CrimProf Blog

"New Mexico Supreme Court weighs action on defender workload"

From the A.P., via the NACDL news scan:

Justices of the New Mexico Supreme Court prodded prosecutors and public defenders Wednesday for possible ways to ease pressure on defense attorneys in the state who have complained of being overwhelmed by crushing caseloads of poor clients that they say hinders their ability to provide effective representation.

Public defenders last year declined to represent or withdrew their representation of hundreds of indigent criminal defendants facing jail time in the southeastern corner of the state, only to be rebuffed by a district court judge who said they were doing reasonably good work.

Fan on Missing Body Camera Video

Mary D. Fan (University of Washington - School of Law) has posted Missing Body Camera Videos: Evidentiary Fairness Beyond Blame (Forthcoming, Ga. L. Rev., Vol. 52, No. 1, 2017) on SSRN. Here is the abstract:

 

Responding to calls for accountability, transparency and better evidence, police departments have rapidly adopted body cameras. Recording policies require the police to record more law enforcement encounters than ever before. But what happens if officers do not record? This is an important growing area of controversy. Based on the collection and coding of police department body camera policies, this article reveals widespread detection and enforcement gaps regarding failures to record as required. More than half of the major-city departments in the sample have no provisions on consequences for not recording as required — and several have protections against discipline. 

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Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment Suja A. Thomas University of Illinois College of Law Date Posted: 30 May 2017	159
2.	A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors Aditi Juneja Independent Date Posted: 23 Jun 2017	128
3.	Measuring the Creative Plea Bargain Thea Johnson University of Maine School of Law Date Posted: 30 May 2017	113
4.	Democratizing Criminal Justice Through Contestation and Resistance Jocelyn Simonson Brooklyn Law School Date Posted: 09 Jun 2017	110
5.	Plea Agreements As Constitutional Contracts Colin Miller University of South Carolina School of Law Date Posted: 11 Jul 2017 [7th last week]	100
6.	Do Muddy Waters Shift Burdens? Carrie Sperling and Kimberly Y. W. Holst University of Wisconsin Law School, Frank J. Remington Center and Arizona State University, Sandra Day O'Connor Coll Date Posted: 28 May 2017	87
7.	Henry J. Friendly: Designed to Be a Great Federal Judge Tory L. Lucas Liberty University School of Law Date Posted: 21 Jun 2017 [8th last week]	84
8.	The Jury Sunshine Project: Jury Selection Data as a Political Issue Ronald F. Wright, Kami Chavis and Gregory Scott Parks Wake Forest University - School of Law, Wake Forest University Law School and Wake Forest University - School of Law Date Posted: 29 Jun 2017 [10th last week]	81
9.	Defense Counsel and Public Defense Eve Brensike Primus University of Michigan Law School Date Posted: 27 Jun 2017 [new to top ten]	77
10.	Public Trust and Police Deception Julia Ann Simon-Kerr University of Connecticut School of Law Date Posted: 08 Jun 2017 [new to top ten]	75

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Dynamic Rationality Stephanie Plamondon Bair Brigham Young University J. Reuben Clark Law School Date Posted: 27 May 2017 [2nd last week]	181
2.	The Responsibility Gap in Corporate Crime Samuel W. Buell Duke University School of Law Date Posted: 28 May 2017 [3rd last week]	125
3.	Democratizing Criminal Justice Through Contestation and Resistance Jocelyn Simonson Brooklyn Law School Date Posted: 09 Jun 2017 [7th last week]	110
4.	Kinds of Punishment Douglas Husak Rutgers, The State University of New Jersey - Department of Philosophy Date Posted: 03 Jun 2017	106
5.	The Law of Time Travel Akiva A. Miller New York University School of Law Date Posted: 13 Jun 2017	103
6.	Should Domestic Violence Be Decriminalized? Leigh Goodmark University of Maryland Francis King Carey School of Law Date Posted: 13 Jun 2017 [8th last week]	100
7.	Equal Moral Membership: Naz Foundation and the Refashioning of Equality Gautam Bhatia Yale University - Law School Date Posted: 07 Jun 2017 [6th last week]	96
8.	Public Trust and Police Deception Julia Ann Simon-Kerr University of Connecticut School of Law Date Posted: 08 Jun 2017 [9th last week]	75
9.	An Honest Politician's Guide to Deterrence: Certainty, Severity, Celerity, and Parsimony Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 08 Jun 2017 [10th last week]	73
10.	Law & Neuroscience: What, Why, and Where to Begin Owen D. Jones and Francis X. Shen Vanderbilt University - Law School & Dept. of Biological Sciences and University of Minnesota Law School Date Posted: 26 Jun 2017 [new to top ten]

"Federal appeals court blocks DC concealed carry law"

From Jurist:

The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday rejected [text, PDF] a DC legal restriction that required an applicant to have "good reason to fear for their person or property" in order to acquire a concealed carry permit. The law was blocked by a 2-1 vote. The opinion stated that the "good reason" law is equivalent to a total ban on an enumerated right. According to the decision, "the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions." The court remanded the case with the instructions to order a permanent injunction on the law.

