CrimProf Blog

Perino on Insider Trading Enforcement

Michael Perino (St. John's University - School of Law) have posted Real Insider Trading on SSRN. Here is the abstract:

 

Government officials and academics offer starkly different portraits of insider trading enforcement. In popular rhetoric, insider trading cases are about leveling the playing field between elite market participants and ordinary investors. Academic critiques vary. Some depict an untethered insider trading doctrine that enforcers use to expand their power and enhance their discretion. Others see enforcers beset with agency cost problems who bring predominantly simple, easily resolved cases to create the veneer of vigorous enforcement. Unfortunately, this debate has, so far, been based mostly on anecdote and conjecture rather than empirical evidence. This article addresses that gap by collecting extensive data on 465 individual defendants in civil, criminal, and administrative actions to assess how enforcers actually operationalize insider trading doctrine. The cases enforcement authorities bring are shaped by a complex and cross-cutting set of institutional and individual incentives, cognitive biases, legal requirements, the history of failed enforcement efforts, and the way in which the agency and the self-regulatory organizations deploy their investigatory resources. SEC enforcement is dominated by small stakes, opportunistic trading by mid-level employees and their friends and family, most often involving M&A transactions. Those cases settle quickly, half within 30 days of filing. Criminal enforcement is generally reserved for more serious cases, measured by, among other things, the type of defendant, the size of the insider trading network, and the profits earned. In both settings, there is little evidence that enforcers are systematically stretching the boundaries of insider trading doctrine, suggesting that there is little need for more precise statutory language to curb enforcement overreach.

Allen & Pardo on Relative Plausibility

Ronald J. Allen and Michael S. Pardo (Northwestern University Law School and University of Alabama School of Law) have posted Clarifying Relative Plausibility: A Rejoinder on SSRN. Here is the abstract:

 

This rejoinder replies to twenty commentaries on our article, "Relative Plausibility and Its Critics" (available at: https://ssrn.com/abstract=3179601.)

Our response has four objectives: 

(1) presenting further details regarding relative plausibility and the scope of our project in order to address some of our critics' claims of ambiguity; 

(2) examining some important methodological considerations; 

(3) clarifying the significance of the conjunction problem and its role in the "probability debates"; and 

(4) noting avenues for future research.

"Inmates are demanding new sentences under California's revised felony-murder law"

From the San Diego Union Tribune:

Last year, as one of the final and potentially far-reaching pieces in a wave of criminal justice reform measures under former Gov. Jerry Brown, a new law changed the definition of felony murder so that accomplices who were not the actual killers would no longer face a murder charge.

The law was retroactive — meaning hundreds of inmates could have a chance to ask that they be re-sentenced, without the murder charge.

. . .

San Diego prosecutors argue that the law is unconstitutional because it changed elements of two voter approved initiatives — Proposition 7 in 1978 and Proposition 115 in 1998. They argue the Legislature does not have the authority to change initiatives without first getting voter approval.

. . .

So far, courts around the state have been split. A judge in Santa Clara County sided with prosecutors, while two judges in Solano County said the law was constitutional.

"Haymond seemingly to become major Apprendi progeny altering federal supervised release revocations"

Doug Berman has this post at Sentencing Law & Policy, focusing on the oral argument in United States v. Haymond. In part:

I am not surprised, but I am still pleased, to learn that there may now be eight Justices prepared to extended Apprendi/Blakelyrights to supervised release revocation. Now we wiat to see just how big the ultimate opinion will be (and how loudly Justice Alito will complain about more procedural rights for criminal defendants).

