CrimProf Blog

Hessick et al. on Uncontested Prosecutor Elections

Carissa Byrne Hessick, Sarah Treul and Alexander Love (University of North Carolina School of Law, University of North Carolina (UNC) at Chapel Hill - College of Arts and Sciences and University of North Carolina (UNC) at Chapel Hill, Department of Political Science) have posted Understanding Uncontested Prosecutor Elections (American Criminal Law Review, Vol. 60, Forthcoming, 2022) on SSRN. Here is the abstract:

 

Prosecutors are very powerful players in the criminal justice system. One of the few checks on their power is their periodic obligation to stand for election. But very few prosecutor elections are contested, and even fewer are competitive. As a result, voters are not able to hold prosecutors accountable for their decisions. The problem with uncontested elections has been widely recognized, but little understood. The legal literature has lamented the lack of choice for voters, but any suggested solutions have been based on only anecdote or simple descriptive analyses of election data.

Using a logistic regression analysis, this Article estimates the individual effects of a number of variables on prosecutor elections.

Continue reading

Gold on Volunteer Prosecutors

Russell M. Gold (University of Alabama School of Law) has posted Volunteer Prosecutors (American Criminal Law Review, Vol. 59, 2022) on SSRN. Here is the abstract:

 

As support has grown to reduce the footprint of criminal law by defunding the police, volunteer prosecution—a practice that has garnered little attention—continues to expand criminal law’s footprint. Volunteer prosecutors come in many different forms, but their core similarity is that they all prosecute crime without getting paid. Some are entry-level lawyers seeking to gain a foothold in the legal profession, while others are retirees seeking to contribute to their communities. Others work full-time paid jobs in civil practice but volunteer to prosecute some criminal cases too. Many volunteers bring only misdemeanors or petty offenses—prosecutions that disproportionately burden people of color. The racial disparity of those prosecutions prompted a large Minnesota law firm to cancel its volunteer prosecutor program after police killed George Floyd.

This Article provides the first scholarly treatment of volunteer prosecutors.

Continue reading

Saks on Juries and the Functional Equivalence Test

Michael J. Saks (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted The Life, Death, and Legacy of the Functional Equivalence Test on SSRN. Here is the abstract:

 

After deciding that none of the tools of constitutional interpretation could answer the question of how small a jury could be and remain acceptable to the Constitution, the Supreme Court invented the functional equivalence test. Any feature of trial juries was acceptable so long as the new feature did not degrade performance relative to the traditional twelve-person unanimous jury. Using that test, the Court approved juries as small as six. A mere eight years later, the justices abolished the new test. In so doing, the Court left in place two enduring harms. One was to weaken the integrity of the Court’s own jurisprudence: after abolishing the twelve-person jury, and then withdrawing the foundation on which the abolition stood, nothing but thin air and ipse dixit were left to support a momentous change in a venerated legal institution. The second harm is more practical and enduring: the smaller juries that remain with us are less reliable, more unpredictable, and more likely to produce aberrant verdicts.

Maclin on Griffin

Tracey Maclin (University of Florida Levin College of Law) has posted Is Silence Golden?

Ariz. L. Rev. (Forthcoming) on SSRN. Here is the abstract:

 

Absolute constitutional rights are rare—even the venerable rights of free speech and freedom of religion are not absolute. In criminal prosecutions, the Sixth Amendment’s right to counsel has been described as the most important of all rights because it affects a defendant’s ability to assert his or her other rights. But the right to counsel is not unlimited.

Yet one right is absolute. A criminal defendant has an absolute right not to testify in his own criminal trial. The text of the Self-Incrimination Clause of the Fifth Amendment—“no person . . . shall be compelled in any criminal case to be a witness against himself”—confirms that the defendant and his counsel have “the absolute right to decide that the accused shall not become a witness against himself.” That clause “commands that the decision be made free of any compulsion by the State.” Because the Bill of Rights are not meant to be “parchment barriers,” invoking a constitutional right should matter, especially where a person’s life or liberty is at stake, and the consequences of invocation should not undermine the right itself or deter future assertion of the right. This logic equally applies to the Fifth Amendment.

