CrimProf Blog

Brennan-Marquez on Very Broad Laws

Kiel Brennan-Marquez has posted Very Broad Laws on SSRN. Here is the abstract:

 

Very broad laws offend due process. Like linguistic indeterminacy, breadth has the capacity to deprive ordinary people of fair notice about how the legal system is likely to respond to their conduct. Accordingly, the Fifth and Fourteenth Amendments, echoing ancient rule-of-law principles, impose limits on legislative authority to enact very broad laws. Those limits are forgiving; just as it would be unwise (and perhaps impossible) to banish all vagueness and ambiguity from law, so legislators have considerable latitude to enact broad statutes. But limits do exist, if only at the outer reaches — and they should be enforced. 

The problem has not been lost on courts. But their response, to date, has been to treat breadth as a species of linguistic indeterminacy, confusing analogy for identity.

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Jimeno-Bulnes on Brexit and European Criminal Law

Mar Jimeno-Bulnes (University of Burgos - Faculty of Law) has posted Brexit and the Future of European Criminal Law: A View From Spain (Crim Law Forum (2017) 28:325-347) on SSRN. Here is the abstract:

 

The UK public took a momentous decision when they voted to leave the EU in a referendum on 23 June 2016. As is well known, the UK has, since the entry into force of the Treaty of Lisbon on 1 December 2009, occupied a special position in relation to the Area of Freedom, Security and Justice (ELSJ, Title V TFEU). The Treaty introduced fundamental changes to the field of EU Criminal Law, from which the UK had been sheltered through the opt in/opt out clauses as well as the ‘emergency brakes’ solution. This singular arrangement for the UK after having signed the Treaty of Lisbon might, to some extent, have foreshadowed the present situation of Brexit, the consequences of which for EU Criminal Law are foreseen in this paper from a Spanish perspective. It presents an analysis of what the alternatives to the current relationships between Spain and UK could be in the future outside the EU framework, nevertheless while seeking to benefit from the improvements previously established through European institutions and instruments. In this context, three different areas are addressed: the natural framework through the relations that will inevitably exist with European agencies and institutions; the procedural framework in the area of judicial recognition through the application of the principle of mutual recognition; and, the framework in relation to procedural rights through the application of the principle of the approximation of laws. Finally, some brief remarks outline conclusions on a situation that is still unfolding.

Harker on The Myth of Widespread Prosecutorial Misconduct

Timothy Harker (United States Attorney's Office - Eastern District of Tennessee) has posted Faithful Execution: The Persistent Myth of Widespread Prosecutorial Misconduct (Tennessee Law Review, Vol. 85, No. 4, 2018) on SSRN. Here is the abstract:

 

Professors, politicians, activists, journalists, and bloggers alike stand ready to denounce prosecutorial misconduct—the more egregious the misconduct, the more vociferous the denunciation, and rightly so. Ordinarily, such public denunciation would have a salubrious effect. Unfortunately, this remedial process has been hijacked by those who insist that prosecutorial misconduct is widespread and has infected all facets of the criminal justice system, to the detriment of defendants and the consternation of the public. Their vitriol precludes a dispassionate evaluation of the criminal justice system generally and prosecutorial misconduct specifically. This article demonstrates that, contrary to expectations, prosecutorial misconduct occurs with reassuring infrequency. The article also proffers a few explanations for the persistence of the myth that prosecutorial misconduct is endemic, discusses various problems related to the criminal justice system that are improperly attributed to prosecutors, and evaluates a few well-intentioned but misguided proposals intended to remedy prosecutorial misconduct.

Mendlow on Punishing Thoughts

Gabriel Mendlow ((University of Michigan Law School) has posted Why Is It Wrong To Punish Thought? (Yale Law Journal, Vol. 127, p. 2342, 2018) on SSRN. Here is the abstract:

 

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts—for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery. In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one. The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished. The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained.

