CrimProf Blog

Pavlidis on Recovery of Illicit Proceeds

Georgios Pavlidis (NUP) has posted Asset Recovery in the European Union: Implementing a ‘No Safe Haven’ Strategy for Illicit Proceeds (Journal of Money Laundering Control, Vol. 25 No. 1, 2022, pp. 109-117) on SSRN. Here is the abstract:

 

Purpose – This paper explores existing and proposed methods for enhancing asset recovery and targeting the proceeds of illicit trades and other types of criminal activity in the European Union (EU). Consistent and comprehensive implementation is needed at several levels (preventive measures, financial investigations, criminal proceedings and asset freezing and confiscation) to create a European ‘no safe haven’ strategy for dealing with illicit proceeds.

Design/methodology/approach – This paper draws on primary sources of law, legal scholarship, reports and open source data to explore the existing and proposed methods for enhancing asset recovery in the EU.

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Tokson on Government Purchases of Private Data

Matthew Tokson (University of Utah - S.J. Quinney College of Law) has posted Government Purchases of Private Data (Wake Forest Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The United States lacks a comprehensive data privacy statute, and most states impose only minimal legal constraints on consumer data collection. This regulatory vacuum has given rise to commercial markets in sensitive private data. In recent years, federal agencies and local police departments have begun to purchase this data from specialized brokers in order to track individuals’ activities over time. Much of this data, collected by cellphone apps and internet servers, is likely constitutionally protected. But government attorneys have mostly concluded that purchasing data is a valid way of bypassing the Constitution’s restrictions.

This Article addresses the increasingly prominent issue of government purchases of private data, and examines broader issues of privacy protection in an era of commercial markets in personal information. The Article questions the widespread assumption that the Fourth Amendment can never apply to commercial purchases. Police officers can generally purchase an item available to the public without constitutional restriction. But a closer examination of data markets demonstrates that sensitive cellphone data is not publicly available or exposed. Rather, the vendors who sell such data do so either exclusively to law enforcement agencies or in large, anonymized chunks to other marketing companies. Because sensitive cellphone data remains functionally private, a government purchase of such data violates the Fourth Amendment.

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Arora & Bencsik on Narcotics Arrest Diversion

Ashna Arora and Panka Bencsik (University of Chicago and Vanderbilt University) have posted Policing Substance Use: Chicago's Treatment Program for Narcotics Arrests on SSRN. Here is the abstract:

 

In the United States, law enforcement officers serve as first responders to most health crises, allowing them to connect many more individuals to treatment services than other government actors, a fact that has come into increasing focus due to the opioid epidemic. In response, police departments across the country have begun to divert individuals that possess narcotics away from arrest and towards treatment and recovery. Evidence on whether these programs are able to engender meaningful change—initially by increasing participation in substance use treatment, and eventually by reducing the likelihood of continued drug use and criminal justice involvement—remains limited. This paper aims to shed light on the potential of these programs by exploiting the eligibility criteria for and staggered rollout of narcotics arrest diversion in Chicago between 2018 and 2020 using a triple difference framework. We find that the program reaches individuals with medically diagnosed substance use disorders, increases connections with substance use treatment, and reduces subsequent arrests. We conclude that Chicago’s drug diversion program is able to simultaneously reduce the reach of the criminal justice system, expand the number of individuals with substance use disorders connected with treatment, and improve public safety.

Agan et al. on Felony Reductions and Employment Benefits

Amanda Agan, Andrew Garin, Alexandre Mas, Crystal Yang, and Dmitri Koustas (Rutgers, The State University of New Jersey - Rutgers University, University of Illinois at Urbana-Champaign, University of California, Berkeley, Harvard Law School and University of Chicago) have posted Labor Market Impacts of Reducing Felony Convictions on SSRN. Here is the abstract:

 

We study the labor market impacts of retroactively reducing felonies to misdemeanors in San Joaquin County, CA, where criminal justice agencies implemented Proposition 47 reductions in a quasi-random order, without requiring input or action from affected individuals. Linking records of reductions to administrative tax data, we find employment benefits for individuals who (likely) requested their reduction, consistent with selection, but no benefits among the larger subset of individuals whose records were reduced proactively. A field experiment notifying a subset of individuals about their proactive reduction also shows null results, implying that lack of awareness is unlikely to explain our findings.

