CrimProf Blog

"US violent crime rises for second year in a row: FBI report"

From Jurist:

The FBI [official website] released estimated crime statistics [FBI annual report] for 2016 on Monday, which revealed [press release] a 4.1 percent increase in violent crimes committed when compared to 2015.

The report "is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI's Uniform Crime Reporting (UCR) [official website] Program." The publication includes statistics for severe crimes including murder, rape, arson and robbery, among others.

Wexler on Expungement and Therapeutic Jurisprudence

David B. Wexler (University of Puerto Rico - School of Law) has posted A Pro Forma Expungement Proceeding: A Lost Therapeutic Opportunity? (Therapeutic Jurisprudence in the Mainstream ___ (2017 Forthcoming)) on SSRN. Here is the abstract:

 

This brief paper describes a routine, pro forma expungement hearing and suggests how, had the legal actors performed their roles in a more robust manner, the process could have yielded greater therapeutic and rehabilitative gains.

Dervan on Corporate Criminal Liability

Lucian E. Dervan (Belmont University School of Law) has posted Corporate Criminal Liability, Moral Culpability, and the Yates Memo (Stetson Law Review, Vol. 46, 2016) on SSRN. Here is the abstract:

 

This article examines the Department of Justice's Principles of Federal Prosecution of Business Organizations (contained in the USAM) and considers the concept of "moral culpability" within them. The article goes on to propose revising the Principles of Prosecution to better focus on questions of "corporate moral culpability" as a means of more accurately assessing corporate criminal liability. In doing so, the article proposes not only changes to the Principles of Prosecution, but changes to the common law respondeat superior test for corporate liability. Finally, the article considering the impact of the Yates Memo (2015) on corporate charging decisions and the Principles of Prosecution.

"Lots more notable new reporting and commentary from The Marshall Project"

Doug Berman at Sentencing Law & Policy links to the material here.

"How 2 state legislatures are quietly making America a better place"

From Vox:

Between January 1 and July 31 this year, the state of New Jersey has seen its pretrial jail population — the number of people sitting in detention, awaiting trial, without having been convicted of a crime — fall by 15.8 percent.

That’s an astonishing drop in under a year. It means that 2,167 fewer people were in pretrial detention on July 31, 2017, than were at the same time in 2016. That’s more than 2,000 people who have not been convicted of any wrongdoing, and who get to live at home with their families rather than in a jail cell, who stand a better chance of keeping their jobs and their kids, whose lives aren’t unnecessarily disrupted so they can be locked in a cage.

And as this happened, New Jersey’s crime rate actually fell. Violent crime in January through August 2017 was 16.7 percent lower than the same period of 2016. Murder fell by 28.6 percent, assault by 13.3 percent, robbery by 22 percent. By contrast, violent crime only fell 4.3 percent in 2016, and didn’t budge in 2015. It’s far too soon to say if bail reform contributed to the big year-to-year drop. But at the very least, bail reform hasn’t been accompanied with some dramatic increase in danger or crime. More people are free, and more people are safe.

Bagaric et al. on Rehabilitation and Mass Incarceration

Mirko Bagaric, Gabrielle Wolf and William Rininger (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Deakin Law School and University of Akron - University of Akron School of Law, Students) have posted Mitigating America’s Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing (Lewis & Clark Law Review, Vol. 1, No. 22, 2018) on SSRN. Here is the abstract:

 

