CrimProf Blog

Gordon on RICO's Long Arm

Randy Gordon (Texas A&M University School of Law) has posted RICO’s Long Arm on SSRN. Here is the abstract:

 

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish a domestic injury. But it declined to establish a bright line test—or really any test, leaving that to the lower courts to flesh out. The Court also declined to engage the question of whether RICO is an appropriate vehicle for enforcing all (or perhaps international) arbitral awards. And—more generally—domestic judgments. Those and many other questions remain for another day.

Smith on Federalism and Federal Fraud Jurisprudence

Benjamin Smith has posted The Fraud of Federalism: How the Modern Court Has Used the Meaning of “Property” to Reshape Federal Fraud Jurisprudence (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

For the past several decades, the Supreme Court has shown a renewed interest in federal fraud jurisprudence. In a series of cases, the Court has repeatedly sought to re-interpret the meaning of "property" within the fraud statutes to limit the degree to which federal prosecutors can regulate state official misconduct. While the Court's interpretive approach to the federal fraud statutes has drawn varying degrees of praise and criticism from different sides of the legal community, this Note seeks to ask—in a apolitical, value-neutral fashion—whether the Courts stated ends are justified by their analytical means. The Note first undertakes a deep-dive analysis of the evolution of the Court's mail and wire fraud jurisprudence. It then shows how, on the Court's own terms, the modern fraud doctrine fails to meaningfully further their goals of drawing clear limits for federal prosecutors. In undertaking this close doctrinal analysis, this Note exposes slapdash doctrines that are rooted more in ideological interests than rigorous analytical and interpretive methods, and offers an lens to analyze Supreme Court jurisprudence that can be applied far beyond the fraud statues themselves.

Dellinger & Pell on Surveillance of Women in a Post-Dobbs World

Jolynn Dellinger and Stephanie Pell (Duke Law School and Brookings Institution) have posted Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World (19 Duke J. Const. L. & Pub. Pol'Y (2024 Forthcoming)) on SSRN. Here is the abstract:

 

In the wake of Dobbs v. Jackson Women’s Health Organization, state laws criminalizing abortion raise concerns about the investigation and prosecution of women seeking reproductive healthcare and about the surveillance such investigations will entail. The criminalization of abortion is not new, and the investigation of abortion crimes has always involved the surveillance of women. However, state statutes criminalizing abortion coupled with surveillance methods and technologies that did not exist pre-Roe present new and complex challenges surrounding the protection of women’s privacy and liberty interests—in addition to the interests of those who may provide or help pregnant people obtain reproductive care. Accordingly, surveillance, investigation, and the possibility of prosecution create new and more extensive privacy concerns than those traditionally associated with the right to decide whether to have an abortion.

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Lindsey & Pausacker on The Death Penalty in Asia

Timothy Lindsey and Helen Pausacker (Centre for Indonesian Law, Islam and Society, Melbourne Law School and Centre for Indonesian Law, Islam and Society, Melbourne Law School) have posted Death Penalty in Asia Special Issue: Introduction (Australian Journal of Asian Law, Vol. 24, No. 1, Article 01: 1-5, 2023) on SSRN. Here is the abstract:

 

This special issue of the Australian Journal of Asian Law (AJAL) investigates issues relevant to the death penalty in Asia: the continued common use of the death penalty in the region; the procedures used to implement it; the justifications offered in its support, as well as the critiques offered by the reformers who seek its abolition and the campaigns they lead to that end. The articles in this issue therefore explore the current state of laws and policies regulating capital punishment in Asian countries, variously describing their substance and history, examining selected judicial decisions of importance, or investigating recent legal and policy changes.

Armstrong on Carceral Secrecy and (In)Security

Andrea C. Armstrong (Loyola University New Orleans College of Law) has posted an abstract of Carceral Secrecy and (In)Security, in Race & National Security 90 (Matiangai V.S. Sirleaf ed., Oxford Univ. Press 2023) on SSRN. Here is the abstract:

 

This chapter situates the experiences of Black and Latine incarcerated women and femmes within the context of carceral secrecy. Secrecy is often invoked as a necessary element of ensuring traditional conceptions of security. Carceral spaces, which disproportionately confine Black and Latine women and femmes, present an opportunity to critically examine how secrecy can enable insecurity for incarcerated women and femmes of color and their communities simultaneously with the alleged production of generalized security for all. By virtue of their confinement within these secret, gendered, and racialized carceral spaces, incarcerated women and femmes of color experience distinct physical and mental harms. These harms also flow outward, harming their communities as well. Employing an intersectional analysis focusing on incarcerated women and femmes of color raises questions of “security for whom” and highlights how disrupting secrecy is a critical piece of reimagining security.

