CrimProf Blog

Kakade on Environmental Enforceability

Seema M. Kakade (University of Maryland Francis King Carey School of Law) has posted Environmental Enforceability (NYU Environmental Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

There are great expectations for a resurgence in federal environmental enforcement in a Biden-led federal government. Indeed, federal environmental enforcement suffered serious blows during the Trump Administration, particularly at the Environmental Protection Agency (EPA), including large cuts in the budget for enforcement and reversals of key enforcement policies. Yet, while important to repair the damage, truly strengthening federal environmental enforcement will require more. This Article highlights the need for greater attention to the multiple hurdles that plague environmental enforcement. In doing so it makes three contributions to the literature. First, it asserts that even though environmental statutes, regulations, and guidance documents often contain “enforceable” as an explicit term, in practice the term lacks scope and definition, making the actual enforceability of regulations dubious. Second, it demonstrates the difficulties with actual enforceability by examining key hurdles that become legal defenses for corporate and government defendants in environmental enforcement matters regarding regulatory exceptions, evidentiary standards, and the preemption and preclusion doctrines. Third, it recommends that drafters of environmental laws and regulations consider actual enforceability by considering, within the documents they are drafting, the likely hurdles for enforcers after the law or regulation becomes effective. Although hurdles in environmental enforcement are important for regulatory flexibility, judicial expediency, and other normative values, they often result in a tradeoff for achieving enforceability of environmental laws and regulations. Grappling with such tradeoffs, within the law or regulation itself, is essential for meeting the expectations for enforcement held by regulated entities, researchers, environmental advocates, and most of all, local communities. After all, as noted in a March 2021 Grist news article, “laws are only as good as their enforcement.”

Bavli on Implicit Bias and Character Evidence

Hillel J. Bavli (Southern Methodist University - Dedman School of Law) has posted Implicit Bias and the Admissibility of Character Evidence on SSRN. Here is the abstract:

 

Rule 404 of the Federal Rules of Evidence prohibits evidence of an individual’s character traits or prior acts to prove that the individual acted in accordance with a certain character or propensity. However, courts regularly admit this evidence through a wide range of legislative and judicial exceptions. In this article, I argue that when a court admits character evidence, it invites, and implicitly sanctions, the jurors’ reliance on their preexisting beliefs and prejudices regarding a defendant’s race, sex, appearance, economic status, and other background characteristics. Consequently, judgments that are based on character evidence are inherently angled against certain groups of people, and exceptions to the rule against character evidence drive inequality and unfairness in the U.S. legal system.

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Ricardo on Necrophilia and Social Harm

Kim D. Ricardo (UIC Law) has posted Necrophilia: A New Social-Harm Taxonomy of U.S. Laws (William & Mary Journal of Women and the Law 2021) on SSRN. Here is the abstract:

 

This article is about necrophilia, in particular how state laws frame the harm associated with the crime. In the long term, I’m interested in theorizing various issues related to the sexual autonomy rights and interests of victims of rape. In the short term—and the limited scope of this article—is an examination of the normative reasons why states seek to punish necrophilic acts. The fifty-state survey contained herein examines statutory texts, legislative history, and case law. After this review, five distinct formulations of the social harms associated with necrophilia emerged. The first of these is “no social harm” and applies to the four states that do not currently have criminal prohibitions against necrophilia. The remaining categories are: crimes against nature, mistreatment of corpses, the rights of surviving family members, and sex crimes.

"PA: State failed to show nexus to house as “base of operations”"

From FourthAmendment.com, with the comment, "This could have gone the other way just as easily. And would have in most other jurisdictions." From the opinion:

In other words, there must be something in the affidavit that links the place to be searched directly to the criminal activity. Merely referring to “professional experience” does not alone justify the issuance of a search warrant. Otherwise, a police officer’s “professional experience” could be used to justify a search of any place where drugs could possibly be kept. With respect to Nicholson’s residence, no such nexus was shown here to make the police officer’s professional experience probative.

Moreover, Officer Kelch’s allegation that drug dealers often keep drugs in their homes is one of many boilerplate comments setting forth his training experience, most of which had no relevance to the probable cause determination in this case. …

"California utility charged with manslaughter following deadly wildfire"

From Jurist:

California prosecutors on Friday charged Pacific Gas & Electric Company (PG&E) — one of the largest investor-owned utilities in the US — with involuntary manslaughter, finding a connection between the utility’s equipment and the deaths of four people in the 2020 Zogg Fire.

“We have sufficient evidence to prove, beyond a reasonable doubt, that [PG&E] is criminally liable for their reckless ignition of the Zogg Fire and the deaths and destruction that it caused,” said Shasta County District Attorney Stephanie Bridgett at a televised press conference.

Konina on Democratic Accountability and Predictive Policing

Anastasia Konina (University of Montreal - Faculty of Law) has posted Promoting Human Rights in the Context of Police Procurement: A Study of Predictive Policing Instruments (Forthcoming, McGill Graduate Research Series: Law and the City (2021)) on SSRN. Here is the abstract:

 

Across Canada, human rights activists demand greater democratic accountability of police departments. These demands are a symptom of a serious problem - there is a discrepancy between the goals of policing and the consequences of the police’s actions. This discrepancy materializes when the police’s attempts to ensure public safety result in the marginalization of racialized communities, particularly in larger cities across Canada. To understand why laudable goals lead to deeply problematic consequences, it is necessary to analyze the specifics of modern policing in our cities. This paper relies on the case study of predictive policing instruments to demonstrate that externalities, such as recommendations generated by private technology, play an important role in undermining the goals of policing. Predictive policing instruments analyse different sources of data - police stops data, reported crimes, individual criminal records, and gang databases - to predict potential criminal activity. The use of this technology may violate several provisions of the Canadian Charter of Rights and Freedoms, including the guarantees of liberty, due process, and equality.

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"Bad Policies, Not Racism or Covid-19, Are Causing the Spike in Murder"

From Crime & Consequences:

A good example of the mainstream media narrative regarding the unprecedented surge in homicides, which started last year and has continued unabated this year, is this June article from the Washington Post which reported that racist police,  inequality and the economic and social impact of the pandemic are the root causes.   “Experts have attributed the increase to a variety of new and long-standing issues—-including entrenched inequality, soaring gun ownership, and fraying relations between police and the communities they serve—all intensified during the coronavirus pandemic and widespread uprising for racial justice.”  It’s guns and racism that’s causing all those murders folks.  Virginia lawyer Hans Bader his this piece in Liberty Unyielding debunking this claptrap.

"FBI releases yearly crime statistics report"

As reported in Jurist. The New York Times analyzes the data here. In part:

The United States experienced its biggest one-year increase on record in homicides in 2020, according to new figures released on Monday by the F.B.I., with some cities hitting record highs.

Although major crimes were down overall, there were an additional 4,901 homicides in 2020 compared with the year before, the largest leap since national records started in 1960. The significant rise has roughly coincided with the 18 months of the Covid-19 pandemic.

Clark et al. on Access to Counsel

Alyssa Clark, Andrew Davies and Karise M. Curtis (Independent, Southern Methodist University – Dedman School of Law and affiliation not provided to SSRN) have posted an abstract of Access to Counsel for Defendants in Lower Criminal Courts (Forthcoming in Justice System Journal) on SSRN. Here is the abstract:

 

Criminal defendants unable to afford an attorney are entitled to one for free in the United States, but how and when they obtain access to that lawyer is another question. We examine judicial attitudes and behavior in granting access to counsel in areas where logistics are particularly forbidding. Based on survey responses from 1,091 magistrate judges presiding in lower criminal courts in suburban and rural jurisdictions in upstate New York, we describe both the procedures used to determine defendants’ financial eligibility for free counsel, and the logistical challenges that surround securing the physical presence of a lawyer at the first appearance in court. We find that judges strongly favor counsel’s presence in order to maintain courtroom efficiency, and sometimes depart from strict interpretation of financial eligibility guidelines to ensure representation. We introduce the concept of the “procedurally precautious judge” to describe the way these respondents carefully preserve the appearance of integrity in court operations even while availability of counsel for defendants is limited.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021	333
2.	Individualizing Criminal Law’s Justice Judgments: Shortcomings in the Doctrines of Culpability, Mitigation, and Excuse Paul H. Robinson and Lindsay Holcomb University of Pennsylvania Law School and University of Pennsylvania Law School - Student/Alumni/Adjunct Date Posted: 17 Aug 2021	101
3.	Black Lives Matter: Trayvon Martin, the Abolition of Juvenile Justice and #BlackYouthMatter Nancy E. Dowd University of Florida Levin College of Law Date Posted: 29 Jul 2021	75
4.	The Transnational Cybercrime Extortion Landscape and the Pandemic: Changes in Ransomware Offender Tactics, Attack Scalability and the Organisation of Offending David S. Wall Centre for Criminal Justice Studies, School of Law, University of Leeds Date Posted: 31 Aug 2021 [10th last week]	53
5.	Should be Marijuana Legalized in India? Mohd Rameez Raza Faculty of Law, Integral University Date Posted: 16 Aug 2021	52
6.	Expanding Compassion Beyond the COVID-19 Pandemic Katie Tinto and Jenny Roberts University of California, Irvine School of Law and American University - Washington College of Law Date Posted: 01 Sep 2021 [8th last week]	52
7.	Amos Akerman: Grant's Attorney General Who Broke the Back of the Ku Klux Klan Allan A. Ryan Harvard University, Division of Continuing Education Date Posted: 27 Jul 2021 [6th last week]	51
8.	Restorative Retributivism Brian Murray Seton Hall Law School Date Posted: 12 Aug 2021 [7th last week]	51
9.	Editor's Introduction: New Topics in Sentencing Theory Jacob Bronsther Michigan State University - College of Law Date Posted: 11 Aug 2021	49
10.	Achieving Social Equity in the Cannabis Industry Samuel DeWitt Ohio State University (OSU), Michael E. Moritz College of Law, Students Date Posted: 08 Jun 2021 [new to top ten]	39

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Inside the Black Box of Prosecutor Discretion Megan S. Wright, Shima Baradaran Baughman and Christopher T. Robertson The Pennsylvania State University (University Park) – Penn State Law, University of Utah - S.J. Quinney College of Law and Boston University Date Posted: 28 Jul 2021	377
2.	The Informed Jury Daniel Epps and William Ortman Washington University in St. Louis - School of Law and Wayne State University School of Law Date Posted: 28 Jul 2021 [3rd last week]	333
3.	The Trump Executions Lee Kovarsky University of Texas School of Law Date Posted: 27 Jul 2021 [2nd last week]	325
4.	Law, Fact, and Procedural Justice G. Alexander Nunn University of Arkansas - School of Law Date Posted: 12 Jul 2021 [new to top ten]	93
5.	Empathy and Remote Legal Proceedings Susan A. Bandes and Neal Feigenson DePaul University - College of Law and Quinnipiac University - School of Law Date Posted: 26 Jul 2021 [new to top ten]	81
6.	Challenging Jurors' Racism Monnica Williams, Sonya Faber, Dana Strauss, Sophia Gran-Ruaz, Amy Bartlett, Maria Macaluso, Joseph La Torre and Ariana R. Levinson University of Ottawa - Department of Psychology, Angelini Pharma, University of Ottawa, Students, University of Ottawa, Students, University of Ottawa, Students, University of Louisville, Louis D. Brandeis School of Law, Students, University of Ottawa, Students and University of Louisville - Louis D. Brandeis School of Law Date Posted: 11 Aug 2021 [8th last week]	76
7.	Rehabilitating Statistical Evidence Lewis Ross London School of Economics & Political Science (LSE) - London School of Economics Date Posted: 15 Jun 2021 [10th last week]	60
8.	Masterpiece or Mess: The Mosaic Theory of the Fourth Amendment Post-Carpenter Robert Fairbanks University of California, Berkeley, School of Law, Date Posted: 18 Aug 2021 [9th last week]	60
9.	Extraordinary Circumstances and Extraordinary Writs: Equitable Tolling During the COVID-19 Pandemic and Beyond Meghan Downey University of Pennsylvania Carey Law School Date Posted: 02 Aug 2021 [new to top ten]	49
10.	Objective Chance and the Rule against Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 09 Jul 2021 [new to top ten]	47

Kahn-Fogel on Standing and Fourth Amendment Traditionalism

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Standing in the Shadows of the New Fourth Amendment Traditionalism (Florida Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.

"SHADOWDRAGON: INSIDE THE SOCIAL MEDIA SURVEILLANCE SOFTWARE THAT CAN WATCH YOUR EVERY MOVE"

From The Intercept, via NACDL's news-of-interest:

The software, put out by a Wyoming company called ShadowDragon, allows police to suck in data from social media and other internet sources, including Amazon, dating apps, and the dark web, so they can identify persons of interest and map out their networks during investigations. By providing powerful searches of more than 120 different online platforms and a decade’s worth of archives, the company claims to speed up profiling work from months to minutes. ShadowDragon even claims its software can automatically adjust its monitoring and help predict violence and unrest. Michigan police acquired the software through a contract with another obscure online policing company named Kaseware for an “MSP Enterprise Criminal Intelligence System.”

. . . .

Kaseware and ShadowDragon are part of a shadowy industry of software firms that exploit what they call “open source intelligence,” or OSINT: the trails of information that people leave on the internet. Clients include intelligence agencies, government, police, corporations, and even schools.

Metzger & Guggenmos on COVID-19 and the Ruralization of Criminal Court Systems

Pamela Metzger and Gregory J. Guggenmos (Southern Methodist University - Dedman School of Law and Southern Methodist University - Dedman School of Law) have posted COVID-19 and the Ruralization of U.S. Criminal Court Systems (2020 University of Chicago Law Review Online 70 (2020)) on SSRN. Here is the abstract:

 

The COVID-19 pandemic is imposing typically rural practice constraints on the United States' urban and suburban criminal court systems. This "ruralization" of criminal practice offers lawyers, policymakers, and researchers a window into the challenges and opportunities that inhere in rural systems. This is no small matter. For decades, lawmakers, researchers, reformers, and philanthropists have overlooked, undertheorized, and underfunded rural criminal legal systems-and have done so at great peril. Nearly 20 percent of the nation's population lives in nonmetropolitan areas, where the opioid addiction crisis rages. Rural incarceration increasingly drives mass incarceration. The U.S. countryside warehouses the nation's prison populations, and rural pretrial detention rates continue to rise. Indeed, the success of criminal justice reforms depends in part on our ability to address the incarceration crisis in rural America.

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"Federal appeals court: warrant required for police search of files reported by digital algorithm"

From Jurist:

The court’s opinion follows Apple’s announcement last month that it will scan iCloud photos of its users for child sexual abuse material and report suspected files to authorities. Privacy experts have criticized the move.

Tuesday’s ruling and Apple’s announcement raise broader questions about the intersection of algorithm-driven automatic scanning technology and privacy law. The Electronic Privacy Information Center said that the case “may lead the Supreme Court to review the important privacy implications of mass automatic file scanning programs.”

Baer on Personhood, Procedure, and Corporate Compliance

Miriam H. Baer (Brooklyn Law School) has posted Personhood, Procedure and the Endurance of Corporate Compliance (Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman and Robert B. Thompson, eds.; Elgar, forthcoming)) on SSRN. Here is the abstract:

 

Over the past century, the Supreme Court has maintained a procedural framework that greatly eases the government’s burden in enforcing the substantive laws that regulate corporations and business entities. Concededly, it is still difficult to hold wrongdoers accountable for business related misconduct. Nevertheless, corporate constitutional procedure is rarely the roadblock preventing government prosecution.

Most of corporate criminal procedure’s ground rules arise of the Constitution’s Fourth and Fifth Amendments. The Supreme Court’s Fourth Amendment decisions permit government enforcers to avoid the costs of seeking and defending search warrants by instead serving broadly worded subpoena requests. Its Fifth Amendment precedents are even more important, as they bar business entities from claiming the privilege against self-incrimination.

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"Two notable new Forbes pieces on the state of federal sentencing and clemency practices"

Douglas Berman has this post at Sentencing Law and Policy, excerpting Brian Jacobs, "The U.S. Sentencing Commission’s Inadequate Response To Covid-19" and Walter Palvo, "Biden Considering Options To Avoid Returning Federal Inmates To Prison Post Covid-19"

Wright on Multiple Causes

Richard W. Wright (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Identifying and Assigning Liability Among Multiple Legally Responsible Causes (Rechtstheorie Journal 2021) on SSRN. Here is the abstract:

 

This paper, forthcoming in the Rechtstheorie journal, discusses the development of the NESS analysis of natural causation in philosophy and law and (relatedly) the failure of the but-for/sine-qua-non test as an exclusive test, responds to criticisms of the NESS analysis, notes general acceptance of the NESS analysis by academics and increasingly by courts made aware of it, distinguishes the natural causation issue from the legal responsibilty and ultimate liability issues, and briefly discusses the legal responsibiliy and ultimate liability issues.

"She Used Drugs While Pregnant. Should She Be in Prison? After having a stillbirth, Adora Perez was charged with murder."

From New York Magazine, via NACDL's news-of-interest:

Prosecutors in many states are increasingly sending people to prison for failing to sufficiently protect their fetus. Right now, those cases are largely restricted to punishing mothers who use illegal drugs, but reproductive-health advocates argue that they lay the groundwork for prosecuting parents who jaywalk or drink wine or even have abortions. As Adora’s case continues to play out, the Kings County district attorney’s office maintains an interpretation of the law that could shape the future of not only stillbirth cases but the rights of all people who can and do become pregnant.

Baer on The Information Shortfalls of Prosecuting Irresponsible Executives

Miriam H. Baer (Brooklyn Law School) has posted The Information Shortfalls of Prosecuting Irresponsible Executives (DePaul Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Essay, written for the 2020 Clifford Symposium on Tort Law and Social Policy, focuses on the prosecution and conviction of three corporate executives under the responsible corporate officer (RCO) doctrine in connection with Purdue Pharma’s misbranding of OxyContin. The RCO doctrine relieves prosecutors of having to demonstrate a difficult-to-prove mental state such as purpose or knowledge and instead holds corporate officers criminally responsible for certain violations that take place on their watch. Although Purdue Pharma’s three executives suffered economic consequences from their 2007 convictions, they received no term of imprisonment. This result elicited a fair amount of criticism, which intensified after an internal report surfaced indicating career prosecutors would have preferred more serious charges.

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