CrimProf Blog

Singh on Corporate Environmental Crimes

Vijay Kumar Singh (Associate Professor & Head, School of Corporate Law) has posted Criminal Liability of Corporations – An Environmental Perspective (Chapter 3 in: Environmental Crimes: Corporate Liability) on SSRN. Here is the abstract:

‘Environmental Crime’ specifically, ‘Environmental Crime by Corporations’ is a recent development in law. A sea change can be witnessed in the use of criminal law in the corporate world. Generally, the regulatory and civil nature of law enforcement against corporations have seen a significant drift towards a criminal trial. This is not only significant from the securities market perspective but also from an environmental standpoint. Now, modern environmental legislations are equipped with legal provisions to send the violators to jail and as well as provide for ‘offences by companies’. This sounds good to the ears of an environmentalist, but if enforcement of law would have been as easy as legislating it, there would not have been much problem.

The seeds of the problem in enforcing environmental legislations against the corporation are implanted with the basic nature of the corporation itself.

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Legarre & Mitchell on Secondary Effects and Public Morality

Santiago Legarre and Gregory J. Mitchell (Universidad Catolica Argentina and Independent) have posted Secondary Effects and Public Morality (40 Harvard Journal of Law and Public Policy 320 (2017)) on SSRN. Here is the abstract:

The police power consists of the authority of the state to regulate in the interests of public health, safety, and morals. As American society continues to grow more diverse and pluralistic, courts and commentators have raised concerns that the last of these, public morality, cannot serve as an acceptable justification for regulatory action. Indeed, if appeals to public morality cannot be evaluated on an objective basis, then regulators might invoke them to conceal unlawful motives. The ability of moral reasoning to provide a legitimate basis for regulation is thrown into doubt.

In this Article, we examine a peculiar line of Supreme Court cases in the free speech context that bring the problem into focus.

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Lyman on Race and the Death Penalty

Tim Lyman (Northeastern University, Institute for Security and Public Policy at the School of Criminology and Criminal Justice) has posted Race and the Death Penalty in Louisiana: An Actuarial Analysis on SSRN. Here is the abstract:

This analysis of race and the death penalty in Louisiana looks at death-eligible cases, half of which were reduced to non-murder final charges, in addition to death penalty cases. It finds that black-on-black cases are under-represented in every category of outcome, and black-on white cases over-represented, leading all variances, at every outcome; whereas white defendant cases are mixed, over or under depending on outcome severity. Odds of a death sentence for a black defendant are eleven times greater if the victim is white rather than black.

Death-eligible cases in five jurisdictions that are disparate in race mix and population density are found to have these same race category traits of variance in each, traits also shared by the death penalty cases. The hypothesis of race neutrality must be rejected in every jurisdiction, and a new hypothesis of uniformity of variance patterns, even with the death penalty group, is found viable.

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Mungan on The Effects of Racial Profiling

Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted The Effects of Racial Profiling, Taste-Based Discrimination, and Enforcer Liability on Crime on SSRN. Here is the abstract:

The literature contains ambiguous findings as to whether statistical discrimination, e.g. in the form of racial profiling, causes a reduction in deterrence. These analyses, however, assume that enforcers' incentives are exogenously fixed. This article demonstrates that when the costs and benefits faced by officers in enforcing the law are endogenously determined, statistical discrimination as well as taste-based discrimination lead to an increase in criminal activity. Moreover, the negative effects of statistical discrimination on deterrence are more persistent than similar effects due to taste-based discrimination. This suggests, contrary to the impression created by the existing literature, that statistical discrimination is not only harmful, but, may be even more detrimental than taste-based discrimination. Thus, for purposes of maximizing deterrence, the recent focus in empirical research on identifying taste-based discrimination as opposed to statistical discrimination may be misplaced. A superior approach may be to identify whether any type of racial discrimination takes place in the enforcement of laws, and to provide enforcers with incentives to minimize the impact of their discriminatory behavior.

Opinion reversing excessive force award

Justice Alito delivered the opinion of the Court in County of Los Angeles v. Mendez. Justice Gorsuch did not participate.

