CrimProf Blog

Moiseienko on Sanctions Against Family Members of Primary Targets

Anton Moiseienko (ANU College of Law) has posted an abstract of The Sins of the Fathers: Targeted Sanctions Against Family Members of Primary Targets (Modern Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Targeted sanctions, such as asset freezes and travel bans, are an increasingly popular response to a wide array of wrongdoing. This article considers an especially problematic aspect of contemporary sanctions law and practice that has received little attention so far, namely the imposition of sanctions on the family members of the primary target. In charting out a coherent and principled approach to such sanctions, the article makes three distinct contributions. First, it offers a comprehensive survey of law, policy and practice related to family-member sanctions across the US,UK,EU and Australia. Secondly, it identifies the limits that international human rights law places on such sanctions, which effectively preclude automatic family-member sanctions. Thirdly and finally, it proposes a ‘profit-based’ sanctions model as an alternative to ‘activity-based’ and ‘status-based’ sanctions, as well as outlining its implications for the design of family-member sanctions.

"Responding to Crimes of a Sexual Nature: What We Really Want Is No More Victims"

From The Sentencing Project, via NACDL's news update:

Report examines misconceptions around crimes of a sexual nature that contribute to the rise in imprisonment rates and the lengthening of sentences, and offers recommendations for reform.

"Three foreign residents sue Japan for police racial profiling practice"

From Jurist:

Three foreign-born Japanese residents have filed a statement of claim against the Japanese national and local governments for the alleged police practice of racial profiling. Each of the applicants sought damages of 3.3 million Japanese Yen.

The three applicants are Pakistani, African-American and Pacific Lander respectively, who also are either Japanese citizens or permanent residents. In the statement of claim, the applicants outlined several instances where individuals were stopped and questioned solely based on their appearance without any legal basis. The applicants also cited a survey conducted by the Tokyo Bar Association in 2021, stating that 85.4% of Japanese residents who experienced police questioning within five years had a foreign origin. In addition, 76.9% of them claimed that they could not think of any sufficient probable cause that warranted a police stop, noting that a sufficient probable cause is necessary for a police officer to exercise his legal right to stop and question under Article 2 of the Police Duties Execution Act.

Levin & Levine on Redistributing Justice

Benjamin Levin and Kate Levine (Washington University in St. Louis - School of Law and Yeshiva University - Benjamin N. Cardozo School of Law) have posted Redistributing Justice (Columbia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

This Article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable.

In this Article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can be used to redistribute power and privilege. We examine this redistributive theory of punishment via a series of case studies: police violence, economic crimes, hate crimes, and crimes of gender subordination. It is tempting to view these cases as one-off exceptions to a general opposition to criminal punishment. Instead, we argue that they reflect a vision of criminal law as a tool of redistribution—a vehicle for redistributing power from privileged defendants to marginalized victims.

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"Social media, text messages at center of trial for mother of Michigan mass shooter"

From Courthouse News Service, via NACDL's news update:

Former Oakland County detective Edward Wagrowski, a computer crimes expert who worked for the Oakland County Sheriff's Office at the time of the Oxford High School shooting in November 2021, spent the entire day answering questions from state prosecutors and Jennifer Crumbley's defense attorney Shannon Smith.

The questions he fielded related centrally to his investigation into the Crumbley family's text messages and social media posts in the months leading up to the shooting. Using those messages, prosecutors sought to show jurors that Jennifer Crumbley neglected her son's mounting mental health crises — including hallucinations, paranoia and insomnia — and ignored what should have been obvious warning signs.

Among the most damning bits of evidence were text logs from March 17, 2021. Ethan Crumbley, while home alone, sent his mother text messages attesting that he saw a demon in the house and asking her to respond.

“OK the house is now haunted. Some weird shit just happened and now I’m scared,” Ethan Crumbley said to his mother in two texts that evening. Jennifer Crumbley didn't respond until almost two full days later.