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Feldman on Regulating Human Behavior

Yuval Feldman (Bar-Ilan University, Israel) has published The Law of Good People: Challenging States' Ability to Regulate Human Behavior with Cambridge University Press. From the publisher's description:

Currently, the dominant enforcement paradigm is based on the idea that states deal with 'bad people' - or those pursuing their own self-interests - with laws that exact a price for misbehavior through sanctions and punishment. At the same time, by contrast, behavioral ethics posits that 'good people' are guided by cognitive processes and biases that enable them to bend the laws within the confines of their conscience. In this illuminating book, Yuval Feldman analyzes these paradigms and provides a broad theoretical and empirical comparison of traditional and non-traditional enforcement mechanisms to advance our understanding of how states can better deal with misdeeds committed by normative citizens blinded by cognitive biases regarding their own ethicality. By bridging the gap between new findings of behavioral ethics and traditional methods used to modify behavior, Feldman proposes a 'law of good people' that should be read by scholars and policymakers around the world.

Abrams et al. on Judicial Delegation

David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe (University of Pennsylvania Law School, Sciences Po, Sciences Po and University of Toulouse 1 - Toulouse School of Economics (TSE)) have posted Judicial Delegation on SSRN. Here is the abstract:

 

Greater delegation of authority to judges allows them to tailor decisions more precisely to the facts of the case and local norms, but also increases the likelihood of judicial capture, especially by repeat litigants. Three main approach have historically been taken to address this in the criminal law realm: judicial elections, judicial rotation and sentencing guidelines. We investigate some of the trade-offs inherent in the different approaches using data from North Carolina which has the unusual feature of frequent judicial rotation as well as elections and sentencing guidelines. We find that sentences converge over time within a judicial spell in a district to the local average sentence. We also document that the more prior interactions a judge has with a defense attorney, the more sentences decline. Finally, we show that judges respond to electoral cycles and that elections thus can be a way to discipline them.

Chesney and Citron on Deep Fakes

Robert Chesney and Danielle Keats Citron (University of Texas School of Law and University of Maryland Francis King Carey School of Law) have posted Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security on SSRN. Here is the abstract:

 

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors.

While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace of ideas already suffers from truth decay as our networked information environment interacts in toxic ways with our cognitive biases. Deep fakes will exacerbate this problem significantly. Individuals and businesses will face novel forms of exploitation, intimidation, and personal sabotage. The risks to our democracy and to national security are profound as well. 

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Deep Fakes: A Looming Challenge for Privacy, Democracy, and National Security Robert Chesney and Danielle Keats Citron University of Texas School of Law and University of Maryland Francis King Carey School of Law Date Posted: 21 Jul 2018 [new to top ten]	892
2.	Behavioral Law and Economics - Introduction Eyal Zamir and Doron Teichman Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem - Faculty of Law Date Posted: 06 Jul 2018 [4th last week]	115
3.	Law and Neuroscience: Progress, Promise, and Pitfalls Owen D. Jones and Anthony D. Wagner Vanderbilt University - Law School & Dept. of Biological Sciences and Stanford University - Psychology Date Posted: 31 May 2018 [5th last week]	79
4.	The Institutional Design of Punishment Aaron J. Rappaport University of California Hastings College of the Law Date Posted: 26 Jun 2018 [6th last week]	66
5.	Immigration and Crime and the Criminalization of Immigration Rubén G. Rumbaut, Katie Dingeman and Anthony Robles University of California - Irvine - Department of Sociology, California State University, Los Angeles - Department of Sociology and California State University, Los Angeles - Department of Sociology, Students Date Posted: 19 Jun 2018 [7th last week]	63
6.	Sexual Consent and Disability Jasmine Harris UC Davis School of Law Date Posted: 12 Jul 2018 [new to top ten]	55
7.	Why Is It Wrong To Punish Thought? Gabriel Mendlow University of Michigan Law School Date Posted: 24 Jul 2018 [new to top ten]	54
8.	Sanctions for Acts or Sanctions for Actors Frederick Schauer University of Virginia School of Law Date Posted: 26 Jul 2018 [new to top ten]	42
9.	Congress Has Not Created an Inferior Office of Special Counsel Since 1999 Steven G. Calabresi Northwestern University - Pritzker School of Law Date Posted: 11 Jul 2018 [10th last week]	40
10.	Guns N’ Ganja: How Federalism Criminalizes the Lawful Use of Marijuana Ira P. Robbins American University - Washington College of Law Date Posted: 10 Jul 2018 [new to top ten]	38

