CrimProf Blog

Robbins on Deconstructing Burglary

Ira P. Robbins (American University - Washington College of Law) has posted Deconstructing Burglary (UC Davis Law Review, Vol. 57, No. 3, p. 1489 (2024)) on SSRN. Here is the abstract:

 

The law of burglary has long played a vital role in protecting hearth and home. Because of the violation of one’s personal space, few crimes engender more fear than burglary; thus, the crime law should provide necessary safety and security against that fear. Among other things, current statutes aim to deter trespassers from committing additional crimes by punishing them more severely based on their criminal intent before they execute their schemes. Burglary law even protects domestic violence victims against abusers who attempt to invade their lives and terrorize them.

However, the law of burglary has expanded and caused so many problems that some commentators now argue for its elimination. Given broad discretion, prosecutors use burglary to over-punish a wide variety of offenses. The law can even encompass mere instances of shoplifting. Additionally, by punishing perpetrators before they accomplish their target crimes, burglary law often acts as a general law of attempts.

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Bavli on Stereotypes as Evidence

Hillel J. Bavli (Southern Methodist University - Dedman School of Law) has posted Stereotypes as Evidence (77 Stanford Law Review (2025, Forthcoming)) on SSRN. Here is the abstract:

Baserate evidence connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

In this article, I show that although some forms of baserate evidence are desirable and even critical to achieving an accurate case outcome, a common form of baserate evidence called profile evidence constitutes unrecognized character evidence - evidence that a defendant acted in accordance with a certain character trait and that is prohibited by federal and state evidentiary rules. To show this, and to describe precisely the relationship between baserate evidence and character evidence, I draw on an area of statistics called Bayesian inference to define a new concept that I call population-propensity evidence. It describes a behavioral propensity of a population to suggest that an individual member of the population acted in accordance with this propensity. I show that this evidence—a form of baserate evidence that involves behavioral stereotyping—relies on impermissible character reasoning and therefore determines whether baserate evidence constitutes character evidence.

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"Northern Ireland court rules amnesty legislation breaches UK human rights obligations"

From Jurist:

The Northern Irish High Court ruled Wednesday that legislation imposing immunity for crimes committed during “The Troubles” is incompatible with the European Convention on Human Rights (ECHR). The controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 sought to end prosecution for crimes committed during the 30-year period of violence in Northern Ireland. Family members of victims who were killed or severely wounded by soldiers or paramilitary groups brought the claim against the government.

Justice Colton found that the provisions introducing a broad amnesty for all criminal offences related to the conflict was in breach of Articles 2 and 3 of the ECHR, which provide an absolute protection to the right to life and the prohibition of torture, respectively.

Abel on Comparing State and Federal Felon-in-Possession Prosecutions

Jonathan Abel (UC Law, San Francisco) has posted Going Federal, Staying Stateside: Felons, Firearms, and the ‘Federalization’ of Crime (American University Law Review, Vol. 73, No. 585, 2024) on SSRN. Here is the abstract:

 

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the crime of being a felon in possession of a firearm, an offense that now accounts for nearly 10% of the federal criminal docket.

The Article makes three main contributions to the literature. First, it shows how the literature’s claims about the superiority of federal prosecutions (compared to state ones) are rarely substantiated by data about actual state court prosecutions. In essence, the literature considers only the cases that went federal, not the far more numerous cases that could have gone federal yet stayed in state court. Second, using a novel case study of all the federal and state felon-in-possession prosecutions in one of the nation’s largest counties—Alameda County, California—the Article tests several bedrock claims about federalization. The testing leads to surprising results regarding conviction rates, sentencing severity, and racial disparities in charging practices. Finally, the Article connects these findings to the larger problem of academia’s fixation on all things federal—a fixation that comes at the expense of state and local topics.

Robinson & Seaman on Decriminalizing Condemnable Conduct

Paul H. Robinson and Jeffrey Seaman (University of Pennsylvania Carey Law School and University of Pennsylvania) have posted Decriminalizing Condemnable Conduct: A Miscalculation of Societal Costs and Benefits on SSRN. Here is the abstract:

 

Criminal law distinguishes itself from other bodies of law by focusing on conduct the community sees as sufficiently condemnable to deserve stigmatization and punishment. Unfortunately, a number of recent practices serve to effectively decriminalize conduct even though the community sees it as criminally condemnable. This Article examines this understudied phenomenon, with an assessment of the societal costs and benefits from such decriminalizations.