Cheng on Death Is Disparate

Jesse Cheng (DePaul University - College of Law) has posted Death Is Disparate (SMU Law Review, Forthcoming) on SSRN. Here is the abstract:

 

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial. But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts. This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to aggravating evidence offered by the prosecution when making the case for death. In exploring this possibility, the Article draws attention to a crucial yet heretofore unexplored dynamic of capital sentencing trials. Even if aggravation is expanded under a doctrine of adversarial parity, the defense’s evidentiary burden will always be substantially more onerous than the prosecution’s, with the case in mitigation delving into the defendant’s full biopsychosocial history across life. Death is not only different. It is also disparate. This Article thinks through some constitutional implications of death’s disparity, offering a new framework for reconceptualizing key tensions in the troubled evolution of Eighth Amendment capital trial doctrine.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Six U.S. Execution Methods and the Disastrous Quest for Humaneness Deborah W. Denno Fordham University School of Law Date Posted: 09 Jan 2024 [new to top ten]	322
2.	Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules Paul H. Robinson, Hugh Rennie and Clever Earth University of Pennsylvania Carey Law School, University of Pennsylvania, University of Pennsylvania Carey Law School and University of Pennsylvania Date Posted: 04 Jan 2024 [1st last week]	298
3.	“Mass Incarceration” Myths and Facts: Aiming Reform at the Real Problems Paul H. Robinson and Jeffrey Seaman University of Pennsylvania Carey Law School and University of Pennsylvania Date Posted: 17 Jan 2024 [2nd last week]	192
4.	Patentomania: The Cost of Embedding Patents in Social Policies Genevieve Heng, Martin Husovec and Jorge L. Contreras London School of Economics - Law School, London School of Economics - Law School and University of Utah - S.J. Quinney College of Law Date Posted: 20 Dec 2023 [new to top ten]	89
5.	Using Large Language Models to Support Thematic Analysis in Empirical Legal Studies Jakub Drápal, Hannes Westermann and Jaromir Savelka Charles University in Prague, Faculty of Law, University of Montreal - Cyberjustice Laboratory and Carnegie Mellon University Date Posted: 30 Nov 2023 [3rd last week]	76
6.	A Criminal Law Based on Harm Alone: The Story of California Criminal Justice Reform Joshua Kleinfeld and Thomas Hoyt Northwestern University - Pritzker School of Law and Independent Date Posted: 26 Apr 2022 [4th last week]	66
7.	Bad Attempts Andrew Jensen Kerr Peking University School of Transnational Law Date Posted: 05 Dec 2023 [5th last week]	47
8.	Vulnerable Defendants and Neuroscience in Courtrooms Worldwide Deborah W. Denno Fordham University School of Law Date Posted: 28 Nov 2023 [6th last week]	43
9.	The Imperialism of Desert Ofer Malcai and Re'em Segev Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem – Faculty of Law Date Posted: 17 Nov 2023 [8th last week]	32
10.	Plea Problems and Diversion Dilemmas: Protecting Juvenile Rights Through Pragmatic Means Jackson Lanier North Carolina Central University (NCCU) - School of Law Date Posted: 27 Nov 2023 [7th last week]	29

