CrimProf Blog

Holden on Ghost-Fixing

John T. Holden (Oklahoma State University) has posted Ghosts in the Machine: How Corrupters Manipulate Games that Never Happened (22 Gaming Law Review 630 (2018)) on SSRN. Here is the abstract:

 

Lacking from the current state legislation has been a comprehensive plan to address sport corruption. Many states and the federal government are presently relying on antiquated statutes as a security against match-fixing. These measures are likely inadequate to prevent the modern iterations of match-fixing, which now extend well beyond the 1950s and 60s era bribery scandals. Match-fixing is now a sophisticated global menace, which uses both carrots and sticks to induce players, referees, coaches, and executives to manipulate contests. The global match-fixing menace is so sophisticated that it no longer requires actual teams or referees to do its bidding in some instances. So-called “ghost-fixing” or fixing of ghost games is a serious threat to the integrity of the betting market, which relies on reputation to attract customers, not unlike other financial markets.

Taylor on Majority Jury Verdicts n Australia

Greg Taylor (University of Adelaide - School of Law) has posted ‘Squizzy’ and the Cuckold: How Majority Jury Verdicts got their Australian Foothold ((2018) 45 Australian Bar Review) on SSRN. Here is the abstract:

 

Majority jury verdicts in criminal cases were introduced far earlier in South Australia than in most comparable places. A number of factors combined to produce this result: one was the South Australian Law Reform Commission of 1923–27, a body which can now be seen as ahead of its time despite the ridicule heaped upon it by Mr Justice Evatt because it was not staffed by lawyers. It uncovered and mobilised a substantial degree of support for majority verdicts among the leaders of the profession. In Victoria in the same decade there was a great deal of anxiety about jury squaring (rigging) based partly on rumours surrounding the notorious gangster ‘Squizzy’ Taylor. This spread to South Australia, and, unlike the Victorian, the South Australian legislature was in a position to take decisive action. Nevertheless, rumours of and even proof of jury squaring continued after majority verdicts were introduced.

Jiang on Wrongful Conviction Death Penalty Cases in China

Jue Jiang (New York University (NYU) - US-Asia Law Institute) has posted Legal and Political Rights Advocacy in Wrongful Conviction Death Penalty Cases in China: A Study of the Leping Case of Injustice (Columbia Journal of Asian Law, Vol. 29, Issue 2 (Spring 2016)) on SSRN. Here is the abstract:

 

The problem of wrongful conviction has become more widely acknowledged in China today. At the Third Session of the Twelfth National People's Congress held in March 2015, Zhou Qiang, chief justice of the Supreme People's Court, stated that they "feel a deep sense of self-blame for wrongful convictions." He demanded that courts at all levels "draw a profound lesson [and] improve the mechanisms for effectively preventing and correcting wrongful convictions." In the year of 2014, according to Zhou, Chinese courts had revised 1317 criminal cases, among which there were "a batch of major wrongful conviction cases"; Zhou then promised that they would "be responsible to the people and correct every single wrongful conviction case once it is found out." However, in judicial practice, for an individual to get a wrongful conviction corrected may not become any easier- drawing on a study of the Leping case of injustice, in which four defendants were convicted of rape and murder and sentenced to death for a crime they had not committed, this article discusses how the efforts of correcting it meet a deadlock in China's judicial system, and how, in this circumstance, Chinese civil society initiates and runs a network advocacy aiming at breaking the deadlock and advancing the correction.

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Jouet on Mass Incarceration Paradigm Shift?

Mugambi Jouet (McGill Faculty of Law) has posted Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

The peculiar harshness of modern American justice has led to a vigorous scholarly debate about the roots of mass incarceration and its divergence from humanitarian sentencing norms prevalent in other Western democracies. Even though the United States reached virtually world-record imprisonment levels between 1983 and 2010, the Supreme Court never found a prison term “cruel and unusual punishment” under the Eighth Amendment. By countenancing extreme punishments with no equivalent elsewhere in the West, such as life sentences for petty recidivists, the Justices’ reasoning came to exemplify the exceptional nature of American justice. Many scholars concluded that punitiveness had become its defining norm. 

Yet a quiet revolution in Eighth Amendment jurisprudence, a wave of reforms, and other social developments suggest that American penal philosophy may be inching toward norms — dignity, proportionality, legitimacy, and rehabilitation — that have checked draconian prison terms in Europe, Canada, and beyond.

