CrimProf Blog

Pope on Mass Incarceration, Convict Leasing, and the Thirteenth Amendment

James Gray Pope (Rutgers Law School) has posted Mass Incarceration, Convict Leasing, and the Thirteenth Amendment: A Revisionist View (94 N.Y.U. L. Rev. No. 6 (Dec. 2019)) on SSRN. Here is the abstract:

 

Judging from present-day legal and popular discourse, one might think that the Punishment Clause of the Thirteenth Amendment has always had one single, clear meaning: that a criminal conviction strips the offender of protection against slavery or involuntary servitude. Upon examination, however, it appears that the Amendment’s Republican framers took an entirely different view. It was the former slave masters and their Democratic allies in Congress who promoted the interpretation that prevails today. From their point of view, the text clearly specified that, once convicted of a crime, a person could be sold into slavery for life or leased for a term at the discretion of state legislatures and officials. But contemporary Republicans emphatically rejected that reading. They held that a convicted person retained protection against any servitude that had not truly been inflicted as a punishment for crime.

Continue reading

Peay on Legal Malingering

Jill Peay (London School of Economics - Law Department) has posted Legal Malingering: A Vortex of Uncertainty on SSRN. Here is the abstract:

 

The assertion that an alleged offender is either pretending to be mentally disordered or exaggerating the extent of their disorder is an under-examined subject. This is curious since, if successful, the individual can avoid punishment altogether or mitigate its impact where greater state intervention would otherwise be justified. This paper explores the potential for such legal malingering and examines some cases where it may have occurred, but concludes that the fear of legal malingering may be more powerful than the reality of its occurrence.

It also observes, paradoxically, that the legal system is more at fault in failing to spot those whose impaired capacities should protect them from the full rigour of the criminal law; and that mental disorder is most likely overestimated as a cause of offending, but undervalued as a mitigating factor. The implications for issues of trust between the courts, clinical professionals, the public and the media are multi-faceted, and problematic. In this context, the paper serves largely to ask a series of questions about the implications of these issues; and the complex interplay between criminal capacity, legal responsibility, and criminal culpability.

Dinerstein & Wakschlag on the ADA and Mass Incarceration

Robert Dinerstein and Shira Wakschlag (American University, Washington College of Law and The Arc) have posted Using the ADA's 'Integration Mandate' to Disrupt Mass Incarceration (96 Denver Law Review 917 (2019 Forthcoming)) on SSRN. Here is the abstract:

 

As a result of the disability rights movement's fight for the development of community-based services, the percentage of people with intellectual and developmental disabilities (I/DD) and mental illness living in institutions has significantly decreased over the last few decades. However, in part because of government failure to invest properly in community-based services required for a successful transition from institutions, individuals with disabilities are now dramatically overrepresented in jails and prisons. The Americans with Disabilities Act's (ADA) "integration mandate" -- a principle strengthened by the Supreme Court's 1999 Olmstead v. L.C. decision, entitling individuals with disabilities to receive services in the most integrated setting appropriate to their needs -- may provide one avenue to disrupt the school-to-prison pipeline and overrepresentation of people with I/DD and mental illness in prisons and jails. In this Article, we explore how the federal government and private parties have used--and are beginning to use in new ways -- the integration mandate to advocate for the rights of individuals with disabilities to receive the supports they need to thrive in the community and avoid unnecessary entanglement with the criminal justice system.

VanLandingham on Military Due Process

Rachel VanLandingham (Southwestern Law School) has posted Military Due Process: Less Military & More Process (Tulane Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Long recognized as forestalling arbitrary and capricious government action, Fifth Amendment due process requires different procedures in different contexts, given the shape-shifting nature of caprice. It stands to reason that the process due in the U.S. military’s criminal justice system is different than that in analogous civilian jurisdictions – it must protect against the military’s essentially coercive nature. Military due process demands safeguards against the armed forces’ command-driven hierarchy, one that gives specific individuals vast power over others’ lives. Such command power, coupled with inculcated obedience, helps win wars. It also exposes the military justice system to unique obstruction of justice dynamics when such power is tied to attempts to achieve particular results in military prosecutions.

