CrimProf Blog

Jochnowitz on Intellectual Disability and Capital Jurors

Leona Deborah Jochnowitz (Northern Vermont University, Johnson State College) has posted Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability on SSRN. Here is the abstract:

 

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors. It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it. Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice. It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

Continue reading

Hobbs & Trotter on Sex Offenders

Harry Hobbs and Andrew Trotter (University of New South Wales (UNSW), Faculty of Law, Students and Doogue O'Brien George) have posted Lessons from History in Dealing with Our Most Dangerous (University of New South Wales Law Journal, Vol. 41, No. 2, 2018) on SSRN. Here is the abstract:

The conundrum of dealing with dangerous sexual offenders is one that has never been too far from the public and legislative consciousness. Striking an appropriate balance between community protection and the human rights of the offender is a difficult task and one weighed down by many competing considerations. In this article, we survey historical and contemporary punishment of dangerous sexual offenders in order to inform that debate. Measures adopted or employed by political communities to respond to such offenders should be chosen with an eye to history. This article argues that such measures are often adopted as a cure for public fear, and as such, they risk being overzealous, imprecise, disproportionate, and unjust. Reflecting on this history, we provide three points that should guide legislative and executive responses when dealing with our most dangerous.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Consensus Myth in Criminal Justice Reform Benjamin Levin University of Colorado Law School Date Posted: 16 Apr 2018	330
2.	Pakistani Blasphemy Law between Hadd and Siyasah: A Plea for Reappraisal of the Ismail Qureshi Case Muhammad Ahmad International Islamic University, Islamabad Date Posted: 10 May 2018	202
3.	Too High a Price 2: Move on to Where? Nantiya Ruan, Elie Zwiebel, Michael Bishop, Bridget DuPey, Nicole Jones, Ashley Kline, Joshua Mitson and Darren O’Connor University of Denver Sturm College of Law, University of Denver Sturm College of Law, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver - Sturm College of Law, Students, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project, University of Denver Sturm College of Law - Homeless Advocacy Policy Project and University of Denver Sturm College of Law - Homeless Advocacy Policy Project Date Posted: 07 May 2018	155
4.	Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts Elizabeth D. Katz Stanford Center for Law and History Date Posted: 27 Apr 2018	134
5.	The Expansion of Child Pornography Law Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 21 Apr 2018	130
6.	Against Life Without Parole Judith Lichtenberg Georgetown University Date Posted: 18 May 2018	119
7.	American Evil: A Response to Kleinfeld on Punishment Andrew Koppelman Northwestern University School of Law Date Posted: 25 May 2018 [10th last week]	111
8.	Buggery and Parliament, 1533-2017 Paul Johnson University of York Date Posted: 24 Apr 2018 [7th last week]	110
9.	Driving While Stoned: Issues and Policy Options Mark A.R. Kleiman, Tyler Jones, Celeste Miller and Ross Halperin BOTEC Analysis, LLC, BOTEC Analysis, LLC, BOTEC Analysis, LLC and New York University Marron Institute of Urban Management Date Posted: 05 May 2018 [new to top ten]	105
10.	The Science and Law Underlying Post-Conviction Challenges to Shaken Baby Syndrome Convictions: A Response to Professor Imwinkelried Keith A. Findley and D. Michael Risinger University of Wisconsin Law School and Seton Hall University School of Law Date Posted: 08 May 2018 [9th last week]	104