Carter on The Exclusionary Rule

Andrew Carter (Arizona State University- Sandra Day O'Connor College of Law) has posted The Exclusionary Rule Is Dead. Long Live the Exclusionary Rule. (30.2 Virginal Journal of Social Policy & Law 117 (2023)) on SSRN. Here is the abstract:

 

My legal training was the liberal kind, and I started this paper with a vague goal of mounting a spirited defense of the Fourth Amendment exclusionary rule against the incursions of the modern Supreme Court. But the rule I set out to defend—where ill-gotten evidence is excluded irrespective of the underlying crime or the nature of the officer’s misconduct—is dead, and it has been for a while. Frankly, it was doomed from the start. Trial court judges are, under their judicial robes, human beings. Their decision-making was always going to express a “moral” exclusionary rule: one where exclusion of ill-gotten evidence is reserved for unignorable police misconduct and prosecutions of misdemeanors and vice crimes. It is time to accommodate this reality. It is time to adopt an exclusionary rule for the real world.

Bard & Kochenov on The EU Arrest Warrant and the De Facto Presumption of Guilt

Petra Bard and Dimitry Kochenov (Radboud University and CEU Democracy Institute, Budapest) have posted What Article 7 Is Not: The European Arrest Warrant and the De Facto Presumption of Guilt – Protecting EU Budget Better Than Human Rights? (forthcoming in Adam Łazowski and Valsamis Mitsilegas (eds) The Arrest Warrant at Twenty, Oxford: Hart Publishing, 2024) on SSRN. Here is the abstract:

 

The EU’s proclaimed nature as a value-based Union trumps its values in practice, as well as the most essential rights of Europeans caught in the maze of CJEU’s wishful thinking. This reveals the new face of the Union as a powerful actor of injustice, which is incapable – as years go by – to correct the excesses of own – not only national-level – departures from the essential values it was created to ensure, safeguard and uphold. We demonstrate that the application of the current standards of mutual trust in EU law lead the EU and the Member States to systematically disregard the most essential principles of law, such as the presumption of innocence. In the current context neither the political institutions, nor the CJEU have displayed willingness in fully addressing Rule of Law backsliding and significant breaches of Article 2 TEU within the framework of mutual recognition. This reluctance persists despite the other EU institutions either lacking the ability, or the willingness, to shoulder political responsibility and actively contribute to resolving the intricate problem of a crisis in shared values. As a result, the EU becomes complicit, via its institutions unable to ensure that the basic substance of the Rule of Law be adhered to on the ground, while at the same time demanding mutual trust based on the requirement of ignorance of the actual state of the Union. This is a significant and painful violation of the core ideas underpinning post-enlightenment criminal law and the most basic due process guarantees. While mutual trust is crucial for the Union’s functioning, it is rightly not mentioned among the founding values of Article 2 TEU. Treating mutual trust as a super-principle capable of outweighing those values in practice – the daily practice of CJEU today, as we have demonstrated – is a grave violation of EU law significantly endangering the European unification project.

Ranchordas & Beck on Vulnerability

Sofia Ranchordas and Malou Beck (Tilburg University and Tilburg Law School) have posted Vulnerability in Kaufmann, Mareille and Mork Lomell, Heidi (Eds), Handbook on Digital Criminology (De Gruyter, 2024, Forthcoming) on SSRN. Here is the abstract:

 