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Initial Reactions to Carpenter v. United States Orin S. Kerr University of Southern California Gould School of Law Date Posted: 10 Jul 2018 [2nd last week]	323
2.	The Hidden Law of Plea Bargaining Andrew Manuel Crespo Harvard Law School Date Posted: 25 Jun 2018 [3rd last week]	297
3.	Challenging the Punitiveness of 'New-Generation' SORN Laws Wayne A. Logan Florida State University - College of Law Date Posted: 29 May 2018 [4th last week]	186
4.	Supreme Irrelevance: The Court's Abdication in Criminal Procedure Jurisprudence Tonja Jacobi and Ross Berlin Northwestern University - Pritzker School of Law and Minnesota Court of Appeals #315B Date Posted: 22 Jun 2018 [6th last week]	145
5.	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 [7th last week]	121
6.	Procedural Justice and Risk-Assessment Algorithms A. J. Wang Yale Law School Date Posted: 22 Jun 2018 [new to top ten]	85
7.	Procedural Justice in Transnational Contexts Stephen Cody and Alexa Koenig University of California, Berkeley, School of Law and University of California, Berkeley - Human Rights Program Date Posted: 19 Jun 2018 [new to top ten]	75
8.	Gideon Incarcerated: Access to Counsel in Pre-Trial Detention Johanna Kalb Loyola University New Orleans College of Law Date Posted: 19 Jun 2018 [new to top ten]	71
9.	Democratic Policing Before the Due Process Revolution Sarah Seo University of Iowa College of Law Date Posted: 16 Jun 2018 [new to top ten]	70
10.	Policing the Smart City Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 17 Jun 2018 [new to top ten]	63

Maher on The Logic of Burdens of Proof

Gerry Maher (University of Edinburgh - School of Law) has posted The Logic of Burdens of Proof on SSRN. Here is the abstract:

 

This paper examines a 1977 article by George Gretton on the burden of proof in special defences. In that article Gretton argued that different rules should apply to burden of proof depending on the nature of the defence and in particular whether or not the defence involves admitting that the accused has committed the actus reus of the offence.

This paper argues that the classification of a defence as a 'special' defence is purely a question of Scottish criminal procedure and does not have any bearing on the issue of allocating 'reverse' burdens of proof. The paper presents a detailed examination of the distinction, not noted in Gretton's own article, between legal and evidential burdens of proof and builds upon that distinction to analyse the key decisions of the House of Lords in R v Lambert [2002] 2 AC 545 and Sheldrake v DPP [2005] 1 AC 264. It then considers how the tests which emerge from these decisions have affected the approach of the Scottish courts to reverse burdens. 

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Epps on Criminal Procedure in Winter

Daniel Epps (Washington University in St. Louis - School of Law) has posted Foreword: Criminal Procedure in Winter (Loyola of Los Angeles Law Review, Forthcoming) on SSRN. Here is the abstract:

The 2016 election was a turning point in constitutional criminal procedure. Donald Trump’s victory, and its accompanying opportunity to reshape the Supreme Court, will have effects that will likely reverberate for decades. This Essay, written as the Foreword for the Loyola of Las Angeles Law Review's issue dedicated to October Term 2016, takes stock of where constitutional criminal procedure stands today and offers some predictions on how the shape and tenor of criminal procedure might evolve in the years to come. The future that looms is one where the Supreme Court will be even less willing to meaningfully regulate criminal justice than it has been in recent decades. At best, the Court will adhere to a narrow formalism, one that enforces constitutional text without meaningfully implementing larger constitutional values.

