CrimProf Blog

Covolo on Cryptocurrencies and Money Laundering

Valentina Covolo (Faculty of Law, Economics and Finance) has posted The EU Response to Criminal Misuse of Cryptocurrencies: The Young, Already Outdated 5th Anti-Money Laundering Directive on SSRN. Here is the abstract:

 

Combatting criminal misuse of cryptocurrencies was at the core of the FATF agenda under the US Presidency, culminating in June 2019 with the thorough extension of international standards against money laundering over virtual assets’ markets. This echoed the first legislative measure regulating virtual currencies adopted by the EU a year before. Directive 2018/843, better known as the 5th Anti-Money Laundering Directive, fails however to address key technological breakthroughs and new business models, which continuously make the evergrowing and fast-paced crypto economy evolve. Against this background, the present contribution investigates shortfalls and challenges that lay ahead in the light of the new FATF Recommendations. It ultimately argues that the preventive anti-money laundering measures cannot dispense with the establishment of a cross-border integrated supervisory and enforcement system.

Chapman on The Weight of Judgment

Nathan S. Chapman (University of Georgia School of Law) has posted The Weight of Judgment (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming) on SSRN. Here is the abstract:

 

Criminal judgment inevitably entails mistakes used to justify violence. Is participating in judgment consistent with following Jesus Christ? This essay argues that Christians may participate in governmental judgment, but only with the faith that God uses human judgment, inherently rebellious, for good, and with hope in the coming kingdom that will put an end to judgment altogether. This essay frames the question by critiquing two answers proffered by the western Christian tradition, the “two-kingdoms” theory and the view that Christians must remain completely separate from secular government. It then argues that governmental judgment is best understood as an accommodation God makes to human frailty, to correct wrongdoing, in light of humanity’s rebellion against God. It is a stop-gap for a season while humanity rejects God’s rule, not an eternal aspect of human society with God. Christians may therefore participate in governmental judgment with eyes wide open to its failures and with a commitment to approximate truthfulness, exercise mercy, and suffer its imperfection in hope.

Vazquez on AEDPA and Williams v. Taylor

Carlos Manuel Vazquez (Georgetown University Law Center) has posted AEDPA as Forum Allocation: The Textual and Structural Case for Overruling Williams v. Taylor (American Criminal Law Review, Vol. 56, No. 1, 2019) on SSRN. Here is the abstract:

 

In Williams v. Taylor, the Supreme Court read a section of the Anti- Terrorism and Effective Death Penalty Act (AEDPA) to change the long-prevailing de novo standard of review of federal habeas petitions by state prisoners. In holding that Congress had denied the lower federal courts the power to grant habeas relief to prisoners in custody pursuant to wrong but reasonable state court decisions, the Court departed from the provision’s text and relied instead on its perception of a generalized congressional purpose to cut back on habeas relief and on the non-redundancy canon of statutory construction. On both scores, the minority opinion had the better argument. Moreover, both opinions overlooked legislative history strongly supporting the conclusion that Congress did not intend to change the standard of review. The case for reading the provision as requiring a departure from the well-established standard of review was thus remarkably weak.

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Chapman on Christianity and Crimes Against the State

Nathan S. Chapman (University of Georgia School of Law) has posted Christianity and Crimes Against the State (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, & John Witte, Jr. (London: Routledge), Forthcoming) on SSRN. Here is the abstract:

 

This chapter explores Christianity’s influence on the scope and limits of “crimes against the state,” understood as criminal conduct that amounts to political disloyalty, threats to the constitutional order, or interference with law enforcement. The chapter argues that early Christianity, as reflected in the New Testament and other early Christian and Roman writings, entailed an ambiguity about secular government. On the one hand, Christians were to “give unto Caesar” what belonged to him. On the other, they were to “obey God rather than men.” As Christians came to political power, they relied on New Testament norms alternately to increase and to limit the claims of the secular government’s power. Christians have therefore used the coercive power of the state to enforce their view of Christianity, thereby increasing the number and scope of crimes against the state. Yet Christians have also pushed for limits on the power of the secular government in the form of structural restraints or, more recently, constitutional rights — limits that benefit everyone. The chapter considers Henry VIII’s use of treason to enforce his politico-religious regime and the landmark decisions in Bushell’s Case (1670) and West Virginia Board of Education v. Barnette (1943).