While there has been commendable progress in the protection of vulnerable groups, the definition of vulnerability has been a fragmented exercise. While there are many meaningful descriptions of this concept, there is also the perception that scholars have defined vulnerability either too broadly or too narrowly. Definitions of vulnerability can be at times vague and elusive but they can also be biased and limited in their scope when vulnerability is connected to closed groups and categories. In addition, there has been a significant misuse of the term ‘vulnerability’ in scholarship, popular science, and media. This misuse of the concept risks depriving it from its intended meaning and protective impact. Considering existing scholarship, we review the four most relevant conceptualizations of vulnerability which define this concept based on the notions of (i) exposure to harm; (ii) individual particularities; (iii) the universal character of vulnerability; and (iv) the existence of multiple layers of vulnerability.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023 [2nd last week]	113
2.	A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder Carlisle E. Moody College of William and Mary - Department of Economics Date Posted: 11 Oct 2023 [3rd last week]	100
3.	The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness Kristen Bell University of Oregon School of Law Date Posted: 18 Oct 2023 [4th last week]	95
4.	Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World Jolynn Dellinger and Stephanie Pell Duke Law School and Brookings Institution Date Posted: 08 Nov 2023 [5th last week]	87
5.	'Statistics are Human Beings with the Tears Wiped Away': Utilizing Data to Develop Strategies to Reduce the Number of Native Americans Who Go Missing Lori McPherson and Sarah Blazucki Government of the United States of America - United States Marshals Service (USMS) and Independent Date Posted: 19 Oct 2023 [6th last week]	77
6.	Constitutional Crimes Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023 [8th last week]	67
7.	Moral Panic and the First Amendment Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023 [9th last week]	60
8.	The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz Kathryn Stanchi University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 25 Sep 2023 [10th last week]	53
9.	Spiro T. Agnew in His Own Words: 1973 and 1983 Ross E. Davies George Mason University - Antonin Scalia Law School Date Posted: 25 Sep 2023 [new to top ten]	53
10.	Criminal Liability of Artificial Intelligence Andreas Nanos Charles University in Prague - Faculty of Law Date Posted: 06 Nov 2023 [new to top ten]	44

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The First Black Jurors and the Integration of the American Jury Thomas Frampton University of Virginia School of Law Date Posted: 23 Oct 2023	204
2.	Government Purchases of Private Data Matthew Tokson University of Utah - S.J. Quinney College of Law Date Posted: 13 Oct 2023 [3rd last week]	155
3.	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 [4th last week]	140
4.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023 [5th last week]	113
5.	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 [6th last week]	91
6.	Victim, Reconstructed: Sex Crimes Experts and the New Rape Paradigm Deborah Tuerkheimer Northwestern University - Pritzker School of Law Date Posted: 05 Oct 2023 [7th last week]	81
7.	The Embarrassing Sixth Amendment Andrea L. Roth University of California, Berkeley - School of Law Date Posted: 09 Nov 2023 [10th last week]	80
8.	Correcting Federal Rule of Evidence 404(b)(2) to Clarify the Inadmissibility of Character Evidence Hillel J. Bavli Southern Methodist University - Dedman School of Law Date Posted: 11 Oct 2023 [9th last week]	72
9.	'Interrogators Often Use Honey, Not Vinegar, in Pursuit of the Truth': Resistance, the Constitutional Right to Silence and Judicial Responses to Cell-plant Operations Amar Khoday University of Manitoba - Faculty of Law Date Posted: 07 Oct 2023 [new to top ten]	57
10.	Eavesdropping, the Fourth Amendment, and the Common Law (of Eavesdropping) Donald A. Dripps University of San Diego School of Law Date Posted: 26 Oct 2023 [new to top ten]	56

Sharif on Money Laundering

Md Romel Sharif has posted Unmasking the Hypothetical: Money Laundering through Foreign Contractors in Underdeveloped Countries on SSRN. Here is the abstract:

This discussion uncovers how, in the guise of development, public funds are clandestinely laundered, resulting in dire economic and social consequences. We explore a hypothetical scenario involving foreign contractors and ambitious projects in underdeveloped countries, highlighting the vulnerabilities in anti-money laundering efforts and advocating for regulatory enhancements and transparency. Real-world challenges, such as limited regulatory oversight, financial inclusion gaps, and corruption, are examined alongside common money laundering techniques. The erosion of key institutions amplifies the danger, exemplifying the perilous link between corruption and money laundering. This discussion serves as a clarion call for more robust anti-money laundering measures and enhanced international collaboration in countering this widespread and destructive phenomenon.

Solove & Matsumi on AI, Algorithms, and Awful Humans

Daniel J. Solove and Hideyuki MATSUMI (George Washington University Law School and Vrije Universiteit Brussel (VUB)) have posted AI, Algorithms, and Awful Humans (96 Fordham Law Review (forthcoming 2024)) on SSRN. Here is the abstract:

 

This Essay critiques a set of arguments often made to justify the use of AI and algorithmic decision-making technologies. These arguments all share a common premise – that human decision-making is so deeply flawed that augmenting it or replacing it with machines will be an improvement.