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	The Prosecutor Vacancy Crisis Adam M. Gershowitz William & Mary Law School Date Posted: 18 Dec 2023	597
2.	Six U.S. Execution Methods and the Disastrous Quest for Humaneness Deborah W. Denno Fordham University School of Law Date Posted: 09 Jan 2024 [new to top ten]	177
3.	"Progressive" Prosecutors and "Proper" Punishments Benjamin Levin Washington University in St. Louis - School of Law Date Posted: 27 Nov 2023 [2nd last week]	144
4.	Eliminating Rule 609 to Provide a Fair Opportunity to Defend Against Criminal Charges: A Proposal to the Advisory Committee on the Federal Rules of Evidence Jeffrey Bellin William & Mary Law School Date Posted: 28 Nov 2023 [3rd last week]	125
5.	Victims of Coercive Plea Bargaining Lucian E. Dervan, Vanessa Edkins and Thea Johnson Belmont University School of Law, Florida Institute of Technology and Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 20 Dec 2023 [new to top ten]	109
6.	Privacy in the Age of IoT Technologies: Examining the Shortcoming of the Fourth Amendment and the Third-Party Doctrine for Smart Home Users Perla Khattar and Dillon Yang Notre Dame Law School and University of Notre Dame - Notre Dame Law School Date Posted: 04 Nov 2023	69
7.	A Synthesis of the Science and Law Relating to Eyewitness Misidentifications and Recommendations for How Police and Courts Can Reduce Wrongful Convictions Based on Them Henry F. Fradella Arizona State University - School of Criminology and Criminal Justice Date Posted: 28 Nov 2023	62
8.	The Nonexistent Speedy Trial Right Colleen Cullen University of Denver Sturm College of Law Date Posted: 05 Dec 2023 [9th last week]	56
9.	Confrontation, the Legacy of Crawford, and Important Unanswered Questions Paul F. Rothstein and Ronald J. Coleman Georgetown University Law Center and Georgetown University Law Center Date Posted: 30 Nov 2023 [8th last week]	55
10.	#Vanlife and the Right to Privacy Sabrina Safrin Rutgers Law School Date Posted: 07 Dec 2023 [new to top ten]	49

"Walking Back Drug Decriminalization"

Kent Scheidegger has this post at Crime & Consequences, referencing an AP story. In part:

A common source of error in public policy is finding something wrong and “fixing” it by going too far in the other direction. The Oregon Legislature appears to be waking up to the reality that the state went too far in decriminalizing drugs, according to this report by AP.

SALEM, Ore. (AP) — Democratic lawmakers in Oregon on Tuesday unveiled a sweeping new bill that would undo a key part of the state’s first-in-the-nation drug decriminalization law, a recognition that public opinion has soured on the measure amid rampant public drug use during the fentanyl crisis.

The bill would recriminalize the possession of small amounts of drugs as a low-level misdemeanor, enabling police to confiscate them and crack down on their use on sidewalks and in parks, its authors said. It also aims to make it easier to prosecute dealers, to access addiction treatment medication, and to obtain and keep housing without facing discrimination for using that medication.

Coglianese on Compliance and Bowles's Aphorism

Cary Coglianese (University of Pennsylvania Carey Law School) has posted Revisiting Bowles’s Aphorism (Regulation, Vol. 46, No. 4, 2023-2024) on SSRN. Here is the abstract:

 

For decades, scholars and practitioners have heard the saying that 20 percent of regulated entities readily comply with regulations, while 5 percent evade them—and that the behavior of the remaining 75 percent depends on the actions that regulators take against the small fraction of bad apples that deliberately seek to evade the rules. This breakdown of regulated firms is based on an oft-quoted aphorism put forward by Chester Bowles, a distinguished public leader who headed the U.S. Office of Price Administration during World War II. But as this essay shows, Bowles’s aphorism, despite its superficial and intuitive appeal, has been widely misunderstood. Not only did the aphorism have no grounding in any empirical research, Bowles originally offered his saying as a way of describing the compliance tendencies of individuals, not businesses. He also drew from his observations of individual behavior during a much different era than today—that is, during a time of heightened wartime patriotism.

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"Experts urge Congress to help set standards, increase transparency of AI-assisted law enforcement"

From Courthouse News Service, via NACDL's news update:

Rebecca Wexler, a law professor at the University of California at Berkeley, lamented what she said were “troubling obstacles” to scrutinizing the use of AI tools in criminal legal proceedings.

Wexler criticized some vendors of AI tools which she said can freely refuse access to researchers hoping to conduct independent reviews of their services, something she said averts scrutiny of potential flaws.

AI vendors are also able to shield their tools from review by citing trade secret privilege, Wexler told the committee, by refusing to share the details of their technology with courts, witnesses and criminal defendants.