Perlin on Dignity and Therapeutic Jurisprudence

Michael L. Perlin (New York Law School) has posted Dignity and Therapeutic Jurisprudence: How We Can Best End Shame and Humiliation (HUMAN DIGNITY: PRACTICES, DISCOURSES, AND TRANSFORMATIONS 113 (Chipamong Chowdhury and Michael Britton eds. 2019) (Human Dignity Press)) on SSRN. Here is the abstract:

 

This chapter is premised on the belief that dignity is the core of the entire therapeutic jurisprudence (TJ) enterprise, and do not think we can seriously write about or think about TJ without taking seriously the role of dignity in the legal process. One of the central principles of TJ is a commitment to dignity. TJ may also lend dignity to the voice of those who are subordinated. Boiled down to its most essential element, therapeutic jurisprudence adds the dignity and value of the individual human being to legal analysis in a formal way.”

This is accentuated in the context of shame and humiliation. Keeping in mind that the law always has the power to shame, and humiliate, it is crystalline-clear that humiliation in the law utterly contradicts the aims of TJ and undermines the role of dignity. These behaviors directly contravene the guiding principles of therapeutic jurisprudence, especially in the context of its relationship to the importance of dignity in the law.

In this chapter, I explore the relationship between dignity and therapeutic jurisprudence, and conclude that, acting in concert, they are our best option for ending shame and humiliation

Mygatt-Tauber on Verdugo-Urquidez

Alan Mygatt-Tauber (United States Department of the Navy) has posted Rethinking the Reasoning of Verdugo-Urquidez on SSRN. Here is the abstract:

 

This article critiques the Supreme Court’s 1990 decision in United States v. Verdugo-Urquidez. It argues that after nearly 30 years, the “substantial connections” test, which determines if an alien may claim the protections of the Fourth Amendment, has proven entirely unworkable and has been misapplied to areas of law it was never intended to go. It suggests two potential solutions: 1) it offers some much-needed guideposts for courts to use when applying the test; and 2) it offers an alternative that courts should adopt, holding that the Fourth Amendment travels with federal agents enforcing criminal law.

Nowrasteh on Illegal Immigrants and Crime

Alex Nowrasteh (Cato Institute - Center for Global Liberty and Prosperity) has posted Criminal Immigrants in Texas: Illegal Immigrant Conviction and Arrest Rates for Homicide, Sex Crimes, Larceny, and Other Crimes (Cato Institute, Research and Policy Brief, No. 4, 2018) on SSRN. Here is the abstract:

 

This Immigration Research and Policy Brief was updated in August 2018 after the Texas Department of Public Safety (DPS) confirmed that their first release of convictions data was incorrect because of a coding error. As a result, Nowrasteh updated this brief’s findings to reflect the accurate data released by DPS after they admitted their original error.

President Donald Trump signed an executive order directing the Department of Homeland Security (DHS) to deport most illegal immigrants who encounter law enforcement, and Attorney General Jeff Sessions is attempting to withhold federal funds from local police departments that do not cooperate with DHS in that effort.1 Underlying both actions is the belief that illegal immigrants are a significant source of crime.2 This brief uses Texas Department of Public Safety data to measure the conviction and arrest rates of illegal immigrants by crime. In Texas in 2015, the criminal conviction and arrest rates for immigrants were well below those of native-born Americans. Moreover, the conviction and arrest rates for illegal immigrants were lower than those for native-born Americans. This result holds for most crimes.