In this Essay, we argue that these arguments fail to account for the full complexity of human and machine decision-making when it comes to deciding about humans. Making decisions about humans involves special emotional and moral considerations that algorithms are not yet prepared to make – and might never be able to make.

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Nanos on Criminal Liability of AI

Andreas Nanos (Charles University in Prague - Faculty of Law) has posted Criminal Liability of Artificial Intelligence on SSRN. Here is the abstract:

 

Artificial intelligence is a new and extremely quickly developing technology, which is expected, and maybe even feared to bring enormous changes in every aspect of our society. Even though this technology is still comparatively underdeveloped, we already hand over a multitude of everyday-tasks. As for now AI is mostly used to take over tasks, which are often perceived as “annoying” or highly time consuming. Therefore, it shall enhance productivity in first place. It is expected to do many of the tasks even better than human beings. At least in future. Some of these tasks, such as autonomous driving are quite dangerous, bearing the potential to infringe peoples protected rights, and even cause physical harm and death to human beings. Obviously, such technology needs a solid and reliable legal basis, especially in terms of liability, if the inevitable happens and the technology causes events that were not intended to happen. However, a well-developed set of rules should not only concern private law. Especially when such technology causes harm or even death to human beings, the question of a criminal deed arises, in a sense of criminal negligence for example. Future criminal law must be prepared and probably adjusted effectively tackle any questions concerning criminal liability of artificial intelligence.

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Cassell & Erez on Victim Impact Statements in the Nassar Sentencing

Paul G. Cassell and Edna Erez (University of Utah - S.J. Quinney College of Law and University of Illinois at Chicago) have posted How Victim Impact Statements Promote Justice: Evidence from the Content of Statements Delivered in Larry Nassar's Sentencing (107 MARQUETTE L. REV. __ (Barrock Lecture 2024), Forthcoming) on SSRN. Here is the abstract:

 

Whether crime victims should present victim impact statements (VISs) at sentencing remains a subject of controversy in the criminal justice literature. But relatively little is known about the content of VISs and how victims use them. This article provides a content analysis of the 168 VISs presented in a Michigan court sentencing of Larry Nassar, who pleaded guilty to decades of sexual abuse of young athletes while he was treating them for various sports injuries. Nassar committed similar crimes against each of his victims, allowing a robust research approach to answer questions about the content, motivations for, and benefits of submitting VISs. Specifically, it is possible to explore the question of whether (roughly) the same crimes produce (roughly) the same VISs. The VISs reveal the victims’/survivors’ motive for presenting VISs, their manner of presenting the impact of sexual abuse, their interactions with the sentencing judge and the defendant, and other features of the VISs. Analyzing the VISs’ contents confirms many of the arguments supporting using VISs at sentencing and challenges some lingering objections to them. The findings support the desirability of VISs for informational, therapeutic, and educational purposes in criminal sentencings.

This week's crim law/procedure cert grant

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

• Erlinger v. United States: Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.

Anthony on The Right to Financial Privacy

Nicholas Anthony (Cato Institute) has posted The Right to Financial Privacy (POLICY ANALYSIS NO. 945) on SSRN. Here is the abstract:

 

The Right to Financial Privacy Act of 1978 was enacted to protect Americans from warrantless surveillance. In theory, it was supposed to counter the financial surveillance born out of the Bank Secrecy Act of 1970 and the Supreme Court case United States v. Miller in 1976. In practice, however, the Right to Financial Privacy Act failed to live up to its name because it was enacted with a list of 20 different exceptions to its protections. From law enforcement inquiries to federal statutes, the exceptions covered nearly all forms of financial surveillance. Worse yet, these issues have only been compounded in the digital age. The prevalence of credit cards, mobile banking, and other app‐​based financial tools has created an unprecedented supply of financial data. Government efforts like Operation Choke Point, the Treasury’s $600 reporting threshold proposal, and the constant increase of the scope of Bank Secrecy Act reporting have already made it evident how these financial data are being used. Such unrivaled access to the lives of all Americans makes it evident that now, more than ever, it is time to rethink how financial privacy is treated in the United States. Turning back the clock may not be possible, but removing the exceptions to the Right to Financial Privacy Act would establish the financial privacy protections that Americans should have had from the beginning.

