CrimProf Blog

Lee on Mala Prohibita and Proportionality

Youngjae Lee (Fordham University School of Law) has posted Mala Prohibita and Proportionality (Criminal Law and Philosophy) on SSRN. Here is the abstract:

 

What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or wrongful, so long as no fraud is involved, the relevant parties understand the relevant risks, and so on. But practicing investment advising without registering is a crime for which one may be convicted and punished. When one thinks of crimes, paradigmatic offenses are crimes like murder, rape, and robbery, but offenses like failure to register as an investment advisor are different. But in what way? One standard explanation is the distinction between two types of offenses, malum in se and malum prohibitum. Some offenses, like murder, are wrongs “in themselves” (“in se”) whereas other offenses, like investment advising without registering as an advisor, are wrongs because they have been prohibited (“prohibitum”). The question this Essay asks is how we should think about proportionality of punishment when punishing such mala prohibita offenses. This Essay presents a framework for such proportionality determinations and raises some challenges such a framework would need to confront.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021 [2nd last week]	239
2.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021 [3rd last week]	216
3.	From Statues to Statute: Protests and Vigils in the Time of COVID-19 Jamie Grace Sheffield Hallam University Date Posted: 30 Mar 2021 [4th last week]	206
4.	Doing Away With Disorderly Conduct Rachel Moran University of St. Thomas - School of Law (Minnesota) Date Posted: 02 Apr 2021 [5th last week]	133
5.	Report of the Willamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon Brian Gallini, Samantha Klausen and Eden Vasquez Willamette University - College of Law, Willamette University and Willamette University Date Posted: 14 Apr 2021 [new to top ten]	132
6.	Qualified Immunity, Sovereign Immunity, and Systemic Reform Katherine Mims Crocker William & Mary Law School Date Posted: 30 Mar 2021	121
7.	A Three-Pillar Approach to Achieving Trustworthy Use of AI and Emerging Technology in Policing in England and Wales: Lessons From the West Midlands Model Marion Oswald University of Northumbria at Newcastle Date Posted: 13 Apr 2021	117
8.	Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement Samuel R. Gross, Maurice Possley, Kaitlin Roll and Klara Stephens University of Michigan Law School, affiliation not provided to SSRN, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 13 Nov 2020	111
9.	The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns Divya Ramjee and Katelyn N Ringrose American University (Washington, DC) and affiliation not provided to SSRN Date Posted: 28 Mar 2021	107
10.	The Feminist Script for Punishment I. India Thusi Widener University - Delaware Law School Date Posted: 12 May 2021 [new to top ten]	102

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime Ira Mark Ellman Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley Date Posted: 01 Apr 2021	460
2.	Domestic Terrorism, Attack on the U.S. Capitol, and the Second Impeachment of Donald Trump Lawrence J. Trautman Prairie View A&M University - College of Business Date Posted: 02 Apr 2021	310
3.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021	239
4.	Constraining Criminal Laws F. Andrew Hessick and Carissa Byrne Hessick University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 28 Apr 2021 [new to top ten]	149
5.	Doing Away With Disorderly Conduct Rachel Moran University of St. Thomas - School of Law (Minnesota) Date Posted: 02 Apr 2021 [7th last week]	133
6.	Race-Based Remedies in Criminal Law Ion Meyn University of Wisconsin Law School Date Posted: 22 Apr 2021 [new to top ten]	104
7.	Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67 David Prendergast School of Law, Trinity College Dublin Date Posted: 22 Mar 2021 [9th last week]	103
8.	Gender Violence, the Carceral State, and the Politics of Solidarity Deborah M. Weissman University of North Carolina School of Law Date Posted: 11 Mar 2021 [10th last week]	89
9.	Race, History, and Immigration Crimes Eric S. Fish University of California, Davis - School of Law Date Posted: 19 Apr 2021 [new to top ten]	78
10.	The Modern Common Law of Crime Robert Leider George Mason University - Antonin Scalia Law School, Faculty Date Posted: 06 Apr 2021 [new to top ten]