Ormerod & Trautman on Third-Party Doctrine in the Digital Age

Peter C. Ormerod and Lawrence J. Trautman (Western Carolina University and Western Carolina University) have posted A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age on SSRN. Here is the abstract:

 

There are few areas of constitutional law that raise scholars’ ire and trouble jurists like the Fourth Amendment’s third-party doctrine. Making sense of the Court’s distinctions between content and metadata and between personal communications and business records was already difficult with physical documents and analog technologies. But the proliferation of digital technologies has rendered obsolete the factual predicates underpinning those distinctions, and courts have struggled mightily with adapting third-party rules forged over thirty years ago to new technologies.

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Ferzan on Defense and Desert

Kimberly Kessler Ferzan (University of Virginia, School of Law) has posted Defense and Desert: When Reasons Don't Share (San Diego Law Review, Forthcoming) on SSRN. Here is the abstract:

Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s Just War Theory, this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is proportionate solely as a matter of self-defense is insufficient? That is, may the defender, to quote Robert Nozick, “draw against” the punishment to increase the amount of harm that may be imposed? Second, when an aggressor is harmed as a matter of self-defense, is this also an instance of punishment? And if so, may that punishment be set off against any later punishment by the state? I argue that desert and defense can aggregate, but that when defense is sufficient to justify the harm, the desert reason remains inoperative, such that the aggressor may later be fully punished. In instances of overdetermined justification, defense and desert reasons don’t share.

Dubber on Legal History

Markus D. Dubber (University of Toronto - Faculty of Law) has posted Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law (Oxford Handbook of Historical Legal Research, 2016) on SSRN. Here is the abstract:

Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

"Does Positive Law Speak to the Threshold Fourth Amendment Issue in Carpenter?"

Richard Re has this post at PrawfsBlawg. In part:

Supreme Court precedent is not entirely clear on how non-constitutional privacy protections should inform the scope of Fourth Amendment rights, and commentators have debated the issue. Under the “positive law model” proposed by Will Baude and James Stern, a Fourth Amendment “search” or “seizure” generally occurs if (and only if) the government takes an action that would be illegal if performed by a similarly situated private party. I have argued against that approach but suggested a related idea that I call the “positive law floor,” which holds that when nationwide privacy laws guard against intrusions by private parties, similar intrusions by the government should be presumptively unreasonable. Finally, Orin Kerr has argued against any doctrinal link between statutory privacy law and Fourth Amendment protection, whether as a ceiling or a floor.

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Woody on FCPA Enforcement

Karen E. Woody (Kelley School of Business, Indiana University) has posted 'Declinations with Disgorgement' in FCPA Enforcement (University of Michigan Journal of Law Reform, Forthcoming) on SSRN. Here is the abstract:

This Article addresses the recent pretrial diversion scheme undertaken by the Department of Justice in conjunction with its Foreign Corrupt Practices Act Pilot Program; specifically, "declinations with disgorgement." This Article dissects both the purpose of, and terminology used in, declinations with disgorgement, and argues that this novel and creative pretrial diversion is a dangerous conflation of legal remedial theories and terms. A criminal disposition cannot be a declination with attendant penalties because either illegal activity occurred or it did not; prosecutorial discretion does not allow an "in-between" option of declination while simultaneously requiring disgorgement. Calling these dispositions "declinations," and the penalties associated therewith "disgorgement," is a wild misuse of the terms, creating a crisis in the expressive function of the Foreign Corrupt Practices Act and in the legal lexicon itself.

"Trump's DOJ gears up for crackdown on marijuana"

From The Hill, via NACDL news scan. In part:

President Trump’s Task Force on Crime Reduction and Public Safety, led by Sessions, is expected to release a report next week that criminal justice reform advocates fear will link marijuana to violent crime and recommend tougher sentences for those caught growing, selling and smoking the plant.  

. . .

Sessions sent a letter in May asking congressional leaders to do away with an amendment to the DOJ budget prohibiting the agency from using federal funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession or cultivation of medical marijuana." 

