CrimProf Blog

Sundareshan on International Trafficking of Endangered Species

Priyanka Sundareshan has posted Prosecution for a Porpoise: Strengthen U.S. Enforcement against Criminal Networks to Address International Trafficking of Endangered Species (10 Arizona Journal of Environmental Law & Policy 216 (2020)) on SSRN. Here is the abstract:

 

The vaquita marina is a critically endangered porpoise, only found in the Gulf of California, whose numbers have dropped precipitously over the last few years such that fewer than 20 individuals remain in the population. Their predicament is exacerbated by the fact that they are often killed as bycatch in Mexican fishing nets set out to catch totoaba, an endangered fish endemic to the same waters. The totoaba, like many other endangered species, are imperiled by the high prices they command in illegal wildlife markets in other countries. Although both vaquita and totoaba are protected by environmental regimes such as the U.S. Endangered Species Act and the Convention on International Trade in Endangered Species, efforts to apprehend and prosecute totoaba traffickers under these laws have been weak and ineffective, as have fishing bans and enforcement in Mexico.

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Benedet & Grant on Father-Daughter Sexual Abuse

Janine Benedet and Isabel Grant (University of British Columbia - Faculty of Law and University of British Columbia - Faculty of Law) has posted Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study ((2020) 32:2 Canadian Journal of Women and the Law) on SSRN. Here is the abstract:

 

Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year period. An examination of these cases shows that more than one quarter of all reported decisions involving sexual assault against adolescent girls were committed by stepfathers and biological fathers. The authors found patterns of violence similar to those of coercive control described by adult women in intimate relationships, with men exerting controlling behaviours that extended beyond the sexual activity itself. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. The authors conclude that sexual abuse by fathers may be the easiest to perpetrate, the hardest to uncover, and the most damaging to victims.

Roiphe on DOJ Lawyers

Rebecca Roiphe (New York Law School) has posted A Typology of Justice Department Lawyers' Roles and Responsibilities (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

 

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between independence and responsiveness to the administration. By explaining these roles and responsibilities, this Article both describes the different DOJ lawyer roles and seeks to strengthen the institution by making the informal norms that preserve and protect its mission more explicit. The Article concludes that, as DOJ expanded, it evolved to allow the Attorney General to balance the political and legal responsibilities of his office. He does so by advising and implementing administration policies while preventing impermissible political considerations from influencing those DOJ officials who are charged with the neutral interpretation and enforcement of the law.

Sukhatme & Jenkins on Judicial Contributions and Counsel Appointment

Neel U. Sukhatme and Jay Jenkins (Georgetown University Law Center and Texas Criminal Justice Coalition) have posted Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel (70 Duke L.J. __ (2020)) on SSRN. Here is the abstract:

 

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests. This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States. We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

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Nevins-Saunders on Judicial Drift

Elizabeth Nevins-Saunders (Hofstra University - Maurice A. Deane School of Law) has posted Judicial Drift (American Criminal Law Review, Vol. 57, No. 2, 2020) on SSRN. Here is the abstract:

 

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Conklin on Bayesian Jury Instructions and the Defense Attorney's Fallacy

Michael Conklin (Angelo State University) has posted The Effectiveness of Bayesian Jury Instructions in Mitigating the Defense Attorney's Fallacy (9 HOUS. L. REV.: OFF REC. 73 (2019)) on SSRN. Here is the abstract:

 

A previous study found that the effects of the prosecutor’s fallacy can be minimized if juries are presented with a Bayesian jury instruction. This study examines whether a similar instruction can likewise combat the more pervasive defense attorney’s fallacy or if the results of the previous study were more a function of increased confusion rather than an increased understanding of conditional probabilities. Additionally, prior performance in a statistics class is considered as a measure of susceptibility to this probabilistic fallacy.

Wright on Engisch on Causality and Criminal Law

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Causality as a Characteristic of Criminal Law (Karl Engisch's Die Kausalität als Merkmal der strafrechtlichen Tatbestände) on SSRN. Here is the abstract:

 

This work by Karl Engisch was, as far as I am aware, the first to reject the traditional but-for / sine-qua-non test as the exclusive test of factual causation, or even as a proper test when employed, as usually assumed, through hypothetical analysis of what might otherwise have occurred rather than real world analysis of what actually occurred. Engisch demonstrated the defects of the but-for / sine-qua-non test in duplicative and preemptive over-determined causation situations and the proper employment, instead, of a "covering law" analysis, according to which actual facts are tested for their causal status in singular instances through subsumption under the laws of nature to reach the correct answers. This work is a landmark in the German legal literature and likely had a significant impact on Hart and Honoré's later landmark book, Causation in the Law. Honoré, at least, likely read all of it. This is a translation only of Part II, The Condition Theory. The translation was initially done using Google Translate, which works quite well as an initial translation if one eliminates the carriage returns at the end of each few words in the box containing the text to be translated, but the resulting text sometimes needed to be revised based on personal knowledge. I welcome advice regarding any significant errors in translation.

