CrimProf Blog

Ferrey on Sustainable Development Threatened by US Criminal Law

Steven Ferrey (Suffolk University Law School) has posted Sustainable Development Arrested by U.S. Criminal Law (American University Law Review, Vol. 68, 2019) on SSRN. Here is the abstract:

 

In the United States, it is a criminal felony offense for killing, even unintentionally, any one of more than 1000 species of protected birds. If a perpetrator company violates this law, officials of the company can be sent to jail for up to two years and be fined up to one-quarter million dollars per bird killed. Over the past decade, wind power has grown to be the most-installed energy source in the United States and will hold that top position going forward. Wind power in the United States now kills an estimated several hundred thousand of these birds that are protected by strict federal criminal statutes every year. As wind power’s small three percent share of the energy market multiplies rapidly in the next decades, and as the United States moves to renewable energy as the keystone of its mobilization against climate change and global warming, this bird mortality number likely will increase commensurately.

This Article examines several emerging legal conflicts between mitigation of global warming and criminal prosecution of sustainable energy development through three federal species protection statutes and an international treaty.

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Symposium on Title IX and Criminal Law

Three articles have been posted on SSRN from this symposium. The first is Amy Moore (Belmont University - College of Law), Title Ix Policy Changes from An Administrative Law Perspective (Belmont Criminal Law Journal, Vol. 1, Issue 1, pp. 78-91). Here is the abstract:

A presentation given at the 2018 Belmont Criminal Law Journal Symposium: Title IX Reform and its Effect on the Criminal Law Field.

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Wells on Strict Liability for Constitutional Torts

Michael Lewis Wells (University of Georgia School of Law) has posted Some Objections to Strict Liability for Constitutional Torts (Georgia Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Qualified immunity protects officials from damages for constitutional violations, unless they have violated “clearly established” rights. Local governments enjoy no immunity, but may not be sued on a vicarious liability theory for constitutional violations committed by their employees. Critics of the current regime would overturn of these rules, in order to vindicate constitutional rights and deter violations. This article argues that the costs of these reforms would outweigh the benefits.

Hamernick on Legal Remedies for Police-Involved Conspiracies

Jared Hamernick has posted 16 Shots and a Cover-up: Legal Remedies for Police Involved Conspiracies (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

This Note proposes a series of legal remedies aimed at breaking cultures of silence within local police departments.

Esoimeme on Money Laundering and Narcotics

Ehi Esoimeme (University of Wales System - Cardiff Law School) has posted LEVERAGING ANTI-MONEY LAUNDERING POLICIES AND PROCEDURES TO COMBAT ILLICIT TRAFFICKING IN NARCOTIC DRUGS on SSRN. Here is the abstract:

 

PURPOSE – This paper aims to examine the different methods that drug dealers employ to launder their illicit funds, and the strategies that countries can adopt to combat the laundering of the Proceeds of Illicit Trafficking in Narcotic Drugs.

DESIGN/METHODOLOGY/APPROACH – This paper uses selected drug trafficking case studies i.e. R v. Adam Maybury and Caroline Wakefield; R v. Daniel Harris; and R v. Nicholas Strange and Neil Strange to help build awareness with the regulatory, enforcement and customs authorities as well as reporting entities about the risks and vulnerabilities of money laundering, and how to mitigate them. This is the only Article to adopt this kind of approach.

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Sundby on Interrogation Law

Scott E. Sundby (University of Miami School of Law) has posted The Court and the Suspect: Human Frailty, the Calculating Criminal, and the Penitent in the Interrogation Room (Washington University Law Review, Vol. 98, No. 1, 2020) on SSRN. Here is the abstract:

 

For the past century, the Supreme Court has swung back-and-forth between a laissez faire approach to police interrogation and the far more regulatory approach exemplified by Miranda v. Arizona. Indeed, it would be quite understandable if someone were to develop constitutional vertigo in tracing the Court’s meanderings through the various constitutional byways of the Due Process clause, the Sixth Amendment right to counsel, and the Fifth Amendment privilege against self-incrimination. The Court’s failure to bring coherence to its case law has offered up a legal piñata for scholars and judges to take a swing at as the search continues to figure out the proper role for the Bill of Rights in regulating police interrogation.

This Article brings a new perspective to that quest by arguing that much of the Court’s muddled jurisprudence regarding police interrogation is a result of the Justices’ differing views of why individuals confess.