Knupfer et al. on Investment Fraud's Effects on Victims

Samuli Knüpfer, Ville Rantala and Petra Vokata (BI Norwegian Business School, University of Miami - Department of Finance and Ohio State University (OSU) - Department of Finance) have posted Scammed and Scarred: Effects of Investment Fraud on its Victims on SSRN. Here is the abstract:

 

We study the effects of investment-fraud victimization using information on thousands of Ponzi scheme participants combined with register data on the Finnish population. A difference-in-differences analysis reveals the victims earn 5% less income after the scheme collapses. This persistent loss arises from a combination of unemployment, absenteeism, mobility, and labor force exit, and its long-run value exceeds the direct investment loss. Victims also experience higher indebtedness and more divorces and shy away from investments delegated to asset managers. These scars from fraud victimization add to the social cost of fraud and are relevant for optimal regulatory design.

Wright et al. on Election Contestation and Progressive Prosecutors

Ronald F. Wright, Jeff Yates and Carissa Byrne Hessick (Wake Forest University - School of Law, Binghamton University - Department of Political Science and University of North Carolina School of Law) have posted Election Contestation and Progressive Prosecutors (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

A group of change-oriented chief prosecutors use the label “progressive prosecutor” to describe their distinctive approach to the prosecutor’s work. But it is not yet clear how deep those proposed changes go. Did media accounts focus on vivid but exceptional election campaigns, or did the last decade deliver a widespread change in U.S. prosecution leadership? We explore this question by collecting the results in prosecutor elections in 200 high-population districts in the United States, between 2012 and 2020. Prosecutor elections have traditionally been sleepy affairs, where incumbents most often ran unopposed and won re-election more often than incumbents in other public offices. Setting aside the difficult issues of measuring how “progressive” each candidate might be, we simply ask whether prosecutor election campaigns are becoming more contested, now that progressive prosecutors offer an alternative vision of the job.

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"Supreme Court May Revisit Ruling on Native American Rights in Oklahoma"

From The New York Times, reporting on the Court's order on Wednesday:

The court’s three liberal members — Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — dissented from the Supreme Court’s order, which gave no reasons and said it would remain in force while the court considered whether to hear the state’s appeal.

But the order suggested that the court might reconsider or narrow its 5-to-4 decision last year in McGirt v. Oklahoma, which said that a vast chunk of Oklahoma, including much of Tulsa, the state’s second-biggest city, was made up of Indian reservations. The decision barred prosecutions of Native Americans on those lands by state or local law enforcement, saying they must instead face justice in federal or tribal courts.

Feess & Sarel on Optimal Fine Reductions for Self-Reporting

Eberhard Feess and Roee Sarel (Victoria University of Wellington and Institute of Law and Economics, University of Hamburg) have posted Optimal Fine Reductions for Self-Reporting: The Impact of Loss Aversion on SSRN. Here is the abstract:

 

Fine reductions for self-reported offenses entail a potential tradeoff. On the one hand, inducing offenders to self-report allows the social planner to save on enforcement costs and reduce harm through early detection. On the other hand, fine reductions may also reduce deterrence: offenders anticipate that if their probability of apprehension turns out to be higher than initially expected, they can exploit the possibility of a more lenient sanction. We analyze how this trade-off is affected by the offender's utility function, contrasting neoclassical standard preferences with loss aversion. For loss aversion, we apply the approach by Kőszegi and Rabin (2006), in which reference points are determined by the ex ante expectations of equilibrium strategies. Assuming that the private benefit from crime is lost in case of detection, we distinguish between loss aversion in the fine dimension and in the benefit dimension. Intuitively, one might assume that loss aversion facilitates law enforcement because losses loom larger than gains, which sets incentives to refrain from crime. This intuition, however, carries over to our model with self-reporting only if loss aversion in the fine dimension is sufficiently large compared to loss aversion in the benefit dimension.