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Barone & Schneider on Money Laundering

Raffaella Barone and Friedrich Schneider (University of Salento - Department of Law and Johannes Kepler University Linz - Department of Economics) has posted Shedding Light on Money Laundering. Is It a Damping Wave? on SSRN. Here is the abstract:

 

This paper has three goals. First, some theoretical remarks about money laundering (the demand and supply sides) are made. Second, we provide a quantitative analysis of money laundering and a preliminary review of our empirical findings on the proceeds of transnational crime worldwide, as well as a breakdown of different types of crime proceeds. Third, we review literature on anti-money laundering and draw policy conclusions. The significance of our contribution is that we provide knowledge about money laundering which could be the basis of a more effective fight against transnational crime organizations.

Montana on Social Media and Good Samaritan Laws

Patricia Grande Montana (St. John's University - School of Law) has posted Watch or Report? Livestream or Help? Good Samaritan Laws Revisited: The Need to Create A Duty to Report (Cleveland State Law Review, Vol. 66, No. 533, 2018) on SSRN. Here is the abstract:

 

In July 2017, a group of five Florida teenagers taunted a drowning disabled man while filming his death on a cell phone. In the video, the teenagers laughed and shouted harsh statements like “ain’t nobody finna to help you, you dumb bitch.” At the moment the man’s head sank under the water for the very last time, one of the teenagers remarked: “Oh, he just died” before laughter ensued. None of the teenagers helped the man, nor did any of them report the drowning or his death to the authorities.

Because the Good Samaritan law in Florida, like in most states, does not require bystanders to assist another person who they know is in danger or is suffering serious physical harm, the teenagers who chose to film, rather than aid, the drowning disabled man are free of any liability. They face no penalties for their inaction and no punishment for their callousness.

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Gilchrist on Regulation by Prosecutor

Gregory M. Gilchrist (University of Toledo College of Law) has posted Regulation by Prosecutor (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Prosecutors exercise broad power and nearly unchecked discretion. A distinctive and underappreciated aspect of prosecutorial authority lies in the ability to impose plea terms that effectively ensconce the prosecutor as a regulator. This phenomenon is clearest in corporate settlements mandating prospective changes to internal governance subject to ongoing prosecutorial review. Prosecutorial control of corporate governance, however, represents merely an extension of a longstanding practice. Prosecutors have often demanded prospective and remedial terms to resolve a wide array of criminal cases, including traditional cases against individuals. Such terms include bars from employment, compelled apologies, and bans from public office. Regulation by prosecutor is a predictable consequence of expansive criminal laws, the practical realities of plea bargaining, and the perceived failure of regulators; as such, it is unlikely to change. The question remains whether and how it might be governed. This Article represents a first step toward describing the breadth of the phenomenon, identifying its benefits and costs, and considering paths forward.

Kwok on Vagueness and White Collar Statutes

David Y Kwok (University of Houston Law Center) has posted Is Vagueness Choking the White Collar Statute? (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

While expansive statutes may be important in addressing the creativity of white collar offenders, the Supreme Court often criticizes white collar statutes as overly broad and vague. The Court’s typical response has been to narrow the scope of the statutes, but excessive breadth and vagueness are not coextensive. The judicial strategy of narrowing liability can counterintuitively decrease clarity as to legal boundaries. Failing to limit vagueness problems not only makes corporate compliance more challenging, but it also presents a threat to the judicial-legislative dialectic in developing better law.

van der Bijl on Parental Liability for Their Children's Misconduct

Charnelle van der Bijl (University of South Africa) has posted Parental Criminal Responsibility for the Misconduct of Their Children: A Consideration (Potchefstroom Electronic Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

