CrimProf Blog

"Senators Durbin and Grassley introduce "Prohibiting Punishment of Acquitted Conduct Act of 2019""

Doug Berman has this post at Sentencing Law & Policy, excerpting a press release. From Doug's commentary:

Long-time readers know I have been a long-time opponent of federal courts' use of acquitted conduct at sentencing (e.g., here is a post from 11 years ago on the issue, which itself links to more than a half-dozen prior posts on the topic).  I have also been involved in preparing briefs assailing the use of acquitted conduct in a number of circuit courts, and I was especially proud of this amicus brief that I prepared in support of certiorari in the Antwaun Ball case reference above.  So, I am fully supportive of legislative efforts to preclude the use of acquitted conduct at federal sentencing.

 

"DOJ announces interim policy for use of forensic genetic genealogy"

From Jurist:

The Interim Policy on Forensic Genetic Genealogical DNA Analysis and Searching is composed of nine sections that will guide the use of forensic genetic genealogy by law enforcement. These sections outline the application of this policy, the types of techniques (STR DNA typing and forensic genealogy), limitations for the use of genetic association to make arrests, and case criteria needed to employ the techniques.

The policy has been issued primarily to provide internal guidance to the DOJ about the use of voluntary genetic genealogy websites and services. These services involve different DNA testing than the DOJ labs perform. If the FBI’s Combined DNA Index System does not result in a lead, law enforcement can turn to forensic genealogy by outsourcing samples for a comprehensive genetic profile. This profile can be submitted to genealogical services that use computer algorithms to evaluate familial relationships.

 

Nanda on Criminalization of Disability in Schools

Jyoti Nanda (Golden Gate University - School of Law) has posted The Construction and Criminalization of Disability in School Incarceration (Columbia Journal of Race and Law, Vol. 9, No. 2, 2019) on SSRN. Here is the abstract:

 

This Article explores how race functions to ascribe and criminalize disability. It posits that for White students in wealthy schools, disabilities or perceived disabilities are often viewed as medical conditions and treated with care and resources. For students of color, however, the construction of disability (if it exists) may be a criminalized condition that is treated as warranting punishment and segregated classrooms, possibly leading to juvenile justice system involvement. Providing a review of the K-12 disability legal regimes, this Article maps how the process of identifying a student with a disability happens in a hypercriminalized school setting. The Article argues that the school itself contributes to the construction and criminalization of disability and that the attribution of disability is a product of the subjectivity built into the law, heavily surveilled school environments, and biases held by teachers and administrators.

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Trost on The Economic Espionage Act

Brette Trost has posted Using the Economic Espionage Act to Protect Trade Secrets in Baseball (8 NYU Journal of Intellectual Property & Entertainment Law 128, 2018) on SSRN. Here is the abstract:

In 2016, Christopher Correa, a former employee of the St. Louis Cardinals, was sentenced to forty-six months in prison for violating the Computer Fraud and Abuse Act when he accessed a Houston Astros database without authorization. However, these were not the only charges Correa could have faced. This note uses the Correa case to illustrate how the Economic Espionage Act can be used to prevent trade secret theft in Major League Baseball. More specifically, this note asserts that the sabermetric data systems used by MLB teams to evaluate and track players are legally protectable trade secrets. Furthermore, due to the fluid nature of the baseball analytics talent pool and barriers to civil prosecution inherent in baseball’s structure, the Economic Espionage Act presents the best way to combat the misappropriation of this information. The note goes on to distinguish between teams’ off-field and on-field tactics and discusses how, if at all, this framework should apply to the collection and use of biometric data.

Bartels et al. on Women's Imprisonment in Australia

Lorana Bartels, Patricia L. Easteal and Robyn Westgate (Australian National University (ANU) - ANU Centre for Social Research and Methods, University of Canberra - School of Law and Justice and affiliation not provided to SSRN) have posted Understanding Women’s Imprisonment in Australia (Lorana Bartels, Patricia Easteal and Robyn Westgate (2019) Women & Criminal Justice) on SSRN. Here is the abstract:

 

This article examines women’s imprisonment in Australia through a feminist multifocal lens. We consider female prisoners’ gendered needs, especially “the triumvirate” of victimization, substance abuse, and mental illness. We also acknowledge the importance of taking an intersectional approach, with particular reference to Indigenous women. We identify recent developments in Australian corrections policies and programs, especially trauma-informed care, mental health programs, children/parenting, education and work, and post-release support. Although we commend initiatives to support women during and after custody, we question the need to send most of them there in the first place, as we are concerned about the ability of any prison to provide an environment conducive to healing.