Ghosh & Rockey on The Political Economy of Felon Disenfranchisement

Arpita Ghosh and James Rockey (University of Leicester and University of Leicester) have posted On the Political Economy of Felon Disenfranchisement on SSRN. Here is the abstract:

 

Nearly 6.1 million U.S. citizens are politically disenfranchised because of a prior felony conviction, and these citizens tend disproportionately to be black. Specifically, more than 7.4% of the adult African-American population is disenfranchised compared to 1.8% of other Americans. This paper investigates the political consequences of this large racial disparity in disenfranchisement rates. To obtain the first causal estimates of the effects of felon disenfranchisement (FD), we build a new database that catalogs the annual state changes in disenfranchisement law. We show that these changes are driven by lengthy, uncertain, and complicated court cases which are outside of the control of individual state legislatures. We use a difference in difference strategy to analyze the impact of these changes in felon disenfranchisement laws. Our results suggest that FD legislation is associated with a 3 percentage point reduction in the likelihood of voting, allowing for a range of race-specific effects of demographic and geographic characteristics. This number is larger than would be implied purely by the mechanical effect due to the change in the number of eligible voters suggesting that FD also reduces turnout amongst those eligible to vote. Next, we show that relaxations in FD laws increase the number of Black U.S. Representatives. Finally, we show that relaxations also lead to an increase in state policy liberalism.

Hope on Social Science and Crime Prevention Policy Making

Tim Hope (Open University, UK) has posted an abstract of Social Science and the Governance of Crime: Crime Prevention Policy Making During the 1980s (Journal of Law and Society, Vol. 46, Issue 1, pp. 141-168, 2019) on SSRN. Here is the abstract:

 

As with much else in Britain, the 1980s marked a watershed in the politics of crime control. This article traces the role of criminological research, developed and articulated by governmental social scientists, in the evolution of penal policy around the (then) innovative idea of engaging the community in the prevention of crime. Its central theme is that although the raison d'être for crime prevention policy and practice, then as now, can be found in a concern about the deficiencies of the statutory police in addressing crime, shifting the locus of social control towards the institutions of civil society was, and remains, a contested project.

"The Crime Victims Rights Act and the Epstein Case"

Kent Scheidegger has this post at Crime & Consequences. In part:

The Crime Victims Rights Act, 18 U.S.C. § 3771, is a routinely violated law. It confers rights on victims in federal criminal cases and in federal habeas corpus cases challenging state convictions, but victims rarely have their own attorneys in these matters, so there is generally no one to speak up for the victims in cases where the prosecutor chooses not to.

 

A particularly egregious violation occurred in the case of Florida's billionaire serial sex offender Jeffrey Epstein. The U.S. Attorney reached an agreement not to prosecute Epstein and leave him to state prosecution. That might not be so bad in itself, as the crimes are primarily of the type that should be prosecuted in state court. The "dual sovereignty" doctrine permits prosecution by both sovereigns for the same act, but it should be used sparingly. In this case, though, the feds let him off merely for reaching a state plea deal with a shockingly low sentence. Jacob Gershman reports for the WSJ.

"Should drug dealers be charged with murder? States ponder"

From AP, via the NACDL news scan:

Lawmakers in Connecticut, Hawaii, Mississippi and Virginia have proposed murder and manslaughter charges for overdoses this year. Several states passed such laws over the past two years, while others have taken to charging drug deaths under murder and manslaughter statutes that don’t specifically mention overdoses.

Twenty states now have so-called “drug-induced homicide” laws that carry the same sentences as murder and manslaughter, according to the Drug Policy Alliance, a nonprofit drug policy organization based in New York.

Berk on Juvenile Justice Risk Assessments

Richard Berk (University of Pennsylvania) has posted an abstract of Accuracy and Fairness for Juvenile Justice Risk Assessments (Journal of Empirical Legal Studies, Vol. 16, Issue 1, pp. 175-194, 2019). Here is the abstract:

 

Risk assessment algorithms used in criminal justice settings are often said to introduce “bias.” But such charges can conflate an algorithm's performance with bias in the data used to train the algorithm with bias in the actions undertaken with an algorithm's output. In this article, algorithms themselves are the focus. Tradeoffs between different kinds of fairness and between fairness and accuracy are illustrated using an algorithmic application to juvenile justice data. Given potential bias in training data, can risk assessment algorithms improve fairness and, if so, with what consequences for accuracy? Although statisticians and computer scientists can document the tradeoffs, they cannot provide technical solutions that satisfy all fairness and accuracy objectives. In the end, it falls to stakeholders to do the required balancing using legal and legislative procedures, just as it always has.