The United States is in the midst of an unprecedented mass incarceration crisis. Financially, this is no longer readily sustainable, even for the world’s largest economy. Further, the human suffering that prison causes is no longer tolerable from the normative perspective. Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis. The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment. In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation. A more progressive and often effective means of protecting the community is by rehabilitating offenders. In theory, rehabilitation is a widely endorsed sentencing objective, so it should already influence many sentencing outcomes, but the reality is otherwise. Rehabilitation is rarely a dominant or even weighty consideration when courts sentence offenders. This is attributable, at least in part, to skepticism regarding the capacity of criminal sanctions to reform offenders. This approach is flawed. Empirical data establishes that many offenders can be rehabilitated. In this Article, we argue that sentencing courts should place greater weight on the objective of rehabilitation and that such a change would significantly ameliorate the incarceration crisis, while enhancing community safety. We make three key recommendations in order to implement our proposal. First, it is necessary to promulgate rehabilitation as a means of protecting the community. Second, we propose that the role of rehabilitation in sentencing should be expanded. In particular, and contrary to current orthodoxy, rehabilitation should have a meaningful role even in relation to very serious offenses. In indicating the role that rehabilitation has played in their decisions, courts should clearly articulate how they have adjusted penalties in light of assessments of offenders’ potential for rehabilitation. Third, it is necessary to ensure that decisions by courts relating to the prospects of rehabilitation are made on the basis of more rigorous, empirically-grounded and transparent criteria. To this end, we examine the under-researched topic of the role that instruments that predict the likelihood of an offender’s recidivism should play in guiding sentencing decisions. The solutions advanced in this Article will provide the catalyst for rehabilitation to assume a much larger role in sentencing and thereby significantly ameliorate the incarceration crisis.

Koshan on Marital Rape in Canada

Jennifer Koshan (University of Calgary - Faculty of Law) has posted The Judicial Treatment of Marital Rape in Canada: A Post-Criminalisation Case Study (Chapter 9 in Randall, Koshan and Nyaundi, eds, The Right to Say No: Marital Rape and Law Reform in Canada, Ghana, Kenya and Malawi (Hart Publishing, 2017)) on SSRN. Here is the abstract:

 

This chapter analyses the judicial treatment of marital rape in Canada from 1983 until 2013. This review of 30 years of case law – the first comprehensive review of marital rape decisions in Canada since criminalisation – allows an assessment of whether the sexual assault laws that women advocated are being applied as intended. Section II discusses the reported cases of marital rape in Canada over this period, focusing on issues related to consent, mistaken belief in consent, evidence, and sentencing. This analysis reveals that, although there are some positive developments, there are significant ongoing challenges with fulfilling the goal of protecting women’s rights in the application of sexual assault laws in the spousal context. Section III concludes by highlighting the overall trends in the case law and identifying potential responses to the continuing challenges.

Gershowitz on Intake Prosecutors

Adam M. Gershowitz (William & Mary Law School) has posted The Intake Prosecutor: Prosecutorial Screening Before the Police Make Warrantless Arrests on SSRN. Here is the abstract:

 

Each year, police arrest more than eleven million individuals. Yet, prosecutors ultimately dismiss about twenty-five percent of criminal charges with no conviction being entered. Those numbers tell us that there are inputs needlessly clogging the criminal justice system. Jails are holding pre-trial detainees who will not end up being prosecuted. Prosecutors are dealing with cases that they will ultimately dismiss. Public defenders are over-extended in part because of cases that never should have been on their plate in the first place. And, of course, suspects are suffering through needless pre-trial incarceration. All of this suggests the criminal justice system should do a better job screening which cases are input into the system in the first place.

Based on interviews with more than forty prosecutors’ offices across the country, this article describes how police – not prosecutors – call the shots about who is input into the criminal justice system.

Continue reading

Alexander & Arlen on Reputation, Collateral Effects, and Corporate Crime

Cindy R. Alexander and Jennifer Arlen (Securities and Exchange Commission (SEC) and New York University School of Law) have posted Does Conviction Matter? The Reputational and Collateral Effects of Corporate Crime (Research Handbook on Corporate Crime and Financial Misdealing (Forthcoming)) on SSRN. Here is the abstract:

 

Critics of deferred prosecution agreements claim they undermine deterrence by lowering the cost to firms from reputational damage or stigma resulting from a criminal settlement. We evaluate whether the choice between a DPA and a guilty plea affects the cost to corporations of reputational damage arising from the reactions of interested outsiders – e.g., customers and suppliers – to the settlement, holding constant other factors such as the offender and offense magnitude. We introduce a framework for this purpose in which differences in the qualitative information that is released at settlement may cause differences in outsider reaction and, thus, the firm’s cost of reputational damage. We review the contents of the DPA and plea agreements and find no differences in the information they directly convey to interested outsiders that would cause differences in the expected cost of reputational damage to the firm. We then identify three channels through which the choice of settlement form might indirectly signal information to outsiders: direct revelation, prosecutorial selection, and managerial selection. The differences in the information that interested outsiders may receive through these channels according to the form of settlement appear unlikely to cause differences in the expected costs of reputational damage between DPA and plea to firms at settlement, however. We then turn to the impact of DPAs on the ability of federal agencies acting as interested outsiders to protect their interests by excluding or delicensing a firm whose criminal settlement reveals that it presents an enhanced risk of causing future harm to the agencies’ interests that is best addressed by exclusion instead of by mandated reforms. We conclude that agencies may be better able to serve their interests as interested outsiders when prosecutors employ DPAs than pleas because DPAs leave many agencies free to use permissive exclusion and enable them to exclude when, but only when, appropriate.