Koehler on FCPA Enforcement

Mike Koehler (Southern Illinois University School of Law) has posted The FCPA's Record-Breaking Year (Connecticut Law Review, Forthcoming) on SSRN. Here is the abstract:

On a number of levels, 2016 was a record-breaking year for Foreign Corrupt Practices Act enforcement. This article, part of annual series, highlights how 2016 witnessed the largest number of corporate enforcement actions and largest aggregate corporate settlement amounts in the FCPA’s nearly 40 year history.

FCPA enforcement in 2016 was also notable given the wide spectrum of enforcement actions.

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Sobol on Criminal Justice Debt Abuses

Neil L. Sobol (Texas A&M University School of Law) has posted Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses (88 University of Colorado Law Review 841 (2017)) on SSRN. Here is the abstract:

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in jail merely because they are unable to afford bail.

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Gershel on Sentencing Synthetic Cannabinoid Offenders

Brad Gershel has posted Sentencing Synthetic Cannabinoid Offenders: 'No Cognizable Basis' (American Criminal Law Review Online, Vol. 54 (2017)) on SSRN. Here is the abstract:

Application of the United States Sentencing Commission Guidelines (“Guidelines”) to smokable synthetic cannabinoids (“SSC”) produces distinct but familiar inequities in the criminal justice system. Calling to mind the crack-to-cocaine disparity that belied the rights of countless defendants, the federal government has yet to rectify a Guidelines rule that was promulgated without scientific basis or empirical support. As prosecutions for SSC accelerate—and in the absence of swift and meaningful reform—federal courts will continue to sentence defendants via a base-offense range that was never justified.

Brown on The Community Trigger

Kevin J. Brown (Queen's University Belfast) has posted The Community Trigger for Anti-Social Behaviour: Protecting Victims or Raising Unrealistic Expectations? ([2015] Criminal Law Review 488-503) on SSRN. Here is the abstract:

In October 2014, a statutory remedy for victims of anti-social behaviour became available called the community trigger. It affords complainants a right to request a review of their case if they consider that the response from local agencies has been inadequate. The Government has hailed the reform as “putting victims first”. This article first explores the context behind this reform. This includes a number of high profile cases involving the deaths of complainants after systematic failures led to prolonged exposure to anti-social behaviour. The article then examines the provisions and how they are likely to operate in practice. It argues that whilst much will depend upon implementation, the community trigger has the potential to improve the level of service offered to vulnerable complainants without necessarily impacting adversely on the rights of alleged perpetrators. As such, the community trigger may provide a model from which other areas of the criminal justice system may draw.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	861	Surveying the Law of Emojis Eric Goldman Santa Clara University - School of Law Date posted to database: 1 May 2017
2	429	Judging Sexual Assault Trials: Systemic Failure in the Case of Regina v Bassam Al-Rawi Elaine Craig Dalhousie University - Schulich School of Law Date posted to database: 12 Apr 2017
3	251	Resurrecting Labor Richard A. Bales Ohio Northern University - Pettit College of Law Date posted to database: 28 Mar 2017
4	180	Criminal Employment Law Benjamin Levin Harvard Law School Date posted to database: 3 Apr 2017
5	159	Affirmative Consent, by Way of the Intoxication 'Defense' Kevin Cole University of San Diego School of Law Date posted to database: 18 May 2017 Last Revised: 18 May 2017 [new to top ten]
6	138	Judicial Resolution of Nonconsensual Pornography Dissemination Cases Eric Goldman and Angie Jin Santa Clara University - School of Law and Cornell University - Law School Date posted to database: 17 Apr 2017 [5th last week]
7	121	'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence Michael L. Perlin New York Law School Date posted to database: 7 Apr 2017 [6th last week]
8	104	Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform Rachel E. Barkow and Mark William Osler New York University School of Law and University of St. Thomas - School of Law (Minnesota) Date posted to database: 2 May 2017 [7th last week]
9	101	Is There a Case for Strict Liability? Larry Alexander University of San Diego School of Law Date posted to database: 28 Apr 2017 [8th last week]
10	97	Collateral Consequences of Criminal Conviction Gabriel "Jack" Chin University of California, Davis - School of Law Date posted to database: 11 Apr 2017 [9th last week]