Finholt et al. on Juvenile LWOP in North Carolina

Ben Finholt, Brandon L. Garrett, Karima Modjadidi and Kristen Renberg (NC Prisoner Legal Services, Duke University School of Law, Duke University School of Law and Duke University School of Law) have posted Juvenile Life Without Parole in North Carolina on SSRN. Here is the abstract:

 

Life without parole is “an especially harsh punishment for a juvenile,” and as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole sentences. Many of these individuals were sentenced during a surge in LWOP sentences in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, juvenile LWOP sentencing has declined. This Article aims to empirically assess the rise and then the fall in juvenile LWOP sentencing in a leading sentencing state, North Carolina, to better understand these trends and their implications. We examine the cases of 94 people in North Carolina who were sentenced to LWOP as juveniles. Their ages at the time of the offense ranged from 13 to 17. Of those, 51 are currently serving LWOP sentences (one more is currently pending a new trial). These cases are detailed in the Appendix. In North Carolina, JLWOP sentencing has markedly declined.

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"FBI Scientist’s Statements Linked Defendants to Crimes, Even When His Lab Results Didn’t"

From ProPublica, via the NACDL news scan:

In his report, Vorder Bruegge wrote that John Henry Stroman and the robber had similar “overall shape of the face, nose, mouth, chin, and ears.” But Vorder Bruegge stopped short of declaring a match, saying the video and pictures were too low resolution for that.

Nevertheless, prosecutors said in court filings that if Vorder Bruegge took the stand, he would testify that “the photograph is of sufficient resolution to definitively state that the robber is John Henry Stroman.” The judge said the testimony would be admitted if the case went to trial. A week later, Stroman accepted a plea deal.

It wasn’t the first time, nor the last, Vorder Bruegge’s lab results said one thing and the courts were told something different. Court records and FBI Lab files show statements by prosecutors or Vorder Bruegge veered from his original conclusions in at least three cases.

"China Uses DNA to Track Its People, With the Help of American Expertise"

From The New York Times. In part:

Collecting genetic material is a key part of China’s campaign, according to human rights groups and Uighur activists. They say a comprehensive DNA database could be used to chase down any Uighurs who resist conforming to the campaign.

Police forces in the United States and elsewhere use genetic material from family members to find suspects and solve crimes. Chinese officials, who are building a broad nationwide database of DNA samples, have cited the crime-fighting benefits of China’s own genetic studies.

Bandes et al. on Terry Stops

Susan A. Bandes, Marie Pryor, Erin Kerrison and Phillip Goff (DePaul University - College of Law, City University of New York - Center for Policing Equity, University of California, Berkeley and UCLA Department of Psychology) have posted The Mismeasure of Terry Stops: Assessing the Psychological and Emotional Harms of Stop and Frisk to Individuals and Communities (37 Behavioral Sciences & the Law Issue 2 (2019)) on SSRN. Here is the abstract:

 

In Terry v. Ohio, the U.S. Supreme Court relied on a balancing test to uphold the reasonableness of the practice known as “stop and frisk,” balancing the contribution of the practice to effective crime prevention and detection against the nature and quality of the intrusion to individual rights. In recent years, statistics have been powerfully deployed by legal scholars, jurists, and policymakers to challenge the assumption that stop and frisk leads to frequent discovery of contraband or other criminal behavior, and to address stark racial and ethnic disparities in the deployment of stop and frisk. But the other side of the Terry equation — the nature and quality of the intrusion — has received far less attention from the legal community. With few exceptions, Terry jurisprudence portrays the Terry frisk simply as a brief pat-down of the outer clothing and treats each Terry stop as an isolated encounter for purposes of measuring the harm involved. Yet there is a robust social science literature on the effects of stop and frisk on individuals, including data on its effects on individuals from marginalized or vulnerable groups, on individuals over time, and on communities as a whole.