Humbach on Criminal Minds and The Physicalism Dilemma

John A. Humbach (Pace University School of Law) has posted Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma (12 Washington University Jurisprudence Review 1 (2019)) on SSRN. Here is the abstract:

 

The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant’s mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of their criminal minds.

Efforts to reconcile mind-based theories of criminal responsibility with physicalism encounter a dilemma: how can one say that everything occurs in accordance with physical laws while insisting that offenders deserve blame and punishment precisely because their conduct is not dictated by physical laws?

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Lebron on Evidence's #MeToo Moment

Aníbal Rosario Lebrón (Howard University School of Law) has posted Evidence's #MeToo Moment (University of Miami Law Review, Vol. 74, No. 1, 2019) on SSRN. Here is the abstract:

 

The #MeToo movement has drawn attention to the prevalence of sexual and gender-based violence. But more importantly, it has exposed how society discounts the testimony of women. This Article unfolds how this credibility discounting is reinforced in our evidentiary system through the use of character for untruthfulness evidence to impeach victims. Specifically, through defense attorneys’ practice of impeaching sexual and gender-based violence victims’ character for truthfulness as a way to introduce functional evidence of credibility biases regarding the trustworthiness of sexual and gender-based violence victims and the plausibility of their testimonies. The Article further shows a correlation between the poor performance of our legal system in redressing the harms associated with sexual and gender-based violence and our evidentiary rules. Accordingly, the Article advocates reforming the use of character for untruthfulness evidence and proposes a rule that attempts to temper the prejudicial effects caused by long-held credibility biases against sexual and gender-based violence victims with a well-established impeachment tradition, constitutional protections, and judicial efficiency. It does so in hopes that the #MeToo movement becomes a catalyst in the judicial response against sexual and gender-based violence.

Dahlstrom on Human Trafficking

Julie Dahlstrom (Boston University School of Law) has posted an abstract of The Elastic Meaning(s) of Human Trafficking (California Law Review, Vol. 108, 2020) on SSRN. Here is the abstract:

 

What is human trafficking? When is an expansive definition of trafficking justifiable? How does trafficking relate to other concepts — like domestic violence, sexual assault, labor exploitation, and prostitution — with which it often overlaps? These questions have become increasingly salient since the US Congress defined the crime of human trafficking in the Victims of Trafficking and Violence Protection Act of 2000 (TVPA). Since then, all fifty states have passed legislation with varying definitions of the crime. Congress also has re-entered the field with subsequent legislation, expanding the crime to capture new conduct.

As a result of legislative advocacy and judicial interpretation, the legal definition of human trafficking in the United States has now broadened to include a remarkably wide variety of actors and conduct.

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Robinson et al. on Consolidated Offense Drafting to Constrain Prosecutorial and Legislative Excesses

Paul H. Robinson, Matthew Kussmaul and Muhammad Sarahne (University of Pennsylvania Law School, Ballard Spahr LLP and University of Pennsylvania) have posted How Criminal Code Drafting Form Can Restrain Prosecutorial and Legislative Excesses: Consolidated Offense Drafting on SSRN. Here is the abstract:

 

Solving criminal justice problems typically requires the enactment of new rules or the modification of existing ones. But there are some serious problems that can best be solved simply by altering the way in which the existing rules are drafted rather than by altering their content. This is the case with two of the most serious problems in criminal justice today: the problem of overlapping criminal offenses that create excessive prosecutorial charging discretion and the problem of legislative inconsistency and irrationality in grading offenses.

After examining these two problems and demonstrating their serious effects in perverting criminal justice, the essay proposes a particular method of drafting criminal offenses – consolidated offense drafting – and then shows how this drafting approach is the best and perhaps the only effective means of solving the problems. Potential political resistance to the proposal is discussed.