Joy & Uphoff on Counselling Clients about Physical Evidence

Peter A. Joy and Rodney J. Uphoff (Washington University in St. Louis - School of Law and University of Missouri School of Law) have posted ‘What Do I Do with the Porn on My Computer?’: How a Lawyer Should Counsel Clients about Physical Evidence (54 American Criminal Law Review 751 (2017)) on SSRN. Here is the abstract:

This Article critically analyzes the legal and ethical limits of advice a lawyer may give clients about evidence of crimes, and provides examples of that advice in a number of situations involving clients with questions about what they should do with real and electronic evidence. When criminal charges have not been brought and are not expected, how much latitude does a lawyer have in giving advice to a client? When may a lawyer counsel a client to destroy contraband or other evidence of a crime? When a lawyer may not counsel destruction, is a lawyer legally and ethically permitted to discuss the law and an assessment of the risks and possible legal consequences of destroying the contraband or other evidence of crimes?

This Article also fills the void in the legal ethics and criminal law literature on how to be both an ethical and an effective lawyer when a client seeks straightforward advice about handling contraband or other evidence of possible crimes.

Galoob on Retributivism and Criminal Procedure

Stephen Galoob (University of Tulsa College of Law) has posted Retributivism and Criminal Procedure (New Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

Retributivist theories of punishment are in tension with due process. Some retributivists adopt a simple view that punishment of the deserving is normatively justified. However, this Simple Retributivism licenses unjust and illegitimate rules of criminal procedure. A more refined version of retributivism, on which a person’s punishment is justified only if she deserves to be punished for the offense with which she is charged and her desert bases cause her to be liable to punishment, avoids the troubling implications of Simple Retributivism. Refined Retributivism also entails specific principles for implementing criminal law—that is, a distinctively Retributivist Criminal Procedure. On this Retributivist Criminal Procedure, procedural mechanisms must establish that there are good reasons to believe that an offender deserves to be punished for an offense, and these reasons must cause the offender’s liability to punishment.

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Lee on Reasonable Doubt and Morality

Youngjae Lee (Fordham University School of Law) has posted two pieces on SSRN. The first is Reasonable Doubt and Moral Elements (Journal of Criminal Law and Criminology, Vol. 105, No. 1, 2016) on SSRN. Here is the abstract:

The law is axiomatic. In order to convict a person of a crime, every element of the crime with which he is charged must be proven beyond a reasonable doubt. This Article argues that this fundamental proposition of American criminal law is wrong. Two types of elements are typically found in crime definitions: factual elements and moral elements. Proving factual elements involves answering questions about historical facts — that is, questions about what happened. By contrast, proving moral elements — such as “reckless,” “unjustifiable,” “without consent,” or “cruel” — involves answering questions not only about what happened but also about the evaluative significance of what happened. This Article argues that the beyond a reasonable doubt requirement should not apply to such moral elements for three reasons. First, the beyond a reasonable doubt requirement applied to normative elements compels overly underinclusive interpretations of crime definitions because the standard requires factfinders to acquit where there are reasonable moral disagreements. Second, by, in effect, thus limiting the scope of crime definitions, the requirement undermines the value of using normative terms in crime definitions as a method of guiding citizens to behave as responsible law-abiding citizens. Third, the requirement produces a situation where important normative decisions are delegated to ultimate factfinders, especially the jury, with excessively restrictive instructions as to when they are allowed to act on their moral beliefs. The Article concludes by discussing some implications of these arguments and exploring general features of criminal law that conspire to produce these problems with the beyond a reasonable doubt standard.