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Kalmanson on Incrementalism in Death Penalty Abolition

Melanie Kalmanson has posted Steps Toward Abolishing Capital Punishment: Incrementalism in the Death Penalty in the United States on SSRN. Here is the abstract:

 

While scholars seem united on the sentiment that abolition is the ultimate resting place for capital sentencing in the United States, their arguments as to how abolition vary. Carol and Jordan Steiker argue that the systemic disarray of capital sentencing in the United States is a result of the U.S. Supreme Court’s attempt to constitutionalize capital sentencing. On the other side of the same coin, this Article contends that the constitutional jurisprudence created since 1972, when the U.S. Supreme Court reset capital sentencing in Furman v. Georgia, has gradually narrowed capital punishment as a result of the controlling “evolving standards of decency” standard, specifically as to who may be sentenced to death, how sentences of death are imposed, and how defendants are executed.

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McNamarah on Racialized Police Communication

Chan Tov McNamarah (Cornell University, Law School, Students) has posted White Caller Crime: Racialized Police Communication & Existing While Black (Michigan Journal of Race & Law, Vol. 24, (2019 Forthcoming)) on SSRN. Here is the abstract:

Over the past year, reports to the police against African Americans engaged in innocuous behaviors have bombarded the American consciousness. But what do we make of them? And, equally important, what are the consequences of such reports?

This Article is the first to argue that the recent spike in calls to the police against African Americans who are simply existing, must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices: racially-motivated police reporting — calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read as suspicious, or otherwise worthy of police involvement had they been White; and racially-weaponized police reporting — calls, complaints, or reports made against Blacks in an effort to capitalize on law enforcement mistreatment of African Americans, or harm the victim because of their race.

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Roach on Terrorist Speech

Kent Roach (University of Toronto - Faculty of Law) has posted Terrorist Speech under Bills C-51 and C-59 and the Othman Hamdan Case: The Continued Incoherence of Canada’s Approach on SSRN. Here is the abstract:

 

It is argued that the neither the approach taken to terrorist speech in Bill C-51 or Bill C-59 is satisfactory. Both offences fail to deal with the problem of calls for people to engage in unspecified generic acts of terrorism as seen in Othman Hamdan’s calls for “lone wolves” “swiftly to activate”. An extensive case study of the Othman Hamdan case is provided including the use of immigration law after his acquittal for counselling murder and other crimes. Hamdan’s acquittal for counselling murder and other offences suggests that the new Bill C-59 terrorist speech offence will likely not reach Hamdan’s internet postings. One coherent response would be to repeal terrorist speech offences while making greater use of court-ordered take downs of such speech, programs to counter violent extremism and surveillance. Another coherent response would be to criminalize the promotion and advocacy of terrorist activities subject to defences specifically designed to protect fundamental freedoms. Unfortunately, neither Bills C-51 or C-59 pursue either of these options.

Liu et al. on AI and Accountability

Han-Wei Liu, Ching-Fu Lin and Yu-Jie Chen (Monash University - Department of Business Law & Taxation, National Tsing Hua University and Institutum Iurisprudentiae, Academia Sinica) have posted Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization, and Accountability (International Journal of Law and Information Technology, Forthcoming) on SSRN. Here is the abstract:

 

Developments in data analytics, computational power, and machine learning techniques have driven all branches of the government to outsource authority to machines in performing public functions — social welfare, law enforcement, and most importantly, courts. Complex statistical algorithms and artificial intelligence (AI) tools are being used to automate decision-making and are having a significant impact on individuals’ rights and obligations. Controversies have emerged regarding the opaque nature of such schemes, the unintentional bias against and harm to underrepresented populations, and the broader legal, social, and ethical ramifications. State v. Loomis, a recent case in the United States, well demonstrates how unrestrained and unchecked outsourcing of public power to machines may undermine human rights and the rule of law. With a close examination of the case, this Article unpacks the issues of the ‘legal black box’ and the ‘technical black box’ to identify the risks posed by rampant ‘algorithmization’ of government functions to due process, equal protection, and transparency. We further assess some important governance proposals and suggest ways for improving the accountability of AI-facilitated decisions. As AI systems are commonly employed in consequential settings across jurisdictions, technologically-informed governance models are needed to locate optimal institutional designs that strike a balance between the benefits and costs of algorithmization.