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Opinion on the Constitutionality of Robert Mueller's Appointment Steven G. Calabresi Northwestern University - Pritzker School of Law Date Posted: 25 May 2018	3,954
2.	The Writ-of-Erasure Fallacy Jonathan F. Mitchell Stanford Law School Date Posted: 25 Apr 2018	194
3.	What to Expect When You Are Arrested: A Guide to Navigating for Unhoused Defendants Brittany Chiechi, Ivona Ogramic, Colleen Rowe and Sara Rankin Seattle University, School of Law, Students, Seattle University, School of Law, Students, Seattle University, School of Law, Students and Seattle University School of Law Date Posted: 04 May 2018	173
4.	Challenging the Punitiveness of 'New-Generation' SORN Laws Wayne A. Logan Florida State University - College of Law Date Posted: 29 May 2018	164
5.	Relative Plausibility and its Critics Ronald J. Allen and Michael S. Pardo Northwestern University Law School and University of Alabama School of Law Date Posted: 17 May 2018	157
6.	Family Law as Criminal Law: The Forgotten Criminal Origins of Modern Family Laws and Courts Elizabeth D. Katz Stanford Center for Law and History Date Posted: 27 Apr 2018	134
7.	Privacy and the Criminal Process: Selvi v State of Karnataka Gautam Bhatia Yale University - Law School Date Posted: 22 Apr 2018	123
8.	The Public Safety Assessment: A Re-Validation and Assessment of Predictive Utility and Differential Prediction by Race and Gender in Kentucky Matthew DeMichele, Peter Baumgartner, Michael Wenger, Kelle Barrick, Megan Comfortand Shilpi Misra RTI International, RTI International, RTI International, RTI International, RTI International and RTI International Date Posted: 30 Apr 2018	121
9.	Arrests As Guilt Anna Roberts Seattle University School of Law Date Posted: 26 Apr 2018 [10th last week]	116
10.	The Assumptions Underlying England's Adoption of Trial by Jury for Crime Elizabeth Papp Kamali and Thomas A. Green Harvard Law School and University of Michigan Law School Date Posted: 29 May 2018 [9th last week]	109

Seo on Democratic Policing Before the Due Process Revolution

Sarah Seo (University of Iowa College of Law) has posted Democratic Policing Before the Due Process Revolution (Yale Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

In 1952, Jerome Hall gave a series of lectures on “Police and Law in a Democratic Society.” Applying the methodologies of intellectual and cultural histories, this Essay traces how Hall’s concept of democratic policing shifted from self-rule, to the rule of law, and finally to due process as he struggled to account for twentieth-century police forces that were not, in important ways, governed by the people or constrained entirely by law. That is, Hall modified his ideas of democracy to accommodate the police, rather than the other way around, with the police having to change in accordance with democratic principles. By placing the lectures within the context of the Cold War, the Essay argues that due process was not just a legal norm, but also a cultural value that rationalized discretionary policing at a time when it smacked of totalitarianism and, at the same time, served to distinguish two competing systems of government that both relied on discretionary authority. The Essay concludes by exploring how Hall’s explication of due process, which was representative of midcentury understandings, necessarily revises prevailing interpretations of due process as a restraint on police discretion, thus bringing new light to the Warren Court’s due process revolution.

Baughman on The History of Misdemeanor Bail

Shima Baradaran Baughman (University of Utah - S.J. Quinney College of Law) has posted The History of Misdemeanor Bail (Boston University Law Review, Vol. 98, No. 837, 2018) on SSRN. Here is the abstract:

 

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the impact of being denied bail on those charged with misdemeanors. However, there is a lack of theoretical scholarship explaining defendants’ rights when it comes to misdemeanor bail. There is also a lack of historical perspective in determining how we have dealt with misdemeanor crimes. Considering this historical perspective, we learn that misdemeanors have always been plentiful but it is only recently that they have become a serious problem and that their impact has become as serious as felony offenses. This Article strives to a first step toward creating a theoretical footing for misdemeanor bail decisions by considering the historical role of misdemeanors and discussing the importance of creating an analytical framework for making these decisions.

Opinion holding consent to severance barred double jeopardy claim

Justice Gorsuch delivered the opinion for the Court in part in Currier v. Virginia. Parts of the opinion were joined only by the Chief Justice and Justices Thomas and Alito. Justice Kennedy filed an opinion concurring in part. Justice Ginsburg filed a dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan.

Opinion holding demand for cell-site information to constitute search

Chief Justice Roberts delivered the opinion of the Court in Carpenter v. United States. Justice Kennedy filed a dissenting opinion, joined by Justices Thomas and Alito. Justice Thomas filed a dissenting opinion. Justice Alito, joined by Justice Thomas, filed a dissenting opinion. Justice Gorsuch filed a dissenting opinion.

Smith on Abstention in the Time of Ferguson

Fred O. Smith (Emory University School of Law) has posted Abstention in the Time of Ferguson (Harvard Law Review, Vol. 131, No. 6, p. 2283, 2018) on SSRN. Here is the abstract:

 

Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew.

This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits.