Continue reading

Egwea on Policing Modern Slavery

Robert Egwea (University of Northumbria at Newcastle - Department of Social Sciences) has posted Post-Brexit Challenges in Policing Modern Slavery in the United Kingdom on SSRN. Here is the abstract:

 

Modern slavery is a complex and notorious form of transnational organised crime (TOC). Its elusive nature, a characteristic of most cross-border crimes such as drug trafficking and cybercrime, makes fighting it quite challenging; policing it requires a dynamic, proactive, contemporary, multi-agency and multi-national approach. Although the police play a vital role in maintaining law and order in the United Kingdom (UK), they are still under-resourced in some areas, and this compounds the already daunting task of cross-border security and law enforcement. More so, modern slavery has not yet been fully understood by various law enforcement agencies and is therefore not being adequately addressed in spite of the apparent determination of the UK government to combat it as evidenced by the introduction of Modern Slavery Act 2015.

Continue reading

Kadens on The Dark Side of Reputation

Emily Kadens (Northwestern University School of Law) has posted The Dark Side of Reputation (Cardozo Law Review, Vol. 40, No. 5, 2019) on SSRN. Here is the abstract:

 

Reputation is the foundation of theories of private ordering. These theories contend that commercial actors will act honestly because if they do not, they will get a bad reputation and others will not want to do business with them in the future. But economists and scholars of networks increasingly realize that reputation has its defects. Mixed in with trustworthy and useful reputation information on which commerce of all sorts relies is inaccurate, distorted, misguided, or outright fraudulent information. Much of the existing literature about reputation’s flaws focuses on unintentional distortions caused by biases, the requirements of social niceties, and the dearth of fully representative information. This Article, by contrast, approaches the problem of the distortion of reputation from the dark side. It uses a rich set of sixteenth- and seventeenth-century English court cases and merchant correspondence to examine how the deliberate manipulation of reputation, and, importantly, people’s failure to verify the gossip and rumors creating such reputation, enabled fraud.

Continue reading

Chalfin et al. on The Law of Crime Concentration

Aaron Chalfin, Jacob Kaplan and Maria Cuellar (University of Pennsylvania - Department of Criminology, University of Pennsylvania - Department of Criminology and University of Pennsylvania) have posted Re-Examining the Law of Crime Concentration: Between-and Within-City Evidence on SSRN. Here is the abstract:

 

In his 2014 Sutherland address to the American Society of Criminology, David Weisburd demonstrated empirically that the share of crime that is accounted for by the most crime-ridden street segments is notably high and strikingly similar across cities, an empirical regularity that Weisburd refers to as the “law of crime concentration.” We build upon recent work in this area that points out that the concentration of a large share of crime amongst a small number of street segments can, in some cases, be a mechanical artifact of the degree of crime density in a city rather than the signature of an empirical law. Using data from three of the largest cities in the United States, we identify crime concentration by comparing observed crime concentration to a counterfactual distribution of crimes generated by randomizing crimes to street segments. We show that this method avoids a key pitfall that causes existing methods of measuring crime concentration to overstate the degree of crime concentration in a city. Most (but not all) crimes are, in fact, concentrated amongst a small number of hot spots but the precise relationship is weaker — sometimes considerably so — than has been documented in the empirical literature. We further show that, within a city, crime is least concentrated in the neighborhoods that experience the largest number of crimes. Accordingly, the law of crime concentration sometimes holds only tenuously in the communities in which crimes are most prevalent. We conclude that Weisburd’s original intuition remains largely intact though the law of crime concentration requires some qualification.

Rathod on Criminalization and the Politics of Migration in Brazil

Jayesh Rathod (American University - Washington College of Law) has posted Criminalization and the Politics of Migration in Brazil (Ohio State Journal of Criminal Law, Vol. 16, No. 1, 2018) on SSRN. Here is the abstract:

 

In May 2017, the government of Brazil enacted a new immigration law, replacing a statute introduced in 1980 during the country’s military dictatorship with progressive legislation that advances human rights principles and adopts innovative approaches to migration management. One of the most notable features of the new law is its explicit rejection of the criminalization of migration, and its promotion of efforts to regularize undocumented migrants. Although the law itself is new, the values embedded in the law reflect recent trends in Brazilian immigration policy, which has embraced legalization, and has generally resisted the use of criminal law to punish unauthorized migration. Indeed, in Brazil, an initial unlawful entry does not carry criminal consequences, and at the level of society, public discourse and policy debates display minimal concern regarding this act. This posture is especially intriguing, given Brazil’s otherwise aggressive focus on criminality and incarceration.