Bavli on Character Evidence

Hillel J. Bavli (Southern Methodist University - Dedman School of Law) has posted Correcting Federal Rule of Evidence 404(b)(2) to Clarify the Inadmissibility of Character Evidence (92 Fordham Law Review (forthcoming 2024)) on SSRN. Here is the abstract:

 

Courts misinterpret Federal Rule of Evidence 404(b)(2) as an exception to Rule 404(b)(1)’s prohibition on character evidence rather than a mere clarification that emphasizes the permissibility of other-acts evidence whose relevance does not rely on propensity reasoning. This misinterpretation turns the rule against character evidence on its head by effectively replacing Rule 404 with a Rule-403 balancing - and one that incorrectly treats character inferences as probative rather than prejudicial, thereby favoring admissibility rather than exclusion. Consequently, as currently interpreted, Rule 404(b)(2) generates substantial unpredictability and verdicts based on conduct not at issue in a case.

I therefore propose that the Advisory Committee amend Rule 404(b)(2) to clarify the meaning of this rule as permitting only other-acts evidence whose relevance does not rely on a character inference— that is, whose chain of inferences is free of propensity reasoning.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Eliminating Criminal Law Evan D. Bernick Northern Illinois University - College of Law Date Posted: 19 Sep 2023	277
2.	Microdosing Psychedelics Under Local, State, and Federal Law Mason Marks, I. Glenn Cohen, Jonathan Perez-Reyzin and David Angelatos Florida State University - College of Law, Harvard Law School, Yale University, Law School and New York City Law Department Date Posted: 24 Aug 2023	159
3.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023 [new to top ten]	95
4.	The Death Penalty in Bangladesh: A Review Muhammad Mahbubur Rahman and Psymhe Wadud Department of Law, University of Dhaka and University of Dhaka Date Posted: 13 Sep 2023	82
5.	Library Crime Michael L. Smith St. Mary's University School of Law Date Posted: 29 Aug 2023 [3rd last week]	75
6.	R c Yombo: Affirming and Obscuring the De Minimis Defense Colton Fehr Thompson Rivers University, Faculty of Law Date Posted: 01 Sep 2023 [5th last week]	66
7.	Humanity, Race, and Indigeneity in Criminal Sentencing: Social Change in America, Canada, Europe, Australia, and New Zealand Mugambi Jouet University of Southern California Gould School of Law Date Posted: 20 Sep 2023	60
8.	Why Public Opinion on the Death Penalty Doesn’t Matter in China Michelle Miao The Chinese University of Hong Kong, Faculty of Law Date Posted: 12 Sep 2023 [9th last week]	57
9.	Rethinking Culpability T. Markus Funk PhD University of Colorado School of Law Date Posted: 29 Aug 2023 [8th last week]	53
10.	Constitutional Crimes Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023	51

Next week's criminal law/procedure argument

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

• Culley v. Marshall: Whether district courts, in determining whether the due process clause requires a state or local government to provide a post-seizure probable-cause hearing prior to a statutory judicial-forfeiture proceeding and, if so, when such a hearing must take place, should apply the “speedy trial” test employed in United States v. $8,850 and Barker v. Wingo or the three-part due process analysis set forth in Mathews v. Eldridge.

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	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 [2nd last week]	146
2.	Preliminary Comments on ABA Resolution 100 Robert R. Keatinge Holland & Hart Date Posted: 11 Jul 2023 [3rd last week]	135
3.	Regulating Use by Law Enforcement Authorities of Real-Time Facial Recognition Technology in Public Spaces: An Incremental Approach Asress Adimi Gikay Brunel University London Date Posted: 28 Aug 2023 [6th last week]	103
4.	Like Oil and Water? Effective Data Protection and Direct Cooperation on Digital Evidence Gavin Robinson Utrecht University - Faculty of Law, Economics and Governance Date Posted: 29 Aug 2023 [5th last week]	100
5.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023 [new to top ten]	95
6.	Discriminatory Discretion: Theory and Evidence From Use of Pretrial Algorithms Diag Davenport University of Chicago, Booth School of Business, Students Date Posted: 16 Oct 2023 [new to top ten]	79
7.	Government Purchases of Private Data Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 13 Oct 2023 [new to top ten]	76
8.	The Imposition of Pretrial Conditions on Released Federal Defendants: The Overuse of Conditions Without Providing any Measurable Benefits Thomas H. Cohen and William Hicks Jr. Government of the United States of America - Administrative Office of the U.S. Courts and District of Nevada Pretrial Services Office Date Posted: 03 Oct 2023 [new to top ten]	70
9.	A New Right to Procedural Accuracy: A Governance Model for Digital Evidence in Criminal Proceedings Radina Stoykova University of Groningen - Faculty of Law Date Posted: 24 Aug 2023 [8th last week]	69
10.	Intellectual Disability, Categorical Mitigation, and Punishment Katie Kronick University of Baltimore School of Law Date Posted: 09 Sep 2023 [new to top ten]	66