Green & Roiphe on Policing Politicization of the DOJ

Bruce A. Green and Rebecca Roiphe (Fordham University School of Law and New York Law School) have posted Who Should Police Politicization of the DOJ? (Notre Dame Journal of Law, Ethics and Public Policy, Vol. 35, 2021) on SSRN. Here is the abstract:

 

It is generally accepted that federal prosecutors should not use their authority in individual criminal cases to promote partisan objectives. It is less clear who is best suited to investigate and resolve allegations that prosecutors, including possibly the Attorney General, have misused federal power in this manner. Various different officials and agencies have some authority to uncover corruption and political bias in the Department of Justice: At least in some situations, trial courts, federal and state disciplinary authorities, Congress, as well as several units within DOJ itself, can pursue a claim that a particular federal prosecutor was acting for impermissible partisan reasons. This essay analyzes these different actors’ roles and responsibilities and concludes that, for two reasons, the DOJ Inspector General (“IG”) is in the best position to serve this function and ought to be given broader authority to do so: first, IGs are least likely to have a political bias themselves; and, second, the IG has the requisite experience to conduct a thorough investigation and the statutory mandate to make an investigation public. Further, the IG’s power is held in check by Congress, as well as by the President, who has the power to remove the IG from office.

Levine on Victims' Rights and Diversion

Kay Levine (Emory University School of Law) has posted Victims’ Rights in the Diversion Landscape on SSRN. Here is the abstract:

 

In this piece I explore the practical and theoretical conflicts that might surface when the diversion movement and the victims’ rights movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning victims’ rights movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the context of fiscal responsibility, compassion for the offender, and proportionality in the justice system that lie at the heart of diversion schemes. Any other arrangement risks elevating retribution over rehabilitation and inserts a level of arbitrariness into the diversion process that would subvert our commitment to fairness and transparency.

Molitorisova & Burke on Self Defense in Domestic Violence Cases

Alexandra Molitorisova and Ciarán Burke (University of Bayreuth, Faculty of Law and University of Jena - Friedrich Schiller Universität) have posted The Istanbul Convention’s Evidentiary Requirements in the light of Laws on Self-Defence and Mitigating Criminal Responsibility (University of Miami International & Comparative Law Review, Vol. 28, No. 2, 2021 Forthcoming) on SSRN. Here is the abstract:

 

The article argues that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), a comprehensive international treaty, may necessitate deep changes in its Parties’ domestic legal regimes, including reconceptualising laws on circumstances excluding or mitigating criminal responsibility and related evidentiary issues in domestic violence cases. The article first presents the theoretical underpinnings of a gendered understanding of violence and criminal laws. It then proceeds to present different approaches to law reform that have contemplated gendered laws on circumstances that exclude criminal responsibility, mostly in the context of homicides committed by battered women. Traditional approaches to law reform demonstrate how a gendered reconsideration of a single legal concept requires reconsideration of all legal principles governing the structure of that concept and causes a cascade effect. This, in turn, requires specific evidentiary considerations, including the context in which a crime is perpetrated, namely the dynamics of abusive partner relationships, social framework evidence, and the ‘demystification’ of violence against women. The article suggests that the Istanbul Convention’s emphasis on investigation and evidence and the promotion of a "gendered understanding of violence" may potentially open the question of criminal responsibility of female offenders by elevating gendered rules of evidence to gendered criminal law provisions (in a reverse cascade effect).

Donohue on The Foreign Intelligence Surveillance Courts

Laura Donohue (Georgetown University Law Center) has posted The Evolution and Jurisprudence of The Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review (Harvard National Security Journal, Vol. 12, Forthcoming) on SSRN. Here is the abstract:

 

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III court; the effort to understand the existing statutory language in light of new and emerging technologies; the tension among constitutional rights, the need for information, and the implications of increasingly broad surveillance programs; and the courts’s growing role in conducting oversight and having to respond to Executive Branch errors, noncompliance, and misrepresentations. This Article details these tensions in light of the courts’ jurisprudence, noting the areas where we are likely to continue to see concerns in the implementation of the Foreign Intelligence Surveillance Act going forward.