Magaldi et al. on Nonconsensual Pornographers

Jessica Magaldi, John Paul and Jonathan Sales (Pace University, City University of New York and Bentley University) have posted Taking Down Nonconsensual Pornographers: An Argument that 'Takedown' is the Only Meaningful Legal Remedy Against Perpetrators of Revenge Porn (Proceedings of the Midwest Academy of Legal Studies in Business, 2018) on SSRN. Here is the abstract:

 

The advent of social media and websites that feature user-generated content, in conjunction with the ease of taking and sharing digital photographs and video, has spawned the phenomenon of nonconsensual pornography. Nonconsensual pornography, known colloquially as “revenge porn” involves a perpetrator (whether an ex-romantic partner or not) who distributes or shares sexually explicit depictions or depictions of a person in a state of nudity to third persons without consent and with no legitimate purpose. This Article explores the issues associated with combatting revenge porn and reviews the current regulatory environment. Based on this analysis, the authors conclude that any effective remedy must involve revenge porn legislation that provides a take-down requirement and brings Internet Service Providers and host sites within the scope of the regulatory scheme.

Baird on Sex Trafficking and Its Victims

Danica Baird has posted Changing the Narrative: Sex Trafficking and its Victims (Brigham Young University Journal of Public Law Volume 22 Issue 2 (2019)) on SSRN. Here is the abstract:

While several legal scholars have articulated why states should pass safe harbor, affirmative defense, and vacatur laws to protect victims, these laws remain unadopted or adopted in such poor fashion as to provide little assistance to sex trafficking victims. This paper focuses on how until the United States changes the narrative surrounding human trafficking victims, these laws will remain unadopted. This paper first discusses the legal framework nationally and internationally surrounding human trafficking. Second, it addresses the need for safe harbor, affirmative defense, and vacatur laws. Third, it discusses how misconceptions surrounding human trafficking prevent these laws from being passed. Lastly, this paper recommends ways to correct the narrative surrounding trafficking.

Top-Ten Recent SSRN Downloads in Criminal Law eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019	416
2.	Retributive Abolitionism Rafi Reznik Georgetown University Law Center Date Posted: 09 Sep 2019 [5th previously]	62
3.	Edward Snowden, National Security Whistleblowing, and Civil Disobedience David Pozen Columbia University - Law School Date Posted: 02 Dec 2019 [7th previously]	54
4.	Making Sense of Corporate Criminals: A Tentative Taxonomy William Robert Thomas University of Michigan Ross School of Business Date Posted: 21 Nov 2019 [8th previously]	45
5.	Captured by Evil: The Idea of Corruption in Law Laura Underkuffler Cornell University - Law School Date Posted: 15 Nov 2019 [9th previously]	42
6.	The Trans Panic Defense Revisited Cynthia Lee George Washington University Law School Date Posted: 08 Nov 2019 [10th previously]	40
7.	Virtually Rape: Should Cyber Sexual Offensiveness Constitute Rape? Asaf Harduf Zefat Academic College Date Posted: 31 Oct 2019 [new to top ten]	31
8.	Why Sexual Privacy Matters for Trust Danielle Keats Citron Boston University School of Law Date Posted: 14 Nov 2019 [new to top ten]	29
9.	Criminalisation of Homosexuality in Indonesia: The Role of the Constitution and Civil Society Saskia E Wieringa University of Amsterdam Date Posted: 19 Nov 2019 [new to top ten]	26
10.	Second Looks & Criminal Legislation Michael Serota Arizona State University, Sandra Day O'Connor College of Law Date Posted: 11 Dec 2019 [new to top ten]	26

Top-Ten Recent SSRN Downloads in Criminal Procedure eJournal

are here.  The usual disclaimers apply.