Decriminalization can occur through a variety of mechanisms. Prosecutors or other local officials rejecting legislative criminalization decisions can effectively decriminalize by prohibiting arrest or prosecution of certain offenses – e.g., drug possession, lower-level theft, domestic violence, immigration offenses – or of offenses committed by certain groups – e.g., rioters or statue vandals motivated by a cause the officials support. State legislators and even voters in state referendums can (often unknowingly) effectively decriminalize conduct that the community sees as criminally condemnable – e.g., supporting a public referendum to reduce the grade of lower-level theft without realizing that, because of other provisions, it effectively decriminalizes the conduct.

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"In Pursuit of Harsher Punishments, San Francisco Courtwatchers Target Judges"

From Bolts, via NACDL's news update:

A new courtwatching effort has sprung up in San Francisco in recent years. Like the other groups, Stop Crime SF volunteers attend hearings and take notes. They emphasize the importance of transparency and public accountability. “San Francisco courts are notoriously opaque,” the group’s founder, Frank Noto, told me.

But Stop Crime SF is approaching courtwatching from essentially the opposite direction. Noto and his fellow members want harsher sentences for people with repeated violations, and they’re highly critical of judges who let people out on their own recognizance, meaning without money bail, to await trial. . . .

Now, as California’s March 5 elections approach, Stop Crime SF’s sister c(4) organization, Stop Crime Action, is jumping into the city’s judicial races and working to oust two sitting judges whom it says are fueling this crisis, Michael Isaku Begert and Patrick Thompson.

Pollack & Tokson on Decentering Property in Fourth Amendment Law

Michael Pollack and Matthew Tokson (Yeshiva University - Benjamin N. Cardozo School of Law and University of Utah - S.J. Quinney College of Law) have posted Decentering Property in Fourth Amendment Law (University of Chicago Law Review, Forthcoming) on SSRN. Here is the abstract:

 

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the Fourth Amendment’s scope. And the current Supreme Court, which has changed substantially since its last major Fourth Amendment case, seems especially likely to be receptive to property-based approaches.

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Drinan on Children, Crime and Culpability

Cara H. Drinan (Catholic University of America (CUA) - Columbus School of Law) has posted Rethinking Children, Crime and Culpability on SSRN. Here is the abstract:

 

In the early twenty-first century, the United States Supreme Court developed a rich body of case law that recognized the constitutionally significant differences between children and adults. The core of this case law, often referred to as the Miller trilogy, banned capital punishment for juvenile crimes and significantly limited instances when states can impose life without parole on minors. By leveraging the logic and science of the Miller trilogy, lower courts and state actors have implemented juvenile justice reforms on issues ranging from legal representation and transfer laws to conditions of confinement and parole practices. This Article makes a novel and important argument that flows from the Miller trilogy but that has been under-theorized to date. Specifically, in this Paper I argue that all of the ways in which children are different according to the Court – their immaturity, their impulsivity and their inability to remove themselves from criminogenic environments – are relevant to a criminal conviction just as much as they are relevant to punishment.

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"‘Cop City’ Prosecutions Hinge on a New Definition of Domestic Terrorism"

The New York Times has the article:

As several states have added or expanded laws related to terrorism, or are considering doing so, the case in Georgia is at the center of debate about the need for these measures, the dangers they pose and, more fundamentally, what constitutes terrorism. (One proposal in New York has suggested that blocking traffic, a tactic occasionally used in demonstrations, could be considered domestic terrorism.)

Georgia broadened its definition in 2017 to include attempts to seriously harm or kill people, or to disable or destroy “critical infrastructure,” with the goal of forcing a policy change. The charge carries a penalty of up to 35 years in prison.

Officials in Georgia have argued that those charged were involved in sowing disorder and destruction — actions that demanded a swift and forceful response.

Megret & Khoday on Climate Change and Civil Disobedience

Frederic Megret and Amar Khoday (McGill University - Faculty of Law and University of Manitoba - Faculty of Law) have posted 'We Want to Live!' Climate Change and the Limits of Civil Disobedience ((2022) 35:1 Georgetown Environmental Law Review 155 (GELR)) on SSRN. Here is the abstract:

 

This article examines the practice, nature and prospects of civil disobedience as a mode of resistance to climate change. Dominant understandings of civil disobedience are still highly indebted to earlier models that emphasized its primarily domestic locus, its broad adherence to the law and its targeted nature. But the sheer scale and amorphousness of the climate change challenge, its complex private-public nature and its systemic character profoundly challenge techniques honed during the civil rights or decolonization movements. We argue that there is a need to understand “climate disobedience” as based on a sui generis legal strategy, one that is more global, transnational, pluralistic, and decentralized than earlier instantiations of disobedience. Climate disobedience problematizes not just particular laws or policies, but the very notion of adherence to concepts of law that are entangled with planetary destruction. Based on a study of the legacy of past civil disobedience episodes and actual practices of climate disobedience, the article highlights some of the vulnerabilities evident in current efforts and points to some ways to avoid the resulting traps.

