CrimProf Blog

Hornby on Transparent Federal Sentencing

D. Brock Hornby has posted Can Federal Sentencing Remain Transparent? (Judicature, Spring 2019, Volume 102 Number 1) on SSRN. Here is the abstract:

Federal judges traditionally explained to victims, the defendant, and the community in open court the sentences they imposed. Now that openness is in jeopardy, as federal prosecutors and defense counsel seek to conceal or disguise defendants’ cooperation with prosecutors or law enforcement and how that cooperation decreases a sentence’s severity. They request secrecy because defendants known or believed to have cooperated face violence in federal prison. But transparency is paramount to the federal judicial role. If cooperation can be successfully disguised when it occurs, the public will be unable to ascertain whether a federal judge’s explanation for any sentence is forthright and complete. The judge cannot protect against violence in prison. For the integrity of the institution, federal judges should candidly and honestly pronounce their sentencing reasoning in open court including the fact, if not the extent and details, of cooperation and the effect it has on the sentence length. We must not deceive the public.

Perlin on Therapeutic Jurisprudence and Non-Judicial Officers

Michael L. Perlin (New York Law School) has posted ‘But I Ain’t a Judge’: The Therapeutic Jurisprudence Implications of the Use of Non-Judicial Officers in Criminal Justice Cases on SSRN. Here is the abstract:

 

The role of non-judicial officers occupies a hidden space in the US judicial system. Statutorily sanctioned in many jurisdictions, such officers have a wide range of duties and responsibilities, including hearing certain pre-trial motions (e.g., NY CPL § 255.20) and making decisions as to conditions of probation for sex offenders (e.g., SDCL § 23A-27-12.1). In many jurisdictions, these officers are frequently not lawyers, and that there is significant evidence that many of the basic rudiments of the criminal trial process are often not honored.

There has been virtually no consideration of this phenomenon in either the scholarly literature, and absolutely no consideration from the perspective of therapeutic jurisprudence (TJ), Among TJ’s primary focuses is an inquiry into whether legal rules, procedures, and lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. This clearly does not happen in the systems under discussion here.

Karsai on The European Public Prosecutor's Office

Krisztina Karsai (University of Szeged) has posted External Effects of the European Public Prosecutor’s Office Regime (Miskolci Jogi Szemle 14. évfolyam, 2. különszám 1. kötet, 2019) on SSRN. Here is the abstract:

 

The enhanced cooperation for establishing the EPPO as a new and genuine transnational investigating framework for combating crimes affecting the financial interests of the EU promises effectiveness and a means for overcoming institutional paralysis in transnational criminal cases. The concept and future structure of this cooperation method between EU-MS allow the non-participation for MS by their own decision. On the one hand, this flexibility is a key factor of deepening integration in this field, but on the other hand, this bears significant risks for general goals and values of European integration, especially in the field of exercising jurisdiction (power of punishment) and launching criminal investigations. This flexibility has clear and visible consequences that are covered by the term as external effects of enhanced cooperation. The paper focuses – after describing and shortly examining all the possible external effects of the EPPO – on the jurisdictional issues arising from the flexibility of the enhanced cooperation in order to address the main findings in connection with the real possibility of impunity and forum shopping methods.

Beessoo & Foondun on Money Laundering Through Bitcoin

Vandana Beessoo and Aaynab Foondun (Middlesex University and Middlesex University) have posted Money Laundering Through Bitcoin: The Emerging Implications of Technological Advancement. on SSRN. Here is the abstract:

 

Bitcoin, conceived by the pseudonymous software developer Satoshi Nakomoto, is the world’s first cryptocurrency. This invention of peer-to-peer electronic cash has trigerred a series of apprehension in the financial world. The fact that it has enabled alternative means of transacting to conventional banking has steered a new source of stress within the financial arena. Bitcoin, in terms of technology and currency, has been defined in many ways. Albeit Paul Vigna and Michael Casey describe it as borderless, pseudo-anonymous, decentralised, and outside of regulatory monetary systems, other researches also suggest that these attributes potentially give rise for criminals to evade law enforcement. The focal point of this paper is to provide an insight on the emergence of illicit financial crimes particularly through money laundering, caused by the increasing use of bitcoins. The research paper explicates on two very common ways for “bitcoin laundering” namely: either through bitcoin mixes or bitcoin exchanges or by using both methods.