Eagly on Fish on Racism and Immigration Law

Ingrid V. Eagly (University of California, Los Angeles (UCLA) - School of Law) has posted The Racism of Immigration Crime Prosecution (Iowa Law Review, Vol. 109, No. 27, 2023) on SSRN. Here is the abstract:

 

Eric Fish’s Article, Race, History, and Immigration Crimes, explores the racist motivation behind the original 1929 enactment of the two most common federal immigration crimes, entry without permission and reentry after deportation. This Response engages with Fish’s archival work unearthing this unsettling history and examines how his research has informed a series of legal challenges seeking to strike down the modern federal border crossing law as violating the Equal Protection Clause of the Constitution. Focusing on the district court decision in United States v. Carrillo-Lopez that struck down the reentry law, and the subsequent Ninth Circuit reversal, this Response explores three central and recurring questions in the immigration law field: One: the legacy of plenary power; Two: the significance of the blurry boundary between immigration law and other areas of law, such as the criminal law; and Three: the thorny problem of when taint from a discriminatory predecessor law continues to infect a modern law. The resolution of these three key debates is central not only to the constitutionality of the illegal entry and reentry laws, but also to other areas of law that shape the lives of immigrants in the United States.

Webb et al. on Racial Disparities in Pretrial Decision-Making

Kimberly Hochstedler Webb, Sarah Riley, and Martin T. Wells (Cornell University, Cornell University and Cornell University - Law School) have posted An Assessment of Racial Disparities in Pretrial Decision-Making Using Misclassification Models on SSRN. Here is the abstract:

 

Pretrial risk assessment tools are used in jurisdictions across the country to assess the likelihood of "pretrial failure," the event where defendants either fail to appear for court or reoffend. Judicial officers, in turn, use these assessments to determine whether to release or detain defendants during trial. While algorithmic risk assessment tools were designed to predict pretrial failure with greater accuracy relative to judges, there is still concern that both risk assessment recommendations and pretrial decisions are biased against minority groups. In this paper, we develop methods to investigate the association between risk factors and pretrial failure, while simultaneously estimating misclassification rates of pretrial risk assessments and of judicial decisions as a function of defendant race. This approach adds to a growing literature that makes use of outcome misclassification methods to answer questions about fairness in pretrial decision-making. We give a detailed simulation study for our proposed methodology and apply these methods to data from the Virginia Department of Criminal Justice Services. We estimate that the VPRAI algorithm has near-perfect specificity, but its sensitivity differs by defendant race. Judicial decisions also display evidence of bias; we estimate wrongful detention rates of 39.7% and 51.4% among white and Black defendants, respectively.

Moody on Effects of Crime-Control Policies on Murder

Carlisle E. Moody (College of William and Mary - Department of Economics) has posted A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder on SSRN. Here is the abstract:

 

This study investigates the effects of most of the major firearm and crime control policies on murder. We use two-way fixed-effects models based on state-level panel data from 1970-2018. We include a comprehensive list of relevant policy variables to control for their influence in determining the effect of each. We do a specification search using four commonly used econometric methods to estimate three models of the crime equation. A Bonferroni correction is used to control for false rejections. A robustness check using new difference-in-differences estimators confirms the results. We find that, with the possible exception of constitutional carry laws, no firearm policy can be shown to have a significant long-run effect on murder. However, we find that the traditional policies of prison incarceration and police presence significantly reduce murder in the long run. We also find that executions have no significant long-run effect on murder. Finally, there is considerable evidence that three-strikes laws increase murder in the long run.

Fagan on Moral and Evidentiary Statutes of Limitations

Frank Fagan (South Texas College of Law Houston) has posted Moral and Evidentiary Statutes of Limitations (Research Handbook on Law and Time, F. Fagan & S. Levmore (eds.), Edward Elgar Ltd. (2024, Forthcoming)) on SSRN. Here is the abstract:

 

It is unremarkable that the future depends upon the past. Thought precedes action; cause precedes effect; for a time, the elder serves the younger. True spontaneity is exceptional and noteworthy, whereas the forward-march of time is commonplace and habituated. What is remarkable about time is its contingent nature. The length between thought and action reveals much about a person’s faculties; the temporal distance between a cause and its effect discloses facts about the nature of their relationship; and for how long the elder serves the younger provides perspective on the moral character of a society. In law, the right to bring a claim is made contingent upon time with statutes of limitations, but the meaning of their length is difficult to discern. While the length of a day follows the sun; a month, the moon; and a year, the earth, the interval for possessing the right to take legal action is calibrated to both physical and social worlds; that is to say, its length draws on the evidentiary and moral features of human experience and comprehension.