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Gunsberg on AI and Responsibility

Patrick Günsberg (Uppsala University - Faculty of Law) has posted Some Thoughts on Artificial Intelligence (AI) Systems and Responsibility on SSRN. Here is the abstract:

 

With the growing autonomy of AI systems, one is left asking who should be held accountable when such systems go wrong. Autonomous weapons could, for example, engage in activity that makes one think of war crimes while pricing algorithms could be detrimental to consumers. When considering the responsibility of individuals and firms for such activity one would do well to bear in mind that humans create algorithms and determine how algorithms are used. It appears that one should not rule out the possibility of holding programmers accountable for the actions that AI systems take. Nevertheless, there seems to be definite appeal to the suggestion that users should be responsible for the actions of AI systems. Yet the arguable difficulty of demonstrating the causal chain of events may speak in favor of introducing strict liability – compensating injured individuals seems important even if a causal link cannot be established.

Robbins on Conflicts of Interest Between Death Investigators and Prosecutors

Ira P. Robbins (American University - Washington College of Law) has posted A Deadly Pair: Conflicts of Interest Between Death Investigators and Prosecutors on SSRN. Here is the abstract:

 

As an inevitable fact of life, death is a mysterious specter looming over us as we move through the world. It consumes our literature, religions, and social dialogues — the death of a prominent figure can change policies and perceptions about our approaches to many problems. Given death’s significance, it is reasonable to try to understand causes of death generally, as well as on a case-by-case basis. While scholars and mourners attempt to answer the philosophical questions about death, the practical and technical questions are typically answered by death investigators. Death investigators attempt to decipher the circumstances surrounding suspicious and unexplained deaths to provide solace to family members and information to law enforcement services to help them determine whether further investigative steps are necessary. But while the answers provided by death investigators may provide some direction, in many ways the death investigation system actually inhibits the pursuit of justice.

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Eisenberg on Expert Evidence in British Courts

Paul Eisenberg (University of Derby) has posted The New Criteria for Expert Evidence in British Courts - Case Law, Statutory Rules and a Negligence Case Study (PEOPLE: International Journal of Social Sciences, 4 (3), pp. 458-473, 2018) on SSRN. Here is the abstract:

 

This work aims to analyse the legislation proposed by The Law Commission in Great Britain in order to establish statutory criteria for expert evidence in court. The proposal is assessed against the amendment of the Criminal Procedure Rules (CPR) initiated by The Government. From this comparison implications for expert witnesses are derived. For illustrative purposes, the case study of fictitious divorce proceedings of Peter Morgan is dealt with. The study shows legal remedies available to a party against its expert witness in negligence cases. Methodologically, expert evidence admissibility criteria are discussed on the background of common law rules and the Criminal Procedure Rules (2015). Legal academic literature is consulted to enrich the argument. The findings show that the Criminal Procedure Rules (2015) are rooted in settled case law, albeit stressing expertise enhancement and professional qualifications. The discussion of the Peter Morgan case study provides for a legal route for negligence claims based on the case law of Jones v Kaney. The originality of this work is based upon a thorough analysis of case law and legal writings, with the focus on newly introduced Criminal Procedure Rules and recent landmark cases.

Maliszewska-Nienartowicz on EU Counterrorism Policy

Justyna Maliszewska-Nienartowicz (Nicolaus Copernicus University - Faculty of Law and Administration) has posted A New Chapter in the EU Counterterrorism Policy? The Main Changes Introduced by the Directive 2017/541 on Combating Terrorism (Polish Yearbook of International Law, Vol. 37 (2017), pp. 185-201) on SSRN. Here is the abstract:

 

Taking into account that terrorism has grown in recent years, the EU institutions decided to update the legal framework which provides for fighting this phenomenon. Consequently, the Council Framework Decision 2002/475/JHA was replaced by the EU Directive 2017/541 of the European Parliament and of the Council on combating terrorism, which should be implemented by the Member States by 8 September 2018.

This new act contains a long list of terrorist offences, offences related to a terrorist group, and offences related to terrorist activities. It also stipulates penal sanctions for terrorist offences and provides measures of protection, support and assistance for terrorism victims. This article is a commentary on these groups of provisions and compares them to the previously binding ones. Thus, it indicates the legal changes introduced by the Directive which have to be taken into account by the Member States while implementing it. The comparison of these new provisions with the previously binding ones is also helpful in answering the question posed in the title: Can the Directive 2017/541 be treated as a new chapter in combating terrorism by the European Union?