Rank	Paper	Downloads
1.	Disaggregating Ineffective Assistance of Counsel Doctrine: Four Forms of Constitutional Ineffectiveness Eve Brensike Primus University of Michigan Law School Date Posted: 08 Nov 2019	483
2.	Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights Gail L. Heriot University of San Diego School of Law Date Posted: 13 Nov 2019	416
3.	The Problem of Problem-Solving Courts Erin Collins University of Richmond School of Law Date Posted: 09 Dec 2019	296
4.	Misdemeanor Appeals Nancy J. King and Michael Heise Vanderbilt University - Law School and Cornell Law School Date Posted: 11 Nov 2019 [5th previously]	145
5.	The Law of Corporate Investigations and the Global Expansion of Corporate Criminal Enforcement Jennifer Arlen and Samuel W. Buell New York University School of Law and Duke University School of Law Date Posted: 31 Oct 2019 [7th previously]	125
6.	Defending Progressive Prosecution Jeffrey Bellin William & Mary Law School Date Posted: 12 Nov 2019 [8th previously]	109
7.	The Racial Composition of Forensic DNA Databases Erin Murphy and Jun Tong New York University School of Law and New York University School of Law Date Posted: 09 Nov 2019 [10th previously]	81
8.	Victims' Rights from a Restorative Perspective Lara Abigail Bazelon and Bruce A. Green University of San Francisco - School of Law and Fordham University School of Law Date Posted: 02 Dec 2019 [new to top ten]	79
9.	The Ultimate Opinion Rule and Forensic Science Identification David H. Kaye The Pennsylvania State University (University Park) – Penn State Law Date Posted: 18 Nov 2019 [new to top ten]	70
10.	Secret Conviction Programs Meghan J. Ryan Southern Methodist University - Dedman School of Law Date Posted: 02 Dec 2019 [new to top ten]	63

Ristroph on Seo on The Automobile and Policing

Alice Ristroph (Brooklyn Law School) has posted What Is Remembered (Book Review) (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Approximately four decades into mass incarceration, it is increasingly unlikely that contemporary scholars will remember firsthand a time when criminal law was not “in crisis.” At the same time, a sense of present crisis can create a temptation toward nostalgia. When we do think of criminal law’s history, we might imagine it as egalitarian, humane, or effective even if it never was any of those things. One of the many virtues of Sarah Seo’s Policing the Open Road: How Cars Transformed American Freedom is its effort to correct a specific type of nostalgia common among criminal procedure scholars—nostalgia for the Warren Court and its supposedly revolutionary efforts to discipline police officers. Seo tells an alternative story in which the Supreme Court repeatedly interpreted the Fourth Amendment to endorse police discretion rather than constrain it. Seo helps us see canonical Supreme Court decisions as accommodations of police authority rather than pronouncements of revolutionary change.

But Policing the Open Road offers its own story of revolution, or rather of radical transformation: it claims that the arrival of the automobile was a unique disruption that “transformed American freedom,” produced the modern police force, and eventually generated the regimes of racialized law enforcement all too familiar today.

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Rankin on The Transcarceration of Homelessness

Sara Rankin (Seattle University School of Law) has posted Hiding Homelessness: The Transcarceration of Homelessness on SSRN. Here is the abstract:

 

Cities throughout the country respond to homelessness with laws that persecute people for surviving in public space, even when unsheltered people lack a reasonable alternative. This widespread practice—the criminalization of homelessness—processes vulnerable people through the criminal justice system with damaging results. But recently, from the epicenter of the homelessness crisis along the West Coast, the Ninth Circuit extended the Eighth Amendment’s prohibition against cruel and unusual punishment to cities prosecuting unsheltered people for sleeping or camping in public space in Martin v. Boise. Boise, supported by amici from scores of other Western cities and counties, recently filed a petition for a writ of certiorari with the U.S. Supreme Court, where it awaits review. Regardless of its procedural status, homeless rights advocates celebrate Martin as pushing cities to stop criminalizing homelessness and instead address its underlying causes. Rather than decarcerating homelessness or facilitating solutions, Martin instead may have forged new paths to hide unsheltered people: a sort of transcarceration movement from openly punitive campaigns that incarcerate unsheltered people to alluring campaigns that confine unsheltered people through alternative means, such as involuntary commitment into psychiatric facilities and segregated zones or compulsory camps. These developments do not alleviate homelessness; they repackage its criminalization. Indeed, post-Martin efforts reframe displacement, forced confinement, and control over unsheltered people not as criminalization, but as compassion. While these efforts might technically comply with Martin, they threaten to undermine the very fundamental constitutional rights it sought to protect and do nothing to improve homelessness. Instead, cities should move to decarcerate homelessness by pursuing more humane and effective alternatives that not only comply with Martin but also promise to stem the crisis.