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Jones & Karger on School and Crime

Todd Jones and Ezra Karger (Mississippi State University and Federal Reserve Bank of Chicago) have posted School and Crime (IZA Discussion Paper No. 16506) on SSRN. Here is the abstract:

 

Criminal activity is seasonal, peaking in the summer and declining through the winter. We provide the first evidence that arrests of children and reported crimes involving children follow a different pattern: peaking during the school year and declining in the summer. We use a regression discontinuity design surrounding the exact start and end dates of the school year to show that this pattern is caused by school: children aged 10–17 are roughly 50% more likely to be involved in a reported crime during the beginning of the school year relative to the weeks before school begins. This sharp increase is driven by student-on-student crimes occurring in school and during school hours. We use the timing of these patterns and a seasonal adjustment to argue that school increases reported crime rates (and arrests) involving 10–17-year-old offenders by 47% (41%) annually relative to a counterfactual where crime rates follow typical seasonal patterns. School exacerbates preexisting sex-based and race-based inequality in reported crime and arrest rates, increasing both the Black-white and male-female gap in reported juvenile crime and arrest rates by more than 40%.

Megalokonomou & Vasilakis on Refugees and Crime

Rigissa Megalokonomou and Chrysovalantis Vasilakis (University of Queensland - School of Economics and Bangor Business School) have posted The Effects of Exposure to Refugees on Crime: Evidence from the Greek Islands (IZA Discussion Paper No. 16502) on SSRN. Here is the abstract:

 

Recent political instability in the Middle East has triggered one of the largest influxes of refugees into Europe. The different departure points along the Turkish coast generate exogenous variation in refugee arrivals across Greek islands. We construct a new dataset on the number and nature of crime incidents and arrested offenders at island level using official police records and newspaper reports. Instrumental variables and difference-in-differences are employed to study the causal relationship between immigration and crime. We find that a 1-percentage-point increase in the share of refugees on destination islands increases crime incidents by 1.7-2.5 percentage points compared with neighboring unexposed islands. This is driven by crime incidents committed by refugees; there is no change in crimes committed by natives on those islands. We find a significant rise in property crime, knife attacks, and rape, but no increase in drug crimes. Results based on reported crimes exhibit a similar pattern. Our findings highlight the need for government provision in terms of infrastructure, social benefits, quicker evaluation for asylum, and social security.

Hajdin on Complicity and Neutral Business Assistance

Nikola R. Hajdin has posted Neutral Business Assistance and the Limits of Complicity Under International Criminal Law (Michigan Journal of International Law, Forthcoming) on SSRN. Here is the abstract:

Business transactions between corporations and states and non-state actors involved in grave human rights violations present significant challenges to corporate criminal liability. This is particularly evident in cases of “neutral business assistance,” that is, business conduct that appears legitimate on the surface and falls within day-to-day business operations, but nonetheless contributes to the occurrence of the crime. An example of neutral business assistance is selling weapons legally at market rates without an explicit intention to aid criminal activity, even if the weapons are later used in the commission of crimes. In such cases, discerning the point at which an ordinary business transaction becomes a wrongful act of complicity remains a complex and unresolved issue.

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Bahrdwaj on Crime and Income During Infancy

Sakshi Bhardwaj has posted Income During Infancy Reduces Criminal Activity for Fathers and Children: Evidence from a Discontinuity in Tax Benefits on SSRN. Here is the abstract:

This paper investigates the causal effect of providing income to low-income families just after childbirth on the criminal justice involvement of families. I employ a regression discontinuity design using the fact that children born to low-income families before year-end can be claimed as dependents on that year's tax returns, resulting in significantly larger tax refunds during the child's first year compared to families with January-born children. Utilizing linked administrative data on birth records and criminal justice involvement from a large U.S. metropolitan county, I find that eligibility for additional income during the first year of parenthood reduces the likelihood of a criminal charge for fathers by 1.2 percentage points (57%) within one year after childbirth. The effect persists for up to ten years after childbirth. The immediate decrease in criminal charges for fathers is particularly evident in income-generating offenses such as robbery, theft, as well as drug possession, and driving under the influence. The effect also extends to the criminal activity of children. Male children born before January 1 have a reduced likelihood of having any juvenile justice case during their teenage years and a reduced likelihood of incarceration in their adult years.