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	1,537
2.	Legal Personhood and Liability for Flawed Corporate Cultures Jennifer G. Hill The University of Sydney Law School Date Posted: 03 Jan 2019	199
3.	Mens Rea Reform and Its Discontents Benjamin Levin University of Colorado Law School Date Posted: 15 Jan 2019	153
4.	Consent and Coercion Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 31 Jan 2019	125
5.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019 [new to top ten]	94
6.	Reinvigorating Criminal Antitrust? D. Daniel Sokol University of Florida Levin College of Law Date Posted: 27 Dec 2018	72
7.	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	70
8.	Inheritance Forgery Reid K. Weisbord and David Horton Rutgers Law School and University of California, Davis - School of Law Date Posted: 08 Feb 2019 [new to top ten]	67
9.	Mass Incarceration Paradigm Shift?: Convergence in an Age of Divergence Mugambi Jouet McGill Faculty of Law Date Posted: 22 Jan 2019 [8th last week]	66
10.	Not Guilty by Reason of CTE: The Imminent Rise of Football's Foil as a Criminal Defense Russell Spivak WilmerHale Date Posted: 07 Jan 2019 [9th last week]	63

Next week's criminal law/procedure arguments

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

Tuesday

• Mont v. U.S.: Whether a period of supervised release for one offense is tolled under 18 U.S.C. § 3624(e) during a period of pretrial confinement that upon conviction is credited toward a defendant’s term of imprisonment for another offense.
• U.S. v. Haymond: Whether the U.S. Court of Appeals for the 10th Circuit erred in holding “unconstitutional and unenforceable” the portions of 18 U.S.C. § 3583(k) that required the district court to revoke the respondent’s 10-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that the respondent violated the conditions of his release by knowingly possessing child pornography.

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	716
2.	Feigned Consensus: Usurping the Law in Shaken Baby Syndrome/Abusive Head Trauma Prosecutions Keith A. Findley, D. Michael Risinger, Patrick D. Barnes, MD, Julie Mack, David A. Moran, Barry Scheck and Thomas Bohan University of Wisconsin Law School, Seton Hall University School of Law, Stanford University - Pediatric Radiology and Neuroradiology, Pennsylvania State University - Penn State Hershey Medical Center, University of Michigan Law School, Professor of Law, Cardozo Law School, Co-Director, Innocence Project and American Academy of Forensic Sciences Date Posted: 05 Feb 2019	363
3.	Fourth Amendment Reasonableness After Carpenter Alan Z. Rozenshtein University of Minnesota Law School Date Posted: 04 Jan 2019	202
4.	Fourth Amendment Textualism Jeffrey Bellin William & Mary Law School Date Posted: 13 Jan 2019	150
5.	Why Robert Mueller’s Appointment As Special Counsel Was Unlawful Steven G. Calabresi and Gary Lawson Northwestern University - Pritzker School of Law and Boston University School of Law Date Posted: 31 Jan 2019	120
6.	Wealth-Based Penal Disenfranchisement Beth A. Colgan University of California, Los Angeles (UCLA) - School of Law Date Posted: 09 Jan 2019	97
7.	Criminalizing the Victim: Ending Prosecution of Human Trafficking Victims Jessica Aycock Texas Tech University School of Law Date Posted: 14 Feb 2019 [new to top ten]	93
8.	Wealth, Equal Protection, and Due Process Brandon L. Garrett Duke University School of Law Date Posted: 19 Jan 2019 [7th last week]	78
9.	Beyond State v. Loomis: Artificial Intelligence, Government Algorithmization, and Accountability Han-Wei Liu, Ching-Fu Lin and Yu-Jie Chen Monash University, National Tsing Hua University and Institutum Iurisprudentiae, Academia Sinica Date Posted: 20 Jan 2019 [10th last week]	78
10.	Is Police Behavior Getting Worse? The Importance of Data Selection in Evaluating the Police Aurelie Ouss and John Rappaport University of Pennsylvania and University of Chicago - Law School Date Posted: 31 Jan 2019 [9th last week]	77