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Coscas-Wiliams & Alberstein on Accelerated Proceedings in Continental Systems

Béatrice Coscas-Wiliams and Michal Alberstein (Bar-Ilan University - Faculty of Law and Bar-Ilan University - Faculty of Law) have posted A Patchwork of Doors: Accelerated Proceedings in Continental Criminal Justice Systems on SSRN. Here is the abstract:

 

Our paper surveys the development of hybrid models in two continental jurisdictions, Italy and France following the 1987 Recommendation of the Committee of Ministers of the Council of Europe to accelerate criminal proceedings through the introduction of guilty pleas, out-ofcourt settlements and simplified proceedings. We describe the development of various frameworks for criminal justice as a multi-door arena, of which the plea bargaining is but one of several possibilities. In our review, we emphasize the consensual element, the place of the search of truth and the role of the stakeholders. In particular, we examine the power of the judges that underpins these accelerated frameworks for criminal trials.

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Kanner et al. on Judicial Involvement in Plea Bargaining in Israel

Sari Luz Kanner, Dana Rosen, Yosef Zohar and Michal Alberstein (affiliation not provided to SSRN, affiliation not provided to SSRN, affiliation not provided to SSRN and Bar-Ilan University - Faculty of Law) have posted Managerial Judicial Conflict Resolution (JCR) of Plea Bargaining: Shadows of Law and Conflict Resolution on SSRN. Here is the abstract:

 

This article focuses on a procedure that is nowadays the central door to criminal law in Israel - “Plea Bargains Facilitating Day” (“Moked”). It examines the role of the criminal judge in light of the vanishing trial phenomenon and the emergent reality of many doors to process legal conflicts in both the civil and criminal domains. Judicial conflict resolution (JCR) includes any activity by judges which aims to encourage an agreement between the parties to enable the closure of the legal case parties without the need of a full judicial procedure and the writing of reasoned judgment. In the criminal context, it includes judicial activity meant to influence the charges and the sentencing as stipulated within the plea agreement between the prosecution and the defense. To characterize the proceeding and gain an understanding of the judge’s role both in practice and in theory in this proceeding, we conducted quantitative and qualitative analyses on data collected from observations of 717 hearings in 704 criminal cases, in the Tel Aviv Magistrates Court on Moked days. Furthermore, we conducted a comparison of our findings with previous findings in the civil domain.

The Moked days, as determined by law, are meant for the conduct of preliminary proceedings on indictments, with the aim of limiting the factual or legal dispute, in whole or in part. This is in order to obviate the need for the presentation of evidence and bring the matter to a conclusion during the preliminary proceeding. We found that the trial reduction goal was largely achieved, as less than 8% of the cases in the plea bargain hearings that we observed were transferred to the trial stage. The importance of this finding is the indication that the Moked days were not just the exclusive entryway to the criminal process, but in most cases also constituted the exit. We also found that on average, 5.55 (SD=3.62) hearings were required for disposing of a case and the average duration of a legal proceeding from indictment to closure was 548.55 (SD=323.17) days. Those figures are significantly higher than the figures from past years and may point out that the conduct of these proceedings did not necessarily achieve efficiency and simplification of the criminal process. We found that during the preliminary proceedings the judges function as gatekeepers and employ a variety of practices to exhaust that function, in order to obviate the need to conduct a further evidentiary proceeding in the case. In most of the hearings that we observed, the judges’ role was confined to managerial-bureaucratic decisions, mostly technical, intended to enable the parties to craft the terms of the plea bargain by themselves. Only in a small share of cases, the judges took an active role in promoting the plea bargain’s terms, mainly when the parties ran into difficulties agreeing by themselves. In a tiny fraction of the cases, their intervention was of a therapeutic nature or fulfilled some other social role. The judges’ interventionist activities to promote a plea bargain included promoting, both narrowly and broadly, litigotiation between the parties; forecasting the judicial outcome; negatively presenting the judicial process; using lawyer-client relations to promote agreement, using soft techniques, and enhancing the defendant’s motivation.