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Stolzenberg et al. on Child Witnesses

Stacia N. Stolzenberg, Kelly McWilliams and Thomas D. Lyon (Arizona State University (ASU) - School of Criminology & Criminal Justice, USC Gould School of Law and University of Southern California - Gould School of Law) have posted Ask versus Tell: Potential Confusion When Child Witnesses are Questioned About Conversations (Forthcoming, Journal of Experimental Psychology: Applied) on SSRN. Here is the abstract:

Children’s potential confusion between “ask” and “tell” can lead to misunderstandings when child witnesses are asked to report prior conversations. The verbs distinguish both between interrogating and informing and between requesting and commanding. Children’s understanding was examined using both field (i.e., Study 1) and laboratory (i.e., Studies 2-4) methods. Study 1 examined 100 5- to 12-year-olds’ trial testimony in child sexual abuse cases, and found that potentially ambiguous use of ask and tell was common, typically found in yes/no questions that elicited unelaborated answers, and virtually never clarified by attorneys or child witnesses. Studies 2-4 examined 345 maltreated 6- to 11-year-olds’ understanding of ask and tell. The results suggest that children initially comprehend telling as saying, and thus believe that asking is a form of telling. As such, they often endorsed asking as telling when asked/yes no questions, but distinguished between asking and telling when explicitly asked to choose. Their performance was impaired by movement between different use of the words. Child witnesses’ characterization of their conversations can easily be misconstrued by the way in which they are questioned, leading questioners to misinterpret whether they were coached by disclosure recipients or coerced by abuse suspects.

Lucas on Intellectual Disability in Capital Cases

Lauren Sudeall Lucas (Georgia State University College of Law) has posted An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases (33 Ga. St. U. L. Rev. 553 (2017)) on SSRN. Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

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Alschuler on Miranda

Albert W. Alschuler (University of Chicago Law School) has posted Miranda's Fourfold Failure (97 Boston University Law Review 849 (2017)) on SSRN. Here is the abstract:

The Boston University Law Review held a symposium on Miranda v. Arizona fifty years after that decision. This contribution to the symposium argues that Miranda has been:

(1) A Doctrinal Failure (a) because Miranda seriously misconstrued the Fifth Amendment’s privilege against self-incrimination; (b) because the artificiality of Miranda’s rules has produced a mountain of nonsense law; and (c) because Miranda promised legal assistance at the stationhouse while ensuring that suspects would not get it;

(2) An Ethical Failure (a) because the extravagant right to remain silent asserted by Miranda runs counter to ordinary moral principles; and (b) because the unwillingness of just about everyone actually to honor this right has produced a system relying on exploitation and deception;

(3) A Jurisprudential Failure because Miranda departed from the appropriate role of courts; and

(4) An Empirical Failure because Miranda did next to nothing to protect suspects from police abuse.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Downloads	Paper Title
1	4,843	Encryption Workarounds Orin S. Kerr and Bruce Schneier The George Washington University Law School and Harvard University - Berkman Klein Center for Internet & Society Date posted to database: 22 Mar 2017
2	207	The Use of Risk Assessment at Sentencing: Implications for Research and Policy Jordan M. Hyatt and Steven L. Chanenson Drexel University and Villanova University School of Law Date posted to database: 2 May 2017 [5th last week]
3	169	Government Hacking to Light the Dark Web: What Risks to International Relations and International Law? Orin S. Kerr and Sean D. Murphy The George Washington University Law School and George Washington University - Law School Date posted to database: 24 Apr 2017 [6th last week]
4	162	Making Families Pay: The Harmful, Unlawful, and Costly Practice of Charging Juvenile Administrative Fees in California Stephanie Campos-Bui, Jeffrey Selbin,Hamza Jaka, Tim Kline, Ahmed Lavalais, Alynia Phillips and Abby Ridley-Kerr University of California, Berkeley - School of Law, University of California, Berkeley - School of Law, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students, University of California, Berkeley, School of Law, Students and University of California, Berkeley, School of Law, Students Date posted to database: 5 Apr 2017 [7th last week]
5	150	Applying The Racial Profiling Correspondence Test David M Tanovich University of Windsor - Faculty of Law Date posted to database: 22 Mar 2017 [8th last week]
6	141	Reforming Registries Wayne A. Logan Florida State University - College of Law Date posted to database: 27 Mar 2017 [9th last week]
7	132	Police Interrogation and Suspect Confessions: Social Science, Law and Public Policy Richard A. Leo University of San Francisco - School of Law Date posted to database: 22 Mar 2017 [10th last week]
8	125	Regulating Inductive Reasoning In Sexual Assault Cases David M Tanovich University of Windsor - Faculty of Law Date posted to database: 11 Apr 2017 [new to top ten]
9	121	'Have You Seen Dignity?': The Story of the Development of Therapeutic Jurisprudence Michael L. Perlin New York Law School Date posted to database: 7 Apr 2017 [[new to top ten]
10	109	Rethinking Federal Diversion: The Rise of Specialized Criminal Courts Christine S. Scott-Hayward California State University, Long Beach - School of Criminology, Criminal Justice, and Emergency Management Date posted to database: 28 Apr 2017 [new to top ten]