Thusi on Ne Nya Sexpuritanerna

I. India Thusi (Indiana University Maurer School of Law) has posted an abstract of Ne Nya Sexpuritanerna (Yale Journal of Law & Feminism, Vol. 34, No. 66, 2023) on SSRN. Here is the abstract:

 

The northbound train has just arrived at the Old Town train station in Scandic City. The subway conductor is looking for passengers on the platform before preparing for the train’s departure to the next stop. Jasmine and Rebecca hurry past the sliding doors of the well-maintained red train and feel a sense of relief that they caught it. As the ladies run into the train, the conductor shuts the doors and begins to direct the train toward its next destination, into downtown Scandic City.

Scandic City is the capital city of Oceania, which is reputed to be a truly egalitarian society. Scandic City’s extensive police force includes “security officers” that handle low-level and quality-of-life offenses, as well as more professionalized “police officers.” This security organization is central to the democratic socialist agenda in Scandic City because the preservation of law and order is critical to the radical left agenda of the egalitarian New Radicals political party. This egalitarian society reflects the feminist vision of the world. The country has a well-developed statecraft for control, which—for the most stigmatized women and people in Oceania—is experienced as pain.

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	757
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	401
3.	Resisting Mass Immigrant Prosecutions Eric S. Fish University of California, Davis - School of Law Date Posted: 20 Dec 2023	211
4.	Victims of Coercive Plea Bargaining Lucian E. Dervan, Vanessa Edkins and Thea Johnson Belmont University - College of Law, Florida Institute of Technology and Rutgers, The State University of New Jersey - Rutgers Law School Date Posted: 20 Dec 2023	161
5.	The Carceral Home Kate Weisburd George Washington Law School Date Posted: 09 Jan 2024	105
6.	Death Is Disparate Jesse Cheng DePaul University - College of Law Date Posted: 30 Jan 2024	100
7.	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	83
8.	#Vanlife and the Right to Privacy Sabrina Safrin Rutgers Law School Date Posted: 07 Dec 2023	61
9.	How Do Prosecutors "Send a Message"? Steven Arrigg Koh Boston University School of Law Date Posted: 30 Nov 2023	47
10.	Reaching a Verdict: Empirical Evidence of the Crumbling Conventional Wisdom on Criminal Verdict Format Avani Mehta Sood NYU School of Law Date Posted: 28 Dec 2023	47

van Kempen et al. on Legality of Sentencing

Piet Hein van Kempen, Maartje Krabbe, Francisco Molina Jerez, and José Luis Guzmán Dalbora (Radboud University Nijmegen, Radboud University, Radboud University and Radboud University) have posted Legality of Sentencing and the Need for a Catalogue of Principles (‘Legality and other requirements for sentencing: an international and comparative perspective on non-arbitrary punishment and sentencing discretion’ (Eds: Piet Hein van Kempen, Maartje Krabbe, José Luis Guzmán Dalbora, Francisco Molina Jerez), The Hague: Eleven, 2023) on SSRN. Here is the abstract:

 

The chapter discusses the meaning and application of various sentencing principles (e.g. proportionality, culpability, equality) in 16 different countries. It also elaborates on the challenges of balancing on the one hand non-arbitrariness of sentencing and on the other doing justice in the individual case.

Medwed on The Right to Present a Defense

Daniel S. Medwed (Northeastern University - School of Law) has posted Secrets of Chambers: The Constitutional Right to Present a Defense at Middle Age (Arizona Law Review, Forthcoming: Issue 3, Fall 2024) on SSRN. Here is the abstract:

 

Many people have decried the rising partisanship on the United States Supreme Court. One particular lament concerns the Court’s departure from precedent, a shift that has eroded longstanding doctrines such as the right to abortion and affirmative action in higher education. Stare decisis no longer carries the clout it seemingly once did in our Court of Last Resort. This turn of events has caused advocates, especially those on the left, to long for the rights they once held and fear that others may be in jeopardy. Among the rights that seem vulnerable are those that protect criminal defendants.
But there need not only be doom and gloom for the defense community. Activists and advocates should identify doctrines the Supreme Court is unlikely to relegate to the dustbin, either because those doctrines align with values often held by conservative theorists and/or their fact-specific nature makes it unnecessary for the Court to eradicate the case precedent when the majority could just interpret it in a way that advances a result consistent with its agenda. Given that the most consequential criminal cases are heard well beneath the rarefied quarters of the Supreme Court, those engaged in strategic litigation should perhaps zero in on preserving what rights remain at the Supreme Court level and relying on them to foster justice in the lower courts.
This Article takes a close look at one such right: the constitutional right to present a defense in a criminal trial.