Continue reading

Kolber on Artificial Responsibility

Adam J. Kolber (Brooklyn Law School) has posted Not-So-Smart Blockchain Contracts and Artificial Responsibility (Stanford Technology Law Review, 2018) on SSRN. Here is the abstract:

 

The first high-profile decentralized autonomous organization formed in 2016. Called “TheDAO,” it used smart contracts on a bitcoin-style blockchain to allow strangers to come together online to vote on and invest in venture capital proposals. Newspapers raved about the $160 million it quickly raised, even though it purported to have no central human authority, including no managers, executives, or board of directors. 

Technologists have grand plans for smart contracts and autonomous organizations. Rather than staying at traditional hotels with elaborate human staff, we may pay for hotel rooms using bitcoin (or another cryptocurrency) which will automatically unlock the room door. If the toilet breaks, the room itself will contract with a plumber to fix it. Similarly, a smart contract may allow us to hire a self-driving car. The car will not only drive passengers around but arrange for its own routine maintenance. 

TheDAO itself, however, is now a cautionary tale. A bug in its smart contract code was exploited to drain more than $50 million in value.

Continue reading

"Dangerous Drone Bill Emerges from Senate Committee"

From Just Security, via the NACDL news scan:

It’s rare that a congressional committee tasked with overseeing homeland security approves a bill that would not only authorize sweeping surveillance, but also could pose a significant threat to public safety. But that’s exactly what the Senate Homeland Security and Governmental Affairs Committee did when it approved the slightly amended version of the Preventing Emerging Threats Act of 2018 (S. 2836) by voice vote on June 13 after only five minutes of debate.

The committee is seeking to address the legitimate concern that a drone could pose a threat to the security of government buildings and land or to public safety. However, the response of the bill’s proponents would create many more problems than it would solve. S. 2836 would threaten privacy, chill free speech, undermine due process, infringe upon Americans’ property rights, and even authorize the government to take actions that could result in the loss of life or damage to property.

"Bill to Create Prosecutorial Misconduct Commission Approved by NY State Assembly"

From the New York Law Journal:

The State Assembly gave final passage to a bill on Monday that would create a commission to investigate prosecutorial misconduct.

McAlister et al. on The Minimum Age of Criminal Responsibility

Siobhan McAlister, Nicola Carr, Clare D. Dwyer and Katrina Lloyd (Queen's University Belfast, University of Nottingham - School of Sociology and Social Policy, Queen's University Belfast and School of Social Sciences, Education and Social Work) have posted Raise the Age? Children's Attitudes Towards the Minimum Age of Criminal Responsibility (Access Research Knowledge, Number 113, June 2017) on SSRN. Here is the abstract:

 

The minimum age of criminal responsibility (MACR) is the age at which a child who commits an offence is considered to have attained the emotional, intellectual and mental maturity to understand their actions, can be formally charged and held responsible in a criminal procedure. Northern Ireland (along with England & Wales) has one of the lowest ages of criminal responsibility in Europe, with children being held responsible for their actions from the age of ten. This is out of line with other age markers, including the age of sexual consent (16), the age at which it is legal to drive a car (17) and the age at which a person is entitled to vote (18). At 10 the MACR in Northern Ireland is below the minimum recommended by the UN Committee on the Rights of the Child, which considers that any limit below the age of 12 is not acceptable. The Committee has recommended an increase in the minimum age of criminal responsibility in each of its Concluding Observations on the UK’s compliance, in 1995, 2002, 2008 and 2016.

Brooks & Sankey on Reason and Emotions

Thom Brooks and Diana Sankey (Durham University and Liverpool John Moores University) have posted Beyond Reason: The Legal Importance of Emotions (in Patrick Capps and Shaun D. Pattinson (eds), Ethical Rationalism and the Law (Oxford: Hart): 131—148) on SSRN. Here is the abstract:

 

Deryck Beyleveld has forged a theory of ethical rationalism that has made an important impact on legal and moral philosophy—that this collection of essays makes clear. He has not only refined and improved the original account developed by Alan Gewirth, but provides us with ethical rationalism’s most prolific defender today. One area of particular insight is Beyleveld’s many applications of ethical rationalism to practice and, most especially, to medical law and ethics which has been especially influential. This work has set the bar for all proponents and critics alike.

We focus narrowly on a specific concern that we have with ethical rationalism: its primacy of rationality over other characteristics, such as our emotions.