These findings were compared to previous findings on the roles of judges in civil proceedings in the framework of the vanishing trial. Civil judges conduct a preliminary proceeding in only 30% of the cases, while 70% of the cases are closed without ever reaching the judge. Contrarily, in the criminal process, judges conduct all of the cases. We found that while civil judges were involved to a great extent in the cases they conducted, criminal judges were actively engaged in only 16.8% of the hearings we observed. In the remaining hearings, judges interventions were minimal, and their role confined to supervising the negotiations conducted outside the court. This article points to ways to close the gaps between the criminal and civil domains by promoting an active secretariat. Also discussed is the possibility of expanding a therapeutic and preventative approach in the framework of criminal judicial conflict resolution during the Moked days.

Ramirez on Dodd-Frank Whistleblower Programs

Mary Kreiner Ramirez (Washburn University - School of Law) has posted Whistling Past the Graveyard: Dodd-Frank Whistleblower Programs Dodge Bullets Fighting Financial Crime (Loyola University Chicago Law Journal, Vol. 50, No. 3, 2019) on SSRN. Here is the abstract:

 

The United States’ reaction to the 2008 Financial Crisis, which caused global ramifications, included the passage of the Dodd-Frank Wall Street Reform and Consumer Protection Act to address a lack of oversight and accountability in the financial industry. Among its provisions, Dodd-Frank provided incentives for whistleblowers to report misconduct and protections for those who do. Despite its success, Dodd-Frank’s whistleblower programs face internal and external challenges that threaten their success. This Article discusses the current climate surrounding corporate accountability and suggests additional protections for whistleblowers and whistleblower actions: allowing private lawsuits against the government under Dodd-Frank’s whistleblower provisions, similar to those allowed under the False Claims Act.

Fluker et al. on Funding Environmental Projects with Regulatory Prosecutions

Shaun Fluker, Janice Paskey and Fiona Balaton (University of Calgary - Faculty of Law, affiliation not provided to SSRN and affiliation not provided to SSRN) have posted Funding Environmental Projects with Regulatory Prosecutions: Transparency and Accountability in Creative Environmental Sentencing (Forthcoming, Journal of Environmental Law and Practice (2019)) on SSRN. Here is the abstract:

 

This paper examines the use of creative sentencing orders which direct an offender to fund projects that facilitate objectives such as environmental research, education or remediation. Given the public interest character of sentencing for an environmental regulatory infraction, there is a surprising absence of transparency and accountability in the administration of these sentencing orders. The selection process for determining which projects are funded is shrouded in secrecy and is almost entirely a matter of discretion, which raises concerns that project recipients are chosen for reasons other than the environmental merit of their proposal. In our study of creative orders issued in Alberta, the majority of funding has been directed to post-secondary institutions and conservation funds who work closely with industry and government departments, while non-governmental environmental groups with established research, education and remediation programs appear to have received comparatively little funding. Good projects also need to be implemented, but insufficient details in sentencing orders and the absence of an oversight regime raises questions about whether project deliverables are ever met. This also creates risk that the funding is subsequently characterized as philanthropy by the offender. Transparency and accountability would be significantly enhanced by the enactment of legislation which establishes or appoints an agency to administer the funding and sets rules on matters such as public engagement in the project selection process, criteria used to evaluate project proposals, reporting on project outcomes, and enforcement.

Lonati & Borlini on Italian Corporate Compliance in the Light of the US Experience

Simone Lonati and Leonardo S. Borlini (Bocconi University - Department of Law and Bocconi University, Angelo Sraffa Department of Legal Studies) have posted Corporate Compliance and Privatization of Law Enforcement. A Study of the Italian Legislation in the Light of the US Experience (Forthcoming, Negotiated Settlements i n Bribery Cases. A Principled Approach , Tina Søreide, and Abiola Makinwa (eds), (Edward Elgar: 2020)) on SSRN. Here is the abstract:

 

In bribery cases, compliance-based defense often implies substantial efforts and costs on the side of corporations for providing enforcement agencies with the facts of the case. In several jurisdictions, corporations and their private sector investigators shape those facts as they lay the ground for a negotiation-based enforcement action ever-more frequently. While public investigators do their own fact-finding missions, the financial consequences and the reputational stigma associated with bribery cases place corporations with a clear interest in proactive cooperation with the public investigation. At the same time, private entities’ proactive involvement in the fact-finding exercise questions the public monopoly on the investigative initiatives in criminal matters and, more subtly though, the very idea of State control on the law enforcement process. On several areas, peculiar kinds of public-private partnerships - featured by a hybrid approach to governance with voluntary monitoring activities and investigative strategies based on the acquisition and control of the private entities’ information assets - are gaining ground. However, in some European continental jurisdictions, which are anchored to a neat distinction between the respective roles of the public authorities and private sector in law enforcement, legislators seem particularly wary of such an equal cooperation in the fact-finding exercise and, occasionally, law enforcement authorities even perceive it as an obstacle to evaluate and evidence allegations.