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Shestak & Shiryaev on Accidents Involving Self-Driving Cars

Viktor Shestak and Artur Shiryaev (Moscow State Institute of International Relations (MGIMO) and MGIMO University) have posted Criminal Liability for Accidents Involving Self-Driving Cars: The German Experience (Technology of the XXI century in jurisprudence: Materials of The Second International Scientific-Practical Conference (22 May 2020). Yekaterinburg: Ural State Law University) on SSRN. Here is the abstract:

 

The paper deals with the issues of criminal liability for accidents involving driver-less cars under German law. Authors give the definition of a driver-less car under the law of Germany; analyze the circle of persons brought to criminal responsibility for crimes committed with the use of a driver-less car. The issues of criminal liability of a driver-less car manufacturer are considered separately.

Raskolnikov on Criminal Deterrence

Alex Raskolnikov (Columbia University - Law School) has posted Criminal Deterrence: A Review of the Missing Literature (Supreme Court Economic Review, Forthcoming) on SSRN. Here is the abstract:

 

This review of the criminal deterrence literature focuses on the questions that are largely missing from many recent, excellent, comprehensive reviews of that literature, and from the literature itself. By “missing” I mean, first, questions that criminal deterrence scholars have ignored either completely or to a large extent. These questions range from fundamental (the distributional analysis of the criminal justice system), to those hidden in plain sight (economic analysis of misdemeanors), to those that are well-know yet mostly overlooked (the role of positive incentives, offender’s mental state, and celerity of punishment). I also use “missing” to refer to the areas where substantial relevant knowledge exists but is largely disregarded within the criminal deterrence research program. The empirical analysis of environmental and tax compliance are two stark examples. Finally, I stretch “missing” to describe topics that have been both studied and reviewed, but where substantial challenges remain. These include the theoretical explanation for the role of offense history, the proper accounting for the offender’s gains, the estimation of the costs of various crimes, and the cost-benefit analysis of crime-reduction policies.

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Today's criminal law/procedure cert grant

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

• Department of Justice v. House Committee on the Judiciary: Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Shestak & Khalikova on Chipping and Identification

Viktor Shestak and Liana Khalikova (Moscow State Institute of International Relations (MGIMO) and affiliation not provided to SSRN) has posted Chipping as a Method of Personal Identification Within the Framework of Criminalistics (Technology of the XXI century in jurisprudence: Materials of The Second International Scientific-Practical Conference (22 May 2020)) on SSRN. Here is the abstract:

 

This article explores the issues of objective possibility of using chipping as a method of personal identification within the framework of criminalistics. This article examines the operating principle of the microchip, its functions at the present stage of the development of science. Applicable nature of this method for maintaining the effective work of law enforcement agencies is substantiated based on this research. The article analyzes the problem of the correlation of implanting the microchips into the human body with the concept of protecting the rights and freedoms of each person and citizen.

Lord on Denunciation

Phil Lord (McGill University - Faculty of Law) has posted 'It Doesn’t Work!': The Symbolic Aspect of Law, From the Criminal Law to Bill 21 ((2020) 9:6 Directions 1) on SSRN. Here is the abstract:

 

This article uses an analytical framework from the criminal law to analyse Quebec’s Bill 21. It analyses denunciation, an important principle in the criminal law, and describes its analytical framework. It then applies this framework to Bill 21. From a historical analysis of the importance of state secularism in Quebec, it re-frames the debate regarding Bill 21 and paints Bill 21 as a symbolic and constitutive act. Bill 21 allows Quebecers to break free from an oppressive past defined by the confluence of church and state. As a symbolic act, it constitutes and consolidates a shared identity. It is underlain by shared anxieties regarding potential threats to this identity. By developing a criminal law framework, this article suggests, although tangentially, that the importance of the symbolic and constitutive aspects of law transcends the criminal law.

Shestak & Savenkova on Investigating Digital Currency-Related Crimes

Viktor Shestak and Polina Savenkova (Moscow State Institute of International Relations (MGIMO) and MGIMO) have posted Modern Methods of Investigating Digital Currency Related Crimes (Technology of the XXI century in jurisprudence: Materials of The Second International Scientific-Practical Conference (22 May 2020). Yekaterinburg: Ural State Law University) on SSRN. Here is the abstract:

 

In this article are examined various ways and methods of collecting the evidence pertaining to the digital currency related crimes. And in particular is investigated the role of cryptocurrency in the total number of financial crimes. Authors study modern digital forensics techniques which are used in the crime investigation.

