violent crime on and near the Fort Berthold reservation. Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as “man camps,” has coincided with a disturbing increase in sex trafficking of Native women. The social risks of oil development on American Indian reservations like Fort Berthold are distinct from development in other areas in the United States. The complex and shifting nature of federal Indian law presents legal and practical challenges to law enforcement in civil and criminal contexts. Further, the historical exploitation of Indian lands and people informs current social and economic conditions that contribute to increased sex trafficking of Native women and children.

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Tanovich on Police Lying

David M. Tanovich (University of Windsor - Faculty of Law) has posted Judicial and Prosecutorial Control of Lying by the Police ((2013) 100 Criminal Reports (6th) 322-334) on SSRN. Here is the abstract:

Until recently, the issue of police deception in testifying has received very little attention in Canada. The issue has received significantly more attention over the last few years in light of a number of cases, almost all involving Black or racialized accused, where judges have concluded that the evidence of the police was either an outright lie, deliberately misleading or was tailored. This article chronicles the cases from 2011-2013 and offers a number of suggestions for greater judicial and prosecutorial regulation.

Johnson on Causation after Burrage

Eric Alan Johnson (University of Illinois College of Law) has posted Cause-in-Fact After Burrage v. United States (Florida Law Review, Vol. 68, 2016 Forthcoming) on SSRN. Here is the abstract:

What significance, if any, should state courts assign to the Supreme Court’s unanimous 2014 decision in Burrage v. United States? In Burrage, the Supreme Court relied on “ordinary meaning” and “traditional understanding” in concluding that causation elements in federal criminal statutes nearly always require so-called “but-for” causation. State courts, by contrast, traditionally have applied two important modifications to the but-for test: (1) an acceleration rule, which assigns liability to defendants who hasten “even by a moment” the coming-to-fruition of the proscribed harm; and (2) a contribution rule, which assigns liability to defendants who “contribute” incrementally to the underlying causal mechanism. This paper defends the state courts’ approach. It argues that the acceleration rule and the contribution rule both are necessary to address cases where the but-for test fails to capture ordinary usage. Specifically, these supplementary rules are necessary to address cases of spurious, or preempted, causal sufficiency and cases of causal overdetermination.

Wei & Lin on China's Pretrial Detention System

Shen Wei and Xifen Lin (Shanghai Jiao Tong University (SJTU) - KoGuan Law School and Shanghai Jiao Tong University (SJTU)) has posted Reforms to China's Pretrial Detention System: The Role of the Procuratorate ((2016) 44 International Journal of Law, Crime and Justice 183-211) on SSRN. Here is the abstract:

Pretrial detention in China is not subject to judicial review. The suspect is usually detained through the whole pre-trial and trial stages in the criminal proceeding. China's ongoing criminal justice reform attempts to change this practice in order to offer more protections to suspects through revising the Criminal Procedure Law. This article, framed in the theory of "living law", takes an insider approach by looking into the demarcation of power and interest among various criminal justice authorities and internal units within the People's Procuratorates along with China's detention reform. The empirical findings based on intensive interviews of "insiders" show a different picture from what outsiders may expect. The power struggles among criminal justice authorities and internal units within the procuratorate failed to achieve the purpose of detention reform. Although there have been some positive changes in Province AH's pilot project, such changes are unsustainable due to the uncertain institutional arrangement.

Gardner on Rape

John Gardner (University of Oxford - Faculty of Law) has posted two manuscripts on rape. The first is The Opposite of Rape. Here is the abstract:

Nicola Lacey once lamented that a theoretical focus on rape, with its 'individualised notion of consent', tends to come 'at the expense of the development of a positive conception of what kinds of sexual relationships matter to personhood.' In this essay, building on an earlier essay written with Stephen Shute, I attempt to do some more detailed work on the 'positive conception' of sex with which rape is to be contrasted. I interrogate the 'individualised notion of consent' relevant to rape to see whether it has a proper place in the contrasting 'positive conception'. I conclude that it does not, and suggest that treating it as part of the relevant 'positive conception' may have pernicious consequences. When an 'individualised notion of consent' is too closely associated with good sex, hard-won feminist policy advances (giving women more control over their sex lives) tend to reinforce an anti-feminist ideology (representing women as passive in the sex itself).

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Davis on Cyberbullying by Children

Julia Davis (University of South Australia - School of Law) has posted Legal Responses to Cyberbullying by Children: Old Law or New? (UniSA Student Law Review, Issue 1, pp. 52-61, 2015) on SSRN. Here is the abstract:

Cyberbullying presents an old problem in a new form. Advances in technology have often presented new challenges for the law to solve; as Windeyer J observed in 1970, the law marches with other disciplines ‘but in the rear and limping a little.’ One recent challenge has arrived as a result of the expansion of the internet and the ubiquity of social media use among young people and children. Cyberbullying by school children poses significant problems for lawyers and school authorities, as the primary article by Peta Spyrou demonstrates. One of the questions that arises is the adequacy of the law’s responses to these technology powered wrongs. Are existing legal responses sufficient, or do we need to respond more creatively by introducing new legislative remedies? This comment will consider whether the two established legal regimes of tort law and the criminal law can offer a satisfactory response to the problem of cyberbullying, before moving on to outline some innovative legislation introduced recently by the governments of Australia and New Zealand. It suggests that the law of torts is not currently equipped to deal directly with many of the problems caused by cyberbullying and argues that using the weight of the criminal law is not always an appropriate response to wrongs committed by school children. It concludes that the recent legislative initiatives can offer a more efficient, effective and restorative response.

Edwards on Furman and Advocacy as an Exercise in Virtue

Linda H. Edwards (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Advocacy as an Exercise in Virtue: Lawyering, Bad Facts, and Furman's High-Stakes Dilemma (66 Mercer Law Review 425, 2015) on SSRN. Here is the abstract:

Two of the conversations benefiting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, that is, a person who possesses an integrated set of virtues enabling her "to live and act morally well." In the spirit of virtue ethics, this paper uses the primary defense brief in the consolidated cases known as Furman v. Georgia as an example of how good advocacy can help a lawyer practice virtue, particularly in what may be the most difficult brief-writing dilemma of all: dealing with bad facts.