Criminal law/procedure position at St. Mary's

The descriptions follows the jump.

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Fleury on Social Scientists on Crime after WWII

Jean-Baptiste Fleury (THEMA) has posted Social Scientists on Crime After World War II on SSRN. Here is the abstract:

 

This paper addresses the history of social scientific work on crime after World War II. We argue that the mid-1960s marked a turning point that profoundly transformed the way in which the public discourse, policy programs, and social scientific work addressed crime. Up to the mid-1960s, crime was not a central concern for the average American and the Federal government had a very limited role in fighting it. Within social science, sociological studies dominated the analysis of crime. The mainstream of research mixed the influence of Robert Merton’s theory of anomie with the Chicago-school ecological approach, relegating biological and psychological explanations to a backstage status. It located the origins of delinquent behavior in relative deprivation and dysfunctional neighborhoods. This broad outlook framed the way in which various social scientific notions infused the study of crime and eventually made their way to Washington, making the idea of relative deprivation central to Lyndon Johnson’s War on Poverty.

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Garrett on Wealth, Equal Protection, and Due Process

Brandon L. Garrett (Duke University School of Law) has posted Wealth, Equal Protection, and Due Process on SSRN. Here is the abstract:

 

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the equal protection and due process clauses. That intersection — between equality and due process — deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia explained that “[d]ue process and equal protection principles converge in the Court’s analysis” of cases in which criminal defendants are treated differently by wealth. That equal process connection is at the forefront of a wave of national litigation concerning some of the most pressing civil rights issues of our time, including: the constitutionality of fines, fees, and costs; detention of immigrants and criminal defendants for inability to pay cash bail; loss of voting rights; and a host of other ways in which the indigent face both unfair process and disparate burdens. I argue that an intersectional “equal process” approach to these cases better reflects both longstanding constitutional doctrine and the practical stakes in such litigation. If courts properly understand this connection between inequality and unfair process, they will design more suitable and effective remedies. More broadly, scholars have bemoaned how the Court turned away from class-based heightened scrutiny in Equal Protection doctrine. Equal process theory has the potential to reinvigorate the Fourteenth Amendment as a guardian against unfair process and discrimination that increases inequality in society.

Kalmanson on The Demographics of Florida's Death Penalty

Melanie Kalmanson has posted The Demographics of Florida's Death Penalty on SSRN. Here is the abstract:

Florida, a long-time leader in capital punishment in the United States, is home to one of the largest death row populations in the country. Thus, understanding Florida’s capital sentencing—both before and after the recent paradigm shift with the U.S. Supreme Court’s decision in Hurst v. Florida — is important in understanding capital punishment nationwide. This Article reviews the demographics of Florida's death row population — race, age, gender, etc. — as well as the proportionality by which defendants are sentenced to death and ultimately executed. Further, in light of recent jurisprudential developments regarding the constitutionality of Florida's death penalty, namely the U.S. Supreme Court’s decision in Hurst v. Florida and the Supreme Court of Florida’s decision on remand in Hurst, this Article examines Florida's death row population under the Hurst-related framework — including the distribution of jury votes recommending death before Hurst required a unanimous jury verdict.

Steinberg on DC Parole Practice

Jessica Steinberg (George Washington University - Law School) has posted Parole Practice Manual for the District of Columbia on SSRN. Here is the abstract:

 

Authored by Professors Jessica Steinberg and Katy Ramsey, the Parole Practice Manual for the District of Columbia is the first and only comprehensive primer on parole practice for D.C. residents. The manual is intended to assist incarcerated individuals in securing their freedom and is available to download for free. Questions regarding the Manual should be directed to Jessica Steinberg, Associate Professor of Clinical Law and Director of GW's Prisoner & Reentry Clinic.