Berdejo on Racial Disparities in Plea Bargaining

Carlos Berdejó (Loyola Law School) has posted Criminalizing Race: Racial Disparities in Plea Bargaining (Boston College Law Review, Vol. 59, 2018 (Forthcoming)) on SSRN. Here is the abstract:

 

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints – the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion. This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction. 

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Congressional Control of Presidential Pardons Glenn Harlan Reynolds University of Tennessee College of Law Date Posted: 28 Aug 2017	3,660
2.	Revenge Against Robots Christina Mulligan Brooklyn Law School Date Posted: 10 Aug 2017	193
3.	Corpus Linguistics and the Criminal Law Carissa Byrne Hessick University of North Carolina (UNC) at Chapel Hill - School of Law Date Posted: 07 Sep 2017 [new to top ten]	94
4.	Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives Joshua Horton University of Mississippi, School of Law, Students Date Posted: 26 Aug 2017 [3rd last week]	87
5.	Why Fiction? Alafair S. Burke Hofstra University - Maurice A. Deane School of Law Date Posted: 15 Aug 2017 [4th last week]	79
6.	A Trespass Framework for the Crime of Hacking Aditya Bamzai and Josh Goldfoot University of Virginia - School of Law and U.S. Department of Justice - Computer Crime & Intellectual Property Section, Criminal Division Date Posted: 04 Aug 2017 [7th last week]	74
7.	Transforming Crime-Based Deportation Daniel I. Morales DePaul University College of Law Date Posted: 17 Jul 2017 [8th last week]	64
8.	Crime, Punishment, and Causation: The Effect of Etiological Information on the Perception of Moral Agency Philip Robbins and Paul Litton University of Missouri - Department of Philosophy and University of Missouri School of Law Date Posted: 02 Aug 2017 [9th last week]	55
9.	Probable Cause to Believe What? Partial Marijuana Legalization and the Role of State Law in Federal Constitutional Doctrine Kevin Cole University of San Diego School of Law Date Posted: 21 Aug 2017 [10th last week]	55
10.	Bathroom Laws As Status Crimes Stephen Rushin and Jenny E. Carroll Loyola University Chicago Law and University of Alabama - School of Law Date Posted: 27 Jul 2017 [new to top ten]	49

 

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Feeding the Machine: Policing, Crime Data, & Algorithms Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 21 Aug 2017	295
2.	The Reid Interrogation Technique and False Confessions: A Time for Change Wyatt Kozinski University of Virginia - School of Law, Alumnus or Degree Candidate Author Date Posted: 23 Jul 2017	169
3.	Reconceiving the Standard Conception of the Prosecutor's Role Alice Woolley University of Calgary Date Posted: 30 Aug 2017	139
4.	Data Extraterritoriality Kristen Eichensehr University of California, Los Angeles (UCLA) - School of Law Date Posted: 31 Jul 2017	115
5.	Forensic Science: Daubert's Failure Paul C. Giannelli Case Western Reserve University School of Law Date Posted: 06 Sep 2017 [new to top ten]	108
6.	The Fragile Promise of Open File Discovery Ben Grunwald Duke University School of Law Date Posted: 03 Aug 2017 [5th last week]	105
7.	Carpenter v. United States: Brief of Scholars of Criminal Procedure and Privacy as Amici Curiae in Support of Petitioner Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 17 Aug 2017 [6th last week]	103
8.	Misdemeanors Alexandra Natapoff University of California, Irvine School of Law Date Posted: 16 Aug 2017 [7th last week]	102
9.	A Descriptive Analysis of the Fourth Amendment and the Third-Party Doctrine in the Digital Age Peter C. Ormerod and Lawrence J. Trautman Western Carolina University and Western Carolina University Date Posted: 24 Jul 2017 [8th last week]	99
10.	Legal Remedies for Police Misconduct Rachel Harmon University of Virginia School of Law Date Posted: 10 Aug 2017 [9th last week]	87