Conklin on "Victim" or "Complaining Witness"

Michael Conklin (Angelo State University) has posted Victim or Complaining Witness: The Difference Between Guilty and Not Guilty (San Diego Law Review, 2020) on SSRN. Here is the abstract:

 

A trial court’s distinction between using the language “victim” and “complaining witness” may seem trivial, but it plays a significant role in the criminal justice system. Defense attorneys argue that using the term victim presupposes what the trial is meant to determine and therefore denies defendants’ constitutionally guaranteed presumption of innocence. Some defense attorneys have gone so far as to argue that “calling the deceased a victim is just as wrong as calling the defendant a criminal.” Conversely, prosecutors point out that the term victim is frequently used in statutes and that it does not necessarily presuppose criminal activity by the defendant. Furthermore, the alternative term, complaining witness, may lead jurors to associate the accuser’s testimony with trivial, annoying complaints by children or coworkers. These seemingly slight intimations at trial can bias a jury toward a particular conclusion, undermining its autonomy.

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Conklin on Sarat's Claims on Botched Executions

Michael Conklin (Angelo State University) has posted Botched Statistics on Botched Executions: Refuting Austin Sarat’s Claims (CUMB. L. REV. ONLINE (2020 Forthcoming)) on SSRN. Here is the abstract:

 

Austin Sarat’s statistics on execution method botch rates have been cited by law review articles promoting various policies including the use of firing squads over lethal injections. They have also been cited by the United States Supreme Court. The conclusion of Sarat’s statistics is that there exists a 0% botch rate for firing squads and a 7.12% botch rate for lethal injection. These frequently cited statistics are — at best — highly misleading. The claimed firing squad botch rate leaves out blatant examples of botched firing squad executions. Conversely, the lethal injection statistic arbitrarily implements a definition of “botched” execution so expansive as to render the ultimate result completely meaningless. Examples of what Sarat considers a “botched” lethal injection include inmates who resist, difficulties inserting the IV, the passage of fourteen minutes before official death is declared, and prison officials opening the curtain too early. This essay documents the various problems with Sarat’s execution botch rate statistics and considers potential motivations for promoting the resulting misinformation.

Conklin on Sanchez on Jury Diversity

Michael Conklin (Angelo State University) has posted Rethinking Jury Diversity: A Response to Juan R. Sánchez’s A Plan of Our Own on SSRN. Here is the abstract:

 

This is a response to Judge Juan R. Sánchez’s article A Plan of Our Own: The Eastern District of Pennsylvania’s Initiative to Increase Jury Diversity. While some of the policy proposals promoted regarding jury selection are likely beneficial, the rationale Sánchez provides for their support is rooted in harmful racial stereotypes. Furthermore, the evidence presented is insufficient to support the claims of jury diversity benefits.

Conklin on Death Penalty Abolitionist Rhetoric

Michael Conklin (Angelo State University) has posted Effective Death Penalty Abolitionist Rhetoric: A Quantitative Analysis of What Works (LINCOLN MEMORIAL L. REV.  (2020 Forthcoming)) on SSRN. Here is the abstract:

 

This essay reports the findings of a study designed to measure the effectiveness of anti-death penalty rhetoric at decreasing support for the practice. Demographic factors, such as gender and political affiliation, were also analyzed for potential causal relationships. The surprising results of this novel study will help inform abolitionist advocates as to the best practices for promoting their message. Furthermore, the findings invite future research into death penalty attitudes and advocacy.

Tanielian & Tanielian on Perceptions Regarding Human Trafficking

Adam Richard Tanielian and Sangthong Tanielian (Ramkhamhaeng University - Institute of International Studies and affiliation not provided to SSRN) have posted A Cross-Cultural Comparison of Perceptions Regarding Human Trafficking (Journal of Southeast Asian Human Rights, Vol. 3 No. 1, 2019) on SSRN. Here is the abstract:

 

This study surveyed 135 individuals, of which 68 were native English speakers and 67 were native Thai speakers. Respondents answered questions on issues related to human trafficking, its causes, and potential solutions. Statistical tests showed significant variance in opinions between language and other groups regarding factors associated with trafficking and regarding the potential impacts of the legalization of prostitution. Thai responses reflected collectivist cultural perceptions, while English responses reflected more individualistic views. Males and English speakers were most likely to think legalized prostitution would lead to a reduction in human trafficking while females and Thai speakers were most likely to believe legalized prostitution would increase trafficking. Responses to an open-ended question showed participants felt similarly about potential remedies for human trafficking, including information and awareness campaigns, interactions between civilians and police, increased penalties for offenders, and reduction in macro-environmental variables such as poverty.