This paper seeks to understand the circumstances that have led to this non-embrace of the criminalization of migration, and in particular, the scarce use of criminal law tools to punish and deter unlawful entry and related acts.

Continue reading

Little on Gamble and Double Jeopardy

Rory K. Little (UC Hastings College of the Law) has posted Double Jeopardy and the Gamble decision (Forthcoming, SCOTUS 2019) on SSRN. Here is the abstract:

 

This short book chapter analyses the U.S. Supreme Court's recent decision in Gamble v. United States (2019), which decided not to overrule "170 years of precedent" allowing the "same sovereigns" to both prosecute an individual for the same crime. Here, the feds prosecuted Gamble as a "felon-in-possession" after Gamble had pled guilty to that same offense under State law. He received an additional three years in prison for the federal conviction, consecutive to a year in Alabama. Justice Alito wrote for 7 Justices that the "separate sovereigns" exception to the Double Jeopardy Clause is backed by reasonable policy as well as precedents dating back to at least 1852. Interestingly, Justices Ginsburg and Gorsuch, ideological opposites to some extent, both dissented, and wrote that "individual liberty" should prevail over "stare decisis." Doctrinal thoughts on three issues are offered at the end.

Slobogin on Limiting Retributivism and Individual Prevention

Christopher Slobogin (Vanderbilt University - Law School) has posted Limiting Retributivism and Individual Prevention (The Routledge Handbook on the Philosophy and Science of Punishment (Farah Focquaert, ed., Forthcoming)) 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.” Similar in concept to traditional indeterminate sentencing, 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.

King & Heise on Misdemeanor Appeals

Nancy J. King and Michael Heise (Vanderbilt University - Law School and Cornell Law School) have posted Misdemeanor Appeals on SSRN. Here is the abstract:

 

Misdemeanor cases affect far more people than felony cases, outnumbering felony cases by more than three to one. Yet very little empirical information exists on many aspects of misdemeanor prosecutions. This Article provides the first quantitative look at appellate review in misdemeanor cases, nationwide. It uses data drawn from a random sample of direct criminal appeals decided by every state appellate court in the nation, unpublished aggregate data on misdemeanor trial court cases provided by the Court Statistics Project, and published state court statistics.

Continue reading

Cohen on Punishing Corporations

Mark A. Cohen (Vanderbilt University - Strategy and Business Economics) has posted Punishing Corporations on SSRN. Here is the abstract:

 

This paper explores the legal and economic theories, and empirical evidence of government-imposed punishment for corporate wrongdoing. Among the questions addressed are: What is the purpose of corporate criminal law? How are sanctions to be determined? When should firms versus individuals be held criminally liable for corporate wrongdoing? When should the criminal law be used instead of regulatory agency actions? Regardless of the rationale, criminal punishment of corporations for the wrongdoing of its owners, managers, and/or employees, has taken on an important role in the U.S. and globally. The limited empirical evidence on the use of criminal sanctions for corporate wrongdoing since the 1980s shows considerable increases in monetary sanctions over time. However, a large part of that increase can be attributed to larger crimes, not just larger sanctions. The use of nonmonetary sanctions (e.g., corporate probation) has also grown significantly over time.

Maher on Unfitness for Trial

Gerry Maher (University of Edinburgh - School of Law) has posted Unfitness for Trial in Scots Law (in Ronnie Mackay and Warren Brookbanks (eds), Fitness to Plead. International and Comparative Perspectives (Oxford University Press, 2018), 81-103) on SSRN. Here is the abstract:

 

The plea of unfitness for trial in Scots law advances the goal of ensuring that criminal trials should not proceed against anyone whose mental or physical condition makes it unsuitable for them to be subject to such a process. This chapter traces the development of the common law version of the plea, namely insanity in bar of trial. It then examines more recent reforms which considered the plea in the context of human rights and comparative law. These reforms have resulted in statutory formulation of the 3 key issues, namely the test or definition of the plea, the procedures to be used in determining the existence of the plea in a particular case, and the disposal options appropriate for people who have been found to be unfit for trial.