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Mack on Children and Miranda Waivers

Raneta Lawson Mack (Creighton University School of Law) has posted These Words May Not Mean What You Think They Mean: Toward a Modern Understanding of Children and Miranda Waivers (Boston University Public Interest Law Journal, Vol. 27, No. 258, 2018) on SSRN. Here is the abstract:

 

This article discusses the history of Miranda waiver standards and cases interpreting those standards as applied to children (including a discussion of the recent Slender Man case and the "Making a Murder" conviction involving Brendan Dassey). The article explores efforts on the state level to establish more protective standards for minors facing police interrogations and also takes a comparative look at international efforts to enhance children’s rights during custodial interrogations. Finally, the article offers proposed best practices that acknowledge the vulnerable position of minors in custodial interrogations while also allowing law enforcement to pursue reliable evidence of guilt.

Orozco on Systems Theory of Compliance Law

David Orozco (Florida State University - College of Business) has posted A Systems Theory of Compliance Law (University of Pennsylvania Journal of Business Law, Vol. 22, No. 1, Forthcoming) on SSRN. Here is the abstract:

 

Compliance law theory is incomplete and in a conceptually disconnected state. This article seeks to offer clarification to this seemingly disparate yet growing and vitally important area of legal practice and scholarship. A robust theory of compliance that seeks to better explain and predict compliance-related outcomes is introduced through compliance systems theory. The systems theory of compliance conceptualizes the various actors, institutions and relations that impact compliance practices. Currently, compliance is viewed as a process and this yields inadequate explanatory and predictive power. The behavior and practices of each conceptualized unit in the compliance system, comprising regulators, firms, executives and inter-organizational structures are analyzed in reference to two major forces acting at each level: economic and non-economic institutional forces. These forces impact each unit and help explain compliance-related behavior across all levels within the system. This descriptive theoretical analysis in turn, yields insights and prescriptive recommendations that will help improve compliance law, theory and practice.

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Kirchmeier on A Codefendant's Prison Sentence as a Mitigating Factor in Death Penalty Cases

Jeffrey L. Kirchmeier (CUNY School of Law) has posted Beyond Compare? A Codefendant's Prison Sentence As a Mitigating Factor in Death Penalty Cases (Florida Law Review, Vol. 71, 2019) on SSRN. Here is the abstract:

 

This Article addresses whether the U.S. Constitution requires courts to permit capital defendants to submit, during sentencing, the mitigating factor that a codefendant for the same murder was sentenced to prison instead of to death.

The U.S. Supreme Court has repeatedly stressed the importance of mitigating factors in capital cases. For the most part, litigation since the reintroduction of capital punishment in the 1970s has clarified what circumstances are to be weighed as mitigating. But the Court has not addressed the current divide among lower courts regarding whether the Eighth Amendment requires courts to allow juries to consider a codefendant’s sentence as mitigating evidence.

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Maclin on Seo on Policing the Open Road

Tracey Maclin (Boston University - School of Law) has posted Cops and Cars: How the Automobile Drove Fourth Amendment Law (Forthcoming, Boston University Law Review, Vol. 99, No. 5, 2019) on SSRN. Here is the abstract:

 

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s Justices view the Fourth Amendment rights of motorists essentially the same way that a majority of the Justices did in 1925. Specifically, Part I highlights Seo’s major assertions regarding Carroll; Carroll’s influence on another controversial search and seizure decision, Terry v. Ohio, 392 U.S. 1 (1968), which upheld an officer’s power to stop and frisk a person he suspects is armed and dangerous; and finally, Carroll’s connection to the police authority upheld by the Justices that permits the discretionary and discriminatory policing that currently pervades America’s highways and roads.

