CrimProf Blog

Crino et al. on Marginal Deterrence

Rosario Crinò, Giovanni Immordino and Salvatore Piccolo (Catholic University of Milan, University of Salerno - Centre for Studies in Economics and Finance (CSEF) and Catholic University of the Sacred Heart of Milan) have posted Marginal Deterrence at Work on SSRN. Here is the abstract:

 

We test the rational economic model of marginal deterrence of law enforcement - i.e., the need for graduating the penalty to the severity of the crime. We combine individual-level data on sentence length for a representative sample of US inmates with proxies for maximum punishment and monitoring costs across US states over 50 years. Consistent with the theory of marginal deterrence, we show that sentence length is increasing in maximum penalty and decreasing in monitoring cost. We also provide evidence that steeper sanctions are associated with less severe crimes, consistent with marginal deterrence being effective. Overall, these findings favor the marginal deterrence framework over competing theories of justice.

Chan et al. on Craigslist and Prostitution

Jason Chan, Probal Mojumder and Anindya Ghose (University of Minnesota - Twin Cities - Carlson School of Management, Carlson School of Management and New York University (NYU) - Leonard N. Stern School of Business) have posted The Digital Sin City: An Empirical Study of Craigslist's Impact on Prostitution Trends on SSRN. Here is the abstract:

 

The Internet facilitates information flow between sex workers and buyers, making it easier to set up paid sexual transactions online. Despite the illegality of selling sexual services online, Section 230 of Communications Decency Act shields websites from liability for unlawful postings by third parties. Consequently, the websites like Craigslist have become a haven for prostitution-related ads. With increasing number of prostitution-related sites launched over time, it is imperative to understand the link between these sites and prostitution trends. Specifically, in this paper, we quantify the economic impact of Craigslist’s entry on prostitution incidence, and identify potential pathways in which the website affects the sex industry. Using a national panel data for 1,796 U.S. counties from 1999 to 2008, our analyses suggest that entry of Craigslist to a county leads to a 17.58 percent increase in prostitution cases. In addition, the analyses reveal that a majority of prostitution on Craigslist are induced by organized vice groups, in addition to voluntary participation by smaller set of independent providers. Further, we find site entry has a stronger impact in counties with past history of prostitution and produces spillover effects in neighboring locations that are not directly served by Craigslist. Sex workers providing niche sexual services are found to increase with site entry. We find that the increase in prostitution arrests does not catch up with the growth in prostitution trends brought in by Craigslist. Finally, we find complementarity effects between erotic and casual sex ads in leading to the increase of prostitution. Our results contribute broadly to the emerging literature on the societal challenges associated with online intermediaries and Internet penetration, and serve to provide guidelines for policy makers in regulating the sex industry in the Internet era.

Schneebaum on Sex Within Authority Relations

Galia Schneebaum (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) has posted What is Wrong with Sex in Authority Relations? A Study in Law and Social Theory (Journal of Criminal Law and Criminology, Vol. 105, No. 2, 2016) on SSRN. Here is the abstract:

 

Criminalization of Sex within Authority Relations (SAR)—such as sex in the relationship between a therapist and a patient or an employer and an employee—is a growing phenomenon. Current theories conceptualize and consequently justify SAR offenses either under a liberal conception of sexual autonomy or under a feminist conception of gender inequality. Yet both conceptualizations are inadequate and fail to capture the distinctiveness of this new legal category. Specifically, they fail to explain the main puzzle underlying SAR offenses, which proscribe sexual contact in the absence of coercion by the offender. Rejecting both liberal and feminist analytical frameworks, this Article draws on Max Weber’s theory of authority to suggest that SAR offenders engage in a novel type of abuse of authority. This abuse involves the overstepping of bureaucratic power into personal relationships and specifically the use of charisma of the office in sexual relations. This new conceptualization calls for a reconsideration of SAR criminalization as sex offenses and paves the way for an alternative regulation based on the notion of abuse of office, which is fundamentally understood as anticorruption regulation.

Diamantis on Character Theory of Corporate Punishment

Mihailis Evangelos Diamantis (University of Iowa, College of Law) has posted Clockwork Corporations: A Character Theory of Corporate Punishment (Iowa Law Review, Forthcoming) on SSRN. Here is the abstract;

 

Retribution and deterrence currently drive the politics and scholarship of corporate criminal law. Since the potential harms and private gains of corporate crime are so large, corporate punishment under these theories must be exacting . . . too exacting. In fact, it is difficult under current law to punish many corporations formally without killing them. Ironically, this fact leads to the under-punishment of corporations. Prosecutors—understandably hesitant to shutter some of the country’s largest economic engines—increasingly offer corporations deferred prosecution agreements in lieu of charges and trial. 