Emon & Mahmood on Canadian Anti-Terrorism Litigation

Anver M. Emon and Aaqib Mahmood (University of Toronto - Faculty of Law and University of Toronto, Faculty of Law) have posted Canada v. Asad Ansari: Avatars, Inexpertise, and Racial Bias in Canadian Anti-Terrorism Litigation (Michael Nesbitt and Kent Roach, eds. Toronto 18 Terrorism Trials. Calgary: University of Calgary (Forthcoming)) on SSRN. Here is the abstract:

 

This essay examines the case of Asad Ansari, who was 25 years old at the time of his trial as part of the so-called Toronto 18. Through a close examination of certain aspects of his case, this essay will show that rather than Asad Ansari, what was on trial was an avatar of Ansari, which took shape through the explicitly inexpert and implicitly racially biased litigation of Islam itself. The very structure of the litigation collapsed Islam, the religion, into the defendant. The absurdity of this absent expertise is pregnant in the facially neutral, but substantively suspect, procedural structure of the litigation via the form of evidentiary motions and the use of leading questions on cross-examination. This procedural structure was substantially suspect in the case of Ansari because utterly inexpert testimonies and biased perspectives were permitted by the very structure of Canada’s adversarial system of justice. From the accused Ansari, to the government prosecutors, and even to the government paid confidential informants, no one was disinterested in the outcome of the trial. Yet none were duly certified by the court as impartial experts on Islam, jihad or the regional conflicts in Iraq, Syria or Afghanistan, despite all of them testifying about such matters as proxies for the defendant’s state of mind. Nor did the presiding judge Justice Fletcher Dawson—in the role of the paternal (if not patronizing) overseer of the jury—recognize the relevant parties were litigating matters outside their personal and institutional competency. The analysis below suggests that Ansari was found guilty not because he contravened anything that would fall within the anti-terrorism legislation. Rather, his guilt is premised upon the fact that he read, reviewed, and thought about ideas that the security state considers radical and even threatening. Because those ideas were embedded in propaganda from groups like al-Qaida, the Taliban, and Iraqi insurgencies, ultimately the person of Ansari was collapsed into these hard to find and harder to defeat groups.

Shestak & Dyachenko on Regulation of Euthanasia

Viktor Shestak and Margarita Dyachenko (Moscow State Institute of International Relations (MGIMO) and Moscow State Institute of Internatinal Relations (MGIMO-University)) have posted On Certain Aspects of Legal Regulation of Euthanasia in Russian and Foreign Criminal Law (Actual issues of the fight against crime: Materials Prepared For The Second Correspondence International Scientific-Practical Conference (15 May 2020)) on SSRN. Here is the abstract:

 

The authors considered the legal regulation of euthanasia in a number of European countries where this procedure is not prohibited. In addition, the conditions for its practical application in Switzerland and the Netherlands have been studied in this research. Main international legal sources were identified, which provided the first relevant definitions of the procedure and regulated its types and forms. It has been established that conducting an active form of euthanasia in Russia is a criminal offence; however, there are certain inconsistencies in the legal regulation of the passive form of euthanasia, which creates certain difficulties in qualifying this act under Russian criminal law.

Sundareshan on International Trafficking of Endangered Species

Priyanka Sundareshan has posted Prosecution for a Porpoise: Strengthen U.S. Enforcement against Criminal Networks to Address International Trafficking of Endangered Species (10 Arizona Journal of Environmental Law & Policy 216 (2020)) on SSRN. Here is the abstract:

 

The vaquita marina is a critically endangered porpoise, only found in the Gulf of California, whose numbers have dropped precipitously over the last few years such that fewer than 20 individuals remain in the population. Their predicament is exacerbated by the fact that they are often killed as bycatch in Mexican fishing nets set out to catch totoaba, an endangered fish endemic to the same waters. The totoaba, like many other endangered species, are imperiled by the high prices they command in illegal wildlife markets in other countries. Although both vaquita and totoaba are protected by environmental regimes such as the U.S. Endangered Species Act and the Convention on International Trade in Endangered Species, efforts to apprehend and prosecute totoaba traffickers under these laws have been weak and ineffective, as have fishing bans and enforcement in Mexico.