Continue reading

Karamik & Graevenitz on Air Pollution and Crime

Yasemin Karamik and Kathrine von Graevenitz (ZEW – Leibniz Centre for European Economic Research and ZEW – Leibniz Centre for European Economic Research) have posted Gone with the Wind: The Effect of Air Pollution on Crime - Evidence from Germany on SSRN. Here is the abstract:

 

Recent evidence suggests a positive impact of air pollution on crime in large cities. We provide first evidence on the potential effect of air pollution on criminal activity using a broader set of geographical regions with lower air pollution levels. We use a unique combination of daily crime data with weather and emission records for the states of Baden-Wuerttemberg (BW) and Rhineland-Palatinate (RLP) in Germany from 2015 until 2017. We exploit the variation in air pollution which is attributable to changes in daily wind direction. We find that an increase of one standard deviation of PM10 leads to an increase in crime of 4.6%.

Opinion permitting section 1983 challenge to execution method even when alternative is not authorized by state law

Justice Kagan delivered the opinion of the Court in Nance v. Ward. Justice Barrett dissented, joined by Justices Thomas, Alito, and Gorsuch.

Opinion rejecting section 1983 liability for mere Miranda violation

Justice Alito delivered the opinion of the Court in Vega v. Tekoh. Justice Kagan dissented, joined by Justices Breyer and Sotomayor.

Opinion rejecting limits on concealed carry of handguns

Justice Thomas delivered the opinion of the Court in New York State Rifle & Pistol Assn., Inc. v. Bruen. Justice Alito filed a concurring opinion. Justice Kavanaugh filed a concurring opinion, in which the Chief Justice joined. Justice Barrett filed a concurring opinion. Justice Breyer dissented, joined by Justices Sotomayor and Kagan.

cummings & Ramirez on Anti-Racism and the War on Drugs

andré douglas pond cummings and Steven A. Ramirez (University of Arkansas at Little Rock - William H. Bowen School of Law and Loyola University of Chicago School of Law) have posted Roadmap for Anti-Racism: First Unwind the War on Drugs Now (Tulane Law Review, Vol. 96, No. 3, 2022) on SSRN. Here is the abstract:

 

The War on Drugs (WOD) transmogrified into a war on communities of color early in its history, and its impact has devastated communities of color first and foremost. People of color disproportionately suffer incarceration in the WOD even though people of color use illegal narcotics at substantially lower rates than white Americans. As a result, the WOD led to mass incarceration of people of color at many times the rate of white Americans. Indeed, as a stark illustration of the power of race in America, even after Illinois and Colorado legalized cannabis, over-policing in communities of color resulted in a substantial increase in arrests of people of color while white youth arrests declined. Thus, when police brutality against communities of color exploded into the consciousness of America in 2020, it vindicated many voices suggesting a close link to the WOD and its implicit targeting of people of color.

Continue reading

Dissent from cert denial in habeas case

Justice Thomas, joined by Justice Alito, dissented from denial of cert in Shoop v. Cassano.

Opinion holding attempted Hobbs Act robbery is not a crime of violence under firearm statute

Justice Gorsuch delivered the opinion of the Court in United States v. Taylor. Justices Thomas and Alito filed dissenting opinions.

Opinion denying neurological testing for habeas petitioner

The Chief Justice delivered the opinion of the Court in Shoop v. Twyford. Justice Breyer, joined by Justices Sotomayor and Kagan, filed a dissenting opinion. Justice Gorsuch also dissented.