Levy & Mattsson on Effects of #MeToo

Roee Levy and Martin Mattsson (Yale University - Department of Economics and Yale University, Department of Economics) have posted The Effects of Social Movements: Evidence from #MeToo on SSRN. Here is the abstract:

 

Social movements are associated with large changes in norms and behavior, but evidence on their causal effects is limited. We study the effect of the MeToo movement on a high stakes personal decision—reporting a sexual crime to the police. We construct a new dataset of sexual and non-sexual crimes in 24 OECD countries, covering 81 percent of the OECD population. We analyze the effect of the MeToo movement by employing a triple difference strategy over time, across countries, and between crime types. We find that the movement increased reporting of sexual crimes by 14 percent during its first three months. While the effect slightly declines over time, the movement had a strong effect even 15 months after it started. We use more detailed US data to show that despite the increase in crimes reported, the movement did not increase the number of sexual crimes cleared by the police. In contrast to a common criticism of the movement, we do not find evidence for substantial differences in the effect across racial and socioeconomic groups. Our results suggest that social movements can rapidly change high stakes personal decisions.

Garrett on Misplaced Constitutional Rights

Brandon L. Garrett (Duke University School of Law) has posted Misplaced Constitutional Rights on SSRN. Here is the abstract:

 

Constitutional rulings, particularly by the U.S. Supreme Court, risk a type of mission creep: constitutional rules can be misplaced through adoption by government actors in settings that they were not designed to regulate. In this Article, I describe how in a set of important areas, and sometimes despite the Supreme Court’s explicit cautionary language, constitutional rules have taken hold outside of the settings in which they were primarily designed to regulate, providing unanticipated additions to rules and practice. Constitutional rights or standards are often limited to particular government actors, procedural settings, or remedies. Thus, some rights apply only during civil cases, others apply only to criminal cases, some regulate executive actors, while others exclusively relate to judicial officers. Misplacement can occur if, for example, a right designed to regulate criminal trial remedies is extended, without support, to regulate executive officers. This type of misplacement has occurred in areas ranging from eyewitness evidence, punitive damages, the well-known Miranda v. Arizona warnings, and the Court’s civil rights doctrine of qualified immunity.

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Ristroph on An Intellectual History of Mass Incarceration

Alice Ristroph (Brooklyn Law School) has posted An Intellectual History of Mass Incarceration (Boston College Law Review, Vol. 60, p. 1949, 2019) on SSRN. Here is the abstract:

 

There is much criticism of America’s sprawling criminal system, but still insufficient understanding of how it has come to inflict its burdens on so many while seemingly accomplishing so little. This Article asks, as Americans built the carceral state, what were we thinking? The Article examines the ideas about criminal law that informed legal scholarship, legal pedagogy, and professional discourse during the expansion of criminal legal institutions in the second half of the twentieth century. In each of these contexts, criminal law was and still is thought to be fundamentally and categorically different from other forms of law in several respects. For example, criminal law is supposedly unique in its subject matter, uniquely determinate, and uniquely necessary to a society’s wellbeing. This Article shows how this set of ideas, which I call criminal law exceptionalism, has helped make mass incarceration possible and may now impede efforts to reduce the scope of criminal law. The aim here is not to denounce all claims that criminal law is distinct from other forms of law, but rather to scrutinize specific claims of exceptionalism in the hopes of better understanding criminal law and its discontents.