Slobogin on Limiting Retributivism and Individual Prevention

Christopher Slobogin (Vanderbilt University - Law School) has posted Limiting Retributivism and Individual Prevention on SSRN. Here is the abstract:

 

Limiting retributivism, also known as modified desert theory, is a “mixed theory” of punishment that posits that retributive principles should set the outer bounds of a sentence, while the precise nature and duration of disposition should be designed to implement one or more independent criminal justice system goals. This chapter focuses on a particular version of limiting retributivism, which it calls “preventive justice.” A preventive justice regime adopts sentence ranges consistent with the offender’s desert and then relies on expert parole boards to determine the nature and duration of sentence within this range based on consideration of individual prevention goals (i.e., incapacitation, specific deterrence and rehabilitation). The analysis of this chapter suggests that a system of relatively wide sentence ranges derived from retributive principles, in combination with short minimum sentences that are enhanced under limited circumstances by statistically-driven risk assessment and management, can alleviate many of the inherent tensions between desert and prevention, between deontology and political reality, and between the desire for community input and the allure of expertise. If done properly, it should also significantly reduce prison populations.

Maclin on Byrd v. US

Tracey Maclin (Boston University - School of Law) has posted Byrd v United States: Unauthorized Drivers of Rental Cars Have Fourth Amendment Rights? Not as Evident as it Seems on SSRN. Here is the abstract:

 

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment opinion for a majority of the Court, authored an opinion in favor of a criminal defendant. In Byrd v United States a unanimous Court rejected the government’s argument that unauthorized drivers always lack an expectation of privacy in a rental car and thus can never challenge a police search of the car. Byrd was driving a rental car in violation of the rental agreement but with the permission of the renter; the police searched the trunk of the car, allegedly without consent or probable cause, and found heroin and body armor. The Court in Byrd held that the search was unlawful because “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.”

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Cassell & Marsh on Restitution for Child Porn Victims

Paul G. Cassell and James R. Marsh (University of Utah - S.J. Quinney College of Law and Marsh Law Firm PLLC) have posted The New Amy, Vicky, and Andy Act: A Positive Step Towards Full Restitution for Child Pornography Victims (Federal Sentencing Reporter, Feb. 2019, Vol. 31, Issue 3, Forthcoming) on SSRN. Here is the abstract:

 

Providing restitution to victims of child pornography crimes has proven to be a challenge for courts across the country. Child pornography is often widely disseminated to countless thousands of criminals who have a prurient interest in such materials. While the victims of child pornography crimes often have significant financial losses from the crimes (such as the need for long term psychological counseling), allocating a victim’s losses to any particular criminal defendant is problematic.

Five years ago, the Supreme Court gave its answer on how to resolve this issue with its ruling in Paroline v. United States. Interpreting a restitution statute enacted by Congress, the Court concluded that in a child pornography prosecution, a restitution award from a particular defendant is only appropriate to the extent that it reflects “the defendant’s relative role in the causal process that underlies the victim’s general losses.”

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Crime Follies: Overcriminalization, Independent Prosecutors, and the Rule of Law Glenn Harlan Reynolds University of Tennessee College of Law Date Posted: 20 Dec 2018	1,386
2.	Legal Personhood and Liability for Flawed Corporate Cultures Jennifer G. Hill The University of Sydney Law School Date Posted: 03 Jan 2019 [3rd last week]	145
3.	Mens Rea Reform and Its Discontents Benjamin Levin University of Colorado Law School Date Posted: 15 Jan 2019 [new to top ten]	100
4.	Prosecution and Punishment of Corporate Criminality Mihailis Diamantis and William S. Laufer University of Iowa - College of Law and University of Pennsylvania - Legal Studies Department Date Posted: 20 Dec 2018 [7th last week]	68
5.	Efficient Institutions and Effective Deterrence: On Timing and Uncertainty of Punishment Johannes Buckenmaier, Eugen Dimant, Ann-Christin Posten and Ulrich Schmidt University of Zurich - Department of Economics, University of Pennsylvania, Behavioral Ethics Lab, Harvard University - Edmond J. Safra Center for Ethics and University of Kiel - Institute of Economics Date Posted: 31 Dec 2018 [2nd last week]	66
6.	Reinvigorating Criminal Antitrust? D. Daniel Sokol University of Florida Levin College of Law Date Posted: 27 Dec 2018 [5th last week]	57
7.	Knowledge and Belief as Criminal Law Mental States Kevin Cole University of San Diego School of Law Date Posted: 26 Nov 2018 [6th last week]	55
8.	Criminal Law and the Constitution of Civil Order R. A. Duff University of Stirling - Department of Philosophy Date Posted: 27 Nov 2018 [4th last week]	55
9.	High Crimes Without Law Nikolas Bowie Harvard Law School Date Posted: 02 Jan 2019 [10th last week]	47
10.	Missed or Foregone Mitigation: Analyzing Claimed Error in Missouri Capital Clemency Cases Leona Deborah Jochnowitz Curry College Date Posted: 04 Aug 2010 [9th last week]	44