Bullock et al. on Policing Practices

Joan RM Bullock, Constance Fain, L. Darnell Weeden and SpearIt (Texas Southern University - Thurgood Marshall School of Law, Texas Southern University - Thurgood Marshall School of Law, Texas Southern University - Thurgood Marshall School of Law and Texas Southern University - Thurgood Marshall School of Law) have posted The U.S. Constitution: Reimagining 'We the People' as an Inclusive Construct (6 The Bridge: Interdisciplinary Perspectives on Legal and Social Policy 1(2021)) on SSRN. Here is the abstract:

 

This is a transcript of a panel discussing policing practices in America. It was a part of a symposium entitled, Police Misconduct and Qualified Immunity: Reimagining "We the People" held at Thurgood Marshall School of Law

Grolleau on The Impact of Legal Team Size on Third Party Perceptions

Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi (Montpellier SupAgro and Researcher at LAMETA, George Mason University - Antonin Scalia Law School, Faculty and INRA Ecodéveloppement) have posted The Impact of Legal Team Size on Third Party Perceptions on SSRN. Here is the abstract:

 

We examine whether the number of lawyers representing a defendant impacts third parties’ moral judgments and recommended punishments for similar offenses. Specifically, we use an experimental survey with a between-subjects design to examine third parties’ perceptions regarding the seriousness of fraud and tax evasion offenses and the punishments they deem appropriate for these offenses. Our benchmark analysis suggests that subjects’ perceived severity and seriousness of both offenses are significantly increasing in the number of lawyers representing the defendant. These results could be driven both by a direct impact of legal representation on third parties’ perceptions and preferences for punishment, or by third parties updating their beliefs regarding the seriousness of these offenses based on the defendant’s legal expenditures. To investigate whether the latter mechanism may be driving results, we conduct a second experimental survey wherein subjects are informed that the number of lawyers has been randomly determined. This causes the significant relationship between the perceived seriousness of the offense and the number of lawyers to vanish. However, for fraud offenses, increasing the number of lawyers from one to more lawyers increases third parties’ recommended sanctions, which is consistent with a psychological phenomenon of ‘luck envy’.

Slobogin on Introduction to U.S. Criminal Procedure

Christopher Slobogin (Vanderbilt University - Law School) has posted Advanced Introduction to U.S. Criminal Procedure (Edward Elgar Publishing) on SSRN. Here is the abstract:

 

This 282-page book covers every significant aspect of U.S. criminal procedure. Focusing on Supreme Court cases and the most important statutory rules that provide the framework for the criminal justice system, the book illuminates the nuances of American criminal procedure doctrine and offers factual examples of how it it is applied. Provided here are the table of contents and Chapter 1, which discusses the goals of criminal procedure law and its primary sources.

Dissents from denial of certiorari regarding method of execution

Justice Sotomayor, joined by Justices Breyer and Kagan, dissented in Johnson v. Precythe. Justice Breyer also filed a separate dissent.

Opinion permitting unlawful re-entry prosecution when requirements for collaterally attacking deportation order are not satisfied

Justice Sotomayor delivered the opinion for a unanimous Court in United States v. Palomar-Santiago.

Romero on Elections and Pro-Prosecutor Culture

Maybell Romero (Northern Illinois University College of Law) has posted Elections and Pro-Prosecutor Culture (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:

 