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Benedet & Grant on Father-Daughter Sexual Abuse

Janine Benedet and Isabel Grant (University of British Columbia - Faculty of Law and University of British Columbia - Faculty of Law) has posted Breaking the Silence on Father-Daughter Sexual Abuse of Adolescent Girls: A Case Law Study ((2020) 32:2 Canadian Journal of Women and the Law) on SSRN. Here is the abstract:

 

Adolescent girls are targeted for sexual violence at a rate higher than females at any other life stage. Girls most often face sexual violence at the hands of men that they know and trust within their own families, yet this type of abuse has largely evaded scrutiny from the #MeToo movement. In this article, the authors seek to revitalize the discussion of sexual abuse against adolescent girls by their fathers. The article is part of a larger study that examined all Canadian judicial decisions involving sexual offences against girls between the ages of twelve and seventeen inclusive over a three-year period. An examination of these cases shows that more than one quarter of all reported decisions involving sexual assault against adolescent girls were committed by stepfathers and biological fathers. The authors found patterns of violence similar to those of coercive control described by adult women in intimate relationships, with men exerting controlling behaviours that extended beyond the sexual activity itself. While conviction rates were relatively high, they were lower for fathers than for other groups of perpetrators. The authors conclude that sexual abuse by fathers may be the easiest to perpetrate, the hardest to uncover, and the most damaging to victims.

Roiphe on DOJ Lawyers

Rebecca Roiphe (New York Law School) has posted A Typology of Justice Department Lawyers' Roles and Responsibilities (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:

 

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between independence and responsiveness to the administration. By explaining these roles and responsibilities, this Article both describes the different DOJ lawyer roles and seeks to strengthen the institution by making the informal norms that preserve and protect its mission more explicit. The Article concludes that, as DOJ expanded, it evolved to allow the Attorney General to balance the political and legal responsibilities of his office. He does so by advising and implementing administration policies while preventing impermissible political considerations from influencing those DOJ officials who are charged with the neutral interpretation and enforcement of the law.

Sukhatme & Jenkins on Judicial Contributions and Counsel Appointment

Neel U. Sukhatme and Jay Jenkins (Georgetown University Law Center and Texas Criminal Justice Coalition) have posted Pay to Play? Campaign Finance and the Incentive Gap in the Sixth Amendment's Right to Counsel (70 Duke L.J. __ (2020)) on SSRN. Here is the abstract:

 

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor design: they do not align publicly funded defense attorneys with their clients’ best interests. This is particularly true when courts appoint private attorneys to represent indigent defendants for a fee, as is done in hundreds of jurisdictions across the United States. We explain how such assignment systems create an “incentive gap” that financially motivates defense attorneys to maximize their caseloads but minimize their efforts.

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Nevins-Saunders on Judicial Drift

Elizabeth Nevins-Saunders (Hofstra University - Maurice A. Deane School of Law) has posted Judicial Drift (American Criminal Law Review, Vol. 57, No. 2, 2020) on SSRN. Here is the abstract:

 

Although there is broad consensus on what constitutes procedural due process in criminal cases, in courtrooms around the country, those ideals are often disregarded. In the wake of rising public attention to misdemeanors, be it through marijuana decriminalization or concern over unduly punitive fees and surcharges, a few scholars have pointed to theories explaining the gulf between rights and reality for low-level defendants. Yet none have expressly considered the impact of administrative rules made (or not made) at the courthouse level. This Article analogizes the courthouse to an administrative agency and borrows the doctrine of “bureaucratic drift” to explain how Supreme Court, legislative, and ethical norms of due process get fltered through a courthouse bureaucracy that ultimately leaves poor defendants without access to basic rights. The argument draws on fndings of a fve-week court observation project, which documented the daily injustices — in violation of established law — that individuals charged with low-level crimes experienced as defendants in a New York court. To remedy the drift, the Article proposes the appointment of an independent due process ombuds to oversee procedural justice court-wide.

Conklin on Bayesian Jury Instructions and the Defense Attorney's Fallacy

Michael Conklin (Angelo State University) has posted The Effectiveness of Bayesian Jury Instructions in Mitigating the Defense Attorney's Fallacy (9 HOUS. L. REV.: OFF REC. 73 (2019)) on SSRN. Here is the abstract:

 

A previous study found that the effects of the prosecutor’s fallacy can be minimized if juries are presented with a Bayesian jury instruction. This study examines whether a similar instruction can likewise combat the more pervasive defense attorney’s fallacy or if the results of the previous study were more a function of increased confusion rather than an increased understanding of conditional probabilities. Additionally, prior performance in a statistics class is considered as a measure of susceptibility to this probabilistic fallacy.