Continue reading

Brooks on Hegel on Crime and Punishment

Thom Brooks (Durham University) has posted Hegel on Crime and Punishment (in Brooks and Sebastian Stein (eds), Hegel's Political Philosophy: On the Normative Significance of Method and System. Oxford: Oxford University Press, pp. 202-221) on SSRN. Here is the abstract:

 

Perhaps the least controversial issue for most commentators on Hegel’s political and legal philosophy concerns his theory of punishment. The orthodox consensus is that Hegel was a retributivist who justified punishing deserving criminals in order to ‘annul’ their crimes. Broadly speaking, the classic ‘positive’ view of retribution is that punishment can only be justified where deserved and to the degree it is deserved. In that light, some commentators have claimed Hegel is ‘one of the most famous and important retributivists’. 

While they are often deeply divided on so many other issues in his philosophy, the orthodox consensus among Hegel scholars is no accident.

Continue reading

"What Happens When Prosecutors Break the Law?"

A defense attorney involved in several such cases has this piece in The New York Times. In part:

Mr. Kurtzrock’s case may be the most recent example of the system’s egregious failure to hold a rogue prosecutor accountable, but it’s hardly anomalous.

The National Registry of Exonerations, based out of the University of California, Irvine, reports that “official misconduct” — by police, prosecutors or both — was a factor in roughly half of the nearly 2,200 exonerations across the country since 1989.

To date, only one prosecutor in the country (Ken Anderson, who withheld exculpatory evidence from my former Texas client Michael Morton) has ever been jailed for misconduct causing a wrongful conviction. And Mr. Anderson served just eight days in the county jail — starkly different from the 25 years that Mr. Morton languished in state prison.

Xenos on Positive Obligations of the Police

Dimitris Xenos (University of Suffolk) has posted The Protection Against Crime as a Human Right: Positive Obligations of the Police (in Ralf Alleweldt and Guido Fickenscher (eds) The Police and International Human Rights Law (2018), pp 181-215) on SSRN. Here is the abstract:

 

The police are seen as a professional service provider when their duties and standards of care are enforced by the clients of their service, that is ordinary individuals. Actual or potential victims of crime use constitutional review, which examines positive obligations of the police in relation to specific human rights. Within the scope and limits of constitutional review, police duties are determined before, as well as after, harm has been inflicted on innocent individuals. These duties encompass both systemic and more specific and practical measures of protection of human rights against crime. The individual form of protection is subject to certain conditions of proximity (such as the element of knowledge of the personal need for human rights protection). Additional limits are recognised where there is a conflict of rights, and in relation to the availability of resources. Accordingly, the professional duties and requisite performance standards of the police are determined, reviewed and enforced under a consistent legal framework.

"What We Learned From the Videos of Stephon Clark Being Killed by Police"

From The New York Times:

So what exactly led to the deadly encounter, and what happened after? Our analysis establishes five critical moments and reveals a series of split-second decisions that resulted in the death of Stephon Clark, in his backyard.

The raw footage was released in March, and was widely shared on social media. After publishing an initial report, we decided to take a closer look. The result is the most comprehensive analysis to date — a detailed spatial and moment-by-moment record of the shooting.

Adeyemi on Money Laundering in the UK

Adebola Adeyemi (School of Law, University of Manchester) has posted Slipping Through the Net: The FCA's Approach to Lessening the Incidence of Money Laundering in the UK (Journal of Money Laundering Control (2018) vol 21, issue 2, pg 203 - 214) on SSRN. Here is the abstract:

 

The financial services sector provides a crucial infrastructure for the promotion of wealth and innovation in the UK. This attractive infrastructure also appeals to criminals looking to launder the gains of their illicit activities. To this end, it is important to strengthen the regulatory approach to ensure the UK financial services continue to attract and appeal to investors looking to do legitimate business. The paper analyses the UK money laundering regime, highlighting specific challenging areas. The paper investigates the role of politically exposed persons and the use of corporate structures in promoting money laundering. In this context, it also becomes crucial to investigate the role of financial institutions and the sufficiency of their governance approach in lessening the incidence of money laundering. The paper recommends steps that can be employed to lessen the incidence of money laundering in the UK.

Dissent from cert denial in capital case in which instructions arguably diminished jurors' sense of responsibility

Justice Sotomayor filed the dissent in Kaczmar v. Florida.