"Police use of ‘StingRay’ cellphone tracker requires search warrant, appeals court rules"

From The Washington Post:

A device that tricks cellphones into sending it their location information and has been used quietly by police and federal agents for years, requires a search warrant before it is turned on, an appeals court in Washington ruled Thursday. It is the fourth such ruling by either a state appeals court or federal district court, and may end up deciding the issue unless the government takes the case to the U.S. Supreme Court or persuades the city’s highest court to reverse the ruling.

The case against Prince Jones in 2013 involved D.C. police use of a “StingRay” cell-site simulator, which enables law enforcement to pinpoint the location of a cellphone more precisely than a phone company can when triangulating a signal between cell towers or using a phone’s GPS function. Civil liberties advocates say the StingRay, by providing someone’s location to police without court approval, is a violation of an individual’s Fourth Amendment right not to be unreasonably searched. The D.C. Court of Appeals agreed in a 2 to 1 ruling, echoing similar rulings in the Maryland Court of Special Appeals and federal district courts in New York City and San Francisco.

Holden et al. on Daily Fantasy, Tipping, and Wire Fraud

John T. Holden, Will Green and Ryan M. Rodenberg (Florida State University, Independent and Florida State University - College of Education) have posted Daily Fantasy, Tipping, and Wire Fraud (Gaming Law Review & Economics 21(1) 8-17) on SSRN. Here is the abstract:

 

There are apocryphal stories of a game played amongst federal prosecutors whereby the prosecutors take turns presenting their best case for bringing forth an indictment against the Pope. The vast nature of Title 18 of the U.S. Code presents plenty of crimes for participants to select. However, one version of the game prohibits a prosecutor from selecting 18 U.S.C. § 1343—the wire fraud statute—because of the vast potential applicability of the law, with even preparatory acts often falling within the statute’s purview. Indeed, a Pope was indicted in March 2009 for his role in a conspiracy to commit wire fraud. Getzendanner noted: “[t]he mail and wire fraud statutes enable the federal government to prosecute virtually anyone who uses either of the ubiquitous means in furtherance of a fraudulent scheme.” The primary restrictions on the use of mail fraud and wire fraud are a combination of lack of resources and prosecutorial discretion.

Continue reading

Gal & Dancig-Rosenberg on Community Courts

Tali Gal and Hadar Dancig-Rosenberg (Hebrew University of Jerusalem and Bar-Ilan University) has posted Characterizing Community Courts (Behavioral Sciences & the Law (Forthcoming, 2017)) on SSRN. Here is the abstract:

 

Community courts (CCs) provide a therapeutic diversion for repeat low‐level offenders. This article explores the characteristics of two Israeli CCs using the Criminal Law Taxonomy (CLT), an instrument developed by the authors for assessing process‐, stakeholder‐, substance‐, and outcomes‐related characteristics of criminal justice mechanisms. Through court‐hearing observations and a process of multi‐rater coding of cases, the article analyzes the courtroom dynamics according to a set of 13 measurable parameters. The process was conceived as a vehicle for promoting the model goals: it was highly offender‐oriented and involved a needs‐based terminology while allowing for restrained expression of emotion. However, the process included no victim–offender dialogue and offender supporters and community representatives were only partially involved. The findings provide information about the program's implementation integrity; they also offer a basis for comparison with the characteristics of other justice mechanisms. While focusing on an Israeli program, the issues the article addresses reflect practices and controversies that are salient in many jurisdictions worldwide.

Lin & Fidler on Cross-Border Data Access Reform

Tiffany Lin and Mailyn Fidler (Harvard University - Berkman Klein Center for Internet & Society and Yale University, Law School, Students) have posted Cross-Border Data Access Reform: A Primer on the Proposed U.S.-U.K. Agreement (Berkman Klein Center Research Publication No. 2017-7) on SSRN. Here is the abstract:

 

Cross-border data access reform may be on the legislative agenda in late 2017, with recent House and Senate judiciary committee hearings revisiting the topic. In light of this increasing interest, we thought it would be helpful to provide a brief primer on how cross-border data access requests currently work, options for reform, and major challenges to reform ahead. This document presents a short, high-level background review of the debate as it currently stands, particularly focusing on the DOJ’s 2016 proposal for reform.