Henderson on Digital Data and Warrants

Stephen E. Henderson (University of Oklahoma - College of Law) has posted In Celebration of Dissents (And Lengthy Textbooks): How Digital Became Different for the Fourth Amendment And Why It Is Time for a Real Warrant Default (Ohio State Law Journal, Forthcoming) on SSRN. Here is the abstract:

 

The last decade has brought tremendous change to the Fourth Amendment, finally resulting in a ‘digital is different’ norm. We stand at an inflection point between a monolithic, analog past and a murky future of yet-unarticulated constitutional digital policing rules. It is a good time, then, to reflect upon how we came to be here and where we ought to go. This essay first looks back to a monumental, majestic dissent: that of Justice Louis Brandeis in the 1928 decision of Olmstead v. United States. Every American, and especially every law student, ought to know that opinion, and judges and scholars ought to appreciate how it charted the path we have now trod. The essay then turns forward, considering whether we are finally ready for a longstanding Supreme Court assertion that has never been honestly applied: a Fourth Amendment warrant default. Given ubiquitous digital data, a warrant standard will often be required for searches to be reasonable. And, even when it is not—when the needs of effective investigation and resulting safety outweigh privacy and liberty concerns—the modern Fourth Amendment space is uniquely well situated to a ‘penalty default’ in which the State shoulders the burden of convincing legislators and then courts that such lesser standard is constitutionally correct.

Roth on Jury Trial in Petty Cases

Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Lost Right to Jury Trial in 'All' Criminal Prosecutions (Duke Law Journal, Vol. 72, 2022) on SSRN. Here is the abstract:

 

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable. Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions. Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court. The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

Shen et al. on The Eighth Amendment for Young Adults

Francis X. Shen, Fenella McLuskie, Erin Shortell, Mariah Bellamoroso, Elizabeth Escalante, Brenna Evans, Ian Hayes, Clarissa Kimmey, Sarah Lagan, Madeleine Muller, Jennifer Near, Kailey Nicholson, Job Okeri, Ifeoma Okoli, Emily Rehmet, Nancy Gertner and Robert Kinscherff (Harvard University - Center for Bioethics, affiliation not provided to SSRN, Harvard University - Harvard Law School, Harvard University, Harvard Law School, Harvard University, Harvard Law School, Students, Tufts University, University of Minnesota Law School, Harvard College, affiliation not provided to SSRN, Harvard University, Harvard College, Students, Northwestern University, Harvard College, Harvard College, affiliation not provided to SSRN, Harvard College, affiliation not provided to SSRN, Harvard Law School and William James College) have posted Justice for Emerging Adults after Jones: The Rapidly Developing Use of Neuroscience to Extend Eighth Amendment Miller Protections to Defendants Ages 18 and Older (97 NYU L. Rev. Online 101 (2022)) on SSRN. Here is the abstract:

 

Federal and state court decisions over the past year are reshaping the contours of juvenile justice litigation. At the federal level, the Supreme Court’s recent decision in Jones v. Mississippi left intact the Court’s current commitment to treating age 18 as the dividing line between youth and adult criminal sentencing. If a youth commits a crime at age 17 years, 364 days, 23 hours, 59 minutes, and 59 seconds old, that youth cannot be put to death or receive mandatory life without parole (LWOP). One second later, these constitutional protections disappear. Calling into question this line drawing, litigants across the country are actively leveraging neuroscientific research to argue that emerging adults ages 18 through early 20s should receive the same constitutional protections as those under 18.

Continue reading

Grolleau et al. on Letting Offenders Choose Their Punishments

Gilles Grolleau, Murat C. Mungan and Naoufel Mzoughi (Montpellier SupAgro and Researcher at LAMETA, George Mason University - Antonin Scalia Law School, Faculty and INRA Ecodéveloppement) have posted Letting Offenders Choose Their Punishment? (Kyklos (Forthcoming)) on SSRN. Here is the abstract:

 

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the conventional view that adding (possibly unexercised) punishment options to an existing punishment scheme is unlikely to increase deterrence or welfare. We explain how heterogeneities among individuals can pose problems to designing effective punishment menus and discuss potential solutions. After explaining how punishment menus, if designed and implemented benevolently, can serve socially desirable goals, we caution against their possible misuse by self-interested governments.