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"Charges against alleged white supremacists are tossed by a California judge for the second time"

From AP, via NACDL's news update:

For the second time in five years, federal charges against alleged members of a violent white supremacist group accused of inciting violence at California political rallies were dismissed by a federal judge who found they were selectively prosecuted.

. . . 

U.S. District Judge Cormac J. Carney first tossed the charges against Robert Rundo and Robert Boman in June 2019. The two were charged with conspiracy to violate the Anti-Riot Act and rioting.

On Wednesday, Carney again granted the defendants’ motion to dismiss, agreeing that Rundo and Boman were being selectively prosecuted while “far-left extremist groups” were not.

Gruber on A Tale of Two Me Toos

Aya Gruber (University of Southern California Gould School of Law) has posted A Tale of Two Me Toos (University of Illinois Law Review, Vol. 2023, No. 1675) on SSRN. Here is the abstract:

 

What is #MeToo’s legacy? The conventional account currently being indelibly forged into our collective memory is that #MeToo was an unconditional progressive victory. It was a reckoning of the disempowered against the powerful that profoundly challenged sexist culture. This Article complicates and even counters that narrative by shining a light on #Me-Too’s dark side, namely, its carceral and neoliberal messages and policy reforms. Although today’s George-Floyd-mindful feminists often describe #MeToo as having nothing to do with criminal law, the reality is that the movement featured familiar tough-on-crime discourses, passionately called for more criminal law and prosecutorial power, and, in fact, produced several new carceral laws and policies. Yet, just hours after famous actor Alyssa Milano sent the tweet heard around the world, Black Twitter revealed that Me Too already existed: Tarana Burke’s “me too movement.” This Me Too centered on survivors’ material and emotional needs, focused on young women of color living in socioeconomic precarity, and embraced noncriminal “transformative justice.”

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Conklin on Defending Plea Bargaining

Michael Conklin (Angelo State University - Business Law) has posted Chapter 18: Defenses for Plea Bargaining (Plea Bargaining Handbook (2013)) on SSRN. Here is the abstract:

 

Those in legal academia are often quick to criticize plea bargaining. However, when the appropriate standard for consideration is applied, plea bargaining can be correctly understood as offering a significant net benefit. Criticism of plea bargaining is often rooted in an unrealistic belief that any aspect of the justice system that is imperfect must be altered. This ignores real-life restraints regarding the limited resources of time and money. This chapter illustrates the need for plea bargaining by refuting common attacks against the practice and providing positive arguments for its existence.

"Does new unanimous McElrath ruling mean anything for acquitted conduct sentencing?"

Doug Berman has this post at Sentencing Law & Policy. In part:

As noted in this prior post, the Supreme Court today handed down a short opinion in McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here), that ruled in favor of an acquitted defendant in a quirky double jeopardy case.  Especially because the US Sentencing Commission is currently taking commment on possible guideline amendments concerning the consideration of acquitted conduct at federal sentencing, I have been wondering if the McElrath might say something that could mean something for on-going acquitted conduct sentencing debates. 

. . . 

[T]he short McElrath opinion has a little bit of notable dicta that does not really directly inform the acquitted conduct debate.  Critically, though, while the US Sentencing Commission necessarily must be attentive to constitutional doctrines in formulating any new guideline rules, it also has broad authority and a fundamental obligation to advance sentencing rules that comprise good policy as well as being constitutionally sound.  SCOTUS in McElrath and other constitutional cases sets forth a constitutional floor, with the USSC in developing guideline amendments can and should aim higher.

Opinion on inconsistent verdicts and double jeopardy

Justice Jackson delivered the opinion for a unanimous Court in McElrath v. Georgia. Justice Alito filed a concurring opinion.

Bellin on Principles of Prosecutor Lenience

Jeffrey Bellin (William & Mary Law School) has posted Principles of Prosecutor Lenience (Texas Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Once “the Darth Vader of academic writing,” American prosecutors are making a comeback. In recent years, “progressive prosecutors” have leveraged the power of lenience to “reform the criminal justice system from the inside.” There is so much scholarly enthusiasm for this project that the existing commentary can be summarized as offering a one-word principle to govern considerations of prosecutorial lenience: “yes.”

But American criminal law covers a broad array of offenses with substantial differences in punitiveness across jurisdictions and courts. Even harsh critics of the system’s severity tend to pivot when it comes to certain offenses, like crimes committed by police. Consequently, there are profound questions about the when and why of lenience, and particularly prosecutor lenience.

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