Schifalacqua on FISA Reauthorization

John F Schifalacqua has posted Insidious Encroachment? Strengthening the Crown Jewels: The 2018 Reauthorization of FISA Section 702 (National Security Law Brief, Vol. 9, No. 1, 2019) on SSRN. Here is the abstract:

This article seeks to turn a critical eye toward to the Reauthorization Act - both its development and future challenges - as a way to evaluate the current state of Section 702 since its recent reauthorization. To establish a historical context, Part II will lay out the general history of Section 702, its requirements, and the techniques the government has typically deployed under its authority. Part III will develop an account of the legislative history of the Reauthorization Act to highlight the keys issues of contention in public discourse over Section 702. Part IV will detail the key changes to Section 702 implemented by Congress. Part V will then describe the typical constitutional challenges to Section 702 prior to the Reauthorization Act and reassess the viability of in light of the key changes to the program. Finally, Part VI will conclude by offering positive developments and missed opportunities from the debates.

Continue reading

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Measuring Algorithmic Fairness Deborah Hellman University of Virginia - School of Law Date Posted: 16 Jul 2019	220
2.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	110
3.	How to Fix Legal Scholarmush Adam J. Kolber Brooklyn Law School Date Posted: 16 Jul 2019 [7th last week]	93
4.	An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault Elaine Craig Dalhousie University - Schulich School of Law Date Posted: 20 Jun 2019	70
5.	Liability of Sister Companies and Subsidiaries in European Competition Law Christian Kersting Heinrich Heine University Düsseldorf - Faculty of Law Date Posted: 03 Jun 2019	65
6.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019 [9th last week]	60
7.	IQ, Culpability, and the Criminal Law’s Gray Area: Why the Rationale for Reducing the Culpability of Juveniles and Intellectually Disabled Adults Should Apply to Low-IQ Adults Adam Lamparello Independent Date Posted: 30 May 2019 [6th last week]	59
8.	Criminal Clear Statement Rules Carissa Byrne Hessick and Joseph Edward Kennedy University of North Carolina School of Law and University of North Carolina Date Posted: 24 May 2019	57
9.	Deliberate Ignorance and the Law Eyal Zamir and Roi Yair Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem Date Posted: 25 Jun 2019 [10th last week]	53
10.	Artificial Intelligence and Crime Roderic Broadhurst, Donald Maxim, Paige Brown, Harshit Trivedi and Joy Wang Australian National University (ANU), (ANU) - Cybercrime Observatory, ANU Cybercrime Observatory, ANU Cybercrime Observatory and Australian National University (ANU) Date Posted: 28 Jun 2019 [new to top ten]	49

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance Roseanna Sommers and Vanessa K. Bohns University of Chicago - Law School and Cornell University Date Posted: 23 May 2019	535
2.	Measuring Algorithmic Fairness Deborah Hellman University of Virginia - School of Law Date Posted: 16 Jul 2019 [4th last week]	220
3.	Beyond Bias: Re-Imagining the Terms of ‘Ethical AI’ in Criminal Law Chelsea Barabas MIT Media Lab Date Posted: 23 May 2019 [2nd last week]	207
4.	Confirmation Bias and Other Systemic Causes of Wrongful Convictions: A Sentinel Events Perspective Kim Rossmo and Joycelyn Pollock Texas State University and Texas State University Date Posted: 04 Jul 2019 [5th last week]	207
5.	When Plea Bargaining Became Normal William Ortman Wayne State University School of Law Date Posted: 29 May 2019 [3rd last week]	172
6.	Plea-Bargaining: Socio-Legal Impacts on the Criminal Justice System of Bangladesh Md. Pizuar Hossain and Tureen Afroz East West University and East West University Date Posted: 04 Jun 2019	118
7.	The Opposite of Punishment: Imagining a Path to Public Redemption Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 19 Jun 2019	110
8.	Some Doubts About 'Democratizing' Criminal Justice John Rappaport University of Chicago - Law School Date Posted: 11 Jul 2019 [9th last week]	103
9.	Big Data Prosecution and Brady Andrew Guthrie Ferguson University of the District of Columbia - David A. Clarke School of Law Date Posted: 07 Jun 2019 [8th last week]	89
10.	Democracy, Bureaucracy and Criminal Justice Reform Lauren M. Ouziel Temple University - James E. Beasley School of Law Date Posted: 06 Jun 2019 [new to top ten]	60