Davies et al. on Appointed Counsel in Misdemeanor Cases

Andrew Davies, Blane Skiles, Pamela R. Metzger, Janelle Gursoy and Alex Romo (Southern Methodist University - Dedman School of Law, Southern Methodist University - Dedman School of Law, Southern Methodist University - Dedman School of Law, Southern Methodist University - Dedman School of Law and Southern Methodist University - Dedman School of Law) have posted Getting Gideon Right: Eligibility for Appointed Counsel in Texas Misdemeanor Cases (Deason Criminal Justice Reform Center Report (2022)) on SSRN. Here is the abstract:

 

In Gideon v. Wainwright, the U.S. Supreme Court held that the government must provide a criminal defense lawyer for any accused person who cannot afford one. But for too many people, Gideon's promise remains unfulfilled. In Texas, there are no statewide guidelines about who is entitled to a court-appointed lawyer. Instead, counties create their own rules that create serious gaps in constitutional protection. Getting Gideon Right investigates the financial standards that determine an accused person's eligibility for appointed counsel in Texas county courts. The report reveals a patchwork of county court policies that are both complex and severe.

Arbour & Marchand on Parole and Supervised Transition

William Arbour and Steeve Marchand (University of Toronto - Department of Economics and University of Melbourne - Melbourne Institute: Applied Economic & Social Research) has posted Parole, Recidivism, and the Role of Supervised Transition on SSRN. Here is the abstract:

 

We estimate the causal effect of parole on recidivism by exploiting the random assignment of parole board members to hearings in Quebec prisons. Board members vary in their propensity to grant parole and to place parolees to supervised halfway houses. We find that parole decreases the likelihood of recidivism by 8 percentage points within 5 years. Parolees at the margin of remaining incarcerated spend on average 4 fewer months incarcerated during the course of the next 5 years. This effect is largely driven by the direct release of parolees, but also by reduced incarceration time in future sentences. We further investigate the role of halfway houses in the reintegration process by estimating their effect on different groups of compliers. Our analysis shows that a stay in a halfway house is especially effective for convicts at the margin of remaining incarcerated.

Salib & Krishnamurthi on Nullification in Abortion Prosecutions

Peter Salib and Guha Krishnamurthi (University of Houston Law Center and University of Oklahoma College of Law) have posted Nullification in Abortion Prosecutions: An Equilibrium Theory (72 Duke Law Journal Online (2022 Forthcoming)) on SSRN. Here is the abstract:

 

The Supreme Court is poised to overrule Roe v. Wade. Doing so, it will rescind recognition of a fundamental constitutional right for the first time in nearly a century. In anticipation of Roe’s demise, multiple states have already enacted laws that will criminalize abortion once the abortion right is gone. More states will follow. Calls to action have gone out to those who can protect women’s rights: the President, Congress, left-leaning state governments, and more. We add another call—to jurors.

Jurors—and sometimes judges—have the power to refuse to convict factually guilty defendants in criminal prosecutions when they believe that conviction would be unjust. This power is called “nullification.” We argue here that nullification may have an important role to play in blunting the force of the most extreme anti-abortion laws. Historically, nullification has been a weak tool for counteracting overzealous criminalization. But abortion might be different. Unlike almost all other criminal prohibitions, broad criminal bans on abortion are extremely unpopular. 90% of Americans believe that abortion should be legal in at least some cases. Thus, we argue, nullification may be a much more serious threat here than elsewhere.

Continue reading

Wu on Compassionate Relief and Nonretroactivity

Carl Wu has posted Canceling Compassion: Nonretroactivity and the Narrowing of Postconviction Relief in Federal Courts (Criminal Law Bulletin, Forthcoming) on SSRN. Here is the abstract:

In 2018, Congress passed the First Step Act, which opened the door for incarcerated individuals to apply directly to district courts for release or a sentence reduction by way of compassionate release. A form of postconviction relief, certain federal courts have narrowed the scope of eligibility for compassionate release based on a restrictive reading of what are “extraordinary and compelling” reasons for relief. Specifically, these courts hold that nonretroactive changes in sentencing law cannot constitute such “extraordinary and compelling” reasons as a matter of law. This article explores the now-intractable circuit split that has emerged on this issue, critiques the underlying non-textual motivations that have guided certain courts, and proposes an immediate resolution by the Supreme Court. Yet the deep disagreement amongst the courts, which has precluded relief based solely on an individual’s geographic location, raises a further question: should courts be the sole arbiter of compassionate release?