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Schertz et al. on The Effect of Street and Greenspace Usage on Crime

Kathryn E. Schertz, James Saxon, Carlos Cardenas-Iniguez, Luís M.A. Bettencourt and Marc Berman (Department of Psychology, Harris School of Public Policy and Center for Spatial Data Science, University of Chicago, Department of Psychology, University of Chicago and The University of Chicago) have posted Neighborhood Street Activity and Greenspace Usage Uniquely Contribute to Predicting Crime (Mansueto Institute for Urban Innovation Research Paper Forthcoming) on SSRN. Here is the abstract:

 

Crime is costly economically, socially, and psychologically for all societies, especially in urban areas. While there are many well-studied environmental and social influences on crime such as poverty and marginalization, one less studied, but important factor is the effect of neighborhood greenspace. Prior research has shown that greenspace is negatively associated with crime, but the mechanism of this effect is debated. One suggested mechanism is that greenspaces increase local street activity, which in turn reduces crime, but past work has failed to examine effects of greenspace and street activity together, making it difficult to decouple these factors. Additionally, past research has typically used the static physical presence of greenspace as opposed to determining residents’ engagement with and use of greenspace, which may be critical to understanding the potential causal role of greenspace on crime.

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Baker on Uncorroborated Historic Sexual Abuse Allegations

Dennis J Baker (University of Cambridge) has posted Accusation as Proof: Uncorroborated Historic Sexual Abuse Allegations on SSRN. Here is the abstract:

 

This paper examines the potential miscarriage of justice upheld in the Supreme Court of Victoria in Pell v The Queen. Firstly, the alibi evidence produced by the defence team was sufficient to make the probability of Cardinal Pell not having an opportunity to perpetrate the crimes a real issue. Once an alibi had been made an issue the Crown had to prove beyond reasonable doubt that there was no probability above 15 per cent that Cardinal Pell had an alibi — not rely on the defence submission that there was a 100 per cent probability of no alibi because of impossibility. The evidence at a minimal demonstrated that the alibi was at least probable: even a conservative estimate would allow a fact-finder to safely conclude that there was 35 per cent probability that Cardinal Pell could not have been alone with the complainant. It might be difficult to argue that it was more probable than not that Cardinal Pell had an alibi, but the evidence shows that the probability of Cardinal Pell having a valid alibi was too high (even if short of a 50 per cent probability) for the reasonable doubt standard of proof to be satisfied. Secondly, there was at a least 35 per cent probability that second sexual attack alleged by the complainant could not have been perpetrated in the circumstances described by the complainant. Thirdly, Ferguson, C.J. and Maxwell, P. did not apply the beyond reasonable doubt standard to these probabilities. Instead, they erroneously held that since what the complainant had alleged could possibility have happened as described by the complainant the Crown had proved beyond reasonable doubt that these things did happen. This was to misinterpret and misapply the law concerning the quantum of proof required in criminal cases. The fact that there was a real possibility that what the complainant alleged could have happened does not prove that there was an 85 per cent an above probability that it did happen, which is what the beyond reasonable doubt standard requires. It requires such strong evidence that any objective fact-finder reviewing the evidence would 85 times out of 100 conclude that they are sure that the person is guilty.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Is Mass Incarceration Inevitable? Andrew D. Leipold University of Illinois College of Law Date Posted: 14 Aug 2019 [2nd last week]	115
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 [3rd last week]	100
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 [4th last week]	97
4.	Beyond Cannabis: Psychedelic Decriminalization and Social Justice Dustin Marlan University of Massachusetts School of Law Date Posted: 20 Aug 2019 [5th last week]	72
5.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [6th last week]	67
6.	Mistakes That Negate Apparent Consent Andrew Dyer The University of Sydney Law School Date Posted: 16 Aug 2019 [9th last week]	60
7.	Twisted Into Knots: Canada’s Challenges in Lawful Access to Encrypted Communications Leah West and Craig Forcese Carleton University - Norman Paterson School of International Affairs and University of Ottawa - Common Law Section Date Posted: 30 Aug 2019 [8th last week]	60
8.	Closure in the Criminal Courtroom: The Birth and Strange Career of an Emotion Susan A. Bandes DePaul University - College of Law Date Posted: 30 Sep 2019 [new to top ten]	55
9.	Kahler v. Kansas: Insanity and the Historical Understanding of Mens Rea Michael Louis Corrado University of North Carolina School of Law Date Posted: 06 Sep 2019 [new to top ten]	54
10.	The Mens Rea for Sexual Assault, Sexual Touching and Sexual Act Offences in New South Wales: Leave it Alone (Although You Might Consider Imposing an Evidential Burden on the Accused) Andrew Dyer The University of Sydney Law School Date Posted: 06 Sep 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 Law & Politics of Cyberattack Attribution Kristen Eichensehr University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019	165
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	93
3.	Demise of 'One Country, Two Systems'? Reflections on the Hong Kong Rendition Saga Cora Chan The University of Hong Kong - Faculty of Law Date Posted: 23 Sep 2019 [5th last week]	88
4.	The Consequences of Automating and Deskilling the Police Elizabeth E. Joh University of California, Davis - School of Law Date Posted: 18 Sep 2019 [3rd last week]	74
5.	The Interior Structure of Immigration Enforcement Eisha Jain University of North Carolina School of Law Date Posted: 17 Sep 2019 [4th last week]	67
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	66
7.	The Biases of Experts: An Empirical Analysis of Expert Witness Challenges Jason Chin, Michael Lutsky and Itiel Dror Sydney Law School, University of Toronto - Faculty of Law and University College London (UCL) Date Posted: 23 Aug 2019 Last Revised: 02 Sep 2019	64
8.	Equal Protection Under Algorithms: A New Statistical and Legal Framework Crystal Yang and Will Dobbie Harvard Law School and Harvard University - Harvard Kennedy School (HKS) Date Posted: 11 Oct 2019 [new to top ten]	60
9.	Translating Crimes Eric S. Fish Independent Date Posted: 27 Aug 2019	55
10.	Plea Bargaining, Trial-Avoiding Conviction Mechanisms, and the Global Administratization of Criminal Convictions Maximo Langer University of California, Los Angeles (UCLA) - School of Law Date Posted: 23 Sep 2019	52