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"The Legal Profession, Enabling Rape"

Bill Otis has this post at Crime & Consequences. In part:

I haven't said anything up to now about Hollywood mogul Harvey Weinstein and the multiple sexual assault scandal that's enveloping him, and  --  much more importantly  --  the Holier-Than-Thou entertainment industry culture of which he has been a mainstay for decades.  As with the narrative we often hear repeated in court, the rapist, Mr. Weinstein,  isn't the victimizer; he's the victim  --  the victim of an environment of indulgence, excessive drinking, "sex addiction" and so forth.

 

For generations, this way of thinking has massively contributed to, and excused, rape.  Indeed, rape has been all but accepted in Hollywood with the blase' phrase "casting couch," which was (and remains) a euphemism for powerful men forcing sex on women (or, in the case of director Roman Polanski, girls).

"What The LBJ Commission Meant For Law Enforcement"

From NPR, via NACDL news scan:

As the U.S. struggles with questions about violent crime and law enforcement, some are pushing Congress to review the country's criminal justice system from top to bottom.

That actually happened 50 years ago when a wide-ranging group of experts studied every facet of crime and turned over a pivotal report to President Lyndon Johnson. The report called for sweeping changes, and remains influential today.

"Argentina top prosecutor resigns over corruption scandal"

From Jurist:

Argentina's top prosecutor Alejandra Gils Carbo resigned [letter, in Spanish] on Monday amid accusations that she hindered investigations into the corruption scandal [JURIST report] surrounding officials from former-president Cristina Fernandez's administration.

Current President Mauricio Macri accused Carbo of misusing her power by failing to bring corruption charges against officials from Fernandez's administration. Macri began campaigning for reforms that would permit Carbo to be fired, which prompted her resignation.

Atiq & Miller on "Consideration" of Mitigating Evidence

Emad H. Atiq and Erin Lynn Miller (Princeton University - Department of Philosophy and Princeton University - Department of Political Science) have posted What Constitutes 'Consideration' of Mitigating Evidence? (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense. Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered. We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.

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Schatz on Interrogation of the Intellectually Disabled

Samson J. Schatz (Stanford University, School of Law, Students) has posted Interrogated with Intellectual Disabilities: The Risks of False Confession (Stanford Law Review, Vol. 70, No. 2, 2018, Forthcoming) on SSRN. Here is the abstract:

 

False confessions happen. At least 245 people have been exonerated from convictions that relied, at least in part, on confessions that were simply not true. Confessions yield a narrative that allows law enforcement, and society in general, to neatly resolve cases with apparent clarity and closure. And yet, the pressures that officers place on suspects to provide that closure weigh disproportionately on the vulnerable, including persons with intellectual disabilities. These individuals face heightened risks of falsely confessing, and they are disadvantaged at every step of the custodial interrogation. Moreover, the main doctrines of judicial review — that which reviews a suspect’s Miranda waiver, and that which determines whether a confession was voluntarily given within the bounds of Fourteenth Amendment due process — provide little additional safeguard for the innocent with intellectual disabilities.

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Cramer on Mass Murder and Gun Laws

Clayton E. Cramer (College of Western Idaho) has posted Mass Murder: American Unexceptionalism on SSRN. Here is the abstract:

 

Is mass murder exceptionally American? If so, can America’s relatively laissez-faire gun control laws be the cause? Could a narrow reading of the Second Amendment qualify as “reasonable” or “rational” because of the social costs of this apparent American exceptionalism?

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	3,690
2.	Corpus Linguistics as a Tool in Legal Interpretation Lawrence M. Solan and Tammy A Gales Brooklyn Law School and Hofstra University Date Posted: 04 Oct 2017	149
3.	The Idea of 'The Criminal Justice System' Sara Mayeux Vanderbilt University - Law School Date Posted: 10 Oct 2017	148
4.	Corpus Linguistics and the Criminal Law Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 07 Sep 2017	132
5.	The Challenges of Prediction: Lessons from Criminal Justice David G. Robinson Georgetown University Law Center Date Posted: 16 Oct 2017 [new to top ten]	119
6.	Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives Joshua Horton University of Mississippi, School of Law, Students Date Posted: 26 Aug 2017 [5th last week]	114
7.	Neuroscience Nuance: Dissecting the Relevance of Neuroscience in Adjudicating Criminal Culpability Christopher Slobogin Vanderbilt University - Law School Date Posted: 04 Oct 2017 [6th last week]	112
8.	The Real Law of Virtual Reality Mark A. Lemley and Eugene Volokh Stanford Law School and University of California, Los Angeles (UCLA) - School of Law Date Posted: 10 Oct 2017	94
9.	Not from a Wicked Heart: Testing the Assumptions of the Provocation Doctrine Carlton Patrick and Debra Lieberman University of Miami and University of Miami Date Posted: 28 Aug 2017 [new to top ten]	92
10.	Ordinary Meaning and Corpus Linguistics Stefan Th. Gries and Brian G. Slocum UC Santa Barbara - Department of Linguistics and University of the Pacific - McGeorge School of Law Date Posted: 16 Oct 2017 [new to top ten]	56