This contribution examines the criminal responsibility that is imposed upon parents for the delinquent acts of their children. As South African law has been swayed by the legal philosophy of Anglo-American jurisprudence, a comparative analysis is undertaken with the United States of America, where this imposition has been addressed legislatively in both civil tort law and criminal law. The reasoning underlying the implementation of such specific legislation in the United States is that the common law principles are rooted on the principles of individualisation, which does not specifically cater for parental liability. These parental responsibility laws have been challenged constitutionally over the years in the United States, as critics argue that such laws interfere with the rights of parents to raise their children and are also a form of cruel punishment. Additional criticism submitted is that parental responsibility laws impose strict liability on parents.

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McNamarah on Expanding Pena-Rodriguez to Queerphobia

Chan Tov McNamarah (Cornell University, Law School, Students) has posted Sexuality on Trial: Expanding Pena-Rodriguez to Combat Juror Queerphobia (17 Dukeminier Awards J. Sexual orientation & Gender Identity L. (2018, Forthcoming)) on SSRN. Here is the abstract:

 

The Pena-Rodriguez holding adds fuel to a larger discussion on the issue of juror bias. In recent years, a growing body of scholarship has focused on jurors’ implicit biases, most prominently White jurors’ biases towards Black defendants, and male jurors’ biases against women. Fewer articles have comprehensively considered juror biases against queer parties or solutions to prevent queerphobia from improperly influencing outcomes in criminal proceedings. This Note seeks to fill that dearth by articulating a thorough consideration of queerphobia at trial. The Note is both descriptive and prescriptive. It argues that the effects of juror queerphobia are not uniform but dynamic, manifesting in a myriad of ways depending upon the type of trial and the queer party’s role therein. To combat this queerphobia, the Note then proposes an extension of Pena-Rodriguez to cases of blatant anti-queer bias.

Kwok on Private Partners in Public Corruption

David Y Kwok (University of Houston Law Center) has posted The Private Partners in Public Corruption (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 32, No. 101, 2018) on SSRN. Here is the abstract:

 

While courts continue to debate the proper role of federal criminalization of public corruption, there is insufficient attention to the potential for civil litigation in addressing public corruption. The qui tam provisions of the Civil False Claims Act have driven an effective public-private partnership between the Department of Justice and whistleblowers to combat fraud against the federal government. At times these frauds have been enabled by public officials, and these illicit partnerships between public officials and companies may be evidence of corruption. Through the False Claims Act, the Department of Justice can extend its own partnership with whistleblowers to address those illicit partnerships. This article explores the possibility of the False Claims Act as a first step in directing these “private attorneys general” to uncover public corruption as well as fraud against the government.

Weldon on Bail Appeals

Dorothy Weldon (Columbia Law Review) has posted Bail Again: Reforming Appellate Review of Bail Determinations in State Court (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

It is no secret that the bail system is in desperate need of reform. But generally overlooked amidst calls for change are the processes already guaranteed to criminal defendants when bail has been set beyond their reach: bail appeals. This Note examines the means by which criminal defendants challenge bail determinations in state court and investigate the use of the bail appeal process as a tool of reform. It begins by providing a snapshot of bail procedure, and describing the background and legal foundations for appealing bail in state criminal court. This Note then elaborates on the gap in the law that makes bail appeals necessary and important for preserving the rights of criminal defendants. It concludes by positing that the adoption of a flexible and robust appeals procedure for bail---which includes automatic interlocutory appellate reviews for indigent defendants---is a viable option for mitigating the ever-evolving bail problem.

Lave & Zimring on The Real Risk of Sexually Violent Predators

Tamara Rice Lave and Franklin Zimring (University of Miami, School of Law and University of California at Berkeley) have posted Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data (American Criminal Law Review, Vol. 55, 2018) on SSRN. Here is the abstract:

 

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger. It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age. Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders.