CrimProf Blog

Next week's criminal law/procedure argument

Issue summary is from ScotusBlog, which also links to papers:

• Pulsifer v. U.S.: Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Progressive Façade: How Bail Reforms Expose the Limitations of the Progressive Prosecutor Movement Sarah Gottlieb University of Baltimore School of Law Date Posted: 09 Aug 2023	325
2.	Pitfalls of Progressive Prosecution Carissa Byrne Hessick University of North Carolina School of Law Date Posted: 20 Jul 2023 [3rd last week]	147
3.	Monotonicity among Judges: Evidence from Judicial Panels and Consequences for Judge IV Designs Henrik Sigstad BI Norwegian Business School Date Posted: 09 Aug 2023 [2nd last week]	145
4.	Evidence Law's Blind Spots James Macleod Brooklyn Law School Date Posted: 20 Aug 2023	135
5.	The (Local) Prosecutor Carissa Byrne Hessick and Rick Su University of North Carolina School of Law and University of North Carolina School of Law Date Posted: 19 Sep 2023 [new to top ten]	112
6.	Preliminary Comments on ABA Resolution 100 Robert R. Keatinge Holland & Hart Date Posted: 11 Jul 2023 [7th last week]	111
7.	Analog Analogies: Intel v. Hamidi and the Future of Trespass to Chattels Maureen E. Brady and James Y. Stern Harvard Law School and William & Mary Law School Date Posted: 20 Aug 2023 [8th last week]	109
8.	Like Oil and Water? Effective Data Protection and Direct Cooperation on Digital Evidence Gavin Robinson Assistant Professor, Criminal Law and Technology, Utrecht University Date Posted: 29 Aug 2023 [10th last week]	85
9.	Regulating Use by Law Enforcement Authorities of Real-Time Facial Recognition Technology in Public Spaces: Incremental Approach Asress Adimi Gikay Brunel University London Date Posted: 28 Aug 2023 [new to top ten]	68
10.	Look Forward, Not Back: A Perspective on Defense Lawyering in the United States Charles D. Weisselberg University of California, Berkeley - School of Law Date Posted: 15 Aug 2023 [new to top ten]	67

Bernick on Eliminating "Criminal Law"

Evan D. Bernick (Northern Illinois University - College of Law) has posted Eliminating Criminal Law on SSRN. Here is the abstract:

 

There is a cross-ideological consensus that criminal systems in the United States face a legitimacy crisis. The causes and precise nature of this crisis are disputed. But it’s common ground that criminal law is part of the problem. There’s too much criminal law; criminal law isn’t what it used to be; criminal law isn’t performing its proper functions, or at least could be performing its functions more effectively. Leading criminal-law scholars contend that we need a theory of criminal law—its nature and limits—to address “overcriminalization.”

I contend that we should not use the concept of criminal law to think or talk about U.S. criminal systems at all. Because actually existing criminal systems have never measured up to the “criminal law” that is most often encountered in scholarship and in classrooms, “criminal law” invites us to misdescribe criminal systems in ways that entrench the status quo. Eliminating criminal law will enable us to better understand how the U.S. creates crimes and criminals, as well as to deliberate about and contest the content and structure of its criminal systems. It will also create more space to question whether criminal systems can be justified.

Reilly on Limiting Corporate Prosecution Deals

Peter Reilly (Texas A&M University School of Law) has posted Outlawing Corporate Prosecution Deals When People Have Died (Arizona State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

Two Boeing 737 MAX aircraft crashes, occurring less than five months apart in 2018 and 2019, resulted in 346 deaths—possibly the deadliest corporate crime in U.S. history. The United States Department of Justice (DOJ) used an alternative dispute resolution tool called a deferred prosecution agreement (DPA) to resolve criminal charges against Boeing and to immunize the company’s senior-level managers from prosecution. In the end, the company admitted to engaging in the criminal behavior, paid a monetary fine, and agreed to cooperate fully with the government—meaning there would be no courtroom trial, no formal adjudication of guilt, and no possibility of jail time or other serious punishment for wrongdoers. DOJ also decided it would not appoint an independent monitor to ensure Boeing’s compliance with terms of the DPA agreement. These results are profoundly unjust. In response, the United States Congress should immediately outlaw the use of DPAs in addressing federal allegations of corporate misconduct when the wrongdoing leads to one or more human fatalities.

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Edmonds on Decarceration and Violent Offenders

Mira Edmonds (University of Michigan Law School) has posted Why We Should Stop Talking About Violent Offenders: Storytelling and Decarceration (Northeastern University Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The movement to decarcerate risks foundering because of its failure to grapple with so-called “violent offenders,” who make up nearly half of U.S. prisoners. The treatment of people serving sentences for offenses categorized as violent is a primary reason for the continued problem of mass incarceration, despite widespread awareness of the phenomenon and significant bipartisan interest in its reduction. People convicted of “violent offenses” are serving historically anomalous and excessively long sentences, are generally denied clemency and compassionate release, and are excluded from a wide array of legal reform and policy changes with decarceral aims. Keeping these people in prison for life or near life sentences is extraordinarily expensive for state budgets, largely unnecessary from a public safety perspective, and cruel and unusual punishment from the viewpoint of international and historical standards. While the moral imperative to release those serving draconian sentences for nonviolent drug offenses is widely if not universally accepted, such efforts will ultimately be a drop in the bucket if we fail to address the 58% of state prisoners who are serving sentences for offenses categorized as violent.

Quantitative data about the low rates of recidivism for people released after serving long sentences for violent offenses will not alone shift the focus of our policies or politics. Rather, we need to develop a more nuanced understanding of violent offenses and violent offenders by hearing the voices of people who have been directly impacted by violence and by the system’s response to violence. These are, in many cases, the same people. Their stories are complex and human, defying simplistic narratives about innocent victims and bad offenders. Storytelling offers possibilities for reconceptualizing the stale terminology around violence and for shifting the discourse.

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Tyne on "The Rap Shield" Proposal

Patience Tyne has posted Rapt Admissions: Comparing Proposed Federal Rule of Evidence 416 ‘Rap Shield’ With the Rule 412 ‘Rape Shield' (Vanderbilt Journal of Entertainment & Technology Law, Vol. 25, No. 4, 2023) on SSRN. Here is the abstract:

Creative expression depicting illicit activity can cause jurors to infer improper conclusions about a defendant, even when the jurors attempt to analyze such evidence objectively. When the government seeks to admit a defendant’s creative work into evidence in a criminal trial, courts use existing evidentiary rules to balance the work’s probative value against its risk of unfair prejudice. These rules are supposed to prevent unfair prejudice, but various scholars have shown that courts do not always appreciate how unfairly prejudicial art can be. Rap music presents unique challenges because jurors may fail to discern the work’s literal versus symbolic meaning. Similarly, several decades ago courts struggled to exclude improper evidence of victims’ sexual histories from the courtroom until social pressure encouraged legislators to pass “rape shield” laws. Now, legislators in several states as well as Congress have proposed “rap shield” laws to exclude improper artwork evidence.

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Brett on Policing State Police

Sharon Brett (University of Kansas - School of Law) has posted Policing State Police: System Reform Within the 'Fiction' of Ex parte Young (Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 59, No. 2, 2024) on SSRN. Here is the abstract:

 

Statewide police forces exist in nearly every jurisdiction in the United States. They are responsible for enforcing traffic laws on state highways, policing general crimes parallel to or in cooperation with local and county police agencies, or working with federal task forces to combat certain types of crime. Yet the overwhelming majority of police reform litigation has focused exclusively on damages actions against individual officers or prospective relief against municipal police departments. Liability standards under 42 U.S.C. § 1983 for municipal police agencies have therefore developed in cases that do not target the state police. This article aims to answer a surprisingly thorny question that remains unanswered in precedential case law: what liability standard should apply when a plaintiff seeks an injunction to reform state, rather than local, police?

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Marlan on Psychedelics

Dustin Marlan (University of North Carolina School of Law) has posted Psychedelic Capitalism and the Perceptual Threshold (103 Boston University Law Review, Forthcoming) on SSRN. Here is the abstract:

 

As jurisdictions continue to reform psychedelics laws, lawmakers should consider how these new laws will impact the popular practice of micro dosing — regularly taking very small amounts of a psychedelic, such as psilocybin, to improve one’s quality of life. That is the thesis of Mason Marks, I. Glenn Cohen, Jonathan Perez-Reyzin, and David Angelatos’s engaging and timely article, Micro dosing Psychedelics Under Local, State, and Federal Law. The authors do an admirable job of making the case for the equitable and safe integration of micro dosing practices into existing and future psychedelics legal reforms. I agree with their general claims and specific legislative recommendations, as applied to the current nascent state of psychedelics law and regulation. In this Response, however, I reflect on the possibility that, in the future, what will ultimately require legal preservation is not micro dosing, but rather the non-ordinary states of consciousness that taking standard or large amounts of a psychedelic engenders.

Campbell on Legal Professional Privilege and Corporate Wrongdoing

Liz Campbell (Monash University - Faculty of Law) has posted two pieces addressing on this topic on SSRN. The first is Legal Professional Privilege and Corporate Wrongdoing (Adelaide Law Review, Forthcoming). Here is the abstract:

 

This article analyses how legal professional privilege, which limits the disclosure of certain communications between a client and their lawyer, may be deployed by corporations in the face of public enforcement actions against them for suspected wrongdoing. It evaluates the merits of concerns regarding misuse in this context, and examines regulator responses, in rhetoric, public enforcement actions, and litigation. It assesses whether and how legal professional privilege subverts the administration of justice in respect of suspected criminality by corporations, and questions the human rights protection for corporations that accrue in this context. It concludes by advocating a limitation of the privilege in respect of corporations, highlighting the need for further empirical research.

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Suzuki & Otani on Older Prisoners

Masahiro Suzuki and Akinori Otani (Central Queensland University and Kyushu University - Faculty of Law) have posted Ageing, Institutional Thoughtlessness, and Normalisation in Japan’s Prisons (International Journal of Comparative and Applied Criminal Justice) on SSRN. Here is the abstract:

 

Like other industrialised countries, Japan has experienced a rapid increase in the proportion of incarcerated older adults. This increase is problematic because prisons were not designed to accommodate the needs of the older adults who increasingly fill them, leading to immense financial, legal, and human costs as jurisdictions struggle to adapt to the demographic change. Some refer to this failure to adjust to changing demographics as “institutional thoughtlessness”. While a growing body of research points to concerns associated with the ageing trend, less work explicitly aims to understand the most effective ways to cope with the reality of the unprecedented number of older adults who are currently incarcerated. Using Japan as a case study, we argue that the misalignment between prison infrastructure and the changing physical and mental health needs of incarcerated people calls for a need to normalise prisons. Making prison life more similar to life outside of prison would reduce age-related risks like social isolation and dementia while improving the health, welfare, and reintegration of older adults.

Today's criminal law/procedure cert grants

Issue summaries are from ScotusBlog, which also links to papers:

• Smith v. Arizona: Whether the Sixth Amendment, which guarantees a defendant the right to confront the witnesses against him, allows prosecutors to use expert testimony about evidence – here, a report prepared by a different crime lab analyst who no longer worked at the lab and did not testify at trial – that was not itself admitted into evidence, on the grounds that the testifying expert was simply offering his own opinion and that the defendant could have subpoenaed the original analyst.
• McIntosh v. United States – Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed – here, when the government did not submit a preliminary forfeiture order until more than two-and-a-half years after the defendant was sentenced.

Syroka on Rule 53 and Virtual Criminal Hearings

Benjamin Syroka has posted Pre-Trial Proceedings in the Post-Pandemic World: Amending Federal Criminal Rule 53 for Virtual Criminal Hearings (Federal Bar Association Litigation Section Newsletter (SideBAR), Fall 2023; Federal Bar Association Younger Lawyers Division Newsletter (Perspectives), Summer 2023) on SSRN. Here is the abstract:

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), passed in 2020, included a provision much of the general public never noticed—it afforded federal courts the flexibility to utilize video and telephone conferencing in criminal cases. Over the past four years, virtual or “Zoom hearings” became a staple in criminal pre-trial hearings. But the authorization to use this technology expired in May 2023, and the judiciary now grapples with the prohibition on virtual criminal hearings.

This article advocates for an amendment to Federal Criminal Rule 53, which currently prohibits all "broadcasting" of criminal hearings. By slightly amending Rule 53, we can improve access to justice for defendants and pave the way for more efficient criminal dockets. Forget about “waiting for the host to start the meeting”—we’re about to login to a new digital era of federal criminal procedure.

Miao on The Effect of Counsel in Sentencing of Death-eligible Drug Offenders in China

Michelle Miao (The Chinese University of Hong Kong, Faculty of Law) has posted The Unimpactful Counsel: A Study of the Sentencing of Death-eligible Drug offenders in China on SSRN. Here is the abstract:

 

Does legal representation affect critical judicial decisions? This article highlights a paradox at the heart of court sentencing of death-eligible drug offenders in China. On the one hand, lawyers are regarded as a staple of due process. On the other, court decisions are insensitive to the availability (whether drug offenders have access to legal assistance) and the quality (the varieties and conditions of legal services provided by private vs court-appointed attorneys) of legal representation. I argue that this perplexing contradiction derives from the institutional alienation of criminal lawyers in China, a theory containing three main dimensions: power deficit, identity confliction, and procedural-based legitimacy. The defense lawyer has little control over or power to determine capital drug sentencing decisions; at the same time, criminal defense lawyers are unable to fully realize themselves in their professional activities; they are used as instruments to advance bureaucratic and political interests and are therefore exposed to impoverished and instrumental relations with judicial institutions and their own activities. This paradox - the insignificance of differences - takes place in China’s non-adversarial judicial settings and its authoritarian political environment. It is differentiated but connected with a paradox between eradicating inequality and providing adequate assistance to the most marginalized defendants in adversarial criminal justice systems. This article adopts mixed research methods, including qualitative interviews of legal professionals across China and quantitative analysis based on a regression analysis of national-level (N=10,132) and provincial-specific (N=3,955) samples of court judgments.

Logan on The Harms of Heien

Wayne A. Logan (Florida State University - College of Law) has posted The Harms of Heien: Pulling Back the Curtain on the Court's Search and Seizure Doctrine (77 Vanderbilt Law Review, Forthcoming) on SSRN. Here is the abstract:

 

In Heien v. North Carolina, 574 U.S. 54 (2014), the Supreme Court held that police can seize individuals on the basis of reasonable mistake of law. In an opinion authored by Chief Justice Roberts, the eight-justice majority held that the Fourth Amendment’s prohibition of “unreasonable” seizures does not bar legally mistaken seizures because “[t]o be reasonable is not to be perfect.” Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be “exceedingly rare.” In a solo dissent, Justice Sotomayor fairly “wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.”

This article provides the first empirical study of state and lower federal court cases applying Heien (from when it was decided in mid-December 2014 through mid-June 2023).

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Donelson on Forbidden Purposes

Raff Donelson (Chicago-Kent College of Law - Illinois Institute of Technology) has posted Forbidden Purposes (Journal of Criminal Law and Criminology, Forthcoming) on SSRN. Here is the abstract:

 

Activists and scholars have often complained that the American criminal justice system makes choices about criminalization and sentences based on nefarious reasons. For instance, critics have claimed that criminalization and sentencing decisions are made to provide cheap prison labor to the government or private industry, to boost the private prison industry, to offer employment in rural communities in the form of jobs managing correctional facilities, or to empower police to harass undesirables and to remove them from public space. These accusations are very alarming, and the evidence may not confirm activists’ worst suspicions. But, supposing the extraordinary evidence could be adduced, what difference would it make in a court of law?

While most can agree that officials act wrongly if motivated by these concerns, it is less clear whether such officials act illegally. Does constitutional law disclose any legal ground for opposing action taken for these nefarious purposes? This Essay outlines a strategy that courts might adopt for finding that some governmental purposes are, constitutionally speaking, forbidden purposes. Purpose-based arguments for invalidating government action are not entirely new. Rational basis review, familiar from the Equal Protection and Substantive Due Process contexts, sometimes requires courts to determine whether governmental action advances legitimate purposes. However, such scrutiny lacks general elucidation, and few have endeavored to elaborate how this would work specifically in the criminal sphere. This Article is a first attempt to develop a method for distinguishing the legitimate from the forbidden purposes in criminal law and beyond.

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Giles on Effects of Criminal Fines and Fees

Tyler Giles (Wellesley College) has posted The Government Revenue, Recidivism, and Financial Health Effects of Criminal Fines and Fees on SSRN. Here is the abstract:

 

This paper estimates the government revenue, recidivism, and financial health effects of an increase in misdemeanor fines/fees. I leverage a statutory change in Milwaukee whereby convicted defendants were assessed an average additional $279 if sentenced after a certain date. Exploitation of this date in a regression discontinuity design reveals that about 28 cents of each additional dollar charged was eventually collected, often through the automatic application of posted cash bail to court debt. The increase in fines/fees increased the likelihood of felony recidivism, especially among Black defendants, but had no effect on credit score or other credit report outcomes.

Markovic on Charging Abortion

Milan Markovic (Texas A&M University School of Law) has posted Charging Abortion (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in anti-abortion states have pledged to not enforce anti-abortion laws whereas others are targeting even out-of-state providers. This post-Dobbs reality wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, but prevailing ethical rules and standards do not allow them to disregard laws that they regard as unjust. Nevertheless, since prosecutors do not have unlimited resources, and abortion cases are complex and sensitive, they should use their discretion to focus only on cases where abortion care endangers women and in instances of coercion, as they did pre-Roe. Extraterritorial applications of anti-abortion law are constitutionally suspect and are unlikely to further the public interest.