Joy on Contempt and the Limits of Advocacy

Peter A. Joy (Washington University in St. Louis - School of Law) has posted Judges' Misuse of Contempt in Criminal Cases and Limits of Advocacy (50 Loyola University Chicago Law Journal 907 (2019)) on SSRN. Here is the abstract:

 

This article examines the conduct of Judge Julius Hoffman and the defense lawyers, William Kunztler and Leonard Weinglas, in the Chicago Eight Trial. The article presents lessons from the Chicago Eight Trial about the limits of a judge's contempt authority against defense lawyers in criminal matters, and how far a defense lawyer may go in advocating for a client without being liable for contempt of court.

Dsouza on Corporate Agents in Criminal Law

Mark Dsouza (University College London - Faculty of Laws) has posted Corporate Agents in Criminal Law – An Argument for Comprehensive Identification on SSRN. Here is the abstract:

 

The doctrine of identification is often used to explain how corporations can commit criminal offences in their own right. Courts identify the natural persons who can be said to personify the corporation, and attribute their conduct and mental states to the corporation. However, current versions of the doctrine of identification suffer from several well-documented shortcomings.

In this paper, I consider whether these shortcomings can be remedied by reformulating the identification doctrine to treat all corporate officers and employees as embodying the corporation when acting within their real or ostensible corporate authority.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Sexual Assault Law Reform in New South Wales: Why the Lazarus Litigation Demonstrates No Need for s 61HE of the Crimes Act to be Changed (Except in One Minor Respect) Andrew Dyer The University of Sydney Law School Date Posted: 16 Aug 2019 [2nd last week]	144
2.	Violent Crime and Punitiveness: An Empirical Study of Public Opinion Michael M. O'Hear and Darren Wheelock Marquette University - Law School and Marquette University Department of Social and Cultural Sciences Date Posted: 30 Aug 2019 [4th last week]	84
3.	Australia's 'Abhorrent Violent Material' Law: Shouting 'Nerd Harder' and Drowning Out Speech Evelyn Douek Harvard University - Harvard Law School Date Posted: 31 Aug 2019 [6th last week]	74
4.	After the Crime: Rewarding Offenders’ Positive Post-Offense Conduct Paul H. Robinson and Muhammad Sarahne University of Pennsylvania Law School and University of Pennsylvania Date Posted: 08 Aug 2019 [7th last week]	61
5.	Lawyers, Guns, and Mental Illness Susan McMahon Georgetown University Law Center Date Posted: 09 Aug 2019 [8th last week]	59
6.	Are Criminals Bad or Mad? — Premeditated Murder, Mental Illness, and Kahler V. Kansas Paul J. Larkin, Jr. and GianCarlo Canaparo The Heritage Foundation and Georgetown University Law Center Date Posted: 03 Aug 2019 [10th last week]	58
7.	Legalization of Prostitution: A Cost-Benefit Analysis Katy Smith and Walter E. Block Loyola University New Orleans and Loyola University New Orleans - Joseph A. Butt, S.J. College of Business Date Posted: 08 Aug 2019 [new to top ten]	58
8.	The Problem of Reluctant Sex Daniel Maggen Yale University, Law School Date Posted: 27 Aug 2019 [new to top ten]	54
9.	Beyond Cannabis: Psychedelic Decriminalization and Social Justice Dustin Marlan University of Massachusetts School of Law Date Posted: 20 Aug 2019 [new to top ten]	52
10.	Perjury by Omission Ira P. Robbins American University - Washington College of Law Date Posted: 22 Aug 2019 [new to top ten]	51

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Evidence in the Age of Privacy: Access to Data in the Criminal Justice System Rebecca Wexler University of California, Berkeley, School of Law Date Posted: 06 Aug 2019	237
2.	Amicus Brief of Professor Andrew Manuel Crespo in Kansas v. Glover (18-556) Andrew Manuel Crespo Harvard Law School Date Posted: 16 Sep 2019 [new to top ten]	71
3.	Charging As Sentencing Donald A. Dripps University of San Diego School of Law Date Posted: 03 Aug 2019 [5th last week]	65
4.	Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism Nicholas Alden Kahn-Fogel University of Arkansas at Little Rock - William H. Bowen School of Law Date Posted: 08 Aug 2019 [6th last week]	62
5.	A ‘Culture of Justification’? Police Interpretation and Application of the Human Rights Act 1998 Richard Martin London School of Economics - Law Department Date Posted: 25 Jul 2019 [9th last week]	58
6.	Strategic Games and Algorithmic Secrecy Ignacio Cofone and Katherine J. Strandburg McGill University Faculty of Law and New York University School of Law Date Posted: 24 Aug 2019 [7th last week]	56
7.	The Admissibility of Forensic Reports in the Post-Justice Scalia Supreme Court Laird C. Kirkpatrick George Washington University - Law School Date Posted: 31 Jul 2019 [8th last week]	53
8.	Gamble, Dual Sovereignty, and Due Process Anthony J. Colangelo Southern Methodist University - Dedman School of Law Date Posted: 05 Aug 2019 [10th last week]	49
9.	The Consequences of Automating and Deskilling the Police Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 18 Sep 2019 [new to top ten]	49
10.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [new to top ten]	49