Ellison & Weitzer on Male Bar Prostitution

Graham Ellison and Ronald Weitzer (Queen's University Belfast - School of Law and George Washington University - Department of Sociology) have posted Young Men Doing Business: Male Bar Prostitution in Berlin and Prague (Sexualities, 2017, DOI: org/10.1177/1363460717708139) on SSRN. Here is the abstract:

 

Studies of male sex workers are often confined to the individual level rather than exploring their work environment per se or the larger ecological context in which their business activities are embedded. We know relatively little, for example, about the spatial location of erotic worksites (apart from street-level work) or the interactional dynamics of sellers and clients within such settings. This article presents an ethnographic study of bars and clubs in Prague and Berlin where male sexual commerce is transacted. We find important differences between the cities in the social organization of the bars and in participants’ demographic characteristics. The analysis links our micro-level findings to the larger forces of labour migration and sex tourism, factors that differ between the two cases.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Amicus Brief of Professor Orin S. Kerr in Carpenter v. United States, 16-402 Orin S. Kerr The George Washington University Law School Date Posted: 04 Oct 2017	887
2.	Criminalizing Race: Racial Disparities in Plea Bargaining Carlos Berdejó Loyola Law School Los Angeles Date Posted: 15 Sep 2017 [9th last week]	611
3.	Forensic Science: Daubert's Failure Paul C. Giannelli Case Western Reserve University School of Law Date Posted: 06 Sep 2017 [2nd last week]	427
4.	Understanding 'Sanctuary Cities' Christopher N. Lasch, Linus Chan, Ingrid V. Eagly, Dina Francesca Haynes, Annie Lai, Elizabeth McCormick and Juliet P. Stumpf University of Denver Sturm College of Law, University of Minnesota School of Law - Center for New Americans, University of California, Los Angeles (UCLA) - School of Law, New England Law | Boston, University of California, Irvine School of Law, The University of Tulsa College of Law and Lewis & Clark Law School Date Posted: 02 Oct 2017	180
5.	Reconceiving the Standard Conception of the Prosecutor's Role Alice Woolley University of Calgary Date Posted: 30 Aug 2017	159
6.	The Idea of 'The Criminal Justice System' Sara Mayeux Vanderbilt University - Law School Date Posted: 10 Oct 2017 [7th last week]	147
7.	Combating Prosecutor Misconduct in Closing Arguments Michael D. Cicchini Independent Date Posted: 23 Aug 2017 [6th last week]	133
8.	State Criminal Appeals Revealed Michael Heise, Nancy J. King and Nicole A. Heise Cornell Law School, Vanderbilt University - Law School and University of Chicago, Law School, Students Date Posted: 04 Oct 2017 [new to top ten]	105
9.	Mental Health and False Confessions William C. Follette, Richard A. Leo and Deborah Davis University of Nevada, Reno, University of San Francisco - School of Law and University of Nevada, Reno Date Posted: 30 Aug 2017 [10th last week]	95
10.	The Proficiency of Experts Brandon L. Garrett and Gregory Mitchell University of Virginia School of Law and University of Virginia School of Law Date Posted: 29 Sep 2017 [new to top ten]	91

Next week's criminal law/procedure arguments

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

Monday

• Ayestas v. Davis: Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.
• Wilson v. Sellers: Whether the court's decision in Harrington v. Richter silently abrogates the presumption set forth in Ylst v. Nunnemaker – that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision – as a slim majority of the en banc U.S. Court of Appeals for the 11th Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply.

"Talk show host Hugh Hewitt lobbies Jeff Sessions to pursue federal marijuana crackdown"

From The Cannabist:

During the 14-minute interview, Hewitt asked Sessions pointed questions about marijuana enforcement, and probed him about specific methods to prosecute businesses in states that have legalized the sale of recreational marijuana.

“Let me turn to marijuana,” said Hewitt, several minutes into their conversation. “A lot of states are just simply breaking the law. And a lot of money is being made and banked. One RICO prosecution of one producer and the banks that service them would shut this all down. Is such a prosecution going to happen?”

Sessions replied, “I don’t know that one prosecution would be quite as effective as that… I do not believe there’s any argument that because a state legalized marijuana, that the federal law against marijuana is no longer in existence. I do believe that the federal laws clearly are in effect in all 50 states. And we will do our best to enforce the laws as we’re required to do so.”