Lain on Bellin on Deinstitutionalization and Mass Incarceration

Corinna Lain (University of Richmond - School of Law) has posted The Road to Hell is Paved With Good Intentions: Deinstitutionalization and Mass Incarceration Nation (William & Mary Law Review, Vol. 65, No. __, 2024) on SSRN. Here is the abstract:

 

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution—a response to Jeffrey Bellin’s book Mass Incarceration Nation—I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead. Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require an interconnected solution. The lessons of deinstitutionalization’s failures can inform how our decarceration story plays out, offering an opportunity to avoid the mistakes of our past and move toward a more just, humane, and equitable future—a future that takes the “mass” out of mass incarceration.

"Man sues Macy’s, saying false facial recognition match led to jail assault"

From The Washington Post, via NACDL's news update:

A representative of a nearby Macy’s told Houston police during the investigation that the company’s system, which scanned surveillance-camera footage for faces in an internal shoplifter database, found evidence that Murphy had robbed both stores, leading to his arrest.

But at the time of the robbery, his attorneys said, Murphy was in a Sacramento jail on unrelated charges, nearly 2,000 miles away. Hours after his sexual assault, prosecutors released him with all charges dropped, his attorneys said.

. . .

Police departments have said generally that they use facial matches only as an investigative lead and that criminal charges should come only in cases where other evidence can be found. But Murphy’s lawsuit suggests that it played a critical role in steering officers to him in the first place, and that the confidence authorities placed in the automated results may have “primed” witnesses and investigators to believe Murphy was at fault without substantial evidence.

Pozen on The Constitution of the War on Drugs

David Pozen (Columbia University - Law School) has posted an abstract of The Constitution of the War on Drugs (Oxford University Press, Forthcoming) on SSRN. Here is the abstract:

 

"The Constitution of the War on Drugs" recovers a lost history of constitutional challenges to punitive drug laws. Throughout the 1960s and 1970s, advocates argued that criminal bans on marijuana, cocaine, psychedelics, and other substances violate the U.S. Constitution's guarantees of due process, equal protection, federalism, free speech, free exercise of religion, and humane punishment. Legal scholars and government commissions grappled with these arguments. State and federal courts endorsed them in pathbreaking rulings. By the 1980s, however, the movement for drug rights had collapsed, paving the way for the contemporary war on drugs and its disastrous consequences for racial justice, individual freedom, and public health.

This book shows how constitutional law could have denied the drug war but instead became ever more defined by it—how a profoundly illiberal and paternalistic policy regime was assimilated into, and came to shape, an ostensibly liberal and pluralistic constitutional order.

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"High Court, High Stakes for Cybersecurity"

Stewart Baker has this post at The Volokh Conspiracy. In part:

The Supreme Court heard argument last week in two cases seeking to overturn the Chevron doctrine, which requires courts to defer to administrative agencies in interpreting the statutes that the agencies administer. The cases have nothing to do with cybersecurity, but Adam Hickey thinks they're almost certain to have a big impact on cybersecurity policy.  That's because, based on the argument, Chevron is going to take a beating from the Court, if it survives at all. With Chevron weakened, it will be much tougher to repurpose existing law to deal with new regulatory problems. Given how little serious cybersecurity legislation has been passed in recent years, any new regulation is bound to require some stretching of existing law – and thus to be easier to challenge.

Wake Forest seeks crim law visitor

Wake Forest University School of Law plans to hire an experienced visiting professor for the Fall 2024 semester to teach Criminal Law plus one other course, topic to be negotiated. If you have any interest, please contact Senior Associate Dean Tanya Marsh at [email protected]

Yesterday's criminal law/procedure cert grant

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

• Glossip v. Oklahoma:  (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

Macey-Dare on Miscarriage of Justice Risk

Rupert Macey-Dare (St Cross College - University of Oxford) has posted Mathematically Unacceptably High Miscarriage of Justice Risk Inherent in All Criminal Case Retrials and Majority Verdicts at 1st Instance, Appeal and Supreme Court Stages, plus Suggested Solutions on SSRN. Here is the abstract:

 

This paper presents a startling new finding and proposition, namely that the miscarriage of justice risk inherent in all criminal case retrials and majority verdicts at 1st instance, Appeal and Supreme Court stages is much higher than previously thought or appreciated and in fact often unacceptably high.