Newell on Liability for Retail Marijuana Corporations

Lauren A. Newell (Ohio Northern University, Pettit College of Law) has posted High Crimes: Liability for Directors of Retail Marijuana Corporations (New York University Journal of Law and Business, Forthcoming) on SSRN. Here is the abstract:

 

Selling retail marijuana in the United States is illegal — or is it? A rising number of states have legalized the retail sale of marijuana and are busily regulating these sales and the companies that make them. Even so, the sale of marijuana is a crime under federal law. Are companies that sell retail marijuana duly sanctioned, productive contributors to their state economies, or are they felons just waiting for the wheels of justice to turn in their direction? At this moment, no one can answer that question with certainty.

What is certain is that more companies are being formed each day for the purpose of cultivating, producing, and/or distributing retail marijuana, many of which are being formed as corporations (Retail Marijuana Corporations). Like their counterparts outside of the marijuana industry, Retail Marijuana Corporations are subject to the same state corporation statutes and the same federal criminal statutes and securities laws. This means, like other corporations, Retail Marijuana Corporations are governed by boards of directors, who owe their companies the traditional duties of care and loyalty.

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Bertrand & Jochelson on Jurors' Understanding of Instructions

Michelle Bertrand and Richard Jochelson (University of Winnipeg and Robson Hall, University of Manitoba Faculty of Law) have posted Mock-Jurors’ Self-Reported Understanding of Canadian Judicial Instructions (Is Not Very Good) on SSRN. Here is the abstract:

 

Studies of the criminal jury within a Canadian context remain few and far between compared to such research based in other jurisdictions especially the United States. The study of jury work in Canada is significantly curtailed for structural reasons, which we outline below. This makes the study of actual jurors who have served almost impossible in Canada so researchers must use alternative methods to study Canadian juridical issues.

The current study used a student sample to investigate comprehension of Canadian Judicial Council (CJC) pattern instructions. This is the first study to interrogate CJC pattern instructions in relatively common and uncomplicated crimes.

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Dhonchak on Consent in Indian Rape Law

Anupriya Dhonchak (National Law University Delhi, Students) has posted Standard of Consent in Rape Law in India: Towards an Affirmative Standard (Berkeley Journal of Gender, Law & Justice, Vol. 34, No. 1, 2019) on SSRN. Here is the abstract:

 

This Article examines how rape law’s conceptualization of consent provides an objective standard to define the subjective experiences of rape survivors. It argues that because “consent” as currently conceptualized by the Indian legal system is often not a potent enough instrument to articulate the free choice of women in patriarchal societies, at the very least the standard of consent must be victim friendly to better preserve women’s sexual autonomy. The Article first provides a brief descriptive survey of the existing standard of consent in Indian rape law and its evolution from previous standards. It then contextualizes consent within Indian law and culture to argue that the current standard especially burdens victims and exonerates perpetrators of responsibility in sexual interactions. To provide such context, the Article analyzes a series of judgments, mythology, politics, penal statutes, and media representation to establish the prevalence of rape culture in India. It highlights a continuing system of misogyny where the same patriarchal institutions that make it acceptable for perpetrators to deprive women of choice during sexual intercourse further deprive them of agency during rape trials. Specifically, this Article reveals how rape adjudication, alleged rapists’ defense tactics during trial, and conversations surrounding rape in Indian courtrooms are replete with cultural rape myths and stereotypes. Having explained this context, the Article examines recent reforms in rape law to prove their inadequacy in realizing the rights of the victim. It concludes that the affirmative standard is a much-needed normative change to reduce legal ambiguity (almost always used to the detriment of the oppressed) with a more specific standard that discourages the implication, rationalization, and generalization of consent into existence when absent. Finally, the Article places this proposed reform within the context of a series of statutory reforms in rape law so far and concludes that it will further the feminist movement by extending rights to a target group of victims that the existing standard within Indian law excludes.