Kleck on Unemployment and Crime

Gary Kleck (Florida State University - College of Criminology and Criminal Justice) has posted Unemployment and Crime: Explaining the Apparent Nonrelationship on SSRN. Here is the abstract:

 

The majority of macro-level research has found no significant positive association between unemployment rates and crime rates, even though theory suggests that there should be one. This paper considers two possible explanations for the absence of the expected relationship. The first is that public assistance expenditures may cushion the impact of unemployment so that it has no impact on crime. The second is that much prior research has controlled for poverty rates or income levels, which may partial out much of the indirect crime-increasing effect of unemployment on crime, creating the appearance that crime and unemployment are unrelated.

Analyses of 1990 metropolitan area data fail to support the welfare explanation. Specifically, the effect of unemployment rates on crime rates is just as high where welfare payments are more generous as where they are less generous. In support of the second explanation, a review of past unemployment-crime research indicates that 45% of all findings, and 65% of cross-sectional findings, were based on models that controlled for poverty or income, and that studies with such controls were less likely to find a significant positive association than those without the controls. Moreover, analyses of the metropolitan data also support the partialling hypothesis in that the coefficient for unemployment decreases once poverty is controlled, for all crimes except rape.

Meyer on Kahler v. Kansas

Linda Ross Meyer (Quinnipiac University School of Law) has posted How the Supreme Court Lost its Reason on SSRN. Here is the abstract:

 

This is a short essay on the U.S. Supreme Court's opinion in Kahler v. Kansas, in which the Court held that the right/wrong M'Naghten test of insanity is insufficiently fundamental to be required by Due Process. I argue that the holding is, in part, the symptom of a deep and pernicious positivism and moral cynicism that is itself a kind of "not knowing" of the difference between right and wrong.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn Andrew Manuel Crespo Harvard Law School Date Posted: 12 Jun 2020 [new to top ten]	475
2.	Fear of a Black and Brown Internet: Policing Online Activism Sahar F. Aziz and Khaled A. Beydoun Rutgers Law School and University of Arkansas - School of Law Date Posted: 04 Jun 2020	325
3.	Detecting Mens Rea in the Brain Owen D. Jones, Read Montague and Gideon Yaffe Vanderbilt University - Law School & Dept. of Biological Sciences, Virginia Polytechnic Institute & State University - Virginia Tech Carilion Research Institute and Yale Law School Date Posted: 30 Apr 2020 [1st last week]	324
4.	Criminal Law in Crisis Benjamin Levin University of Colorado Law School Date Posted: 11 May 2020 [3rd last week]	157
5.	Criminal Law During (and After) COVID-19 Terry Skolnik University of Ottawa, Faculty of Law, Civil Law Section Date Posted: 13 May 2020 [4th last week]	127
6.	'See This Empty Cage Now Corrode': The International Human Rights and Comparative Law Implications of Sexually Violent Predator Laws Michael L. Perlin and Heather Cucolo New York Law School and New York Law School Date Posted: 12 May 2020 [5th last week]	105
7.	Risking Criminal Liability in Cultural Property Transactions Karin Orenstein Independent Date Posted: 20 May 2020	86
8.	The Corrective Justice Theory of Punishment Jacob Bronsther Harvard Law School Date Posted: 04 Jun 2020	80
9.	The Unusual Cruelty of Nursing Homes Behind Bars Rachel Lopez Drexel University Thomas R. Kline School of Law Date Posted: 24 Apr 2020	78
10.	The First Step Act and the Brutal Timidity of Criminal Law Reform Mark William Osler University of St. Thomas - School of Law (Minnesota) Date Posted: 12 May 2020	67