Galle & Mungan on Predictable Punishments

Brian D. Galle and Murat C. Mungan (Georgetown University Law Center and George Mason University - Antonin Scalia Law School, Faculty) have posted Predictable Punishments on SSRN. Here is the abstract:

 

Economic analyses of both crime and regulation writ large suggest that the subjective cost or value of incentives is critical to their effectiveness. But reliable information about subjective valuation is scarce, as those who are punished have little reason to report honestly. Modern “big data” techniques promise to overcome this information shortfall, but perhaps at the cost of individual privacy and the autonomy that privacy’s shield provides.

This Article argues that regulators can and should instead rely on methods that remain accurate even in the face of limited information. Building on a formal model we prove elsewhere, we show that variability in a defendant's subjective costs of punishment should be a key consideration in any incentive system, whether it be criminal law or otherwise. Our model suggests that this variability can be mitigated with some familiar and well-tested tools. For instance, in some situations ex ante taxes on behavior that creates a risk of harm can be preferable to ex post punitive regimes, such as the criminal law, that target primarily harms that actually arise.

Continue reading

Gutman & Sun on Compensation for the Wrongly Convicted

Jeffrey S. Gutman (George Washington University - Law School) has posted two articles on this topic. The first is An Empirical Reexamination of State Statutory Compensation for the Wrongly Convicted (82 Mo. L. Rev. (2017)). Here is the abstract:

 

An appropriate measure of a just society is how it treats those whom the government harms most severely. As frequent and well-publicized exonerations have been etched into the public consciousness over the last several years, a number of scholars have engaged in the study of compensation for such a group – those wrongly convicted. The general tenor of the resulting articles is one of disappointment.

 

The second is Jeffrey S. Gutman and Lingxiao Sun (George Washington University - Law School and affiliation not provided to SSRN), Why is Mississippi the Best State in Which to be Exonerated? An Empirical Evaluation of State Statutory and Civil Compensation for the Wrongfully Convicted (11 Ne. L. Rev. 694 (2019)). Here is the abstract:

 

Wrongful conviction has for decades been a subject of academic study, litigation, and policy reform, but its more recent reach into popular culture is reflected in an array of books, documentaries, podcasts, movies, and TV shows. In both non-fiction and fiction, the theme of wrongful conviction marries a traditionally American revulsion of profound injustice with the captivation of the police procedural, dirty cops, forensic evidence, and the relentless fortitude of incarcerated innocents and their heroic lawyers.

Continue reading

Harduf on Words That Rape

Asaf Harduf (Zefat Academic College) has posted Words that Rape: A Normative Quest for What Rape is and is Not on SSRN. Here is the abstract:

 

When one is brought by some form of mal-communication to masturbate or penetrate oneself, while the perpetrator is far away, should we designate it "rape"; can words rape? This is not a mere academic drill; in Israel, people have been indicted and convicted of rape by The District and The Supreme Court, after communicating online with women and bringing them by coercion or fraud to penetrate themselves. This groundbreaking development is the inspiration to a normative analysis, revolving around the notions of rape in United States. The article begins with the author's personal story of online victimization. It generally explores the perpetrator-victim interaction of rape, attempting to understand what makes a certain type of offensiveness scenario "rape".

Continue reading

Witte on Sexual Morality and Criminal Law

John Witte (Emory University School of Law) has posted Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies? (Emory Law Journal 68 (2019): 837-865) on SSRN. Here is the abstract:

 

Historically, sexual morality and criminal law overlapped, and churches and states enforced sundry sex crimes. Today, new constitutional liberties and new reforms to family law and criminal law have dramatically reduced the roll of sex crimes and the roles of churches in maintaining sexuality morality. But sexual misconduct remains a perennial reality in modern societies, including notably within churches, and sex crimes inflict some of the deepest scars on their victims. Modern liberal states must thus maintain a basic standard of sexual morality in its criminal law as a restraint on harmful behavior and as a bulwark against a sexual state of nature where life is often “brutish, nasty, and short” for the most vulnerable. And liberal societies should encourage its citizens and churches to pursue a higher morality of aspiration that views sex and the sexual body as a special gift for oneself and others.