Logan on Mercenary Criminal Justice

Wayne A. Logan (Florida State University - College of Law) has posted Timbs v. Indiana: Toward the Regulation of Mercenary Criminal Justice (31 Federal Sentencing Reporter (2019, Forthcoming)) on SSRN. Here is the abstract:

 

In Timbs v. Indiana, the Supreme Court unanimously held that the Eighth Amendment's Excessive Fines Clause is an incorporated protection under the Fourteenth Amendment and therefore regulates state and local governments. The unanimous result, wedding liberal and conservative Justices alike, was backed by an ideologically diverse group of amici, including the ACLU, the U.S. Chamber of Commerce, and the Cato Institute. The government practice giving rise to the litigation — civil asset forfeiture — has been subject to widespread criticism, fueled by troubling accounts of what has come to be known as “policing for profit.” Reaction to Timbs ran the gamut from regarding it as “huge” to being a decision having little impact. As I discuss in this symposium contribution, Timbs is important both because it provides a new federal constitutional basis to regulate government targeting of criminal defendants for revenue generation and signals the Court’s broader recognition of the problematic nature of the widespread practice.

Lonati on The European Protection Order

Simone Lonati (Bocconi University - Department of Law) has posted Is the European Protection Order Sufficiently Robust to Prevent Any Discrimination Among Victims Moving Across the European Union? An Assessment of the First Seven Years (European Criminal Law Review 3/2018) on SSRN. Here is the abstract:

 

The purpose of this paper is, on the one hand, to highlight the reasons that have thus far prevented a systematic and widespread recourse to the commendable (in intent at least) European Protection Order, introduced by Directive 2011/99/EU (so-called EPO DIRECTIVE); and, on the other, to assess whether said mechanism is actually capable of preventing discriminations in the protection of victims within the Area of Freedom, Security and Justice. Starting from a general analysis of the above instrument, this article briefly examines how the foregoing Directive has been implemented in the domestic legal systems of the only Member States that, as at 2017, have issued at least one protection order: Italy, Spain and the United Kingdom. In particular, the analysis focuses on the main issues surrounding this instrument that have caused it to be used on a merely sporadic basis, and it shows how the European Protection Order pays the price of the almost complete lack of harmonization in the field of judicial cooperation in criminal matters: the profound discrepancies between the individual domestic legal systems as to the type of offences criminalized, and the absence of protection measures common to all Member States, are the primary factors standing in the way of achieving sufficient and uniform levels of victim protection throughout the entire EU territory.

Roach on Jury Selection Reform

Kent Roach (University of Toronto - Faculty of Law) has posted Juries, Miscarriages of Justice and Bill C-75: Radical or Superficial Reform (98(1) Canadian Bar Review, (2020), Forthcoming) on SSRN. Here is the abstract:

 

Gerald Stanley’s use of five peremptory challenges to exclude all visibly Indigenous people from the jury that acquitted him of murder and manslaughter in the killing of a 22 year old Cree man, Colten Boushie, was not the only flaw in the selection of the jury in his case that requires radical reform. This article examines the Stanley case as part of a long line of miscarriages of justice involving Indigenous people, but with no Indigenous representation on the jury. It argues that Bill C-75 enacted in 2019 was justified in adopting the radical reform of abolishing peremptory challenges. Unfortunately, however, Bill C-75 pursued only superficial reforms with respect to juror qualifications, equality-based challenges to panels of prospective jurors and challenges for causes. Radical reforms are necessary in all of these areas including provincial reforms with respect to jury lists and pools. Thought should also be given to reviving and adapting mixed juries that would require equal numbers of Indigenous people and non-Indigenous people in cases involving Indigenous people.

Govern on Clerical Sexual Abuse

Kevin H. Govern (Ave Maria University - Ave Maria School of Law) has posted Truth, Justice, and Reconciliation in the Wake of Clerical Sexual Abuse in America (Baku State University Law Review, Volume 5, Issue 2, 2019) on SSRN. Here is the abstract:

 

This article outlines the history of cleric sexual abuse from 1950 through contemporary times, and surveys past civil and criminal prosecutions of Roman Catholic sexual abuse cases. Contemporary theories of criminal liability may be either an alternative to – or an adjunct with – civil tort lawsuits, and injunctive relief is increasingly sought to investigate as well as to deter future abuse. Time will tell the impact of ongoing state and federal RICO Act prosecutions not just on perpetrators but also clerics and Church decision-makers remaining in active ministry. Restorative justice, forums for listening and sharing, through stories and prayer, may well offer the most opportunity for fostering healing and reconciliation within the bounds of the law yet not directly involving courts or legal processes. Restorative justice strongly shines the light of the Gospel on this scourge, where agents of such justice are mindful of the words of the Apostle Paul, in his Second Epistle to the Corinthians that “[a]ll this is from God, who reconciled us to himself through Christ and gave us the ministry of reconciliation.” Remediative and restorative measures outside the courts must augment legal remedies within halls of justice for multifaceted and effective means to address the past and ongoing criminal and civil law and public health crises arising from cleric sexual abuse, and to help prevent future abuses from taking place.