Governments need evidence to investigate and prosecute crimes, but increasingly that evidence takes the form of data stored on the servers of U.S. tech companies. In July 2016, the U.S. Department of Justice (DOJ) released draft legislation that would address some of the challenges foreign governments face when seeking data related to criminal investigations from U.S. companies.

Continue reading

Miller on Reciprocal Immunity

Colin Miller (University of South Carolina School of Law) has posted Reciprocal Immunity on SSRN. Here is the abstract:

 

A defendant is charged with using extortionate means to collect a loan. Two brothers give statements to the FBI. One brother’s statement tends to incriminate the defendant. The other brother’s statement tends to exonerate the defendant. Both brothers indicate that they will invoke the privilege against self-incrimination if called to testify at trial. The prosecutor gives immunity to the brother whose statement incriminates but doesn’t give immunity to the brother whose statement exonerates. The jury only hears from the first brother and returns a guilty verdict.

These are the truncated facts of United States v. Davis, a recent Seventh Circuit opinion that has led to a cert petition to the Supreme Court. The same result, however, could have occurred in nearly any court, with cases across the country standing for the proposition that a grant of immunity to a witness for the prosecution doesn’t require reciprocal immunity for a directly contradictory defense witness. 

Continue reading

"Betsy DeVos Reverses Obama-era Policy on Campus Sexual Assault Investigations"

From The New York Times:

The rules, a sharp break from the Obama administration’s directives, will now permit colleges and universities to raise their evidence requirements to a “clear and convincing standard” of proof. The Obama administration had demanded colleges use a lower “preponderance of evidence” standard.

The interim rules permit colleges to maintain the preponderance standard if they so choose, but the change suggests Ms. DeVos wants colleges to consider adopting the higher standard, if not actually forcing them to do so. The rules will remain in effect while the Education Department seeks public comment on a permanent set of rules.

Holden on Gambling and Virtual Currencies

John T. Holden (Florida State University) has posted Trifling and Gambling with Virtual Money (UCLA Entertainment Law Review, Forthcoming) on SSRN. Here is the abstract:

Gambling, in particular sports gambling, is one of the most pervasive illicit activities in the United States. In contrast to Europe and parts of Asia that have vast legal networks of both online and brick and mortar betting parlors, the United States has largely confined sports betting to the state of Nevada, while tolerating so-called daily fantasy sports in a number of additional states. Slightly less pervasive, though equally or perhaps more often associated with illegal activity are virtual currencies. Indeed, the growth of the illegal gambling market is being partially fueled by virtual currencies. While Bitcoin garners most of the media attention, often associated with volatile valuations or criminal activity a variety of smaller scale virtual currencies have emerged. The challenge for judges and an essential prerogative for lawmakers is to make sense of how to treat virtual currencies under antiquated statutes and interpretations of what constitutes money.

Continue reading

"Uncovering Philly law enforcement's secret bank accounts"

From Philadelphia Weekly:

For more than two decades, the District Attorney’s Office has refused to disclose – even to City Council members – exactly what it does with the millions in sometimes-ill-gotten gains confiscated through civil asset forfeiture. But now, long-hidden financial documents obtained through a Right-to-Know request filed by City&State PA and Philly Weekly outline nearly $7 million in secretive expenditures, spanning the past five years.

The records depict a slush fund for DA and police spending that runs the gamut from the mundane to the downright bizarre, all enabled by laws that empower police to seize property from individuals sometimes merely suspected of criminal activity. In one instance, the forfeiture “bank” helped top off the salary of a former DA staffer who once served as campaign manager to now-jailed District Attorney Seth Williams. (The office maintains these expenses were appropriate and eventually reimbursed.) Other forfeiture dollars paid for at least one contract that appears to have violated city ethics guidelines – construction work awarded to a company linked to one of the DA’s own staff detectives. (The DAO said it is now conducting an “internal investigation” into these payments.)