Khakhar on The Risks of Jury Secrecy

Nik Khakhar (University of Toronto, Faculty of Law) has posted 'Unlocking Pandora's Box?': Resolving the Clash of Infrastructure Amidst the Risks of Jury Secrecy (University of Toronto Faculty of Law Review, Vol. 81, No. 2, 2023) on SSRN. Here is the abstract:

 

This paper argues that to reduce jury-induced wrongful convictions, reforms must be targeted towards guiding prosecutorial discretion. The Crown has the ultimate say on whether to allow a judge-alone trial, making prosecutorial decision-making the most practical avenue to address the risks inherent in jury verdicts. Part I examines research on the accuracy of jury verdicts, challenges assumptions on jury secrecy rules in Canada, and identifies practical difficulties in modifying them. Part II explores the unequal appellate review of judge-alone and jury verdicts, and Part III discusses the mandatory jury trial provisions for severe offenses, which may increase the risk of wrongful convictions. Finally, Part IV examines the Crown's role in consenting to judge-alone trials, and proposes policy modifications informed by wrongful convictions risks.

Ugwuokpe on Comparative Evidence Exclusion

Kenneth Ugwuokpe (University of Queensland) has posted Evidence Exclusion and the Epistemic Search for Truth in Criminal Trials in the United States, Canada, Nigeria and Australia on SSRN. Here is the abstract:

 

The controversy surrounding the exclusion of evidence in criminal trials has continued with renewed vigour. At one end are those who believe that a piece of evidence should be admitted based solely on its inherent epistemic value without reference to any other external considerations.

At the other end are those who contend that criminal justice systems are meant to serve many societal ideals of which the search for truth is only one, and that criminal trials must be designed to ensure balanced resolutions of all conflicting interests. Naturally, legal systems across the world exemplify these divergencies with many variations along the spectrum regarding the scope of the exclusionary powers of the fact finder or court and the justifications for such powers. This article sets out to analyse the illegally or improperly obtained evidence exclusion regimes in the United States, Canada, Nigeria and Australia, and their respective levels of commitment to the search for truth. This article provides an insightful frame of comparative reference for stakeholders in these jurisdictions.

Jennings on Criminal Subsidiaries

Andrew Jennings (Emory University School of Law) has posted Criminal Subsidiaries (Fordham Law Review, Vol. 92, 2024) on SSRN. Here is the abstract:

 

Corporate groups comprise parent companies and one or more subsidiaries, which parents use to manage liabilities, transactions, operations, and regulation. Those subsidiaries can also be used to manage criminal accountability when multiple entities within a corporate group share responsibility for a common offense. A parent, for instance, might reach a settlement with prosecutors that requires its subsidiary to plead guilty to a crime, without conviction of the parent itself (that is, subsidiary-only conviction (SOC)). The parent will thus avoid bearing collateral consequences—such as contracting or industry bars—that would follow its own conviction. For the prosecutor, such settlements can respond to criminal law’s expressive purposes while avoiding socially unacceptable collateral consequences from parent-level conviction.

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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	294
2.	Defense Lawyering in the Progressive Prosecution Era Jenny Roberts American University - Washington College of Law Date Posted: 09 Oct 2023	110
3.	A Comprehensive Analysis of the Effect of Crime-Control Policies on Murder Carlisle E. Moody College of William and Mary - Department of Economics Date Posted: 11 Oct 2023 [8th last week]	96
4.	The Forgotten Jurisprudence of Parole and State Constitutional Doctrines of Vagueness Kristen Bell University of Oregon School of Law Date Posted: 18 Oct 2023	94
5.	Bodies of Evidence: The Criminalization of Abortion and Surveillance of Women in a Post-Dobbs World Jolynn Dellinger and Stephanie Pell Duke Law School and Brookings Institution Date Posted: 08 Nov 2023 [new to top ten]	80
6.	'Statistics are Human Beings with the Tears Wiped Away': Utilizing Data to Develop Strategies to Reduce the Number of Native Americans Who Go Missing Lori McPherson and Sarah Blazucki Government of the United States of America - United States Marshals Service (USMS) and Independent Date Posted: 19 Oct 2023 [new to top ten]	76
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	72
8.	Constitutional Crimes Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023 [9th last week]	67
9.	Moral Panic and the First Amendment Michael L. Smith St. Mary's University School of Law Date Posted: 28 Sep 2023 [new to top ten]	55
10.	The Rhetoric of Rape Through the Lens of Commonwealth v. Berkowitz Kathryn Stanchi University of Nevada, Las Vegas, William S. Boyd School of Law Date Posted: 25 Sep 2023 [new to top ten]	50