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Krent & Jansma on Unauthorized Extraterritorial Arrests

Harold J. Krent and Nicole Jansma (Chicago-Kent College of Law and Chicago-Kent College of Law - Illinois Institute of Technology) have posted Crossing the Border Crosses a Line: Assessing the Constitutionality of Unauthorized Extraterritorial Arrests (American Criminal Law Review, Vol. 61, Forthcoming) on SSRN. Here is the abstract:

 

Perhaps surprisingly, the Supreme Court has never resolved whether an unauthorized arrest across state lines violates the Fourth Amendment as an unreasonable seizure. In light of the recent spike in legislation purporting to make conduct originating in other states illegal, delimiting the power to make extraterritorial arrests has become more urgent – law enforcement agents in State A may be tempted to follow suspects into State B (or, indeed to track down suspects who have never set foot in State A) to ensure enforcement of State A’s criminal laws.

Before and after the Framing, individuals subject to such extraterritorial seizures successfully sued the arresting law enforcement officials based on state law tort principles. Indeed, Article IV’s Extradition Clause presupposes that law enforcement officials cannot cross state lines to effect an arrest. In light of incorporation of the Bill of Rights and given that state law enforcement officers are now largely immune from such tort suits, the question whether such unauthorized arrests violate the Fourth Amendment has become more pressing. The issue arises today predominantly in determining whether to exclude evidence uncovered incident to such arrests. The lower courts are badly split. Many hold that violation of a Fresh Pursuit agreement does not make an arrest unreasonable within the meaning of the Fourth Amendment, despite the violation of territorial sovereignty, and many hold as well that, even if the arrest was illegal, law enforcement authorities retain the same power to arrest in other states as would any private citizen witnessing a felony.

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Heflin & McCannon on Zero-Dollar Bail's Impact on Crime

Justin Heflin and Bryan C. McCannon (West Virginia University - College of Business & Economics and Illinois Wesleyan University) have posted The Impact of California's Zero Dollar Bail Policy on Crime on SSRN. Here is the abstract:

 

We ask whether the elimination of cash bail promotes crime. We exploit a Covid-19 related policy in California where a statewide mandate eliminated cash bail. After its relaxation, individual counties were free to continue with the policy. This created variation in the re-implementation of cash bail. We find that the elimination of cash bail leads to a small, but nonzero, increase in violent crime, but we are unable to make a decisive claim regarding its impact on property crime. We further show that it did not affect law enforcement’s clearance rate and, therefore, is likely to be a direct effect from eroding deterrence. Further, we show that the increase in violent crime is concentrated in assaults, rather than more serious felonies which were exempt from the zero cash bail policy.

Baughman & Lilliquist on Fixing Disparate Prosecution

Shima Baradaran Baughman and Jensen Lillquist (Brigham Young University - J. Reuben Clark Law School and University of Utah - S.J. Quinney College of Law) have posted Fixing Disparate Prosecution (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:

 

America’s system of public prosecution is broken. Prosecutors who charge harshly or disparately are shielded from any consequences or recourse and defendants are left with few options. This asymmetry in power results in prosecutors singlehandedly maintaining mass incarceration in the United States and leads to some U.S. states incarcerating more people per year than entire countries. Prosecutors in the United States are permitted to charge with little supervision or guidance and are told to follow the law and “seek justice.” Many choose to charge the highest number of crimes possible, while others choose to exercise restraint and label themselves as “progressives.” But there is no solicitude for individuals who are subject to the whims of an individual prosecutor who might decide to throw the book at an individual rather than exercise mercy and drop charges for a minor first-time offense. Both normative and structural changes are needed. But proposed normative changes—such as progressive prosecution or evidence-driven prosecution—rely on prosecutors themselves to change and lack any enforcement mechanism. Likewise, proposed structural reforms are often too unrealistic to seriously contemplate. While we support these reforms rhetorically, this Article proposes a much simpler, potentially more pragmatic reform. Each defendant should be legislatively provided with a private right of action against disparate prosecution. In other words, a defendant believing she has been charged or sentenced unfairly or out of step with others in a particular jurisdiction could challenge the prosecutorial action and shift the burden to the prosecutor to justify charges. This straightforward proposal could shift the balance of power and create the right incentives to force prosecutors to check their decisions, and in turn result in less draconian charging throughout the United States.