Arnaud on The Death Penalty in Puerto Rico

Emmanuel Hiram Arnaud has posted A License to Kill: State Sponsored Death in the Oldest Colony in the World (86 Rev. Jur. UPR 295 (2017)) on SSRN. Here is the abstract:

The article discusses the death penalty in Puerto Rico as a means of state violence by the United States over Puerto Rico. In light of this, the author recounts the Puerto Rican colonial experience through a legal lens, beginning with the first organic law of Puerto Rico and the Insular Cases. Afterwards, the author examines the imposition of the death penalty on Puerto Rico and the challenges it has faced based on the due process of the fourteenth amendment. The article concludes with the stating how the death penalty is as another expression of the U.S. Congress plenary powers over the Island, given that it is expressly rejected in Puerto Rico’s Constitution.

"DOJ and FBI takedown largest ever illegal dark web marketplace"

From Jurist:

The US Department of Justice (DOJ) together with the FBI [official websites] have seized and shut down [DOJ press release] AlphaBay, a criminal marketplace on the "dark web" on Thursday. The site, which has reportedly been operating on the dark web for the last two years, was used to sell numerous illicit products including illegal narcotics, computer hacking tools, malware, firearms, fraudulent identification documents, counterfeit products, and toxic chemicals. A majority of the business done on the site involved illicit narcotics, predominantly heroin and fentanyl. AlphaBay was shut down after an operation involving law enforcement agencies from seven separate nations and Europol [official website] managed to seize the site's infrastructure. In a statement [text] to the press, Attorney General Jeff Sessions [official profile] called the event "the largest dark net marketplace takedown in history."Another dark marketplace called the Hansa Market was also taken down by the same agencies on Thursday.

"How To Reform Criminal Justice, When Prosecutors Hold The Power"

Former prosecutor Dylan Hayne authored this commentary on WBUR, reported in the NACDL news scan. In part:

It’s easy to encourage overzealous evidence-gathering, use harsh charges to leverage plea deals on lesser charges or avoid difficult conversations with witnesses about preserving evidence. In fact, the pressures of the job can make those decisions almost necessary. But prosecutors must have the training and the encouragement to prioritize decisions that err on the side of caution and fairness over decisions made solely for the purposes of convictions or sentences. None of these examples is exceptional; each is drawn from something I frequently experienced directly — like many other prosecutors -- or heard anecdotally.

Morales on Crime-Based Deportation

Daniel I. Morales (DePaul University College of Law) has posted Transforming Crime-Based Deportation (New York University Law Review, Vol. 92, No. 3, 2017) on SSRN. Here is the abstract:

 

Why not rid the United States of criminal noncitizens and the disorder they cause? Because, scholars urge, immigrants reduce crime rates, deporting noncitizens with criminal convictions costs far more than it is worth, and discarding immigrants when they become inconvenient is wrong. Despite the force of these responses, reform efforts have made little headway. Crime-based deportation appears entrenched. Can it be transformed, rather than modified at the margins?

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Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	What Happened to the American Jury? Proposals for Revamping Plea Bargaining and Summary Judgment Suja A. Thomas University of Illinois College of Law Date Posted: 30 May 2017 [2nd last week]	158
2.	A Holistic Framework to Aid Responsible Plea-Bargaining By Prosecutors Aditi Juneja Independent Date Posted: 23 Jun 2017 [3rd last week]	125
3.	Measuring the Creative Plea Bargain Thea Johnson University of Maine School of Law Date Posted: 30 May 2017 [4th last week]	110
4.	Democratizing Criminal Justice Through Contestation and Resistance Jocelyn Simonson Brooklyn Law School Date Posted: 09 Jun 2017 [8th last week]	94
5.	Dismissals as Justice Anna Roberts Seattle University School of Law Date Posted: 12 May 2017 [6th last week]	89
6.	Do Muddy Waters Shift Burdens? Carrie Sperling and Kimberly Y. W. Holst University of Wisconsin Law School, Frank J. Remington Center and Arizona State University, Sandra Day O'Connor Coll Date Posted: 28 May 2017 [7th last week]	85
7.	Plea Agreements As Constitutional Contracts Colin Miller University of South Carolina School of Law Date Posted: 11 Jul 2017 [new to top ten]	84
8.	Henry J. Friendly: Designed to Be a Great Federal Judge Tory L. Lucas Liberty University School of Law Date Posted: 21 Jun 2017 [10th last week]	83
9.	Fighting Fines & Fees: Borrowing from Consumer Law to Combat Criminal Justice Debt Abuses Neil L. Sobol Texas A&M University School of Law Date Posted: 20 May 2017	79
10.	The Jury Sunshine Project: Jury Selection Data as a Political Issue Ronald F. Wright, Kami Chavis and Gregory Scott Parks Wake Forest University - School of Law, Wake Forest University Law School and Wake Forest University - School of Law Date Posted: 29 Jun 2017 [new to top ten]	76