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Implementing Carpenter Orin S. Kerr University of Southern California Gould School of Law Date Posted: 18 Dec 2018
2.	The Uncertain Future of Forensic Science Jennifer Mnookin University of California, Los Angeles (UCLA) - School of Law Date Posted: 13 Dec 2018	349
3.	The Paradoxes of Legal Proof: A Critical Guide Michael S. Pardo University of Alabama School of Law Date Posted: 11 Dec 2018 [5th last week]	142
4.	Fourth Amendment Reasonableness After Carpenter Alan Z. Rozenshtein University of Minnesota Law School Date Posted: 04 Jan 2019 [6th last week]
5.	Fourth Amendment Textualism Jeffrey Bellin William & Mary Law School Date Posted: 13 Jan 2019 [7th last week]	123
6.	Wealth-Based Penal Disenfranchisement Beth A. Colgan University of California, Los Angeles (UCLA) - School of Law Date Posted: 09 Jan 2019 [new to top ten]	73
7.	An Unappreciated Constraint on the President's Pardon Power Aaron J. Rappaport University of California Hastings College of the Law Date Posted: 03 Dec 2018 [9th last week]	67
8.	Where Have All the Innocents Gone? George Thomas Rutgers University, New Brunswick Date Posted: 26 Nov 2018	66
9.	A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause Ronald J. Coleman and Paul F. Rothstein Georgetown University Law Center and Georgetown University Law Center Date Posted: 31 Dec 2018 [new to top ten]	59
10.	Equitable Gateways: Toward Expanded Federal Habeas Corpus Review of State Court Criminal Convictions Eve Brensike Primus University of Michigan Law School Date Posted: 11 Dec 2018	57

Mungan on Positive Sanctions versus Imprisonment

Murat C. Mungan (George Mason University - Antonin Scalia Law School, Faculty) has posted Positive Sanctions versus Imprisonment on SSRN. Here is the abstract:

 

This article considers the possibility of simultaneously reducing crime, prison sentences, and the tax burden of …financing the criminal justice system by introducing positive sanctions, which are benefits conferred to individuals who refrain from committing crime. Specifically, it proposes a procedure wherein a part of the imprisonment budget is re-directed towards financing positive sanctions. The feasibility of reducing crime, sentences, and taxes through such reallocations depends on how effectively the marginal imprisonment sentence reduces crime, the crime rate, the effectiveness of positive sanctions, and how accurately the government can direct positive sanctions towards individuals who are most responsive to such policies. The article then highlights an advantage of positive sanctions over imprisonment in deterring criminal behavior: positive sanctions operate by transferring or creating wealth, whereas imprisonment operates by destroying wealth. Thus, the conditions under which positive sanctions are optimal are broader than those under which they can be used to jointly reduce crime, sentences, and taxes. The analysis reveals that when the budget for the criminal justice system is exogenously given, it is optimal to use positive sanctions when the imprisonment elasticity of deterrence is small, which is a condition that is consistent with the empirical literature. When the budget for the criminal justice system is endogenously determined, it is optimal to use positive sanctions as long as the marginal cost of public funds is not high.

Zlati on Self-Incrimination and Cryptography

George Zlati (Facultatea de Drept, Universitatea Babe?-Bolyai) has posted The Privilege Against Self-Incrimination and Cryptography on SSRN. Here is the abstract:

 

In this article the author has analysed the relationship between the privilege against self incrimination and data encryption. Given the complexity of the subject in question, the author tried an in-depth analysis, using as starting point the European Court of Human Rights case law regarding self-incrimination. 

Taken into consideration the reasoning drawn from the various cases brought before the European Court of Human Rights, the author tried to settle the issue regarding the scope of the privilege by reference to different situations such as: compelling a person to hand over the decryption key or to decrypt the information by himself and then to hand over the content in a readable format.

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