This in turn must lead and have led to an excess number of miscarriage of justice convictions, incarcerations and penalties, even death penalty convictions in relevant states, that apply the “Beyond Reasonable Doubt” threshold of guilt test, and which also allow explicit or implicit majority voting by jurors or appeal judges to determine the verdict.

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Robinson & Seaman on Mass Incarceration Myths and Facts

Paul H. Robinson & Jeffrey Seaman (University of Pennsylvania Carey Law School and University of Pennsylvania) have posted “Mass Incarceration” Myths and Facts: Aiming Reform at the Real Problems on SSRN. Here is the abstract:

 

Few claims have won such widespread acceptance in legal academia as the “mass incarceration” narrative: the idea that the rise in America’s prison population over the last half century was fueled largely by the needless and unjust imprisonment of millions of criminal offenders due to punitive changes in sentencing. To many academics and activists, the question is not how accurate the mass incarceration narrative is, but how mass incarceration can be ended. This Article argues the “mass incarceration” narrative is based on a series of myths and, as a result, many proposed reforms are based on a misunderstanding of America’s past and present carceral practices. A more accurate understanding is needed to produce effective reform.

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Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Red Codes, Blue Codes? Factors Influencing the Formulation of Criminal Law Rules Paul H. Robinson, Hugh Rennie and Clever Earth University of Pennsylvania Carey Law School, University of Pennsylvania, University of Pennsylvania Carey Law School and University of Pennsylvania Date Posted: 04 Jan 2024 [3rd last week]	115
2.	“Mass Incarceration” Myths and Facts: Aiming Reform at the Real Problems Paul H. Robinson and Jeffrey Seaman University of Pennsylvania Carey Law School and University of Pennsylvania Date Posted: 17 Jan 2024 [new to top ten]	73
3.	Using Large Language Models to Support Thematic Analysis in Empirical Legal Studies Jakub Drápal, Hannes Westermann and Jaromir Savelka Charles University in Prague, Faculty of Law, University of Montreal - Cyberjustice Laboratory and Carnegie Mellon University Date Posted: 30 Nov 2023 [5th last week]	70
4.	A Criminal Law Based on Harm Alone: The Story of California Criminal Justice Reform Joshua Kleinfeld and Thomas Hoyt Northwestern University - Pritzker School of Law and Independent Date Posted: 26 Apr 2022	64
5.	Bad Attempts Andrew Jensen Kerr Peking University School of Transnational Law Date Posted: 05 Dec 2023 [6th last week]	44
6.	Vulnerable Defendants and Neuroscience in Courtrooms Worldwide Deborah W. Denno Fordham University School of Law Date Posted: 28 Nov 2023 [7th last week]	40
7.	Plea Problems and Diversion Dilemmas: Protecting Juvenile Rights Through Pragmatic Means Jackson Lanier North Carolina Central University (NCCU) - School of Law Date Posted: 27 Nov 2023 [8th last week]	28
8.	The Imperialism of Desert Ofer Malcai and Re'em Segev Hebrew University of Jerusalem - Faculty of Law and Hebrew University of Jerusalem – Faculty of Law Date Posted: 17 Nov 2023 [10th last week]	27
9.	In Re Naoise Connolly Ryan et al.: Petition for a Writ of Mandamus Pursuant to the Crime Victims' Rights Act, 18 U.S.C. § 3771(D)(3) Paul G. Cassell, Robert A. Clifford, Tracy A. Brammeier, Erin R. Applebaum, Warren T. Burns, Darren P. Nicholson, Kyle Kilpatrick Oxford and Chase Hilton University of Utah - S.J. Quinney College of Law, Clifford Law Offices, Clifford Law Offices, Kreindler & Kreindler, LLP, Burns Charest LLP, Burns Charest LLP, Burns Charest LLP and Burns Charest LLP Date Posted: 17 Nov 2023	25
10.	U.S. v. Rahimi Historical Amicus in Favor of Neither Party Lorianne Updike Toler NIU College of Law Date Posted: 08 Nov 2023 [new to top ten]	21