"Rand Paul Worries Whether Surveillance Reform Will Even Be Debated in Senate"

From Reason.com:

But if Paul doesn't get a lot of support from his fellow senators, he has bipartisan support from a significant number of representatives in the House. He says that only a handful of GOP senators support his push for restrictions, but he calculates that somewhere between 60 and 100 conservatives in the House are receptive. The conservative House Freedom Caucus opposes renewing Section 702 without better protections for Americans against unwarranted surveillance.

Paul was also asked about his recent interactions with President Donald Trump and whether he pushed for Trump to embrace these reforms. Paul wouldn't get into specifics, but he confirmed that he had been "discussing privacy issues" with the president. The White House has said that it wants Section 702 reauthorized without changes.

Calaway & Kinsley on Bail Reform

Wendy Calaway and Jennifer Kinsley (University of Cincinnati and Northern Kentucky University - Salmon P. Chase College of Law) have posted Rethinking Bail Reform (University of Richmond Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The monetary bail procedures the criminal justice system employs for detaining defendants before trial, when they are cloaked with the presumption of innocence, have come under increasing criticism of late. Legal scholars and social scientists alike are uniform in their belief that monetary bail systems are expensive, unjust, and do little to further public safety or to ensure a defendant’s return to court. Burgeoning scientific research has led to the creation of evidence-based risk assessment tools designed to predict a defendant’s recidivism risk and to reduce detention rates for defendants being held on bonds they cannot afford. But, thus far, the consensus approach to achieving bail reform has focused on litigation-based, one-size-fits-all solutions that are limited in scope.

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Chow on China and the FCPA

Daniel C. K. Chow (Ohio State University College of Law) has posted China's Anti-Corruption Crackdown and the Foreign Corrupt Practices Act (Texas A & M Law Review, 2018, Forthcoming) on SSRN. Here is the abstract:

 

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (FCPA), but it should not be assumed that the crackdown will lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s crackdown and the FCPA, China’s crackdown also serves other important goals of the ruling Communist Party. The overall goal of the current crackdown is to reinforce the power of the Party by targeting enemies and rivals of the current leadership not to deter the types of cases that arise under the FCPA, which focus on bribes given to foreign officials in exchange for obtaining business opportunities. As a result, while the crackdown may deter some types of FCPA cases from arising in China, other types of cases will be unaffected or may even increase.

Caruso on Public Health and Safety

Gregg D. Caruso (SUNY Corning) has posted Public Health and Safety: The Social Determinants of Health and Criminal Behavior (UK: ResearchLinks Books) on SSRN. Here is the abstracct:

 

There are a number of important links and similarities between public health and safety. In this extended essay, Gregg D. Caruso defends and expands his public health-quarantine model, which is a non-retributive alternative for addressing criminal behavior that draws on the public health framework and prioritizes prevention and social justice. In developing his account, he explores the relationship between public health and safety, focusing on how social inequalities and systemic injustices affect health outcomes and crime rates, how poverty affects brain development, how offenders often have pre-existing medical conditions (especially mental health issues), how involvement in the criminal justice system itself can lead to or worsen health and cognitive problems, how treatment and rehabilitation methods can best be employed to reduce recidivism and reintegrate offenders back into society, and how a public health approach could be successfully applied within the criminal justice system. Caruso's approach draws on research from the health sciences, social sciences, public policy, law, psychiatry, medical ethics, neuroscience, and philosophy, and he delivers a set of ethically defensible and practically workable proposals for implementing the public health-quarantine model.

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Duff on Discretion and Accountability

R. A. Duff (University of Stirling - Department of Philosophy) has posted Discretion and Accountability in a Democratic Criminal Law (Prosecutors and Democracy, ed. M Langer and D Sklansky, Cambridge University Press, ISBN: 978-1107187559) on SSRN. Here is the abstract:

 

I offer a normative, admittedly parochial, account of the role of prosecutor in a democracy. This involves sketching a conception of the kind of criminal law that could be appropriate to a democratic polity; that conception gives the criminal trial a central role. The prosecutorial function in such a system centrally involves deciding whether, and with what, to charge someone accused of committing a crime, and (if the decision is to charge) presenting the case against the accused in a trial at which he is called to account by his fellow citizens. A central question about that function concerns the kind of discretion that a prosecutor should (or cannot but) have in making such decisions; I argue that it should be exercised both in deciding whether the accused person’s conduct really did involve the mischief at which the relevant law is aimed, and in deciding whether it would be in ‘the public interest’ to pursue a prosecution, and explain what such decisions should involve. Finally, I discuss the ways in which that discretion can be made accountable — and the particular accountability problems that arise in polities marred by serious social injustice.