The 2020 presidential election and campaign leading up to it was unique and historic for a veritable panoply of reasons. Perhaps one of the most momentous events of the campaign season was then Democratic nominee Joe Biden announcing his choice of vice-presidential nominee, Kamala Harris. As the first woman, Black, and Asian American vice-presidential nominee and, eventual, vice president, Harris has already become something larger than her own self — a symbol of hope for the many Americans and others around the world who have been waiting for more diverse people in the highest levels of American government.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	When Animus Matters and Sex Offense Underreporting Does Not: The Sex Offender Registry Regime Ira Mark Ellman Center for the Study of Law and Society, Berkeley Law, University of California, Berkeley Date Posted: 01 Apr 2021	452
2.	Domestic Terrorism, Attack on the U.S. Capitol, and the Second Impeachment of Donald Trump Lawrence J. Trautman Prairie View A&M University - College of Business Date Posted: 02 Apr 2021	294
3.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021	234
4.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021 [new to top ten]	197
5.	Restoring the Historical Rule of Lenity as a Canon Shon Hopwood Georgetown University Law Center Date Posted: 18 Mar 2021 [4th last week]	193
6.	Moral Intuitions and Moral Nativism John Mikhail Georgetown University Law Center Date Posted: 15 Dec 2020 [5th last week]	162
7.	Doing Away With Disorderly Conduct Rachel Moran University of St. Thomas - School of Law (Minnesota) Date Posted: 02 Apr 2021 [6th last week]	126
8.	Revocation and Retribution Jacob Schuman The Pennsylvania State University (University Park) – Penn State Law Date Posted: 19 Mar 2021 [7th last week]	100
9.	Limiting Consent in Criminal Law: DPP v Brown [2018] IESC 67 David Prendergast School of Law, Trinity College Dublin Date Posted: 22 Mar 2021 [8th last week]	100
10.	Gender Violence, the Carceral State, and the Politics of Solidarity Deborah M. Weissman University of North Carolina School of Law Date Posted: 11 Mar 2021 [9th last week]	86

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Damned Lies Jeremy Waldron New York University School of Law Date Posted: 04 Mar 2021 [2nd last week]	259
2.	The Invisible Rules That Govern Use of Force Ion Meyn University of Wisconsin Law School Date Posted: 06 Apr 2021 [3rd last week]	234
3.	Rethinking Police Expertise Anna Lvovsky Harvard Law School Date Posted: 19 Apr 2021 [new to top ten]	197
4.	From Statues to Statute: Protests and Vigils in the Time of COVID-19 Jamie Grace Sheffield Hallam University Date Posted: 30 Mar 2021 [5th last week]	188
5.	Doing Away With Disorderly Conduct Rachel Moran University of St. Thomas - School of Law (Minnesota) Date Posted: 02 Apr 2021 [6th last week]	126
6.	Qualified Immunity, Sovereign Immunity, and Systemic Reform Katherine Mims Crocker William & Mary Law School Date Posted: 30 Mar 2021 [7th last week]	116
7.	A Three-Pillar Approach to Achieving Trustworthy Use of AI and Emerging Technology in Policing in England and Wales: Lessons From the West Midlands Model Marion Oswald University of Northumbria at Newcastle Date Posted: 13 Apr 2021 [10th last week]	115
8.	Government Misconduct and Convicting the Innocent, The Role of Prosecutors, Police and Other Law Enforcement Samuel R. Gross, Maurice Possley, Kaitlin Roll and Klara Stephens University of Michigan Law School, affiliation not provided to SSRN, affiliation not provided to SSRN and affiliation not provided to SSRN Date Posted: 13 Nov 2020 [9th last week]	107
9.	The Challenges of Forensic Genealogy: Dirty Data, Electronic Evidence, and Privacy Concerns Divya Ramjee and Katelyn N Ringrose American University (Washington, DC) and affiliation not provided to SSRN Date Posted: 28 Mar 2021 [8th last week]	107
10.	Burning Bridges: The Automated Facial Recognition Technology and Public Space Surveillance in the Modern State Monika Zalnieriute University of New South Wales (UNSW) - Faculty of Law Date Posted: 17 Mar 2021 [new to top ten]	102

Conklin on Bellin on Evidence Rules and Innocence

Michael Conklin (Angelo State University) has posted Lacking Evidence: A Response to Jeffrey Bellin’s The Evidence Rules That Convict the Innocent on SSRN. Here is the abstract:

 

This is a critical review of Jeffrey Bellin's article The Evidence Rules That Convict the Innocent. Topics covered include the conflation of innocence with exoneration, the presentation of misleading evidence, and the conspicuous lack of any solution.