Roberts on Defense Lawyering and Progressive Prosecutors

Jenny Roberts (American University - Washington College of Law) has posted Defense Lawyering in the Progressive Prosecution Era (Cornell Law Review, Vol. 109, No. 5, 2024) on SSRN. Here is the abstract:

 

The movement to elect so-called progressive prosecutors is relatively new, but there is a robust literature analyzing it from a number of angles. Scholars consider how to define “progressive prosecution,” look at the movement through a racial justice lens, and examine it in the context of rural spaces, deportation, and the pandemic. One essay offers a “progressive prosecutor’s handbook.” But what about defense lawyers representing clients in progressive prosecution jurisdictions? If the new prosecutor follows through on campaign promises, things may shift from a highly-charged adversarial relationship with a carcerally-focused office to something quite different. Defenders in such jurisdictions face a number of complex decisions in both individual representation and systemic reform efforts in this new environment. Yet there is no defense lawyer’s handbook for practicing in the progressive prosecution era.

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Zatz on Social Policy and Racialized Mass Incarceration

Noah D. Zatz (UCLA School of Law - UCLA School of Law) has posted Better Than Jail: Social Policy in the Shadow of Racialized Mass Incarceration ((2021) Journal of Law and Political Economy, 1(2)) on SSRN. Here is the abstract:

 

Racialized mass incarceration enables forms of economic exploitation that evade traditional worker protections despite being integrated into conventional labor markets. Such exploitation is legitimated by normalizing incarceration as the baseline against which these practices are judged. In contrast, conventional social policy imagines an “economy” separate from state violence, opposing “free labor” to “involuntary servitude.” The emergent “carceral baseline” recharacterizes labor practices as subjects of criminal justice policy, not economic regulation, especially in “alternatives to incarceration.” Examples of this baseline’s deployment are drawn from regulation of child support work programs, Thirteenth Amendment challenges to community service “working off” criminal legal debts, minimum wage claims by workers in diversion programs, and legislative proposals to exclude formerly incarcerated workers from labor protections. Implications include the need to integrate insights from theories of nonmarket work and of racial capitalism that challenge the dominance of markets as objects of description and critique in law and political economy analysis.

Khoday on Cell-Plant Operations

Amar Khoday (University of Manitoba - Faculty of Law) has posted 'Interrogators Often Use Honey, Not Vinegar, in Pursuit of the Truth': Resistance, the Constitutional Right to Silence and Judicial Responses to Cell-plant Operations ((2023) 46 Manitoba Law Journal (Forthcoming)) on SSRN. Here is the abstract:

 

Police officers employ numerous tactics to elicit incriminating statements from an accused. For instance, law enforcement officials will sometimes insert undercover police officers into a detention cell to procure evidence – cell-plant operations. During the 1990s, the Supreme Court of Canada held that where undercover state agents actively elicit incriminating statements from an accused while in detention, such conduct violates the latter’s right to silence situated in section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). Remaining silent is a legitimate way to resist the power of the state when it conducts investigations. Police officers undermine this right and ability to resist when dispatching undercover officers in this manner, since an accused is unaware that they are speaking to state agents. However, an accused person with the assistance of their lawyer(s) may further resist the prosecution’s intended use of these incriminating statements through litigation – specifically, applications to exclude evidence under the Charter.

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Brink on Two Kinds of Desert

David O. Brink (University of California, San Diego) has posted Two Kinds of Desert on SSRN. Here is the abstract:

 

The concept of desert figures centrally in our reactive attitudes and practices in both morality and law. A philosophical tradition that includes Butler, Price, Kant, and Ross focuses on aretaic desert, which claims that people deserve rewards and sanctions commensurate with their overall aggregate levels of virtue and vice. By contrast, accountability desert assesses the praise or blame agents deserve for particular actions. An important special case of accountability desert is retributive desert, which insists that culpable wrongdoing is the desert basis of blame and punishment.

These desert contexts display both unity and diversity. On the one hand, these different desert contexts are all regulated by a conception of moral agency and responsibility that is grounded in a conception of accountability in which responsible agents are conceived as reasons-responsive agents who have the fair opportunity to exercise their normative capacities. Desert is a matter of fitting responses, positive or negative, to conduct for which the agent is accountable. On the other hand, there are also important differences between aretaic and accountability desert concerning the focus, scope, and valence of desert. Crucially, whereas accountability desert has an atomic focus on individual actions, aretaic desert has a holistic focus on aggregate virtue and vice.

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