Joh on Automating and Deskilling the Police

Elizabeth E. Joh (University of California, Davis - School of Law) has posted The Consequences of Automating and Deskilling the Police (__ UCLA L. Rev. Discourse (2019 Forthcoming)) on SSRN. Here is the abstract:

 

Almost no one thinks of automation and the consequences it will bring to policing. This is a mistake. Automation — the combination of artificial intelligence and robotics — is spreading everywhere. Whatever its benefits, we will also face problems as automation replaces human labor. One consequence may be mass unemployment in affected industries. Another consequence of automation is deskilling. The term deskilling refers to the skills and knowledge needed to perform a job that are lost when automation takes over. What happens when the police become deskilled?

The deskilling of policing is inevitable because automation is increasingly a part of policing. Many American police departments already use artificial intelligence: it drives automatic license plate recognition, social media threat analysis, predictive policing software, security robots, facial recognition technology, and autonomous drones. Observers of the military have already begun to discuss the legal and policy effects that similar automation will have on soldiers, and on the nature of waging war itself.

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Bagaric et al. on Mass Incarceration and Rehabilitation in Sentencing

Mirko Bagaric, Gabrielle Wolf and William Rininger (Director of the Evidence-Based Sentencing and Criminal Justice Project, Swinburne University Law School, Deakin University, Geelong, Australia - Deakin Law School and University of Akron - University of Akron School of Law, Students) have posted Mitigating America's Mass Incarceration Crisis Without Compromising Community Protection: Expanding the Role of Rehabilitation in Sentencing (Lewis & Clark Law Review, Vol. 22, 2018) on SSRN. Here is the abstract:

 

The United States is in the midst of an unprecedented mass incarceration crisis. Financially, this is no longer readily sustainable, even for the world’s largest economy. Further, the human suffering that prison causes is no longer tolerable from the normative perspective. Nevertheless, lawmakers have failed to propose or adopt coherent or wide-ranging reforms to mitigate this crisis. The crisis has emerged over the past forty years largely as a result of the emphasis on community protection as the most important objective of sentencing and the fact that the primary means of pursuing community protection during this period has been incapacitation in the form of imprisonment. In this Article, we argue that policy makers and courts took a profoundly wrong turn by equating community protection almost solely with incapacitation. A more progressive and often effective means of protecting the community is by rehabilitating offenders.

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Dulce on Predicting Criminal Behavior

Mateo Dulce (Universidad de los Andes, Colombia, Department of Economics, Students) has posted Predicting Criminal Behavior with Lévy Flights Using Real Data from Bogotá on SSRN. Here is the abstract:

 

I use residential burglary data from Bogota, Colombia, to fit an agent-based model following truncated L´evy flights (Pan et al., 2018) elucidating criminal rational behavior and validating repeat/near-repeat victimization and broken windows effects. The estimated parameters suggest that if an average house or its neighbors have never been attacked, and it is suddenly burglarized, the probability of a new attack the next day increases, due to the crime event, in 79 percentage points. Moreover, the following day its neighbors will also face an increment in the probability of crime of 79 percentage points. This effect persists for a long time span. The model presents an area under the Cumulative Accuracy Profile (CAP) curve, of 0.8 performing similarly or better than state-of-the-art crime prediction models. Public policies seeking to reduce criminal activity and its negative consequences must take into account these mechanisms and the self-exciting nature of crime to effectively make criminal hotspots safer.

Jain on The Interior Structure of Immigration Enforcement

Eisha Jain (University of North Carolina School of Law) has posted The Interior Structure of Immigration Enforcement (167 University of Pennsylvania Law Review 1463 (2019)) on SSRN. Here is the abstract:

 

Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure has far-reaching hidden costs. Scholars have recognized some of these costs, such as the exploitation of undocumented noncitizens. Yet the full cost of this enforcement structure goes deeper. Beyond enabling exploitative actors, it leaves little room for good faith actors to incentivize socially valuable behavior. In its impact, immigration enforcement bears unappreciated structural similarities to certain low-level criminal law enforcement techniques, where a large population is likewise subject to ubiquitous monitoring by public and private actors alike.

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