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Brief on Behalf of Former Federal Prosecutors and High-Ranking Department of Justice Officials in United States v. Flynn Andrew Manuel Crespo Harvard Law School Date Posted: 12 Jun 2020 [new to top ten]	475
2.	In the Age of Decriminalization, Is the Odor of Marijuana Alone Enough to Justify a Warrantless Search? Meghan Matt Southern University Law Review Date Posted: 20 Apr 2020 [1st last week]	233
3.	The Institutional Design of Community Control Jocelyn Simonson and K. Sabeel Rahman Brooklyn Law School and Brooklyn Law School Date Posted: 08 May 2020	175
4.	#BelieveWomen and the Presumption of Innocence: Clarifying the Questions for Law and Life Kimberly Kessler Ferzan University of Virginia, School of Law Date Posted: 04 May 2020 [5th last week]	130
5.	The Shadow Bargainers Ronald F. Wright, Jenny Roberts and Betina Wilkinson Wake Forest University - School of Law, American University - Washington College of Law and Wake Forest University Date Posted: 15 Jun 2020 [4th last week]	126
6.	The Right to a Public Trial in the Time of COVID-19 Stephen Smith Santa Clara University - School of Law Date Posted: 29 Apr 2020	117
7.	Pandemics, Risks and Remedies Lee Kovarsky University of Maryland, Francis King Carey School of Law Date Posted: 27 May 2020 [8th last week]	91
8.	The Adversarial Mindset Dan Simon, Minwoo Ahn, Doug Stenstrom and Stephen J. Read University of Southern California Gould School of Law, University of Southern California Department of Psychology, California State University, Los Angeles and University of Southern California - Department of Psychology Date Posted: 06 May 2020 [9th last week]	85
9.	AI in the Courtroom: A Comparative Analysis of Machine Evidence in Criminal Trials Sabine Gless University of Basel Date Posted: 10 Jun 2020 [new to top ten]	78
10.	Precedent on Precedent Nina Varsava University of Wisconsin-Madison Date Posted: 01 Jun 2020	73

Conklin on Answering Pleas Bargaining's Critics

Michael Conklin (Angelo State University) has posted In Defense of Plea Bargaining: Answering Critics' Objections (W. ST. U. L. REV. (2020 Forthcoming)) on SSRN. Here is the abstract:

 

Unfortunately, even many advocates for plea bargaining view the practice as something that should merely be tolerated as the lesser of two evils. While plea bargaining has its flaws, the practice rarely receives the credit it deserves for the benefits it provides to the criminal justice system. This Article presents the case in favor of plea bargaining.

Reading abolitionist literature, it quickly becomes apparent that their distaste for plea bargaining is rooted in numerous misconceptions. These include a distorted view of innocence, the belief in a fictional “right to leniency,” a revisionist view of previous attempts at abolishment, and the ignoring of how plea bargaining benefits the defendant and the rehabilitation process. This Article provides a brief history of plea bargaining, followed by rebuttals to the arguments against the practice, and finally positive arguments in support of plea bargaining.

Conklin on Firing Squads and Lethal Injections

Michael Conklin (Angelo State University) has posted No, the Firing Squad is Not Better Than Lethal Injection: A Response to Stephanie Moran’s A Modest Proposal on SSRN. Here is the abstract:

 

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that firing squads are the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over lethal injection. Topics covered include the alleged burning sensation from lethal injection, length of lethal injection pain, constitutionality of administering an intravenous injection (IV), inmate preferences in method of execution, constitutionality of firing squads, overlooked firing squad safety measures, and deceptive botch rate statistics. Additionally, potential motivations for why one would want to promote the firing squad over lethal injection are examined.

Sales & Magaldi on Revenge Porn Statutes

Jonathan S. Sales and Jessica Magaldi (Bentley University and Pace University) have posted Deconstructing the Statutory Landscape of 'Revenge Porn': An Evaluation of the Elements that Make an Effective Nonconsensual Pornography Statute (American Criminal Law Review, 2020) on SSRN. Here is the abstract:

 

This Article examines these issues by deconstructing the regulatory schema of the jurisdictions that criminalize NCP into fundamental elements. Part I addresses background facts, representative incidents, and damages to victims. Part II analyzes the general construction of criminal statutes into actus reus and mens rea elements. Part III sets forth a review of the statutory schemes that criminalize NCP. Part IV reviews the circumstances of jurisdictions without NCP statutes. Part V considers some sources of differences in the elements included in the various NCP statutes.

This analysis reveals that the more numerous the essential elements of an NCP statute, the more likely the statute will allow substantial NCP conduct to escape prosecution. Conversely, statutes that focus on the issue of the victim’s lack of consent for the defendant to distribute the intimate image and that have fewer additional essential elements allow fewer perpetrators of NCP to escape prosecution.

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Goncalves & Mello on Racial Bias in Policing

Felipe Goncalves and Steven Mello (University of California, Los Angeles (UCLA) - Department of Economics and Dartmouth College) have posted A Few Bad Apples? Racial Bias in Policing on SSRN. Here is the abstract:

 

We estimate the degree to which individual police officers practice racial discrimination. Using a bunching estimation design and data from the Florida Highway Patrol, we show that minorities are less likely to receive a discount on their speeding tickets than white drivers. Disaggregating this difference to the individual police officer, we find that 40% of officers explain all of the aggregate discrimination. We then apply our officer- level discrimination measures to various policy-relevant questions in the literature. In particular, reassigning officers across locations based on their lenience can effectively reduce the aggregate disparity in treatment.