"If Trump Pardons, It Could Be a Crime"

Daniel Hemel and Eric Posner have published this op-ed in The New York Times, addressing whether the President could be prosecuted for obstruction of justice. In part:

There is a broad consensus that a president exercises the pardon power properly — not “corruptly” — when he grants clemency based on considerations of mercy or the public welfare. President Gerald Ford invoked both of those values when he pardoned Nixon: He said that a prosecution of the former president would be too divisive and that Nixon had suffered enough. President George H.W. Bush gestured to both values when he pardoned former Reagan administration officials for their involvement in the Iran-contra scandal.

In Trump’s case, the question would be whether he was acting out of the goodness of his heart, or covering up for his family, his associates and himself.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Affirmative Consent, by Way of the Intoxication 'Defense' Kevin Cole University of San Diego School of Law Date Posted: 18 May 2017	176
2.	Dynamic Rationality Stephanie Plamondon Bair Brigham Young University J. Reuben Clark Law School Date Posted: 27 May 2017	173
3.	The Responsibility Gap in Corporate Crime Samuel W. Buell Duke University School of Law Date Posted: 28 May 2017	116
4.	Kinds of Punishment Douglas Husak Rutgers, The State University of New Jersey - Department of Philosophy Date Posted: 03 Jun 2017	105
5.	The Law of Time Travel Akiva A. Miller New York University School of Law Date Posted: 13 Jun 2017	103
6.	Equal Moral Membership: Naz Foundation and the Refashioning of Equality Gautam Bhatia Yale University - Law School Date Posted: 07 Jun 2017	95
7.	Democratizing Criminal Justice Through Contestation and Resistance Jocelyn Simonson Brooklyn Law School Date Posted: 09 Jun 2017 [8th last week]	94
8.	Should Domestic Violence Be Decriminalized? Leigh Goodmark University of Maryland Francis King Carey School of Law Date Posted: 13 Jun 2017 [new to top ten]	85
9.	Public Trust and Police Deception Julia Ann Simon-Kerr University of Connecticut School of Law Date Posted: 08 Jun 2017 [10th last week]	73
10.	An Honest Politician's Guide to Deterrence: Certainty, Severity, Celerity, and Parsimony Michael Tonry University of Minnesota - Twin Cities - School of Law Date Posted: 08 Jun 2017 [new to top ten]	68

"Justice Dept. Revives Criticized Policy Allowing Assets to Be Seized"

The New York Times has this story:

In amending the policy, created during the war on drugs in the 1980s and restricted in 2015 under the attorney general at the time, Eric H. Holder Jr., as part of a broad check on police power, Attorney General Jeff Sessions marked a further undoing of the Obama administration’s legacy while advancing his law-and-order agenda.

The new policy revives so-called federally adopted forfeitures, which empower state and local law enforcement to use federal law to bypass more restrictive state laws to seize the proceeds from crimes and to share the profits with federal authorities. That money may then be repurposed, the Justice Department said, for training or equipment, such as bulletproof vests or bomb-disposal equipment.

Aljumily on Quantitative Criminology and the "Dark Figure" of Crime

Refat Aljumily has posted Quantitative Criminology: Bayesian Statistics for Measuring the 'Dark Figure' of Crime on SSRN. Here is the abstract:

This paper proposes a new approach to measure the “dark figure” of crime. Accurate probabilities to a variety of unrecorded or unreported crimes, including those that are difficult to measure, are needed to understand the level and type of crime occur in society, test and assess criminal activities and criminal behavior. Bayesian statistics is proposed to measure the “dark figure” of crime. The advantage of using Bayesian statistics is that a degree of belief or a state of knowledge that a criminologist or social scientist holds in a proposition plays an important role in those circumstances when very few observations or data are available. Bayesian statistics assigns probabilities to the degree of belief, or, more specifically, the degree of rational belief, and modifies or changes it mathematically based on relevant evidence relating to it. This view of Bayesian statistics is where it becomes particularly helpful in measuring the “dark figure” of crime and the two elements that constitute this figure: unreported crimes and crimes that are reported to the police but not recorded by them. The application of how we can integrate this methodology into crimes that are never reported to, or never recorded by, the police or any other legal or law enforcement agencies is explained in a simplistic manner with examples, along with the strengths and limitations associated with it. The proposed methodology is expected to provide an insight into the amount of unknown (unrecorded/unreported) crimes that take place in any given place at a given time and ensure that crimes outside the boundaries of all official/independent crime statistics can be accounted for quantitatively.