Baker on Subjective Fault

Dennis J Baker (University of Cambridge) has posted Tracing a Thousand Years of Subjective Fault as the Fulcrum of Criminal Responsibility in Common Law on SSRN. Here is the abstract:

 

In this article I shall try to outline the history of subjective fault in English criminal law from the Anglo-Saxon period (roughly from 500 to 1066) to the time of Lambarde’s writings in the late 1570s. I do this to provide the historical foundations for some of the interpretations given to the law in this treatise. Furthermore, this historical understanding explains some of the modern approaches to criminalization which tend to blindly allow some serious wrongs to be treated as private wrongs rather than as crimes (i.e., privacy invasions, unfair dismissal for complaining about sexual harassment or bullying and so on), while at the same time criminalizing trivial wrongs that could be left to the parties to resolve.

Roth on Rehaif and the Model Penal Code

Jessica Roth (Yeshiva University - Benjamin N. Cardozo School of Law) has posted Rehaif v. United States: Once Again, a Gun Case Makes Surprising Law (32 Fed. Sent’g Rep. 23 (2019)) on SSRN. Here is the abstract:

 

Gun cases often make surprising law, and the U.S. Supreme Court’s June 2019 decision in Rehaif v. United States is no exception. Rehaif involved a defendant convicted of violating 18 U.S.C. § 922(g), which makes it a crime for certain persons to possess a firearm or ammunition in or affecting interstate commerce. For decades, there was judicial consensus that the statute did not require proof that defendants were aware of the status that caused them to fall within the statute’s purview. Nevertheless, in Rehaif, a divided Supreme Court held that the government must prove a defendant’s knowledge of such status to prevail in a Section 922(g) prosecution. Given the number of Section 922(g) cases brought each year, Rehaif is a highly consequential decision, even if limited to its immediate context. But it is also surprising for a variety of reasons. Not only did the Supreme Court hear the case in the absence of a circuit split, but the alignment of the Justices was also unusual. Most importantly, in a first for the Court, the opinion relied on the Model Penal Code’s default rules of statutory interpretation to hold that a statutorily prescribed mens rea term applied to all material elements of the offense. Whether Rehaif signals a stealth mens rea revolution of broader scope remains to be seen, but in any event the opinion is a fascinating study in statutory interpretation that seems destined for law school textbooks.

"US House approves animal cruelty prevention bill"

From Jurist:

The bill, known as the “Preventing Animal Cruelty and Torture Act” or the “PACT Act,” is particularly aimed at preventing and punishing animal crushing by making it illegal for people to crush animals. It is also makes it illegal for people to create animal crushing videos that will be distributed. Finally, it makes it illegal for people to knowingly distribute those videos. Anybody who is found guilty of doing any of these things “shall be fined under this title, imprisoned for not more than 7 years, or both.”