Sipe on The Sherman Act and Vagueness Doctrine

Matthew G. Sipe has posted The Sherman Act and Avoiding Void-for-Vagueness on SSRN. Here is the abstract:

Recent Supreme Court jurisprudence has reaffirmed the viability of the void-for-vagueness doctrine, including the use of facial challenges. This Article demonstrates that, under prevailing doctrine, the Sherman Act could not survive such a challenge. Although previous high-profile attempts to invalidate this core statute of antitrust law as unconstitutionally vague were unsuccessful, the landscape has changed considerably since then. Longstanding deficiencies in the statutory text in terms of notice and consistency have been exacerbated by a pattern of judicial gloss that tolerates and maintains ambiguity — both categorical and substantive. The Sherman Act’s penalties and enforcement, moreover, have been enhanced and increased, making the cost of good-faith missteps particularly high. Additionally, the Sherman Act’s tension with activities protected by the First Amendment has increased considerably, not only directly, but indirectly through the proliferation of information and communication markets. Finally, the attempt to incorporate a limiting mens rea requirement into the law — a saving grace in other vague statutory schemes — has proved unworkable and incomplete, if not entirely mooted in this context. In light of these trends, the Sherman Act requires some form of alteration to maintain constitutionality moving forward. This Article concludes by briefly exploring such potential solutions, and likely outcomes with respect to antitrust law’s vagueness problem for the years ahead.

Polinsky & Riskind on Optimal Use of Prison, Parole, and Probation

A. Mitchell Polinsky and Paul N. Riskind (Stanford Law School and Stanford Law School) have posted Deterrence and the Optimal Use of Prison, Parole, and Probation on SSRN. Here is the abstract:

In this article we derive the sentence — choosing among the sanctions of prison, parole, and probation — that achieves a target level of deterrence at least cost. Potential offenders discount the future disutility of sanctions and the state discounts the future costs of sanctions. Prison has higher disutility and higher cost per unit time than parole and probation, but the cost of prison per unit of disutility can be lower or higher than the cost of parole and probation per unit of disutility. The optimal order of sanctions depends on the relative discount rates of potential offenders and the state, and the optimal duration of sanctions depends on the relative costs per unit of disutility among the sanctions and on the target level of deterrence. We focus on the case in which potential offenders discount the disutility of sanctions at a higher rate than the state discounts the costs of sanctions. In this case, if prison is more cost-effective than parole and probation — that is, has a lower cost per unit of disutility — prison should be used exclusively. If prison is less cost-effective than parole and probation, probation should be used if the deterrence target is low enough, and prison followed by parole should be used if the deterrence target is relatively high. Notably, it may be optimal to employ a prison term even if prison is less cost-effective than parole and probation and even if prison is not needed to achieve the target level of deterrence, because of what we refer to as the front-loading advantage of imprisonment.

Capers on Criminal Procedure and the Good Citizen

I. Bennett Capers (Brooklyn Law School) has posted Criminal Procedure and the Good Citizen (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

There is an aspect of criminal procedure decisions that has for too long gone unnoticed, unrecognized, and unremarked upon. Embedded in the Supreme Court’s criminal procedure jurisprudence — at times hidden in plain sight, at other times hidden below the surface — are asides about what it means to be a “good citizen.” The good citizen, for example, is willing to aid the police, willingly waives their right to silence, and welcomes police surveillance. And this is just the start. Read between the lines, and the Court’s “citizenship talk” also dictates how a good citizen should behave, move, and even speak. “Criminal Procedure and the Good Citizen” surfaces this aspect of the Court’s criminal procedure decisions to explore a series of questions about the nature of power, participation, and citizenship today, especially with respect to the police.

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